73 The Alabama Lawyer 22 (2012). THE APPELLATE CORNER.

• Author: Wilson F. Green

Alabama Bar Journal

2012.

73 The Alabama Lawyer 22 (2012).

THE APPELLATE CORNER

THE APPELLATE CORNERWilson F. GreenDecisions of the Alabama Supreme Court

Amendments; Fictitious Party Practice; Wantonness Statute of Limitations

Ex parte Tate and Lyle Sucralose, Inc., No. 1100404 (Ala. Sept. 30, 2011) Failure to conduct discovery on the question of ownership of a premises in the face of a motion raising the issue and pending for many months demonstrated a lack of "reasonable diligence" required for an amendment substituting a party defendant for a fictitious party to relate back for negligence claims. However, claims of wantonness were not barred because under Ex parte Capstone Bldg. Corp. (decided June 3, 2011], "litigants whose causes of action have accrued on or before the date of this decision [i.e., June 3, 2011] shall have two years from today's date to bring their action unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner."

Animals in Roadway; Tort Liability

Hayes v. Henley, No. 1100636 (Ala. Sept. 23, 2011)

In an animal fence-break case, the circuit court dismissed claims against the Henleys based on an affidavit from Mrs. Henley that she never owned the horse in question, and that under Ala. Code § 3-5-3, even if she did own it, willfulness would be required to be shown, for which there was no evidence. The supreme court reversed as to Mr. Henley, because there was no evidence regarding Mr. Henley's potential ownership of the horse.

Arbitration; Waiver

Aurora Healthcare, Inc. v. Ramsey, No. 1091561 (Ala. Oct. 21, 2011) The defendant has the right to have an arbitration motion heard by a court with proper venue, and, thus, litigation activity directed to the venue question could not be used to prove "substantial invocation of litigation process" or "prejudice to the opponent" in attempting to establish waiver.

Arbitration; Modification of Award

Turquoise Properties Gulf, Inc. v. Overmyer, No. 1100160 (Ala. Sept. 30, 2011)

Under 9 U.S.C. § 11(a], the court can modify an arbitral award where there is an "evident material miscalculation of figures." The court held that, despite the fact that the arbitrator had noted in his award the return of the five percent, the methodology of the arbitrator's damage award clearly suggested a miscalculation, and, thus, modification under section 11(a) was to be granted.

Contracts; Injunctions

Capmark Bank v. RGR, LLC, No. 1100318 (Ala. Sept. 30, 2011)

The court vacated a preliminary injunction because the plaintiff failed to prove a likelihood of success on the merits, based on an alleged promise outside of the loan documents, where contracts contained integration and merger clauses, and where such a promise was not "collateral" so as to be allowable under the parol evidence rule (the case contains a good discussion of this line of law concerning "collateral agreements"), especially since the alleged promise was also subject to the statute of frauds.

Double Jeopardy

In both Ex parte T.D.M., No. 1091645 (Ala. Oct. 28, 2011), and Ex parte Lamb, No. 1091668 (Ala. Oct. 28, 2011), the court reversed on double jeopardy grounds two adjudications of guilt based on verdicts, where the verdict forms were changed after the juries were discharged. The court held that "the problematic recalling of a discharged jury can be avoided in all cases if, before the jury is...