Morrison v. Franklin

20 Citing cases

  1. Kessler v. Gillis

    911 So. 2d 1072 (Ala. Civ. App. 2005)   Cited 3 times

    In Pickard v. Turner, 592 So.2d 1016 (Ala. 1992), the supreme court stated the plaintiff's burden as one of "prov[ing] that the transaction would have had a different result if the alleged negligence had not occurred," 592 So.2d at 1019, or "`showing that the attorney's wrongful conduct has deprived the client of something to which he would otherwise have been entitled,'" 592 So.2d at 1020 (quoting 7A C.J.S., Attorney and Client ยง 255 at 462 (1980)). In Morrison v. Franklin, 655 So.2d 964 (Ala. 1995), the supreme court explained that the plaintiff in a legal-malpractice case has a "dual burden of proving both the underlying claim and the instant malpractice claim." 655 So.2d at 966-67.

  2. S.F. Residence Club, Inc. v. Leader, Bulso & Nolan, PLC

    Case No.: 2:14-CV-1953-KOB (N.D. Ala. Dec. 20, 2019)

    The first elementโ€”that the plaintiff would have achieved a more favorable result but for his attorney's negligenceโ€”places upon the plaintiff "the dual burden of proving . . . the underlying claim and the instant malpractice claim." Morrison v. Franklin, 655 So. 2d 964, 966 (Ala. 1995) (emphasis in original). In other words, the plaintiff must prove a "case within a case"; i.e., he must prove the merits of the underlying legal issue to demonstrate that his attorney's negligence deprived him of a more favorable result to which he would have been entitled.

  3. In re Williford

    Case No. 03-81486, Adv. Pro. No. 04-8015 (Bankr. M.D. Ala. Jul. 21, 2005)

    The Court does not buy this argument. As addressed in the Court's Memorandum Decision entered on March 24, 2005, the burden of proof has been established multiple times by the Alabama Supreme Court. (Doc. 38); see Mylar v. Wilkinson, 435 So.2d 1237 (Ala. 1986); Hall v. Thomas, 456 So.2d 67 (Ala. 1984); Johnson v. Horne, 500 So.2d 1024 (Ala. 1986); Herring v. Parkman, 631 So.2d 996 (Ala. 1994); Morrison v. Franklin, 655 So.2d 964 (Ala. 1995);Sanders v. Weaver, 583 So.2d 1326, 1330 (Ala. 1991); Pickard v. Turner, 592 So.2d 1016 (Ala. 1992). The choice to continue to assert that a different burden of proof should control in this malpractice action is within the discretion of the Willifords.

  4. In re Williford

    Case No. 03-81486-WRS, Adv. Pro. No. 04-8015-WRS (Bankr. M.D. Ala. Mar. 24, 2005)

    As for the second question, concerning the burden of proof, it would appear that this question has already been resolved by the Alabama Supreme Court. The Willifords cite Sanders v. Weaver, 583 So.2d 1326, 1330 (Ala. 1991); Herring v. Parkman, 631 So.2d 996 (Ala. 1994) andMorrison v. Franklin, 655 So.2d 964 (Ala. 1995) on pages 12 and 13 of their brief on this very question. (Doc. 33).

  5. Barker v. Capotosto

    875 N.W.2d 157 (Iowa 2016)   Cited 28 times
    Concluding that public policy considerations support requiring that a criminal malpractice plaintiff obtain postconviction relief

    As a third alternative, some courts have rejected an actual innocence requirement entirely. See Godby v. Whitehead, 837 N.E.2d 146, 151 (Ind.Ct.App.2005) (reiterating the court's point from a prior case that โ€œa criminal defendant does not have to prove his innocence before he files a legal malpractice claimโ€); Mashaney v. Bd. of Indigents' Def. Servs., 302 Kan. 625, 355 P.3d 667, 687 (2015) (rejecting the actual innocence rule in a jurisdiction that requires postconviction relief prior to filing a criminal malpractice suit); see also Mylar v. Wilkinson, 435 So.2d 1237, 1239 (Ala.1983), modified in part on other grounds by Morrison v. Franklin, 655 So.2d 964, 966 (Ala.1995) (noting that โ€œthe validity of [the defendant's] claim for relief in his criminal prosecution is not necessarily conclusive on his claim for civil damagesโ€); Rantz v. Kaufman, 109 P.3d 132, 136 (Colo.2005) (refusing to adopt the โ€œexoneration rule,โ€ which would require criminal malpractice plaintiffs to obtain postconviction relief prior to filing suit); Jepson v. Stubbs, 555 S.W.2d 307, 313 (Mo.1977) (concluding that the setting aside of a judgment of conviction is not a condition to maintaining a suit for malpractice arising from criminal representation); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058, 1061 (1989) (holding that the elements of proof for legal malpractice remain the same whether the action arises from civil or criminal representation). The Kansas Supreme Court recently considered, and declined to adopt, an actual innocence requirement.

