Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.
Arbitrator must be appointed as arbitration agreement provides
The plaintiff corporation executed a contract to purchase property, but later discovered that property next to the property it wanted to purchase was a dumping ground for solid waste. The plaintiff sued the defendant, alleging fraudulent suppression. Upon winning the motion for summary judgment, the defendant moved the Limestone County Circuit Court to compel arbitration of the claim as provided in the purchase contract. The parties communicated about appointing an arbitrator, but were never able to agree about who should serve as an arbitrator. The plaintiff then asked the circuit court to appoint an arbitrator, alleging that the defendant had not cooperated in selecting one.
The circuit court ruled in favor of the plaintiff and appointed the arbitrator. The defendant appealed the circuit court’s decision on the basis that the arbitrator must be appointed in a manner consistent with the provisions of the arbitration agreement (contained within the purchase contract). The Alabama Supreme Court agreed with the defendant and thus the circuit court’s appointment was improper. See Okay v. Murray, decided on June 4, 2010.
Postnuptial agreement didn’t cover the husband’s home
In 2004, the plaintiff and the defendant married when both parties were 51 years old. Before the wedding, the husband told his wife that he wanted his home and the 17 acres on which it was situated to go to his brother if he died. Approximately a week after the wedding, the husband presented his wife with a postnuptial agreement that provided that each party would retain his or her property held in his or her individual name. The wife signed without getting the advice of an attorney.
In 2009, the parties divorced, and the divorce decree indicated that the postnuptial agreement was valid except to the extent that it didn’t contradict the terms of the divorce decree. The divorce decree gave the wife $20,000 because of her contributions to improving the husband’s home. He appealed. The Alabama Court of Civil Appeals affirmed the Etowah County Circuit Court’s property award to the wife because the postnuptial agreement didn’t specify that the husband’s home and 17 acres constituted the husband’s separate property. See McMillan v. McMillan, decided on June 4, 2010.
Though not provided immediately, employee’s notice of injury was sufficient to receive workers’ compensation benefits
The plaintiff injured his back just before the end of his workday on July 6, 2007, the last day he was to work before beginning a week’s vacation. Although the plaintiff knew that he was supposed to report the injury immediately, he testified that he didn’t do so because he didn’t think he was injured “that bad.” By Monday, July 9, the injury was so painful that he went to see his doctor. On Sunday, July 15, the plaintiff fell on the front steps of his house because his leg had become numb. He once again visited his doctor. The next day, his wife reported to two of the plaintiff’s supervisors at work that the plaintiff would not be reporting to work because of the injury.
However, the testimony of the wife and the supervisors about this notice was contradictory. The wife maintained that she had told the supervisors that her husband’s injury was work related; the supervisors maintained that they were only told that he was injured and would not be reporting to work. At trial, other evidence was considered that could indicate whether the plaintiff had given the notice to his employer as required by the Alabama Workers’ Compensation Act. A neurosurgeon’s report had no indication that the injury was work related. The plaintiff’s application to his union for disability benefits didn’t indicate that the injury was work related. The employer’s safety manager investigated the circumstances of the injury, but her accident investigation report indicated that the date of the accident was unknown.
The Etowah County Circuit Court awarded the plaintiff workers’ compensation benefits. The employer appealed. The Alabama Court of Civil Appeals affirmed the circuit court’s opinion because it was possible for the court to accept the wife’s version of events instead of the supervisors’ version of events under the ore tenus rule. This rule provides that the trial court’s finding of facts will not be disturbed by an appellate court unless clearly wrong or unjust. See Equity Group v. Harris, decided on June 4, 2010.
Workers’ compensation plaintiff must pay his lawyer what he agreed to pay
After being injured at work, the plaintiff and the defendant employer agreed to a settlement. The plaintiff’s attorney then filed a petition with the Mobile County Circuit Court asking for the court’s approval of the settlement. The petition indicated that the plaintiff was to receive $20,000; and his attorney was to receive a payment of $3,000 in legal fees from the $20,000. Later, an amended petition was filed in which the attorney fees were not mentioned.
