The Appellate Corner
| Publication year | 2022 |
| Pages | 0128 |
Wilson F. Green
Wilson F. Green is a partner with Fleenor & Green LLP and practices in Tuscaloosa and Birmingham. 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.
A note from Wilson Green: Since 2011, I have co-written this space with Marc Starrett. Marc has ably covered the criminal cases, while I have reviewed the civil cases. This is my last issue as co-author. Many thanks to Marc, to the current and former editors, Greg Ward and Greg Hawley, and to Margaret Murphy.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Restrictive Covenants
Capitol Farmers Market, Inc. v. Ingram, No. 1200688 (Ala. Dec. 3, 2021)
The court affirmed the circuit court's order enforcing restrictive covenants against CFM in action brought by the Ingrams (adjoining landowners). The phrase "platted tracts within [a] subdivision" was not ambiguous even though there were no platted tracts when the document was drafted, because the subject property had in fact been subdivided into various parcels and conveyed to other owners. Under the change-in-the-neighborhood test, "a restrictive covenant will not be enforced if the character of the neighborhood has changed so radically that the original purpose of the covenant can no longer be accomplished." That test was not met in this case, because under the evidence, the properties to the west, south, and east of the subject properties, and the subject properties themselves, have remained unchanged since 1982. Justice Bolin wrote for eight justices; Justice Shaw concurred in the result.
Abatement
Tipp v. JPMC Specialty Mortgage, Inc., No. 1200600 (Ala. Dec. 3, 2021)
Present action was properly abated (under Ala. Code § 6-5-440) by multiple prior actions, and the court upheld the trial court's injunction against any further actions brought on the same subject matter. Justice Mitchell wrote for unanimous panel.
Rule 54(b)
Gleason v. Halsey, No. 1200678 (Ala. Dec. 3, 2021)
Rule 54(b) certification was improper based on intertwining doctrine, thus necessitating dismissal of appeal. Justice Mendheim wrote for eight justices; Chief Justice Parker concurred in the result.
Marriage Recordation
Porter v. Porter, No. 1200682 (Ala. Dec. 10, 2021)
Plurality panel decision by Justice Stewart; death of a party to a marriage, after a marriage document is executed but before the marriage document is recorded, does not invalidate the marriage for failure to comply with the registration requirements of Ala. Code § 22-9A-17. Chief Justice Parker concurred specially. Justice Wise concurred in the result.
Mortgages
Deslonde v. Nationstar Mortgage, LLC, No. 1200483 (Ala. Dec. 10, 2021)
Plurality panel decision by Sellers for four justices; Chief Justice Parker concurred in the result. Trial court properly granted summary judgment to mortgagee lender in action by mortgage borrower to avoid terms of modification agreement, where borrower claimed entitlement to reformation of the modification agreement based on mutual mistake. Terms of agreement were unambiguous, and there was no evidence that lender intended to bind itself to terms different from that expressed in the written instrument.
Public Corporations
WM Mobile Bay Environmental Center, Inc. v. City of Mobile Solid Waste Authority, No. 1190978 (Ala. Dec. 17, 2021)
The court answered certified questions from the Eleventh Circuit in a plurality opinion joined by four justices, with four concurrences in the result and one recusal, as follows:
(1) Can property owned by a solid waste disposal authority 'belong to' a county or municipality for purposes of section 6-10-10, Ala. Code 1975? No, under the separate entity doctrine as applied to the plain language of the statute....
(2) If so, what factors should courts consider when making such a determination? Not applicable (the court declined to answer in light of the answer to (1).
(3) If section 6-10-10 can apply to property owned by a solid waste disposal authority, is such property 'used for county or municipal purposes' when the authority has not used the property but is holding it for a future use? Not applicable (the
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