The Appellate Corner
| Publication year | 2019 |
| Pages | 0212 |
| Citation | Vol. 80 No. 3 Pg. 0212 |
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 his alma mater, 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
Contracts; Banking
SE Property Holdings, LLC, f/k/a Vision Bank v. Bank of Franklin, No. 1171167 (Ala. Feb. 15, 2019)
In a factually complex dispute concerning a bank participation agreement, (1) trial court's summary judgment granting specific performance of the repurchase obligation was in the form of an injunction, as to which there was an immediate appeal, and (2) as used in the context of the agreement negotiated between sophisticated parties with counsel, the term "proceeding" encompassed and anticipated any judicial or quasi-judicial proceeding to wind up the affairs of Vision, not a voluntary merger, meaning that BoF had no right under the agreement to compel SE to repurchase BoF's interest.
Agency; Expert Testimony
Hinkle Metals & Supply Company, Inc. v. Feltman, No. 1170512 (Ala. Feb. 15, 2019)
Where an employee combines personal activities with the employer's business, the question whether the employee is acting within the line and scope of his employment in connection with MVA is a factual question for the jury. Also at issue in this appeal was an evidentiary question, concerning the admission of expert testimony regarding Butterfield's cell phone usage in order to pinpoint the calls. Draper (the expert) opined that, based upon the timing of those three calls and the cell towers used to connect those calls, one could conclude that Butterfield's phone was moving "from northeast Birmingham down to [the intersection of l-20/l-59 with l-65] and then south down [l-]65" during that time. The trial court did not exceed its discretion in admitting the testimony using "historical cell-site analysis" (as it is called).
Rule 54(b)
Wright v. Harris, No. 1171031 (Ala. Feb. 15, 2019)
Appeal dismissed; Rule 54(b) certification was improper from grant of summary judgment for nurses in AMLA action against nurses and nursing home. The summary judgment was based on lack of causation, and nursing home's argument for summary judgment, which remained pending, interposed the same issue.
Retaliatory Discharge; Damages
Merchants FoodService v. Rice, No. 1170282 (Ala. March 1, 2019)
The court affirmed a judgment on jury verdict for plaintiff for roughly $314,000 in compensatory damages and $944,000 in punitive damages in a retaliatory discharge action involving a foodservice vendor driver. Among other holdings-(1) The controlling law on future wages is inherently fact-specific. Annual income is one measure, and earnings per hour is another method, depending upon the circumstances. Expert testimony may not be required in calculating future wages in all cases; (2) There was sufficient direct evidence from plaintiff of the nature, extent and duration of the mental anguish to support a mental anguish award; (3) As to punitive damages, the trial court did not abuse its discretion in permitting evidence of a similar firing occurring after the plaintiff's firing-though defendant had moved in limine regarding that evidence, it did not object at trial on the same basis (which is required to preserve the issue for appeal); and (4) amount of punitive damages (analyzed under the State Farm v. Campbell guideposts) was not excessive-there was sufficient evidence of reprehensibility because the plaintiff was financially vulnerable, and the conduct was intentional, and the 3:1 ratio was entirely proper.
Venue; Waiver
Ex parte Seriana, No. 1180104 (Ala. March 1, 2019)
Defendant waived its right to contest venue because it did not assert improper venue as a defense in its answer, filed more than a year after an amended complaint, and did not seek a transfer of venue until an additional year after the filing of its answer. Under Rule 12(h), defense of improper venue is waived if not asserted in an initial responsive pleading or as a defense in an answer as provided in the rule.
Default Judgments
Ex parte Bhones, No. 1171171 (Ala. March 1, 2019)
Trial court lacked discretion to consider setting aside default judgment because defendant failed to offer evidence and argument supporting all three Kirtland factors.
State Immunity
Ex parte Wilson, No. 1170982 (Ala. March 1, 2019)
Section 14 state immunity bars claims against officials of state university for money damages brought against them in their official capacities.
Forum Selection Clauses
Ex parte International Paper Co., No. 1180144 (Ala. March 1, 2019)
Outbound forum selection clause was enforceable because (1) the clause was not the product of overweening bargaining power; (2) enforcement of the clause was not seriously inconvenient under the five-factor test of Nawas Int'l Travel Serv., Inc., 68 So. 3d 823, 827 (Ala. 2011); (3) requirement that witnesses would have to travel to Tennessee did not work serious inconvenience; (4) although the requirement to litigate identical issues and conduct identical issues in separate fora may sometimes result in the required "serious inconvenience" to avoid clause enforcement, in this case that was not present because the breaches of contract were entirely separate and the third-party claims were not properly brought under Rule 14 for that reason; and (5) employees of IP were entitled to enforce IP's clause.
Open Meetings Act
Swindle v. Remington, No. 1161044 (Ala. March 8, 2019)
AEA filed an action against PEEHIP board members, claiming a violation of the Open Meetings Act, Ala. Code § 36-25A-1 to -11, resulting from a day-long session in which the PEEHIP board considered and approved increases in public-employee health insurance premiums.The board contended that the session consisted of two components: an unnoticed and non-public morning session, which the board contended was an "educational session" or...
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