The Appellate Corner
| Jurisdiction | Alabama,United States |
| Citation | Vol. 83 No. 5 Pg. 0346 |
| Pages | 0346 |
| Publication year | 2022 |
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.
J. Thomas Richie
J. Thomas Richie is a partner at Bradley Arant Boult Cummings LLP, where he co-chairs the class action team. He litigates procedurally-complex and high-stakes matters in Alabama and across the country. Richie is a 2007 summa cum laude graduate of the Cumberland School of Law and former law clerk to the Hon. R. David Proctor of the United States District Court for the Northern District of Alabama.
RECENT CIVIL DECISIONS
From the Alabama Supreme Court
Summary Judgment
Robinson v. Harrigan Timberlands L.P., No. 1200563 (Ala. May 2, 2022) (plurality opinion)
In a boundary line dispute, the plaintiff failed to produce evidence that a creek's path changed suddenly (i.e., by avulsion) instead of gradually (i.e., by accretion), so the court affirmed summary judgment for the defendant. The deed at issue used a creek to mark a boundary line, and the general rule provides that a watercourse that gradually changes carries the boundary line with it, adding to one parcel at the expense of the other. The plaintiff, who bore the burden of showing that the creek moved, failed to introduce evidence of avulsion. (Note: the only opinion had four votes, and the remaining five justices concurred in the result without separate writing.)
Evidence, Sudden Loss of Consciousness Defense
Pearce v. Estate of Day, No. 1200623 (Ala. May 27, 2022)
Plaintiff appealed from a defense verdict in a car accident case, claiming that evidence tending to rebut the sudden loss of consciousness defense should not have been excluded and the verdict was against the great weight of the evidence. The court affirmed, concluding that, while the plaintiff's evidentiary objections generally addressed parts of a defendant's medical history tended to establish that he should have known that he was susceptible to suddenly losing consciousness, these matters were not sufficiently relevant to justify the substantial risk of prejudice that would have resulted from admitting them.
Arbitration
The Terminix Int'l Co., L.P. v. Dauphin Surf Club Ass'n, Inc., No. 1200846 (Ala. May 13, 2022); The Terminix Int'l Co., L.P. v. Stonegate Condominium Owners' Ass'n, Inc., No. 1200854 (Ala. May 13, 2022)
The associations filed separate lawsuits seeking to appoint a substitute arbitrator because the arbitral forum selected in the parties' arbitration agreement ceased administering consumer arbitrations, and the defendants opposed the petitions by arguing that the parties could not be compelled to litigate if the selected arbitral forum was not available. The trial court ruled for the plaintiffs and the Alabama Supreme Court affirmed. While the arbitration agreement selected an arbitral forum, the provisions concerning that selection were not so pervasive as to make the agreement unenforceable in a different forum.
Key v. Warren Averett, LLC, No. 1210124 (Ala. May 20, 2022)
The court determined that the threshold question of arbitrability should be decided by the arbitrator and reversed the trial court's order denying the defendant's arbitration. It reasoned that the question of arbitrability was given the arbitrator in both the arbitration agreement and the Commercial Arbitration Rules of the American Arbitration Association selected by the arbitration agreement.
Competitive Bid Law
Newman's Medical Servs., Inc. v. Mobile Cty., No. 1210001 (Ala. June 17, 2022)
A challenge to a contract awarded through Alabama's Competitive Bid Law (Alabama Code § 41-16-50 et seq.) was not moot, even though the contract had already been executed and performance had begun. As long as a contract remains executory, its remaining performance can be enjoined under the Competitive bid Law. On the merits, the contract for ambulance services at issue was not void for failure to comply with the Competitive Bid Law because the contract fit within the exception to that law for contracts "related to, or having an impact upon, ... the... safety of persons...." Ala. Code § 41-16-51(a)(15). The court determined that the language of the contract itself, the equipment contained in ambulances, and undisputed testimony regarding the services and training provided by the ambulance company all fit within the dictionary definition of "safety," and so the defendants were properly granted summary judgment.
