T h e AlabamaJanuary 2020Lawyer | Volume 81, number 1

L L L L L Alabama’s Appellate A Primer for Navigating An Alabama Lawyer in Preventing Waiver of Alabama’s Class Action Standards of Review in Potential Appellate The United States Arguments on Appeal Statute Turns 20: A Defense Retrospective Civil Cases Issues in Child Custody Supreme Court Page 50 Cases Page 22 Page 46 Page 64 Page 40

Alabama’s Class Action Statute Turns 20: A DefenseRetrospective T h e s e l c i T r a e r u T a e F 1 r e b m u n , 1 8 e m u l o V | 0 2 0 2 y r a u n a J Alabama Lawyer Alabama An Alabama Lawyer in theUnitedStatesSupreme Court Alabama’s Appellate StandardsofReviewinCivilCases By MichaelR.Pennington,Scott BurnettSmithandHunterW. Pearce A Primer for NavigatingPotential Appellate Issuesin A Critical Article IExtension ofan Article IIICourt Northern Districtof Alabama Magistrate Judges, By EdR.Haden,JasonB.Tompkins andRobert V. Baxley Preventing Waiver of Arguments on Appeal Solo &SmallFirmSectionUpdate By DavidG.Wirtes, Jr. andBruceJ.McKee By RobertE.Battle and Adam P. Plant By Tazewell T. Shepard, III Child CustodyCases Fall 2019 Admittees By RandallW. Nichols By Allan R.Chason 72 64 50 46 40 22 17 12 –Photo by Marie Ward, Lanett rural Alabama A coldwintermorningin On On CoverThe Linda G. Flippo, Birmingham Jonathan C. Hill (Rudy), Montgomery Wilson F. Green, Tuscaloosa W. Gregory Ward, Lanett Executive Director’s Report s n m u l o c The App ellate Corner Legislative Wrap-Up flickr.com/AlabamaStateBar youtube.com/TheAlabamaStateBar @AlabamaStateBar @AlabamaStateBar facebook.com/AlabamaStateBar Disciplinary Notices Important Notices About Members, President’s Page Editor’s Corner Among Firms Memorials ...... Chair and Editor ...... Associate Editor 90 89 84 80 79 14 10 92 ...... Associate Editor 8 [email protected] ...... Associate Editor [email protected] [email protected] [email protected] www.alabar.org 5 T h e Alabama Lawyer 6 T h e Alabama Lawyer January 2020 Robert C. Crocker, Cullman • Aaron L. Dettling, Dettling, L. Aaron Birmingham • • Jesse Cullman P. Evans, Crocker, III, Birmingham C. • Linda G. Robert Corporation...... 52 Professional Software ...... 25 The NeutralSolution ...... 7 Distinguished Neutrals National Academy of LawPay Insurance Specialists, Inc. Freedom Court Reporting ...... 61 J. ForresterDeBuys,III The Finklea Group Davis Direct Cain & Associates Engineers...... 53 Of theSouth...... 2 Attorneys InsuranceMutual ...... 101 Attorneys FirstInsurance ...... 97 Services, Inc. Alabama Legal&Investigative Alabama Court Reporting, Inc. Attorney Mediators Alabama Academy of Lloyd W. Gathings, II, Birmingham • Gregory H. Hawley,Flippo,Birmingham Kira• Y.Fonteneau, Birmingham • Starrett, Montgomery • David G. Wirtes, Sanders, Jr.,MarcA. Skinner,• BirminghamMobileO. • Allison Prattville E. • Barr Christopher • Montgomery Phillips, L. Montgomery • Anil A. Mujumdar, Birmingham Miller, S. • SherrieKeith • Montgomery P.Mendenhall, Allen • Birmingham Loveman, H. Margaret • Lanett Key, Birmingham • Sarah S. Johnston, Montgomery • Jacob J. D. Younker, Jr., Montgomery BOard Of EdiTOrs: EdiTOrs: Of BOard s r e s i T r e V d a N G I S E D C I H P A R G The Alabama Lawyer ...... 4 ...... 99 ac .Aes Briga • BirminghamAyers, J. Marc ...... 87 ...... 9 ...... 104 ...... 103 The Alabama Lawyer G N I T N I R P

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For many ofus, onegoalisto save • • • • • • • • • comenew goalsoften withanew Wellbeing coaching consultants smith.ai; and Fitness;orangetheory depot; office lenovo computers; indexed i/o; identillect; and dollar rentalcars;hertz, Thrifty cartography consulting; e g a P s ’ T n e d i s e r P our members, includingfrom: the numerous onesalready offered to • • • • • • • • • • • • • • • These newbenefitsare inaddition to development; locallawyers internet-based client legal directories alabama blue book; Processing; lawPay credit card/debit card insurance other business, overhead, umbrella and medical, life,isi major disability, geico insurance; closing software; easysoft cosmolex Practice management; conference america; clio Practice management; casemaker; brooks brothers; bar member Travel discount; avis andbudgetrentalcars; aba Web store for andbooks bars; aba retirement Funds; • mycase; are also exploring health insurance and [email protected], Jimbo Terrell at • orlando employee discounts; cybersecurity insurance benefits. [email protected], or ashley my theme is “better Together.” We are Penhale at [email protected]. • robert Trent Jones golf Trail marriott working hard to identify amazing bene- We would love to hear from you. hotels discount; fits and bring them to the 18,000+ many thanks to george Parker and • rocket matter Practice management; members of the alabama state bar. The Jimbo Terrell for their help writing this ar- • ruby receptionists Virtual committee would like your thoughts, ticle and for their leadership on the mem- receptionist service; input, and ideas on any new benefits ber benefits committee, and to everyone • Thriving in the legal Profession; and that you could help us obtain or that on the committee for vetting these dis- you would like us to offer. contact me at counts to make sure we offer the best op- • uPs shipping discounts [email protected], george Parker at tions available for our members. s To stay up to date on the member benefits, look for highlights such as member benefit mondays featured in The Scoop or on the bar’s social media channels. For a full list of benefits, visit https://www.alabar.org/members/benefits/ and click on discounts. log in to your alabama state bar account to get the discount codes. recently, a new lawyer shared with me that he saved several hundred dol- lars on his car insurance with the geico discount. my firm has taken advantage of several of these discounts through the years. you can receive 20 percent off the best available rate at all eight mar- riott hotels associated with the robert Trent Jones golf Trail: renaissance mont- gomery hotel & spa at the convention center; renaissance birmingham ross bridge golf resort & spa; renaissance mobile riverview Plaza hotel; battle house renaissance mobile hotel & spa; grand hotel marriott resort, golf club & spa; montgomery marriott Prattville hotel & conference center at capitol hill; auburn marriott opelika hotel & conference center at grand national; and marriott shoals hotel & spa. i hope that our members will utilize this valu- able discount as they travel. log in to your state bar account to access the dis- count code before booking your reser- vation at marriott.com. after surveying a diverse group of state bar members, the committee learned that members are most inter- ested in receiving discounts in technol- ogy and software, travel and recreation, office supplies and services, clothing and retail, and dining. The member benefits committee will continue to look for addi- tional benefits for 2020 to enhance your membership and bring even greater Alabama Lawyer

value to your state bar membership. We T h e 9 www.alabar.org 10 T h e Alabama Lawyer January 2020 phillip. Phillip W. McCallum [email protected] T r o P e r s ’ r o T c e r i d e V i T u c e x e sions, many of them over north Vietnam. time, he flew more than 200 combat mis- danang airbase in Vietnam. during that Weather attack squadron 242 at the with marine all- october 1968, he was from october 1967 to aircraft,intruder and navigator inthea6a was abombardier/ december 1969.he from June1965to states corps marine roll was intheunited each Friday onFacebook. website, we alsoshared agroup ofthem photos onanewly-created pageonour missions. additionto placingthose in national guard), we haddozens ofsub- state judgeadvocate for thealabama ing theword (likecol. chucklangley, the helpoffolks whoassisted inspread- thefirst in few service. weeks, thanks to photos andstories from theirtimein we askedmemberveterans to sendus thing we should limit to only one month. great that we realized it wasn’t some- “salute to Veterans.” The response was so ber, we launched a new feature series, makes perfect sense. This past novem- veterans, but in our case, the timing might expect to read a column about our saluting Veterans Judge Johnl.car- To offtheground, getthisnewseries January isn’t typically the month you Carroll as trial counselas trial inadministrative alabama, wheremcclellan, sheserves ater sustainment command inFort to law school while flying for the 908 guard. sheisassigned to the167 bama army national army Jag corps., ala- the united states soldier andcaptainin componenta reserve addition,glenosis in putes andlitigation. ment-related dis- focuses onemploy- civilian law practice professors asking why i had missed class.” sion to haiti, and i enjoyed responding to that i was able to support that relief mis- the big earthquake,” he said. “i was glad days of classes to fly supplies to haiti after “once during law school, i skipped a few the 908 crew priortodeployment Luke Bentley(front row, center)andair amy glenos’s Quick luke bentley, who was a c-130 pilot in th airlift Wing, told us about going Glenos th The- th . in the u.s. army branch. armor he commissioned a second lieutenant guished military graduate and was arship, graduated in 1992 as a distin- of alabama on a u.s. army roTc schol- iraq withthexViii iraq in2005whilehewasborn deployed to return homefrom shewas service. his daughter for thefirsttimeuponhis guard, shared aphoto ofhimseeing cate inthealabama army national with thestate ofalabama. asanattorney law andhasserved Faulkner of university Jonesschool director ofcareer development at oflaw.land school as heserves bama anda1981graduate ofcumber- 1977 graduate oftheuniversity ofala- received thelegion heisa ofmerit. army andair Force War colleges, and advocate general’s andthe school army school, thearmy airborne Judge is agraduate ofthe he department. tary the alabama mili- judge advocate for gon andasthestate tours at thePenta- including serve, in theguard andre- more than34years e. morgan served matters. plinary separation boards andpersonneldisci- Houts withhisbabydaughter rich raleigh attended the university James r.houts, whoisajudgeadvo- retired col. bryan th airborne corps.airborne Morgan with the 154 u.s. army reserves Jag corps, serving raleigh also served from 2000–2005 in yugoslav republic of macedonia. bosnia-herzegovina, croatia and former Virginia, germany, general’s corps in Judge advocate with u.s. army 2000 as a Jag officer duty from 1995– served on active delay, and then an educational from 1992-1995 on law school attended active duty anddeployed duty active overseas. becausetheywerepractice calledto had to temporarily shutdown their offellowmemories lawyer who friends erans’ we’d series begun,heshared about thenewvet- withus speaking advocate general. in asajudge reserves years inthearmy 28 judge, served court 20 asatrial private and practice spent 12years in lang Floyd, who his service as a major. tion (Trial defense service), completing Finally, Judge Parker, after enrolling in the Volunteer Lawyers Program duringmittees Pro Hill, Bono Smitherman,Month 2019. Green, and James were selected to haveSmitherman, lunch with Joseph Justice Green, Lauren James, Bob Methvin, and PhillipHolmes, McCallum. Emily New Baggett, ad- Chief Justice Parker, Christy Crow, PicturedTinsley Griffinabove, Hill, left Crystalto right, are Jon Townsend, Stephanie Hunter, Linda Lund, Scott Lunch with the ChiEf JusTiCE th legal support organiza- Raleigh Floyd designated holidays. s designated holidays. year-round, notjustontheannual members and salutingourservice way.a meaningful continuing onwiththeirprofession in that preventedbarriers themfrom removes change. it an important the sacrifice greatly for oursecurity, thisis bar exam here. For thosefamilieswho state barwithouthaving to passthe bama to beadmitted to thealabama membersstationed inala- of military alabama, would allow lawyer-spouses proved by of the supreme court rocal admission. The exception, ifap- exception to alabama’s ruleonrecip- recently spouse considered amilitary cause theboard ofbarcommissioners be updated andaddedto asneeded. that pagewillremain allyear andcan day ofthe year,our thanksevery so onour fixture website. They deserve ber, shouldalsobecome apermanent while focused annuallyeachnovem- ice. madeusrealize it that ourseries, we took timeto recognize theirserv- were grateful forthat thesimplefact shown by ourfeatured veterans; they however, was theimmensegratitude moving. What stood outmostto us, ing, andmany ofthemwere quite We hopeyou’ll joinus in celebrating The timingisalsosignificant be- The stories themselves were amaz- www.alabar.org 11 T h e Alabama Lawyer 12 T h e Alabama Lawyer January 2020 Solo &SmallFirmSectionUpdate with another 130 watching via Livestream. at thestatebar’s 2019 Annual Meeting, Cyber CrimeandLawFirmsCLEevent Over 150lawyersattendedthesection’s members and sometimesforall low-cost CLE opportunitiesforits practice management. rals, andtradesuggestions onlaw legal issues,postpossible refer- where membersaskforadvice on ture isitsveryactiveListServ, grams in Alabama. various volunteerlawyerspro- including probonocaseswiththe pursue servicetotheircommunity, members arealsoencouragedto all lawyersin Alabama. Section small firmlawyers,butisopento emphasizes servicetosoloand September 2019. The SSFSection with about940membersasof tion ofthe Alabama StateBar, is thelargest andmostactivesec- By Tazewell T. Shepard, III The sectionalsocreates free and The section’s mostpopularfea- The Solo&SmallFirmSection of usefullegal formsforbothpro soon produce anelectronicbook and LegalServices Alabama will partnership betweenthe section ing formsandknowledge bank,a spring 2020. gram ondistrictcourtpracticefor similar six-hours-and-lunchpro- section leadershipisplanninga lawyers duringspring2019,and program reachedalmost1,000 hours andlunch,allfor$25. This provide aCLEeventofsixcredit bars insevenareasofthestateto Lawyers Association andlocal with the Alabama Probate series, wherethesectionpartnered nity hasbeentheprobatepractice The mostpopularCLEopportu- streaming asectionCLEevent. Alabama attorneys,suchaslive- In additiontothesection’s grow- at rected to section Chair Taze Shepard per year, and questionscanbedi- gram goalsfor2020. on mentoringandwellness pro- 2020.The sectionisalso working place inBirminghamspring ing oftheSSFSectionwilltake ditional servicestoitsmembers. and Facebookpagetoprovidead- tion isalsoupgradingitswebsite bono andprivatecases. The sec- past summer. Probate Practice CLE eventinMobilethis Almost 200lawyersattendedthesection’s Section membershipisonly $15 The secondannualwintermeet- [email protected] . s benefit the Montgomery VLP and Mercy House. Shepard served as waiters at the MCBA’s annual CommunityMontgomery Table County eventBar President to Frank Snowden and section Chair Taze www.alabar.org 13 T h e Alabama Lawyer 14 T h e Alabama Lawyer January 2020 [email protected] W. Gregory Ward this. chance to gettheresult theywant. that hethinksgives hisclient thebest and attempt to moldtheminto ashape lawyer’s jobisto takethose messyfacts and someonewants your help. The generally arrives asanunformed mess case orcriminal–the office office–civil tease that outalittlebit. itself. nothingisquite likethem.let’s inlatin–scribe sui generis:agenusunto edition. Welcome to theappellate so, what is anappeal? an appealhaslittleincommon with When anewcasecomes into alaw appeals lawyers are–we liketo de- 1 r e n r o c s ’ r o T i d e sion (appellate judges). and thebrief pointed to read themandmakeadeci- it to agroup orap- ofpeopleelected andsend ized document (calledabrief) those rulestheyhave toaspecial- draft of bothprocedure andform, andwithin have to follow imposeddraconian rules ments used(therecord onappeal). They pened (thetranscript) andthedocu- ask for adocument showing what hap- to giveauthority themado-over. They cided, sotheylookfor someonewith de- fied withwhatjudgeorjury atrial (we callthemtheappellant) isdissatis- an appealhappenswhenoneside the take a good look at a printed copy of court opinions, go to a law library and tion about the breadth of appellate they address. And if you have any ques- appeals, much less the substantive law rounds just the issue of the process of stop. An enormous body of law sur- write about, it was deciding when to icate anissueto thiswholeprocess. other appellate court. anewroundthings, at orwean- start opinion). The opinioneitherends thing andsenditout(we callthat an judgeswrite some- appellate court paper andelectrons. After awhilethe other, andallthat isexchanged is the briefs don’t have to talkto each line (orboth). The lawyers whofiled briefs are eithermailed inorfiledon- (quaintly calledoral argument), sothe briefs to come andtalkto them want thepeoplewhosent themthe abama’s don’t appellate courts usually rulings by theappellate Al- courts. has to cite to appealsandprior prior you, they’ll be impressed. ally on paper pages. And if anyone sees shocked at how many things are actu- time just flipping through it. You’ll be paper copy of our digest, spend some never spent time looking through a inches–more than six feet. If you’ve to my copy, and it measured about 80 took my father’s wooden folding ruler mal short-form summary of opinions). I Our problem wasn’t finding things to The Alabama Lawyer Ain’t nothinglikeit. Alabama Digest (which is just a for- decided to ded- and thisonecame from aconversation come from, whereknow goodarticles the press was onhighalert. You never associate justiceCourt was seated, so fore hehadto argue, anewSupreme Court. Wouldn’t youit, justbe- know case before the United States Supreme gument inwhat becamealandmark his way into having to makeanoral ar- withatermitefriends issue stumbled to helpoutsome who was trying unlikely Fairhope, Alabama lawyer ofhow an fascinates uswiththestory how to handleanappeal, Allan Chason need it, how to get it (page 40). if you need appellate review, and if you both pre- and post-trial issues to decide bonus, he tells us how to think through late Issues in Child Custody Cases.” As a Primer for Navigating Potential Appel- gives us a head’s up for one type in his “A certain types of cases? Randy Nichols nudge thecaseinyour favor (page22). inCivil Cases”Review to helpyou abama’s Appellate Standards of fore you even start. They wrote “Al- you’ve thingsinyour shifted favor be- applies,view theappellate court stand (orcontrol) thestandard ofre- lawyers. thatThey ifyou know under- two ofAlabama’s bestappellate fine job. something aboutappeals, andhedida alittle semble thisedition.Heknows member Lloyd helpedusas- Gathings While everyone else is talking about While elseistalking everyone Are there special considerations for Dave andBruceareWirtes McKee andfellow friend Our editorial board have for you in March. have for you in March. writers. for group ournext looking ofexcellent write. Come jointhefun. We are always questions orcomments orwant to [email protected] Spoiler alert–it was huge (page 64). 1999 watershed class action statue had. thoughts on what effect Alabama’s Smith, and Hunter Pearce give us their rospective.” Mike Pennington, Scott Action Statute Turns 20: A Defense Ret- ticle. This month’s is “Alabama’s Class we always try to include an off-topic ar- what youSee think(page50). isausefulresearch tool.their article from. With 131footnotes included, sure that we have arecord to appeal ments onAppeal” theyhelpusmake begin. In “Preventing Waiver ofArgu- from messingupthingsbefore we Baxleydotheirbestto keepus Robert on page46. starts United States Supreme Court,” title of “An Alabama Lawyer inthe mer’s annualmeeting. my Sam, thanks. Coke between seminarsat lastsum- and measwe shared atableandDiet between state barPresident Irby Sam Endnote .Before my emailblows up, Iadmitupfront that thisis 1. And justwait tillyou seewhat we So, Emailmeat enjoy thearticles. Just to keep our readers on their toes, Ed Haden,Jason Tompkins, and Allan’s whichhastheterrific article, an elemental viewandthat I’m leaving outalot. if you have www.alabar.org s 15 T H E Alabama Lawyer

