The Appellate Corner, 0720 ALBJ, Vol. 81 No. 4 Pg. 308 (July, 2020)

Author:Wilson F. Green, Marc A. Starrett, J.
Position:Vol. 81 4 Pg. 308

The Appellate Corner

Vol. 81 No. 4 Pg. 308

Alabama Bar Lawyer

July, 2020

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


From the Alabama Supreme Court

Attorney Discipline

Walden v. Alabama State Bar, no. 1180203 (Ala. March 27, 2020)

Under Ala. R. Disc. P. 1(a)(1), the bar has exclusive jurisdiction over attorney discipline, with appeal to the supreme court of Alabama.

Rule 60

Ex parte Huntington College, no. 1180148 (Ala. March 27, 2020)

Plurality opinion; action by trustees, seeking to deviate in a plan for trust distributions from a consent judgment entered decades earlier in the circuit court, was not subject to the jurisdiction of the probate court. even though probate court could exercise general equity jurisdiction under the Alabama Trust code absent a prior judgment, in the presence of the prior judgment, the only proper course was to seek relief from the judgment in the circuit court under rule 60.

Specially-Sitting Circuit Judges

Lawler Mfg. Co. v. Lawler, no. 1180889 (Ala. March 27, 2020)

Presiding circuit judge on recusal assigned action to a district judge for handling as a specially-sitting circuit judge. held: orders entered by the district judge were without jurisdiction, and thus orders would not support an appeal, for failure to follow the procedure on judicial recusals and reassignments in Ex parte Jim Walter Homes, Inc., 776 So.2d 76 (ala. 2000).

Shareholder Derivative Actions; Mandamus Review

Ex parte, Inc., no. 1180462 (Ala. March 27, 2020)

Putative derivative action was to be dismissed under ARCP 23.1 for failure to allege with particularity the efforts plaintiff shareholder made to demand the requested relief before commencing suit. shareholder demand is not an issue of standing but rather of adequacy of pleading. mandamus review is, however, available to determine compliance with rule 23.1, which requires a derivative complaint to allege that a director demand was made or was futile. claims in this case were derivative in nature, in that they sought to set aside certain acts taken as ultra vires which inured to the detriment of the corporation. The relief requested was in part for damages to all shareholders, and non-monetary relief did not seek relief unique to the plaintiff shareholder. director demand was therefore required, and no facts were pleaded to lead to the conclusion that it would be futile.

Juror Qualifications; General Verdicts

Leftwich v. Brewster, no. 1180796 (Ala. April 3, 2020)

(1) Trial court properly denied strike for cause of one spouse based on claim that two spouses (husband and wife) were on the same venire. Nothing in ala. code § 12-16-150 disqualifies a venireperson for cause based on being married to another member of the venire. (2) since the case was submitted on a general verdict, evidentiary issue concerning exclusion of testimony relating to real property damage could not be assigned as error because the jury could have determined there was no breach of duty, independent of any question of damage.

Res Ipsa Loquitur

Nettles v. Pettway, No. 1181015 (Ala. April 10, 2020)

Negligence through res ipsa loquitur (RIL) requires plaintiff to demonstrate that alternative non-negligent potential causes of the accident did not occur or are implausible. in this case, the trial court properly granted summary judgment on an RIL claim based on allegedly negligent installation of aftermarket wheels, where plaintiff provided no evidence to foreclose the possibility that the detachment of the wheel could have occurred as a result of other causes. While a plaintiff is not required to exclude all other explanations, once a defendant offers evidence to support a potentially non-negligent alternative explanation, plaintiff is obligated to demonstrate that the plaintiff’s theory is more probable.

Dram Shop Act

Everheart v. Rucker Place, LLC, no. 1190092 (Ala. April 24, 2020)

ABC regulation on service of alcohol “applies when the onpremises licensee, either as an individual or through its agents, is acting in its capacity as an on-premises licensee.” it does not apply to a caterer which is serving alcohol provided by the party’s host at a venue which is not the subject of the on-premises license.

Direct Action Statute; mandamus review

Ex parte State Farm Fire & Cas. Co., no. 1180451 (Ala. April 24, 2020)

Carrier’s contention that a direct-action statute claim could not be raised by amendment, but rather must be asserted in a different lawsuit, is not subject to mandamus review; review by appeal provided an adequate remedy.

