MADRIGAL v. MADRIGAL (2024)

On Application for Rehearing

The application for rehearing filed by Courtney H. Madrigal is overruled. Upon further review, the remand instructions on original submission are modified to instruct the Talladega Circuit Court (“the trial court”) to conduct a new trial. See Odell v. Myers, 52 Ala. App. 558, 562, 295 So. 2d 413, 415 (Civ. App. 1974) (“In view of the acknowledgment of the court in one instance, and the presumption in other instances that the court considered illegal evidence, because of overruling of objections, ․ it is our opinion that the judgment of the court should be reversed and the case remanded for a new trial and judgment free from influence of illegal evidence.”).

Additionally, on January 3, 2024, this court received a supplemental record from the trial-court clerk that included an order that the trial court had entered on December 19, 2023. In that order, the trial court purported to strike Exhibits 11 and 12 from the record and stated that it had not relied on those exhibits in its deliberations. On the date the trial court entered the order, the appeal was pending in this court on application for rehearing, and this court had not yet entered its certificate of judgment. See Rule 41(a)(1), Ala. R. App. P. An order entered by a trial court after the issuance of a decision by this court but before this court issues its certificate of judgment is void. See Ex parte Wynn, 227 So. 3d 534, 535 (Ala. Civ. App. 2017) (“It is well settled that a trial court does not have jurisdiction to enter any order on remand until this court has entered its certificate of judgment.”). The trial court is instructed to set aside its December 19, 2023, order.

APPLICATION OVERRULED.

FRIDY, Judge.

Moore, P.J., and Edwards and Hanson, JJ., concur.