RECENT CIVIL DECISIONS Summaries from September 2016 to March 2017

STANDING AND for the homeowners associations to the ef- K. Miller, and Edward H. Cooper, ENFORCEABILITY OF fect that the associations lacked standing to Federal Practice & Procedure § 3531 CONTRACTS enforce the agreement. The rejected (2008) (noting, however, that the the sewer service’s assertion of a lack of United States Supreme Court, itself, standing with a scholarly recitation of the has on occasion ‘succumbed to the The Gardens at Glenlakes Property of standing: temptation to mingle these questions’). Owners Assn., Inc. v. Baldwin County The concept of standing implicates The authors go on to explain: Sewer Service, LLC, [Ms. 1150563, Sept. a court’s subject matter . “’Standing goes to the exis- 23, 2016] __ So. 3d __ (Ala. 2016). In this See State v. Property at 2018 Rainbow tence of sufficient adversari- plurality opinion (Main, J., Bolin, Shaw, Drive, 740 So. 2d 1025, 1028 (Ala. ness to satisfy both Article and Bryan, JJ., concurring; Murdock, J., 1999) (“When a party without stand- III case-or-controversy concurring in the result), the Supreme ing purports to commence an action, requirements and prudential Court reverses a of the Baldwin the court acquires no subject- concerns. In determining Circuit Court and remands the cause for matter jurisdiction.”). As Justice Lyons standing, the nature of the further consideration to determine the wrote in Hamm v. Norfolk Southern injury asserted is relevant to enforceability of an agreement among Ry., 52 So. 3d 484, 499 (Ala. 2010) determine the existence of property owners associations and a local (Lyons, J., concurring specially): the required personal stake sewer service provider. “Imprecision in labeling a party’s and concrete adverseness. ...’ The Court first rejects the Baldwin inability to proceed as a standing Circuit Court’s reasoning for entering problem unnecessarily expands the “13A Federal Practice & in favor of the sewer universe of cases lacking in subject- Procedure § 3531.6 .... Cf. service and denying summary judgments matter jurisdiction.” In Wyeth, Inc. v. 13B Federal Practice & Blue Cross & Blue Shield of Alabama, Procedure § 3531.10 (dis- David Wirtes, 42 So. 3d 1216 (Ala. 2010), this Court cussing citizen and taxpayer is a member of Cunningham noted: standing and explaining that Bounds, LLC in “[O]ur too often Mobile, Alabama. He have fallen into the trap is licensed to prac- of treating as an issue of tice law in all state ‘standing’ that which is and federal courts serving Alabama and merely a failure to state Mississippi. Dave is a cognizable cause of a Sustaining Member action or legal theory, of the American or a failure to satisfy the Association for Justice where he serves as injury element of a cause a Member of its Amicus Curiae Committee (1999-present); he is a Sustaining Member of of action. As the authors the Alabama Association for Justice and has of Federal Practice and served in numerous capacities, including as Procedure explain: Member, Executive Committee (1997-present); “’The question whether the Co-editor, the Alabama Association for Justice law recognizes the cause of Journal (1996-present); and Member, Amicus Curiae Committee (1990-present / Chairman action stated by a is or Co-chairman, 1995-present). Dave is also frequently transformed into a long-time member of the Alabama Supreme inappropriate standing terms. Court's Standing Committee on the Rules The [United States] Supreme of Appellate Procedure, a Senior Fellow of Court has stated succinctly Litigation Counsel of America and he is the only Alabama/Mississippi lawyer certified that the cause-of-action as an appellate specialist by the American question is not a question of Institute of Appellate Practice. standing.’ “13A Charles Alan Wright, Arthur WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 91 RECENT CIVIL DECISIONS

‘a plaintiff cannot rest on reality, an issue as to the for future agreement is nugatory and a showing that a statute is cognizability of the legal void for indefiniteness’” ....’Miller v. invalid, but must show “some theory asserted by BCBSAL, Rose, 138 N.C. App. 582, 587-88, direct injury as a result of its not of BCBSAL’s standing 532 S.E.2d 228, 232 (2000) (quoting enforcement, and not merely to assert that theory or the MCB Ltd. v. McGowan, 86 N.C. App. that he suffers in some in- subject-matter jurisdiction of 607, 609, 359 S.E.2d 50, 51 (1987), definite way in common with this Court to consider it.” quoting in turn Boyce v. McMahan, people generally”’). 42 So. 3d at 1219-21 (some emphasis 285 N.C. 730, 734, 208 S.E.2d 692, added; some emphasis omitted). 695 (1974)). ‘A lack of definiteness “In the present case, Wyeth Recently, in Ex parte BAC Home in an agreement may concern the appears to argue that the Loans Servicing, LP, 159 So. 3d 31 time of performance, the price to be plaintiff, BCBSAL, lacks (Ala. 2013), this Court again examined paid, work to be done, property to be standing because, Wyeth says, the concept of standing and cautioned transferred, or miscellaneous stipula- BCBSAL’s allegations, even that the concept is generally relevant tions in the agreement.’ 1 Richard A. if true, would not entitle it to only in public-law cases. 159 So. 3d at Lord, Williston on Contracts § 4:21, a recovery. ... 44-45. In BAC we quoted Professor at 644 (4th ed. 2007). ‘In particu- Hoffman: lar, a reservation in either party of a “... The question whether the “’[T]he word “standing” future unbridled right to determine right asserted by BCBSAL is unnecessarily invoked in the the nature of the performance ... has an enforceable one in the first proposition can be errone- often caused a promise to be too place, i.e., whether BCBSAL ously equated with “real party indefinite for enforcement.’Id . at has seized upon a legal theory in interest” or “failure to state 644-48 (emphasis added). See also our law accepts, is a cause-of- a claim.” This simple, though Smith v. Chickamauga Cedar Co., 263 action issue, not a standing doctrinally unjustified, exten- Ala. 245, 248-49, 82 So. 2d 200, 202 issue. sion could swallow up Rule (1955) (‘”A reservation to either party “.... 12(b)(6), Rule 17[, Ala. R. to a contract of an unlimited right to Civ. P.,] and the whole law of determine the nature and extent of his “Nor do we see that the amendments.’” performance, renders his obligation consideration of the legal 159 So. 3d at 46 (quot- too indefinite for legal enforcement.”’) theory asserted by BCBSAL ing Hoffman,The (quoting 12 Am. Jur. Contracts § is outside the subject-matter Malignant Mystique of 66). Cf. Beraha v. Baxter Health th jurisdiction of either the “Standing,” 73 Ala. Law. Care Corp., 956 F.2d 1436, 1440 (7 trial court or this Court. The 360, 362 (2012)). Cir. 1992) (an indefinite term may courts of this State exist for Ms. *10-13. The Court concludes that the ‘render[] a contract void for lack of the very purpose of perform- true issue before the Baldwin Circuit Court mutuality’ of obligation). ing such tasks as sorting out was not that of standing, but whether the what constitutes a cognizable homeowners associations were prop- “’Even though a manifestation of in- , what are the erly real parties in interest, an issue to be tention is intended to be understood as elements of a cause of action, determined in conformance with Rule an offer, it cannot be accepted so as to and whether the allegations 17(a), Ala. R. Civ. P. and its correspond- form a contract unless the terms of the of a given meet ing case law, including State v. Property at contract are reasonably certain.’ 17A those elements. Such tasks 2018 Rainbow Drive, 740 So. 2d 1025 (Ala. Am. Jur. 2d Contracts § 183 (2004). lie at the core of the judicial 1999). Ms. *13. ‘The terms of a contract are reason- function. See generally, e.g., Next, the Court rejects the Baldwin ably certain if they provide a basis for Art. VI, § 139(a), Ala. Const. Circuit Court’s reasoning that the terms determining the existence of a breach 1901 (vesting ‘the judicial of the agreement were so insufficiently and for giving an appropriate remedy.’ power of the state’ in this described and indefinite as to render the Id. (emphasis added). See also Smith, Court and lower courts of agreement unenforceable. Again, the 263 Ala. at 249, 82 So. 2d at 203.” the State); Art. VI, § 142, Court provided a scholarly synopsis of the Ala. Const. 1901 (providing requirements for enforceability of contracts White Sands Group, L.L.C. v. PRS that the circuit courts of this under Alabama law: II, LLC, 998 So. 2d 1042, 1051 (Ala. State ‘shall exercise general “’To be enforceable, the [essential] 2008). jurisdiction in all cases except terms of a contract must be suffi- as may otherwise be provided ciently definite and certain,Brooks “Generally speaking, our courts by law’). ... The issue Wyeth v. Hackney, 329 N.C. 166, 170, 404 have not favored the destruction of seeks to frame for this Court S.E.2d 854, 857 (1991), and a contract contracts on the grounds that they are as one of ‘standing’ is, in that “’leav[es] material portions open ambiguous, uncertain, or incomplete,

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see Alabama National Life Insurance Employees Retirement System of Alabama, the definition in the retirement plan benefit Co. v. National Union Life Insurance David Bronner, the Chief Executive Officer statute. Co., 275 Ala. 28, 151 So. 2d 762 and Secretary-Treasurer of the Retirement “Having reviewed the relevant statute (1963); Smith v. Chickamauga Cedar Systems of Alabama, and Thomas White, governing the [Employees Retirement Co., 263 Ala. 245, 82 So. 2d 200 State Comptroller, in their representative System] plan, [the Court] concludes (1955), and ‘will, if feasible, so construe capacities seeking injunctive relief and a that there is nothing within the a contract as to carry into effect the judgment declaring that participants in statutes that would indicate that the reasonable intention of the [contract- the defined-benefit pension plan operated legislature intended to contractually ing] parties if that can be ascertained.’ by the Employees Retirement System bind itself to any definition of “earn- McIntyre Lumber & Export Co. v. could make retirement contributions – and able compensation” that would include Jackson Lumber Co., 165 Ala. 268, 51 therefore receive increased retirement ben- overtime payments. Most notably, So. 767 (1910). Nevertheless, a trial efits – based upon a definition of “earnable until May 2012, the definition of court should not attempt to enforce a compensation,” which included payments “earnable compensation” in § 36-27- contract whose terms are so indefinite, received for overtime worked. 1(14) made no mention of overtime uncertain, and incomplete that the rea- The Court first rejected an asser- payments and, as explained supra, and sonable intentions of the contracting tion of Article I, § 14 state immunity by in the August 2011 Attorney General’s parties cannot be fairly and reasonably Governor Bentley, Dr. Bronner, and the Opinion, the language used in fact distilled from them. Alabama National other Employees Retirement System of- indicates that overtime payments were Life Insurance Co. v. National Union ficials. The Court construed the action as not “earnable compensation.” Life Insurance Co., supra ....” one seeking a and Ms. *30-31. Because up until 2012, therefore as an action falling within the the only thing which changed was the Cook v. Brown, 393 So. 2d 1016, 1018 recognized exceptions to § 14 immunity administrative interpretation of § 36-27- (Ala. Civ. App. 1981). including 1) actions brought to compel 1(14), none of the defined-benefit plan Ms. *15-16. Relying upon these prin- state officials to perform their legal duties; participants gained any vested rights in the ciples, the Court concludes the contract 2) actions brought to enjoin state officials administration’s prior erroneous interpreta- sufficiently described the geographic scope from enforcing an unconstitutional law; 3) tion as the Retirement Systems “long time of the parcels intended to be encompassed actions to compel state officials to perform erroneous interpretation of § 36-27-1(14) by the agreement and that the contracts ministerial acts; 4) actions brought under ... fail[ed] to bind the State in any respect.” provision that charges for sewer service the Declaratory Judgments Act, § 6-6-220, Ms. *33. were to be “competitive with charges made et seq., Ala. Code 1975, seeking construc- Finally, adhering to the rules of by others for similar services in the South tion of a statute and its application in a construction that the words in the 2012 Baldwin County vicinity” was analogous given situation; 5) valid inverse-condem- amendment to § 36-27-1(14) must be to phrases such as “fair market value” nation actions; and 6) actions seeking given their “plain and ordinary meaning” and “reasonable price” which “have been injunctive relief where it is alleged that and that the statute be read as a whole uniformly held to be sufficiently definite state officials have acted fraudulently, in (as required by State Superintendent of for enforcement.” Ms. *18-19 (string citing bad faith, beyond their authority, or under Education v. Alabama Education Ass’n, 144 cases holding such phrases enforceable). a mistaken interpretation of the law. Ms. So. 3d 265, 272-73 (Ala. 2003)), the Court *15-16, citing Ex parte Hampton, 189 So. concludes the legislature properly intended STATE IMMUNITY AND 3d 14 (Ala. 2015). to allow only limited overtime payments EMPLOYEES The Court next construes § 36-27- to be included within a member’s earnable RETIREMENT SYSTEM 1(14) in light of Ala. Op. Atty. Gen. No. compensation. OF ALABAMA-DEFINED 2011-090 (August 22, 2011) and the In sum, the Court concludes that legislature’s 2012 amendment of §36-27- before the 2012 amendment of § 36-27- BENEFIT PLAN 1(14). The Court rejects the contention 1(14), earnable compensation did not prop- that the state’s employees who participated erly include overtime payments regardless Southern States Police Benevolent in the defined-benefit plan had attained of how the Employees Retirement System Assn., Inc. v. Bentley, [Ms. 1150265, fixed and immutable rights in the plan may have improperly interpreted the 1150360, Sept. 23, 2016] __ So. 3d __ (Ala. through contributing to the plan for many statute and that the 2012 amendment to 2016). This per curiam opinion (Stuart, years based upon overtime paid. While the statute was properly interpreted by the Acting C.J., and Bolin, Parker, Shaw, and the Court has recognized generally that Retirement Systems to allow overtime pay- Wise, JJ., concur) affirms judgments of the participants in public pension plans can at- ments to be included within earnable com- Montgomery Circuit Court, which denied tain contractually vested rights which could pensation to a limited extent. Accordingly, an action by the Southern States Police not be abrogated by subsequent legislation the summary judgment entered by the Benevolent Association, Inc., and three (Ms. *20-26), those cases only arose in the Montgomery Circuit Court in favor of the City of Auburn police officer members context of legislation demonstrating an state is affirmed. who collectively sued Governor Bentley, unmistakable intent by the legislature to members of the Board of Control of the bind itself against prospectively changing

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WORKERS’ SECTION 43-2- “ ‘ “ ‘ The ore tenus rule COMPENSATION AND 290, ALA. CODE 1975, is grounded upon the CONTEMPT BY REMOVAL OF principle that when EMPLOYER PERSONAL the trial court hears REPRESENTATIVE oral testimony it has an opportunity to evalu- Augmentation, Inc. v. Harris, [Ms. ate the demeanor and 2150307, Sept. 23, 2016] __ So. 3d __ Wylie v. Estate of Cockrell, [Ms. credibility of witnesses.’ (Ala. Civ. App. 2016). The Court of Civil 1141405, Sept. 30, 2016] __ So. 3d __ (Ala. Hall v. Mazzone, 486 Appeals affirms the Tuscaloosa Circuit 2016). The Court affirms the Montgomery So. 2d 408, 410 (Ala. Court’s judgment holding an employer in Circuit Court’s affirmance of the 1986). The rule applies willful contempt pursuant to Rule 70A, Montgomery Probate Court’s decision to to ‘disputed issues of Ala. R. Civ. P., Overnight Transp. Co. v. remove a personal representative of an es- fact,’ whether the dispute McDuffie, 933 So. 2d 1092 (Ala. Civ. App. tate for reasons set forth in § 43-2-290(2), is based entirely upon 2005) and Ex parte Cowgill, 587 So. 2d (3), and (4), Ala. Code 1975. oral testimony or upon 1002 (Ala. 1991) for its failure to pay for a combination of oral an employee’s medical treatment. The The Court first notes the standard of testimony and docu- determination of whether to hold a party in review by which the circuit court was to mentary evidence. Born contempt is discretionary and “will not be abide in reviewing the initial determination v. Clark, 662 So. 2d 669, reversed on appeal absent a showing that of the probate court: 672 (Ala. 1995).” ‘ the trial court acted outside its discretion or II. Standard of Review that its judgment is not supported by the “998 So. 2d at 463 (quoting evidence.” Ms. *25-6, quoting Good Hope As this Court recently stated in Reed v. Board of Trs. for Contracting Co. v. McCall, 187 So. 3d 1128, Hardy ex rel. Estate of Carter v. Alabama State Univ., 778 So. 1142 (Ala. Civ. App. 2015). Here, the med- Hardin, [Ms. 1130612, Jan. 22, 2016] 2d 791, 795 (Ala. 2000)); see ical evidence from the employee’s treating __ So. 3d __ (Ala. 2016): also, e.g., Woods v. Woods, physician indicated that care for her back “The circuit court was sitting 653 So. 2d 312, 314 (Ala. Civ. injury including an epidural steroid injec- as an appellate court in this App. 1994) (‘[I]n determin- tion and anti-inflammatory patches were case and was bound by the ing the weight to be accorded warranted, but the employer failed to pres- ore tenus rule. The ore tenus to the testimony of any ent any evidence that its refusal to pay for rule required the circuit court witness, the trial court may the indicated medical treatment was rea- to defer to the probate court’s consider the demeanor of the sonable because it made its decision based factual determinations where witness and the witness’s ap- upon the utilization-review procedure set evidence supported those parent candor or evasiveness out in Alabama Admin. Code (Workers’ determinations. Specifically, . . . . It is not the province Compensation), Rule 480-5-5-.01, et seq., where evidence is presented of this court to override the or the procedure set forth in § 25-5-88, ore tenus, the findings of the trial court’s observations.’). Ala. Code 1975 permitting an employer to trial court are presumed cor- ‘Under the ore tenus rule, dispute its liability for an injury by filing a rect ‘and will not be disturbed the trial court’s judgment petition setting out the basis of the dispute on appeal absent a showing and all implicit findings as described in Total Fire Prot., Inc. v. Jean, of plain and palpable error.’ necessary to support it carry 160 So. 3d 795 (Ala. Civ. App. 2014). Pilalas v. Baldwin Cnty. Sav. a presumption of correctness.’ Because the trial court’s conclusion that & Loan Ass’n, 549 So. 2d Transamerica Commercial the employer had not properly investigated 92, 95 (Ala. 1989); see also Fin. Corp. v. AmSouth Bank, or challenged its obligation to pay for the Williams v. Thornton, 274 608 So. 2d 375, 378 (Ala. prescribed treatment before declining to Ala. 143, 144, 145 So. 2d 828, 1992). However, ‘[t]he ore pay for that treatment was supported by 829 (1962) (‘The finding of tenus rule does not extend the evidence, and because the employer the Probate Court based on to cloak with a presumption failed to show that it had invoked either the examination of witnesses of correctness a trial judge’s the utilization-review procedure set forth ore tenus is presumed to conclusions of law or the in- in Rule 480-5-5-.01, et seq., or the judicial be correct, and will not be correct application of law to review procedure set forth in § 25-5-88, disturbed by this court or the the facts.’ Waltman v. Rowell, the Tuscaloosa Circuit Court’s judgment Circuit Court unless palpably 913 So. 2d 1083, 1086 (Ala. holding the employer in contempt is af- erroneous.’). 2005).” firmed. “As this Court stated in Yeager v. Lucy, 998 So. 2d __So. 3d at __; see also 460 (Ala. 2008): Womack v. Estate of

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Womack, 826 So. 2d 138 2016). The Court reverses the judgment ing Baugus v. City of Florence, 985 So. 2d (Ala. 2002). of the Autauga Circuit Court entered 413 (Ala. 2007) (Ms. *29-31). The Court on a $100,000 verdict for Spence in holds that each time Fairhope enforced its Ms. *12-13. The Court then stated its own her claims against Dolgencorp (Dollar ordinances to stop Breland from filling ac- standard of review on appeal: General) for false imprisonment, assault tivity on this property, Fairhope committed and battery, invasion of privacy, negli- a new act that served as a basis for a new “This Court ‘ “review[s] gent training, malicious prosecution, and claim. the trial court’s conclu- defamation arising out of an incident at a Accordingly, the summary judgment sions of law and its Dollar General store in Prattville where entered by the Baldwin Circuit Court application of law to the Spence was alleged to have shoplifted against Breland on statute-of-statute limi- facts under the de novo mineral oil and hair spray. The Court finds tations grounds is reversed and the cause is standard of review.” ‘ “ substantial evidence to support the jury’s remanded for further proceedings. Espinoza v. Rudolph, verdict on the assault and battery claim 46 So. 3d 403, 412 (Ala. (Ms. *14-16), negligent-training claim (Ms. /CHANGE 2010) (quoting Ex parte *16-19), false-imprisonment claim (Ms. OF J.E., 1 So. 3d 1002, 1008 *19-23), but fails to find substantial evi- (Ala. 2008), quoting dence of malice to support the malicious- Ex parte Tier I Trucking, LLC, [Ms. in turn Washington v. prosecution claim (Ms. *23-30) or actual 1150740, Sept. 30, 2016] __ So. 3d __ (Ala. State, 922 So. 2d 145, malice to support her defamation claim 2016). The Court once again disregards 158 (Ala. Crim. App. (Ms. *30-34). Because the Court cannot the plain language of § 6-3-7(a), Ala. 2005)). presume that the verdict was based solely Code 1975, relative to proper venue, and upon the good counts, i.e., the claims that relies instead upon its own re-weighing Ms. *13. Upon review of the transcript of were supported by the evidence, a new trial of competing evidence of convenience the hearings before the probate court, the on the claims supported by the evidence is to find that the Circuit Court of Wilcox Supreme Court found ample statutory required pursuant to Cook’s Pest Control v. County exceeded its discretion in refusing bases for the circuit court’s affirmance of Rebar, 28 So. 3d 716 (Ala. 2009). Alfa Life to transfer a motor vehicle collision case the probate court’s determination that Ins. Corp. v. Jackson, 906 So. 2d 143 (Ala. from Wilcox County to Conecuh County Wylie should be removed as personal rep- 2005), and Waddell & Reed, Inc. v. United pursuant to Alabama’s forum non conveniens resentative, including her treatment of the Inv’rs Life Ins. Co., 875 So. 2d 1143 (Ala. statute, § 6-3-21.1(a), Ala. Code 1975. decedent’s share of assets and income of an 2003). Here, the Court “gives great weight to the LLC after his death as her own not subject DECLARATORY fact that the accident occurred in Conecuh to a distributive share to devisees set forth County and to the fact that no material in a will. Accordingly, the Montgomery JUDGMENT AND events occurred in Wilcox County” such Circuit Court’s judgment is due to be af- STATUTE OF that “[t]here is no reason to burden the firmed. LIMITATIONS people of Wilcox County with the use of their court services and other resources for Collaterally, the Court found insuf- a case that predominantly affects another Breland v. City of Fairhope, [Ms. ficient supporting evidence of the probate county, [while] we recognize the interest of 1131057, 1131210, Sept. 30, 2016] __ court’s award pursuant to Rule 17(d), Ala. the people of Conecuh County to have a So. 3d__ (Ala. 2016). The Court reverses R. Civ. P., of an $18,000 guardian ad litem case that arose in their county tried close to a summary judgment entered by the fee taxed against the personal represen- public view in their county.” Ms. *17-18. tative. On authority of Van Schaack v. Baldwin Circuit Court in favor of the City AmSouth Bank N.A., 530 So. 2d 740 (Ala. of Fairhope and against a landowner in an MORTGAGE action seeking declaratory relief and dam- 1998), and Whele v. Bradley, [Ms. 1101290, FORECLOSURE Oct. 30, 2015] __ So. 3d __ (Ala. 2015) ages based on Fairhope’s conduct in issuing (Ms. *25-29), the Court remands the cause stop-work orders based on local ordinances SUMMARY JUDGMENT for the Montgomery Circuit Court to purporting to regulate wetlands located Turner v. Wells Fargo Bank, N.A., ascertain whether sufficient evidence sup- within the City’s planning jurisdiction. [Ms. 2150320, Sept. 30, 2016] __ So. 2d ported taxation of a guardian ad litem fee The Court first determines that no __ (Ala. Civ. App. 2016). The Court of in that amount. statute of limitations applies to an ac- Civil Appeals affirms a summary judgment tion seeking prospective relief through a entered by the Jefferson Circuit Court in GOOD COUNT-BAD complaint for a declaratory judgment. Ms. favor of Wells Fargo in an action for eject- COUNT AND NEW *20-27. ment pursuant to § 6-6-280, Ala. Code TRIAL As to Breland’s claim based 1975. The court rejects the homeowner’s on losses incurred as a consequence of contention that Wells Fargo failed to pres- Fairhope’s stop-work order, the Court ent substantial evidence in support of its Dolgencorp, LLC v. Spence, [Ms. applies the two-year limitations period for summary judgment showing 1150124, Sept. 30, 2016] __ So. 3d __ (Ala. found in § 6-2-38(l), Ala. Code 1975, cit- WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 95 RECENT CIVIL DECISIONS that it was a holder of the note and the mortgage is delivered trustee in fact concedes mortgage at the time notice of the impend- merely for the purpose that summary judgment ing foreclosure sale was published. The of foreclosure, having no was inappropriate in court found that prior to such publication, ownership of the debt, is this case and that on an assignment of the note and mortgage not authorized to fore- the state of the current had been recorded such that Wells Fargo close in his own name, record there is a genuine was a holder and had authority to foreclose and execute a deed in his issue of material fact as based upon the reasoning in Smalls v. Wells name to the purchaser. to whether the trustee Fargo Bank, N.A., 180 So. 3d 910, 915-16 Ownership of the debt received an assignment (Ala. Civ. App. 2015), as follows: does not pass to such of the note so as to have In Gray v. Federal National agent merely because entitled it to execute the Mortgage Ass’n, 143 So. 3d 825 (Ala. the note is indorsed in power of sale in its own Civ. App. 2014), this court addressed a blank. Such foreclosure name. (It asserts that, nearly identical issue, stating: is ineffective, and a court if this case is returned “In Harris v. Deutsche Bank of equity may take juris- to the trial court, it will National Trust Co., 141 So. diction for the purpose introduce “conclusive 3d 482, 491 (Ala. 2013), our of foreclosure.’ evidence” of its receipt as supreme court reasoned: early as 2005 of the debt “ ‘236 Ala. at 215, 181 evidenced by the original “ ‘ The Harrises also argue So. at 240 (emphasis note signed by the that the power of sale added). The foreclo- Harrises). The summary described in the mortgage sure deed in this case judgment entered by was given by the Harrises was executed by the the trial court therefore as part of the security for trustee in its own is due to be vacated the repayment of the debt name, not on behalf of and the case remanded evidenced by the note and the lender, SouthStar, for a determination as can be “executed” only by or any other party to to whether the trustee the trustee if it was the which SouthStar may received an assignment party entitled to the money have assigned the note. by the note, and thus thus secured. They cite § The deed was effective the power to execute the 35–10–12, Ala. Code 1975, to transfer title and to corresponding power which states that the power foreclose the rights of of sale in its own name, to sell lands given in a mort- the mortgagor, therefore, before executing and de- gage “is part of the security only if the trustee, in its livering the foreclosure and may be executed by own name, was entitled deed.’ any person, or the personal to receive the money representative of any person secured by the note at “(Footnote omitted.). See who, by assignment or oth- the time it executed and also Ex parte BAC Home erwise, becomes entitled to delivered that deed. Loans Servicing, LP, 159 the money thus secured.” In So. 3d 31, 35-36 (Ala. 2013) Carpenter v. First National “’The parties agree in (holding that the right of the Bank, 236 Ala. 213, 181 their briefs, how- foreclosing entity to conduct So. 239 (1938), this Court ever, and we accept for a foreclosure sale must be applied the predecessor to § purposes of this case, proven in order to show that 35–10–12, stating: that the mortgage the buyer at a foreclosure sale given MERS “solely as has superior legal title and a “ ‘ “A power of sale in a a nominee for Lender cause of action to eject the mortgage of real estate and Lender’s succes- debtor). Further, in Coleman is a part of the security, sors and assigns” did not v. BAC Servicing, 104 So. 3d and passes to any one entitle MERS to the 195 (Ala. Civ. App. 2012), who by assignment money secured by the this court explained: or otherwise becomes mortgage. Accordingly, entitled to the money the subsequent assign- “ ‘Alabama law specifi- secured. Code 1923, § ment of that mortgage cally contemplates that 9010. by MERS to the trustee there can be a separa- did not accomplish tion. See § 35–10–12 “ ‘ “But an agent of such an assignment of that and Harton [v. Little, holder to whom the right to the trustee. The 176 Ala. 267, 57 So. 96 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

