The Appellate Corner, 0313 ALBJ, 74 The Alabama Lawyer 128 (2013)


Vol. 74 No. 2 Pg. 128

Alabama Bar Lawyer

March 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0By Wilson F. Green

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Wilson 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.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0By Marc A. Starrett

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Marc 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.


\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0One introductory note is included before we review the appellate decisions from the last several months of 2012.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The November 2012 AL featured two articles on the current state of Alabama law regarding dispositions of excess proceeds from property tax sales–an issue which turns on the construction of Ala. Code § 40-10-28. Since that time, the court of civil appeals decided First United Security Bank v. McCollum, No. 2110828 (Ala. Civ. App. Nov. 30, 2012), in which the court held that a mortgagee which foreclosed after a tax sale was not the “owner” of the real property entitled to the excess proceeds from the tax sale (the proceeds, instead, were to be paid to the former owner and mortgagor). The mortgagee in McCollum has now filed a petition for certiorari review to the Alabama Supreme Court (Case No. 1120302). This area of law continues to shift under our feet. We will continue monitoring developments in the area and will report new decisions as they arise.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0RECENT CIVIL DECISIONS

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0From the Alabama Supreme Court


\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Wilbanks v. United Refractories, Inc., No. 1111164 (Ala. Nov. 16, 2012)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Wilbanks brought action against United, which supplied equipment used in repairing coke oven batteries, for personal injuries sustained in workplace accident, based on a theory of improper or inadequate inspections. Trial court granted summary judgment to United based on lack of evidence that his injuries were proximately caused by any act or omission of United. The supreme court affirmed, concluding there was no evidence that an inspection of the valve within the three months preceding the accident would have prevented the explosion.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Sufficiency of Pleadings

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Snider v. Morgan, No. 1101535 (Ala. Nov. 30, 2012)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Rule 12(b)(6) dismissal based on the rule of repose was improper because the circuit court incorrectly presumed that the failure to allege a specific date for default meant that a default did not occur within the 20-year period. Under Alabama’s motion to dismiss standard, dismissal is proper only if plaintiff can “prove no set of facts” based on the pleading to support a viable claim. (Ed.-this is another case illustrating that Alabama has not adopted the federal Twombly-Iqbal standard.)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Domestic Law; Venue

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Ex parte Brandon, No. 1111538 (Ala. Nov. 30, 2012)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Issue: whether the exclusivity of venue established by Ala. Code § 30-3-5 applies where multiple claims are joined, where some of the claims are not governed by that section’s exclusivity provision. The case involved a split-custody arrangement involving multiple children. The court held that the father’s invoking his rights under this last sentence had a clear legal right to a transfer of that portion of the action regarding the child as to whom the father was the custodial parent.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Inverse Condemnation

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0HABD v. Logan Properties, Inc., No. 1111015 (Ala. Dec. 7, 2012)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Logan purchased a distressed multifamily development and began rehabilitation work. Shortly thereafter, HABD constructed a...

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