text:
    EX PARTE James Keith LARRY
    1170099 (CR-16-0579)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE Ronald D. VETETO
    1170101 (2160668)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Milton HAMBRIGHT
    1170104 (CR-16-0679)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Sheldon POOLE
    1170112 (2160239)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE W.R.G.
    1170114 (CR-16-0461)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Raymond Dennis EARL
    1170116 (CR-16-0856)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Johnny JOHNSON
    1170121 (CR-16-0854)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.R.S.
    1170126 (CR-16-0791)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jack McDonald CALVERT
    1170137 (CR-16-0836)
    Supreme Court of Alabama.
    December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


author: BRYAN, Justice.

text:
    EX PARTE BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE
    (In re Spanish Fort Water System v. Board of Water and Sewer Commissioners of the City of Mobile )
    1170400
    Supreme Court of Alabama.
    August 31, 2018
    Andrew J. Rutens and Melissa P. Hunter of Galloway, Wettermark & Rutens, LLP, Mobile, for petitioner.
    George R. Irvine III of Stone Crosby, P.C., Daphne, for respondent.
   BRYAN, Justice.

The Board of Water and Sewer Commissioners of the City of Mobile ("the Board") petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to transfer the underlying case to the Mobile Circuit Court. Because we conclude that venue is proper in Mobile County, we grant the petition and issue the writ.

The Board is a public, governmental agency that does business as the Mobile Area Water and Sewer System, and its principal place of business is located in Mobile County. In 2000, the Board entered into an agreement with the Spanish Fort Water System ("SFWS"), in which the Board agreed to sell treated water to SFWS. SFWS provides water to the City of Spanish Fort, which is located in western Baldwin County close to neighboring Mobile County. To transport the treated water, the Board agreed to build and operate a connection between the two water systems. Over the years, the Board and SFWS entered into other agreements concerning the Board's sale of treated water to SFWS. A 2008 agreement between the parties contains a forum-selection clause providing that venue for any dispute between the parties would be proper only in Mobile County.

In 2011, SFWS sought to make capital improvements to its system. To fund the improvements, SFWS sought to obtain a loan from the United States Department of Agriculture ("the USDA"). As part of the loan process, the USDA required SFWS and the Board to enter into another agreement concerning the continuing sale of treated water from the Board to SFWS.

Thus, in 2011, SFWS and the Board executed a standard form contract provided by the USDA. The 2011 agreement is the first agreement between the parties since the 2008 agreement. In the 2011 agreement, as in the previous agreements, the Board agreed to sell treated water to SFWS. However, the 2011 agreement is shorter than the previous agreements, and some of the material terms are different from the earlier agreements. The 2011 agreement references the existence of the 2008 agreement in the recitals but does not discuss the 2008 agreement beyond that. Unlike the 2008 agreement, the 2011 agreement does not contain a forum-selection clause providing that venue is proper only in Mobile County.

In 2017, the Board increased the rates for the water that it sells SFWS. SFWS then sued the Board in the Baldwin Circuit Court, alleging that the Board had breached the 2011 agreement by raising the rates it charges for water. SFWS also alleged that the Board had unlawfully discriminated against SFWS by increasing the rates and that the Board was estopped from increasing the rates. The complaint also sought, under the Declaratory Judgment Act, § 6-6-220 et seq., Ala. Code 1975, a declaration of rights as between the parties and an injunction enjoining the Board from applying the increased rates.

The Board filed a motion to dismiss or, alternatively, to transfer the case to the Mobile Circuit Court. The Board asserted that venue is proper only in Mobile County, where the Board has its principal place of business. SFWS responded, arguing that venue is proper in Baldwin County, where SFWS is located. The Baldwin Circuit Court denied, without explanation, the Board's motion to dismiss or, alternatively, to transfer the case. The Board then petitioned this Court for a writ of mandamus, arguing that venue is proper only in Mobile County.

" 'A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows" ' " (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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).'
" Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).
"Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: 'The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). 'Our review is limited to only those facts that were before the trial court.' Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008)."

Ex parte Lugo de Vega, 65 So.3d 886, 891 (Ala. 2010).

The Board contends that venue is proper only in Mobile County and, thus, that this Court should order the Baldwin Circuit Court to transfer the case to the Mobile Circuit Court. The Board makes two arguments in support of its contention that venue is proper in Mobile County. First, the Board relies on the forum-selection clause in the 2008 agreement, which states that venue is proper only in Mobile County. Although SFWS's claims appear to be based on the 2011 agreement, not the 2008 agreement, the Board argues that the 2011 agreement incorporated the 2008 agreement, thus making the forum-selection clause in the 2008 agreement controlling. Second, the Board argues that, regardless of the forum-selection clause, venue is proper in Mobile County based on the general common-law rule regarding venue for a governmental agency like the Board. We find the Board's second argument to be dispositive; we thus pretermit discussion of the first argument.

The Board is a public, governmental agency established by the Mobile City Council under § 11-50-340 et seq., Ala. Code 1975, which concerns the creation and operation of boards of water and sewer commissioners. Specifically, § 11-50-343(a), Ala. Code 1975, provides that "[e]ach board created under the provisions of [ § 11-50-340 et seq. ] shall be deemed to be a public agency or instrumentality exercising public and governmental functions to provide for the public health and welfare." Initially, we note that we can find no venue statute governing the Board. Section 11-50-340 et seq., under which the Board was created, does not contain a provision concerning venue. Alabama's general venue statutes, § 6-3-1 et seq., Ala. Code 1975, do not contain a provision governing an action against a public, governmental agency like the Board, and there appears to be no other statutory provision addressing venue in this action.

