Alabama's Appellate Standards of Review in Civil Cases

Publication year2020
Alabama's Appellate Standards Of Review in Civil Cases

Vol. 81 No. 1 Pg. 22

The Alabama Lawyer

January, 2020
By David G. Wirtes, Jr. and Bruce J. McKee

This is a primer on Alabama's appellate standards of review in typical civil cases. The standards set forth here should be considered baselines or starting points, and you should always check for changes and updates in the law.

Why does the standard of review matter? For starters, Ala. R. App. P. 28(a)(8) requires that your appellate brief "shall" contain "[a] concise statements of the standard of review applicable to each issue." Alabama's Rule of Appellate Procedure 28(a)(8) and (b) state in pertinent part:

Rule 28 BRIEFS
(a) Brief of the Appellant/ Petitioner. The brief of the appellant or the petitioner, if a petition for a writ of certiorari is granted and the writ issues, shall comply with the form requirements of Rule 32. In addition, the brief of the appellant or the petitioner shall contain under appropriate headings and in the order here indicated:
* * *
(8) Statement of the Standard of Review. A concise statement of the standard of review applicable to each issue;
* * *
(b) Brief of the Appellee/ Respondent. The brief of the appellee, or the respondent if a petition for a writ of certiorari is granted and the writ issues, shall conform to the requirements of subdivision (a)(1)-(12), except that a statement of the jurisdiction, the case, the issues, the facts, or the standard of review need not be included unless the appellee/ respondent is dissatisfied with those statements as made by the appellant/petitioner.

Conformance with the requirements of the rules is mandatory. Recently, in May v. May, [Ms. 2180076, June 21, 2019] __ So. 3d _, 2019 WL 2558800, at *1 (Ala. Civ. App. 2019), the court unanimously issued a stern rebuke, observing "Rule 28(a), Ala. R. App. P., sets forth what an appellant's brief 'shall contain.' The rule is not merely a suggestion as to what one might wish to include in a brief. Rule 28(a) mandates that the appellant include certain specific information necessary for this Court to conduct a meaningful review of the matter before us." Ms. *2.1

The focus of this article is Rule 28(a)(8)'s and 28(b)'s requirement of a "concise statement of the standard of review applicable to each issue." The Court Comment to the amendment to Rule 28, effective June 1, 2002, states, "[a] conclusory statement of the standard of review is sufficient, reserving any argument as to the standard of review for the argument portion of the brief."

What then are the pertinent standards of review commonly at issue in civil cases? What is the significance of identifying the correct standards of review? And, where should the lawyer begin his analysis when considering which issues to raise on appeal?

A threshold determination is always whether the appellant sufficiently raised and preserved the issue sought to be appealed. Note that Ala. R. App. P. 4(a)(3) provides: "Any error or ground for reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under [Ala. R. Civ. P.] 52(b) or Rule 59." This rule "prevents [the appellate courts] from judicially determining issues that have been raised for the first time on appeal." University of Alabama Hospitals v. Alabama Renal Stone Institute, Inc., 518 So. 2d 721, 725 (Ala. Civ. App. 1987).2 As a general rule, appellate review "is limited to the issues that were before the trial court-an issue raised on appeal must have first been presented to and ruled on by the trial court." Norman v. Bozeman, 605 So. 2d 1210, 1214 (Ala. 1992). "[A]ppellate courts can only review the actions of trial courts for alleged error, properly preserved and properly presented for review." Bill Steber Chevrolet-Oldsmobile, Inc. v. Morgan, 429 So. 2d 1013, 1015 (Ala. 1983). "[T]o preserve an alleged error of law for appellate review, the [defendant] must bring the alleged error to the attention of the trial court and receive an adverse ruling." Grove Hill Homeowner's Ass'n, Inc. v. Rice, 43 So. 3d 609, 613 (Ala. Civ. App. 2010); Cottrell v. National Collegiate Athletic Ass'n, 975 So. 2d 306, 349 (Ala. 2007). "An appellate court will not consider issues which are not properly delineated and it will not search out errors which have not been properly preserved or assigned." McAliley v. McAliley, 638 So. 2d 10 (Ala. 1983); Ex parte Riley, 464 So. 2d 92 (Ala. 1985).