(Photograph by FOUTS COMMERCIAL PHOTOGRAPHY, Montgomery, [email protected]) JULY 2019 BAR EXAM STATISTICS OF INTEREST For detailed bar examstatistics,visithttps://admissions.alabar.org/exam-statistics. satisfy all admission requirements as prescribed by the Rules Governing Admission to the Alabama State Bar. Bar for the period May 15, 2019 through October 15, 2019. To be certified for admission, a candidate must *Statistics of those individuals certified to the Supreme Court of Alabama for admission to the Alabama State Certification statistics* ExamPassageBar by school diso ihu xmnto rcpoiy...... 21 Admission withoutexamination (reciprocity)...... 32 Admission bytransferofUBE score...... 279 ...... Admission byexamination 7.1percent ...... Miles CollegeofLaw 21.7percent ...... Birmingham SchoolofLaw 63.0percent Faulkner UniversityJonesSchoolofLaw...... 82.6percent Cumberland SchoolofLaw...... 97.0percent ...... University of Alabama SchoolofLaw 61.3percent Bar exampasspercentage...... 298 ...... Number passingexam(includesMPREdeficientand AL coursedeficient) 486 Number sittingforexam...... www.alabar.org 17 T h e Alabama Lawyer 18 T h e Alabama Lawyer January 2020 Zachary Zachary Tate crawford-Pechukas brooks cramptoncourtney david grant coyle cowellJohn mark cory hannah nicole Virginia susancooper Kelsey amanda cooper cooperJames benjamin Vallee connor clinton William coley merika Vashey coleman Walton Thomas cobb margaret clark mary margaret holmesclanton andrew Pete cicero, iii haleigh elizabethchastain Jessica Kyoung chang Tim Juniorchalumeau andrea cates michelle castillo Kenia ines alexander Konrad carrie andrew gray calhoun Jacob allen cain leVarZachary butler calvin doyle burroughs, Jr. hahna elizabethburney Teisha bunn marie lawrence iii hughbundrick, buckner monet Kameron sammy lee brown, Jr. Jonathan halebrown William Jacksonbritton John austin boyd richardboothe, Jr.larry leecortlin bond cole Thomas bollman blanding sharise monica oluseyi olamidebisiriyu brant Jackson biddle allison bendall Paolarossana bellina ashley bell nicole matthew William bassie cameron glennball anders atwood Zachary averie louise armstead anthony richardanello afua agyemangbenedicta olivia ann acker logan chaneyabnernathy Joshua david aarons S E E T T I M D A 9 1 0 2 L L A F R A B E T A T S A M A B A L A sierra Jevon gray natalie grahamsonia Priscilla ann gorham christopher edward gonzalez-Tablada Jr. gonzalez, raul hiawatha givens, iii lynnVicki lachneygilliam brandon Jackgilham emily dawn geary danteshadrian davon gayles Francescharlene gates Friedmanbrittani annlucy Freeman leeryean Freeland Josmyne Francois Foxsamantha nicole abigail chaya Fox Kevin daleFolette Jordan Thomas Flynn John Forrest Fleming Kent Ferriss caleb allen Faulkner s.FaskingKimberly Kelli lauren ewing alisha morgan everette ervin marie makenzie claytonsamuel elmore hayescharles ellett elebash Kathleen Whitney laineeiland Jason earley dyar Kellie alana martin durham sherles denisha leemichael dunphy Jennifer dunlap Taylor edwards dudley Krystal yvonne drew downing maury madeleine chloe doust leah douglas nicole cody William davis dockens stevenmark dickhute diaz robert christian caleb William diaz lawrence andrew d’entremont shea elizabethdavis arunima datta david landondarty, Jr. Jordan lee dalton Kelsey Jocurtis Patricestarr culpepper olin Ford King amy Frances Kimpel Kim Jae reong Kenneth alexander Khoury Judith ann Kesterson allen Keownbenjamin JosephKelley,charles Jr. Keller collin michael Tiffany ann Jones Jones olivia dehon olivia hopeJohnson leah Frances Johnson John amble Johnson Jennifer Jayjohn belle margaret Frances Jameson Walter James, iii scottJames nicholas lauren ashleigh James James nicole Krista dianeJacobbeth shaquila uniquaJackson abrahammatthew issa danielle Paige ingram Princeton hynes michael hutchens rebekah courtney hurley rena meagan Jonathon Patrick hull hunter horton ryan emily ann hopper morgan Pratt hoggle charlotte grace latrobe heyrman henry alexander michael Tyerra henderson montana stephanie Jean hauenstein lanehartley garrett houston harrison harris, iii Thomas michael richardharris henry eliseharper sally nobleshancock mary hammond abigail maxwell david hunter hamm William shannonhall guttersonmatthew stephanie margaret gushlaw sarah elizabethgunn grisham denise Jerri Tinsley hill morgan griffin xeris elizabethgregory scottedwardscharles greenberg Joseph scottgreen chang min Parkchang min howellmelissa Paquette Tonya carol Palmer Joseph eugene Page, iii John morgan owens blake aaron owens overton Kelsie marie gregory Tucker osborne stanley onyebuchi okoli denzel efemena okinedo yanya-gazelle o’hara marie o’bradovich Kaitlin mary hanselnunez dennis suzanne rebecca norman Justin hayes nolen christopher luke nixon ruben Vaughn nichols, iii John allen nichols c.neri melissa billy Johnnelson Faith munford nicole shaquoya Vonshey bell moultrie moshiri Kimia William lyndal moorer Joseph ethan moore isabel montoya-minisee montiel gonzalo mark lynnette miner milton Jilisa renee miller makell rachel milad luckie andrew Jamesmerson rebecca lyn mersand Jr. medlock, george douglas means morgan bukay laurenceryan mcmillan bren mcmaken michael alisha lenae mcKay donavon mcguire Jermaine Travis allen mccormick evita dionnemcclinton ed’drelmachara mccall aliimau molli Tavita masaniai elizabeth anne martin Jeremy lynn mapes adele elizabethmantiply Jake Travis macKay Willie obadiahlyons christopher Josephlyle alston elizabethlyle haley elizabethlyckman lundgren nicole mcKenzie lowndesamanda christine alexandrea lorentz lashunlogan Kameisha latham Joseph randall ellen anne larson Thomas chaselacy Kromann nicholas Knouse Jackson eric leanna smith Kay brenton smith merrill claire smelser harrison alex cody sidwell regina shuman christina craig allen shirley ian Patrick shippey morgan blake shelton sanya sharma adam Forrest shanks sunny shah Jason laurence shaber alexandrachristian segrest sydney dawn schaefer Jacobarie schaap sawyer miles skylar anna cerise saunders aronmichael sauer bifflesanto miriam sarah elizabethKimbrellsanders sadhwanianil Kamal Taylor chesleyryals austin Trevor russell ashley roy nicole ashley anne ross connor Jay rose seth Washburn roden Jacob hunter robertson daniel Patrick roach davis Watson riley Pierce edward rigney richards megan danyellchristian rice cassandra rhodes nichole rezai daniel dariush cameron rentschler Finley b. reeves mallory Woodford reehl alan rawls gregory ransom cale nicholas Queen ryan Kory Jonathan Pryor maurice Joanna daileyPropst brandon marcellus Price-crum PowellJessalin marie corbin carroll Potter michaela PopeTillery gina Vanessa Pointon ansley Taylor Platt Jack Whetstone Pitts Parkerreynolds Pittman anthonycharles Pickett Phillips solon leemegan Phillips Perez gabriela monica Quintana alison Pazonanicole Patelevani ramesh Parkslakeshia charnell braswellrainer Park everett lee Park Julianne nicole ZilahyJulianne nicole aya Zaied hannah mcrae young andrew glenn york Jonathan dale Wynn, ii daniel max Wright Jessica marie Wolinsky James matthew Winne John Tyler Winans Paulsamuel Wilwerding daniel WilsonZackary Victoria anne cecilia Veach Wilson Timothy Wayne Wilson sydney hannah Willmann James Fernando Willis brianna megan Williams James mitchell Williams Jace Taylor Williams howard Williams daniel alan Williams, ii marie rachel Whitlock cierra eve White Paige morgan West noah campbell West Jacob Thomas Welch Taylor ann Weidow camille elizabeth Weeks Jeremy stone Weber caroline Quinn Weber sylvia Wayfer brooke raylynn Watson addison Kane Watson chelsea lauren Wasdin holly mccormac Walterscheid Jasmine samaira Walker Jason Thomas Vuchinich iman Kayla Vinson devaki chiriga Vinson natalie unger brie Jean Kathryn Trent yoko Torigoe Tiffany Tolliver ashley martha Tidwell Jason ryan Thurman bret robert Thompson J.madison Thomas Jeremy ray Thomas leigh margaret Terry casey allen Taylor daniel craig Tankersley elliott Wood Taliaferro bradley swinney matthew stubley, mcclellan mark Jr. ashton elizabethstandeffer richard corey speaks solis Jorge arturo xenia solano-rigby smoot simonemcmillan moriah smitherman nicole crystal www.alabar.org 19 T h e Alabama Lawyer 20 T h e Alabama Lawyer and Jonathan Andrew Roper (2018) January 2020 Admittee, husband, father-in-law and sister-in-law Y L I M A F E H T N I S R E Y W A L Hannah NicoleCory Timothy Wayne Wilson Charlie Taylor (2017), Ted Taylor (1966) and Admittee and brother Ashton Standeffer Taylor Admittee andfather Ernest Cory(1981) Leah Catherine Reader (2015) (2019) and (2019) (2019), Mitch Williams Jae ReongKim Brian J. Williams (2004) Admittee andhusband Admittee and father Ingu Hwang(2011) Carl Daniel White (1992),DavidG. White (1988),and Cierra Eve White (2019) and (2019) and Admittee, father, uncle,cousinand Judge Jeffrey Alan White (1995) (2019), EarnestRay White (1980), Max Daniel Wright Corbin C.Potter Grant A. Wright (1987) Robert Potter (1994) Admittee andfather Admittee and father (2019) and (2019) and Fred D.Gray(1954)andGray, Jr. (1988) Y L I M A F E H T N I S R E Y W A L Sierra J.Gray Sen. RodgerM.Smitherman(1989)and Judge CaroleC.Smitherman(1982) Crystal N.Smitherman Admittee, father, grandfatheranduncle Mary BethMantiply (1980)and Admittee, mother andfather Admittee, fatherandmother Mallory Mantiply (1980) Adele Mantiply (2019), StanleyF. Gray(1990), (2019), (2019), Leigh Margaret Terry J. MarkCowell and NinaL.J. Terry (1981) Admittee and brother Admittee andmother Dan Cowell (2011) Kimia Moshiri Allen Shabani(2010) Admittee anduncle (2019) and (2019) and (2019) Judge J. Christopher McCool Father-in-law and admittee Christopher LukeNixon (2019) andKenneth Allen (1993) and and LeonHampton(2013) Shaquila Jackson Admittee andfather Admittee andbrother Owens Nixon (1987) John Morgan (2019) www.alabar.org (2019) 21 T h e Alabama Lawyer 22 T h e Alabama Lawyer Alabama’s Appellate Standards January 2020 This isaprimeron Alabama’s appellate standardsof review Of ReviewinCivilCases By David G.Wirtes,By David Jr. Bruce and J.McKee and (b) state in pertinent part: Rule of Appellate Procedure 28(a)(8) applicable to each issue.” Alabama’s statements of the standard of review brief “shall” contain “[a] concise 28(a)(8) matter? For starters, Ala. R. App. P. and updatesinthelaw. should alwayscheckforchanges baselines orstartingpoints,andyou set forthhereshouldbeconsidered in typicalcivilcases. The standards Why does the standard of review requires that your appellate cable to each issue; of the standard of review appli- of Review. A concise statement in theorderhereindicated: under appropriateheadingsand or thepetitionershallcontain tion, thebriefofappellant quirements ofRule32.Inaddi- shall complywiththeformre- is grantedandthewritissues, petition forawritofcertiorari lant orthepetitioner, ifa titioner. The briefoftheappel- (8) Statement of the Standard (a) Briefofthe Appellant/ Pe- Rule 28BRIEFS * * 1987). stitute, Inc.,518So.2d721,725(Ala. Civ. App. sity of Alabama Hospitalsv. Alabama Renal StoneIn- have beenraisedforthefirsttimeonappeal.”Univer- pellate courts]fromjudiciallydeterminingissues that Civ. P.] 52(b) orRule59.” This rule“prevents[theap- been raisedbymotioninthetrialcourtunder[Ala. R. without regardtowhethersucherrororgroundhas serted inthetrialcourtmaybeassertedonappeal modification ofajudgmentororderwhichwasas- 4(a)(3) provides:“Anyerrororgroundforreversal or sought tobeappealed.Notethat Ala. R. App. P. pellant sufficiently raisedandpreservedtheissue when consideringwhichissuestoraiseonappeal? And, whereshouldthelawyerbeginhisanalysis cance ofidentifyingthecorrectstandardsreview? commonly atissueincivilcases? What isthesignifi- portion ofthebrief.” gument astothestandardofreviewforargument the standardofreviewissufficient, reservingany ar- tive June1,2002,states,“[a]conclusorystatementof Court CommenttotheamendmentRule28,effec- standard ofreviewapplicabletoeachissue.” The 28(b)’s requirementofa“concisestatement the view ofthematterbeforeus.”Ms.*2. necessary forthisCourttoconductameaningfulre- that theappellantincludecertainspecificinformation might wishtoincludeinabrief.Rule28(a)mandates The ruleisnotmerelyasuggestionastowhatone sets forthwhatanappellant’s brief‘shallcontain.’ stern rebuke,observing“Rule28(a), Ala. R. App. P., (Ala. Civ. App. 2019),thecourtunanimouslyissueda June 21,2019]__So.3d__,2019 WL 2558800,at*1 mandatory. Recently, inMayv. May,[Ms.2180076, So. 2d1210, 1214(Ala.1992).“[A]ppellate courts ruled onbythe trialcourt.”Normanv. Bozeman , 605 raised onappealmusthave firstbeenpresentedtoand to theissuesthatwerebefore thetrialcourt–anissue A thresholddeterminationisalwayswhetherthe ap- What thenarethepertinentstandardsofreview The focusofthisarticleisRule28(a)(8)’s and Conformance withtherequirementsofrulesis made by the appellant/petitioner. respondent is dissatisfied with those statements as of review need not be included unless the appellee/ tion, the case, the issues, the facts, or the standard (a)(1)-(12), except that a statement of the jurisdic- shall conform to the requirements of subdivision writ of certiorari is granted and the writ issues, of the appellee, or the respondent if a petition for a (b) Brief of the Appellee/ Respondent. The brief 2 As ageneralrule,appellate review“islimited 1 759, 762 (Ala. 1994) (“Variance between dates of acts Alabama Bd. of Chiropractic Examiners affirm based on the harmless-error rule.”); that there was no probable merit to the motion, it may versible error as when an appellate court determines tion for a new trial, the error is not necessarily re- trial court not to grant a request for a hearing on a mo- 1220, 1221-22 (Ala. 2000) (“Although it is error for a right.”); proper method of assuring the recognition of that 1901, § 6, we find the harmless-error analysis to be the but rather only to an ‘impartial’ jury, see Ala. Const. no right to a perfect jury or a jury of his or her choice, 833 So. 2d 1, 7 (Ala. 2002) (“Because a defendant has only a perfection, for litigants are not entitled to a (“[R]eversible error does not find its source in mere im- Dallas County, Ala. Rule 45’s harmless error rule are numerous: See also Ala. R. Civ. P. 61. Examples of application of 45’s harmlesserrorrule: 1985). 10 (Ala.1983);ExparteRiley,464So.2d92 served orassigned.”McAlileyv. McAliley,638So.2d search outerrorswhichhavenotbeenproperlypre- sues whicharenotproperlydelineatedanditwill (Ala. 2007).“Anappellatecourtwillnotconsideris- tional Collegiate Athletic Ass’n, 975So.2d306,349 So. 3d609,613(Ala.Civ. App. 2010);Cottrell v. Na- ing.” Grove HillHomeowner’s Ass’n, Inc.v. Rice,43 tention ofthetrialcourtandreceiveanadverserul- the [defendant]mustbringallegederrortoat- preserve anallegederroroflawforappellatereview, Morgan, 429So.2d1013,1015(Ala.1983).“[T]o review.” BillSteberChevrolet-Oldsmobile, Inc.v. error, properlypreservedandpresentedfor can onlyreviewtheactionsoftrialcourtsforalleged Another thresholdconsiderationis Ala. R. App. P. fected substantialrightsoftheparties. error complainedofhasprobablyinjuriouslyaf- tion oftheentirecause,itshouldappearthat taken orapplicationismade,afteranexamina- the opinionofcourttowhichappealis to anymatterofpleadingorprocedure,unlessin mission orrejectionofevidence,norforerroras or refusalofspecialcharges ortheimproperad- the groundofmisdirectionjury, thegiving new trialgrantedinanycivilorcriminalcaseon No judgmentmaybereversedorsetaside,nor fair Flagstar Enterprises, Inc. v. Foster one.”); Rule 45.Error Without Injury Bethea v. Springhill Memorial Hosp. , 456 So. 2d 295, 299 (Ala. 1984) , 647 So. 2d Chafian v. perfect trial , 779 So. 2d Chance v. www.alabar.org , , 23 T h e Alabama Lawyer 24 T h e Alabama Lawyer and Oral Argument make a mony was error without injury when plaintiff failed to rors by trial court in admission and exclusion of testi- 260 Ala. 82, 87, 69 So. 2d 440, 444 (1953) (Alleged er- result in denial of due process”); administrative hearing was harmless error which did not acts offered by Board of Chiropractic Examiners during alleged in complaint against chiropractor and dates of Aldisert, Ruggero J., ning on Appeal–Better Briefs andOral Argument: the Third Circuit,RuggeroJ. Aldisert, wroteinWin- Emeritus oftheUnitedStatesCourt Appeals for plicable standardofreview. without-injury rule,thenextstepisidentifyingap- and presentednotpretermittedbyRule45’s error- admit cumulative evidence is harmless error). So. 2d 348, 354 (Ala. 1992) (A trial court’s failure to of the case); mony was wholly insignificant as regards any element report had been admitted into evidence and the testi- ment upon the report of another was harmless when that error by the trial court in permitting one doctor to com- v. Langston under current Alabama law); cause it stated a theory of recovery that did not exist deemed harmless as it did not prejudice the plaintiff be- So. 2d 403-04 (Ala. 1992) (Incorrect jury instruction January 2020 Why isthissoimportant? The formerChiefJudge Assuming theappellateissueisproperlypreserved fessional conduct.” review standardtoaquestion ofminimumpro- each pointinhisorherbrief.... derstanding ofthescopereviewpertainingto the standard of review for each point. raises more than one issue, then you should state dard, your client deserves to win. If your appeal proper standard and to show why, under that stan- You must craft your brief on appeal to reflect the the hurdle imposed by the standard of review. the court to do on appeal if the court cannot jump under another. It does not matter what you ask one standard of review may be insignificant The error that may be a ground for reversal under court may examine a particular issue in a case. the power of the lens through which the appellate effective advocacy. In large part, they determine I elevatethenecessityof correctlystatingthe ...The competentadvocatewillhaveaclearun- “Standards of review are critically important in prima facie , 454 So. 2d 1317, 1328 (Ala. 1984) (Any City of Gulf Shores v. Harbert Intern. , § 5.2, pp. 56-57 (2d Ed. 2003). case); Winning on Appeal–Better Briefs Malone v. City of Mobile Osborne Truck Lines, Inc. Waldrop v. Langham , 608 , 602 , portant becauseit: Brief ing Quickly:Tips forWriting anEffective Appellate Ala. Law. 344,346(Sept.2012). Court oraClearPathwaytoYour Conclusion,73 Your Appellate Brief: An ObstacleCourseforthe Your Conclusion Obstacle CoursefortheCourtoraClearPathwayto (Montiel) Christoff wroteinYour Appellate Brief: An and FaulknerUniversity Associate LawProfessorJoi Id., pp.810-11. cacy on Appeal, 30S.M.U.L.Rev. 801(1976): in Twenty PagesandTwenty Minutes–Effective Advo- of Appeals fortheFifthCircuit,JohnGodbold,states Judge Rothofthe Third CircuitwritesinPersuad- Former SupremeCourtof Alabama Staff Attorney The formerChiefJudgeoftheUnitedStatesCourt not have to defer to the lower court’s decision. standard, under which the appellate judge does trast, a judge is unconstrained under a court simply did not get it wrong enough. By con- stead, is a legal winner (or a loser) if the lower is ultimately right. The advocate’s argument, in- if the judge believes that an advocate’s argument an abuse-of-discretion standard, it does not matter standard dictates the decision. For instance, under to yourargument.” not favorabletoyou,explainwhyitisfatal into yourargument. Ifthestandardofreviewis standard ofreviewisinyourfavor, weavethat are onalevelplayingfieldifyounot.Ifthe not argue asifyouandyouropposingcounsel ceed throughyourargument. Inotherwords,do issue. Donotoverlookthestandardasyoupro- issues, outlinethestandardofreviewforeach for eachissueyoupresent.Ifpresentthree down whenbasketballrulesareineffect.” he mayfindhimselftryingtorunforatouch- miliar withthestandardofreviewforeachissue, without thatknowledge....Unlesscounselisfa- issue. Hecannotadequatelypreparehiscase priate standardofappellatereviewforeach counsel mustfamiliarizehimselfwiththeappro- judge’s ‘measuringstick.’ Earlyintheappeal, “[M]ay constrain the judge to the point that the “The standardofreviewmaynotbethesame “The standardofreviewistheappellate that thestandardofreviewsectionisvitallyim- states: de novo .review ofjudgments a. Civil Cases view incivilcases? Id What thenare Alabama’s appellatestandardsofre- ., 11 chances ofsuccessintheappeal.” course ofactionwillunderminetheadvocate’s her opponent’s characterizationofit.Either Even worse,anadvocatemayuncriticallyaccept thinking criticallyaboutwhattheyaredoing. cates setoutastandardofreviewwithout view controlstheargument.... Too manyadvo- .Dismissals 1. You must[]understandthatthestandardofre- Journal of Appellate Practice and Process .Ala.R.Civ. P. 12(b)(1)dismissalfor a. matter lack ofjurisdictionover thesubject at 449. (Ala. 2006)). erty NationalLifeIns.Co.,953So.2d1211, 1218 So. 3d979,986(Ala.2017)(quotingSolomonv. Lib- ject-matter jurisdiction.” Taylor v. ParadiseMissionaryBaptistChurch, 242 “We reviewdenovo 1044-45 (Ala.2006): jurisdiction inExparteBufkin,936So.2d1042, ing onamotiontodismissforlackofpersonal in aproceedingchallengingthetrialcourt’s rul- “We recentlyaddressedthestandardofreview invoked jurisdiction of the court.” other adequate remedy; and 4) properly nied by a refusal to do so; 3) the lack of an- upon the respondent to perform, accompa- to the order sought; 2) an imperative duty there is: 1) a clear legal right in the petitioner extraordinary writ, to be “issued only when “‘“‘The writ of mandamus is a drastic and .Ala.R.Civ. P. 12(b)(2)dismissalfor b. lack ofjurisdictionover theperson whether thetrialcourthadsub- Ex parte www.alabar.org 25 T h e Alabama Lawyer 26 T h e Alabama Lawyer January 2020 61, 63 (3d Cir. 1984)).” Vacation Club v. Atlantic Resorts, Ltd order to survive the motion.’) (citing own affidavits or other competent evidence in required to controvert those affidavits with his supports that motion with affidavits, plaintiff is dismiss pursuant to Fed. R. Civ. P. 12(b)(2), and Del. 1995) (‘When a defendant files a motion to Neumueller GmbH 1247, 1249 (11 Today, Inc. v. OSF Healthcare Sys 1247 (N.D. Ala. 2002) (citing v. Federal Transtel, Inc gations in the complaint.’ and he may not merely reiterate the factual alle- complaint by affidavits or other competent proof, substantiate the jurisdictional allegations in the sonal jurisdiction, ‘the plaintiff is then required to evidentiary showing that the Court has no per- However, if the defendant makes a prima facie parte McInnis Inc liott v. Van Kleef to dismiss for lack of personal jurisdiction.” novo a trial court’s judgment on a party’s motion (Ala. 2001). “An appellate court considers de “‘Ex parteCovington PikeDodge,Inc ., 904 “‘“ “‘ Cir. 1990)).”’ Madara v. Hall,916F.2d 1510,1514(11 tiff.’ Robinson,74F.3d at255(quoting reasonable inferencesinfavoroftheplain- flict, the...courtmustconstrueall plaint andthedefendant’s affidavits con- Cir.1990), and‘wheretheplaintiff’s com- P.C., 74F.3d 253(11 affidavits, Robinsonv. Giarmarco &Bill, plaint notcontrovertedbythedefendant’s as truetheallegationsofplaintiff’s com- personal jurisdiction,acourtmustconsider R. Civ. P., motiontodismissforwantof Carter 669 So. 2d 133, 134 (Ala. 1995).’ 503 (Ala. 1993); see also United Serv. Stations, Inc work Productions, Inc.,902F.2d 829(11 Cable/Home CommunicationCorp.v. Net- ., 853 So. 2d 888, 894 (Ala. 2002) (quoting Ex parte McWilliams “‘“‘“In consideringaRule12(b)(2), Ala. Wenger Tree Serv. v. Royal Truck & Equip., , [807 So. 2d 534,] 536 [(Ala. 2001)].” , 820 So. 2d 795, 798 (Ala. 2001)). th , 830 So. 2d 726, 729 (Ala. 2002). Cir. 2000)). See also , 163 F.R.D. 471, 474-75 (D. ., 193 F.Supp.2d 1243, th , 812 So. 2d 318, 321 Cir. 1996),and Mercantile Capital, LP ., 628 So. 2d 501, Ex parte Ziglar Future Tech. ., 218 F.3d Ex parte Time Share ., 735 F.2d Hansen v. , El- th th Ex So. 2d370,372 (Ala.2001)). 2018) (quoting ExparteD.M. WhiteConstr., 806 Co. Ex parteTerex USA,LLC,260So.3d813,816(Ala. 882 So.2d307,309-10(Ala.2003).Relatedly, (Ala. 2011) (quotingExpartePerfectionSiding,Inc., Ex parteHamptonIns. Agency, 85So.3d347,350 ners, LLC,258So.3d1111, 1114 (Ala.2018). Ex parteInternationalCreative ManagementPart- (Ala. 2007). Ex parteDuckBooInt’lCo.,985So.2d900,905-06 for anabuseofdiscretion.” question ofenforcingaforum-selection clauseis Pike Fabrication,859So.2dat1091.” facts thatwerebeforethetrialcourt.Exparte damus petition,thisCourtislimitedtothose 81 (Ala.2002). Also, inconsideringsuchaman- venue. ExparteScottBridgeCo.,834So.2d79, in grantingordenyingthemotionforachangeof ing whetherthetrialcourtexceededitsdiscretion seeking reviewofavenuedeterminationbyask- 1995). This Courtreviewsmandamuspetitions parte IntegonCorp.,672So.2d497,499(Ala. properly invokedjurisdictionofthecourt.’ Ex the lackofanotheradequateremedy;and(4) perform, accompaniedbyarefusaltodoso;(3) (2) animperativedutyupontherespondentto legal rightinthepetitionertoordersought; writ, tobeissuedonlywherethereis(1)aclear So.2d 226,229-30(Ala.2004).’” “[T]he reviewofatrialcourt’s rulingonthe “‘Mandamus isadrasticandextraordinary So. 2d886,888(Ala.2000). parte Alabama Great SouthernR.R.,788 petitioning forawritofmandamus.Ex is entitledtoseekreviewofthisdecisionby dant’s motionisdenied,thenthedefendant cation, 859So.2dat1091.Ifthedefen- where venueisproper. ExpartePikeFabri- the courtmusttransfercasetoa outset, thenuponmotionofthedefendant, 534 (Ala.2001)).Ifvenueisimproperatthe (quoting ExpartePratt,815So.2d532, Inc., 859So.2d1089,1091(Ala.2002) of theaction.”’ ExpartePikeFabrication, action isdeterminedatthecommencement “‘“The questionofpropervenueforan .Ala.R.Civ. P. 12(b)(3)dismissalfor im- c. proper venue 3 671 So.2d106(Ala.Civ. App. 1995).” facts ofthiscase.Simsv. LelandRobertsConstr., Inc., whether thetrialcourtcorrectlyappliedlawto de novo.Ourreviewinthiscaseistodetermine 2000), stated“[w]ereviewthetrialcourt’s judgment tions Corp.,781So.2d241,245(Ala.Civ. App. of civilappealsinWilliams v. SkysiteCommunica- which challengedthesufficiency ofprocess,the court 671 So.2d106(Ala.Civ. App. 1995).” facts ofthiscase.Simsv. LelandRobertsConstr., Inc., whether thetrialcourtcorrectlyappliedlawto de novo.Ourreviewinthiscaseistodetermine 2000), stated“[w]ereviewthetrialcourt’s judgment tions Corp.,781So.2d241,245(Ala.Civ. App. of civilappealsinWilliams v. SkysiteCommunica- which challengedthesufficiency ofprocess,thecourt Civ. P. 4.2(b). process wasperformedincompliancewith Ala. R. upon findinganinsufficiency ofproofthatservice miss alleginganinsufficiency ofserviceprocess of Civil Appeals reversedadenialofmotiontodis- 443 So.2d880,884(Ala.1983).InCain,theCourt (quoting ExparteVolkswagenwerk Aktiengesellschaft , Cain, 892So.2d952,956(Ala.Civ. App. 2004) process wasperformedcorrectlyandlegally.” Cainv. proof isontheplaintiff toprovethatserviceof contested asbeingimproperorinvalid,theburdenof In reviewingthedenialofamotiontodismiss In reviewingthedenialofamotiontodismiss “When theserviceofprocessondefendantis (Ala.1993): Nance v. Matthews,622So.2d297,299 12(b)(6), Ala. R.Civ. P., dismissalissetforthin “‘The applicablestandardofreviewforaRule whether, when the allegations of the com- under Rule 12(b)(6) [, Ala. R. Civ. P.,] is 1989). The appropriate standard of review Inc (Ala.1981); County Commission a presumption of correctness. “‘“On appeal, a dismissal is not entitled to .Ala.R.Civ. P. 12(b)(6)motiontodis- f. Ala.R.Civ. P. 12(b)(5)dismissalfor in- e. Ala.R.Civ. P. 12(b)(4)dismissalfor in- d. ., 545 So. 2d 771, 772 (Ala. Civ. App. which relief maybegranted miss for failure tostateaclaimupon sufficiency ofserviceprocess sufficiency ofprocess Allen v. Johnny Baker Hauling, , 394 So. 2d 928, 930 Jones v. Lee (Ala. Dec.14,2018). 2018), reh’gdenied2018 WL 6583837,__ So.3d__ 1170320, 2018 WL 4657321at*3,__ So.3d__(Ala. Ex parte Advance DisposalServicesSouth,LLC,No. 489 (2016). Ex parteLibertyNat.LifeIns.Co.,209So.3d486, under Rule19.” ceeded itsdiscretioninrefusingtojoinaparty by whichtoaddresswhetheratrialcourthasex- stated thatmandamusreviewisapropermeans Luton, 456So.2d249(Ala.1984),thisCourt 566 So.2d224,226(Ala.1990).InRossv. or indispensable.’ Hollandv. Cityof Alabaster, low indeterminingwhetherapartyisnecessary forth ‘atwo-stepprocessforthetrialcourttofol- 12(b)(7) motionmustlooktoRule19,whichsets [Ala. R.Civ. P.] 19.’ CourtsconsideringaRule action basedona‘failuretojoinpartyunder (Ala. Civ. App. 2003)(footnoteomitted).” .Ala.R.Civ. P. 56summaryjudgment 2. “Rule 12(b)(7)providesforthedismissalofan “Smith v. Smith,865So.2d1221,1223-24 “‘(Emphasis added.)’ 2d 768, 769 (Ala. 1986).” 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. relief. of the claim that would entitle the plaintiff to plaintiff can prove no set of facts in support only when it appears beyond doubt that the note that a Rule 12(b)(6) dismissal is proper ica (Ala. 1985); Fontenot v. Bramlett but only whether she may possibly prevail. whether the plaintiff will ultimately prevail, mination, this Court does not consider (Ala. Civ. App. 1991). In making this deter- (Ala. 1985); of Alabama/Andalusia would entitle her to relief. could prove any set of circumstances that pleader’s favor, it appears that the pleader plaint are viewed most strongly in the .Whenatrial courtgrantsan Ala. R. a. Ala.R.Civ. P. 12(b)(7)dismissalfor fail- g. , 465 So. 2d 1100, 1101 (Ala. 1984). We ment filedby defendant Civ. P. 56motion for summary judg- ure tojoinapartyunder Rule19 Garrett v. Hadden Rice v. United Ins. Co. of Amer- Hill v. Falletta , 470 So. 2d 669, 671 , 474 So. 2d 640, 641 , 495 So. 2d 616, Raley v. Citibanc , 589 So. 2d 746 www.alabar.org 27 T h e Alabama Lawyer 28 T h e Alabama Lawyer summary judgmentasfollows: judgment motion,anappellate courtwillreviewthe trial motionforjudgmentasamatteroflaw. subsumed withinthereviewofdenialpost- Any challengetothesufficiency oftheevidenceis Hamilton Co.,953So.2d1196, 1205(Ala.2006)). (Ala. 2009)(quotingBeiersdoerferv. Hilb,Rogal & Jones, Morrison&Womack, P.C., 42So.3d667,691 ing atrialonthemerits.’”Wachovia Bank,N.A.v. court’s denialofasummary-judgmentmotion follow- 81 (Ala.Civ. App. 2017).“‘[W]edonotreviewatrial Acme BrickTile &Stone,Inc.,243So.3d278,280- 1038-39 (Ala.2004);accord,ColonyHomes,LLCv. Dow v. Alabama DemocraticParty,897So.2d1035, January 2020 When atrialcourtgrants aplaintiff’s summary mary judgment, theplaintiff isonly seekingthe 871 (Ala.1989).” Founders Life Assur. Co.ofFla.,547So.2d870, existence ofthefactsoughttobeproved.’ West v. of impartialjudgmentcanreasonablyinferthe quality thatfair-minded personsintheexercise tial evidenceisofsuchweightand 1989); Ala. Code1975,§12-21-12.‘[S]ubstan- Baldwin County,538So.2d794,797-98(Ala. issue ofmaterialfact.Bassv. SouthTrust Bankof stantial evidence’ as totheexistenceofagenuine then shiftstothenonmovantproduce‘sub- is nogenuineissueofmaterialfact,theburden movant makesaprimafacieshowingthatthere 496 So.2d756,758(Ala.1986).Oncethe favorable tothenonmovant.Wilson v. Brown, court] mustreviewtheevidenceinlightmost making suchadetermination,[theappellate durski, 899So.2d949,952-53(Ala.2004).In P.; BlueCross &BlueShieldof Alabama v. Ho- ment asamatteroflaw. Rule56(c), Ala. R.Civ. exists andthatthemovantisentitledtoajudg- showing thatnogenuineissueofmaterialfact whether themovanthasmadeaprimafacie Specifically, [theappellatecourt]mustdetermine standard ofreviewasthetrialcourtapplied. 2003). [Theappellatecourt]appl[ies]thesame Mut. Auto. Ins.Co.,886So.2d72,74(Ala. judgment isdenovo.Williams v. StateFarm “When aplaintiff opposes amotionforsum- “[An appellatecourt’s] reviewofasummary .Whenatrialcourtgrantsan Ala. R. b. ment byplaintiff Civ. P. 56motionfor summaryjudg- 2d 677,679(Ala.2001). Int’l,Inc. , 798So. damages. SeeExparteS&Davis judgment isafinal concerningliabilityand appellate reviewisbyway ofappealasthedefault court deniesamotiontosetasidedefaultjudgment, Bolen, 915So.2d565,567-68(Ala.2005).Ifatrial of apetitionforwritmandamus.SeeExparte aside adefaultjudgment,appellatereviewisbyway 53 (Ala.2006).Ifthetrialcourtgrantsamotion to set Id. See,e.g.,Zellerv. Bailey , 950So.2d1149, 1152- 524 So.2d600,605(Ala.1988): land v. FortMorgan Authority SewerService,Inc., discretion andguidedbythefactorssetoutinKirt- fault judgmentisreviewedonappealforanabuseof (Ala. 2009)). County Greyhound Parkv. Knowles,39So.3d100 10.2, pp.10-18(2018)(citinginteralia,Macon & Anil A. Mujumdar, AlabamaCivilProcedure, § 12.10[5], p.12-12(2019Ed.)(quotingOthniLathram Ed R.Haden,Alabama Appellate Practice , § A trialcourt’s rulingonamotiontosetasidede- sult ofthedefendant’s ownculpableconduct.” and (3)whetherthedefaultjudgmentwasare- prejudiced ifthedefaultjudgmentissetaside; defense; (2)whethertheplaintiff willbeunfairly ruling.” which theplaintiff seeksthecourt’s dispositive evidence oneveryelementoftheclaims moving plaintiff ...mustpresentoverwhelming no reasonablejurycouldfindotherwise.... A but thatitbelievessuchevidencesostrongly not onlythatitbelievestheplaintiff’s evidence, mary judgmentforaplaintiff withoutdeciding Thus, atrialcourtmayneverproperlygrantsum- lieve thatthefactsareasplaintiff maintains. clusive thatareasonablejurywouldhavetobe- plaintiff mustshowthatitsevidenceissocon- show sufficient evidencetogetthejury. The a denial,plaintiff mustdomorethanmerely tion todefendantwhoseekssuch. To justifysuch judgment foraplaintiff, deniesajurydetermina- the jury. The trialcourt,ingrantingsummary the plaintiff isaskingthatitscasebekeptfrom moves forsummaryjudgment,ontheotherhand, opportunity togetthejury. When aplaintiff .Baseduponjury verdicts 3. “(1) Whether thedefendanthasameritorious .Defaultjudgment c. Air Services, Inc.,92So.2d749, 758-59(Ala.2012) GE Capital Aviation Services,Inc.v. PEMCOWorld 2013). v. LigonCapital,LLC,160So.3d1195, 1204(Ala. party isentitledtothejudgment.”CNH America, LLC sought andthelawfactsonwhichmoving Ala. R.Civ. P.] motionshallspecifythejudgment 872 So.2d819,825(Ala.2003).“[A][Rule50(a)(2), 2004); IndustrialTechnologies, Inc.v. JacobsBank, Williford v. Emerton,935So.2d1150, 1154 (Ala. 2d 1126 (Ala.1992).” ruling. Ricwil,Inc.v. S.L.Pappas&Co.,599So. sumption ofcorrectness as tothetrialcourt’s tion oflaw, however, thisCourtindulgesnopre- have beenfreetodraw.” Id.Regardingaques- such reasonableinferencesasthejurywould most favorabletothenonmovantandentertains JML, thisCourtviewstheevidenceinlight 1353. Inreviewingarulingonmotionfor resolution bythejury. Carter,598So.2dat tial evidencecreatingafactualdisputerequiring bears theburdenofproofhasproducedsubstan- court mustdeterminewhetherthepartywho 547 So.2d870,871(Ala.1989). A reviewing West v. FoundersLife Assurance Co.ofFlorida, tion foraJML.See§12-21-12, Ala. Code1975; substantial evidenceinordertowithstandamo- 1992). The non-movantmusthavepresented Carter v. Henderson,598So.2d1350(Ala. submitted tothejuryforafactualresolution. sented sufficient evidencetoallowthecasebe question iswhetherthenon-movanthaspre- 1997). Regardingquestionsoffact,theultimate Homes, Inc.v. Crawford, 689So.2d3(Ala. or denythemotionforaJML.PalmHarbor court usedinitiallyindecidingwhethertogrant JML, thisCourtusesthesamestandardtrial the closeofallevidence.” ment asamatteroflaw]onthesamegroundat proper, ifthepartyhasnotmovedfora[judg- on the“insufficiency oftheevidence,”isim- motion forajudgmentasmatteroflaw],based “When reviewingarulingonmotionfor “It isaproceduralabsolutethat[post-trial .Reviewofdenialmotionfor entryof a. .Merits 2. Preservation 1. judgment asamatter oflaw lowing standard: damages awardsabsentastrictshowingunderthe fol- ford v. Emerton,935So.2d,1150, 1154 (Ala.2004). the samegroundatcloseofallevidence. Willi- award wherethedefendantdidnotmoveforJML on of evidencetosupportacompensatorydamages Marsh v. Green Williford v. Emerton of witnessesandweighttheevidence.” for thatofthejuryinmattersdealingwithcredibility this courtmust“declinetosubstitute[its]judgment the evidenceafteradenialofmotionfornewtrial, 332 (Ala.2011). Lafarge North America, Inc.v. Nord, 86So.3d326, only ifitisplainlyandpalpablywrong.” to theprevailingparty, anditwillsetasidetheverdict must considertheevidenceinlightmostfavorable rect.... Inreviewingajuryverdict,anappellatecourt (Ala. 2012). Boudreaux v. Pettaway,108So.3d486,487,n.1 Ins. Co.,875So.2d1143, 1152 (Ala.2003)). (quoting Waddell &Reed,Inc.v. UnitedInvestorsLife Appellate courtsdonotinterferewithcompensatory The courtwillnotconsideranallegedinsufficiency When consideringtheweightandpreponderanceof “Furthermore, ajuryverdictispresumedtobecor- spective.... When thereisnoevidence beforethe viewing the evidence fromtheplaintiff’s per- amount ajury, initsdiscretion,mayaward, compensatory damagesmust determinewhat plaintiff. A courtreviewingaverdictawarding tory damagesareexcessive, thefocusison wrong.” the juryverdictwasplainlyandpalpably most favorabletothenon-movant,showsthat a newtrialunlesstheevidence,seeninlight Court willnotreversethedenialofamotionfor entitled toapresumptionofcorrectness,andthis preponderance oftheevidence... A juryverdictis “When acourtisassessing whethercompensa- “A motionforanewtrialteststheweightand .Reviewofcompensatorydamages c. Reviewofdenial motionfor newtrial b. .Merits 2. Issuepreservation 1. awards , 782 So. 2d 223, 227 (Ala. 2000). , 935 So. 2d 1150, 1154 (Ala. 2004); www.alabar.org 29 T h e Alabama Lawyer 30 T h e Alabama Lawyer standard ofreviewfrom such benchtrials: (Ala. 2010),generallystates theapplicableoretenus spoon, 867So.2d307,309(Ala.2003)). (Ala. 2012)(quotingMackTrucks, Inc.v. Wither- rectness.” Boudreaux v. Pettaway,108So.3dat504 tive damagesdenovo,withnopresumptionofcor- tions omitted). 443, 449-50(Ala.2008)(internalcitationsandquota- Beauchamp v. CoastalBoatStorage,LLC,4So.3d court’s determinationthatanewtrialiswarranted.” standard ofreviewthatismoredeferentialtothetrial oftheevidence,thisCourtappliesa or preponderance finding thattheverdictwasagainstgreatweight granted forreasonsotherthan,orinadditionto,a App. 2003).“Whereamotionfornewtrialis Wells v. Mohammad,879So.2d1188, 1191 (Ala.Civ. enced bypassion,prejudice,orimpropermotive.” so inadequateastoindicatethatthejurywasinflu- inadequate awardofdamagesonlywheretheis to becorrectandwillsetasideonthegroundofan and quotationsomitted).“Juryverdictsarepresumed 937 So.2d1060,1062(Ala.2006)(internalcitations pably supportsthejuryverdict.”ExparteCourtney, ing damagesiswhethertheevidenceplainlyandpal- the basisofinadequacyajury’s verdictaward- review ofatrialcourt’s ordergrantinganewtrialon 1033, 1045(Ala.1999). The applicablestandardof Daniels v. East Alabama Paving,Inc.,740So.2d Weatherly, 792So.2d1045,1049(Ala.2000); 363-64 (Ala.2000);PrudentialBallard RealtyCo.v. New PlanRealtyTrust v. Morgan , 792So.2d351, January 2020 Kennedy v. BolesInvestments, Inc.,53So.3d60 The court“reviewsthetrialcourt’s awardofpuni- is wellsettled. “‘Whenajudgeinnonjury case review applies. Ouroretenusstandard ofreview during thebenchtrial, oretenusstandardof “Because thetrialcourtheard oretenusevidence So. 2d235(Ala.1993).” tory damages.SeePittv. CenturyII,Inc.,631 the provinceofjuryinawardingcompensa- the facts,thereisnostatutoryauthoritytoinvade jury’s verdictisnotconsistentwiththetruthand of thejury, orwhenthereisnoindicationthatthe dice, corruption,orimpropermotiveonthepart court ofanymisconduct,bias,passion,preju- .Reviewofpunitivedamagesawards d. .Baseduponbenchtrials 3. a. Ore tenus evidence 1994). Adjustment ofMobile,636So.2d415,417(Ala. plied thelawtofacts.ExparteBoard ofZoning when thetrialcourtisshowntohaveimproperlyap- (Ala. 1977)). quoting inturnRaidtv. Crane,342So.2d358,360 bama StateUniv.,778So.2d791,795(Ala.2000), Id. at67-68(quotingReedv. Board ofTrs. for Ala- The presumptionofcorrectnesshasnoapplication damages issues: general oretenusstandardofreviewrelativeto 377, 379(Ala.1996)). (quoting AllstateIns.Co.v. Skelton,675So.2d Smith v. Muchia,854So.2d85,92(Ala.2003) appeal exceptforaplainandpalpableerror.’” sumed correctandwillnotbedisturbedon ings offactbasedonthattestimonywillbepre- hears oraltestimony, ajudgmentbasedonfind- Kennedy v. BolesInvestments 1355, 1357(Ala. 1977).” neous.’ Robinsonv. Morse,352So.2d reversed ‘onlyifclearly and palpablyerro- award basedonoretenus evidencewillbe (Ala. 2005). Thus, thetrial court’s damages Edwards v. Valentine, 926So.2d315,325 to thetrialcourt’s assessmentofdamages.’” “‘The oretenusstandardofreviewextends is supportedbycredibleevidence.’” judgment if,underanyreasonableaspect,it weight oftheevidence,butwillaffirm the clearly erroneousandagainstthegreat the trialcourt’s conclusionunlessitis issues offact,andthisCourtwillnotdisturb ness attendsthetrialcourt’s conclusionon sented] oretenus,apresumptionofcorrect- “‘[W]here theevidencehasbeen[pre- review, succinctlystated,isasfollows: 672 (Ala.1995). The oretenusstandardof evidence. Bornv. Clark,662So.2d669, bination oforaltestimonyanddocumentary entirely uponoraltestimonyoracom- sues offact,’ whetherthedisputeisbased (Ala.1986). The ruleappliesto‘disputedis- Hall v. Mazzone,486So.2d408,410 the demeanorandcredibilityofwitnesses.’ testimony ithasanopportunitytoevaluate principle thatwhenthetrialcourthearsoral “‘The oretenusruleisgroundeduponthe also statesthe 622 So.2d410, 412(Ala.Civ. App. 1993): weight ofthe evidence.See,e.g.,Phillipsv. Phillips , ing evidence,manifestly unjust,oragainstthegreat unless foundtobeclearly erroneous,withoutsupport- plies andthecourt’s findings willnotbeoverturned upon credibilityofwitnesses, theore tenus (Ala. 2003). Southern Energy Homes,Inc.,873So.2d1116, 1121 gencorp, Inc.,13So.3d888,893(2008);Exparte 5-81(e)(1), Ala. Code1975). Accord, ExparteDol- Inc., 838So.2d385,387-88(Ala.2002)(citing§25- correctness.” Exparte American ColorGraphics, compensation caseshallbewithoutapresumptionof and considerationofotherlegalissuesinaworkers’ However, “anappellatecourt’s review oftheproof Co. ofFlorida,547So.2d870,871(Ala.1989)). (Ala. 1996)(quotingWest v. FoundersLife Assurance Ex parteTrinity Indus.,Inc.,680So.2d262,268-69 So.2d 235,237(Ala.1988). Freeman Wrecking Co.,Inc.v. CityofPrichard , 530 on appeal: verted, adenovo Id., 53So.3dat68. Where thetrialcourtissuesfindingsoffactbased When theevidenceinabenchtrialisuncontro- 451, 296So.2d163(1974). 2d 280(1975);McCullochv. Roberts,292 Ala. 1978); Perdue v. Roberts,294 Ala. 194,314So. proval Kesslerv. Stough,361So.2d1048(Ala. 380 So.2d792,794(Ala.1980),citingwithap- tion ofthelawtothosefacts.”’ Stilesv. Brown, presumption infavorofthetrialcourt’s applica- ment ontheevidencedenovo,indulgingno plicable, andtheSupremeCourtwillsitinjudg- undisputed, however, ‘theoretenusruleisinap- “Where theevidencebeforetrialcourtis sought tobeproved.’” reasonably infertheexistenceoffact in theexerciseofimpartialjudgmentcan weight andqualitythatfair-minded persons finding issupportedby‘evidenceofsuch supported bysubstantialevidence-ifthat trial court’s findingoffactifthatis “[An appellatecourt]willnotreversethe .Domesticrelations d. Workers’ compensation c. Undisputedevidence b. review ofthatevidenceiswarranted rule ap- the trialcourt’s findingstobecorrect andwillnot In achildcustody case,anappellate court presumes its determinationofthebest interestsofthechild.. may disposeofthecustody ofthechildaccordingto omitted). App. Oct.18,2019)(internal citationsandquotations __ So.3d__,2019 WL 5284785,at*1–2(Ala.Civ. v. JeffersonCty. Dep’t ofHumanRes.,No.2180683, evidence withoutapresumptionofcorrectness.” D.W. We reviewthelegalconclusionstobedrawnfrom tenus evidence,thiscourtpresumestheircorrectness. clear andconvincing. When thosefindingsrestonore dence thatthejuvenilecourtcouldhavefoundto be fact madebythejuvenilecourtaresupported evi- dence but,rather, determineswhether thefindingsof be proved.. This courtdoesnotreweighthe evi- clearly andconvincinglyestablishthefactsoughtto idence thatafact-finderreasonablycouldfindto evidence necessaryforappellateaffirmance . . isev- supported byclearandconvincingevidence.. The fore thetrialcourtatcustodyhearing.”). of disputedevidencethatwaspresentedoretenusbe- the witnesses. Appellate courtsdonotsitinjudgment tody determination–ithearstheevidenceandobserves The trialcourtisinthebestpositiontomakeacus- based onthatevidencearepresumedtobecorrect. ore tenustothetrialcourt,thatcourt’s findings offact evidence inachildcustodycasehasbeenpresented 3369268, at*8(Ala.Civ. App. July26,2019)(“When 2170922 and2170983,__So.3d__,2019 WL (Ala. Civ. App. 1985).Cf.,C.M.L.v. C.A.L.,nos. App. 1990);Flowersv. Flowers,479So.2d1257 Id., Gamblev. Gamble,562So.2d1343(Ala.Civ. “Once achildisfounddependent, ajuvenilecourt “A judgmentterminatingparentalrightsmustbe allow.” weigh theevidence. This Alabama lawdoesnot judgment tothatofthetrialcourtwouldbere- court’s discretionisshown. To substituteour palpably wrong,orunlessanabuseofthetrial to supportthedeterminationthatitisplainlyand we willnotreverseunlesstheevidencesofails Vail, 532So.2d639(Ala.Civ. App. 1988),and So. 2d440(Ala.Civ. App. 1989),andVail v. of correctnessonappeal,Paynev. Payne , 550 upon oraltestimonyisaccordedapresumption A custodydeterminationofthetrialcourtentered cases wheretheevidenceispresentedoretenus. “Our standardofreviewisverylimitedin .Juvenileproceedings e. www.alabar.org 31 T h e Alabama Lawyer 32 T h e Alabama Lawyer court inthefirst instance,anappealto thesupreme states: Supreme Court.Section12-22-20, Ala. Code1975, appeals toeitherthecircuitcourtor Alabama challenges becauseofthestatutoryschemeaffording nal citationsandquotationsomitted). 4564503, at*6(Ala.Civ. App. Sept.20,2019)(inter- B.R.B., No.2180521,__So.3d__,2019 WL the bestinterestsandwelfareofchild.” tation rightsaccordedanoncustodialparentisalways but theprimaryconsiderationinestablishingvisi- must bedecidedonitsownfactsandcircumstances, discretion. Everycaseinvolvingavisitationissue this regardwillnotbereversedabsentanabuseof tion rightsofanoncustodialparent,anditsdecisionin court hasbroaddiscretionindeterminingthevisita- subject tothesamestandardsofreview. The trial tions. Bothvisitationandcustodydeterminationsare tions omitted). (Ala. Civ. App. 2018)(internalcitationsandquota- Cty. Dep’t ofHumanRes.,266So.3d740,742–43 ruling wasplainlyandpalpablywrong.”E.D.v. Lee tenus willnotbereversedabsentashowingthatthe dependency actioninwhichevidenceispresentedore cretion ofthetrialcourt,andacourt’s rulingona ever, mattersofdependencyarewithinthesounddis- supported byclearandconvincingevidence.How- tions iswellsettled. A findingofdependencymustbe quotations omitted). 1112 (Ala.Civ. App. 2018)(internalcitationsand and palpablywrong.” so poorlysupportedbytheevidenceastobeplainly the trialcourt’s findingsoffactunlesstheare will notreversethetrialcourt’s judgmentbasedon where theevidenceisconflicting. An appellatecourt plain error. This presumptionisespeciallyapplicable reverse withoutproofofaclearabusediscretionor January 2020 Should theappellantelect toappealthecircuit Appeals fromprobateproceedingspresentspecial “Visitation rightsareapartofcustodydetermina- “Our standardofreviewdependencydetermina- court oughttohaverendered.” such decree,orderorjudgment astheprobate of rightbedone,theappellate courtshallrender the probatejudge;and,in allcaseswhereitmay or fromanyfinaljudgment,orderdecreeof Court fromanyfinaldecreeoftheprobatecourt, “An appealliestothecircuitcourtorSupreme .Probate proceedings f. D.W. v. M.M.,272So.3d1107, S.D.B. v. standards ofreviewasfollows: proceedings. The courtsummarizedthegoverning decrees concerningguardianshipandconservatorship 1995), thesupremecourtreviewedaprobatecourt’s be palpablyerroneous,wewillnotdisturbit.” based uponore tenus ties andtheheirsofestate;decisionbeing court’s decisionisbasedonthetestimonyof par- 1975, thecourtofcivilappealsheld“[t]heprobate the supremecourtpursuantto§12-2-7(6), Ala. Code ministrators oftheestate.Followingdeflectionfrom purchase contractfromadecedent’s estatebyco-ad- viewed aprobatecourtdecreedisapprovingofland 694 So.2d25(Ala.Civ. App. 1997),thecourtre- erential. Forexample,inLadewigv. Estateof Arnold , court). appeal tobebaseduponrecordbeforetheprobate Pate, 214 Ala. 163,106So.691(1925)(outcomeon (no trialdenovo novo); Martinv. Vreeland, 526So.2d24(Ala.1988) court onappealandmaynotconsidermatterde 2d 138(Ala.2002)(circuitcourtsitsasareviewing determination. Womack v. EstateofWomack, 826So. only therecordfromprobatecourtinmakingits cuit courtsitsasanappellateandcanconsider no trialdenovo cuit court.Section12-22-22, Ala. Code1975. court maythenbetakenfromthejudgmentofcir- In McCalliev. McCallie,660So.2d584(Ala. The standardofappellatereviewisexceedinglydef- When anappealistakentoacircuitcourt,there (1965): Davis, 278 Ala. 328,330,178So.2d154,155 affairs ispresumedtobecorrect.SeeDavisv. and competenttomanagehismother’s personal court’s apparentfindingthatDavidisqualified presented totheprobatecourt, “Because thereisnorecordofthetestimony Appeal & Error Key No. 907(4). record. cree where all the evidence is not in the sustain the verdict, finding, judgment, or de- sumed that the evidence was sufficient to Appeal & Error § 671(3). And it will be pre- 228, 82 So. 2d 295 [(1955)], 2 Ala. Dig., turbed on appeal. ings, proofs and testimony will not be dis- which recites that it was granted on plead- contained in the record on appeal, a decree “The rule is that where no testimony is Williams v. Clark, supra in thecircuitcourt,butrathercir- available onappeal);McKnightv. evidence andnotappearingto Williams v. Clark ; 2 Ala. Dig., , 263 Ala. Id., 284 Ala. at5,221So. 2dat124. rect” explaining: that the“...verdictofjuryispresumedtobecor- guardian followingjurytrial),thesupremecourtheld probate courtdecreerevokingappointmentof (1969) (onappealfromcircuitcourtorderaffirming Roberson v. Roberson,284 Ala. 5,221So.2d122 1991).” McCallie,660So.2dat585,n.1.Seealso See Vise v. ColeSanitation,Inc.,591So.2d32(Ala. was supportedbytheevidencecourthadbeforeit. have topresumethattheprobatecourt’s judgment court] hearinginthiscase...[therefore]wewould is norecordofthetestimonypresentedat[probate Id., 660So.2dat585. The courtalsonoted“...there ing Co.,166 Ala. 482,52So. 86 (1909).” fact.’ Tobler v. Pioneer MiningandManufactur- to findfromtheevidencetruthofadisputed It istheprovinceofjuryandnotcourt such questionfromtheconsiderationofjury. matter howslight,thecourthasnorighttotake is anyevidencetendingtoprovethefact,no without interferencebythecourtand’...ifthere idence thejuryshouldbelefttofindfacts decisions thanwherethereisaconflictintheev- “No ruleoflawismorefirmlyestablishedbyour authorities.” decree ofthecircuitcourtonsame would havenoalternativebuttoaffirm the ciples thatwehavestated[above],and the decreeofprobatecourtonprin- 169 [(1954)],andcasestherecited. neous. Coxv. Logan,262 Ala. 11, 76So.2d disturbed onappealunlesspalpablyerro- is presumedtobecorrectandwillnot on theexaminationofwitnessesore tenus, 477 [(1919)]. McAlpine v. Carre, 203 Ala. 468,83So. v. Forrester’s Adm’rs, 40 Ala. 557[(1867)]; that thecourthadnojurisdiction.Forrester exceptions, unlessitappearsinthedecree made isnotsetforth,andtherenobillof reversed iftheevidenceuponwhichitis “We assumethatthecircuitcourtaffirmed “The findingoftheprobatecourt,based “A decreeoftheprobatecourtwillnotbe .Grantor denialof preliminary g. injunction 2d 560,563(Ala.1993). and SuppliesofGlencov. ALFA Mut. Ins.Co.,628So. 1119, 1122 (Ala.1985). Accord, CarpetInstallation Alabama BankofBaldwin County, N.A.,470So.2d fact willnotbedisturbedonappeal.”Coghlanv. First error ormanifestinjustice,thetrialcourt’s findingsof 2d 824,826(1953).Inthiscontext,“[a]bsentplain Com’rs ofCityMobile,258 Ala. 669,673,64So. (1936); CityofMobilev. Board ofWater &Sewer State BridgeCorp.,233 Ala. 12,17,169So.273,277 as otherjudgmentsanddecrees.Scottv. Alabama judgments anddecreesaretobereviewedonappeal ments.”); and Ala. R.Civ. P. 57,declaratory ments] maybereviewedasotherordersandjudg- and judgmentsunderthisarticle[DeclaratoryJudg- Ex parteFolsom,42So.3d732,736-737(2009). Pursuant to§6-6-232, Ala. Code1975,(“Allorders court’s decision.Id.” plies adenovostandardofreviewtothetrial of lawbasedonundisputedfacts,”thisCourtap- liminary injunctionisgroundedonlyinquestions that thetrialcourt’s issuance[ordenial]ofapre- 1176 (Ala.2008). Accordingly, “[t]otheextent “Holiday Isle,LLCv. Adkins, 12So.3d1173, Vegetal, 546U.S.418,428(2006).” zales v. OCentro EspiritaBeneficente Uniaodo liminary injunctionforabuseofdiscretion.’ Gon- novo anditsultimatedecisiontoissuethepre- “... ‘We reviewthe[trialcourt’s] legal rulingsde So. 2d585,587(Ala.1994)). (Ala. 2003)(quotingPerleyv. Tapscan, Inc.,646 “Ormco Corp.v. Johns,869So.2d1109, 1113 demonstrates: only whenthepartyseekinganinjunction “A preliminaryinjunctionshouldbeissued the [partyseekinginjunction].”’ sonably outweighthebenefitaccruingto junction] bytheinjunctionwouldnotunrea- on the[partyopposingpreliminaryin- his case;and(4)thatthehardshipimposed chance ofsuccessontheultimatemerits that the[party]hasatleastareasonable [party] hasnoadequateremedyatlaw;(3) would suffer irreparableinjury;(2)thatthe “‘“(1) thatwithouttheinjunction[party] .Miscellaneous other matters 4. .Declaratoryjudgments h. www.alabar.org 33 T h e Alabama Lawyer 34 T h e Alabama Lawyer Aug. 30,2019). sultants, LLC,Ms.1180642, at*7, __So.3d(Ala. 487 (2016); Accord, Ex parteLibertyNat.LifeIns.Co.,209So.3d486, Shield, 991So.2d701,705(Ala.2008). Wright TherapyEquip.,LLCv. BlueCross andBlue Cryer v. Corbett,814So.2d239,243(Ala.2001). So. 3d905,911 (Ala.2009). Woven Treasures, Inc.v. HudsonCapital,L.L.C.,46 January 2020 1127, 1131 (Ala.2009).” QBE Ins.Corp.v. Austin Co.,Inc.,23So.3d viewed thisCourtforabuse ofthatdiscretion. discretion ofthetrialcourt andisthereforere- missive interventioniscommitted tothebroad 630 So.2d441(Ala.1993). A motionforper- order. UniversalUnderwritersIns.Co.v. Anglen, tion forpermissiveinterventionisanappealable that discretion.Id.Likewise,thedenialofamo- not bedisturbedonappealabsentanabuseof the sounddiscretionoftrialcourtandwill ally arulingonmotiontointerveneiswithin Yarbrough, 156So.3d947(Ala.2014).Gener- is anappealableorder. Statev. Estateof law concerningstatutoryconstruction.” “[T]his Courtalsoreviewsdenovoquestionsof motion thetrialcourtexceededitsdiscretion.” a continuancebyaskingwhetherindenyingthe “We reviewatrialcourt’s denialof amotionfor and substantialharmtotheappellant.” reversed absentashowingofabusediscretion tion, anditsrulingonthosematterswillnotbe matters arewithinthetrialcourt’s sounddiscre- “The generalrulein Alabama thatdiscovery of thatdiscretion.” will notbedisturbedonappealabsentanabuse within thesounddiscretionoftrialjudgeand “[R]ulings ontheadmissibilityofevidenceare “The denialofamotiontointerveneasright .Admissionofevidence a. .Rulingsonmotionsfor leaveto e. Statutoryconstruction d. Denialofmotiontocontinuetrial c. Discoverymatters b. intervene date Ex parteTrinity Property Con- tations andquotationsomitted): So. 3d233,237-38(Ala. Civ. App. 2017)(internalci- 167748, at*3(Ala.Civ. App. Jan.11, 2019). J.S.S. v. D.P.S., No.2170865,__So.3d__,2019 WL (Ala. 2010). tergraph Corp.v. BentleySystems,Inc.,58So.3d63 disturbed unlessitisplainlyandpalpablywrong.In- weight asajury’s verdictand,therefore,isnot tobe Civ. App. 1984). erroneous rule.Fryv. Fry,451So.2d344-45(Ala. of fact,itsconclusionsarenotgovernedbytheclearly ness. E.F. v. H.P.K., supra,825So.2dat128. not entitledtotheore tenus nesses, itsjudgmentrejectingareferee’s findingsis any evidenceinthecaseanddidnotobservewit- the referee’s findings.Ifthetrialcourtdidnotreceive there isnopresumptionofcorrectnesswithregardto the trialcourtdoesnot H.P.K., 825So.2d125(Ala.Civ. App. 2001). Where v. L.W., 597So.2d703(Ala.Civ. App. 1992).E.F. v. in appellatereview. StateDept.ofHumanResources court adoptssuchfindings,thesamestandardapplies findings areclearlyerroneous. To theextenttrial cepts findingsofarefereeorspecialmasterunlessthe Magee v. Boyd,175So.3d79,138(Ala.2015). As tocriminalcontempt, seeKizalev., 254 Kizale A specialmaster’s reportisaccordedthesame If therefereeormastermakesnoexpressfindings Pursuant to Ala. R.Civ. P. 53(e)(2),atrialcourtac- leged contemnor’s guilt. The standardofreview quires proof beyondareasonabledoubt oftheal- 2002). v. C.G.,849So.2d200,205(Ala.Civ. App. or refusedtocomplywithacourtorder.” T.L.D. trial courtmustfindthatthepartywillfullyfailed Rule 70A(a)(2)(C)(ii)or(D), Ala. R.Civ. P., the 2010). “To holdapartyincontemptundereither Poh v. Poh,64So.3d49,61(Ala.Civ. App. its judgmentisnotsupportedbytheevidence.” the trialcourtactedoutsideitsdiscretionorthat not bereversedonappealabsentashowingthat and atrialcourt’s contemptdeterminationwill is solelywithinthediscretionoftrialcourt, Unlike civilcontempt,criminal contemptre- “The issuewhethertoholdapartyincontempt .Contemptcitations g. Reviewofrulingsbyspecial f. masters adopt thereferee’s findings, presumption ofcorrect- ernment offuturecases.”’). might betohavethesequestions decidedforthegov- or togiveadvisoryopinions, howeverconvenientit ered ‘todecidemootquestions, abstractpropositions, settled thatthejudiciaryof Alabama isnotempow- the futurearenotmattersincontroversy.” ...“Itiswell (Ala. 2006)(“Mattersthatmayornotoccur in Cf., Casev. Alabama StateBar,939So.2d881,884 So. 2d813,869-70(Ala.2002): sory opinions,asexplainedinExparteJames,836 moot questions,abstractpropositions,orgiveadvi- jurisdiction andthereforewillnotundertaketodecide Alabama’s appellatecourtshavelimited in original). So. 2d371,381(Ala.1999)(italicizedemphasis Alabama PowerCo.v. Citizens of Alabama, 740 formed. This Courthasstated: partite formofconstitutionalgovernmentwas the foundationalprinciplesuponwhichourtri- bedrock judicialprinciple. The questioninvolves before acourthasfromtimeimmemorialbeen actual controversybetweenpartiesthatappear troversy isnotanidledebate. That therebean able hypothesisofhisinnocence. such evidenceisinconsistentwithanyreason- able doubtthatthedefendantwasguilty, andthat trier ofthefacts,inconcludingbeyondareason- dence issufficient tojustifythetrialjudge,as reasonable doubt.. The testiswhethertheevi- offense, i.e.,thecontempt,wasprovedbeyonda contempt occurringinacivilcaseiswhetherthe in anappealfromadjudicationofcriminal The questionoftheexistenceacaseorcon- versies betweenadverseparties).” ing thatcourtsdecideonlyconcretecontro- 558, 561,226So.2d385,387(1969)(stat- e.g., Copelandv. JeffersonCounty,284 Ala. power intheUnifiedJudicialSystem);see, amend. 328,§6.01(vestingthejudicial ties andspecificfacts. Ala. Const.1901, and controversies involvingparticularpar- cial competencetodecidediscrete cases a limitedjudicialpowerthatentailsthespe- “[O]ur ConstitutionveststhisCourtwith .Review ofadministrative agency i. Mootquestions,abstract propo- h. determinations sitions, advisoryopinions plained thislimitedscopeofappellatereview: (Ala. Civ. App. 2009),thecourtofcivilappealsex- Planning &Dev. Agency, 27So.3d1267,1273-74 In Alacare HomeHealth Servs.v. Ala. StateHealth 41-22-20(k), whichprovides: nations incontestedcasesislimitedby Ala. Code§ B. Extraordinary writs Extraordinary B. Appellate reviewofadministrativeagencydetermi- App. 1994).” Planning Agency, 662So.2d265,268(Ala. Civ. Health Care Ctr., Inc.v. Alabama StateHealth able assomeotherinterpretation.Sylacauga able, eventhoughitmaynotappearasreason- own ruleorregulationmuststandifitisreason- 1989). Further, anagency’s interpretationofits Agency, 549So.2d973,975(Ala.Civ. App. care Auth. ofHuntsvillev. StateHealthPlanning minds maydiffer astothecorrectresult.Health- alized, theevidenceismeager, and reasonable true evenincaseswherethetestimonyisgener- 2d 821,823(Ala.Civ. App. 1993). This holds Statewide HealthCoordinating Council,628So. bama RenalStoneInst.,Inc.v. Alabama ment forthatoftheadministrativeagency. Ala- court northetrialmaysubstituteitsjudg- 176, 178(Ala.Civ. App. 1999).Neitherthis Agency v. BaptistHealthSys.,Inc.,766So.2d cialized areas.StateHealthPlanning&Dev. recognized expertiseindealingwiththesespe- [agency’s] discretion,inlightofthe[agency’s] in acontestedmatter]isleftprimarilytothe given pieceofevidencepresented[totheagency 1993). The weightorimportanceassignedtoany Council, 628So.2d821,823(Ala.Civ. App. Inc. v. Alabama StatewideHealthCo-ordinating with applicablelaw. AlabamaRenalStoneInst., trary andcapriciousornotmadeincompliance that decisionmustbeaffirmed, unlessitisarbi- agency lendsgreatweighttoitsdecision,and trative agency, thespecialcompetenceof cept asotherwiseauthorizedbystatute. weight oftheevidenceonquestionsfact,ex- tute itsjudgmentforthatoftheagencyas just andreasonablethecourtshallnotsubsti- the agencyordershallbetakenasprimafacie Except wherejudicialreviewisbytrialdenovo, .Certiorari, generally: 1. “In reviewingthedecisionofastateadminis- www.alabar.org 35 T h e Alabama Lawyer 36 T h e Alabama Lawyer (Ala. 2003). Ex parteOcwenFed.Bank, FSB, Corp., 672So.2d497,499(Ala.1995). 2d 478,480(Ala.2003),quotingExparteIntegon quoting ExparteLibertyNat’lLifeIns.Co.,888So. Specialty Ins.Co.,31So.3d661,663(Ala.2009), 199, 203(Ala.2017),quotingExparteProgressive Ex parte Allstate Prop. andCas.Ins.Co.,237So.3d 308 (Ala.2005). cord, ExparteExxonMobilCorp.,926So.2d303, Ex parteFolsom,42So.3d732,736(Ala.2009); Ac- January 2020 voked jurisdictionofthecourt.” of anotheradequateremedy;and(4)properlyin- accompanied byarefusaltodoso;(3)thelack imperative dutyupontherespondenttoperform, right inthepetitionertoordersought;(2)an to beissuedonlywherethereis(1)aclearlegal “‘“Mandamus isadrasticandextraordinarywrit, Corp., 684So.2d132,135(Ala.1996).” Court ofCivil Appeals.’ ExparteToyota Motor standard ofreviewthatwasapplicableinthe late court. Therefore, wemustapplydenovothe the legalconclusionsofintermediateappel- Court ‘accordsnopresumptionofcorrectnessto Appeals onapetitionforwritofcertiorari,this “In reviewingadecisionoftheCourtCivil .Petitionsfor writsofmandamus–general 2. the orderedproduction of‘patentlyirrele- volving (a)the disregardofaprivilege, (b) mandamus onlythosediscovery mattersin- conditions.’” prove theexistenceofeachthese petitioner hasanaffirmative burdento adequate remedybyordinaryappeal. The where theaggrievedpartydoesnothavean court clearlyexceededitsdiscretion,and(2) (1) wherethereisashowingthatthetrial trial court’s rulingonadiscoveryissueonly cordingly, mandamus willissuetoreversea Rice, exceeded itsdiscretion.HomeIns.Co.v. ery issueunlessthetrialcourthasclearly not reverseatrialcourt’s rulingonadiscov- court’s sounddiscretion,andthisCourtwill “Moreover, thisCourtwillreviewby “‘Discovery mattersarewithinthetrial .Petition for writ of mandamus–discovery a. 585 So.2d859,862(Ala.1991). Ac- rulings 872 So.2d810,813 citing Swannerv. UnitedStates,406F.2d 716(5 Union Assoc. Inc.,362So.2d228,232(Ala.1978), turn, Assured InvestorsLifeIns.Co.v. National Inc., 404So.2d654,655(Ala.1981),quoting,in (Ala. 2000),quotingExparteMarsh&McLennan, Ex parteHortonHomes,Inc.,774So.2d536,539 late reviewofdiscoveryordersisdisfavored: course, itiswellestablishedthatinterlocutoryappel- Ocwen, Federal Bank,FSB,statedalsothat: Group, Inc.,987So.2d540,547(Ala.2007).Ocwen 504 (Ala.2013),quotingExparteMeadowbrook Ins. Ex parteMobileGasServiceCorp.,123So.3d499, be clearand certain withnoreasonable basisfor “[T]he right sought tobeenforcedby mandamusmust will notissuewherethe right inquestionisdoubtful. tects, 574So.2d53,54(Ala. Civ. App. 1990)). A writ (quoting ExparteStateBd.forRegistration of Archi- parte Harper,934So.2d1045,1048 (Ala. 2006) bound bylawtodowhat thepetitionerrequests.”Ex ironclad innature,showingthatthetrialcourtis (Ala. 1987).“[T]heremustbecredibleallegations, lar result.”ExparteRudolph,515So.2d704,706 movant hasaclearandindisputablerighttoparticu- “[A] writofmandamuswillnotbeissuedunless the Ex parteCotton,638So.2d870,872(Ala.1994)). Personnel Bd.,831So.2d1,5(Ala.2002)(quoting an arbitraryorcapriciousmanner.” ExparteDothan the trialcourtabuseditsdiscretionbyexercising itin and shouldbeissuedonlyuponaclearshowingthat Cir. 1969)). Mandamus is“adrasticandextraordinaryremedy to findabuseofdiscretioninthesematters.’” prayed fordiscovery. Furthermore,itisunusual would, inthefirstinstance,havepermitted every discoveryorder. cannot afford immediatemandamusreviewof petitioner additionalexpense;ourjudicialsystem view ofapetitioner’s grievanceorimposeonthe that proceduremaydelayanappellatecourt’s re- adequate remedy, notwithstandingthefactthat Generally, anappealofadiscoveryorderis “‘An appellatecourtmaynotdecidewhetherit issue. 872So.2dat813-14....” ficient forappellatereviewofthediscovery party theopportunitytomakearecordsuf- tion ordefense,’ and(d)ordersdenyinga effectively eviscerating‘aparty’s entireac- vant orduplicativedocuments,’ (c)orders 872 So.2dat813(citationsomitted).Of th 98, 102(Ala.1981))). (quoting ExparteDorseyTrailers, Inc.,397So.2d Goolsby v. Green, 431So.2d955,958(Ala.1983) Prods. Co.,915So.2d34,41(Ala.2005)(quoting controversy about the right to relief.” view ofatrialcourt’ srulingonthequestionof Inc., 798So.2d656,660(Ala.2001).’ [T]here- of discretion.‘ExpartePalmHarborHomes, clear, legalrighttothereliefsought,oranabuse which requiresthepetitionertodemonstratea writ ofmandamusisanextraordinaryremedy, CTB, Inc.,782So.2d188,190(Ala.2000).’ [A] 806 So.2d370,372(Ala.2001);seeExparte to dismiss.‘ExparteD.M.WhiteConstr. Co., selection clausewhenitispresentedinamotion denying enforcementofan“outbound”forum- proper vehicleforobtainingreviewofanorder “‘[A] petitionforawritofmandamusisthe .Mandamus–forum selectionclause b. Ex parte Flexible supported onanyvalidlegalground.’”Smithv. this Court‘willaffirm thejudgmentappealedfrom if court’s rulingwithanargument notraisedbelow, for (Ala. 2013). Ex parteRiverfront, LLC,129So.3d1008,1011 886 So.2d58,62(Ala.2003)). 855 (Ala.2006)(quotingExparteLeasecommCorp., Ex parteBadToys Holdings,Inc.,958So.2d852, Additionally, “[a]nappelleecandefendthetrial voked jurisdictionofthecourt.’” of anotheradequateremedy;and(4)properlyin- accompanied byarefusaltodoso;(3)thelack imperative dutyupontherespondenttoperform, right inthepetitionertoordersought;(2)an to beissuedonlywherethereis(1)aclearlegal “‘Mandamus isadrasticandextraordinarywrit, str. Co.,806So.2dat372.”’ abuse ofdiscretion.‘ExparteD.M.WhiteCon- enforcing aforum-selectionclauseisforan www.alabar.org 37 T h e Alabama Lawyer 38 T h e Alabama Lawyer Endnotes s 28(a)(8). conform withtherequirementsof Ala. R. App. P. Conclusion 186, 190(Ala.2017)(citationsomitted). Wright v. CleburneCo.Hosp.Bd.,Inc.,255So.3d 1265 (Ala.1983)). 1988) (quotingTucker v. Nichols Equifax Services,Inc.,537So.2d463,465(Ala. January 2020 1. Because ofnumerous Because deficienciesintheappellant’s brief, imposeda$1,500 the court 1. We hopethisarticlehelpsyourappellatebriefs Rule 5, Ala. R. App. P., 153 So.3d764,767(Ala.2014),anappealunder merous respects, with nothingto leavingreview thiscourt onappeal.”). brief substantially failsto comply withtherequirements ofRule28,Ala. R.App. P. innu- party. Ms. *9.Compare McAlileyv. McAliley , 638So. 2d10(Ala. 1994)(“The husband’s was that to andinstructed thesanction bepaidby theparty’ssanction attorney, notthe “As thisCourtstatedinMorrow v. Caldwell, novo.’” correctness, andthisCourt’s reviewisde question oflawcarriesnopresumption has held:‘““‘[O]nappeal,therulingona ‘presents apurequestionoflaw. This Court .Interlocutoryappealspursuantto Ala. c. R. App. P. 5 ,431 So.2d1263, David G. Wirtes, Jr. Bruce J.McKee .Note that Ala. Code §6-8-101provides that theissueofimproper venue alsobe can 3. However, note that theCommittee Comments to Rule4(a)(3)warn that thisRuledoesnot 2. raised onappealfrom thefinaljudgment. 2007). Lawyer 302,305-06(July generally,See Ed R.Haden,Preventing Waiver ofArguments, 68Alabama onAppeal sues ofjuror duringdeliberations misconduct mustberaised by post-judgment motion. to to theverdict. rule onobjections hasnotyet Similarly, hadanopportunity trial court is- the evidence. Obviously, nooneknows what theverdict willbeuntil itisreturned, sothe thatsues like theverdict to theamount iscontrary theweight ofdamagesorassertions of preserve appellate review. Thus, post-judgment motionsmustbefiledinorder to raise is- not ruled ontheissue, apost-judgment motionmustbefiledonthat issueinorder to to pass.” hadnoopportunity oruponwhichthetrialcourt trial court has Ifthetrialcourt “extend theright to raise for thefirsttimeonappealnewmatter notpresented to the LLC inMobile. & NewtoninBirmingham. Dave Wirtes is a member of Cunningham Bounds Bruce McKee is a partner at Hare, Wynn,at partner a Newell is McKee Bruce

