The Appellate Corner, 0321 ALBJ, Vol. 82 No. 2 Pg. 146 (March, 2021)

AuthorWilson F. Green, J., Marc A. Starrett, J.
PositionVol. 82 2 Pg. 146


No. Vol. 82 No. 2 Pg. 146

Alabama Bar Lawyer

March, 2021

Wilson F. Green, J., Marc A. Starrett, J.


From the Alabama Supreme Court

Defamation; Litigation Privilege; Counselor-Patient Privilege

Borden v. Malone, No. 1190327 (Ala. Nov. 25, 2020)

Father of minor sued son's counselor for defamation and negligence/wantonness in drafting and disseminating a letter by counselor regarding custody proceedings involving father and mother, based on counselor's observations as counselor for son and mother. Letter was ultimately not admitted into evidence in the custody proceeding. Father's complaint alleged that fraudulent, reckless, and unprofessional allegations were lodged in the letter against father, that counselor caused the letter to be disseminated beyond the attorney addressee and beyond the court to son's school officials and other third parties, and that the letter's dissemination also caused damage to both son and father. Trial court dismissed the complaint, holding that all communications were "privileged” The supreme court reversed, holding (1) even though ultimately not admitted into evidence, the contents of the letter would fall within the litigation privilege if disseminated only as was necessary in furtherance of the judicial proceeding; however, since the complaint alleged that counselor caused the letter to be disseminated beyond the judicial sphere to school officials and other third parties, the litigation privilege would not extend to such dissemination; and (2) negligence/wantonness claims were at their core a claim that counselor had breached the counselor-patient privilege as to the son (the patient), which was a viable claim based on the following: (a) the privilege as to communications between a minor child and LPC under Ala. Code § 34-8A-21 is the same as that afforded generally under § 34-26-2, (b) statutory right of confidentiality as to counselor-patient privilege supplants common-law litigation privilege, such that the litigation privilege cannot standing alone insulate the counselor from a private action based on unauthorized disclosure of the patient's confidential information-even though the letter written by the counselor made clear that the divulging of the minor's information was being done with the minor's consent.

Counties; Flood Liability; Road Safety Maintenance

Richardson v. Mobile County, No. 1190468 (Ala. Nov. 25,2020)

Two homeowners, residents of the Cottage Park neighborhood in Mobile County, sued the county for negligence, nuisance, and related claims, asserting that their homes had been devalued and they suffered losses of personalty resulting from repeated flooding events to the neighborhood after construction of a nearby subdivision (the O'Fallon subdivision) with county engineering approval. Allegation and evidence were that flooding of the Cottage Park subdivision substantially increased after construction of the O'Fallon subdivision, including flooding of public roads within Cottage Park. Held: (1) because county did not design or construct the system within Cottage Park which handled drainage (including the increased load from upland subdivisions such as O'Fallon, whose design was approved by the county) and because that system was not within county right of way, county had no duty to prevent overtaxing of the Cottage Park drainage system which led to flooding events; however, (2) because county accepted dedication of public roads in the Cottage Park subdivision, county did have duty to remediate flooding of the public roads therein in order to render them safe, and remand was necessary to determine whether evidence suggested that county breached that duty.

Easements; Experts; Attorneys' Fees

Toomey v. Riverside RV Resort, LLC, No. 1180521 (Ala. Dec. 4, 2020)

Toomey and Riverside are adjoining landowners. A culvert had been installed within an ingress-egress easement on which the common road to the properties lay, to channel stormwater away from the only road providing access to both properties. Toomey blocked the culvert knowing that the blockage might cause damage to the road and to Riverside's property. Riverside sued, obtaining an injunction and awards of compensatory and punitive damages, as well as attorney's fees. The supreme court affirmed in part, holding as follows: (a) mortgagee holder of contingent reversionary interest in the Riverside property was not a necessary party to the action, because Riverside was exclusive possessory interest holder in the property; (b) construction of the culvert did not exceed the scope of the easement because it was reasonably necessary for the purpose of the easement; (c) trial court did not abuse its discretion in limiting expert testimony from Toomey's expert, a land surveyor, to matters within his purview and not extending to engineering and causes of erosion; (d) trial court's award of attorneys fees without stating the rationale under which they were awarded, or the evidence relied upon to support the award, was an abuse of discretion.

