D. Brian Murphy, President |
|
July 2022
Volume XLVI, Issue 7
In This Issue...
Ann's Article...........................Page 2
CLEs......................................Page 3
Lawyer Wellness....................Page 5
Young Lawyers......................Page 6
Women Lawyers....................Page 6
Significant Decisions.............Page 7
Member Spotlight..................Page 8
In the News...........................Page 9
Mobile Bar Foundation..........Page 11
Birthdays...............................Page 14
|
|
2022 OFFICERS
President - D. Brian Murphy
President Elect - Forrest S. Latta
Vice President - Raymond Bell
Secretary - Catherine S. Kirkland
Treasurer - Suntrease Williams-Maynard
Asst. Treasurer - Mary Margaret K. Bailey
Executive Director - Ann F. Sirmon
Editor - Tiffany Ray
|
|
Last month, I was honored to participate in Regions Bank’s Birmingham Stands Together, a program whose mission is to further diversity, equity and inclusion (“DEI”) in the legal community. I was joined by Ann Sirmon and other bar leaders from across Alabama to discuss DEI and things bar associations can do, and are doing, to promote it. It was a very productive and informative program. Our own MBA Diversity & Inclusion Committee has been active for the past several years, and I would like to thank this year’s Chair, Moshae Donald, for her contributions to this very important committee.
As we approach July 4th, I encourage you to take some time to reflect on the formation of our country and how far we have come in the 246 years since the signing of the Declaration of Independence. Although we still have work to do in our quest for a perfect union, I believe we, as lawyers, are in a unique position, and have a responsibility, to shape the country and its justice system to benefit all people.
I want to share with you a speech given by President Ronald Reagan on July 3, 1986. I found his words inspiring and hope that you will, too. Be safe this summer, have fun, and I look forward to seeing you all at our August meeting.
Like all great holidays, the Fourth of July brings to mind the traditional ways we celebrate: dazzling fireworks displays light the skies; march music fills the air; parades with flags and floats and blaring bands brighten the broad avenues of our cities and the main streets of our small towns; families get together with friends and neighbors for picnics and barbecues; patriotic songs stir the heart. These are the images -- glad, bright, and touching -- that we have come to associate with the Fourth of July from the time we were children.
It is altogether fitting that we should celebrate this day with great joy, because it is the birthday of our beloved country. It is especially fitting that it should be celebrated as a family holiday and a community holiday, because it commemorates our solemn bonding together as a new nation -- the American Family.
It is a day not only for celebration but also for reflection -- a day to ponder what it was that forged 13 diverse colonies into an unbreakable union that has endured and grown and prospered for more than two centuries. What was the secret that emboldened a loose confederation of some two and a half million settlers on the Eastern rimland of the New World to challenge the might of the most powerful colonial empire on earth?
Quite simply, it was the courage and the vision of our Founding Fathers. They seized the unique historical moment Providence had placed within their grasp. Determined to protect and guarantee fundamental human rights, they felt called upon to bring our nation into being.
In order to give that new nation shape and direction they drew freely on the riches of the Judeo-Christian tradition with its central affirmation that God, not chance, rules in the affairs of men, and that each of us has an inviolable dignity because we have been fashioned in the image and likeness of our Creator. The Founding Fathers established a nation under God, ruled not by arbitrary decrees of kings or the whims of entrenched elites but by the consent of the governed. Theirs was the vision of a striving, God-fearing, self-reliant people living in the sunlight of justice and breathing the bracing air of liberty.
As the years unrolled, generations of Americans painted that vision across the broad canvass of the continent. It has always been the secret of our progress, our power, and our prosperity. Whenever we have allowed it to fade we have done so at our peril. Whenever it has burned bright we have amazed the world with our inventiveness, our daring, our achievements, and our magnanimity.
Through the years, America's promise of liberty and justice for all served as a magnet, drawing to our shores millions of people yearning to breathe the heady air of freedom. They flocked here from every continent, bringing with them the riches of their customs and their cultures; precious strands of every color, tone, and texture, to be woven into the rich tapestry of America.
