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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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May 19, 2017

Waiver of Affirmative Defense – Trial By Implied Consent – Acceleration of Oral Loan Agreement - Gerstenecker v. Gerstenecker

Gerstenecker v. Gerstenecker, [Ms. 1160144, May 19, 2017] __ So. 3d __ (Ala. 2017).  This plurality opinion authored by Justice Parker, (Stuart, C.J., Wise, and Bryan, JJ., concur and Shaw, J., concurs in the result) affirms in part and reverses in part the circuit court’s judgment on a claim for breach of an oral loan agreement.  Janice, then the mother-in-law of Julie, agreed to pay $78,000 in student loans of Julie so long as Julie made monthly payments. Read More

May 19, 2017

Improper Rule 54(b) Certification – UIM – Bad Faith - Ragland v. State Farm Mutual Automobile Insurance Company

Ragland v. State Farm Mutual Automobile Insurance Company, [Ms. 1160140, May 19, 2017] __ So. 3d __ (Ala. 2017).  This decision authored by Justice Bryan (Bolin, Parker, and Main, JJ., concur, and Murdock, J., concurs in the result), dismisses an appeal by an insured of the circuit court’s dismissal without prejudice of his bad-faith claim against his underinsured motorist carrier.
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May 19, 2017

Arbitration Agreement – Retaliatory Discharge - SSC Selma Operating Company, LLC v. Fikes

SSC Selma Operating Company, LLC v. Fikes, [Ms. 1160080, May 19, 2017] __ So. 3d __ (Ala. 2017).  This decision authored by Justice Bolin (Stuart, C.J., and Parker, Main, Wise, and Bryan, JJ., concur, and Murdock and Shaw, JJ., concur in the result), reverses the trial court’s order denying a nursing home’s motion to compel arbitration of a claim by its former employee alleging she was discharged in retaliation for filing a workers’ compensation claim. Read More

May 19, 2017

Arbitration – Unconscionability – Scope of Arbitration Provision - Family Security Credit Union v. Etheredge

Family Security Credit Union v. Etheredge, [Ms. 1151000, 1151001, 1151002, 1151003, 1151004, 1151005, 1151006, 1151007, May 12, 2017] __ So. 3d __ (Ala. 2017).  This plurality opinion authored by Justice Main (Stuart, C.J., Parker, Bryan, JJ., concur, Bolin, Murdock, and Shaw, JJ., concur in the result), reverses the trial court’s order refusing to compel arbitration in eight consolidated cases.  First noting that review of decisions on motions to compel arbitration is de novo, the Court holds that to avoid an arbitration agreement on the basis of unconscionability, a party must show both substantive and procedural unconscionability.
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May 12, 2017

Appellate Procedure – Limited Nature of Grounds for Rehearing - Carolyn J. Dailey v. Monroe County Board of Education

Carolyn J. Dailey v. Monroe County Board of Education, [Ms. 2150965, May 12, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In a unanimous decision authored by Judge Thompson (Pittman, Thomas, Moore, and Donaldson, JJ., concur), on rehearing, the court withdraws its opinion of February 17, 2017, and dismisses an employee’s appeal of her termination by the Monroe County  Board of Education to terminate her employment. Read More

May 12, 2017

Appellate Procedure – 54(b) Certification - Firestone v. Weaver

Firestone v. Weaver, [Ms. 1151211, May 12, 2017] __ So. 3d __ (Ala. 2017).  In a unanimous decision authored by Justice Parker (Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur), the Court dismisses the appeal.  Firestone sued Weaver, Tooley, “L.C.” and Collins alleging that the defendants conspired to and brutally assaulted Firestone.  Firestone was seriously injured in a fire on May 16, 1995.
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May 5, 2017

Res Judicata – Immunity Under § 11-99-A-7 – Duty – Reliance by Party Not In Privity – Fraud – Conspiracy – Third-Party Beneficiary - Aliant Bank v. Four Star Investments, Inc., et al.

Aliant Bank v. Four Star Investments, Inc., et al., [Ms. 1150822, 1150823, 1150824, May 5, 2017] __ So. 3d __ (Ala. 2017).  In a decision authored by Chief Justice Stuart (Bolin, Parker, Main, and Wise, JJ. concur, and Shaw, J., concurs in the result) the Court reverses in part and affirms in part summary judgment entered against Aliant Bank on claims of conspiracy and other wrongdoing filed by the bank against a number of parties arising from a plan to develop a subdivision to be known as Twelve Oaks.

