The Appellate Corner, 0920 ALBJ, Vol. 81 No. 5 Pg. 386 (September, 2020)
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RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Statutory Construction
Blankenship v. Kennedy, No. 1180649 (Ala. May 29, 2020)
Two rules of statutory construction are in play; the issue is which to apply. The "series qualifier" principle treats a final phrase as modifying an entire series preceding the phrase, and the "rule of last antecedent" treats the final phrase as modifying only the last in the series. The choice of rule depends on context. In this case, the court borrowed the analysis of these competing principles in Lockhart v. United States, 136 S. Ct. 958 (2016), and applied the latter principle.
UIM; Lambert Procedure
Turner v. State Farm Mat. Ins. Co., No. 1181076 (Ala. May 29, 2020)
Under Ex parte Allstate Ins. Co., 237 So. 3d at 207 (Ala. 2017), UIM carrier's payment of a Lambert advance "enjoin [s] the insureds' consummation of the tortfeasor's offered settlements; insured's consummating the settlement thus violated the "consent to settle" provision of the UIM policy.
Statutory (Constitutional) Construction
Kennamur v. City of Guntersville, No. 1180939 (Ala. May 29, 2020)
Under Ala. Const. Sec. 94.01 (Amendment 772), which authorizes municipalities to enter into leases for commercial purposes "of any kind" a municipality is empowered to enter into lease of real property with a private retail enterprise.
Personal Jurisdiction; Evidence
Ex parte TD Bank, No. 1180998 (Ala. May 29, 2020)
TD was sued for purportedly receiving a fraudulent transfer via wire,TD made initial prima facie showing that it was not subject to personal jurisdiction in an Alabama court through generalized evidence that it had no office in Alabama, no employees, did not advertise, owned no property, and that its incoming wires are processed through a server located in Canada. That evidence was sufficient to shift the burden to plaintiff, which offered no evidence to substantiate any allegations of actions in Alabama.
Juror Misconduct
Resurrection of Life, Inc. v. Dailey, No. 1180154 (Ala. June 5, 2020)
Trial court was within its discretion in denying new trial motion based on jurors' consultation of Internet sources. Mere exposure to extraneous information does not create "actual prejudice," and the trial court properly investigated the misconduct during deliberations, voir dired the jury, and within its discretion determined that they could render an impartial verdict.
Statutory Construction; Taxation
Barrett v. Panama City Wholesale, Inc., No. 1190321 (Ala. June 5, 2020)
Under Ala. Code § 40-25-8, the "confiscation" statute, the ADOR may confiscate any product held for distribution on which tobacco taxes have not been paid unless, under section 40-25-8, the product is at the "primary location"of certain permitted jobbers or retailers.
Contractual Attorneys' Fees
SMM Gulf Coast, LLC v. Dade Capital Corp., No. 1170743 (Ala. June 5, 2020)
De novo review applies to a trial court's grant or denial of a request for attorneys' fees recoverable under a contract. In this case, prevailing parties were entitled to contractual attorneys' fees, and trial court erred in refusing to grant them. Where a contractual fee provision applies to a "prevailing party,"that party is not required to assert entitlement to fees in a counterclaim in an action which will determine whether that party is in fact a prevailing party. The trial court may award fees and costs owed under a prevailing party provision even after final judgment and even if the issue were not reserved. Post-judgment motions under Rule 59 were also not required to raise the issue.
Forum Non Conveniens
Ex parte Allen, No. 1190276 (Ala. June 5, 2020)
MVA occurred in Lee County, and non-party witnesses were situated there; plaintiff sued in Macon County (county of plaintiff's residence). Held: interests of justice mandated transfer to Lee County under Ala. Code § 6-3-21.1, because connection to Macon County was weak and connection to Lee County was strong. Even though plaintiff lived in Macon County, he worked in Lee County, which further attenuated the connection to Macon County.
Ethics Act; Retaliation; Statutory Construction
Craft v. McCoy, No. 1180820 (Ala. June 5, 2020)
Anti-retaliation provision in the Alabama Ethics Act, § 36-25-24(a) is triggered only on an act of "reporting" referring only to the filing of a complaint with the Ethics Commission.
Cranman Immunity
Walters v. D'Andrea, No. 1190062 (Ala. June 5, 2020)
Patrol officer who rear-ended motorcycle while officer was en route to station, having completed shift, to turn in end of day paperwork was not entitled to Cranman immunity because officer admitted she had completed patrol shift, was returning to precinct, and was not performing any patrol duties.