And still they come, drawn by the promise of liberty under law, guided still by the beacon light of liberty whose most majestic symbol -- newly refurbished this year -- is the Lady with the Lamp who stands in New York harbor. Her high-held torch beams forth the same message that the Liberty bell rang out more than 200 years ago, the message of Leviticus:
“Proclaim liberty throughout the land, unto all the inhabitants thereof.”
As we celebrate this day, let us draw closer to all of our fellow citizens in common purpose guided by a common vision. Let all Americans like one grateful family honor our Founding Fathers and all who have worked and fought and died to keep their dream alive. Let us renew our commitment to the message and the meaning of the Declaration of Independence:
“That all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . . ”
Let us sing again the great patriotic songs:
God bless America, land that I love.
Stand beside her, and guide her,
Through the night, with a light from above.
Let the words ring out loud with conviction and with joy:
America! America!
God shed His grace on thee
And crown thy good with brotherhood
From sea to shining sea!
To all my fellow Americans -- Happy Fourth of July!
|
|
D. Brian Murphy
Mobile Bar Association, 2022 President
|
|
NO MEMBERSHIP LUNCHEON FOR JULY.
OUR NEXT LUNCHEON IS SLATED FOR FRIDAY, AUGUST 12.
|
|
COST
MBA Members: $25.00 | Non-Members: $40.00
|
|
REGISTER FOR UPCOMING CLES AND AN EVENT! |
|
MORE CLE DATES WILL BE SHARED IN THE AUGUST BULLETIN. |
|
By Alison Herlihy, Lawyer Wellness Co-Chair |
|
Lawyer Wellness is offering a free yoga class taught by MBA Member Alison Herlihy, RYT-500 and co-owner of Kindred Yoga. The class will be held Wednesday, July 20, from 4:00pm - 4:45pm, at Kindred Yoga, 1108 Dauphin Street. The class will be a beginner-friendly, all-levels practice. Kindred Yoga is right next door to Red or White, so grab a group of your friends or colleagues for class, and then follow up with a glass of wine! Mats are available at the studio. To register for class, email alison@herlihyfamilylaw.com.
|
|
UPDATE YOUR MEMBER PROFILE |
|
By Emily Killion, President |
|
MBA Women Lawyers came back in a big way in June, hosting our first large-scale event since the start of the Covid pandemic. This year’s Trailblazer Tea, held June 21 at the Battle House Hotel, honored Alabama Supreme Court Justice Sarah Stewart and was the most-attended Trailblazer Tea in the event’s 10-year history.
In addition to presenting Justice Stewart with our annual Trailblazer Award, the MBAWL contributed $1,000 to Justice Stewart’s nonprofit of choice—Vivian’s Door, a Mobile-based organization that offers training, industry connections, and other resources to help address the challenges of economic equity and opportunity faced by minority business owners. Much thanks to our guests and sponsors, and everyone else who helped make this year’s Trailblazer Tea a success. In particular, I’d like to thank MBAWL board members Margaret Enfinger Pace, Tiffany Smith, and Ginger Poynter, who co-chaired the event. Congratulations again to Justice Stewart, and thank you for blazing a trail!
MBAWL members, please be on the lookout for information about our next meeting. If you’d like to join the Women Lawyers or have any questions, please reach out to me at emily.killion@airbus.com.
|
|
In Hoff v. Estate of Kidd, Nos. 1210096 and 1210098 (Ala. May 27, 2022), the Supreme Court ruled that a petition to remove an estate administration from probate to circuit court was sufficient, despite lacking a “sworn petition” as required by Ala. Code § 12-11-41. First noting that there is no statutory provision authorizing a circuit court to “deny” a removal petition pursuant to § 12-11-41, the Supreme Court then held that a signed but unsworn “declaration” executed in Nassau, Bahamas, substantially complied with the form found in the Alabama Uniform Unsworn Foreign Declarations Act (Ala. Code § 12-21-80 et seq.), and that such Act is applicable to pleadings and petitions that are required to be sworn.
