Summary Judgment - Waiver - Standing (Norvell v. Norvell)


Norvell v. Norvell, [Ms. 1170544, Oct. 19, 2018] __ So. 3d __ (Ala. 2018). The Court (Bryan, J.; and Stuart, C.J., and Parker, Main, and Mendheim, JJ., concur) affirms in part and reverses in part a summary judgment entered by the Lauderdale Circuit Court in a dispute among three brothers as to their mother’s conveyance of title to a lake house. The circuit court entered summary judgment against the disappointed brother on claims of “intentional-interference-with-inheritance-expectancy,” undue-influence, breach-of-fiduciary-duty, and conspiracy. That brother appealed, contending the circuit court erred in granting summary judgment as to all his claims.

As to the “intentional-interference-with-inheritance-expectancy” and undue-influence claims, the Court notes the circuit court did not state the ground or grounds upon which it based the summary judgment so that the appellate court is required to presume the circuit court relied on each of the grounds asserted by the defendants in their summary-judgment motion. Ms. *10-11, citing Ramson v. Brittin, 62 So. 3d 1035 (Ala. Civ. App. 2010) and State Dep’t of Revenue v. Hoover, Inc., 993 So. 2d 889 (Ala. Civ. App. 2007). Rather than reach the merits of the contentions regarding these claims, the Court finds the arguments waived because the appellant’s brief “wholly ignores the circuit court’s reliance on a lack of ripeness as a ground for the summary judgment on those claims.” Ms. *11. Because the appellant failed to demonstrate error as to each of the alleged grounds for summary judgment, affirmance of the summary judgment was required:

“In order to secure a reversal, ‘the appellant has an affirmative duty of showing error upon the record.’ Tucker v. Nichols, 431 So. 2d 1263, 1264 (Ala. 1983). It is a familiar principle of law:

“‘When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue ... constitutes a waiver with respect to the issue.’

Fogarty v. Southworth, 953 So. 2d 1225, 1232 (Ala. 2006) (footnote omitted) (emphasis added). This waiver, namely, the failure of the appellant to discuss ... an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. Id. That is so, because ‘this court will not presume such error on the part of the trial court.’ Roberson v. C.P. Allen Constr. Co., 50 So. 3d 471, 478 (Ala. Civ. App. 2010) (emphasis added).”

Soutullo v. Mobile Cty., 58 So. 3d at 738 (middle emphasis added). See also Ex parte Sikes, 218 So. 3d 839, 847 (Ala. Civ. App. 2016) (“[T]here were alternate bases for the trial court’s ruling that Sikes has failed to address in his brief on appeal, and, therefore, he has waived any argument as to the propriety of those alternate bases for the trial court’s ruling. ‘This court is required to affirm a judgment if the appellant has waived any arguments regarding an alternative basis for the judgment.’” (quoting Drake v. Alabama Republican Party, 209 So. 3d 1118, 1122 (Ala. Civ. App. 2016) (emphasis added))).

Ms. *11-13.

With respect to the breach-of-fiduciary duty and conspiracy claims, the Court found that the circuit court erred in granting summary judgment on the basis of an alleged lack of standing. Ms. *14. Citing Gardens at Glenlakes Property Owners Ass’n, Inc. v. Baldwin County Sewer Service, LLC, 225 So. 3d 47 (Ala. 2016), the Court repeated its caution to the Bench and Bar that standing issues are typically relevant only in public-law cases and generally inapplicable in private-law cases. See Ms. *14-20. Because the summary judgment was premised upon an erroneous contention about the disappointed brother’s standing, it was required to be reversed.

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