Party Waived Objection to Inadequate Notice of Trial Setting

Johnson v. Brown, [Ms. 2200509, Nov. 19, 2021] __ So. 3d __ (Ala. Civ. App. 2021). The court (Hanson, J.; Thompson, P.J., and Moore and Fridy, JJ., concur; Edwards, J., concurs in the result) affirms the Lowndes Circuit Court’s judgment in favor of Portia Coleman Brown and Samuel Bernard Brown on the Browns’ claim to redeem certain real property located in Lowndes County. On appeal, the Johnsons argued that they were not prepared for trial because they had not been given 60-days’ notice as required by Rule 40 Ala. R. Civ. P. The court rejects this argument and explains “by proceeding to trial without objecting, the Johnsons waived any error based on the lack of proper notice under Rule 40. See Holleman [v. Elmwood Cemetery Corp., 295 Ala. 267, 273, 327 So. 2d 716, 720 (1976)] (“The failure to raise the question [of notice] constitutes a waiver.”). Furthermore, we note that Rule 40(a)(7) permits parties to agree to a shorter notice period than that set forth in Rule 40(a). Thus, we also conclude that, by appearing and participating in a trial, without objection, on less than 60 days’ notice, the parties effectively consented to a shorter notice period.” Ms. *10.

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