Atheer Wireless, LLC v. State Department of Revenue Appeal from Montgomery Circuit Court (CV-15-901031)

On appeal, Appellant first argued that the circuit court erred by not allowing it to amend its complaint to allege that the Appellee had violated the rule-making provisions of the Alabama Administrative Procedure Act.

The Court of Appeals relied on Ala. R. Civ. P. 15, which provides in pertinent part that:

"Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause. A party shall plead in response to an amended pleading within the time remaining for a response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be longer, unless the court orders otherwise."

In the present case, the circuit court had set the case for a trial to be held on April 20, 2016. Therefore, Appellant’s motion for leave to amend its complaint, which was filed on March 17, 2016, came within 42 days of the trial setting and could be granted only "upon a showing of good cause." Appellant failed to present good cause for the amendment. Therefore, the circuit court did not exceed its discretion in denying the motion to amend the complaint.

Appellant also contested the trial court’s granting the Appellee’s Motion for Summary Judgment.  Appellant argued against summary judgment by challenging the constitutionality of the provision at issue. Section 6-6-227 provides, in pertinent part, that "if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard." Section 6-6-227 is "mandatory and jurisdictional" and requires service on the attorney general in any type of action in which a statute is challenged as unconstitutional. Barger v. Barger, 410 So. 2d 17, 19 (Ala. 1982). Accordingly, the Court of Appeals found that Appellant’s failure to serve the attorney general constituted a valid legal ground for the entry of the summary judgment.

Deborah Barker, Howard Thomas, Tarisha Thomas, Johnny F. Morgan, and Allison S. Morgan v. Joe N. Bennett

On appeal, the Appellants argued that the trial court exceeded its discretion in determining that the elements for establishing an easement by prescription had been met by Appellee. The Court of Appeals cited the elements necessary to establish an easement by prescription:

"To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner." 

The Appellants argued that the trial court erred in determining that Appellee had overcome the presumption that his use of the roadway was permissive and that, therefore, he had failed to show that his use was adverse to the Appellants. The Appellants cited Osborn v. Champion International Corp., 892 So. 2d 882, 887 (Ala. 2004), in which our supreme court noted that there is a presumption of permissive use when the property at issue is unimproved woodland and that "affirmative evidence of adverse use, under a claim of right," is required to establish an easement by prescription. In the present case, the evidence indicated that the roadway is, for the most part, on unimproved and wooded land.

Similarly, in the present case, the evidence indicated that Appellee’s predecessor in interest had used the roadway for more than 20 years without express permission until a gate was erected across the roadway. Appellee testified that he had used the roadway so much that it was "rutted out." There was also evidence indicating that Appellee had cut branches from along the roadway when they had impeded his travel. Appellee also testified that he had used the roadway continuously despite posted signs warning against trespassing on the roadway. Based on the foregoing, the Court of Appeals concluded that the trial court did not exceed its discretion in determining that Appellee had overcome the presumption of permissive use.