Preservation of Error; Evidence (MVA)
Hicks v. Allstate Insurance Co, No. 1170589 (Ala. June 19, 2020)
(1) Allstate did not properly preserve as error on appeal the sufficiency of evidence as to causation, for failure to move for partial JML on that ground at the close of the evidence; (2) trial court exceeded its discretion in refusing to admit mortality table into evidence for use by jury in determining damages due to alleged permanent injury, given the state of the record supporting claim to permanent spinal injury.
Premises Liability; Open and Obvious
Daniels v. Wiley, No. 1190208 (Ala. June 26, 2020)
Landlord's failure to eliminate open and obvious danger does not create liability on the landlord, when the condition is demonstrated to be open and obvious to the tenant.
Tax Sale Procedures
Stiff v. Equivest Financial, LLC, No. 1181051 (Ala. June 26, 2020)
Tax sale occurring inside the courthouse instead of "in front of the door of the Courthouse," Ala. Code § 40-10-15, is invalid.
Estates
Ex parte Beamon, No. 1181060 (Ala. June 26, 2020)
Claim brought in Alabama circuit court against PR of estate probated in Georgia was in actuality a claim against the estate. Because no ancillary probate had been commenced in Alabama, the circuit court lacked personal jurisdiction over the claims against the PR because the PR's letters testamentary were issued by a Georgia court; PR had no authority to defend a lawsuit in Alabama.
Relation Back; Fictitious Parties
Ex parte Russell, No. 1180317 (Ala. June 26, 2020)
Because original complaint did not state a claim against an administrator party, trial court erred in denying summary judgment to administrator defendant substituted for a fictitious party after expiration of the limitations period. As to remaining three petitioners (all of whom were added by post-limitations substitution), plaintiff exercised reasonable diligence in discovery by ascertaining their identities and timely substituting.
Forum Non Conveniens
Ex parte Sanders, No. 1190478 (Ala. June 26, 2020)
Plaintiff (Barbour County resident working in Macon County) was injured in Macon County accident involving other vehicles driven by Shelby County and Montgomery County drivers. One non-party witness lived in Montgomery County. Sanders sued in Macon County. Defendants moved to transfer to Montgomery County under Ala. Code § 6-3-21.1. The trial court granted a transfer, and plaintiff petitioned for mandamus. The supreme court granted the writ, reasoning that both Macon and Montgomery counties were proper venues, and neither had "weak"connections to the case.
Contract Construction
Porter v. Williamson, No. 1180355 (Ala. June 26, 2020)
Though this case largely turns on its facts, in an action for specific performance, contract terms must be definite for enforcement.
Medical Liability; Causation
Williams v. Barry, No. 1180352 (Ala. June 26, 2020)
Trial court erred by granting pre-verdict JML to defendant surgeon in AMLA action arising from removal of 17-year-old's gall bladder, which turned out to be normal, following which surgery minor died later in the day of surgery. Plaintiff's expert offered direct testimony concerning breach of the applicable standard of care for failure to order ultrasound on the gall bladder prior to removal. As for proximate cause, when plaintiff's case theory is based on performance of an unnecessary medical procedure, expert testimony is not required to establish causation, though damages based on complications from the unnecessary medical procedure would require expert testimony. In this case, there was sufficient medical evidence of causation that death was proximately caused by surgeon's failure to clip the cystic artery during the procedure.
Insurance; Failure to Procure and Contributory Negligence
Crook v. Allstate Indemnity Co., No. 1180996 (Ala. June 26, 2020)
Exterior deck and boat dock connected by an exterior stairway to an insured home were not "attached structures" under a homeowner's policy for a lake house. Claim of negligent failure to procure insurance were barred by insured's contributory negligence in failing to read policy and ascertain limits of coverage.
Cranman Immunity
Odom v. Helms, No. 1180749 (Ala. June 26, 2020)
Odom (driver) was involved in late-night interstate accident. She was transported from scene by McHenry (state trooper) to a drop-off location at an exit. En route, McHenry detoured and took Odom to a wooded area, where he sexually assaulted her. Odom sued McHenry's supervisors claiming that based on McHenry's violation of the "relay” procedure governing trooper transports of motorists. The circuit court granted summary judgment based on Cranman immunity. The supreme court affirmed, holding that there was no evidence the supervisors were aware of the breach of policy, and that the policy applicable to the supervisors was not a detailed checklist
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