The Appellate Corner
| Publication year | 2023 |
| Citation | Vol. 84 No. 6 Pg. 0366 |
| Pages | 0366 |
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.
J. Thomas Richie is a partner at Bradley Arant Boult Cummings LLP, where he co-chairs the class action team. He litigates procedurally-complex and high-stakes matters in Alabama and across the country. Richie is a 2007 summa cum laude graduate of the Cumberland School of Law and former law clerk to the Hon. R. David Proctor of the United States District Court for the Northern District of Alabama.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
AMLA
In re Woodard, No. 1210175 (Ala. May 5, 2023)
In a case claiming that the defendants unlawfully obtained the plaintiff's records of psychological treatment, the court held that the Alabama Medical Liability Act did not apply to require a change of venue because the defendants did not either (1) demonstrate that the complaint could not support a reasonable inference of the lack of a medical reason for the defendants' obtaining the medical records or (2) submit their own evidence supporting such a medical reason. The court also held that the defendants did not carry their burden of obtaining mandamus relief related to the trial court's order requiring them to return or destroy records summarizing the records at issue. Note: four justices concurred in the result, one concurred specially with opinion, and two dissented.
Arbitration
Alabama Somerby, LLC v. L.D., No. SC-2022-0828 (Ala. May 12, 2023)
One person executed an arbitration agreement on behalf a person diagnosed with dementia. The Alabama Supreme Court reversed the trial court's decision not to compel arbitration, holding that the executing party had apparent authority to enter the agreement and that the principal had not demonstrated her lack of capacity to grant authority to the agent. The principal suffered from dementia, but the Alabama Supreme Court found such an informal diagnosis insufficient to establish legal incompetency.
Taylor v. Methodist Home for the Aging, No. SC-2022-0681 (Ala. May 12, 2023)
The court held that an arbitrator's decision to rule against the plaintiff and not to accept the plaintiff's proffered expert witness did evidence partiality the arbitrator under 9 U.S.C. § 10(a)(2).
Hyundai Construction Equipment Americas, Inc. v. Southern Lift Trucks, LLC, Nos. SC-2022-0675 et al. (May 12, 2023)
The court reversed the trial court's decision not to compel arbitration of non-declaratory judgment claims and reversed the trial court's decision to enter an injunction as to equipment the plaintiff was not selling. The trial court's decisions were otherwise affirmed. Note: the main opinion was joined by three justices, with one justice partially dissenting and four justices concurring in the result.
Women's Care Specialists, P.C. v. Potter, No. SC-2022-0706 (Ala. May 19, 2023)
Contract and tort claims were required to be arbitrated because the court found that the arbitration clause covering "any and all disputes related in any manner whatsoever to [the plaintiff's] employment" was broad enough to cover claims of breach of contract, defamation, and tortious interference. The Alabama Supreme Court also found that the arbitration obligation survived termination of the plaintiff's contract in light of a provision that termination would not "not affect any liability of any other obligation of either party to the other which may have accrued prior to such termination." The judgment of the circuit court was reversed.
Premises Liability
Byrne v. Fisk, No. SC-2022-0560 (Ala. May 19, 2023)
The court reversed summary judgment for the defendant on a premises liability claim, determining that genuine issues of material fact existed as to the existence of a defect on the property, the defendant's knowledge of the defect, proximate cause, and whether the hazards were open and obvious.
Immunity
Ohio Valley Conference v. Jones, No. SC-2022-0930 (Ala. May 19, 2023)
Because it characterized a conference resignation fee as form of liquidated damages, the Alabama Supreme Court found that two university officials were not immune from suit in their official capacities; however, the court found the officials immune in their individual capacities.
Lis Pendens
Ex parte MUSA Properties, LLC, No. SC-2022-1061 (Ala. May 19, 2023)
The court issued a writ of mandamus directing the circuit court to vacate an order expunging a lis pendens notice relating to a property at issue in the case. The trial court had expunged the lis pendens because it granted partial summary judgment on the claim relating to the property, but the supreme court held that the circuit court should have waited until that summary judgment order was final because the order could be reversed on appeal.