Another threshold consideration is Ala. R. App. P. 45's harmless error rule:

Rule 45. Error Without Injury
No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.

See also Ala. R. Civ. P. 61. Examples of application of Rule 45's harmless error rule are numerous: Chance v. Dallas County, Ala., 456 So. 2d 295, 299 (Ala. 1984) ("[R]eversible error does not find its source in mere imperfection, for litigants are not entitled to a perfect trial, only a fair one."); Bethea v. Springhill Memorial Hosp., 833 So. 2d 1, 7 (Ala. 2002) ("Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an 'impartial' jury, see Ala. Const. 1901, § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right."); Flagstar Enterprises, Inc. v. Foster, 779 So. 2d 1220, 1221-22 (Ala. 2000) ("Although it is error for a trial court not to grant a request for a hearing on a motion for a new trial, the error is not necessarily reversible error as when an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule."); Chafian v. Alabama Bd. of Chiropractic Examiners, 647 So. 2d 759, 762 (Ala. 1994) ("Variance between dates of acts alleged in complaint against chiropractor and dates of acts offered by Board of Chiropractic Examiners during administrative hearing was harmless error which did not result in denial of due process"); Waldrop v. Langham, 260 Ala. 82, 87, 69 So. 2d 440, 444 (1953) (Alleged errors by trial court in admission and exclusion of testimony was error without injury when plaintiff failed to make a prima facie case); Malone v. City of Mobile, 602 So. 2d 403-04 (Ala. 1992) (Incorrect jury instruction deemed harmless as it did not prejudice the plaintiff because it stated a theory of recovery that did not exist under current Alabama law); Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317, 1328 (Ala. 1984) (Any error by the trial court in permitting one doctor to comment upon the report of another was harmless when that report had been admitted into evidence and the testimony was wholly insignificant as regards any element of the case); City of Gulf Shores v. Harbert Intern., 608 So. 2d 348, 354 (Ala. 1992) (A trial court's failure to admit cumulative evidence is harmless error).

Assuming the appellate issue is properly preserved and presented and not pretermitted by Rule 45's error-without-injury rule, the next step is identifying the applicable standard of review.

Why is this so important? The former Chief Judge Emeritus of the United States of Court of Appeals for the Third Circuit, Ruggero J. Aldisert, wrote in Winning on Appeal-Better Briefs and Oral Argument:

"Standards of review are critically important in effective advocacy. In large part, they determine the power of the lens through which the appellate court may examine a particular issue in a case. The error that may be a ground for reversal under one standard of review may be insignificant under another. It does not matter what you ask the court to do on appeal if the court cannotjump the hurdle imposed by the standard of review. You must craft your brief on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win. If your appeal raises more than one issue, then you should state the standard of review for each point.
...The competent advocate will have a clear understanding of the scope of review pertaining to each point in his or her brief....
I elevate the necessity of correctly stating the review standard to a question of minimum professional conduct."

Aldisert, Ruggero J., Winning on Appeal-Better Briefs and Oral Argument, § 5.2, pp. 56-57 (2d Ed. 2003).

The former Chief Judge of the United States Court of Appeals for the Fifth Circuit, John Godbold, states in Twenty Pages and Twenty Minutes-Effective Advocacy on Appeal, 30 S.M.U. L. Rev. 801 (1976):

"The standard of review is the appellate judge's 'measuring stick.' Early in the appeal, counsel must familiarize himself with the appropriate standard of appellate review for each issue. He cannot adequately prepare his case without that knowledge.... Unless counsel is familiar with the standard of review for each issue, he may find himself trying to run for a touchdown when basketball rules are in effect."

Id., pp. 810-11.

Former Supreme Court of Alabama Staff Attorney and Faulkner University Associate Law Professor Joi (Montiel) Christoff wrote in Your Appellate Brief: An Obstacle Course for the Court or a Clear Pathway to Your Conclusion states:

"The standard of review may not be the same for each issue you present. If you present three issues, outline the standard of review for each issue. Do not overlook the standard as you proceed through your argument. In other words, do not argue as if you and your opposing counsel are on a level playing field if you are not. If

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