The Appellate Corner
| Jurisdiction | Alabama,United States |
| Citation | Vol. 80 No. 2 Pg. 0150 |
| Pages | 0150 |
| Publication year | 2019 |
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.
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
Spoliation
Hartung Commercial Properties, Inc. v. Buffi's Automotive Equipment and Supply Company, Inc., No. 1170482 (Ala. Dec. 7, 2018)
Spoliation of evidence determinations are made by weighing five factors: (1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the information [that would have been available] from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal. The supreme court reversed the dismissal of claims based on spoliation, concluding that factors 1, 2 and 4 were not supported by evidence, particularly because there appeared to be alternative sources of information available from which expert examinations could be made.
Discovery; Medical Liability
Ex parte Mobile Infirmary Assn., No. 1170567 (Ala. Dec. 14, 2018)
In medical liability action, trial court's protective order allowed plaintiff's counsel to use documents produced in the present action in another pending case against Mobile Infirmary. Mobile Infirmary objected to that language under Ala. Code § 6-5-551, which provides that "[a]ny party shall be prohibited from conducting discovery with regard to any other actor omission or from introducing at trial evidence of any other act or omission." Mobile Infirmary sought mandamus relief. In a 6-3 decision, the court granted mandamus relief, holding that the provision in the protective order contravened section 6-5-551.
Preemption
State of Alabama v. Volkswagen AG, No. 1170528 (Ala. Dec. 14, 2018)
State's claims against VW for "tampering" and seeking penalties against VW and other defendants pursuant to the Alabama Environmental Management Act ("the AEMA"), § 22-22A-1 et seq., Ala. Code 1975, and the Alabama Air Pollution Control Act of 1971 ("the AAPCA"), § 22-28-1 et seq., Ala. Code 1975, were preempted by Section 209 of the Clean Air Act, 42 U.S.C. § 7543. The case is very fact-specific and is controlled largely by a ruling in the VW emissions MDL litigation.
Rule 59
Ex parte Chmielewski, No. 1171089 (Ala. Dec. 21, 2018)
Trial court lacked jurisdiction to rule on a Rule 59 motion filed 31 days following entry of judgment of dismissal.
Immunity; Public School Teachers
Ex parte Wilcox Co. Bd. of Educ., No. 1170621 (Ala. Dec. 21, 2018)
In an action arising from a failure to renew contract of probationary teacher upon a vote of the board, where a board position was vacant and unfilled and where the teacher contended that the board vote was invalid, the court held: (1) claims against the board and against board members in their official capacities for money damages were barred by Ala. Const. Sec. 14; (2) official-capacity claims against superintendent for declaratory and injunctive relief regarding reinstatement were barred by immunity, because superintendent had only the authority to make a personnel recommendation to the board, and thus superintendent had not failed to perform a legal duty for immunity exception; (3) official-capacity claims against board members for declaratory and injunctive relief regarding the legality of the board vote under Ala. Code § 16-8-4 were not barred by immunity; (4) on individual-capacity claims, because personnel decisions fall within Cranman immunity, the burden shifted, even at the motion to dismiss stage, to the plaintiff to allege facts demonstrating that defendants acted maliciously, willfully, beyond authority or under mistaken interpretation of the law; (5) although Ala. Code § 16-8-4 states that no action or resolution of a board is valid unless concurred by a majority of the "whole board," Ala. Code § 16-24C-5(c), within the Students First Act, provides for a written termination of a probationary teacher by "a majority vote of the governing board."
Venue; Forum Non Conveniens
Ex parte Maynard, Cooper & Gale, P.C., No. 1171102 (Ala. Dec. 21, 2018)
Although venue was proper in action by former client against law firm in Jefferson County (where defendant had its principal office), interests of justice demanded transfer of action to Madison County, where the acts and omissions allegedly occurred out of defendant's office there.
Involuntary Dismissal
Ace American Insurance Company v. Rouse's Enterprises, LLC, No. 1170818 (Ala. Dec. 21, 2018)
Dismissal for want of prosecution requires a finding that plaintiff committed "willful default or contumacious conduct."
Insurance; Failure to Procure
Somnus Mattress Corporation v. Hilton, No. 1170250 (Ala. Dec. 21, 2018)
Trial court properly entered summary judgment for insurer and agent against insured on claims of failure to procure proper coverage for business income coverages. Insured failed to present substantial evidence as to what advice the agent actually provided to the insured concerning the appropriateness or extent of coverage. Additionally, agent and insurer had no affirmative duty to provide advice concerning the need for or extent of coverages: "jurisdictions throughout the country have overwhelmingly concluded that insurers have no such duty to advise clients."
Venue; Corporations
Ex...
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