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RULE 43(A), ALA. R. CIV. P. TRIAL UPON STIPULATED EVIDENCE - THE DOMBROWSKI LIVING TRUST V. MORGANTOWN PROPERTY OWNERS' ASSOC., INC.

The Dombrowski Living Trust v. Morgantown Property Owners' Assoc., Inc., [Ms. 2150391, Sept. 16, 2016] __ So. 3d __ (Ala. Civ. App. 2016). The Court of Civil Appeals, in a 3-2 decision (Donaldson, Judge; and Thompson, P.J. and Pittman, J., concurring; Moore, J. and Thomas, J., dissenting) affirms the judgment of the Baldwin Circuit Court denying a request to judicially redeem beachfront property in Gulf Shores that had been sold for unpaid ad valorem taxes. The decision is of interest because of the standard of review on appeal:

Standard of Review

By agreement of the parties, this case was tried based on stipulated evidence without the presentation of live testimony. The parties agreed that the trial court would decide any disputed facts based only on the written materials submitted and enter a final judgment accordingly. Pursuant to Rule 43(a), Ala. R. Civ. P., "attorneys for the parties are authorized to effect by agreement the manner of taking testimony absent a showing that the trial court limited or prohibited such agreed manner." Jones v. Gladney, 339 So. 2d 1019, 1021 (Ala. 1976). "Where no testimony is presented ore tenus, a reviewing court will not apply the presumption of correctness to a trial court's findings of fact and ... the reviewing court will review the evidence de novo." Eubanks v. Hale, 752 So. 2d 1113, 1122 (Ala. 1999). "Our statutory obligation [pursuant to Section 12-2-7(1), Ala. Code 1975,] in a case such as this is to 'weigh the evidence and give judgment as [we] deem[] just.'" Bentley Sys., Inc. v. Intergraph Corp., 922 So. 2d 61, 71 (Ala. 2005). See also Jackson v. Strickland, 808 So. 2d 993, 995 (Ala. 2001) (quoting Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900 (1929)) ("Where 'the testimony was taken by depositions' or was taken in a previous proceeding, '[t]here is ... no presumption of the correctness of the conclusion of the circuit court.'").

Ms. *10-11. The majority determines that the doctrine of laches applies to prevent the claimant from asserting its judicial-redemption claim. Ms. *21-2. The dissenting judges would hold that laches was inapplicable because of a failure of proof that undue prejudice would occur if the case were decided on its merits. See id., Ms. *24-8.

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