author: PER CURIAM. DONALDSON, Judge,

text:
    Ex parte Griffin SIKES, Jr. (In re Rosalyn M. Caplan v. Patty S. Benator et al.).
    2150469.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      Griffin Sikes, Jr., Montgomery, for petitioner.
    Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for Patty S. Benator.
    James T. Patterson of Vernis & Bowling of Southern Alabama, LLC, Mobile, for Linda S. Fleet.
   PER CURIAM.

Griffin Sikes, Jr., an attorney, challenges a February 10, 2016, order of the Montgomery Circuit Court (“the trial court”) that ordered him to pay $3,000 as a sanction for vexatious discovery practices.

The record indicates that Sikes represented Rosalyn M. Caplan in a tort action in the trial court in which Caplan sought an award of damages from Patty S. Benator (“Benator”), Gene A. Benator, Linda S. Fleet (“Fleet”), and Stuart L, Fleet; later, a probate-court action involving the estate of Edgar K. Simon, Jr., was removed to the trial court and consolidated with the tort action. Caplan and Simon were in a relationship for a number of years, and they lived together in Simon’s home in Montgomery from approximately 2005 until Simon’s death on April 22, 2015. Benator and Fleet are Simon’s daughters and are the coexecutors of Simon’s estate (“the estate”); Gene Benator and Stuart Fleet are, respectively, Benator’s husband and Fleet’s husband. Under the terms of Simon’s will, the house Simon and Caplan had shared during their relationship was left to Benator and Fleet, but the will also contained a provision allowing Caplan to live in the house for 90 days following Simon’s death. Simon also made a specific bequest to Caplan from his estate. In her June 16, 2015, complaint in the tort action, Caplan alleged, among other things, that the defendants’ conduct toward her since Simon’s death had caused her to suffer a heart attack.

The history of the discovery dispute that forms the basis of this petition for a writ of mandamus is as follows. On June 18, 2015, Caplan filed a notice of intent to serve a nonparty subpoena on Gerald Hartley, Wade Hartley, and Davis Hartley of the law firm Hartley & Hartley, seeking the production of

“all written or recorded materials generated or acquired by the law firm of Hartley & Hartley, including all of its members, associates and staff in the course of administering the Estate of Edgar K. Simon, Jr., including but not being limited to all notes, letters, emails, pleadings, interview notes or transcipts [sic], memos, tape recordings, transcripts, etc.”

On June 21, 2015, Caplan filed a motion in limine seeking a ruling from the trial court determining that no communication between Fleet and Benator, who, as previously mentioned, are the coexecutors of the estate and the attorneys from Hartley & Hartley (“the Hartley attorneys”), who represented the estate, could be considered subject to the attorney-client privilege and, therefore, not discoverable. Ca-plan argued that, in the tort action, she had named Benator and Fleet as defendants in their individual capacities rather than as defendants in their capacities as coexecutors of the estate. In that motion, Caplan alleged that the Hartley attorneys had withdrawn from their representation of the estate. The essence of Caplan’s argument in support of her motion in li-mine is best summarized in her statement in that motion that,

“[wjhether [Benator] and [Fleet] engaged in the course of conduct they took in April, May, and June 2015, as alleged in the Verified Complaint, in open, knowing, deliberate and intentional violation of their fiduciary duties, i.e., after having been specifically advised by the [Hartley attorneys] that such conduct was violative of their duties and specifically advised against continuing in that course of conduct is highly relevant to most of [Caplan’s] claims herein.”

Benator and Fleet filed an objection to Caplan’s notice to serve a nonparty subpoena, arguing that the documents requested were subject to the attorney-client privilege, were attorney work product, and were not relevant. They also filed an opposition to Caplan’s motion in limine. The trial court set the discovery dispute for a hearing, and the parties filed supplemental briefs in the trial court in support of their respective positions.

On July 31,2015, Caplan filed a notice of her intent to serve a nonparty.subpoena on the Hartley attorneys, seeking the production of , .

“full, complete, legible copies of all written or recorded materials generated or acquired by the law firm Hartley & .Hartley, or by any of its members .or staff, including Gerald W, Hartley, G. Wade Hartley, and Davis B, Hartley in the course of the administration of the Estate of Edgar .K. -Simon, - Jr.. Such written or recorded materials shall include, but not be limited, to all pleadings, notes, letters, emails, text messages, notes of telephone calls or conversations, phone logs, billing records, interview notes, transcripts, memos, audio recordings, or other materials containing informational content in any case file or case files kept or maintained concerning the Estate of Edgar K. Simon.”

Benator and Fleet objected to the July 31, 2015, notice of intent to serve a no'nparty subpoena, and Caplan moved the trial court to overrule that objection.

The -parties -filed briefs in support of their positions on the discovery dispute, and the trial court conducted a hearing to consider the arguments of counsel. On August 18, 2015, the trial court entered an order ruling1 on the discovery dispute concerning Caplan’s requests - for- nonparty subpoenas that sought certain information from the Hartley attorneys. That order reads as follows:

“Before the court is [Fleet and Benator’s] objection to issuance of a subpoena. [Caplan] is a beneficiary of the will of Mr. Simon. [Fleet and Benator] are the personal representatives of Simon’s estate. The personal representatives hired the firm of Hartley & Hartley to advise the estate. Caplan then sought to subpoena the attorney’s files concerning that representation and [Fleet and Benator] protested. Both attorneys filed excellent briefs and, in the absence of controlling precedent on point in Alabama, made persuasive policy arguments for their positions. The Court concludes, however, that the weight of authority in Alabama is to the effect that when the personal representative employs an attorney to advise on estate matters, the attorney’s client is the personal representative and none other. Furthermore, no exception is delineated in Rule 502 Alabama Rules of Evidence which would abrogate the privilege in this instance. The subpoena is quashed.”

(Emphasis added.)

Caplan did not seek appellate review of the August 18, 2015, order. Rather, on September 10, 2015, Caplan filed requests for production that, in pertinent part, requested copies of e-mails, text messages, letters, written correspondence, or recordings of any communications between Ben-ator and Fleet and the Hartley attorneys or Jack Owen, Benator’s attorney; any other documents pertaining to Benator’s and Fleet’s dealings with the Hartley attorneys; any documents containing information regarding whether the Hartley attorneys had advised Benator and Fleet concerning their conduct toward Caplan and the content of any such advice; and any documents or recordings that might substantiate the nature of that advice.

On October 4, 2015, Caplan served a notice of intent to serve a nonparty subpoena on the Hartley attorneys and a notice of intent to depose those attorneys. In both notices, Caplan demanded that the Hartley attorneys produce

“all billing statements and records, time sheets or other written or recorded materials stating, showing, evidencing, or indicating charges for legal services, the amounts of time expended in providing legal services, and the dates and times legal services were rendered for the Estate of Edgar K. Simon, Jr., or its executors, Patricia S. Benator and/or Linda S. Fleet.”

Benator and Fleet each objected to the deposition notice and the notice of intent to serve the nonparty subpoena, arguing that Caplan was repeating her earlier efforts to access information that the trial court had already determined was barred by the attorney-client privilege. Caplan argued that the records she had requested were not privileged and not within the scope of the August 18, 2015, order.

On October 21, 2015, Caplan filed a notice of intent to depose Benator and directed Benator to bring with her

“[a]ll written or recorded materials constituting, containing, memorializing, recording, noting, or reflecting any written or oral communications, including but not being limited to emails, texts, letters, conversations, or telephone conversations, that occurred between April 1, 2015 and the present between Linda S. Fleet and any of the following persons: “Rosalyn Caplan, Stan Caplan, Carol Caplan Sawyer, Davis Hartley, Gerald Hartley, [and] Wade Hartley.”

On November 20, 2015, Benator and Fleet moved for a partial summary judgment on Caplan’s claim in the tort action asserting trespass. The trial court scheduled a hearing on that motion. Caplan opposed that partial-summary-judgment motion. The trial court later granted the motion for a partial summary judgment on Caplan’s trespass claim.

On December 4, 2015, Caplan propounded her “third discovery requests,” which were composed of interrogatories and a demand for a “privilege log.” In her interrogatories to Benator and Fleet, Caplan demanded information regarding whether either Benator or Fleet had received legal advice with regard to their interactions with Caplan in April 2015 and, if so, the nature of any such advice. Caplan then requested that, for each communication that Benator or Fleet might claim was subject to the attorney-client privilege, Benator and Fleet create a “privilege log” setting forth detailed information regarding why that communication might be privileged. Caplan sought similar information with regard to other specific factual inquiries and, in addition, sought a statement from both Benator and Fleet that listed “as fully and completely as you are able, all of the communications and advice that occurred and/or were provided by and between you and the attorney.” Benator filed an objection to Caplan’s December 4, 2015, third discovery requests.

