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Jul 14, 2017

Subject Matter Jurisdiction – Appeal From District Circuit Court - Dillard v. LePore

Dillard v. LePore, [Ms. 2160295, July 14, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In an opinion by Judge Thomas (Thompson, P.J., Pittman and Donaldson, JJ., concur; Moore, J., concurs in the result), the court dismisses an appeal from the circuit court's judgment in a child custody case.  The case had originated in juvenile court and was appealed to circuit court by the father.  However, the father's appeal to circuit court was taken before the juvenile court entered judgment.

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Jul 14, 2017

Arbitration – Appellate Procedure - Colony Homes, LLC v. Acme Brick Tile & Stone, Inc.

Colony Homes, LLC v. Acme Brick Tile & Stone, Inc., [Ms. 2160209, July 14, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In a unanimous opinion by Judge Pittman (Thompson, P.J., Thomas, Moore, Donaldson, JJ., concur), the court dismisses the appeal in part and affirms the judgment of the trial court.  Acme Brick sued Colony Homes for bricks and mortar supplied by Acme.  Colony moved to compel arbitration and its motion was denied.
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Jul 14, 2017

Attorney Fee Dispute After Termination Under Contingent Fee Contract – Ore Tenus Rule - Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.D. v. DuBois

Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.D. v. DuBois, [Ms. 2160197, July 14, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In an opinion by Judge Thomas (Pittman, J., concurs; Thompson, P.J., Moore, and Donaldson, J.J., concur in the result), the court affirms the trial court's judgment declining to award intervenor law firm any attorney fees or expense reimbursement from the settlement of the former client's (DuBois's) personal injury case. Read More

Jul 14, 2017

Timeliness of Filing Writ of Certiorari Seeking Review of Personnel Board Decision - Ex parte Michael Key

Ex parte Michael Key, [Ms. 2160191, July 14, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In this 3-2 per curiam opinion (Thomas, Moore, Donaldson, JJ., concur; Thompson, P.J., and Pittman, J., dissent), the court reverses a decision of the Jefferson County Personnel Board suspending a police officer for excessive use of force.
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Jul 7, 2017

Expert Testimony – Contributory Negligence – Wantonness – Good Count/Bad Count Doctrine – Excessiveness of Wrongful Death Verdict - Mazda Motor Corporation v. Hurst

Mazda Motor Corporation v. Hurst, [Ms. 1140545, July 7, 2017] __ So. 3d __ (Ala. 2017).  In a decision authored by Justice Murdock (Stuart, C.J., and Bolin, Wise, and Sellers, JJ., concurring and with Parker, Main, and Bryan, JJ., concurring in part and dissenting as to the reversal of the verdict finding Mazda liable for wantonness to the injured driver), the Court affirms a judgment for wrongful death in the amount of $3.9 million for the death of a 16-year-old passenger killed when the 2008 Mazda 3 in which she was riding burst into flames after striking a utility pole at 35 miles an hour.  Read More

Jun 30, 2017

Appellate Review of Arbitration Awards - Honea v. Raymond James Financial Servs, Inc.

Honea v. Raymond James Financial Servs, Inc., [Ms. 1130590, 1130655, June 30, 2017] __ So. 3d __ (Ala. 2017).  In this 112-page per curiam opinion (Stuart, C.J., and Bolen, Parker, Bryan, and Sellers, JJ., concur; Shaw, J., concurs specially; Murdock, Main, and Wise, JJ., dissent), the Court revisits Raymond James Financial Servs, Inc. v. Honea, 55 So. 3d 1161 (Ala. 2010) ("Raymond James I"), and Raymond James Financial Servs, Inc. v. Honea, 141 So. 3d 1012 (Ala. 2013) ("Raymond James II"), and concludes the Jefferson Circuit Court erred in not granting the claimant a Rule 59(g), Ala. R. Civ. P., hearing on her motion to vacate in part an arbitration award.

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Jun 30, 2017

Recoupment of Attorney Fees Under U.C.C. § 7-4-208, Ala. Code 1975 - Wells Fargo Bank, N.A. v. National Bank of Commerce

Wells Fargo Bank, N.A. v. National Bank of Commerce, [Ms. 1150992, June 30, 2017] __ So. 3d __ (Ala. 2017).  The Court affirms a judgment of the Jefferson Circuit Court denying a claim by Wells Fargo for attorney fees it incurred in defending an action brought against it for an alleged breach of presentment warranty under § 7-4-208, Ala. Code 1975.
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Jun 23, 2017

Enforceability of Illegal Contracts - Jackson v. Brewer

Jackson v. Brewer, [Ms. 2160099, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The court affirms a judgment entered by the Covington Circuit Court awarding damages and attorney's fees in a breach-of-contract case.  The appellant asserted the contract was illegal and void because it violated municipal subdivision regulations and §§ 11-52-30 and former 11-52-33(a), Ala. Code 1975.

