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Dec 29, 2017

County Damages Cap – § 11-93-2, Ala. Code 1975 Inapplicable to Individual Capacity Claims Against Governmental Employees: Wright v. Cleburne County Hospital Board, Inc.

Wright v. Cleburne County Hospital Board, Inc., [Ms. 1151317, Dec. 29, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Murdock (Parker, Wise, and Bryan, JJ., concur; Stuart, C.J., and Bolin, Shaw, and Main, JJ., concur in the result; and Sellers, J., dissents) reverses the Cleburne Circuit Court’s interlocutory order determining that the $100,000 cap on damages set out in § 11-93-2, Ala. Code 1975, applied to plaintiff’s claims against three nurses employed by the Cleburne County Hospital Board.  Ms. *3.

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Dec 22, 2017

Permissive Appeal: Bronner, etc. v. Burks II, et al.

Bronner, etc. v. Burks II, et al., [Ms. 1150817, Dec. 22, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Shaw (Stuart, C.J., and Parker, Wise, Bryan, and Sellers, JJ., concur; Murdock, J., concurs in the result; Bolin, J., dissents; and Main, J., recuses himself) dismisses, on the ground of permission having been  improvidently granted, the defendants’ permissive appeal from the Montgomery Circuit Court’s order denying a motion for summary judgment in a class action brought by married educators/participants in the Public Education Employees’ Health Insurance Plan (“PEEHIP”). Read More

Dec 22, 2017

Merits Discovery While Motion to Compel Arbitration Pending – Mandamus – Death of Party During Pendency of Appeal: Slamen v. Slamen

Slamen v. Slamen, [Ms. 1160758, Dec. 22, 2017] __ So. 3d __ (Ala. 2017).  This decision by Chief Justice Stuart (Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur; Murdock, J., concurs in the result) issues a writ of mandamus to the Jefferson Circuit Court vacating the court’s order requiring the defendants to respond to discovery on the merits while the defendants’ motion to compel arbitration was pending before the circuit court.

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Dec 22, 2017

Forum Non Conveniens – Interest of Justice – Location of Accident: Ex parte Elliott

Ex parte Elliott, [Ms. 1160941, Dec. 22, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Main (Stuart, C.J., and Bolin, Parker, Wise, Bryan, and Sellers, JJ., concur; Shaw, J., concurs in the result; and Murdock, J., dissents) issues a writ of mandamus to the Lowndes Circuit Court directing the court to vacate its order transferring venue in this action to Montgomery County.

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Dec 22, 2017

Estate Administration – Law of the Case: Wehle v. Bradley

Wehle v. Bradley, [Ms. 1160214, Dec. 22, 2017] __ So. 3d __ (Ala. 2017).  This unanimous decision by Justice Shaw (Stuart, C.J., and Bolin, Parker, Murdock, Main, Wise, Bryan, and Sellers,  JJ., concur) reverses the Bullock Circuit Court’s judgment that the beneficiaries of the decedent’s estate were limited to recovery of profits made by the personal representatives on fees prematurely paid by the representatives to themselves without court approval rather than legal interest on the improperly paid fees. Read More

Dec 15, 2017

Appellate Jurisdiction – Motion for Contempt – Interest on Unpaid Child Support Obligations: Clay v. Clay

Clay v. Clay, [Ms. 2160722, Dec. 15, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Donaldson (Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur) dismisses the husband’s appeal from the trial court’s order in a post-judgment proceeding filed by the wife in the parties’ 1982 divorce case.

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Dec 15, 2017

Appellate Jurisdiction – Rule 60 Motion: Ex parte Eugene Keeler

Ex parte Eugene Keeler, [Ms. 2170099, Dec. 15, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Pittman (Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur) issues a writ of mandamus to the Montgomery Circuit Court directing it to vacate its order entered pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure setting aside a default judgment entered against Anderson Automotive.

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Dec 15, 2017

Divorce – Parallel Criminal and Civil Proceedings – Stay: Ex parte T.K.

