The Appellate Corner, 0120 ALBJ, 81 The Alabama Lawyer 92 (2020)

Author:Wilson F. Green, Marc A. Starrett
Position:Vol. 81 1 Pg. 92

THE APPELLATE CORNER

Vol. 81 No. 1 Pg. 92

Alabama Bar Lawyer

January, 2020

Wilson F. Green, Marc A. Starrett

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

Rule 11; Relation Back

McKenzie v. Janssen Biotech, Inc., No. 1170787 (Ala. Sept. 27, 2019)

Trial court acted within its discretion in striking original complaint under Rule 11 (a) because it was not signed by counsel, was riddled with factual errors, and appeared to be lifted from a complaint in an out-of-state court. Because original pleading was stricken, amendment to pleading filed four months later did not relate back.

Municipal Immunity

Ex parte City of Tuskegee, No. 1180474 (Ala. Sept. 27, 2019)

Municipality was entitled to substantive immunity for failure to inspect premises before landlord leased premises to tenant, and to municipal immunity (under Ala. Code§ 11-47-190) for claims of negligent inspection of a premises and negligent failure to maintain sufficient hydrant pressure, which negligence allegedly caused occupant's death in a house fire.

Arbitration; Post-Judgment Motions

SAI Montgomery BCH, LLC v. Williams, No. 1180220 (Ala. Oct. 18, 2019)

Plaintiff's motion seeking to vacate the trial court's order granting defendants' motion to compel arbitration, filed within 30 days after entry of the trial court's order and not alleging "extraordinary circumstances," was in fact a Rule 59 motion and not a Rule 60 motion (as filed). Trial court was without jurisdiction to grant the motion for relief from the order when the motion remained pending for more than 90 days under Rule 59.1.

Probate

Norwood v. Barclay, No. 1180281 (Ala. Oct. 18, 2019)

This appeal involves the construction of Ala. Code §§ 43-8-224 ("the anti-lapse statute"), § 43-8-222 (the"intent statute"), alongside § 43-8-44 (the"escheat statute"). Testator devised entire estate to sister in her will, which contained express disinheritance provision for all other heirs. Testator died; will was admitted to probate, and PR appointed. Nieces appeared (children of sister), arguing that sister predeceased testator, and thus they should take under the anti-lapse statute. PR opposed, arguing that clear intent of testator, which controls under the intent statute, was to exclude nieces, and thus that estate escheats to the state under the escheat statute. Probate court agreed with PR, holding that the court could not apply the anti-lapse statute without rewriting the will, contrary to the express intentions of the testator. The supreme court reversed. Relying on the general disfavor with which the law views escheats, the court held that since the sister was alive at the time the will was executed, the testator could have included language preventing the operation of the anti-lapse statute, which she did not do. Thus, the anti-lapse statute applied, and the nieces take all.

Statutory Construction

Recherche, LLC v. Baldwin County Elec. Membership Corp., No. 1171144 (Ala. Oct. 18, 2019)

Under Ala. Code § 37-6-20, revenues of an electric membership cooperative in excess of certain delineated line items may be "distributed" using a"capital credit" allocation and crediting method.

Municipalities; De-Annexation

Courtyard Manor Homeowners Assn., Inc. v. City of Pelham, No. 1180683 (Ala. Oct. 18, 2019)

Under Ala. Code § 11-42-200, city council is vested with authority to consider deannexation, but the statute does not contemplate the petition mechanism for considering such matters. Annexation matters involve a council's use and exercise of legislative authority, which is entitled to the highest degree of deference.

Guardian Ad Litem Appointments

Ex parte City R Eagle Landing, LLC, No. 1180630 (Ala. Oct. 25, 2019)

(1) Appointment of GAL is the proper subject of potential mandamus relief, and (2) Ala. Code § 26-2A-52 did not authorize appointment of a GAL, where there had been no determination, as required by the statute itself, "that representation of the interest [of the minor] otherwise would be inadequate" (in this case, there was no conflict between the minors and their parents).

Mayor/Council Relations

Melton v. Bouie, No. 1180324 (Ala. Oct. 25, 2019)

Under Ala. Code § 11-43-5, council has authority to appoint a tax collector, chief of police, and chief of fire within the statutory phrase "provide for."

Product Liability; Drug Cases

Forest Laboratories, LLC v. Feheley, No. 1180387 (Ala. Oct. 25, 2019)

Ala. Code § 6-5-530, passed in 2015, abrogated Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014), under which brand-name prescription drug manufacturer could potentially beliable on a failure to warn claim where the plaintiff was taking a medication manufactured by the generic manufacturer, but using the same warnings as those used by the brand-name manufacturer.

UM/UIM

Cowart v. GEICO Casualty Co., No. 1171126 (Ala. Oct. 25, 2019)

Plurality opinion; insurer's policy allowed for the possibility that an automobile could be both an insured auto and an "uninsured auto," because the latter term in the policy included an auto being driven without the owner's permission. There was substantial evidence that the auto (wife's Jeep) was being driven by husband without her permission, when he ran over and injured her while intoxicated.

Mootness

Magic City Capital, LLC v. Twickenham Place Partners, LLC, No. 1180215 (Ala. Oct. 25, 2019)

Action to enforce security interest became moot when underlying debt was paid off.

Commercial Landlord Tenant

LNM 1, LLC v. TP Properties, Inc., No. 1170708 (Ala. Nov. 1, 2019)

Commercial tenant breached material term of convenience store and gas station lease in failing to procure certain insurance coverages, including liquor liability coverage and environmental coverage, for landlord's protection, and undisputed evidence indicated that landlord could not obtain retroactive coverage to provide protection to landlord.

Venue; Insurance; Corporations

Ex parte Allstate Ins. Co., No. 1180624 (Ala. Nov. 8, 2019)

Under Ala. Code § 6-3-7(a), a "substantial part of the acts or omissions"giving rise to a claim refers to the wrongful acts or omissions of the corporate defendant, not where the injury occurred. Act or omission for the insurer defendant's refusal to defend or indemnify plaintiff insured in an underlying lawsuit occurred where the insurer made its coverage decisions, not in the venue where the underlying action was filed (which was also where the underlying accident occurred).

Workers' Compensation; Exclusivity and Parent Entities

Ex parte Ultratec Special Effects, Inc., No. 1180180 (Ala. Nov. 8, 2019)

In a plurality opinion interpreting Ala. Code § 25-5-1 (4), the net effect is that parent corporation could be liable in tort, notwithstanding the exclusivity provisions of the Act, for injuries and death suffered by subsidiary's employees for the parent's independent conduct.

Venue; Corporations

Ex parte Road Gear Truck Equipment, LLC, No. 1170238 (Ala. Nov. 15, 2019)

Plurality opinion; corporate defendant was "doing business by agent"in a county by having its products resold through a reseller in that county. Doing business by "agent" under Ala. Code § 6-3-7 does not mean that the "agent" has to be an agent under common-law principal-agent tests.

State-Agent Immunity

Ex parte Kelley, No. 1170988 (Ala. Nov. 15, 2019)

Parent and DHR worker were entitled to parental immunity on all negligence claims; DHR worker was not entitled to Cranman immunity, however, because there was a fact dispute regarding her failure to conduct ISP (individualized service plan) review regarding the sickle cell condition as required by DHR policies.

Service of Process; Corporations

Woodruff Brokerage Company, Inc. v. Beatty, No. 1180349 (Ala. Nov. 22, 2019)

Service on corporate defendant was improper because the address...

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