The Appellate Corner
| Jurisdiction | Alabama,United States |
| Citation | Vol. 76 No. 2 Pg. 0130 |
| Pages | 0130 |
| Publication year | 2015 |
By 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.
By 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
Gambling
Houston County EDA v. State, No. 1130388 (Ala. Nov. 21, 2014)
The court affirmed per curiam the circuit court's condemnation of 600-plus machines as being illegal gambling devices. The primary issue in the case was whether the machines played "bingo," as defined in the case law. Employing the six-factor test of Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 78 (Ala. 2009), the court concluded that the evidence before the circuit court confirmed that the six factors were not satisfied.
Fraud; Statute of Limitations
Tender Care Veterinary Hospital, Inc. v. First Tuskegee Bank, No. 1131078 (Ala. Nov. 26, 2014]
In breach of fiduciary duty cases arising from an actual trust relationship, the statute of limitations has been held not to begin running until termination of the trust relationship. In this case, the court held that in cases alleging a breach-of-fiduciary-duty claim not involving a trust arrangement, the statute of limitations begins running when the aggrieved party was damaged.
Emblements
Paint Rock Turf, LLC v. First Jackson Bank et al., No. 1130480 (Ala. Nov. 26, 2014]
This case involves a claim to emblements, under Ala. Code § 35-9-2, to a defaulted mortgagor (debtor/landowner, the sod farm) and mortgagee (creditor-the bank). The statute provides: "The tenant at will is entitled to his emblements, if the crop is sowed before notice to quit by the landlord, or the tenancy otherwise suddenly terminated, as by sale of the estate by the landlord, or by judicial sale, or death of the landlord or tenant." (Emphasis added.) In Lamar v. Johnson, 81 So. 140 (1919), the court held that a defaulted mortgagor who was permitted to remain on the land by its mortgagee assumed the status of a tenant at will. In this case, the court concluded that the automatic stay imposed by 11 U.S.C. § 362 as a result of Paint Rock's bankruptcy did not create a tenancy at will, and therefore the trial court correctly granted a JML to the creditor bank on the emblements claim.
Spousal Elective Shares; Timeliness of Election
Saylor v. Saylor, No. 1120848 (Ala. Dec. 5, 2014)
Held: (1) PR of estate was not required to take appeal from order of probate court which extended the time for wife to seek elective spousal share and granting spousal share, but not determining the amount of the share; even assuming that Ala. Code § 12-22-21(4) applied to an elective share, the court had not set an amount, and thus the order was not one "compel[ling] the payment of a legacy or distributive share;" (2) in wife's appeal from circuit court's order dismissing wife's petition for elective share, the circuit court did not abuse its discretion in refusing to extend the six-month limitation of Ala. Code § 43-8-73 to make a decision regarding taking an elective share, because although an accurate inventory and accounting for the estate would have enabled her to make an "intelligent choice," the legislature has not required that an inventory and accounting be filed as a precondition to triggering the elective share time periods.
Lost-Profit Damages
Deng v. Scroggins, No. 1121415 (Ala. Dec. 5, 2014)
Jury's damage award of $1.5 million compensatory lost profits was speculative, based on extrapolations largely made in argument by counsel, and was not sufficiently grounded in competent opinion evidence as to the value of the product or profits associated with sales, and therefore new trial was necessary on that issue.
Venue; Residence and Domicile
Ex parte Progressive Direct Insurance Company, No. 1130805 (Ala. Dec. 5, 2014]
Petition for mandamus granted; Wilcox County Circuit Court directed to transfer action to Tuscaloosa County Circuit Court, in action arising from MVA occurring in Tuscaloosa by Robinson (whose residency was in issue)...
To continue reading
Request your trial