Ex parte T.K., [Ms. 2170127, Dec. 15, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Presiding Judge Thompson (Pittman, Thomas, Moore, and Donaldson, JJ., concur) denies the husband’s petition for writ of mandamus seeking to vacate the Houston Circuit Court’s order refusing to stay a divorce action pending resolution of criminal charges against the husband.  The criminal case involves allegations against the husband for sexual abuse of the parties’ minor child under the age of twelve.  Ms. *2-3. 

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Dec 15, 2017

Resulting Trust in the Nature of a Mortgage – Statute of Frauds: Newell v. Newell

Newell v. Newell, [Ms. 1160851, Dec. 15, 2017] __ So. 3d __ (Ala. 2017).  This unanimous decision by Justice Main (Stuart, C.J., and Bolin, Murdock, and Bryan, JJ., concur) reverses the Franklin Circuit Court’s order granting partial summary judgment dismissing the plaintiff’s claim alleging equitable mortgage as to two tracts of farm land.  The Court noted that this dispute between father and son over ownership of the land was subject to myriad factual disputes.  Ms. *9.

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Dec 15, 2017

Removal of Probate Administration From Probate to Circuit Court: McElroy v. McElroy

McElroy v. McElroy, [Ms. 1160394, Dec. 15, 2017] __ So. 3d __ (Ala. 2017).  This unanimous decision by Justice Bryan (Stuart, C.J., and Bolin, Murdock, and Main, JJ., concur) dismisses contestants’ appeal from the Jefferson Circuit Court’s order denying their will contest.

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Dec 15, 2017

12(b)(6) Standard of Review for Failure to State a Claim – Tort of Outrage: Wilson v. University of Alabama Health Services Foundation

Wilson v. University of Alabama Health Services Foundation, [Ms. 1160654, Dec. 15, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Shaw (Stuart, C.J., and Parker, Main, Wise, and Bryan, JJ., concur; Bolin, Murdock, and Sellers, JJ., dissent) reverses the Jefferson Circuit Court’s dismissal of the plaintiff’s complaint alleging the tort of outrage against the University of Alabama Health Services Foundation and a number of its physicians.  Wilson alleged that the defendant physicians made egregious and tactless comments to her and her dying mother to the effect that the mother was wasting resources by being in the hospital rather than dying at home.  Ms. *2-3.  The trial court dismissed the claim at the pleading stage for failure to state a claim concluding that outrage is limited to three situations. Read More

Dec 15, 2017

AMLA – Discovery Privilege – Ala. Code § 22-21-8 – Mandamus: Ex parte Tombigbee Healthcare Authority

Ex parte Tombigbee Healthcare Authority, [Ms. 1160706, Dec. 15, 2017] __ So. 3d __ (Ala.  2017).  This decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur; Murdock, J., concurs in part and concurs in the result; Shaw, J., dissents) denies a petition for writ of mandamus sought by Tombigbee Healthcare Authority challenging an order of the Marengo Circuit Court compelling the hospital to respond to certain discovery requests.

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Dec 8, 2017

Award of Attorney’s Fees Under Litigation Accountability Act – Effect of Plaintiff’s Voluntary Dismissal of Claim: Green v. Beard and Beard, Attorneys

Green v. Beard and Beard, Attorneys, [Ms. 2160590, Dec. 8, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Moore (Thompson, P.J. and Pittman, Thomas, and Donaldson, JJ., concur) affirms the Marshall Circuit Court’s award of attorney fees pursuant to the Alabama Litigation Accountability Act (the ALAA), against Attorney Phil Green.  Purporting to act on behalf of Willadean Willard, Green filed a libel claim against attorneys Beard and Beard alleging that an interrogatory propounded by Beard and Beard to Willadean in Willadean’s divorce action defamed her.
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Dec 8, 2017

Timeliness of Appeal From Denial of Post-Judgment Motion – Failure to Supplement Discovery Response to Disclose Eyewitness – New Trial – Judgment As A Matter of Law: Mitchell’s Contracting Service v. Gleason