In a case of first impression, the Supreme Court held in Ex parte Hunter Halver Brown (In re: Hunter Halver Brown v. State of Alabama), No. 1210172 (Ala. June 17, 2022), that the Covington County Circuit Court had properly denied a criminal defendant’s motion to dismiss the indictment against him, notwithstanding the State’s purported failure to comply with the Uniform Mandatory Disposition of Detainers Act, Ala. Code § 15-9-80 et seq. Noting that the Act’s 180-day time limit for bringing a prisoner to trial “shall be tolled whenever and for as long as the prisoner is unable to stand trial,” the Supreme Court held that such tolling had occurred due to Alabama’s statewide suspension of jury trials in response to the COVID-19 pandemic.
In Ex parte Warren Averett Companies, LLC, No. 1210010 (Ala. June 17, 2022), the Supreme Court held that a contractual jury waiver was enforceable despite the inclusion of unenforceable dispute resolution provisions in the same agreement. After previously holding that Warren Averett could not enforce an arbitration provision found in its personal service agreement (Fagan v. Warren Averett Cos., 325 So. 3d 778, 779 (Ala. 2020)), the Supreme Court nevertheless ruled that waiver of a jury trial was supported by the plain language of the agreement; the jury-waiver provisions found in the agreement were a “functional severability clause” with respect to the alternative-dispute-resolution provisions previously held unenforceable; and the doctrine of laches did not apply to Warren Averett’s delayed Motion to Strike Jury Demand, as the opponent of the motion had not shown that she was prejudiced by the passage of time or that Warren Averett’s delay in filing the motion was unjustified.
In Ex parte Association of County Commissions of Alabama Liability Self-Insurance Fund, Inc., No. 1210183 (Ala. June 17, 2022), the Supreme Court granted a petition for mandamus related to immunity for a self-insurance fund created pursuant to the Liability Self-Insurance Funds (LSIF) Act, Ala. Code § 11-30-1 et seq. While the Court agreed with plaintiffs that the authorizing Act does not entitle the Fund to immunity from claims based on its own alleged torts, including wrongful-death, negligence, and wantonness claims brought directly against the fund, the Court ultimately held that tort liability to third parties does not fall within the exception to the grant of immunity to LSIFs found in Ala. Code § 11-30-7.
In Anderson v. Coleman, No. 1210011 (Ala. June 10, 2022), the Supreme Court reversed a lower court’s mandatory enforcement of a marketability requirement in a real-property purchase agreement. While a genuine issue of material fact existed as to whether the prospective purchaser would be able to find requisite financing when the subject real property was already encumbered by a $1.4 million purchase-money mortgage and a $580,000 vendor’s lien deed, the Supreme Court held that the purchaser had an equitable right to waive the protections that would otherwise be afforded to her by virtue of the marketability-of-title requirement in the termination provision of purchase agreement and to accept the sellers’ otherwise-encumbered title to the property.
In Ex parte Affinity Hospital, LLC, Nos. 1210160 and 1210191 (Ala. May 27, 2022), the Supreme Court issued a writ of mandamus effectively rejecting an amended and restated complaint because its factual allegations were so different from those in the original complaint that they did not relate back and were barred by the statute of limitations. Noting that the original complaint for wrongful death alleged, inter alia, unintended lacerations during ureteral surgery and severe infections from the same, while the amended complaint alleged that the deceased was diabetic and that a lack of care in monitoring blood glucose levels led to a fall, the Supreme Court held that the latter could not relate back as it clearly addressed conduct distinct in kind and in time from the conduct alleged in the former.
In Key v. Warren Averett, LLC, No. 1210124 (Ala. May 20, 2022), the Supreme Court determined that the question of whether an employee had waived his contractual right to arbitration by substantially invoking the litigation process was an issue that must be answered by the arbitrator. Reversing the Circuit Court of Shelby County, the Supreme Court held that, while the issue of whether a party has waived its right to arbitration by its conduct in litigation is generally a question for the court, Alabama subscribes to the exception that issues typically decided by the court will be decided by the arbitrator instead when there is “clear and unmistakable evidence” of such an agreement in the arbitration provision.
|
|
Mobile County Probate Judge Don Davis, former race director for the Tri-the-Gulf Triathlon, has been an avid cyclist all his life, but he didn’t start competing in triathlons until 2015, when friends invited him to train for the annual Grandman in Fairhope. Judge Davis accepted the challenge. He’s been a triathlete ever since.