A Primer for Navigating Potential Appellate Issues in Child Custody Cases By Randall W. Nichols My hope is that this article will chart an appellate-minded course for the journey that is child custody Child custody cases rarely litigation. sail along smoothly. The trial lawyer can become so en- Pre-Trial Mandamus gulfed in what is at stake–impor- There are several issues which tant issues involving a child and could prompt a petition for writ of families–that he finds it difficult to mandamus to the trial court. Among focus the other stages of the case. If them are recusal,1 pendente lite or- he wins, is the case ready to with- ders,2 venue,3 discovery,4 evidence,5 stand an appellate attack? Should and jurisdiction (personal6 or subject he get a disappointing result, is the matter7). The trial court’s rulings on case postured for an appellate at- these issues are often interlocutory tack? Or–and often forgotten–is orders which prevent review by ap- there a need for a pre-trial appeal? peal. The only real option is a pre- In fact, the appellate side of these trial petition for writ of mandamus, cases has become so complex that pursuant to Rule 21, Ala. R. App. P. many trial lawyers use or retain ap- It should be noted that mandamus pellate counsel to consult or to par- is an extraordinary remedy which Alabama Lawyer ticipate in the pre-trial or trial is not intended to be a substitute for 8 T h e process. appeal. 40 January 2020 ferent county for three consecutive with the child (or children) in a dif- primary custody who has lived However, a custodial parent with which entered the previous order. order is generally in the court cases. Venue for modification of an to child custody modification ment month statutory residency require- live in different states, the six- plicated. However, if the parents interstate considerations are not im- for a substantial length of time and the child are residents of Alabama Act (UCCJEA). Custody JurisdictionEnforcement vorce lawandtheUniformChild proper forumunder Alabama di- mine whether Alabama isthe risdiction, onemustfirstdeter- venting the necessity of a re-trial. to trial can save resources by pre- ever, resolution of some issues prior be raisedonappeal. and, insomecases,theissuecan relief sought. gant mustshowaclearrighttothe order. validly effect or enforce a custody diction over a party in order to states which require personal juris- Alabama is also in the minority of the trial court to defer jurisdiction. motion for a stay, or a motion for may prompt a motion to dismiss, a garding which state has jurisdiction to resolve the dispute. A dispute re- bama is the correct state in which UCCJEA determine whether Ala- merits oftheissuepresented, is notabindingdecisiononthe on apetitionforwritofmandamus damus review. considered appropriate for man- rulings on these issues have been A special venue provision applies In most cases, both parties and In lookingatsubjectmatterju- If mandamus is appropriate, how- In ordertoobtainthewrit,aliti- 13 14 and/or the provisions of the A trial court’s preliminary 9 15 The lackofsuccess 12 11 10 to the county of their residence. petition filed by an opposing party tory) to file a petition or transfer a years may choose (it is not manda- concepts. of reviewarenotinterchangeable the burdenofproofandscope Burden ofProof cussed below in more detail. tions for writ of certiorari are dis- Applications for rehearing and peti- of Civil Appeals, damus begin at the Alabama Court not met. Rule 65(b), Ala. R. Civ. P., were cause the notice requirements of a pendente lite custody order be- Civil Appeals reversed the entry of example, the Alabama Court of without an evidentiary hearing. For entered or if an order is issued ular concern if an ex parte order is for an evidentiary hearing. and did not provide an opportunity from the child’s guardian ad litem the trial court heard only argument pendente lite custody order because due process grounds, overturned a bama Court of Civil Appeals, on by petition for writ of certiorari. that event, review must be sought the court of civil appeals, but, in an application for rehearing with cases. proof standards cover most custody concepts isvital. court. Understandingeach ofthese the appellatecourtgives thetrial establishes thedegreeof deference in yourfavor. The scopeofreview in orderforthetrialcourttorule what levelofproofyoumustmeet within 14 days. with the Alabama Supreme Court ing party may file a similar petition It isimportanttorecognizethat Though petitions for writ of man- Pendente lite orders are of partic- Fortunately, only two burden-of- 17 22 In another case, the Ala- The burdenofproofis 20 19 A party may file the non-prevail- 18 16 21 McLendon standard. This isoftenreferredtoasthe caused byuprootingthechild. inherently disruptiveeffects proposed changewilloutweighthe that thepositivebenefitsof the bestinterestofchildsuch custody willmateriallypromote tion mustshowthatachangein that theparentseekingmodifica- motion” standard,whichprovides other fallunderthe“materialpro- ical custodytooneparentorthe tody ordersgrantingprimaryphys- Couch standard. This isoftenreferredtoasthe tionship Protection Act the Alabama Parent-Child Rela- to alocationoutsideof Alabama, than 60mileswithin Alabama or child andwantstorelocate more child. to beawardedcustodyofthe dence thataparentisunfitinorder ing byclearandconvincingevi- third partyhastheburdenofprov- to gaincustodyfromaparent,the rights. When athirdpartyattempts ing theterminationofparental from aparent,andtocasesinvolv- by athirdpartytoobtaincustody burdens ofproofapplytoattempts with arebuttable presumptionthat lishes shifting burdens.Itbegins equal periodsofcustodialtime. cal custodywithapproximately fied grantsthepartiesjointphysi- cases wheretheorderbeingmodi- tablished, andinmodification cases inwhichdependencyises- initial custodydeterminations,in the child”standard.Itappliesin ing factorstotakeintoaccount. have amultiplicityofcomplicat- convincing evidence,butthey must provetheircasebyclearand minate parentalrights,thatparty Cases whichinvolvepriorcus- When someonehascustodyofa Different standardsanddifferent The firstisthe“bestinterestof 26 When apartyseekstoter- 24 25 28 www.alabar.org estab- 23 27 41 T h e Alabama Lawyer 42 T h e Alabama Lawyer not inthechild’s bestinterest. parent toprovethatthemoveis the burdenshiftstoresponding overcome thatpresumption,then tion. Ifthatparentisableto cate toovercomethispresump- on theparentwhodesirestorelo- terest ofachild,andtheburdenis the relocationisnotinbestin- Custody decisions baseduponore sumption of correctness onappeal. the trialcourtisentitled to apre- the resolutionofthatdispute by there isadisputeinoral testimony, under theore tenusrule:when ofReview Scope governs the matter before the court. garding which burden of proof ing by the judge prior to trial re- might be advisable to obtain a rul- applicable standard is in doubt, it McLendon in cases governed by ences between the burdens of proof court’s custody order. The differ- fending or challenging the trial hance the chances of success in de- court accordingly can greatly en- ing your presentation to the trial burden of proof applies and direct- by thetrialcourt. demonstrate anabuseofdiscretion only whentheappellant can testimony are generally reversed Custody decisionsbaseduponore tenus January 2020 In general,custodycases fall Becoming familiar with which are stark. In fact, if the Couch and 29 between twofitparents: where thetrialcourtisdeciding appeal, especiallyinCouchcases extremely difficult toreverseon the trialcourt’s custodydecision custody context,thisrulemakes cretion bythetrialcourt.In can demonstrateanabuseofdis- versed onlywhentheappellant tenus the same. our decision would likely be mother custody of the child, had the trial court awarded the given our standard of review, the child. We would note that, both attested to their love for fitness to raise the child, and presented testimony as to their tional needs. Both parties tional, financial and educa- provided for the child’s emo- tend to show that both parties the evidence and testimony imosity between the parents, While the record indicated an- award of custody to the father. ample evidence to support an change schools, we must find ther would require the child to time of the trial, with the fa- child, who was seven at the placing primary custody of the the mother’s argument that Giving due consideration to testimony aregenerallyre- 30 Civ. App. 2002), “when the W.T.M the main opinion in App. 1999). Thus, as noted in 753 So.2d 513, 514 (Ala. Civ. s trial courts to apply the remanded the cases for those reversed those judgments and have been applied, we have gent standard where the less strin- more stringent petitions after applying the courts have denied custody 1995). However, where trial So.2d 843 (Ala. Civ. App. 1997), and So.2d 191 (Ala. Civ. App. less. trial courts’ errors were harm- review, concluding that the firmed the judgments under been applied, we have af- Couch was applied, but where the where the granting a custody petition in appeals from a judgment should have been applied, and the dard was applied, but where petition where the judgment denying a custody review. In appeals from a two burdens is crucial to our [The] distinction between the the wrongstandard? when thetrialcourtapplies What happensonappeal tandard. McLendon Couch e Lawley v. ByrdSee ., 851 So.2d 55 (Ala. standard should have See Davis v. Davis McLendon I.M. v. J.P.F. standard should standard McLendon Couch Ex parte standard , 668 Couch , 689 stan- , trial court uses an improper, judgment motion pursuant to Rule higher standard to deny relief Sufficiency of the 59, followed by the filing of the no- to a party requesting a modifi- Evidence tice of appeal, docketing statement, cation of a prior custody and transcript purchase order as re- order, the appellate court will In Alabama, custody litigation is quired by our appellate courts. Be- not review the evidence under tried before a trial judge without a tween those two actions, however, the correct lower standard and jury. When the trial court enters an you have to decide whether to file a direct the award of custody,” order and does not make a specific motion to stay the judgment. but will reverse the judgment finding of facts, unless trial coun- Prior to taking any post-judg- and remand the cause “for the sel files a post-judgment motion ment action, however, the first in- trial court to make a custody contesting the sufficiency of the quiry is whether you have a final determination, applying the evidence, that issue is likely judgment for appellate purposes. 35 correct standard.”31 waived on appeal. Only a final order will support an appeal. Trial counsel should confirm Constitutional Issues that all issues raised by either party Trial and Post-Judgment Constitutional issues must gener- in your proceeding have been ruled ally be raised at trial in order to upon by the trial court. Many, in- Preservation of Error allow appellate review, and the best cluding the author, have been in- The general rule is that an appel- practice is to raise them by affirma- volved in appellate cases which late court will not review issues tive defense or motion. Any consti- were unexpectedly dismissed and raised for the first time on ap- tutional challenge to an Alabama remanded to the trial court to rule on 32 peal. The best, and perhaps statute must be served on the Ala- outstanding issues. Among the safest, practice is to file a post- bama Attorney General.36 The attor- many such circumstances resulting judgment motion setting forth any ney general then has a right to in remand have been failure to rule 37 and all issues one intends to ap- participate in the case, but often on contempt issues, failure to 38 peal. However, some issues will waives it. Similarly, Rule 44, Ala. R. award child support, and failure to 39 require proactive action at trial App. P., requires that where the va- resolve property division issues. prior to the filing of a motion pur- lidity of a statute, executive or ad- suant to Rule 59, Ala. R. Civ. P. ministrative order, municipal Rule 59 ordinance, franchise, or written di- A post-judgment motion must be rective of any governmental officer Evidentiary Issues filed on or before the 30th day after is in question, the appealing party Preservation of error regarding entry of the custody order by a cir- must serve a copy of their brief evidentiary matters is generally cuit court, and on or before the upon the attorney general, city attor- made by objection at the time the 14th day in the juvenile court. ney, or chief legal officer of the gov- evidence is offered. Where the trial Rule 4(a)(3), Ala. R. App. P., ernmental body whose order is at court has made clear its intention to provides that the time for filing a issue. Compliance with Rule 44 is overrule objections with regard to a notice of appeal is suspended by not necessarily fatal, as the appellate particular line of questioning, a the filing of a timely Rule 59 post- court may, by special order, with- “standing objection” or “continuing judgment motion and that the time hold ruling until the appropriate objection” can be requested.33 for appeal begins to run upon the party is given notice and opportu- Where evidentiary issues can be trial court’s ruling granting or nity to respond. It is wise, however, anticipated prior to trial, a motion denying a post-judgment motion to provide notice and not rely on the may be appropriate to ob- (although the granting of relief in limine appellate court to cure the omission. tain a ruling regarding the admissi- which substantially changes the bility of evidence or testimony. Of order may result in the ability of utmost importance is to remember The Appeal the aggrieved party to file a subse- to make an offer of proof for the After you have tried the case and quent post-judgment motion chal- record should the trial court refuse secured the judgment, the analysis lenging the new order). to admit evidence or testimony.34 begins to determine whether to ap- Under Rule 59.1, Ala. R. Civ. P., The failure to do so can result in a peal. As alluded to, the first step should the trial court fail to rule on Alabama Lawyer

failure to preserve error. will almost always be to file a post- a post-judgment motion within 90 T h e 43 www.alabar.org days (circuit court) or 14 days (ju- bond. A bond has, for example, venile court), the post-judgment been required to assure compli- Petition for Writ of motion is deemed denied as of that ance with visitation provisions Certiorari/Application date, thus reinstating the running pending appeal.43 of the time within which to file an The Alabama Court of Civil Ap- For Rehearing appeal. Under Rule 4(a)(5), Ala. peals recently issued guidance as Petitions for writ of certiorari are R. App. P., a notice of appeal filed to the factors it will consider in governed by Rule 39, Ala. R. App. P. before the disposition of all post- deciding whether to stay operation Certiorari will be granted only in lim- judgment motions is held in of a custody order pending appeal: ited circumstances, which are enu- abeyance and becomes effective “(1) [w]hether the movant has merated in Rule 39 (a)(1)(A)-(E). A upon disposition. made a showing of likelihood of petition for writ of certiorari must be success on the merits; (2) whether filed within 14 days of the issuance of Notice of Appeal/ the movant has made a showing of the Alabama Court of Civil Appeals’ irreparable injury if the stay is not opinion unless an application for re- Docketing Statement/ granted; (3) whether the granting of hearing has been filed. In that event, the stay would substantially harm the petition for writ of certiorari must Transcript Purchase the other parties; and (4) whether be filed within 14 days of the granting the ‘best interests’ of the child or the overruling of the application Order 44 would be served by the stay.” for rehearing. No brief is filed with The basic documents required to the petition. In the event the writ is perfect an appeal are the notice of Rehearing and granted, the petitioner’s brief is due to appeal, docketing statement, and be filed within 14 days of the grant, transcript purchase order. These Certiorari Review with the respondent’s brief due 14 forms are straightforward and are Once an opinion or no opinion days after the filing of the petitioner’s available online from the Alabama 40 affirmance order has been issued brief. The petitioner may file a reply Judicial System website. These brief within 14 days of the filing of forms may now be filed online via by the Alabama Court of Civil Ap- 41 peals, either party may apply for the respondent’s brief. No application the AlaFile system. The timely fil- for rehearing is authorized in the ing of a notice of appeal is jurisdic- rehearing from that court. Alterna- tively, or additionally, either party supreme court if the petition is de- tional, and an untimely filing will nied, quashed or stricken. Should the result in dismissal of the appeal.42 may petition the Alabama Supreme Court for a writ of certiorari. While supreme court issue an opinion upon prior practice made an application certiorari review, an application for Motion to Stay the for rehearing a prerequisite to peti- rehearing may be filed with the tioning for certiorari review, such supreme court pursuant to Rule 40. Custody Order is not now the case. Rule 8 (b), Ala. R. App. P., states that a request for a stay should be Conclusion sought from the trial court. A mo- Application for It is hoped that this primer will tion to the appellate court should Rehearing/Court of provide an overview of the inter- show that application to the trial play between trials and appeals. It court is impracticable or has been Civil Appeals is not intended to be exhaustive, denied. If the trial court has given just a point of beginning. Applications for rehearing are One invaluable bit of advice I reasons for its actions, those governed by Rule 40, Ala. R. App. should be set forth. The motion received early in my career was to P. The application and supporting The value of hav- should detail the reasons for the re- read the rules! brief must be filed within 14 days ing a working knowledge of the lief requested and be supported by of the date of the Alabama Court affidavits or other sworn state- rules of civil procedure and the of Civil Appeals’ opinion. No brief rules of appellate procedure can- ments in support of the application. opposing the application is re- Rule 8(c) authorizes the trial not be underestimated. quired, but may be filed within 14 Godspeed on your custody liti- Alabamacourt Lawyer to condition the granting of a days of the filing of the applica- stay upon posting a sufficient gation journeys. s

T h e tion and supporting brief. 44 January 2020 The basic documents required to perfect an appeal are the notice of appeal, docketing statement, and transcript purchase order.

Endnotes 1. S.J.R. v. F.M.R., 984 So. 2d 468 (Ala. Civ. App. 2007). 2. Amberson v. Long, 998 So. 2d 1078 (Ala. Civ. App. 2008). 3. Ex parte Brandon, 113 So. 3d 638 (Ala. 2012); Ex parte Hester, 682 So. 2d 6 (Ala. 1996).