Later, the plaintiff—now represented by a different attorney—filed a motion to set aside the judgment because he paid his attorney $5,000 instead of only $3,000, as evidenced by a settlement statement. In his motion, the plaintiff maintained that § 25-5-90(a) of the Code of Alabama 1975 requires the judge to fix attorney fees. This section provides that the fee can’t exceed 15 percent of the awarded compensation. The Mobile County Circuit Court denied the motion.
Upon appeal, the Alabama Court of Civil Appeals ruled that the section applies when the court has ordered or approved the attorney, not when the attorney is selected by the plaintiff without court approval or order. Thus the $5,000 attorney fee was acceptable. See Rush v. East Bay Electric, L.L.C., decided on June 4, 2010.
Peanut Festival has to pay taxes on admissions to the festival
In 2008, the Alabama Court of Civil Appeals ruled that § 40-9-1 of the Code of Alabama 1975 granted the National Peanut Festival Association, Inc., a general exemption from taxation generated from its annual Peanut Festival, but that there was an exception to that exemption for receipts generated from nonagricultural shows and exhibits. At that time, the court remanded the case to the Houston County Circuit Court to determine the tax due from certain pageants and concerts. The circuit court calculated the amusement tax and found that the Peanut Festival was owed a tax refund of $58,044. The Alabama Department of Revenue appealed this decision.
In its most recent decision on June 4, 2010, the Alabama Court of Civil Appeals found that the circuit court had not properly calculated the amusement tax because of not identifying the portion of the gate admission receipts that are exempt from the amusement tax. Therefore, the appeals court remanded the case to the circuit court to once again calculate the amount of amusement tax payable by the Peanut Festival. See Alabama Department of Revenue v. National Peanut Festival Association, Inc.
County employee reinstated to his job
Employed by the Jefferson County Road and Transportation Department, the plaintiff was terminated from his job. He appealed his termination to the Jefferson County Personnel Board. After a hearing, the hearing officer recommended that the plaintiff be reinstated. The board rejected the recommendation and affirmed the department’s termination of the plaintiff. The plaintiff appealed to the Jefferson County Circuit Court, arguing that the board’s decision was not timely, as required by its own Rule 12.6. The circuit court affirmed the board’ s decision.
The plaintiff appealed the circuit court’s ruling to the Alabama Court of Civil Appeals, which found that the board had not acted within 30 days after receiving the hearing officer’s recommendation. Rule 12.6 provides that if the board fails to act within 30 days after receiving the hearing officer’s recommendation, the hearing officer’s recommendation becomes the order of the board. Therefore, the circuit court was wrong to affirm the board’s decision to terminate the plaintiff. See Ex parte Pierson, decided on June 4, 2010.
Homeowners association can't change easement by merely changing its restrictive covenants
The defendants approached the plaintiff about buying some of her property for a subdivision. The plaintiff agreed to sell the defendants the property so long as she received an easement across the sold property so that she would be able to access the remainder of her property not sold. The defendants recorded the easement in a declaration that was filed in the Autauga County probate judge’s records. Later, the homeowners association executed an amendment to the restrictive covenants and deleted the easement. The plaintiff sued the defendants for violating her easement and preventing her from accessing her property not sold. The Autauga County Circuit Court ruled in favor of the defendants, and the plaintiff appealed to the Alabama Court of Civil Appeals, which reversed the circuit court's decision. See Chancy v. Chancy Lake Homeowners Association, decided on May 28, 2010.
Application of policies can form a valid basis for discrimination claims
In 1995, Chicago adopted a policy of giving potential firefighters a written examination for determining their eligibility to be hired. If they scored at least 89 out of 100 points, the applicants were placed in a pool from which they could be randomly chosen to be a firefighter trainee. If applicants scored between 65 and 88, they were kept on the eligibility list for as long as that list was used, but were unlikely to be considered for a firefighter position. If applicants scored below 65, they were considered unqualified and not eligible to be hired.
