Forrest S. Latta, President

July 2023

Volume XLVII, Issue 7

In This Issue...

Ann's Article...........................Page 2

Texting Survey........................Page 3

CLEs......................................Page 5

Mentoring Moment.................Page 7

Young Lawyers.......................Page 8

Women Lawyers.....................Page 11

Significant Decisions...............Page 12

In the News.............................Page 13

Court Notice............................Page 13

Mobile Bar Foundation............Page 14

Birthdays.................................Page 17

  2023 OFFICERS

President - Forrest S. Latta

President Elect - Raymond L. Bell, Jr.

Vice President - Judge Judson W. Wells, Sr.

Secretary - Gordon G. Armstrong, III

Treasurer - Mary Margaret K. Bailey

Asst. Treasurer - Brian K. Smithweck

Executive Director - Ann Forbes Sirmon

Editor - Tiffany Ray

President’s Message

Congratulations to Vicki Davis, appointed by Governor Ivey to fill the unexpired term of Judge Patterson on the Mobile County Circuit Court. Vicki is a model member of the Mobile Bar Association, volunteering on the very important Grievance Committee. We are much indebted to the judicial nominating committee, as well as those who put forward their names but were not selected. You bring great honor to our profession. And keep in mind, a new district judgeship has been created by the Alabama Legislature for Mobile County, to be filled in the 2024 election cycle. Our neighboring Baldwin County is getting two new circuit judgeships, plus a new district judgeship.

Congratulations to U.S. Magistrate Judge Sonja Bivins, who was recognized last month with the 2023 Trailblazer Award by the Women Lawyers Section of the Mobile Bar Association. Judge Bivins epitomizes the Trailblazer Award and gave one of the most inspiring stories I have ever heard, which you can click here to read. I am also including a link here to read the wonderful introduction of Judge Bivins made by Judge Shelbonnie Hall. Women Lawyers president, Tiffany Ray, Trailblazer Tea chairperson, Valynda Jerome-Wiliams, and the members of the Women Lawyers are to be commended for a successful and sold-out Trailblazer Tea in the beautiful Crystal Ballroom of the Battle House Hotel. It was a truly special event, thanks to the Women Lawyers Section and the sponsoring law firms.

An upsurge in participation and activity is underway in our bar association, according to Executive Director Ann Sirmon, who describes it as “crazy busy” this year. Please thank her when you see her for all the work she does for us.

I had the privilege last month to attend several wonderful MBA events, including a truly outstanding Workers Comp Section “Lunch and Learn,” and there were many others I could not attend. But let me spotlight the annual Juneteenth Social held June 19 which, as always, was both great fun and an opportunity for networking and making new friends. It was hosted by the Vernon Z. Crawford Bay Area Bar Association at Kazoola on Dauphin Street and sponsored by the Beasley Allen law firm. This event touches on many of our goals, and I am delighted to see it be so successful.

There will be no bar luncheon this month, as the Annual Meeting of the Alabama State Bar will be held July 12-15 at Point Clear. The MBA is fortunate to have several able and active State Bar Commissioners on this oversight board. Please thank them: Frederick Helmsing, Edwin Lamberth, Bill Lancaster, Steve Nicholas, and Jim Rebarchak. Let me add a welcome to Suntrease Maynard-Williams, who starts service as a Bar Commissioner this month, and a special appreciation to Jim Rebarchak who rotates off but remains in service as a Hearing Officer for the disciplinary commission.

With almost 1,000 members, we typically have about 10 percent who are slow in paying their dues, but they are extremely important to us. If you are one of those, you may get a phone call or email reminder soon, and we would appreciate your responding. We don’t want to lose anyone!

Independence Day - Lafayette’s Example

I enjoy good advocacy, even on the other side. Win or lose, I try to compliment my counterpart on a job well done - often as we walk out the door, or after a good brief is filed, or after we get a court ruling. It’s no sign of weakness. More than once a former opposing counsel has called me later with a referral. One of the most enjoyable things is getting to trade stories and rehash old cases with former opposing counsel.

Rule 4 of Alabama’s Rules of Professional Courtesy (click here to review them) states, “A lawyer should maintain a cordial and respectful relationship with opposing counsel.” Rule 7 states, “A lawyer should never intentionally embarrass another lawyer and should avoid personal criticism of another lawyer.” And Rule 10 goes further: “When each adversary proceeding ends, a lawyer should shake hands with the fellow lawyer who is the adversary; and the losing lawyer should refrain from engaging in any conduct which engenders disrespect for the court, the adversary or the parties.” 