SFWS argues, however, that a statutory provision exists indicating that venue is proper in Baldwin County. In its complaint, SFWS sought, among other things, a declaration of rights between the parties under the Declaratory Judgment Act. SFWS argues that § 6-6-222, Ala. Code 1975, a part of the Declaratory Judgment Act, provides that venue is proper in Baldwin County. Section 6-6-222 provides, in pertinent part, that "[c]ourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." SFWS seems to contend that the phrase "within their respective jurisdictions" establishes that venue in this case is proper in Baldwin County. However, although the provision mentions "jurisdiction," it does not address venue.

"The terms 'jurisdiction' and 'venue' are often confused and loosely used. In its pure sense 'jurisdiction' means the power of a court to entertain and consider a cause, and render a binding judgment therein. 'Venue' refers to the court in which for the sake of convenience or policy considerations the cause is to be tried."

Ex parte Western Ry. of Alabama, 283 Ala. 6, 10, 214 So.2d 284, 287 (1968).

By its plain terms, § 6-6-222 simply does not concern venue. Alabama's Declaratory Judgment Act is a version of the Uniform Declaratory Judgment Act. Oxford Lumber Co. v. Lumbermens Mut. Ins. Co., 472 So.2d 973, 975 (Ala. 1985). In other jurisdictions that have adopted versions of the Uniform Declaratory Judgment Act that contain a provision with the same relevant language as that found in § 6-6-222, courts have noted that the act does not contain a venue provision. For example, the Supreme Court of Montana has stated:

"No determination of the proper venue to maintain an action under this statute exists in section 93-8902, supra, or anywhere else in Chapter 89, the Uniform Declaratory Judgments Act[, which is now codified at Mont. Code Ann. 27-8-201 et seq. ]. However, other states have held that general venue rules apply since the Uniform Declaratory Judgments Act does not fix venue, and this Court agrees. Atlas Assurance Co. v. Houston Fire & Casualty Ins. Co., (Tex. Civ. App. 1959), 324 S.W.2d 943, 947 ; Community Inns Franchise, Inc. v. Plummer (Tex. Civ. App. 1964), 379 S.W.2d 670, 671."

Hartford Accident & Indem. Co. v. Viken, 157 Mont. 93, 95, 483 P.2d 266, 268 (1971). See also Father Flanagan's Boys' Home v. Graybill, 178 Neb. 79, 84, 132 N.W.2d 304, 308 (1964) ("Venue i[n] a declaratory judgment action[, see Neb. Rev. St. § 25-21, 149 et seq. (Reissue 2016),] is governed by the rules relating to venue of civil actions generally. 9A Uniform Laws Annotated, Declaratory Judgments, § 1, Note 120, Venue, p. 76.").

In the absence of a venue statute governing this action against the Board, we rely, as the Board urges us to do, on the general common-law rule that an action against a governmental entity like the Board is properly maintained in the county where the governmental entity officially resides. "[T]his State has a number of cases accepting the general rule that suits against a public official or against governmental bodies are ordinarily and properly maintained in the County of the official residence." Ex parte City of Huntsville Hosp. Bd., 366 So.2d 684, 686 (Ala. 1978). Further, " ' "[a] governmental body is generally regarded as having its residence for purposes of venue in the county where its principal place of business is located, or in the place where its domicile is fixed by law." ' " Hardin v. Fullilove Excavating Co., 353 So.2d 779, 781 (Ala. 1977) (quoting Alabama Youth Servs. Bd. v. Ellis, 350 So.2d 405, 407 (Ala. 1977) ). In sum, in the absence of a governing statute, venue in an action against a governmental entity is proper in the county where the entity officially resides, which is where the entity's principal place of business is located or where its domicile is fixed by law. In this case, the Board's principal place of business is located in Mobile County. Thus, under the general rule regarding venue in actions against governmental entities, Mobile County is the proper venue in this case.

SFWS contends that, despite the general common-law rule, we should conclude that venue is proper in Baldwin County. The gist of its argument is that venue is proper in Baldwin County because the Board extended its water-delivery infrastructure into Baldwin County to deliver water to SFWS. Thus, SFWS says, the Board has a presence in Baldwin County that should permit venue there. In support of that argument, SFWS cites Ex parte City of Haleyville, 827 So.2d 778 (Ala. 2002) (plurality opinion), and Ex parte City of Birmingham, 507 So.2d 471 (Ala. 1987). However, neither of those cases establishes that venue is proper in Baldwin County merely because the Board has some presence there.

In City of Haleyville, this Court construed § 6-3-11, Ala. Code 1975, a venue statute that, in relevant part, provides that "[t]he venue for all civil actions for damages for personal injury, death, or property damage" filed against a municipality shall be in the county in which the municipality is "located." The City of Haleyville is physically located in two counties, i.e., the city's boundaries straddle two counties. A plurality of this Court concluded that, under § 6-3-11, "if the municipality is physically located in two or more counties, venue is appropriate in all such counties." 827 So.2d at 783. City of Haleyville is not on point because this case does not concern § 6-3-11 or a municipality that is physically located in more than one county.

Here, the Board does business in Baldwin County through its agreement with SFWS, and its infrastructure extends into Baldwin County in compliance with that agreement, but those facts are not analogous to the facts in City of Haleyville.

City of Birmingham involved an action against a municipality before the enactment of § 6-3-11, which we later construed in City of Haleyville, discussed above. As SFWS acknowledges, § 6-3-11 supersedes some of the analysis in City of Birmingham, see Little v. State, 44 So.3d 1070, 1073 (Ala. 2010), and SFWS does not attempt to draw an analogy from that analysis. Rather, SFWS notes that, in City of Birmingham, this Court stated that in Huntsville Hospital Board, supra,

"we decided the venue question [in an action against a county] on the basis of § 6-3-3, [Ala. Code 1975,] which provides that actions for work and labor done may be brought in the county where the work was done, without an exception for actions against counties. By relying on a specific venue statute, this rationale at least conceivably leaves open the question of venue against counties generally."

507 So.2d at 474 (emphasis omitted).

SFWS, essentially relying on Huntsville Hospital Board more than City of Birmingham, observes that Huntsville Hospital Board left open the possibility of a governmental entity being sued outside the county of its official residence. However, that point does not help SFWS in this case. Huntsville Hospital Board simply demonstrated a distinct application of the general principle we have discussed above and that this Court succinctly described in City of Birmingham: "[V]enue of suits against a governmental entity is at the situs of the entity unless a specific provision to the contrary applies." 507 So.2d at 474. In Huntsville Hospital Board, there was a claim against the Huntsville Hospital Board for work and labor done. That is a crucial point, because there is a specific statute, § 6-3-3, Ala. Code 1975, governing venue for actions alleging claims for work and labor done, regardless of the identity of the defendant. That is, in Huntsville Hospital Board, § 6-3-3 provided a "specific provision" that controlled instead of the common-law rule that venue for a governmental-entity defendant is proper where the entity officially resides. In this case, as we have noted, there is no such provision, and, thus, venue is proper in Mobile County, the location of the Board's official residence.

We conclude that Mobile County is the proper venue in this case. Accordingly, we grant the Board's petition for a writ of mandamus, and we direct the Baldwin Circuit Court to transfer the underlying case to the Mobile Circuit Court.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Sellers, and Mendheim, JJ., concur.


author: SELLERS, Justice. SHAW, Justice (dissenting).

text:
    EX PARTE AMERICAN SWEEPING, INC.
    (In re Alabama Department of Transportation v. TK & S Trucking, LLC, et al.)
    1170461
    Supreme Court of Alabama.
    August 31, 2018
    Judson W. Wells, Sr., Jonathan R. Maples, and Heather M. Houston of Carr Allison, Daphne, for petitioner.
    Steve Marshall, atty. gen., and Andrew Brasher, deputy atty. gen., and Jason A. Trippe, asst. counsel and asst. atty. gen., Alabama Department of Transportation, for respondent Alabama Department of Transportation.
    Jackson B. Harrison, Dadeville, for respondents Robert James Sanders and Barbara Sanders.
   SELLERS, Justice.

American Sweeping, Inc. ("ASI"), petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its January 9, 2018, order denying its motion to dismiss the claims asserted against it in the underlying action as time-barred and to enter a dismissal in its favor. We grant the petition and issue the writ.

Facts and Procedural History

On May 22, 2014, two separate accidents occurred on the Interstate 65 bridge crossing the Mobile-Tensaw River Delta ("the bridge"). On the day of the accidents, ASI was performing sweeping and cleaning operations on the bridge pursuant its contract with the Alabama Department of Transportation ("ALDOT"). The first accident on the bridge occurred when a vehicle collided with the rear of the "buffer vehicle" that was following the ASI street sweeper. That accident caused traffic on the bridge to come to a complete stop. Shortly thereafter, the second accident occurred when the tractor-trailer truck being driven by William Leedy McRae and owned by TK & S Trucking, LLC, collided with the rear of the tractor-trailer truck being operated by Robert James Sanders. That collision caused both tractor-trailer trucks to explode, killing McRae and injuring Sanders.

In August 2015, ALDOT filed a complaint against, among others, TK & S Trucking and the Estate of William Leedy McRae, seeking to recover the costs of the repairs made to the bridge as a result of the tractor-trailer explosion. In December 2015 and April 2016, Mr. Sanders and his wife, Barbara, filed individual complaints in intervention, asserting claims against the same defendants seeking monetary damages for medical bills, pain and suffering, and loss of consortium. Neither complaint in intervention included fictitious-party designations.

On May 17, 2016, the Sanderses amended their complaints in intervention to assert claims against fictitiously named defendants whose conduct, they alleged, wrongfully caused or contributed to the tractor-trailer accident involving Mr. Sanders.

On August 31, 2017, the Sanderses once again amended their complaints to substitute ASI for a fictitiously named defendant, asserting that ASI had caused or contributed to the tractor-trailer accident by "failing to adhere to applicable statutory and administrative guidelines when it had a duty to do so." ASI filed a motion to dismiss the claims against it on the ground that it was barred by the applicable two-year statute of limitations. See § 6-2-38(l ), Ala. Code 1975.

On January 9, 2018, the trial court entered an order denying ASI's motion to dismiss, in essence finding that the Sanderses' substitution of ASI in the amended complaints of August 31, 2017, relates back to the filing of the complaints of May 17, 2016, which added fictitiously named defendants. ASI then petitioned this Court for a writ of mandamus.

Standard of Review

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(1) a clear legal right 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) the properly invoked jurisdiction of the court.' " Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ).

"A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant 'when "the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue." ' Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala. 2005) (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999) ) ...."

Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1290 (Ala. 2008).

Analysis

ASI argues that the trial court exceeded its discretion in denying its motion to dismiss because, it says, the Sanderses failed to exercise due diligence to discover its identity before the running of the limitations period; therefore, it says, the principles of fictitious-party pleading do not apply to the facts of this case. We agree. It is undisputed that the statute of limitations for filing a claim in the underlying action expired on or about May 22, 2016. On May 17, 2016, the Sanderses filed their amended complaints asserting claims against fictitiously named defendants. On August 31, 2017, the Sanderses amended their complaints to substitute ASI for a fictitiously named defendant--well over a year after the two-year limitations period had expired. Therefore, the Sanderses' claims against ASI are time-barred unless they have met the requirements of Rules 9(h) and 15(c), Ala. R. Civ. P.

