Appellate Procedure - Limited Nature of Grounds for Rehearing - Carolyn J. Dailey v. Monroe County Board of Education


Carolyn J. Dailey v. Monroe County Board of Education, [Ms. 2150965, May 12, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In a unanimous decision authored by Judge Thompson (Pittman, Thomas, Moore, and Donaldson, JJ., concur), on rehearing, the court withdraws its opinion of February 17, 2017, and dismisses an employee’s appeal of her termination by the Monroe County Board of Education to terminate her employment. The court reasoned that because written notice of her termination was not part of the administrative record, the circuit court never obtained jurisdiction of the matter.

On rehearing in the Court of Civil Appeals, the Board submitted a motion to supplement the record on appeal to include its written decision. The court rejected this effort, noting that “neither in its motion to supplement nor in its application for rehearing does the Board explain why it did not seek to supplement the record on original submission to include that decision.” Ms. *14. The court also held

The Board’s arguments in its motion to supplement and its arguments in its application for rehearing concerning supplementing the record on appeal, made only after this court reached a decision adverse to the Board, are impermissibly made for the first time on rehearing. See Kaufman v. Kaufman, 22 So. 3d 458, 466 (Ala. Civ. App. 2007) (holding that an argument that the record on appeal should be supplemented on rehearing was improperly raised for the first time on application for rehearing).

“A rehearing is not an opportunity to raise new issues not addressed on original application. See Town of Pike Road v. City of Montgomery, [57 So. 3d 693, 694] (Ala. 2006) (opinion on application for rehearing) (‘As a general rule, the Court does not consider matters raised for the first time in an application for rehearing.’ (citing Morgan Keegan & Co. v. Cunningham, 918 So. 2d 897, 908 (Ala. 2005)); Riscorp, Inc. v. Norman, 915 So. 2d 1142, 1155 (Ala. 2005) (opinion on application for rehearing) (‘“The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.’” (quoting Water Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002)); and Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So. 2d 771, 777 (1967) (‘We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.’). Nor is an application for rehearing an invitation to reargue the issues already thoroughly considered on original application. See Willis v. Atlanta Cas. Co., 801 So. 2d 837, 838 (Ala. 2001) (overruling an application for rehearing when it was ‘simply an earnest reiteration of the appellant’s original brief’) (Johnstone, J., concurring specially). Instead, this Court invites an application for a rehearing so that we may be informed of a fact or a point of law that we have ‘overlooked’ or one that we have ‘misapprehended.’”

Chism v. Jefferson Cty., 954 So. 2d 1058, 1106-07 (Ala. 2006) (See, J., concurring specially on application for rehearing). In its application for rehearing, the Board does not contend that this court “misapprehended” its arguments; rather, it has impermissibly altered its arguments.[] “Matters not argued in an appellant’s brief on original submission cannot be raised for the first time on application for rehearing.” SouthTrust Bank v. Copeland One, L.L.C., 886 So. 2d 38, 43 (Ala. 2003) (opinion on application for rehearing).

Ms. *16-17.

Share To: