Stay – Appellate Procedure – Inherent Authority of Circuit Court to Interpret, Clarify and Enforce Final Judgments

Moore and Lloyd v. Mikul, [Ms. 1200671, Jan. 21, 2022] __ So. 3d __ (Ala. 2022). The Court (Bryan, J.; Shaw, Wise, Sellers, Mendheim, and Stewart, JJ., concur; Bolin and Bryan, JJ., concur specially; Parker, C.J., and Mitchell, J., dissent) affirms the Shelby Circuit Court’s summary judgment dismissing an ejectment action filed in 2020 by Howard Moore and Charles Lloyd against Margaret Sue Mikul. In a 2016 ejectment action (CV-16-900764) between the same parties involving the same property and issues, the Shelby Circuit Court entered an October 2018 order “concluding that Moore and Lloyd were entitled to possession of the property and that Mikul was not liable to Moore and Lloyd for mesne profits or rents” and stating further that “the Court finds no legal way [or] avenue to prevent [Moore and Lloyd] from taking possession of the subject property ....” Ms. *3. The circuit court stayed execution of the October 2018 order and subsequently entered a judgment in April 2019 “concluding that it lacked jurisdiction to modify the October 2018 order because Moore and Lloyd had not, it determined, filed a timely postjudgment motion with respect to the October 2018 order.” Ms. *5.

In affirming the summary judgment entered in the 2020 ejectment action, the Court notes that “[t]he principal appellate brief submitted by Moore and Lloyd does not address the effect of the stay of the October 2018 Order until the ‘Conclusion’ section of the brief, in which they state that the circuit court is acting as ‘as though the stay is in place apparently forever.’ … In their reply brief, Moore and Lloyd argue, for the first time, that the apparently indefinite stay entered by the circuit court in case no. CV-16-900764 is ‘immoderate.’” Ms. *9. While acknowledging law that a stay cannot be “immoderate,” the Court holds

As noted, Moore and Lloyd assert this argument for the first time in their reply brief.

“‘The law of Alabama provides that where no legal authority is cited or argued, the effect is the same as if no argument had been made.’ Bennett v. Bennett, 506 So. 2d 1021, 1023 (Ala. Civ. App. 1987)(emphasis added). ‘[A]n argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant’s reply brief.’ Improved Benevolent & Protective Order of Elks v. Moss, 855 So. 2d 1107, 1111 (Ala. Civ. App. 2003), abrogated on other grounds, Ex parte Full Circle Distribution, L.L.C., 883 So. 2d 638 (Ala. 2003). Where an appellant first cites authority for an argument in his reply brief, it is as if the argument was first raised in that reply brief, and it will not be considered.”

Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005). Moreover, the record in this case – case no. CV-20-900392 – demonstrates that Moore and Lloyd did not seek dissolution of the stay entered by the circuit court in case no. CV-16-900764 as being an immoderate stay. “[T]he appellate courts will not reverse a trial court on any ground not presented to the trial court.” Rogers Found. Repair, Inc. v. Powell, 748 So. 2d 869, 872 (Ala. 1999).

Ms. *10.

The Court concludes its opinion with the observation that the circuit court “has inherent authority to interpret, clarify, and enforce its own final judgments.” Ms. *11, internal quotation marks omitted. The Court further instructs that if Moore and Lloyd “seek a dissolution of the stay entered by the circuit court pertaining to the execution of its October 2018 order in case no. CV-16-900764, a dissolution should be sought in that action.” Ms. *12.

Related Documents