851 (1911)]. The a negotiable instrument. Ex parte Tidra Corp., [Ms. 2150940, Restatement (Third) of Thomas v. Wells Fargo Oct. 7, 2016] __ So. 3d __ (Ala. Civ. App. Property: Mortgages Bank, N.A., 116 So. 2016). The Court of Civil Appeals grants a takes the position that 3d 226, 233 (Ala. Civ. petition for a writ of mandamus and directs a note and mortgage App. 2012). A holder the Lee Circuit Court to set aside two or- can be separated but of a note secured by a ders concerning an employee who claimed that “[t]he mortgage mortgage is entitled to workers’ compensation benefits. becomes useless in enforce the terms of the First, the court holds that the Lee the hands of one who note. Perry v. Federal Circuit Court erred in sua sponte ordering does not also hold the Nat’l Mortg. Ass’n, 100 the employee to undergo a mental exami- obligation because So. 3d [1090,] 1094 nation pursuant to Rule 35(a), Ala. R. Civ. only the holder of the [(Ala. Civ. App. 2012)].’ P. The plain language of Rule 35(a) states obligation can foreclose.” that such an order “... may be made only on Restatement (Third) of “Sturdivant v. BAC Home motion for good cause shown ....” Because Property: Mortgages Loan Servicing, LP, 159 So. neither party moved the circuit court for an § 5.4, Reporter’s Note 3d 47, 55 (Ala. Civ. App. order directing such a mental examination, –- Introduction, cmt. a 2013) (footnote omitted); see the circuit court erred in sua sponte ordering at 386. The Restatement § 7-3-301, Ala. Code 1975 such an examination. Ms. *5-9. explains: “’The note is (providing that a holder is a The court also concludes that the the cow and the mort- ‘person entitled to enforce’ Lee Circuit Court erred in ordering the gage the tail. The cow the negotiable instrument). employer to pay for physical therapy can survive without a The negotiable instrument sessions for the employee without first tail, but the tail cannot must have been either issued determining compensability of the worker’s survive without the or negotiated to a person claims in conformance with Ex parte Publix cow.’” Id. at 387 (quot- or an entity in order for the Supermarkets, Inc., 963 So. 2d 654 (Ala. ing Best Fertilizers of transferee to become a holder. Civ. App. 2007). Reiterating its holding Arizona, Inc. v. Burns, § 7-3-302, Ala. Code 1975; in Ex parte Publix Supermarkets, the court 117 Ariz. 178, 179, Stone v. Goldberg & Lewis, explains that a trial court may not compel 571 P.2d 675, 676 (Ct. 6 Ala. App. 249, 259, 60 an employer to pay for medical treatment App.), reversed on other So.744, 748 (1912) (opinion for an employee without first holding an grounds, 116 Ariz. 492, on rehearing) (‘[T]he instru- evidentiary hearing on the issue of com- 570 P.2d 179 (1977)).’ ment must be “negotiated” pensability or utilizing either Rule 12(c), to the holder in order for the Ala. R. Civ. P. (authorizing a judgment “104 So. 3d at 205.” holder to be a “holder in due on the ), or Rule 56, Ala. R. Civ. 143 So. 3d at 830-31. course.”’). A negotiation re- P. (authorizing a summary judgment), quires a transfer of possession to determine the issue of compensabil- “An assignee of a debt and an indorsement by the ity without a trial. Ms. *9-10. Because the secured by a mortgage may holder if the instrument is evidence of compensability and necessity execute the right to foreclose. payable to an identified per- for such medical treatments was in dispute, § 35-10-1 and § 35-10-12, son or transfer by possession such that neither Rule 12(c)’s nor Rule 56’s Ala. Code 1975. ‘”The clear only if the instrument is pay- procedures could be invoked, and because test of the right of an assign- able to bearer. § 7-3-201(b), there was no evidence the Lee Circuit ee of the mortgage to exercise Ala. Code 1975.” Court had conducted an evidentiary hear- the power of sale under [§ ing concerning the issue of compensability, 35-10-1, Ala. Code 1975,] is Smalls v. Wells Fargo the order directing the employer to provide that such assignee is entitled Bank, N.A., 180 So. 3d the medical treatment was due to be va- to receive the money secured 910, 915-16 (Ala. Civ. cated. by the mortgage.”’ Ex parte App. 2015). GMAC Mor[t]g., LLC, 176 VENUE AND PROOF OF So. 3d 845, 848 (Ala. 2013) Ms. *23-27 (underlined emphases in CONVENIENCE (quoting Kelly v. Carmichael, original). 217 Ala. 534, 537, 117 So. 67, WORKERS’ Ex parte Gentile Company, LLC, 70 (1928)). ... [Ms. 2150901, Oct. 14, 2016] __ So. 3d COMPENSATION AND __ (Ala. Civ. App. 2016). The Court of “.... RULE 35(A) ALA. R. CIV. Civil Appeals grants a petition for a writ of P. MENTAL mandamus and directs the Circuit Court “ ‘In Alabama, a note of Jefferson County to vacate an order secured by a mortgage is EXAMINATION WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 97 RECENT CIVIL DECISIONS transferring the action to the Bessemer the petitioner and her husband. The wife Zimmerman v. Zimmerman, 655 So. division of Jefferson County upon finding contended that because the judge received 2d 1042, 1044 (Ala. Civ. App. 1995). that the party seeking a transfer of venue an ex parte communication from a non- “’The alleged bias and prejudice to be to the Bessemer division upon the basis party, the superintendent of a local school disqualifying must stem from an extra- of the relative convenience of the parties system, there was a reasonable basis for judicial source and result in an opinion (the Bright Star Restaurant, Inc.) failed to questioning the judge’s impartiality. The on the merits on some basis other than support its motion with evidence of con- Court of Civil Appeals denies the peti- what the judge learned from his par- venience. The pertinent standard of review tion upon finding that while the judge ticipation in the case.’” Medical Arts for a motion pursuant to § 6-3-21.1, Ala. did indeed receive an unsolicited ex parte Clinic, P.C. v. Henry, 484 So. 2d 385, Code 1975, is stated as follows: communication from the school super- 387-88 (Ala. 1986)(quoting United intendent, the wife failed to show how States v. Grinnell Corp., 384 U.S. 563, she had been materially prejudiced by the 583 (1966)). “’”A moving for a communication such that recusal was not transfer under § 6-3-21.1[, warranted. Pursuant to Canon 3.A.(4), Ala. Code 1975, the statute The statement of the standard of Alabama Canons of Judicial Ethics, governing venue transfers review is well-reasoned and helpful: “[a] judge should accord to every under the doctrine of forum person who is legally interested in a non conveniens,] has the “A trial judge’s ruling on a proceeding, or his lawyer, full right initial burden of showing that motion to recuse is reviewed to be heard according to law, and, the transfer is justified, based to determine whether the except as authorized by law, neither on the convenience of the judge exceeded his or her dis- initiate nor consider ex parte com- parties or witnesses or based cretion. See Borders v. City munications concerning a pending on the interest of justice.”’ Ex of Huntsville, 875 So. 2d or impending proceeding.” “Ex parte parte Kane, 989 So. 2d 509, 1168, 1176 (Ala. 2003). The communications are those that involve 511 (Ala. 2008) (quoting necessity for recusal is evalu- fewer than all of the parties who are Ex parte National Sec. Ins. ated by the ‘totality of the legally entitled to be present during Co., 727 So. 2d [788,] 789 facts’ and circumstances in the discussion of any matter.” James J. [(Ala. 1998)]). ‘Our review each case. [Ex parte City of] Alfini, Steven Lubet, Jeffrey Shaman, is limited to only those facts Dothan Pers. Bd., 831 So. 2d and Charles Gardner Geyh, Judicial that were before the trial [1,] 2 [(Ala. 2002)]. The test Conduct and Ethics § 5.02, 5–2 (4th court.’ Ex parte Kane, 989 is whether ‘”facts are shown ed. 2007). So. 2d at 511. Further, ‘those which make it reasonable for facts “must be based upon members of the public, or a Although “a private interview or ‘evidentiary material,’ which party, or counsel opposed to conversation between a judge and a does not include statements question the impartiality of witness or non-party (where interests of counsel in motions, briefs, the judge.”’ In re Sheffield, which might be affected by such and arguments.”’ Ex parte 465 So. 2d 350, 355–56 (Ala. conduct are not represented) could be Indiana Mills & Mfg., Inc., 1984) (quoting Acromag- deemed an impropriety and worthy of 10 So. 3d [536,] 541 n.3 Viking v. Blalock, 420 So. 2d criticism,” Stewart v. Stewart, 354 So. [(Ala. 2008)] (quoting Ex 60, 61 (Ala. 1982)).” 2d 816, 820 (Ala. Civ. App. 1977), a parte ADT Sec. Servs., Inc., Ex parte George, 962 So. 2d 789, 791 showing that such an ex parte commu- 933 So. 2d 343, 345 (Ala. (Ala. 2006). nication has occurred, without more, 2006)).” “The presumption in might not be sufficient to require a Alabama is that a judge trial judge’s disqualification. The party Ex parte Veolia Envtl. SVC, 122 So. is qualified and unbiased. seeking the trial judge’s recusal must 3d 839, 842 (Ala. Civ. App. 2013). Rikard v. Rikard, 590 So. 2d present sufficient evidence showing Ms. *8-9. 300 (Ala. Civ. App. 1991). that the trial judge has been biased or The burden is on the moving prejudiced by the ex parte communi- JUDICIAL RECUSAL party to present evidence cation “such that ‘a reasonable person establishing the existence knowing everything that the [trial] Ex parte Crawford, [Ms. 2150868, of bias or prejudice. Rikard. judge knows would have a “reasonable Oct. 14, 2016] __ So. 2d __ (Ala. Civ. App. Disqualifying prejudice or basis for questioning the [trial] judge’s 2016). The Court of Civil Appeals denies impartiality must be of a per- impartiality.”’” S.J.R. v. F.M.R., 984 a petition for a writ of mandamus which sonal nature and must stem So. 2d 468, 472 (Ala. Civ. App. 2007) sought to direct a Lauderdale circuit judge from an extrajudicial source. (quoting Ex parte Bryant, 682 So. 2d to recuse himself from further presiding Rikard.” 39, 41 (Ala. 1996), quoting in turn over an underlying divorce case between Ex parte Cotton, 638 So. 2d 870, 872 98 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

(Ala. 1994)). See also Canon 3.C.(1), merely because he received a tration, arbitration of that issue becomes Alabama Canons of Judicial Ethics letter from a party or some- mandatory for both parties. (“A judge should disqualify himself in one else who is interested in Also, in conformance with Dudley, a proceeding in which his disqualifica- a matter pending before that Hopton-Jones, Sims & Freeman, PLLP v. tion is required by law or his impar- judge – few cases would ever Knight, 57 So. 3d 68 (Ala. 2010), the issue tiality might reasonably be questioned be resolved. At some point, of whether a party’s claims are barred by ....”); and Medical Arts Clinic, P.C., however, a judge’s receipt of an applicable statute of limitations is to be 484 So. 2d at 387 (holding that when unauthorized communica- considered and ruled upon by the arbitra- a trial judge receives an ex parte com- tions about a case may so tor, not the court. munication, the evidence must be affect his impartiality, or the “sufficient to show bias or prejudice so appearance of that impartial- DIVORCE, ALIMONY, as to disqualify the trial judge”). ity, that he would be duty CHILD SUPPORT, bound to recuse. This is so, a DIVISION OF MARITAL “Attorneys usually realize that fortiori, where the inadver- ASSETS it is improper to initiate ex tently contacted judge has parte communications with voluntarily elected to respond a judge regarding a case that to such communications.” Person v. Person, [Ms. 2150225, Oct. is presently pending before 21, 2016] __ So. 3d__ (Ala. Civ. App. him, but the same is not nec- Richard E. Flamm, Judicial 2016). The Court of Civil Appeals affirms essarily true of members of Disqualification: Recusal and in part and reverses in part a divorce judg- the general public, who may Disqualification of Judges § 14.5.5, ment entered by the Crenshaw Circuit pick up the telephone and try pp. 395-97 (2d ed. 2007)(footnotes Court concerning the 20-year marriage to call a judge regarding such omitted). of former NBA star Wesley Person and a matter or send him a letter. his wife. The court concludes it is unable In fact, it is not at all uncom- When a trial judge receives an ex to affirm the Crenshaw Circuit Court’s mon for a judge to receive parte communication, “prompt disclo- judgment awarding alimony, child support, calls or letters from the public sure of the ex parte communication and property division because there was – particularly in a high- to all affected parties may avoid the no evidence presented by the parties from profile case. Judges should do need for other corrective action.” Elfin, which the circuit court could make accurate whatever they can to prevent et al., Judicial Conduct and Ethics determinations of the parties’ incomes, such inadvertent ex parte § 5.05, at 5-22. However, “[w]here the needs of the children, or of whether communications from occur- irremediable prejudice has occurred, of the wife would be able to maintain her ring, and should endeavor to course, disclosure will not be sufficient former marital standard of living absent disregard such communica- to avoid disqualification or reversal.” an award of periodic alimony. Accordingly, tions when they inadvertently Id. at 5-23. the cause is remanded for the circuit court receive them. But the mere Ms. *12-16. to reconsider its judgment as to alimony, fact that an unsolicited ex child-support and division of marital assets. parte communication has ARBITRATION taken place does not ordinar- PROBATE AND ily warrant judicial disquali- Hanover Ins. Co. v. Kiva Lodge ADMINISTRATION OF fication – much less reversal Condominium Owners Assoc., Inc., [Ms. FOREIGN ESTATE of any decision rendered by 1141331, Oct. 21, 2016] __ So. 3d __ (Ala. the challenged judge. This is 2016). The Supreme Court affirms an order Ex parte Scott, [Ms. 1140645, Oct. true a fortiori where the ex of the Baldwin Circuit Court granting a 28, 2016] __ So. 3d __ (Ala. 2016). The parte communication was motion to stay, pending arbitration, in a Supreme Court unanimously grants a peti- received by the judge after he commercial contract dispute about con- tion for a writ of mandamus directing the rendered that decision. struction repairs to a golf course club house Jefferson Probate Court to vacate its order and condominiums. The Court construes requiring beneficiaries of an estate to pay “There are sound reasons for the phrase “any claim arising out of or re- into the probate court distributions they not mandating judicial dis- lated to the contract ... may at the election were to receive from a concurrent admin- qualification on the basis of of either party ... be subject to arbitration istration of the estate in London, England. a judge’s inadvertent receipt ...” as requiring in conformance with Beni The Court concludes the Jefferson County of letters or telephone calls. Hana of Tokyo, LLC v. Beni Hana, Inc., 73 F. Probate Court has no jurisdiction to direct For one thing, [if] the rule Supp. 3d 238 (S. D. N.Y. 2014) mandatory control or distribution of the estate assets is otherwise – and a judge arbitration upon election of either party to from the English administration because were to be disqualified from the agreement. In other words, once one those assets derive from real property in presiding over a proceeding party elects to submit the dispute to arbi- England. Citing the principle of lex loci WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 99 RECENT CIVIL DECISIONS rei sitae as explained in Phillips v. Phillips, as to afford the trial court a full 90-day quoting Ex parte Lambert [Ms. 1130071, 213 Ala. 27, 104 So. 234 (1925), the Court period to rule on each separate motion Aug. 28, 2015] __ So. 3d __ (Ala. 2015), concludes the Jefferson Probate Court was (see Spina v. Causey, 403 So. 2d 199, and Huntsville City Bd. of Educ. v. Jacobs, without over the pro- 201 (Ala. 1981)).”). 194 So. 3d 929, 939 (Ala. Civ. App. 2014). ceeds from the sale of the lands in England Ms. *5. By contrast, the Court of Civil because of the Appeals’ standard of review of the hearing inherent right of every sovereign state, APPEAL AND officer’s order is de novo with no presump- for its own security and in keeping DISMISSAL tion of correctness. Ms. *3, citing Chilton with its dignity and independence, to Cty. Bd. of Educ. v. Cahalane, 117 So. 3d regulate the alienation, devise, or de- Graham v. City of Talladega, [Ms. 363 (Ala. Civ. App. 2012). scent of real estate within its borders. 2150803, Oct. 28, 2016] __ So. 3d __ Upon engaging in such a de novo re- Ms. *22, quoting Phillips v. Phillips, 213 (Ala. Civ. App. 2016). The Court of Civil view of the evidence presented to the Boaz Ala. at 29, 104 So. at 236. Appeals dismisses an appeal as untimely City School Board, the court (Ms. *4-14) concludes the school board could reason- POST-JUDGMENT where the appellant calculated her ap- peal deadline from the date of dismissal ably have concluded that the teacher failed MOTIONS of an amended complaint that she filed to adhere to board policy and, thus, just without previously obtaining leave of court cause existed for his termination pursuant Wynn v. Steger, [Ms. 2150789, Oct. in conformance with Rule 15(a), Ala. R. to § 16-24C-6(a), Ala. Code 1975. Because 28, 2016] __ So. 3d __ (Ala. Civ. App. Civ. P. (stating that “a party may amend a the board’s determination was reasonable, 2016). The Court of Civil Appeals reverses [after the 42nd day before the first the hearing officer erred in determining a judgment of the Madison Circuit Court trial setting] only by leave of court, and it was arbitrary or capricious such that Ex transferring custody of children from the leave shall be given only upon a showing parte Lambert required the board’s decision children’s maternal grandmother to their of good cause”). Because the appellant to be reinstated. mother based upon its failure to apply filed her amended complaint without FRIVOLOUS APPEAL the correct standard of review provided leave of court after the case had previously by Ex parte McClendon, 455 So. 2d 863 been set for trial, the court concludes she AND SANCTIONS (Ala. 1984). Of significance is the court’s “was not entitled to amend her complaint treatment of the grandmother’s successive ‘without leave of court.’” Ms. *7, citing Johnson v. Ives, [Ms. 2150613, Nov. 4, post-judgment motions and their impact Image Marketing, Inc. v. Florence Television, 2016] __ So. 3d __ (Ala. Civ. App. 2016). in establishing the deadline for filing her L.L.C., 884 So. 2d 822 (Ala. 2003), the In an extraordinary per curiam opinion, notice of appeal. The court notes that a court holds that the filing of the amended the court unanimously determines that valid and timely post-judgment motion complaint without leave of court resulted an appellant’s brief failed to comply with operates to extend the Rule 59.1, Ala. Rule in that amended complaint being a nullity the procedural requirements of Rule 28(a), Civ. P. 90-day period in which a trial court which, accordingly would not support an Ala. R. App. P., and thereby resulted in a may consider a post-judgment motion. Ms. appeal. waiver of appellant’s argument as provided *4, citing Curry v. Curry, 962 So. 2d 261 by White Sands Grp. L.L.C. v. PRS II, LLC, (Ala. Civ. App. 2007). The court also notes TEACHER DISCIPLINE 998 So. 2d 1042, 1048 (Ala. 2008). Under that a second post-judgment motion is AND STANDARD OF authority of Rule 38, Ala. R. App. P., the not precluded from consideration merely REVIEW court ex mero motu determined the appeal because a party previously filed an earlier was frivolous and awarded $1,500 damages post-judgment motion: to the appellee with instruction that the Boaz City School Board v. Stewart, fine was to be paid by the attorney and not ... Goodyear Tire & Rubber Co. v. [Ms. 2150582, Nov. 4, 2016] __ So. 3d charged against his client, the appellant. Haygood, 93 So. 3d 132, 140 (Ala. Civ. __ (Ala. Civ. App. 2016). The Court of App. 2012) (“[A] second postjudg- Civil Appeals unanimously reverses an CIVIL FORFEITURE AND ment motion is not to be precluded administrative determination of a hearing RULE 60(B), ALA. R. CIV. from the trial court’s consideration officer who, upon appellate review, reversed an earlier decision of the Boaz City School P., RELIEF FROM merely because a party already has JUDGMENT filed one postjudgment motion. The Board terminating a teacher’s employment trial court must look to the substance for abuse of its regulations concerning paid of the motion to see whether it medical leave. Bharara Segar LLC v. State of constitutes an ‘amendment’ to the first The court first noted that under the Alabama, [Ms. 2150663, Nov. 4, 2016] __ postjudgment motion.”); and Roden Students First Act, § 16-24C-1 et seq., So. 3d __ (Ala. Civ. App. 2016). The Court v. Roden, 937 So. 2d 83, 85 (Ala. Civ. Ala. Code 1975, hearing officers are sup- of Civil Appeals reverses a judgment of App. 2006) (“Rule 59.1 has been held posed to employ an “extremely deferential” the Etowah Circuit Court entered pursu- to apply separately to each distinct “arbitrary-and-capricious” standard of ant to an agreement between the Etowah timely filed postjudgment motion so review of employer’s decisions. Ms. *2, County District Attorney on behalf of 100 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS the State of Alabama and Subeet Arora, a injuries. Therefore, if that su- tions from administrations in Alabama member of Bharara Segar LLC, involving perior knowledge is lacking, hospitals of total parenteral nutrition condemnation and forfeiture of $5,000 as when the danger is obvi- injections. The issue of the amount of cash and a 2003 Mercedes-Benz E320 ous, the [store owner] cannot liability insurance coverage owed came vehicle pursuant to § 20-2-93, Ala. Code be held liable.” Id. (citation before the Supreme Court upon review of 1975. The court concludes the LLC’s due omitted).’” the Jefferson Circuit Court’s entry of sum- process rights were violated when the mary judgment. Because the circuit court Etowah Circuit Court entered judgment Horne v. Gregerson’s Foods, Inc., 849 interpreted the insurance policy as a matter based upon the agreement prior So. 2d 173, 176 (Ala. Civ. App. 2002) of law, its interpretation is subject on appeal to the time within which the LLC was (quoting Denmark v. Mercantile Stores to de novo review. Ms. *16. required pursuant to Rule 12(a), Ala. R. Co., 844 So. 2d 1189, 1194 (Ala. The basic rules concerning interpreta- Civ. P., to file its to the complaint 2002)). tion of insurance policies are as follows: for civil forfeiture. When publication of the Ms. *8-9. notice of the action is given pursuant to § “ ‘[q]uestions of open- “’When analyzing an insur- 28-4-286, Ala. Code 1975, individuals who ness and obviousness of a ance policy, a court gives have an interest in the property at risk of defect or danger and of an words used in the policy condemnation and forfeiture are entitled by [invitee’s] knowledge are their common, everyday due process to the time prescribed by law generally not to be resolved meaning and interprets them to file an answer and contest the claim. on a motion for summary as a reasonable person in In this case, while Mr. Arora may judgment.’ Harding v. Pierce the insured’s position would have been a member of the LLC when he Hardy Real Estate, 628 So. have understood them. personally entered the settlement agree- 2d 461, 463 (Ala. 1993). See Western World Ins. Co. v. ment with the district attorney, there was also Woodward [ v. Health City of Tuscumbia, 612 So. no showing that the LLC itself agreed Care Auth. of Huntsville, 727 2d 1159 (Ala. 1992); St. to the purported settlement agreement. So. 2d 814 (Ala. Civ. App. Paul Fire & Marine Ins. Co. Thus, the LLC’s Rule 60(b), Ala. R. Civ. 1998)]. Additionally, ‘this v. Edge Mem’l Hosp., 584 P., motion for relief from judgment was Court has indicated that even So. 2d 1316 (Ala. 1991). If, due to be granted, and the Etowah Circuit though a defect is open and under this standard, they are Court’s order and judgment reversed and obvious, an injured invitee reasonably certain in their remanded. is not barred from recovery meaning, they are not ambig- where the invitee, acting uous as a matter of law and SUMMARY JUDGMENT reasonably, did not appreciate the rule of construction in AND OPEN AND the danger of the defect.’ favor of the insured does not OBVIOUS DANGER Young v. La Quinta Inns, Inc., apply. Bituminous Cas. Corp. 682 So. 2d 402, 404 (Ala. v. Harris, 372 So. 2d 342 1996).” (Ala. Civ. App. 1979). Only Smith v. Wells Fargo Bank, NA, [Ms. in cases of genuine ambiguity 2150715, Nov. 4, 2016] __ So. 3d __ (Ala. Ex parte Kraatz, 775 So. 2d 801, 804 or inconsistency is it proper Civ. App. 2016). The court reverses a sum- (Ala. 2000). to resort to rules of construc- mary judgment entered by the Jefferson Ms. *9-10. tion. Canal Ins. Co. v. Old Circuit Court in a premises liability case Republic Ins. Co., 718 So. 2d upon concluding that jury questions were 8 (Ala. 1998). A policy is not presented on whether the premises owner AND CONSTRUCTION made ambiguous by the fact had actual or constructive knowledge of OF INSURANCE POLICY that the parties interpret the defects in a chair that failed and injured the policy differently or disagree plaintiff. as to the meaning of a writ- “ ‘A condition is “open and Pharmacists Mutual Ins. Co. v. ten provision in a contract. obvious” when it is “known Advanced Specialty Pharmacy LLC, [Ms. Watkins v. United States Fid. to the [plaintiff ] or should 1140046, Nov. 18, 2016] __ So. 3d __ (Ala. & Guar. Co., 656 So. 2d 337 have been observed by the 2016). The Court reverses a judgment of (Ala. 1994). A court must [plaintiff ] in the exercise of the Jefferson Circuit Court which held in not rewrite a policy so as to reasonable care.” Quillen v. the context of an interpleader action that a include or exclude coverage Quillen, 388 So. 2d 985, 989 commercial general liability insurer owed that was not intended. Upton (Ala. 1980). “The entire basis an additional $3 million in liability insur- v. Mississippi Valley Title of [a store owner’s] liabil- ance coverage under its policies’ products/ Ins. Co., 469 So. 2d 548 (Ala. ity rests upon [its] superior completed work-hazard aggregate limit to 1985).’ knowledge of the danger afford coverage for 17 injuries and 9 deaths which causes the [customer’s] attributable to serious bloodstream infec- WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 101 RECENT CIVIL DECISIONS

