The Appellate Corner, 0917 ALBJ, 78 The Alabama Lawyer 388 (2017)

Author:Wilson F. Green, J.


Vol. 78 No. 5 Pg. 388

Alabama Bar Lawyer

September, 2017

Wilson F. Green, J.

Wilson F. Green is a partner in Fleenor & Green LLP in Tuscaloosa. 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 the law school, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

Marc A. Starrett

Marc A. Starrett 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. Starrett 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, Starrett 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


Family Security Credit Union v. Etheredge, No. 1151000 et al. (Ala. May 19, 2017)

Trial court’s determination that arbitration agreement was unconscionable was erroneous for lack of evidence of procedural unconscionability (inability to negotiate contract terms); alleged substantive unconscionability was not established merely because of lack of complete mutuality in arbitration agreement.


Gerstenecker v. Gerstenecker, No. 1160144 (Ala. May 19, 2017)

When a party contends that an issue was tried by express or implied consent, and evidence on that issue is also relevant to an issue expressly litigated, pleadings are not deemed amended to conform to the evidence under Rule 15(b).

Rule 54(b)

Ragland v. State Farm Mut. Auto. Ins. Co., No. 1160140 (Ala. May 19, 2017)

Rule 54(b) certification of dismissal of bad-faith claim was improper; disposition of pending UIM claim might moot bad-faith claim entirely, thus claims were intertwined.


SSC Selma Operating Company, LLC v. Fikes, No. 1160080 (Ala. May 19, 2017)

Order denying arbitration of retaliatory discharge comp claim reversed; employer’s EDR Program contained arbitration, was applicable to all employees and covered the retaliation claim.


Ex parte City of Guntersville, No. 1151214 (Ala. May 26, 2017)

Municipality was entitled to immunity under recreational-use statutes (Ala. Code § 35-15-1 et seq.) and under Ala. Code § 11-47-190 for claims arising from injuries suffered at or after attendance at fireworks display at municipal park.

Arbitrator Jurisdiction

Rainbow Cinemas, LLC v. Consolidated Constr. Co., No. 1160070 (Ala. June 16, 2017)

Because the AAA’s Construction Industry Arbitration rules empower arbitrators to determine the scope of their own jurisdiction, whether conditions precedent to arbitration have been satisfied, as well as issues of non-signatory enforcement, are for the arbitrator.

Leases; Recording

Rochester-Mobile, LLC v. C&S Wholesale Grocers, Inc., No. 1160185 (Ala. June 16, 2017)

Sublease is not a “lease” within the meaning of Ala. Code § 35-4-6, and thus is not subject to the recording requirement (under which lack of recording renders term beyond 20 years void) separate from the upstream lease.

Pleading Requirements

Newman v. Howard, No. 1160226 (Ala. June 16, 2017)

Circuit court erred in granting summary judgment based on an unpleaded affirmative defense of release, when no motion for leave to amend the answer or amended answer asserting the defense was ever filed.

Outbound Forum Selection

Ex parte Jewels by Park Lane, Inc., No. 1160333 (Ala. June 23, 2017)

Outbound forum selection clause within multi-level marketing agreement, designating Illinois courts as exclusive venue for suits, was enforceable; plaintiff failed to show that Illinois forum was seriously inconvenient, especially since counterparty was headquartered there and plaintiff had attended defendant’s convention there. Claim of fraud in the inducement directed to the entire agreement did not render forum selection clause unenforceable; only if fraud was directed to the clause itself would enforcement be impacted.

Estate administration

Engel v. Amonett, No. 1160113 (Ala. June 23, 2017)

Under Ala. Code § 43-2-22, “[i]mprovidence means a lack of care and foresight, of forehandedness, of thrift, of business capacity.” The evidence supported the conclusion that the co-executors’ lack of capacity to handle their own affairs suggested the improvidence triggering disqualification under the Code.

Post-arbitral review

Honea v. Raymond James Financial Services, Inc., No. 1130590 (Ala. June 30, 2017)

(1) Trial court lost jurisdiction to adjudicate matters after denial (by operation of law) of Rule 59 motions; (2) trial court did not violate mandate from first appeal by allowing post-arbitral award motion to vacate (treated as Rule 59 motion) to be denied by operation of law, because denial was merits adjudication of motion to vacate; (3) denial of hearing under Rule 59(g) was not reversible error as to many claims because movant failed to show “probable merit” to motion to vacate, required to consider reversible the denial of a hearing requested under Rule 59(g); (4) however, movant demonstrated probable merit as to breach of contract claims, thus rendering denial of Rule 59(g) hearing reversible.


Wells Fargo Bank, N.A. v. National Bank of Commerce, No. 1150992 (Ala. June 30, 2017)

Under Ala. Code § 7- 4-208, drawee bank has right to reimbursement of “expenses” when presenting bank violates presentment warranty. Held: “expenses” do not include attorneys’ fees incurred by drawee bank in defending action by party entitled to payment on the instrument.

Product liability; Expert Witnesses

Mazda Motor Corp. v. Hurst, No. 1140545 (Ala. July 7, 2017)

Driver was killed and passenger injured in single-vehicle MVA in which speeding vehicle crashed and burst into flames due to rupture in fuel system in crash. Driver’s estate and passenger sued manufacturer under AEMLD, claiming defective design of the fuel system (both had survived initial crash with non-life-threatening injuries, but driver was killed and passenger injured from burn injuries). After judgments for plaintiffs on jury verdicts, Mazda appealed. The supreme court held: (1) trial court did not err in admitting plaintiff’s design defect and causation expert’s testimony; he offered “technical” testimony rather than “scientific” testimony, such that the testimony was not subject to the Daubert-like requirements of Ala. R. Evid. 702(b), because his conclusions were based upon his own specialized knowledge and experience in and with automotive technology and the automotive industry and not “on a scientific theory, principle, methodology, or procedure”; (2) trial court did not err in refusing to instruct jury on contributory negligence as to AEMLD wrongful death claim brought on behalf of driver, because there was no evidence as to how speed might contribute causally to an accident generally versus speed which might contribute to an accident leading to a fuel system failure; (3) trial court erred in submitting wantonness claim because there was insufficient...

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