" Rule 9(h), Ala. R. Civ. P., provides:
" 'When a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.'
"This Court has held with regard to Rule 9(h) and the relation-back principles of Rule 15(c), Ala. R. Civ. P., that the plaintiff must state a cause of action against the fictitiously named party in the body of the original complaint; that the plaintiff's ignorance of the true identity of the party intended to be sued is 'in the sense of having no knowledge' of the party's identity at the time the complaint was filed; and that the plaintiff must have used due diligence in attempting to discover the identity of the fictitiously named party. Columbia Eng'g Int'l Ltd. v. Espey, 429 So.2d 955, 958 (Ala. 1983). To be entitled to the benefit of the relation-back principles, the plaintiff must act with due diligence to ascertain the fictitiously named defendant's true name and to promptly amend the complaint to correctly identify that defendant."

Ex parte Griffin, 4 So.3d 430, 436 (Ala. 2008). "[T]he principal reason for [ Rule 9(h), Ala. R. Civ. P.,] is to toll the statute of limitations in emergency cases where [the] plaintiff knows he has been injured and has a cause of action against some person or entity, but has been unable to ascertain through due diligence the name of that responsible person or entity." Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala. 1983). The test for determining whether a plaintiff has exercised due diligence to obtain the identities of fictitiously named defendants is "whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously." Davis v. Mims, 510 So.2d 227, 229 (Ala. 1987).

As indicated, the accidents on the bridge occurred on May 22, 2014. The Sanderses knew at the time they filed their amended complaints on May 17, 2016, that another person or entity on the bridge had caused the traffic to come to a complete stop, thereby causing or contributing to the tractor-trailer accident as a result of which Mr. Sanders was injured. However, the materials before us indicate that the Sanderses made little or no effort to research what event, i.e., the accident involving ASI's buffer vehicle, caused the traffic on the bridge to come to a complete stop. For example, the Uniform Traffic Crash Report for the first accident identified Christopher Donaldson as the driver of the ASI buffer vehicle and listed "American Sweeping Inc" as the owner of that vehicle. See Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala. 2008) (finding that a substitution of a party for a fictitiously named party did not relate back when the plaintiff could have discovered an insurer's identity by, among other things, reviewing an accident report). In addition, it is also clear from the materials supplied to us that ASI's identity could have easily been discovered from ALDOT. Mr. Sanders testified that, following the tractor-trailer accident, he saw a vehicle on the shoulder of the bridge that he described as being state and/or ALDOT equipment, that he remembered having a conversation with a person who was presumably operating the vehicle or equipment, and that he gave that person's name to a state trooper. Had the Sanderses issued written discovery to ALDOT, they could have learned that, shortly after the accidents, ALDOT had written a letter to ASI informing ASI that it had learned that ASI's equipment had been involved in an accident on the bridge and requesting that ASI preserve, without modification, its equipment as evidence in the event of litigation. Mr. Sanders also had a conversation with Donaldson, the driver of the ASI buffer vehicle. Donaldson testified in his deposition that, following the tractor-trailer accident, he had a conversation with Mr. Sanders and that Mr. Sanders had asked him to "sign a statement" but that Donaldson told Mr. Sanders he could not sign a statement because he did not witness the second accident. Donaldson further testified that he gave his name to Mr. Sanders, but neither Mr. Sanders nor his attorney contacted him. Moreover, the Sanderses either knew or should have known of ASI's identity as of July 8, 2016, when they received notification that TK & S Trucking, the owner of the truck being driven by McRae, had filed a notice of intent to issue a nonparty subpoena to ASI, seeking a multitude of materials, including ASI's file relating to the accident that occurred on May 22, 2014, involving Donaldson, Donaldson's personnel file, and all documents related to ASI's contract with ALDOT. Also, Mr. Sanders was deposed on July 14, 2016, at which time it was brought to his attention by one of the questioning attorneys that Donaldson was the driver of the vehicle "that was parked on the shoulder [of the bridge] straddling the fog line."

Finally, the most compelling information concerning the Sanderses' knowledge of ASI's identity comes from Jonathan Brown, an eyewitness to the tractor-trailer accident. Brown testified in his deposition, dated August 17, 2016, that he telephoned the Sanderses within a week after the tractor-trailer accident and at least two other times in 2014 to inquire about Mr. Sanders and that they all talked about the "accident that caused [Mr. Sander's] accident ['the street sweeper and the--the guy falling asleep at the wheel']." Brown also stated in his deposition that he had provided a sworn statement to the Sanderses' attorney, apparently disclosing the events he had witnessed on the bridge on the day of the accidents. Based on their conversations with Brown in 2014, the Sanderses either knew or should have known or were on notice that ASI was in fact one of the parties who they alleged caused or contributed to the tractor-trailer accident in which Mr. Sanders was involved. Even more compelling is the fact that the Sanderses conceded in their motion in opposition to ASI's motion to dismiss, filed on January 7, 2018, that the identity of ASI had been available for discovery for well over a year and a half. See Ex parte Bowman, 986 So.2d 1152, 1158 (Ala. 2007) (recognizing that a "delay in amending a complaint to substitute a named party for a fictitiously named party once information is available can defeat the availability of relation back").

Based on the foregoing, we conclude that the Sanderses did not act with due diligence in discovering ASI's identity either before or after they filed their amended complaints on May 17, 2016, asserting claims against fictitiously named defendants. Accordingly, the Sanderses' August 31, 2017, amended complaints substituting ASI for a fictitiously named defendant do not relate back to their May 17, 2016, complaints; the August 31, 2017, complaints naming ASI as a defendant are therefore time-barred.