On the eve of July 4th let me share an example from General Marquis de Lafayette during America’s War for Independence. In the war’s fifth year, the Frenchman Lafayette, commanding a smaller American force, skirmished several times with British General Cornwallis’s army in a ‘cat and mouse’ game designed by General Washington to keep the British troops occupied while the Americans regrouped and waited for the French fleet. It worked. In his wonderful book about Lafayette, “Hero of Two Worlds,” author Mike Duncan shares that, soon after the Battle of Yorktown, British officers and their American and French counterparts drank, dined, and shared stories. Loosening up, Gen. Cornwallis invited Gen. Lafayette to a meeting to which Lafayette brought maps so the two could retrace their campaign, in which Lafayette had escaped again and again. Each acknowledged respect for the other’s skill and fortune.

Mobile historian Jack Friend told a similar story in his 2004 book “West Wind, Flood Tide: The Battle of Mobile Bay.” Union Capt. James Jouett of the gunboat Metacomet, after an hour-long naval battle, captured the Confederate gunboat Selma, captained by his old friend Peter “Pat” Murphey. Upon capturing the Selma, Jouett made everyone go to the port side so Murphey’s surrender would be less embarrassing. Capt. Jouett also had fresh oysters, crabs, steaks, cigars, and brandy waiting for Murphey. What respect. As legend has it, Murphey told Jouett if he’d known that would be his welcome, he would’ve surrendered sooner. They remained friends for life.

While less dramatic, I drove off to the Mobile airport once for a client’s deposition in Chicago having failed to pack a necktie. Fortunately my opposing counse, Jay York, was staying at the same hotel and was kind enough to loan me his tie so I would look good for my client during witness prep the next day. That evening (the night before the deposition) we found me a new tie and attended a Chicago White Sox game together. And at my client’s deposition, we shared some grins wondering if he would notice that Jay’s necktie looked familiar.

Who wound up winning that case? I honestly can’t remember, and that’s my point. Your opposing counsel is a colleague, not an adversary. In the long run, it is the relationships that will mean the most to you.

Forrest S. Latta

Mobile Bar Association, 2023 President

Pictured L to R:

MBA President Forrest Latta with the 2023 Trailblazer Award recipient U.S. Magistrate Judge Sonja Bivins

Robert Mudd, Jr. speaking at a recent Workers Compensation Section quarterly meeting.

Pictured L to R:

MBA President Forrest Latta, Willie Huntley, and Frank Woodson at the recent Vernon Z. Crawford Bay Area Bar Association's Juneteenth event

I hope everyone is enjoying their summer. It is always full of vacations, family time, rushing kids from here to there—and for me, it also includes reflection and planning.

Before I talk about planning, I would like to reflect on Law Day and the Law Day committee. They did a great job! I would like to thank Law Day Committee Chair Cat Kirkland and committee members Weathers Bolt, Ann Chapman, Valynda Jerome-Williams, Dru Bishop, Sara Elizabeth Liles, Suntrease Williams-Maynard, and Alex Wood. Everyone on the committee pitched in and made all the activities a huge success! As they say, “Teamwork makes the dream work.” Thank you!

Here are some highlights from this year’s Law Day activities:

• We had over 80 student participants in our Law Day art and essay contests. These students came from 13 different schools in Mobile County.
• We had over 60 students and parents attend our Judicial Day event in the Mobile County Ceremonial Courtroom.
• For the Liberty Bell Award, for the first time, we recognized 10 individuals and organizations for their dedicated service to the preservation and elevation of Africatown. They are: African Town Community Teach & Outreach, Africatown C.H.E.S.S., Africatown Community Development Corporation, Africatown Heritage Preservation Foundation, Africatown Redevelopment Corporation, Clotilda Descendants Association, Legal Services of Alabama, Merceria Ludgood, Mobile County Commission – District 1, Mobile County Training School Alumni Association, and Mobile Environmental Justice Action Coalition.
• Thank you to those who attended our Law Day luncheon. It was great to see everyone, and we appreciate your help in welcoming all our guests. We recognized the winners of the art and essay contests, displayed all the art and essay entries, and recognized the 10 organizations receiving the Liberty Bell Award. Our keynote speaker was Mobile Chamber of Commerce President and CEO Bradley Byrne; he shared an inspiring message on the importance of the rule of law in the founding of our country and to the present day.