In May 1996, Chicago chose its first class of trainees and continued this process for 6 years. In March 1997, African-American applicants who had scored between 65 and 88 filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and received right-to-sue letters. They then sued Chicago, alleging that the practiced had a disparate impact on African-American in violation of Title VII of the Civil Rights Act of 1964.
The U.S. District Court ruled that the practice was discriminatory, but the U.S. Seventh Circuit Court of Appeals reversed the decision because the lawsuit had not been filed within 300 days after the only discriminatory act. The plaintiffs then appealed to the United States Supreme Court.
The Supreme Court ruled that the plaintiff who does not file a timely charge challenging the adoption of an alleged discriminatory practice may assert a disparate-impact claim based on the date of the application of the policy. See Lewis v. City of Chicago, decided on May 24, 2010.
Attorney fees too high
An attorney represented a profoundly disabled minor in a personal injury action. The minor suffered severe burns after being placed in a too-hot whirlpool at a group home. The Madison County Circuit Court awarded attorney fees of $262,500 plus litigation expenses, approximately one- third of the total compensation awarded.
On appeal, the Alabama Supreme Court found that the attorney fees were excessive and reduced the attorney fees to 20 percent of the award. See Madison County Department of Human Resources v. T.S., decided on May 28, 2010.
An oral contract isn't worth the paper it's written on
Samuel Goldwyn is most often credited with this statement, which has once again been validated by a recent decision of the Alabama Court of Civil Appeals. A supplier of electrical fixtures and supplies sold a construction company various supplies on credit. The construction company hired a subcontractor to install the fixtures and supplies in a construction project in Birmingham. The construction company abandoned the project. The supplier then met with the subcontractor.
Allegedly, during this meeting, the subcontractor orally agreed to pay the bills (approximately $120,000) of the construction company if the supplier continued to supply additional supplies for the subcontractor to complete the project. From this event, a lawsuit resulted when the supplier sued the subcontractor after claiming a materialman's lien. As a result of the trial, the Jefferson County Circuit Court found no oral contract had been made.
Upon appeal, the Alabama Court of Civil Appeals applied the ore tenus rule that says a court will not overturn a trial court's findings of fact unless they are clearly wrong or unjust. The appellate court therefore affirmed the trial court's finding. See Lighting and Lamp Corp. v. Athens Lofts, L.L.C., decided on May 28, 2010.
Time limits for protesting property-tax assessments clarified
The plaintiff was sent a notice about the value of his property for purposes of collecting ad valorem tax. He protested the assessment, but the county board of equalization considered the protest untimely. The Walker County Circuit Court agreed with the board.
Upon appeal, the Alabama Court of Civil Appeals ruled that the protest must be filed within 30 days of the assessing officials final publication in a newspaper. Since, by that calculation, the protest had been timely filed, the circuit court's decision was reversed. See Blackston v. Alabama Department of Revenue, decided May 28, 2010.
State attorney general can't countermand governor
In December 2008, the plaintiff obtained a license from the town of White Hall to conduct electronic bingo games, pursuant to a local constitutional amendment. The governor created a task force on illegal gambling that confiscated the plaintiff's electronic gaming machines and over a half- million dollars in cash, alleging that the machines violated state law. The plaintiff then filed a declaratory judgment action against the governor, seeking a determination that the machines were legal.
The state then initiated a forfeiture action to retain the seized items. The plaintiff filed a motion to dismiss because the governor's task force lacked the legal authority to pursue the matter. The Lowndes County Circuit Court ruled that, because the attorney general had not authorized the seizure, the state and its prosecutors could not prosecute the forfeiture action unless authorized by the attorney general.
