Alacivpro Ii-Cases

Front 1

What was the holding on discovery in juvenile cases in Ex parte Rives, 511 So.2d 514 (Ala. Civ. App. 1986)?

Back 1

(Discovery allowed in juvenile cases). Protective order was improperly granted under rules of civil procedure in juvenile case after rules of juvenile procedure were amended to make discovery procedures in juvenile court consistent in all courts. Rules Civ.Proc., Rule 26(dc); Juvenile Procedure Rule 1.

Front 2

What law controls in diversity cases under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)?

Back 2

(State law controls in diversity cases). In federal courts, except in matters governed by Federal Constitution or by acts of Congress, law to be applied in any case is law of the state. 28 U.S.C.A. § 1652.

Front 3

What is the "First-hand Knowledge Rule" under Phillips v. Emmons, 514 So. 2d 1369 (Ala. 1987)?

Back 3

514 So. 2d 1369 (Ala. 1987). The "first-hand knowledge rule" "arises out of the general recognition that, in order to testify to certain facts, the witness must have had the opportunity to observe the facts to which he testifies and have actually observed them." "The one exception to the 'first-hand knowledge rule' relates to opinion evidence of an expert witness."

Front 4

Brief City of Crossville v. Haynes, 925 So. 2d 944 (Ala. 2005), esp. re: municipal liability caps.

Back 4

Background: Wrongful-death and negligence action against city, police chief, officers, and dispatchers after inmate committed suicide in city jail. The Circuit Court, DeKalb County, granted police chief and officers' summary- judgment motion, denied dispatchers' summary-judgment motion, and remitted jury verdict to award administratrix $100,000. City appealed. The Supreme Court held (1) evidence did not defeat summary judgment, (2) city was immune from liability, (3) no proximate cause to dispatcher for suicide

Front 5

11-93-2. Maximum amount of damages recoverable against governmental entities; settlement or compromise of claims not to exceed maximum amounts.

Back 5

Recovery is limited to $100,000 for singles and $300,000 for multiples.

Front 6

What is the effect of notice of appeal on a motion to alter, amend, or vacate under Ex parte Andrews, 520 So. 2d 507 (Ala. 1987)?

Back 6

Notice of appeal does not affect motion to alter, amend, or vacate.

Front 7

What was the holding in Bolen v. Sherrill, 915 So. 2d 565 (Ala. 2005) on Rule 59.1's 90-day rule?

Back 7

Background: Action for negligence in which court granted motion to set aside default judgment. The dispositive issue presented by this petition is whether the motion to set aside was denied on September 2 by operation of law pursuant to Rule 59.1. Express consent wasn't given, therefore the order to set aside default judgment was invalid.

Front 8

What was the holding on no-solicitation/no-hire contracts between companies under Crown Castle USA, Inc. v. Howell, 13 So. 3d 454 (Ala. Civ. App. 2007)?

Back 8

No-solicitation/no-hire contracts between companies are invalid if they are more restrictive than a non-compete between an employee and employer.

Front 9

What was the holding on striking veniremembers in a discriminatory way under Smith v. State, 838 So. 2d 413 (Ala. Crim. App. 2002)?

Back 9

Trial court's decision that prosecutor's explanation for striking female veniremembers in capital murder prosecution, that veniremembers maintained strong religious convictions or were engaged in religious work, was gender neutral, was not clearly erroneous, even though such veniremembers indicated they did not have any problems imposing a death sentence, defense counsel's questioning rather than prosecutor's brought out their religious affiliations or duties, and prosecutor asked no follow up questions, as explanation based on religion was facially neutral to a claim of discrimination based on gender, and trial court's prior courtroom experience was that prosecutor was not one to strike minorities.

Front 10

Brief Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000)

Back 10

Employee terminated from his position as room service waiter for resort sued resort-employer, alleging age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and the Florida Civil Rights Act (FCRA). Held that: (1) employee established that reasons for his termination were pretextual; (2) award of back pay was not excessive; (3) evidence supported award of damages for emotional distress and dignitary injury; and (4) elimination of employee's position after his termination was insufficient to preclude award of front pay.

