The Appellate Corner, 0118 ALBJ, 79 The Alabama Lawyer 66 (2018)

Author:Wilson F. Green
Position:Vol. 79 1 Pg. 66
 
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The Appellate Corner

Vol. 79 No. 1 Pg. 66

Alabama Bar Lawyer

January, 2018

Wilson F. Green

Wilson F. Green is a partner in Fleenor & Green LLP in Tuscaloosa. He is a summa cum laude graduate of the University of Alabama School of Law and a former law clerk to the Hon. Robert B. Propst, United States District Court for the Northern District of Alabama. From 2000-09, Green served as adjunct professor at the law school, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

Marc A. Starrett

Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

Lambert Procedure; UIM

Travelers Indemnity Company of Connecticut v. Worthington, No. 1150370 (Ala. Oct. 13, 2017)

UIM insurer waived right to raise forfeiture of coverage defense where it had pretrial knowledge (on eve of trial) that its insured has settled claims against the tortfeasor without first providing it with notice; proceeded to trial as the sole remaining defendant; stipulated to the existence of UIM coverage and the tortfeasor's liability; informed the jury that it should return a verdict for damages in favor of the insured; argued that the only issue for the jury is the amount of those damages; and then, after the jury returned a verdict in favor of the insured, argued for the first time in a post-judgment motion that the insured has waived or forfeited her UIM coverage. (Note: the moral of the case may be for the insurer to amend its answer immediately upon obtaining knowledge of the settlement to raise forfeiture of coverage.)

Wills and Estates

Ex parte Taylor, No. 1150236 (Ala. Oct. 13, 2017)

Under Ala. Code § 43-8-21 (b), if multiple proceedings are commenced in more than one probate court and those proceedings involve the same estate, the probate court where the proceeding was first commenced shall hear the matter. That principle is not confined to the issues actually raised in the prior probate proceeding, but instead covers all matters involving the estate.

Class Actions; Attorneys' Fees

Lawler v. Johnson, No. 1151347 (Ala. Oct. 20, 2017)

The court vacated a 40 percent ($124 million) common-fund attorney fee awarded to class counsel in a $310 million class-action settlement arising from the MedPartners/ Caremark RX litigation. The court's holdings: (1) objector was not required to intervene to have standing to appeal the decision on the fee award, adopting the rationale of Devlin v. Scardelletti, 536 U.S. 1 (2002); (2) because the class short-form notice stated that objections may be interposed "by filing a written objection and/or by appearing at the settlement hearing[,]"objector's failure to meet the deadline for written objections was not fatal, since he appeared through counsel at the fairness hearing-even though the long-form notice, settlement website and preliminary approval order all required written objections; (3) timeline for filing objections worked a denial of due process to class members, because objections were due before the fee petition was due to be filed, and thus class members did not know how much was being asked for in fees (though the notice stated that class counsel would ask for up to 40 percent of the fund in fees); (4) shortness of time between due date for attorney-fee motion and final hearing (five business days and 10 calendar days) "surely borders on what due process requires"; (5) time expended factor for approval of attorneys' fees was not irrelevant in common-fund situations, and class members were entitled to know the amount of time expended by class counsel to justify the fee.

Zoning

Ex parte Buck, No. 1151011 (Ala. Oct. 27, 2017)

Reversing the trial court and the court of civil appeals, the supreme court effectively invalidated a rezoning ordinance passed in Birmingham for failure to publish proper and accurate notice under Ala. Code § 11-52-77 and § 11-52-78.

Rule 54(b)

Ghee v. USAble Mutual Insurance Company, No. 1160082 (Ala. Oct. 27, 2017)

Appeal dismissed from an order certified under Rule 54(b) which granted dismissal of claims based on ERISA defensive preemption, but which afforded plaintiff leave to amend the complaint to assert an ERISA claim; Rule 54 certification was improper because the possibility of amendment to assert a cause of action intertwined with the dismissed claim.

Standing

Morrow v. Bentley, No. 1151313 (Ala. Nov. 3, 2017)

State legislator and state auditor, individually and in their official capacities, brought suit against governor and other interested parties to enjoin alleged unlawful expenditures of state funds in connection with construction of Gulf State Park Conference Center and Hotel, pursuant to the Gulf State Park Projects Act, Ala. Code § 9-14E-1. Among other holdings: (1) state auditor did not allege that unlawful expenditures worked a harm to his ability to perform his official functions or impair his official authority, because alleged harm to the state treasury is not remediable by the auditor and (2) individual legislator lacked standing to assert alleged harm to the institution of the legislature (through an alleged usurpation of the legislature's power of appropriation). The court cautioned that "a legislature as a whole [may] have an interest in seeing its validly enacted laws executed in accordance with their provisions and, thus, standing to bring an action seeking to ensure that executive officials comply with statutory law."

Punitive Damages

Thomas v. Heard, No. 1150118 (Ala. Nov. 3, 2017)

On return to remand, the court affirmed a series of three in-side-the-ratio punitive damage awards for plaintiffs arising from...

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