Cases Releases July 31, 2009

From the Alabama Court of Civil Appeals:

S.T.W. v. Franklin County Department of Human Resources

E.R.W. v. M.W.M.

R.D.B. v. A.C.

Green v. City of Montgomery

SouthernCare, Inc. v. Cowart

Black Creek, Inc. v. Wood

Blasdel v. Blasdel

Complete List of Cases from the Alabama Court of Civil Appeals


From the Alabama Supreme Court:

Colony Insurance Company v. Georgia-Pacific, LLC

Shoney’s LLC v. MAC East, LLC

Brannon v. BankTrust, Inc.

Board of Water & Sewer Commissioners of the City of Mobile v. Bill Harbert Construction Company

Complete List of Cases from the Alabama Supreme Court

Rule 60 Motions Not Subject to Rule 59.1 Deadlines

In  Rhodes v. Rhodes, [Ms. 2070972] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal in part because the trial court never ruled on the Rule 60 motion from which review was sought.  Rule 60 motions are not denied by operation of law after 90 days pursuant to Rule 59.1. Therefore, the motion was still pending and there was not a final order for purposes of appeal.

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Dismissal “Without Prejudice” Can Support Appeal If Judgment Conclusively Determines Issue Before Court

In J.J. v. J.B., [Ms. 208411] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals refused to dismiss an appeal even though the appeal was from an order dismissing the underlying dependency case "without prejudice."   Although the Alabama Supreme Court has held that a dismissal "without prejudice" will not support an appeal if the trial court did not address the merits of the case in its order, see  Palugi v. Dow, 659 So. 2d 112 (Ala. 1995), that rule does not apply if the order actually decides the issue before the court.  Here, the trial court dismissed the underlying action without prejudice because the trial court found that the case was moot. The finding of mootness conclusively decided the issue before the trial court and, therefore, the order would support an appeal.  The Court of Civil Appeals ultimately reversed he dismissal.

Trial Court’s Jurisdiction After Remand From Appellate Court Is Limited By Mandate

In South Alabama Skills Training Consortium v. Ford, [Ms. 2080068] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal as being from a void judgment because the trial court’s jurisdiction on a review of a decision of an administrative law judge was limited by certiorari review, and the trial court did not have jurisdiction to go beyond the appellate court’s mandate after remand.

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When Oral Testimony Is Considered By Trial Court But Not In Record on Appeal, Evidence Will Be Presumed to Be Sufficient to Support Judgment

In Cockerell v. Cockerell, [Ms. 2070793] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals affirmed a divorce judgment in part because the husband failed to put a record of the oral testimony in the record.  Because the appellate courts will not presume error, the Court of Civil Appeals found that it was "conclusively presumed that the testimony [was] sufficient to support the error."

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Deferential Ore Tenus Standard Does Not Apply to Questions of Law

"[A]ppellate courts have limited power in reviewing a judgment of a trial court after the trial court hears evidence ore tenus. ‘However, where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application.’"  Appellate courts review questions of law de novo, even in an ore tenus case.  Holt v. Whitehurst, No. 2080131 (Ala. Civ. App. July 17, 2009).

In Holt, the trial court erred in entering a judgment for the father on the mother’s attempt to change the principal residence of the parties’ minor son because the trial court did not give the mother an opportunity to call witnesses at the ore tenus hearing.  "Pursuant to the plain language of Rule 52 (c), the trial court could not have entered judgment against the mother until she was fully heard on the issue in question. Under the Act, the burden of proof is on the mother, as the relocating parent."

Cases Released July 24, 2009

From the Alabama Court of Civil Appeals:

 J.J. v. J.B.

L.S. v. Shelby County Department of Human Resources

Jones v. Ruth

Dunn v. Williams

Guthery v. Persall

Edwards v. Edwards

A.W. v. K.L.W.

South Alabama Skills Training Consortium v. Ford et al.

Alacare Home Health Services, Inc. v. Alabama State Health Planning and Development Agency and the Certificate of Need Review Board

Spottswood v. Reimer et al.

S.J.R. v. F.M.R.

Rhodes v. Rhodes

Cockrell v. Cockrell

Dickson v. Dickson

Complete List of Cases from the Alabama Court of Civil Appeals


No cases released by the Alabama Supreme Court




Circuit Court Lacked Jurisdiction to Award Post-Judgment Attorney Fees – Should Have Vacated Void Order Under Rule 60(b)(4)

Well after the deadline had passed for filing post-judgment motions, the circuit court purported to grant a new motion to award the defendant attorney fees. This act was void for want of jurisdiction, and should have been vacated on the plaintiff’s motion. Palisades Collection, LLC v. Delaney, 2070532 (Ala. Civ. App. July 10, 2009).

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