4. Ex parte Hartley, 50 So. 3d 1102 (Ala. Civ. App. 2010) in domestic relations cases, including annulment, (writ issued to overturn protective order regarding dis- divorce, adoption, and child custody cases and all covery of information pertaining to husband’s law firm). extraordinary writs arising from appeals in said cases.” 38. Anderson v. Anderson, 899 So. 2d 1008 (Ala. Civ. App. 2004). 5. Ex parte Johnson, 219 So. 3d 655 (Ala. Civ. App. 2016) 20. Rule 21(e)(1)-(2), Ala. R. App. P. 39. Sims v. Sims, 38 So. 3d 71 (Ala. Civ. App. 2009). (writ issued directing quashing of subpoena requiring release of psychological records of children). 21. Rule 21(e)(3), Ala. R. App. P. 40. http://eforms.alacourt.gov/Appellate%20Forms/Forms/ AllItems.aspx. 6. Ex parte Diefenbach, 64 So. 3d 1091 (Ala. Civ. App. 2010). 22. See, e.g., J.C. v. State Dept. of Human Resources, 986 So. 2d 1172, 1184-85 (Ala. Civ. App. 2007) (discussing difference 41. For a detailed discussion of the new appellate electronic 7. Ex parte Ferguson, 15 So. 3d 520 (Ala. Civ. App. 2010). between burden of proof and scope of appellate review). filing rules, see Stewart, Sarah and Haden, Ed, “Authoriz- 8. Ex parte Weaver, 781 So. 2d 944 (Ala. 2000). 23. The custody division of time and authority which will ing Electronic Filing of the Notice of Appeal,” The Ala- bama Lawyer, Vol. 80, No. 5, pp. 375-77 (Sept. 2019). 9. Ex parte Robbins, 276 So. 3d 232 (Ala. Civ. App. 2018). place a modification into the “best interest of the child standard” is, unfortunately, not completely clear. Compare 42. The author can point to but one case which excused the 10. Ex parte Shelton, 814 So. 2d 251 (Ala. 2001). Rehfeld v. Roth, 885 So. 2d 791 (Ala. Civ. App. 2004) (fa- late filing of a notice of appeal for equitable reasons. ther’s 50 extra days of physical custody was not a prefer- 11. R.E. Grills, Inc. v. Davison, 641 So. 2d 225 (Ala. 1994); See Ex parte G.L.C., ___ So. 3d ___, 2018 WL 5307629 ence under McLendon where decree did not name a Osborne v. Osborne, 216 So. 3d 1237 (2016). (Ala. 2018). physical custodian) with Whitehead v. Whitehead, 214 So. 12. Ala. Code §§ 30-3B-101 to -405 (1975). 3d (Ala. Civ. App. 2016) (mother having 150 days of custo- 43. Caldwell v. Fisk, 523 So. 2d 464 (Ala. Civ. App. 1988). dial time did not trigger the use of the Couch standard 13. Id. at § 30-2-5. 44. Johnson v. Johnson, 262 So. 3d 1229, 1232 (Ala. Civ. App. where the decree provided the father would have “primary 2018), citing Ex parte Krukenberg, 252 So. 3d 676, 678 n. 14. Coleman v. Coleman, 864 So. 2d 371 (Ala. Civ. App. placement” and the mother “secondary placement”). 1 (Ala. Civ. App. 2017)(discussing the factors considered 2003) (divorce matter); Ex parte J.B., 223 So. 3d 251 24. Ex parte Couch, 521 So. 2d 987 (Ala. 1988). by this court when considering a motion to stay). (Ala. Civ. App. 2016) (UCCJEA matter); Ex parte Diefen- bach, 64 So. 3d 1091 (Ala. Civ. App. 2010) (discussing 25. Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). Alabama’s variance from the Model Uniform UCCJEA 26. Ex parte Terry, 494 So. 2d 628 (Ala. 1986). with regard to personal jurisdiction). 27. Ala. Code § 12-15-319; Ex parte Beasley, 564 So. 2d 950 15. Review by petition for writ of mandamus may be the (Ala. 1990). Randall W. Nichols most efficient method for raising a challenge to subject Randy Nichols is a senior matter jurisdiction. Nevertheless, it should be noted 28. Id. at §§ 30-3-160 through -169.10. partner at Massey, Stotser & that subject matter jurisdiction may be raised at any 29. Id. at § 30-3-169.4. Nichols PC in Birmingham. time, including by the appellate court on its own mo- He is the former chair of the tion. See, e.g., Weith v. Weith, 263 So. 3d 715 (Ala. Civ. 30. Reuter v. Neese, 586 So. 2d 232, 234-35 (Ala. Civ. App. Alabama State Bar Family App. 2018). 1991). Law Section and a Fellow 16. § 30-3-5, Ala. Code, 1975. One should note that the 31. Rehfeld v. Roth, 885 So. 2d 791 (Ala. Civ. App. 2004). and current president of the analysis as to the choice of venue is not as straightfor- Alabama Chapter of the American Acad- ward in cases involving joint physical custody and split 32. McConico v. Patterson, 204 So. 3d 409, 2016 Ala. Civ. custody. Ex parte Rose, 101 So. 3d 777 (Ala. Civ. App. App. LEXIS 61. emy of Matrimonial Lawyers. He has ap- peared as appellate counsel in more than 2012)(joint physical custody); Ex parte Brandon, 113 So. 33. Blume v. Durrett, 703 So. 2d 986 (Ala. Civ. App. 1997). 3d 638 (Ala. 2012)(split custody). 100 published opinions. 34. Ex parte Harris, 461 So. 2d 1332 (Ala. 1984). 17. Ex parte Hutson, 201 So. 3d 570 (Ala. Civ. App. 2016). 35. Batchelor v. Batchelor, 188 So. 3d 704 (Ala. Civ. App. 2015). 18. Ex parte Dean, 137 So. 3d 341 (Ala. Civ. App. 2013). 36. Ala. Code § 6-6-227. 19. § 12-3-10 provides that the court of civil appeals shall Alabama Lawyer have exclusive appellate jurisdiction of “. . . all appeals 37. Decker v. Decker, 984 So. 2d 1216 (Ala. Civ. App. 2007). T h e 45 www.alabar.org 46 T h e Alabama Lawyer January 2020 United StatesSupremeCourt An Alabama Lawyerinthe of Sirote Permutt. hired Joey Jones and Julian Motes Court of Baldwin County. Terminix Terminix for them in the Circuit roof decking. I filed suit against in the floors, walls, ceiling, and the house and found active termites Dobsons commenced remodeling health. Shortly after closing, the to closing and gave it a clean bill of Terminix inspected the house prior came with a Terminix termite bond. a house in Fairhope. The house about thecaseatfirst. The Case Mike and Wanda Dobson bought There wasnothingexceptional By Allan R.Chason By Allan volved Alabama buyersandsellers pointed tothefactthat casein- emptive Federal Arbitration Act. I merce sufficient toinvoke thepre- did not“involve”interstate com- their claimbecausethetransaction could notberequiredtoarbitrate dently argued thattheDobsons arbitration agreements,Iconfi- forcement ofpre-dispute abama’s statutebarringtheen- arbitration. soon filedamotiontostayfor case. To mydismay, Terminix Terminix hadotherplansforthe tion fortrial,butunknowntome, After aquickrefresheron Al- I commencedtheusualprepara- Court heard only about 50 of them. rari were filed annually with the Supreme Court. The solace in the fact that some 5,000 petitions for certio- brief in opposition to certiorari. At that point, I took The Public Citizen, in February I drafted and filed our So, slightly above my pay grade, but with the help of practitioners before the Supreme Court was $500,000. Dobson now argued 32casesintheSupremeCourtandlists had servedas Assistant SolicitorGeneral.Hehas had clerkedforChiefJustice William Rehnquist.He Washington regularbeforetheSupremeCourtwho by anewmemberoftheirteam,H.BartowFarr, III,a fice inBayMinette. The Terminix petitionwasfiled Johnny, andIwerethenatwo-manfirm,withanof- understood thatIneededtheirhelp.Mybrother, vice andsupportinopposingthe Terminix petition.I sumer rights. They wouldprovidemebackground ad- “underdog” clientsprobonoonissuesaffecting con- The callerexplainedthat The PublicCitizenassists terstate commerceundertheFederal Arbitration Act? Court raisingthesameissue:whatfacts“involve”in- petitions forcertiorarithenpendingintheSupreme Nader. The callerexplainedthattherewerefourother interest lawfirmin Washington founded byRalph fully-orchestrated Terminix plan. became apparentthatwewerecaughtupinacare- the UnitedStatesSupremeCourt. A fewdayslater, it 1993, Terminix filedapetitionforwritofcertiorariin Certiorari fun hadjustbegun. thought toborderonfrivolous. As itturnedout,the curious aboutourproceduraldetouronanissueI Judge ReidandIresumedmypreparationfortrial, in the Alabama SupremeCourt. That courtaffirmed debate. Jim Reiddeniedthe Terminix motionwithoutmuch treat thetermiteswasmadein Arkansas. CircuitJudge was anationalcompanyandthatthechemicalusedto of an Alabama house. Terminix repliedthat Terminix But, on March 21, I found out I had won the lottery. I was later told that the going fee among regular I receivedacallfrom The PublicCitizen,apublic I wasevenmoreperplexedwhenonDecember23, I wasagainsurprisedwhen Terminix soughtreview as oneofhistop10arguments. set toclerkforusthatsummer. McDill, whowasthenastudentatCumberlandand close friend,andconfidant,EdHines,inBrewton. erous financialsupportforoureffort. the teamwithouthesitationandpromptlyraisedgen- Kenny Hooks,inBirmingham.signedonto my lawschoolfriendandfull-timeplaintiff’s lawyer, of thefull-timeplaintiff’s barwouldbe.So,Icalled likely beimpactedbyarbitrationthewaypractice were notmybreadandbutter. Mypracticewould not commercial litigator, andthatplaintiff’s damagecases to befamous?” They chosefame. asked: “Doyouwanttotryyourcase,ordo Wanda Dobsonandaftergivingthemthenews,I the arbitrationagreement.SoIcalledMikeand court ifIdismissedtheclaimswhichweresubjectto were arbitrableandthatwecouldreturntothecircuit First, Iwasfairlysurethatlessthanallofourclaims Public Citizenoffered. derstand wasthatIneededmorehelpthanwhat The mated thenationalinterestincase. What Ididun- Supreme Court,butevenatthispoint,Iunderesti- out oftheBaldwinCountyCircuitCourtheardby trol ofyourcase.” mous.” Heradvicewas“bewareofoffers totakecon- Allan, youandtheDobsonsareabouttobecomefa- news. That callstartedoutsomethinglike:“Well, tact at The PublicCitizencalledmetogivethe Arranging aSupport Team to work through Ken Chesebro, a Cambridge appellate constitutional law. cases there.Heistheauthor ofaleadingtreatiseon the SupremeCourt. At lastcounthehasargued 36 teaching atHarvardLaw. Tribe wasalsoa regular at Kenny suggestedProfessor Lawrence Tribe, then The Connection Harvard And mylastcallwastonowpartner, Jessica My thirdcallwastomylawschoolstudybuddy, Next, Iconsideredthatwasabusinesslawyer, a After adayofgatheringmywits,Imadefourcalls. I wasawarethattherehadneverbeenanothercase Only afewminutesaftercert.wasgranted,mycon- In our initial contact with Tribe, we were instructed Our teamknewweneededsomehorsepower. www.alabar.org 47 T h e Alabama Lawyer 48 T h e Alabama Lawyer W to Eye,” Connie Chung for “60 Minutes,” L was interviewed by, the in theBushv. Gore eral underPresidentBush(43).Herepresented in theSupremeCourt,andheservedasSolicitor Gen- Olson wasamongthem.Hehasnowargued 12cases table “Who’s Who” oftheSupremeCourtBar. Ted stitute, and Alabama PestControl Association. Housing Institute, Alabama Water and Wastewater In- sumer FinancialCorporation, Alabama Manufactured American FinancialService Association, ITT Con- bitration Association, American Bankers Association, Council ofLifeInsuranceCompanies, American Ar- case involvedastate’s rightsissue. of Attorneys Generaljoinedusaswellbecause the cause oftheconsumerissue;National Association National Attention for thatsixweeks. gave metheirdecision:it’s youornobody. to goandouraceunavailable,Kenny, Ed,andJessica ment wassetforOctober4.So,withaboutsixweeks and wouldnotbeabletoargue ourcase.Oralargu- hired inaninternationalbankingscandalEurope for theworse. Tribe hadbeen due onJuly19. drafts ofourbrief,whichwas and Chesebrobegancirculating initially signedontotheplan and ChesebroatHarvard. Tribe to Bostonmeetwith Tribe would argue the case. the merits briefing and Tribe Chesebro would take the lead on dent of Tribe. The plan was that lawyer who was a former stu- College and Cumberland School of Law. law professors writing law review articles at Boston Center, National Employment Lawyer Association, and sociation of Retired Persons, National Consumer Law Associated Press, National Public Radio, American As- January 2020 Media coverage was intense. I received calls from, or The lawyersrepresentingthosepartieswereaveri- In supportof Terminix therewasthe American The SouthernPovertyLawCentersupportedusbe- Amicus curiaebriefspouredinonbothsides. I clearedmycalendarandworkedonnothingelse In August ourplantookaturn On May2,KennyandIflew EEKLY USA , B LOOMBERG election dispute. ABA Journal , T HE W ALL article alawyer-friend had Supreme Court Argument... , CBS News “Eye sent me,“Preparing fora before theargument, with S tatters, Iremembered an TREET Do WhatYour Mother my self-confidencein About 9:00thenight AWYERS J OURNAL Told You.” , doubted ourclaim. full oftermitesformetoshowtheCourtincasethey ton. Trying tobehelpful, Wanda broughtaMasonjar suite. Mikeand Wanda Dobsonjoinedusin Washing- the hotelinadvanceandsetupawarroommy the hoteltreadmillnexttoDanRather. separate roomfarfromme. three teenagechildren,whoweretuckedawayina Hotel. Mywife,Nancy, waswithme,aswereour checked intoanexecutivesuiteatthe Watergate At thatpoint Itoldmywifetoturnout thelightsand Court Argument...Do What Your Mother Told You.” lawyer-friend hadsentme, “PreparingforaSupreme self-confidence intatters, Irememberedanarticlea night Itriedtore-workthe argument again. made totheargument thedaybefore.SoMonday lawyers. That paneldidn’t likethechangesIhad zen foranothermootcourt,withadifferent panelof the opening session of Court on Monday morning. made arrangements through the clerk’s office to attend the hotel Sunday afternoon to re-work my argument. phasize this case.” I took their advice and went back to my argument. “Say it this way.” “Don’t say that!” “Em- ent myargument toapaneloftheirappellatelawyers. where amootcourthadbeenarrangedformetopres- Last-Minute Preparation We shippedourmultiplebanker’s boxesoffilesto The mostexcitingpartoftheirtripwasgettingon We flewto Washington theprecedingSaturdayand About 9:00thenightbefore theargument, withmy Monday afternoonIwentbackto The PublicCiti- Having never been in the Supreme Court building, I The panel didn’t like anything I planned to do with On Sundaymorning,wewentto The PublicCitizen, he would be an active questioner tention wasonhimandwhether Court andmuchofthemediaat- Breyer’s seconddayonthe term. That wasJusticeStephen Tuesday, theseconddayof Washington Up Shop in The Team Sets of the lawyers. Oral argument wassetfora take make T knows it. If you’re really unlucky your name and mis- nized that if you make a mistake, the whole world with Supreme Court arguments is that they are so scruti- The Argument tices filedintothecourtroom. that was written on the wrapper was “Dad, I love you.” back there asked me to give this to you,” he said. All me a rolled-up chewing gum wrapper. “That young lady U.S. Marshall tapped me on the shoulder and handed my family, and Jessica. the packed-housegallerysatMikeand Wanda, Ed, take theirseats. A fewrowsbehindcounseltablein Justices wouldfileoutfrombehindthedraperiesto the clockcountdownto10:00a.m.when,onque, draperies. We satnervouslyatcounsel tablewatching Justices’ chairsare ceiling-to-floorheavyburgundy sel tableistotheJusticesandthattrue.Behind number oflawyerscommentonhowclosethecoun- not sure of a Justice’s name, don’t call them by name. and by all means, when answering a question, if I was don’t be distracted as he is just stretching his back; during my argument and walks behind the draperies, that the Chief Justice has a bad back and if he gets up Chief Justice”; do not refer to anybody as “Judge”; troduce myself; only refer to the Chief Justice as “Mr. speak until the Chief Justice recognized me; do not in- table before the Court comes into the room; don’t though, as Suter told me firmly to be seated at counsel last thing I needed at that point. I listened dutifully, William K. Suter, the clerk. More instruction was the lawyers’ lounge at 9:00 a.m. for instructions from pellate advocacyandistension-filledbeyondbelief. United StatesSupremeCourtistheSuperBowlofap- pretty welltookthoseinstride,butanargument inthe courts of Alabama andintheEleventhCircuit Courtroom Decorum gument Ibroughtto Washington. panels. Ihaddecidedtobemyselfanddeliverthear- tore upalltheadviceIhadgottenfrommootcourt unplug thephonebecauseweweregoingtobed.I The argument went okay, I suppose. The problem About thattime,thedraperiesshiftedandJus- At 9:59 a.m., with my heart already in my throat, a Kenny satatcounseltablebesideme.I’vehearda Our case was set for 10:00 a.m. I was to arrive in the I hadorallyargued manycasesintheappellate HE N EW Y ORK T IMES . A few months before their case in the Supreme Court, I’m not available. that shadowboxandcherishmyexperiencethere. ment beforetheSupremeCourt.Isometimeslookat box, thesamesouveniralllawyersgetforanargu- Wanda gotfamousandpaid. issue forthem,theysettledourcase.So,Mikeand cause Terminix hadprevailedonthemuchlarger okay. Becausewehadanon-arbitrableclaim,andbe- you were in.” “What can you tell me about that?” exchange withJusticeScalia: recorded and archived at Supreme Court arguments. Plus, the arguments are on embarrassing mistakes lawyers have made during my argument, T can’t have a jury trial and he cites this something like “the defense lawyer in my case says I all over the country. The calls usually started out floodgates ofarbitrationwereopened. Conclusion Allan R.Chason But in case anybody is looking to hire me to argue I gotaquillwhichhangsovermydeskinshadow For Mikeand Wanda Dobson,thecaseturnedout I guessmybiggestmistakecameinthefollowing For years after the decision, I got calls from lawyers The decisionwentagainstusona7-2voteandthe that’s allright. think, youdon’t citeOurHonorstothecase,but was decided in 1922. ors, to the Coronodo Coal Company case which might have thought it meant, we cite Your Hon- word “involving” commerce and what Congress Me: Yes sir. Excuseme. Scalia: You citethecasetoOurHonors,I Me: ...in trying to give some meaning to the University of Alabama. in 1972 and his law degree in 1976, both from the Bay Minette. He received his undergraduate degree Allan Chason practices at Chason & Chason PC in HE W ALL oyez.com S TREET J OURNAL . Dobson ran a story www.alabar.org case

s 49 T h e Alabama Lawyer 50 T h e Alabama Lawyer January 2020 Arguments on Appeal Preventing Waiver of By Ed R.Haden, JasonB. Tompkins V. Robert and Baxley appeal. on one waiver at trial or on the practical realities of trial work, the importance of the issue, and the caseload of the appellate court, the regard for the trial court’s role, of fairness to the opposing party, guided by the competing policies court’s discretion, in turn, may be 106, 121 (1976). The appellate cases.” on the facts of the individual courts of appeals, to be exercised marily to the discretion of the “no general rule,” but is left “pri- question or issue is governed by of waiver to deny review of an pellate court applies the principles Years of litigation can end based 1 Singleton v. Wulff Whether and how an ap- , 428 U.S. opportunity torespond. to afford theopposingparty tice itisgenerallyconsideredfair case is assigned. ual appellate judge to whom the of waiver employed by the individ- this can boil down to the standard portunity toruleon. the trialcourthasnothadanop- court basedonanargument that courts areloathtoreverseatrial should prevail. determine if aparty’s argument conduct extensivelegalresearch to time tocanvastherecord orto judges generallydonothave the of heavycaseloads,appellate among others. In anadversarialsystemofjus- 2 In some appeals, 4 And because 3 Appellate and supporting law. citations tothe recordonappeal in one’s initialappellate briefwith upon bythetrialcourt,and raised one’s opponenttorespond, ruled porting law, raisedintimefor tions torecordevidenceandsup- raised inthetrialcourtwithcita- waiver, anargument shouldbe Arguments How toRaise When and issue. erwise inadequatelypreserved pellate courtmayaddressanoth- the developmentoflaw, anap- issue isofsufficient importanceto ment orissueonappeal. cases toavoidwaiverofanargu- arguments incivilandcriminal ples forwhenandhowtoraise cle addressesthegeneralprinci- strict reviewonappeal. This arti- standard thatwouldsurvivea ples, itisprudenttoadherea late courtwillapplywaiverprinci- the strictnesswithwhichanappel- uniform standard. opinion, unlessthecourtadoptsa pending onwhichjudgewritesthe case toonthesamecourtde- strictness ofwaivercanvaryfrom deference tothewritingjudge, standards combinewithcollegial waived. When different individual that anargument orissueis different standardsforconcluding vidual appellatejudgesmayhave realities oftrial. ment inthemidstofhectic quire aperfectobjectionorargu- issue, appellatejudgesmaynotre- As astartingpointtoavoid On theotherhand,whenan Because counselcannotcontrol In balancingthosepolicies,indi- 5 Similarly, topreservean 6 One should tort claim). ment (sixmonthsinthe case ofa of theaccrualaclaim forpay- that municipalitywithin two years nicipality, aplaintiff shouldnotify can betaken. case willbevoid,andnoappeal ter jurisdiction,anyrulingonthe the trialcourthasnosubjectmat- Without therequirednotification, eral toparticipateandactonit. given intimefortheattorneygen- To beeffective, thenoticemust be notified oftheissueandaction. court, theattorneygeneralmustbe nance isatissueinan Alabama ity ofastatuteormunicipalordi- complaint, oritiswaived. on thefaceofwell-pleaded Complaint (Civil Cases) Trial Court Error inthe Preserving is barred. complaint. process, beginningwiththe rules ateachstageofthelitigation also takecaretocomplywiththe stage oflitigation.Counselshould serve animportantissueatany single sentenceisenoughtopre- not assumethatafootnoteor evidence. conform thepleadingsto other partyoruponamotionto being triedwiththeconsentof by bama RulesofCivilProcedure vaged underRule15(b)ofthe Ala- from acomplaint,itcanbesal- even whereaclaimisomitted on thepreventionofwaiver. First, specific rulesalsohaveanimpact Third, forclaimsagainstamu- Second, whentheconstitutional- In general,aclaimmustappear 13 8 12 11 Otherwise, the claim 7 Three 10 9 Proceedings (Criminal Cases) andgrand Jury indictment Challenges to the Other to and motions dismiss personal jurisdictiononappeal. to preventafuturechallenge sought anddenied,thereisnothing nied andmandamusreliefis lack ofpersonaljurisdictionisde- If amotiontodismissbasedon before anyresponsivepleading. made bymotion,itmustbe to dismiss. erally shouldberaisedinamotion and insufficiency ofservice)gen- venue, insufficiency ofprocess, of personaljurisdiction,improper 12(b), certaindefenses(i.e.,lack bama RuleofCivilProcedure motion to dismiss The Supreme Court of Alabama appeal from a final judgment. sult in waiver of an issue in a later tory appeal generally does not re- Cases) appeals (Civilinterlocutory raigned. but beforethedefendantisar- after theindictmentisreturned, tion todismisstheindictmentfiled ceedings mustberaisedinamo- done at Procedure providethatitcanbe the Alabama RulesofCriminal in apretrialmotiontodismiss,but dictment itselfmustalsoberaised the trialcourt. specifically reservedwithleaveof jury unlessthatchallengeis evidence consideredbythegrant dictment orthesufficiency ofthe challenge tothevalidityofin- guilty ornotguilty, waivesany ment atarraignment,whether raignment. As ageneralrule,under Ala- The failure to file an interlocu- Challenges tograndjurypro- and notjustbeforethear- 17 A challengetothein- 14 18 Any pleatoanindict- If thatdefenseis 19 (Civil Cases) www.alabar.org 20 16 15 51 T h e Alabama Lawyer 52 T h e Alabama Lawyer raised and argued. case where the statute is properly of the statute should prevail in a would seem that the express words tal though venue may waive that defense. Al- a motion to dismiss for improper interlocutory review of a denial of 1998), states that a failure to seek 721 So. 2d 184, 191 n.10 (Ala. Children’s Hospital of Alabama ment. On the other hand, can be appealed after a final judg- pressly provides that this defense Alabama Code § 6-8-101 ex- law is not settled. On the one hand, proper venue, however, Alabama With respect to the defense of im- lenge the denial of a trial by jury. does not waive the right to chal- petition for a writ of mandamus has held that the failure to file a January 2020 POB 716 Mount Vernon, IN 47620 www.SupportMasterSoftware.com CS-41, CS-42, CS-43, and CS-47 does not address § 6-8-101, it Alabama Support Master™ [email protected] Includes Interest and Arrearage Professional Software CHILD SUPPORT Prepares and prints forms Uses Current Guidelines Ex parte Children’s Hospi- CALCULATION SOFTWARE Corporation FREE DEMO For Alabama 812-781-1422 Since 1989 Calculator Ex parte , 21 at summary judgment. revive an affirmative defense, even waived.” fense, itisdeemedtohavebeen failed topleadanaffirmative de- answer (Civil Cases) the subjectofpetition. days oftherulingororderthatis the petitionisnotfiledwithin42 good causeshouldbeincludedif writ ofmandamus,astatement taken bymeansofapetitionfor is waived. wise, therighttopetitionforrelief tions” instead of the more precise by pleading the “statute of limita- had waived an affirmative defense example, the court held that a party 2d 841, 847–48 (Ala. 2006), for Pinigis v. Regions Bank fying the affirmative defense. In counsel must be specific in identi- Alabama hasexplained: pleading affirmative should rememberto Once waived, a defendant cannot Typically, “whenapartyhas Where aninterlocutoryappealis the faceofcomplaint. or ifthedefenseappearson lowed toamendhispleading; should havepleadeditisal- tion; orifthepartywho adverse partyoffers noobjec- fense mayberevivedifthe pleaded, itiswaived. The de- affirmative defenseisnot Once ananswerisfiled,if defenses, counsel allegations inhis In additionto deny factual 24 23 The SupremeCourtof answer. 26 , 942 So. Further, 22 25 Other- on a guilty plea, a defendant must (Criminal Cases) appeal fromPlea aguilty to theright Preserving swer. a failuretoincludeitinthean- that thedefensewasnotwaivedby diced, thesupremecourthasheld the opposingpartyisnotpreju- tive defenseisargued attrialand tion immunity. immunity or to discretionary-func- dants were not entitled to sovereign Supreme Court held that the defen- nity did not apply. to the plaintiff to show that immu- pleadings, the burden never shifted defendants relied solely on the function. were exercising a discretionary presented no evidence that they their authority, and the defendants liciously, fraudulently, and beyond defendants had acted willfully, ma- The plaintiff had alleged that the tions in the plaintiff’s complaint. other pleading denying the allega- dants did not file an answer or any (Ala. 2000), state university defen- University bama Agricultural and Mechanical For example, in in an effective waiver of a defense swer. to deny factual allegations in his an- defenses, counsel should remember tain defense. instead of actually asserting a cer- amend an answer to raise a defense not enough to “reserve the right” to 2019), the court explained that it is WL 988465, at *3–4 (Ala. Mar. 1, parte Seriana term “statute of repose.” And in evidence underRule15. were amendedtoconformthe allowed torulethatthepleadings To appeal a conviction entered Nonetheless, whereanaffirma- In addition to pleading affirmative 27 Failure to do so could result Instead, thetrialcourtwas Id , 787 So. 2d 691, 697–98 . Because the university , No. 1180104, 2019 Id Matthews v. Ala- . Id . The Alabama 28 Ex . trial court. those arguments that he made to the judgment can raise on appeal only trial court. The loser at summary how the argument was made in that ner or loser in the trial court and the argument is raised by the win- waiver principles turn on whether Cases) Judgment (Civilsummary plea. ruling trial court and obtaining an adverse to appeal by raising the issue in the serve the specific issue he intends do two things. First, he must pre- firming trial courts generally: Court explained with respect to af- ones. As the Alabama Supreme argument on appeal, even new at summary judgment can raise any before the plea.” jurisdictional defects that occurred sumed to have abandoned all non- Otherwise, the defendant “is pre- peal before entering his guilty plea. expressly reserve the right to ap- At the summary judgment stage, of the non-movant’s evidence before the trial court a failure ment movant has not asserted or where a summary-judg- suffice to affirm a judgment, available for consideration, firmative defense might, if as when a totally omitted af- support an affirmance, such the basis that would otherwise level, which was omitted, of quire some notice at the trial due-process constraints re- in application only where the trial court. This rule fails or even if it was rejected, by that ground was considered, record, regardless of whether ground presented by the trial court on any valid legal [T]his Court will affirm the 29 before Second, the defendant must 31 By contrast, the winner entering the guilty 30 peals explained inShanklinv. Alabama CourtofCriminal Ap- misses thevenire. in thepetitejuryandbefore itdis- made beforethetrialcourt swears member, theobjectionmustbe peremptory strikeofavenire Batson 476 U.S.79(1986). To preserve a lenge underBatsonv. Kentucky , Cases) Batson waived onappeal. based onqualificationswillbe vited error, andthechallenge failure todosomayconstitutein- about theirqualificationsbecause toQualifications serve Challenges to Jurors’ peal). (both in the trial court and on ap- sentence to preserve an argument court. It may take more than one he makes his argument to the trial the summary judgment. rule may result in the reversal of comply with the specific citation fore the trial court. Failure to ing the evidence in the record be- narrative statement of the facts cit- mary judgment must include a gross miscarriage of justice. the objection is waived, absent a in the trial court on that ground, or inadmissible, counsel must object motion was not authenticated or is his opponent’s summary judgment cal piece of evidence supporting counsel intends to argue that a criti- Once anobjectionismade, the Timing iscrucialonanychal- A partymustquestionjurors Counsel must also take care how support of that element . . . . ing substantial evidence in shifted the burden of produc- defense and therefore has not on an element of a claim or 33 And every motion for sum- challenge tothestate’s Challenges 36 (Criminal 34 Finally, if 35 32 marks omitted). App. 2014) (citations and quotation for review: framework topreservetheissue State ing the trial itself. When the trial made by a motion to EvidenceObjections I I I I I I I I I I I I Contact: Hal K. Cain, Principal Engineer Commercial • Industrial • Residential Our specialists have Testifying Expertise CONSTRUCTION 187 So. 3d 734, 764 (Ala. Crim. Evidentiary objections can be & ENGINEERING Engineers &Constructors, Inc. poseful discrimination. the defendant has shown pur- court must determine whether parties’ submissions, the trial question. Third, in light of the basis for striking the juror in tion must offer a race-neutral has been made, the prosecu- race. Second, if that showing been exercised on the basis of peremptory challenge has prima facie showing that a First, a defendant must make a Radio &Television Towers Engineering StandardofCareissues Flooding &RetentionPonds Roofing problems Mechanical Systems Electrical issues Stucco &EIFS Foundations, settlement Structural issues Acceleration ofschedule Construction defects Construction delaydamages the three-stepburdenshifting 251.473.7781 • 251.689.8975 investigative inspections: Forensic engineering and Cain andAssociates EXPERTS [email protected] www.hkcain.com in limine www.alabar.org or dur- 53 T h e Alabama Lawyer 54 T h e Alabama Lawyer of evidence at trial is not required. mission from the judge), a proffer dence at trial without obtaining per- offering or mentioning the evi- the party opposing the motion from “prohibitive” (that is, it prohibits fore the evidence is introduced. must be raised by an objection be- may also be made during trial, it Although a motion to suppress not be objected to during trial. trial is considered final and need ing on a motion to suppress before on appeal. the admissibilityofevidence pellate courtwillbeabletoassess which itisoffered sothattheap- record andstatethepurposefor proffer ofthatevidenceonthe present thatevidencemustmakea dence, thepartywhowishesto Where thetrialcourtexcludesevi- stantial rightoftheappellant. result inarulingthataffects asub- timely, statespecificgrounds,and objection madeattrialmustbe jection forappellatereview, the ruling for appeal. a proffer to preserve the exclusion his evidence again at trial, making non-movant must attempt to offer tion preserve his objection for appeal. evidence is introduced at trial to movant must object again when that exclude evidence, the disappointed court denies a motion a ruling on a motion has explained, however, that when first timeonappeal. not considergroundsraisedforthe objection; theappellatecourtwill court willreviewthemeritsof grounds uponwhichtheappellate and inamotionlimine)arethe trial court(bothduringthe or theadmissionofevidencein stated insupportoftheobjection January 2020 In a criminal trial, an adverse rul- To preserveanevidentiaryob- When the trial court grants a mo- in limine 41 Whatever groundsare , the disappointed 38 Dean Gamble 42 in limine in limine 40 is 43 to 44 37 39 state allowing him to do so. plea or have an agreement with the issue before entering the guilty reserve the right to appeal that above, though, he must expressly entering a guilty plea. As noted a motion to suppress even when right to appeal an adverse ruling on weight, of the evidence. tal tests the sufficiency, not the acquittal (Criminal Cases) formotion Judgment of judgment.” moving partyisentitledtothe law andthefactsonwhich ify thejudgmentsoughtand that amotionforJML “shallspec- Rules ofCivilProcedureprovides judgment. evidence andagainpost- made twice–onceatthecloseof ciency oftheevidencemustbe (Civil Cases) matter ofLaw during Trial formotion aJudgment asa tiff’s evidence. for JML attheclose oftheplain- court erredindenyingthemotion waives anyargument thatthetrial part ofitsdefense,thedefendant dant electstooffer evidenceas tion isdenied,andthenthedefen- of theplaintiff’s caseandthatmo- matter oflaw(“JML”)attheclose dant movesforjudgmentasa cases, it is not necessary to move ment as a matter of law in civil peal. the evidence as an issue for ap- trial to preserve the sufficiency of necessary to file a motion for a new civil cases, for bench trials it is also evidence. record asofthecloseall pellate courtwillreviewthe A defendant may preserve the A motion for judgment of acquit- Rule 50(a)(2)ofthe Alabama Usually challengestothesuffi- 50 ) Unlike motions for judg- 48 46 If, however, adefen- 47 Instead, theap- 49 (Like 45 instructions. trial court’s failuretogivethose not enoughtopreserveerrorinthe (Civil Cases) instructions Jury appeal. factfinder to preserve the issue for submission of the case to the for a judgment of acquittal before in the court’s instructions.” liberate, a party waives any error object before the jury retires to de- provides that: bama RulesofCivilProcedure imposed. within 30 days after the sentence is ment of acquittal must be made post-judgment, the motion for judg- ties noted in the record. with the express consent of the par- though the time may be extended after the sentence is imposed, al- denied by operation of law 60 days for judgment of acquittal is deemed after the verdict is entered. the close of the evidence, or even the end of the state’s evidence, at the issue through a motion made at dant to preserve the sufficiency of Criminal Procedure allow a defen- start thereafter. on filing a notice of appeal would appellate review an erroneous party, in order to preserve for contemplate that the objecting grounds given, “Rule 51 does not respect to the specificity of the Submitting juryinstructionsis In other words, “[b]y failing to the grounds for the objection. ing the matter objected to and to consider its verdict, [2] stat- thereto before the jury retires unless [1] that party objects erwise improper oral charge misleading, incomplete, or oth- the giving of an erroneous, give a written instruction, or the giving [of] or failing to No party may assign as error 51 53 The Alabama Rules of A post-judgment motion 55 Rule 51ofthe Ala- 54 The clock 52 56 If done With after thejudgment isentered.In judgment as amatteroflaw(JML) must filearenewedmotion for ing aclaimtothejury, aparty ficiency oftheevidence for send- provides thattochallenge thesuf- abama RulesofCivilProcedure The supreme court has explained: therefore unreviewable on appeal. interlocutory in character and may consider related issues to be for example, an appellate court set aside the dismissal of its action, timely motion with the trial court to motion. When a party fails to file a counsel must file a post-judgment the entry of a default judgment, trial, the legality of the judgment or porting a judgment, the conduct of (Civil Cases) Post-Judgment motions quested charges” is insufficient. tion based on “not giving the re- On the other hand, a general objec- the applicable law of the case.” instruction, deliver a discourse on In addition,Rule50(b)ofthe Al- To challenge the evidence sup- an appeal. and preventthehardshipsof nity tocorrectitsownerrors feel ofthecase,anopportu- the trialcourt,whichhasa ited. The procedureaffords with discoveryordersismer- missal forfailuretocomply whether thesanctionofdis- the trialjudgetodetermine the primaryresponsibilityon the courtbelowandplaces velopment oftherecordin principle assuresproperde- the firsttimeonappeal. This court maynotberaisedfor not raisedbeforethetrial tions isthat,ordinarily, issues necessity forpost-trialmo- general rulesregardingthe The rationalebehind.the 60 57 58 59 for appellatereview. dence, suchchallengeiswaived lenge thesufficiency oftheevi- renewed JML motionfailstochal- be “serviceandfiling.” Where the judgment JML motion,theremust 50(b) specifiesthatforapost- tion canbemadeorally, Rule close ofalltheevidence. not requireaJML motion atthe about apurequestionoflawdoes ond, apost-judgmentJML motion waiving thearguments. same arguments inordertoavoid tion afterjudgmentthatmakesthe evidence andarenewedJML mo- made atthecloseofplaintiff’s general, theremustbeaJML wrongfully interfered withany dants, separatelyorseverally, tiff’s allegedclaimsthat thedefen- insufficient tosupport[the] plain- challenge, suchasthe“evidence is the closeofevidence. does notrequireaJML motionat an awardofpunitivedamages sufficiency ofevidencesupporting ment JML motion challenging the requirement. First,apost-judg- two exceptionstothattwo-motion evidence supporting conduct oftrial,the Although theoriginalJML mo- judgment, counsel judgment motion. entry ofadefault To challengethe must fileapost- judgment orthe a judgment,the legality ofthe 64 A general 61 63 62 There are Sec- recommended: were improper, an argument that jury instructions amount or a new trial), tur ( the judgment. A request for remitti- for a new trial must be made conduct or result of a trial, a motion evidence.” the sufficiency orweightofthe for reviewaquestionrelatingto for anewtrialinordertopreserve a non-jurytrial,partymustmove made nowrittenfindingsoffactin trials. “[W]henthetrialcourthas handled injurytrialsandbench between howamotionforJML is ment regarding juror misconduct, ference claim.” each elementofthetortious-inter- sufficiency oftheevidenceasto cient becauseit“challengedthe defendant],” hasbeenheldsuffi- ship theplaintiff .hadwith[the business [orcontractual]relation- as amatterof lawisgranted,the the renewed motionforjudgment motion. made through a timely filed Rule 59 To challenge error made in the There isonecrucialdistinction Rule 50(c)(1)providesthat “[i]f thority whereappropriate. also citesupportinglegalau- thereof. The motionshould defenses andeachelement the defendant’s affirmative evidence establisheseachof should furtherassertthatthe damages sought. The motion gation, andoneachitemof on eachmaterialfactualalle- each elementofclaim, complaint, oneachclaim, plaintiff oneachcountofthe reasonable jurytofindforthe cient evidentiarybasisfora that thereisnolegallysuffi- dant’s motionforJML assert [C]aution dictatesthatdefen- i.e. , to accept a lower damages 67 70 65 etc. should be Justice Lyons has 68 www.alabar.org an argu- after 66 69 55 T h e Alabama Lawyer 56 T h e Alabama Lawyer plained that: the courtof criminal appealsex- on thisbasis.InCamposv. State, are loathtooverturnajury verdict a jury. Appellate courts,however, the evidenceafteraconviction by lenge theweightorcredibilityof for acriminaldefendanttochal- new trialisoneoftheonlyways (Criminal Cases) formotion anew Trial tion, but is not required to do so. argument in a post-judgment mo- has the discretion to consider a new new legal argument. A trial judge present a second chance to raise a alternative groundsforanewtrial. quire thetrialcourttoruleon new trial,Rule50(c)doesnotre- rule onalternativegroundsfor trial ononegroundanddoesnot where thetrialcourtgrantsanew new trialmotion: make theconditionalrulingon nial.” Ifthetrialcourtfailsto appeal mayasserterrorinthatde- tionally denied,theappelleeon tion foranewtrialhasbeencondi- for anewtrial..Incasethemo- court shallalsoruleonthemotion January 2020 In acriminaltrial,motionfor Post-judgment motions also may In otherinstances,forexample, trial andonappeal. the meritsofmotionat trial ifthemovanthasargued rule onthemotionforanew the actionfortrialcourtto on itsownmotiontoremand that allowsanappellatecourt stated above,anexception for anexceptiontotherule bama caselawalsoprovides tion foranewtrial. Ala- constitute awaiverofthemo- and thefailuretodosowould and/or totheappellatecourt, out thaterrortothetrialcourt [T]he movant[should]point 71 72 partiality of a trial,suchas rors affecting thefairness orim- also befiledtopreserve other er- the evidence. judgment isagainsttheweight of cally argues thattheverdictor motion foranewtrialthatspecifi- appeal, adefendantmustfile weight oftheevidenceissuefor App. 2015). To preservethe defendant isinsharp though theevidence to supportaverdict, substantial defense. offered bythestate A motionforanewtrial may 217 So.3d1,12(Ala.Crim. ents asubstantialdefense. conflict therewithandpres- by thedefendantisinsharp though theevidenceoffered not beoverturnedeven to supportaverdict,itshould evidence offered bythestate peal. Where thereisample dence isconclusiveonap- A verdictonconflictingevi- and judgmentarewrong.. conclusion thatthefinding only whereitreachesaclear fere withthejury’s verdict An appellatecourtmayinter- conflict therewith overturned even ample evidence it shouldnotbe Where thereis and presentsa offered bythe 73 by the state or the government. the sentence recommended for him peal waiver on the court imposing he specifically conditions the ap- impose a different sentence unless his sentence should the trial court dant will waive any challenge to peal waiver, however, the defen- If that agreement requires an ap- will recommend a certain sentence. that the state or the government agreements with the understanding (Criminal Cases) to sentencing Objections ties and noted in the record. is extended by consent of both par- sentence is deemed denied unless it 60 days after the imposition of a not ruled on by the trial court within Any motion for a new trial that is date that the sentence is imposed. be filed within 30 days from the tive assistanceoftrialcounsel. duct, jurormisconduct,orineffec- cumulative prosecutorialmiscon- issue orone order inthenoticeof notice ofappeal Appeal Error on Preserving after it is imposed. modify the sentence within 30 days tence requires filing a motion to even on appeal. nature and can be raised at any time, limit, however, are jurisdictional in sentence that is outside the statutory be made at the time of sentencing. sentenced as a habitual felon must tify the defendant that he would be objection that the state failed to no- Defendants often enter plea Any motion for a new trial must In federalcourt, mentioningone Preserving a challenge to a sen- 79 And preserving an 78 Objections to a 76 77 74 75 80 error. that evidence supportsafindingof that anissuewaspreserved and obligation toshowinthe record record onappeal 3. eral Ruleof Appellate Procedure the federalcourtsamendedFed- ing “etal.”inthenoticeofappeal, peal formultiplepartiesbyinclud- with notallowingappellantstoap- opposite. After badexperiences party couldbereviewed.Id. only theorderasitrelatedtothat party waspartoftheappeal,and that onlythespecificallynamed al.” astheappellee,courtheld “Chiropractic LifeCenter, Inc.,et the noticehadidentifiedonly appeal underRule3(c).Because al.” fromanappellant’s noticeof May 3,2019),thecourtstruck“et 2019 WL 1975408,at*3(Ala. Life Center, Inc.,No.1170934, trate, inNamanv. Chiropractic “et al.”isnotsufficient. To illus- pellate Procedure,simplylisting 3(c) ofthe Alabama Rulesof Ap- ties willbewaived.UnderRule claims againstthoseomittedpar- party specifically. Otherwise, “et al.”toavoidnamingevery courts, andanappellantcannotuse appeal in Alabama appellate tice ofappealtobeapartthe party suitmustbelistedontheno- of otherissuesandorders. appeal mayresultintheexclusion instead ofnamingmultipleparties. pressly allowedtheuseof“etal.” federal court,anappellantisex- review. limit thescopeofappellate which theappealistakendoesnot tion ofaparticularorderfrom Procedure, however, thedesigna- the Alabama Rulesof Appellate The appellantgenerally has the 83 The ruleinfederalcourtsisthe However, everypartyinamulti- So onanoticeofappealin 84 82 Exceptions may existifthe 81 Under appellee generally mustcross- in thetrialcourt’s judgment,the his rightsbeyondthoseprovided Cross-appeal portions ofthatjudgment. to appeal–orcross-appeal–adverse judgment mayalsowaivetheright appeal ofJudgmentBenefit on acceptance ofPayment/ record. to supplementorcorrectthe aggrieved partymayfileamotion tion oftherecordislost, vide thatwhereatranscriptorpor- 10(d), (e),and(f)generallypro- bama Ruleof Appellate Procedure dure 10(c),(d),and(e) Ala- on whichherelies. ment therecordwithexhibits shifts totheappelleesupple- contained intherecord,burden the appelleecitestoexhibitsnot rection iswarranted. on whetheranysupplementorcor- however, thetrialcourtwillrule record, maybelost. member it,yourcase,likethe of thekeywitnesswayyoure- remember yourcross-examination ponent andthetrialjudgefailto menting itsposition. sequently filesatranscriptsupple- contentions, andtheappellantsub- record supportfortheappellant’s appellee argues thatthereisno injury.” opposing partywillsuffer no tarily paysthejudgment[or] not apply“whenthepartyvolun- tance ofbenefits”doctrinedoes cepted itsbenefits.” has coerceditsexecutionorac- prejudice ofhisadversaryafterhe ing ajudgmentintoquestiontothe rule “preventsapartyfromdraw- If theappelleeseekstoexpand Acceptance ofthebenefitsa Federal Ruleof Appellate Proce- 87 91 If theotherpartyobjects, 86 90 88 85 This “accep- If yourop- Similarly, if 89 This other necessaryelementsaswell. the plaintiff failedtoestablish fendant mayargue onappealthat sential elementofhiscase,thede- plaintiff hasfailedtoproveanes- when atrialcourtfindsthat pellee. is “notreallyadverseto”theap- required, though,ifthejudgment cross-appeal. entered, itmaybewisetobringa with anypartofthejudgmentas appeal. of fact. is anabsenceofspecificfindings support itsjudgment,evenifthere made findingsoffactnecessaryto will assumethatthetrialcourt In doingso,theappellatecourt court. ment thatwasnotraisedin trial court’s rulingbasedonargu- below, anappelleecandefendthe ment onagroundnotraised not reversethetrialcourt’s judg- Brief onappeal verdict.” improperly denieditadirected appeal argues thatthetrialcourt defendant prevailsattrialandon appeal isrequiredwhere“a issues. time onappeal, unlikeother case–may beraisedforthe first power ofthecourttohear the subject matterjurisdiction–the court. cannot beraisedtoasupreme an intermediateappellatecourt that anargument notraisedbefore the sameresult. cross-appeal solongasitleadsto the trialcourtwithoutfilinga free tochallengethereasoningof based onanyvalidlegalground. firm ifthetrialcourt’s judgmentis result, thecourtofappealsmayaf- judgment–not itsreasoning. As a late courtreviewsatrialcourt’s Although anappellatecourtwill 100 97 94 101 99 92 That isbecauseanappel- However, theissueof 95 So, forexample,nocross- A corollarytothatruleis If thereisdissatisfaction The appelleeisalso 93 No cross-appealis 96 One exampleis www.alabar.org 98 57 T h e Alabama Lawyer 58 T h e Alabama Lawyer questions onappeal: tional arguments andraisingnew difference betweenmakingaddi- Supreme Courthasexplainedthe cated onappeal. The Alabama trial courttoberaisedoradvo- must beraisedoradvocatedinthe rule isthata“question”or“issue” made onappeal,themoreprecise be madeinthetrialcourtto state that“arguments” thatmust made tothetrialcourt.” in supportofanargument initially additional ordifferent authorities cannot citeinitsappellatebrief we haveneverheldthataparty made forthefirsttimeonappeal, judgment basedonanargument stated thatwewillnotreversea “[a]lthough thisCourthasoften and exceptions.Forexample, has afewimportantqualifications raised bytheappellantonappeal that anewargument cannotbe January 2020 While anumberofopinions In addition,thegeneralprinciple question lant from raising on appeal a generally prevents an appel- sent attempts to rely is one that [T]he rule upon which the dis- ited to the argued at the trial, it is not lim- the higher court may be limited to from an intermediate court the ever, “[a]lthough on appeal and Error not consider.” 5 C.J.S. the intermediate court could not consider a “higher court normally will Juris Secundum regard, as stated in The fundamental rule in this by the party in the lower court. a theory or position asserted specific reason higher court of an additional review, not the provision to a been preserved for appellate questions of law or arguments § 977 (2007). How- theory question or , is that a authority that has not Corpus raised or there 102 Appeal which for case, statute, orotherlegalauthor- legal argument needstocitesome sider thisissue.” Consequently, wewillnotcon- as requiredbyRule28(a)[10],. record insupportofthisargument to authoritiesorreferencethe has failedtoincludeanycitations stated: “[Appellant],inhisbrief, The Alabama SupremeCourthas offered, and received or rejected.” which the evidence was identified, record or reporter’s transcript at made to the pages of the clerk’s is made to evidence, it shall be Rule 28(g) provides: “If reference for which the case is cited.” And ber(s) that relate to the proposition reference the specific page num- record relied on . . . . Citations shall other authorities and parts of the “citations to the cases, statutes, gument section of the brief contain Rule 28(a)(10) requires that the ar- priate references to the record . . . .” presented for review, with appro- of the facts relevant to the issues 28(a)(7) requires “[a] full statement ment of facts in the brief, Rule Procedure. In drafting the state- the Alabama Rules of Appellate he must comply with Rule 28 of to preserve error on appeal. First, must take several additional steps gument or issue at the trial level, he research foranappellant.” function toperformallthe legal is neitherthisCourt’s duty norits court hasremindedcounsel that“it Every lawyerknowsthat any Rule 28isnomereformality. Even if counsel preserves an ar- (emphasis added). C.J.S. Appeal and Error § 297 questions peal, although no new ties “[n]ew phasis added). In other words, and Error § 978 (2007) (em- presented.” 5 C.J.S. Appeal may be presented on ap- arguments or authori- can be raised.” 4 104 The supreme 103 105 deemed waived. ment ofissues,oritwillbe ment mustberaisedinthestate- that inanappellatebrief,argu- ment below. course, must have made that argu- his co-appellant. The appellant, of argument contained in the brief of appellant to adopt by reference an ment sectionofthebrief. factual assertionmadeintheargu- record onappeal,asshouldevery be followedbyacitationtothe in the“StatementofFacts”should need authoritytoo.Everysentence ity, butthebottomlineisthatfacts acts occurred. Birmingham Division,wherethe the BessemerDivisionto mandamus tochangevenuefrom Liability Act, apetitionersought ple, underthe Alabama Medical waiver oftheargument. Forexam- Failure tobeexactmayresultin the argument. Clarityiscrucial. the ruleoflawcitedinsupport facts ofhiscaseareconnectedto counsel clearlyexplainshowthe An argument issufficient when legal ruletothefactsofcase. brief mustadequatelyconnectthe brief, however, is not allowed. erence of arguments made in a trial cient andwasthereforewaived: argument inthebriefwas insuffi- court, however, concludedthatthe party waivedthatargument. late brieforitsreplybrief,the ment sectionsofitsinitialappel- for–that issueintheorargu- tion–much lessciteanyauthority ment offacts,butdidnotmen- about acontestedissueinitsstate- when apartymadeanassertion Court of Alabama hasheldthat Some federalauthorityholds In addition, Rule 28(k) allows an Second, theargument inthe sume, that the requirement of demonstrate, they only pre- The hospital and Pszyk do not 106 110 Incorporation by ref- 108 The supreme The Supreme 109 107 error but not harmful to the appel- the admission of testimony was the parties.” For example, where ously affected substantial rights of complained of has probably injuri- or criminal case unless “the error there will be no reversal in a civil Appellate Procedure provides that Rule 45 of the Alabama Rules of then there is no need to reverse. ing does not harm the appellant, wary of harmless error. If the rul- so. rule precedent,hemustaskittodo wants theappellatecourttoover- the factsincase,ifcounsel ment thatconnectsthelegalruleto to preserve those issues. due process issues was not enough that a “vague comment” referring to sitions on appeal.” The court held how [that case] support[ed] her po- discuss, in any meaningful way, case related to that issue but did “not relating to due process” and cited a tempt[ed] in her brief to raise issues gument in a case where a party “at- waiver because of an insufficient ar- apply. argue whetherstare decisis Third, the appellant must be In additiontomakinganargu- Similarly, the supreme court found Birmingham Division. transfer of the case to the argue that § 6-5-546 requires a right to relief insofar as they not demonstrated a clear legal as a separate county, they have Bessemer Division be treated 6-5-546 requires that the Pszyk have not argued that § Because the hospital and or omission actually occurred. dicial division in which the act the action be brought in the ju- curred” likewise requires that omission . . . actually oc- county wherein the act or the AMLA be brought “in the § 6-5-546 that an action under 113 That allowsforthepartiesto 114 112 111 should record. also citetothelawand the briefs oftheparties,they should mat requirementsapplicable tothe briefs aresubjecttothebrief for- that issuemayresultinwaiver. its brief,failuretorespondatall raise anissueforthefirsttimein ing. party thattheamicus issues raisedinthebriefof Amicus brief. the firsttimeinappellee’s in areplybrieftoissuesraisedfor ing thatanappellantcanrespond There isauthority, however, hold- not beraisedinthereplybrief. the openingbrief,generallyitcan- reply Brief reverse. the appellate court will not propriately admitted elsewhere), fact that identical evidence was ap- struction to the jury or due to the lant (such as through a curative in- the argument section citation totherecord on appeal,asshould An amicus If anargument isnotraisedin Every sentencein assertion madein the “Statementof Facts” shouldbe 119 117 followed bya Further, becauseamicus every factual 120 of thebrief. 115 In fact,ifanappelleedoes Briefs brief mayraiseonly is support- 116 118 are deemed waived.” support of the application or “they adequately argued” in the brief in rehearing must be “reiterated and matters raised in the application for nal submission.” facts that were not argued on origi- misapprehending points of law or be held in error for overlooking or Court has explained that it “cannot 2014). The Alabama Supreme Inc. tirement Solutions, Inc. v. PEBCO, ted to the Court.” the [party’s] original brief submit- “arguments that . . . were raised in rehearing, it must be based only on its decision. If a party applies for avoid after an appellate court issues application for rehearing Decision An Appellate Error Following Preserving argued in the supporting brief. tition for certiorari and, if granted, alabama Petition for Certiorari– prospectively. pellate decision should be applied argument on rehearing that an ap- Supreme Court has addressed an tion for rehearing, the Alabama ally cannot be raised in an applica- ciple can be made. an argument against that legal prin- hearing will be the only place that on appeal, the application for re- law not argued in the parties’ briefs tion, if the court bases its ruling on the scope of its decision. can also use rehearing to clarify There are also waiver pitfalls to Issues must be set forth in the pe- Although new arguments gener- , 161 So. 3d 1141, 1149 (Ala. 122 An appellate court Id. Nationwide Re- at 1150. Any 121 www.alabar.org 123 In addi- 124 If 59 T h e Alabama Lawyer 60 T h e Alabama Lawyer tion.’” and specificfactualfounda- each claim’s particularlegalbasis a reasonablereaderwouldunder claims tothestatecourt‘suchthat require apetitionertopresenthis federal courts.“[F]ederalcourts may seekfederalhabeasreliefin the Alabama courts,thedefendant dure. IfRule32reliefisdeniedby Alabama RulesofCriminalProce- bama courtsunderRule32ofthe tence oncollateralreviewin Ala- challenge hisconvictionorsen- view, thecriminaldefendantmay conviction isaffirmed ondirectre- Cases) rule 32Petition (Criminal waiver of certiorari review. Failure to do so can result in a labeling the claim ‘federal.”’ on federal grounds, or by simply lies or a case deciding such a claim eral source of law on which he re- conjunction with the claim the fed- petition or brief . . . by citing in basis for his claim in a state-court can easily indicate the federal law gant wishing to raise a federal issue States has explained that “[a] liti- states supreme Court Petition to Certiorari–united conflicts with a prior opinion. ticularity how the decision at issue plies and should explain with par- Rules of Appellate Procedure ap- 39(a)(1)(D) 2 of the Alabama opinion or should state that Rule that conflict with another prior from the court of appeals’ opinion tioner should quote the excerpts grounds for the petition, the peti- conflict with a prior opinion is the Otherwise, what couldbea straightforward andclearmanner. presented tothestatecourt ina ment andfactssupporting ittobe January 2020 After acriminaldefendant’s The Supreme Court of the United 128 That requirestheargu- 127 126 125 special rules thatmayapplytothe general principlesabove aswell or issue,counselshould review the Conclusion waiver in any subsequent appeal. the issueagainonremandtoavoid counsel forthatpartyshouldraise argument raisedinaparty’s brief, on appealwithoutaddressingan Further, ifajudgmentisvacated that decisionatalatertime.” have waivedtherighttochallenge tion, andthepartiesaredeemedto future stagesofthesamelitiga- comes thelawofcasefor portunity todosoexisted,be- a subsequentappealwhentheop- stage oflitigation,unchallengedin “[A] legaldecisionmadeatone with itthroughoutthelitigation. his clientisnotpreparedtolive against thatrulingintheappealif sel forthatpartyshouldargue appeal ofjudgmentoccurs,coun- matter adverselytoapartyandan Law oftheCase waived yearsbefore. colorable habeasclaimcouldbe standard indeciding For itspart,acourt ensure dueprocess To avoid waiverofanargument Once atrialcourthasruledon employ auniform waiver issuesto for litigantsand restraint bythe should workto judiciary. 129 130 its merits” “good” policytodecideacase“on on it.Ontheotherhand,itis it isforacourttoanalyzeandrule of anargument, themoredifficult hand, theless“perfect”form straint bythejudiciary. Onone due processforlitigantsandre- deciding waiverissuestoensure to employauniformstandardin spond andforthecourttorule. time foropposingcounseltore- porting lawandshoulddosoin to therecordevidenceandsup- present anargument withcitations ture ofthecase.Counselshould vanced giventheproceduralpos- particular argument orissuead- Endnotes enemy ofthegood. the perfectdoesnotbecome would ensurethatthedesirefor merits. Suchauniformstandard should leantowardsaddressingthe abandoned, auniformstandard gument istimelymadeandnot an adequate,thoughimperfect,ar- lend itselftoperfection. As longas and-take oftrialdoesnotoften 2. 4. 3. 1. An earlier version of this article appeared An earlierversion intheMay ofthisarticle 1. For itspart,acourtshouldwork to afford the district court an opportunity to recognize anopportunity to afford court thedistrict present that court, is, itto thedistrict in such away as theory, ordefense onappeal, shemustfirstclearly hopesto preserve aclaim,argument,2012) (“Ifaparty 622, 625–29(1 See, e.g. Ass’n, Nat’l ofSoc.Workers v., 69F. Harwood 3d Alabama Appellate PracticeAlabama Appellate 2007) (hereinafter &Haden”), andto“See Ed R.Haden, Preventing Waiver in Civil Cases (Feb., CLEOutline 9, Associate Justice Harold See, Harold andEd See Haden, ”), to“Harwood ajoint outlinetheprepared withformer in Civil Cases (Dec.17,2004)(hereinafter, CLEOutline ofAlabama, J.Court Bernard Harwood,Preserving Error Associate oftheSupreme Justice Bernard Harwood much to theoutstandingoutlineprepared by former 2007 issueofThe AlabamaLawyer. owesThis article Juris v. InamedCorp., 685F. 3d1294,1325(11 marks omitted);,at Harwood 1–2. to respond . . . .”)there isanopportunity (quotation a litigant to advance hiscontentions at atimewhen (Shaw requires J., concurring) (“[F]airnessto allparties Knox Exparte , 201So.See 3d1213,1219(Ala. 2015) at 2–3. thegeneralmight rules ofwaiver); affect &Haden, See 131 st Cir. 1995)(listingconsiderations that and thehecticgive- §§ 1.03–1.04(Lexis 2019).

