The Appellate Corner
| Publication year | 2020 |
| Pages | 0158 |
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
Inverse Condemnation
City of Daphne v. Fannon, No. 1180109 (Ala. Dec. 6, 2019)
City installed a 48-inch pipe in the right-of way near the Fannons' house. Shortly thereafter, Fannon installed a swale in the right-of-way. No problems were experienced for the next nine years. Then an unprecedented rain event occurred, causing erosion in the right-of-way which in turn caused trees growing in the city's right-of-way to fall onto the Fannons' house and damage the house. Fannons sued the city under Ala. Const. § 235 for inverse condemnation. Plaintiff's expert did not testify it was foreseeable or ascertainable at the time the pipe was installed that trees in the right-of-way would fall on the house and damage it nine years later. Held: under Ala. Const. § 235, an inverse condemnation plaintiff must demonstrate that the damage or devaluation of property was foreseeable at the time of the condemnor's actions. City was entitled to JML on the claim.
Workers' Compensation; Exclusivity
Ex parte Burke's Mechanical, Inc., No. 1180402 (Ala. Dec. 6, 2019)
Employee sued employer for failure to take emergency actions to treat burn injuries suffered in course of employment, which failure exacerbated employee's injuries. Employee asserted claims of negligence, wantonness, and outrage. Employer moved to dismiss based on exclusivity of the Act. The trial court denied the motion, and employer sought mandamus relief. The court denied the petition. In a plurality opinion by Justice Stewart, the articulated rationale was that the issue of whether the exacerbation of injuries was caused by independent conduct of the employer from that causing the initial injury is a fact-intensive inquiry unsuitable for a motion to dismiss, which saved the negligence and wantonness claims from dismissal and precluded any finding of a clear legal right to dismissal, and that employer did not demonstrate any the outrage claims were subject to dismissal for failure to argue a basis for their dismissal in their petition. The plurality consists of four justices, with three justices concurring in the result without opinion.
State Agent Immunity
Ex parte Blunt, No. 1180372 (Ala. Dec. 6, 2019)
While enrolled in a summer school instructional program, student allegedly was sent by teacher to pick up lunch off campus, during which excursion student was involved in motor vehicle accident, killing a driver and injuring two minor occupants. The personal representative (PR) of driver's estate and as next friend of minors sued teacher (Blunt) for negligence and wantonness, who claimed state-agent immunity. In response, PR claimed that Blunt had violated detailed rules and regulations for the summer instructional program contained in the board's summer programs handbook, the resource guide, and the faculty handbook. The circuit court denied summary judgment, and teacher sought mandamus relief. The supreme court granted the writ in a per curiam opinion, holding that the teacher was entitled to state-agent immunity. There was no violation of the summer programs handbook because the handbook's setting out general hours of schooling for summer programs did not preclude the teacher's use of discretion, for which undisputed evidence existed, in the setting of hours for summer classes, where student work schedules had to be worked around, and where the particular class in issue was not to take an entire course but rather to address a student's specific deficiencies in a course taken during the nine-month academic year. There was no violation of the resource guide because the mandatory check-out rule for students leaving campus did not apply during the summer session, for which there was undisputed testimony. The document being called the faculty handbook was not the handbook in place during the summer 2010 session when the conduct occurred, and thus no violation of the purported faculty handbook could form the basis of a violation of detailed rules claim to evade Cranman immunity.
Compulsory Counterclaims; Mandamus
Ex parte Hayslip, No. 1180604 (Ala. Dec. 6, 2019)
In a tangled mess of litigation spanning over a decade, Hayslip interpleaded certain funds arising from Hayslip's purchase of assets from Harlan and named Pate and New Pate as defendants, because the latter entities might claim entitlement to funds based on a judgment in their favor against Harlan. Pate and New Pate did not counterclaim against Hayslip. In later litigation, Pate and New Pate sued Hayslip, claiming that Hayslip's acquisition of Harlan's interest was a fraudulent transfer. Hayslip moved to dismiss or for summary judgment for failure to assert the claim as a compulsory counterclaim in prior litigation (which is subject to mandamus proceedings); the trial court denied the motion. The supreme court granted mandamus relief, holding that the fraudulent transfer claim was a compulsory counterclaim to the prior interpleader action.
State Agent Immunity
Ex parte Tucker, No. 1180773 (Ala. Dec. 6, 2019)
City public works director was entitled to state-agent immunity in action brought by injured pedestrian arising from injury sustained in fall on municipal residential street. Injured pedestrian offered no substantial evidence that work in a 2012 repaving project was not done to ALDOT standards as to the drop-off. Accident occurred over two years after the repaving, and although there was evidence that the drop-off was six inches at the time of the accident (outside the ALDOT standard), there was no evidence as to the dropoff at the time the repaving project was completed, and thus no substantial evidence that public works director violated clear standards.
Venue; Corporations
Ex parte Liberty National Life Ins. Co., No. 1180693 (Ala. Dec. 6, 2019)
Petition for mandamus granted, directing trial court to transfer action from Montgomery County to Elmore County. All acts or omissions of insurance agent and corporation occurred in Elmore County, which was also the county of plaintiff's residence, and thus venue in Montgomery County was not proper under Ala. Code § 6-3-7. Further, agent was resident of Butler County, and thus venue was improper as to individual defendant under Ala. Code...
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