The Appellate Corner, 0520 ALBJ, 81 The Alabama Lawyer 232 (2020)

Author:Wilson F. Green, Marc A. Starrett.
Position:Vol. 81 3 Pg. 232

THE APPELLATE CORNER

Vol. 81 No. 3 Pg. 232

Alabama Bar Lawyer

May, 2020

RECENT CIVIL DECISIONS

Wilson F. Green, Marc A. Starrett.

From the Alabama Supreme Court

Estates

Player v. J.C., No. 1180606 (Ala. Jan. 24, 2020)

Among other holdings: (1) Ala. Code § 12-22-21 authorizes immediate appeal from order of a probate court removing personal representative. This also applies to estates removed to circuit court, in which event an appeal is to the Alabama Supreme Court. (2) Former PR was not entitled to hearing on second petition for final settlement under Ala. Code § 43-2-550 filed after her removal; former PR had repeatedly refused to comply with prior circuit court orders directing filing of an accounting.

Corporate Depositions; "Apex" Doctrine; Discovery Standards

Ex parte Willimon, No. 180439 (Ala. Jan. 24, 2020)

In action for damages against local United Methodist ministers and district, plaintiff sought depositions of former and current bishop of the North Alabama Conference of the UMC. Bishops moved to quash, which were denied. Bishops sought mandamus relief. The supreme court denied the writ. The bishops argued that the court should explicitly adopt the "apex" doctrine, invoked by high-ranking corporate executives to be relieved from testifying in actions when they lack personal knowledge of any of the matters involved in the action. The court has applied principles akin to the apex doctrine in prior cases, but concluded that the bishops' testimony was being sought for their superior knowledge of certain matters, including the procedures for handling child sexual abuse allegations during their respective tenures, implementation of those policies, and the efforts to address such allegations at the local church level. The court declined to consider the "apex" doctrine because of these distinguishing facts. The court also rejected current bishop's argument that the discovery was unreasonably duplicative or cumulative, because prior depositions of district superintendents did not specifically address conference's involvement in preventing or investigating such allegations. The court rejected current bishop's argument that the discovery was unduly burdensome; Rule 26(b)(2)(B)(iii) was amended in December 2018 to alter the undue burden standard for protective orders to a standard which parallels general standards of discovery under Rule 26(b)(1), which (after December 2018) is not privileged, relevant, and proportional to the needs of the case.

AMLA; Discovery

Ex parte BBHBMCLLC, No. 1180961 (Ala. Jan. 24, 2020)

PR sued Brookwood Medical Center, claiming negligence in maintenance of premises from which psychiatric outpatient services recipient was allowed access to parking deck from which she took her life. In discovery, PR sought discovery from Brookwood regarding whether changes to the premises access or characteristics were considered after either of two prior suicides in like manner. Brookwood refused to provide the discovery under Ala. Code § 6-5-551, which precludes discovery of other acts in AMLA actions. The trial court ordered production of the materials and responses. The supreme court granted mandamus relief. At the outset, the court noted that there was no independent premises liability claim asserted, and thus that all claims fell under AMLA. Such "other acts"evidence was precluded by the statute, and even though the facts regarding the suicides themselves were not being sought, the information regarding the condition of the premises was inextricably intertwined with the suicides themselves, bringing all such information under the exclusion of the statute.

Statute of Limitations; Mandamus Review

Ex parte Dow AgroSciences LLC, No. 1180887 (Ala. Jan. 24, 2020)

Plaintiff was not entitled to relation back, under Ala. Code § 6-8-84, of a counterclaim as to a defendant to the counterclaim which is not a plaintiff suing the counterclaiming party. The issue of relation back of this amendment as to the counterclaim defendant was reviewable by mandamus.

County Engineers

Robbins v. Cleburne County Commission, No. 1180106 (Ala. Jan. 31, 2020)

Provision in county's five-year contract with engineer giving engineer unilateral option for sixth year was void; under Ala. Code § 11-6-1, a county may hire an engineer for up to five years.