On appeal, the Alabama Supreme Court ruled the state's constitution makes the governor the supreme executive authority, regardless of any express authorization by the legislature. But the court also noted that the legislature has given the governor the authority to direct a district attorney to represent the interests of the state. Finally, the court noted that the governor's interpretation of the word "bingo" was consistent with previous court decisions. See Ex Parte State of Alabama (Riley v. Cornerstone Community Outreach, Inc.), decided on May 21, 2010.
Police officer may be eligible for state-agent immunity in pedestrian-motorcycle accident
A homewood police officer on a motorcycle struck the plaintiff while she was walking across a street (as directed by another police officer). The plaintiff sued the city of Homewood and the police officer who struck her. The trial court ruled that the city's damages would be limited to $100,000 by § 6-5-338(a) of the Code of Alabama 1975, but did not limit the damages against the police officer in his individual capacity.
Upon appeal, the Alabama Supreme Court ruled that if the cap would be $100,000 if the police officer was sued in his official capacity, but the cap didn't apply to the situation in which the police officer was sued in his individual capacity. The case was remanded to the Jefferson County Circuit Court to examine whether the police was liable in his official capacity. See Suttles v. Roy, decided on May 21, 2010.
Court interventions in arbitrations are limited
A contractor agreed to construct a house for a real estate developer. Their contract contained an arbitration clause. After the house was constructed, the developer demanded arbitration after finding faults in the construction. The developer refused to participate in the arbitration, but the arbitration was held anyway. The arbitrator awarded the developer $348,229 in damages. The developer then submitted the arbitration award to the Baldwin County Circuit Court and moved for an order confirming the arbitration award. The circuit court set aside the award.
The developer then appealed to the Alabama Supreme Court, which pointed out that the only grounds for vacating an arbitrator's decision are fraud, partiality, or corruption. Since the contractor did not assert any one of these grounds as a basis for setting aside the arbitrator's decision, much less presenter any evidence of such, the circuit court's decision was reversed. See Loper Construction Company, Inc. v. Findout Partnership, L.L.P., decided on May 21, 2010.
Bank, roofing company, and homeowners become embroiled in dispute over insurance payments
A roofing company was hired to repair fire damage to the homeowner's house. The bank held a first and second mortgage on the property. Upon completion of the job, the insurance company wrote a $105,000 check made out to the homeowners, the roofing company, and the bank. The homeowners deposited the check in their account at the bank and wrote the roofing company a $70,000 check.
Then a dispute arose over the repair work, and the homeowners withdrew $35,000 from the bank account. The roofing company sued the homeowners for fraud and breach of contract and sued the bank for negligently releasing the $35,000 to the homeowners.
The roofing company and the homeowners settled their dispute. The roofing company agreed to dismiss its claims against the homeowners, to remove the lien it had filed against the property, and to pay the homeowners $25,000. The settlement agreement stated that the terms of the settlement didn't affect the roofing company's claims against the bank and that the payment of the $25,000 was not to be considered an admission of liability.
The bank then moved for summary judgment, arguing that the release of the claim against the homeowners barred the claim against the bank as a matter of law. The Dale County Circuit Court agreed with the bank. Upon appeal, the Alabama Court of Civil Appeals ruled that the release preserved the roofing company's claims against the bank. See Hathcock Roofing and Remodeling Company, Inc. v. Compass Bank, decided on May 21, 2010.
School teacher not entitled to state-agent immunity for paddling child without witnesses present
A fifth-grade teacher paddled a student without a witness present. The mother of the student sued the Monroe County School Board on behalf of her child. The school board and the teacher moved for summary judgment on immunity grounds. The Monroe County Circuit Court denied the motion for summary judgment, and the school board and teacher appealed to the Alabama Supreme Court.
The supreme court ruled that, since the school board is local agency of the state, it is entitled to absolute immunity and that the trial court had erred in denying its motion for a summary judgment. The teacher argued that she was entitled to state-agent immunity because she was exercising her official duties in educating students and there was no evidence that she exceeded her authority. The teacher asserted that, even though the school board's policy required a witness when corporal punishment was administered, the school board gave teachers the discretion to corporally punish a student without a witness present. The supreme court ruled that because she didn't follow the board's policy, the teacher was not entitled to state-agent immunity on a motion for summary judgment. See Ex Parte Monroe County Board of Education, decided May 14, 2010.