Just a year after his first Grandman, Judge Davis brought a triathlon to Mobile County. During a downtown lunch at Moe’s, Judge Davis and a group of other Mobile lawyers hit on the idea of a fundraising triathlon to bolster the Mobile Bar Foundation’s declining revenues. “We liked the idea,” he recalled. “It promoted health and wellness, and the Bar needed a fundraiser.”
The first Tri-the-Gulf Triathlon was held in October 2016 on Dauphin Island, combining a 600-yard swim, a 13.3-mile bike ride, and a 5k run. The race exceeded organizers’ expectations in both the number of participants and the amount of money raised. The next year, Judge Davis took over as race director, a role he maintained until stepping down last year following the 2021 event. He also obtained official race-director certification through USA Triathlon.
Although Tri-the-Gulf faced challenges—a tropical storm, the COVID-19 pandemic—it continued to generate significant revenue for the Foundation, providing support for a range of groups, including Legal Services of Alabama, the South Alabama Volunteer Lawyers Program, the Mobile County Volunteer Guardian Program, Adoption Rocks, and Big Brothers Big Sisters of Southwest Alabama.
Judge Davis, now 65, has presided over the Mobile County Probate Court since January 2001. Although he has not yet announced his retirement, it may be on the horizon: he and his wife, Beth, recently bought a home in Tennessee near their daughter and two of their grandchildren.
In the meantime, he isn’t slowing down. Judge Davis is planning to do another triathlon later in the year, and he continues to ride regularly with local cycling groups. Judge Davis says he‘s very proud of what the Tri-the-Gulf accomplished for the Bar and the Foundation, and he’s also hoping someone may still step in to take over his leadership role and keep it going. “It’s been a labor of love for me.”
|
|
Mobile County Probate Court Judge Don Davis, left, dedicates a space in his chambers for triathlon and other memorabilia. |
|
BORN: On May 19, 2022, MBA Members Allison White Smalley and Trip Smalley welcomed their precious baby boy, Leo Trip Smalley (8 lbs., 5 oz.). Leo joins big sister, Lana, and fur brother, Max. Welcome, Leo, and congratulations, Smalleys!
|
|
DIED: MBA Member Donald Elmore “Skip” Brutkiewicz, Jr., passed away at home on June 16, 2022. Skip is the son of late MBA Member Donald “Don” Elmore Brutkiewicz, Sr., brother of MBA Member John “Johnny” Clement Brutkiewicz, and former law partner of MBA Member Joseph Dennis. A native Mobilian, Skip graduated from Murphy High School, where he played on the tennis team. He earned his undergraduate degree in history in 1976 and his law degree in 1979, both from the University of Alabama. He practiced law for 43 years, most of that time with his father and brother Johnny. When not working, he found refuge on Dauphin Island. Skip loved to run, play handball, read American history, and tell stories with anyone who would lend an ear. He was the life of the party with his friends, confident and articulate in the courtroom, and a loving father and “Papa” to his daughters and grandchildren. Skip is survived by his two (2) daughters, six (6) grandchildren and his loving companion.
DIED: Kevin Darrell Graham, brother of MBA Member Duane Graham, died unexpectedly on June 9, 2022. Kevin was a loving husband, father and son. He is survived by his wife and three (3) sons.
DIED: On June 6, 2022, Nancy Mulherin, mother of MBA Member Austin Mulherin, sister of retired MBA Member Nicki Patterson, and sister-in-law of retired MBA Member Dan McCleave, passed away at home. Nancy lived a full life centered on family, faith, and friends. She is survived by her husband of 57 years, four (4) children, and eight (8) grandchildren.