th Cir. s 19. 18. 17. 16. 15. 14. 12. 11. 10. 13. 9. 8. 7. 6. 5. dictment] admits the validity ofanindictment.”). admitsthevalidity dictment] (Ala. Crim. App. 1979) (“[A] plea to themerits [of anin- omitted); seealsoEdwards v. State, 379So. 2d336,338 which returned may anindictment behad.”) (citation oftheevidence consideredsufficiency by agrand jury into withleave the served No inquiry ofcourt. lenges to thereof thevalidity unlessspecifically re- andwaivesthe meritsofindictment kinds ofchal- to theindictment.pleaded notguilty This isapleato 1985) (“Itappearsthat theappellant, at arraignment, WareSee v. State, 472So. 2d447,448(Ala. Crim. App. Ala. R. Crim.See P. 15.2,15.3. Ala. R. Crim.See P. 12.9. McInnis,820So. Exparte See 2d795,798(Ala. 2001). there isnoprejudice to theotherparty.”). amendment oftheresponsive pleading, aslong improperly filed, could reasonably be considered an defense filedafter afirst responsive pleading, even if has previously heldthat amotionraising aRule12(b) before thefirst responsive pleading. However, this court defense israised by amotion,themotionisto befiled 2014) (“We note that Rule12(b)provides that, whena Mundi,161So. Exparte See 3d241,244(Ala. Civ. App. (Ala. 2009). SverdrupSee Tech., Inc. v. Robinson, 36So. 3d34,41 filing of the notice of claim pursuant to § 11–47–23.”). incurred damage during the six months preceding the raise a genuine issue of material fact as to whether she we conclude that Chavers’s evidence was sufficient to 2013 See Chavers v. City of Mobile See 950–51 (Ala. 1992). id.See ; seealsoTerry v. ofDecatur, 601So. City 2d949, 3050389, at *4(Ala. Civ. App. 12,2019). July v.Smith Renter’s, No. Realty 2180405,2019 WL decide theconstitutional claims.”). to hasnojurisdiction 1975, §6-6-227,thetrialcourt theattorneyto serve general, asrequired by Ala. Code ofastatute challengingtheconstitutionality fails party Pineda, 266So. 3d719,723(Ala. Civ. App. 2018)(“Ifthe See pleadings). (affirming trialcourt’s allowance ofamendment of Scrushy v.See Tucker, 70So. 3d289,313–14(Ala. 2011) judgment . . . .”).summary misrepresentation claiminhiscomplaint, we affirmthe Byrd(“Because didnotproperly allegeafraudulent- See, e.g., Byrd v. Lamar, 846So. 2d334,341(Ala. 2002) 2d 82,97(Ala. 2003). generallySee Crutcher v. Wendy’s ofN.Ala.,Inc., 857So. on that issue). argument to thetrialcourt” where ruled themajority that “the Hospital didnotpresent aflow-of-commerce 668, 693(Ala. 2001)(Woodall, J., dissenting) (stating See, e.g., Med. Selma Ctr., Inc. v. Fontenot, 824So. 2d (quotation marksomitted). an issuethat israised for thefirsttimeonappeal.”) eral willnot, appellate asageneral court rule, consider and rule onit.”) (quotation marksomitted); id. Ala. Code §11-47-23. Ala. Code §6-6-227;N.Ala.Real Estate Group, LLC v. ) (“[T]he City’s negligent maintenance of that ditch, , 142 So. 3d 494, 503 (Ala. (“A fed- 30. 29. 28. 26. 25. 24. 23. Rule21(a)(3),Ala. R.App. P. (“Ifapetitionisfiledout- 22. 20. 37. 36. 35. 34. 33. 32. 31. 21. 27. See Turner v. Westhampton Court, LLC 804. Mitchell, 913So. 2dat, 894So. 505;seealsoGinn 2dat (Ala. Crim. App. 2004). tained.”); v. seealsoGinn State, 894So. 2d793,804 sented andanadverse to ruling ob- thetrialcourt the issuemustbetimelyraised pre- andspecifically App. 2005)(“To preserve MitchellSee v. State , 913So. 2d501,505(Ala. Crim. Id. See Winkleblack v. Murphy Pinigis v., 942So. Regions Bank 2d841,847(Ala. 2006). 1984)) (internal citations omitted). Sch. fied Employees, 463So. 2d135,136–37(Ala. Wallace v. AlabamaAss’n(Ala. 2015)(quoting ofClassi- Adams v. Tractor &Equip. Co., Inc., 180So. 3d860,868 645, 658(Ala. 2017). Travelers Indem.Co. ofConn. v. Worthington, 252So. 2d 549–50 (Ala. 2003). Troutman Exparte See Sanders, LLP,866So. 2d547, sider thepetition . . ..”). constituting for to goodcause theappellate con- court 42 days], itshallincludeastatement ofcircumstances side thispresumptively reasonable time(i.e., generally able to a whoseparty demandjury has been denied”). writ of mandamus is not the sole means of review avail- 765 (Ala. 2004) (stating that “review by a petition for a Nationwide Mut. Fire Ins. Co. v. Pabon didnotexist). personal jurisdiction discoverydemonstrated that againiffurther could try butnotingthatto defendant personaljurisdiction, (denying mandamusrelief to defendant onachallenge Puccio Exparte See , 923So. 2d1069,1077(Ala. 2005) 2001). Homes, Horton See Inc. v. Brooks, 832So. 2d44,52(Ala. (Ala. 1997). generallySee Foremost Ins. Co. v. Parham , 693So. 2d409 judgment.”).summary ering that affidavit indetermining whetherto enter a inerror for consid- willnotholdthetrialcourt this court Inlinedidnotmovecause to strike theaffidavit at issue, , 198So.kildsen 3d524,528(Ala. Civ. App. 2015)(“Be- 1049, 1053(Ala. 2006);InlineElec. Supp. Co., Inc. v. Es- KellySee v. Panther Creek LLC Plantation, , 934So. 2d (Ala. 2006). 790 (Ala. 2009);Stokes v. Ferguson, 952So. 2d355,358 Kelmore,See LLC v. Inc. Ala.Dynamics, , 20So. 3d783, ment for appeal). intrialbriefwas insufficient to preserveassertion argu- 1157 (Ala. Civ. App. 2002)(holdingthat one-sentence v. J.F. Drake Davis See St. Tech. Coll., 854So. 2d1151, omitted). Found., P.C., 881So. 2d1013,1020(Ala. 2003)(citations Nat’l. Life Ins. Co.Liberty v. Univ. ofAlab. Health Servs. waived that argument, and we will not address it.”). only argument that they raise on appeal . . . they have fore the trial court [at the summary judgment stage] the (Ala. 2004) (“Because the [appellants] failed to raise be- , 811 So. 2d 521, 530 (Ala. 2001). an issuefor appellate review, , 903 So. 2d 759, , 903 So. 2d 82, 88 44. 43. 42. 41. 40. Charles Gamble, The MotioninLimine:APretrial Proce- 39. 38. 45. motion to suppress before he entered his pleas and be- reserve the right to appeal the trial court’s denial of his Ginn 2008). LewisSee v. State, 27So. 3d600,602(Ala. Crim. App. App. 1992). Hawkins v.See State , 615So. 2d651,653(Ala. Crim. 367 (Ala. 2017) T.J. v. Winston Cty. Dep’t ofHumanRes. , 233So. 3d361, late review”). adverse ruling inorder to preserve theissuefor appel- offer contested evidence at trial “and obtainaspecific So. must 3d930,937(Ala. 2013)(holdingthat aparty Motor Sales, Inc. v. DaphneAuto., Pensacola See LLC, 155 , atalso Harwood 2–6. waived any argument regarding itsadmissibility.”); see sion of[thewitness’s] testimony at trialandtherefore (Ala. Civ. App. to theadmis- 2018)(“K&Mdidnotobject BrownSee v. K&MTree Inc., 258So. Servs., 3d35,362 So. 2d671,674(Ala. 2004). Sysco Exparte ofJackson,LLCGamble); Food Servs, , 901 621 So. 2d240,244n.3(Ala. 1993)(quoting, inturn, , atsee alsoHarwood 10–13(quoting Boros v., Baxley dure That Come Has ofAge, 33Ala. L.Rev. 1,16(1981); 274, 279(Ala. Civ. App., at 2003)(same);Harwood 2–6. 673 (Ala. 1994);seealsoStampv. Jackson,887So. 2d Owens-Corning Fiberglass Corp. v. James,646So. 2d669, , 894 So. 2d at 804 (“[B]ecause Ginn did not expressly www.alabar.org 61 T h e Alabama Lawyer cause there is no indication in the record that there was a 64. Sears, 630 So. 2d at 1027. rather than simply appealing from the entire judg- preexisting agreement between the parties that Ginn ment–only the specified issues may be raised on ap- was reserving the right to appeal the suppression issue, 65. BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d 203, peal.”) (internal quotation marks omitted). this issue is not properly before this Court for review.”). 213 (Ala. 2001). 82. See Rule 3(c), Ala. R. App. P. (“The notice of appeal shall 46. See Merchants FoodService v. Rice, No. 1170282, 2019 66. Justice Champ Lyons, Jr. & Deborah Alley Smith, Post- specify the party or parties taking the appeal; shall des- WL 988894, at *13 (Ala. Mar. 1, 2019). Judgment Motions, CLE Outline, at 6–7 (Feb. 2005). ignate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is 47. See Alabama Power Co. v. Aldridge, 854 So. 2d 554, 561 67. Ex parte James, 764 So. 2d 557, 559 (Ala. 1999). taken. Such designation of judgment or order shall not, (Ala. 2002). 68. See Keibler-Thompson Corp. v. Steading, 907 So. 2d 435, however, limit the scope of appellate review.”); see also 48. Id. 443 (Ala. 2005). Clements v. Webster, 425 So. 2d 1058 (Ala. 1982) (stat- 69. Rule 59 (f), Ala. R. Civ. P. ing that notice of appeal did not limit appeal to either 49. Zumbado v. State, 615 So. 2d 1223, 1241 (Ala. Crim. final judgment or order denying new trial). App. 1993). 70. See Parker Bldg. Serv. Co., Inc. v. Lightsey, 925 So. 2d 927, 933 (Ala. 2005). 83. See 16A Charles Alan Wright, et al, Federal Practice & 50. See N.K.H. v. State, 873 So. 2d 258, 259–60 (Ala. Crim. Procedure § 3949.4 (2008). App. 2003) (“[W]hen the trial court has made no written 71. Johns, 757 So. 2d at 421. findings of fact in a nonjury trial, a party must move for a 84. See Empiregas, Inc. of Ardmore v. Hardy, 487 So. 2d 244, new trial in order to preserve for review a question relat- 72. Alfa Mut. Ins. Co. v. Culverhouse, 149 So. 3d 1072, 1078 251 (Ala. 1985) (“[T]his Court will not assume error, ing to the sufficiency or weight of the evidence.”) (Ala. 2014). and the burden is on the appellant to affirmatively demonstrate from the record that an error was commit- 73. See, e.g., Lewis v. State, 659 So. 2d 183, 185 (Ala. Crim. 51. Ala. R. Crim. P. 20.3(b)(1). ted by the trial court.”) (quotation marks omitted). App. 1994) (“The issue of the weight of the evidence is 52. Caver v. State, 219 So. 2d 1, 8 (Ala. Crim. App. 2016). preserved by a motion for a new trial, stating that the 85. See Smith v. Village of Maywood, 970 F. 2d 397, 399 (7th 53. See Ala. R. Crim. P. 20.3(b)(1). verdict is contrary to law or the weight of the evi- Cir. 1992) (explaining that after court of appeals denied dence.”) (quotation marks omitted). appellee’s motion to dismiss appeal for appellant’s late 54. See Ala. R. Crim. P. 20.3(f)(1). filing of transcript, appellee had burden to supplement 74. See, e.g., Ex parte Tomlin, 540 So. 2d 668, 672 (Ala. record to support her position). 55. See Regions Bank v. Plott, 897 So. 2d 239, 246 (Ala. 1988) (holding that the cumulative effect of prosecuto- 2004). rial misconduct warranted a new trial); Thompson v. 86. United States v. Coveney, 995 F. 2d 578, 586–88 (5th Cir. State, 153 So. 3d 84, 131 (Ala. Crim. App. 2012) (con- 56. Adriatic Ins. Co. v. Willingham, 567 So. 2d 1282, 1282 1993). cluding that juror misconduct was grounds for a new (Ala. 1990) (citations omitted). trial); Moody v. State, 95 So. 3d 827, 841 (Ala. Crim. 87. See Perkins v. Perkins, 465 So. 2d 414, 415 (Ala. Civ. App. 57. Ware v. Timmons, 954 So. 2d 545, 560 (Ala. 2006); see App. 2011) (explaining that a claim of ineffective assis- 1984) (“When the official record is unavailable, recon- also Rule 51, Ala. R. Civ. P. cmt. (“Grounds must be tance of trial counsel can be raised in a motion for a structions of the record on appeal by the parties is an stated in other than general terms but the requirement new trial). accepted procedure.”). of ‘distinctly’ stating grounds as is required by the fed- 75. See Ala. R. Crim. P. 24.1(b). 88. See Rule 10(c), Fed. R. App. P.; Rule 10(d), Ala. R. App. P.; eral rule, has not been preserved. The word ‘distinctly’ Pickett v. Pickett, 792 So. 2d 1124, 1126 (Ala. Civ. App. has been deleted not for the purpose of opening the 76. See Ala. R. Crim. P. 24.4. 2001) (“No Alabama caselaw addresses whether a door for general objections, but rather, to avert undue th Cir. party to an appeal may challenge a trial court’s ap- requirements of specificity under an unnecessarily tech- 77. See United States v. Lewis, 928 F. 3d 980, 986 (11 2019) (“If Lewis had wanted the appeal waiver to be proved statement of the evidence.”). nical appellate construction of the word ‘distinctly.”’). conditioned on the court imposing the sentence that the 89. Bentley Sys., Inc. v. Intergraph Corp., 922 So. 2d 61, 70 58. Ne. Ala. Reg’l Med. Ctr v. Owens, 584 So. 2d 1360, 1364 government recommended for him, he should have bar- (Ala. 2005). (Ala. 1991). gained for that.”); see also Pate v. State, 884 So. 2d 1, 2 (Ala. 2003) (holding that by agreeing to “not attack [his] 90. Rice v. State Farm Fire & Cas. Co., 578 So. 2d 1064, 1064– 59. See Green v. Taylor, 437 So. 2d 1259, 1260 (Ala. 1983) guilty plea in any way, directly or collaterally, including 65 (Ala. 1991). (stating that “[b]ecause the Greens did not timely file a but not limited to . . . appeal,” the defendant waived his 91. Bentley Sys., 922 So. 2d at 70. motion to set aside the dismissal of their action, the right to appeal his sentence as part of his plea agree- question of whether the trial court erred in that regard ment); Kyzer v. State, 484 So. 2d 1202, 1203 (Ala. 1986) 92. See 19 Moore’s Federal Practice § 205.04[2] (3d ed. is not properly before us” and holding that “other issues (“[B]y waiving his right to appeal, the appellant waived 2004) (“If an appellee argues error below that calls into presented for our review cannot be considered because his right to have the sentence reviewed.”). question the merits of the judgment, that claim must they are of an interlocutory character”). be made by cross-appeal; if an appellee merely urges 78. See Eller v. State, 187 So. 3d 1184, 1187 (Ala. Crim. App. 60. See id. affirmance of the judgment, even though based on ar- 2014) (“[A] circuit court has no jurisdiction to modify a guments made in the alternative or rejected or ignored 61. Charles A. Wright & Arthur R. Miller, 9B Federal Practice legal sentence more than 30 days after that sentence is below, no cross-appeal is necessary.”); see also El Paso & Procedure § 2536 (3d ed.). imposed.”); Kyzer, 484 So. 2d at 1203 (“The trial judge Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999); correctly held that he was without jurisdiction to modify United States v. American Ry. Express Co., 265 U.S. 425, 62. Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1032 the two-year-old sentence because the motion was not (Ala. 1993). 435 (1926); Ex parte P&H Constr. Co., 723 So. 2d 45, 48– timely made within thirty days of pronouncement.”). 49 (Ala. 1988) 63. Merchants FoodService, No. 1170282, 2019 WL 988894, 79. See Ex parte Batey, 958 So. 2d 339, 341–42 (Ala. 2006). at *10 n.13 (“[I]ssues relating to the sufficiency of the 93. See 19 Moore’s Federal Practice § 205.04[2] (3d ed. evidence require a motion at the conclusion of all the 80. See Steele v. State, 911 So. 2d 21, 31 (Ala. Crim. App. 2004). evidence, but issues relating to pure questions of law 2004) (“Because Steele did not object to the State’s fail- 94. Compare Hawkins v. League, 398 So. 2d 232, 235 (Ala. do not.”) (quoting A.T. Stephens Enters., Inc. v. Johns, 757 ure to provide him with a copy of the Ohio conviction 1981) (holding that a cross-appeal was not required of So. 2d 416, 419 (Ala. 2000) (holding that a ruling on a prior to the hearing, Steele has waived this issue.”). an issue “not really adverse to” the appellee), with Hitt JML motion made at the close of the plaintiff’s evidence 81. See, e.g., Pope v. MCI Telecomm. Corp., 937 F. 2d 258, 266 v. State of Ala. Pers. Bd., 873 So. 2d 1080, 1088 (Ala. where there was not a JML motion made at the close of (5th Cir. 1991) (“[W]hen an appellant chooses to desig- 2003). all the evidence was allowed where the JML motion in- nate specific determinations in his notice of appeal– 95. Williams v. BIC Corp., 771 So. 2d 441, 445 (Ala. 2000). Alabama Lawyervolved only a pure question of law)). T h e 62 January 2020 96. See Sanchez-Velasco v. Sec’y Dep’t of Corr., 287 F. 3d 114. Id. at 810 (Lyons, J., concurring in result). 129. Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 1015, 1016 (11th Cir. 2002) (“An appellee may, without 810 F. 2d 243, 250 (D.C. Cir. 1987); see also Yates v. El 115. See Chandler v. State, 910 So. 2d 108, 112 (Ala. Civ. App. cross-appealing, urge in support of a result that has Bethel Primitive Baptist Church, 847 So. 2d 331, 333 2004) (holding in condemnation of land case, “we con- been appealed by the other party on any ground lead- (Ala. 2002); but see Ex parte Third Generation, Inc., 855 clude that the trial court’s admission of Clemmons’s tes- ing to the same result, even if that ground is inconsis- So. 2d 489, 491 n.4 (Ala. 2003) (“[O]ne of the difficul- timony amounted to harmless error and that, therefore, tent with the district court’s reasoning.”) ties with TGI’s law-of-the-case argument is Ala. Code the judgment based on the jury’s verdict is due to be 1975, § 12-2-13, which appears to negate any binding 97. Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala. affirmed”). effect of the ‘law-of-the-case’ doctrine as it applies to 1988). 116. Har-Mar Collisions, Inc. v. Scottsdale Ins. Co., 212 So. 3d this Court . . . .”). 98. Id. 892, 901 n.4 (Ala. 2016) (“[T]his Court will not address 130. United States v. Smith, 401 F. 3d 497, 498-99 (D.C. Cir. arguments raised for the first time in an appellant’s 99. Hinds v. Hinds, 887 So. 2d 267, 272 n.2 (Ala. Civ. App. 2005) (stating that the defendant’s “election not to re- reply brief.”). 2003). raise the challenge below means that he has failed to 117. See United States v. Rodriguez, 15 F. 3d 408, 414–15 n.7 preserve it for appellate review.”). 100. See Ex parte LaCoste, 733 So. 2d 889, 894 (Ala. 1998); cf. (5th Cir. 1994); Charles Alan Wright, et al., 16AA Federal 131. See Rule 1, Ala. R. App. P., cmt. (“As is the case with the United States National Institute of Trial Advocacy com- Practice & Procedure § 3974.3 (4th ed. 1999) (“[A] reply ARCP, it is the policy of these rules to disregard techni- mentary Fed. R. App. P. 28 (“An issue not raised in ap- brief is allowed . . . to address new issues raised in the cality and form in order that a just, speedy and inex- pellant’s opening brief may be deemed appellee’s brief . . . .”). waived–mentioning it in a footnote is not enough!”). pensive determination of every appellate proceeding 118. See Carlisle Ventures, Inc. v. Banco Espanol de Credito, on its merits may be obtained.”) (emphasis added). 101. Reynolds v. Colonial Bank, 874 So. 2d 497, 503 (Ala. S.A., 176 F.3d 601, 609 (2d Cir. 1999) (holding that the 2003) (holding that the absence of subject matter juris- appellant waived an argument where its reply brief diction may be raised for the first time on appeal); see failed to respond to appellee’s contrary assertions and also Mays v. Trinity Prop. Consultants, LLC, No. 2170867, did not otherwise point to any evidence disputing Ed R. Haden 2019 WL 1090487, at *3 n.2 (Ala. Civ. App. Mar. 8, those assertions). 2019) (“[T]he absence of subject matter jurisdiction Ed Haden is a partner at may be raised for the first time on appeal.”) (quotation 119. See Anderson v. Smith, 148 So. 2d 243, 245 (Ala. 1962) Balch & Bingham LLP in marks omitted); but see Jefferson Cty. Comm’n v. ECO (because “[a]n amicus curiae is limited to the issues Birmingham. Before joining Preservation Servs., L.L.C., 788 So. 2d 121, 127 (Ala. made by the parties to a suit,” an issue waived by ag- the firm, he served as the 2000) (overruling an application for rehearing and rea- grieved party “cannot be injected” by amicus into ap- Nominations and Constitu- soning that “[t]his lack-of-jurisdiction argument was pellate proceedings); Lanzi v. Ala. Dep’t of Rev., 968 So. not raised before the trial court or before this Court on 2d 18, 21 n.1 (Ala. Civ. App. 2007) (explaining that the tional Law Counsel on the original submission”). court would not consider an issue raised by an amicus U.S. Senate Judiciary Com- curiae when the appellant “waived that issue by declin- mittee for Chair Orrin Hatch and as Chief 102. Precision Gear Co. v. Cont’l Motors, Inc., 135 So. 3d 953, ing to argue it in his brief”). Counsel of the Courts Subcommittee for 959 (Ala. 2013) (footnote omitted). 120. Rule 29, Ala. R. App. P. (“The [amicus] brief shall follow Sen. Jeff Sessions. Haden also clerked for 103. See Ex parte Jenkins, 26 So. 3d 464, 473 n.7 (Ala. 2009) the form prescribed for the brief of an appellee.”). the Hon. E. Grady Jolly. He serves as chair of the Standing Committee on the Ala- 104. Tallant v. Grain Mart, Inc., 432 So. 2d 1251, 1253 (Ala. 121. Birmingham News Co. v. Horn, 901 So. 2d 27, 77 (Ala. 2004). 1983). See Totten v. Lighting & Supply, Inc., 507 So. 2d bama Rules of Appellate Procedure. 502, 503 (Ala. 1987) (“[T]his Court is not under a duty 122. See Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, to search the record in order to ascertain whether it 351–52 (Ala. 1997). contains evidence that will sustain a contention made 123. See, e.g., CSX Transp., Inc. v. Ala. Dep’t of Rev., 891 F. 3d by either party to an appeal.”). Jason B. Tompkins 927, 928 (11th Cir. 2018) (“CSX Transportation, Inc. . . . Jason Tompkins serves as 105. Kyser v. Harrison, 908 So. 2d 914, 917 (Ala. 2005) (quo- filed a petition for rehearing after we issued a substi- chair of the issues and ap- tation marks omitted). tute opinion granting the State’s petition for rehearing. We issued that substitute opinion to clarify that the peals practice at Balch & 106. See Alabama Power Co. v. Talmadge, 207 Ala. 86, 94, 93 water carrier exemption from the sales and use tax ap- Bingham LLP in Birming- So. 548, 555 (1921) (“The plumbing company’s defense plies only when those carriers purchase or use diesel ham and as vice chair of the was conducted separately, and these appellants have fuel to ship freight interstate, as opposed to shipping it Alabama State Bar Appel- no right to the benefit of an objection taken [o]n behalf intrastate.”) of the plumbing company only.”) late Practice Section. Before 124. L.E.O. v. A.L., 61 So. 3d 1058, 1060 (Ala. Civ. App. 2010) joining the firm, he was a law clerk for 107. Bentley Sys., Inc., 922 So. 2d at 85. (Moore, J., concurring) (“The supreme court also held the Hon. Karon Bowdre. In 2010, he was 108. See, e.g., Adams-Arapahoe Joint Sch. Dist. v. Continental that on certiorari review, the supreme court would con- special counsel to the U.S. Senate Judici- Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989) (“An issue not sider only questions treated in the opinion of the Court ary Committee for Ranking Member Jeff included in either the docketing statement or the state- of Appeals that were challenged in the petition and Sessions during the nomination of Elena ment of issues in the party’s initial brief is waived on that were argued in the brief filed in support of the pe- Kagan to the U.S. Supreme Court. appeal.”). tition.”) (citing Kelley v. Osborn, 113 So. 2d 192, 192 (Ala. 1959)); see also Rule 39(b)(4), Ala. R. App. P. 109. See Callaway v. Whittenton, 892 So. 2d 852, 858 (Ala. 2003). 125. See 39(a)(1)(D), Ala. R. App. P. 110. Ex parte Children’s Hosp. of Ala., 931 So. 2d 1, 8 (Ala. 126. Howell v. Mississippi, 543 U.S. 440, 444, 125 S. Ct. 856, Robert V. Baxley 2005). 859 (2005). Robert Baxley is an asso- ciate at Balch & Bingham 111. Id. 127. Id. LLP in Birmingham. Before 112. Spradlin v. Spradlin, 601 So. 2d 76, 78–79 (Ala. 1992). 128. French v. Warder, Wilcox State Prison, 790 F. 3d 1259, joining the firm, he was a 1270-71 (11th Cir. 2015) (quoting Kelly v. Sec’y of Dept. law clerk for the Hon. Ed Alabama Lawyer 113. See Ex parte Hanna Steel Corp., 905 So. 2d 805, 808 (Ala. th of Corr., 377 F.3d 1317, 1344–45 (11 Cir., 2004)). Carnes.