Probate
Massey v. Rushing, No. 1210092 (Ala. June 24, 2022)
The court affirmed an order setting aside and voiding two deeds for lack of capacity and undue influence, but it found that the trial court erred in finding the grantor lacked capacity. The evidence showed, at most, temporary and periodic incapacity, not permanent incapacity. A deed can be set aside for temporary incapacity only if the grantor executed the deeds during a period of incapacity, and no such evidence existed. Nevertheless, the court affirmed the finding of undue influence, finding that the complaint was properly amended to include that issue and that the evidence established that the wife occupied a confidential relationship with the grantor in which she was the dominant party.
Hoff v. Estate of Kidd, No. 1210096 (Ala. May 27, 2022); Hoff v. Estate of Kidd, No. 1210098 (Ala. May 27, 2022)
An order purporting to denying a removal petition was reversed. Even though the removal petition was not sworn, it satisfied the requirements Alabama Code § 12-21-85. As a result, the supreme court concluded that the circuit had no discretion to deny the petition and was bound to enter an order removing administration of the estate at issue from the probate court to circuit court. All remaining issues were mooted.
Ledbetter v. Ledbetter, No. 1200860 (Ala. June 30, 2022); Ledbetter v. Ledbetter, No. 1210003 (Ala. June 30, 2022)
The supreme court previously reversed summary judgment, and parties renewed their motion on the same record on remand. The trial court granted summary judgment, and the supreme court found that the same factual issues that precluded summary judgment previously still applied.
Mandamus, Discovery Sanctions
Ex parte McKinney, No. 1200621 (Ala. May 20, 2022)
The defendant doctor was entitled to a writ of mandamus directing the trial court to vacate a discovery order requiring the defendant to amend the cause of death listed on a death certificate. Even though the defendant agreed that the cause of death on the death certificate was not correct, Alabama Rule of Civil Procedure 37(a)(2) did not give the trial court the authority to require an amended certificate. Moreover, causes of death listed in death certificates are not determinative as to the ultimate cause of death. Relevant provisions of the Alabama Administrative Code give the medical certifier discretion as to whether to issue a corrected or supplemental death certificate addressing the cause of death, but the regulations do not require the medical certifier to take action.
Post-Judgment Motions
Rhodes v. Funk, No. 1200384 (May 20, 2022)
A settlement agreement resolved a dispute regarding a trust and the circuit court entered an order retaining exclusive jurisdiction over the action and the parties provided in the settlement agreement. Many years later, a successor trustee filed a motion to enforce the agreement, and the respondent argued that the trial court lacked jurisdiction because the motion to enforce was broader than the retention of jurisdiction entered in connection with the settlement agreement. The court denied the motion to enforce without a hearing. The Alabama Supreme Court reversed, noting that a party requesting a hearing is entitled to be heard.The harmless error exception, which applies when the post-judgment motion has no probable merit, did not apply because the motion had probable merit.
Bingo
Alabama v. Epic Tech, LLC, No. 1210012 (Ala. May 20, 2022)
The supreme court held that the trial court had jurisdiction to entertain the State of Alabama's public nuisance claims seeking to abate allegedly illegal gambling activities in Greene County. It also ordered the case to be reassigned to a different circuit judge on remand, finding that it had supervisory authority to order reassignment on remand on a prudential basis based on the totality of the circumstances. The court endorsed a non-exclusive three-factor test looking to (1) whether the trial court would be reasonably expected to have difficulty setting aside previously expressed views or evidentiary findings on remand; (2) whether reassignment preserves the appearance of justice; and (3) whether the waste and duplication required by reassignment is out of proportion to the gain in preserving the appearance of fairness.
Alabama Dep't of Revenue v. Greenetrack, Inc., No. 1200841 (Ala. June 30, 2022)
Electronic bingo operation was not exempt from taxation under Alabama 45-32-150.15. The court determined that this provision, which on its face applied to pari-mutuel wagering on dog racing, did not apply to the putative electronic bingo operations from otherwise-applicable taxes. The court also found the three McCullar factors to be present, which justified making the tax ruling retroactive. Next, the court determined that the particular lease provisions used in connection with the electronic bingo operations at issue did not comply with local...
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