NON-JURY TRIAL & BREACH OF LEASE - EVANS V. WALDROP
Evans v. Waldrop, [Ms. 2150342, Aug. 12, 2016] __ So. 3d __ (Ala. Civ. App. 2016). The Court of Civil Appeals affirms the Walker Circuit Court's judgment that Evans owed Waldrop for unpaid rent. The opinion discusses the consequences when a successor trial-court judge enters judgment based upon his review of trial transcripts and evidence submitted to his predecessor. Citing Rule 63, Ala. R. Civ. P., (governing further proceedings when "the judge is unable to proceed" and stating that, "[i]n a hearing or trial without a jury, the successor judge shall, at the request of a party, recall any witness whose testimony is material and disputed"), the Court of Civil Appeals (Ms. *3-5) citing Jackson v. Strickland, 808 So. 2d 993 (Ala. 2001) noted that when an action is submitted on briefs, transcribed testimony and documentary evidence, appellate courts typically do not apply the ore tenus rule.
The Court of Civil Appeals also concludes that Waldrop, the lessor, did not unreasonably withhold his consent to a sub-lease proposed by Evans such that rents remained due and judgment was properly entered for past-due rents by the successor Walker County trial-court judge. See Ms. *12-13, quoting Pantry, Inc. v. Moseley, 126 So. 3d 152 (Ala. 2013), Homa-Goff Interiors, Inc. v. Cowden, 350 So. 2d 1035 (Ala. 1977), and Rowley v. City of Mobile, 676 So. 2d 316 (Ala. Civ. App. 1995).