The Appellate Corner, 0721 ALBJ, Vol. 82 No. 4 Pg. 288 (July, 2021)

AuthorWilson F. Green, Marc A. Starrett
PositionVol. 82 4 Pg. 288


No. Vol. 82 No. 4 Pg. 288

Alabama Bar Lawyer

July, 2021

Wilson F. Green, Marc A. Starrett

Wilson F. Green is a partner with Fleenor & Green LLP and practices in Tuscaloosa and Birmingham. He is a summa cum laude graduate of the University of Alabama School of Law and a former law clerk to the Hon. Robert B. Propst, United States District Court for the Northern District of Alabama. From 2000-09, Green served as adjunct professor at his alma mater, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

Marc A. Starred is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starred served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starred successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham’s Sixteenth Street Baptist Church


From the Alabama Supreme Court

Intentional Interference; Vicarious Liability

Cobb's, Allen & Hall, Inc. v. EPIC Holdings, Inc., No. 1190687 (Ala. March 26, 2021)

Among other holdings: (1) the court adopted Restatement (Second) of Torts § 772, under which "honest advice" is a mechanism by which the justification defense to an intentional interference claim may be established, and under which the defendant must demonstrate (a) that the advice was requested, (b) that the advice was given within the scope of the request, and (c) that the advice was honest; (2) as applied to this case, there was an issue of fact as to whether the advice given to plaintiff was "honest," because the controlling equity-interest document provided the bases on which equity interests were to be transferred or paid out; (3) there was no substantial evidence to support holding defendant's employer (EPIC) vicariously liable for potential intentional interference, because (a) employee's actions were not within the line and scope of his employment with EPIC, and (b) EPIC could not have ratified his conduct because it did not have knowledge of the statements to Mercer before they were made.

Probate Court Removal

Ex parte Tut Real Estate, LLC, No. 1190963 (Ala. March 26,2021)

Under Ala. Code § 26-2-2, a petition for removal of a guardianship or conservator-ship action from probate court to circuit court must (a) be sworn, (b) be filed by either the guardian/conservator or next friend of the ward, or person entitled to support out of the estate of the ward, (c) state the capacity in which the removing party is acting, and (d) state that, in the petitioner's opinion, the matter may be more efficiently administered in the circuit court. Failure to meet the statutory requirements deprived the circuit court of jurisdiction.

Testamentary Capacity; Undue Influence

Brock v. Mickelson, No. 1200141 (Ala. March 26, 2021)

Trial court erred by granting summary judgment to will proponent in will contest. Evidence was in conflict as to testamentary capacity between treating physician, who examined testator about one week before and nine days after will execution, and opined that she was incapable of executing a legal document, and drafting attorney, who generally testified that testator was pleasant and conversant but also stated that testator said her pre-deceased children lived out of state, and where there was no mention of living children in the will as would be the attorney's normal practice. Substantial evidence supported claim of undue influence, based on proponent's having inserted himself into testator's life, changed the locks on her house, and failed to notify family members of her situation, thus suggesting an "unnatural discrimination"for the proponent. There was also evidence that proponent had dominant position in a confidential relationship, and that proponent was unduly active in procuring the will, given that proponent suggested the lawyer for the will drafting and took plaintiff to two appointments with the lawyer, all within two months of her husband's death.

Rule 59.1

Ex parte Miller, No. 1190918 (Ala. April 2, 2021)

Trial court lacked jurisdiction to adjudicate Rule 59 motion more than 90 days past the time of filing, without express consent of the parties on the record to the continued pendency of the motion, by operation of Rule 59.1. The supreme court's COVID-related administrative orders suspending in-per-son court hearings did not alter Rule 59 calculations.


Cadence Bank, N.A. v. Robertson, No. 1190997 (Ala. April 2, 2021)

Trial court's grant of summary judgment to borrower in collection action by lender was error. Trial court entered summary judgment for borrower based on three-year statute of limitations applicable to open accounts, but lender also asserted a claim for account stated (which relies on a post-transaction agreement whereby the parties to an original account agree that a particular amount is owed), subject to a six-year statute.

Self-Defense; Statutory Immunity

Ex parte Teal, No. 1180877 (Ala. April 9, 2021)

Trial court improperly struck affirmative defense under Ala. Code § 13A-3-23(b), under which the party applying force may or may not be immune for actions taken in third-party defense if the party applying force negligently or wantonly injures the plaintiff while applying force against the perpetrator.

Guardianships and Conservatorships

Ex parte Jamison, No. 1190984 (Ala. April 9, 2021)

(1) Probate court was not ousted of jurisdiction under guardianship and conservatorship statutes due to pendency of adult-in-need proceedings in circuit court, because those statutory schemes co-exist and are not hierarchical; (2) probate court's rolling 30-day orders for an emergency or temporary guardianship or conservatorship were improper, because "it is not the intent of the Legislature to allow a temporary conservatorship... to essentially ripen into a permanent conservatorship without further action and timely oversight from the probate court."

Probate Court Jurisdiction

Weems v. Long, No. 1190369 (Ala. April 18, 2021)

Probate court lacked jurisdiction to take any action in the proceeding after a timely and proper motion to transfer a pre-admission contest had been filed under Ala. Code § 43-8-198. Probate court's post-motion orders were invalid even though the movant later withdrew the request for transfer.

Relation Back

Ex parte Dail, No. 1190846 (Ala. April 23, 2021)

Rule 15(c)(3) applies to situations in which the plaintiff is amending to correctly identify a defendant included in or contemplated by the original complaint, not one named in a collateral action. In this case, the original complaint did not contemplate the Dails to be defendants. Although the Dails were named in another civil action brought by other plaintiffs arising from the same MVA, that action did not give the Dails notice, under Rule 15(c)(3), that an action would be asserted by Jordan against them.

Noncompete Agreements; Death

Boyd v. Mills, No. 1190615 (Ala. April 23, 2021)

Issue: whether noncompete agreement executed in connection with sale of business terminates on the death of the individual subject to the agreement. Held: because the noncompete did not impose any affirmative obligation on the decedent and was executed separately from the other agreements relating to the sale, the agreement did not terminate, and thus the death of the individual did not give the business buyer the right to terminate making payments.

Intentional Torts; Suicide and Potential Superseding or Intervening Causation

Rondini v. Bunn, No. 1190439 (Ala. May 7, 2021)

The suicide of a person who was sexually assaulted does not constitute a superseding cause that, as a matter of law, breaks the chain of causation between the sexual assault and the victim's death so as to absolve the alleged assailant of liability. Under preexisting Alabama law, no action would generally lie to recover damages for allegedly causing another person's suicide. However, preexisting Alabama law had recognized two exceptions: (1) where a custodial relationship existed so that the custodian may have foreseen the suicide, and (2) where defendant's actions led to the creation of an "uncontrollable impulse" leading to suicide. Neither exception applied in this case, because the alleged assailant and the victim were not in a custodial relationship, and eight months passed between the alleged assault and the suicide, by which time the parties were living in different states. In this case, the court created a third exception-for intentional acts, as to which rules of proximate causation have a more limited application. The court concluded that a wrongful death claim may be pursued on behalf of a suicide victim against a sexual assailant if there is substantial evidence that the defendant caused the sexual assault and the assault was the cause in fact of the suicide. In such cases, liability may attach without regard to whether the defendant...

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