Front 11

What was the holding on summary judgment in Buist v. Time Domain Corp., MS 1031396, July 29, 2005) (Ala. 2005) (per curiam)?

Back 11

Background: Time Domain investor upset about dilution of his ownership sues Time Domain. Time Domain tries to wiggle out of state claims by arguing federal securities law pre-empts the state claims, and gets a partial summary judgment on the argument. Ala. rejects the wiggle.

Front 12

What was the holding on summary judgment in First Nat'l Bank of Birmingham v. Culberson, 342 So. 2d 347, 351 (Ala. 1977)?

Back 12

Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. Purchasers of home brought suit to enjoin bank from foreclosing mortgage and for other relief. The Circuit Court, Jefferson County, Harry E. Pickens, J., granted summary judgment in favor of plaintiffs and defendant appealed. The Supreme Court, Beatty, J., held that as to whether bank was a bona fide purchaser, question of fact existed as to the nature of plaintiffs' possession so as to put bank on inquiry regarding plaintiffs' prior equity at time bank took its mortgage. Reversed and remanded.

Front 13

What is the lesson on summary judgments from Kerr v. McDonald's Corp., DN 04-14465, October 6, 2005 (11th Cir. 2005)?

Back 13

Hit your deadlines in contesting summary judgments.

Front 14

What was the holding on arbitration in Adcock v. Adams Homes, LLC, 906 So. 2d 924 (Ala. 2005)?

Back 14

Home purchasers brought action against home builder and home warranty company, alleging breach of warranty due to failure to properly grade property to ensure proper drainage. The defendants moved to compel arbitration. The Baldwin Circuit Court, No. CV-03-749, James H. Reid, Jr., J., ordered binding arbitration. Purchasers appealed. Held: (1) Warranty involved interstate commerce (2) agreement mandated arbitration, but (3) arbitration was not binding on the parties

Front 15

What was the holding on arbitration in Gayfer Montgomery Fair Co. v. Austin, 870 So. 2d 683 (Ala. 2003)?

Back 15

Employee brought wrongful discharge action against employer, and employer filed motion to compel arbitration. The Circuit Court, Lee County, No. CV-02-160, Jacob A. Walker III, J., denied the motion. Employer appealed. The Supreme Court, Harwood, J., held that: (1) arbitration agreement between employer and employee was not unconscionable, and (2) employee's job selling shoes and lingerie and answering phones at employer's department store “involved interstate commerce,” for purposes of the Federal Arbitration Act.

Front 16

What is the holding in arbitration in Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641 (Ala. 2004)

Back 16

Customers allege fraud, breach of warranty, negligence, breach of contract, and unjust enrichment after termite infestation was discovered in home. Cook's moved to compel arbitration. The Jefferson Circuit Court, No. CV-02-4976, Joseph L. Boohaker, J., granted motion. Customers appealed. Held: (1) arbitration clause was not unconscionable; (2) no contract of adhesion; (3) arbitration was not too expensive; and (4) the arbitration clause itself didn't render agreement unconscionable.

Front 17

What is the holding on arbitration in Springhill Nursing Homes, Inc. v. McCurdy, 898 So. 2d 694 (Ala. 2004)

Back 17

Former nursing home resident alleges negligence, negligent hiring, and negligent supervision caused her personal injuries while at nursing home. Former resident amended complaint to add cause of action for breach of contract. Nursing home defendants brought motion to compel arbitration based on clause in nursing home's standard admission contract. Former resident dismissed breach-of-contract claim. The Circuit Court, Mobile County, No. CV-02-655, Roderick P. Stout, J., denied the motion to compel arbitration. Nursing home defendants appealed. Held: Plaintiff was not seeking to avail herself of standard admission contract at time court ruled on motion to compel, therefore plaintiff was not required to arbitrate claims.

Front 18

What is the holding on arbitration in B.L. Harbert Int'l, Inc. v. Hercules Steel Co., 441 F.3d 905 (11th Cir. 2006)

Back 18

Construction contractor, seeking to recover delay damages from subcontractor, moved to vacate arbitration award in favor of subcontractor. The United States District Court for the Northern District of Alabama, No. 04-03255-CV-HS-S, Virginia Emerson Hopkins, J., denied relief, and contractor appealed. Held: Too bad.