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Jun 23, 2017

Burden of Showing Error & Injury on Appeal - L.D.K. v. V.K

L.D.K. v. V.K., [Ms. 2160205, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court affirms a judgment entered by the Elmore Circuit Court awarding custody of a child to the child's maternal aunt after determining that the mother failed to meet her burden of proving error on appeal ... Read More

Jun 23, 2017

Burden of Showing Error & Injury on Appeal - Robinson v. Arnold

Robinson v. Arnold, [Ms. 2160238, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The court affirms the Macon Circuit Court's judgment in a protection-from-abuse action upon concluding the appellant, by not complying with the procedure set forth in Rules 10(d) and 10(f), Ala. R. App. P. (establishing procedure for providing a statement of the evidence when no transcript is available), failed to meet his burden of showing error on the record and injury from that error. Read More

Jun 23, 2017

Residence, Domicile & Venue - Ex parte Hudson

Ex parte Hudson, [Ms. 2160558, June 23, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court of Civil Appeals unanimously denies a petition for writ of mandamus which sought an order directing the Baldwin Circuit Court to vacate its order granting a motion for a change of venue in a divorce action.  The court revisits the issues of "residence" and "domicile" for purposes of fixing the proper venue in divorce cases pursuant to § 30-2-4, Ala. Code 1975. 

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Jun 23, 2017

Probate Court Disqualification of Executors; Ore Tenus Review - Engel v. Amonett

Engel v. Amonett, [Ms. 1160113, June 23, 2017] __ So. 3d __ (Ala. 2017).  The Court affirms an order of the Mobile Probate Court disqualifying co-executors and appointing the county administrator to administer an estate upon finding, following an ore tenus hearing, evidence supporting grounds for disqualification under § 43-2-22(a), Ala. Code 1975 ("intemperance, improvidence, or want of understanding").

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Jun 23, 2017

Outbound Forum-Selection Clause & Fraud in the Inducement - Ex parte Jewels by Park Lane, Inc.

Ex parte Jewels by Park Lane, Inc., [Ms. 1160333, June 23, 2017] __ So. 3d __ (Ala. 2017).  The Court grants a petition for writ of mandamus and directs the Tallapoosa Circuit Court to vacate an order denying a Rule 12(b)(3), Ala. R. Civ. P., motion to dismiss on the ground of improper venue because of application of an outbound forum-selection clause.

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Jun 23, 2017

Burden of Showing Error & Injury on Appeal; Guardian Ad Litem Fees - Tanner v. Tanner

Tanner v. Tanner, [Ms. 2160105, June 23, 2017] __ So. 3d __ (Ala. 2017).  The Court affirms a judgment entered by the Mobile Circuit Court concerning visitation and modification of the child support obligation upon determining the appellant failed to, among other things, prove any resulting injury from the alleged error by the circuit court. Read More

Jun 16, 2017

Workers' Compensation & Venue - Ex parte R.E. Garrison Trucking, Inc.

Ex parte R.E. Garrison Trucking, Inc., [Ms. 2160556, June 16, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The court reverses an order of the Washington Circuit Court denying – after consideration of conflicting evidence – an employer's motion to transfer venue from the county where the injured employee resided and the employer allegedly did some business by agent to the county where the employer principally conducted business.

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Jun 16, 2017

Rule 54(b), Ala. R. Civ. P., Finality/Dismissal of Appeal - Kirby v. Jack's Family Restaurants, LP

Kirby v. Jack's Family Restaurants, LP, [Ms. 2160220, June 16, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court of Civil Appeals, in a plurality opinion (Donaldson, J., Thompson, P.J., and Moore, J., concur; Thomas, J., and Pittman, J., concur in the result), holds the Lauderdale Circuit Court erred in certifying the dismissal of an injured employee's tort-of-outrage claim as final within the meaning of Rule 54(b), Ala. R. Civ. P., because it was inextricably intertwined with remaining claims seeking benefits under the Alabama Workers' Compensation Act ... Read More

Jun 16, 2017

Affirmative Defenses-Waiver - Newman v. Howard

Newman v. Howard, [Ms. 1160226, June 16, 2017) __ So. 3d __ (Ala. 2017).  Citing Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793 (Ala. 1984), the Court reiterates that it is within the trial court's discretion to allow a defendant to raise a affirmative defense after an initial answer to a complaint, that while Rule 15(a), Ala. R. Civ. P., provides that amendments should be freely allowed when justice so requires, a party opposing an amendment may defeat the amendment upon showing that the amendment would cause ... Read More

Jun 16, 2017

Lease versus Sublease: Rules of Statutory Construction - Rochester-Mobile, LLC, and Salzman-Mobile, LLC v. C&S Wholesale Grocers, Inc.