State revenue agents may be individually liable for raid on car dealership
Executing a search warrant, agents of the Alabama Department of Revenue raided a car dealership and seized all the dealership's computers and almost all of its business records. The dealership and some of its officers and employees then sued the department and its employees. Employees of the department were served with subpoenas directing them to appear for depositions and to bring documents with them. The defendants moved to dismiss the lawsuit and to quash the subpoenas. The Montgomery County Circuit Court denied both motions.
The defendants then appealed to the Alabama Supreme Court. The court ruled that the defendants were entitled to dismissal in their official capacities under absolute immunity as agents of the state, except for the return of property. However, the court ruled that individual liability had not been determined because discovery had not been completed. If facts show that the defendants acted wilfully, maliciously, fraudulently, or in bad faith or that the defendants were not exercising their judgment in the exercise of their official duties, they may be individually liable. Therefore, the trial court's denial of the motion to dismiss for individual liability was affirmed. See Ex Parte Dangerfield (Frost v. Dangerfield), decided on May 14, 2010.
Issue of fact remains about whether bank foreclosed property in violation of fiduciary duty
The defendants secured a loan with a mortgage. The bank foreclosed the mortgage and then sued the defendants to eject them from the property. In defense against the ejectment action, the defendants argued that the foreclosure was invalid because the bank had bought the property at the foreclosure sale at a price ($33.915), well below fair market value. In support of this argument, they presented the tax assessor's valuation of the property at $84,800. The defendants filed an unauthenticated copy of the tax notice. The bank did not object to this evidence.
Upon motion by the plaintiff, the Jefferson County Circuit Court ruled in favor of the plaintiff's motion for summary judgment, thereby allowing the ejectment to proceed. The defendants appealed to the Alabama Court of Civil Appeals, which ruled that the unauthenticated copy of the tax notice was substantial evidence indicating that there was a genuine issue of material fact about whether the foreclosure was valid. The circuit court's decision was therefore reversed and remanded. See Berry v. Deutsche Bank, decided on May 14, 2010.
Personal representative must be timely appointed for wrongful death lawsuit to be proceed
The wife of the decedent sued her husband's doctors for wrongful death. The wrongful-death statute requires the wrongful-death action to be filed within 2 years by the personal representative of the decedent's estate. When the lawsuit was filed, no personal representative had been appointed and the 2 years had expired. The wife argued that her suit was valid because of the doctrine of relation back. This doctrine holds that a person named as a personal representative may perform certain acts that are beneficial for an estate even before her appointment. The Alabama Supreme Court indicated that a wrongful-death action does not benefit the estate because the damages awarded aren't part of the estate. Therefore, the court ruled that wrongful-death action had been filed too late. See Wood v. Wayman, decided on May 7, 2010.
Legislature takes action against teachers having sex with students
In response to cases involving teachers' having sex with students, the Alabama State Legislature has passed two new laws.
Alabama Act 2010-264 (House Bill 37) requires the state superintendent of education to revoke the teaching certificate of any person convicted of capital murder, a Class A felony (such as rape, murder, kidnapping, and robbery), and a variety of sex crimes, including the following:
Once the state superintendent has revoked the teaching certificate, the employment contract of the teacher is immediately cancelled. Similar provisions apply to principals and other school employees. This law permits school boards to discontinue paying employees who have been convicted of various crimes as soon as the certificate is revoked. The bill was signed by the governor on March 31, 2010, and became effective upon his signature.
