Ex parte Grimmett – Ala. Jan. 14, 2022

ByMatt

The husband in Ex parte Grimmett sought a divorce from his wife. Although the wife did not allege adultery in her counterclaim, at trial the husband admitted under cross-examination that he was having an extramarital affair. He did not specify, however, when this affair began. Following trial, the husband’s paramour filed an affidavit stating her relationship with the husband began after the husband had filed for divorce. The Winston Circuit Court found the husband’s infidelity was undisputed and, as a result, ordered a “60/40” split of the marital estate in favor of the wife.

On appeal, the husband argued there was inadequate evidence he had committed adultery before he filed for divorce, and that his admitted postfiling adultery was not sufficient to support the trial court’s division of the marital estate. Upon a writ of certiorari, the Alabama Supreme Court agreed there was insufficient evidence to support a finding of prefiling adultery. The wife had only produced evidence of phone records that listed numerous text messages and phone calls between the husband and his paramour prior to his filing divorce and the wife’s testimony that she had a “’gut feeling’ something was amiss.” But according to the Court’s precedent, none of this arose to more than mere “suspicion” of adultery, which was not sufficient.

But the Court did not stop there. It found the husband’s postfiling adultery was adequate grounds for the trial court’s decision. In so doing, it relied upon a plain reading of the statutory grounds for divorce, in which the Alabama legislature had required certain grounds for divorce to occur at or near the time the divorce complaint is filed. No such restriction was placed on the grounds for adultery. The Court reasoned this demonstrates the Alabama legislature did not intend to limit adultery to prefiling conduct.

The Court went on to distinguish that holding from certain prior decisions the husband relied upon. It noted that those previous decisions were issued before the Court’s merger of law and equity in 1973. Before the merger, divorce proceedings were matters of equity, and under equity the evidence at trial had to conform to the pleadings. Thus a party had to “charge” adultery in a bill for divorce before evidence of such could be produced at trial. The result was postfiling adultery could not be presented at trial because it arose after the bill for divorce had been filed. The modern procedure, by comparison, is governed by Alabama Rule of Civil Procedure 15(b). That rule permits pleadings to be amended to conform to the evidence presented at trial, and without any objection, matters not pled are tried by consent with the introduction of evidence of them. Because the husband had not objected to the evidence of his adultery, it was before the court and properly served as a basis for the trial court’s decision. The Alabama Court of Civil Appeals and the Circuit Court were affirmed.

HELD: A spouse’s postfiling adultery is relevant to and sufficient grounds for divorce.…

Ex parte Steinberg – Ala. Jan. 15, 2021

ByMatt

Upon a petition for writ of mandamus, the Ex parte Steinberg petitioner sought relief from a stay entered by the Etowah Circuit Court. Petitioner had sued the defendant, alleging that she had “exploited her financially” and damaged her business. Defendant, invoking her Fifth Amendment right against self-incrimination, sought to stay discovery in the civil case because she claimed that she was under federal criminal investigation for a matter that was “identical” to the petitioner’s civil case against her. Notably, the defendant did not present “any evidence” to support her motion. Nevertheless, two days later the Circuit Court stayed the petitioner’s entire civil case. Petitioner’s petition for writ of mandamus followed shortly thereafter.

The Alabama Supreme Court started by recognizing that the Fifth Amendment right against self-incrimination was applicable in civil cases where there was a threat of future criminal proceedings. It noted, however, the party seeking a stay on those grounds has an evidentiary hurdle to clear. A movant seeking a stay of a civil case on Fifth Amendment grounds must first “clearly demonstrate” the existence of a criminal proceeding or investigation that is “parallel” to the civil action sought the movant seeks to stay. The Alabama Supreme Court found that the record before it contained “no actual evidence indicating that a ‘parallel’ criminal proceeding exists regarding [petitioner’s] allegations against [defendant].” The defendant had simply presented her motion, which at most contained unsworn, summary assertions. Because that does not constitute evidence, the Court held defendant was not entitled to a stay and the trial court “exceeded its discretion in ordering the stay.”

HELD: The defendant failed to support her motion to stay a civil case under the Fifth Amendment when she did not produce any evidence of a parallel criminal investigation.…

Health Care Authority for Baptist Health v. Dickson – Ala. Jan. 15, 2021

ByMatt

In May 2017, the plaintiff in Health Care Authority for Baptist Health v. Dickson brought claims against a health care authority (HCA) operating a hospital and sought to certify a class for claims against the HCA and an entity that was the HCA’s predecessor. The HCA moved to dismiss or, alternatively, transfer the case to Autauga Circuit Court. The motion was pending for over a year, and the parties engaged in discovery in the interim. The trial court eventually granted the alternative motion to transfer. After transfer, the HCA filed an answer. In its answer, the HCA did not raise arbitration as an affirmative defense. The parties then engaged in extensive class-related discovery. In June 2019, the HCA finally moved to compel arbitration. The Autauga Circuit Court summarily denied the motion. The instant appeal followed.

