The Appellate Corner

Publication year2018
CitationVol. 79 No. 4 Pg. 0288

Vol. 79 No. 4 Pg. 288

The Alabama Lawyer

July, 2018

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.


From the Alabama Supreme Court

Arbitration; Discovery

Ex parte Alfa Ins. Corp., No. 1170077 (Ala. April 6, 2018)

Circuit court exceeded its discretion in allowing merits discovery to proceed, and to enter orders compelling same, during pendency of appeal of order denying arbitration. Even though the supreme court had eventually affirmed the circuit court's denial of arbitration, error in allowing discovery was not harmless, because parties had changed substantive positions on some discovery-related issues, which changes could impact the trial court's rulings on discovery issues.

Timeliness of Appeal; Mootness

Irwin v. Jefferson County Personnel Board, No. 1161145 (Ala. April 20, 2018)

Action seeking only injunctive relief did not become moot upon trial court's denial of TRO or preliminary injunction, because they were not case-terminating orders. However, action had become moot because plaintiff was seeking an injunction to bar city from administering new examination for police chief position and appointment of a candidate from a previously-certified list, and city had, in the interim, appointed a new chief not from the list and had administered the examination.

Professional Corporations

Lynd v. Marshall County Pediatrics, P.C., No. 1060683 (Ala. April 27, 2018)

Issue-whether, for purposes of a shareholder bylaw, a shareholder leaving a professional practice was entitled to "book value" or "fair value" for her shares of stock. The original bylaw (from 1978) provided that shareholder agreement would determine method of valuation "in lieu of" applicable Alabama law (which at the time was Ala. Code § 10-4-228, providing for "book value"). At the time of buy-out, however, no such agreement existed. And, Ala. Code § 10-4-228 was superseded in 1984 by § 10-4-389, which changed to "fair value" (now at § 10A-4-3.02). Held: in the absence of any shareholder agreement, the valuation determination would be made by applicable law, which would normally be the law as of the time of contract-but in this case, given that the shareholders intended to reject the then-applicable valuation method, the shareholders could not be deemed to have embraced the "book value" method in perpetuity.


Ex parte International Paper Co., No. 1170458 (Ala. April 27, 2018)

The court issued a writ of mandamus, directing the trial court to rule on pending and unadjudicated motion to dismiss based on enforcement of an outbound forum selection clause. Trial court exceeded its discretion in setting merits discovery deadlines and denying a motion to continue the trial date, and otherwise presiding over ongoing litigation, while "taking under advisement" the pending motion regarding the forum-selection clause without ruling.

Standing; Wrongful Death

Watson v. UAHSF, No. 1170057 (Ala. April 27, 2018)

Legally-appointed personal representative who has been discharged and released as PR of estate no longer has capacity to bring a wrongful-death action. Probate court's order (entered after PR brought the wrongful death action) modifying the PR's discharge to leave open authority to bring action was improper under Rule 60(a), and thus order was ineffective.


Eickhoff Corporation v. Warrior Met Coal, LLC, No. 1161099 (Ala. May 4, 2018)

Because arbitration agreements invoked AAA commercial rules, issues of arbitrability (created because some documents between the parties contemplated "legal proceedings") would be decided by an arbitrator, not the court.


Suggs v. Gray, No.1161118 (Ala. May 4, 2018)

Among other holdings, circuit court had jurisdiction to adjudicate DJ action originally filed in the circuit court under Ala. Code § 6-6-225(3), seeking an equitable division of proceeds as between H's and W's estates, even though the disputes could have potentially been also raised as "claims" in the respective estates before the probate court. However, probate court had exclusive jurisdiction over the disposition of certain CDs and necklace, which were estate assets, and circuit court thus lacked jurisdiction over those claims.


Ansley v. Inmed Group, Inc., No. 1160465 (Ala. May 4, 2018)

In affirming a judgment on jury verdict for defendants physicians and local hospital in medical liability action, trial court did not abuse its discretion in allowing defendants to admit evidence concerning size, capability and financial condition of hospital, where plaintiff sought to adduce on direct examination of hospital administrator that hospital was putting financial gain over patient care; plaintiff opened the door to such evidence on cross.

Taxpayer Standing

Richardson v. Relf, No.1170559 (Ala. May 4, 2018)

Circuit court had no jurisdiction over taxpayer action brought against state superintendent, acting as interim superintendent of Montgomery Schools under its state takeover pursuant to the Educational Accountability and Intervention Act of 2013 ("EAIA"), codified at Ala. Code § 16-6E-1, seeking to enjoin sale of school properties to Town of Pike Road. Although taxpayers have standing in Alabama to challenge an expenditure of public funds, the action being challenged in this case (the sale of property) would bring in funds to the public. In a special concurrence written by Justice Main (and joined in by a majority of the court), the court noted that, even if there were standing, the state superintendent had authority under the EAIA to sell the properties.

State Immunity

Ex parte Board of Trustees of Univ. of Ala., No. 1170183 (Ala. May 18, 2018)

UA Board is absolutely immune from suit under Section 14 of the Alabama Constitution; that immunity is not subject to waiver and deprived the circuit court of subject matter jurisdiction to take any action, including compelling arbitration of claims against the board where the board had not moved to compel such arbitration, but instead had moved for dismissal based on Section 14 immunity.

Default Judgments

Ex parte Ward, No. 1170142 (Ala. May 18, 2018)

Movant seeking to set aside default must allege and provide arguments and evidence regarding all three of the Kirtland factors. Bare legal conclusions unsupported by affidavit or other evidence do not suffice to...

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