The Appellate Corner, 0921 ALBJ, Vol. 82 No. 5 Pg. 382 (September, 2021)
| Position | Vol. 82 5 Pg. 382 |
RECENT CIVIL DECISIONS
Wilson F. Green
Marc A. Starrett
From the Alabama Supreme Court
Alabama Constitutional Law (Section 45)
Clay County Animal Shelter, Inc. v. Clay County Commission, No. 1190947 (Ala. May 28,2021)
Plurality opinion; 2018 Act amending a prior local act, modifying a local tobacco tax and altering the distributions of revenues derived from the tax, did not violate the "single subject" requirement of Section 45 of the Alabama Constitution.
Estates
Brooks v. Svenby, No. 1190405 (Ala. May 28,2021)
(1) Circuit court lacked jurisdiction to appoint S administrator or executor, because under Ala. Code § 12-22-21 (2), appeal from the probate court's appointment of administrator had to have been taken within seven days of the order, and once administrator is appointed, only § 43-2-290 provides the grounds for removal of administrator; (2) final settlement failed to follow Ala. Code § 43-2-502, requiring administrator to file documents in support.
Arbitration
Performance Builders, LLC v. Lopas, No. 1190977 (Ala. May 28,2021)
Home inspection agreement entered into online contained valid and enforceable arbitration agreement. Issue of unconscionability was an issue of arbitrability for the arbitrator, because the clause designated AAA administration and because AAA rules allow arbitrators to determine their own jurisdiction.
Statute of Limitations; Opioids
Ex parte Abbott Labs., No. 1191001 (Ala. May 28,2021)
Face of public nuisance (opioid-related) claims against multiple parties did not state claim against petitioner, because the complaint did not allege any conduct specifically undertaken by Abbott after 2006, and therefore the statute of limitations barred any claims against Abbott.
Tax Sale Redemptions
Hamilton v. Guardian Tax AL LLC, No. 1200048 (Ala. May 28,2021)
Under Ala. Code §40-10-83, original owner or successor in possession of the property may redeem the property sold at tax sale without limit of time, contrary to the general three-year limitation.
Fictitious Party Practice; Workers' Comp Exclusivity; Safety Devices
Means v. Glover, No. 1190660 (Ala. June 4,2021)
(1) Plaintiff failed to exercise due diligence in substituting co-employees for fictitious parties after running of statute of limitations, because at the time of filing plaintiff had OSHA report and employer's response thereto in which co-employees were identified; (2) plaintiff failed to exercise reasonable diligence as to belated substitution of a consulting metallurgist, because same OSHA-related materials identified the role of the consulting metallurgist but did not name that person, but plaintiff did not undertake efforts to discover that person's identity; (3) Ala. Code § 25-5-11 (c)(2) does not provide an injured employee with a cause of action against a co-employee for failure to install an available safety device, the statute requires removal of a safety device.
UM; Policy Construction
Jay v. USAA, No. 1190941 (Ala. June 18,2021)
Passenger in uninsured motorist's car sought recovery for injuries under policy issued to his father-in-law and under which passenger's wife was listed as "operator." Held: policy unambiguously extended coverage to family members of the "named insured," but not of "operators,"and thus passenger was not entitled to UM benefits under the policy.
Trusts
Skelton v. Skelton, No. 1190700 (Ala. June 18, 2021)
Plurality opinion; probate court did not err in terminating trust after determining, under Ala. Code § 19-3B-414(b), that the value of trust property was insufficient to justify the cost of administration.
Latent Ambiguity; Contracts
Burdette v. Auburn-Opelika Investments, LLC, No. 1190767 (Ala. June 18,2021)
Plurality opinion; latent ambiguity existed in parties' agreements, allowing the trial court properly to consider extrinsic evidence on a claim of accord and satisfaction.
Finality of Judgments
Cathedral of Faith Baptist Church, Inc. v. Moulton, No. 1200062 (Ala. June 25,2021)
Trial court lacked authority to raise the statute of limitations as a defense and enter summary judgment thereon.
Negligence; Effect of Regulations on Duty; Contributory Negligence
Lands v. Ward, No. 1191074 (Ala. June 25,2021)
(1) "In a negligence action, it is possible for a legal duty imposed by statute or regulation to inform the common-law standard of reasonable care or to supplant it entirely/The decision of whether a violation occurred, whether such violation was negligence, and whether such negligence was the proximate cause of injury will be left to the jury. (2) Logging truck owner was subject to FMCSA regs under the multi-factor test for determining same, and thus a legal duty could be based on them. (3) Foreseeability does not require that the particular consequence should have been anticipated, but rather that some general harm or consequence should have been anticipated. (4) The record did not contain evidence that plaintiff consciously appreciated the risk associated with hot-wiring method, especially since the employer showed him the method and instructed its use.