The HCA asserted the trial court erred in denying its motion to compel arbitration. The plaintiff, on the other hand, argued the HCA waived its right to arbitrate the claims by failing to assert the defense in its answer and delaying in raising the issue earlier. The Alabama Supreme Court quickly disposed of the argument that failing to raise arbitration in the answer was dispositive. It held that waiver of the right to arbitration is not “lightly inferred” and must be determined from the particular facts of the case. A waiver is only found if the party’s actions, when taken “as a whole,” demonstrate that it has “substantially invoked the litigation process,” and secondly, the engagement in litigation prejudiced the party opposing arbitration.

The Court found that the HCA had substantially invoked the litigation process by waiting over two years before invoking arbitration and engaging in substantial litigation during those two years. The HCA attempted to explain the delay by claiming that it had not been aware of its right to arbitrate because the right was derivative of the plaintiff’s health insurance policy, which the HCA claimed not to have access to until later. Invoking Georgia Power Co. v. Partin, 727 So. 2d 2 (Ala. 1998), the HCA asserted the obligation to seek arbitration is only triggered when a party is aware of the right. The Court was not persuaded. It distinguished Georgia Power as involving claims that were not arbitral until the complaint was amended to bring the claims within the terms of the arbitration agreement. The Court noted, by comparison, the instant claims were arbitral from the very beginning of the suit in 2017. As to the argument that the HCA did not have access to the insurance policy, the Court was likewise unsympathetic. It held the HCA had no excuse for not subpoenaing or otherwise obtaining from plaintiff a copy of his health insurance policy sooner.

Having found the HCA substantially invoked the litigation process, the remaining question was whether plaintiff was prejudiced by the delay. The Court found that the plaintiff had incurred substantial litigation costs that would have otherwise been avoided had the HCA invoked arbitration earlier. It was such unnecessary litigation expense that arbitration was designed to avoid, and the wasted expense and delay prejudiced the plaintiff. As a result, the Court affirmed and held that the HCA had waived its right to arbitration.

HELD: A defendant who extensively litigated a case over a two-year period before moving to arbitrate prejudiced the plaintiff and waived the right to arbitration.…

Ex parte George – Ala. Jan. 8, 2021

ByMatt

In Ex parte George, the Alabama Supreme Court considered whether witness testimony regarding historical cell tower data constitutes lay opinion or expert opinion subject to Alabama Rule of Evidence 702. At the petitioners’ murder trial, the State proffered an ALEA intelligence analyst as a witness to discuss collected historical cell tower records and to further opine that the records indicated petitioners were in close proximity to the victim’s body and various, related crime scenes at relevant times. The Tuscaloosa County Circuit Court admitted the State’s witness as a lay witness, not as an expert. Following a guilty verdict, petitioners appealed the case arguing the State’s ALEA witness was an expert required to be found qualified under Rule 702 of the Alabama Rules of Evidence. The Alabama Court of Criminal Appeals disagreed with petitioners and held that the State’s witness was properly admitted as a lay witness and that her testimony was properly considered lay opinion. The Alabama Supreme Court granted certiorari, reversed, and remanded.

The Court analysis looked beyond Alabama to the numerous state and federal court decisions analyzing the issue. A “vast majority” of them had found testimony pertaining to historical cell tower data, how it functions, its reliability, et cetera was expert testimony subject to Rule 702. The Court, in reaching a similar conclusion, found that the State’s ALEA witness at trial went beyond merely presenting historical cell tower data; she drew conclusions from the data and conveyed those conclusions to the jury. The State’s witness, as such, was an expert and subject to the qualification requirements mandated by Rule 702(a).

The Court went on to address whether said testimony was a “scientific” opinion, as opposed to a “nonscientific” opinion. Under the Court’s precedent set out in Mazda Motor Corp. v. Hurst, 261 So. 3d 167 (Ala. 2017), “scientific” opinion (reached by applying scientific principles) is subject to Alabama Rule of Evidence 702(b)’s reliability standard, while “nonscientific” expert opinion is not. The State argued that its ALEA witness neither held herself out as a scientist nor did she claim that her opinion was based on the scientific method.  The State asserted, rather, that her opinion was based on technical knowledge and/ or experience. The Court disagreed. It noted that the State’s witness had described to the jury the “scientific process” of how cell phones connect to cell towers and the various factors that can affect that connection. The Court further explained that the State’s witness had to, “at least in part,” apply “scientific principles” to interpret the cell tower data and extrapolate the petitioners’ approximate location at the relevant times. That witness’s opinion was, as a result, a “scientific” one.

The Court also distinguished a previous Court of Criminal Appeals decision on the subject. In Woodward v. State, 123 So. 3d 989 (Ala. Crim. App. 2011), it was held that witnesses proffered lay testimony when merely presenting historical cell tower records and identifying the routing towers and their location. The appellate court below in the instant case relied heavily on Woodward’sprecedent. Rather than overruling Woodward, the Supreme Court distinguished it. The Court held, unlike in Woodward, the State’s ALEA witness went beyond conveying such factual information. Although the discussion and distinction could be classified as dicta, it currently remains true under Woodward that cell tower records, identifying cell towers, and their location are all admissible through a lay witness.

HELD: Witness testimony regarding the function of cell towers and conclusion based upon historical cell tower data is expert opinion scientific in nature and is subject to Alabama Rule of Evidence 702(b)’s reliability standard.…