The Appellate Corner, 0918 ALBJ, 79 The Alabama Lawyer 362 (2018)

PositionVol. 79 5 Pg. 362


Vol. 79 No. 5 Pg. 362

Alabama Bar Lawyer

September, 2018


From the Alabama Supreme Court

Election Law

Veitch v. Vowell, No. 1170723 (Ala. June 1,2018)

Jurisdiction stripping statute, Ala. Code §17-16-44, under which "[n]o jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute,” did not apply to candidate's claim he was wrongfully denied right to have his name included on a ballot, pursuant to an act he alleges is void.

Reformation; Mutual Mistake

G.R.L.C. Trust v. Garrison Decatur Crossings, LLC, No. 1170315 (Ala. June 15,2018)

Trial court properly granted petition for reformation of recorded memorandum of lease based on mutual mistake, in the failure to record an "Exhibit A "containing a legal description of the leasehold. Clear and convincing evidence demonstrated that both parties knew the premises subject to the leasehold, and that their intent was to record the memorandum of lease with the legal description attached, but that through clerical error it was never recorded.

Rule 54(B) Certification Improper

Richardson v. Chambless, No. 1170263 (Ala. June 15,2018)

The court dismissed an appeal as being from an improper Rule 54(b) certification; resolution of pending claims regarding an allegedly faulty inspection could potentially moot the claims adjudicated by the trial court's partial summary judgment, and, thus, the remaining claims were intertwined with claims disposed of.

Wantonness (Statute of Limitations)

Beddingfield v. Mullins Insurance Co., No. 1170143 (Ala. June 15,2018)

Because plaintiff's claims accrued before June 3,2011, their wantonness claims were subject to a six-year statute of limitations under Ex parte Capstone, while negligence claims were properly dismissed based on the applicable two-year statute of limitations.

Will Contests

Colley v. Dees, No. 1170042 (Ala. June 15,2018)

Plaintiff could establish prima facie case of lack of testamentary capacity based on lay testimony. Under Sanders v. Brooks, 611 So.2d 336 (Ala. 1992), lay testimony can outweigh even medical testimony on the issue.

Stay of Civil Proceedings Pending Criminal Proceedings

Exports Decatur City Bd. Of Educ, No. 1170017 (Ala. June 22,2018)

Under Ala. Code § 16-24C-6(j), in a teacher termination proceeding, no testimony of the teacher may be admitted in a criminal proceeding. Nevertheless, teacher brought action against board to enjoin teacher termination proceeding, due to pendency of criminal charges against teacher. Trial court granted the injunction. Afterward, teacher (in her criminal case) then successfully challenged the constitutionality of the underlying criminal statute (statute concerned teacher engaged in sex act with student under 19), and trial court in the criminal case dismissed the charges. State appealed that decision (appeal is pending). Board moved to dissolve the injunction based on the Code section prohibiting admission of any teacher testimony in the parallel criminal case, and based on the change of circumstances, which the trial court denied. The supreme court reversed, holding that the change of circumstances, coupled with the statute's rendering all teacher testimony inadmissible in a criminal case, gave teacher adequate protection of her Fifth Amendment rights.

Relation Back of Amendments

Ex parte Brookwood Health Services, Inc., No. 1170054 (Ala. June 22, 2018)

Even assuming there was an identity of interests between Brookwood Health Services, Inc. and Brookwood Baptist Health, LLC (the originally-named defendant), the claim against the Inc. did not relate back to original filing against the LLC, thus rendering the medical-liability claims time-barred. Under Rule 15(c), "within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment" must have received notice of the action. Plaintiff did not serve the LLC (the original defendant) until 128 days after commencement, and the Inc. was not served until five months later.

Venue; Forum-Selection Clauses

Ex parte Consolidated Pipe & Supply Co., Inc., No. 1170050 (Ala. June 22,2018)

Consolidated (pipe supplier) sued Bolt (its contractor) and Ohio Casualty (Bolt's bonding company) in Morgan County, seeking compensation for pipe supplied to a public works project in Morgan County subject to the Alabama Little Miller Act. Bond contained provision mandating venue for any action where the project occurred. Defendants moved to transfer venue to Jackson County, contending that Bolt is situated in Jackson County and that it was the only proper venue in Alabama for the action, and also asserted forum non conveniens as an alternative. Trial court granted the motion to transfer, and Consolidated petitioned for mandamus. The supreme court granted the writ, rejecting defendants' argument that Consolidated was not a proper "claimant" under the bond, and that the forum selection clause in the bond mandated venue in Morgan County. The court further noted that forum non conveniens arguments are not sound where a contractual forum selection is mandatory.

Products Liability

DISA Industries, Inc. v. Bell, No. 1160339 (Ala. June 29, 2018)

While employed by Anniston Foundry, Bell was injured while misstepping over a trough not protected by guardrails and holding molten iron, which led to the medically-necessitated amputation of toes on his foot. He sued DISA, the manufacturer and designer of the molding system containing the trough, under AEMLD and on negligence theories. The jury returned a verdict of $500,000. The supreme court reversed, holding that as to the AEMLD claim, the undisputed evidence was that DISA was not the "manufacturer" of the modified trough not protected by guardrails-instead, that was Union Foundry, Bell's employer. As to the negligence claim, the undisputed evidence showed that the molding system (DISA) was separate and distinct from the furnace system (of which the trough was a part), and, thus, DISA's duty did not extend into a system which it did not design and which it had no contractual duty to inspect or modify.

Wrongful Death; Standing

Ex parte Continental Motors, Inc., No. 1170165 (Ala. June 29, 2018)

The court adopted Justice Bolin's special concurrence from Golden Gate National Senior Care, LLC v. Roser, 94 So.3d 365 (Ala. 2012), under which an administrator ad litem appointed under § 43-2-250 "lacks the capacity of a 'personal representative'" under § 6-5-410, and, thus, an AAL appointed by the Mobile Probate Court lacked standing to bring the death claim.

Competitive Bid Law; Mootness

Ex parte Carter, No. 1160887 (Ala. July 27, 2018)

Trial court directed to dismiss action brought by state auditor against state finance officials, seeking to void a contract for purported violations of competitive bid law. Auditor's only potential remedy was injunctive, and completion of contract mooted the action. Ala. Code §41 -16-31 authorizes a taxpayer action exclusively for injunctive relief for violations of the Competitive Bid Law.


Aurora Healthcare, Inc. v. Ramsey, No. 1160659 (Ala. July 27, 2018)

In arbitration enforcement proceedings, trial court determined that a jury trial was needed on whether plaintiff's signature was valid or had been procured through fraud. On appeal, defendant did not challenge that finding, but instead argued that the arbitration agreement covered disputes preceding the date of the agreement itself. The supreme court held that the appeal was premature, because there had been no determination as to whether the agreement itself was enforceable. The court also dismissed plaintiff's cross appeal, which challenged the circuit court's determination that a disputed fact issue existed, because there had been no grant of a motion to compel arbitration.

Omitted Spouse; Common-Law Marriage

Harbin v. Estess, No. 1170209 (Ala. July 27, 2018)

(1) Ala. Code § 43-2-350(b)'s six-month limitation does not apply to a claim for an omitted spouse's share pursuant to § 43-8-90, because it is not a claim against the estate; and (2) there is a conflict in the evidence as to whether a common-law marriage existed, precluding summary judgment on the substantive question. (The common-law marriage purportedly arose before January 1, 2017; Alabama does not recognize common-law marriages commencing after that date).

From the Court of Civil Appeals

Lien Priority; Interpleader

Alabama Medicaid Agency v. Southcrest Bank, No...

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