Alabama Act 2010-497 (House Bill 38) makes it illegal for any school employee to have sex with a student who is younger than 19 years old. The new law establishes two new Alabama sex crimes: (1) a school employee having sexual intercourse with a student, which is a Class B felony; and (2) a school employee having sexual contact with a student, which is a Class A misdemeanor. The maximum punishment for a Class B felony is not more than 20 years in prison and not more than a $30,000 fine. Conviction of a Class B felony requires a minimum prison sentence of 2 years. The maximum punishment for a Class A misdemeanor is not more than 1 year in jail and not more than a $6,000 fine. The bill was signed by the governor on April 21, 2010. This law becomes effective on July 1, 2010.
Neighbor can drain lake without consequence
Purser and her brother Young sued Solid Ground Development, L.L.C. (SGD), in Shelby County Circuit Court. The plaintiffs alleged that SGD had unlawfully drained a lake on its property adjacent to the plaintiff's property, thereby creating three problems: (1) The plaintiffs could no longer enjoy the neighboring lake on the defendant's property, (2) a smaller lake on the plaintiff's property was drained dry, and (3) part of the plaintiff's property was flooded during heavy rains. The circuit court found for the defendants, entering a summary judgment.
The Alabama Supreme Court affirmed the circuit court's decision because for non-navigable manmade lakes, each landowner has control over the surface water rights above his or her land. So SGD was within its rights to drain its lake, and the plaintiff had no right to compel SGD to maintain the lake on its property for the enjoyment of the plaintiffs. Since the land of both parties was within the city limits, the flooding issue was addressed by the common-enemy doctrine. Under this common-law doctrine, each landowner has an unqualified right to divert surface waters without legal consequences; the other landowner likewise possesses the duty and right to protect his or her property from the effects of the diversion. Therefore, SGD was entitled to divert the water from its property without regard to the effect that it would have on the plaintiffs. See Purser v. Solid Ground Development, L.L.C., decided on March 12, 2010.
Faxes trigger class-action lawsuit
On June 4, 2008, Loube Consulting International, Inc. (defendant), sent four unsolicited faxes to the law firm of Partridge Smith, P.C. (plaintiff), who then filed a class-action lawsuit against Loube. In the process of pursuing this law suit brought under the Telephone Consumer Protection Act (TPCA), the plaintiff sent the defendants interrogatories that requested to know, among other things, every number the defendants had sent faxes to, the number of times each number had been sent a fax, the owner of each fax number, and whether the defendants had a prior business relationship with each owner or had permission from each owner to send faxes.
The defendant asked the circuit court to issue a protective order against having to comply with the interrogatories because they were overly burdensome and expensive. The Mobile County Circuit Court refused to issue the protective order, whereupon the defendants appealed to the Alabama Supreme Court. The supreme court reversed the circuit court, indicating that the interrogatories were too burdensome. See Ex Parte Loube Consulting International, Inc. (Loube Consulting International, Inc. v. Partridge Smith, P.C.), decided on March 12, 2010.
State trooper seizes $4,280 during drug arrest, but has to return it
Williams (with a passenger) was driving on a highway in Covington County when a state trooper noticed he was speeding. Upon stopping Williams, the trooper asked for Williams' driver's license, which he could not produce. When the trooper conducted a computer search to determine whether Williams was licensed, he discovered that Williams was on probation after being convicted of a drug offense. The trooper asked permission to search Williams' car, and Williams consented. The search revealed a plastic bag containing crack cocaine; the bag was found in the center console between Williams and his passenger. The trooper arrested Williams and his passenger and conducted a pat-down search, which revealed $4,280 cash in Williams' back pocket. Williams claimed to have received the money from an insurance payment, but he was unable to produce proof of this contention, both at the arrest and at trial. The money was confiscated and a forfeiture action initiated.
The Covington County Circuit Court found that the money was being used to facilitate a violation of the state's drug laws and was therefore to be forfeited. Williams appealed to the Alabama Court of Civil Appeals, which reversed the circuit court. Pointing out that the mere presence of money close to a controlled substance does not justify forfeiture, the appeals court found that there was insufficient evidence to justify forfeiture. The trial record didn't indicate the amount of crack cocaine found, and there was no evidence connecting the money to the illegal drugs. Furthermore, there was no drug paraphernalia or accouterments of drug dealing found in the vehicle. Although Williams could not offer any evidence that affirmed his receipt of the money from an insurance payment, Williams did not have the burden of proof; the state did. See Williams v. State, decided on March 12, 2010.