Premises Liability

McClurg v. Birmingham Realty Co., No. 1180635 (Ala. Jan. 31, 2020)

Trial court granted summary judgment to premises owner based on plaintiff's stepping in 16"x 5"pothole which was deemed "open and obvious." The supreme court reversed in a plurality opinion, reasoning that the issue of "open and obvious" is generally not for resolution on summary judgment except in three instances: (1) where plaintiff admitted carelessness or subjective knowledge of the condition; (2) where the type of condition was so dangerous as to preclude liability under any circumstances; and (3) where no reasonable jury could not find the condition open and obvious. According to the plurality, "holes in parking lots are not so categorically obvious that the situation merits a perse defense." Here, the position and dimensions of the hole, the surrounding asphalt, and other conditions made it a jury question.

UM Opt-Out Procedure; Jury Demands

Ex parte Allstate Property & Casualty Ins. Co., No. 1180871 (Ala. Jan. 31, 2020)

After UM carrier answers and demands a jury, then opts out under Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala. 1988), UM carrier can nevertheless insist that its demand for jury trial be honored when remaining litigants try case.

Direct Action Statute; Mandamus Review

Ex parte State Farm Fire & Cas. Co., No. 1170760 (Ala. Jan. 31, 2020)

Denial of motion to dismiss action against insurer under the direct-action statute, Ala. Code § 27-23-2, was not reviewable by mandamus.

Arbitration; Nonsignatory

Wiggins v. Warren Averett, LLC, No. 1170943 (Ala. Feb. 7, 2020)

Wiggins was a physician in Eastern Shore Children's Clinic, PC (the"PC"). Warren Averett ("WA") had accounting retainer agreement with the PC, under which WA would prepare the PC's returns and its shareholders' personal returns, including Wiggins's. The retainer agreement contained an arbitration provision requiring arbitration of all disputes "asserted or brought by or on behalf of" the PC, but did not address potential disputes regarding individual shareholder's returns. Wiggins sued WA regarding his personal returns. WA moved to compel arbitration, which was granted. Wiggins appealed. The supreme court reversed in a plurality decision, reasoning that although the clause covered only disputes "asserted or brought by or on behalf of"the PC, the clause was a AAA commercial clause, under which the arbitrator determines the scope of his/her own jurisdiction, and thus the scope of the clause would be an issue for the arbitrator. This case largely turns on what was deemed a waiver of arguments on appeal, so it may be of limited precedential value.

Substitution; Relation Back; Due Diligence

Ex parte Cowgill, No. 1180936 (Ala. Feb. 7, 2020)

Trial court erred in holding that claims against individual defendants substituted for fictitious parties after expiration of the statute of limitations related back under Rule 9(h). Plaintiff had actual knowledge of individual defendants' identities and roles well before expiration of the statute in pre-trial discovery (and even in pre-suit discovery) and did not substitute, demonstrating lack of reasonable diligence.

Power of Attorney

Forbes v. Platinum Mortgage, Inc., No. 1180985 (Ala. Feb. 14, 2020)

Evidence was sufficient (from notary's testimony) that POA was verified before the notary and thus was "acknowledged" under Ala. Code § 26-1A-119(a), making it valid under §26-1A-120.

Workers' Compensation Exclusivity

Ex parte Drury Hotels Co., LLC, No. 1181010 (Ala. Feb. 28, 2020)

Housekeeper sued her employer for injuries sustained in sexual assault committed while she was working at hotel. Suit was based on premises liability theories (failure to maintain safe premises) and on tort of outrage. Employer moved to dismiss based on exclusivity under Ala. Code § 25-5-52; trial court denied the motion with respect to negligence and wantonness claims, but reserved ruling on the outrage claims pending discovery. Employer petitioned for mandamus. The supreme court denied the writ. Under Ala. Code § 25-5-1 (9), an assault on an employee may be compensable under the act unless the assault was committed against the employee for "personal" reasons and not for reasons related to employment. Pleading on its face did not address whether assault was for "personal" reasons, so denial of Rule 12 motion was not improper.

Arbitration; Evidence

Oaks v. Parkerson Construction, LLC...

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