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| Chancellor v. White, 2070354,
COURT OF CIVIL APPEALS OF ALABAMA, October 17, 2008, Released
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Overview: Trial court erred in granting summary judgment to the contractor on the customer's lawsuit against the contractor due to alleged imperfect performance to construct the customer's house; application of the five-factor Story spoliation test showed contractor did not make a prima facie case of entitlement to Ala. R. Civ. P. 56(c)(3) summary judgment.
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| Choksi v. Shah, 1070769,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: A husband and wife sued defendant for breaching an agreement settling their claims against him for groping and otherwise sexually harassing the wife. Ala. Code ¿ 6-5-331, which barred alienation-of-affections claims, did not apply, as the suit did not involve an aggrieved husband suing his wife's paramour.
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| Darnall v. Hughes, 2070349,
COURT OF CIVIL APPEALS OF ALABAMA, October 17, 2008, Released
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Overview: Trial court did not err in concluding that property owners failed to present clear and convincing evidence indicating that road had been abandoned by nonuse because fact that gates and cables had been erected across road did not necessarily indicate that road had been abandoned when the road had continued to be used by those who desired to do so.
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| Ex parte Hensel Phelps Constr. Co., 1070877,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: In 23 months between filing of first complaint and amended complaint, substituting contractor for fictitiously named defendant, employee did not use due diligence to learn contractor's identity. Thus, relation-back doctrine under Ala. R. Civ. P. 9(h) and 15(c)(4) could not be applied to avoid statute of limitations bar of claim against contractor.
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| Hinton v. State, 1051390,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: As sole evidence connecting death-row inmate to two murders was expert testimony that bullets were fired from his gun, trial court, which dismissed his claim defense counsel was deficient for failing to call qualified firearms expert, erred by not making findings under Ala. R. Crim. P. 32.9(d) as to qualifications of expert counsel used at trial.
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| James v. Rane, 1061222,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: Appellate court lacked jurisdiction over appeal from order granting motion to dismiss in real estate dispute because trial court's order dismissed only 4 of complaint's 10 counts. Under Ala. R. Civ. P. 54(b), an order was not final unless it disposed of all claims as to all parties, and without final judgment, appellate court lacked jurisdiction.
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| McCormick v. Ethridge, 2070405,
COURT OF CIVIL APPEALS OF ALABAMA, October 17, 2008, Released
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Overview: Although no fact findings were made as to alleged misconduct, denial of mother's petition to change custody was supported by implied findings that acts did not occur or did not constitute violence under Ala. Code ¿ 30-3-130, or that father rebutted presumption that mother should have custody by proving that acts did not affect autistic child.
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| Mims v. Concrete, 1071376,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: As accident took place in Tuscaloosa County, all but one witness lived there, defendant driver worked there, his employer had its offices there, and the motorist filing suit lived and received her medical treatment there, under Ala. Code ¿ 6-3-21.1, driver and employer were entitled to a change venue to that county based on forum non conveniens.
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| N. Ala. Elec. Coop. & St. Paul Fire & Marine Ins. Co. v. New Hope Tel. Coop., 1051800,
SUPREME COURT OF ALABAMA, October 17, 2008, Released
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Overview: Even though the trial court certified an owner's indemnification claims as final, because no claims by an estate remained against the owner and the lessee and because the owner's claims against the lessee were intertwined, the case was not an exceptional case that warranted immediate appellate review under Ala. R. Civ. P. 54(b).
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