2004). T h e 63 www.alabar.org 64 T h e Alabama Lawyer January 2020 A DefenseRetrospective This yearmarksthe20 Alabama’s classactionreformstatute, Alabama’s Class Action Statute Turns 20: By Michael R.Pennington, Hunter Scottand W. BurnettSmith Pearce rorem 717 So.2d342(Ala.1997). parte FirstNat’lBankof Jasper, class certification.See,e.g. , Ex were notnecessaryprerequisites to theory thathearingsand evidence Rules ofCivilProcedureonthe satisfy Rule23ofthe Alabama periority wereoftenacceptedto legations ofpredominanceandsu- 1990s. Duringthattime,mereal- mecca fortheplaintiffs’ barinthe multuous reignastheclassaction passed inresponse Alabama’s tu- 6-5-640 to-42. The lawwas now knownas Alabama Code§§ 1999 Ala. Laws329–32(S.B.72), Compounding the resulting th effect of class certification on anniversary of in ter- Civ. App. 1996) (holding that the Guar. Ins. Co., claims. courts presented with similar jurisdiction and exclude any other at the outset to protect the court’s conditionally certify the class action vinced that it was necessary to tion complaints were routinely con- Trial courts presented with class ac- the “drive-by” class certification. 2d 330, 331 n.1 (Ala. 1992). Audio/Video Affiliates, Inc an extraordinary remedy. Court granting a writ of mandamus– pended upon the Alabama Supreme cation before final judgment de- only hope of reversal of class certifi- cisions as of right, so defendants’ appeal adverse class certification de- the defendant, only plaintiffs got to Worse, Alabama was the home of See, e.g. 669 So. 2d 198 (Ala. , Ex parte Voyager Butler v. . 611 So. courts. Alabama Code§§6-5-641 and 6-5-642elimi- formed theway classactionsareconducted instate Class Action Statute Imposed by Alabama’s The PrimaryChanges sity Jurisdiction Reform Class Actions: A Call for Federal Class Action Diver- Leah Lorber, judge. walking the complaint and a proposed order up to the fied the same day he filed the complaint simply by plaintiffs’ attorney could get a class conditionally certi- fore the complaint was filed. In some state trial courts, a had a case in which the class was certified the day be- enjoin competing action). sider protecting its jurisdiction in deciding whether to plaining that, in class actions, a trial court should con- State Mut. Ins. Co. before any defendant had entered appearance); cation issued 19 days after service of complaint and ing trial court to vacate conditional order of class certifi- defendant was not entitled to writ of mandamus order- class actionstatute. form cametotheSouth. And withitcame Alabama’s in Alabama wasajob-killer. All ofasuddentortre- vinced Alabama’s electoratethatthejudicial climate banded togethertodosomethingaboutit,theycon- And whencorporate America finallyhadenough and abama’s classactionlandscapewasabigreason why. class certificationoftenbroughtwerenevergreater. and themultimilliondollarsettlementpressurethat bar, theopportunitiestoachieveclasscertification make lemonadeoutofthelemons.Forplaintiffs’ premium forcreativelawyerswhocouldfindawayto the intellectualchallengesweregreat,andtherewasa lawyers, theopportunitiesforemploymentwerehigh, age ofpracticinglawin Alabama. Fordefense the judge, and had to remedy the oversight the next day. clerk’s office to file the complaint on the way up to see Sometimes the plaintiffs’ lawyer forgot to stop by the ing) (describing the practice of “drive-by” certification). 783 So. 2d 812, 818 (Ala. 2000) (Hooper, C.J., dissent- 494, 499–501 (2000); In 1999,the Alabama Legislature significantlyre- In fact, in those days, one of the authors of this article But forbusinesses,the’90sweredifficult, and Al- For lawyers,the’90swereinsomewaysgolden See Victor E. Schwartz, Mark A. Behrens, & Federal Courts Should Decide Interstate , 715 So. 2d 207 (Ala. 1997) (ex- see also Mitchell v. H & R Block , 37 H ARV . J. ON L EGIS 483, . Ex parte , appeal ofaclasscertificationdecision.Id. cally stayedduringthependencyofaninterlocutory judgment. Id.Alltrialcourtproceedingsareautomati- the partycanrevisitissueonappealfromfinal or unsuccessfullyappeals,onaninterlocutorybasis, class. §6-5-642. And ifapartychoosesnotto appeal, days ofanordercertifyingordecliningtocertifya class certificationorders,tobeexercisedwithin42 sides nowhavethebenefitofappealasrightfrom view toreverseaclasscertificationdecision.Both required toovercomethehighbarofmandamusre- tors and evidence relevant to each. § 6-5-641(e). tify a class in writing, addressing all the Rule 23 fac- to put their reasons for certifying or declining to cer- analysis of Rule 23’s requirements, are now required 641(d). And trial courts, after performing a rigorous support of or in opposition to class certification. § 6-5- have the right to a full hearing to present evidence in fication upon request of a party. merits discovery generally postponed until after certi- before holding a hearing on class certification, with schedule, and allow at least 90 days of class discovery required to confer with the parties, set a discovery § 6-5-641(b). Trialcertification courts are nowissues. spond to the complaint and conduct discovery on class tifying a class before the defendant had a chance to re- ized theclasscertificationprocess. nated manyoftheabusesthatpreviouslycharacter- substantive law” ofeachclaimtheplaintiffs seekto the “claims, defenses, relevantfacts and applicable presentation ofevidence andlegalargument, include issues tobeaddressedat thathearing,throughthe mandated by§6-5-641(d), thecourthasheld,“[t]he cation tobeproper. Id. referenced inthetrialcourt’s order”forclasscertifi- opposition.” Id. must begiven“anopportunitytooffer evidencein evidence oftheRule23criteria,”anddefendant The plaintiff bearstheburdenofoffering “sufficient Chevrolet v. Thomas,819So.2d34,40(Ala.2001). tiary hearing”onclasscertification.BillHeard held thetrialcourtmustconducta“formaleviden- made clear it intended to enforce these reforms strictly. The Statuteas Applied Perhaps moreimportantly, defendantsarenolonger First, the legislature prohibited trial courts from cer- To remove alldoubtonthescopeofhearing In anearlydecisionenforcingthestatute,court Almost right away, the Alabama Supreme Court at 40–41. The evidencemustalso“be at 40. Id. The parties now www.alabar.org 65 T h e Alabama Lawyer 66 T h e Alabama Lawyer the evidence andcertificationofthe class. Barnhartv. supreme court willdefertothetrialcourt’s analysisof vary fromoneclassmember tothenext,”then same proof,andtheanswer tothatquestionwillnot “hinge onacommonquestion oflaw, will requirethe RX, Inc.,956So.2d1117, 1126 (Ala.2006). 2d 795,805,812–16(Ala.2006);ExparteCaremark Houston Cty. HealthCare Auth. v. Williams , 961So. shown awillingnesstovacateclasscertification. See opposed tocasebycase–thenthesupremecourt has claim, oramedicalmalpracticeclaimclass-wide, as the elementsofafraudclaim,productliability say, failingto examinehowtheplaintiffs couldprove If thetrialcourt’s analysisfailstobesosearching–by, Rule 23(b)elementsofclasscertification.”Id. whether theplaintiffs canestablishtheRule23(a) and the Rule23criteriathattrialcourtmaydetermine ments ofeachclaim[anddefense]inthecontext gether, “[i]tisonlybyspecificallydiscussingtheele- set forthinRule23.”Id. of thoseclaimsanddefenses“bearuponthecriteria the trialcourtmustanalyzehowlegal“elements” So. 2dat41(citationsomitted).Ontheotherhand, sented bythecomplaintandanswer. BillHeard, 819 relevant facts,andapplicablesubstantivelaw”pre- the trialcourtmustunderstand“theclaims,defenses, ture thatlooksbeyondthepleadings.Ononehand, statute. The rigorousanalysisrequiredhasadual na- elements, consistentwiththe a “rigorousanalysis”ofRule23’s So. 3d1268,1271–72(Ala.2010). Baldwin Mut.Ins.v. Edwards, 63 new hearingontherevisedclass. ing, thetrialcourtmustconvenea the classdefinitionafterhear- 2002). And iftheplaintiff changes Red Bay,825So.2d746,749(Ala. Motors Acceptance Corp.v. Cityof So. 2d399,406(Ala.2004);Gen. court. Seeid.;Dischv. Hicks,900 court willoftenreversethetrial dant’s offer ofproof,thesupreme class beforethedeadlinefordefen- required hearingorcertifiesthe 42 (citationsomitted). criteria of Ala. R.Civ. P. 23.”Id.at and howtheyrelatetotherelevant have certifiedforclasstreatment January 2020 By contrast,whentheclaims ofeachclassmember The supremecourtalsodemands If thetrialcourtfailstohold Putting thetwohalvesto- class certification law now draws a hard lineagainst action common action Alabama’s class where liability individualized depends on at 42. proof. Smart Prof’l court will not give deference to the trial court. quirements of Rule 23(a) or Rule 23(b), the supreme the trial court fails to properly analyze the legal re- Childers-Sims 6-5-641(e). v. Hill precludes class certification.Univ. Fed.Credit Union created afiduciary duty. Such individualizedproof cial advice,orhadsome otherspecialrelationshipthat reposed trustinthebank, reliedonthebankforfinan- In thatcase,eachplaintiff mustpresentproofthathe fendant banklikewiserequires individualizedproof. class actionallegingbreachoffiduciarydutyby a de- ized voluntarypaymentdefense). A consumerloan 2004) (vacatingclasscertificationduetoindividual- of Ala. v. Johnson , 893So.2d307,312–13(Ala. 893 So.2d314,319–20(Ala.2004).SeealsoU-Haul plaintiff. Gen.Motors Acceptance Corp.v. Massey, alized inquiriesintotheuniquesituationofeach counterclaim formoneystillowedrequiredindividu- untary paymentdefense,andresolutionofGMAC’s ber’s claim,eachmember’s abilitytoovercomeavol- individualized proof.Liabilityoneachclassmem- against GMACoverforce-placedinsuranceturnedon pends onindividualizedproof. A putativeclassaction hard lineagainstclasscertificationwhereliabilityde- Cas. Co. v. Russell Alabama’s classactioncommonlawnowdraws a , 825 So. 2d 100, 104–08 (Ala. 2002); Id. , 850 So. 2d at 1252; , 850 So. 2d 1245, 1248 (Ala. 2002). If at 804–05; burden of proof under Rule 23 and § tiffs fail to carry their evidentiary tion will result whenever the plain- 2001). Reversal of class certifica- v. Snow quirements cation of Rule 23’s procedural re- court reviews the trial court’s appli- abuse of discretion, the supreme fication orders are reviewed for review on appeal. While class certi- ment also heightens the standard of standard leaseagreement). ing certificationofclaimsunder 3d 114, 124–25(Ala.2009)(affirm- v. McFadden,Lyon &Rouse,37So. CIT Commc’nFin.Corp. See also ployee benefitsunderstatestatute). cation ofuniformclaimsforem- (Ala. 2018)(affirming classcertifi- Ingalls, 275So.3d1112, 1129 , 798 So. 2d 664, 668 (Ala. 2001). The “rigorous analysis” require- , 823 So. 2d 667, 671 (Ala. Smart Photocopy Prof’l v. de novo Reynolds Metals Co. . Compass Bank Atlanta See Hughes that reliance was reasonable” under the circumstances. liance “require[d] individualized inquiry as to whether to each policyholder, proving each class member’s re- emphasized that even if Alfa had made the same pitch tion because proof of knowledge of and reliance on member); reliance element still required testimony from each based on single statement to all class members because 825 So. 2d at 105 (vacating certification of fraud claim dle of varying reliance remains. In Inc. inated. mity of representation” obstacle to certification is elim- part of a standardized sales pitch,” the “lack of unifor- can prove that the misrepresentations “were uniform or members. The court has observed that if the plaintiff the same fraudulent statement was made to all class claims are not suitable for class adjudication is when vidualized one.Id.at1098. form, makingtheissueofmisrepresentationanindi- oral salespitchesandreliancesonthemwerenotuni- There, thecourtfoundthat Alfa agents’ writtenand Ins. Corp.v. Hughes,861So.2d1088(Ala.2003). mum-payment planinsurancepolicies.See Alfa Life icyholders whosued Alfa forfraudinmarketing mini- the Alabama SupremeCourtdecertifiedaclass ofpol- ally beuniquetoeachclassmember. Forthatreason, ably reliedonthatfalsestatement,proofwillusu- made afalsestatementandthattheplaintiff reason- representation claimrequiresproofthatthedefendant cally requireindividualizedproof. A fraudulentmis- class treatmentbecausetheelementsoffraudtypi- individual adjudication(23(b)(3)). (23(b)(3)), andclassadjudicationisnot“superior”to questions affecting onlyindividualmembers” the commonissuesdonot“predominateoverany cal oftheclaimsordefensesclass(23(a)(3)), (23(a)(2)), thenamedplaintiff’s claimsarenot“typi- mean therearenoissues“commontotheclass” payment bymistake). of unjustenrichment,moneyhadandreceived, due toindividualizedproofneededestablishclaims member); proving paymentbymistakewasuniquetoeachclass 402 (Ala.2006)(vacatingclasscertificationbecause State FarmFire &Cas.Co.v. Evans,956So.2d390, v. Grayson,878So.2d280,291(Ala.2003).Seealso An oft-argued exception to the general rule that fraud Fraud claimsareevenlesslikelytobecertifiedfor In thelanguageofRule23,individualizedissues , 744 So. 2d 871, 878–79 (Ala. 1999)). But the hur- Id. 6 o dat 1100. , 861 So. 2d Snow , 850So.2dat1249(vacating Smart Prof’l at 1097–98 (citing , 823 So. 2d at 674 (vacating certifica- See also Reynolds Metals Household Retail Servs., Hughes , the court , lied upon the statement the same way. and its implications the same way, and (3) they all re- promise was made, (2) they understood the statement all class membersthat: were (1) present when the certified the class because the plaintiffs failed to show Reynolds Metals promise he made regarding severance benefits. ployees who claimed that a manager breached an oral als defeat predominance. For example, in whether there was a “meeting of the minds” will often those cases, individual circumstances relevant to treatment when the contract is oral or ambiguous. In value of each bond at different points in time). fraud claim, calculating damages required proof of the 2d 765, 776 (Ala. 2004) (noting that, for bondholders’ issues predominate. weigh when considering whether individual or common another layer of individualized questions the court must propriate for class certification”). to customers “are also individual issues that are inap- fendants had a duty to disclose and breached that duty Snow filing fee to its members was unique to each member); because proof that bank undertook a duty to disclose a See Grayson alized proof which generally defeats class certification. stances-dependent question that also requires individu- duty to disclose. The court has called that a circum- prove that, in addition to reliance, the defendant had a member). bank’s check-posting policy was unique to each class (2002) (decertifying classofautomobile lessorswho tors Acceptance Corp.v. Dubose,834So.2d 67, 73 provision maypreclude predominance. SeeGen.Mo- tions concerninghoweach memberinterpretedthat ing ofaprovisionisambiguous, individualizedques- dealing, and oral statements). ber’s understanding of defendant’s practice, course of proof would require individual inquiry into each mem- cating certification of breach of contract claim because remained to certify a class. out such a showing, too many individualized questions for each named plaintiff); rounding the formation of the contract were different breach of contract claim because the circumstances sur- Hughes Breach of contract claims are also ill-suited to class Finally, calculating damages in fraud cases adds yet For fraudulent suppression claims, the plaintiff must Even whenthereisawritten contract,ifthemean- , the court vacated an order certifying a class of em- , 823 So. 2d at 674 (stating that whether bank de- , 861 So. 2d at 1101 (vacating certification of , 878 So. 2d at 290 (vacating certification , 825 So. 2d at 102–03. The court de- See Regions Bank v. Lee Snow See id. , 823 So. 2d at 677 (va- at 108. Reynolds Met- Id. at 106. With- See also , 905 So. www.alabar.org 67 T h e Alabama Lawyer 68 T h e Alabama Lawyer tentially applicable tosomeclassmembers, suchas nore” thequestion ofcounterclaimsand defensespo- trial court’s rigorousanalysis thatfollows“cannotig- submission insupportof classcertificationandthe Rule 23itselftomeanthat theplaintiff’s evidentiary both the Alabama class actionstatuteand Alabama So. 2d314,319–20(Ala.2004),thecourtconstrued claims atypicaloftheclasshepurportedtorepresent. common totheclassasawholerenderedplaintiff’s of injuryinfactanddamages,thesecircumstances not the plantermsdidnotsoprovide.Fromstandpoint monitor hadbeenprovidedtoplaintiff eventhough legedly orallymisrepresented,andareplacement plan hadalreadybeenperformedbydefendantas al- cover thecostofplan,butinplaintiff’s case, the legedly orallymisrepresented.Plaintiff sought to re- for acomputermonitorthetermsofwhichwereal- based onpurchaseofwrittenextendedserviceplan cation inacaseassertingMagnusonMoss Act claims (Ala. 2008),thecourtaffirmed denialofclasscertifi- discretion. the putativeclass,classcertificationwasanabuseof and plaintiff’s claimswerenottypicalofthe of defense ofres judicata the namedplaintiff’s claimsaresubjecttotheunique So. 2d801(Ala.2018),thecourtruledthatbecause otherwise similarpolicieslackingtheendorsement. atypical oftheclasspersonswhohadpurchased plaintiffs’ declaratoryjudgmentandrestitutionclaims stroyed adequacyofrepresentationandrendered ated policyendorsementuniquetotheplaintiffs de- So. 2d664(Ala.2001),thecourtfoundthatanegoti- ferent ways.InAtlantaCasualtyCo.v. Russell,798 claims candefeatclasscertificationinacoupleofdif- of thecourt’s classdecisionssincethe1999statute. Of the Last Two Decades Court’s Class Decisions Other Themes in the member hasinterpretedtheambiguouslanguage”). quires thefinderoffacttodeterminehoweachclass lease provisionbecause“resolvingthisambiguityre- sued GeneralMotorsforbreachofanambiguous January 2020 In GeneralMotors Acceptance Corp.v. Massey, In Bankerv. Circuit CityStores, Inc., In BaldwinMutualInsuranceCo.v. McCain, For example,individualizeddefensesandcounter- Other commonthemesalsoemerge fromareview by virtueofpriorlitigation, 7 So.3d992 260 893 the courtexplainedthat: claim filewasadmittedlystillgoingtobenecessary, homeowners’ claimeventhoughreviewofevery calculation of“actualcashvalue”forpurposes ing failuretoincludegeneralcontractorprofitinthe tification hadbeengrantedinaclassactionchalleng- DeWitt, 85So.3d355(Ala.2011), inwhichclasscer- ample, inNationalSecurityFire &CasualtyCo.v Alabama SupremeCourthashelddifferently. Forex- 1121 (9 (2019); Brisenov. ConAgraFoods,Inc.,844F. 3d 799 F. 3d497(6 , 690F. aff’d App’x 526(9 2013 WL 1490667,at*1(C.D.Cal.Jan.28,2013)), trial” (quotingPedroza v. PetSmart,Inc. , No.11–298, support ofclasscertificationneednotbeadmissibleat (E.D. Cal.2015)(holdingthat“evidencepresentedin Pena v. Taylor FarmsPac.,Inc.,305F.R.D. 197,205 evidence insupportofclasscertification.See,e.g., cepted summariesorassurancesofclasscounselas 3d 405(6 Martin v. BehrDaytonThermalProds. LLC,896F. sues later”approachtoclasscertification.See,e.g., other solutionstomanageabilityorascertainabilityis- “certify now, haveindividualizedhearingsorfind Life Ins. Corp. v. Johnson, of Red Bay, (Ala. 2004); U-Haul Co. of Alabama v. Johnson, vidualized defenses and counterclaims were made in Rule 23 factors in light of potentially applicable indi- loan accountsmightengenderinthatcase. “forced placedcollateralprotectioninsurance”on premium andillusorycoverageclaimsregarding terclaims thatclasscertificationoftheexcessive fense andpotentialindividualizeddelinquencycoun- the inherentlyindividualizedvoluntarypaymentde- But inlightof Alabama’s classactionstatute,the A numberoffederalcourtsrecentlyhaveadopteda Similar holdings regarding the need to evaluate all claims to be certified and to discuss, in the context trial court is required to identify the elements of the simple statement of which state’s law governs; the law applicable to the case” requires more than a claim…. The mandate to identify the “substantive the proof that will be necessary to establish the substantive law applicable to the case and identify class members, the court must initially identify the over those questions that affect only individual fact common to the class members predominate In determining whether the questions of law or th Cir. 2017);Rikosv. Procter &GambleCo. , th Cir. 2018),cert.denied,139S.Ct.1319 2 o d746, 749 (Ala. 8252002); So. and2d General Motors Acceptance Corp. v. City th Cir. 2015).Somehaveevenac- 822 So. 2d 400 (Ala. 2001). th Cir. 2017). 893 So. 2d 307 Alfa plaintiff’s acceptance of settlement offer deprived Suggs of class certification. nates the ability of the court to consider the question ing after suit through the doctrine of mootness elimi- of Human Res. c’n on his own behalf or on behalf of a class.” presented and the plaintiff has no standing to sue either leged in the complaint, then no case or controversy is named plaintiff has not been injured by the wrong al- ted). The court has repeatedly explained that “[i]f a Healthcare Auth. son to represent any class. vidually, the court consistently refuses to allow that per- Shield of Ala., the claimitself).SeeWyeth v. BlueCross &Blue claim (whichthecourtsayslooksatviabilityof type ofclaimatissue)fromhismerefailuretostatea whether theplaintiff isaproperpartytobringthe guish theplaintiff’s standing(whichitsaysgoes to in thesecases. The courthasbeencarefultodistin- thority, 961So.2dat805–06. So. 2dat41,andHoustonCountyHealthCare Au- Snow, statute caseswithlanguagetothesameeffect include Id. Likewise, deprivation of the named plaintiff’s stand- But when satisfied that plaintiff has no standing indi- Standing hasbeenanotherregularfocusofthecourt unexplained or uncertain manner.” they will be resolved later in some exist, it is no answer to say that .If serious manageability problems superiority ... can be overcome.… lems with predominance or surances of counsel that any prob- court may not merely rely on as- certification is proper, ‘[t]he trial burden to demonstrate that class In connection with the plaintiffs’ elements of class certification…. establish the Rule 23(a) and 23(b) termine whether the plaintiffs can criteria that the trial court may de- claim in the context of the Rule 23 discussing the elements of each ments. It is only by specifically ent to establish each of those ele- the proof the plaintiffs must pres- of the class certification criteria, , 37 So. 3d 122 (quoting at 369–70(internalcitationsomitted).Otherpost- , 932 So. 2d 95, 98–99 (Ala. 2005) (named 819 823 So.2dat675,BillHeard Chevrolet , , 843 So. 2d 164, 167 (Ala. 2002)). 42 So.3d1216,1220(Ala.2010). , 961 So. 2d at 805–06 (citations omit- See, e.g. See, e.g. Kid’s Care, Inc. v. Ala. Dep’t , Pharmacia Corp. v. , Houston Cty. standing cannot be includedina would nothave CIT Comm- members who certified class. certified putative class The court has The court stated that cle for a money-damages class action is Rule 23(b)(3), Supreme Court has made clear that the appropriate vehi- Fibreboard Corp L.L.C. v. Pickard 23(b)(1). 23(b)(2) or the inconsistent adjudication prong of not be certified under the “non-opt-out” provisions of clear that a class seeking primarily money damages may U.S. 338 (2011) Court’s decision in 3d 12, 18 (Ala. 2009). Consistent with the U.S. Supreme out of a putative class action.” lowing Rule 23(b)(1) and (b)(2) class members to opt 23(b)(3) class, “[n]o corresponding provision exists al- appropriate fortheclassasawhole. nature thatinjunctiveordeclaratoryreliefwouldbe propriate wheretheplaintiffs’ claimsareofsucha terests. UnderRule23(b)(2),certificationmaybeap- the nonmember–plaintiffs’ abilitytoprotecttheirin- defendant toconflictingstandardsofconductorharm cution byseparateactionswouldrisksubjectingthe 23(b)(1), atrialcourtmaycertifyclasswhereprose- primary reliefsoughtismoneydamages.UnderRule sue and could not be included in any such class). gone explanation of their implants had no standing to cause those who had not suffered infection or under- fungal infections, was improperly certified, in part be- At least absent a “limited fund” situation, see While Rule 23(c)(2) allows members to opt out of a Some typesofclassesareinappropriatewhenthe See Ryan , , 873 So. 2d 198, 208–09 (Ala. 2003). ., 527 U.S. 815 (1999), the Alabama the Alabama Supreme Court has made , 23 So. 3d at 18; done rendered patients subject to in which breast enhancements were certain period, alleging conditions of a cosmetic surgery clinic during a of all breast augmentation patients practice “exposure to fungus” class products liability, and medical mal- 810–812 (finding that a suppression, Healthcare Auth. certified class. standing cannot be included in a class members who would not have fee challenged). a third party reimbursed her for the claims on a class basis even though standing to assert unjust enrichment 1111 (Ala. 2003) (car renter had Sys., Inc. v. Heiman, class). them of standing to represent a Wal-Mart Stores, Inc. v. Dukes The court has stated that putative Compare Avis Rent A Car Ryan v. Patterson e Houston Cty. See Funliner of Ala., , 961 So. 2d at 876 So. 2d www.alabar.org Ortiz v. , 23 So. , 564 69 T h e Alabama Lawyer 70 T h e Alabama Lawyer the classallegations ofacomplaintat thepleading court reminded practitionersthatifyou seektoattack 404-05. include reliefnotevensought inthecomplaint.Id. all thecircumstances,and thatclasssettlementscan differently aslongdoing soisequitableinlightof held thataclasssettlementcantreatmembers garding classsettlements,thiscasealsoexplicitly the mostrecentamendmentstoFederalRule23re- (Ala. 2012).Presagingsentimentsnowexpressed in others mayalsohaveaclaim.”127So.3d.343,399 fundtowhich cover, increase,preserve, orprotect a services onbehalfofhisclientoperatedtocreate, dis- ciple [is]designedtocompensateanattorneywhose not applyonlyifafundis‘created’;instead,the prin- are appropriate:“[T]hecommon-funddoctrinedoes expansive viewofwhencommonfundattorneys’ fees personally signtheobjectionoropt-outrequest. ment thateachpersonobjectingoroptingoutmust for bothopt-outsandobjections,alongwitharequire- ment, itisgoodpracticetoincludeasimilarprovision objected forofstandingtoappeal.Inanyclasssettle- group anddeprivethosevicariously as putativerepresentativesofa prevent anobjectorfromobjecting self, thatisenforceableandwill object onbehalfofanyonebuthim- itly statesthatnoclassmembermay that whereaclasssettlementexplic- 12, 18(Ala.2009),thecourtheld pointers. 20 yearsalsorevealafewpractice class actiondecisionsoverthelast Action Decisions Century Class Court’s 21st Found inthe Practice Pointers are necessary to determine damages. claratory relief if individual hearings deemed incidental to injunctive or de- and that money damages will not be January 2020 In Hallv. Environmental LitigationGroup, P.C., the In Perdue v. Green , thecourtconfirmedasomewhat In Ryan v. Patterson,23So.3d The Alabama SupremeCourt’s settlement, it is good practice topractice includea out mustpersonally similar provision for with arequirement objecting oropting objecting or opt-out request.or opt-out both opt-outs and both opt-outs sign theobjection objections, along objections, that eachperson In any class at But aFewMore CanMakeaUnicorn,D Scott BurnettSmith,Two Wrongs Don’t MakeaRight, action practice.See,e.g.,MichaelR.Pennington& both sidesto commentontheopponent’s proposed to askbothsides tosubmitproposed orders,andallow scrutiny. A betterpractice wouldbeforthetrialcourt practice seemstoguarantee increasedappellate generally doesnotreverse onthatgroundalone,the Heard Chevrolet, 819So.2dat41. While thecourt cation. See,e.g.,CIT Comm’n,37So.3dat122; Bill the partiestodraftordersgrantingordenyingcertifi- discourage thepracticeoftrialcourtsallowingone of certification. claims inacomplaintasparticularlyfataltoclass ion alsoidentifiedtheinclusionofemotionaldistress volving bothinjunctivereliefanddamages. The opin- such classesandfounditinappropriateforclaims in- many problemsassociatedwithattemptingtocertify 2d 198(Ala.2003),thecourtanalyzedsomeof right-but-a-few-more-can-make-a-unicorn/. declassified.com/2019/05/two-wrongs-dont-make-a- (May 9,2019),https://www.classaction Finally, anumber ofthecourt’s opinionsstrongly In Funlinerof Alabama, L.L.C.v. Pickard, 873So. some callitthe“unicorn”ofclass rarely materializinginpracticethat class certification,acreatureso about thepossibilityofdefendant seem thewiserchoice. Rules 12(f)and23(c)(d)would their materiallyidenticalversionsof federal courtshavedevelopedunder voking the“persuasiveauthority” motion tostrikealternativeandin- (quotation omitted).Invokingthe would entitlehertorelief.Id.at957 prove anysetofcircumstancesthat it appearsthatthepleadercould most stronglyinthepleader’s favor, gations ofthecomplaintareviewed standard iswhether, whenthealle- 3d 949,957–958(Ala.2017). That dard underRule12(b)(6).248So. plaintiff-to-satisfy state-lawstan- allegations undertheeasier-for- then thecourtwillanalyzeclass Rule 12(f)and23(c)(d), tion tostrikeclassallegationsunder 12(b)(6) ratherthanthroughamo- stage, doingsobyfilingaRule Commentators havelongmused ECLASSIFIED dants unable toutilizearbitrationare many, the will alwaysbe opportunities. The categories ofdefen- with theproductortransaction inquestion. agreement withaclassaction waiverinconnection unable orunwillingtoinsist uponanarbitration class certificationarethosewherethedefendant was like 20yearsago,mostconsumercasesthatmake itto cion, 563U.S.333(2011). This meansthattoday, un- be enforced.See,e.g.,AT&T MobilityLLC v. Concep- bitration agreementswithclassactionwaiversmust made clearthat,withrareexceptions,pre-dispute ar- one bigcaveat:theUnitedStatesSupremeCourt has and withouttheboundariesof Alabama, subjectto 1990s, theycontinuetobloomelsewhere,bothwithin in thestatecourtsof Alabama astheydidinthe while classactionsmaynotbloomquiteasprofusely under Fed.R.Civ. P. 23(f)aresparinglygranted.So from classcertification,anddiscretionaryappeals Health Grp.,Inc.v. Klay,125S.Ct.877(2005). 1241 (11 federal courts.See,e.g.,Klayv. Humana,382F. 3d Many plaintiff’s lawyersnowfileinitiallyin Alabama proven tobemoreclassfriendlythanmanyrealized. plaintiff is of diverse citizenship from any defendant. in state court by making most of them removable if any (CAFA) made it much rarer for any class action to stay mecca, the federal Class Action Fairness Act of 2005 bar to migrate elsewhere in search of their class action class action statute has caused many in the plaintiffs’ decided withoutopinion. for decisionbythe Alabama CourtofCivil Appeals or related appealsduringthishaveeitherbeendeflected number ofclasscertificationappealsandother action opinionsofthe Alabama SupremeCourt,anda class actionstatute. ber isnotdueentirelytothepassageof Alabama’s as ofthedatethisarticle.Ofcourse,thatlownum- high courtinthelast20yearsnumberlow30s Some Final Thoughts 3d at122. work productofthecourt.SeeCIT Commc’n,37So. only asastartingpointforanopinioneditedtobethe order, andforthecourttothenuseoneorother Still, forthe Alabama class actionpractitioner, there In federalcourt,therestillisnoappealasofright In thewakeofCAFA, theEleventhCircuithas Second, while one may suspect that the Alabama First, thisarticlehasonlyexaminedreportedclass The classcertificationopinionsissuedby Alabama’s th Cir. 2004),cert.deniedsubnom.United- Hunter W. Pearce Rules of Civil Procedure on appellate review of class actions. Scott BurnettSmith Michael R.Pennington good lawyersonbothsidesofthe“v.” toshine. that doesn’t meantherearen’t stillopportunitiesfor judge’s office onthesamedayyoufileacomplaint, harder thanwalkingaproposedorderuptothe L.L.C., 37So.3d114 (Ala.2009). Commc’n Fin.Corp.v. McFadden,Lyon &Rouse, Corp. v. Lauriello,175So.3d596(Ala.2014);CIT Green, 127So.3d596(Ala.2014);CVSCaremark Grp., P.C., 248So.3d949(Ala.2017);Perdue v. 275 So.3d1112 (Ala.2018);Hallv. Envtl.Litig. tions inwholeorpart.See,e.g.,Barnhartv. Ingalls, last 20yearshaveinfactapprovedofclasscertifica- Alabama SupremeCourt’s classdecisionsoverthe ing denialofclasscertification,severalthe lished opinionsvacatingclasscertificationoraffirm- bama inothervenuesaroundthecountry. ers opportunitiestoapplythelessonslearnedin Ala- of lawgives Alabama classactiondefensepractition- none, andtheincreasingglobalizationofpractice creativity ofthe Alabama plaintiff’s barissecondto If gettingclassactionscertifiedisnowalittle And hereathome,whiletherehavebeenmorepub- W. Harold Albritton, III. WatkinsKeith andW. Senior Judges Judge Myron H. ThompsonChief and served he where Alabama, for the U.S. District Court for the Middle District of clerked Pearce firm, the joining Before group. tice Huntsville and a member of the firm’s litigation prac- tifiedbeforethe AdvisoryCommittee Federaltheon including over 35 class action appeals. He has also thantes-200 appeals in federal and state appellate courts, Academy of Appellate Lawyers and has handled more pellate litigation group. He is a Fellow in the HuntsvilleAmerican and the founder and chair of the firm’s ap- of experience defending class actions nationwide. firm’s class and complexthe litigationof co-chairand founder the group,is Birmingham.He with 30 years Hunter Pearce is an associate at Bradley Arant in Bradley Arant at associate an is Pearce Hunter in Arant Bradley at partner a is Smith Scott Bradleyin Arantat partner a Penningtonis Mike www.alabar.org s 71 T h e Alabama Lawyer 72 T h e Alabama Lawyer January 2020 Article IExtensionof an Alabama Magistrate Northern Districtof Justice Sotomayor wrote in a Judges, aCritical Article IIICourt By Robert E. Adam and P. Battle By Robert Plant 2015 opinion that, trate judges. Nationally, magistrate there were only 61 full-time magis- sharp increase since 1971, when Northern District bench. This is a 2019, five of whom are on the judges authorized for fiscal year there are 541 full-time magistrate of Alabama. holds true in the Northern District would grind nearly to a halt.” That work of the federal court system of” federal magistrate judges, “the “without the distinguished service The Federal Judicial Center says evidentiary matters. deal withsignificant pretrialand manage grandjurymonths and cases, magistratejudges actively Northern District.Incriminal judges isabout60percent inthe rate ofconsentformagistrate the casethroughjudgment. The case, themagistratejudgehandles magistrate judgeassignedtothe judges. Ifthepartiesconsentto in equalproportiontothedistrict “wheel” assignmentofcivilcases regular fixtureintherandom in theNorthernDistrictbecamea cases. In2015,magistratejudges center ofbothcivilandcriminal ern Districtof Alabama areinthe matters during the 2018 fiscal year. judges disposed of 1,182,422 Magistrate judgesintheNorth- longevity as a federal magistrate Putnam has set the benchmark for civil trial practice in Florence, Judge tioned into a robust federal court southeast Alabama, then transi- and on ladders as a housepainter in making change.” that Iwascapableofphysically “my principalqualificationwas dent atCentralHighSchool,said City.” JudgePutnam, thenastu- Jack’s hamburgers inPhenix first job,whenIwas16,ata Putnam fromhischambers.“My said MagistrateJudge T. Michael another, sinceIwas16yearsold,” Judge T. Putnam michael our localmagistratejudges. pulls backthecurtainalittlebiton if youlitigatehere. This article will touchyourcaseinsomeway good chanceoneofthesefolks the 2017fiscalyear, sothereisa judges resolved6,649casesduring In a work life that started at Jack’s “I havehadajob,ofonekindor Northern Districtmagistrate degree offormality, andfairness, just disputeresolution, butithasa can be. And Ihatetoreduce itto jewel ofwhatdisputeresolution eral judicialsystemisthe crown approach tohiswork.“The Fed- nerstone ofJudgePutnam’s tion oftheUnitedStatesiscor- of anoathtoprotecttheConstitu- nity oflitigantsandthehighhonor give your best effort.” harm. “As a lawyer, you have to standing between that client and real because the lawyer is the only thing judgment and experience and effort” client and to the profession your full “Being a lawyer, you owe to the vide valuable instruction to lawyers. has ways of correcting its errors.” fact,” but “our constitutional system ones Iremember.” been doingthis,butthosearethe them overthe32yearsthatI’ve have onlybeenthreeorfourof corpus relieftoaprisoner. There I recommendedgrantinghabeas always rememberaretheonesthat criminal matters–“theonesthatI MDL, theEricRudolphpretrial Scrushy, theBlueCross Antitrust rities fraudtrialofRichard he hasworked–includingthesecu- the thousandsofcasesonwhich Northern Districtof Alabama. Of many high-profilecasesinthe judge, JudgePutnamhandled before this article was published. tired during the summer of 2019, February 9, 1987 and officially re- judge. He entered active service on A beliefinthefundamentaldig- The most troubling cases also pro- “It may be many years after the During thosethreedecadesasa history ofthe NorthernDistrictof serving magistrate judgeinthe read thedeposition.” osition transcript,I’mgoing to judgment motionandattach adep- ences that,ifyoufileasummary civil casesatschedulingconfer- litigation, aswell.“Itellpeoplein dedication togarden-varietycivil fend the Constitution.” overwhelm the oath I took to de- that the volume simply doesn’t is “the only way I know to ensure Judge Putnam says this dedication that takes longer to resolve a case.” take shortcuts, even though I know tiff submits to the court. I don’t will read every word that the plain- merit. “If a habeas case comes in, I by those with little substantive ume of those cases is overwhelmed ous claim–simply because the vol- petition can articulate a meritori- 1983 case or who filed a habeas cases where a prisoner in a Section for those needles in the haystack”– urges his clerks and staff “to look oner litigation or habeas cases. He to plaintiffs in Section 1983 pris- being,” rather than becoming jaded member that person is a human eral courtsystem.” tant partandmissionoftheFed- seemed tomebeaveryimpor- dom, andhumanrights. That human dignity, andhumanfree- other fundamentalcasesabout v. Board ofEducationandvarious tion ofadisputebetweenpeople.” and gravitytobringtheresolu- Judge Putnamisthelongest- Judge Putnambringsthesame “I have tried every day to re- “I grewupreadingaboutBrown www.alabar.org 73 T h e Alabama Lawyer 74 T h e Alabama Lawyer Judge John Englandiii overwhelm hisoath. a judgenotallowinghisdocketto trict havebeenagreatexampleof public serviceintheNorthernDis- worth ofdiscoveryissues. has handledmorethanfouryears’ Magistrate JudgePutnamalready for adistrictjudge.Inthatcase, judge’s equivalentofseniorstatus better term,isthemagistrate antitrust case.Recall,forlackofa nam tocompletetheBlueCross threatening torecall”JudgePut- “Judge Proctor[was]already a veryhighlevel.” the jobwillcontinuetobedoneat to dothejob.Ihavefullfaiththat and talentoftheremainingpeople doesn’t takeawayfromtheskill the firsthandhistoryaway. Butit What thatdoesisittakessomeof than 20years’ experiencehere. Judge Ottwillleavewithmore of experiencehere. A yearlater, “I’m goingtoleavewith32years serving intheEleventhCircuit. Alabama, andamongthelongest- January 2020 Judge Putnam’s threedecadesof Even beforehisretirement, the U.S. Army ReservesHejoined which began withhisservicein sider mycareerinpublic service” magistrate judge“asaway tocon- land appliedtobecomea federal a numberofyears.”Judge Eng- serve the citizens for of Tuscaloosa watched my dad take the bench and thought about–primarilybecauseI point, wassomethingthatIalways England. “Beingajudge,atsome without adoubtthe“real”Judge calls hisdocket,though,heis around thetableatholidaymeals. achievement whenthefamilysits lature. Sothereisafairbitof doesn’t fit”inthe Alabama Legis- And he’s plainspoken.Inshort,he England as“smart.He’s honest. Kyle Whitmire describedRep. lawyer-legislators. Columnist District 70asoneofour18 ture whereherepresentsHouse member ofthe Alabama Legisla- land’s youngerbrother, Chris,is a Education in Atlanta. JudgeEng- attorney attheU.S.Departmentof Albright. Sheisnowasupervisory Sanders, Pettaway, Campbell& known asChestnut,Sanders, the prominent Selma firm formerly practiced asacivilrightslawyerat Court. April England-Albright justice ofthe Alabama Supreme County andaformerassociate circuit courtjudgein Tuscaloosa Judge England please stand up?” swers when you ask “will the real bama you might get conflicting an- in the Northern District of Ala- tory of the Alabama State Bar. So, distinguished families in the his- III is a member of one of the most When MagistrateJudgeEngland Judge JohnEnglandJr. isastate Magistrate Judge John England practiced with folks,andlawyers trust inhim. “Iknewfolksandhad with JudgeEnglandtobuild their and lawyershadtolitigate cases signed thesecases,”and litigants what we’redoingwhen as- of ushavetoprovethatweknow ning toendisnotaguarantee.“All to do justice.” cate for a position, now I’m trying someone’s privacy. I used to advo- that affected someone’s freedom or when it came to making decisions ing at things with an unbiased lens cutorial experience that I was look- that, despite my 13 years of prose- had to make sure when I came in particularly in criminal cases. “I how difficult the job of judging is, is on the bench he fully appreciates rather than trading barbs via email. using an old-fashioned phone call, the intra-case disputes that arise by that lawyers can resolve most of them to court. He is a firm believer different experience” that brings that appears in front of me has a valuable on the bench. Everybody versity of ideas and experiences is right, to call balls and strikes. “Di- philosophy is to try and get cases Huntsville afterlawschool. practice civillitigatorin Judge Englandalsowasaprivate I wasactiveintheReserves.” was mysecondyearoflawschool, “From 1988through1995,which ney fortheNorthernDistrict. ney andFirst Assistant U.S. Attor- his timeasan Assistant U.S. Attor- and continuedallthewaythrough tral HighSchoolof Tuscaloosa, the ReservesasastudentatCen- Presiding overcasesfrombegin- Judge England says now that he Judge England said his judicial est toenterthe law. might havethe aptitudeandinter- out totalentedyoungpeople who can playacriticalrolein reaching see whatispossible,and thebar parent achievealegaleducation to for studentswhohavenotseena England believesitisimportant knew whatwaspossible.”Judge a veryhighlevelofsuccess.SoI not justtoachieve,butachieve was–plus, Iabletoseesomeone nowhere closetoasdifficult ashis possible. “Mysituationwas his understandingofwhatwas his father’s examplewascriticalto graduated.” JudgeEnglandsays African-American lawstudent time thatasecond-generation bama “in1996,itwasthefirst school” attheUniversityof Ala- are determined a year ahead of time. with duty months in mind,” which also adds to the workload. “I plan Being assigned as the “duty judge” the criminal cases from that month. magistrate judge who handles all of jury session will be assigned to one Each indicted case from that grand grand jury duty on a monthly basis. magistrate judges are assigned to a district judge. In criminal cases, which they are jointly assigned with handle independently and those on civil cases, including those they can be assigned to more than 200 assignment. At any one time, they leagues, is in the rotation for case the parties.” end, wehavetoconsentof side overacasefrombeginningto uniquely situated,becausetopre- sense. Magistratejudgesare here knewIhadwalking-around “When Igraduatedthelaw Judge England, like his col- spent a year as a special master for her J.D. from Alabama in 1992. tional relations in 1989. She earned lor’s degrees in English and interna- Alabama and graduated with bache- toches to attend the University of film). Judge Cornelius left Natchi- nelius’s family appeared in the filmed (and some of Judge Cor- location where in the Louisiana Purchase, was the toches, the oldest settlement acquired Natchitoches, Louisiana. Natchi- lawyer tomydutiesasajudge.” work ethicIdevelopedasatrial the court–andItrytobring work–for boththeattorneysand portance ofpreparationandhard judge: “Iknowfirsthandtheim- sight intohowtobeaneffective and practice.Italsogaveherin- working knowledgeofcourtrules This backgroundgaveheragood various stateandfederalcourts. civil andcriminalcasestojuriesin Cornelius triedmorethan200 2014, MagistrateJudgeStaciG. Judge staci g.Cornelius After law school, Judge Cornelius Judge Cornelius grew up in Before takingthebenchin April Steel Magnolias was cause shebelieved herexperience interest inpublic serviceandbe- sought thepositionbecause ofher to becomeamagistratejudge. She from approximately50applicants crimes. fraud, immigration,andcomputer cluding healthcarefraud,financial a widevarietyoffederalcases,in- aged investigationsandprosecuted an AUSA, JudgeCorneliusman- the NorthernDistrictin2012. As came an Assistant U.S. Attorney in her rootsasaprosecutor. Shebe- tice, JudgeCorneliusreturnedto School for most of that time. cacy instructor at Cumberland Law She also was an adjunct trial advo- cases to verdict in private practice. Judge Cornelius tried 68 civil jury faith and extra-contractual claims. shop and liquor liability, and bad malpractice, products liability, dram defense cases included medical range of civil practice. Some of her firm, which offered her a broad Judge Cornelius moved to another Jury Verdict Reporter neys in Alabama by the one of the most prolific trial attor- Judge Cornelius was recognized as cases. From 2005 through 2007, primarily on insurance defense vate civil litigation practice focused attorney’s office in 1999 for a pri- involved violent crimes. felony jury trials, many of which tor, she tried approximately 150 During six years as a state prosecu- County District Attorney’s office. then worked at the Jefferson gomery County District Court. She domestic relations cases in Mont- Judge Corneliuswasselected After 13yearsinprivateprac- Judge Cornelius left the district . In 2008, Alabama www.alabar.org 75 T h e Alabama Lawyer 76 T h e Alabama Lawyer bers ratherthan inthecourtroom. will meetwith lawyersincham- often grantsoralargument and of movingalongherdocket. She tending deadlines,butis mindful able withthepartiesregarding ex- Cornelius isknowntobe reason- case-management issues.Judge tively involvethecourtin tor andencourageslawyerstoac- in privatepracticeorasaprosecu- difficult itcanbetojugglecases “lawyer’s judge.”Sherecallshow every fivemonths. criminal casesonemonthoutof tion whereeachisassigned istrate judgesparticipateinarota- the middleofmonth. The mag- monthly andarraignmentsarein District, thegrandjurymeets criminal matters.IntheNorthern mately 35percentofhertimeon makes a great job even better.” with their time, wisdom, and advice collegial group, whose generosity able resource: “I work with a very the Northern District are an invalu- point out that her fellow judges in And Judge Cornelius is quick to to grow in my legal knowledge.” with a solid foundation from which “has served me well and set me up and the law aren’t on my side.” cate for a client even when the facts gone are the days of having to advo- result dictated by the facts and law– right. My objective is to reach the judge. “I like that my job is to get it colleagues,” but she likes being a with opposing counsel, clients, and everyday interaction a litigator has to beajudge. made herawell-suitedcandidate January 2020 Judge Corneliusisconsidereda Judge Corneliusspendsapproxi- She says her varied background Judge Cornelius misses “the civil duties as my practice involved for this position, especially for my in civil litigation, prepared me well on the heels of my eight-plus years a lawprofessor. vate practiceandanother eightas spent morethaneightyearsinpri- federal judgesfortwoyears,and bench, JudgeJohnsonclerkedfor Huntsville. Beforetakingthe 2017, andhischambersarein as amagistratejudgesinceJune Johnson, Jr. Judge herman n. “rusty” jury trials. try morecasesbecauseshemisses to mediateandwishesshecould a year. Shedoesnotforceparties only getstotrytwothreecases erage eightto10casesayear. She are located outside of Birmingham. hearing byvideoconferenceifthey lowing partiestoparticipateinthe and sheiswillingtoconsideral- attend conferencesbytelephone, Judge Corneliusallowslawyersto “Teaching for eight-plus years, Judge RustyJohnsonhasserved Judge Corneliusmediatesonav- straight to law school from college, in 1991. an economicsdegreefrom Duke Scholarship. JudgeJohnson earned tigious BenjaminN.Duke sity asanundergraduate onapres- school, andattendedDukeUniver- nor’s schoolwhile hewasinhigh together totackletoughtasks).” tude), andcommunity(working conceit wasnotatreasuredatti- (everyone kneweachother, so try (hardwork),modesty stilling inmethevaluesofindus- own. Itimpactedmyfuturebyin- tainment, sowefashionedour not havemuchbywayofenter- farm. As youcanimagine,wedid hard outinthefieldsandon “[w]e workedhardandplayed memories ofhischildhoodthere, dents. JudgeJohnsonhasfond school classhadlessthan100stu- of approximately5,000.Hishigh Blackville, SouthCarolina,atown farmer, grewupinrural has servedmewell.” nal aspectsofmyposition,which proach topreparingforthecrimi- class session.Itookthatsameap- takes fourto10hoursofworkper tion forteachingnewcourses new lawprofessorsthatprepara- tion, asseveralsourcesinform teaching experiencewasprepara- Johnson notes“thehallmarkofmy and Employment Law.” tion, Federal Courts, Civil Rights, table Remedies, Complex Litiga- Civil Procedure, Evidence, Equi- gation courses for years, including then I taught the gamut of civil liti- primarily federal civil practice, and Judge Johnson did not go Judge Johnsonattendedgover- Judge Johnson,thesonofa As tocriminalmatters,Judge important to him.Heencourages among lawyers andlitigantsis considerations.” objectively baseduponthose particular conflictsandto adjudge periences ofalltheparties in consider theperspectivesandex- impartiality requiresajudgeto “Regardless oflifeexperience, his roleasamagistratejudge. is “amoreimportantvirtue”in Johnson notesthatimpartiality ment topublicservice,Judge formative andshowhiscommit- lution inSouth Africa. worked asafellowindisputereso- international affairs education,he gomery. Inconjunctionwithhis Mississippi andatEJIinMont- human rightsfellowinGreenville, York City, andheservedasa clinic forthehomelessinNew Columbia. Headministeredalegal while hepursuedhiseducationat tinued hiscommitmenttoservice Rights LawReview.Healsocon- member oftheColumbiaHuman prestigious fellowships.Hewasa Stone Scholarandearnedseveral Columbia, hewasaHarlanFiske affairs andJ.D.fromColumbia. At M.A. ininternationalandpublic Charleston, South Carolina. then led an AmeriCorps team in Manville asbestos claims, and he South Carolina processing he worked as a legal assistant in encourage investment. Afterward, establish financial institutions to ness development and worked to where he focused on small busi- Peace Corps volunteer in Mali He served internationally as a but spent several years in service. Judge Johnsonnotedthat civility While theseexperienceswere Judge Johnsonearnedajoint originating on Redstone Arsenal. matters, including all misdemeanors able amount of his time on criminal Judge Johnson spends a consider- are right outside his front door. federal employees who work there Redstone Arsenal and the 40,000 nal docket each month because son is assigned a substantial crimi- in the Northern District, Judge John- ments usedbyotherjudges. infamous Appendix IIrequire- judgment briefstoconformthe also doesnotrequiresummary court businesstelephonically. He Instead, heconductsmostregular status orschedulingconferences. and doesnotconductin-person Johnson rarelyhasoralargument, than Article IIIjudges.Judge granting extensionsofdeadlines Judge Johnsonismoreflexiblein own research on pending issues. pared for him to have conducted his Johnson advises lawyers to be pre- his affinity for research, Judge applicable legal principles.” Given based upon the facts at hand and the constructing a logical argument not novel, I enjoy the exercise of priate sources. Even if the issues are engagement with the most appro- the correct research question and issues that require formulation of search and writing, especially novel sor. “I thoroughly enjoy legal re- tribute to his time as a law profes- duct research on a daily basis, a be courteoustolawyers. ways, andbelievesjudgesshould phasized thatthisworksboth posing counselorparties.Heem- of acase,andnotdemonizeop- lawyers tofightaboutthemerits Unlike the other magistrate judges Like othermagistratejudges, Judge Johnson continues to con- Chief JudgeJohnE. Ott magistrate judges. cases eachyear formediationby can onlyreferalimitednumber of with the Article IIIjudges, who for suchmediations. This contrasts various issues,including theneed meeting duringwhichthey discuss trate judgeshaveaweekly ations onthosecases. The magis- judge willperformcourtesymedi- case, aspecificfellowmagistrate a magistratejudgetohandlecivil that ifthepartiesconsenttoallow judges ontheassignmentwheelis 2015 orderthatplacedmagistrate but wegotitdone.” were tired. We wereallexhausted, until 2a.m.Iwastired. The parties along withJudgeOtt,westayed with JudgeOtt.“WhenItagged mediate acaseby“taggingalong” England sayshelearnedhowto on inacase.MagistrateJudge gants toexploreresolutionearly ful mediatorandencouragesliti- honestly. Heisknownasamaster- Night Ott”comesbyhisnickname 1998, andthemanknownas“All- Ott wasappointedtothebenchin One significantbenefittothe Chief MagistrateJudgeJohnE. www.alabar.org 77 T h e Alabama Lawyer Judge Ott believes in mediation trials in both civil and criminal mat- conducts his hearings in the court- “because it allows the parties to ters. So, even though he’s known as room, while he holds status confer- resolve their disputes amicably, a master of alternative dispute reso- ences in his chambers. Judge Ott is more quickly, with less costs, and lution, Judge Ott knows what juries known for being prepared, and he more control of the outcome.” He might do with a case tried to verdict. will notify counsel ahead of time if spends an average of one day a Judge Ott believes in service to there is an issue he would like to week mediating cases, and his his community, and he is active in have addressed at a hearing. It longest mediation has been ongo- his church. He is known as a great takes lots of daylight preparation, ing for two years and is still con- neighbor to those around him and after all, to be All-Night Ott. s tinuing. Judge Ott has mediated shows a degree of compassion, several high-profile cases, includ- servanthood and loyalty not al- Between the date this Postscript: ing the Huntsville school desegre- ways found in lawyers. Judge article was completed and the date gation case, the Jefferson County Ott’s life evidences his belief that it was published, Magistrate Judge sewer case, a number of class ac- civic engagement builds the credi- Gray M. Borden of the Middle tions involving the Alabama De- bility of the courts with the public District of Alabama was appointed partment of Corrections, and class and helps judges understand the to replace Judge Putnam. For a actions involving the Birmingham needs and dynamics of the com- profile of Judge Borden written by Municipal Court practices. He has munity. He is a fellow of both the Rudy Hill, please refer to the Sep- helped mediate and settle approxi- Birmingham Bar Foundation and tember 2018 issue of The Alabama mately 750 cases during his time the Alabama Law Foundation. . Lawyer as a magistrate judge. Judge Ott is eligible to retire in Before he burned the midnight June 2020, but his youthful vigor oil mediating cases as a magistrate shows he is nowhere near the end judge in the Northern District, of his contributions to the commu- Judge Ott grew up in sunny Winter nity. The sidewalks around the Park, Florida and earned a B.A. in Downtown Y are used to his regu- criminal justice from the University lar trips between the courthouse of Central Florida magna cum and his daily workouts. Robert E. Battle laude. Judge Ott moved to Birm- He helps shape the future of the Bob Battle is a founding partner of Battle & Winn ingham for law school and has legal profession by serving as a LLP in Birmingham and has been a Birmingham resident since trial ad instructor at Cumberland. practiced there for 23 years, he graduated from Cumberland He has also served as an adjunct since his clerkship for the Law School in 1981. faculty member at UAB, teaching Hon. Ira DeMent. He is the Judge Ott has spent his career as a courses in trial techniques and ad- former chair of the Federal public servant. After law school, he vocacy, criminal evidence, e-dis- Practice Section of the Birmingham Bar Association. clerked for the magistrate judges in covery and social media, and the Northern District for two years. dispute resolution. He also often He then spent 15 years as an AUSA presents continuing legal educa- in the Northern District. Judge Ott tion courses for attorneys on ethics began as a prosecutor in the crimi- and professionalism, trial advo- Adam P. Plant nal division, eventually rising to the cacy, evidence, mediation, and Adam Plant practices rank of criminal division chief. He employment law, including his with Battle & Winn LLP in was an Executive AUSA and had annual Ott Dog Luncheon for the Birmingham. Before joining the firm, he served as a oversight responsibility for litiga- Birmingham Bar. deputy solicitor general for tion. Judge Ott personally tried ap- Judge Ott says he loves “interact- the State of Alabama and proximately 75 cases. As a ing with lawyers and members of clerked for the Hon. magistrate judge for the past two the public (in mediation).” Not sur- William H. Pryor Jr. While attending law school, he was editor in chief of the