On December 16, 2015, Caplan filed a motion seeking to compel Benator and Fleet to answer questions that they had refused to answer during their depositions. Caplan asserted that all of those deposition questions pertained to communications between Benator and Fleet and the Hartley attorneys or Owen. In support of that motion, Caplan submitted a brief that set forth arguments similar to those she had set forth regarding the discovery dispute that the trial court had ruled on in its August 18, 2015, order and in support of her July 2015 discovery requests. Also on that date, Caplan filed documents in which she purported to “waive” any attorney-client privilege that might exist between any attorney for the estate and Benator and Fleet. Fleet responded by arguing that Caplan had no privilege to waive, and she moved to strike the documents in which Caplan stated her desire to “waive” any privilege.

On January 11, 2016, Caplan filed a motion asking the trial court to reconsider its August 18, 2015, ruling on the issue of the attorney-client privilege as precluding much of the discovery requests. On January 12, 2016, Caplan filed a “Fourth Discovery Request[],” seeking information regarding whether Benator or Fleet had exercised a power of attorney on behalf of Simon between 2010 and the date of his death. ■ ,

On-January 14, 2016, Gaplan filed a motion to compel Benator -and Fleet to respond to the December 4, 2015, third requests for discovery. Attached to that motion to compel is a letter from Caplan’s attorney, Sikes, to Owen that, in part, notes that Owen had failed to substantively respond to.those discovery requests and, instead, had again asserted the defense of attorney-client privilege..

On January 15, 2016, Caplan moved the trial court to declare that Benator and Fleet had waived the attorney-client privilege by failing to respond to her December 4,, 2015, third requests for discovery. Ca-plan submitted a brief, similar to others submitted on the issue, arguing that the discovery she sought was not subject to the, attorney-client privilege. Also in her January 15, 2016, motion,- Caplan asked the trial court to impose “sanctions against Fleet and Benator in the amount of $3,000 each for. their failure to respond” to some questions during their depositions and for .their denial of her request, asserted in the December 4, 2015, third discovery requests, that Benator and Fleet produce privilege logs.

• On January 18, 2015, Fleet filed a motion seeking the imposition of sanctions against Caplan for “vexatious discovery” requests. In that motion, she sought an award of an unspecified amount for an attorney fee and expenses that she and Benator had incurred since the entry of the August 18, 2015, order upholding their objections to Caplan’s discovery 'requests on the basis of their invocation of the attorney-client privilege.

The trial court conducted a hearing on the pending motions on January 19, 2016. During that hearing, after considering the arguments' of counsel, the trial court informed the attorneys that it was tiring of the consistent discovery disputes and that it .had already ruled on the issue of the attorney-client privilege as it pertained to Caplan’s discovery requests. The trial court also stated during that hearing that if the attorneys were before it on another discovery dispute of that nature, it would “sanction whomever [it found] to be at fault.”

On February 9, 2016, Caplan filed in the trial court a “motion for certification of controlling issues,” requesting permission to appeal six interlocutory rulings: the order granting the motion for. a partial summary judgment on Caplan’s trespass claim in the tort action, and the purported denials of five of Caplan’s motions pertaining to her attempts to obtain discovery since December 2015 on the issue of the communications between Benator and Fleet and the Hartley attorneys or Owen. At the time Caplan filed that motion, the trial court had not yet ruled on the five discovery motions. We note that Rule 5(a), Ala. R.App. P., allows a party to seek a permissive appeal of an interlocutory order when a trial court certifies an issue addressed in the order as a controlling question of law. Caplan sought to have the trial court certify, as issues for appellate review, (1) whether the attorney-client privilege precluded Caplan’s.discovery requests pertaining to any legal advice Benator or Fleet was provided with regard to their interactions with Caplan after Si-mons’s death and (2) whether, under the terms of Simon’s will, Caplan had an exclusive right to possession of the home she had shared with Simon for the 90 days following his death.

The trial court entered the following order on February 10, 2016:

“Once again the Court is dragged into a discovery dispute concerning attorney-client privilege in this matter. The Court’s patience, which has never been overflowing, is being sorely tried after issuing one order, quashing a subpoena, and delivering a le,cture to the parties on the subject. Now [Caplan] is back for another bite at the apple asserting that [Benator and Fleet] waived the privilege and seeking, sanctions of $3,000.00. Benator objected to [Caplan’s] third discovery request while Fleet filed her own motion for sanctions (it is unclear if Gene Benator or Stuart Fleet are still parties or if anyone cares about their status). Without taking a giant leap of faith, the Court believes'that it is safe to treat Fleet’s request for sanctions as an objection to the discovery.
“[Caplan’s] argument of waiver centers around the failure of the defendants to provide [Caplan] with a privilege log which [Caplan] represents is mandated by the [Alabama Rules of Civil Procedure]. It is not, as the Committee Comments make plain. What is required is that [Caplan] be given sufficient information to evaluate the applicability of the privilege. At no time prior to the Court’s [order of August 18, 2015,] on this issue did [Caplan] complain that she was unaware of the basis for the invocation of the privilege or that she needed more facts to evaluate the assertion. Instead, she was content for the Court to rule on the issue until that ruling went against her. Since that time, she has schemed to obtain that same information despite the Court’s ruling.
“The stated basis for this new dispute is the- claim that [Benator and Fleet] waived the privilege. They have not. Instead, they have promptly and ardently asserted the privilege. At the last hearing before this Court, the attorneys were warned that further involvement by the Court in discovery disputes would prove expensive. [Caplan] thinks that $3,000 is an appropriate sanction in this instance and so be it. [Sikes] is ordered to pay to [Benator and Fleet] the total sum of $3,000 for continued obfuscation on discovery.
“[Caplan’s] motions are denied.”

The next day, the trial court entered an order reiterating its earlier ruling granting Benator and Fleet’s motion for a partial summary judgment on Caplan’s trespass claim in the tort action and denying all of Caplan’s pending motions regarding discovery. In a separate order, the trial court also- denied Caplan’s motion to certify' issues and for a permissive appeal, finding that the first issue should have been raised within 28 days of the entry of the August 18, 2015, order, see Rule 5(a)(1), Ala. R.App. P., and that the second issue did not present a controlling question of law. See Rule 5(a), Ala. R.App. P.

On February 22, 2016, Caplan moved the trial court to reconsider its February 10, 2016, order imposing sanctions on Sikes. The trial court denied that motion on February 25, 2016. On February 29, 2016, Sikes filed a notice of appeal to our supreme court, which transferred the matter to this court pursuant to § 12-2-7, Ala. Code 1975.

This court asked the parties to file letter briefs regarding the finality of the February 10, 2016, order from which Sikes purported to appeal. Sikes responded by arguing that the February 10, 2106, order was a contempt order that was appealable under Rule 70A(g), Ala. R. Civ. P. This court disagreed and entered an order on May 2, 2016, stating that Sikes’s notice of appeal would be treated as a petition for a writ of mandamus. We note that the petition for a writ of mandamus is timely, because it was filed on February 29, 2016, within the 42-day presumptively reasonable period for seeking such appellate relief from the February 10, 2016, order. See Rule 21(a)(3), Ala. R.App. P. (“The presumptively reasonable time for filing a petition [for a writ of mandamus] seeking review of an order of a trail court ... shall be the same as the time for taking an appeal.”); Ex parte Cowabunga, Inc., 67 So.3d 136 (Ala.Civ.App.2011) (same).

Initially, we note that this court has considered the arguments in Sikes’s brief to this court only to the extent that they pertain to the February 10, 2016, order sanctioning Sikes for abusive discovery practices. This petition for a writ of mandamus does not properly bring before this court any issue pertaining to the trial court’s rulings that Caplan’s discovery requests should not be permitted because they sought information subject to the attorney-client privilege. First, in his individual capacity, Sikes does not have the right to challenge the propriety of the August 18, 2015, order on behalf of Caplan. Also, even if Sikes could be said to have a right to challenge the August 18, 2015, order, this petition for a writ of mandamus is untimely as to that order.

In addition to the primary argument Sikes asserts with regard to the imposition of the sanction against him, Sikes’s brief submitted to this court contains three headings that we interpret as separate arguments: “(a) preventing the making of a record for appellate review,” “(b) legitimacy of the issue of privilege,” and “(c) legitimacy of the issue of waiver , of attorney-client privilege by failure to comply with Rule 26(b)(6)[, Ala. R. Civ. P.].” Sikes does not make any argument that the trial court prevented him from making a record with regard to its February 10, 2016, ruling. Rather, in that section of his brief, Sikes- only contends that he vigorously asserted his client’s legal position.

With regard to the “legitimacy of the issue of privilege” argument, Sikes argues the merits of Gaplan’s position with regard to discovery, and he asserts that the trial court recognized the legitimacy of Caplan’s argument in its August 18, 2015, order by stating that both parties had submitted excellent briefs and that the issue appeared to be one of first impression. The February 10, 2016, order that is challenged in this petition for a writ of mandamus makes no ruling with regard to the attorney-client-privilege issue, and any challenge of the August 18, 2015, ruling on that issue is untimely. Even assuming that Sikes had the right to assert an argument pertaining to the propriety of Ca-plan’s discovery requests, this court cannot address issues not ruled on by the trial court in the February 10, 2016, order that is the subject of Sikes’s petition for a writ of mandamus.

