The Appellate Corner, 0121 ALBJ, Vol. 82 No. 1 Pg. 72 (January, 2021)

Author:Wilson F. Green, Marc A. Starrett
Position:Vol. 82 1 Pg. 72

THE APPELLATE CORNER

Vol. 82 No. 1 Pg. 72

Alabama Bar Lawyer

January, 2021

Wilson F. Green, Marc A. Starrett

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

Municipal Occupational Taxes

Jefferson County Board of Educ. v. City of Irondale, No. 1180752 (Ala. Oct. 23, 2020)

Municipal occupational tax could be imposed on county board employees because (1) under McPheeter v. City of Auburn, 288 Ala. 286, 259 So.2d 833 (1972), the fact that essential government services were provided by public education employees does not exempt them from otherwise valid municipal occupational taxes, and (2) municipal occupational tax did not create an unlawful pay disparity as prohibited by Ala. Code §16-13-231.1(b)(2).

Arbitration

Pagan v. Warren Averett Companies, LLC, No. 1190285 (Ala. Oct. 23, 2020)

Trial court improperly compelled arbitration of employee's dispute against employer; employer was in default under the arbitration agreement by not complying with AAA's demand for payment of its portion of filing fees as determined by AAA (which resulted in dismissal of employee's arbitral proceeding and commencement of circuit court lawsuit).

UIM; Opt-Out Rights

Ex parte Alfa Mut. Ins. Co., No. 1190117 (Ala. Oct. 30, 2020)

Once UM carrier intervenes in a pending case brought by its insured against an uninsured motorist, in which the insured did not name its UM carrier as a defendant, the UM carrier does not have the right to opt out of the litigation. Under Lowe v. Nationwide, only a carrier named by the UM insured as a defendant has the right to opt out.

Mandamus Review

Ex parte D.RJ., No. 1190769 (Ala. Oct. 30, 2020)

In action by plaintiff against tortfeasor and UM carrier, mandamus review was not available to challenge propriety of circuit court's order voiding pro tanto release with tortfeasors. Petitioners did not demonstrate that order fell within the categories of orders for which mandamus review is recognized.

Contract vs. Tort

Gustin v. Vulcan Termite and Pest Control, Inc., No. 1190255 (Ala. Oct. 30,2020)

Trial court erred by granting summary judgment to termite contract provider on breach of contract claims regarding failure to repair damage under the contract; genuine issue of fact precluded summary judgment as to whether contractual exclusion for wood in contact with soil applied. Negligence and wantonness claims were properly dismissed because duties arose solely out of contract-mere breach of contract is not a tort.

Rule 41(b) Dismissals

S.C. v. Autauga County Bd. of Educ, No. 1190382 (Ala. Oct. 30, 2020)

Trial court abused its discretion in dismissing case as sanction under Rule 41 (b) against plaintiff, where plaintiff's counsel merely filed a motion to continue hearing on motion to dismiss after one group of defendants had moved for and obtained two continuances.

Rules of Professional Conduct; Contact with Former Employees of Opposing Party

Ex parte The Terminix International Co., LP, No. 1180863 (Ala. Oct. 30, 2020)

Former managerial employee of Terminix was hired as consultant by law firm representing HOAs and homeowners in termite-related litigation against Terminix. Terminix moved to disqualify the law firm, contending that the law firm had violated (among other provisions) Rule 4.2(a), concerning communications with former employees of an organization. The circuit court disagreed and denied the motion to disqualify. The Alabama Supreme Court denied mandamus relief, holding that Rule 4.2(a)'s prohibition on communications with persons represented by counsel, in the context of organizations as adverse parties, applies to current but not former employees of the organizations. The court specifically rejected the Alabama State Bar Disciplinary Commission's 1993 interpretation of Rule 4.2, under which there "might be" a prohibition on contact with former employees of an adverse party for "those employees who occupied a managerial level position and were involved in the underlying transaction." Importantly in this case, there was no evidence that the former manager had any confidential information of Terminix concerning the specific plaintiffs, and the undisputed evidence was that the former manager had destroyed copies of confidential materials not specifically relating to plaintiffs. There was no violation of the former client rule (Rule 1.9) because there was no evidence that the consultant was actually engaged in substantial litigation defense for Terminix during his employment, noting there is a meaningful distinction between lawyer employees (employees primarily involved in lawyer-related work) and non-lawyer employees as it relates to the former client rules.

Recusal

Ex parte Ala. Dept. of Revenue, No. 1190826 (Ala. Oct. 30, 2020)

In a case largely turning on its facts and the unique history of Greenetrack's litigation in Greene County, the court granted ADOR's petition for mandamus and trial court's recusal in a pending matter between ADOR and Greenetrack pending in the Greene County Circuit Court.

Roe v. Wade

Magers v. Alabama Women's Center Reproductive Alternatives, Inc., No. 1190010 (Ala. Oct. 30, 2020)

Putative father sued AWC for its role in precipitating abortion of his baby. The trial court dismissed his case. The Alabama Supreme Court affirmed for failure of the father to file a proper appellate brief under Rule 28(a)(10). In a special concurrence, Justice Mitchell (joined by Chief Justice Parker and Justices Bolin and Wise) explained his view that Roe v. Wade should be overruled.

Administrative Law; Standing

Ex parte LeFleur, No. 1190191 (Ala. Nov. 6, 2020)

Landowners lacked standing to pursue claims challenging ADEM Rule amendments permitting use of alternative-cover materials at landfills. Landowners did not allege or offer evidence that alternative cover materials were less effective than earth-based materials, and thus did not causally link their claimed injury with the alternative-cover materials regulations. This is a two-justice plurality opinion; four concurrences in the result; two dissents, one recusal.

Official Capacity Claims

Meadows v. Shaver, No. 1180134 (Ala. Nov. 20, 2020)

Claims asserted against circuit clerk were official-capacity claims barred by Section 14 of the Alabama Constitution. Under Barnhart v. Ingalls, 275 So. 3d 1112 (Ala. 2018), claims are deemed to be asserted against public official in her official capacity if the official would have no duty to the plaintiff in her individual capacity-the test is not merely whether damages would be paid by the public fisc.

Wills

McElroy v. McElroy, No. 1190888 (Ala. Nov. 20, 2020)

Under Ala. Code 43-8-131, a will must be "in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction[.]"There is no statutory requirement that the testator acknowledge in the instrument that a third party is signing the instrument at the testator's direction or that the testator acknowledge that fact to a witness. (Three-justice plurality panel opinion) From the Court of Civil Appeals

Rebuild Alabama

Fredricks v. McMillan, No. 2190593 (Ala. Civ. App. Nov. 6, 2020)

The court upheld portions of Ala. Acts 2019 (1st Special Session), Act No. 2019-2, known as "the Rebuild Alabama Act," under which certain moneys derived from state gasoline and diesel-fuel excise taxes are to be distributed to pay the principal of and the interest on bonds issued for the financing of improvements to the Mobile Ship Channel. The legislature acted within its...

To continue reading

FREE SIGN UP