Alabama, June, 2007, State Case law

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State Courts - Alabama - June 29, 2007

City of Mobile v. Pinto Island Land Co., 2051075, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Because a city adduced substantial evidence to rebut a landowner's claim that vacating a portion of a public street would result in the loss of a reasonable and convenient access to its property, the trial court erred in granting summary judgment to the landowner on its contrary claim.

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D.A. v. Calhoun County Dep't of Human Res., 2060112, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: While the juvenile court did not err in denying a father's motion to continue a termination of parental rights proceeding, and neither of his attempts to assert substantive claims of error were preserved for review, he was not precluded from filing an Ala. R. Civ. P. 60(b) motion asserting an ineffective assistance of counsel claim.

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Davis v. Blackstock, 2060017, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Trial court erred in modifying father's joint custody judgment because mother failed to show how natural progression to pre-kindergarten school was material change of circumstances that affected child's welfare when, even under physical custody arrangement approved by trial court, the child would have experienced missed extracurricular activities.

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E.E.K. v. Jefferson County Dep't of Human Res., 2050733, 2050734, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Because a father's appeal from an award of custody granted to the mother addressed issues that were moot, said appeal was denied. Further, no final judgment supported the mother's appeal. Hence, despite the appellate court's treatment of her appeal as a petition for a writ of mandamus, she failed to show she had a clear legal right to the same.

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ERA Class.com v. Stoddard, 2060144, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: A real estate agency and its agent were entitled to a judgment as a matter of law in property buyers' action for negligence, wantonness, fraud, and suppression because the buyers' signing the "as is" sales contract for used property barred their claims based on a misrepresentation that the property was zoned for commercial use.

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Ex parte Atkinson, 1051437, SUPREME COURT OF ALABAMA, June 29, 2007, Decided
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Overview: Installer was granted writ of mandamus directing trial court to dismiss negligence action as barred by statute of limitations because employee and wife were not ignorant of installer's identity when they filed original complaint and an amended complaint substituting him as fictitiously named defendant did not relate back under Ala. R. Civ. P. 9(h).

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Fox v. State, CR-05-0425, COURT OF CRIMINAL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Because defendant's claim in his second Ala. R. Crim. P. 32 postconviction relief petition that he was denied counsel at arraignment was not procedurally barred under Ala. R. Crim. P. 32.2, was sufficiently specific to satisfy Ala. R. Crim. P. 32.3, 32.6(b), and was meritorious on its face, case was remanded to allow defendant to prove his claim.

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Greenwood v. Lindsey Harbor, LLC, 2060041, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Appeal was dismissed as trial court determined that right-of-way would need to be adjusted to connect to public road, but did not resolve how right-of-way would be adjusted to accomplish that objective. Because judgment did not entirely resolve issues before trial court, and there was not Ala. R. Civ. P. 54(b) certification, judgment was not final.

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Gunn v. State, CR-06-1017, COURT OF CRIMINAL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Because an inmate's petition for a writ of habeas corpus seeking additional credit for the time he spent incarcerated while awaiting trial on a first-degree robbery case might have had merit, remand was ordered for an evidentiary hearing directing the habeas court to make specific findings as to this issue and grant credit if such was due.

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Hopkins v. Hopkins, 2050385, COURT OF CIVIL APPEALS OF ALABAMA, June 29, 2007, Released
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Overview: Son was not entitled to set aside a deed or impose a constructive trust on real property held by his parents because the parents had rebutted any presumption of a fiduciary relationship between them and the son under Ala. R. Evid. 301(b)(1); trust or confidence asserted by the son was neither "believable" nor "verifiable from objective facts."

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