Mitchell’s Contracting Service v. Gleason, [Ms. 1160376, Dec. 8, 2017] __ So. 3d __ (Ala.  2017).  This decision by Justice Sellers (Stuart, C.J., and Wise, J., concur; Murdock, J., concurs in part and concurs in the result in part; Parker, J., concurs in the result; and Bolin, Shaw, Main, and Bryan, JJ., dissent) reverses the Wilcox Circuit Court’s denial of Mitchell’s Contracting Service, LLP (“Mitchell”)’s motion for new trial in a wrongful-death action in which the jury awarded $2.5 million against Mitchell.  The claim arose from an automobile accident in which the decedent Lorena’s vehicle left Wilcox County Road 12 and struck a tree.  Plaintiff’s theory of liability was that a dump truck driven by a Mitchell employee forced Lorena’s vehicle from the roadway.  Ms. *2.

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Dec 1, 2017

Timeliness of Mandamus Petition – Relation Back of Amendment Adding Party Defendant After Expiration of Statute of Limitations: Ex parte Profit Boost Marketing, Inc.

Ex parte Profit Boost Marketing, Inc., [Ms. 1160326, Dec. 1, 2017] __ So. 3d __ (Ala. 2017).  This unanimous decision by Justice Shaw (Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, and Sellers, JJ., concur) issues a writ of mandamus to the Marshall Circuit Court directing it to dismiss as a party defendant HVCM based upon expiration of the statute of limitations.  Even though the plaintiff’s original complaint included fictitious parties, when the plaintiff sought to add HVCM, it did not substitute HVCM for a fictitious party, rather it added HVCM as a defendant.  Ms. *16.

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Dec 1, 2017

Summary Judgment – Medical Negligence – Challenging Credibility of Affiant – Proximate Cause: Coleman v. Anniston HMA, LLC

Coleman v. Anniston HMA, LLC, [Ms. 1151212, Dec. 1, 2017] __ So. 3d __ (Ala. 2017).  This per curiam decision (Stuart, C.J., and Main, Bryan, and Sellers, JJ., concur; Shaw, J., concurs specially; Bolin, Parker, Murdock, and Wise, JJ., dissent) affirms without opinion a summary judgment entered by the Calhoun Circuit Court dismissing Stringfellow Memorial Hospital from a medical negligence case.  Although as a no-opinion affirmance, the case has no precedential value, the special writings in the case highlight an issue as to which the Court was sharply divided and as to which practitioners should take note.

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Dec 1, 2017

State-Agent Immunity – DHR Employees – Failure to Submit Evidence in Opposition to Motion for Summary Judgment: Ex parte Angela McClintock

Ex parte Angela McClintock, [Ms. 1160782, Dec. 1, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Wise (Stuart, C.J., and Bolin, Main, Bryan, and Sellers, JJ., concur; Murdock, J., concurs in the result; and Parker and Shaw, JJ., dissent) issues a writ of mandamus to the Jefferson Circuit Court directing it to dismiss this action against petitioners/employees of the Jefferson County Department of Human Resources.

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Dec 1, 2017

Enforcement of Divorce Judgment – QDRO – Filing Fee Required: Hathaway v. Foos

Hathaway v. Foos, [Ms. 2160254, Dec. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Thomas (Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur) dismisses the husband’s appeal on the basis of lack of subject matter jurisdiction in this decades-old divorce action.

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Dec 1, 2017

Civil Contempt – Criminal Contempt – Standards of Review: Kizale v. Kizale

Kizale v. Kizale, [Ms. 2160296, Dec. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This decision by Judge Thomas (Pittman, Moore, and Donaldson, JJ., concur; Thompson, P.J., concurs in the result) affirms in part and reverses in part the Morgan Circuit Court’s order holding the former husband in both criminal and civil contempt for failing to comply with certain provisions of the divorce decree in regard to debts of the former wife.