Sure… you can see from the above list the substantial effects of Law Day. However, there is another layer to the impact of Law Day: It affects our community and touches lives. Here are a few examples:

• One teacher conveyed to us that her student, an award winner, “Works very hard to be a C student here and has very low self-esteem. I have pushed the student all year, and this one prize is as valuable to the student as an Olympic gold medal.”
• We had one of the middle school award winners who could not attend the Law Day luncheon due to other school activities. I went by the school to drop off his award, and the school principal and his classmates were so excited to celebrate him and his accomplishment.
• We received a thank-you note from one of the high school essay contest winners. The student stated, “I am humbled that you chose me for this award. This contest has allowed me to gain insight in areas previously unknown to me. Thank you.”
• A high school award winner from 2021, Jackson Faggard, stills volunteers his summers at Mobile Bar headquarters. He is a junior at Auburn, on the Mock Trial Team, and plans to go to law school when he graduates from Auburn.

These are just a few of the stories that have been shared with us. I’m sure there are countless more. As we continue to work on our strategic plan and plan for the future, our community impact is very important. Law Day and its activities help to promote a positive image of the legal profession as well as encourage our youth to consider the legal profession as a career path. As our MBA President Forrest Latta stated in his President’s Article in the June Bar Bulletin, “The average MBA member is 55 years old, law class sizes have shrunk, and only about half of the recent law graduates have remained in the state of Alabama.”

The health and well-being of the legal profession begins and ends with us—the Mobile Bar Association and its members. We, as an association, do not plan to just sit back. Planning for the future, creating a positive image of the legal profession, and becoming agents of change will be the keys to our success. In order to touch lives and change the trajectory of the legal profession we must be deliberate and plan. Please join us!

Onward,

Ann

P. Ann Forbes Sirmon

Mobile Bar Association, Executive Director

-6-

MENTORING MOMENT

By Greg Vaughan, Mentoring Committee Member

Work-life (or Life-work) balance?

 ,

As I write this month’s column, it’s a Tuesday, and I’m not in the office (and it’s not a holiday). Instead, I’m getting ready to take the kids to the OWA waterpark. After almost 20 years in practice, I’m just now starting to appreciate that an occasional day (or more) outside the office is a good thing. We all need to re-charge our batteries. Let me be clear, I have overdue discovery I’m still working on, more than a few calls/texts/emails I need to return, and a whole host of other items on my “to do” list that have been there way too long. But, in the grand scheme, missing this day of work really won’t be noticed by any clients, opposing counsel, or the courts. 

My friend and mentor Pete Mackey once said at a mentoring CLE, “I don’t care if the only thing your budget (or schedule) will allow is for you to drive to the Causeway, park your car, and stare at the bay – you have to get out of the office on a regular basis.”

In order to miss a few days here and there, I’ve had to get more disciplined. A podcaster I listen to on a regular basis, Jocko Willink, is well known for saying “discipline equals freedom.” That applies well in the law office. Here are a few things I’ve done that have really helped:

Calendar (everything)

For years I had a paper calendar on my desk and would not allow my assistant to set anything without checking with me. What was I thinking? One of the best decisions I’ve made was to go all-digital (with Outlook synced to my phone) and allow my assistant full reign to schedule on any day that’s available. This requires that I place all personal commitments on my calendar as well. Now, if I want to reserve a few off days (or half-days), I plan in advance and place them on the calendar. Never did I imagine that I would enjoy this level of planning – but it has been a game changer. 

Comprehensive written file list

All my active matters are kept on cloud-based software (Firm Central), but I also keep a comprehensive written file list (with matter name, type of case, and open items). My assistant and I meet and review the list on a regular basis to ensure that I am moving my files along at a reasonable pace. She updates my file list as various items are accomplished, and she adds new matters or removes matters once the file is closed. I’ve also added a dry erase board to the mix. On it I place matters in active litigation – so I can make regular updates and ensure that I am constantly staring at my cases (…or maybe they are staring at me 😊).   

Regular status reports to clients

Nothing bothers me more than getting a call from a client asking about the status of their case (especially when I’m out of the office). I’m not bothered by the client calling – what troubles me is the fact they had to reach out for an update. This indicates that I’ve failed to stay in touch. Regular status reports to clients (it can be a short e-mail or text) will eliminate so many of these calls. Here’s another thought: before you take a trip, go through your written file list and send a short e-mail to the clients who have not heard from you in a while with a status about their matter. It’s simple – just tell them what has happened and what you plan to work on next. A well-informed client is usually a happy client.

***

I’ve spent a lot of time around more senior lawyers and judges through my involvement in the Bar’s mentoring program. This collection of articles is some of what I have learned there – and some of what I’ve learned along the way.

