Final Judgment – Error Preservation – Discovery Sanctions

Regina Daily and The Daily Catch, Inc., etc., v. Esser, etc., [Ms. SC-2022-0672, Sep. 29, 2023] __ So. 3d __ (Ala. 2023). The Court (Parker, C.J., and Shaw, Bryan, Sellers, Stewart, and Mitchell, JJ., concur) affirms the Baldwin Circuit Court’s May 10, 2022, bench verdict awarding damages to Greg Esser against Regina Daily and The Daily Catch, Inc.

The Court first rejects the defendants’ mandamus petition contending that the May 10, 2022, order did not constitute a final judgment but grants the petition and vacates the circuit court's October 6, 2022, order, entered after the notices of appeal had been filed, purporting to remove the administration of the ancillary estate of Wallene R. Esser from the probate court to circuit-court, case number CV-17-901017. Ms. *52, citing Harden v. Laney, 118 So. 3d 186, 187 (Ala. 2013) ("The timely filing of a notice of appeal invokes the jurisdiction of an appellate court and divests the trial court of jurisdiction to act except in matters entirely collateral to the appeal.").

The circuit court's May 10, 2022, order “makes no specific findings of fact, gives no reasons for the circuit court's judgment, and does not specify upon which claim or claims it ruled in favor of Greg and against Regina and The Daily Catch.” Ms. *53. The Court rejects the defendants’ appeal challenging the sufficiency of the evidence because “when a trial court gives no reasons in its judgement, this Court will assume that it made whatever findings would be necessary to support that judgment. However, Regina and The Daily Catch, by not filing a postjudgment motion, waived any argument related to the sufficiency of the evidence.” Ms. *83-84, citing New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801, 802 (Ala. 2004).

The Court also denies Greg’s cross-appeal challenging the circuit court’s December 10, 2020, order granting in part and denying in part his motion for sanctions against Regina for having submitted into evidence, eight checks in which Regina had altered “the payee's name on the checks or the information in the ‘memo’ line of the checks” to remove the Daily Catch and make it appear that the checks were for medical services received by Wallene. Ms. **26-27. The Court references the circuit court’s broad discretion to select a sanction and holds that Greg did not demonstrate a gross abuse of that discretion. Ms. *86-87.

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