Trusts; Attorneys' Fees

Stockham v. Ladd, No. 1180904 (Ala. Dec. 4,2020)

In a prior appeal, the supreme court held that the circuit court abused its discretion in denying attorneys' fees to trustee under Ala. Code §§I9-3B-708,19-3B-709, and 34-3-60, because the claims against the trustee were based on actions taken while a cotrustee of the trust. On remand, challenger filed an objection to the fees, making more extensive allegations and arguments not made previously. The circuit court ultimately denied fees based on a finding that the co-trustee willfully or wantonly committed a material breach of trust. The supreme court reversed, holding that the willful breach argument was not properly before the circuit court because it was raised for the first time after remand.

Personal Jurisdiction

Ex parte Bradshaw, No. 1190765 (Ala. Dec. 4, 2020)

Plaintiff (resident of Mobile) and defendant Bradshaw (resident of Florida) were involved in MVA in Mississippi. Plaintiff sued in Mobile County. Defendant moved to dismiss based on lack of personal jurisdiction. In discovery, defendant testified that he lived in Alabama until 2006, but he has lived in Florida since then, yet still occasionally comes to Alabama to visit family or use a local Alabama branch of his bank. The circuit court denied defendant's motion to dismiss, and defendant petitioned for mandamus. The supreme court granted the writ. The court noted that plaintiff argued only "general" personal jurisdiction, holding defendant's sporadic contacts with Alabama were not sufficient to establish general jurisdiction.

Will Contests; Post-Removal Procedure

Segrest v. Segrest, No. 1190676 (Ala. Dec. 4, 2020)

After the administration a decedent's estate has been removed to the circuit court, the circuit court's jurisdiction over a will contest filed pursuant to §43-8-199 may be invoked either by filing a complaint with the circuit clerk as an original action, or by filing a complaint or petition with the circuit clerk as an adversarial proceeding where circuit court has acquired subject-matter jurisdiction estate administration under a proper removal under Ala. Code § 12-11-41.

Arbitration; Contractual Capacity

TitleMax of Alabama, Inc. v. Falligant, No. 1190670 (Ala. Dec. 4, 2020)

Next friend of alleged incompetent's receipt of Social Security disability benefits did not establish receipt of those benefits based on mental disability to support a claimed lack of contractual capacity as a defense to arbitration. The fact that third party received person's disability benefits did not suggest mental incapacity in itself, because under federal regulations that receipt was permissible even if the intended recipient was mentally competent. Testimony from next friend that person suffers from a variety of mental and emotional illnesses, and his opinion that she lacked the mental capacity to understand the contract terms, was insufficient to demonstrate that she lacked the mental capacity to understand and comprehend her actions. (Four-justice plurality opinion)

Frivolous Appeals; Attorneys' Fees

Guthrie v. Fanning, No. 1190852 (Ala. Dec. 11, 2020)

Ala. Code § 12-19-272(a) authorizes an appellate court to award attorneys' fees if an appeal is brought without substantial justification, either on motion of a party or on the court's own motion.


State v. Two White Hook Wreckers, No. 1190180 (Ala. Dec. 11, 2020)

Ala. Code § 28-4-287 provides the exclusive means for obtaining seized personal property during the pendency of a forfeiture action; injunctive relief under Rule 65 is unavailable.

Attorney Disqualification; Waiver

Ex parte Petway Olsen LLC, No. 1190402 (Ala. Dec. 11, 2020)

Trial court abused its discretion in disqualifying plaintiff's counsel on motion of a defendant (MBUSA) which raised the disqualification issue in its initial answer (an answer filed with its co-defendant and sister entity MBUSI), but which delayed in filing its own motion to disqualify, due to the pendency of a similar motion filed by...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT