The Appellate Corner, 0518 ALBJ, 79 The Alabama Lawyer 214 (2018)

AuthorWilson F. Green, J.
PositionVol. 79 3 Pg. 214

The Appellate Corner

Vol. 79 No. 3 Pg. 214

Alabama Bar Lawyer

May, 2018

Wilson F. Green, J.

Wilson 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.

Marc A. Starrett

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.

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

Personal Jurisdiction

Ex parte International Creative Management Partners, LLC, No. 1161059 (Ala. Feb. 2, 2018)

Talent agency’s negotiation of performance agreement under which musical act was performed, at which event plaintiff was injured, was too tenuous a connection to Alabama forum to warrant exercise of personal jurisdiction.

Forum Selection; Unconscionability

Ex parte United Propane Gas, Inc., No. 1160891 (Ala. Feb. 2, 2018)

Inability to bring class action on a small claim, standing alone, does not render unconscionable an outbound forum-selection clause mandating disposition in a forum prohibiting class actions (due to the outbound forum state’s procedural peculiarities).

Mandamus

Ex parte Sanderson, 1160824 (Ala. Feb. 9, 2018)

Trial court’s denial of motion to dismiss, based upon claim that release agreement executed in conjunction with corporate merger and share exchange operated as a defense to shareholder claims against directors, was a merits determination on affirmative defense, for which appeal rather than mandamus was appropriate.

Equitable Estoppel

EvaBank v. Traditions Bank, 1160495 (Ala. Feb. 9, 2018)

Traditions could not reasonably rely on payoff statement provided by evabank when it had notice of discrepancies between the payoff statement and closing documents, which would have revealed that payoff statement was not for the loan secured by the evabank mortgages in issue. Traditions could not use equitable estoppel to claim priority interest in property.

Arbitration

STV One Nineteen Senior Living, LLC v. Boyd, 1160727 (Ala. Feb. 16, 2018)

Claim against nursing home operator by resident, arising from resident-on-resident incident and alleging negligent supervision by the operator, was a claim “relating to” admission agreement and thus fell within arbitration agreement’s scope.

Wills

Spencer v. Spencer, (Ala. Feb. 16, 2018)

When a will remains in the possession of the testator and is not found at death, the legal presumption is that the testator revoked the will. Probate court, considering the totality of evidence, concluded that the legal presumption had been overcome, and that testator never revoked the will. The supreme court affirmed, applying the ore tenus rule and concluding that the testimony concerning the testator’s fastidious retention of records was sufficient to rebut the presumption.

Municipal Liability

Ex parte City of Muscle Shoals, 1160396 (Ala. Feb. 23, 2018)

(1) A denial of summary judgment to city for lack of immunity under Ala. Code § 11-47-190 is reviewable by mandamus; (2) under section 11-47-190, the city can be liable in only one of two circumstances: (a) under respondeat superior for the wrongful action of an employee, or (b) for the maintenance of an unsafe condition about which the governing body had knowledge or which had been allowed to persist for such an unreasonable length of time that knowledge is inferred–and there was no substantial evidence to support either exception.

Negligence; Duty and Causation

DeKalb-Cherokee Counties Gas District v. Raughton, 1160838 (Ala. Feb. 23, 2018)

Dump truck’s performance of a “clutch release” maneuver to dislodge stuck truck contents did not violate any safety standard and thus was not itself negligent, and that there was no substantial evidence that there was some defect in the side wall of the truck (which failed, causing plaintiff’s injury) which was discoverable through any allegedly non-performed inspection. Thus, no act of negligence proximately caused the injuries.

Forum Non Conveniens

Ex parte Hrobowski, 1170014 (Ala. Feb. 23, 2018)

Granting mandamus relief and ordering a transfer of an MVA case to the county of the accident, the court unanimously stated: “the fact that a defendant resides in a particular forum does not, for purposes of the interest-of-justice prong of § 6-3-21.1, outweigh the forum where the tortious conduct occurred.”

Discovery

Ex parte Industrial Warehouse Services, Inc., 1170013 (Ala. March 2, 2018)

In an MVA case, plaintiffs sought discovery from defendant (employer of vehicle operator) of its operations and safety manuals (the “manuals”) and its bills of lading for customers. The supreme court (in a deeply fractured decision) held that defendant had demonstrated adequately that the bills of lading were trade secrets, which might be discoverable, but which were entitled to protection to preserve trade secret status. however, the manuals were not trade secrets, especially since they were largely based on FMCSR regulations.

Amendments to Pleadings; Intentional Interference

Fitzpatrick v. Hoehn, 1160348 (Ala. March 2, 2018)

(1) the circuit court did not abuse its discretion in denying leave to amend to file fourth and fifth amended complaints well after the pleading deadline imposed under a rule 16 scheduling order; even though there is a liberal standard for finding “good cause” for such post-deadline amendments, “undue delay in fling an amendment, when it could have been fled earlier based on the information available or discoverable, is in itself ground for denying an amendment[;]”

(2) in an intentional interference case, the plaintiff bears the burden of proving that the defendant is a “stranger” to the business relationship, which was not met in this case because the defendant was a party to the operative contract and relationship; and (3) pretermitting whether Alabama law would recognize tortious interference with an inheritance, in this case the evidence would not support such a claim because there was no evidence that a will was in fact destroyed, as was alleged.

Arbitration

Hillwood Office Center Owners’ Association, Inc., et al. v. Blevins, 1160725 (Ala. March 2, 2018)

Whether a defendant not a party to the agreement containing the arbitration agreement was bound to arbitrate was an issue for the court, not the arbitrator, because the agreement did not delegate to the arbitrator the power to decide issues of non-signatory arbitrability. issues of compliance with conditions precedent to arbitration, however, were issues of procedural arbitrability for the arbitrator. A party waives any right to object to the validity of an arbitration provision calling for the arbitration of certain claims once that party agrees to arbitrate those claims.

Condemnation Appeals

Ex parte Alabama Power Co., 1161161 (Ala. March 2, 2018)

Although an aggrieved party resisting an eminent-domain taking cannot appeal the preliminary order granting a complaint for condemnation (the party must wait until the order of condemnation is entered pursuant to Ala. Code § 18-1A-282 and setting compensation before any appeal can be fled), in this case, the appeal referenced by date the preliminary order of condemnation, but was fled after the order setting compensation, thus evincing an intent to appeal from the final order.

Medical Liability

Hamilton v. Scott, No. 1150377 (Ala. March 9, 2018)

The standard of Parker v. Collins, 605 so. 2d 824 (Ala. 1992), under which “the issue of causation in a malpractice case may properly be submitted to the jury where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than she was in as a result of inferior medical care[,]” applies to wrongful-death cases.

Justiciability

Walker County Commission v. Kelly, No. 1160862 (Ala. March 9, 2018)

Action by commission against civil service board to require compliance with open Meetings Act was not justiciable because there was no actual...

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