DIED: On June 1, 2022, Margaret Genevieve Gale Peters, mother of retired MBA Member Chris Peters, passed away at the age of 100. A Mobile native and lifelong Catholic, Margaret attended St. Mary Catholic School and graduated from Bishop Toolen High School in 1939. At the time of her death, she was a member of St. Lawrence Church in Fairhope. A proud “Lefty,” Margaret’s left hand was tied in a paper bag at school to force her to learn to write with her right hand. As a result, she became ambidextrous, a talent she honed at Palmer and Baker Engineering when they were designing the Bankhead Tunnel. An excellent draftsman, she went on to work for the Mobile District of the U.S. Army Corps of Engineers for more than 32 years, drawing many of the extremely large maps for the Tennessee-Tombigbee Waterway. Margaret was also an accomplished seamstress, devoted mother, and community leader. She is survived by her three (3) children, her godson/nephew, ten (10) grandchildren, and thirteen (13) great-grandchildren.
|
|
Have you ever considered serving as an officer on the Mobile Bar Association Executive Committee? The nominating committee will be meeting soon to slate the Secretary, Assistant Treasurer, and Vice President officer positions. For the Vice President position, which historically places the nominee in line for MBA President, the nominating committee will consider Mobile, AL firms with 7 – 15 MBA members within their firm. If you are interested in serving as an officer on the 2023 Executive Committee, please contact MBA Executive Director Ann Sirmon by Friday, July 29, 2022, by email at asirmon@mobilebarassociation.com.
Speegle, Hoffman, Holman & Holifield, LLC, announces that RUDOLPH W. MUNNERLYN has become an associate of the firm.
Burr Forman announces their firm was selected as Wells Fargo Legal Department’s 2021 Outside Counsel Diversity Award recipient. They will receive the award during a luncheon on July 28, 2022, in New York City.
Hand Arendall Harrison Sale announces they were ranked in Chambers USA 2022 as a top firm in Banking & Finance and Litigation: General Commercial. Five Mobile members of the firm were included: R. Preston Bolt, Jr., Ginger P. Gaddy, Neil Johnston, Michael C. Niemeyer, and Caine O’Rear.
DOWNTOWN OFFICE SPACE: 209 N. JOACHIM STREET IN HISTORIC DETONTI SQUARE. Available: One large office upstairs, one large office downstairs, and one small office downstairs, including secretarial space. Within walking distance of federal courts. Amenities: Receptionist, VOIP telephone, internet, WIFI, email, fax machine, large color copier/scanner, onsite parking, lobby, conference room and kitchen. Contact NICOLE ROBERTS (nicole@evanscrowe.com) or EVANS CROWE (crowe@evanscrowe.com) at 251.431.6011.
Respected law firm located in Riverview Plaza in the heart of downtown Mobile has space available for an immediate, direct sublease. This is a perfect opportunity for any small business or professional firm seeking space in a prominent building with great views and amenities. If interested, please reach out to Ray LoCicero @ 504.596.4149 for more information.
DOWNTOWN OFFICE SPACE FOR LEASE: Beautiful, spacious office in a historic home in the beautiful DeTonti Square neighborhood. Plentiful onsite parking, including an EV charging space, available conference room, waiting area, and kitchenette. Receptionist onsite. Internet provided. A block from the Federal and Bankruptcy Courthouses. Perfect for a solo or out-of-town firm desiring Mobile presence. 205 N. Conception St. Contact HENRY BREWSTER at 251.338.0630 or hbrewster@brewsterlaw.net.
|
|
The Delano Palughi Chapter of the St. Thomas More Society will sponsor the Annual Red Mass Celebration on Friday, October 7, 2022, at 12:00 PM at the Cathedral of the Immaculate Conception. A brief reception will be held following the Mass. Your support and attendance is greatly appreciated. If you have any questions, please contact Greg McAtee at 251.689.4536.
|
|
SUPPORT THE FOUNDATION THROUGH AMAZONSMILE |
|
Shop at smile.amazon.com and Amazon will donate 0.5% of eligible purchases to the Mobile Bar Foundation with no fees or extra cost to you. Click here to learn more about AmazonSmile.