“B.D.B. v. State Farm Mut. before the Tallapoosa Circuit Court were to dismiss.’ Ex parte D.M. Auto. Ins. Co., 814 So. 2d whether the decedent had testamentary White Constr. Co., 806 So. 877, 879-80 (Ala. Civ. App. capacity to execute the will, whether it was 2d 370, 372 (Ala. 2001); see 2001). However, if a provi- properly executed, and whether there was Ex parte CTB, Inc., 782 sion in an insurance policy is undue influence in its execution. Since the So. 2d 188, 190 (Ala. 2000). found to be genuinely am- circuit court went beyond these issues to ‘[A] writ of mandamus is biguous, ‘policies of insurance construe the testamentary trust, it exceeded an extraordinary remedy, should be construed liberally its jurisdiction such that its judgment was which requires the petitioner in respect to persons insured required to be reversed. to demonstrate a clear, legal and strictly with respect to right to the relief sought, or the insurer.’ Crossett v. St. OUTBOUND FORUM an abuse of discretion.’ Ex Louis Fire & Marine Ins. SELECTION CLAUSE parte Palm Harbor Homes, Co., 289 Ala. 598, 603, 269 Inc., 798 So. 2d 656, 660 So. 2d 869, 873 (1972).” Ex parte PT Solutions Holdings, LLC, (Ala. 2001). ‘[T]he review [Ms. 1150687, Nov. 23, 2016] __ So. 3d __ of a trial court’s ruling on State Farm Mut. Auto. Ins. (Ala. 2016). The Supreme Court grants a the question of enforcing a Co. v. Brown, 26 So. 3d 1167, petition for a writ of mandamus and directs forum-selection clause is for 1169-70 (Ala. 2009). the Barber Circuit Court to vacate an order an abuse of discretion.’ Ex Ms. *16-17. Here, the Court concludes the denying a motion to dismiss a complaint parte D.M. White Constr. Jefferson Circuit Court erred in construing based upon a contractually agreed-upon Co., 806 So. 2d at 372.” the language of the products/completed- outbound forum selection clause which work-hazard aggregate limit such that its requires litigation of claims between the Ex parte Leasecomm Corp., 886 So. judgment was due to be reversed. parties to take place in Fulton County, 2d 58, 62 (Ala. 2003). Ms. *11. WILL CONTEST Georgia. The standard of review in determin- ing whether an outbound forum selection Under authority of M/S Bremen v. Ray v. Huett, [Ms. 1150572, Nov. clause is enforceable is as follows: Zapata Off-Shore Co., 407 U.S. 1 (1972), 23, 2016] __ So. 3d __ (Ala. 2016). The II. Standard of Review Professional Ins. Corp. v. Sutherland, 700 So. Supreme Court reverses a judgment of the “[A]n attempt to seek en- 2d 347 (Ala. 1997, and Ex parte Leasecomm Tallapoosa Circuit Court in a will contest forcement of the outbound Corp., supra, 886 So. 2d at 62-63, the Court which was transferred to the circuit court forum-selection clause is rejected challenges to this particular clause from the Tallapoosa Probate Court pursu- properly presented in a premised upon the contention that the fo- ant to § 43-8-198, Ala. Code 1975. The motion to dismiss without rum selection clause is invalid because it is Court concludes the circuit court had no prejudice, pursuant to Rule contained in a non-competition agreement subject-matter jurisdiction to address and 12(b)(3), Ala. R. Civ. P., for involving professionals which allegedly construe the purported testamentary-trust contractually improper venue. violates Alabama public policy. The Court provision of the will as its jurisdiction was Additionally, we note that a holds instead that M/S Bremen requires limited to the issues expressly raised by the party may submit evidentiary forum selection clauses to be unenforceable pleadings, namely whether the decedent matters to support a mo- only when enforcement of the forum selec- had the capacity to make the will, whether tion to dismiss that attacks tion clause itself would contravene a strong it was properly executed, and whether it venue. Williams v. Skysite public policy of the forum in which the suit was the product of undue influence. Given Communications Corp., 781 is brought. In other words, the focus must the limited scope of jurisdiction afforded So. 2d 241 (Ala. Civ. App. be on whether the forum selection clause will contests by § 43-8-190, Ala. Code 2000), quoting Crowe v. City contravenes public policy, not whether 1975 and the mandate in § 43-8-198 that of Athens, 733 So. 2d 447, the underlying contract that contains the “[t]he issues must be made up in the circuit 449 (Ala. Civ. App. 1999).” forum selection clause contravenes public court as if the trial were to be had in the policy. Ms. *15-16. Because “[i]t has long probate court ...” the circuit court upon a Ex parte D.M. White Constr. Co., 806 been established that forum selection § 43-8-198 transfer is limited to the trial So. 2d 370, 372 (Ala. 2001). clauses are not against Alabama public of the issues presented by the contest and policy ....” Ex parte Riverfront, LLC, 129 once those issues are determined the case “’[A] petition for a writ of So. 3d 1008, 1015 (Ala. 2013)(Ms. *16), must be certified back to the probate court mandamus is the proper the contractually agreed-upon outbound under authority of Bardin v. Jones, 371 So. vehicle for obtaining review forum selection clause requiring litigation 2d 23 (Ala. 1979) and Jean v. Jean, 32 So. of an order denying enforce- of the parties’ disputes to be conducted in 3d 1274 (Ala. 2009). While a circuit court ment of an “outbound” Georgia warrants dismissal of the can in an appropriate case entertain ad- forum-selection clause when between the parties in the Barber Circuit ditional issues properly raised, the present it is presented in a motion Court. Accordingly, the petition for writ record reveals that the only issues properly of mandamus is granted and the Barber 102 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

Circuit Court is ordered to grant the mo- to set aside a based upon 2, 2016] __ So. 3d __ (Ala. 2016). The tion to dismiss without prejudice. a failure to properly perfect service upon Court grants mandamus and orders the an LLC. Because service was directed Bibb Circuit Court to vacate an order RULE 59.1, ALA. R. CIV. only to the LLC and was signed for by an denying a motion to transfer an action P. AND DENIAL OF employee who was not an officer, partner, concerning an automobile collision to POST-JUDGMENT managing agent, general agent, or agent the Shelby Circuit Court on the basis of MOTION BY authorized by appointment or by law to forum non conveniens. Reiterating its stance receive service of process, service was not that “[t]he ‘interest of justice’ prong of § OPERATION OF LAW perfected as required by Rule 4(c) such that 6-3-21.1 requires ‘the transfer of the action the default judgment taken against that from a county with little, if any, connec- Ex parte Genesis Pittman, [Ms. LLC was void. See Boudreaux v. Kemp, 49 tion to the action, to the county with a 1150947, Dec. 2, 2016] __ So. 3d __ (Ala. So. 3d 1190, 1194 (Ala. 2010)(“the failure strong connection to the action’” [Ms. 2016). The Court unanimously (Shaw, to effect proper service under Rule 4, Ala. *5], the Court “gives great weight to the J., and Stuart, Bolin, Parker, Murdock, R. Civ. P., deprives the trial court of per- fact that the accident occurred in Shelby Main, Wise, and Bryan, JJ., concurring) sonal jurisdiction over the defendant and County and to the fact that no material grants a petition for a writ of mandamus renders a default judgment void.”). Rule events occurred in Bibb County” (Ms. *6), and directs the Jefferson Circuit Court to 4(c)(6), Ala. R. Civ. P. directs to whom such that Ex parte Wayne Farms, LLC [Ms. vacate its order setting aside a prior sum- certified mail must be addressed: 1150404, May 27, 2016], __ So. 3d __ (Ala. mary judgment because the circuit court’s 2016), Ex parte Manning, 170 So. 3d 638 order was entered on a date beyond the “(c) Upon Whom Process Served. (Ala. 2014), Ex parte Autauga Heating and 90-day deadline imposed by Rule 59.1, Service of process ... shall be made as Cooling, LLC, 58 So. 3d 745 (Ala. 2010), Ala. R. Civ. P. Noting (Ms. *3-4), Rule follows: and Ex parte Indiana Mills & Mfg. Co., Inc., 59.1’s provision that “[a] failure by the trial 10 So. 3d 536 (Ala. 2008) warrant transfer- court to render an order disposing of any “.... ring this action to Shelby County. pending post-judgment motion within the time permitted hereunder, or any extension “(6) Corporations and Other JURISDICTION AND thereof, shall constitute a denial of such Entities. Upon a domestic or foreign ATTORNEY FEE motion as of the date of the expiration of corporation or upon a partnership, the period,” the Court holds there cannot limited partnership, limited liability Ex parte Hill, [Ms. 1150162, 1150148, be any implied consent to an extension partnership, limited liability company, Dec. 9, 2016] __ So. 3d __ (Ala. 2016). of the 90-day period provided for in Rule or unincorporated organization or The Court holds that when an estate is 59.1. Citing Higgins v. Higgins, 952 So. 2d association, by serving an officer, a properly removed from the probate court 1144 (Ala. Civ. App. 2006), Alabama Elect. partner (other than a limited partner), to the circuit court pursuant to § 12-11-41, Co. v. Dobbins, 744 So. 2d 928 (Ala. Civ. a managing or general agent, or any Ala. Code 1975, the circuit court acquires App. 1999), and Farmer v. Jackson, 553 So. agent authorized by appointment or by constitutional authority to enter orders 2d 550 (Ala. 1989), the Court reiterates law to receive service of process.” necessary to resolve issues attendant to (Ms. *6-7) that any extension of the 90-day the administration of the estate pursu- deadline must be by express consent or (Emphasis added.) ant to Ala. Const. of 1901, Art. VI, § 144 by the grant of an extension of time by an (providing that “whenever the circuit court appellate court. Because the circuit court’s For service by certified mail to a busi- has taken jurisdiction of the settlement order purporting to set aside the earlier ness entity to be effective, Rule 4(i)(2)(C) of any estate, it shall have power to do all summary judgment was entered beyond requires delivery to an “addressee,” who things necessary for the settlement of such the 90-day deadline imposed by Rule 59.1, must be a person as identified in Rule 4(c) estate”). Ms. *18. Accordingly, the circuit that order was a nullity per Alabama Dep’t (6) or to the addressee’s agent specifi- court had subject matter jurisdiction to of Indus. Relations v. Roberson, 97 So. 3d cally authorized to receive the addressee’s determine whether a contingency fee owed 176 (Ala. Civ. App. 2012). mail. Ms. *11-12. Accordingly, because to attorneys constituted an administrative the underlying default judgment was void, DEFAULT JUDGMENT expense of the estate. Ms. *19. mandamus was warranted to direct the However, under general contract AND RULE 4(C), ALA. R. Colbert Circuit Court to set aside the law principles, a court must enforce an CIV. P. SERVICE OF default judgment and to enter an order set- unambiguous, lawful contract as it is writ- PROCESS ting aside the default judgment. ten. Ms. *21-2, citing Ex parte Dan Tucker VENUE AND § 6-3-21.1, Auto Sales, Inc., 718 So. 2d 33, 35-36 (Ala. Ex parte Lereta, LLC, [Ms. 1151054, 1998). Here, the circuit court exceeded ALA. CODE 1975 FORUM the scope of its discretion by ordering that Dec. 2, 2016] __ So. 3d __ (Ala. 2016). NON CONVENIENS The Court grants a petition for a writ of an attorney’s fee agreement providing for mandamus and directs the Colbert Circuit a contingent fee of 40% of any recovery Court to vacate its order denying a motion Ex parte Benton, [Ms. 1151181, Dec. including cash, real or personal property, WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 103 RECENT CIVIL DECISIONS stock in a company, and ownership in real such that its arguments are waived under where on review it is estate would be construed to require the authority of White Sands Grp., L.L.C. v. easily perceivable from estate to pay the attorney fee in cash in a PRS II, LLC, 998 So. 2d 1042 (Ala. 2008). the record that the jury lump sum. Ms. *22-3. “Because the employer and the carrier have verdict is supported by failed to present this court with an argu- the evidence.’ GARNISHMENT AND ment containing relevant legal authorities, RIGHT TO CONTEST we conclude that the employer and the Ms. * 5-6, quoting Jawad, 497 So. 2d at carrier waived their argument that the trial 477, and Scott v. Parnell, 775 So. 2d 789, Fields v. State Department of Human court wrongfully denied the motion to 791 (Ala. 2000). Resources, [Ms. 2150799, Dec. 9, 2016] __ intervene.” Ms. * 6-7. The three-vote majority concludes, based upon conflicting testimony, that the So. 3d __ (Ala. Civ. App. 2016). The court NEW TRIAL; WEIGHT holds “Alabama’s garnishment statutes jury’s verdict was supported by the evidence recognize that both the putative garnishee OF THE EVIDENCE such that the St. Clair Circuit Court ex- and the defendant are entitled to notice ceeded its discretion in granting a new trial and an opportunity to appear as parties in Taylor v. Wheeler, [Ms. 2150776, when the evidence was sufficient to support interest entitled to assert their respective Dec. 16, 2016] __ So. 3d __ (Ala. Civ. the jury’s verdict. positions as to the plaintiff ’s garnishment App. 2016). The sharply divided Court of ADMINISTRATIVE claim.” Ms. *11, quoting Robbins v. State Civil Appeals (Thomas, J., and Pittman, J., ex rel Priddy, 109 So. 3d 1128 (Ala. Civ. concur; Donaldson, J., concurs specially; AGENCIES; RIGHT TO A App. 2012). Here, the Jefferson Circuit Thompson, P.J., dissents, with writing, HEARING Court permitted a former husband’s wages with which Moore, J., joins), reverses the to be garnished from his employer under St. Clair Circuit Court’s order granting ABC Coke v. GASP, Inc., [Ms. authority of a writ of garnishment served a new trial based on weight of evidence 2150489, 2150490, Dec. 16, 2016] __ So. by the Department of Human Resources grounds in an automobile collision/sud- 3d __ (Ala. Civ. App. 2016). This appeal without affording the former husband an den emergency case upon finding that the concerns the right of a public interest en- opportunity to appear before the court and circuit court exceeded its discretion because tity to challenge a state agency’s issuance of contest the writ. The court holds “that the the verdict was not against the great weight a permit affecting air pollution. Specifically, person whose wages are subject to a writ or preponderance of the evidence. GASP, Inc. (aka “Group Against Smog of garnishment is entitled to be heard if a The Court states the standard for and Pollution”), a not-for-profit corpora- hearing is requested.” Ms. *1-2. granting a new trial in such circumstances: tion, sought a hearing before the Jefferson A trial court may grant a new trial County Board of Health (“JCBH”), a local when it “believes that justice demands health authority established pursuant to that a new trial be granted on the § 22-4-1, Ala. Code 1975, and the state RGIS Inventory Specialists v. Huey, weight and preponderance ground.” agency responsible for enforcement of local [Ms. 2150801, Dec. 16, 2016] __ So. 3d Jawad v. Granade, 497 So. 2d 471, 477 air pollution standards pursuant to Title V __ (Ala. Civ. App. 2016). The Court of (Ala. 1986). of the Clean Air Act, 42 U.S.C. § 7401- Civil Appeals affirms the Sumpter Circuit 7671q, regarding ABC Coke’s effort to Court’s denial of a workers’ compensa- “In the landmark case Jawad obtain a renewal permit for ongoing opera- tion insurance carrier’s motion for leave v. Granade, 497 So. 2d 471 tions at its plant in Tarrant. When GASP’s to intervene in a third party action. The (Ala. 1986), this Court estab- petition requesting a hearing before JCBH court notes “[a]n order denying a motion lished the standard of review to contest the renewal of the Title V permit to intervene is a final judgment that will it would apply in cases where to ABC Coke was declined, GASP filed a support an appeal.” Ms. * 3, n. 2, citing a party appeals from an order petition for judicial review of that agency’s Universal Underwriters Ins. Co. v. Anglen, granting a motion for a new administrative determination pursuant to 630 So. 2d 441 (Ala. 1993). trial on the basis that the § 41-22-20, Ala. Code 1975. The Jefferson The court also notes that a joint stipu- jury’s verdict was ‘against the Circuit Court ultimately concluded that lation of dismissal based upon a settlement great weight or preponder- GASP qualifies as a “person aggrieved” of the third party action does not necessar- ance of the evidence’: under JCBH’s Rules of Administrative ily moot an appeal from the denial of the Procedure and that its petition requesting motion for leave to intervene. Ms. * 4-5, “’[A]n order granting a hearing should have been granted. JCBH citing Purcell v. Bank Atlantic Fin. Corp., 85 a motion for new trial and ABC Coke (which had intervened in F.3d 1508 (11th Cir. 1996). on the sole ground that the circuit court action) then filed separate While this particular workers’ com- the verdict is against notices of appeal. pensation carrier may properly have sought the great weight or The standard of review applicable to leave to intervene, its failure to cite control- preponderance of the an appeal from a trial court’s judgment ling Alabama authorities constituted a evidence will be reversed regarding a decision of an administrative violation of Rule 28(a)(10), Ala. R. App. P., for abuse of discretion agency is stated as follows:

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“This court reviews a trial court’s “’(5) Affected by other error its officials must vigorously comply judgment regarding the decision of of law; with those requirements; regulations an administrative agency ‘without any are regarded as having the force of law presumption of its correctness, since “’(6) Clearly erroneous in and, therefore, become a part of the [the trial] court was in no better posi- view of the reliable, probative, statutes authorizing them.” Hand v. tion to review the [agency’s decision] and substantial evidence on State Dep’t of Human Res., 548 So. 2d than’ this court. State Health Planning the whole record; or 171, 173 (Ala. Civ. App. 1988). & Res. Dev. Admin. v. Rivendell of Ms. * 21. Because JCBH’s rules were pro- Alabama, Inc., 469 So. 2d 613, 614 “’(7) Unreasonable, arbitrary, mulgated pursuant to authority afforded by (Ala. Civ. App. 1985). Under the or capricious, or characterized the Alabama Administrative Act, Alabama Administrative Procedure by an abuse of discretion or a “...so long as the agency holds out, Act (‘AAPA’), § 41-22-1 et seq., Ala. clearly unwarranted exercise through a duly adopted and promul- Code 1975, which governs judicial of discretion.’ gated agency regulation having the review of agency decisions, force of law, that a [specific] procedure “§ 41-22-20(k), Ala. Code is required – and since such an alterna- “’[e]xcept where judicial 1975 .... In reviewing the tive to the AAPA procedure is autho- review is by trial de novo, decision of a state adminis- rized by § 41-22-20(b) – the agency the agency order shall be trative agency, ‘[t]he special must be held to its own standard.” Id. taken as prima facie just and competence of the agency at 174. reasonable and the court shall lends great weight to its Ms. * 21, quoting Hand, 548 So. 2d at 174. not substitute its judgment decision, and that decision The court concludes that while “an for that of the agency as to must be affirmed, unless it agency is afforded deference in its deci- the weight of the evidence is arbitrary and capricious sions, the agency decision must be reversed on questions of fact, except or not made in compliance when ‘substantial rights of the petitioner where otherwise authorized with applicable law.’ Alabama has been prejudiced because the agency by statute. The court may Renal Stone Inst., Inc. v. action is ... [i]n violation of any pertinent affirm the agency action Alabama Statewide Health agency rule.’” or remand the case to the Coordinating Council, 628 So. agency for taking additional 2d 821, 823 (Ala. Civ. App. Ms. * 25, citing § 41-22-20(k)(3), Ala. testimony and evidence or 1993). ... Neither this court Code 1975, and Ex parte Wilbanks Health for further proceedings. The nor the trial court may sub- Care Servs, Inc., 986 So. 2d 422, 425 (Ala. court may reverse or modify stitute its judgment for that 2007). the decision or grant other of the administrative agency. appropriate relief from the Alabama Renal Stone Inst., DECLARATORY agency action, equitable or Inc. v. Alabama Statewide JUDGMENT; SUBJECT legal, including declaratory Health Coordinating Council, MATTER JURISDICTION relief, if the court finds that 628 So. 2d 821, 823 (Ala. the agency action is due to be Civ. App. 1993). ‘This holds set aside or modified under true even in cases where the Privilege Underwriters Reciprocal standards set forth in appeal testimony is generalized, the Exchange v. Grayson, [Ms. 1150927, or review statutes applicable evidence is meager, and rea- Dec. 16, 2016] __ So. 3d __ (Ala. 2016). to that agency or if substan- sonable minds might differ as Privilege Underwriters Reciprocal tial rights of the petitioner to the correct result.’ Health Exchange (“PURE”), a Florida insurance have been prejudiced because Care Auth. of Huntsville v. exchange, obtained a judgment, entered the agency action is any one State Health Planning Agency, upon a jury verdict, after a three-day trial, or more of the following: 549 So. 2d 973, 975 (Ala. Civ. declaring that Grayson was not entitled App. 1989).” to coverage under the uninsured-motorist “’(1) In violation of constitu- Colonial Mgmt. Grp., L.P. v. State portion of an automobile insurance tional or statutory provisions; Health Planning & Dev. Agency, 853 policy. The Mobile Circuit Court granted So. 2d 972, 974–75 (Ala. Civ. App. Grayson’s motion to set aside the judgment “’(2) In excess of the statutory 2002)(emphasis omitted). based upon his contention that the judg- authority of the agency; Ms. * 8-10. The court concludes that ment was void for lack of subject-matter GASP’s petition met the administrative jurisdiction since there was no justiciable “’(3) In violation of any perti- requirements promulgated by JCBH such controversy at the time PURE filed its nent agency rule; that it should have been afforded a hearing. complaint for a declaratory-judgment pur- “[W]here an agency prescribes rules suant to § 6-6-220 et seq., Ala. Code 1975. “’(4) Made upon unlawful and regulations for the orderly ac- The Supreme Court reverses the order set- procedure; complishment of its statutory duties, ting aside the judgment upon concluding WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 105 RECENT CIVIL DECISIONS the Mobile Circuit Court had jurisdiction 2018 Rainbow Drive, 740 So. quoting in turn Town of over the declaratory-judgment action. 2d 1025, 1029 (Ala. 1999). Warrior v. Blaylock, 275 Ala. The standard of review on appeal from ‘”Any other action taken by a 113, 114, 152 So. 2d 661, 662 an order granting relief under Rule 60(b) court lacking subject matter (1963)).... (4), Ala. R. Civ. P. (“the judgment is void”) jurisdiction is null and void.”’ is straightforward and dispositive: Id. (quoting Beach v. Director “In determining whether of Revenue, 934 S.W.2d 315, [PURE’s] complaint alleges a 318 (Mo. Ct. App. 1996)). ... bona fide justiciable contro- “The standard of review on versy, we ‘must accept the al- appeal from an order grant- “This Court has recog- legations of the complaint as ing relief under Rule 60(b) nized that a purpose of the true,’ and ‘must also view the (4), Ala. R. Civ. P. (‘the judg- Declaratory Judgment Act, allegations of the complaint ment is void’), is not whether codified at §§ 6–6–220 most strongly in [PURE’s] the trial court has exceeded through –232, Ala. Code favor.’ Harper, 873 So. 2d at its discretion. When the deci- 1975, is ‘to enable parties 223.” sion to grant or to deny relief between whom an actual turns on the validity of the controversy exists or those Gulf Beach Hotel, Inc. v. State ex rel. judgment, discretion has no between whom litigation is Whetstone, 935 So. 2d 1177, 1182-83 field of operation.Cassioppi v. inevitable to have the issues (Ala. 2006)(emphasis omitted). Damico, 536 So. 2d 938, 940 speedily determined when Ms. * 7-9. Adhering to the principle that (Ala. 1988). ‘If the judgment a speedy determination neither party to an insurance contract is void, it is to be set aside; would prevent unneces- “should be compelled to wait until the if it is valid, it must stand.... sary injury caused by the events giving rise to liability had occurred A judgment is void only if delay of ordinary judicial before having a determination of the rights the court which rendered it proceedings.’ Harper v. and obligations under the policy” (Ms. * 10, lacked jurisdiction of the sub- Brown, Stagner, Richardson, quoting Federated Guaranty Life Insurance ject matter, or of the parties, Inc., 873 So. 2d 220, 224 Co. v. Bragg, 393 So. 2d 1386, 1388-89 or if it acted in a manner in- (Ala. 2003).... Further, ‘[w] (1981)), the Court concludes that PURE’s consistent with due process.’ e have recognized that a action seeking a declaratory-judgment Seventh Wonder v. Southbound justiciable controversy is one about whether uninsured motorist benefits Records, Inc., 364 So. 2d 1173, that is “’definite and concrete, were owed to Grayson based upon the 1174 (Ala. 1978) (emphasis touching the legal relations policy’s residency requirement stated a added).” of the parties in adverse legal bona fide justiciable controversy such that interest, and it must be a real the Circuit Court of Mobile County did in Ex parte Full Circle Distribution, and substantial controversy fact obtain subject-matter jurisdiction. L.L.C., 883 So. 2d 638, 641 (Ala. admitting of specific relief 2003)(some emphases added). through a [judgment].’” LIFE INSURANCE AND Ms. * 7. MacKenzie v. First Alabama DESIGNATED Alabama law is settled that unless Bank, 598 So. 2d 1367, BENEFICIARY there is a justiciable controversy, a trial 1370 (Ala. 1992)(quoting court does not obtain subject-matter juris- Copeland v. Jefferson County, diction under the Declaratory Judgment 284 Ala. 558, 561, 226 So. Aderholt v. McDonald, [Ms. 1150878, Act: 2d 385, 387 (1969)).’ Harper, Dec. 16, 2016] __ So. 3d __ (Ala. 2016). “’There must be a bona 873 So. 2d at 224.... Thus, The Supreme Court affirms a summary fide justiciable controversy the Declaratory Judgment judgment entered by the Walker Circuit in order to grant declara- Act does not ‘”’empower Court in favor of an ex-wife of a decedent, tory relief. If no justiciable courts to decide ... abstract holding that she, rather than the decedent’s controversy exists when the propositions, or to give mother, was entitled to the proceeds of a suit is commenced, then advisory opinions, however $150,000 life-insurance policy the dece- the court lacks jurisdiction.’ convenient it might be to dent held at the time of his death because Durham v. Community Bank have these questions decided the ex-wife remained the designated of Marshall County, 584 So. for the government of future beneficiary under the life insurance policy. 2d 834, 835 (Ala. 1991) (cita- cases.’”’ Bruner v. Geneva The Court reiterates that “a divorce, by tions omitted). Where ‘the County Forestry Dep’t, 865 So. itself, has no impact on one spouse’s status trial court ha[s] no subject- 2d 1167, 1175 (Ala. 2003) as the beneficiary of the other spouse’s matter jurisdiction, [it has] (quoting Stamps v. Jefferson life-insurance policy.” Ms. * 7-8, citing no alternative but to dismiss County Bd. of Educ., 642 So. Flowers v. Flowers, 284 Ala. 230, 224 So. the action.’ State v. Property at 2d 941, 944 (Ala. 1994), 2d 590 (1969), and Kowalski v. Upchurch, 106 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

186 So. 3d 460 (Ala. Civ. App. 2015). This to this action. Kyser sought to add of the name of an opposing legal principle “stems from the fact that any MDCI, Stafford, and Greene as par- party and so alleges in the rights a beneficiary has to the proceeds of ties based on the “principles applicable party’s pleading, the opposing a life-insurance policy are contractual, not to fictitious party practice.” Rule 15(c) party may be designated by marital.” Ms. * 9, citing Rountree v. Frazee, (4). Accordingly, under Rule 15(c) any name, and when the par- 282 Ala. 142, 209 So. 2d 424 (1968). Here, (4), Kyser’s amendments substituting ty’s true name is discovered, because there is no evidence the decedent MDCI, Stafford, and Greene for ficti- the process and all pleadings took any affirmative action indicating he tiously named defendants relate back and proceedings in the action did not want his ex-wife to be the benefi- to the date of the original complaint may be amended by substi- ciary of the policy, the circuit court properly only if she satisfied the requirements tuting the true name.’ entered summary judgment in favor of the of Rule 9(h), Ala. R. Civ P. See Ex ex-wife as beneficiary under the policy. parte Noland Hosp. Montgomery, LLC, “This rule permits a party 127 So. 3d 1160, 1169 (Ala. 2012) who is ‘ignorant of the name FICTITIOUS PARTIES (“An amendment merely substitut- of an opposing party’ to iden- AND RELATION BACK ing a named party for a fictitiously tify that party by a fictitious named party relates back only if the name. Once the true name of Ex parte VEL, LLC, [Ms. 1150542, provisions of Rule 9(h) are satisfied.”), the opposing party is discov- Dec. 30, 2016] __ So. 3d __ (Ala. 2016). and Mitchell v. Thornley, 98 So. 3d ered, the party may amend The Court grants in part and denies in part 556, 561 (Ala. Civ. App. 2012)(“The the pleadings to substitute petitions for writs of mandamus directing Committee Comments on the 1973 that true name. Rule 15(c)(4), the Montgomery Circuit Court to vacate Adoption of Rule 15, Ala. R. Civ. P., Ala. R. Civ. P., provides that an order denying a summary-judgment indicate that the provisions of Rule such an amendment shall motion on the basis of the expiration of 15(c)(3) ‘permit[] an amendment to ‘relate[] back to the date of the statute of limitations in a mis-filled relate back which substitutes the real the original pleading when ... prescription case. The Court rejected the party in interest for a named plaintiff.’ relation back is permitted by plaintiff ’s contention that he properly (Emphasis added.) Such an amend- principles applicable to ficti- substituted the pharmacy’s true corporate ment, which changes a named party, tious party practice pursuant owner and its pharmacist and pharmacy relates back only if the requirements to Rule 9(h).’ technician pursuant to Rule 15(c)(3), of Rule 15(c)(3) are met. Conversely, “’However, the relation Ala. R. Civ. P., and that failing the test an amendment merely substituting back principle applies for proper substitutions, the amendments a real party for a fictitiously named only when the plaintiff should be deemed timely under principles party relates back if the provisions of “is ignorant of the name of “equitable tolling,” and “equitable estop- Rule 9(h) are satisfied. Committee of an opposing party.” pel.” Comments on 1973 Adoption.”). We Rule 9(h); Harmon v. The Court first rejected the plaintiff ’s will analyze whether Kyser’s amend- Blackwood, 623 So. 2d contention that the substitutions were ments substituting MDCI, Stafford, 726, 727 (Ala. 1993) proper pursuant to Rule 15(c)(3). The and Greene for fictitiously named (“In order to invoke the Court held, on the contrary, that Rule 15(c) defendants relate back to the filing relation-back prin- (3) did not apply: of the original complaint under Rule ciples of Rule 9(h) and Rule 15(c)(3) applies to an amend- 15(c)(4); Rule 15(c)(3) does not apply Rule 15(c), a plaintiff ment that “changes the party or the in this case. must ... be ignorant naming of the party against whom a Ms. *19-21. Having rejected the Rule 15(c) of the identity of that claim is asserted”; Rule 15(c)(3) ex- (3) argument, the Court turned to an anal- defendant....”); Marsh v. pressly does not apply to amendments ysis of whether the substitution was proper Wenzel, 732 So. 2d 985 “naming a party under the party’s true under Rule 15(c)(4) in light of its express (Ala. 1998).’ name after having been initially sued requirement that the party attempting to “Ex parte General Motors [of under a fictitious name.” In the present substitute comply with the provisions of Canada Ltd.], 144 So. 3d case, Kyser did not seek to change the Rule 9(h). Quoting Ex parte Nicholson Mfg. [236,] 239 [(Ala. 2013)]. name of the party against whom she Ltd., 182 So. 3d 510 (Ala. 2015), the Court brought the original complaint. Kyser explained: “’”The requirement that the sued VEL in the original complaint. In Ex parte Nicholson, supra, we set plaintiff be ignorant of the In the amended , Kyser did forth the following applicable law: identity of the fictitiously not seek to change the name of VEL named party has been gener- to MDCI, Stafford, or Greene but, “Rule 9(h), Ala. R. Civ. P., ally explained as follows: ‘The instead, substituted MDCI, Stafford, provides: correct test is whether the and Greene for fictitiously named plaintiff knew, or should have defendants; VEL remains a party known, or was on notice, that “’When a party is ignorant the substituted defendants WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 107 RECENT CIVIL DECISIONS

were in fact the parties as the party that owned the pharmacy. eration must be given as ‘”to whether described fictitiously.’Davis That evidence indicated plaintiff “knew, or principles of ‘equity would make the v. Mims, 510 So. 2d 227, 229 should have known,” of the identity of the rigid application of a limitation period (Ala. 1987)....”’ pharmacy’s owner at the time the original unfair’ and whether the petitioner has “Ex parte Mobile Infirmary[ Ass’n], complaint was filed. Ms. *24-25, citing ‘exercised reasonable diligence in in- 74 So. 3d [424,] 429 [(Ala. 2011)] Davis v. Mims, 510 So. 2d 227 (Ala. 1987). vestigating and bringing [the] claims.’”’ (quoting Crawford v. Sundback, 678 So. At a minimum, these communications Id. (quoting Fahy v. Horn, 240 F.3d 2d 1057, 1060 (Ala. 1996)(emphasis indicated plaintiff was at least “on notice” 239, 245 (3d Cir. 2001), quoting in added)). of the true owner’s identity. Id. Because turn Miller v. New Jersey Dep’t of Corr., the plaintiff was not ignorant of the party’s 145 F.3d 616, 618 (3d Cir. 1998)); see “In addition to being ignorant of identity before the statute of limitations also Irwin v. Department of Veterans the fictitiously named party’s identity, expired, the circuit court had no discre- Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, the plaintiff has a duty to exercise ‘due tion other than to grant [the true owner’s] 112 L. Ed. 2d 435 (1990) (‘We have diligence’ in identifying such a defen- summary-judgment motion in its favor on allowed equitable tolling in situa- dant. Ex parte Mobile Infirmary, 74 So. the statute-of-limitations ground.” Ms. *25. tions where the claimant has actively 3d at 429; Crowl v. Kayo Oil Co., 848 The Court rejected the petitioner’s pursued his judicial remedies by filing So. 2d 930, 940 (Ala. 2002). It is in- argument that plaintiff ’s counsel failed to a defective pleading during the statu- cumbent upon the plaintiff to exercise exercise due diligence in identifying the tory period, or where the complainant due diligence both before and after the pharmacist and pharmacy tech when they has been induced or tricked by his filing of the complaint.Ex parte Ismail, waited two months after filing the com- adversary’s misconduct into allowing 78 So. 3d 399 (Ala. 2011). Only if the plaint to submit requests seeking the filing deadline to pass. We have plaintiff has acted with due diligence those parties’ true identities. Because generally been much less forgiving in in discovering the true identity of a petitioners failed to cite any legal authority receiving late filings where the claim- fictitiously named defendant will an holding that a two-month delay in serving ant failed to exercise due diligence in amendment substituting such a party such discovery requests constitute a failure preserving his legal rights.’ (footnotes relate back to the filing of the original to exercise due diligence, petitioners have omitted)). This Court acknowledged complaint. Ex parte Mobile Infirmary, not demonstrated a clear legal right as in Ward that ‘”the threshold necessary 74 So. 3d at 429. Therefore, if at the required for mandamus relief. Ms. *27-28. to trigger equitable tolling is very high, time the complaint is filed, a plaintiff The Court also rejected the plaintiff ’s lest the exceptions swallow the rule.” knows the identity of the fictitiously contention that equitable-tolling principles United States v. Marcello, 212 F.3d named party or should have discovered supported the circuit court’s ruling that the 1005, 1010 (7th Cir. 2000).’ 46 So. 3d that party’s identity, relation back is substitutions were timely. Quoting Weaver at 897. The plaintiff “’bears the burden not permitted and the running of the v. Firestone, 155 So. 3d 952 (Ala. 2013), the of demonstrating ... that there are ... statute of limitations is not tolled: Court holds that plaintiff failed to present extraordinary circumstances justify- “’[A]n amendment substi- any evidence indicating an “extraordinary ing the application of the doctrine of tuting a new defendant in circumstance” which kept plaintiff from equitable tolling. place of a fictitiously named learning the identity of the owner of the Ms. *31-32, quoting Weaver v. Firestone, defendant will relate back pharmacy before the statute of limitations 155 So. 3d at 957-58. to the filing of the original expired. The requirements for equitable Finally, the Court also rejected the complaint only if the plaintiff tolling to apply include the following: plaintiff ’s contention that the doctrine of acted with “due diligence in equitable estoppel should work to deem the identifying the fictitiously “’[A] litigant seeking equitable tolling substitution timely. Quoting McCormack v. named defendant as the bears the burden of establishing two AmSouth NA, 759 So. 2d 538 (Ala. 1999), party the plaintiff intended elements: (1) that he has been pursu- the Court rejects plaintiff ’s contention that to sue.” Ignorance of the new ing his rights diligently, and (2) that the liability insurer concealed the identity defendant’s identity is no some extraordinary circumstance stood of the true owner of the pharmacy. Ms. excuse if the plaintiff should in his way’ as to the filing of his action. *33-35. McCormack v. AmSouth NA holds: have known the identity of Pace v. DiGuglielmo, 544 U.S. 408, 418, that defendant when the 125 S. Ct. 1807, 161 L. Ed. 2d 669 “In City of Birmingham v. Cochrane complaint was filed....’ (2005). In Ex parte Ward, 46 So. 3d Roofing & Metal Co., 547 So. 2d 1159 “74 So. 3d at 429 (quoting Ex parte 888 (Ala. 2007), this Court ‘[held] that (Ala. 1989), this Court summarized Snow, 764 So. 2d 531, 537 (Ala. 1999) equitable tolling is available in extraor- the law applicable in situations where (emphasis added)).” dinary circumstances that are beyond one party asserts equitable estoppel as Ms. *21-23, quoting Nicholson, 182 So. 3d the petitioner’s control and that are a bar to another party’s pleading the at 513-14. The Court found significant unavoidable even with the exercise of statute of limitations as a defense: that plaintiff ’s counsel had received cor- diligence.’ 46 So. 3d at 897. The Court respondence from the pharmacy’s liability noted that in determining whether “’In Mason v. Mobile County, insurance carrier identifying the insured equitable tolling is applicable, consid- 410 So. 2d 19 (Ala. 1982), 108 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

this Court held that if a probable progression to viability, but rather 2d 926, 929 (Ala. 2006), as “requir[ing] that defendant either fraudulently the health care provider’s actions “probably every automobile-liability-insurance policy or innocently represents caused the death of the fetus, ‘regardless of issued or delivered in Alabama provide to the plaintiff that he will viability.’” Ms. *38. uninsured/underinsured-motorist cover- remedy a problem, and rely- age with limits for bodily injury or death ing on these representations FRAUDULENT of at least $25,000 per person, unless the the plaintiff is induced not TRANSFERS; § 8-9A-1 ET coverage is specifically rejected in writing to file a lawsuit or take any SEQ., ALA. CODE 1975 by the named insured.”). Here, there was action, the defendant may conflicting evidence from the be estopped from raising the testimony of the policyholder and the statute of limitations as a RES-GA Lake Shadow, LLC v. local agent concerning the circumstances defense. Additionally, in Arkel Kennedy, [Ms. 2160110, Jan. 6, 2017] __ whereby the policyholder applied for such Land Co. v. Cagle, 445 So. So. 3d __ (Ala. Civ. App. 2017). The Court coverage electronically. Because it was a 2d 858 (Ala. 1983), we held of Civil Appeals reverses a Montgomery factual dispute about the material issue of that if a defendant represents Circuit Court judgment dismissing three whether the policyholder signed that part that a lawsuit is unnecessary claims alleging property transferred from of the application that waived the UIM because he intends to take a husband to a wife pursuant to a divorce coverage, the Lowndes Circuit Court erred care of the problem he is settlement agreement were for fraudulent in entering a summary judgment in favor likewise estopped from rais- transfers made to prevent collection of of the insurance company. ing the statute of limitations a debt owed by the husband. The court as a defense.’ distinguishes Aliant Bank v. Davis, 198 So. WRIT OF PROHIBITION “Cochrane Roofing, 547 So. 2d 3d 508 (Ala. Civ. App. 2015) (Ms. *8-11) at 1167.” in response to husband’s contention that the Alabama Fraudulent Transfers Act, § Blevins v. Boller, [Ms. 2150969, Jan. 6, Ms. *33-34 (quoting McCormack v. 2017] __ So. 3d __ (Ala. Civ. App. 2017). Amsouth NA, 759 So. 2d at 543). 8-9A-1 et seq., Ala. Code 1975, did not apply to marital assets transferred pursuant The Court of Civil Appeals dismisses an to divorce property settlements. Citing appeal from a Baldwin Circuit Court order WRONGFUL DEATH construing a “motion for order of inter- AND UNBORN PRE- Canty v. Otto, 304 Conn. 546, 41 A.3d 280 (2012), the court holds “There is no prohi- pleader” filed by a law firm to protect funds VIABLE FETUS (§§ 6-5- bition on a creditor’s ability to seek relief allegedly owed pursuant to the attorney 391, ALA. CODE 1975) under the Alabama Fraudulent Transfers lien statute as a request for injunctive relief. Act based on an allegation that an agree- “An is defined as ‘[a] court order commanding or prevent- Stinnett v. Kennedy, [Ms. 1150889, ment to transfer marital assets in a divorce action was made with the intention of hin- ing an action.’ “ Dawkins v. Walker, 794 Dec. 30, 2016] __ So. 3d __ (Ala. 2016). So. 2d 333, 335 Ala. 2001) (quoting The Court reverses the judgment of the dering, delaying, or defrauding a creditor of a spouse.” Ms. *12. Because the creditor’s Black’s Law Dictionary 788 (7th ed. Jefferson Circuit Court which dismissed 1999)). “ ‘ [I] has long been the law a claim alleging wrongful death based on allegations, if true, would entitle it to relief under the Fraudulent Transfers Act, the that substance, not nomenclature, is the death of a pre-viable unborn child. The “the determining factor regarding Court also rejected contentions that the Montgomery Circuit Court improperly dismissed those claims. the nature of a party’s pleadings or defendant physician was due summary- motions.” ‘ “ Ex parte Alabama Dep’t of judgment on the wrongful-death claim Mental Health, [Ms. 2150415, April on lack-of-proof-of-causation grounds, UNDERINSURED MOTORIST COVERAGE; 22, 2016] __ So. 3d __, __ (Ala. Civ. and that the judgment of the circuit court App. 2016) (quoting Chamblee v. was due to be affirmed on the basis of the WAIVER Duncan, 188 So. 3d 682, 691 (Ala. Civ. doctrine of collateral estoppel since other App. 2015), quoting in turn Eddins issues about the defendant physician’s Johnson v. First Acceptance Ins. v. State, 160 So. 3d 18, 20 (Ala. Civ. provision of care to the mother had been Co., Inc., [Ms. 2150629, Jan. 6, 2017] App. 2014)). Under the circumstances litigated to judgment in a jury trial. In __ So. 3d __ (Ala. Civ. App. 2017). The of this case, we determine that the the end, the Court reiterates the holdings Court of Civil Appeals reverses a sum- substance of the law firm’s “Motion of Mack v. Carmack, 79 So. 3d 597 (Ala. mary judgment entered by the Lowndes for Order of Interpleader” constituted 2011), and Hamilton v. Scott, 97 So. 3d 728 Circuit Court in favor of First Acceptance a request for injunctive relief, i.e., an (Ala. 2012), that Alabama’s wrongful-death Insurance Company, where the circuit order commanding action by Blevins, statute allows an action to be brought for court had held an applicant waived in writ- and that the trial court’s June 24, 2016, the wrongful death of any unborn child, ing his option to purchase uninsured/un- interlocutory order issued an injunc- even when the child dies before reaching derinsured motorist benefits. See § 32-7- tion requiring Blevins to transfer the viability. The test for proximate cause in 23(a), Ala. Code 1975 (statute interpreted funds to the trial court.” such a case is not whether the deviation in Continental Cas. Co. v. Pinkston, 941 So. Ms. *10. The proper means for obtaining from the standard of care adversely affected WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 109 RECENT CIVIL DECISIONS appellate review of an interlocutory order ‘(1) usurpation or abuse of default judgment must allege and pro- issuing an injunction is through an appeal. power by an inferior judicial vide arguments and evidence regarding Ex parte State Pers. Bd., 45 So. 3d 751 (Ala. or quasi-judicial tribunal, all three of the Kirtland factors.”’” 2010). Rule 4(a)(1)(A), Ala. R. App. P., (2) lack of another adequate Ms. *13 n. 3. The standard of review of provides that a notice of appeal challenging remedy, (3) injury to the a trial court’s denial of the motion to set such an order must be filed within 14 days petitioner, and (4) presenta- aside a default judgment is as follows: of the date of the entry of the “interlocu- tion of the question before tory order granting, continuing, modifying, the inferior tribunal before “’A trial court has broad refusing, or dissolving an injunction, or resorting to the writ.’ Barber discretion in deciding refusing to dissolve or modify an injunc- Pure Milk Co. v. Alabama whether to grant or tion.” Because appellate review was sought State Milk Control Bd., 274 deny a motion to set of the Baldwin Circuit Court’s order more Ala. 563, 565, 150 So. 2d 693, aside a default judgment. than 14 days after that order was entered, 695 (1963).” Kirtland v. Fort Morgan the appeal was untimely and was therefore Ex parte Segrest, 718 So. 2d at 4 n. 2. Auth. Sewer Serv., Inc., required to be dismissed. Ms. *13. Because the attorney preemptively 524 So. 2d 600 (Ala. The attorney also sought a writ of filed the petition for a writ of prohibition 1988). In reviewing prohibition in anticipation of a scheduled before first affording the Baldwin Circuit an appeal from a trial hearing which sought to hold the attorney Court the opportunity to rule upon wheth- court’s order refusing to in contempt for failing to pay over the er it obtained subject-matter or personal set aside a default judg- funds allegedly subject to the attorney’s jurisdiction, one of the required elements ment, this Court must lien. The attorney contended the Baldwin for issuance of such a writ had not been determine whether in Circuit Court had subject-matter juris- presented such that his petition was due to refusing to set aside the diction over the proceeding or personal be denied. default judgment the jurisdiction over him. Ms. *12. The Court trial court exceeded its of Civil Appeals first notes “The filing of DEFAULT JUDGMENT; discretion. 524 So. 2d a petition for a writ of prohibition is the KIRTLAND FACTORS at 604. That discretion, proper procedure for challenging a trial although broad, requires court’s jurisdiction in a contempt proceed- Hilyer v. Fortier, [Ms. 1140991, Jan. 6, the trial court to balance ing.” Id., citing Ex parte Segrest, 718 So. 2d 2017] __ So. 3d __ (Ala. 2017). The Court two competing policy 1 (Ala. 1998). The court then provides a reverses an order of the Elmore Circuit interests associated with helpful description of the required elements Court denying a defendant 18-wheel log default judgments: the for issuance of such a writ: truck driver’s motion filed pursuant to need to promote judicial “[A] writ of prohibition is Rule 55(c), Ala. R. Civ. P., to set aside a economy and a litigant’s not only an extraordinary default judgment entered against him and right to defend an action writ, but a drastic one which in favor of a parent and minor child injured on the merits. 524 So. 2d is to be employed with ex- in a collision with the log truck. The court at 604. These interests treme caution. Ex parte Burch, reviews the required elements for setting must be balanced under 236 Ala. 662, 184 So. 694 aside a default judgment first enunciated the two-step process (1938). It should be used only in Kirtland v. Fort Morgan Authority Sewer established in Kirtland. in cases of extreme necessity. Service, Inc., 524 So. 2d 600 (Ala. 1988). Burch, 236 Ala. 662, 184 So. The Court discussesKirtland as follows: “’We begin the balanc- 694. It is not a favored writ In Kirtland, we held that a trial ing process with the and will be invoked only court’s broad discretionary authority presumption that cases where the petition shows on to set aside a default judgment under should be decided on its face that the court below Rule 55(c) should not be exercised the merits whenever it is does not have jurisdiction to without considering the following practicable to do so. 524 do or perform an act of judi- three factors: 1) whether the defendant So. 2d at 604. The trial cial nature which it is propos- has a meritorious defense; 2) whether court must then apply ing to perform. Hudson v. the plaintiff will be unfairly prejudiced a three-factor analysis Sparks, 272 Ala. 203, 129 So. if the default judgment is set aside; first established inEx 2d 664 (1961).” and 3) whether the default judgment parte Illinois Central Gulf Ex parte State Dep’t of Mental Health was a result of the defendant’s own R.R., 514 So. 2d 1283 & Mental Retardation, 536 So. 2d at culpable conduct. 524 So. 2d at 605. (Ala. 1987), in deciding 79-80. “’”However, in order to trigger the whether to deny a mo- mandatory requirement that the trial tion to set aside a default “[T]here are generally four court consider the Kirtland factors, judgment. Kirtland, 524 prerequisites to the issuance the party filing a motion to set aside a So. 2d at 605. The broad of a writ of prohibition: discretionary authority 110 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

