The Appellate Corner
| Publication year | 2015 |
| Pages | 0336 |
Wilson F. Green
Marc A. Starrett
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.
The law relating to same-sex marriage in Alabama, and elsewhere, is on rapidly shifting ground. We have not reported on this barrage of recent cases, however, because on April 28, the U.S. Supreme Court heard oral argument in Obergefell v. Hodges, No. 14-556. Obergefell will definitively decide the constitutional questions concerning same-sex marriage. Stay tuned.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Discovery
Ex parte Fairfield Nursing and Rehabilitation Center, LLC, No. 1140454 (Ala. May 29, 2015)
Requested re-depositions of witnesses were unreasonably duplicative, because the same subject matters of testimony had been covered in previous depositions.
State-Agent Immunity; Psychotherapist-Patient Privilege
Ex parte University of South Alabama, No. 1140440 (Ala. May 29, 2015)
Declaratory-judgment exception to Section 14 immunity applies to actions against state officials, not to actions against the state or state agencies. The court also granted mandamus relief as to a trial court's order for an in camera inspection of psychotherapist's records was improper, because there is no necessity or causation exception to the privilege.
Personal Jurisdiction
Ex parte Güdel AG, No. 1131341 (Ala. May 29, 2015)
Evidence tendered by Gudel on personal jurisdiction demonstrated that, contrary to the jurisdictional allegations in the complaint, Gudel's equipment was not causally linked to the injury. Plaintiff was not entitled to jurisdictional discovery because no explanation was offered as to why a counter-affidavit was not procured rebutting the no-causal-connection evidence.
Relation Back; Fictitious Parties
Ex parte Nicholson Manufacturing Ltd., No. 1130411 (Ala. May 29, 2015)
Amendment substituting machine manufacturer for fictitious party, filed five days after action commenced (at the expiration of the limitations period), did not relate back; plaintiff should have known the identity of manufacturer since it was identified in a sheriff's incident report and a pre-suit Department of Labor decision.
Review of Arbitral Award
G. Don Gordon Construction, Inc. v. Brown, No. 1131129 (Ala. June 5, 2015)
Held: (1) arbitrator did not exceed his powers in entering award for two non-signatories to arbitration, since defendants never argued to the arbitrator that he lacked such authority; and (2) arbitrator's co-counsel relationship in unrelated matter with partners of plaintiff's counsel did not establish "reasonable impression of partiality," and plaintiff's procurement of arbitrator's affidavit to counter assertion of partiality was not itself evidence of partiality.
Jury Waiver
Ex parte Acosta, No. 1140200 (Ala. June 5, 2015)
Jury waiver provisions contained in four assignment of rents documents, which applied to claims "arising out of, or based upon, this Assignment," did not apply to borrower's counterclaims for fraud and other torts arising from procurement of personal guaranty on debt.
Forum Non Conveniens
Ex parte Quality Carriers, Inc., No. 1140202 (Ala. June 5, 2015)
Autauga County PR filed wrongful death action for Autauga County decedent against interstate carrier, out-of-state carrier driver and Dallas County driver (who was driving car in which decedent was passenger), arising from MVA occurring in Autauga County. PR filed suit in Dallas County. Carrier and carrier's driver moved to transfer to Autauga County under the "interests of justice" prong of forum non conveniens, which the circuit court denied. Held: Autauga County had strongest connection to the case under the "nexus" test.
Stay of Civil Proceedings Due to Criminal Proceedings
Ex parte Butts, No. 1140438 (Ala. June 5, 2015)
Civil litigant is not automatically entitled to stay of civil proceedings after indictment; rather, the multi-factor test of Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006), determines whether a stay is warranted. Trial court had discretion to deny a stay due to the lack of substantial overlap between the facts underlying the civil and criminal matters.
Statute of Limitations; Mandamus
Ex parte Courtyard Citiflats, LLC, No. 1140264 (Ala. June 12, 2015)
Complaint accompanied by an affidavit of substantial hardship (see Ala. Code § 12-19-70), where the hardship statement had not been approved by the trial court as required by § 12-19-70(b), failed to trigger jurisdiction in the circuit court.
Insurance; Opt Out
Ex parte Alfa Mut. Ins. Co., No. 1140642 (Ala. June 26, 2015)
Plaintiff in MVA sued Alfa (his UM carrier), but not the tortfeasor. Alfa impleaded the tortfeasor (Davis) as third-party defendant, and then moved to realign the parties in order to opt out from the case, though it (Alfa) would be defending Davis. The trial court denied the motion to realign, and Alfa sought mandamus relief. The supreme court granted the writ, reasoning that under Lowe v. Nationwide, Alfa had the right to opt out and to defend the tortfeasor. The court rejected plaintiff's argument that Ex parte Littrell, 73 So. 3d 1213 (Ala. 2011), required that a UIM carrier waive any subrogation rights it might have against the UIM avoid a conflict of interest between the carrier and the party it is defending.
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