The Appellate Corner
| Jurisdiction | Alabama,United States |
| Citation | Vol. 80 No. 5 Pg. 0394 |
| Pages | 0394 |
| 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 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
Agency
Donaldson v. Country Mutual Insurance Company, No. 1171045 (Ala. June 14, 2019)
Insurer had no right to control manner or means of independent agent's work and time in day-to-day activities to establish respondeat superior liability. Although Johnston's vehicle had "Country Financial" signs on it and although Johnston was engaged in a mixture of personal and business affairs while driving, agent was traveling back to his office from personal business, not engaged solely in business matters.
Zoning; Govenrnmental Agencies
Meriwether v. Pike Road Volunteer Fire Protection Authority, No.1180330 (Ala. June 14, 2019)
Fire Authority is not a "governing body" or a "political subdivision" that, if engaged in governmental functions, is exempt from zoning ordinances.
Attorney's Lien; Interest
Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. v. DuBois, No. 1171178 (Ala. June 14, 2019)
Money held by the court regarding an attorney's lien is not a "money judgment" subject to the collection of post-judgment interest, and thus no post-judgment interest is due under Ala. Code § 8-8-10.
Arbitration; Class Actions; Review of "Clause Construction"
Alabama Psychiatric Services, P.C. v. Lazenby, No. 1170856 (Ala. June 21, 2019)
Judicial review of an arbitral order construing a clause to determine whether class-action mechanism was available in arbitration was properly limited to whether the arbitrator even arguably construed the contract.
Rule 54(B)
Cox v. Parrish, No. 1170391 (Ala. June 21, 2019)
Pendency of declaratory judgment count which was intertwined with claims subject to Rule 54(b) final order rendered the Rule 54(b) certification improper.
Mortgages
Deutsche Bank National Trust Co. v. Allison, No. 1160926 (Ala. June 28, 2019)
Ala. Code § 35-4-50 provides that "[conveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate.'Tracing the provenance of this statute back to the Code of 1852, the court found an ambiguity created when, in an 1860s Code revision, the first comma was inserted. The intent of the Code section, the court concluded, was not to require the recordation of all mortgages, but is intended to govern those recordings otherwise required by law.There is no general obligation to record mortgage assignments under Alabama law.
Personal Jurisdiction; Preliminary Injunction
Facebook, Inc. v. K.G.S., No. 1170244 (Ala. June 28, 2019)
(1) Facebook was not subject to general personal jurisdiction because it could not be considered "at home" in Alabama; (2) Facebook lacked transaction-specific contacts directed to Alabama to subject it to specific jurisdiction, under the standard of Walden v. Fiore, 571 U.S. 277, 291 (2014), under which "the defendant, not the plaintiff or third parties, must create contacts with the forum State." Failure to take down Facebook post was not directed to Alabama as a forum. Plaintiff also failed to establish reasonable likelihood of success on the merits of an invasion of privacy claim, which was premised upon the disclosure of information protected by the Alabama Adoption Code-the information at issue had already been made public by the Huffington Post at the time plaintiff sought preliminary injunctive relief.
Open Records Act
Health Care Authority for Baptist Health (an affiliate of UAB Health Systems) v. Central Alabama Radiation Oncology, LLC, No. 1171030 (Ala. June 28, 2019)
(1) Authority is subject to the Open Records Act; (2) records were subject to disclosure and did not fall within exceptions to Ala. Code § 36-12-40, under which "recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interest of the public" are not subject to disclosure; (3) by allowing the records to be subject to an in camera inspection by counsel for CARO, the Authority surrendered any claim of confidential or unduly sensitive material not otherwise subject to disclosure.
Collateral Estoppel
Austill v. Prescott, No. 1170709 (Ala. July 12, 2019)
Prior quiet title action was a judgment on the merits and therefore operated as res judicata as to the right to redeem in the second action.
Declaratory Judgments
Ex parte Valley National Bank, No. 1180055 (Ala. July 12, 2019)
Claims for declaratory judgment regarding non-liability under the Alabama Uniform Fraudulent Transfer Act and for non-liability for civil conspiracy are inappropriate actions for declaratory judgment under Ex parte Valloze, 142 So. 3d 504 (Ala. 2013). However, claims for declaratory judgment regarding veil piercing and for constructive trust were appropriate for DJ action. This is a 4-1-3 decision with one justice not participating.
Employment Contracts
Arnold v. Hyundai Motor Manufacturing Alabama, LLC, No. 1170974 (Ala. July 12, 2019)
Under employment contract, employee was required to reimburse employer for moving expenses because he "voluntarily terminate[d]" his employment before two years. Alleged intolerable and hostile work environment, and purported "handshake agreement" that employer would not pursue him if he would not file an EEOC charge, did not negate the contractual obligation, because the resignation was voluntary whether or not he had good reason to do so, and that any handshake agreement was not supported by a writing to satisfy the statute of frauds, since the matter represented a debt exceeding $25,000.
From the Court of Civil Appeals
Adverse Possession; Contiguous Ownership
Kennedy v. Conner, No. 2180063 (Ala. Civ. App. June 5, 2019)
Under Ala. Code § 6-5-200, "[a] boundary line dispute is subject to a unique set of requirements that is a hybrid of the elements of statutory adverse possession and adverse possession by prescription."
Bearden v. Ellison, 560 So. 2d 1042, 1044 (Ala. 1990)
"If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period often years, believing that he is holding to the true...
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