The Appellate Corner
| Publication year | 2022 |
| Pages | 0426 |
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 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
Quo Warranto
Burkes v. Franklin, No. 1210044 (Ala. July 15, 2022)
A plaintiff bringing a quo warranto action failed to give security for costs of the action, and the Alabama supreme Court determined on appeal for the first time that this failure deprived the circuit court of jurisdiction over the action. It dismissed the appeal.
Section 230
Ex parte The HuffintonPost.com, Inc., No. 1200871 (Ala. Aug 12, 2022)
The court held that a news organization was immune under the Communications Decency Act, 47 U.S.C. § 230, for claims arising brought by an adoptive mother relating to publicity around the adoption. The court reversed the denial of summary judgment, finding that the author of the publicity at issue was not the news organization's agent and that the news organization did not qualify as an "information content provider" as to information appearing in the "Voices" section of its website.
Taxes
Ex parte Mobile Cty. Bd. of Equalization, No. 1210058 (Ala. July 8, 2022)
The court issued a writ of mandamus directing that a taxpayer's appeal be dismissed, reasoning that the taxpayer had failed to demonstrate payment of the taxes due under Alabama Code § 40-3-25 - a defect held to divest the trial court of jurisdiction. The court determined that the taxpayer had failed to demonstrate payment when the payment was never received by the appropriate official and the certified mail through which the taxpayer claims to have sent payment did not have return receipt requested.
Medical Malpractice, Expert Testimony
Nall v. Arabi, No. 1210312 (Ala. Aug. 19, 2022)
The circuit court barred a medical expert from granting testimony because he was no longer certified by the appropriate American board in his specialty as required by Alabama Code § 6-5-548(c)(3) and granted summary judgment for defendants. The Alabama Supreme Court affirmed, concluding that the plaintiffs were not entitled to a continuance of the case to allow the expert to obtain reinstatement. It also declined to find that the certifying board was equitably estopped from withholding certification from the expert for four reasons: (1) estoppel runs against parties only, and the certifying board was not a party; (2) estoppel has not been used to imbue a witness with certification under Section 548(c); (3) the expert could have learned of his certification's lapse with diligence; and (4) there was no evidence that the certifying board made any false or misleading communication. Lastly, the court affirmed the circuit court's decision not to modify the scheduling order so that the plaintiffs could retain a new expert. Even though the lack of certification could be characterized as an oversight or technicality, the court found that it could have been remedied with diligence.
State Agent Immunity
Avendano v. Shaw, No. 1210125 (Ala. Aug. 19, 2022)
Claims against a DHR social worker in her official capacity were barred, but claims against her in her individual capacity were not barred, either by state-agent immunity or by Alabama Code § 26-14-9. The court reversed in part the circuit court's decision to dismiss claims under Alabama Rule of Civil Procedure 12(b).
Harris v. Hicks, No. 1200717 (Ala. Aug. 19, 2022)
Claims against various employees of a nursing school were dismissed because the circuit court found them barred by state-agent immunity. On appeal, the Alabama Supreme Court determined that the finding of a previous federal lawsuit that certain defendants were entitled to federal qualified immunity barred the plaintiff from relitigating factual issues related to state-agent immunity. But the complaint was sufficient to survive an immunity challenge of the other defendants on motions to dismiss.
Appellate Procedure
Womble v. Moore, No. 1210222 (Ala. Aug 12, 2022)
The court determined that a Rule 60(b) motion could not support an appeal because the trial court had not ruled upon that motion, and it further determined that any appeal of the judgment challenged in the Rule 60(b) motion was untimely. It dismissed the appeal.
Lord Genesh, Inc. v. Valley Nat'l Bank, No. 1210003 (Ala. Aug. 19, 2022)
The court dismissed an appeal because it determined that a trial court's judgment that explicitly left open and undecided the issues of interest and other charges was not a final judgment that would support an appeal. Moreover, because the defendants took an appeal two days before a final judgment was entered, the court found that the trial court lacked jurisdiction to enter that order and it was a void order.
