The Appellate Corner
| Publication year | 2016 |
| Pages | 0052 |
| Citation | Vol. 77 No. 1 Pg. 0052 |
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 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
Fictitious Parties; Relation Back; State Immunity
Ex parte Talbott, No. 1140596 (Ala. Sept. 30, 2015)
Petition for mandamus granted, directing trial court to grant motion to dismiss. Claims subject to two-year statute asserted against parties substituted for fictitious entities were time-barred because (1) plaintiff failed to show she was unaware of the identities of the defendants when she filed the original complaint, (2) the original complaint did not describe the fictitious parties' conduct and (3) plaintiff did not exercise due diligence in ascertaining the identities of the parties. Other claims (by ex-professor at University of South Alabama against co-employees) were barred by section 14 immunity because plaintiff admitted that the logbook belonged to USA, and thus the complaint for damages and return of the logbook was against the State.
Public Employment; Employment Law
Johnson v. City of Mobile, No. 1140433 (Ala. Sept. 30, 2015)
In Title VII retaliatory discrimination and ADA case, EEOC findings are merely an item of evidence, which can be weighed against other evidence, and are not entitled to preclusive effect. Trial court's no-retaliation determination was not clearly erroneous, because unsatisfactory job review, without tangible consequences, was not adverse employment action.
Public Employment
Ex parte Hampton, No. 1140341 (Ala. Sept. 30, 2015)
Section 14 immunity barred money damage claims by non-tenured teacher against superintendent because superintendent cannot make termination decisions unilaterally.
Arbitration; Capacity (Nursing Home Contracts)
Diversicare Leasing Corp. v. Hubbard, No. 1131027 (Ala. Sept. 30, 2015)
PR of profoundly intellectually disabled decedent filed wrongful death action against facility operator. In his admission documents, PR (mother of decedent) executed the documents as decedent's "Responsible Party." Arbitration agreement was signed by mother as "Resident's Representative," but mother/PR did not have a POA or guardianship power. Operator moved to compel arbitration, which PR opposed, claiming lack of legal authority to bind decedent because decedent was incapacitated but over 21, and PR had no POA or guardianship power. The circuit court denied arbitration. The supreme court affirmed, reasoning that resident lacked capacity to contract for himself or to hold out mother as his representative, and mother lacked authority to conduct business for resident.
Elections; Determination of Domicile (Students)
Horwitz v. Kirby, No. 1130246 (Ala. Sept, 30, 2015)
In determining residency for eligibility to vote under Ala. Code § 11-46-38(b), a college student makes the college town her new domicile only if she shows (1) a decided intention to abandon one's former domicile as such, and (2) a "certain state of mind" as to making the new locale one's home.
Medical Liability; Sexual Abuse of Patient Not Subsumed into AMLA
Ex parte Vanderwall, No. 1130036 (Ala. Sept. 30, 2015)
The court overruled Mock v. Allen, 783 So. 2d 828 (Ala. 2000); sexual assault claims allegedly occurring during the course of treatment are not subsumed by the AMLA. There is an interesting parry-and-thrust in concurrence and dissent between Justices Murdock and Shaw, regarding the propriety of overruling prior decisions when a litigant has not asked the court for such relief.
Summary Judgment Procedure
Krause v. Vanderbilt Minerals, LLC, No. 1121382 (Ala. Sept. 30, 2015)
In asbestos exposure case, the court reversed trial court's summary judgment to defendant, reasoning that the motion did not inform plaintiff of lack of evidence as to asbestos-containing status of the subject talc. Plaintiff presented substantial evidence of asbestos-containing in its Rule 59(e) motion, which properly brought this evidence to the court, and was not improperly tardy.
Professional Negligence (Appraisers); Juror Misconduct
Riverstone Development Co., Inc. v. Garrett & Associates Appraisals, Inc., No. 1140555 (Ala. Oct. 23, 2015)
The court extended that rule requiring expert testimony for professional negligence matters against real-estate appraisers requires expert testimony as to the standard of care and breach...
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