  6. Carr v. International Refining Mfg. Co.

    13 So. 3d 947 (Ala. 2009)   Cited 21 times   1 Legal Analyses
    Finding there is no "products liability" exception to the six-year statute of limitations for wantonness claims

    . . .'" (quoting Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala. 2003))). See also, e.g., Ex parte Wiginton, 743 So.2d 1071, 1072-73 (Ala. 1999) ("The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge, Morrison v. Franklin, 655 So.2d 964 (Ala. 1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala. 1988)."). I turn then to a consideration of the substantive issue presented.

  7. Carr v. International Refining Manufacturing

    No. 1070770 (Ala. Nov. 13, 2008)

    . . .'" (quotingLiberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So. 2d 1013, 1020 (Ala. 2003))). See also, e.g., Ex parte Wiginton,,743 So. 2d 1071, 1072-73 (Ala. 1999) ("The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge, Morrison v. Franklin, 655 So. 2d 964 (Ala. 1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala. 1988)."). I turn then to a consideration of the substantive issue presented.

  8. Poole v. Gonzalez

    782 So. 2d 777 (Ala. 2000)

    Smith v. Medical Ctr. East, 585 So.2d 1325 (Ala. 1991); Sasser v. Connery, 565 So.2d 50 (Ala. 1990); and Peden v. Ashmore, 554 So.2d 1010 (Ala. 1989). See also Ex parte Wiginton, 743 So.2d 1071 (Ala. 1999); Morrison v. Franklin, 655 So.2d 964 (Ala. 1995); Marvin's, Inc. v. Robertson, 608 So.2d 391 (Ala. 1992); Boykin v. Magnolia Bay, Inc., 570 So.2d 639 (Ala. 1990); Smith v. Equifax Servs., Inc., 537 So.2d (Ala. 1988). AFFIRMED.

  9. Southern Energy Homes, Inc. v. Gregor

    777 So. 2d 79 (Ala. 2000)   Cited 13 times

    On the one hand, this Court can affirm the ruling of a trial court for any valid reason, even one not presented to or considered by the trial court. Premiere Chevrolet, Inc. v. Headrick, 748 So.2d 891 (Ala. 1999); Southern Fire Ins. Co. v. Knight, 736 So.2d 582 (Ala. 1999); Morrison v. Franklin, 655 So.2d 964 (Ala. 1995); McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So.2d 982 (Ala. 1995); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala. 1988). On the other hand, the particular case now before us presents a compelling reason of fundamental fairness not to consider Gregor's belated challenge to the McNutt affidavit. Had Gregor challenged the affidavit before the trial court on the ground that the affidavit violated the hearsay rule or on the more apt ground that it violated the best evidence rule by presenting the substance of documents not in evidence without proving that those documents were lost, destroyed, or otherwise unavailable, Southern Energy likely could have remedied the defect simply by introducing its books and records as business records under Rule 803(6), Ala. R. Evid., and introducing the warranty tickets as Gregor's admissions under Rule 801(d)(2), Ala. R. Evid. Our considering Gregor's belated challenge to the affidavit would unfairly deprive Southern Energy of such an opportun

  10. Ex Parte Danny Wiginton

    743 So. 2d 1071 (Ala. 1999)   Cited 87 times
    Applying ยง 43-2-130 to an action against an executrix, but also finding that venue would be proper in another county under Alabama Rule of Civil Procedure 82(c)

    A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county. Ex parte AU Hotel, Ltd., 677 So.2d 1160 (Ala. 1996). The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge, Morrison v. Franklin, 655 So.2d 964 (Ala. 1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala. 1988). The defendants in this case are of three types: corporations, a natural person (or "individual"), and an executrix.