given to the trial court plete defense to the action, or befall him from the delay, and in making that decision when sufficient evidence has more importantly how sub- should not be exercised been adduced either by way stantial that prejudice would without considering the of affidavit or by some other be, we have placed upon the following factors: “1) means to warrant submission defendant the initial burden whether the defen- of the case to the jury. of demonstrating that the dant has a meritorious plaintiff will not be substan- defense; 2) whether the “’The allegations set tially prejudiced. As we have plaintiff will be unfairly forth in the answer and stated: prejudiced if the default in the motion must be “’We hold that when judgment is set aside; more than mere bare a party files a motion and 3) whether the legal conclusions with- to set aside a default default judgment was a out factual support; they judgment, the movant result of the defendant’s must counter the cause has the initial burden own culpable conduct.” of action averred in the of making a prima facie 524 So. 2d at 605.’ complaint with specific- showing that the plain- “Zeller v. Bailey, 950 So. 2d ity -- namely, by setting tiff will not be unfairly 1149, 1152-53 (Ala. 2006).” forth relevant legal prejudiced if the default Manci v. Ball, Koons & Watson, 995 So. grounds substantiated by judgment is set aside. 2d 161, 165 (Ala. 2008). a credible factual basis. If the movant makes a Ms. *16-17. The Court then examined each Such allegations would prima facie showing that of the three required Kirtland elements in constitute a “plausible the plaintiff will not be detail. defense.”’ unfairly prejudiced, the “Kirtland, 524 So. 2d at 606.” burden then shifts to Whether the Defendant Has a Sampson v. Cansler, 726 So. 2d 632, the plaintiff to present Meritorious Defense 634 (Ala. 1998). facts showing that the Concerning whether the defendant Ms. *17-18. plaintiff will be unfairly has alleged a meritorious defense prejudiced if the default under Kirtland, this Court has stated: Whether the Plaintiff Will Suffer judgment is set aside.’ Substantial Prejudice “Phillips v. Randolph, 828 “To present a meritori- Concerning the second Kirtland So. 2d 269, 278 (Ala. 2002). ous defense, for Rule 55(c) factor, whether a plaintiff will suffer Additionally, a defendant purposes, does not require substantial prejudice, this Court has cannot simply state that the that the movant satisfy the said: plaintiff will not be preju- trial court that the movant “The second factor that a trial diced if the motion to set would necessarily prevail at a court must consider in ruling aside the default judgment is trial on the merits, only that on a motion to set aside a granted. Phillips, 828 So. 2d the movant show the court default judgment is whether at 275.” that the movant is prepared the plaintiff will be unfairly Royal Ins. Co. of America v. Crowne to present a plausible defense. prejudiced if it grants the Invs., Inc., 903 So. 2d 802, 811 (Ala. Kirtland, 524 So. 2d at 605. motion. Kirtland, 524 So. 2004). 2d at 606-07. This prejudice Ms. *26-27. “’The defense proffered by cannot take the form of mere the defaulting party must be delay or increased costs, be- Lack of Culpable Conduct on the Part of of such merit as to induce the cause those can be remedied the Defaulting Party trial court reasonably to infer by imposing additional costs The thirdKirtland factor requires a that allowing the defense to on the defendant if the plain- circuit court to examine the conduct of be litigated could foresee- tiff later prevails. 524 So. 2d the defaulting party. Concerning the ably alter the outcome of the at 607. Rather, the prejudice third Kirtland factor, this Court has case. To be more precise, a must be substantial, facilitat- stated: defaulting party has satis- ing fraud or collusion, result- “To warrant a refusal to set factorily made a showing of ing in the loss of evidence, or aside a default judgment, a meritorious defense when hindering discovery. 524 So. the defaulting party’s actions allegations in an answer or 2d at 607. that resulted in the entry of in a motion to set aside the “Although common sense the default judgment must default judgment and its sup- dictates that a plaintiff is usu- constitute willful conduct or porting affidavits, if proven at ally in a far better position to conduct committed in bad trial, would constitute a com- know what prejudice might faith. Negligence alone is not WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 111 RECENT CIVIL DECISIONS

sufficient. Bad faith or will- L.L.C., 63 So. 3d 1272 (Ala. Civ. App. to recover workers’ compensation benefits fulness is identified by ‘inces- 2010). Accordingly, because in this case the under the Act for injuries he or she sus- sant and flagrant disrespect worker died before his claim was adjudi- tained while working outside the State for court rules, deliberate and cated or settled, the claim was extinguished of Alabama when he or she ‘was working knowing disregard for judi- by his death and his widow could not be under a contract of hire made in the state cial authority, or intentional substituted as a plaintiff under Rule 25, in employment not principally localized in nonresponsiveness.’ Kirtland, Ala. R. Civ. P. in order to pursue the work- any state’” (Ms. *8) the court found that the 524 So. 2d at 608 (citing Agio related injury claim. Ms. *7, citing Hardin employee failed to meet his burden under Indus., Inc. v. Delta Oil Co., v. Palmer Truss Co., 558 So. 2d 963 (Ala. the statute of proving that his “employment 485 So. 2d 340, 342 (Ala. Civ. Civ. App. 1990) and Owens v. Ward, 49 Ala. must not have been principally localized App. 1986)). A trial court’s App. 293, 271 So. 2d 251 (Civ. App. 1972). in any one state.” Ms. *9, quoting Sims v. finding with respect to the Leland Roberts Constr., Inc., 671 So. 2d culpability of the defaulting DEFAULT JUDGMENT 106, 108 (Ala. Civ. App. 1995). The court party is subject to great defer- concludes “Substantial evidence does not ence. Jones v. Hydro–Wave of Wilson v. Avant, [Ms. 2150847, Jan. support the trial court’s finding that, at the Alabama, Inc., 524 So. 2d 610, 13, 2017] __ So. 3d __ (Ala. Civ. App. time of the accident, [employee’s] employ- 616 (Ala. 1988).” 2017). The Court of Civil Appeals in a ment ‘was not principally localized in any per curiam opinion unanimously reverses state.’” Ms. *11. The Mobile Circuit Court Zeller v. Bailey, 950 So. 2d 1149, 1154 the Autauga Circuit Court’s decision not thus lacked subject-matter jurisdiction and (Ala. 2006). to set aside a default judgment where the erred in finding the employee entitled to Ms. *32-33. evidence established that the defaulting recover benefits pursuant to § 25-5-35(d) Finding that the defendant intro- party filed a responsive pleading on the (2). Id. duced evidence satisfying each of the day before the scheduled hearing when the three Kirtland factors, the Court holds the default judgment was entered. Citing TA RESTRICTIVE Elmore Circuit Court exceeded its discre- Financial, Inc. v. Discover Bank, 967 So. 2d COVENANTS AND tion in refusing to set aside the default 90 (Ala. 2007) and Winford v. Winford, 139 STATUTE OF judgment such that reversal of that order So. 3d 179 (Ala. Civ. App. 2013), the court LIMITATIONS was required. concludes the Autauga Circuit Court erred in entering the default judgment after a WORKERS’ responsive pleading had been filed. Bekken v. Greystone Residential Assoc., COMPENSATION AND Inc., [Ms. 2150365, Jan. 13, 2017] __ So. ABATEMENT WORKERS’ 3d __ (Ala. Civ. App. 2017) (On reh’g). COMPENSATION The court grants rehearing, withdraws the original September 16, 2016 opinion which Ex parte Thompson Tractor Co., Inc., AND SUBJECT MATTER had reversed an injunction granted by the [Ms. 2160086, Jan. 13, 2017] __ So. 3d JURISDICTION Shelby Circuit Court to enforce residential __ (Ala. Civ. App. 2017). The Court of restrictive covenants and, on rehearing, Civil Appeals grants a petition for a writ Hand Construction, LLC v. Stringer, unanimously affirms the judgment. The of mandamus by an employer seeking [Ms. 2150730, Jan. 13, 2017] __ So. 3d __ court rejects the homeowner’s arguments dismissal of a workers’ compensation injury (Ala. Civ. App. 2017). The Court of Civil that the restrictive covenants contained action (seeking benefits on account of the Appeals reverses a judgment entered by the ambiguities, that the trial court should have worker’s contraction of asbestosis) because Mobile Circuit Court awarding medical applied the relative-hardship test before of the death of the worker. Citing Ex parte and temporary-total disability benefits un- issuing the injunction, and that affirmative Woodward Iron Co., 277 Ala. 133, 167 So. der the Alabama Workers’ Compensation defenses of statute of limitations, laches, 2d 702 (1964), the court reiterates “[an Act, § 25-5-1, et seq., Ala. Code 1975 to and unclean hands applied to require rever- employee’s] rights [to workers’ compensa- an employee hired in Alabama but who sal of the judgment. tion benefits] terminate[s] at his [or her] worked principally in North Dakota and The court first stated Alabama law death.” Ms. *6. A workers’ compensation then was injured in an automobile ac- relative to whether the restrictive covenants claim is not considered an action that cident in Arkansas. The court rejected the were ambiguous: survives the death of an employee so that Mobile Circuit Court’s conclusion that it “Our Supreme Court has it may be continued in the name of the had obtained subject matter jurisdiction held that personal representative of the estate. Id. If a pursuant to § 25-5-35(d)(2), Ala. Code “’”in construing restrictive workers’ compensation claim has been ad- 1975 based upon the finding that at the covenants, all doubts must be judicated or settled before the death of the time the accident occurred, the worker was resolved against the restric- employee, a dependent widow may recover “working under a contract of hire made in tion and in favor of free and the benefits specified under the Act, but, if this state in employment not principally unrestricted use of property. not, the claim abates upon the death of the localized in any state.” Ms. *6-7. Noting However, effect will be given employee. Ms. *7, citing Gibson v. Staffco, that § 25-5-35(d)(2) “allows an employee to the manifest intent of the 112 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

parties when that intent is ambiguities can arise: clear .... Furthermore, restric- a patent ambiguity “A pertinent specific ap- tive covenants are to be con- and a latent ambiguity. plication of the clean-hands strued according to the intent McCollum v. Atkins, doctrine is that a restrictive of the parties in the light of 912 So. 2d 1146, 1148 covenant should be enforced the terms of the restriction (Ala. Civ. App. 2005). A if the defendant had knowl- and circumstances known to patent ambiguity results edge of it before constructing the parties.” when a document, on its an improvement contrary face, contains unclear or to its provisions, even if “’Hines v. Heisler, 439 So. 2d unintelligible language the harm is disproportion- 4, 5-6 (Ala. 1983).’” or language that sug- ate. Green v. Lawrence, 877 Grove Hill Homeowners’ Ass’n, Inc. gests multiple meanings. A.2d 1079, 1082 (Me. 2005) v. Rice, 43 So. 2d 609, 614 (Ala. Civ. Thomas v. Principal Fin. (citing 9 Powell on Real App. 2010)(quoting Hipsh v. Graham Group, 566 So. 2d 735, Property § 60.10(3)); accord Estates Owners Ass’n, 927 So. 2d 846, 739 (Ala. 1990). On Turner v. Sellers, 878 So. 848 (Ala. Civ. App. 2005)). the other hand, ‘[a]n 2d 300, 306 (Ala. Civ. App. Ms. *26-7. ambiguity is latent when 2003) (affirming denial of -re the language employed lief from restrictive covenant “’[W]hen the language of is clear and intelligible when the burdened parties a restrictive covenant is not and suggests but a single ‘knew that there were restric- “of doubtful meaning and meaning but some ex- tions on the free use of their ambiguous,” the language trinsic fact or extraneous lot when they purchased it’). of that covenant “is entitled evidence creates a neces- The knowledge sufficient to to be given the effect of its sity for interpretation or warrant denial of the relative- plain and manifest meaning.”’ a choice among two or hardship defense need not be Maxwell [v. Boyd], 66 So. 3d more possible meanings.’ actual, but may be construc- [257,] 261 [(Ala. Civ. App. Id.”’ tive. Miller v. Associated Gulf 2010)] (quoting Laney v. “Grove Hill Homeowners’ Land Corp., 941 So. 2d 982, Early, 292 Ala. 227, 231-32, Ass’n v. Rice, 43 So. 3d 609, 989 (Ala. Civ. App. 2005) 292 So. 2d 103, 107 (1974)). 614 (Ala. Civ. App. 2010) (noting that trial court’s However, (quoting Smith v. Ledbetter, judgment denying relief from “’”’[w]here the language 961 So. 2d 141, 145 (Ala. covenant was supported by [in a restrictive cov- Civ. App. 2006)). ‘[W]hether evidence that the owners of enant] is ambiguous, “its a latent ambiguity exists is a the burdened lot had ‘pur- construction will not be question of law we review de chased the subject property extended by implication novo.’ Id. at 615.” knowing of the nature of the or include anything not Vestlake Cmtys. Prop. Owners’ Ass’n, deed restriction and therefore plainly prohibited and all Inc. v. Moon, 86 So. 3d 359, 365 (Ala. at least constructively know- doubts and ambiguities Civ. App. 2011). ing’ of nearby land conditions must be resolved against Ms. *28-9. and property owners’ rights).” [the party seeking The court also rejected the home- Maxwell, 66 So. 3d at 261-62; see enforcement].”’” Smith owner’s contention that enforcement of Grove Hill II, 90 So. 3d at 738-39 v. Ledbetter, 961 So. 2d the restrictive covenants should be rejected (quoting Gladstone v. Gregory, 95 Nev. [141,] 146 [(Ala. Civ. because of the “relative-hardship test”: 474, 480, 596 P.2d 491, 495 (1979)) App. 2006)] (quot- The relative-hardship test is “an equi- (“’[W]here one takes land with ing Greystone Ridge table doctrine that generally provides notice of restrictions, equity and good Homeowners’ Ass’n, Inc. that a restrictive covenant ‘will not conscience will not permit that person v. Shelton, 723 So. 2d be enforced if to do so would harm to act in violation thereof ....’”). “The [88,] 90 [(Ala. Civ. App. one landowner without substantially application of the clean hands doctrine 1998)], in turn quoting benefitting another landowner.’”Grove is a matter within the sound discretion Bear v. Bernstein, 251 Hill II, 90 So. 3d at 736 (quoting of the trial court.” J & M Bail Bonding Ala. 230, 231, 36 So. 2d Lange v. Scofield, 567 So. 2d 1299, Co. v. Hayes, 748 So. 2d 198, 199 (Ala. 483, 484 (1948)).’ 1302 (Ala. 1990)). The party seeking 1999). “Traweek v. Lincoln, 984 So. 2d 439, the invocation of the relative-hardship Ms. *32-3. 447 (Ala. Civ. App. 2007) doctrine, however, must have “clean In a scholarly dissertation, the court “’”In written instru- hands.” Maxwell v. Boyd, 66 So. 3d rejects the homeowner’s contention that ments, two types of 257, 261 (Ala. Civ. App. 2010). the 6-year statute of limitations set forth

WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 113 RECENT CIVIL DECISIONS in § 6-2-34(4), (6), and/or (9) apply to the account holder’s responsibility to indemnify Alabama Medicaid Agency v. Marshall, facts of the case (Ms. *38-45) or that the Fidelity Management Trust Company and [Ms. 2150903, Jan. 20, 2017] __ So. 3d doctrine of laches barred the action against Fidelity Brokerage Services, LLC for losses __ (Ala. Civ. App. 2017). The Court of him. Ms. *45-6. it might suffer if the investor’s stepchil- Civil Appeals reverses a judgment of the Finally, the court rejected the home- dren prevail on claims they assert against Montgomery Circuit Court reversing a de- owner’s contention that the defense of Fidelity in a separate pending arbitration nial by the Alabama Medicaid Agency fol- unclean hands applied to the actions of proceeding. lowing an administrative hearing of three the homeowner’s association and the com- The opinion reviews familiar principles separate requests for Medicaid-nursing mittee seeking to enforce the restrictive of arbitration law. First, the Court reviews home benefits where the Montgomery covenants. The court explained: de novo the denial of a motion to compel Circuit Court concluded the Agency’s de- “[O]ne ‘who seek[s] equity must arbitration. Ms. *8-9, quoting Elizabeth cision denying such benefits was “arbitrary do equity’ and ‘one that comes Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 and capricious.” The Court of Civil Appeals into equity must come with clean (Ala. 2003). Second, the party seeking to makes no determination about the merits hands.’ Levine v. Levine, 262 compel arbitration has the burden of prov- of that judgment, but instead reverses on Ala. 491, 494, 80 So. 2d 235, 237 ing the existence of a contract calling for procedural grounds because, under the (1955). The purpose of the clean arbitration and proving that the contract Alabama Administrative Procedures Act, § hands doctrine is to prevent a evidence is a transaction affecting interstate 41-22-20(l), Ala. Code 1975, when a trial party from asserting his, her, or commerce. Id. Third, once a motion to court reverses an administrative agency its rights under the law when that compel arbitration is made and supported, determination “the court shall set out in party’s own wrongful conduct the burden is on the non-movant to pres- writing, which writing shall become a part renders the assertion of such legal ent evidence that the supposed arbitration of the record, the reasons for its decision.” rights ‘contrary to equity and agreement is not valid or does not apply to Citing Alabama Medicaid Agency v. Peoples, good conscience.’ Draughon v. the dispute in question. Ibid. 549 So. 2d 504 (Ala. Civ. App. 1989)(Ms. General Fin. Credit Corp., 362 The Court concludes the investor’s *4), the court concludes that a trial court So. 2d 880, 884 (Ala. 1978). The two theories for avoiding arbitration must cannot merely recite the statutory grounds application of the clean hands both be decided by the arbitrator. First, for reversal, but must give in its order spe- doctrine is a matter within the her contention that as the indemnifica- cific reasons to support its conclusions.Id . sound discretion of the trial court. tion claim is contingent on the outcome in Lowe v. Lowe, 466 So. 2d 969 the other pending arbitration proceeding, SECURITY INTERESTS (Ala. Civ. App. 1985).” no dispute was ripe for resolution by the AND CERTIFICATED Pike Circuit Court. The Court holds to the SECURITIES J & M Bail Bonding Co. v. Hayes, contrary that whether a dispute is allegedly 748 So. 2d at 199. “’[T]he doctrine of not ripe is for the arbitrator to decide, unclean hands cannot be applied in not the court. Ms. *13, citing, inter alia, Citizens Bank & Trust v. Piggly the context of nebulous speculation or Transportation Workers’ Union of America Wiggly Alabama Distributing Co., Inc., vague generalities; but rather it finds v. Veolia Transp. Servs., Inc., 24 F.Supp.3d [Ms. 2150749, Jan. 20, 2017] __ So. 3d expression in specific acts of willful 223, 230 (E.D.N.Y. 2014). Second, the __ (Ala. Civ. App. 2017). The Court of misconduct ....’” Retail Developers Court also rejects the investor’s conten- Civil Appeals affirms the judgment of the of Alabama, LLC v. East Gadsden tion that there was a waiver of the right to Jefferson Circuit Court, Bessemer Division, Golf Club, Inc., 985 So. 2d 924, 932 enforce the arbitration provision because of holding that a security interest a bank (Ala. 2007) (quoting Sterling Oil of a failure to timely invoke it. Citing Dudley, held in certain stock was subordinate to Oklahoma, Inc. v. Pack, 291 Ala. 727, Hopton-Jones, Sims & Freeman, P.L.L.P. v. the right to that same stock held by a lien 746, 287 So. 2d 847, 864 (1973), citing Knight, 57 So. 3d 68 (Ala. 2010), the Court creditor. The opinion reviews control and in turn Weaver v. Pool, 249 Ala. 644, concludes the waiver issue should also be delivery of certificated securities under 32 So. 2d 765 (1947)); see also Weaver decided by the arbitrator, not the Court. §§ 7-8-102, 7-8-301, 7-9A-313 and v. Pool, 249 Ala. at 648, 32 So. 2d at Ms. *14-16. 7-9A-314, Ala. Code 1975. Because the 768 (“the maxim refers to willful mis- Accordingly, the judgment entered by undisputed evidence established that the conduct rather than merely negligent the Pike Circuit Court denying the motion bank did not have physical possession of misconduct”). to compel arbitration is reversed and the the stock certificate, nor support the bank’s Ms. *48-9. cause remanded for the trial court to enter contention that any other entity was hold- an order granting the motion. ing the stock for the bank. The trial court’s ARBITRATION conclusion that the bank did not perfect its JUDICIAL REVIEW OF security interest pursuant to § 7-8-301(a) FMR Corp. v. Howard, [Ms. 1151149, ADMINISTRATIVE was supported by substantial evidence such Jan. 13, 2017] __ So. 3d __ (Ala. 2017). The AGENCY that the lien creditor’s security interest in the stock was superior to the bank’s interest. Court reverses an order of the Pike Circuit DETERMINATIONS Court denying a motion to compel arbitra- tion of a dispute regarding an investment 114 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

