The Appellate Corner, 0919 ALBJ, 80 The Alabama Lawyer 394 (2019)

AuthorWilson F. Green, Marc A. Starrett.
PositionVol. 80 5 Pg. 394


No. Vol. 80 No. 5 Pg. 394

Alabama Bar Lawyer

September, 2019

Wilson F. Green, Marc A. Starrett.


From the Alabama Supreme Court


Donaldson v. Country Mutual Insurance Company, No. 1171045 (Ala. June 14, 2019)

Insurer had no right to control manner or means of independent agent's work and time in day-to-day activities to establish respondeat superior liability. Although Johnston's vehicle had "Country Financial"signs on it and although Johnston was engaged in a mixture of personal and business affairs while driving, agent was traveling back to his office from personal business, not engaged solely in business matters.

Zoning; Governmental Agencies

Meriwether v. Pike Road Volunteer Fire Protection Authority, No. 1180330 (Ala. June 14, 2019)

Fire Authority is not a "governing body"or a "political subdivision" that, if engaged in governmental functions, is exempt from zoning ordinances.

Attorney's Lien; Interest

Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. v. DuBois, No. 1171178 (Ala. June 14, 2019)

Money held by the court regarding an attorney's lien is not a "money judgment" subject to the collection of post-judgment interest, and thus no post-judgment interest is due under Ala. Code § 8-8-10.

Arbitration; Class Actions; Review of "Clause Construction"

Alabama Psychiatric Services, P.C. v. Lazenby, No. 1170856 (Ala. June 21, 2019)

Judicial review of an arbitral order construing a clause to determine whether class-action mechanism was available in arbitration was properly limited to whether the arbitrator even arguably construed the contract.

Rule 54(B)

Cox v. Parrish, No. 1170391 (Ala. June 21, 2019)

Pendency of declaratory judgment count which was intertwined with claims subject to Rule 54(b) final order rendered the Rule 54(b) certification improper.


Deutsche Bank National Trust Co. v. Allison, No. 1160926 (Ala. June 28, 2019)

Ala. Code § 35-4-50 provides that "[conveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate.'Tracing the provenance of this statute back to the Code of 1852, the court found an ambiguity created when, in an 1860s Code revision, the first comma was inserted. The intent of the Code section, the court concluded, was not to require the recordation of all mortgages, but is intended to govern those recordings otherwise required by law. There is no general obligation to record mortgage assignments under Alabama law.

Personal Jurisdiction; Preliminary Injunction

Facebook, Inc. v. K.G.S., No. 1170244 (Ala. June 28, 2019)

(1) Facebook was not subject to general personal jurisdiction because it could not be considered "at home" in Alabama; (2) Facebook lacked transaction-specific contacts directed to Alabama to subject it to specific jurisdiction, under the standard of Walden v. Fiore, 571 U.S. 277, 291 (2014), under which "the defendant, not the plaintiff or third parties, must create contacts with the forum State." Failure to take down Facebook post was not directed to Alabama as a forum. Plaintiff also failed to establish reasonable likelihood of success on the merits of an invasion of privacy claim, which was premised upon the disclosure of information protected by the Alabama Adoption Code-the information at issue had already been made public by the Huffington Post at the time plaintiff sought preliminary injunctive relief.

Open Records Act

Health Care Authority for Baptist Health (an affiliate of UAB Health Systems) v. Central Alabama Radiation Oncology, LLC, No. 1171030 (Ala. June 28, 2019)

(1) Authority is subject to the Open Records Act; (2) records were subject to disclosure and did not fall within exceptions to Ala. Code § 36-12-40, under which "recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interest of the public"are not subject to disclosure; (3) by allowing the records to be subject to an in camera inspection by counsel for CARO, the Authority surrendered any claim of confidential or unduly sensitive material not otherwise subject to disclosure.

Collateral Estoppel

Austill v. Prescott, No. 1170709 (Ala. July 12, 2019)

Prior quiet title action was a judgment on the merits and therefore operated as res judicata as to the right to redeem in the second action.

Declaratory Judgments

Ex parte Valley National Bank, No. 1180055 (Ala. July 12, 2019)

Claims for declaratory judgment regarding non-liability under the Alabama Uniform Fraudulent Transfer Act and for non-liability for civil conspiracy are inappropriate actions for declaratory judgment under Ex parte Valloze, 142 So.3d 504 (Ala. 2013). However, claims for declaratory judgment regarding veil piercing and for constructive trust were appropriate for DJ action. This is a 4-1-3 decision with one justice not participating.

Employment Contracts

Arnold v. Hyundai Motor Manufacturing Alabama, LLC, No. 1170974 (Ala. July 12, 2019)

Under employment contract, employee was required to reimburse employer for moving expenses because he "voluntarily terminate[d]" his employment before two years. Alleged intolerable and hostile work environment, and purported "handshake agreement"that employer would not pursue him if he would not file an EEOC charge, did not negate the contractual obligation, because the resignation was voluntary whether or not he had good reason to do so, and that any handshake agreement was not supported by a writing to satisfy the statute of frauds, since the matter represented a debt exceeding $25,000.

From the Court of Civil Appeals

Adverse Possession; Contiguous Ownership

Kennedy v. Conner, No. 2180063 (Ala.Civ.App. June 5, 2019)

Under Ala. Code § 6-5-200, "[a] boundary line dispute is subject to a unique set of requirements that is a hybrid of the elements of statutory adverse possession and adverse possession by prescription."

Bearden v. Ellison, 560 So.2d 1042,1044 (Ala. 1990)

"If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period often years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken."Sylvest v. Stowers, 276 Ala. 695,697,166 So.2d 423,426 (1964).

Attorneys' Fees; Liens

Rose v. Penn & Seaborn, LLC, No. 2180184 (Ala.Civ.App. June 5, 2019)

Attorney's lien based on 45 percent contingent fee contract was enforceable because fee was reasonable, supported by testimony that attorneys' fees would have been more than the 45 percent contractual rate if billed hourly.

Discovery; Workers' Compensation

Ex parte Farley, No. 2180513 (Ala.Civ.App. June 21, 2019)

Trial court did not exceed its discretion, in action concerning non-scheduled injury, in ordering discovery of employee's Social Security disability records, Social Security earnings records, Alabama Department of Internal Revenue records and Alabama Department of Labor records regarding workers' compensation and unemployment benefits.

Contractor Licensure

Construction Services Group, LLC v. MS Electric, LLC, No. 2171099 (Ala.Civ.App. June 28, 2019)

Where trial court concluded that subcontract was subject to contractor licensure statutes, §§ 34-8-1 (c) and 34-8-7(c), Ala. Code 1975, and that subcontractor was not licensed, contract was illegal as a matter of law, and thus subcontractor could not recover damages under any non-contract theory (unjust enrichment).

Garnishment; Exemptions from Judgment

Smith v. Renter's Realty, No. 2180304 (Ala.Civ.App. July 12, 2019)

The sole...

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