The Appellae Corner, 0916 ALBJ, 77 The Alabama Lawyer 374 (2016)

Author:Wilson F. Green, Marc A. Starrett, J.
 
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THE APPELLAE CORNER

No. Vol. 77 No. 5 Pg. 374

Alabama Bar Lawyer

September, 2016

Wilson F. Green, Marc A. Starrett, J.

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

MANDAMUS

Ex parte Watters, No. 1140526 (Ala. June 3, 2016)

Summary judgment order rejecting statute of limitations defense, which did not involve a complaint which on its face was time-barred, is not an order from which mandamus relief is available.

Set-Off

Har-Mar Collisions, Inc. v. Scottsdale Insurance Company, No. 1141230 (Ala. June 3, 2016)

Trial court’s order of set-off based on settlements with other parties was improper because the settlements did not implicate a joint obligation those entities might have with the judgment defendant.

Rule 27

Ex parte City of Montgomery, No. 1150439 (Ala. June 10, 2016)

Rule 27(a) explicitly requires a petitioner to show that she is presently unable to bring an action; the rule also limits pre-action discovery to the purpose of preserving evidence. Rule 27(a) does not allow pre-action discovery for evaluating a claim.

Relation Back; Fictitious Parties

Ex parte Lucas, No. 1150382 (Ala. June 10, 2016)

Plaintiff failed to exercise due diligence in ascertaining the identity of Lucas as potential defendant; Lucas was not identified on the original accident report, but was identified on the second accident report prepared by the officer, which was public record.

Amendments; Good Cause

Ex parte Alfa Mut. Ins. Co., No. 1141038 (Ala. June 10, 2016)

Plaintiffs failed to demonstrate good cause for excessive delay in amending complaint when they should have known of the claims when they filed their original complaint. Defendants could not fully and fairly defend against the claims added by amendment because a key witness had died.

Open Records; Student Financial Records

Kendrick v. The Advertiser Co., No. 1150275 (Ala. June 24, 2016)

Financial-record privacy requirements in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, prohibited disclosure even of students’ names and sports on their financial aid forms, because those would necessarily disclose financial aid status.

IRAS; Contract

Dees v. Dees, No. 1150107 (Ala. June 24, 2016)

Father’s IRA provided that beneficiary(ies) designated in account agreement would receive proceeds upon death, or, if no beneficiary was designated, benefits would go to surviving spouse. Account agreement with purported designation was destroyed. At time of agreement, father was married to mother and had three children. Later, mother died; father remarried wife 2, then wife 3 and then he later died. For a number of years, father received notices that he had not designated a beneficiary, and that he needed to do so to avoid the default designation. No designation occurred. However, children testified that father had told them that they were receiving the proceeds of the IRA. The circuit court held that default beneficiary provision in original IRA agreement was unambiguous, entitling wife 3 to proceeds. The supreme court reversed, holding that genuine issue of m aterial fact existed as to designation based on children’s testimony of what father had designated.

Venue; Forum Non Conveniens

Ex parte Interstate Freight USA, Inc., No. 1141422 (Ala. June 24, 2016)

(1) venue was proper in Baldwin County (county of plaintiff’s residence), because Interstate was doing business by agent in Baldwin County based on evidence that Interstate delivered 61 loads of freight there in a 54-week period and thus was physically present there continually, and thus venue was proper there, but (2) interests of justice mandated transfer to St. Clair County, because that is where the alleged wrongful conduct occurred and where the alleged misrepresentations were made–thus, St. Clair County had a comparatively stronger connection to the dispute.

Personal Jurisdiction

Hinrichs v. General Motors of Canada, Ltd., No. 1140711 (Ala. June 24, 2016)

Two-plus years into this products liability litigation, GM Canada moved to dismiss for lack of personal jurisdiction, which was eventually granted. In 101 pages of opinions, the majority opinion of which is a compendium of law concerning personal jurisdiction in product-liability cases regarding interstate movement of goods, the court held: (1) GM Canada’s contacts with Alabama were not so continuous and systematic as to render GM Canada “at home” in Alabama for purposes of establishing general personal jurisdiction; and (2) GM Canada’s contacts with Alabama related to the accident were not sufficient to trigger specific jurisdiction, because for specific jurisdiction to exist, GM Canada’s in-state activity must give rise to the episode-in-suit and involve adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction (and there was no evidence of such contacts in this case). Foreseeability of movement of goods into forum standing alone is not sufficient to subject a nonresident defendant to specific jurisdiction in the forum state. Justice Shaw was recused, leaving an eight-member court. The majority opinion on general jurisdiction and plurality opinion on specific jurisdiction is per cu-riam, joined by four justices, one being retired Justice Lyons.

Legal Services Liability

Cockrell v. Pruitt, No. 1140849 (Ala. June 30, 2016)

Fraud committed by an attorney that defrauds the attorney’s client as to the status of the client’s underlying claim is actionable under the Alabama Legal Services Liability Act, separate and apart from the attorney’s failure to timely file a complaint on the underlying claim.

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