Workers' Compensation Act provides no benefits for employees suffering from purely psychological injuries
A firefighter sued the city of Montgomery under the Alabama Workers' Compensation Act, alleging that he suffered an occupational disease as a result of his service as a firefighter. He maintained that he suffered from post-traumatic stress disorder (PTSD) as a result of continuous exposure to stressful, life-threatening trauma and death. In particular, he pointed out (1) his failure to revive a 2½-year-old infant who had suffocated and (2) the death of a 52-year- old woman while he was administering cardiopulmonary resuscitation. The Montgomery County Circuit Court entered a summary judgment in favor of the city because the employee's PTSD resulted solely from nonphysical stimuli. The Alabama Court of Civil Appeals affirmed the circuit court's decision. See Cocking v. Montgomery, decided on March 12, 2010.
Motion to dismiss usually not appropriate vehicle to assert state-agent immunity
A mother sued the Alabama Department of Public Safety, state troopers, and their supervisors, alleging that a state trooper had sexually assaulted her daughter. The supervisors asked the Perry County Circuit Court to dismiss them as defendants, asserting state-agent immunity as the basis. The circuit court refused; and the Alabama Supreme Court affirmed, stating that the defendants had not moved for summary judgment and that the defendants had provided no evidence of state-agent immunity, other than their assertions in their motion to dismiss. See Ex Parte Bitel (Sanders v. Horton), decided on March 12, 2010.
Attorney fees and costs of lawsuit considered fees and charges of administration
On behalf of her daughter, a mother sued the personal representative of the estate of her daughter's grandmother. The plaintiff asserted that the personal representative had mishandled and misappropriated funds of the estate. The suit was settled, with the estate increasing its worth by over $500,000. Since the plaintiff's efforts resulted in preserving the assets of the estate, the plaintiffs moved to have the estate pay the attorney fees of the plaintiff. The Lauderdale County Circuit Court approved this motion. The Alabama Supreme Court affirmed this decision because the fees were an expense of administration and because they were reasonably necessary for the preservation and benefit of the estate. Payment of the attorney fees therefore received priority in payment over all other debts of the estate, except for the funeral expenses. See Archer v. Archer, decided on March 12, 2010.
CON applicants must file appeals within 30 days of SHPDA's decision becoming final by operation of law
Noland Health Services, Inc., Select Medical Corporation, and HealthSouth Corporation filed competing applications to provide a new health-care facility in Huntsville. As provided by state law, the Alabama State Health Planning and Development Agency (SHPDA) must approve a new health-care facility by issuing a certificate of need (CON). Specifically, SHPDA's Certificate of Need Review Board (CONRB) must complete its review of the application and decide within 90 days about whether to grant the CON. SHPDA can extend the review period (1) by written consent of the applicant or (2) for 30 days without the consent of the applicant. Code of Alabama § 22-21-275(3) provides that if SHPDA doesn't decide within the time limit, a proposed health-care facility shall be deemed to be unneeded. (In other words, the CON is not issued.)
In the case of these three applications, the 90-day review period would have expired before the next scheduled meeting of the CONRB. Therefore, SHPDA extended the review period so that the applications were to be considered at the January 2006 meeting of the CONRB. But a quorum was not present at that meeting. With the written consent of the applicants, the matter was then placed on the agenda for the February meeting. A quorum was not present at the February meeting. No written permission was obtained to extend the review period until the March meeting. Nevertheless, the applications were placed on the agenda for the March meeting, but for a third time, a quorum was not present.
On April 4, 2006, Select's counsel wrote a letter to the SHPDA executive director and requested that the SHPDA deem all three applications as denied.