With regard to the third heading/argument, Sikes asserts summarily that a failure to produce the privilege logs Caplan requested in the December 4, 2015, third discovery requests' amounts to a waiver of the claimed privilege. He then cites a list of federal-court cases that analyze Rule 26, Fed.R.Civ.P., and concludes with an assertion that he is entitled to a reversal of the sanctions order. With regard to that issue, the trial court did rule against Caplan by determining that Benator and Fleet had not waived their privilege. Sikes does not explain to this court, however, how- that determination affected his rights or the trial court’s decision to sanction him for abusive discovery practices. Further, even assuming that Sikes has the right to properly assert an argument that the denial of Caplan’s request for “privilege logs” affected the trial court’s decision to sanction him, Sikes doe not challenge, in his brief submitted to this court, the trial court’s determinations in its February 10, 2016, order that Benator and Fleet objected to his December 4, 2015, third discovery requests, that Caplan or Sikes had failed to timely request a “privilege log,” or that Benator and Fleet had not waived their right to assert attorney-client privilege in response to the discovery requests Sikes made on behalf of Ca-plan. Thus, there were alternate bases for the trial court’s ruling that Sikes has failed to address in his brief on appeal, and, therefore, he has waived any argument as to the propriety of those alternate bases for the trial court’s ruling. “This court is required to affirm a judgment if the appellant has waived any arguments regarding an alternative basis for the judgment.” Drake v. Alabama Republican Party, 209 So.3d 1118, 1122 (Ala.Civ.App.2016); see also Austin v. Providence Hosp., 155 So.3d 1028, 1031 (Ala.Civ.App.2014) (‘When a trial court enters conclusions of law stating alternative legal grounds for its judgment, the failure of an appellant to show error as to each ground in his or her opening brief constitutes a waiver of any argument as to the omitted ground and results in an automatic affirmance of the judgment.”).

Sikes’s primary argument is that the trial court erred in imposing a sanction against him. Although most cases addressing discovery violations address a party’s failure to respond to discovery, the prevailing principle with regard to discovery matters is the same: the trial court is afforded broad discretion in managing discovery, and it may sanction parties who do not comply with the discovery process. Ex parte Community Health Sys. Prof'l Servs. Corp., 72 So.3d 595, 603 (Ala.2011) (“The trial court has broad discretion in overseeing discovery and in protecting persons from whom discovery is sought.”). Our supreme court has stated:

“The trial court is vested with broad and considerable discretion, in controlling the discovery process and in making rulings on all matters pertaining to discovery, including the authority to make such rulings as are necessary to protect .the integrity of the discovery process. See Ex parte Sargent Industries, Inc., 466 So.2d 961 (Ala.1985); Ex parte McClarty Const & Equipment Co., 428 So.2d 629 (Ala.1983); Hancock v. City of Montgomery, 428 So.2d 29 (Ala.1983); Ex parte Allstate Ins. Co., 401 So.2d 749 (Ala.1981); Ex parte Old Mountain Properties, Ltd., 415 So.2d 1048 (Ala.1982), cert. denied, Old Mountain Properties, Ltd. v. April Investments, Inc., 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982). Furthermore, deeply rooted 'in the common law is the court’s power to manage its affairs in order to achieve the orderly and expeditious disposition of cases, including the authority to impose reasonablé and appropriate sanctions for failure to comply with discovery. See Carlucci v. Piper Aircraft Corp., 775 F.2d 1440 (11th Cir.1985); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
“The choice of discovery sanctions is within the trial court’s discretion and will not be disturbed on appeal absent gross abuse of discretion, Johnson v. Langley, 495 So.2d 1061 (Ala.1986); Deaton, Inc. v. Burroughs, 456 So.2d 771 (Ala.1984); Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala. 1981), and then only upon a showing that such.abuse of discretion resulted in substantial harm to appellant. Edward Leasing Corp. v. Uhlig & Associates, Inc., 785 F.2d 877 (11th Cir.1986).”

Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989) (footnote omitted).

Sikes maintains that the trial court erred in ordering that he be sanctioned for discovery abuse because, he says, the order constituted an ex post facto sanction. Sikes argues that it is clear that the trial court believed that he had violated the directive against further allegedly abusive discovery issued by the trial court during the January 19, 2016, hearing, and he points out that the filing for which he was sanctioned was filed before that hearing, and, therefore, he argues that he could not have violated the January 19, 2016, directive. Sikes contends that he had no notice that repeated requests seeking discovery of information that the trial court had, months earlier, determined was subject to the attorney-client' privilege might subject him to sanction by the trial court.

In support of his argument, Sikes cites only Brooks v. Alabama State Bar, 574 So.2d 33 (Ala.1990), which did not involve a discovery dispute in a trial court. Rather, in that case, a district attorney was charged by the Disciplinhry Commission of the Alabama State Bar with violating the Code of Professional: Conduct regarding extrajudicial statements she had made while prosecuting a criminal action. Our supreme court stated that, at the time she niade those statements, the district attorney could have reasonably relied on case-law holding that such statements by a district attorney were not subject to discipline by the Disciplinary Commission, and it noted that an amendment to the Code of Professional Conduct that prohibited her statements was made two months after, the district attorney had made the statements at issue. 574 So.2d at 34. The court stated that “[d]ue process of law requires fair notice that one’s conduct is subject to law or regulation” and that, because she had not had such notice, the district attorney was not subject to discipline for the conduct at issue. Brooks, 574 So.2d at 34. The court explained:

‘The ex post facto principle applies to any activity in which a person engages with a reason to believe that it does not give rise to a particular penalty. This additional protection comes not from the ex post facto constitutional prohibition itself but from the “due process” clause of the Fifth amendment, which incorporates the same concept for judicial interpretations and holds that they rise to the level of a guaranty. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).’ ”

Brooks, 574 So.2d at 34 (quoting United States v. Hayes, 703 F.Supp. 1493, 1502 (N.D.Ala.1989)).

We agree with Sikes that, as a part of its February 10, 2016, ruling, the trial court appears to have believed that the motion he filed on Caplan’s behalf, seeking to have the trial court declare that Benator and Fleet had waived their attorney-client-privilege claim, had been filed after the January 19, 2016, hearing.' That conclusion, however, is called into question by the trial court’s denial of the motion to reconsider the sanction order, in which that possible mistake was pointed out to the trial court. Regardless, Sikes has not cited to this court any authority for the proposition that the trial court could enter a sanction against him for vexatious discovery practices only after a warning, whether by a written order or an oral instruction from the trial court, that further vexatious discovery requests might result in a sanction.

Further, we disagree with Sikes that the trial court relied solely on his violation of the oral warning provided during the January 19, 2016, hearing in reaching its decision to sanction Sikes. In the February 10, 2016, order, the trial court noted that it had already ruled on Caplan’s discovery requests and had denied her second set of requests for similar information, that it had been called upon multiple times to rule again on that issue, that' Benator had. objected for a third time to- Caplan’s discovery requests, and that' it had before it Fleet’s motion for sanctions. We -note that, in the motion requesting that sanctions be imposed against Sikes', Fleet’s attorney argued that Sikes had shown a blatant disregard for the trial court’s earlier rulings and that Sikes’s repeated attempts to obtain the information the trial court had ruled was subject to the attorney-client privilege had increased the litigation costs for Fleet and Benator. Sikes has cited no authority indicating that the trial court could not rule on that motion for sanctions in the absence of a prior oral or written warning, and, under the facts of this case, we conclude that no such warning was necessary. Although we agree with Sikes that an, attorney has an obligation to diligently represent his or her client, Sikes’s repeated discovery requests, motions to compel, and the request to deem the privilege waived, all asserted on behalf of Caplan, were clearly efforts to circumvent the trial court’s August 18, 2015, ruling. See, e.g., Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 106 (Ala.1981) (“A party may both take depositions and propound written interrogatories, as long as he is not trying to circumvent a ruling by the trial court, or to harass or oppress the adverse party.”).

Sikes was required to demonstrate that he has a clear, legal right to the relief he seeks in this court.

“This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet, certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the . standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).”

Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).

“[T]he trial court is vested with broad and considerable discretion in managing the discovery process.” Ragan v. Blazon Flexible Flyer, Inc., 590 So.2d 882, 883 (Ala.1991). In this case, given the entirety of the circumstances, we cannot say that Sikes has demonstrated that the trial court abused its broad discretion such that he has shown a clear, legal right to a writ of mandamus. Ex parte Flint Constr. Co., supra. Accordingly, we deny the petition for a writ of mandamus.

PETITION DENIED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

DONALDSON, J., concurs specially.

DONALDSON, Judge,

concurring specially.

I concur fully in the main opinion. The petitioner, Griffin Sikes, Jr., does not argue that the amount of the sanction is unreasonable or punitive in nature, but I write specially to note that a trial court’s sanctions against a party or an attorney for vexatious conduct in discovery cannot be punitive but “must be proportional to, and compensatory of, the discovery abuse committed.” Ex parte Seaman Timber Co., 850 So.2d 246, 257 (Ala.2002). See Rule 37(a)(4), Ala. R. Civ. P. (providing that an order regarding a motion to compel discovery requires the payment of reasonable expenses, including attorney fees, the prevailing party incurred in pursuing or opposing the motion).

