The appellate corner, 1118 ALBJ, 79 The Alabama Lawyer 438 (2018)

PositionVol. 79 6 Pg. 438

The appellate corner

Vol. 79 No. 6 Pg. 438

Alabama Bar Lawyer

November, 2018

The appellate corner

Wilson F. Green

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

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

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.

Forum Non Conveniens

Ex parte Roy Moore, No. 1170638 (Ala. Aug. 17, 2018)

interests of justice did not compel a forum non conveniens transfer of defamation case from Montgomery to Etowah county; some allegedly defamatory statements were made in Montgomery county, and none were made in Etowah county. a specially-convened court decided the case.

Juror Misconduct

Ankor Energy, LLC v. Kelly, No. 1151269 (Ala. Aug. 24, 2018)

Trial court exceeded its discretion in granting new trial motion based on alleged juror misconduct absent an admissible juror affidavit indicating that her misconduct was prejudicial. one submitted affidavit was not sworn and therefore inadmissible, and subsequent affidavits clarified that juror did not share the results of her improper outside research with other jurors, nor did the research influence even her own decision-making.

relation Back of amendments

Ex parte Integra Life Sciences Corp., No. 1170692 (Ala. Aug. 24, 2018)

amendment substituting integra for fictitious party did not relate back; plaintiff failed to exercise reasonable diligence in substituting because plaintiff possessed operative report at time complaint was filed identifying surgimend, and a simple internet query would have revealed that integra manufactures that product.


Ex parte Montgomery County Bd. of Educ., No. 1170733 (Ala. Aug. 24, 2018)

county board of education is entitled to section 14 state immunity.

Notice of local laws

Burnett v. Chilton County Health Care Auth., No. 1160938 (Ala. Aug. 31, 2018)

section 107 of the constitution explicitly requires that any repeal of a local act must specifically be disclosed in a section 106 notice relating to the new legislation; the section 106 notice relating to act 2014-422 did not provide notice of the repeal of act 2014-162 and was therefore unconstitutional.

abatement; Third-party Claims

Nettles v. Rumberger, Kirk & Caldwell, P.C., No. 1170162 (Ala. August 31, 2018)

(1) overruling Hanner v. Metro Bank & Prot. Life Ins. Co., 952 so. 2d 1056, 1060 (Ala. 2006), and following Hall v. Hall, 584 u.s. ___, 138 s.ct. 1118 (2018), judgment disposing of all claims in one of a number of consolidated actions is final as to that action and immediately appealable, because in consolidated actions, the separate actions retain their separate character; (2) Ala. Code § 6-5-440 barred claims by Nettles against “Parties” asserted in separate action which fell outside the scope of permissible third-party practice and asserted by Nettles against parties in a prior action, where a non-final summary judgment had been entered on the third-party complaint asserting some of Nettles’s claims, because the lack of finality rendered the claims still pending for purposes of section 6-5-440, and the maintenance of two separate actions constituted improper claim-splitting by Nettles.

venue; governmental Entities

Ex parte Board of Water and Sewer Commissioners of the City of Mobile, No. 1170400 (Ala. Aug. 31, 2018)

even absent a specific statutory venue provision, the general common-law rule is that an action against a governmental entity is properly maintained in the county where the governmental entity officially resides.

relation Back; fictitious parties

Ex parte American Sweeping, Inc., No. 1170461 (Ala. Aug. 31, 2018)

Plaintiff failed to exercise due diligence in substituting ASI for the fictitious party; ASI’s identity was available even before suit, just after the accident, on the face of the accident report.

peace Officer immunity

Ex parte City of Montgomery, No. 1170103 (Ala. Aug. 31, 2018)

officer was entitled to immunity for claims arising from mva where lights and sirens were engaged in responding to emergency call. Plaintiff’s testimony as offered to create a factual issue was contradicted by the dashboard video camera evidence and therefore should not have been considered: “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 u.s. 372, 380 (2007).

Easements; Takings

Portersville Bay Oyster Company, LLC v. Blankenship, No. 1161101 (Ala. Aug. 29, 2018)

although no statutory procedure exists for the alleged taking by reason of the dissemination of sediment and silt from the activities of the state contractors, the claim is nevertheless cognizable, overruling Ex parte Carter, 395 so. 2d 65, 67 (Ala. 1980). because leasehold interests can be taken by eminent domain, and therefore by inverse condemnation, it correspondingly follows that easements, another real-property interest allowing the use of a property right held by the owner of the land, can be taken by eminent domain and therefore by inverse condemnation.

discovery; assertion of privilege

Ex parte Estate of Elliot, No. 1170564 (Ala. Sept. 7, 2018)

rule 26(b)(6) requires that a party claiming privilege provide a sufficient description of the materials being withheld in order for the party seeking discovery to challenge the claim of privilege; trial court could not properly deny motion to compel when claim of privilege was not supported by any evidence.

Immunity; Bar Complainants

D.A.R. v. R.E.L., No. 1151080 (Ala. Sept. 7, 2018)

Ala. R. Disc. P. 15 affords absolute immunity from suit to a bar complainant–even for claims that are allegedly intentionally false and malicious. state bar assistant general counsel was entitled to quasi-judicial immunity from suit.

Discovery; Overbreadth

Ex parte Dolgencorp, LLC, No. 1161003 (Ala. Sept. 14, 2018)

Party opposing discovery made sufficient showing that discovery of substantially similar accidents in nationwide search would be unduly burdensome, requiring about 10,000 hours of work at a cost of between $270,000 and $300,000; trial court on remand was directed to limit the discovery to alabama stores. Justice shaw concurred, noting that alabama-based discovery rather than nationwide discovery is the “default” position in alabama case law.

Probate v. Circuit Court Jurisdiction

Estate of Williams v. Loveless, No. 1170392 (Ala. Sept. 14, 2018)

after will was admitted to probate, interested party petitioned probate court for removal of action to circuit court, which probate court granted, and after which circuit court assumed administration. held: under DuBose v. Weaver, 68 so. 3d 814 (Ala. 2011) and Ala. Code § 12-11-41, circuit court never obtained jurisdiction because petition for removal of administration is made to the circuit court, and the circuit court must grant it.

Future advance mortgages; priority

GHB Construction and Development Company, Inc. v. West Alabama Bank and Trust, No. 1170484 (Ala. Sept. 21, 2018)

The plurality held that a “future-advance mortgage does not create a mortgage lien until some indebtedness is incurred by the mortgagor under the future-advance mortgage.” Thus, the plurality opinion concluded that “because Wabt’s mortgage lien was created after Ghb’s materialman’s lien, Wabt’s mortgage lien never had priority over ghb’s materialman’s lien.” Justice shaw’s special concurrence noted that the ultimate outcome might be different if, as could possibly be proven, Wabt had an obligation to lend some funds upon execution of the future advance mortgage, and nothing in the plurality opinion would foreclose that result. (Note: an application for rehearing was pending at press time).

Trade fixtures; security interests

Pipkin v. Sun State Oil, Inc., No. 1160850 (Ala. Sept. 21, 2018)

gas pumps were fixtures which transferred to new owner upon transfer of title, and were not trade fixtures (which retain their personal property status) because they were not provided in connection with a landlord tenant relationship (the opinion explains...

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