Relation Back of amendments

Ex parte Gray, no. 1180999 (Ala. April 24, 2020)

Under Ala. R. Civ. P. 15(c)(3), an amendment changing the name of a defendant relates back if three elements are satisfied: (1) the claims against the newly-added defendant are transactionally related to the claims as originally asserted; (2) within the later of the expiration of the statute of limitations or 120 days after commencement of the action, the new defendant receives notice of the action, and (3) the new defendant knows or should know that, but for a mistake in naming him, he would have originally been named. in this case, plaintiff mistakenly sued the law enforcement officer who worked the two-car accident instead of the party involved therein (suit was filed two days before the statute expired), but plaintiff corrected the error about 90 days after commencement of the action. There was no dispute that gray knew or should have known that he was to have been sued. The amendment substituting gray for the officer therefore related back.

Non-Compete agreements and intentional interference; Causation

Jostens, Inc. v. Herff Jones, Inc., no. 1180808 (Ala. April 24, 2020)

HJ and Jostens are competitors in high-school scholastic recognition products, each of which sells its products through independent contractor businesses which are granted territories for the sales. at issue in this case was an alleged breach of a non-compete agreement involving a contractor’s switch from HJ to Jostens, allegedly leading to the switch by 47 schools from HJ to Jostens products. after a two-week trial, the jury awarded compensatory and punitive damages to hJ and its contractor. The sole issue on appeal was the sufficiency of evidence that the wrongful conduct caused 47 high schools to switch their accounts from HJ to Jostens. defendants contended that under Corson v. Universal Door Systems, Inc., 596 So.2d 565 (ala. 1991), plaintiffs were required to produce evidence from each of the decision- makers in the 47 schools. Plaintiffs countered that under Intergraph Corp. v. Bentley Systems, Inc., 58 So.3d 63 (ala. 2010), the jury was allowed to infer that all damages were caused by the wrongful conduct. The supreme court affirmed the judgment for plaintiffs, reasoning that plaintiffs were not required to present customer-specific evidence as to the reason each of the 47 schools switched. This is a unanimous full-court opinion by Justice mendheim.

Declaratory Judgments; Justiciability

City of Montgomery v. Hunter, no. 1170959 (Ala. May 1, 2020)

Moore v. City of Center Point, no. 1171151 (Ala. May 1, 2020)

Woodgett v. City of Midfield, no. 1180051 (Ala. May 1, 2020)

Mills v. City of Opelika, no. 1180268 (Ala. May 1, 2020)

Trial courts lacked subject matter jurisdiction over these actions against municipalities by red-light camera citation recipients for lack of a justiciable controversy. in most of the cases, the plaintiff had paid the citation but not followed the challenge mechanism in the implementing legislation in the municipal or circuit court. (in at least one unpaid case, the plaintiff did not challenge the citation in the time period prescribed by the Local act and ordinance, but did not pay.) any controversy involving the legality of the citations became moot once the time for challenge in the local act and ordinance passed without challenge, destroying justiciability.

Unjust Enrichment; Pleading

Pentagon Fed. Credit Union v. McMahan, no. 1180804 (Ala. May 8, 2020)

In action for redemption of property, trial court erred in refusing to consider unjust enrichment argued by redemptionee for defendant’s failure to plead it; unjust enrichment is not an affirmative defense under case law and because it was simply interposed as a defense rather than as an affirmative claim for relief.

CDS; Ownership

Dupree v. PeoplesSouth Bank, no. 1180095 (Ala. May 8, 2020)

Where two parties’ names appear on a CD and the funds used to purchase the CD belong to one party, unless there is evidence that the funding party intended to make a gift or create a trust, the funding party has the right to the funds as between the two named parties. second party did not establish an inter vivos gift, and thus bank was entitled to summary judgment in action by second party arising from bank’s payment of the CD to funding party.

Arbitration; Post-Arbitral Procedure

Russell Construction of Alabama, Inc. v. Peat, no. 1180979 (Ala. May 22, 2020)

Challenges to the arbitrator’s modified order were barred...

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