Alabamadecades, Lawyer Judge Ott has presided prisingly, Judge Ott often sets mo- . over another approximately 75 tion hearings. Judge Ott primarily Alabama Law Review T h e 78 January 2020 Please email announcements to [email protected] s m r i F g n o m a , s r e b m e m T u o b a g. office. inthebirmingham joined asapartner announces that george d. Jr. medlock, faulkner announcesbirmingham that Caleb a. ansley T. Platt s. announces that robert Vance, iii among Firms joined asanassociate. announces that Kathleen Elebash joined asanassociate. announces that Jennifer B. Jayjohn of counsel. announces that Judiths.Crittenden joined asanassociate. ham announces that hannahCory ate, office. bothinthebirmingham and Priscilla K. Williams Todd Westonthat f. joined thefirm. announces that W. Jackson Britton nicholson hunter Carmichael LLP office.the birmingham f.robert dyar Capell &howard PC Bradley arant Cummings Boult LLP Boyd, fernambucq PC &dunn adams &reese Equity Equity Title Company Cunningham LLC Bounds Crittenden Partners PC Cory Watson attorneys Christian &smallLLP The Bloomston firm Bainbridge, mims, &smith rogers of birmingham announcesof birmingham that d. joined asanassociate. joined asassociates. joined asassociates. joined asanassociate in announces that Elizabeth L. and Elizabeth joined asapartner of montgomery of birmingham announces as anassoci- of Tuscaloosa of birmingham of birming- of mobile of and is joined as associates. that & south LLC ate office. in the birmingham austin s.sistrunk a. Clolinger that office. joined as associates in the birmingham that West Jonathan mayhall, Charlie Kelley richard J. marsden of counsel, nounces that there. be apartner daphne andthat Lindsey simmons nounces theopeningofanoffice in office.in thebirmingham matthew J. Winne Jordan Patterson, son E. Knouse, nounces that Charles m.hearn, Jack- ates inthegulfcoast office. and Carla m. Thomas bama office, andthat daniel T. seawell joined asassociates inthecentral ala- Chappell, Jr. howard PC the firm. nounces that mcdavid flowers Wolfe, Jones, Wolfe, hancock, daniel Watkins &Eager starnes davis florie LLP mcglinchey stafford PLLC maynard Cooper & gale PC King simmonsford &spree PC Lightfoot, franklin & White LLC holtsford & hitson higgins gilliland farmerPrice LLP Catherine g. Kirkland ross Benson T. riley Wolfe , and Caleb Wolanek david r. Kinman announces that J. mark joined the mobile office. of huntsville announces allison W. smalley and m.ashley Tidwell , molli masaniai and and joined asanassoci- joined asassociates stnTaylorashton s of dothan an- of dothan as shareholders, and announces that Lacy Triplett joined asassoci- Zachary L. guyse as associates. and announces www.alabar.org and announces , an- Christine joined joined , noah and an- an- will 79 T h e Alabama Lawyer 80 T h e Alabama Lawyer L L L L L L L January 2020 Electronic Balloting Electronic and notice ofElection for nominations asB Women’s section–request to award theBar service William d. “Bill” scruggs, Jr. Professionalism award J. anthony “Tony” mcLain awardLocal Bar ofachievement Judicial award ofmerit alabama Lawyers halloffame cent lawyers ofthestate. mum of100years to give duerecognition to historic figures as well as the more re- also, for eachyear, musthave at leastoneoftheinductees beendeceased amini- musthaveinductee been deceased at leasttwo years at thetimeoftheirselection. ment–leadership, mentorship, service, politicalcourage orprofessional success. each reer in thelaw. This could bedemonstrated through many different forms ofachieve- forconsider thenomineesandto makeselections induction. andtheexecutive ofthealabamacal society state secretary barmeetsannuallyto ofarchives andhistory,department andbarhistori- thechairofalabama bench members appointed by theboard ofbarcommissioners, thedirector ofthealabama pointed by eachofthethree judgesofalabama, four presiding federal court district the alabama state bar, amemberappointed by thechiefjustice, onememberap- tion took place for theyear 2004. bar commissioners. The was committee approved report in2003andthefirstinduc- the concept, setupguidelinesandthenprovide arecommendation to theboard of theterm ofstateduring barPresident Fred gray. heappointed ataskforce to study themanymuseum memorializing great ofalabama. lawyers inthehistory adjacent to thestate barbuildingandvacant at that time, into shouldbeturned a bar President rumore sam withaproposal that theformer building, supreme court attorneyof famefirstappearedmontgomery in2000when brown wroteTerry state lawyers hallofFame, whichislocated at thestate Judicialbuilding. The ideafor ahall hall ofFame alabama lawyers inductees to thealabama lawyers hallofFameinductees musthave hadadistinguishedca- committee consistinga 12-memberselection oftheimmediate past-president of The implementation of theideaofanalabama lawyers hallofFame originated may istraditionally themonth whennewmembersare into inducted thealabama s e c i T o n T n a T r o P m i form to: about/alabama-lawyers-hall-of-fame alabar.org/about/alabama-lawyers-hall-of-fame. building andprofiles are ofallinductees found at www. areductees located inthelower rotunda oftheJudicial requested information. Plaques commemorating thein- nomination form from thebar’s website andsubmittingthe tions canbemadethroughout theyear by downloading the cannot bechoseniftheyhave notbeennominated. nomina- well aspresent-day lawyers for consideration. great lawyers tion ofinductees. We neednominations ofhistoric figures as members ofthebarandgeneral publicfor thenomina- endorsement. of justice. withletters nominations of may be supported contribution(s) thenomineehasmade to theadministration file ofthenomineeandanarrative outliningthesignificant be presented inany given year. toers withrespect anomineeor whether theaward should makes arecommendation to theboard ofbarcommission- tee appointed by thepresident ofthestate bar, whichthen meeting. will bepresented thealabama state during bar’s annual the state barsealandtheyear ofpresentation. The award bama. The recipient ispresented gavel bearing withacrystal tributed significantly to theadministration ofjustice in ala- orappellate, trial court, whoisdetermined to have con- sented to ajudgewhoisnotretired, whetherstate orfederal award isnotnecessarily anannualaward. mustbepre- it through march. nominations 15 shouldbemailedto: ceive nominations for thestate bar’s Judicialaward ofmerit merit Judicial award of The deadlinefor submissionismarch 1. montgomery, al36101 P.o. box 671 alabama lawyers hallofFame rumoresam download anapplication form at https://www.alabar.org/ committeeThe solicitssuggestionsfrom actively selection nominations shouldincludeadetailedbiographical pro- nominations are considered commit- by athree-member The Judicialaward was establishedin1987. ofmerit The montgomery, al36101-0671 P.o. box 671 Phillip W. mccallum The alabama state barboard ofbarcommissioners willre- and mailthecompleted (334) [email protected]. recognitions/ may bedownloaded from www.alabar.org/about/ awards- plete andsubmitanapplication by June1. mediumorsmall.their size–large, annual meeting. awards willbepresented thealabama state during bar’s for theiroutstandingcontributions to theircommunities. achievement local baraward of should bepresented inany given year. tomissioners with respect anomineeorwhether theaward which makesarecommendation to theboard ofbarcom- of professionalism by living members of the alabama state bar. ing, long-term and distinguished service in the advancement and service to the alabama state bar by recognizing outstand- courage the emulation of his deep devotion to professionalism award is to honor the leadership of Tony mclain and to en- nation form available at www.alabar.org nominations shouldbeprepared ontheappropriate nomi- ProfessionalismmcLain award through march 15. willreceiveBar nominations for theJ. anthony “Tony” award mclain Professionalism J. anthony “Tony” To considered be for thisaward, barsmustcom- local The degree ofenhancements to the bar’s imageinthe • ofthebar’s andextentoftheimpact The quality • • The following are criteria usedto judgetheapplications: local barassociations compete for theseawards basedon The local baraward ofachievement recognizes localbars nominations are considered committee by afive-member The purpose of the J. anthony “Tony” mclain Professionalism montgomery, al36101-0671 P.o. box 671 Phillip W. mccallum The Commissioners Board ofBar ofthealabama state community. and onthecitizens inthat community; participation advancing programs to benefitthe community; The by degree theindividualbarin ofparticipation or obtainedby ashley contacting Penhale at and mailedto: applications www.alabar.org 81 T h e Alabama Lawyer 82 T h e Alabama Lawyer January 2020 tinues to be an inspiration for all women in the state. a woman whose commitment to women’s rights was and con- Women’s section is honored to present an award named after and who has been a great pioneer and leader in alabama. The torney who has made a lasting impact on the legal profession tice law in alabama and is presented each year to a female at- mcLuremaud Kelly award nominations for thefollowing awards: For nominations section–request asb Women’s award shouldbepresented inany given year. commissioners to withrespect anomineeorwhetherthe which makesarecommendation to theboard ofbar state barasanorganization. by livingmembersofthebarthisstate to thealabama sented inrecognition ofoutstandingandlong-term service The award isnotnecessarily anannualaward. mustbepre- it behalf ofthebarformer state barPresident billscruggs. ofandaccomplishments on in 2002to honorthememory nation form available at www.alabar.org nominations shouldbeprepared ontheappropriate nomi- scruggs, Jr. to award theBar service through march 15. willreceiveBar nominations for the William d. “Bill” The baraward scruggs, Jr. to service William d. “bill” (Continued frompage81) This award is named for the first woman admitted to prac- The Women’s section of the alabama state bar is accepting nominations are considered committee by afive-member to thebarawardThe service billscruggs was established montgomery, al36101-0671 P.o. box 671 Phillip W. mccallum The Commissioners Board ofBar ofthealabama state and mailedto: s e c i T o n T n a T r o P m i meeting. Kelly luncheon at the2020alabama state barannual ludgood. The award willbepresented mclure at themaud JanePatton,martha alyce spruell, manley andmerceria l. sapp, Privett Judgecaryl (ret.), Judgesharon g. yates (ret.), Fine leesmith, marjorie stapp, Knowles, mary ernestine Turner, Frankie Fields carol Jean clark, smith,sara dominick louiseashley camille dickerson, dean Janedishuck, cook, alice lee, miglionico, nina JudgePhyllis miss nesbitt, mahala note your intentions. of recommendation previously submitted in2019,please of recommendations. anomination intends if to useletters information,tact thecandidate’s andany current cV letters submission shouldincludethecandidate’s nameandcon- chair ofthe Women’s at [email protected] section, . your miller, were andallison recipients. skinner prior ception. Judge Tammy montgomery, Porter, maibeth Kathy posthumously. This award willbepresented at a specialre- tive inthefieldoflaw. practice This award may be given the alabama state barandhasat least10years ofcumula- The candidate mustbeorhave beeningoodstandingwith benefit women inthelegalfieldand/orhercommunity. which and/oractivities lated service community activities, in whichshepractices, suchas, butnotlimited to, bar-re- throughout hercareer andacommitment to hercommunity those around herasamentor, asustainedlevel of leadership this award mustdemonstrate acontinual commitment to ingston, at whopracticed balch&bingham. The recipient of for the Women’s liv- ofsusanbevill inmemory section susan BevillLivingston Leadership award Board ofBarCommissioners and ofPresident-elect Rules Governing and Selection Election balloting and electronic notice ofelection Previous recipients includeJustice Janieshores (ret.), miss Please submityour nominations to elizabethsmithart, submission deadlineismarch 15. yearThis to isthefifth solicitnominations for thisaward notice isgiven here pursuant to the AlabamaState Bar that the election oftheseofficers that theelection their principal officestheir principal inthefollowing circuits: Commissioners of Board ofBar nomination andElection 2020. the alabama state barnolater than5:00p.m. onFebruary 3, standing. of suchpetitions mustbefiledwiththesecretary tition ofat least25alabama state barmembersingood special membership. candidates mustbenominated by pe- 1,2020,andshallpossessacurrent license privilege or ary bers ingoodstandingofthealabama state barasofFebru- of President-Elect nomination andElection ing oftheelection. the Friday (may 22,2020)immediately following theopen- voted andreceived by thealabama state barby 5:00p.m. on cycle. allmustbe ballots(paperandelectronic) election andcontesteding run-offs races this during president-elect gle written request willbesufficient for includ- allelections, Friday inmay (may 1,2020)requesting apaperballot. asin- onorbefore inwriting should notifythesecretary thefirst tronic whowishto ballot. members vote by paperballot be notified by emailwithinstructions foraccessing anelec- Friday, may 22,2020. will beheldbeginning monday, may 18,2020,andending bar commissioners will be elected bybar commissioners willbeelected thoselawyers with candidates for shallbemem- theoffice ofpresident-elect on thethird monday inmay (may 18,2020),memberswill 8 21 19 18 18 17 15 13 13 11 10 10 10 23 22 th th th th th th th th th th th th rd nd st Judicial circuit, Place 1 Judicial circuit Judicial circuit Judicial circuit Judicial circuit, Place 3 Judicial circuit, Place 1 Judicial circuit Judicial circuit, Place 5 Judicial circuit, Place 5 Judicial circuit, Place 1 Judicial circuit Judicial circuit, cutoff bessemer Judicial circuit, Place 7 Judicial circuit, Place 4 Judicial circuit the lastFriday (april inapril 24,2020). must bereceived nolater by than5:00p.m. thesecretary on didacy. nomination forms and/ordeclarations ofcandidacy will beheldorby thecandidate’s written declaration ofcan- officesing withprincipal inthecircuit inwhichtheelection thesignaturestion bearing offive membersingoodstand- all terms willbefor three years. nolatermarch than 15,2020. by thesecretary cies certified will bedetermined by acensus onmarch 1,2020andvacan- commissioner positionsfor theseandtheremaining circuits members ofthestate offices barwithprincipal therein. new www.alabar.org. receives formby thenomination thedeadline. alabar.org mitted by theappropriate deadlineandaddressed to: plications for at-large commissioner positionsmustbesub- submission ofnominations due by 1,2020. april which are by elected theboard ofbarcommissioners, are place numbers:3,6and9.Petitions for thesepositions, ofat-LargeElection Commissioners a candidate for commissioner may benominated by peti- additional for commissioners will beelected each300 election rulesandpetitionsforelection allpositionsare available at isthecandidate’sIt to ensurethesecretary responsibility These forms may alsobesent by email to elections@ montgomery, al36101-0671 P.o. box 671 Phillip W. mccallum nomination forms, forms declarationandap- ofcandidacy at-large for commissioners willbeelected thefollowing 41 31 28 40 36 35 34 30 33 th th th th th th rd st st Judicial circuit Judicial circuit Judicial circuit Judicial circuit Judicial circuit Judicial circuit Judicial circuit Judicial circuit Judicial circuit, Place 2 or by faxto (334)261-6310. www.alabar.org s 83 T h e Alabama Lawyer 84 T h e Alabama Lawyer L L L L January 2020 Public reprimands suspensions reinstatement notices • • • • • notices his license. [cle commission, no. alabama state 2019-586]disciplinary bar 2018. noncompliance withthemcle requirements shallresult inasuspension of into continuing compliance legal withthe mandatory education requirements for cause dated may 22,2019,hehas60days from thedate ofthis publication to come commission’sabouts arethat pursuant to unknown, thedisciplinary order to show Chase russellhutcheson, cense. [cle commission, no. alabama state 2019-583]disciplinary bar noncompliance withthemclerequirements shallresult inasuspensionofherli- continuingpliance legal withthemandatory education requirements for 2018. may 22,2019,shehas60days from thedate ofthispublication to come into com- commission’s that pursuant toknown, the disciplinary order to show causedated Kimberly hallmark, commission, alabama statenary bar requirements shallresult inasuspensionofhislicense. [cle no. 2019-582]discipli- continuing legal education requirements for 2018.noncompliance withthemcle from thedate ofthispublication to come into compliance withthemandatory commission’sdisciplinary order to show causedated may 22,2019,hehas 60 days in denver, colorado, andwhosewhereabouts arethat pursuant to unknown, the James Patrick hackney, commission, alabama statenary bar requirements shallresult inasuspensionofhislicense. [cle no. 2019-579]discipli- continuing legal education requirements for 2018.noncompliance withthemcle from thedate ofthispublication to come into compliance withthemandatory commission’sdisciplinary order to show causedated may 22,2019,hehas 60 days in atlanta, georgia, andwhosewhereabouts are that pursuant to unknown, the Joshua Josephgotlieb, his license. [cle commission, no. alabama state 2019-578]disciplinary bar 2018. noncompliance withthemclerequirements shallresult inasuspensionof continuingcompliance legal withthemandatory education requirements for dated may 22,2019,hehas60days from thedate ofthispublication to come into commission’sare that pursuant to unknown, thedisciplinary order to show cause William Josephgibbons, Jr., s e c i T o n y r a n i l P i c s i d who practiced in albertville andwhosewhereabouts are un- in albertville who practiced who islicensed to inalabama practice andalsopracticed who islicensed to inalabama practice andalsopracticed who practiced in muscle shoalsandwhose where- inmuscle who practiced who practiced inhuntsvillewho practiced andwhosewhereabouts • • • legal education requirements for 2018.noncompliance to come into continuing compliance withthemandatory 22, 2019,shehas60days from thedate ofthispublication commission’sdisciplinary order to show causedated may whose whereabouts arethat pursuant to unknown, the Francisco, insan abama andalsopracticed california, and rebecca Lynn sherman, whoislicensed to inal- practice no. 2019-612] disciplinary commission, alabama state bar requirements shall result in a suspension of his license. [cle quirements for 2018. noncompliance with the mcle ance with the mandatory continuing legal education re- days from the date of this publication to come into compli- mission’s order to show cause dated may 22, 2019, he has 60abouts are unknown, that pursuant to the disciplinary com- and also practiced in alpharetta, georgia, and whose where- Clarence richard, iii, alabama state bar his license. [cle commission, no. 2019-601]disciplinary with themclerequirements shallresult inasuspensionof legal education requirements for 2018.noncompliance to come into continuing compliance withthemandatory 22, 2019,hehas60days from thedate ofthispublication commission’sdisciplinary order to show causedated may whose whereabouts arethat pursuant to unknown, the Philip Johnmotches, you takecare ofyour clients… who is licensed to practice in alabama who practiced in birmingham and inbirmingham who practiced who takescare but The alabama supreme court issued an order suspending • suspensions • reinstatement alabama state bar her license. [cle commission, no. 2019-618]disciplinary with themclerequirements shallresult inasuspensionof greenville attorney alabama. [rule28,Pet. no. 2019-734] subsequently reinstated by order of ofthesupreme court to oflaw thepractice inalabama onmay 22,2019andwas august petitionedfor 13,2019.Kavanaugh reinstatement bama by order ofalabama, ofthesupremeeffective court was reinstated to oflaw thepractice inala- northport, Kristofor Wyatt Kavanaugh, representation], and 8.4(g) [misconduct], alabama rules of 1.4(a) [communication], 1.16(d) [declining or Terminating board found boone guilty of violating rules 1.3 [diligence], based upon the disciplinary board’s order, wherein the 9, 2020. The alabama supreme court entered its order practice of law in alabama for two years, effective august of heather Leigh friday Boone yOu? free assistance Program’s the alabama lawyer For information on (334) 224-6920 who formerly in practiced and Confidential services, call services, from the www.alabar.org . 85 T h e Alabama Lawyer 86 T h e Alabama Lawyer January 2020 (Continued frompage85) on march 23, 2019, the disciplinary board issued reciprocal • The alabamaissuedanorder supreme suspending court • ministrative fee. [rule 25(a), Pet. no. 2019-273] nary Procedure, including but not limited to a $1,000 ad- against her pursuant to rule 33, alabama rules of discipli- coleman also will be required to pay any costs taxed olating rule 5.5, louisiana rules of Professional conduct. disbarred attorney as a paralegal in coleman’s law firm, vi- man serves a one-year probationary term for employing a one year and one day, to be held in abeyance while cole- supreme court issue an order suspending coleman for tive august 23, 2019. on February 11, 2019, the louisiana while coleman serves a one-year probationary term, effec- for one year and one day, which will be held in abeyance form of a suspension from the practice of law in alabama discipline to louisiana attorney tion ofthem.[asb nos. 2016-1566,etal.] totify hisclients continue ofhisinability hisrepresenta- timely refund fees, theunearned andfailedto timelyno- thework forable to whichhewas perform paid, failedto effective november 22,2016.as aresult, brannon was un- fees. brannon subsequently transferred to status, inactive sional conduct. brannon admitted to accepting unearned alabama rulesofProfes-tion], and8.4(g)[misconduct], or 1.16(d)[declining Property], Terminating representa- [diligence], 1.4[communication], 1.15(a)[safekeeping order, wherein brannon admitted to violating rules1.3 tered commission’s itsorder baseduponthedisciplinary on november 22,2016. The alabamaen- supreme court the effective date ofbrannon’s transfer to status inactive oflawpractice inalabama for 33months, retroactive to former Florence neal Brannon attorney Barry which she failed to do. [asb no. 2018-1219] boone to file a written response to the bar complaint, complaint, the alabama state bar repeatedly ordered refund any portion of the fee. after receiving the client’s date, boone has failed to communicate with the client or wife learned boone never filed the uncontested divorce. To client’s telephone calls. in august 2018, the client and his 2018 for a status update, but boone failed to return the tempted to contact boone between may 2017 and august necessary paperwork. Thereafter, the client repeatedly at- total of $895, and the client and his wife signed all of the to file an uncontested divorce. The client paid boone a Professional conduct. in april 2017, a client retained boone Lauren g. Coleman

s e c i T o n y r a n i l P i c s i d from the in the •i on september 6, 2019, denver, colorado attorney • on september 6, 2019, the disciplinary commission of the • Public reprimands ministrative fee. [rule 25(a), Pet. no. 2018-1123] nary Procedure, including but not limited to a $1,000 ad- against him pursuant to rule 33, alabama rules of discipli- pline rules. Jeffries is also required to pay any costs taxed 23(29)(a)(2) and 23(29)(a)(5), indiana admissions and disci- 8.4(c), indiana Professional conduct rules, and rules rules 1.3, 1.4(a)(3), 1.8(a)(2), 1.15(a), 3.2, 7.1, 8.1(b), and to cooperate with an investigation in that state, violating sued an order suspending Jeffries for three years for failure 2019. on august 21, 2018, the indiana supreme court is- discipline in the form of a three-year suspension on July 8, account. [asb nos. 2016-1191 and 2016-1196] occasions and made personal payments directly from that deposited personal funds into his trust account on multiple Professionalalabama rules of conduct. additionally, Fisher tain individual client ledgers as required by rule 1.15(e), earned portion of the retainer in trust and failed to main- represent her in the matter. Fisher failed to place the un- client. The client paid Fisher an initial retainer of $4,500 to and diligently forward the final order in the matter to the the issue of fees in the matter. Fisher also failed to timely her alleged request to dismiss her request to relocate, and municate with the client regarding the date of the hearing, cate with her minor child. Fisher failed to adequately com- represent her in seeking a court order allowing her to relo- Professional conduct. in 2015, a client retained Fisher to ing Property], and 8.4(g) [misconduct], alabama rules of [diligence], 1.4 [communication], 1.15(a) and (e) [safekeep- publication to alabama state bar issued a public reprimand with general marijuana companies. at the time, Wells Fargo did not allow that he opened two accounts in 2013 on behalf of medical- pensaries. Furtado failed to disclose to Wells Fargo bank was related to his representation of medical marijuana dis- bama rules of Professional conduct. Furtado’s misconduct bama state bar, for violating rule 8.4(c) [misconduct], ala- publication, as ordered by the disciplinary board of the ala- reciprocal discipline of a public reprimand with general Jeffrey furtado ndiana attorney John Tracy fisher, Jr. , who is also licensed in alabama, received michael ray Jeffries for violating rules 1.3 received reciprocal david daphne attorney • tional five days. nevertheless, hawke failed to file proof on bama court of criminal appeals granted hawke an addi- court and a motion to stay the briefing schedule. The ala- after filed a motion to transmit original items from the trial alabama court of criminal appeals granted. hawke there- five extensions to file the appellant’s brief, all of which the from the baldwin county Juvenile court. hawke requested order removing hawke as appellate counsel in an appeal 1335, the alabama court of criminal appeals issued an communicate with opposing counsel. in asb no. 2017- his former employee, failed to appear in court, and failed to also mishandled a custody dispute in which he represented he withheld the taxes from employees’ paychecks. hawke court appearances, and failed to pay 2016 payroll taxes after firm’s operating account, arrived late or failed to appear in his personal account without passing the funds through the cepted client retainers over the phone, deposited funds into 761, hawke failed to use a trust account for two years, ac- of Professional conduct. in asb nos. 2017-1098 and 2018- 8.4(b), 8.4(c), 8.4(d), and 8.4(g) [misconduct], alabama rules 1.15(d), and [safekeeping 1.15(f) Property]; and 8.4(a), 2019 for violating rules 1.1 [competence]; 1.15(a), 1.15(c), reprimand without general publication on september 6, [rule 25(a), Pet. no. 2019-274] accounts to be opened for medical-marijuana businesses. John daniel hawke received a public Design andMarketingServices birmingham attorney • 300 North Dean Road, Suite 5-193 • Auburn, AL 36830 AL Auburn, • 5-193 Suite Road, Dean North 300 ordered howard to respond and appear at a hearing. howard and that howard’s license was suspended. The probate judgethe heirs, the fact that the estate was pending for four years,sonal representative citing his failure to communicate with heirs petitioned the probate court to remove howard as per- appointed personal representative of an estate. one of the of Professional onconduct, september 6, 2019. howard was olating rules 8.4(d) and 8.4(g) [misconduct], alabama rules ceived a public reprimand without general publication for vi- fee. [asb nos. 2017-1098, 2017-1335, and 2018-761] dure, including but not limited to a $1,000 administrative pursuant to rule 33, alabama rules of disciplinary Proce- hawke is also required to pay any costs taxed against him conduct adversely reflecting on his fitness to practice law. client funds from a client trust account, and engaging in lected client funds, failure to properly deposit and withdraw from his own property, making a disbursement of uncol- client property in connection with representation separate failing to provide competent representation, failing to hold [misconduct], alabama rules of Professional conduct, by keeping Property]; and 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g) [competence]; 1.15(a), 1.15(c), 1.15(d), and [safe- 1.15(f) from the case. With this conduct hawke violated rules 1.1 bama court of criminal appeals ultimately removed hawke time and received yet another deficiency notice. The ala- 334.799.7843 • [email protected] • 334.799.7843 Sales Support Material Product Packaging Print Ads Product Catalogs Brochures Websites Logos Woodrow Eugene howard iii Professional Portfolios P.O.P. Displays Billboards Media Kits Publication Design Trade Show Exhibits www.alabar.org re- 87 T h e Alabama Lawyer 88 T h e Alabama Lawyer January 2020 (Continued frompage87) mobile attorney • signed the consents and waivers. The court offered mccrory’s that the heir was ever present in mobile county when he court issued an order noting there was no evidence offered notarized his signature. on January 30, 2018, the probate ceased heir was not present on august 21, 2017 when she administrative oversight.” his secretary admitted the notde- notarized until august 17, 2017, and attributed this to heir“an signed the consent and waiver in december 2016, but cause hearing, mccrory testified he thought the deceased tarize and backdate them to august 21, 2017. at the show waiver not dated or notarized, and took it upon herself to no- filing the petition for sale, she observed that consent and december 2016, but not notarized. When his secretary was lieved the deceased heir signed the consent and waiver in letters of administration. after investigating, mccrory be- cancelled the order for the petition for sale, and suspended judge. The judge immediately issued a show cause order, and forwarded the matter to the chief clerk and the probate tarized his signature. as a result, the clerk contacted mccrory February 2017, seven months before mccrory’s secretary no- widow advised the clerk that her husband passed away in ceive the money from the sale. in that conversation, the spoke with the clerk, who informed her that she would re- the widow of one of the heirs called the probate court and petition for sale on december 18, 2017. on January 5, 2018, notarized these documents. The probate court granted the two heirs, dated august 21, 2017. again, mccrory’s secretary petition for sale, along with consents and waivers from the one piece of real property in the estate, and mccrory filed a new consents and waivers in december 2016. There was only from the heirs at law. his secretary allegedly notarized the after which mccrory obtained new consents and waivers tor died, the probate court appointed a new administrator, waivers dated september 12, 2016. because the administra- his secretary initially notarized and filed consents and Procedure. mccrory was hired to probate an estate in 2016. 8.4(d), and 8.4(g) [misconduct], alabama rules of disciplinary sponsibilities regarding non-lawyer assistance], and 8.4(c), violating rules 3.3(a) [candor Toward the Tribunal], 5.3mand [re- without general publication on september 6, 2019 for as a result, the court sanctioned howard. [asb no. 2018-25] file a final settlement for the estate, which he failed to meet. ters testamentary. The court also issued a deadline for him to moved him as personal representative and revoked his let- failed to file a response or appear as ordered. The court re- filed an emergency continuance, which the court denied. he marcus E. mcCrory received a public repri-

