(251) 299-0101

Appellate Procedure; Waiver

Forbes v. Brawley, [Ms. 2180399, Oct. 18, 2019] __ So. 3d __ (Ala Civ. App. 2019). This per curiam opinion (Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur; Edwards, J., dissents) affirms a judgment of the Shelby Circuit Court dismissing claims against an orthodontist, which alleged breach of contract, misrepresentation, and fraudulent inducement on the basis of the waiver principle set forth in Fogarty v. Southworth, 953 So. 2d 1255 (Ala. 2006):

In Fogarty, our supreme court stated:

"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 in the appellant's principal brief constitutes a waiver with respect to the issue."

953 So. 2d at 1232 (footnote omitted)(emphasis added).

"'This waiver, namely, the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. [Fogarty, 953 So. 2d at 1232]. 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). See also Young v. Southern Life & Health Ins. Co., 495 So. 2d 601 (Ala. 1986).'"

Scrushy v. Tucker, 70 So. 3d 289, 307 (Ala. 2011)(quoting Soutullo v. Mobile Cty., 58 So. 3d 733, 739 (Ala. 2010))(first emphasis added).

Although Fogarty and its progeny appear to have been applied primarily to appeals involving summary judgments, see, e.g., Fogarty, Norvell v. Norvell, 275 So. 3d 497 (Ala. 2018), Drake v. Alabama Republican Party, 209 So. 3d 1118 (Ala. Civ. App. 2016), Soutullo v. Mobile County, 58 So. 3d 733 (Ala. 2010), and Ramson v. Brittin, 62 So. 3d 1035 (Ala. Civ App. 2010), our supreme court has also applied the Fogarty line of cases to reviews of dismissals. In Facebook, Inc. v. K.G.S., [Ms. 1170244, June 28, 2019] __ So. 3d __, (Ala. 2019), our supreme court discussed Fogarty in the context of the denial of a motion to dismiss, stating:

"In its order denying Gelin's motion to dismiss, the trial court did not indicate the basis for its conclusion that 'it has jurisdiction over [Gelin].' In other words, the order does not indicate whether the trial court believed it had jurisdiction over Gelin because she had not timely raised the personal-jurisdiction defense or because Gelin had sufficient minimum contacts with Alabama. Under these circumstances, where the trial court did not specify a basis for its ruling, Gelin was required to present an argument in her principal brief on appeal, in compliance with Rule 28(a)(10), Ala. R. App. P., stating why neither ground was a valid basis for asserting personal jurisdiction over her. See Fogarty v. Southworth, 953 So. 2d 1225, 1232 (Ala. 2006). However, in her principal brief on appeal, Gelin argues only that she does not have sufficient minimum contacts with Alabama; she does not address the other potential basis for the trial court's order--that her assertion of the personal-jurisdiction defense was untimely. Gelin's failure to do so results in a waiver of this issue on appeal."

(Footnote omitted.)

Id. at **14-15; see, also, Belle v. Goldasich, [Ms. 1171001, Sept. 13, 2019] __ So. 3d __ (Ala. 2019) (Supreme Court applies Fogarty to affirm dismissal of a count asserted in legal-malpractice action based upon waiver principle). The court holds the appellants' "failure even to mention the other grounds that [the orthodontist] raised and upon which the trial court might have relied in dismissing the action constitutes a waiver of those issues and results in the affirmance of the judgment." Id. at *17.

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