Rochester-Mobile, LLC, and Salzman-Mobile, LLC v. C&S Wholesale Grocers, Inc., [Ms. 1160185, June 16, 2017] __ So. 3d __ (Ala. 2017).  In this plurality opinion (Main, J., and Stuart, C.J., and Bolin, J., concur; Murdock and Bryan, JJ., concur in the result), the Court determines that a lease is not synonymous with "sublease" and therefore that the sublease was not unenforceable when not recorded pursuant to § 35-4-6, Ala. Code 1975 ... Read More

Jun 16, 2017

Commercial Arbitration Issues - Rainbow Cinemas, LLC v. Consolidated Construction Co. of Ala.

Rainbow Cinemas, LLC v. Consolidated Construction Co. of Ala., [Ms. 1160070, June 16, 2017] __ So. 3d __ (Ala. 2017).  The Court reverses a Madison Circuit Court order denying a motion to compel arbitration concerning a commercial construction contract, which incorporated the "American Institute of Architects – General Conditions of the Contract for Construction," which, in turn, in its section concerning "Dispute Resolution," incorporated a "binding dispute resolution" provision adopting the construction industry arbitration rules of the American Arbitration Association.

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Jun 16, 2017

Non-Compete Agreements; Temporary & Permanent Injunctions - CraneWorks, Inc. v. RPM Cranes, LLC

CraneWorks, Inc. v. RPM Cranes, LLC, [Ms. 1150018, June 16, 2017] __ So. 3d __ (Ala. 2017).  In this per curiam opinion, the Supreme Court (Stuart, C.J., and Parker, Shaw, Wise, and Sellers, JJ.) reverses the Jefferson Circuit Court's entry of a preliminary injunction in favor of a business and its owner who contended they were irreparably harmed when key professional employees left their Crane rental business and began working with a competitor.
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Jun 9, 2017

Mandamus, Stay of Professional Licensure Suspension - Ex parte Alabama State Bd. of Pharmacy

Ex parte Alabama State Bd. of Pharmacy, [Ms. 2160266, June 9, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In a plurality opinion (Thompson, Presiding J.; Pittman, J., concurs; Donaldson, J., concurs in the result; Moore, J., and Thomas, J., dissent), the Court of Civil Appeals grants the Alabama Board of Pharmacy's petition for writ of mandamus and directs the Montgomery Circuit Court to vacate an order supplementing a stay on a temporary basis, which had ... Read More

Jun 9, 2017

Perfecting an Appeal: Payment of Appellate Filing Fee is Not Jurisdictional - Alexander v. Estate of Bethea

Alexander v. Estate of Bethea, [Ms. 2160194, June 9, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court of Civil Appeals unanimously reverses an order of the Montgomery Circuit Court dismissing an attempted appeal of a judgment from the Montgomery District Court. Read More

Jun 2, 2017

Improper Rule 54(b) Certification of Summary Judgment Order – Counterclaims Intertwined With Original Claims - Bebee Properties, LLC v. Margaret A. Ard

Bebee Properties, LLC v. Margaret A. Ard, [Ms. 2150963, June 2, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In this unanimous opinion by Judge Donaldson (Thompson, P.J. and Pittman, Thomas, and Moore, JJ., concur) the court ex mero motu dismisses the appeal and cross-appeal as from a non-final judgment.  The court concludes that the trial court exceeded its discretion in ... Read More

May 26, 2017

Recreational Use Statutes / Requirement of Actual Knowledge of the Risk of Harm - Ex parte City of Guntersville

Ex parte City of Guntersville, [Ms. 1151214, May 26, 2017] __ So. 3d __ (Ala. 2017).  The Court (Parker, J., and Stuart, C.J., and Bolin, Main, and Bryan, JJ., concur) reverses a judgment of the Marshall Circuit Court denying a motion for summary judgment by the City of Guntersville in an action by a visitor to the City’s Civitan Park who was injured in a nighttime trip and fall incident following a fireworks presentation.  Read More

May 26, 2017

Appellate Procedure & Civil Contempt - Hopkins v. Hopkins

Hopkins v. Hopkins, [Ms. 2150955, May 26] __ So. 3d __ (Ala. Civ. App. 2017).  In this appeal from a post-divorce modification proceeding involving contempt allegations, the Court of Civil Appeals reiterates important principles concerning appellate procedure and civil contempt.

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