ALIMONY AND CHILD (Ala. Civ. App. 2010)(Ms. *19-22), the if SUPPORT court finds no evidence that the wife would be unable to maintain her former marital “‘“(a) the employee has made Person v. Person, [Ms. 2150225, standard of living absent an award of pe- a contract of hire, express Jan. 20, 2017] __ So. 3d __ (Ala. Civ. riodic alimony, and without such evidence or implied, with the special App. 2017)(on application for rehear- the trial court must be deemed to have employer; ing). The Court of Civil Appeals in this exceeded its discretion in awarding periodic plurality opinion (Moore, J., Pittman and alimony. “‘“(b) the work being done is Donaldson, JJ, concur; Thompson, P.J., The court directs that on remand essentially that of the special and Thomas, J., concurring in the result) the trial court is permitted to consider employer; and revisits its October 21, 2016 opinion which anew the child support issue and whether affirmed in part and reversed in part a support should be ordered paid from the “‘“(c) the special employer divorce judgment entered by the Crenshaw date the divorce petition was filed, and the has the right to control the Circuit Court concerning the 20-year mar- trial court can also reconsider its division details of the work. riage of former NBA star Wesley Person of property in light of the reversal of the and his wife. The court’s original opinion award of alimony. “‘When all three of the above remanded the cause for the circuit court to WORKERS’ reconsider its judgment as to alimony, child conditions are satisfied in support, and division of marital assets. COMPENSATION relation to both employers, On rehearing, the court reverses the IMMUNITY AND both employers are liable for circuit court’s judgment to the extent it SPECIAL EMPLOYER workmen’s compensation.’” found an arrearage of $320,000 in child support payments based upon a pendente “430 So. 2d at 865 (quoting 1C A. Ex parte Tenax Corp., [Ms. 1151122, lite order entered at the wife’s request Larson, The Law of Workmen’s Jan. 27, 2017] __ So. 3d __ (Ala. 2017). shortly after the complaint for divorce was Compensation, § 48 (1980)). The The Supreme Court grants a petition for a filed. The court finds that the pendente lite requirement of a contract of hire writ of mandamus and reverses a judgment order failed to conform with the manda- comports directly with our Workers’ of the Conecuh Circuit Court which had tory requirements of Rule 65(b), Ala. R. Compensation Act, which defines an denied a motion for summary judgment Civ. P. in that the wife’s petition failed to ‘employee’ as a ‘person in the service claiming workers’ compensation immunity contain specific facts shown by affidavit or of another under any contract of hire, under § 25-5-1, et seq., Ala. Code 1975. by a verified complaint that immediate and express or implied, oral or written.’ The Court first reiterates that manda- irreparable injury, loss, or damage, would Ala. Code 1975, § 25-5-1(5).” mus is an appropriate means for reviewing result to the applicant, and the petition was Ms. *10-11, quoting Gaut, 630 So. 2d at a denial of a claim of employer immunity also deficient as the attorney never certified 364. under the exclusive-remedy provisions of in writing the efforts made, if any, to give In this case, the ultimate issue was the Workers’ Compensation Act. Ms. *8-9, notice to the respondent for the reasons whether there was an implied agreement citing, inter alia, Ex parte Rockwell Mfg. Co., why such notice should not be required. for the plaintiff to work under a contract of 202 So. 3d 669 (Ala. 2016). Citing Ex parte Franks, 7 So. 3d 391 (Ala. hire with the petitioner Tenax. Substantial The Court next citesGaut v. Medrano, Civ. App. 2008) and Ex parte Hutson, 201 evidence shows that the employee intended 630 So. 2d 362 (Ala. 1993) for its recitation So. 3d 570, (Ala. Civ. App. 2016)(Ms. to enter into a contract of hire with Tenax, of the elements of the Special Employer *10-14) the court holds that the pendente that he submitted to its control and defense: lite order was entered in violation of Rule supervision and he admitted it was his In Terry v. Read Steel Products, 430 65(b) and was therefore a nullity insofar as understanding that he was employed by So. 2d 862 (Ala. 1983) this Court ad- it purported to award the wife $320,000 in Tenax. Ms. *14. Additionally, the evidence opted a three-pronged test for deter- past-due child support. established that Tenax provided workers’ mining when an employee of a general The court also reverses the judgment compensation insurance, albeit through employer can become the employee under authority of Morgan v. Morgan, 183 the temporary employment agency by of a ‘special employer’ for purposes of So. 3d 945 (Ala. Civ. App. 2014) because paying a compensation rate above the workers’ compensation: the record did not contain any evidence rate paid to the employee, which was used as to the parties’ respective incomes or the in part to pay for workers’ compensation “‘“ When a general employer needs of the children. Ms. *15-17. insurance premiums. Ms. *15-16. Finally, lends an employee to a spe- Finally, the judgment awarding the employee’s activities at Tenax were “of cial employer, the special alimony is likewise reversed because of the such duration that [he] could be reasonably employer becomes liable for absence in the record of evidence estab- presumed to have evaluated and acquiesced workmen’s compensation lishing the need for such alimony. Citing in the risk of his employment.” Ms. *17. [and thus immune from lia- Sullivan v. Sullivan, [Ms. 2140760, Feb. 26, Accordingly, the special employer was bility for tort actions brought 2016] __ So. 3d __ (Ala. Civ. App. 2016), entitled to summary judgment on the basis by the special employee] only and Shewbart v. Shewbart, 64 So. 3d 1080 of workers’ compensation immunity. WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 115 RECENT CIVIL DECISIONS

Court holding that a liability policy issued has deprived the client of ARBITRATION by Alfa Mutual Insurance Company which something to which he did not provide coverage for a user of an would otherwise have been University Toyota v. Hardeman, [Ms. automobile who did not have the express entitled.” [7A C.J.S. Attorney 1151204, Jan. 27, 2017] __ So. 3d __ (Ala. permission of the owner or drivers covered and Client § 255 at 462 2017). The Court reverses an order of the by the policy was valid and enforceable. (1980).] A lawyer cannot be Colbert Circuit Court allowing parties to expected to achieve impos- pursue claims against automobile dealer- ALABAMA LEGAL sible results for a client.’); ships in arbitration proceedings conducted SERVICES LIABILITY Hall v. Thomas, 456 So. 2d by the American Arbitration Association ACT, § 6-5-570, ET SEQ., 67, 68 (Ala. 1984) (‘A claim rather than by the Better Business Bureau ALA. CODE 1975 for malpractice requires a of North Alabama as specified in the showing that in the absence controlling arbitration agreements. The evi- of the alleged negligence the dence established that the Better Business Yarbrough v. Eversole, [Ms. 1150400, outcome of the case would Bureau rejected the arbitration petition Jan. 27, 2017] __ So. 3d __ (Ala. 2017). The have been different.’ (citing because it sought relief on a class-wide ba- Supreme Court affirms in part and reverses Mylar v. Wilkinson, 435 So. sis. Citing Stolt-Nielsen S.A. v. AnimalFeeds in part a judgment entered in favor of a law 2d 1237 (Ala. 1983))).” Int’l Corp., 559 U.S. 662 (2010) and firm and its lawyers in a legal malprac- Ms. *12, quoting Bonner v. Lyons, Pipes Chambers v. Groome Transp. of Alabama, 41 tice action brought in the Shelby Circuit & Cook, P.C., 26 So. 3d 1115, 1120 (Ala. F.Supp.3d 1327 (M.D. Ala. 2014)(Ms. *14- Court. An unopposed motion for summary 2009) (emphasis in original). 15), the Court holds that the arbitration judgment which was granted by the circuit Citing Bryant v. Robledo, 938 So. 2d agreement’s silence as to the availability of court was affirmed, but an opposed -mo 413 (Ala. Civ. App. 2005), which is char- class-wide relief did not afford the circuit tion for judgment on the pleadings which acterized as analogous, the Court holds a court the discretion to select an alterna- resulted in a dismissal by the circuit court fraud-in-the-inducement claim concerning tive arbitration forum which could provide was due to be reversed and remanded. the prospects of filing a petition under Rule class-wide relief because, under Alabama 32, Ala. R. Crim. P., stated a viable claim law, class-wide arbitration is permitted only “To prevail in a legal-mal- for relief under the Alabama Legal Services when the arbitration agreement provides practice action, the plaintiff Liability Act. “Accordingly, the circuit for it. The Court concludes must prove that, but for the court erred in concluding that [plaintiff ’s] attorney’s negligence, the le- legal malpractice action against the firm Because a trial court can compel gal matter concerning which and [its attorney] failed as a matter of law. arbitration only in a manner consistent the attorney is alleged to have There exists a plain dispute of fact as to with the terms of the applicable arbi- been negligent would have what [the attorney] told [plaintiff ] about tration agreement, we reverse the trial been resolved more favorably the prospects of a Rule 32 petition and the court’s order compelling arbitration to the plaintiff.Pickard v. subsequent appellate filings. Therefore, a and remand the cause for the entry Turner, 592 So. 2d 1016, judgment on the pleadings in favor of the of a new order compelling [plaintiffs] 1019 (Ala. 1992). To meet firm and [the attorney] was not warranted.” to arbitrate their claims against the this burden, the plaintiff must Ms. *16. University dealerships before the BBB prove (1) that, in the absence if they wish to pursue those claims. of the alleged malpractice, WORKERS’ Ms. *17. the plaintiff would have been COMPENSATION AND entitled to a more favorable VENUE LIABILITY INSURANCE result in the legal matter COVERAGE AND concerning which the at- torney is alleged to have been Ex parte Hibbett Sporting Goods, Inc., IMPLIED PERMISSION negligent, and (2) that the [Ms. 2160069, Jan. 27, 2017] __ So. 3d attorney’s negligence in fact __ (Ala. Civ. App. 2017). The Court of Grimes v. Alfa Mut. Ins. Co., [Ms. caused the outcome of the Civil Appeals grants a petition for writ of 1150041, Jan. 27, 2017] __ So. 3d __ legal matter to be less favor- mandamus and orders the Lamar Circuit (Ala. 2017). Invoking traditional rules of able to the plaintiff than the Court to vacate an order denying Hibbett statutory construction (Ms. *34-6), the outcome would have been Sporting Goods’ motion for change of Court holds that Alabama’s Mandatory in the absence of the alleged venue and to enter an order transferring Liability Insurance Act, § 32-7A-1, et seq., malpractice. Pickard, 592 the underlying workers’ compensation Ala. Code 1975, does not require omnibus So. 2d at 1020 (‘ “Generally, action to the Jefferson Circuit Court. The coverage for operators of insured motor actionable [legal] malpractice court rejected the contention that Hibbett vehicles with implied permission of the cannot be established in the Sporting Goods did business by agent in named insured. Accordingly, a declaratory absence of a showing that the Lamar County (the county of the worker’s judgment entered by the Coffee Circuit attorney’s wrongful conduct residence) such that venue was proper 116 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS under § 6-3-7(a)(3), Ala. Code 1975. The tion, acting as a distribu- tends to promote the mutual interest court notes the distinction in the law in tor of products for another of both [the rider] and driver for their the test of agency for purposes of liability corporation, was an ‘agent’ for common benefit, thus creating a joint versus venue: the purpose of venue, because business relationship between the it was a ‘means’ by which the motorist and his rider, or if the rider “[I]n Ex parte Peabody principal corporation did accompanies the driver at the instance Galion Co., 497 So. 2d 1126 business. Id.” of the driver for the purpose of having (Ala. 1986), [the Supreme the rider render a benefit or service to Court] held that the standard Ex parte Charter Retreat Hosp., Inc., the driver on a trip that is primarily for testing agency for venue 538 So. 2d 787, 789-90 (Ala. 1989). for the attainment of some objective of purposes is different from the “‘“[A] corporation ‘does business’ the driver, the rider is a ‘passenger for standard for testing agency in a county for purposes of § 6-3-7 hire’ and not a guest.”’” for the purpose of liabil- if, with some regularity, it performs Ms. *6, quoting Sullivan v. Davis, 263 Ala. ity. [The Supreme Court] there some of the business functions 685, 688, 83 So. 2d 434, 436-37 (1955). discussed the standard as for which it was created.”’” Ex parte The Court emphasized, follows: Pike Fabrication, 859 So. 2d at 1093 “‘If the excursion is not purely social, (quoting Ex parte Wiginton, 743 So. any benefit to the driver of the au- “‘The term “agency” 2d 1071, 1074-75 (Ala. 1999), quoting tomobile conferred or anticipated or is frequently used to in turn Ex parte SouthTrust Bank of mutual benefit present or anticipated describe an arrangement Tuscaloosa, N.A., 619 So. 2d 1356, to the driver and the person carried is which does not rise to 1358 (Ala. 1993)). “Doing business” sufficient to take the case out of the the level of a principal/ includes “the sale of [a] corporation’s automobile guest statute.’” agent relationship and products.” Ex parte Peabody Galion Ms. *6, quoting Harrison v. McCleary, 281 which is not governed Co., 497 So. 2d 1126, 1129 (Ala. Ala. 87, 90, 199 So. 2d 165, 167 (1967). by the law of respon- 1986). The Court focused on the nature of the deat superior. See Black’s Ms. *12-13. The court concludes that “§ benefit that must be conferred to take a Law Dictionary, (rev. 6-3-7(a)(3) requires that the defendant case outside of the statute: 4th ed. 1968); and 3 corporation have an agent, not a principal, Am.Jur. 2d Agency § 2, that does business in the county.” Ms. *14. “‘... In order to keep the person p. 510. Indeed, that term “For the purposes of venue, an agent must transported from being a gratuitous “is also often used in be the ‘means’ by which the principal is guest, it is not necessary that he should statutes or constitutional able to do business in a particular county.” have paid or agreed to pay directly for provisions in a more Ms. *15, quoting Ex parte Charter Retreat his transportation or be a “passenger restricted sense than Hosp., Inc., 538 So. 2d 787, 790 (Ala. 1989). for hire” in the legal sense of the term; that commonly given it, Because the injured worker failed to meet and the payment or compensation and, where so used, its this required showing, venue was appropri- which the carrier derives from the significance must gener- ate only in the Jefferson Circuit Court. undertaking need not consist of cash ally be determined by a or its equivalent, but may consist of study of the context.” 2A GUEST STATUTE some other substantial benefit, recom- C.J.S. Agency § 4, p. 557 pense, or return making it worth while (1972). Hurst v. Sneed, [Ms. 1151067, Feb. 3, for him to furnish the ride.’ 60 C.J.S., 2017] __ So. 3d __ (Ala. 2017). The Court Motor Vehicles, § 399(5)b, p. 1011. “‘...’ reverses a summary judgment entered by the Madison Circuit Court in a negligence “.... “Id. at 1128-29. Peabody action upon determining questions of fact tells us that for the purpose existed about application of the Alabama “... [T]he general rule [is] that a of venue, the element of Guest Statute, § 32-1-2, Ala. Code 1975. mere incidental benefit to the driver is control, or lack thereof, of the The Court first stated the basic rule of not sufficient to take the rider out of principal over its agent is not construction of the statute: the guest statute. The benefit conferred determinative. Id. at 1129. must in some degree have induced If the entity is the ‘means’ by “‘“ The general rule is that if the the driver to extend the offer to the which the principal is able transportation of a rider confers a rider. Further, courts have generally to do business in a particular benefit only on the person to whom held that the benefit must be material county, then the entity is the the ride is given, and no benefits and tangible and must flow from the ‘agent’ of the principal for other than such as are incidental to transportation provided. ...” venue purposes. In Peabody, hospitality, good will or the like, on the Ms. *7, quoting Sullivan, 263 Ala. at [the supreme court] found person furnishing the transportation, 688-89, 83 So. 2d at 437. The Court then that an independent corpora- the rider is a guest; but if his carriage summarized the three components of the WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 117 RECENT CIVIL DECISIONS determination of whether a rider in a ve- ing the property to forfeiture was com- entered by the Colbert Circuit Court in hicle is considered a “guest” or a “passenger mitted or omitted without the owner’s favor of Helen Keller Hospital and against for hire” for purposes of application of the or lienholder’s knowledge or consent a personal representative of her deceased guest statute: and that the owner or lienholder could husband’s estate in a medical negligence not have obtained by the exercise of case which sought to impose vicarious (1) if the transportation of a rider reasonable diligence knowledge of the liability upon the hospital for the acts of its confers a benefit only on the rider, intended illegal use of the property so emergency room physician. and no benefits, other than such as as to have prevented such use.” As to plaintiff ’s apparent authority are incidental to hospitality, good will, Ms. *7. Under this statute, “lack of knowl- theory, the Court (Ms. *20-41) applies ex- or the like, on the driver, the rider is a edge or consent is an affirmative defense, isting law and concludes plaintiff presented guest; (2) if the transportation tends available after the state has made a prima no evidence the hospital held itself out as to promote the mutual interest of facie case for forfeiture.” Id., quoting State employing the doctors that worked in its both the rider and the driver for their ex rel. Williams v. One Glastron Boat, 411 emergency room and no evidence that she common benefit, thus creating a joint So. 2d 795, 796 (Ala. Civ. App. 1982) and or her husband in seeking treatment at the business relationship between the mo- Kuykendall v. State, 955 So. 2d 442, 445 hospital relied on any representation by the torist and his or her rider, the rider is a (Ala. Civ. App. 2006). hospital that the doctor who would treat “passenger for hire” and not a “guest”; Here, as in Kuykendall v. State, there her husband was an agent or employee of and (3) if the rider accompanies the was no evidence supporting any conclusion the hospital. driver at the instance of the driver for that the owner knew or should have known the purpose of having the rider confer that his son was using the automobile il- “‘“‘As between the principal a benefit or service to the driver on a legally. Thus, the trial court’s judgment was and third persons, mutual trip the primary objective of which is not supported by the evidence. rights and liabilities are gov- to benefit the driver, the rider is a “pas- erned by the apparent scope senger for hire” and not a “guest.” STANDING TO APPEAL of the agent’s authority which Ms. *8-9, citing Sullivan, supra. Here, the the principal has held out the Court found a material issue of fact con- Manley v. Vaughn, [Ms. 2150855, agent as possessing, or which cerning whether the passenger conferred a Feb. 10, 2017] __ So. 3d __ (Ala. Civ. App. he has permitted the agent material benefit upon the driver by agree- 2017). Citing McCollum v. Keating, 5 So. to represent that he possesses ing to the driver’s request to accompany her 3d 1283 (Ala. Civ. App. 2008), the court and which the principal is to a store to assist the driver with her el- again holds that “[u]nless a person is a estopped to deny.’ derly aunt. Ms. *11. Viewing this evidence party to a judgment, he [cannot] appeal in the light most favorable to the passenger, from that judgment. ... One must have “‘“Such apparent authority the Court concludes that accompanying been a party to the judgment below in is the real authority so far as the driver to the store to assist with an order to have standing to appeal any issue affects the rights of a third elderly aunt conferred a material benefit arising out of that judgment.” Ms. *5-6, party without knowledge or so as to remove the passenger from “‘guest’ quoting McCollum, 5 So. 3d at 1287. notice ....” ... status” under the Alabama Guest Statute. In this case, the appellant purports Ms. *12. to appeal from a judgment of the Etowah “‘“When one has reasonably Circuit Court approving a settlement and in good faith been led to CIVIL FORFEITURE agreement stemming from a claim filed by believe, from the appear- his father which contested a will. Because ance of authority which a Wallace v. State, [Ms. 2150967, the appellant was never a party in the will principal permitted his agent Feb. 10, 2017] __ So. 3d __ (Ala. Civ. contest, he had no standing to appeal and to exercise, that a certain App. 2017). The Court of Civil Appeals his appeal was required therefore to be agency exists, and in good reverses a judgment entered by the Shelby dismissed. faith acts on such belief to Circuit Court ordering the forfeiture of an his prejudice, the principal is automobile based upon its use in a sale of APPARENT AUTHORITY estopped from denying such marijuana. The court notes that innocent AND NON-DELEGABLE agency ....” ... owners of property subject to forfeiture DUTY have an affirmative defense pursuant to § 20-2-93(h) which states: “‘“The apparent author- “An owner’s or bona fide lienholder’s Bain v. Colbert County Northwest Ala. ity of the agent is the same, interest in any type of property other Health Care Auth., [Ms. 1150764, Feb. and is based upon the same than real property and fixtures shall be 10, 2017] __ So. 3d __ (Ala. 2017). The elements as the authority forfeited under this section unless the Court, per curiam, (Stuart, Bolin, Shaw, created by the estoppel of the owner or bona fide lienholder proves Main, Wise, and Bryan, JJ, concur; Parker principal to deny the agent’s both that the act or omission subject- and Murdock, JJ, concur in part and dis- authority; that is to say, the sent in part) affirm a summary judgment two are correlative, inasmuch 118 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

as the principal is estopped asserting it and he must rather than a duty owed by the hospital, to deny the authority of the therefore show that he there was no basis for alleging the hospital agent because he has permit- was misled by the ap- should be vicariously liable for the physi- ted the appearance of author- pearances relied upon. cian’s breach of a non-delegable duty owed ity in the agent, thereby It is not enough that he by that hospital. justifying the third party in might have been, ... so relying upon the same as misled. It must also ap- MEDICAL NEGLIGENCE though it were the authority pear that he had reason- AND EXCEPTIONS TO actually conferred upon the able cause to believe that REQUIREMENT OF agent.”’ the authority existed; EXPERT TESTIMONY TO mere belief without ESTABLISH BREACH OF “Pearson v. Agricultural cause, or belief in the Insurance Co., 247 Ala. 485, face of facts that should THE STANDARD OF 488, 25 So. 2d 164, 167 (1946) have put him on his CARE AND CAUSATION (citations omitted); see Wood v. guard is not enough.’”’ Shell Oil Co., 495 So. 2d [1034,] Collins v. Herring Chiropractic 1038 [(Ala. 1986)]. The doctrine “[Crane,] 288 Ala. at 180, Center, LLC, [Ms. 1151173, Feb. 17, of apparent authority is based 258 So. 2d at 887. 2017] __ So. 3d __ (Ala. 2017). The Court upon the actions of the principal, reverses a summary judgment entered by not those of the agent; it is based “‘[B]efore there can be the Jefferson Circuit Court in favor of a upon the principal’s holding apparent authority that chiropractor and his clinic in an action the agent out to a third party implies an agency rela- under the Alabama Medical Liability Act as having the authority upon tionship, the “authority” for burn injuries and scarring attributable which he acts, not upon what must be “apparent” to to application of a cold pack to a patient’s one thinks an agent’s author- the complaining party knee. ity might be or what the agent and that party must have Defendants supported a motion holds out his authority to be. See relied on the appearance for summary judgment with an affidavit Automotive Acceptance Corp. of authority; he cannot from the chiropractor asserting that his v. Powell, 45 Ala. App. 596, 234 rely on an appearance treatment was within the standard of care. So. 2d 593 (Ala. Civ. App. 1970), of authority that he was Defendants then asserted that because quoted with approval in Massey- ignorant of.’ plaintiff failed to present controverting Ferguson, Inc. v. Laird, 432 So. “Watson v. Auto-Owners testimony from a similarly situated health 2d 1259 (Ala. 1983).” Ins. Co., 599 So. 2d 1133, care provider, summary judgment was 1136 (Ala. 1992) (emphasis due to be granted in their favor. Plaintiff 644 So. 2d at 891. The third party’s supplied).” responded that expert testimony was not belief that an individual is an agent Ms. *22-25, quoting Malmberg v. American required because her claims could “be read- or employee of the principal must Honda Motor Co., 644 So. 2d 888, 891 (Ala. ily understood by a lay person.” Ms. *4. be “objectively reasonable”; what the 1994) and Brown v. St. Vincent’s Hosp., 899 The opinion reiterates “there is an third party “subjectively perceived” is So. 2d 227, 237 (Ala. 2004). exception to the rule requiring expert testi- immaterial to the analysis. Brown v. St. As for the non-delegable duty theory, mony ‘in a case where want of skill or lack Vincent’s Hosp., 899 So. 2d 227, 239 the Court rejected Plaintiff ’s contention of care is so apparent ... as to be understood (Ala. 2004). that regulations promulgated by the State by a layman, and requires only common As indicated above, this Court has Board of Health imposed any duty on the knowledge and experience to understand held that “‘there must be a reliance on hospital to provide emergency medical it.’” Ms. *7, quoting Tuscaloosa Orthopedic the part of the injured person before physician services (Ms. *41-49) because Appliance Co. v. Wyatt, 460 So. 2d 156, 161 liability can be engrafted through the Ala. Admin. Code Reg. 420-5-7-.04(4) (Ala. 1984). The “general rule” concern- doctrine of respondeat superior, by es- imposes the duty of care for patients in ing when a plaintiff can prove a medical toppel, on the master.’” Brown, 899 So. hospitals on physicians (“a doctor of medi- negligence claim without testimony from a 2d at 237 (quoting Union Oil Co. of cine or osteopathy is responsible for the similarly situated health care provider is: California v. Crane, 288 Ala. 173, 179, care of each patient). In short, the Court “‘(1) where a foreign instrumental- 258 So. 2d 882, 887 (1972) (emphasis concludes that “[t]he duty of care owed ity is found in the plaintiff ’s body added)). to a patient by a physician is distinct from following surgery; 2) where the injury the duty of care owed to a patient by a complained of is in no way connected “‘“‘Estoppel,’ by holding hospital.” Ms. *49-50, citing § 6-5-484(a), to the condition for which the plaintiff out another as the agent Ala. Code 1975 (setting forth the duty of sought treatment; 3) where the plain- of the asserted principal, care owed by a physician and by a hospital). tiff employs a recognized standard or ‘is always a matter per- Because the emergency room physician authoritative medical text or treatise to sonal to the individual allegedly breached a duty owed by him WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 119 RECENT CIVIL DECISIONS