|
|
MOBILE BAR FOUNDATION DONATION FORM |
|
PLEASE CONSIDER MAKING A TAX DEDUCTIBLE DONATION TO THE
MOBILE BAR FOUNDATION
Name: ____________________________________________________________________________________
Address: __________________________________________________________________________________
Phone: _______________________________________ E-Mail: _____________________________________
YES, I want to make a donation to the Mobile Bar Foundation -
In honor/memory of: ______________________________________________________________________
Acknowledgement sent to:
Name ____________________________________________________________________________________
Address: __________________________________________________________________________________
YES, I want to become a member of the Mobile Bar Foundation -
__ Life member ($5000, can be paid in up to 5 annual installments)
__ Associate Member ($100 or more annually)
__ Regular Member of MBA practicing more than 5 years ($50 - $99 annually)
__ Regular Member of MBA practicing 5 years or less ($25 - $99)
__ I would like more information on including the Foundation in my estate planning
I donate my gift of: $__________
Check: __________ (Please make checks payable to the Mobile Bar Foundation)
*Credit Card: Visa/Mastercard# ____________________________________________________________
Signature: ______________________________________________ Exp: ___________________________
Mail to: Mobile Bar Foundation, P.O. Drawer 2005, Mobile, AL 36652
* All credit card transactions will incur a $2.00 processing fee.
|
|
July 4 - 8
MBA Headquarters Closed
Thursday, July 14
Young Lawyers Social
Friday, July 15
August Bulletin Articles Due
|
|
Wednesday, July 20
Electronic Discovery Zoom CLE
Wednesday, July 20
Lawyer Wellness Yoga Class
Thursday, July 21
Grievance Committee Meeting
|
|
|
Listed below are members who celebrate a birthday in July. |
|
Lauren Catherine Aiyer
Ashlee Yvette Alexander
Christopher Andrew Arledge
Daryl Alsabrook Atchison
Joseph Patrick Henican Babington
Cecilia Klotz Bacon
D. Brent Baker
John Caddell Bell
Michael Alexander Berson
Jaime William Betbeze
Henry H. Brewster
Andrew Jude Browning
Peter F. Burns
David Anthony Busby
Jennifer Caldwell Byrd
Henry A. Callaway
Kenneth Paul Carbo
Megan Brooks Comer
Samuel N. Crosby
John James Crowley
Vicki Marie Davis
Bradley E. Dean
Caleb William Diaz
Moshae Elise Donald
Grady Randall Edmondson
Christopher B. Estes
J. Langford Floyd
Keith B. Franklin
Josh D. Friedman
Robert Spencer Frost
John P. Furman
William Jordan Gamble
Matthew Ross Griffith
Samantha N. Gunnoe
Wesley Alec Harbuck
Theresa Harrison
Lisa Jo Hill
Edward T. Hines
Walter H. Honeycutt
D. Kirby Howard
Stewart Leon Howard
Jennifer Belle Jayjohn
|
|
James Allen Johnson
Cecily L. Kaffer
James W. Killion
Grayson Knight-Schemer
William Robert Lancaster
Yancy Davis Lott, Jr.
Thomas Ryan Luna
Michael E. Mark
Ralph Edward Massey, III
Samuel Preston McClurkin
Tara Lynn McCook
James H. McDonald, Jr.
Christopher R. Miller
Alexander Munderloh
Brian Murphy
Carson I. Nicolson
James Harris Oppenheimer
William H. Philpot, Jr.
Brian Thomas Pugh
David R. Quittmeyer
Rachele Alexandra Reis
Jon David Roberts
William A. Robinson
Norman Stuart Roman
Jay Michael Ross
William H. Saliba
Bradley Robert Sanders, Jr.
Troy Thomas Schwant
J. Nevin Shaffer, Jr.
Allison White Smalley
William Dowlen Stokes
Marianne W. Terry
Carla Morrison Thomas
Janet Diane Thornton
Neal Cody Townsend
David Thornton Trice, Jr.
Randolph Barnes Walton
Garrett White
Anna Maggio Williams
Suntrease W. Williams-Maynard
Michael A. Youngpeter
David B. Zimmerman
|
|
|
|
|
|
|
|