      . Sikes filed a notice of appeal in this court, and after the record was completed, this court decided to treat the notice of appeal as a petition for a writ of mandamus.

      . The record indicates that the Hartley attorneys had represented the estate in an action in the Montgomery Probate Court but that those attorneys had withdrawn from that representation on June 10, 2015.

      . That allegation actually listed "Ms. Caplan" in place of Fleet’s name, but it is clear from the context of the allegation that the use of Caplan’s name at the beginning of the statement was a clerical error. •

      . For example, with regard to one part of the interrogatories, Caplan specified that the "privilege log” she requested set forth, for each claimed privileged communication, the following information:
      “a. a clear, definitive description of what the document is and the number of pages it contains;
      "b. the date it was created or written;
      "c. the name, address and employer of the author of the document, or the person maldng the recording, or taking the statement or the like;
      "d. all of the subjects or topics addressed in the document;
      "e. the persons to whom the document is addressed;
      "f. the persons who are indicated thereon as having received copies or who in fact received a copy of the document;
      "g. the name, address, job title, and employer of all of the persons known or believed to have received or seen the document or any copy or summary thereof;
      "h. the purpose for which the document was created and transmitted;
      "i, any other facts relevant to the elements of the particular privilege asserted or that would bear on the validity of any claim of privilege.”

      . We interpret this heading as impermissibly seeking review of the discovery rulings. One of the bases that can warrant mandamus review of a discovery order is a trial court’s refusal to allow a party to make a record of the alleged discovery error; our supreme court has explained:
      "Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) (‘Mandamus disrupts the trial proceedings, forcing the parties to address in an appellate court issues that otherwise might have been resolved as discovery progressed and the evidence was developed at trial.’). In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001) (Tf a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal.’); (b) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party, see, e.g., Ex parte Compass, 686 So.2d 1135, 1138 (Ala.1996) (request for ‘every customer file for every variable annuity’ including annuity products the plaintiff did not purchase); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court imper-missibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case—that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992).”

        Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813-14 (Ala.2003) (footnote omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte T.M. (In re T.M. v. Limestone County Department of Human Resources and J.L.).
    2150684.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      Michael C. Lambert of Lambert Law Firm, LLC, Athens, for petitioner.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for respondent Limestone County Department of Human Resources.
    Lemesia N. Pearson, Decatur, for respondent J.L.
   PER CURIAM.

T.M. (“the mother”) petitions this court for a writ of mandamus directing the Limestone Juvenile Court (“the juvenile court”) to vacate its orders awarding custody of G.T., R.T., A.T., and J.T. (“the children”) to J.L. (“the father”). We deny the petition.

Procedural History

The mother and the father are married, but they are living apart. The father has filed an action for a divorce (“the divorce action”) against the mother that is pending in the Limestone Circuit Court. An affidavit executed by a representative of the Limestone County Department of Human Resources (“DHR”) indicates that, on January 22, 2016, DHR instituted a safety plan pursuant to which the children were removed from the home of the mother and placed in the care of various relatives. However, by April 25, 2016, those relatives had informed DHR that they could no longer care for the children. Therefore, DHR filed separate petitions in the juvenile court alleging that the children were dependent. The same day the petitions were filed, the juvenile court entered separate ex parte orders directing DHR to immediately take custody of the children. Those orders specified that the juvenile court would conduct “a seventy-two (72) hour hearing.”

After the scheduled hearing, the juvenile court, on May 10, 2016, entered separate, but substantially identical, orders, stating, in pertinent part:

“The Court ... discussed with the parties the jurisdictional issues with this case as there is a pending divorce action between the parties in the Limestone County Circuit Court. The Court informed the parties that the juvenile court has emergency jurisdiction over the [children] due to the summary removal of the child[ren] by [DHR], and that this court is authorized to enter a temporary emergency order under the dependency statute. The Court also informed the parties that the juvenile court does not serve as the court to determine final custody of the minor children], and that those issues will be addressed by the circuit court.
“Sworn testimony was presented.... Upon consideration of the testimony presented, it is, therefore,
“ORDERED, ADJUDGED and DECREED BY THE COURT that temporary legal and physical custody of [the children] is. hereby vested in [the father].
“It is FURTHER ORDERED, ADJUDGED and DECREED that visitation between the mother and the minor child[ren] shall be arranged through the Individualized Service Plan (ISP) for the family, and that said visitation shall be supervised unless the ISP team agrees otherwise.
“ít- is FURTHER ORDERED BY THE COURT that the dependency hearing in this case shall be conducted on the 21st day of June, 2016, at 9:00 a.m.”

(Capitalization in original.)

! The mother filed her petition for a writ of mandamus with this court on May 16, 2016. In her petition, the mother argues that the juvenile court lacked jurisdiction to ■ award custody of the children to the father and that the juvenile court did not use the correct legal standard in making its custody determination.

Standard of Review

The juvenile court awarded the father -custody of the children, subject to further proceedings, without adjudicating their .dependency. This court reviews such interlocutory orders by way of a petition for a writ of mandamus. See T.C. v. Mac.M., 96 So.3d 115 (Ala.Civ.App.2011), aff'd, Ex parte T.C., 96 So.3d 123 (Ala.2012).

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995); see also Ex parte State Dep’t of Human Res., 47 So.3d 823, 829 (Ala.Civ.App.2010).

Discussion

“Subject to two exceptions, when a circuit court acquires jurisdiction regarding an issue of child custody pursuant to a divorce action, it retains jurisdiction over that issue to the exclusion of the juvenile court.. C.D.S. v. K.S.S., 963 So.2d 125, 129 (Ala.Civ.App.2007); Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992). Those two exceptions are: 1) when emergency circumstances exist that threaten the immediate welfare of the child; and 2) when a separate dependency action is instituted. M.P. v. C.P., 8 So.3d 316 (Ala.Civ.App.2008).”

AG. v. Ka.G., 114 So.3d 24, 26 (Ala.2012), In this case, while the divorce action was pending, DHR filed separate dependency petitions regarding the children and the juvenile court determined that emergency circumstances existed requiring it to provide for the immediate custody of the children. Thus, both exceptions apply, and the juvenile court, having exclusive jurisdiction over dependency actions, see Ala. Code 1975, § 12-15-114(a), and the am thority to issue emergency custody orders, see Ala.Code 1975, § 12-15-138, could award the father “temporary” custody of the children despite the pending divorce action.

The mother asserts that the juvenile court merely awarded the father pendente lite custody “in an identical way” as a domestic-relations court could based on the best interests of the children. However, the mother does not cite any materials to support that assertion. In its orders, the juvenile court does not expressly state the legal standard it employed, but it did indicate that it was relying on its authority to enter a “temporary emergency order under the dependency statute.” Section 12-16-138, Ala.Code 1976, provides that a juvenile court, “at any time after a dependency petition has been filed, or on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child subject to the proceeding.” Thus, by implication, the juvenile court determined that it was placing the children with the father in order to protect their health and safety due to emergency circumstances. Because the materials before this court do not support the premise of the mother’s argument, we do not decide whether the juvenile court would have erred in awarding custody to the father based on the best interests of the children.

The mother has not shown a clear legal right to the relief she is requesting; therefore, her petition is denied.

PETITION DENIED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.


author: THOMPSON, Presiding Judge.

text:
    Ex parte Jennifer Ann HOLLOWAY (In re Michael Gordon Holloway v. Jennifer Ann Holloway).
    2150821.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      G. John Durward, Jr., of Durward & Durward, Birmingham, for petitioner.
    William E. Swatek, Pelham, for respondent.
   THOMPSON, Presiding Judge.

On October 23, 2015, Michael Gordon Holloway (“the father”) filed in the Jefferson Circuit Court (“the trial court”) a complaint seeking a divorce from Jennifer Ann Holloway (“the mother”). In that complaint, the father also sought, among other things, an award of custody of the parties’ minor son, who was born on September 20, 2015. In his complaint, the father alleged that the parties married on October 18, 2014, and that they separated on June 29, 2015.

In a separate motion for pendente lite relief, also filed on October 23, 2015, the father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Neither the father’s complaint for a divorce nor his motion for pendente lite relief set forth the date on which the mother left Alabama to live in Mississippi or in which state the child was born.

On November 19, 2015, the mother filed in the trial court an “answer, counterclaim, and motion to dismiss.” In that pleading, the mother alleged that the child had been born in Mississippi and had lived in Mississippi since his birth. Therefore, the mother argued, Alabama was not the child’s home state and the trial court could not exercise jurisdiction over issues pertaining to child custody; the mother cited provisions of Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-8B-101 et seq., Ala.Code 1975. Accordingly, the mother moved to dismiss that part of the father’s complaint that sought to litigate the issue of child custody in the trial court. The mother did not dispute the trial court’s jurisdiction to divorce the parties and to divide their marital property.

