The Appellate Corner
| Publication year | 2019 |
| Pages | 0478 |
| Citation | Vol. 80 No. 6 Pg. 0478 |
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
False Arrest
Heining v. Abernathy, No. 1180273 (Ala. August 16, 2019)
In action for false arrest, false imprisonment, and malicious prosecution, trial court properly granted summary judgment to defendants (the complainants to the arrest); police's conducting of independent investigation into the allegations resulted in the arrest, which in turn shielded the complaining party from liability.
Service of Process; Unlawful Detainer
Ex parte Trinity Property Consultants, LLC, No. 1180642 (Ala. August 30, 2019)
Under Ala. Code § 35-9A-461(c), "if after reasonable effort no person is found residing on the premises," proper service in an unlawful detainer action is effected by posting a copy of the notice on the door of the premises and mailing notice of the filing of the unlawful detainer action by enclosing, directing, stamping, and mailing by first class a copy of the notice to the defendant at the mailing address of the premises. ..." Landlord's process server's affidavit stated he had "knocked on the door, [and that,] after [he] did not receive a response, [he] posted a copy of the Summons and Complaint on the door, then placed a stamped copy in the first class mail to the same address." The trial court held that the act of knocking on the door and receiving no response satisfied the statutory requirement of "reasonable effort" to obtain personal service, and thus service was proper pursuant to § 6-6-332(b) and § 35-9A-461(c). The CCA, in turn, reversed the denial of Rule 60(b)(4) relief, holding that the process server's affidavit was not sufficiently specific as to when the process server was attempting service (it was on a weekday, but no time was specified). The supreme court reversed CCA in a plurality opinion, stating that reasonable effort is not defined in the statute.
Recusal
Startley General Contractors, Inc. v. B'ham Water Works Board, No. 1180292 (Ala. Sept. 6, 2019)
Ala. Code § 12-24-3, which became law in 2014, creates a rebuttable presumption for judicial recusals in the event a litigant or counsel contributes certain percentages of a judicial candidate's campaign revenues in an "election cycle." Interpreting the material provisions of that statute for the first time, the court per curiam held that the "election cycle" encompasses the entire time period in which the judicial candidate is raising money up through the election, and is not confined to any reporting period for disclosure of campaign contributions (whether monthly or 90-day cycles).
Arbitration; Change of Terms; Arbitrability
Blanks v. TDS Telecommunications LLC, No. 1180311 (Ala. Sept. 6, 2019)
Customers had Internet service contracts with provider which (a) contained AAA Commercial Rules clause, and (b) stated that provider could change terms of service, and that continued use of the service after receipt of change of terms constituted consent to those terms. After customers (through counsel) notified provider that arbitrations would be commenced to adjudicate claims, provider then issued change of terms eliminating arbitration from the customers' agreements. Issue: whether arbitration agreements were enforceable. Held: whether the updated terms of service validly "terminated" the arbitration clause as to the customers' claims is an issue of arbitrability that was delegated to an arbitrator.
Venue; Forum Non Conveniens
Ex parte KKE, LLC, No. 1180074 (Ala. Sept. 13, 2019)
While driving a truckfor his employer, KKE (in Bibb County), Sanders (Bibb County resident) had accident in Chilton County, causing deaths of plaintiffs (residents of Montgomery County). Plaintiffs sued Sanders and KKE in Bibb County Circuit Court. KKE and Sanders moved to transfer to Chilton County, contending that it was substantially more convenient to litigate there because trooper who investigated the accident was from Montgomery County, and it would be more convenient for trooper to testify there. Plaintiffs opposed and submitted two affidavits from two non-party witnesses who lived in Montgomery County, who stated there was no significant difference to them between traveling to Bibb County or to Chilton County for testifying. Trial court denied transfer, and defendants sought mandamus relief. The supreme court denied the
writ, reasoning as follows: (1) as for a "convenience of parties and witnesses" transfer, defendants had not demonstrated that Chilton County was "significantly more convenienf" for all parties, given testimony of non-party witnesses; (2) The operative test for an "interests of justice" transfer is that "the underlying action must have both a 'strong' connection to the county to which the transfer is sought and a 'weak' or 'little' connection to the county in which the case is pending...."
Ex parte Tyson Chicken, Inc., Ms. 1170820 (Ala. May 24, 2019)
Here, both Bibb and Chilton counties had strong connections. Under Ex parte J & W Enterprises, LLC, 150 So. 3d 190 (Ala. 2014), where a negligent hiring and retention claim is asserted, the employer's home county may provide the requisite strong connection as the location where employment decisions are made.
Venue; Forum Non Conveniens
Ex parte Reed, No. 1180564 (Ala. Sept. 13, 2019)
Watwood (Cullman resident) sued Reed (Jefferson...
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