The Appellate Corner, 1117 ALBJ, 78 The Alabama Lawyer 458 (2017)
| Author | Wilson F. Green, Marc A. Starrett |
Wilson F. Green, Marc A. Starrett
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 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.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Arbitration; Non-Signatory
Nissan North America, Inc. v. Scott, No. 1160656 (Ala. August 11, 2017) and Daphne Automotive, LLC v. Eastern Shore Neurology Clinic, Inc., No. 1151296 (Ala. August 11, 2017)
In both cases, the language employed in the arbitration agreements confined covered disputes to those between signatory parties, and thus was not broad enough to encompass claims by or against non-signatories.
Arbitrability
Managed Health Care Administration, Inc. v. Blue Cross and Blue Shield of Alabama, No. 1151099 (Ala. Sept. 1, 2017)
Parties' invocation of AAA Commercial Rules in arbitration agreement, standing alone, evinced the necessary "clear and unmistakable evidence" that parties reserved all issues of arbitrability for the arbitrator, including waiver, scope and survival of arbitration after contract termination.
Forum Non Conveniens
Ex parte Alfa Mutual Insurance Company, No. 1160536 (Ala. Sept. 1, 2017)
Although insurance policy was issued and delivered in Pickens County and insured resided there, nexus of action by insured against insurer for UM benefits was Tuscaloosa County, where the accident occurred, and thus interests of justice demanded transfer.
Mortgages
Ex parte Turner, No. 1160212 (Ala. Sept. 1, 2017)
Mortgagee seeking to exercise its power of sale must do so in strict compliance with the requirements of the mortgage; mere substantial compliance is insufficient. Failure to provide notice of intent to accelerate the debt, as required by the mortgage, invalidated foreclosure sale.
Peace Officer Immunity; Municipalities
Ex parte City of Selma, No. 1160469 (Ala. Sept. 1,2017)
City, like its police officers, were entitled to Cranman immunity and peace-officer immunity {per Ala. Code § 6-5-338) from claims arising from officers' alleged misconduct in connection with lender's agent's repossession of vehicle.
Workers' Compensation; Removal of Safety Device
Saarinen v. Hall, No. 1160066 (Ala. Sept. 1, 2017)
Presence of another saw on the worksite premises that had not been installed and which was not manufactured by the manufacturer of the saw involved in injury was not the equivalent of the removal of a safety guard under Ala. Code §25-5-11(c)(2).
Restrictive Covenants
Ex parte Odom, No. 1160620 (Ala. Sept. 1, 2017)
Restrictive covenant's ambiguity is not necessarily resolved in favor of the party seeking to avoid enforcement. Rather, they must be construed according to the intent of the parties in light of the terms of the restriction and surrounding circumstances known to the parties.
Federal-State Court Relations
Ex parte Przybysz, No. 1160381 (Ala. Sept. 1, 2017)
Under Donovan v. City of Dallas, 377 U.S. 408 (1964), trial court lacked authority to direct party before it to dismiss federal action and forfeit its right to seek relief in a federal forum. (This is not to say that the federal court could not determine that the action before it was not subject to abstention.)
Physicians; Discovery
Ex parte Hunte, No. 1160164 (Ala. Sept. 1, 2017)
In civil action brought by former patient against doctor for alleged sexual assault, complaint made to State Board of Medical Examiners concerning another patient was not discoverable under Ala. Code § 34-24-60, which makes such complaints confidential.
Discovery
Ex parte Action Auto Sales, Inc., No. 1160598 (Ala. Sept. 1, 2017)
Discovery compelled by trial court of financial transactions unrelated to case was clearly excessive; personal financial privacy interests of the sole shareholder (though the shareholder was not a party and had not personally objected to the subpoena) required curtailing the subpoena to the transactions between the parties.
Forum Non Conveniens
Ex parte Dow Corning Alabama, Inc., No. 1160028 (Ala. Sept. 1, 2017)
Though the underlying injury occurred in Montgomery County, there was sufficient connection between a contractual indemnity dispute and Houston County so as not to warrant a transfer, because contract was entered into and negotiated there.
Forum Non Conveniens
Ex parte Mid South Paving, Inc., No. 1160504 (Ala. Sept. 1, 2017)
In MVA case, plaintiffs' residency in Hale County and defendants' conducting of unrelated business there did not establish nexus in Hale County; nexus was in Tuscaloosa County, where accident and injuries occurred, and thus transfer was required for interests of justice.
Class Actions; Dismissal
Hall v. Environmental Litigation Group, P.C., No. 1151077 (Ala. Sept. 1, 2017)
In a putative class action alleging breach of an attorney-client employment agreement as to an agreed-upon percentage fee for representing asbestos clients, the court reversed the trial court's"striking"of class allegations and"denial"of class claims, holding that those rulings were grants of a Rule 12(b)(6) motion as to all claims. The court held that, viewing the allegations most favorable to plaintiffs, the fee agreements did not allow the proposed additional charges for additional work and services relating to probate and bankruptcy proceedings to be assessed as expenses.
Wills and Estates; Omitted-Spouse Shares
Ivey v. Ivey, No. (Ala. Sept. 8, 2017)
Under Ala. Code § 43-8-90, if a testator's will does not provide for the testator's surviving spouse who married the testator after the execution of the will, the omitted spouse is entitled to an intestate share of the testator's estate unless one of two exceptions applies: (1) if it appears from the will that the omission of the surviving spouse was intentional or (2) if the testator provided for the surviving spouse with transfers outside the will with the intent that those transfers were in lieu of a provision in the will. Evidence was held insufficient to demonstrate that the inter vivos transfers were actually intended to be provided in lieu of a provision in the will.
Scope of Discovery
Ex parte Altapointe Health Systems, Inc., No. 1160544 (Ala. Sept. 8, 2017)
Plurality concluded that some discovery requests were privileged under the "quality assurance" privilege of Ala. Code § 22-21-8, because they concerned Altapointe's internal investigation of an incident. However, interrogatory as to whether Altapointe had knowledge of prior "aggressive acts" by attacker was relevant and could be answered without violating the psychotherapist-patient privilege. Ala. Code § 34-26-2, Ala. R. Evid. 503.
Real Property
Hinote v. Owens, No. 1160268 (Ala. Sept. 8, 2017)
Rule of repose is not a device to displace title and...
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