prove what is or is not proper practice; relationship between [plaintiff ’s] injury and merits in the case untimely appealed to and 4) where the plaintiff is himself the defendants’ acts are such that it can be that court, the circuit court’s judgment was or herself a medical expert qualified to readily understood, to the extent that a lay void. Ms. *6, citing Colburn v. Colburn, 14 evaluate the doctor’s allegedly negli- person can reliably determine the issue of So. 3d 176 (Ala. Civ. App. 2009). gent conduct.’” causation without independent expert tes- Ms. *8, quoting Allred v. Shirley, 598 So. timony to assist in that determination.” Ms. SUMMARY JUDGMENT 2d 1347, 1350 (Ala. 1992). This list is il- *14-15. Thus, under authority ofSorrell v. PROCEDURE lustrative and not exclusive. Ms. *8, citing King, 946 So. 2d 854, 862-63 (Ala. 2006), Ex parte HealthSouth Corp., 851 So. 2d 33 no independent expert testimony was Hendon v. Holloway, [Ms. 2150958, (Ala. 2002). required on the issue of causation either. Feb. 17, 2017] __ So. 3d __ (Ala. Civ. App. The Court highlights its reformula“ - RULE 54(B), ALA. R. CIV. 2017). The Court of Civil Appeals affirms tion” of the general rule concerning when a in part and reverses in part a summary plaintiff can prevail in a medical negligence P. “FINALITY” judgment entered by the Jefferson Circuit action without the benefit of independent Court in favor of defendants in an action expert testimony this way: Equity Trust Co. v. Breland, [Ms. alleging malicious prosecution and harass- “[T]o recognize first, a class of cases 1150302, 1150876, Feb. 17, 2017] __ ment. ‘“where want of skill or lack of care is So. 3d __ (Ala. 2017)(certification and The appellant first contended the so apparent ... as to be understood by dismissal of appeal). The Court dismisses summary judgment was improper as to one a layman, and requires only common consolidated appeals from the Mobile of the defendants because that defendant knowledge and experience to under- Circuit Court upon concluding the circuit had not filed his own summary-judgment stand it,”’ [Tuscaloosa Orthopedic court exceeded its discretion in certifying motion. However, the court rejected the Appliance Co. v.] Wyatt, 460 So. 2d its judgments under Rule 54(b), Ala. R. contention because the record reflected [156] at 161 [(Ala. 1984)](quoting Civ. P. as final and therefore appealable. that the appellant never challenged the Dimoff v. Maitre, 432 So. 2d 1225, Because claims remained pending in the summary judgment at any time in the 1226-27 (Ala. 1983)), such as when a circuit court arising out of the same under- trial court on the basis of a failure by that sponge is left in, where, for example, lying operative facts, Schlarb v. Lee, 955 So. defendant to file his own motion. Citing the wrong leg is operated on, or, as 2d 418 (Ala. 2006), Pavilion Dev., L.L.C. v. Andrews v. Merritt Oil Co., 612 So. 2d 409 here, where a call for assistance is com- JBJ P’ship, 142 So. 3d 535 (Ala. 2013) and (Ala. 1992) (Ms. *6), the court reiterates pletely ignored for an unreasonable Stephens v. Fines Recycling, Inc., 84 So. 3d that an appellate court’s review is restricted period of time. A second exception 867 (Ala. 2011) warranted dismissal of the to the evidence and arguments presented to to the rule requiring expert testimony consolidated appeals because of the prob- the trial court such that an appellate court applies when a plaintiff relies on ‘“‘a ability of repeated appellate review of the will not consider an issue raised for the first recognized standard or authoritative same underlying facts. time on appeal. medical text or treatise,’”’ Anderson Citing Dow v. Alabama Democratic [v. Alabama Reference Labs., 778 So. TIMELINESS OF APPEAL Party, 897 So. 2d 1035 (Ala. 2004) (Ms. 2d [806] at 811 [(Ala. 2000)], or is FROM DISTRICT COURT *7-9), the court finds that the defendants’ himself or herself a qualified medical JUDGMENT motion for partial summary judgment and expert.” supporting affidavit contain no evidence Ms. *9, quoting HealthSouth, 851 So. 2d at “that could be construed as a refutation of 39. Modi v. Johnson, [Ms. 2160072, Feb. [plaintiff ’s] malicious-prosecution claim” Viewing the evidence in a light most 17, 2017] __ So. 3d __ (Ala. Civ. App. such that there was a failure to meet the favorable to the plaintiff, it was not neces- 2017). Citing Croskey v. Crawford, 177 So. summary-judgment “burden of demon- sary for her to present independent expert 3d 468 (Ala. Civ. App. 2014) and McCaskill strating that no genuine issue of material testimony where her claim concerning v. McCaskill, 111 So. 3d 736 (Ala. Civ. App. fact existed or that she was entitled to a misapplication of the cold pack “requires 2012), the Court of Civil Appeals holds judgment as a matter of law.” Ms. *9, citing only common knowledge and experience that an appeal from a district court judg- Dow, 897 So. 2d at 1038-39. to understand what is akin to frostbite.” ment concerning a request for imposition Finally, the court concludes that de- Ms. *11. The facts place this case within the of a garnishment was untimely because it fendants’ motion for partial summary judg- class of cases “where want of skill or lack of was not filed “within 14 days from the date ment and supporting affidavits established care is so apparent ... as to be understood of the judgment or the denial of a post-trial prima facie that they had not engaged in by a layman, and requires only common motion, whichever is later” as required by § harassment such that the burden shifted knowledge and experience to understand it. 12-12-70(a), Ala. Code 1975. Though the to the appellant to present substantial evi- ...” Ms. *12, quoting HealthSouth, 851 So. district court purported to make rulings dence as to the existence of a genuine issue 2d at 39. beyond the 14-day period provided by § of material fact. Ms. *10, citing Dow, 897 Furthermore, because “[b]listering and 12-20-70(a), those rulings were nullities. So. 2d at 1038-39. Because the appellant subsequent scarring does not ordinarily Ms. *5, citing Moragne v. Moragne, 888 So. failed to present controverting evidence, the occur following the application of a cold 2d 1280 (Ala. Civ. App. 2004). Further, to summary judgment was properly entered pack, absent negligence” “[t]he causative the extent the circuit court ruled on the 120 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS in favor of defendants as to the harassment reasonable reliance on the misrepresenta- future “beyond-authority” issues is to ask claim. Id. tions that he could become a Farmers agent whether “[t]he [rule, regulation, policy, or while continuing in his father’s agency. procedure] is “sufficiently specific so as to FRAUD IN THE The Court held that Morris’s status as leave no choice to [the state-agent] in the INDUCEMENT an employee at will did not prevent him performance of [his or her] duties.” Does – VERDICT FOR from asserting that he reasonably relied by the rule, regulatory policy or procedure COMPENSATORY altering his relationship with his father’s define the [state-agent’s] responsibilities business (i.e., by concentrating instead on with such precision to leave nothing to the AND PUNITIVE selling Farmers policies). Second, the Court exercise of the [state-agent’s] discretion or DAMAGES AFFIRMED rejected an argument that the merger judgment?” Ms. *26 paraphrasing Enriquez and integration clause precluded reliance v. Khouri, 13 S.W. 3d 458, 462-63 (Tex. Ct. Farmers Ins. Exchange v. Morris, [Ms. on earlier oral misrepresentations – a App. 2000). 1121091, Feb. 12, 2016], 2016 WL 661671, statement in a contract that no other rep- Guidance may be found in language of __ So. 3d __ (Ala. 2016), reh’g denied Feb. resentations have been made does not bar a the Restatement (Second) of Torts § 895D, 24, 2017. fraud action alleging that oral misrepresen- cmt. b (1979). In this Cunningham Bounds case, tations fraudulently induced the plaintiff “The complex process of the admin- Kyle Morris sued Farmers Insurance for to enter into the contract. Third, the Court istration of government requires that fraudulently inducing him to become a rejected Farmers’ argument that a state- officers and employees be charged Farmers agent. Kyle was already an agent in ment available to Mr. Morris in its training with the duty of making decisions, his father’s insurance agency, and Farmers materials should have alerted him to a either of law or of fact, and of acting in agents assured him that continuing this Farmers rule against maintaining an office accordance with their determinations. relationship was not prohibited by any in another insurance agency; that rule was ... The basis of the immunity has been Farmers’ rules. After he worked success- buried deep within training materials and not so much a desire to protect an err- fully for Farmers for more than two years, both Mr. Morris and the Farmers agents ing officer as it has been a recognition Farmers terminated him because of an who trained him testified that they had of the need of preserving indepen- alleged conflict of interest from working never seen it and were not aware of it, so a dence of action without deterrence or with his father’s agency. The termination jury question was presented on whether it intimidation by the fear of personal caused him to lose the value of the work he precluded reasonable reliance. liability and vexatious suits. This, did over that time. together with the manifest unfairness Despite amicus support from the STATE-AGENT of placing any person in a position in Business Council of Alabama; Alfa IMMUNITY which he is required to exercise his Insurance Corporation, Alfa Mutual Fire judgment and at the same time is held Insurance Company, Alfa Mutual General Ex parte Ingram, [Ms. 1131228, responsible according to the judgment Insurance Corporation, Alfa Life Insurance Feb. 24, 2017] __ So. 3d __ (Ala. 2017). of others, who may have no experience Corporation, Alfa Mutual Insurance; The In a plurality opinion (Murdock, J. and in the area and may be much less Alabama Civil Justice Reform Committee; Main and Wise, JJ., concur; Stuart and qualified than he to pass judgment Automobile Dealers Association of Murdock, JJ., concur specially; Parker and in a discerning fashion or who may Alabama, Inc.; National Federation of Bryan, JJ., concur in the result; and Shaw, now be acting largely on the basis of Independent Business; Alabama Road J., concurring in the result in part and hindsight, has led to a general rule that Builders Association; Alabama Retail dissenting in part), the Court revisits the tort liability should not be imposed for Association; Home Builders Association “beyond-authority” exception to state- conduct of a type for which the impo- of Alabama; Alabama Associated General agent immunity identified inEx parte sition of liability would substantially Contractors of America; Alabama Rural Cranman, 792 So. 2d 392, 405 (Ala. 2002) impair the effective performance of a Electric Association of Cooperatives; and applied in Ex parte Sumerlin, 26 So. discretionary function.” Alabama Bankers Association; Association 3d 1178 (Ala. 2009) and Ex parte Coleman, Ms. *29, quoting Restatement (Second) of of Alabama Life Insurance Companies; 45 So. 3d 751 (Ala. 2013) in the context of Torts, § 895D, cmt. b (1979)(emphasis in and the Alabama Defense Lawyers claims to state-agent immunity by a special original). Association, the Supreme Court of needs teacher and her paraprofessional MANDAMUS AND Alabama affirmed the $2.4 million fraud assistant. The Court embraces language judgment ($600,000 compensatory dam- from the Supreme Court of Texas to recast RESIDUAL ages and $1.8 million punitive damages) the “beyond-authority” test to ask whether JURISDICTION and on February 24, 2017, denied rehear- a rule, regulation, policy, or procedure is ing. “sufficiently specific so as to leave no choice Ex parte Caremark Rx, LLC, [Ms. The Supreme Court rejected Farmers’ to [the state-agent] in the performance 1151160, Feb. 24, 2017] __ So. 3d __ (Ala. three arguments for judgment as a matter of [his or her] duties.” Ms. *25, quoting 2017). 2017). The Court reverses an order of law on the fraud claim. First, it argued City of Lancaster v. Chambers, 883 S.W. 2d of the Franklin Circuit Court requiring that Morris was only an employee at will 650, 655 (Tex. 2003). The way to evaluate a defendant in a case settled and so could not have any injury from WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 121 RECENT CIVIL DECISIONS sixteen years ago to produce under author- been negligent, and (2) that the at- 132-33, 237 So. 2d 652, 655 (1970), ity of Rule 60(b)(6), Ala. R. Civ. P., and an torney’s negligence in fact caused the this Court stated: assertion by the circuit court of “retained outcome of the legal matter to be less “If officials of a school desire to jurisdiction” documents identifying all favorable to the plaintiff than the out- associate with other schools and members of the plaintiff class covered come would have been in the absence prescribe conditions of eligibility for by the settlement. Citing Schramm v. of the alleged malpractice. Pickard, 592 students who are to become members Spotswood, 109 So. 3d 154 (Ala. 2012), So. 2d at 1020 (‘“Generally, action- of the school’s athletic teams, and the State ex rel Abdullah v. Roldan, 207 S.W. able [legal] malpractice cannot be member schools vest final enforcement 3d 642 (Mo. Ct. App. 2006) and Holifield established in the absence of a showing of the association’s rules in boards of v. Holifield, 109 S.W. 3d 711 (Mo. Ct. that the attorney’s wrongful conduct control, then a court should not inter- App. 2003), the Court concludes that the has deprived the client of something fere in such internal operation of the Franklin Circuit Court’s purported reserva- to which he would otherwise have affairs of the association. ... tion of jurisdiction had no legal effect as been entitled.” [7A C.J.S. Attorney “Of course, if the acts of an its inherent enforcement power applies and Client § 255 at 462 (1980).] A association are the result of only to the judgment as originally rendered lawyer cannot be expected to achieve fraud, lack of jurisdiction, and its power to modify that judgment impossible results for a client.’); Hall v. collusion, or arbitrariness, ceases when the judgment becomes final. Thomas, 456 So. 2d 67, 68 (Ala. 1984) the courts will intervene to Accordingly, the settling defendant was (‘A claim for malpractice requires a protect an injured part[y’s] entitled to the writ directing the Franklin showing that in the absence of the rights.” Circuit Court to vacate its order requiring alleged negligence the outcome of the In Alabama High School Athletic production of the class members’ identify- case would have been different.’ (citing Ass’n v. Rose, 446 So. 2d 1, 5 (Ala. ing information. Mylar v. Wilkinson, 435 So. 2d 1237 1984), this Court further stated: (Ala. 1983))).” “[A]s Kilpatrick and ALABAMA LEGAL Ms. *10-11, quoting Bonner v. Lyons, Pipes Kubiszyn [v. Alabama High SERVICES LIABILITY & Cook, P.C., 26 So. 3d 1115, 1120 (Ala. School Athletic Ass’n, 374 ACT § 6-5-570, ET SEQ., 2009). So. 2d 256 (Ala. 1979),] ALA. CODE 1975 Here, because the plaintiff presented indicate, the burden on the evidence admissible under Rule 803(3), challenger to overcome the Ala. R. Evid. (then existing state of mind presumption favoring the Bond v. McLaughlin, [Ms. 1151215, exception to hearsay rule) concerning Association’s absolute author- Feb. 24, 2017] __ So. 3d __ (Ala. 2017). the decedent’s statements that he had ity in the conduct of its own The Court reverses a summary judgment destroyed his will, the plaintiff met her affairs is a heavy one. We entered by the Lee Circuit Court in an burden of presenting substantial evidence reaffirm the Kilpatrick test action alleging legal malpractice under the creating a genuine issue of material fact to to the effect that the Court’s Alabama Legal Services Liability Act § be resolved by the finder of facts. Ms. *12-13. jurisdiction in such matters 6-5-570, et seq., Ala. Code 1975, upon con- is invoked when, and only cluding that the plaintiff met her burden MANDAMUS when, the averments of fraud, of presenting substantial evidence creating AND REVIEW OF collusion, or arbitrariness a genuine issue of material fact concerning AHSAA ELIGIBILITY are supported by clear and whether a will contest, had it been properly DETERMINATIONS convincing evidence; and the filed in an underlying action, would have trial court’s acceptance of been successful. The Court reiterates the jurisdiction will be affirmed required elements for a legal malpractice Ex parte Alabama High School Athletic only where its order makes an action: Association, [Ms. 1160121, Feb. 24, 2017] unequivocal factual finding of “[T]o prevail in a legal-malpractice __ So. 3d __ (Ala. 2017). The Court issues one or more of those narrow, action, the plaintiff must prove that, a formal opinion confirming its November restrictive grounds, founded but for the attorney’s negligence, the 14, 2016 summary order granting petitions upon clear and convincing legal matter concerning which the at- for writs of mandamus which declared evidence.” torney is alleged to have been negligent orders of the Geneva Circuit Court and Ms. *4. would have been resolved more favor- Washington Circuit Court void when those ably to the plaintiff.Pickard v. Turner, courts purported to issue orders impacting PERMISSIVE APPEALS 592 So. 2d 1016, 1019 (Ala. 1992). To an eligibility determination made by the AND MANDAMUS meet this burden, the plaintiff must Alabama High School Athletic Association prove (1) that, in the absence of the and its executive director. The Court reiter- alleged malpractice, the plaintiff would ates the extremely high burden confronted Ex parte Boddie, [Ms. 2160228, Feb. have been entitled to a more favorable when challenging an eligibility determina- 24, 2017] __ So. 3d __ (Ala. Civ. App. result in the legal matter concerning tion by the AHSAA: 2017). The Court of Civil Appeals denies which the attorney is alleged to have In Scott v. Kilpatrick, 286 Ala. 129, a father’s petition seeking permission to 122 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS appeal pursuant to Rule 5, Ala. R. App. AFFIRMANCE OF DENIALS Ms. *14-15. P., and, in the alternative, for a writ of OF MOTIONS TO DISMISS mandamus following certification by the ARBITRATION & Shelby Circuit Court of a Rule 54(b), Ala. Ex parte Austal USA, LLC, [Ms. APPELLATE REVIEW R. Civ. P., final order rejecting the father’s 1151138, 1151244, Mar. 3, 2017] __ So. 3d PURSUANT TO RULE contention that no past-due child support __ (Ala. 2017). In another Cunningham 4(D), ALA. R. APP. P. was owed because he and the mother of the Bounds case, the Supreme Court denies children were involved in a common-law petitions for writs of mandamus by Austal Bevel v. Marine Group, LLC, [Ms. marriage. USA, LLC, a shipbuilder in Mobile, which 1150941, Mar. 3, 2017] __ So. 3d __ (Ala. The court denied the petition for sought dismissal of a complaint brought by 2017). The Court reverses an order of the permission to appeal because the Shelby eight of its employees who alleged Austal Marshall Circuit Court granting a motion Circuit Court’s final order arose from a intentionally injured them by requiring to compel arbitration upon concluding domestic-relations case and the Court of each to work with an improperly modified that a purchaser’s failure to check a box Civil Appeals pursuant to § 12-3-10, Ala. hand-held rotary saw that had previously on a bill of sale containing an arbitration Code 1975 has exclusive appellate jurisdic- injured dozens of Austal’s employees. provision indicated the purchaser never as- tion of such cases such that a permissive Citing Rodriguez-Flores v. U.S. Coatings, sented to arbitrate disputes arising from the appeal could not be afforded the father Inc., 133 So. 3d 874 (Ala. 2013), the Court purchase. The Court citesCrown Pontiac, given Rule 5, Ala. R. App. P.’s command rejected Austal’s claim of absolute immu- Inc. v. McCarrell, 695 So. 2d 615 (Ala. that such appeals “of interlocutory orders nity under the Longshore Act upon con- 1997) and Ex parte Pointer, 714 So. 2d 971 are limited to those civil cases that are cluding that Plaintiffs’ amended complaint (Ala. 1997) as authority for the proposi- within the original appellate jurisdiction of stated potentially viable claims that Austal tion that when a consumer does not sign a the Supreme Court.” Ms. *7. had intentionally injured its employees. signature line specifically corresponding to The court also denied the petition for Rejecting arguments from Austal’s an arbitration provision, but does sign lines a writ of mandamus finding that the father amici curiae, The Business Council of corresponding to other provisions, the fail- had an adequate remedy through an ordi- Alabama, the Mobile Area Chamber of ure to sign the signature line corresponding nary appeal of the Shelby Circuit Court’s Commerce, the Alabama Defense Lawyers to the arbitration provision is a compel- Rule 54(b) final order and judgment. Ms. Association, and the Shipbuilders’ Council ling indication of a failure to assent to that *9. Because that alternative adequate rem- of America, the Court concluded that provision. Ms. *13. edy was available to the father, he did not Austal had not demonstrated a clear legal meet the criteria for mandamus relief as set right to an order granting its Rule 12(b)(6) forth in Ex parte Ocwen Fed. Bank, F.S.B., IN REM JURISDICTION Ala. R. Civ. P. motions to dismiss because AND CIVIL FORFEITURE 872 So. 2d 810, 813 (Ala. 2003): it was indeed possible that Plaintiffs could “Mandamus is an extraordinary prevail with their claims: remedy and will be granted only where In considering whether a complaint Little v. Gaston, [Ms. 2150889, Mar. there is ‘(1) a clear legal right in the is sufficient to withstand a motion to 3, 2017] __ So. 3d __ (Ala. Civ. App. petitioner to the order sought; (2) an dismiss, we must take the allega- 2017). The Court of Civil Appeals af- imperative duty upon the respon- tions of the complaint as true, Ussery firms an entry of summary judgment by dent to perform, accompanied by a v. Terry, 201 So. 3d 544, 546 (Ala. the Montgomery Circuit Court order- refusal to do so; (3) the lack of another 2016); we do not consider “‘whether ing an Alabama law enforcement agency adequate remedy; and (4) properly the pleader will ultimately prevail but officer to return cash seized pursuant to a invoked jurisdiction of the court.’ Ex whether the pleader may possibly pre- search warrant upon concluding that the parte Alfab, Inc., 586 So. 2d 889, 891 vail,’” Daniel v. Moye, [Ms. 1140819, Montgomery Circuit Court had exclusive (Ala. 1991). This Court will not issue November 10, 2016] ___ So. 3d ___, in rem jurisdiction over the money seized the writ of mandamus where the pe- ___ (Ala. 2016) (quoting Newman and that it was due to be returned because titioner has ‘“full and adequate relief ”’ v. Savas, 878 So. 2d 1147, 1149 (Ala. no state forfeiture proceeding had been by appeal. State v. Cobb, 288 Ala. 675, 2003) (emphasis added)); and “[w] promptly commenced as required by § 20- 678, 264 So. 2d 523, 526 (1972) (quot- e construe all doubts regarding the 2-93(c), Ala. Code 1975. ing State v. Williams, 69 Ala. 311, 316 sufficiency of the complaint in favor of “In rem jurisdiction” refers to the (1881)).” the plaintiff.” Daniel, ___So. 3d at ___. “court’s power to adjudicate the rights Furthermore, a Rule 12(b)(6) dismissal to a given piece of property, including Ms. *9. the power to seize and hold it.” Black’s EXCLUSIVITY is proper “‘only when it appears beyond doubt that the plaintiff can prove no Law Dictionary 982 (10th ed. 2014). PROVISION OF set of facts in support of the claim that A court obtains in rem jurisdiction LONGSHORE & would entitle the plaintiff to relief.’” when it validly seizes property so that HARBOR WORKERS’ Knox v. Western World Ins. Co., 893 it is brought within the control of the COMPENSATION ACT, 33 So. 2d 321, 322 (Ala. 2004) (quoting court. Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 85 U.S.C. § 901, ET SEQ. AND Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)). (1992). Judicial control of the res may WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 123 RECENT CIVIL DECISIONS

be either actual or constructive. Id. at were owed under GEICO’s UIM coverage the right at issue was ‘clearly 87. “[T]hat court which first acquires was due to be reversed with instructions to established’ at the time of de- [in rem] jurisdiction draws to itself the enter a judgment in favor of GEICO. fendant’s alleged misconduct. exclusive authority to control and dis- Ibid. Qualified immunity is pose of the res.” Ex parte Consolidated QUALIFIED IMMUNITY applicable unless the official’s Graphite Corp., 221 Ala. 394, 397-98, AND STATE-AGENT conduct violated a clearly 129 So. 262, 265 (1930). IMMUNITY established constitutional Ms. *7. Because the Montgomery Circuit right. Anderson [v. Creighton, Court issued a search warrant pursuant to 483 U.S. 635,] 640, 107 S.Ct. §§ 15-5-2(2) or 15-5-2(3) or both, and the Ex parte Hugine, [Ms. 1130428, Mar. 3034 [(1987)].” search warrant it issued required service 17, 2017] __ So. 3d __ (Ala. 2017). In this Pearson v. Callahan, 555 U.S. 223, 232 of the warrant by a state law enforcement 75-page opinion, the full Court (Murdock, (2009). officer, upon execution of the warrant and J., and Stuart, Bolin, Main, Wise, and Ms. *31. However, before engaging in any seizure of the funds, the property fell under Bryan, JJ., concur; Parker, J., concurs in part qualified immunity analysis, the reviewing control of the circuit court pursuant to § and concurs in the result; Shaw, J., concurs court must first ascertain whether the of- 15-5-14, Ala. Code 1975 and thereby af- in the result) grants a petition for a writ of ficial was engaged in a discretionary func- forded in rem jurisdiction over the property mandamus and directs the Madison Circuit tion when performing the acts of which the moment of its seizure. “As the first Court to enter summary judgment in favor the plaintiff complains. Ms. *32, citing court to obtain in rem jurisdiction, the of an administrator at Alabama A&M on Holliman v. Harland, 370 F.3d 1252 (11th [Montgomery Circuit] Court had the ex- the bases of qualified immunity relative to Cir. 2004). That inquiry is two-fold: “We clusive power to dispose of the res, and the retaliation claims premised upon alleged ask whether the government employee federal government could not exercise any violations of a tenured professor’s free- was (a) performing a legitimate job-related jurisdiction over the currency. Therefore, speech and free-association rights and on function (that is, pursuing a job-related we hold that the trial court ruled correctly the bases of state-agent immunity relative goal), (b) through means that were within when deciding that it had in rem jurisdic- to the professor’s state-law claims alleging his power to utilize.” Ms. *32, quoting tion over the [seized funds].” Ms. *12. wrongful termination, fraud and tortious Holliman v. Harland, 370 F.3d at 1265. This interference with a contractual relationship. analysis entails the following: UNINSURED As to the qualified immunity analysis, “Instead of focusing on whether the MOTORIST COVERAGE the opinion borrows heavily from United acts in question involved the exercise States and Eleventh Circuit precedent: of actual discretion, we assess whether AND UNINSURED “Qualified immunity offers com- VEHICLE EXCLUSION they are of a type that fell within the plete protection for individual public employee’s job responsibilities. ... officials performing discretionary GEICO Indemn. Co. v. Bell, [Ms. functions ‘insofar as their conduct “.... 2150745, Mar. 10, 2017] __ So. 3d __ (Ala. does not violate clearly established Civ. App. 2017). Citing Watts v. Preferred statutory or constitutional rights of “Consider the first prong of the test Risk Mut. Ins. Co., 423 So. 2d 171 (Ala. which a reasonable person would have – whether the official is engaged in a 1982), the Court of Civil Appeals holds known.’” Sherrod v. Johnson, 667 F.3d legitimate job-related function. In Sims “that a vehicle which is insured under 1359, 1363 (11th Cir. 2012) (quoting v. Metropolitan Dade County, 972 F.2d a policy of insurance ‘does not become Harlow v. Fitzgerald, 457 U.S. 800, 1230 (11th Cir. 1992), ‘we did not ask uninsured because liability coverage may 818 (1982)). whether it was within the defendant’s not be available to a particular individual.’” “In Saucier [v. Katz,] 533 authority to suspend an employee for Ms. *10. Citing Ex parte O’Hare, 432 So. 2d U.S. 194, 121 S.Ct. 2151 an improper reason; instead, we asked 1300 (Ala. 1983) the court holds a “motor [(2001)], this Court man- whether [the defendant’s] discretion- vehicle cannot be both insured and unin- dated a two-step sequence ary duties included the administration sured in the same policy.” Ms. *11. Thus, for resolving government of discipline.’ Harbert [Int’l., Inc. v. “when the insurance carrier of the vehicle officials’ qualified immunity James], 157 F.3d [1271] at 1282 [(11th involved in an accident denied liability claims. First, a court must Cir. 1998)]. ... Put another way, to pass coverage to an individual because of an decide whether the facts that the first step of the discretionary func- applicable liability exclusion or exclusion- a plaintiff has alleged (see tion test for qualified immunity,the ary definition, that denial does not trigger Fed. Rules Civ. Proc. 12(b) defendant must have been performing the availability of uninsured motorist (6), (c)) or shown (see Rules a function that, but for the alleged coverage to that individual under the same 50, 56) make out a violation constitutional infirmity, would have policy.” Ms. *11, quoting Hall v. State Farm of a constitutional right. 533 fallen with his legitimate job descrip- Mut. Auto Ins. Co., 514 So. 2d 853, 855 U.S., at 201, 121 S.Ct. 2151. tion. (Ala. 1987). Accordingly, the judgment of Second, if the plaintiff has the Lowndes Circuit Court finding, after satisfied this first step, the “.... a jury trial, that wrongful death benefits court must decide whether 124 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS

“After determining that an official part in the adverse employ- 3012, 3020, 82 L.Ed.2d 139 (1984) is engaged in a legitimate job-related ment action. If an employee (‘[O]fficials should not always err on function, it is then necessary to turn satisfies her burden on the the side of caution.’). For many public to the second prong of the test and first three steps, [(4)] the servants, a failure to act can have se- determine whether he is executing that burden then shifts to the em- vere consequences for the citizenry. ... job-related function – that is, pursuing ployer to show by a prepon- his job-related goals – in an authorized derance of the evidence that “As we decide this case, we can- manner. ... Each government employee it would have made the same not forget the purpose of qualified is given only a certain ‘arsenal’ of decision even in the absence immunity. The qualified immunity powers with which to accomplish her of the protected speech.’” defense functions to prevent public goals. For example, it is not within a Ms. *35-36, quoting Boyce v. Andrew, officials from being intimidated – by teacher’s official powers to sign her 510 F.3d at 1342, n. 12, quoting Cook v. the threat of which jeopardize students up for the Army to promote Gwinnett Cty. Sch. Dist., 414 F.3d 1313, the official and his family’s welfare patriotism or civic virtue, or to compel 1318 (11th Cir. 2005). In the end, in this personally – from doing their jobs. them to bring their property to school case the Court relied upon Foy v. Holston, Qualified immunity can be a muscular to redistribute their wealth to the poor 94 F.3d 1528 (11th Cir. 1996) in conclud- doctrine that impacts on the reality of so that they can have firsthand experi- ing that “state officials can act lawfully even the workaday world as long as judges ence with altruism.” when motivated by a dislike or hostility remember that the central idea is this 370 F.3d at 1265, 1266-67 (some to certain protected behavior by a citizen.” pragmatic one: officials can act with- emphasis added). Ms. *39. The Court holds that a “state offi- out fear of harassing litigation only Ms. *33-34. Once a defendant establishes cial can act lawfully despite having discrim- when they can reasonably anticipate that he/she was engaged in a discretionary inatory intent where the record shows that – before they act or do not act – if function at the time of the act in question, they would have acted as they, in fact, did their conduct will give rise to damage the burden shifts to the plaintiff to show act even if they had lacked discriminatory liability for them.” that the defendant is not entitled to sum- intent.” Id. Because the record established Ms. *50, quoting Foy, 94 F.3d at 1534. mary judgment on qualified immunity that the administrators were concerned With respect to the state-agent im- ground. Ms. *34. “To do so, the plaintiff with budgetary constraints at the time they munity analyses, the Court recognizes first must demonstrate that a reasonable jury made their decisions terminating the em- that “[t]he dismissal of a public employee could interpret the evidence in the record ployment of the plaintiff and others, they who is entitled to a pre-termination hear- as showing that the defendant violated a were entitled to qualified immunity even if ing, without such a hearing, is a wrongful constitutional right that was clearly estab- they acted with some discriminatory intent. act constituting a tort under Alabama lished at the time of the acts in question.” The Court therefore embraces the holding law.” Ms. *56, quoting Hardric v. City of Ms. *34-35, quoting Holliman, 370 F.3d at of Rioux v. City of Atlanta, 520 F.3d 1269, Stevenson, 843 So. 2d 206, 210 (Ala. Civ. 1267. 1282-83 (11th Cir. 2008) that App. 2002). Here, however, because the Evaluating whether a government at least when an adequate lawful mo- evidence supported a finding that the official violates free-speech rights of a gov- tive is present, that a discriminatory administrators violated no rule, regulation, ernment employee for purposes of this test motive might also exist does not sweep policy, or procedure in determining that involves its own special analysis stemming qualified immunity from the field the professor was not in fact tenured and from Pickering v. Board of Education of even at the summary judgment stage. therefore not entitled to a pre-termination Township High School District 205, 391 U.S. Unless it, as a legal matter, is plain hearing, they were engaged in doing their 563 (1968) as explained in Boyce v. Andrew, under the specific facts and circum- jobs as state-school officials and entitled to 510 F.3d 1333 (11th Cir. 2007): stances of the case that the defendant’s state-agent immunity as to this particular “Following Pickering, our analysis of conduct – despite his having adequate claim. retaliation against an employee by lawful reasons to support the act – was The Court next restates the require- a government employer for alleged the result of his unlawful motive, the ments for fraudulent suppression: constitutionally protected speech has defendant is entitled to immunity. ... “In order to establish a prima facie been comprised of four parts: Ms. *46. This holding is in keeping with the claim of fraudulent suppression, a general principles underlying the doctrine plaintiff must produce substantial “‘To prevail under this analy- of qualified immunity: evidence establishing the following sis, an employee must show elements: that: (1) the speech involved “When public officials do their jobs, “‘“(1) that the defendant had a matter of public concern; it is a good thing. Qualified immunity a duty to disclose an existing (2) the employee’s free speech is a real-world doctrine designed to material fact; (2) that the interests outweighed the em- allow local officials to act (without defendant suppressed that ployer’s interest in effective always erring on the side of caution) existing material fact; (3) and efficient fulfillment of its when action is required to discharge that the defendant had actual responsibilities; and (3) the the duties of public office. SeeDavis knowledge of the fact; (4) speech played a substantial v. Scherer, 468 U.S. 183, 196, 104 S.Ct. that the defendant’s suppres- WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 125 RECENT CIVIL DECISIONS

sion of the fact induced the FEDERAL EMPLOYERS one or more but fewer than all of the plaintiff to act or to refrain LIABILITY ACT; claims or parties only upon an express from acting; and (5) that the CLAIM PRECLUSION determination that there is no just plaintiff suffered actual dam- BY FEDERAL RAILROAD reason for delay and upon an express age as a proximate result.”’” ADMINISTRATION direction for the entry of judgment.” Ms. *63, quoting Johnson v. Sorensen, 914 “[F]or a Rule 54(b) certification of finality So. 2d 830, 837 (Ala. 2005) (quoting REGULATIONS to be effective, it must fully adjudicate Waddell & Reed, Inc. v. United Investors at least one claim or fully dispose of the Life Ins. Co., 875 So. 2d 1143, 1161 (Ala. Cottles v. Norfolk Southern Rwy. Co., claims as they relate to at least one party.” 2003), quoting in turn State Farm Fire & [Ms. 1140632, Mar. 17, 2017] __ So. 3d Ms. *7-8, quoting Scrushy v. Tucker, 955 So. Cas. Co. v. Slade, 747 So. 2d 293, 323-24 __ (Ala. 2017) (on rehearing). The Court 2d 988, 996 (Ala. 2006). (Ala. 1999)). Here, no evidence supported overrules Norfolk Southern’s Application Here, the circuit court entered judg- any duty to speak on the part of the ad- for Rehearing and again emphasizes that ment in favor of the bank and against the ministrators, thus the administrators were POM Wonderful LLC v. Coca-Cola Co., debtor and her deceased husband’s estate entitled to state-agent immunity as to this 573 U.S. __, 134 S.Ct. 2228 (2014) is cor- on the basis of the bank’s unjust-enrich- claim as well. rectly construed so that Federal Railroad ment and money-had-and-received claims Finally, the Court restated the essential Administration Regulations do not while specifically stating that “[a]ll other elements of intentional interference with preclude Federal Employers Liability Act- counts asserted by the parties remain pend- contractual or business relations claim: based claims. The Court rejected Norfolk ing.” Ms. *5. Those other claims included Southern’s assertion that the Court had “a claim seeking a judgment declaring that “(1) the existence of a protectible made the plaintiff ’s argument for him in [the debtor] executed the agreement estab- business relationship; (2) of which the citing and relying upon POM Wonderful. lishing a home-equity line of credit with defendant knew; (3) to which the de- While the Court acknowledged that the Renasant Bank and a mortgage on [the fendant was a stranger; (4) with which plaintiff ’s brief on original submission did debtor’s] house securing that line of credit; the defendant intentionally interfered; not discuss federal statutory preclusion breach of contract; ‘equitable mortgage’; and (5) damage.” White Sands Grp., or POM Wonderful, Norfolk Southern’s ‘open account’; ‘account stated’; unjust en- L.L.C. v. PRS II, LLC, 32 So. 3d 5, appellee’s brief had raised the issue as a richment; money had and received; ‘quasi- 14 (Ala. 2009). Our courts also have basis for defending the trial court’s entry contract’; and ‘constructive trust.’” Ms. stated: of summary judgment in its favor. Having *9-10. Under all of these separate theories, raised the issue, it could not be heard on Renasant Bank sought the same damages, “An employee who desires to maintain rehearing to complain when the Court i.e., the amount owed under the home a suit against a coworker for inten- elected to address the issue in its opinion. equity line of credit loan, interest, costs, and tional interference with the employee’s attorney’s fees. It follows that all Renasant’s employment contract must also‘“show RULE 54(B), ALA. R. CIV. several claims are actually just one claim that the [coworker] acted outside P., FINALITY OF which the circuit court’s partial summary [his or her] scope of employment JUDGMENT; DISMISSAL judgment did not fully adjudicate. The and did so maliciously.”’ Hanson v. OF APPEAL requirement for Rule 54(b) finality was New Technology, Inc., 594 So. 2d 96, therefore not met, and would not support 103 (Ala. 1992) (quoting Hickman v. the appeal as it was from a non-final judg- Winston County Hosp. Bd., 508 So. 2d Blackmon v. Renasant Bank, [Ms. ment. 237, 241 (Ala. 1987) (Adams, J., con- 1150692, Mar. 17, 2017] __ So. 3d __ (Ala. curring specially)). Further, in order to 2017). The Court dismisses an appeal from FUNERAL SERVICES; show malice the plaintiff must ‘“make the Madison Circuit Court in an action by ARBITRATION a strong showing of a pattern of inter- Renasant Bank against a purported debtor and the estate of her deceased husband for ference.”’ Perlman v. Shurett, 567 So. Newell v. SCI Alabama Funeral money allegedly owed under a home equity 2d 1296, 1299 (Ala. 1990) (quoting Services, LLC, [Ms. 1151078, Mar. 17, line of credit upon concluding that the Hickman, 508 So.2d at 241 (Adams, J., 2017] __ So. 3d __ (Ala. 2017). The Court circuit court’s Rule 54(b), Ala. R. Civ. P., concurring specially)).” affirms an order of the Mobile Circuit order was not sufficiently final to support Ms. *69-70, quoting Michelin Tire Corp. v. Court granting a motion to compel arbitra- the appeal. Goff, 864 So. 2d 1068, 1077 (Ala. Civ. App. tion filed by a funeral services company 2002). Here again the evidence was insuf- alleged to have mishandled human remains Rule 54(b) states, in relevant part: ficient to meet the required elements and prior to cremation. The Court rejected an “When more than one claim for relief in particular there was no showing of any argument the arbitration provision was is presented in an action, whether as pattern of interference, so the administra- unconscionable noting, a claim, , cross-claim, or tors were entitled to state-agent immunity In order to meet [the] burden, the par- third-party claim, or when multiple with respect to this claim, too. ty seeking to invalidate an arbitration parties are involved, the court may di- provision on the basis of unconsciona- rect the entry of a final judgment as to 126 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017 RECENT CIVIL DECISIONS bility must establish both procedural (quoting Foster, 758 So. 2d is supported by substantial evidence), the and substantive unconscionability. Blue at 520 n. 4, quoting in turn Court noted: Cross Blue Shield of Alabama v. Rigas, 8 Williston on Contracts § “‘the trial court is the sole judge of the 923 So. 2d 1077, 1087 (Ala. 2005). As 18:10).” facts and of the credibility of witnesses, this Court explained in Rigas: 923 So. 2d at 1086-87. and the trial court should accept “Substantive unconscionability Ms. *7-9. Here, the Court rejected the only that testimony it considers to be “‘“relates to the contentions that the arbitration provision worthy of belief.’ “Engineered Cooling substantive contract was substantively and procedurally uncon- Servs., Inc. v. Star Serv., Inc. of Mobile, terms themselves and scionable: Because the arbitration provision 108 So. 3d 1022, 1027 (Ala. Civ. App. whether those terms are was “expressly limited to only those claims 2012) (quoting Woods v. Woods, 653 So. unreasonably favorable ‘relating to the transaction contemplated by 2d 312, 314 (Ala. Civ. App. 2014), cit- to the more powerful this agreement,’ [the Court could not] say ing in turn Ostrander v. Ostrander, 517 party, such as terms that that it is so overly broad as to be uncon- So. 2d 3 (Ala. Civ. App. 1987)). “‘This impair the integrity of scionable.” Ms. *12-13. court is precluded from weighing the the bargaining process Relatedly, the arbitration provision was evidence presented before the trial or otherwise contravene not substantively unconscionable merely court.’ “Carquest Auto Parts & Tools of the public interest or because it gave the arbitrator the author- Montgomery, Alabama, Inc. v. Waite, public policy; terms ity to determine arbitrability. Ms. *13-14. 892 So. 2d 422, 426 (Ala. Civ. App. (usually of an adhesion Further, the provision was not substantively 2004) (quoting Fryfogle v. Springhill or boilerplate nature) unconscionable by reserving to the funeral Mem’l Hosp., Inc., 742 So. 2d 1255, that attempt to alter in home the right to avail itself of courts 1258 (Ala. Civ. App. 1998), aff ’d, 742 an impermissible man- while forcing a plaintiff to arbitrate claims. So. 2d 1258 (Ala. 1999)). Put another ner fundamental duties Finally, the provision was not pro- way, “‘[t]he resolution of conflicting otherwise imposed by cedurally unconscionable due to unequal evidence is within the exclusive prov- the law, fine-print terms bargaining power. The Court rejected the ince of the trial court, and this court or provisions that seek contention that funeral matters should not is forbidden to invade that province to negate the reason- require grieving family members to shop upon review.’” Hooker Constr., Inc. v. able expectations of the around for a funeral home that does not Walker, 825 So. 2d 838, 842 (Ala. Civ. nondrafting party, or require execution of such a provision in App. 2001) (quoting Mayfield Trucking unreasonably and un- order to show that there was no meaning- Co. v. Napier, 724 So. 2d 22, 25 (Ala. expectedly harsh terms ful alternative. Ms. *19. Civ. App. 1998)). having to do with price Ms. *15-16. or other central aspects WORKERS’ The Court also rejected the employer’s of the transaction.”’ COMPENSATION contention that the trial court erred in “Ex parte Thicklin, 824 So. 2d BENEFITS; concluding it received the notice required 723, 731 (Ala. 2002) (empha- PERMANENT, TOTAL under § 25-5-78 upon concluding the em- sis omitted) (quoting Ex parte ployer had actual knowledge of the injury Foster, 758 So. 2d 516, 520 n. DISABILITY which is sufficient pursuant toEx parte 4 (Ala. 1999), quoting in turn Brown & Root, Inc., 726 So. 2d 601 (Ala. 8 Richard A. Lord, Williston Brewton Area Young Men’s Christian 1998). Ms. *17-20. Because the evidence on Contracts § 18:10 (4th ed. Assoc., Inc. v. Lanier, [Ms. 2150914, Mar. established that the employer notified 1998)). See also Leeman v. 17, 2017] __ So. 3d __ (Ala. Civ. App. its workers’ compensation carrier of the Cook’s Pest Control, Inc., 902 2017). Relying upon the stringent standard accident via a first report of injury and So. 2d 641 (Ala. 2004). for appellate review of factual findings that an investigation was undertaken, the and legal determinations after an ore tenus Court could not perceive how the employer “Procedural unconscionabil- trial of a workers’ compensation claim, the was in any way prejudiced by the absence ity, on the other hand, ‘deals Court of Civil Appeals affirms a judgment of written notice of the injury from the with “procedural deficiencies of the Escambia Circuit Court finding employee. Ms. *20. in the contract formation an employee of the Brewton Area Young The Court next rejects the employer’s process, such as decep- Men’s Christian Association entitled to contention that the trial court erred in tion or a refusal to bargain permanent and total workers’ compensation treating the employee’s injury as a non- over contract terms, today disability benefits. scheduled injury based upon aggravated often analyzed in terms of First, the Court rejected the employer’s back pain and an altered gait. Citing whether the imposed-upon challenge to the trial court’s conclusion Crown Textile Co. v. Dial, 507 So. 2d 522 party had meaningful choice that the employee proved legal causation of (Ala. Civ. App. 1987), the Court noted about whether and how to her injury. Ms. *12-14. Citing § 25-5-81(e) that fractures of the type suffered by the enter into the transaction.”’ (2), Ala. Code 1975 (the reviewing court employee had previously been deemed Thicklin, 824 So. 2d at 731 must affirm the trial court’s finding if it injuries to an employee’s hip, and therefore WWW.ALABAMAJUSTICE.ORG SPRING 2017 | 127 RECENT CIVIL DECISIONS to a non-scheduled part of the body such requirement of Rule 28(a)(10), Ala. R. App. through submission of an affidavit in that the alleged back pain and altered gait P. that a party provide “citations to the ... compliance with Rule 56(f ), Ala. R. Civ. P., need not be considered. parts of the record relied on.” Ms. *43-44. demonstrates that the discovery responses Next, the Court rejected the employ- The Court states are crucial to his/her case. Ms. *17-18. er’s contention that the trial court erred in Further, ‘it is well settled that “However, when no such crucial evidence calculating the employee’s average weekly a failure to comply with the would be supplied by the production or by wage by including retirement plan contri- requirements of Rule 28(a)(10) the answers to the , it is not butions in its calculations. Ms. *22. Noting requiring citation of author- error for the trial court to grant summary the employer never made that argument to ity in support of the arguments judgment with discovery pending.” Ms. *18, the trial court, the Court of Civil Appeals presented provides this Court quoting Reeves v. Porter, 521 So. 2d at 965. was precluded from considering the issue. with a basis for disregarding those In this case, a dashboard video record- Ms. *23. arguments.’ State Farm Mut. Auto. ing of the chase demonstrated that the Ins. Co. v. Motley, 909 So. 2d 806, officers were exercising due care in the JUDGMENTS UPON 822 (Ala. 2005)(citing Ex parte operation of their vehicles and never came VERDICTS IN Showers, 812 So. 2d 277, 281 (Ala. in contact with the shoplifter’s vehicle PERSONAL INJURY 2001)). This is so, because ‘“it is before she lost control and caused the in- CASES AFFIRMED; not the function of this Court to complained of. This evidence showed do a party’s legal research or to that the officers were engaged in conduct PUNITIVE DAMAGES; make and address legal arguments that qualified for immunity and that their TAXATION OF COSTS for a party based on undelineated conduct was not the proximate cause of general propositions not sup- the plaintiff ’s injuries. Thus, the trial court Thomas v. Heard, [Ms. 1150118, ported by sufficient authority or erred in denying their motions for sum- Mar. 24, 2017] __ So. 3d __ (Ala. 2017). argument.”’ Butler v. Town of Argo, mary judgment based upon immunity. On rehearing, the Court affirms in part 871 So. 2d 1, 20 (Ala. 2003)(quot- judgments entered by the Geneva Circuit ing Dykes v. Lane Trucking, Inc., DISCOVERY SANCTION; Court upon a jury’s verdict awarding 652 So. 2d 248, 251 (Ala. 1994)).” DISMISSAL OF compensatory and punitive damages for Jimmy Day Plumbing & Heating, Inc. v. PERSONAL-INJURY multiple severe injuries in an intersection Smith, 964 So. 2d 1, 9 (Ala. 2007). ACTION collision case caused by a driver under the Ms. *44. influence of alcohol and Seroquel. The Court finds the defendant driver’s motions PEACE-OFFICER Horton v. Hinton, [Ms. 2150631, Mar. for JML were properly denied as the jury’s IMMUNITY § 6-5-640, 24, 2017] __ So. 3d __ (Ala. Civ. App. verdict was supported by clear and convinc- ALA. CODE 1975 AND 2017). Citing Rule 37(b) and (d), Ala. R. ing evidence of wantonness by the driver Civ. P., Iverson v. Xpert Tune, Inc., 553 So. STATE-AGENT 2d 82 (Ala. 1989), Napier v. McDougal, 601 in entering the intersection while not in IMMUNITY the possession of his normal faculties at So. 2d 446 (Ala. 1992), Tri-Shelters, Inc. the time of the accident as the result of his v. A. G. Gaston Constr. Co., 622 So. 2d 329 voluntary consumption of alcohol and the Ex parte City of Homewood, [Ms. (Ala. 1993) and Bowman v. May, 678 So. prescription medication. However, because 1151310, Mar. 24, 2017] __ So. 3d __ (Ala. 2d 1135 (Ala. Civ. App. 1996), the Court the circuit court failed to explain in writing 2017). The Court unanimously grants a of Civil Appeals unanimously concludes its reasons for not remitting the punitive petition for a writ of mandamus seeking an that the Tuscaloosa Circuit Court properly damages awards, a remand was required order directing the Jefferson Circuit Court dismissed a personal-injury action as an pursuant to Williford v. Emerton, 935 So. to enter summary judgment in favor of appropriate sanction for a plaintiff ’s willful 2d 1150 (Ala. 2004) so the trial court two Homewood police officers alleged to disregard of discovery obligations including “could reflect in the record the reasons for have acted wantonly during a high-speed her failure to appear for a scheduled depo- interfering with the jury verdict, or refusing vehicular pursuit of sition. to do so, on the grounds of excessiveness of an alleged shoplifter the damages.” Ms. *39-40. who lost control of her MERRILL ACCOUNTING & The Court also rejects the defendant vehicle causing the CONSULTING driver’s contention that the trial court plaintiff ’s injuries. Citing erred in taxing costs pursuant to Rule Reeves v. Porter, 521 So. Innovative Solutions For Your 54(d), Ala. R. Civ. P. Upon reviewing the 2d 963 (Ala. 1988), the Accounting & Bookkeeping Needs evidence of record, the Court found no Court reiterates that error in taxation of costs for things such a summary judgment as deposition transcripts and the like. The may properly be granted BILLY MERRILL [email protected] Court found fault in the driver’s failure when discovery requests 334-221-5208 WWW.MERRILLACCT.COM to point to excerpts from the voluminous remain outstanding record justifying his contentions given the unless the non-movant, 128 | ALABAMA ASSOCIATION FOR JUSTICE JOURNAL SPRING 2017