Conclusion

ASI has shown a clear legal right to dismissal of the claims asserted against it by the Sanderses. We therefore grant the petition for a writ of mandamus and direct the trial court to vacate its order denying ASI's motion to dismiss and to enter an order dismissing the claims asserted against ASI.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Wise, and Mendheim, JJ., concur.

Parker, J., concurs in the result.

Shaw and Bryan, JJ., dissent.

SHAW, Justice (dissenting).

The issue presented by this petition for the writ of mandamus is whether the trial court exceeded its discretion in failing to grant a motion to dismiss filed by the petitioner, American Sweeping, Inc. ("ASI"). In that motion ASI contended that the respondents' action was barred by the statute of limitations. ASI, however, has failed to provide this Court with a copy of that motion. I believe that this requires that the petition be dismissed; I thus respectfully dissent.

A petition for a writ of mandamus must contain "copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 21(a)(1)(E), Ala. R. App. P. The Court of Civil Appeals has described the consequence of the failure to provide necessary materials as follows:

"[P]etitions for the writ of mandamus that do not comply with Rule 21(a)(1)(E) by failing to include certain materials, such as court orders and other parts of the record essential to our consideration of the request for relief, are due to be dismissed. Without such materials this court is unable to conduct a meaningful review or to grant the relief sought in the petition. In other words, without providing this court with such materials, a petitioner is unable to demonstrate that he or she has a clear legal right to the relief requested."

Ex parte Veteto, 230 So.3d 401, 404 (Ala. Civ. App. 2017) (citation omitted).

Caselaw also holds that our review of a mandamus petition "is limited to those facts that were before the trial court." Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002). Evidence that was "not presented to the trial court will not be considered in a mandamus proceeding." Ex parte Volvo Trucks North America, Inc., 954 So.2d 583, 587 (Ala. 2006). On mandamus review, appellate courts will not issue the writ on a ground or based on a contention that was not presented to the trial court for its consideration. Ex parte Ebbers, 871 So.2d 776, 786 (Ala. 2003). Thus, it is critical that this Court know what was argued and presented to the trial court to determine whether that court exceeded its discretion.

As stated above, ASI's motion to dismiss, the denial of which we are called upon to review, is not attached to the petition as an exhibit, nor is it included in the other materials before us. We do not know what it alleged, what evidentiary exhibits were attached to it, or what legal authority was cited. In sum, we do not know the exact analysis the trial court was called upon to make or whether ASI properly supported its arguments. Under these circumstances, I find it impossible to determine whether the trial court was wrong, because I do not know what it was asked to consider.

ASI does provide this Court with the respondents' opposition to the motion to dismiss. I note that it challenges ASI's "rendition of facts" as "incomplete/wrong." It does not tend to indicate what evidence was submitted in support of the motion to dismiss. I suppose from the opposition to the motion to dismiss we could make inferences as to what the motion argued; however, I do not believe that the standard of review on a mandamus petition, which generally requires a high burden of argument and support, allows us to make inferences in favor of a petitioner/movant.

There is evidence presented to this Court suggesting that the respondents knew, or should have known, that they had a potential claim against ASI before the statute of limitations ran, and the arguments in the petition are rather convincing. But we are not called upon to determine the applicability of the statute of limitations in the abstract; instead, we are asked to determine whether the trial court exceeded its discretion in denying ASI's motion to dismiss. I have to know what was provided and argued to the trial court before I can determine whether its decision was wrong.

In light of the above, I respectfully dissent.

Bryan, J., concurs.

      The materials before us do not include the Sanderses' initial complaints in intervention or their amended complaints asserting causes of action against fictitiously named defendants.

      It appears from the materials before us that the equipment Mr. Sanders described as being state and/or ALDOT equipment on the shoulder of the bridge was presumably the ASI street sweeper and/or buffer vehicle.

      It appears from the deposition excerpts that Donaldson and Mr. Sanders had a conversation near the tractor-trailer accident. Presumably then, Mr. Sanders asked Donaldson to give a statement about the tractor-trailer accident, and not the accident involving the ASI buffer vehicle.

      The "guy falling asleep at the wheel" is presumably the person who was driving the vehicle that collided with the rear of the buffer vehicle that was following the street sweeper.

      The Sanderses contended in their motion, as they contend in their response brief, that they did not have a "cognizable claim" against ASI until they learned in June 2017 of ALDOT's policies and procedures requiring ASI to have two buffer vehicles when performing sweeping operations on the bridge. By making this argument, the Sanderses implicitly claim that they did not know that a cause of action existed against ASI at the time they filed their amended complaints on May 17, 2016, asserting claims against fictitiously named defendants. If such is the case, then Rule 9(h) would be inapplicable. However, ASI does not argue that the Sanderses' May 17, 2016, complaint failed to state a cause of action against it. And, as indicated in note 1, the complaints asserting claims against fictitiously named defendants are not before us. See Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d at 960 (emphasizing that "Rule 9(h) was not meant to excuse ignorance of the identity of a cause of action, but only ignorance of the name of the party against whom a cause of action is stated"); see also Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129, 133 (Ala. 1981) (noting that "where the identity of a party is known at the time suit is filed, but where the cause of action against such defendant is unknown, Rule 9(h)... does not allow a relation back to the original filing of the complaint where the statute of limitations has run").

      ASI may have had a good reason for failing to provide a copy of its motion. Unfortunately, in my opinion, it prevents proper review of this mandamus petition.