Front 19

Jones-Williams Contr. Co. v. Town & Country Property, 923 So. 2d 321 (Ala. Civ. App. 2005)

Back 19

Car dealership brought an action against construction company that alleged claims of breach of contract, fraud, breach of warranties, negligence and wantonness, negligent and wanton hiring or supervision, and breach of fiduciary duties, and construction company filed a motion to compel arbitration. The Circuit Court, Jefferson County, Bessemer Division, No. CV-02-1390, Dan C. King III, J., denied the motion. Construction company appealed. Held: construction company waived its right to arbitrate by substantially invoking the litigation process.

Front 20

When is a transfer considered fraudulent under Ala. Code 8-9A-5(a), even if it occurs before a creditor's claim arises?

Back 20

Under Ala.Code 1975, § 8-9A-5(a), a transfer made by a debtor is fraudulent as to a creditor, regardless of whether the creditor's claim arose before or after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.

Front 21

What factors may the trial court consider in determining a fraudulent transfer under Ala. Code 8-9A-4?

Back 21

In determining actual intent under Ala. Code 8-9A-5(a), the trial court may consider a number of factors, such as whether the transfer was to an insider, whether the transfer was of substantially all of the debtor's assets, and whether the debtor was insolvent or became insolvent shortly after the transaction.

Front 22

When does a grantor's intent warrant especially careful scrutiny under Pennington v. Bigham, 512 So.2d 1344 (Ala.1987)?

Back 22

Where a conveyance is made to a family member in the face of a creditor's potential claim, the grantor's intent warrants especially careful scrutiny, Pennington v. Bigham, 512 So.2d 1344 (Ala.1987);

Front 23

When is constructive fraud infered under Champion v. Locklear, 523 So.2d 336 (Ala.1988)?

Back 23

Without regard to the actual intent of the grantor, the law infers constructive fraud when it appears that an indebted grantor has conveyed property to a family member without receiving valuable consideration. Champion v. Locklear, 523 So.2d 336 (Ala.1988).

Front 24

When does the burden of proof for valuable consideration shift to the grantee under McPherson Oil Co., Inc. v. Massey  643 So.2d 595, 596 (Ala.,1994)?

Back 24

When the inference of constructive fraud arises, the burden then shifts to the grantee to prove the existence of valuable consideration.

Front 25

What is the holding on consideration for "love and affection" under in the context of fraudulent transfers under Roddam v. Martin, 285 Ala. 619, 235 So.2d 654 (1970) and Schwab v. Powers, 228 Ala. 205, 153 So. 423 (1934)?

Back 25

this Court has previously held that a conveyance given in return for “love and affection” is supported by “good,” rather than “valuable” consideration, and is thus a voluntary conveyance and void against existing creditors. Roddam v. Martin, 285 Ala. 619, 235 So.2d 654 (1970); Schwab v. Powers, 228 Ala. 205, 153 So. 423 (1934).

Front 26

What was the holding in Thompson Properties v. Birmingham Hide & Tallow Co., Inc.  839 So.2d 629 (Ala.,2002) about a transfer from one company to another?

Back 26

Genuine issue of material fact as to whether transfer of real property by corporation, which trial court found to be the alter ego and a mere instrumentality of individual debtor, to other company was a transfer made by a “debtor” in violation of Alabama Uniform Fraudulent Transfer Act (AUFTA) precluded summary judgment in creditors' action against corporation and other company. Code 1975, § 8-9A-4(a).

Front 27

What was the holding in Baggett v. Baggett  870 So.2d 735 (Ala.Civ.App.,2003) regarding the transfer of a house and the transfer of life insurance policies?

Back 27

Former husband petitioned to eliminate alimony obligation after suffering stroke. Former wife filed counterpetition alleging contempt. The Circuit Court, Montgomery County, No. DR-92-172.03, John L. Capell, J., reduced alimony and ordered former husband to transfer life insurance policies. Former husband appealed. The Court of Civil Appeals, Crawley, J., held that: (1) evidence supported conclusion that the former husband defrauded former wife by transferring house and annuity to son, and (2) order requiring former husband to transfer life insurance policies to former wife was an invalid modification of a property division provision.