Cases Released February 26, 2010




Argument Must Be Raised To Trial Court To Preserve For Appeal

In this interesting case involving Homeowners’ Associations, restrictive covenants, and what actually is an acceptable driveway, one of the issues was disposed of on appeal because it was not raised first  to the trial court.  Grove Hill Homeowners’ Association, Inc. v. Rice, [Ms. 2081093] (Ala. Civ. App. Feb. 5, 2010).

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Order Valid If Judge Renders and Directs Entry of Judgment But Order Not Entered Until After Judge Leaves Office

The unique scenario of where the trial court judge renders a judgment just before his term of office ends, but the judgment was not entered until after the judge’s term ended,  was presented in Gilliam v. Gilliam, [Ms. 2080856] (Ala. Civ. App. Feb. 5, 2010).  The Court of Civil Appeals concluded that, to be valid, the trial court must both render judgment and direct entry of judgment by the clerk prior to leaving office.  Further, the Court of Civil Appeals held that an order is valid even if filed on a legal holiday, but that the trial court erred by not holding a hearing on a post-judgment motion that had merit.

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Cases Released February 12, 2010

From the Alabama Supreme Court:

Weatherspoon v. Tillery Body Shop, Inc.

Ex parte DePaola; Petition for Writ of Mandamus (In re: Danny Clements Builder, Inc. v. Willcutt)

Complete List of Cases from the Alabama Supreme Court


From the Alabama Court of Civil Appeals:

E.P. v. Etowah County Department of Human Resources

L.T. v. W.L.

C.L.B. v. D.L.O.

Kish Land Company, LLC v. Thomas et al.

Complete List of Cases from the Alabama Court of Civil Appeals

Party Must Move For Judgment As a Matter of Law at Close of All Evidence to Raise Issue on Appeal

In Skerlick v. Gainey, [Ms. 2080673] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals held that a party waived the ability to challenge the sufficiency of the evidence on appeal because the party did not renew its motion for judgment as a matter of law at the close of all the evidence.

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Non-Final Judgments Will Not Support Appeal

The well-settled rule that a non-final judgment will not support an appeal resulted in two appeals being dismissed by the Court of Civil Appeals.  In both Faulk v. Rhodes, [Ms. 2081005] (Ala. Civ. App. Feb 3, 2010), and Sexton v. Sexton, [Ms. 2080852] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals determined that claims were left unresolved in the trial court.  Because judgments are final only if the judgment resolves all claims of all parties, and there were no certification of finality pursuant to Ala. R. Civ. P. 54(b), the appeals had to be dismissed as being from non-final judgments.

Circuit Court Lacked Jurisdiction to Rule On Late 60(b)(1) Motion

A father moved under Rule 60(b) to set aside a child support order that had been entered ten months earlier. Though he specified no specific part of Rule 60(b), his motion could be construed as coming only under Rule 60(b)(1). Such motions must be brought within four months of the challenged order. The circuit court’s ruling on the father’s late motion was jurisdictionally void and would not support an appeal. Noll v. Noll, No. 2080736 (Ala. Civ. App. Jan. 29, 2010).

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