      The dismissal of this petition for failure to comply with Rule 21(a)(1)(E) would not act as a bar to further litigation as to whether the statute of limitations applies in this action, and ASI could continue to litigate this issue. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala. 2000) ("[T]he denial of relief by mandamus does not have res judicata effect.").


author: THOMPSON, Presiding Judge.

text:
    Turner BROCK v. Jimmy MORRIS
    2170808
    Court of Civil Appeals of Alabama.
    September 7, 2018
    *Note from the reporter of decisions: This case was assigned to Judge Holloway, retired circuit judge, when Judge Mendheim was appointed an Associate Justice on the Alabama Supreme Court
    Stephen T. Etheredge, Dothan, for appellant.
    Brian Mosholder of Carpenter, Ingram & Mosholder, LLP, Opelika, for appellee.
   THOMPSON, Presiding Judge.

Turner Brock appeals from a judgment of the Henry Circuit Court ("the trial court") determining that he and Jimmy Morris had entered into a "binding contract" regarding the placement of a dock at Brock's house on Lake Eufaula. For the reasons discussed below, we dismiss the appeal.

The record indicates that on August 18, 2017, Jimmy Morris and Carol Morris, as the plaintiffs, filed a verified complaint in the trial court seeking a preliminary injunction and a permanent injunction against defendants Turner Brock and Linda Brock to prevent the Brocks from building a dock in a certain location and to compel them to build the dock pursuant to a compromise allegedly reached between Jimmy Morris and Turner Brock. In the complaint, the Morrises asserted that they were married and jointly owned property on Lakeview Street in Abbeville ("the Morris property"). They alleged that the Brocks were married and jointly owned the property contiguous with the Morris property on Lakeview Street ("the Brock property"). Both Jimmy Morris and Carol Morris executed the verified complaint. Also on August 18, 2017, the Morrises filed a motion for a preliminary injunction pursuant to Rule 65, Ala. R. Civ. P.

On August 30, 2017, the Morrises filed an amended complaint adding a paragraph to the original complaint regarding the trial court's jurisdiction over the matter. On September 15, 2017, both Turner Brock and Linda Brock answered the Morrises' complaint. In the answer, the Brocks admitted that they were married and jointly owned the Brock property.

The summonses that were served with the complaint and with the amended complaint were in Turner Brock's name only. No summons for Linda Brock is included in the record. Rule 4(a)(1), Ala. R. Civ. P., states that, "[u]pon the filing of the complaint, ... the clerk shall forthwith issue the required summons or other process for service upon each defendant." (Emphasis added.) It is the plaintiff's duty to furnish the clerk with sufficient copies of the complaint to be served. Rule 4(a)(3), Ala. R. Civ. P. That rule further provides that copies are not required if the complaint is filed electronically. The State Judicial Information System ("SJIS") indicates that the complaint in this case was filed electronically. The rule also provides that the plaintiff shall furnish the clerk with instructions for service of the complaint, "and, when requested by the clerk, the plaintiff shall also furnish sufficient properly completed copies of the summons or other process." Rule 4(a)(5), Ala. R. Civ. P. We note that the SJIS case-action summary does not indicate that Carol Morris is a plaintiff in this action or that Linda Brock is a defendant. Furthermore, Carol Morris testified at the trial, as did Jimmy Morris and Turner Brock. Linda Brock did not testify, and we cannot discern from the record whether she attended the trial.

There is nothing in the record to indicate that Carol Morris dismissed her claims against the Brocks. In the trial court, Linda Brock did not challenge the insufficient or improper service of process at any time during the proceedings.

"An argument as to insufficient or improper service of process may be waived if it is not raised in a motion to dismiss or in the first responsive pleading or a proper amendment thereto. See Rule 12(h)(1), Ala. R. Civ. P. A general appearance by a party either in person or through an attorney waives any objection to improper service of process. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 53 (Ala. 2003) (quoting Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972) ) (' "A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court." '). An appearance may be made by filing an answer or other pleading, id. (' "The filing of a pleading is a general appearance." '), or by voluntarily appearing for and participating in trial. Boudreaux v. Kemp, 49 So.3d 1190, 1197 (Ala. 2010) (stating that 'it is true that [the Alabama Supreme] Court has previously acknowledged that a defendant may waive defects in service by voluntarily appearing in the proceedings' but concluding that the parties in question had not appeared or participated in the proceedings at issue).

D.D. v. Calhoun Cty. Dep't of Human Res., 81 So.3d 377, 380-81 (Ala. Civ. App. 2011). Because Linda Brock answered the complaint without raising the issue of improper service of process, she waived her opportunity to object to improper service of process.

The judgment entered in this action does not mention plaintiff Carol Morris or defendant Linda Brock; thus, the judgment does not resolve the claims as to all the parties. This court has repeatedly held that

" ' " '[i]t is a well-established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.' " Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala. 1981). "A ruling that relates to fewer than all the parties in a case, or that determines fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims." Powell, at 82. See Rule 54(b), Ala. R. Civ. P. "A 'final judgment is a "terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants." ' " Powell, at 82, quoting Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ. App. 1990). "The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion." Powell, at 82.'

Saunders v. Ingram, 236 So.3d 104, 110 (Ala. Civ. App. 2017) (quoting Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999) ). Because there has not been a complete adjudication of all matters in controversy as to all litigants, the judgment entered in this case is not final and will not support an appeal. Therefore, the appeal must be dismissed.

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      The notice of appeal was initially filed in the Alabama Supreme Court, which transferred it to this court, pursuant to § 12-2-7(6), Ala. Code 1975. The notice of appeal names only Turner Brock as the appellant and Jimmy Morris as the appellee.


author: DONALDSON, Judge.

text:
    Charity M. (Wallace) JUSTICE v. Timothy A. WALLACE
    2170332
    Court of Civil Appeals of Alabama.
    September 14, 2018
    Michele E. Pate, Jasper; and D. Russell Eason, Haleyville, for appellant.
    Submitted on appellant's brief only.
   DONALDSON, Judge.

