The Appellate Corner, 1119 ALBJ, 80 The Alabama Lawyer 478 (2019)

Author:Marc A. Starrett, Marc A. Starrett
Position:Vol. 80 6 Pg. 478
 
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THE APPELLATE CORNER

Vol. 80 No. 6 Pg. 478

Alabama Bar Lawyer

November, 2019

Marc A. Starrett, Marc A. Starrett

RECENT CIVIL DECISIONS

From the Alabama Supreme Court

False Arrest

Heining v. Abernathy, No. 1180273 (Ala. August 16, 2019)

In action for false arrest, false imprisonment, and malicious prosecution, trial court properly granted summary judgment to defendants (the complainants to the arrest); police's conducting of independent investigation into the allegations resulted in the arrest, which in turn shielded the complaining party from liability.

Service of Process; Unlawful Detainer

Ex parte Trinity Property Consultants, LLC, No. 1180642 (Ala. August 30, 2019)

Under Ala. Code § 35-9A-461(c),"if after reasonable effort no person is found residing on the premises," proper service in an unlawful detainer action is effected by posting a copy of the notice on the door of the premises and mailing notice of the filing of the unlawful detainer action by enclosing, directing, stamping, and mailing by first class a copy of the notice to the defendant at the mailing address of the premises. ..." Landlord's process server's affidavit stated he had "knocked on the door, [and that,] after [he] did not receive a response, [he] posted a copy of the Summons and Complaint on the door, then placed a stamped copy in the first class mail to the same address. "The trial court held that the act of knocking on the door and receiving no response satisfied the statutory requirement of "reasonable effort" to obtain personal service, and thus service was proper pursuant to § 6-6-332(b) and § 35-9A-461(c). The CCA, in turn, reversed the denial of Rule 60(b)(4) relief, holding that the process server's affidavit was not sufficiently specific as to when the process server was attempting service (it was on a weekday, but no time was specified). The supreme court reversed CCA in a plurality opinion, stating that reasonable effort is not defined in the statute.

Recusal

Startley General Contractors, Inc. v. B'ham Water Works Board, No. 1180292 (Ala. Sept. 6, 2019)

Ala. Code § 12-24-3, which became law in 2014, creates a rebuttable presumption for judicial recusals in the event a litigant or counsel contributes certain percentages of a judicial candidate's campaign revenues in an "election cycle." Interpreting the material provisions of that statute for the first time, the court per curiam held that the "election cycle" encompasses the entire time period in which the judicial candidate is raising money up through the election, and is not confined to any reporting period for disclosure of campaign contributions (whether monthly or 90-day cycles).

Arbitration; Change of Terms; Arbitrability

Blanks v. TDS Telecommunications LLC, No. 1180311 (Ala. Sept. 6, 2019)

Customers had Internet service contracts with provider which (a) contained AAA Commercial Rules clause, and (b) stated that provider could change terms of service, and that continued use of the service after receipt of change of terms constituted consent to those terms. After customers (through counsel) notified provider that arbitrations would be commenced to adjudicate claims, provider then issued change of terms eliminating arbitration from the customers' agreements. Issue: whether arbitration agreements were enforceable. Held: whether the updated terms of service validly "terminated" the arbitration clause as to the customers' claims is an issue of arbitrability that was delegated to an arbitrator.

Venue; Forum Non Conveniens

Ex parte KKE, LLC, No. 1180074 (Ala. Sept. 13, 2019)

While driving a truck for his employer, KKE (in Bibb County), Sanders (Bibb County resident) had accident in Chilton County, causing deaths of plaintiffs (residents of Montgomery County). Plaintiffs sued Sanders and KKE in Bibb County Circuit Court. KKE and Sanders moved to transfer to Chilton County, contending that it was substantially more convenient to litigate there because trooper who investigated the accident was from Montgomery County, and it would be more convenient for trooper to testify there. Plaintiffs opposed and submitted two affidavits from two non-party witnesses who lived in Montgomery County, who stated there was no significant difference to them between traveling to Bibb County or to Chilton County for testifying. Trial court denied transfer, and defendants sought mandamus relief. The supreme court denied the writ, reasoning as follows: (1) as for a "convenience of parties and witnesses" transfer, defendants had not demonstrated that Chilton County was "significantly more convenient" for all parties, given testimony of non-party witnesses; (2) The operative test for an "interests of justice" transfer is that "the underlying action must have both a 'strong' connection to the county to which the transfer is sought and a 'weak' or 'little' connection to the county in which the case is pending...."

Ex parte Tyson Chicken, Inc., Ms. 1170820 (Ala. May 24, 2019)

Here, both Bibb and Chilton counties had strong connections. Under Ex parte J & W Enterprises, LLC, 150 So. 3d 190 (Ala. 2014), where a negligent hiring and retention claim is asserted, the employer's home county may provide the requisite strong connection as the location where employment decisions are made.

Venue; Forum Non Conveniens

Ex parte Reed, No. 1180564 (Ala. Sept. 13, 2019)

Watwood (Cullman resident) sued Reed (Jefferson resident) in the Jefferson County Circuit Court arising from MVA occurring in Marshall County. Marshall County officials responded to the accident; non-party witnesses were from Marshall and Blount counties. Reed moved for a forum non conveniens transfer to Marshall County, which the Jefferson County Circuit Court denied. Reed sought mandamus relief. The supreme court granted the writ, reasoning the underlying action's only connection to Jefferson County was the fact that the defendant individual resided there-a connection that, by itself, the court has repeatedly characterized as weak. See Ex parte Benton, 226 So. 3d 147, 151 (Ala. 2016).

Third-Party Spoliation

Imperial Aluminum-Scottsboro, LLC v. Taylor, No. 1171133 (Ala. Sept. 20, 2019)

Taylor, while employed by Imperial, injured his right index finger while using a paint sprayer manufactured by Graco and sold by Sherwin-Williams; the injury resulted in amputation. Three months after the injury, Taylor's counsel sent a letter to Imperial, requesting preservation of the sprayer. Taylor sued Graco and SW, shortly after which Imperial advised that the sprayer had been disposed of in December 2010, one month before counsel's letter. In a bench trial, the trial court found that the sprayer had initially been stored after the letter from counsel, but then discarded it. The trial...

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