In response to the mother’s answer, counterclaim, and motion to dismiss, the father filed a “verified response,” in which he stated that he and the mother had been residents of Alabama when he filed the divorce complaint, that he had believed the mother’s move to Mississippi was temporary, and that the mother was not a resident of Mississippi. The father also submitted a copy of a Mississippi statute governing Mississippi’s jurisdiction to grant a divorce.

The mother then, on January 15, 2016, filed in the trial court a verified motion to dismiss the father’s child-custody claims. In that verified motion to dismiss, the mother stated, in short, that the child had been born in Mississippi and that the child had resided with her in Mississippi since his birth. In addition, the mother stated that a custody and child-support action was pending in the Chancery Court of Madison County, Mississippi (“the Mississippi court”); the mother argued that the Mississippi court had jurisdiction over the issues of custody and child support because, she said, Mississippi was the child’s home state under the UCCJEA. The mother amended the verified motion to dismiss on February 12, 2016, to submit to the trial court a copy of a pendente lite order of the Mississippi court in which that court determined, among other things, that it had jurisdiction over the issue of the custody of the child.

The father responded to the amended verified motion to dismiss by submitting a copy of a verified motion to dismiss that he had filed in the Mississippi court. In that motion filed in the Mississippi court, the father had argued that the mother had not been a resident of Mississippi for six months before she filed the custody action in the Mississippi court; the father did not address the issue of the Mississippi court’s jurisdiction over the child. However, in his response to the mother’s amended verified motion to dismiss filed in the trial court, the father argued that, by failing to communicate with the trial court, the Mississippi court had not complied with the requirements of the UCCJEA and that, therefore, the Mississippi pendente lite order was void for that reason.

The trial court set the jurisdictional dispute for a March 8, 2016, hearing at which it considered the arguments of the parties’ attorneys. Thereafter, each party filed a brief in support of his or her position on the issue of whether the trial court had jurisdiction over the child-custody issue.

On June 8, 2016, the trial court entered two orders. In the first order, the trial court found that it had subject-matter jurisdiction over the child-custody issue. In its second June 8, 2016, order, the trial court denied the mother’s motion to dismiss that part of the father’s divorce complaint pertaining to the issue of child custody. The mother timely filed a petition for a writ of mandamus challenging the trial court’s June 8,2016, orders.

“ ‘[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Johnson, 715 So.2d 788, 785 (Ala.1998)).
“ ‘ “ ‘A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.””
“Ex parte Punturo, 928 So.2d 1030, 1033 (Ala.2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)). ‘Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.’ 928 So.2d at 1033 (citing Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala.Civ.App.1986)). ‘A judgment issued by a trial court without jurisdiction is a nullity.’ 928 So.2d at 1034 (citing Ex parte Hornsby, 663 So.2d 966 (Ala.1995)).”

Ex parte Siderius, 144 So.3d 319, 323 (Ala.2013).

A circuit court or juvenile court in Alabama may not address an issue of child custody unless the court has jurisdiction under the UCCJEA to make an initial custody determination. B.N. v. Madison Cty. Dep’t of Human Res., 151 So.3d 1115, 1119 (Ala.Civ.App.2014), Section 30-3B-201, Ala.Code 1975, provides:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).

“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

Under the UCCJEA, the term “home state” is defined as follows:

“Home state. The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term, means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

§ 30-3B-102(7), Ala. Code 1975 (emphasis added).

With regard to the home state of a child who is less than six months old at the time a child-custody claim is asserted, this court has stated:

“Generally, a state secures the status of ‘home state’ if a child has lived in that state with a parent or a person acting as a parent for a period of six months preceding the commencement of a child-custody proceeding. § 30-3B-102(7). Pursuant to its definition, the- term ‘home state’ is expressly applied to children less than six months of age, and the requirement that the child live in a state for at least six months preceding the commencement of a child-custody proceeding is relaxed to make the home state that state % which the child lived from birth with [a parent or a person acting as a parent].’ Id.”

Gray v. Gray, 139 So.3d 802, 806 (Ala.Civ.App.2013).

In Gray v. Gray, supra, the father in that case had commenced a child-custody action in Alabama before the child was born. This court held that, under the UCCJEA, an unborn child does not have a home state and that the determination of the child’s home state is necessarily deferred until his or her birth. 139 So.3d at 808. The child in that case was born in Michigan and lived in Michigan with the mother following his birth. This court concluded that Alabama was not the child’s home state such that an Alabama court could exercise jurisdiction over the custody dispute; this court explained:

“The undisputed evidence before the Alabama trial court is that the child was born in Michigan and that the child has lived since birth with the mother in Michigan. Thus, the child’s home state is Michigan, and the Alabama trial court lacks subject-matter jurisdiction under § 30-3B-201(a)(l) to make an initial child-custody determination regarding the child.”

Gray v. Gray, 139 So.3d at 808.

In another case, this court stated:

“We agree with the Supreme Court of Illinois’s construction of the statute and determine that the drafters of the UC-CJEA intended ‘lived - from birth’ to mean where a child, with a parent or a person acting as a parent, has a presence—beyond simply a hospital stay attendant to giving birth in a state—such as residing within or occupying a home together.”

H.T. v. Cleburne Cty. Dep’t of Human Res., 163 So.3d 1054, 1065 (Ala.Civ.App.2014).

It is undisputed that the child at issue in this case was born on September 20, 2015, in Mississippi, and that the child has remained with the mother in Mississippi since that time. Thus, at the time the father filed his divorce complaint containing a claim for custody in the trial.court, the child was a “child less than six months of age,” § 30-3B-102(7), and had resided in Mississippi from the tinie of his birth with a parent, i.e., the- mother. Considering the definition of “home state” contained in the UCCJEA,. as well as Alabama caselaw, it is clear that, upder the facts of this case, Mississippi is the child’s home state. Therefore, the trial court never acquired subject-matter jurisdiction oyer the child-custody claim asserted in the father’s divorce complaint. Ex parte Siderius, supra.

We note that, in addition to the primary argument in her brief submitted in support of her petition for a writ of mandamus, the mother argues that the trial court also erred under the UCCJEA when it failed to communicate with the Mississippi court concerning the two competing custody actions. The UCCJEA addresses simultaneous child-custody actions pending in courts of different states as follows: . -

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state may not exercise its jurisdiction under [the UCCJEA] if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [the UC-CJEA] unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 30-3B-207.
“(b) Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [the UCCJEA], the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with [the UCCJEA] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.”

§ 30-3B-206, Ala.Code 1975.

The trial court was made aware of the mother’s custody action pending in the Mississippi court. Section 30-3B-110, Ala. Code 1975, governs communications between courts and requires that a record be made of any such communication and that the parties be informed of the communication. The materials submitted to this court in support of the mother’s petition for a writ of mandamus contain no indication that the trial court communicated with the Mississippi court, and the arguments of the parties in their briefs submitted to this court tend to indicate that no such communication took place. It is clear that the UCCJEA required the trial court to communicate with the Mississippi court. This issue, though, is not dispositive. However, although we do not grant the mother’s petition for a writ of mandamus based on her argument on this issue, we surmise that had the trial court contacted the Mississippi court in accordance with § 30-3B-206, after it became aware of the Mississippi custody action, that communication might have resulted in the trial court’s reaching the correct conclusion that Alabama was not the home state of the child, thereby decreasing the time the child is affected by a pending custody action and lessening the expense of litigation for the parties.

The trial court’s June 8, 2016, order determining that it could exercise jurisdiction over the issue of child custody is a nullity. Ex parte Siderius, supra. Further, we agree with the mother that the trial court erred in denying her motion to dismiss the father’s custody claim, and, therefore, we grant her petition for a writ of mandamus and direct the trial court to vacate its June 8, 2016, order denying that motion to dismiss.

PETITION GRANTED; WRIT ISSUED.

PITTMAN and DONALDSON, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . We note that "[b]oth Alabama and Mississippi have adopted the UCCJEA. See § 30-3B-101 et seq., Ala.Code 1975, and Miss.Code Ann., § 93-27-101 et seq.” J.H. v. C.Y., 161 So.3d 233, 238 (Ala.Civ.App.2014). “The corresponding Mississippi codification of the UC-CJEA is essentially the same as the Alabama version. See, e.g., Miss.Code Ann., § 93-27-201 (differing from § 30-3B-201 only in its references to other statutory sections).” Id.

      . The Mississippi court found that the child had visited Oklahoma for one week during the Christmas holidays.

      . In his response to the mother's petition for a writ of mandamus, the father cursorily asserts that it was the duty of the Mississippi court to contact the trial court. The father cites no supporting authority for that assertion.


author: DONALDSON, Judge.

text:
    Ex parte Trista Lynn Hamm ROGERS. (In re Robert I. Rogers III v. Trista Lynn Hamm Rogers).
    2150828.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      David W. Langston of Harris, Caddell & Shanks, P.C., Decatur, for petitioner.
    Jeffrey L. Bowling of Bedford, Rogers & Bowling, P.C., Russellville, for respondent. . .
    Judge Terry L. Dempsey filed answer.
   DONALDSON, Judge.

