The Appellate Corner, 0716 ALBJ, 77 The Alabama Lawyer 292 (2016)
| Author | Wilson F. Green, J., Marc A. Starrett, J. |
Wilson F. Green, J., Marc A. Starrett, J.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Probate
Schulpf v. D’Olive, No. 1141365 (Ala. march 25, 2016)
Ala. Code § 43-2-442 authorizes an asset sale only “for the payment of debts;” mortgagee’s failure to file a timely claim against the estate precluded such a finding, even though mortgagee retained foreclosure rights to obtain at least partial satisfaction of the debt absent the filing of any claim.
Probate Court; appointment of Temporary Judges; Jurisdiction
Ex parte K.R., No. 1141274 (Ala. march 25, 2016)
Under Ala. Code § 12-13-37, when a probate judge has recused, that fact must be certified to the Chief Justice of the Alabama Supreme Court, who then is to appoint a temporary probate judge. Ala. Code § 12-1-14.1 allows the probate judge to certify his recusal to the presiding circuit judge, who May then also make an appointment. Failure to follow either procedure deprived the assigned judge of jurisdiction.
Insurance; Insurable Interests
Ex parte Liberty National Life Ins. Co., No. 1140612 (Ala. march 25, 2016)
Ala. Code § 27-14-3(f) requires that an insurable interest exist only at the time of policy procurement and not thereafter, and specifically not at the time of a loss.
Trusts; statutes of Limitation; attorneys’ fees
Ladd v. Stockham, No. 1140365 (Ala. march 25, 2016)
Beneficiary’s receipt of annual financial reports through the late 1990s and 2000s barred, under the two-year limitations period of Ala. Code § 19-3B-1005 (part of the Uniform Trust Code), any claims for breach of fiduciary duty, because of the receipt of “reports” adequately disclosing the alleged misconduct.
Gaming Law
State of Alabama v. $223,405.86, No. 1141044 (Ala. march 31, 2016)
The court reversed the circuit court’s denial of forfeiture relief to the state on the recovery of cash and illegal gambling devices. Based on the court’s prior precedents establishing the illegality of gaming activities at Victoryland, the state met its burden to demonstrate that the cash and devices were used in furtherance of illegal gaming activity.
Immunity
Alabama State University v. Danley, No. 1140907 (Ala. April 8, 2016)
Section 14 barred money damage claims against Alabama State University and official-capacity claims for breach of contract and back-pay relief. Section 14 also barred individual-capacity claims for breach of contract because it implicated a contract right of the state. Individual-capacity claims for “wrongful withdrawal of pay” were barred by state-agent immunity, because those officials were acting in a supervisory role exercising judgment. Eleventh Amendment barred federal-law claims against Alabama State University and official-capacity claims; the back-pay award claim was also barred by the Eleventh Amendment, and qualified immunity barred the individual-capacity claims on wrongful withdrawal of pay. Because, at most, the plaintiff obtained a declaratory judgment of rights violations, plaintiff was not a prevailing party under 42 U.S.C. § 1983 claims, and thus was not entitled to fees under section 1988.
Venue
Ex parte Southeastern Energy Corp., No. 1150033 (Ala. April 15, 2016)
Because no stay was sought pending disposition of mandamus petition, trial court had jurisdiction to reconsider denial of transfer motion and to effect transfer to Lowndes County, because it was a proper venue (where defendant sought transfer to Montgomery County “or any other proper venue.”)
Peace Officer immunity
Kendrick v. City of Midfield, No. 1130886 (Ala. April 15, 2016)
Peace-officer immunity under Ala. Code § 32-5A-7 requires engagement of lights and siren; summary judgment was improper because evidence was disputed as to whether siren was engaged.
Jury demand
Ex parte North American Adjusters, Inc., No. 1150278 (Ala. Apr. 22, 2016)
Ala. R. Civ. P. 38 requires only that a jury demand be in writing, not that it be signed.
Summary Judgment Procedure
Cherry v. Pinson Termite and Pest Control, LLC, No. 1140369 (Ala. April 29, 2016)
Among other holdings, there was substantial evidence that a wood infestation report failed to satisfy regulatory requirements, and that bond provider’s failure to follow administrative rules caused damages. Bond provider must affirmatively disclose to prospective transferees of a bond when certain impediments to preventing termites or exceptions to a complete prevention treatment exist.
Effect of dismissal; Continuing Jurisdiction
Synovus Bank v. Mitchell, No. 1141046 (Ala. April 29, 2016) (1) Joint stipulation of dismissal filed before answer or motion for summary Judgment was treated as a notice of dismissal, which operated as dismissal of action without order of the court; (2) although trial court lost jurisdiction over the matter generally upon dismissal, trial court nevertheless maintained jurisdiction to consider a Rule 60(b) motion to vacate the dismissal.
Negligence
Jim Bishop Chevrolet-Buick-Pontiac-GMC, Inc. v. Burden, No. 1141231 (Ala. May 6, 2016)
Defendant’s failure to identify and repair the source of a car’s burning odor, standing alone, was insufficient to establish a prima facie case of negligent repair. Plaintiff’s failure to offer expert testimony as to cause of fire experienced in truck following unsuccessful repair precluded finding of breach of duty.
Recusal
Ex parte Adams, No. 1140732 (Ala. May 6, 2016)
Multiple adverse rulings by trial court against petitioner, and multiple favorable rulings to respondent often made one or two days after the filing of respondent’s motions, were insufficient to establish clear legal right to recusal.
Redemption
E.B. Investments, LLC v. Pavilion Development, LLC, No. 1141259 (Ala. May 13, 2016)
Among other holdings: (1) redemptioner was entitled to redeem property despite having failed to name all necessary parties within one year following foreclosure, given the liberal construction to be afforded redemption statutes; relation back principles apply to redemption proceedings, and re-demptioner exercised due diligence in ascertaining parties to be substituted for fictitiously-named parties; (2) “when the mortgagee buys at foreclosure sale, the amount of the debt secured by the mortgage is treated as the purchase price rather than the amount bid;” (3) houses constructed upon lots subdivided for the purpose of residential development were “valuable and useful additions” and thus were recoverable as lawful charges under Ala. Code § 6-5-253(a)(1).
Ecclesiastical affairs doctrine
St. Union Baptist Church, Inc. v. Howard, No. 1141132 (Ala. May 13, 2016)
Whether defendant pastor could continue in his church position was an ecclesiastical matter not subject to the trial court’s jurisdiction. Whether church directors wrongfully refused pastor access to financial records of the church and to church funds was not ecclesiastical in nature.
Statute of Limitations
Ex parte CVS Pharmacy, LLC, No. 1150355 (Ala. May 27, 2016)
Failure either to pay required filing fee or to secure trial court’s approval of affidavit of substantial hardship was a ju-risdictional prerequisite to the commencement of plaintiff’s action.
Forum Non Conveniens
Ex parte Wayne Farms, LLC, No. 1150404 (Ala. May 27, 2016)
Interests of justice compelled transfer of action from Bullock County (where the defendant driver resided and wanted case to remain) to Pike County (where plaintiffs resided and where accident occurred, on plaintiff’s farm).
Effect of...
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