s e c i T o n y r a n i l P i c s i d haleyville attorney • 334, 2016-405, and 2017-69] pated it would be restored later that week. [asb nos. 2016- his licensure status, he advised it was inactive, but antici- was on the line. When the court questioned roberson about opposing counsel notified Judge coogler that roberson tify himself on the phone call. at the close of the hearing, coogler in this matter on January 9, 2017, but failed to iden- phone hearing with united states district court Judge scott at the time. additionally, he admitted participating in a tele- make an appointment for new counsel who was very busy with the potential witness, but explained it was only to assisting counsel of record. roberson confirmed he spoke stated he was about to get his license back, and that he was roberson advised the witness that he was on inactive status, counsel that roberson contacted him regarding a matter; fessional conduct. a potential witness informed opposing 8.4(c), 8.4(d), and 8.4(g) [misconduct], alabama rules of Pro- 7.3(a) [direct contact with Prospective clients], and 8.4(a), statements to others], 5.5(a) [unauthorized Practice of law], to opposing Party and counsel], 4.1(a) [Truthfulness in rules 3.3(a)(1) [candor Toward the Tribunal], 3.4(c) [Fairness son was suspended. in asb no. 2016-334, roberson violated however, another attorney informed the client that rober- move the case forward. many court dates were continued. the client’s son in prison and indicated he would attempt to with the client and her son for a year. he eventually visited roberson a $5,000 retainer. roberson failed to communicate roberson to represent her son on a rape charge and paid alabama rules of Professional conduct. here, a client hired 1.4(a) [communication], and 8.4(a) and 8.4(g) [misconduct], roberson violated rules 1.1 [competence], 1.3 [diligence], time to file the client’s appeal to lapse. in asb no. 2016-334, spond to her attempts. additionally, roberson allowed the enced difficulty contacting roberson, and he failed to re- and continued three separate court dates. The client experi- custody matter and was paid $3,000. The court scheduled client hired roberson to represent her in an appeal in a child bama rules of Professional conduct, in asb no. 2016-334. a [communication], and 8.4(a) and 8.4(g) [misconduct], ala- for violating rules 1.1 [competence], 1.3 [diligence], 1.4 reprimand with general publication on september 6, 2019 $1,000 administrative fee. [asb no. 2018-45] rules of Professional conduct, including but not limited to a any costs taxed against him pursuant to rule 33, alabama at the conclusion of the hearing. mccrory is also required pay secretary an opportunity to resign her notary, which she did Jerry dean roberson s received a public Edwards, William Jackson, iii horn, hon. alwin Earl, iii died: september 13,2019 died: september18,2019 died: september27,2019 died: september4,2019 died: september2,2019 Crouch, James michael died: october 16,2019 died: october davis, Thomas Logan died: august 28,2019 melvin, Lisahagood melvin, davis, William Van Lacy, hughgale admitted: 2003 admitted: 1968 admitted: 1990 admitted: 1954 admitted: 1974 admitted: 1982 admitted: 2005 birmingham birmingham birmingham huntsville Prattville Pell city mobile underwood, hon. William sidney, Jr. s l a i r o m e m scott, Clarence William, Jr. died: september14,2019 died: september30,2019 died: september 22,2019 Taul, Thomas mcrae, iii sharp, Charles Eugene died: october 17,2019 died: october died: october 11,2019 died: october died: october 17,2019 died: october reed, markBenjamin scott, Leverne Curtis mills, William hayes died: may 12,2019 admitted: 1956 admitted: 1956 admitted: 2002 admitted: 1959 admitted: 1976 admitted: 1987 admitted: 1977 birmingham birmingham Tuscaloosa Fairhope daphne Pell city opelika www.alabar.org 89 T h e Alabama Lawyer 90 T h e Alabama Lawyer January 2020 Director, LegislativeServices Agency visit www.lsa.alabama.gov. [email protected] For more information, Balch &Bingham Gregory P. Butrus Othni J.Lathram assistance by greg butrus. presented in chart form with invaluable work was painstakingly gathered and amendments to the constitution. This and information on the trends of might be helpful to share more context crete issues. This month, i thought it pieces have usually focused on fairly dis- column many times; however, those ments to it have been the subject of this that constitution and various amend- ratified in 1901.over the years, parts of rent constitution that was drafted and understand, amend, and reform our cur- that has been done through the years to did a great deal of reflecting on the work these historical documents in person, i cumstances surrounding their adoption. these governing documents and the cir- rial and historical information about logue which contains a wealth of mate- exceptionally well-done exhibit cata- son, it is well worth getting a copy of the were not able to see this display in per- and the ordinance of secession. if you cluded all six of alabama’s constitutions archives and history. This exhibit in- ments by the alabama department of the display of alabama’s defining docu- esting events of the bicentennial was state. as lawyers, one of the most inter- people, places, and stories of our great bicentennial. The events celebrated the concluded a three-year celebration of its The to race 1,000 after having the privilege of seeing This past month the state of alabama P u - P a r W e V i T a l s i g e l 2 1 by the residents of the affected area. these amendments must only be ratified ity) and not the state as a whole. Typically, sion (typically single county or municipal- that only applies to one political subdivi- local constitutional amendment is one are local constitutional amendments. a three-quarters of the total amendments, voters. of the total, 723, or more than ture and are pending ratification by the have already been passed by the legisla- ratified amendments with 20 more that its amendments. There are currently 946 looked at the number and frequency of pendently verified that fact, but we have longest in the world. We have not inde- is its length. it is often said that it is the points regarding the constitution of 1901 ofamendmentsnumber document in order to address an issue. willingness to amend our core governing alabama are finding increasing need and both the legislature and the residents of decade alone. This demonstrates that amendments having been ratified in this ratified in the last 30 years, with 119 total the statewide amendments have been ments and approximately one-third of shown, nearly half of the local amend- sage of amendments by decade. as is amendments. Table a reflects the pas- ing and trends regarding the adoption of Timing ofamendments one of the most common talking it is also interesting to look at the tim- of 1,000 amendments. s of 1,000amendments. esting aswe race toward theadoption find this context to beusefulandinter- continually addingto it. We hopeyou pretation, butbecausewe are ing, notjustthrough itsuseand inter- a constitution that islivingandbreath- sial governing documents inhistory. is it one ofthemostcomplex andcontrover- Conclusion b shows thedetailsofthesestatistics. higher for statewide amendments. Table lower for localamendments andslightly been ratified. That numberisslightly ments passedby thelegislature have since 1992,80percent ofallamend- sons voting inaproperly calledelection. ofthoseper- tion by asimplemajority margin ineachchamberand(2)ratifica- through thelegislature by athree-fifths process:ment isatwo-step (1)Passage adoption ofaconstitutional amend- tional amendments. that remember the ratification rates ofproposed constitu- rate ofratification The alabama constitution of1901is another interesting trend isthat of Endnotes 2. 1. Thanks to Chase Espy for hisresearch through returns. years assistance insorting ofelection Conner Hudson, foreword by Steve Murray is available from theWe Alabama the People: Alabama’sDepartment DefiningofDocuments Archives written byScotty E. Kirkland, and designed History. by Georgia Ann www.alabar.org 91 T h e Alabama Lawyer 92 T h e Alabama Lawyer ingham’s Sixteenth Street Baptist Church. convictions for the 1963 bombing of Birm- Frank Cherry on appeal from his murder Starrett successfully prosecuted Bobby General. Among other cases for the office, appointment to the Office of the Attorney and criminal practice in Montgomery before Supreme Court, and was engaged in civil Justice Mark Kennedy on the Alabama staff attorney to Justice Kenneth Ingram and Alabama School of Law. Starrett served as courts. He is a graduate of the University of habeas corpus in all state and federal sents the state in criminal appeals and general for the State of Alabama and repre- Marc A. Starrett sumer and commercial litigation. sents consumers and businesses in con- actions and complex litigation. He repre- mater, where he taught courses in class served as adjunct professor at his alma District of Alabama. From 2000-09, Green States District Court for the Northern clerk to the Hon. Robert B. Propst, United Alabama School of Law and a former law cum laude graduate of the University of Green LLP in Tuscaloosa. He is a summa Wilson F. Green January 2020 Wilson F. Green Marc A. Starrett is an assistant attorney is a partner in Fleenor & rewriting the will, contrary to the express intentions of the testator. The supreme court agreed with Pr, holding that the court could not apply the anti-lapse statute without and thus that estate escheats to the state under the escheat statute. Probate court clear intent of testator, which controls under the intent statute, was to exclude nieces, tor, and thus they should take under the anti-lapse statute. Pr opposed, arguing that appointed. nieces appeared (children of sister), arguing that sister predeceased testa- tance provision for all other heirs. Testator died; will was admitted to probate, and Pr Testator devised entire estate to sister in her will, which contained express disinheri- statute”), § 43-8-222 (the “intent statute”), alongside § 43-8-44 (the “escheat statute”). v.Norwood , no. Barclay 1180281(ala. 18,2019) Oct. Probate under rule59.1. relief from the order whenthemotionremained pendingfor more than90days rule 60motion(asfiled). to grant was withoutjurisdiction themotion for Trial court and notalleging “extraordinary circumstances,” arule59motion andnota was infact tion to ofthetrial compelcourt’s arbitration, filedwithin30days entry after order BCH,LLCSAI Montgomery v. Williams, no. 1180220(ala. 18,2019) Oct. arbitration; Post-Judgment motions pant’s death in ahousefire. ure to maintain sufficient hydrant pressure, whichnegligence allegedlycausedoccu- code §11-47-190)for ofapremises claimsofnegligent andnegligent inspection fail- before landlord leasedpremises to tenant, (underala. andto municipalimmunity ofTuskegee City Ex parte , no. 1180474(ala. sept. 27,2019) municipal immunity amendmentstricken, to pleadingfiled four months later didnot relate back. originalto frompleading was because belifted acomplaint court. in an out-of-state because itwas notsigned by counsel, errors, was withfactual riddled andappeared McKenzie v. Biotech, Inc. Janssen , no. 1170787(ala. sept. 27,2019) rule 11;relation Back court From thealabama supreme rECEnT CiViLdECisiOns This appeal involves the construction of ala. code §§ 43-8-224 (“the anti-lapse toPlaintiff’s vacate court’s motionseeking thetrial order granting defendants’ mo- was entitled tomunicipality substantive for immunity failure premises to inspect Trial original complaint withinitsdiscretion underrule11(a) acted instriking court r e n r o c e T a l l e P P a e h T degree of deference. cise of legislative authority, which is entitled to the highest matters. annexation matters involve a council’s use and exer- contemplate the petition mechanism for considering such thority to consider de-annexation, but the statute does not , no.ham 1180683(ala. 18,2019) Oct. Homeowners Manor Assn.,Inc. v.Courtyard ofPel- City municipalities; de-annexation and crediting method. items may be “distributed” usinga “capital credit” allocation bership cooperative inexcess delineated line ofcertain no. 1171144(ala. 18,2019) Oct. Recherche, LLC v. Elec.Corp. County Membership Baldwin , statutory Construction plied, and the nieces take all. statute, which she did not do. Thus, the anti-lapse statute ap- cluded language preventing the operation of the anti-lapse the time the will was executed, the testator could have in- views escheats, the court held that since the sister was alive at reversed. relying on the general disfavor with which the law under ala. code § 11-42-200, city council is vested with au- under ala. code §37-6-20,revenues mem- ofanelectric www.alabamaADR.org For more information, search Qualified, former or aPPEaLaBLE Judges registered Center for dispute fasT • Easy With the alabama “Find a Private Judge” at retired alabama al acts no.al acts 2012-266 resolution and 2018-384 hire a to hear any case assigned a CV or dr case number hon. r.a. “sonny” ferguson, Jr. [email protected] hon. rosemary d.hon. rosemary Chambers by the alabama administrative Office of Courts [email protected] [email protected] hon. suzannes.Childers hon. melissa “Jill” ganus [email protected] hon. arthur J. hanes,hon. arthur Jr. [email protected] hon. s.PhillipBahakel hon. robert E. austinhon. robert [email protected] [email protected] [email protected] hon. JohnB. Bush (205) 933-9033 (205) 424-0993 (205) 250-6631 (205) 908-9018 (251) 402-6256 (334) 567-2545 (205) 987-8787 (205) 274-8255 PriVaTE JudgE name prescription could drugmanufacturer potentially be v. Weeks, 159so. 3d649(ala. 2014),underwhichbrand- 25, 2019) Forest Laboratories, LLC v. Feheley, no. 1180387(ala. Oct. Cases drug Liability; Product phrase the statutory “provide for.” point ataxcollector, chiefofpolice, andchiefoffire within Melton v., no. Bouie 1180324(ala. 25,2019) Oct. mayor/Council relations tween theminorsandtheirparents). would beinadequate” (inthiscase, there be- was noconflict representation oftheinterest [oftheminor]otherwise termination, asrequired by thestatute itself, “that thorize appointment ofagal,where there hadbeennode- mandamus relief, and(2)ala. code §26-2a-52 didnotau- 25, 2019) Eagle Landing, CityR LLCEx parte , no. 1180630(ala. Oct. guardian ad Litem appointments ala. code §6-5-530,passedin2015,abrogated Wyeth, Inc. under ala. code to ap- §11-43-5,council hasauthority (1) appointment ofpotential ofgalistheproper subject hon. Christopher m. mcintyre [email protected] hon. Braxton L.Kittrell, Jr. [email protected] [email protected] hon. david a.Kimberley bkittrell@kittrellandmiddle [email protected] [email protected] hon. sharon h.hester hon. James gary Patehon. James gary [email protected] hon. d. richard Lane hon. Juliea.Palmer [email protected] hon. J. Brianhuff (205) 999-3092 (205) 616-2275 (256) 644-5136 (334) 740-5824 (251) 432-0102 (205) 930-9800 (256) 332-7440 (256) 543-0400 brooks.com [email protected] [email protected] [email protected] [email protected] hon. martha L.sherrod hon. martha hon. James h.reid, Jr. hon. James h.sandlin hon. Eugene W. reese hon. Edward B. Vines hon.Tom f. young, Jr. [email protected] hon. J. scott Vowell [email protected] [email protected] [email protected] hon. ronstorey (334) 799-7631 (251) 709-0227 (334) 699-2323 (256) 655-2016 (256) 319-2798 (205) 214-7320 (205) 354-7179 (256) 329-2000 www.alabar.org 93 T h e Alabama Lawyer 94 T h e Alabama Lawyer January 2020 tain retroactive coverage to provide protection to landlord. undisputed evidence indicated that landlord could notob- environmental coverage, for landlord’s protection, and insurance coverages, coverage includingliquorliability and ience store andgasstation leaseinfailingto procure certain 2019) LNM1, LLC v. Inc. , no. TPProperties, 1170708(ala. nov. 1, Commercial Landlord Tenant debtwasderlying paidoff. no. 1180215(ala. 25,2019) Oct. Capital,Magic City LLC v. Twickenham Place LLC Partners, , mootness when heran over andinjured herwhileintoxicated. Jeep) was beingdriven by husbandwithoutherpermission, sion. There was substantial evidence that theauto (wife’s cluded anauto beingdriven withouttheowner’s permis- “uninsured auto,” in- becausethelatter term inthepolicy that anautomobileity could bebothaninsured auto andan 2019) Cowart v. GEICO Casualty Co., no. 1171126(ala. 25, Oct. um/uim brand-name manufacturer. turer, butusingthesamewarningsasthoseusedby the ing amedication by manufactured manufac- thegeneric liable onafailure to warnclaimwhere theplaintiff was tak- nov. 8,2019) Inc., no. Effects, Ultratec Special Ex parte 1180180(ala. Parent Entities Workers’ Compensation; Exclusivity and (which was also where the underlying accident occurred). not in the venue where the underlying action was filed suit occurred where the insurer made its coverage decisions, to defend or indemnify plaintiff insured in an underlying law- occurred. act or omission for the insurer defendant’s refusal omissions of the corporate defendant, not where the injury omissions” giving rise to a claim refers to the wrongful acts or AllstateIns. Co.Ex parte , no. 1180624(ala. nov. 8,2019) Venue; insurance; Corporations (Continued frompage93) commercial tenant breached material term ofconven- toaction enforce interest security becamemootwhenun- Plurality opinion;insurer’s allowed for policy thepossibil- under ala. code § 6-3-7(a), a “substantial part of the acts or r e n r o c e T a l l e P P a e h T the parent’s independent conduct. for anddeath injuries suffered by subsidiary’s employees for theexclusivity notwithstanding provisionstort, oftheact, the neteffectisthat parent corporation could beliablein to beanagent undercommon-law principal-agenttests. under ala. code §6-3-7doesnotmeanthat the “agent” has through areseller inthat county. businessby doing “agent” ness by agent” inacounty by having resold itsproducts (ala. nov. 15,2019) Road Truck Gear Ex parte Equipment, LLC, no. 1170238 Venue; Corporations to arbitral proceeding after arbitration was compelled, but v.Ali Williamson, no. 1170896(ala. nov. 22,2019) ofProcess;service arbitration ment under state common-law theories after distribution. husband’s estate against wife for breach of prenuptial agree- erisa. Thus, lack of a valid erisa waiver does not bar a suit by whom the plan administrator must distribute funds in an sion plans. but the lack of a valid erisa waiver affects only to fectuate spousal disclaimers of proceeds to 401(k) and pen- v.Moore , no. Moore 1180482(ala. nov. 22,2019) Erisa; Prenuptial agreements not addressed to an individual as required by rule 4(c)(6).” ceipt was addressed merely to Woodruff brokerage and was ral person as registered agent; “the certified-mail return re- address card was directed to the corporation and not a natu- (ala. nov. 22,2019) Woodruff Brokerage Company, Inc. v., no. Beatty 1180349 ofProcess;service Corporations quired by dhrpolicies. plan)review regarding cellservice condition asre- thesickle pute regarding herfailure isP(individualized to conduct Cranman onallnegligence claims;dhrworkernity was notentitled to KelleyEx parte , no. 1170988(ala. nov. 15,2019) state-agent immunity in a plurality opinioninterpreting aplurality in ala. code §25-5-1(4), Plurality opinion;corporate defendant was “doing busi- Trial court lacked 29 u.s.c. § 1055 requires execution of spousal waivers ef- service on corporate defendant was improper because the Parent anddhrworker were entitled to parental immu- immunity, however, becausethere dis- was afact in personam jurisdiction over party added Public service commission (“the Psc”). commission Psc”). Public (“the service The supreme court that itwas withintheexclusive ofthealabama jurisdiction aPco expense. dismissedthecase,The circuit finding court cate facilitiesincity’s overhead electrical downtown area at (ala. nov. 25,2019) ofWetumpkaCity v. Power Alabama Co., no. 1170992 administrative Law This isafour-justice opinion. plurality erred inordering ofcaseevaluation production materials. innature, claim)isobjective demnity court andthustrial for thein- (necessary action good faithinsettlingunderlying The determination reasonably ofwhetherdow acted andin regarding caseevaluations concerning case. theunderlying ing lawsuit, dow didnotwaive privilege attorney-client ment ofdefense costs relating andindemnity to anunderly- nov. 25,2019) Inc. Dow Corning, no. Alabama, Ex parte 1171118(ala. discovery; insurance judgment against that party. ceeding, and therefore acted improperly in entering default which party was never joined and served in the judicial pro- city suedaPcocity challenging its decision to refuse to relo- for by dow reimburse- againstalabama action electric in need more Join the asB Lawyer referral service oVerVieW oF The Program oF The oVerVieW Join? Why Professional insurance liability required for participation • percentage maximum fee of$250 onfees between $1,000 and$5,000 • annual fee of$100 • referrals inall67counties • improve your bottom line • from benefit efforts ourmarketing • expandyour client base • adjudicate suchchallenges. lations ofthePsc,andPschasexclusive to jurisdiction regu- wasaffirmed, challenging holdingthecity theservice trian onaroadtrian withoutsidewalks proceed sideof ontheleft 2019) v.Hawkins , no. Simmons 2180244(ala. Civ. app. 4, Oct. Contributory negligence andCausation civil appeals From of thecourt monument (inlinnPark). city’s placement screen ofaplywood around aconfederate ala. codehistoric monuments act, §41-9-232(a)regarding ment challengeinterposed to by thestate’s themunicipality municipality, andtherefore rejected aFirst thecourt amend- ment rightsagainstthestate, becausethestate created the State v. City of Birmingham monumentshistorical although ala. code §32-5a-215(c) requires that apedes- among otherholdings, hadnoFirst municipality amend- clients , no. 1180342 (ala. nov. 25, 2019) Download theapplicationDownload sign meup! email [email protected]. at www.alabar.org www.alabar.org ? or 95 T h e Alabama Lawyer 96 T h e Alabama Lawyer January 2020 ered by earth. law,upon statutory whichrequires that solidwaste becov- and(2)theacm enlarge rulesimpermissibly their property; ted odors, theresidents depriving ofuse and enjoyment of waste attracted vultures andferal dogsto thesite andemit- the landfills’ to cover instead useoftarps ofearth thesolid tive cover-materials (“acm”) rules, basedonevidence that Smith v. LeFleur administrative Law nent partial vocational disability to any subsequent employer. sure rule did not assign responsibility for any injury or perma- bar recovery vocational disability; and (2) last-injurious-expo- the return to work statute, ala. code § 25-5-57(a)(3) so as to formed after injury was higher than his pre-injury wage under that injured worker’s average weekly wage for work per- 2180101 (ala. Civ. app. 4,2019) Oct. AMEC Foster Kamtech, Wheeler Inc. v., no. Chandler Workers’ Compensation had noproblems beingseenby othermotorists). stances of theaccident (especiallythathad thepedestrian given ofevidence thetotality presented andthecircum- proximate by againstmotorist, pedestrian causeinaction questionwas presentedthe road, asto ajury thequestionof barred by theexclusivity provisions when they oftheact 18, 2019) Swain v. AIGClaims, Inc., no. 2180336(ala. Civ. app. Oct. Claim handling Outrage andfraud; Workers’ Compensation knee. to hisleft his compensable injury to employee’sinjury was to causallyconnected rightknee no. 2180627(ala. Civ. app. 11,2019) Oct. Enterprise Leasing Company-South Central LLC v. Drake, Workers’ Compensation to circuittainer action court. app. 11,2019) Oct. Nest Two Ventures, LLC v. Capps, no. 2180597(ala. Civ. unlawful detainer (Continued frompage95) (1) residentshadstandingto challengeadem’s alterna- among other holdings: (1) employer failed to demonstrate Tort from claims arising handlingofcomp claimare not court’s trial sufficient evidence supported conclusion that to transfer hadnoauthority unlawful-de- court district , no. 2180375 (ala. Civ. app. Oct. 11, 2019) r e n r o c e T a l l e P P a e h T appropriate for arule12dismissal. proximate not causeanalysis typically regarding theinjury notcoveredproduce aninjury by theact. This requires a 1983 claimbased onunlawful seizure ofthe person,because ever, officer was entitled on section to qualified immunity such immunities.not core triggering how- judicial functions inobtaininganarrest warrant paid;actions are had infact probationer for non-payment of afinewhenprobationer inapplyingforquasi-judicial immunity arrest warrant for Tax redemptionby sales; mortgagee money.for distinguishingcleanmoneyfrom dirty alternative methodproposed by appellant (lastin,firstout) made. for appellant authority the failedto offer supporting are commingled, andinwhichdepositswithdrawals are held inanaccount inwhich “clean money” and “dirty money” Wilson v. State , no. 2180453(ala. Civ. app. 25,2019) Oct. forfeiture Washington v. Rivera immunity Qualified Judicial immunity; appeals circuit of court From theeleventh asofpressbeen reported time. court states supreme From theunited brought five thetaxsale.years after purchaser underala. code §40-10-83was timelywhen v.US Bank Trimble, no. 2180742(ala. nov. 1,2019) state probation officer was notentitled to judicialor issue concerns what to moniesare forfeiture when subject The court’s newterm beganinoctober. nodecisionshad mortgagee’s to recover action real estate from tax-sale , no. 17-13811 (11 th Cir. sept. 25, 2019) opinion, and because defendant never moved for mistrial. uance to prepare cross-examination on expert’s undisclosed cause defendant asked for and obtained an overnight contin- strike expert testimony not disclosed in rule 26 report, be- that the trial court did not abuse its discretion in refusing to Judge Tjoflat bitingly dissenting. The important holding is Judge Julie carnes specially concurring and (now senior) eleventh circuit affirmed in a split rationale decision, with sult of which was a substantial judgment for plaintiff. The mdl, Taylor’s case was selected as a bellwether trial, the re- to treat urinary incontinence. after consolidation into an juries resulting from the implantation of surgical mesh used 8, 2019) Oct. cation ofadischarge ofdebt. the samestatute, 11u.s.c. §727(d)(2),thereby revo- barring § 727(d)(1),isnotto beread into of theadjacent subsection statute, 11u.s.c. ofthebankruptcy tained inonesubsection regarding redactions under exemptions 7(c), 7(d), and 7(e). 20-plus page dissent), but reversed the district court’s rulings affirmed in most respects in a 50-plus page opinion (with a mation redacted under exemption 7(d). The eleventh circuit exemptions 6 and 7(c), as well as confidential-source infor- ment to disclose personal information redacted under tions to the produced documents, but ordered the govern- judgment in favor of the government for most of the redac- 9/11 commission work. The district court granted summary sept. 23,2019) Taylor v. Mentor Worldwide, LLC , no. 16-17147(11 sanctions Experts; Liability; Product In reThompson,no. 18-11885(11 Bankruptcy related1540 (2016),aswell asotherclass-action issues. Spokeo, after ing act) Inc. v. Robins,578u.s. ___,136s.ct. claim (undertheFacTa provisions oftheFair credit report- astatutory to watch, iiistandingto assert addressing article 2019; Cir. Oct. 3, 2018, rehearing Muransky v. Godiva Chocolatier, Inc. standing sentatives; Class-action settlements; feetory Cases; incentive awards to repre- Class Common-fund actions; fees instatu- Broward Bulldog, Inc. v. USDOJ , no. 17-13787(11 fOia warrant. beyond hisavailable recordsfurther before applyingfor the establishedlawno clearly required theofficer to investigate This is a bellwether surgical mesh case. Plaintiff sued for in- The “lack-of-knowledge” requirement that isexplicitly con- newspaper sued under Foia for Fbi documents relating to There one isnodecisionyet, butthiswillbeanimportant VACATED FOR EN BANC REHEARING sua sponte th , no. 16-16486 (11 Cir. 7,2019) Oct. granted april 22, October 4, 2019) th th Cir. Cir. th uses violates federal and state law; (3) district court abused uses violates court federal (3)district andstate law; failure to includeprovisions grandfathering lawful inprior the repealed ordinances andwhetherthenewordinances’ stitutes alawful nonconforming prior useauthorized under judgment regarding whetheritssaleofsexual devices con- reversed thedismissalofretailer’s request for adeclaratory damages relating to therepealed ordinances; (2)thecourt court’sdistrict dismissalofretailer’s claimfor compensatory the affirmed bottom-line holdingsare these:(1)thecourt adult-retail ordinances. ofcertain lief concerning legality The within the scope of services covered by § 3604(b).” conduct and that the basic utility services in question here fall ready secured: “§ 3604(b) encompasses some post-acquisition city’s requirements for procuring utility services in housing al- the Fha based on a disparate impact allegation regarding the 2019) (11 Tokyo Gwinnett, LLC v. Gwinnett, no. County 17-11871 younger abstention NAACP v. ofLaGrange , no. City 18-10053(11 fair housing act adult retailer re- sought moneydamagesanddeclaratory Plaintiffs may potentially state a claim under § 3604(b) of (334) 478-4147 • www.alis-inc.com th Jim hEndErsOn Jim Cir. 11,2019) Oct. Private Investigative > Services Statewide > Process Serving Tag Registration Searches > Vehicle Searches Lien > s E C i V r E s CLayhEndErsOn Skip Tracing > th Cir. 10, Oct. www.alabar.org 97 T h e Alabama Lawyer 98 T h e Alabama Lawyer January 2020 (Continued frompage97) creditors. out plan–thusevincingalackofmotive orintent to defraud that thechapter 13planwasand thefact a100percent pay- ongoing obligation to update schedules(inachapter 13), counsel advisedofher ing, suchaswhetherher bankruptcy fil- surrounding circumstances at thetimeofbankruptcy andother oftheclaimshe wastiff’s asserting knowledge Slater II),therecord contained insufficient evidence ofplain- andcircumstances.facts thiscase(decidedbelow before in ofthejudicialsystemintent underthe to makeamockery for mustshow an failure to scheduleaclaiminbankruptcy (en banc)(“Slater II”),defendant claimingjudicialestoppel Oct. 15,2019) Oct. immunity. tered thehousewithoutawarrant andthereby lostqualified crosseddeputy thebrightconstitutional linewhenheen- guable” probable context), causeinthequalifiedimmunity Hunter v. City of Leeds issue Preclusion immunity; Qualified v.Smith Haynes&Haynes, LLC, no. 17-14150(11 Judicial Estoppel Bailey v. Swindell, no. 18-13572(11 fourth amendment; immunity Qualified tailer’s claimsstemming from thecounty’s newordinances. its discretion by abstainingunderYounger from re- hearing cer inthecircumstances ofthechase, whichwas attendant violation to ofshots with respect theinitialfiring by theoffi- (2)there was noFourth amendmenttitlement to immunity; tol was pointed for ofdetermining theofficer’s purposes en- the pistol, question arose asto and thus afact whenthepis- scenarios (at leastthree) inwhichplaintiff allegedlypointed the officer, butwas notpreclusive asto themultiplefactual was preclusive theplaintiff pointed asto thefact to pistol at plaintiff agreed that hepointed apistol atofficer, thefiring a menacingcharge from arising theincident, inwhichthe ficer. reasoned: (1)plaintiff’s The to pleainstatecourt court officers, to of- thedenialwithrespect thefiring butaffirmed with to the non-shooting nial ofqualifiedimmunity respect rounds onplaintiff, reversed court’s thecourt thedistrict de- involved inachasewhichendedofficer’s of10 firing under Slater v. U.S.Steel Corp., 871F.3d 1174(11 even hadprobable sheriff causeto ifdeputy arrest (or “ar- in appealfrom to officersin thedenialofqualifiedimmunity , no. 17-11939 (11 th Cir. 16,2019) Oct. th Cir. nov. 1, 2019) r e n r o c e T a l l e P P a e h T th th cir. 2017) Cir. overruled Basco v. Machin,514F.3d 1177(11 ing officers were soentitled. claimsbutthat thenon-fir- onstate-law titled to immunity entirely accurate), holdingthatofficer thefiring was noten- analysis (ed.: whichmay beconvenient butisnot shorthand, man) andpeace to officer thequalifiedimmunity immunity equated alabama’sThe court (Cran- function discretionary as officers,to thenon-firing qualified immunity however. under thecircumstances. reversedThe court thedenialof had dropped hisweapon, andhewasofflight notarisk of threat hadbeeneliminated, given testimony that plaintiff of weapon presented issueasto whetherthepresence fact to acallfor achildbeingheldhostage;but(3)second firings sued under section 8. sued undersection the authority’s to terminate yarbrough’s housingvoucher is- panel onremand heldthat sufficient evidence supported members of the class will require individualized inquiries.” at first blush here, and making that determination for these large portion of the class does not have standing, as it seems over the common issues in the case, when it appears that a whether the individualized issue of standing will predominate must consider under rule 23(b)(3) before certification dominance problem under rule 23(b)(3). district“[T]he court mixture of persons with and without standing creates a pre- not consider in assessing the propriety of certification. such a out article iii standing, which the district court improperly did telemarketing calls included a mix of persons with and with- qualified immunity. and even ifclaimswere stated, defendants were entitled to bama credit unionadministration to takeover credit union, leged constitutional wrongs stemming from board ofala- claims againstgovernor andgovernor’s legaladvisorfor al- fair housing act Cordoba v., no. DirecTV 18-12077(11 Predominance iiistanding; Class article actions; Carruth v. Bentley, no. 18-12224(11 immunity Qualified (11 Yarbrough v., no. HousingAuthority Decatur 17-11500 after theenbanc Putative TcPa class consisting of recipients of unwanted Former ceoofstate-regulated credit unionfailedto state th Cir. 29,2019) Oct. court (931F.3dcourt 1322(11 th th Cir. nov. 7,2019) Cir. nov. 15,2019) th th cir. 2019)) cir. 2008),the fact-intensive ofthegovern- onethat looksat thehistory over themicrophone was government speechisaheavily on thelimited record: questionofwhetherallspeech “The that free speechandfree exercise claims were viablebased complaint. The eleventh circuit holding reversed inpart, speech andfree exercise claims. dismissedthe The court trial school (cambridge) First sued, asserting amendment free before thegame;association deniedtherequest. one ajointschools askedto prayer conduct over theloudspeaker schoolsascompetitors,Fhsaa butwithtwo christian the Assn., no. 17-12802(11 v.Cambridge School Christian FloridaAthletic HighSchool first amendment cosmetic (“Fdca”), act 21u.s.c. §301etseq. since they were bannedundertheFederal Food, drug, and when theypurchased supplements that were worthless Cir. nov. 14,2019) v.Debernardis IQFormulations, LLC , no. 18-11778(11 standing at a high school championship game sanctioned byat ahighschoolchampionshipgamesanctioned Plaintiffs plausiblyallegedthey suffered economic loss th Cir. nov. 13,2019) Fulf akwarell Pwe1241 N On Tar y |Mon th tgomery get. OnTime CO WE’VE OVERED VERED trol over thosemessages.” overried that medium,andthedegree ofgovernment con- implication ofgovernment endorsement ofmessagescar- ment’s useofthemediumfor communicative purposes, the seeking equitablerelief to reinstateseeking lapsedpoliciesshould against insurer regarding renewals, cost ofpolicy plaintiff’s 22, 2019) pute three separate times. based onallegations that consumer ofthedis- notifiedcra stated plausibleclaimagainstbank “furnisher” underFcra chase, thusdefeating FdcPa claim.however, consumer where “chase homeFinance” for was collecting JPmorgan waswould involved believe athird adebt, party incollecting nov. 12,2019) Anderson v.Anderson Wilco LifeIns. Co., no. 19-14127(11 Cafa; amount inControversy Pinson v., no. JPMorgan ChaseBank 16-17107(11 fdCPafCra; in putative forrelief andinjunctive in classaction declaratory Plaintiff didnotshow sophisticated“least consumer” UOGOT Y

, AL36110 |da gMailin gtinPrin . visdirect. tillmen com th Cir. nov. www.alabar.org th Cir. 99 T h e Alabama Lawyer 100 T h e Alabama Lawyer January 2020 (Continued frompage99) same. town withpublic-records requests andlawsuits relating to other related personsandentities whichwere barraging upon town’s filingofarico againstplaintiff and action dismissal ofFirst amendment retaliation claims, premised Healthy ation claimsandthebut-for causation standard ofMt. nov. 21,2019) those convictions, finding that the circuit court may sentence remanded for the imposition of concurrent sentences on the same facts did not violate double jeopardy. however, it Smith v. State double Jeopardy; Concurrent sentences exception underala. code §15-10-3(a)(6). meanor, thearrest didnotfallwithinthewarrantless arrest they didnotstem from thecommission ofafelony ormisde- arresting officer didnotpossessthewarrants, andbecause outstanding capiaswarrants shouldhave beensuppressed; Berry v. State arrest onCapias Warrant; suppression another” for firstdegree under ala. theft code §13a-8-3(a). ofproperty did notconstitute ataking “from thepersonof ment andusingthosefundsfor unauthorized expenditures 2019) v.Robertson State, Cr-18-0156(ala. Crim. app. sept. 20, ofProperty Theft appealscriminal From of thecourt rECEnT CriminaLdECisiOns v.Demartini Town, no. ofGulfStream 17-14177(11 first amendment retaliation the $5millioncaFa threshold. be aggregated, andtheface value ofthepoliciesexceeded in a73-pagethoroughin analysis ofFirst amendment retali- defendant’s convictions of theft and burglary arising from drug evidence resulting from thedefendant’s arrest on defendant’s moneyfrom hervolunteer taking fire depart- and itsprogeny, court’s thetrial affirmed thecourt , Cr-18-0233 (ala. Crim. app. sept. 20, 2019) , Cr-17-0845 (ala. Crim. app. sept. 20, 2019) r e n r o c e T a l l e P P a e h T th Cir. made concurrent rather than consecutive. a defendant for both burglary and theft if the sentences are constituting doublejeopardy. ond felony murder as conviction from arising thesameact from thedeath ofhisvictim’s baby, unborn itvacated asec- olence conviction andonefelony murder conviction arising dence. thedefendant’s affirmed While the court domesticvi- regarding gave to theevi- thejury court limitinginstruction plicate thedefendant inthefire, asasuspect andcircuit before evidence thefatal shortly attack. burned didnotim- evidence showing that thehomeofvictim’s was friend found noviolation ofala. r.evid. 404(b) intheadmissionof 2019) Kemp v. State, Cr-18-0362(ala. Crim. app. sept. 20, Prior doubleJeopardy acts; Bad readily apparent to bemethamphetamine. weapons revealed bulgewith “crunchy” texture that was substance was proper. arresting officer’s pat down for 2019) v.Gardner State, Cr-18-0368(ala. Crim. app. sept. 20, Plain feel doctrine tion must have been decided on its merits before it is subject gated the requirement that a claim raised in a previous peti- subject to preclusion as successive. The amendment abro- ous petition must have been decided on its merits before it is ala. r. crim. P. 32.2(a)(4), had held that a claim raised in a previ- overruled prior caselaw that, prior to the 2002 amendment of a waiver of the preclusion provisions. The court also expressly tion; state’s failure to respond to the petition did not constitute crim. P. 32.2 regardless that the state did not respond to peti- 2019) v.McAnally State, Cr-18-0656(ala. Crim. app. sept. 20, rule 32;successive Petitions trolled substance. a lesser-included offense ofunlawful of con- distribution 20, 2019) Cunningham v. State, Cr-18-0551(ala. Crim. app. sept. Controlled substances in thisdomesticviolence/felonyin murder casethecourt defendant’s arrest for unlawful possessionofacontrolled circuit court could apply preclusion provisions of ala. r. unlawful possessionofcontrolled as substance may serve exception ofala. r.evid. 803(2). seen, anditthusfell withinthe “excited utterance” hearsay child remained underprolonged stress from what shehad death was notimproper. at thetimeofstatement the proximately three shewitnessedhermother’s hoursafter 2019) Jackson v. State, Cr-16-1039(ala. Crim. app. sept. 20, hearsay; Excited utterance petitioner’s firstcaseis expunged. over thenumberofcasesthat may the beexpunged after eration inthat decision.however, hasdiscretion circuit court to payability for pretrial diversion are for notfactors consid- requirements.statutory The petitioner’s innocence orthe to expunge ifreasonably satisfied petitionerhasmetthe 2019) Steinberg, Cr-17-1157(ala.Ex parte Crim. app. sept. 20, Expungement with respect to non-jurisdictional claims.” to preclusion under ala. r. crim. P. 32.2(a)(4) or 32.2(b), “at least admission ofastatement by thevictim’s childmadeap- isfiled, must grant circuit noobjection apetition if court der through accomplice liability under ala. code § 13a-2-23, 2019) v.Hubbard State, Cr-17-1122(ala. Crim. app. 25, Oct. accomplices dant isthechild’s parent. and control over thechild, regardless whetherthedefen- sexually assaultsachildexercised apositionofdomination compulsion” isapplicableinany casewhere defendant who Black v. State, Cr-18-0315(ala. Crim. app. 25,2019) Oct. sexual assault; forcible Compulsion offender’s number. security social tronic mediumrelating to offender, acriminal includingthe any knowledge,ordata facts, stored inatangible orelec- 9-601, “criminal offender record information” encompasses record information by falsepretenses underala. code §41- 2019) Alexander v. State , Cr-17-1175(ala. Crim. app. sept. 20, Criminal record information state sufficiently proved defendant was guilty of capital mur- For proof ofrape, sodomy, andsexual abuse, “forcible For oftheoffense purposes offender ofobtainingcriminal www.alabar.org 101

T h e Alabama Lawyer 102 T h e Alabama Lawyer January 2020 (Continued frompage101) defendants to the area where victim was killed. bers to kill victim, provided rifle for shooting, and rode with whereco- evidence showed defendant asked fellow gang mem- sion oroccupancy. that defendant didnothave ownership orarightofposses- hadarightto possessoroccupyvictim thebuildingand victim’s ownership interest. instead, itneedonlyshow that burglarized buildingordwellingnature ortheexact ofthe not required to demonstrate whoholdslegaltitleto the Tate v. State , Cr-18-0378(ala. Crim. app. 25,2019) Oct. Burglary For underala. code proof §13a-7-5, ofburglary state is r e n r o c e T a l l e P P a e h T tering of the vehicle under ala. code § 13a-8-11(b). s tering ofthevehicle underala. code §13a-8-11(b). remove itscatalytic converter constituted anden- breaking v.Baise State, Cr-18-0616(ala. Crim. app. 25,2019) Oct. andEnteringBreaking Vehicle with that procedure. tence thejuvenile offender, absent aconstitutional problem legislature’s decisionto to authorize sen- thecircuit court ofparole.the possibility willnotsecond guessthe The court tal murder juvenile offender to life imprisonmentwithout shoulddetermine whethertocircuit sentence court, acapi- Boyd v. State, Cr-18-0288(ala. Crim. app. 25,2019) Oct. Juvenile Capital murder defendant’s climbingunderneathacarandusingsaw to rejected thenotionthat ajury,The court rather thanthe

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