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May 5, 2017

State-Agent Immunity – DHR Investigation – Mandamus Review of Interlocutory Order Involving Immunity - Ex parte Yolanda Terry

Ex parte Yolanda Terry, [Ms. 1160087, May 5, 2017] __ So. 3d __ (Ala. 2017).  In a decision authored by Justice Bolin (Stuart, C.J., and Parker, Shaw, Main, Wise, and Bryan, JJ. concur, and Murdock, J., concurs in the result), the Court issues a writ of mandamus directing the circuit court to vacate its order denying defendant social worker’s motion for summary judgment and to enter summary judgment in her favor.  This is a wrongful-death case in which an elderly woman died as a result of blunt force trauma to her abdomen.  Read More

May 5, 2017

Timeliness of Mandamus Petition – Underinsured Motorist Coverage – Opt-Out Procedure - Ex parte Allstate Property and Casualty Company

Ex parte Allstate Property and Casualty Company, [Ms. 1150269, 1150511, 1151266, May 5, 2017] __ So. 3d __ (Ala. 2017).  In a unanimous decision authored by Justice Shaw (Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ. concur), the Court issues writs of mandamus in two of three cases consolidated for review by the Court.  The petitions presented identical substantive  questions in regard to trial of claims for underinsured motorist benefits. Read More

Apr 28, 2017

Retaliatory Discharge for Filing Workers’ Compensation Claim – Alleged Contradiction of Deposition Testimony by Affidavit - Foster v. North American Bus Industries, Inc.

Foster v. North American Bus Industries, Inc., [Ms. 1150716, Apr. 28, 2017] __ So. 3d __ (Ala. 2017).  In a unanimous decision authored by Justice Murdock (Stuart, C.J., and Bolin, Main, and Bryan, JJ. concur), the Court reverses a summary judgment in favor of an employer on a claim for retaliatory discharge under § 25-5-11.1, Ala. Code 1975.

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Apr 28, 2017

Impairment of Hospital Lien – § 35-11-370 through-372 - Ex parte Alfa Mutual Insurance Company

Ex parte Alfa Mutual Insurance Company, [Ms. 1141343, Apr. 28, 2017] __ So. 3d __ (Ala. 2017).  Plurality opinion (Murdock, J.; Parker, Main and Wise, JJ. concur; Bolin and Shaw, JJ., concur in the result and Stuart, C.J., recuses). Alfa’s insured was injured in an automobile accident and was admitted to USA Hospital less than one week after the accident.  Alfa’s insured died of his injuries, and Alfa paid the limits of a $2,000 coverage to the parents of the decedent for funeral expenses pursuant to the med-pay provision in the parents’ Alfa automobile-insurance policy.

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Apr 21, 2017

Scope of Fair Debt Collection Practices Act – New Trial – “Good Count/Bad Count” - Complete Cash Holdings, LLC v. Powell

Complete Cash Holdings, LLC v. Powell, [Ms. 1150536, Apr. 21, 2017] __ So. 3d __ (Ala. 2017).  In this unanimous decision authored by Justice Parker, the Court reverses a jury verdict in favor of Lola Mae Powell against Complete Cash Holdings, LLC arising from repossession of Powell’s vehicle based on a forged title-pawn agreement.  Read More

Apr 21, 2017

Indispensable Parties – Municipal Immunity under § 11-47-190 on Misrepresentation Claim – Accrual of Claim – Statute of Limitations - Miller v. City of Birmingham

Miller v. City of Birmingham, [Ms. 1151084, Apr. 21, 2017] __ So. 3d __ (Ala.  2017).  In this unanimous decision authored by Justice Parker, the Supreme Court reverses a summary judgment entered for the City of Birmingham and its employees Roberts and Crutchfield.  The plaintiff’s deceased husband, Robert Miller, was a firefighter with the City of Birmingham. Read More

Apr 21, 2017

Premises Liability – Slip and Fall – Surveillance Footage – Sufficiency of Affidavit - Barnwell v. CLP Corporation

Barnwell v. CLP Corporation, [Ms. 1151329, Apr. 21, 2017] __ So. 3d __ (Ala. 2017).  In a unanimous decision authored by Justice Parker, the Supreme Court reverses a summary  judgment entered for the defendant in a negligence case arising from a slip and fall in a McDonald’s restaurant.  The defendant moved to strike an affidavit and deposition testimony of the plaintiff based upon its contention that surveillance-video footage conclusively proved that the plaintiff did not slip and fall in the restaurant. Read More

Apr 21, 2017

Appellate Jurisdiction - Mootness - Notice Pleading - Brazelton Properties, Inc. d/b/a Plush Horse v. City of Huntsville

Brazelton Properties, Inc. d/b/a Plush Horse v. City of Huntsville, [Ms. 2160043, Apr. 21, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  In a unanimous opinion authored by Judge Thomas, the Court of Civil Appeals dismisses Brazelton Properties, Inc.’s appeal from a summary judgment.  Brazelton filed suit against the City challenging the City’s denial of its 2014 application for a lounge retail liquor license. Read More

