Appeal of Summary Judgment – Waiver

Berry v. PHH Mortgage Corporation, [Ms. SC-2022-0474, May 19, 2023] __ So. 3d __ (Ala. 2023). The Court (Parker, C.J.; Shaw, Bryan, Mendheim, and Mitchell, JJ., concur) affirms the Montgomery Circuit Court’s summary judgment in favor of PHH Mortgage Company in an ejectment action following a foreclosure. The Court concludes that the mortgagor Debbie Berry “waived most of the arguments she raises on appeal by failing to address the effects of her prior settlement with PHH’s predecessor …” Ms. **1-2.

Berry did not address the effect of her settlement/release of claims against PHH’s predecessor in a prior lawsuit in her opening or reply briefs. The Court holds that “[w]hen an appellee argues in its brief a basis for affirmance that was not relied on by the trial court, and the appellant does not respond to that alternative basis in its reply brief, the appellant waives any argument against that basis for affirmance.” Ms. *6.

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