Trista Lynn Hamm Rogers (“the former wife”) petitions, this court for the writ of mandamus directing Judge Terry Dempsey, judge of the Franklin Circuit Court (“the trial court”), to grant her motion to recuse himself from further presiding over the underlying case. For the reasons set forth below,, we deny the former wife’s petition.

Background

.On January 9, 2014, Robert I. Rogers III (“the former husband”) filed a complaint in the trial court seeking a divorce from the former wife. The trial-court clerk docketed the case as circuit-court case number DR-14-900007 (“the divorce case”), and the case was assigned to Judge Dempsey. The former wife filed a motion requesting Judge Dempsey to recuse himself from the divorce case. Although the former wife’s motion has not been submitted with the petition for a writ of mandamus, the body of the motion was included in other documents that the parties have provided this court. According to those documents, the former wife’s motion for recusal in the divorce case stated as follows:

“a. [The former husband] is the son of Bob Rogers, a practicing attorney who has been active in the Franklin County legal community for in excess of thirty-five years.
“b. While [the former wife] would never question the impartiality of Judge Dempsey, it is anticipated that this case will go to trial over the custody issue. It is also anticipated that [the former husband’s father] will likely be called upon to testify on behalf of [the former husband].
“c. [The former wife] has concern that if [the former husband’s father] testifies on [the former husband’s] behalf that it might put the Court in an awkward position as it concerns deciding custody of the minor children.
“d. Because this Court knows [the former husband’s father] personally and due to his standing in the legal community and his likelihood of testifying on behalf of [the former husband], [the former wife] would respectfully ask that Judge Dempsey recuse himself from this matter and that the case be reassigned to an out of circuit judge for hearing.”

On May 6, 2014, Judge Dempsey granted the former wife’s motion and recused himself from the divorce case in a written order, stating in part:

“[T]he ends of justice require an appointment of another judge to preside over the proceedings of this case due to a conflict of interest. The undersigned, being the Circuit Judge of the 34th Judicial Circuit must recuse from further participation in the above referenced case, and requests the Administrative Office of Courts arrange the appointment of another judge to preside in this cause.”

On May 28, 2014, the chief justice of our supreme court entered an order appointing Judge Dennis O’Dell, judge of the Madison Circuit Court, to hear the divorce case.

On June 17, 2015, Judge O’Dell entered a final judgment of divorce incorporating a settlement agreement of the parties. Pursuant to the settlement agreement, the former wife and the former husband received joint custody of the parties’ two minor children, and neither party was ordered to pay child support. Neither party appealed from the judgment entered in the divorce case.

On or about June 14, 2016, the former husband filed a complaint in the trial court seeking to modify the custody and child-support provisions of the divorce judgment and to hold the former wife in contempt for violating certain provisions of the divorce judgment. The trial-court clerk docketed the former husband’s complaint as circuit-court ease number DR-14-900007.01 (“the postdivorce case”). The postdivorce ease was assigned to Judge Dempsey. On July 1, 2016, the former wife filed a motion in the postdivorce case requesting Judge Dempsey to recuse himself from that case. The former wife stated in the motion:

“1. [The former husband] is the son of ... a 40 year practicing attorney in Russellville, Franklin County, Alabama.
“2. The parties herein were divorced by way of the Judgment of Divorce entered on June [17], 2015. In that matter this Honorable Court recused itself from the case and the Supreme Court of Alabama reassigned the case to the Honorable Dennis O’Dell. The same facts supporting this Court’s decision to re-cuse at that time are once again present.
“3. While [the former wife] certainly does not question the impartiality of this Court it is once again certain that [the former husband’s father] will .be intimately involved in this matter and will most certainly be a witness in the case. In the original divorce action [the former husband’s father] attended the parties’ mediation and was very closely involved in the decision making process for his son. Even if he does not testify, he will be very closely involved with his son’s case.
“4. Once again [the former wife] has concern that [the former husband’s father’s] involvement in this matter will place the Court in an awkward position in deciding the merits of the ■ petition.
. “5. Because this Court knows [the fonner husband’s father] personally and because of his standing in the legal community and his intimate involvement in this case [the former wife] would respectfully move Judge Dempsey to re-cuse himself from this matter and that it be reassigned to an out of circuit judge for hearing.”

Judge Dempsey entered an order in the postdivorce case on July 5, 2016, denying the motion for recusal without any explanation.

On July 11, 2016, the former wife filed a petition for a writ of mandamus in this court seeking an order directing Judge Dempsey to recuse himself from the post-divorce case. This court called for answers. Judge Dempsey filed an answer on July 14, 2016. The former husband filed an answer on July 25, 2016.

Standard of Review

“A petition for the writ of mandamus is the usual method by which to seek review of a trial judge’s denial of a recusal motion. See Ex parte Crawford, 686 So.2d 196, 198 (Ala.1996) (holding that a trial judge’s denial of a recu-sal motion can be challenged on appeal or in a petition for a writ of mandamus). ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: (1) a' clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ Ex parte P & H Constr. Co., 723 So.2d 45, 47 (Ala.1998) (quoting Ex parte United Service Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘The burden of proof is on the party seeking recusal.’ Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994), abrogated on other grounds by Crawford, 686 So.2d at 198.”

Ex parte Dooley, 741 So.2d 404, 405 (Ala.1999).

Discussion

Canon 3(C)(1), Alabama Canons of Judicial Ethics, provides, in pertinent part, as follows:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

In her mandamus petition, the former wife contends that, because Judge Dempsey re-cused himself from the divorce, case, he is prohibited by law from taking any action in the postdivorce case. She also contends that, because the circumstances that required his recusal in the divorce case purportedly persist in the postdivorce case, his impartiality might reasonably be questioned if he was to hear the postdivorce case or his hearing the case might result in an appearance of impropriety. Therefore, the former wife contends, she is entitled to a writ of mandamus directing Judge Dempsey to enter an order recusing himself from the postdivorce case.

I. Whether Disqualification was Required by Law

We first address the former wife’s argument that, as a matter of law, Judge Dempsey’s recusal in the divorce case precludes him from taking action in the post-divorce case. Our supreme court has held that, “in order to avoid the appearance of impropriety, ... after a judge presiding in a particular case has been disqualified from hearing that case, under the Canons of Judicial Ethics, either voluntarily or by objection, he or she can take no further action in that case.... ” Ex parte Jim Walter Homes, Inc., 776 So.2d 76, 80 (Ala.2000).

The former wife takes the position that the divorce case and the postdivorce case are the same case because both cases involve the same parties and substantially the same issues, i.e., child custody and child support. The former wife contends that, pursuant to the holding in Jim Walter Homes, Judge Dempsey is precluded from taking any action in the postdivorce case because he had recused himself from the divorce case. Therefore, we must determine whether the postdivorce case was a continuation of the divorce case or whether the former husband’s initiation of the postdivorce ease constituted the filing of a new action.

“The filing of a petition to modify a domestic-relations judgment is, for purposes of applying the rules of procedure, treated as the filing of a separate action.” Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000). “[A] petition to modify is a separate action that requires a proper filing, the payment of a filing fee, and service.” Farmer v. Farmer, 842 So.2d 679, 680 (Ala.Civ.App.2002)(citing Davidson, supra). “A proceeding to modify a final decree, such as a decree of divorce concerning monthly alimony payments, child support and child custody on the basis of a change of circumstances since the final decree, is a case within the meaning of the words ‘cases filed’ in § 12-19-71, [Ala.] Code 1975.” Opinion by the Clerk, No. 25, 381 So.2d 58, 59 (Ala.1980).

Thus, the former husband’s filing of the complaint seeking modification and enforcement of the divorce judgment initiated a new cause of action. The former husband paid a filing fee, the former wife was served with the summons and the complaint seeking modification and enforcement, and the trial-court clerk assigned the complaint a new case number containing a “.01” designator. Although the parties in both actions are identical, the postdivorce case is a separate and distinct action from the divorce case. Accordingly, Judge Dempsey was not automatically precluded by law under Jim Walter Homes from taking any action in the postdivorce case.

II. Impartiality

The former wife contends that she is entitled to a writ of mandamus directing Judge Dempsey to recuse himself from the postdivorce case on the basis that, under Canon 3(C)(1), Judge Dempsey’s impartiality might reasonably be questioned because, she argues, the circumstances necessitating his recusal in the divorce case persist in the postdivorce case.

“[A]ctual bias is not necessary for a judge to recuse—only a reasonable appearance of bias or impropriety.” Crowell v. May, 676 So.2d 941, 944 (Ala.Civ.App.1996).

“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: Would a person of ordinary prudence in the judge’s position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?’ Matter of Sheffield, 466 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).”

Ex parte Duncan, 638 So.2d 1332, 1334 (Ala.1994). Furthermore,

“‘[a] mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge.’ Ex parte Melof, 553 So.2d [554] at 557 [ (Ala.1989) ] (emphasis omitted). Prejudice on the part of a judge is not presumed. Hartman v. Board of Trs. of the Univ. of Alabama, 436 So.2d 837, 841 (Ala.1983); Duncan v. Sherrill, 341 So.2d 946, 947 (Ala.1977); and Ex parte Rives, 511 So.2d 514, 517 (Ala.Civ.App.1986). ‘“[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.’ ” Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987) (quoting Fulton v. Longshore, 156 Ala. 611, 613, 46 So. 989, 990 (1908)).”

