The Appellate Corner, 0321 ALBJ, Vol. 82 No. 2 Pg. 214 (June, 2021)

PositionVol. 82 2 Pg. 214


No. Vol. 82 No. 2 Pg. 214

Alabama Bar Lawyer

March, 2021


Wilson F. Green is a partner with Fleenor & Green LLP and practices in Tuscaloosa and Birmingham. 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 his alma mater, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

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.


From the Alabama Supreme Court

MVA; Motorized Wheelchairs

Pruitt v. Oliver, No. 1190297 (Ala. Jan. 29, 2021)

Operator of motorized wheelchair close to curb of public road who was hit by a motor vehicle was operating a "motor vehicle" under Ala. Code § 32-1-1.1 (33) and was not deemed to be a "pedestrian" under § 32-1-1.1(42). Even though wheelchair operator may have violated rules of the road with respect to the equipment which was operational on the wheelchair, there remained issue of fact as to whether the lack of missing safety devices proximately caused the accident.

Trial Procedure; Improper Argument to Jury

Allstate Ins. Co. v. Ogletree, No. 1180896 (Ala. Feb. 5, 2021)

Under the "substantial prejudice" standard for improper attorney argument and under the "probable prejudice" standard for mistrial motions based on improper argument, carrier demonstrated that improper argument by UM plaintiff's counsel, to the effect that carrier could be completely compensated by tortfeasor's estate, was improper and likely influenced the jury.

Mandamus; Recusal

Ex parte Boone Newspapers, Inc., No. 1190995 (Ala. Feb. 12, 2021)

Petitioner seeking recusal order in mandamus proceeding was not entitled to relief based on grounds not raised before the circuit court.


Goins v. Advanced Disposal Services Gulf Coast, LLC, No. 1190393 (Ala. Feb. 19, 2021)

Among other holdings in a two-justice plurality panel opinion, trial court properly instructed jury on spoliation of evidence based on plaintiff's loss of his cellphone data, where plaintiff initiated a factory reset of his phone five days after his lawyer had asked for a hearing on defendant's motion to compel.

Mediation; Sanctions

Allstate Property & Cas. Co. v. Harbin, No. 1190792 (Ala. Feb. 19, 2021)

Two-justice plurality panel opinion; trial court abused its discretion in imposing sanctions against Allstate for amounts exceeding plaintiff's attorneys' fees (amounts which were not contested) for purported violation of pretrial mediation order. Order simply required a representative with "full settlement authority"; the language did not require physical presence of Allstate representative, and there was no evidence that its attorney lacked full authority. Under In re Novak, 932 F.2d 1397 (11th Cir. 1991), "full authority" does not require that the party be willing to settle at all.

State Agent Immunity

Moore v. Tyson, No. 1190547 (Ala. Feb. 19, 2021)

Panel opinion (unanimous); trial court properly granted summary judgment to teacher and principal of school, based on Cranman immunity, in action by injured student arising from teacher's leaving classroom unattended while she went to the rest-room, during which absence child fell after leaving her seat. Both defendants were exercising judgment in their duties, and plaintiffs did not demonstrate any policy violation (of "effective supervision") amounting to a checklist. Section 14 barred all official capacity claims.


Murphy Oil USA, Inc. v. English, No. 1190610 (Ala. Feb. 19, 2021)

Trial court did not err by admitting evidence of plaintiff's medical expenses, which were challenged based on lack of expert testimony regarding reasonableness and necessity, where defendant stipulated to admission of doctor's testimony.

Appellate Jurisdiction

Dyas v. Stringfellow, No. 1190258 (Ala. Feb. 26, 2021)

Aggrieved party filed notice of appeal from order dismissing some but not all defendants. Subsequent to the notice of appeal, trial court entered an order dismissing the remaining defendant. Held: notice of appeal divested the trial court of jurisdiction, and the appeal was taken from a non-final judgment and was therefore improper.

Will Contests

Taylor v. Hanks, No. 1190203 (Ala. Feb. 26, 2021)

Genuine issues of material fact as to testamentary capacity rendered probate court's summary judgment improper in will contest. Misstatement in will that testator had no children suggested that testator was not aware of t he natural objects of his bounty. Evidence that testator and child were estranged might be a possible explanation, but the misstatement accompanied by the testator's having two strokes immediately before executing the will might suggest otherwise.

Mandate Rule

Ex parte Encompass Health, Inc., No. 1190797 (Ala. March 12, 2021)

Trial court's post-remand alteration of a dismissal of some defendants (originally with prejudice, later modified to be without prejudice) entered before dismissal of remaining defendants was a violation of the mandate rule, even though the dismissal order under review was not challenged in the first appeal; scope of the trial court's authority on remand is circumscribed by the decisions in the appeal.


Munsa v. Ivey,No. 1200003 (Ala. March 19, 2021)

Plaintiff citizens failed to allege particularized facts giving rise to an "injury in fact" resulting from their being required to comply with the governor's COVID mask mandate, and thus lacked standing to bring an action challenging its constitutionality.

From the Court of Civil Appeals

Workers' Compensation

Turner v. Walter J. Baggett, Inc., No. 2190745 (Ala.Civ.App. Feb. 5, 2021)

Trial court erred in limiting employee's compensation to permanent partial disability benefits for loss of use of his right arm under the "schedule." If the effect of the loss of a member extends to other parts of the body and interferes with efficiency, the schedule is not exclusive. Moreover, a permanent injury to a scheduled member which results in chronic pain in the scheduled member so severe as to render worker totally disabled is also not limited to scheduled benefits. Substantial evidence did not support the trial court's conclusion that the injury was contained to worker's arm, because undisputed objective medical evidence indicated that injury affects the worker's spinal cord nerves, causing a painful debilitating condition.

Workers' Compensation; Location of Employment

Sellers v. Venture Express, Inc., No. 2190165 (Ala.Civ.App. Feb. 12, 2021)

Notwithstanding parties' agreement that Sellers's employment was to be principally localized in Tennessee, Ala. Code § 25-5-35(g) gave Sellers the right to seek compensation benefits under the Act for injuries sustained in Alabama, and that jurisdiction could not be divested by agreement of the parties.

Motions to Dismiss vs. Summary Judgment

Riddle v. Everett, No. 2190817 (Ala.Civ.App. Feb. 12, 2021) Trial court erred in considering matters outside the pleadings and not converting a motion to dismiss to a motion for summary judgment.

Workers' Compensation; Venue and Exclusivity

Ex parte Standard Furniture Mfg. Co. LLC, No. 2200251 (Ala.Civ.App. Feb. 26, 2021)

Because venue is determined as of action's commencement and because a trial court entering an order has the inherent authority to enforce it, mandamus relief was unavailable to employer in subsequent (.01) action to challenge venue where the action in effect sought enforcement of the court's prior judgment awarding comp benefits. Exclusive remedy provisions of the Act do not apply to claim that employer has failed to abide by prior judgment in comp action in contempt setting.

Rule 60

1st Franklin Fin. Corp. v. Pettway, No. 2190871 (Ala.Civ.App. Feb. 26, 2021)

Order granting a Rule 60(b)(5) motion based on satisfaction of the judgment is appealable.


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