The Appellate Corner, 0719 ALBJ, 80 The Alabama Lawyer 294 (2019)

AuthorWilson F. Green, Marc A. Starrett.
PositionVol. 80 4 Pg. 294


Vol. 80 No. 4 Pg. 294

Alabama Bar Lawyer

July, 2019


Wilson F. Green, Marc A. Starrett.

From the Alabama Supreme Court

Future Advance Mortgages; Priority

GHB Construction and Development Company, Inc. v. West Alabama Bank and Trust, No. 1170484 (Ala. Sept. 21, 2018, on reh'g March 29, 2019)

Issue: whether a materialman's lien has priority over a mortgage with a "future advance"clause securing a construction line of credit, where no funds are initially advanced on the line. Held: Mortgage with future advance clause is "created" when executed and recorded, whether or not funds are advanced, and therefore a mortgage so "created" has priority over a subsequent materialman's lien created under § 35-11-211(a), Ala. Code 1975, despite the "shall have priority overall other liens, mortgages, or incumbrances created subsequent to the commencement of work on the building or improvement."

Discovery; Privilege; Advice of Counsel

Ex parte Alfa Insurance Corporation, No. 1170804 (Ala. April 5, 2019)

Because Alfa had not interposed advice of counsel as a defense to former agents' bad-faith claim and had not injected advice of counsel in the case in any form, communications between Alfa and its counsel regarding coverage for former agents under E&O policies at issue were privileged and not discoverable. Although the communications between attorney and client are privileged, materials provided to the attorney which are otherwise discoverable are not privileged simply because they are provided to the attorney.


Ex parte Eustace, No. 1171103 (Ala. April 5, 2019)

Trial court's order finding for plaintiff on trespass and conversion and determining that damages were awardable, but not fixing the damages was non-final and thus not appealable.

Alabama Constitutional Law

Clay County Commission v. Clay County Animal Shelter, Inc., No. 1170795 (Ala. April 5, 2019)

Local act appropriating 18 percent of tobacco tax to an animal shelter, which was a "charitable or educational institution not under the absolute control of the state" within the meaning of Ala. Const. § 73, was unconstitutional because that section would require that it receive "a vote of two-thirds of all the members elected to each house." Provision could be severed from the remainder of the act, even though no severance provision is in the act itself, because the remainder of the act was not rendered meaningless by severing that portion.

Administrative Law

Ex parte GASP, No. 1171082 (Ala. April 5, 2019)

The Jefferson County Board of Health was exempt from application of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975 ("the AAPA"), because the board is a "local governmental unit" rather than a "state agency"for purposes of the AAPA. Accordingly, it was unnecessary for the board to comply with the notice and hearing requirements of the AAPA when it adopted new rules for Jefferson County's Air Program.

Summary Judgment

Shoals Extrusion, LLC v. Beal, No. 1170673 (Ala. April 19, 2019)

Trial court improperly granted summary judgment to plaintiff employee in action against former employer for refusal to pay contractual severance benefits. Evidence was in dispute as to whether employee breached the terms of the employment agreement, thus excusing employer's performance.

Land Use; Rails to Trails; Preemption

Monroe County Commission v. A.A. Nettles Sr. Props. Ltd., No. 1170738 (Ala. April 26, 2019)

In a dispute between property owner and county commission over property purportedly conveyed to commission by railroad under the "Rails to Trails" program, the decision turned on Alabama law, under which "an easement given for a specific purpose terminates as soon as the purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment." latum v. Green, 535 So.2d 87,88 (Ala. 1988). Thus, railroad's right of way terminated, if not earlier, on a certain public filing, and thus the railroad's subsequent conveyance by quitclaim deed to the county commission under the Rails to Trails program was a nullity.

Dram Shop;"Visibly Intoxicated" Standard; Circumstantial Evidence

Wiggins v. Mobile Greyhound Park LLP, No. 1170874 (Ala. May 3, 2019)

Under Alabama law, alcohol sale to a visibly intoxicated person is "contrary to the provisions of law"and triggers application of the Dram Shop Act. The court concluded in this case that the "totality of the circumstances" test applied and that circumstantial evidence for driver's actions after the accident and after service could be considered in determining whether a direct sale to a minor or visibly intoxicated person triggers application of the Act.

Malicious Prosecution; Probable Cause

Naman v. Chiropractic Life Center, Inc., No. 1170934 (Ala. May 3, 2019)

Circuit court properly granted summary judgment to CLC on malicious prosecution action by Naman, based on CLC's underlying unsuccessful collection action against Naman for unpaid bills. CLC had probable cause to commence collection action.

Default Judgment Procedure

Putnam County Memorial Hospital v. TruBridge, LLC, No. 1171062 (Ala. May 10, 2019)

Because the default judgment defendant met the pleading and evidentiary threshold showing of each of the three Kirtland factors, the circuit court was required to consider the Kirtland factors and present a written analysis of those factors in ruling on the motion.

Negligence; Premises Liability

Armstrong v. Hill, No. 1170650 (Ala. May 10, 2019)

In a dog-bite case, landlord of tenant dog owner had no liability in negligence, because the duty regarding owners of dogs generally rests upon the dog owner, not a landlord. Plaintiff offered no evidence that landlord cared for or had responsibility for the dogs.

Forum Selection Clauses

Castleberry v. Angle's List, Inc., No. 1180241 (Ala. May 17, 2019)

Circuit court properly enforced outbound forum selection clause (providing exclusive jurisdiction in Indiana courts) in contract between Angie's List and retail customer, who had sued claiming that the company misrepresented the credentials of a bathroom remodeler. Trial court did not exceed its discretion in determining that plaintiffs had failed to demonstrate that the chosen forum was "seriously inconvenient"-plaintiffs had made no showing of their relative business acumen, and plaintiffs did not adequately demonstrate how simultaneous maintenance of their action in Alabama against the contractor and against Angie's List in Indiana would create "intertwining" problems or result in potentially inconsistent adjudications.


Greenway Health, LLC and Greenway EHS, Inc. v. Southeast Alabama Rural Health Associates, No. 1171046 (Ala. May 17, 2019)

Parties had two agreements: a license agreement (with arbitration clause) and a later BAA (with no arbitration clause and with a merger clause). The issue is arbitrability. The supreme court held: (1) due to the nature of the agreements at issue and the rights asserted, the claims raised issues concerning obligations under the BAA, and so trial court properly denied arbitration as to those claims; and (2) because third party claimed a right to arbitration under the "intertwining"doctrine and contracting party's claims were not subject to arbitration, neither were those against the third party.

Insurance (CGL); Construction

Nationwide Mutual Fire Insurance Company v. The...

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