Baldwin v. Baldwin, 160 So.3d 34, 37 (Ala.Civ.App.2014).

“Judicial disqualification provisions typically do not prescribe the scope of disqualification, and courts have been reluctant to hold that a judge who is disqualified from presiding over a proceeding is forever barred from sitting in unrelated cases involving the same parties or counsel.”

Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 22.9, p. 663 (2d ed.2007)(footnotes omitted).

In the divorce case, the former wife filed a motion for Judge Dempsey recuse himself on the bases that the former husband’s father is a licensed attorney who has practiced law in Franklin County over several decades, that the former husband’s father was expected to be a witness, and that Judge Dempsey knows the former husband’s father personally. Judge Dempsey entered an order of recusal in the divorce case stating generally that “the ends of justice requirefd]” his recusal from that case. In her petition to this court, the former wife contends that Judge Dempsey’s recusal is necessary in the postdi-vorce case because, as in the divorce case, the former husband’s father is a potential witness and the former husband’s father “remains influential in his son’s life and in his son’s decision making process.... ” The former wife also contends in her petition that the former husband’s father has “longstanding influence in the Franklin County legal community and most assuredly has some relationship with Judge Dempsey.” She contends that, because the circumstances that resulted in Judge Dempsey’s granting her motion to recuse .himself in the divorce case persist in the postdivorce case, Judge Dempsey should be required to recuse himself in the postdi-vorce case to avoid the appearance of impropriety.

In support of her position, the former wife cites Ex parte Balogun, 516 So.2d 606 (Ala.1987). At issue in Balogun, a case involving a divorce, was whether the trial judge had shown bias or impartiality by turning over to law enforcement certain documents that had been marked for identification at trial and that “allegedly [involved one of the parties], the Macon County Dog Track, and unethical or criminal conduct....” 516 So.2d at 608. The party allegedly implicated by the documents argued that the trial judge had indicated bias by turning over the documents to the law-enforcement agencies and requested that the trial judge recuse himself from the case. Id. On the advice of the Judicial Inquiry Commission (“JIC”), the trial judge denied the motion to recuse on the basis that the disclosure of the documents to law enforcement would not appear to impact his impartiality. Id. Our supreme court agreed “that merely turning over the documents to the law enforcement agencies was insufficient to meet the burden on petitioner to prove ‘substantial bias.’” Id. at 610, The supreme court, however, noted that the trial judge had recused in two previous cases involving the Macon County Dog Track (“the dog track”). _ Id. The supreme court quoted directly from the trial judge’s order recus-ing himself from the two previous cases in which the trial judge acknowledged that he had been involved with the issue of legalized dog racing in both a legal and political context and that his position on the issue had been publically known. Id. The supreme court held that it was unnecessary to find actual bias of the trial judge in view of the reasons stated in the recusal order, because, the supreme court stated, .

“[h]is own refusal to hear two prior cases involving the ... dog track due to his prior involvement in both the political and legal aspects of the issue, as well as his known public position on the issue, are sufficient. -We simply conclude that the facts are such that a person of ordinary prudence could reasonably question [the trial judge’s] impartiality. See Bryars v. Bryars, 485 So.2d 1187 (Ala.Civ.App.1986). ‘ Based on [the trial judge’s] past conduct of recusing himself and his own words, we conclude that petitioner’s burden of proof is met.”

Id.

The circumstances in. the present casé, however, differ from those in Balogun. In Balogun, the supreme court concluded that a reasonable person could question the trial judge’s impartiality- to hear the subsequent case not only because of his previous recusals from two cases in-which the dog track was a party but also because the-trial judge had made written statements in those cases that he had taken a public position on issues involving the dog track. We note that, in the present case, there is no evidence indicating that Judge Dempsey has made public comments, regarding either party or about the'former husband’s father, has expressly or impliedly shown any bias for or against either party, or has acted or failed to act in any manner that would give the appearance of impropriety. !

“[A] judge’s recusal in a prior case involving a party is not alone sufficient for disqualification in. a later case involving that party.” Communities for Equity v. Michigan High Sch, Athletic Ass’n, 459 F.3d 676, 699 (6th Cir.2006)(summarizing the holding in Person v. General Motors Corp., 730 F.Supp. 516, 518-19 (W.D.N.Y.1990)), The party moving for recusal of the trial judge must still present substantial evidence showing that it is “ ‘reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.”’ Ex parte Duncan, 638 So.2d at 1334 (quoting Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)). A person of ordinary prudence could recognize that the circumstances and conditions that required a judge to recuse himself or herself in a case might not be present or applicable in a subsequent case involving the same party or parties. A reasonable, prudent person could understand that the passage of time could mitigate or completely alleviate the circumstances or conditions that required the judge to recuse himself or herself in the previous proceeding. See United States v. Balistrieri, 779 F.2d 1191, 1216 (7th Cir.1985)(holding that recusal in a subsequent case was not required when, after the passage of five years from the trial judge’s previous recusal in an earlier case involving a party, there was insufficient evidence indicating that the trial judge was actually biased against a party), overruled on procedural grounds by Fowler v. Butts, 829 F.3d 788 (7th Cir.2016). See also United States v. Merkt, 794 F.2d 950, 960 (5th Cir.1986)(holding that a trial judge who had recused himself in a previous case involving a party was not required to recuse himself in a subsequent case involving that party when the evidence failed to show that the trial judge’s impartiality might reasonably be questioned or that he had a personal bias or prejudice against either party in the subsequent case).

In the present case, Judge Dempsey did not explain the reason why the former wife’s motion for recusal in the postdivorce case was denied in the order entered on July 5, 2016. In his answer to the former wife’s petition for a writ of mandamus in this court, Judge Dempsey stated the following reasons for the denial:

“The Trial Court denied the Motion for Recusal in this case. The Trial Court previously recused from the original divorce. In the present action, approximately two years have passed since the original action. It is the Court’s understanding that it must assess the case to see if it should recuse again and cannot automatically recuse itself without consideration.
“The reason supporting the Motion for Recusal is that [the former husband] is the adult son of an attorney practicing before this trial judge. This attorney was practicing very little before the Court at the time of the original recusal. Two years have passed since the recusal and the attorney has very rarely been in Court. If there was a reason for recusal in the beginning, the passage of time has negated it in the Court’s opinion.”

Judge Dempsey also stated in his answer that his decision to deny the former wife’s motion for recusal was guided by advisory opinions of the JIC, which state that “the mere fact that a party to a proceeding is an attorney who regularly practices before the judge does not cause disqualification of the judge.” JIC Advisory Opinion No. 03-814 (May 2, 2003)(citing JIC Advisory Opinion No. 82-136 (April 8, 1992), and JIC Advisory Opinion No. 98-701 (June 6, 1998)). It follows that the mere fact that an attorney who had regularly practiced before a judge is related to a party to a proceeding does not require the recusal of the judge.

We conclude that, based on the materials submitted to this court, the former wife has not produced substantial evidence to sustain her burden of proving whether a reasonable person could question Judge Dempsey’s impartiality and whether there is an appearance of impropriety. Judge Dempsey, upon the filing of the former wife’s motion for recusal, properly considered whether recusing himself from the postdivorce case was necessary under Canon 8(C)(1). Judge Dempsey’s previous re-cusal in the divorce case, alone, is not sufficient to mandate his recusal in the postdivorce case. Judge Dempsey, as stated in his answer filed in this court, concluded that the circumstances that compelled him to recuse himself from the divorce case were no longer present in the postdivorce case. Furthermore, we note that the former wife’s motion for recusal filed in the postdivorce case stated only that the involvement of the former husband’s father in the postdivorce case might place Judge Dempsey in “an awkward position in deciding the merits of the petition.” The standard for recusal is not whether the trial judge will be placed in an awkward position, but “whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality—whether there is an appearance of impropriety.” Ex parte Duncan, 638 So.2d at 1334. The former wife has not presented sufficient evidence to meet this standard. “ ‘[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.’ ” Ex parte Balogun, 516 So.2d at 609 (quoting Fulton v. Longshore, 156 Ala. 611, 613, 46 So. 989, 990 (1908)).

Conclusion

“Mandamus will he to compel a judge’s recusal only when there is sufficient evidence to call into question the impartiality of the judge.” Ex parte Bank of Am., N.A., 39 So.3d 113, 120 (Ala.2009). Judge Dempsey was not precluded by Jim Walter Homes, supra, from taking action in the postdivorce case. Furthermore, because the evidence is not sufficient to call Judge Dempsey’s impartiality into question or to show the appearance of impropriety, so as to require recusal, the former wife has not shown a clear legal right to the writ of mandamus. Accordingly, we deny the former wife’s petition.

