The Appellate Corner, 0717 ALBJ, 78 The Alabama Lawyer 308 (2017)

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

THE APPELLATE CORNER

Vol. 78 No. 4 Pg. 308

Alabama Bar Lawyer

July, 2017

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

Authors 'Note: Due to press deadlines applicable to this issue, the cases covered in this article were decided up until May 12,2017.

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

Immunity

Woodfin v. Bender, No. 1150797 (Ala. March 31, 2017)

Birmingham Board of Education members and superintendent appealed trial court's money judgment for "classified employees," based on finding that salaries had been miscalculated. Held: defendants were entitled to section 14 immunity because (1) declaratory judgment exception to immunity was inapplicable because board policy, not statute, was at issue; (2) amount of and entitlement to payment were too unclear and disputed to be sufficiently liquidated; and (3) board members did not act arbitrarily in enforcing their policy.

Motions to Dismiss; Sufficiency of Fraud Allegations

Ex parte Price, No. 1151041 (Ala. April 14, 2017)

Whether additional materials attached to a Rule 12(b)(6) motion will be considered (thus prompting conversion to summary judgment motion) is within the trial court's discretion; attachment of materials to a Rule 12(b)(6) motion does not automatically convert the motion. In this case, the motion was not automatically converted to summary judgment, even though the materials were not referred to by the trial court in its dismissal order (and therefore there was no indication that the trial court had excluded those materials under Rule 12(b)).The complaint adequately pleaded facts giving rise to fraudulent concealment (specifically, allegations of time, place and circumstance of actual discovery of the alleged fraud and inability to discover fraud reasonably before that time) sufficient to toll the statute of limitations under the discovery rule of Ala. Code § 6-2-3.

Protective Services

Nix v. Franklin County DHR, No. 1160494 (Ala. April 14, 2017)

Putative ward had created a genuine issue of fact on need for protective services, and thus was entitled to formal hearing within 30 days under Ala. Code § 38-9-6.

Slip and Fall

Barnwell v. CLP Corporation, No. 1151329 (Ala. April 21, 2017)

The court reversed summary judgment in a slip-and-fall allegedly caused by two slips: a "slick spot" near the bathroom and by standing water near a counter. CLP failed to demonstrate presence of slick spot was an open and obvious danger (an affirmative defense).

Accrual; Fraud

Miller v. City of Birmingham, No. 1151084 (Ala. April 21, 2017)

Among other holdings, a fraud claim did not accrue, and statute of limitations did not begin to run, until plaintiff should have discovered the fraud, which was at the time she received the benefits booklet after her husband's death.

Good Count-Bad Count

Complete Cash Holdings, LLC v. Powell, No. 1150536 (Ala. April 21, 2017)

Deferred presentment transaction provider and pawnbroker was not a "debt collector" under FDCPA, thus negating that claim. Special interrogatory made clear that jury's general verdict was premised in part on a finding of liability on the FDCPA claim, and thus under the good count-bad count rule, new trial on all claims was necessary.

Workers' Compensation Retaliatory Discharge

Foster v. North American Bus Industries, Inc., No. 1150716 (Ala. April 29, 2017)

Substantial evidence supported, in context of plaintiff's comp-retaliation claim, that employer's proffered reason for termination (violation of absenteeism policy) was pre-textual, given (1) employer's prior acceptance of manner of notice provided for absence by employee (through third party), (2) inconsistency between employer's application substance of absenteeism policy as compared to its application to this employee, (3) the proximity in time between the comp claim and the adverse action and (4) affidavit testimony that shortly after accident another employee advised her she might need to look somewhere else, which was not contradictory to plaintiff's deposition testimony concerning conversations.

Hospital Liens; Damages for Impairment

Ex parte Alfa Mutual Insurance Co., No. 1141343 (Ala. April 29, 2017)

Where insurer allegedly damages hospital's entitlement to recover under a hospital lien by paying to insured proceeds for personal injuries treated by hospital subject to lien, measure of impairment of hospital's lien does not exceed the amount recoverable in the absence of impairment-i.e., in the amount actually paid by the insurer which impaired the lien and which would otherwise be recoverable by the hospital absent the act of impairment.

Fraud; Fiduciary Duty

Aliant Bank v. Four Star Investments, Inc., No. 1150822 (Ala. May 5, 2017)

Lender to subdivision developer brought action against developer, financial entity operating subdivision's public improvement district ("PID," established under Ala. Code § 11-99A-1) and that entity's consulting engineers, claiming that engineers and PID operator were negligent and breached fiduciary duties to the lender, thus damaging lender by compromising the valor of its security interest in the subdivision property, by spending the proceeds of the PID's bond issue, essentially over-leveraging the subdivision's infrastructure and causing excessive assessments against subdivision property. In a series of orders, the circuit court dismissed all claims brought by lender. The supreme court affirmed in part and reversed in part, holding in part (there are 13 holdings) that negligence and breach of fiduciary duty claims against PID directors were viable, because given that Alabama is a "title" state, lender's security interest amounted to a title interest in the subdivision property and the PID operator and its principals had duties to all subdivision property owners to exercise care in operations of PID and because lender did not have actual knowledge of the impairment of its position, under Bryant Bank v. Talmage Kirkland& Co., 155 So.3d 231 (Ala. 2014), lender's claims were not time-barred, especially considering the availability of tolling under Ala. Code §6-2-3.

Subrogation; UIM; Opt-Out

Ex parte Allstate Prop. & Cas. Ins. Co., No. 1150269 (Ala. May...

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