The Appellate Corner, 0319 ALBJ, 80 The Alabama Lawyer 150 (2019)

AuthorWilson F. Green, Marc A. Starrett
PositionVol. 80 2 Pg. 150

The Appellate Corner

Vol. 80 No. 2 Pg. 150

Alabama Bar Lawyer

March, 2019

Wilson F. Green, Marc A. Starrett


From the Alabama Supreme Court


Hartung Commercial Properties, Inc. v. Buffi's Automotive Equipment and Supply Company, Inc., No. 1170482 (Ala. Dec. 7,2018) Spoliation of evidence determinations are made by weighing five factors: (1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information [that would have been available] from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal. The supreme court reversed the dismissal of claims based on spoliation, concluding that factors 1, 2 and 4 were not supported by evidence, particularly because there appeared to be alternative sources of information available from which expert examinations could be made.

Discovery; Medical Liability

Ex parte Mobile Infirmary Assn., No. 1170567 (Ala. Dec. 14, 2018)

In medical liability action, trial court's protective order allowed plaintiff's counsel to use documents produced in the present action in another pending case against Mobile Infirmary. Mobile Infirmary objected to that language under Ala. Code § 6-5-551, which provides that "[a]ny party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission. "Mobile Infirmary sought mandamus relief. In a 6-3 decision, the court granted mandamus relief, holding that the provision in the protective order contravened section 6-5-551.


State of Alabama v. Volkswagen AG, No. 1170528 (Ala. Dec. 14, 2018)

State's claims against VW for "tampering" and seeking penalties against VW and other defendants pursuant to the Alabama Environmental Management Act ("the AEMA"), § 22-22A-1 et seq., Ala. Code 1975, and the Alabama Air Pollution Control Act of 1971 ("the AAPCA"), § 22-28-1 et seq., Ala. Code 1975, were preempted by Section 209 of the Clean Air Act, 42 U.S.C. § 7543. The case is very fact-specific and is controlled largely by a ruling in the VW emissions MODEL litigation.

Rule 59

Ex parte Chmielewski, No. 1171089 (Ala. Dec. 21, 2018)

Trial court lacked jurisdiction to rule on a Rule 59 motion filed 31 days following entry of judgment of dismissal.

Immunity; Public School Teachers

Ex parte Wilcox Co. Bd. Of Educ, No. 1170621 (Ala. Dec. 21, 2018)

In an action arising from a failure to renew contract of probationary teacher upon a vote of the board, where a board position was vacant and unfilled and where the teacher contended that the board vote was invalid, the court held: (1) claims against the board and against board members in their official capacities for money damages were barred by Ala. Const. Sec. 14; (2) official-capacity claims against superintendent for declaratory and injunctive relief regarding reinstatement were barred by immunity, because superintendent had only the authority to make a personnel recommendation to the board, and thus superintendent had not failed to perform a legal duty for immunity exception; (3) official-capacity claims against board members for declaratory and injunctive relief regarding the legality of the board vote under Ala. Code § 16-8-4 were not barred by immunity; (4) on individual-capacity claims, because personnel decisions fall within Cranman immunity, the burden shifted, even at the motion to dismiss stage, to the plaintiff to allege facts demonstrating that defendants acted maliciously, willfully, beyond authority or under mistaken interpretation of the law; (5) although Ala. Code § 16-8-4 states that no action or resolution of a board is valid unless concurred by a majority of the" whole board," Ala. Code § 16-24C-5(c), within the Students First Act, provides for a written termination of a probationary teacher by "a majority vote of the governing board."

Venue; Forum Non Conveniens

Ex parte Maynard, Cooper & Gale, P.C., No. 1171102 (Ala. Dec. 21, 2018)

Although venue was proper in action by former client against law firm in Jefferson County (where defendant had its principal office), interests of justice demanded transfer of action to Madison County, where the acts and omissions allegedly occurred out of defendant's office there.

Involuntary Dismissal

Ace American Insurance Company v. Rouse's Enterprises, LLC, No. 1170818 (Ala. Dec. 21, 2018)

Dismissal for want of prosecution requires a finding that plaintiff committed "willful default or contumacious conduct."

Insurance; Failure to Procure

Sonnies Mattress Corporation v. Hilton, No. 1170250 (Ala. Dec. 21, 2018)

Trial court properly entered summary judgment for insurer and agent against insured on claims of failure to procure proper coverage for business income coverages. Insured failed to present substantial evidence as to what advice the agent actually provided to the insured concerning the appropriateness or extent of coverage. Additionally, agent and insurer had no affirmative duty to provide advice concerning the need for or extent of coverages: "jurisdictions throughout the country have overwhelmingly concluded that insurers have no such duty to advise clients."

Venue; Corporations

Ex parte Mercedes-Benz U.S. International, Inc., No. 1170623 (Ala. Jan. 4, 2019)

The court overruled Ex parte Scott Bridge Co., 834 So.2d 79 (Ala. 2002), under which a corporation could be deemed to be "doing business by agent" in a county by purchasing in that county significant materials or components for use in the subject corporation's operations. "The regular purchasing of parts or materials from a supplier located in a certain county, by itself, does not constitute "[doing] business by agent" in that county under § 6-3-7(a)(3)."

Venue; Surface Mining

Ex parte Alabama Surface Mining Commission, No. 1170222 (Ala. Jan. 11, 2019)

Answering a narrow issue of first impression, the court concluded that venue for appeals from the commission's issuance of permits is required to be sited in Walker County under Ala. Code § 9-16-79(4)b., because the commission is required by Ala. Code § 9-16-73(h) to maintain its principal office in that county.

From the Court of Civil Appeals

Lambert Advance; Survival

GEICO General Insurance Company v. Curtis, No. 2170907 (Ala.Civ.App. Dec. 21, 2018)

Before suit was filed, defendant Curtis's carrier Allstate offered its $25,000 limits; GEICO...

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