Civil Procedure
Cartron v. Bd. of Governors of Valley Hill Country Club, Inc., No. 1210192 (Ala. Aug. 26, 2022)
Even though both the plaintiff and defendants cross moved for summary judgment, the Alabama Supreme Court found that the trial court erred in entering summary judgment for the defendants and reversed. The court reasoned that Alabama Rule of Civil Procedure 56(c) requires a hearing in almost all circumstances and further relied on four factors to decide that a hearing should have been set: (1) no oral argument of any kind took place on the issues in the motion; (2) the order was entered long before trial; (3) the plaintiff had not yet filed an opposition brief to the defendants' motion; and (4) the plaintiff had filed a motion seeking additional discovery.
Concealed Carry Permit, Appellate Jurisdiction
Treadway v. Abernathy, SC-2022-0540 (Aug. 12, 2022)
After an application for a concealed carry permit was denied, the applicant appealed to the district court and, next, to the circuit court. The circuit court dismissed the appeal on the theory that it lacked jurisdiction to consider it. The Alabama Supreme Court reversed, reasoning that Alabama Code § 12-11-30 gives the circuit could general supervisory jurisdiction over final judgments from district courts.
Landlord/Tenant Law
Hiett v. Brady, No. 1210065 (Ala. Aug. 26, 2022); Brady v. Hiett, No. 1210081 (Ala. Aug. 26, 2022)
A lease agreement provided the tenants the option to purchase the property. The tenants contended that they exercised the purchase option. The landlord disagreed. The tenants thereafter stopped paying rent. A jury found that the tenants properly exercised the purchase option but that the tenants owed rent to the landlord. The court ordered specific performance of the purchase option. The Alabama Supreme Court affirmed the specific performance judgment and also rejected the tenants' argument that the award of rent to the landlord is inconsistent with the verdict for the tenants on their exercise of the purchase option. The court found that the damages awarded to the landlord for rent were inadequate and not supported by the evidence and therefore ordered that the trial court should hold a new trial on the landlord's breach claim unless the tenants consent to additur.
City of Center Point v. Atlas Rental Property, LLC, No. 1210316 (Ala. Aug. 26, 2022)
The court affirmed a preliminary injunction against a city's ordinance that required an inspection of rental property and the payment of a fee for each time a rental property became vacant. The Alabama Supreme Court agreed with the trial court that the ordinance was preempted by the Alabama Uniform Residential Landlord and Tenant Act, specifically Alabama Code §§ 35-9A-121 and -102(b), which together provide that Alabama's act governs residential rentals and preempts any conflicting ordinance.
Limited Liability Companies
Sadler v. Players Recreation Group, LLC, No. 1210116 (Ala. Aug. 26, 2022)
The court reversed a bench-trial judgment for the company against a member on claims of breach of the duties of loyalty, care, and good faith and fair dealing. The company lacked a written LLC agreement so the default provisions of Alabama Code § 10A-5A-4.08 governed the duties of loyalty and care. Under the ore tenus standard of review, the court found a lack of evidence supporting a breach of either duty and a lack of evidence that the member breached the duty of good faith and fair dealing.
Arbitration
Ball Healthcare Servs., Inc. v. Flennory, No. 1220843 (Ala. Aug. 19, 2022)
The court reversed the trial court's decision not to compel arbitration. The arbitration agreement at issue was signed by the daughter of a person admitted to a skilled nursing facility, and the daughter's signature certified that she was the duly authorized representative of her mother. The trial court declined to compel arbitration because evidence before it showed that the mother had the ability to sign documents for herself when the daughter signed on her behalf. The Alabama supreme court reversed, reasoning that the facility satisfied its burden of producing a facially valid arbitration agreement and shifting the burden to the party challenging arbitration to show that the agreement was invalid or...
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