Barnwell v. CLP Corporation, [Ms. 1170115, May 11, 2018] __ So. 3d __ (Ala. 2018). This unanimous decision by Justice Bryan (Stuart, C.J., and Parker, Main, and Mendheim, JJ., concur) reverses a summary judgment entered by the Calhoun Circuit Court for CLP Corporation, the operator of a McDonald’s in which the plaintiff allegedly slipped and fell. In a prior appeal, the Court had reversed a summary judgment in favor of CLP.
Following remand, the circuit court entered an order striking the plaintiff’s affidavit in opposition to the motion for summary judgment and once again entered summary judgment for CLP. Ms. *5-6. The Court held that the issue of the admissibility of the plaintiff’s affidavit was decided in the first appeal and reversed the summary judgment entered following remand, holding under the law of the case doctrine, a party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal. Application of the law-of-the-case doctrine is discretionary rather than mandatory, and there are exceptions to the doctrine. For example, if an observation by the appellate court concerning an issue is premised on a particular set of facts, and the nature of the remand is such that it is permissible and appropriate to consider additional facts relevant to the issue, the law-of-the-case doctrine is inapplicable. Further, “the law-of-the-case doctrine may be disregarded if the court is convinced its prior decision was clearly erroneous or there has been an intervening change in the law.
Ms. *21-22 (internal citations, brackets, and quotation marks omitted).