If you have any questions, comments, or would like to suggest some future topics, please send me an e-mail at: [email protected] or call 251-432-8883.

-7-

YOUNG LAWYERS SECTION

By John Leech, Young Lawyers Section President

Summer is underway! The Young Lawyers Section has had a great first half, and we’re looking forward to our upcoming events in July. First, our June Social was held at Cedar Street Lounge and was sponsored by Long & Long, P.C.—we greatly appreciate their support. Thanks to everyone who came out and had a good evening with colleagues.

Our next event is our Annual Trivia Tournament, which will be held July 13 from 2 PM – 5 PM at Moe’s BBQ downtown (701 Springhill Ave.). Trivia team submissions and inquiries should be sent to the Trivia Tournament Chair, Rachel Jernigan ([email protected]). There will be prizes, food, and drinks. Teams are 4-6 people, but if you don’t have enough people for a full team, no worries! We can accept any number of people, even solo submissions, and we’ll put a team together for you. This year’s Trivia Tournament benefits Camp Rapahope. Rapahope does excellent work in our community helping children with cancer. If you are unfamiliar with their work, please visit their website (https://www.rapahope.org/).  

Our July Social will be held immediately following the Trivia Tournament from 5:30 – 7:30 PM, also at Moe’s BBQ. The Social is sponsored by Phelps Dunbar. 

As an added bonus, we will also host an End of Summer Social before all of the law clerks/interns leave for the start of the fall semester. This event will be on July 27 from 5:30 – 7:30 PM at the Outsider (552 Dauphin St.). It is sponsored by Helmsing Leach.

-8-

-9-

-10-

WOMEN LAWYERS

By Tiffany Ray, Women Lawyers President

Congratulations to Women Lawyers member Vicki Davis on her appointment as Mobile’s newest Circuit Court Judge! MBAWL will host an after-work social this month to congratulate her. Look for the details in the MBA weekly "Make Note."

Our annual Trailblazer Tea, held June 14 at the Battle House, was a rousing success—much thanks to everyone who attended to help us honor and celebrate our 2023 Trailblazer, United States Magistrate Judge Sonja Bivins! Thanks to all of our sponsors for making the event possible, and to the Trailblazer Committee—Chair Valynda Jerome-Williams, Margaret Enfinger Pace, Jennifer Jayjohn York, and Tiffany Smith—and our day-of volunteers for their hard work in making it beautiful. And most of all, thanks to Judge Shelbonnie Hall for her wonderful introduction, and thanks to Judge Bivins for blazing a path for women in a profession which, even today, lacks sufficient representation of women in leadership positions. And, thanks to MBA President Forrest Latta for including Judge Hall’s and Judge Bivins’ Trailblazer remarks in his monthly column (see above).

Look out for our next lunchtime CLE in August—details TBD. In the meantime, if you’re not a member of Women Lawyers and would like to join, feel free to contact me at [email protected].

Judge Bivins addressing attendees at the Tea.

Pictured L to R: Judge Bivins with her longtime Little, Timiya McPherson, from Big Brothers Big Sisters of South Alabama.

Women Lawyers presented the organization with a $1,000 donation in honor of Judge Bivins.

Pictured L to R: Judge Bivins' longtime friend, Judge Shelbonnie Hall, with Judge Bivins.

-11-

In a case of first impression, in Ex parte King, No. SC-2022-0653 (Ala. May 19, 2023), the Supreme Court held that “preservation improvements,” which are included in the amount required to redeem real property sold for taxes pursuant to Ala. Code § 40-10-122, included costs for restoring a house and surrounding property to its previous condition for its proper and reasonable use which, in the case at hand, was “as a sound, habitable, single-family dwelling.”  Using the same analysis previously applied in the context of foreclosure redemptions, the Court determined that the legislature must have intended that “preservation improvements” have essentially the same definition as “permanent improvements” and be interpreted to mean valuable and useful additions and improvements to the property suited to its reasonable necessities, not merely costs for ordinary restorative repairs.

In Murray v. Potter, No. SC-2022-1008 (Ala. June 16, 2023), the Supreme Court held that the Jefferson County Circuit Court lacked jurisdiction over a landlord’s unlawful detainer action. Although neither party to the action had challenged the circuit court’s jurisdiction, the Supreme Court, acting ex mero motu, noted that Ala. Code § 6-6-331 clearly states that complaints provided for in the Unlawful Detainer Act (§ 6-6-310 et seq.) must be filed with the district court in the county in which the lands are situated.  This is in contrast to eviction actions, which may be brought in district or circuit court.  As the circuit court lacked jurisdiction over the unlawful detainer action, the Supreme Court held that its judgment could not support an appeal and must be vacated.