On May 12, 2006, Noland sued SHPDA, Select, and HealthSouth by filing a declaratory- judgment action in the Montgomery County Circuit Court. Noland requested that each of the applications be deemed denied as a result of the CONRB not making a decision. Noland also asked the court to declare that time limit on appeals had expired and to enjoin the CONRB from any further consideration of the applications.
The circuit court found that the applications were denied by operation of law. None of the parties appealed this ruling. However, the court also indicated that all applicable appellate deadlines were to run from the date of when the circuit court issued its order. Noland appealed that holding to the Alabama Supreme Court.
The Alabama Supreme Court found that the CONRB could not act without a quorum. Furthermore, SHPDA lost jurisdiction to take any action because the applications were denied by operation of law. Since the 30-day period for filing a notice of appeal from the denial of the CON began to run when the applications were denied by operation of law, the time of appeal had run by the time that Noland filed its declaratory-judgment action. Thus, the circuit court was wrong in indicating that all applicable appellate deadlines ran from the date when the circuit court issued its order. Consequently, Noland cannot appeal the denial of the CON to the circuit court. See Noland Health Services, Inc. v. SHPDA, decided on March 5, 2010.
Innocent false representation or mistaken representation can be fraud
Marguerite was the mother of James. Her boyfriend and alleged husband was Bobby Joe. Marguerite deeded property in Jefferson County to James. After this took place, Marguerite apparently met Bobby Joe. With the permission of James, Marguerite and Bobby Joe moved into a mobile home located on the deeded property (formerly owned by Marguerite, but now owned by James). Shortly thereafter, Bobby Joe requested that James deed the property on which the mobile home sat to Marguerite and Bobby Joe as tenants in common with the right of survivorship. Bobby Joe represented to James that he and Marguerite were married (but they really weren't). As requested, James deeded the property to Marguerite and Bobby Joe. Bobby Joe then convinced Marguerite to deed her interest to Bobby Joe.
Then James found out what Bobby Joe had done. James and Marguerite then filed suit in Jefferson County Circuit Court, accusing Bobby Joe of fraud and requesting that the first deed from James to Bobby Joe and Marguerite be set aside. At trial James testified that he would have never deeded the property to Bobby Joe and Marguerite if he had known they weren't actually married. At the end of the trial, Bobby Joe moved for a judgment as a matter of law because James had not made a representation with an intent to deceive. The Jefferson County Circuit Court granted this motion, but the Alabama Court of Civil Appeals reversed this decision because Alabama law does not require proof of intent to deceive to obtain a rescission of a deed based on fraud. Quoting from an earlier decision by the Alabama Supreme Court, the court noted that "a false representation, even if made innocently or by mistake, operates as a legal fraud if it is a material fact that is acted upon with belief in its truth." See Eaton v. Waldrop, decided on March 5, 2010.
Workers' compensation claimant gets a panel of physicians and a panel of surgeons
While on the job, the plaintiff injured his knee, back, shoulder, and head. In pursuing his workers' compensation claims, his knee was operated on twice by the same surgeon. For treatment of the other injuries, the plaintiff had been dissatisfied with the initial treating physician and had exercised his right to have a panel of four physicians to choose from, as provided by Code of Alabama § 25-5-77, for additional treatment. Since he was also dissatisfied with his treatment of the knee (performed by a surgeon), he then requested a panel of four surgeons to chose from for additional treatment. (The initial surgeon had recommended a third surgery on the knee.) The employer refused to provide the panel of four surgeons. The plaintiff then asked the Jefferson County Circuit Court to compel the employer to provide the panel of surgeons. The circuit court denied the request, and the plaintiff appealed to the Alabama Court of Civil Appeals. The appellate court reversed the circuit court, pointing out that the legislature, in adopting the Workers' Compensation Act, differentiated physicians and surgeons. Therefore, the plaintiff- employee was entitled to a panel of four surgeons from which to choose for his third knee surgery. See Kish v. TruGreen, decided on March 5, 2010.