Charity M. (Wallace) Justice ("the mother") appeals from a default judgment entered in favor of Timothy A. Wallace ("the father") by the Winston Circuit Court ("the trial court"). The record shows that no entry of default was made against the mother and that the mother filed a responsive pleading several weeks before the default judgment was entered. Therefore, we reverse the judgment.

In August 2013, the mother and the father were divorced by a judgment of the trial court that, among other things, granted the parties joint custody of the parties' child, A.G.W. ("the child"). On March 23, 2017, the father filed a petition in the trial court seeking a modification of child custody and a finding of contempt against the mother.

The record shows that the mother was served by certified mail with a copy of the father's modification petition on May 11, 2017. The mother's response was due within 30 days of service, or by June 12, 2017.

According to the record, the mother filed an answer denying the allegations in the father's petition at 1:09 p.m. on June 19, 2017. Thereafter, at 2:06 p.m., the mother filed a "motion to set aside default." We find no indication in the record, however, that a default had been entered against the mother under Rule 55(a), Ala. R. Civ. P., at the time she filed her responsive pleading and motion.

According to the record, the next document filed was the father's "Motion for Default Judgment on Petition for Modification of Child Custody." That motion has an electronic-filing stamp that indicates that it was filed at 2:31 p.m. on June 19, 2017, after the mother's responsive pleading was filed. We note that the certificate of service attached to that motion indicates that the motion was mailed by the father's attorney to the mother on June 19, 2017.

On June 28, 2017, the trial court entered the following order: "This matter is hereby set for a final hearing on the merits on the 10th day of August, 2017 at 9:00 a.m. ...."

Although there is no transcript in the record of any proceedings that occurred on August 14, 2017, the mother asserts in her brief that the parties appeared before the trial court on that date and that the father's motion for a default judgment was granted by the trial court. The record shows that on August 14, 2017, the trial court entered a "DEFAULT JUDGMENT ON MODIFICATION OF CHILD CUSTODY," which provided, among other things:

"This cause coming on to be heard at this term, was submitted upon Petition for Modification of Child Custody and Motion for Contempt, and Motion for Default Judgment, based upon [mother's] failure to answer or otherwise defend under time limits set out in [the] Alabama [Rules of] Civil Procedure, and upon consideration thereof, the Court is of opinion and finds that the Court has jurisdiction of the parties and of the cause of action, and that the [father] is entitled to the relief prayed for in said Complaint; it is, therefore,
"ORDERED, ADJUDGED AND DECREED BY THE COURT:
"FIRST: That the [father] herein is awarded the full permanent care, custody and control of the parties' minor child namely, A.G.W., whose date of birth is April 11, 2011. The [mother] shall exercise standard visitation with the minor child as set out in the schedule herein.
"....
"FIFTH: That the [mother] has violated the original divorce decree, she shall be ordered to reimburse to said [father] his Attorney Fees in the amount of Seven Hundred Fifty and 00/100 Dollars ($750.00) and the court costs of this action and default as paid by [the father] in the amount of Three Hundred Fifty and 00/100 Dollars ($350.00), for a total of One thousand one hundred ($1,100.00) dollars."

(Capitalization in original.)

On August 16, 2017, the mother, through counsel, filed a motion pursuant to Rule 55(c), Ala. R. Civ. P., seeking to set aside the default judgment in which counsel asserted, among other things, that she had been ill and had inadvertently failed to file the mother's answer. The father filed a response in opposition in which he asserted, among other things, that the mother's failure to file a timely answer was "willful." The mother's motion was denied by operation of law on November 14, 2017. See Rule 59.1, Ala. R. Civ. P. On December 27, 2017, the mother filed a notice of appeal to this court.

On appeal, the mother argues that the trial court erroneously entered a default judgment after she had filed an answer and, alternatively, that the trial court erred in refusing to set aside the default judgment. The father did not file an appellate brief. It is well settled that

" Rule 55, Ala. R. Civ. P., provides the procedure that a party must follow in order to obtain a default judgment.
" 'The first step is the entry of a default. When a party against whom affirmative relief is sought fails to plead or otherwise defend the action and that fact is made to appear by affidavit or otherwise, the clerk enters a default. [ Rule] 55(a). A judgment by default may then be entered.'
" J & P Constr. Co. v. Valta Constr. Co., 452 So.2d 857, 859 (Ala. 1984)."

Griffin v. Blackwell, 57 So.3d 161, 163 (Ala. Civ. App. 2010). "[A] party must first obtain an entry of default by the clerk or the trial court before he or she can obtain a default judgment from the trial court." Griffin, 57 So.3d at 163 (citing Graham v. University Credit Union, 411 So.2d 144, 148 (Ala. Civ. App. 1982), overruled on other grounds by Ex parte Keith, 771 So.2d 1018 (Ala. 1998) ).

The record does not contain evidence demonstrating that the father had applied to the clerk or the trial court for an entry of default pursuant to Rule 55(a) before filing his motion for a default judgment or before the trial court entered its default judgment. The mother had not been determined to be in default at the time she filed her responsive pleading 39 days after she was served with the summons and complaint, and, therefore, the default judgment could not properly be entered on August 14, 2017, because the mother had filed a responsive pleading on June 19, 2017. See TA Fin. Inc. v. Discover Bank, 967 So.2d 90, 91 (Ala. 2007) (holding that a defendant's filing of an answer before a hearing was held on a default-judgment motion " 'cured' " the default and, thus, that the entry of a default judgment was improper); Winford v. Winford, 139 So.3d 179, 183 (Ala. Civ. App. 2013) (reversing a default judgment because the defendant-mother in that case had filed an answer before a hearing on the plaintiff-father's motion for a default judgment); and Wilson v. Avant, 227 So.3d 1223, 1225 (Ala. Civ. App. 2017) (reversing a default judgment that was entered after the defendant in that case had filed an answer).