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Dec 1, 2017

Materialman’s Lien – Transfer From District to Circuit Court: McGee d/b/a FMC Mobile v. Dillards

McGee d/b/a FMC Mobile v. Dillards, [Ms. 2160581, Dec. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This decision by Presiding Judge Thompson (Moore, J., concurs; Donaldson, J., concurs in the result; and Thomas and Pittman, JJ., concur in the rationale in part and concur in the result) affirms a judgment of the Mobile Circuit Court releasing a materialman’s lien filed by McGee on the Dillards’ home.  McGee asserted he was due payment from the Dillards for work allegedly completed on the home.  Ms. *2.  McGee filed a materialman’s lien in Mobile Probate Court four days after he allegedly completed the work.  Ms. *7.  The court noted that perfection of a mechanics or materialman’s lien requires “(1) provide statutory notice to the owner; (2) file a verified statement of lien in the probate office of the county where the improvement is located; and (3) file suit to enforce the lien.”  Ms. *9-10, citing § 35-11-210, et seq., Ala. Code 1975.

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Nov 22, 2017

Conspiracy Theory of Personal Jurisdiction: Ex parte The Maintenance Group, Inc.

Ex parte The Maintenance Group, Inc., [Ms. 1160914, Nov. 22, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Main (Stuart, C.J., and Bolin, Parker, Wise, and Sellers, JJ., concur; Murdock and Bryan, JJ., concur in the result; Shaw, J., dissents) issues a writ of mandamus to the Madison Circuit Court to dismiss The Maintenance Group, Inc. as a defendant based on lack of personal jurisdiction.  The Maintenance Group conducted a pre-sale inspection of an aircraft sold by an out-of-state equipment rental company to plaintiff MARC Transport, a Delaware LLC with its principal place of business in Georgia.  Ms. *2-3.

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Nov 22, 2017

Venue in Action Against State Officials – Waiver: Ex parte Alabama Director of Finance Clinton Carter

Ex parte Alabama Director of Finance Clinton Carter, [Ms. 1160894, Nov. 22, 2017] __ So. 3d __ (Ala. 2017).  This decision by Justice Sellers (Stuart, C.J., and Bolin, Parker, Wise, and Bryan, JJ., concur; Murdock and Shaw, JJ., concur in the result) issues a writ of mandamus to the Jackson Circuit Court directing transfer of this action to Montgomery County where the defendant state officials reside.

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Nov 17, 2017

Stay of Execution – Supersedeas Bond – Law of the Case: Ex parte Mia Simone Curtis

Ex parte Mia Simone Curtis, [Ms. 2170004, Nov. 17, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Donaldson (Thompson, P.J. and Pittman, Thomas, and Moore, JJ., concur) issues a writ of mandamus directing the Talladega Circuit Court to vacate an order staying execution on a divorce judgment pending the husband’s appeal.  Following the entry of final judgment in the parties’ divorce, the wife filed writs of garnishment executing on the judgment.  The husband moved to quash the writs of garnishment and sought a stay of execution on the judgment pending appeal.  The circuit court quashed the writs of garnishment and granted the husband’s stay.  Ms. *4-5.

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Nov 17, 2017

Challenge to Untimely Motion for New Trial in Juvenile Court – Untimely Mandamus Petition Where Petition Challenges Trial Court’s Subject Matter Jurisdiction: Ex parte Madison Department of Human Resources

Ex parte Madison Department of Human Resources, [Ms. 2160883 and 2160884, Nov. 17, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This unanimous decision by Judge Donaldson (Thompson, P.J., and Pittman, Thomas and Moore, JJ., concur) vacates the juvenile court’s orders granting new trials in consolidated actions to terminate the father’s parental rights.  The father filed motions for new trial more than 14 days after the orders terminating his parental rights were entered.  Ms. *3.  The father did not invoke Rule 60 or contend that the orders were void.

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Nov 17, 2017

Notice of Appeal Filed After Appellants’ Bankruptcy Filing – Appellate Jurisdiction: Alt v. Alt

Alt v. Alt, [Ms. 2160363, Nov. 17, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  This decision by Presiding Judge Thompson (Pittman, Moore, and Donaldson, JJ., concur and Thomas, J., concurs specially) dismisses the husband’s appeal from the Dale Circuit Court’s judgment modifying certain provisions of a divorce decree. Read More

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