72 The Alabama Lawyer 103 (2011). The Appellate Corner - A New Regular Feature.

• Author: BY WILSON F. GREEN

Alabama Lawyer

2011.

72 The Alabama Lawyer 103 (2011).

The Appellate Corner - A New Regular Feature

The Appellate Corner - A New Regular FeatureBY WILSON F. GREEN The following are some of the more significant civil decisions from our appellate courts in the last two months:

Discovery; Attorney-Client Privilege; Status of Financial Transactions between Attorney and Client

Ex parte Tucker, No. 1090445 (Ala. Dec. 30, 2010)

This case is significant in holding that financial transactions and payments between attorney and client are not privileged. The case also reminds litigants of the broad scope of discovery generally applicable to civil cases.

Judgment creditors against Richard Scrushy subpoenaed Scrushy's outside law firm for records of monies paid by Scrushy and of Scrushy's monies placed into the firm's trust account. The law firm resisted the subpoena, arguing that the records were privileged, irrelevant for discovery purposes and unduly burdensome. The trial judge quashed the subpoena, and creditors field a mandamus petition.

The supreme court granted the writ, holding that (1) no privilege was attached to financial records relating to transactions between attorney and client as well as client trust monies (citing and discussing authority from Alabama and from the Tenth Circuit); (2) the records were reasonably calculated to lead to admissible evidence - and, in that regard, the court specifically noted that, "A trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery... ." Ex parte AMI West Alabama Gen. Hosp., 582 So. 2d 484, 486 (Ala. 1991); and (3) the law firm made no evidentiary showing as to undue burden, which was its burden in resisting discovery on that ground.

Statute of Frauds; Fraud in the Inducement Exception; Oral Contracts Regarding Real Property

Nix v. Wick, No. 1090687 (Ala. Dec. 30, 2010)

This case specifically abrogates an older line of Alabama cases concerning the viability of fraud claims in transactions which are subject to the statute of frauds, but where the transaction fails to meet the statute of frauds' requirements.

Wick contracted with Nix in two separate contracts to sell a house and an adjacent five acres. Wick did not disclose in connection with the five-acre contract that a co-owner, Oldfield, would have to consent to the sale. Additionally, the contract on the five-acre parcel did not identify the parcel other than to say that it was adjacent to the house. The sale of the house closed, but then the five-acre parcel could not close due to the lack of consent of Oldfield.

Nix sued for fraud and...