In Dream Inc. v. Samuels, No. SC-2022-0808 (Ala. June 23, 2023), the Supreme Court held that a claimant could not pursue claims against an electronic bingo facility for nonpayment of alleged winnings of approximately $30,000 because electronic bingo is illegal in Alabama (Ala. Const. art. 4, § 65); State v. Epic Tech, LLC, Nos. 1200798, 1210064 and 1210122 (Ala. Sept. 30, 2022).  Although the present case consisted of a jury trial and neither party had raised the issue, the Supreme Court, ex mero motu, reiterated that electronic-bingo machines do not constitute “the game commonly or traditionally known as bingo” and, therefore, constitute illegal gambling, and Alabama courts will not enforce a void or illegal contract.

In Hilyer v. Hilyer, No. SC-2022-1054 (Ala. June 16, 2023), the Supreme Court held that a previously discharged personal representative of an estate could not thereafter maintain a contempt action against his brother on behalf of the closed estate. While the brother in question had failed to comply with an order issued by the Chilton County Circuit Court (where the estate had been properly removed), the personal representative’s motion for contempt for failure to comply was preceded by the filing, and granting, of a petition for final settlement and discharge of the estate eleven months earlier.  According to the Supreme Court, because the judgment granting the personal representative’s petition for final settlement was a final judgment that discharged the personal representative of the decedent’s estate, he no longer had the authority to take any further action on the estate’s behalf.

-12-

DIED: On June 11, 2023, retired MBA Member, Warren L. Hammond, Jr., died following a brief illness. Warren graduated from Murphy High School and earned his undergraduate and law degrees from the University of Alabama. Between college and law school, he served four years as an Air Intelligence Officer and Flight Officer in the U.S. Navy, attaining the rank of Lieutenant. Warren spent the first half of his legal career as a partner at Conrad, Hammond & Barlar. In 1997, he was appointed as a United States Administrative Law Judge, which he thoroughly enjoyed until his retirement in December 2019—just one day after his 84^th birthday. Warren is survived by his wife and one of two daughters. His other daughter preceded him in death.

DIED: Retired MBA Member, Douglas K. Dunning, died on June 6, 2023. Douglas graduated from the University of South Alabama with a perfect 4.0 grade point average and earned his law degree from the University of Alabama. He began practicing law in 1979 at Reams, Wood, Volmer and subsequently transitioned into a thirty-year solo practice. Douglas was a member and deacon of First Baptist Church of Mobile, an avid golfer, and an Alabama football fan. He is survived by his wife, two children, and two grandsons.

Last Will & Testament search: John Jackson Clark, Jr., from Chickasaw, AL. He passed away on May 26, 2023. Please contact daughter Jaclyn Turner by phone at 334-216-0248 or by email at [email protected].

Last Will & Testament search:  William “Bill” Gosnell, age 70, from Mobile, AL. He passed away on or about June 4, 2023. Please contact Evans Crowe, Esq. at 251-431-6011 or Amelia Easterling at [email protected]. 

Law books available. In good condition. For more information, contact Carolyn Hasser by phone at 251-654-1605.

Cunningham Bounds is pleased to announce their attorneys have again been listed in the annual Lawdragon 500 guide. This year, eight partners were named to the Lawdragon 500 Leading Plaintiff Consumer Lawyers guide. They are: Dave Wirtes, Toby Brown, Skip Finkbohner, Steve Nicholas, David Cain, Billy Bonner, Lucy Tufts, and Robert Mitchell. Congratulations!

Nice, affordable offices for rent in Midtown at the Loop. Located on Government St. next to Little Flower Catholic School. Plenty of free parking. The space includes 1-3 offices as well as a reception area, bathroom, and kitchenette. A conference room is also available for use. The offices are 134 sq.ft.; 146 sq.ft.; and 191 sq.ft. The waiting room is 147 sq.ft. Contact Mike McNair, office: (251) 450-0111; cell: (251) 510-3223. Email: [email protected].

COURT NOTICE

DNA testing has been moved to the courthouse. The DNA clerk is located in the office outside of Courtroom 4200. Appointments are still made by contacting Sharon Jones at the Bay Haas building: 251-574-8697.

-13-

-14-

-15-

For a full list of upcoming events in 2023, click here to visit our website.

-16-

Listed below are members who celebrate a birthday in July.

-17-

STAY CONNECTED