Apr 14, 2017

Adult Protective Services Act of 1976, §§ 38-9-1 to -11, Ala. Code 1975 - Nix v. Franklin County Dep’t of Human Resources

Nix v. Franklin County Dep’t of Human Resources, [Ms. 1160494, Apr. 14, 2017] __ So. 3d __ (Ala. 2017).  The Court unanimously (Main, J., and Stuart, Bolin, Parker, Murdock, Shaw, Wise, and Bryan, JJ., concur) reverses a summary judgment entered by the Franklin Circuit Court in favor of the Franklin County Department of Human Resources which held that a 78-year-old gentleman was in need of protective services under the Adult Protective Services Act of 1976, §§ 38-9-1 to -11, Ala. Code 1975, such that he could be involuntarily confined to an assisted-living facility and his personal home sold to defray the costs of his stay at the assisted-living facility.

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Apr 14, 2017

§ 6-2-3, Ala. Code 1975 (Statute of Limitations Savings Clause) & Motion to Dismiss - Ex parte Price

Ex parte Price, [Ms. 1151041, Apr. 14, 2017] __ So. 3d __ (Ala. 2017).  In this per curiam plurality opinion (Stuart, Bolin, Parker, and Main, JJ. concur; Murdock, J., concurs specially; Shaw and Bryan, JJ., dissent; Wise, J., recuses), the Court grants certiorari and reverses the June 17, 2016 opinion of the Alabama Court of Civil Appeals which had found claims time-barred and therefore properly dismissed on statute-of-limitations grounds by the Tuscaloosa Circuit Court.

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Apr 14, 2017

Quiet Title – Substitution of Parties – Appellate Jurisdiction - Saunders v. Ingram

Saunders v. Ingram, [Ms. 2150852, Apr. 7, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court dismissed an appeal from a judgment quieting title to real property as from a non-final  judgment.  One of the plaintiffs died during the pendency of the case, and although a motion to continue referenced the death of that party, the personal representative of the decedent was never substituted as a party plaintiff.
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Apr 7, 2017

Writ of Execution – Motion to Quash – Appellate Review - Keith Sharp and Guardian Brokers, Ltd., Inc. v. Dan Horton d/b/a Heritage Footwear

Keith Sharp and Guardian Brokers, Ltd., Inc. v. Dan Horton d/b/a Heritage Footwear, [Ms. 2160111, Apr. 7, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court reversed the circuit court’s order denying the defendant’s motion to quash a writ of execution executed on a judgment by default entered by the district court.
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Apr 7, 2017

Inverse Condemnation - Sovereign Immunity - Access to Public Highway - Sima Properties, L.L.C. v. John R. Cooper

Sima Properties, L.L.C. v. John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation, and the City of Prattville, [Ms. 2160132, Apr. 7, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court of Civil Appeals reversed a judgment dismissing an inverse condemnation action filed by the owner of a gas station against the Director of ALDOT in his official capacity and the City of Prattville.
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Apr 7, 2017

Alimony & Child Support - Person v. Person

Person v. Person, [Ms. 2150225, Apr.7, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  On second application for rehearing, the Court released a substituted opinion but did not substantively alter the opinion of January 20, 2017.  The reader is directed to the previous summary in the January 27, 2017 issue of our appellate updates.

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Mar 31, 2017

State Immunity & Lack of Subject-Matter Jurisdiction - Woodfin v. Bender

Woodfin v. Bender, [Ms. 1150797, Mar. 31, 2017] __ So. 3d __ (Ala. 2017).  The Court, in a plurality opinion (Main, J., Stuart and Wise, J.J., concur; Bolin, Parker, Murdock, Shaw, and Bryan, J.J., concur in the result) holds the Jefferson Circuit Court was without subject-matter jurisdiction to award 24 classified employees of the Birmingham Board of Education monetary relief stemming from their claims that the Superintendent of the Birmingham City School System and the members of the Birmingham Board of Education in their official capacities incorrectly miscalculated plaintiffs’ salaries following adoption in 2004 of a new salary schedule.
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Mar 31, 2017

Breach of Contract & Sufficiency of the Evidence - Golden v. Velasquez

Golden v. Velasquez, [Ms. 2150893, Mar. 31, 2017] __ So. 3d __ (Ala. Civ. App. 2017).  The Court of Civil Appeals in a per curiam opinion affirms the judgment of the Cherokee Circuit Court entered upon a jury’s verdict in favor of a defendant alleged to have breached a contract in failing to pay for labor and materials used in a residential home renovation.  Read More

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