Tax Sale / Redemption
Ex parte King, No. SC-2022-0653 (Ala. May 19, 2023)
Recognizing that the term "preservation improvements" as used in Alabama Code § 40-10-122 was taken verbatim from the definition of "permanent improvements" in the foreclosure redemption statute, the Alabama Supreme Court affirmed the court of civil appeals' decision to require a redeeming party to pay for valuable and useful additions to the property to be redeemed over and above the amounts necessary for ordinary repairs.
Workers' Compensation
Ex parte Midsouth Paving, Inc., No. SC-2022-0860 (Ala. May 19, 2023)
Finding that a defendant had introduced unrebutted substantial evidence that the plaintiff was a "special employee" of that defendant, the court issued a writ of mandamus directing the circuit court to grant summary judgment for the defendants on workers' compensation immunity grounds. The plaintiff was employed through a temporary employment agency, signed a contract stating that she would be a special employee, and the special employer contributed to her workers' compensation insurance premiums.
Rule 60
Womble v. Moore, No. SC-2022-1018 (Ala. May 19, 2023)
The Alabama Supreme Court found that the trial court did not abuse its discretion in failing to excuse the pro se plaintiffs from missing their trial date.
Penrose v. Garcia, No. SC-2022-0871 (Ala. June 16, 2023)
The court construed a motion to reconsider or relief under Rule 60(b) as a Rule 60(b) motion, meaning that an appeal within 42 days of its denial was timely. Nevertheless, the court affirmed the denial of that Rule 60(b) motion, finding that the plaintiffs failed to demonstrate that the circuit court's dismissal of their case for failure to participate in discovery entitled them to relief.
Ex parte Huntingdon College, No. SC-2023-0001 (Ala. June 1, 2023)
The court held that a Rule 60(b)(5) motion filed 17 years after a consent judgment was not filed within a reasonable time. It reasoned that, even though the judgment permitted the parties to seek judicial instructions regarding the property subject to the judgment, the trial court did not have a clean slate to interpret and enforce that judgment. The court also noted that changes in the economy (specifically, the economic effects of the 2008 financial crisis) did not open the door for relitigation of the merits of the judgment
Real Property
Ammons Properties, LLC v. Spraggins, No. SC-2022-0821 (Ala. May 19, 2023)
The court affirmed the circuit's order that a tract of property had an easement of necessity crossing a tract to its north, even though the property had previously been foreclosed upon, noting "an easement encumbers the servient, not the dominant, tenement." The court affirmed judgment for the plaintiff on all the defendant's counterclaims as well.
Wrongful Death
Sampson v. HeartWise Health Sys, Corp., No. SC-2022-0847 (Ala. May 26, 2023)
Among other rulings, the court reversed the entry of summary judgment on a plaintiff's negligence-based wrongful death claim when it found that the defendants to that claim had not moved for summary judgment as to it. It also held that a fraud-based wrongful death claim was not barred by Alabama Code § 6-5-462, distinguishing between a fraud claim (which could have been barred) and a fraud-based wrongful death claim (which accrues only upon death).
Limitations
Protective Life Ins. Co. v. Jenkins, No. SC-2022-1047 (Ala. July 17, 2023)
The court held that a company's claim to recover amounts paid to the defendant in error was a claim for the recovery of wages governed by Alabama Code § 6-2-38(m)'s two-year statute of limitations. The court reasoned that the amounts paid to the defendant were the result of a data entry error, not any work by the defendant, so they could not be wages.
Appellate Procedure
Ex parte Seibert, No. SC-2023-0234 (Ala. June 2, 2023)
The Alabama Supreme Court denied a writ of certiorari to an appellant seeking to challenge a ruling from the Alabama Court of Civil Appeals that a notice of appeal filed in the appellate court (instead of the trial court) is not a timely filing.
Injunctions
Ingenuity Int'l, LLC v. Smith, No. SC-2022-0501 (Ala. June 16, 2023)
The Alabama Supreme Court construed a trial court's order as imposing both a preliminary and permanent injunction when it entered an order requiring the defendant to either pay a disputed sum to the plaintiff or else deposit a larger sum with the clerk of court pending litigation of the merits. The court construed the first option as amounting to an improper grant of summary judgment for the plaintiff when...
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