The Appellate Corner
| Jurisdiction | Alabama,United States |
| Citation | Vol. 79 No. 5 Pg. 0362 |
| Pages | 0362 |
| Publication year | 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.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Election Law
Veitch v. Vowell, No. 1170723 (Ala. June 1, 2018)
Jurisdiction stripping statute, Ala. Code §17-16-44, under which "[n]o jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute," did not apply to candidate's claim he was wrongfully denied right to have his name included on a ballot, pursuant to an act he alleges is void.
Reformation; Mutual Mistake
G.R.L.C. Trust v. Garrison Decatur Crossings, LLC, No. 1170315 (Ala. June 15, 2018)
Trial court properly granted petition for reformation of recorded memorandum of lease based on mutual mistake, in the failure to record an "Exhibit A" containing a legal description of the leasehold. Clear and convincing evidence demonstrated that both parties knew the premises subject to the leasehold, and that their intent was to record the memorandum of lease with the legal description attached, but that through clerical error it was never recorded.
Rule 54(B) Certification Improper
Richardson v. Chambless, No. 1170263 (Ala. June 15, 2018)
The court dismissed an appeal as being from an improper Rule 54(b) certification; resolution of pending claims regarding an allegedly faulty inspection could potentially moot the claims adjudicated by the trial court's partial summary judgment, and, thus, the remaining claims were intertwined with claims disposed of.
Wantonness (Statute of Limitations)
Beddingfield v. Mullins Insurance Co., No. 1170143 (Ala. June 15, 2018)
Because plaintiff's claims accrued before June 3, 2011, their wantonness claims were subject to a six-year statute of limitations under Ex parte Capstone, while negligence claims were properly dismissed based on the applicable two-year statute of limitations.
Will Contests
Colley v. Dees, No. 1170042 (Ala. June 15, 2018)
Plaintiff could establish prima facie case of lack of testamentary capacity based on lay testimony. Under Sanders v. Brooks, 611 So. 2d 336 (Ala. 1992), lay testimony can outweigh even medical testimony on the issue.
Stay of Civil Proceedings Pending Criminal Proceedings
Ex parte Decatur City Bd. of Educ., No. 1170017 (Ala. June 22, 2018)
Under Ala. Code § 16-24C-6(j), in a teacher termination proceeding, no testimony of the teacher may be admitted in a criminal proceeding. Nevertheless, teacher brought action against board to enjoin teacher termination proceeding, due to pendency of criminal charges against teacher. Trial court granted the injunction. Afterward, teacher (in her criminal case) then successfully challenged the constitutionality of the underlying criminal statute (statute concerned teacher engaged in sex act with student under 19), and trial court in the criminal case dismissed the charges. State appealed that decision (appeal is pending). Board moved to dissolve the injunction based on the Code section prohibiting admission of any teacher testimony in the parallel criminal case, and based on the change of circumstances, which the trial court denied. The supreme court reversed, holding that the change of circumstances, coupled with the statute's rendering all teacher testimony inadmissible in a criminal case, gave teacher adequate protection of her Fifth Amendment rights.
Relation Back of Amendments
Ex parte Brookwood Health Services, Inc., No. 1170054 (Ala. June 22, 2018)
Even assuming there was an identity of interests between Brookwood Health Services, Inc. and Brookwood Baptist Health, LLC (the originally-named defendant), the claim against the Inc. did not relate back to original filing against the LLC, thus rendering the medical-liability claims time-barred. Under Rule 15(c), "within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment" must have received notice of the action. Plaintiff did not serve the LLC (the original defendant) until 128 days after commencement, and the Inc. was not served until five months later.
Venue; Forum-Selection Clauses
Ex parte Consolidated Pipe & Supply Co., Inc., No. 1170050 (Ala. June 22, 2018)
Consolidated (pipe supplier) sued Bolt (its contractor) and Ohio Casualty (Bolt's bonding company) in Morgan County, seeking compensation for pipe supplied to a public works project in Morgan County subject to the Alabama Little Miller Act. Bond contained provision mandating venue for any action where the project occurred. Defendants moved to transfer venue to Jackson County, contending that Bolt is situated in Jackson County and that it was the only proper venue in Alabama for the action, and also asserted forum non conveniens as an alternative. Trial court granted the motion to transfer, and Consolidated petitioned for mandamus. The supreme court granted the writ, rejecting defendants' argument that Consolidated was not a proper "claimant" under the bond, and that the forum selection clause in the bond mandated venue in Morgan County. The court further noted that forum non conveniens arguments are not sound where a contractual forum selection is mandatory.
Products Liability
DISA Industries, Inc. v. Bell, No. 1160339 (Ala. June 29, 2018)
While employed by Anniston Foundry, Bell was injured while misstepping over a trough not protected by guardrails and holding molten iron, which led to the medically-necessitated amputation of toes on his foot. He sued DISA, the manufacturer and designer of the molding system containing the trough, under AEMLD and on negligence theories. The jury returned a verdict of $500,000. The supreme court reversed, holding that as to the AEMLD claim, the undisputed evidence was that DISA was not the "manufacturer" of the modified trough not protected by guardrails-instead, that was Union Foundry, Bell's employer. As to the negligence claim, the undisputed evidence showed that the molding system (DISA) was separate and distinct from the furnace system (of which the trough was a part), and, thus, DISA's duty did not extend into a system which it did not design and which it had no contractual duty to inspect or modify.
Wrongful Death; Standing
Ex parte Continental Motors, Inc., No. 1170165 (Ala. June 29, 2018)
The court adopted Justice Bolin's special concurrence from Golden Gate National Senior Care, LLC v. Roser, 94 So. 3d 365 (Ala. 2012), under which an administrator ad litem appointed under § 43-2-250 "lacks the capacity of a 'personal representative'" under § 6-5-410, and, thus, an AAL appointed by the Mobile Probate Court lacked standing to bring the death claim.
Competitive Bid Law; Mootness
Ex parte Carter, No. 1160887 (Ala. July 27, 2018)
Trial court directed to dismiss action brought by state auditor against state finance officials, seeking to void a contract for purported violations of competitive bid law. Auditor's only potential remedy was injunctive, and completion...
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