Various Notes From Decisions of December 19, 2008

No decision released on December 19, 2008 turned centrally on a question of post-judgment or appellate law. Consequently, no one case seemed worth summarizing here. Several familiar points of appellate law did arise in these cases, though. Hoping that readers will find it useful, we recount these points briefly.

1) Tidwell v. Pritchett-Moore, Inc., Nos. 2070966, 2071100 (Ala. Civ. App. Dec. 19, 2008).

The appellant here saw the Court of Civil Appeals turn aside two of her arguments as insufficiently advanced or preserved. She first argued that the trial court had wrongly determined that one of her claims had not been presented in her complaint. She pressed this argument in her main appellate brief, but “fail[ed] to cite any legal authority” supporting it. The appellate court deemed the argument waived. See Ala. R. App. P. 28(a)(10). 

She then argued that the trial court had erroneously entered a judgment on the merits of her claims before addressing her request for class certification. She did not object to this in the trial court, however, raising the issue for the first time only on appeal. The appellate court declined to “address an issue not presented to [the] trial court.”

2) Starr v. Wilson, Nos. 2070281, 2070731 (Ala. Civ. App. Dec. 19, 2008).

A trial court purported to grant one and deny another post-judgment motion after the 90-day automatic-denial deadline of Rule 59.1 had passed. This attempted disposition was a “nullity.” Such cases often involve late appeals, with appellants measuring their deadline to appeal from the date of the inoperative circuit-court order. Here, however, the appellant filed a timely appeal once its post-judgment motion was denied by operation of law.

3) Grelier v. Grelier, No. 2060810 (Ala. Civ. App. Dec. 19, 2008).

A husband cross-appealed aspects of the trial court’s divorce judgment. While he described his various contentions in his appellate docketing statement, he “failed to present those issues or arguments in his appellate brief.” The Court of Civil Appeals declined to consider his arguments. That court “has consistently held that when a party does not make an argument or cite any authority to support an allegation of error, that allegation of error is deemed waived on appeal.”

4) Ex parte Riley, No. 1071702 (Ala. Dec. 19, 2008).

Of general political interest is Ex parte Riley. State legislators sued the Governor over his veto of one section of the general appropriations bill for Fiscal Year 2009. That section required the Governor to fund certain agencies at levels guaranteed by the Legislature while apportioning any shortfall among other departments. The Governor argued that the Legislature could not compel a preferential apportionment. If funds were insufficient to meet the State’s expenses, the Governor urged, constitutional and statutory law required that available funds be divided proportionately among all State agencies. 

The Governor sought a writ of mandamus directing the trial court to dismiss the case for lack of subject matter jurisdiction. The sole issue before the Alabama Supreme Court was whether the case was ripe for judicial review. To be ripe, a case “must concern a dispute that is a real and substantial controversy admitting of specific relief through a [judgment].” (Quotations omitted.) Merely “anticipated controversies” are not ripe.

The Governor argued that the case was not ripe because the apportionment provision of the vetoed section would be triggered only if general revenues were insufficient to fund the various appropriations whose levels were not guaranteed. Because funds had not yet been determined insufficient, the Governor reasoned, his veto had “not created an actual controversy.”

The state’s high court disagreed. Writing per curiam, the Court found that the Governor’s veto created a situation in which State agencies were “presently allocating and spending operating expenses according to . . . inaccurate information.” The Governor’s veto, the Court continued, “immediately raises a dispute as to whether those State agencies that are not protected under” the guaranteed-funding mandate of the vetoed provision “are presently operating on budgets that, if Governor Riley’s veto is held to be invalid, will exhaust their available funds before the end of the fiscal year.” This was a dispute ripe for judicial review. The Court thus declined to order the trial court to dismiss the case for want of subject matter jurisdiction.