Indemnity
Nucor Steel Tuscaloosa, Inc. v. Zurich American Ins. Co., No. 1190545 (Ala. June 25,2021)
Plurality opinion, because Nucor controlled every aspect of injured party's work, and Onin (Nucor's contract counterparty) had no supervisory employees on site at Nucor, contractual indemnity provision requiring Nucor to be indemnified from any loss "caused in whole or in part by any act or omission of Onin" "because that provision violates public policy."The entire court agreed that failure to perform a contractual duty is not negligence or wantonness.
Veil Piercing; Summary Judgment Procedure
Shorter Bros. Inc. v. Vectus 3, Inc., No. 1190876 (Ala. June 25,2021)
(1) Trial court did not abuse its discretion in denying a Rule 56(f) motion when defendants did not serve discovery until a month after the SJ hearing, nor was there any abuse of discretion in refusing to consider an untimely affidavit. (2) Trial court did not err in piercing corporate veil of SB based on alter ego, where there was evidence of undercapitalization and where defendants did not even produce copies of corporate documents to support separate existence.
Foreclosures
Pentagon Fed. Credit Union v. McMahan, No. 1191075 (Ala. June 25,2021)
PFCU (second mortgage holder) purchased M's house at foreclosure sale and sold it less than one year later. First mortgage was with Wells Fargo for $91 k; second with PFCU was $47k. Home sold for $ 157k. The dispute is over division of sale proceeds. McMahan claimed entitlement to the $91 k used to pay off Wells's first position; PFCU claimed that M could not recover that due to unjust enrichment. The trial court held for M. The supreme court reversed, holding that the doctrine of unjust enrichment prevented M. from recovering.
AMLA
Peterson v. Triad of Alabama, LLC, No. 1190982 (Ala. June 30,2021)
Plurality panel opinion. Plaintiff failed to offer expert testimony from a similarly situated health care provider; record did not contain substantial evidence linking the DVT to the PICC line, and documentary evidence purportedly establishing that fact (though not sufficient) was not shown to be authored by a similarly situated health care provider.
Rule 59.1 and Rule 60
Ex parte Caterpillar Fin. Services Corp., No. 1200332 (Ala. June 30,2021)
Trial court lacked jurisdiction to set aside default judgment on motion pending more than 90 days, per Rule 59.1 Use of Rule 60 in this context was impermissible; Rule 60 cannot substitute for appeal or be used for reconsideration of Rule 59.1 operations.
AMLA
Fletcher v. Health Care Authority of City of Huntsville, No. 1190706 (Ala. June 30,2021)
Standard of care for restraining a surgical patient who may be placed in the deep Trendelenburg position during surgery is not a matter of common knowledge or one in which a lack of skill or care would be apparent.
Timeliness of Appeals; Garnishments
Rainwater Family Trust v. Rainwater, No. 1190951 (Ala. June 30,2021)
Order directing parties to comply with terms of settlement agreement was interlocutory and injunctive under the facts, triggering ARAP Rule4(a)(l)(A)'s 14-day time limit.
Partition of Heirs Property
Stephens v. Claridy, No. 1200006 (Ala. June 30,2021)
Alabama Uniform Partition of Heirs Property Act, Ala. Code § 35-6A-1, presumes that a partition in kind can be ordered unless that would result in great prejudice to the cotenants (§ 35-6A-8(a)). If it cannot be partitioned in kind, a partition by sale is ordered. In making the determination of prejudice, the court considers the seven factors set out in § 35-6A-9(a).
Stay of Civil Proceedings
Ex parte Doe, No. 1191073 (Ala. July 9, 2021)
Premises liability defendants were not entitled to assert perpetrator's Fifth Amendment privilege as a basis for a stay of the civil case. The balancing test under Ex parte Ebbers, 871 So. 2d 776,789 (Ala. 2003), was inapplicable because movants could not invoke the privilege for the perpetrator party.
From the Court of Civil Appeals
Necessary Parties
Randolph County Comm'n. v. Landrum, No. 2190961 (Ala. Civ. App. June 18, 2021)
Before granting judgment dedicating a public road, trial court must comply with Rule 19 to join all persons who own an interest on which the road was located to the action, whether heirs or successors to the owners.
Real Property
Smith v. Dunn, No. 2200106 (Ala. Civ. App. June 25,2021)
Trial court erred by dismissing claim for mesne profits during time of wrongful possession of property, after occupiers belatedly redeemed the property.
From the United States Supreme Court
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