PETITION DENIED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . - Franklin County is located in the 34th Judicial. Circuit. § 12-11-2, Ala.Code 1975.- By law, the 34th Judicial Circuit is allotted one circuit judge. See § 12-17-20, Ala.Code 1975, Therefore, Judge Dempsey is the only circuit judge sitting in that circuit.


author: THOMAS, Judge.

text:
    Ex parte Ronny R. BONDS (In re Sherry L. Bonds v. Ronny R. Bonds).
    2150845.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      Donald R. Hamlin, Pell City; and Mark M. Lawson, Pinson, for petitioner.
   THOMAS, Judge.

Ronny R. Bonds (“the husband”) filed this petition for the writ of mandamus' to seek review of an order of the St. Clair Circuit 'Court (“the trial court”) denying the motion for a partial summary judgment that he had filed in a divorce action instituted in the trial court by Sherry L. Bonds (“the wife”). Although we ordered her to do so, the wife did not file an answer'to the husband’s petition.' The petition and its attachments establish the Mowing facts and procedural history.

In January 2012, the wife filed in the trial court a complaint seeking a divorce from the husband.- She sought, among other things, an award of alimony and a division- of the parties’ marital property, including the parties’ marital residence in Odenville and real property located in Georgia. She further requested that the husband be ordered to pay certain marital debts and her attorney fees.

In October 2012, the wife, who was then living in Georgia, filed in the- United States Bankruptcy Court for the Northern District of Georgia (“the bankruptcy court”) a petition for bankruptcy protection under Chapter 7 of the United' States Bankruptcy Code, 11 U.S.C. § 701 et seq. The wife failed to list the marital - residence or her claims for alimony and property division as potential assets or as pending claims in the schedules attached to her bankruptcy petition. At a creditor’s meeting in the bankruptcy court, the wife testified that she had deeded the marital residence to the husband in conjunction with a 2009 divorce action. She also stated that she was not owed any money and that she was not entitled to money from any source. In January 2013, the bankruptcy court discharged the wife from bankruptcy and her case was closed.

On January 31, 2013, the husband amended his answer in the divorce action to assert judicial estoppel, a lack of “standing,” and the failure to join the bankruptcy trustee as the real party in interest as affirmative defenses. He then filed a motion for a partial summary judgment on the wife’s claims for alimony and for the division of marital property and debts based on those affirmative defenses. The wife responded to the husband’s motion in April 2013 by notifying the court that the bankruptcy case had been reopened in March 2013 on her motion. The bankruptcy trustee was reappointed, and the wife amended her bankruptcy schedules to-include the marital residence as an asset and her claim for alimony as a potential claim.

The trial court held a hearing on the husband’s, partial-summary-judgment motion in October 2015. The wife submitted certain evidence in opposition to that motion in February 2016. On June 8, 2016, the trial court entered an order denying the husband’s partial-summary-judgment motion. The husband filed this petition for the writ of mandamus on July 18, 2016, seeking this court’s review of the denial of his motion for a partial summary judgment. We deny the petition.

“Generally, the denial of a motion for a summary judgment is not reviewable by a petition for a writ of mandamus.” Ex parte Griffin, 4 So.3d 430, 435 (Ala.2008). This is so “because ah ‘adequate remedy’ exists by way of an appeal....” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002); see also Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000) (“In all but the most extraordinary eases, an appeal is an adequate remedy.”). However, the rule that the denial of a motion for a summary judgment may not be reviewed on petition for the writ of mandamus is not without its exceptions, as,our supreme court has explained:

“This general rule is not without exceptions. See, e.g., Ex parte Alloy Wheels, 882 So.2d [819,] 822 [(Ala.2003)] (‘One of the exceptions is the denial of a motion grounded on' a claim of lack of personal jurisdiction....’); Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’); and Ex parte Snow, 764 So.2d 531, 537 (Ala.1999) (noting that ... the denial of a summary-judgment motion is reviewable by a petition for a writ of mandamus when the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying fictitiously named defendants). See also [Ex parte] Integon Corp., 672 So.2d [497,] 499 [ (Ala.1995) ] (holding that a petition for a writ of mandamus is the proper method for challenging a forum non conveniens ruling).”

Ex parte DaimlerChrysler Corp., 952 So.2d 1082, 1089 n. 1 (Ala.2006).

The husband cites Ex parte Jackson Hospital & Clinic, Inc., 167 So.3d 324, 326 (Ala.2014), in which Jackson Hospital & Clinic, Inc., and other medical defendants (referred to collectively as “Jackson”) and Joanne Anderson, the medical-malpractice plaintiff, both sought review of the grant of “a motion to substitute bankruptcy trustee Daniel G. Hamm for Anderson as the real party in interest pursuant to Rule 17, Ala. R. Civ. P., because Anderson had filed a petition for Chapter 7 bankruptcy.” Jackson and Anderson had both sought and been granted permission to appeal pursuant to Rule 5, Ala. R.App. P. Ex parte Jackson Hosp. & Clinic, 167 So.3d at 328. However, our supreme court indicated that it chose to treat the permissive appeals as petitions for the writ of mandamus, stating that

“upon further examination it is apparent that a petition for a writ of mandamus is the appropriate means by which to seek review of the issues they raise—whether Hamm timely moved to substitute himself as the real party in interest and whether Anderson should be allowed to proceed as the real party in interest regardless of her bankruptcy filing and initial failure to disclose her claim in those bankruptcy proceedings.”

Ex parte Jackson Hosp. & Clinic, 167 So.3d at 329 n. 1. The trial court in Ex parte Jackson Hospital & Clinic granted Jackson’s motion for a summary judgment in part and prevented Anderson from proceeding in the action; it also permitted Hamm to intervene and to be substituted as the plaintiff in Anderson’s place. Id. at 328. In its opinion, our supreme court considered the timeliness of the motion to substitute the bankruptcy trustee and the propriety of granting that motion and removing Anderson as plaintiff. Id. at 330-36. Thus, in Ex parte Jackson Hospital & Clinic, our supreme court reviewed the trial court’s grant of a motion removing the plaintiff and substituting as plaintiff the bankruptcy trustee.

We have found one other case involving both a petition for the writ of mandamus and the assertion that a party was not the real party in interest—Ex parte Tyson Foods, Inc., 146 So.3d 1041, 1043 (Ala.2013). In Ex parte Tyson Foods, our supreme court reviewed the grant of a motion to substitute a widow as the proper plaintiff in a wrongful-death action arising out of an employment-related death based on the real-party-in-interest doctrine and Rule 17, Ala. R. Civ. P. However, neither Ex parte Jackson Hospital & Clinic nor Ex parte Tyson involved the review of the denial of a motion for a summary judgment based on either judicial-estoppel grounds or the real-party-in-interest doctrine and Rule 17. Thus, we cannot agree that either of those cases stand for the proposition that the denial of a summary-judgment motion based on an argument that a party ⅛ not a real party in interest or that a party is judicially estopped from pursuing his or her claim is excepted from the general rule that the denial of a summary-judgment motion is not reviewable by a petition for the writ of mandamus.

The trial court in the present case denied the husband’s motion for a partial summary judgment seeking a judgment in his favor on the wife’s property-division and alimony claims based on the application of the doctrine of judicial estoppel. The husband has not demonstrated that this case falls within the limited exceptions to the rule that the denial of a summary-judgment motion is not reviewable by a petition for writ of mandamus. Accordingly, we deny the petition.

PETITION DENIED.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

      ," Because the wife did not file an answer to the husband’s- petition, we have accepted the ^averments of-fact stated-in the petition as true. See Ex parte Turner, 840 So.2d 132, 134-35 (Ala.2002) (stating that the respondent’s "failure to respond to the allegations in [the] petition for a writ of mandamus compels [the appellate court] to consider the aver-ments of fact in [the] petition as true”).

      . The parties were divorced before in 1973, and they remarried each other in 1983. The husband asserts that there was no divorce action instituted in 2009.

      .Our supreme court has explained that "once ' a bankruptcy petition has been filed, the bankruptcy trustee is the real party in interest . to all nonexempt lawsuits that are part of the debtor’s bankruptcy estate.” Hamm v. Norfolk Southern Ry. Co., 52 So.3d 484, 490 (Ala.2010) (emphasis added). Although the husband argues in his petition that the wife is "neither ... the real party in interest, nor does she have standing to pursue her monetary and equitable division claims,” he relies solely upon Hamm, which clearly holds only that the bankruptcy debtor is not the real party in interest. As explained by Justice Lyons in his opinion concurring specially in Hamm, "[¡Imprecision in labeling a party’s inability to proceed as a standing problem unnecessarily expands the universe of cases lacking in subject-matter jurisdiction." 52 So.3d at 499 (Lyons, J., concurring specially). Based on Hamm, we conclude that the wife's lack of “standing” is not at issue and thus cannot serve as a basis for seeking review of the . denial of the partiál-summary-judgment motion by a petition for writ of mandamus. See Ex parte HealthSouth Corp., 974 So.2d 288, 290 (Ala.2007) (considering a petition for a writ of mandamus challenging the denial of a summary-judgment motion based on an argument that the plaintiff lacked standing to bring the underlying .action).