Accordingly, the judgment is reversed. We pretermit discussion of whether the trial court exceeded its discretion in refusing to set aside the default judgment based on the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988).

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      The mother's answer was due within 30 days of service under Rule 12(a), Ala. R. Civ. P. The 30th day was Saturday, June 10, 2017, and, therefore, the mother's answer was due Monday, June 12. See Rule 6(a), Ala. R. Civ. P.

      The case-action summary contains a notation, dated June 15, 2017, regarding an item described as a "default judgment." There is no document in the record matching that description that corresponds to that date.

      Although the mother's notice of appeal would have been due on December 26, 2017, documentation in the record demonstrates that the Winston County Courthouse was closed on that date. Therefore, the mother's notice of appeal was timely filed on December 27, 2017. See Rule 4(a)(3), Ala. R. App. P.; Rule 6(a), Ala. R. Civ. P.


text:
    EX PARTE Wendy Franks FANCHER
    (In re Wendy Franks Fancher v. Robert Allen Fancher)
    2171007
    Court of Civil Appeals of Alabama.
    September 14, 2018
    Terinna S. Moon of Monn & Melvin LLC, Prattville, for petitioner.
    Joseph H. Hagood III, Selma, for respondent.
   DONALDSON, Judge.

Wendy Franks Fancher ("the former wife") filed a petition for a writ of mandamus seeking an order from this court directing the Dallas Circuit Court ("the trial court") to vacate an ex parte temporary restraining order it has entered and to dismiss the petition for a modification of custody filed by Robert Allen Fancher ("the husband") pursuant to the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975.

Facts and Procedural History

The former wife alleges the following facts in her mandamus petition. On November 9, 2014, the trial court entered a judgment in the parties' divorce action("the divorce action") that, among other things, divorced the former husband and the former wife, granted the former wife sole physical custody of the parties' two minor children, and granted specific rights of visitation to the former husband. On March 21, 2016, the trial court entered a "Final Order of Modification" in case no. DR-13-900089.01 that maintained sole physical custody of the children with the former wife, modified the former husband's child-support obligation, established a child-support arrearage payment, and modified the former husband's visitation rights. On January 26, 2018, the trial court entered a "Final Order of Modification" in case no. DR-13-900089.02 that, among other things, maintained sole physical custody of the children with the former wife and modified the former husband's visitation rights.

On June 12, 2018, the former wife notified the former husband via certified mail of her intent to relocate with the children to Enterprise. The former wife alleges that her notification was in accordance with the Alabama Parent-Child Relationship Protection Act. Materials submitted by the former wife indicate that the former husband received the notification on June 18, 2018. On July 11, 2018, the former husband, through counsel, mailed a letter to the former wife stating that he objected to the former wife's relocation with the children.

On August 5, 2018, the former husband filed in the trial court a petition to modify custody of the children, based upon the former wife's proposed relocation with the children. The former husband's petition was assigned case no. DR-13-900089.03 ("the .03 action"). Along with his petition to modify, the former husband also filed an "Objection to Relocation of the Children" and a "Petition for Emergency Pendente Lite Relief." On August 6, 2018, the former husband filed a "Motion for Ex Parte Temporary Restraining Order" in which he sought to restrain the former wife from relocating with the children. According to the submitted materials, the former husband's objection to relocation, his petition for emergency pendente lite relief, and his motion seeking an ex parte temporary restraining order were all filed in the divorce action.

On August 7, 2018, the trial court entered an ex parte temporary restraining order in the .03 action that ordered the former wife to remain in Dallas County with the children or, alternatively, permitted the former wife to relocate, provided that the children remain in Dallas County. In its order, the trial court set the matter for a hearing on September 12, 2018.

On August 8, 2018, the former wife filed a "Motion to Vacate the Order of August 7, 2018, and Motion to Dismiss the Proceeding" in the trial court. In her motion, the former wife asserted that the former husband had failed to timely object to her proposed relocation and, therefore, had waived any objection to her relocating with the children. The former wife also challenged the entry of the ex parte temporary restraining order, asserting that the "Alacourt [State Judicial Information System] contained no motion being filed requesting the ex parte relief which had been granted." On that same day, the former wife filed an amended motion seeking to vacate the trial court's ex parte temporary restraining order based upon the former husband's objection to relocation, petition for emergency pendente lite relief, and motion seeking an ex parte temporary restraining order having been filed in the wrong case. In her amended motion, the former wife further asserted that the trial court lacked subject-matter jurisdiction based upon the former husband's having waived his objection to the proposed relocation, that the trial had court entered the ex parte temporary restraining order in violation of Rule 65, Ala. R. Civ. P., and that she had been denied due process by the trial court's having set a hearing for 36 days after the entry of the ex parte temporary restraining order.

On August 8, 2018, the former husband filed in the .03 action a single document encompassing a response to the former wife's motion to vacate, a motion for a "pickup order," a motion seeking to hold the former wife in contempt, and a request for a "clarification of order." The trial court did not rule on the pending motions before the former wife filed her mandamus petition.

On August 10, 2018, the former wife filed her mandamus petition in this court. The former wife also sought a stay of the trial court's ex parte temporary restraining order in her petition. On August 10, 2018, this court issued an order staying the trial court's ex parte temporary restraining order and requiring the former husband to file a response to the former wife's petition within seven days. The former husband timely filed his response with this court.

The former wife raises three issues in her petition. First, the former wife contends that the trial court lacks subject-matter jurisdiction over this matter because, she asserts, the former husband failed to pay the appropriate filing fee. Second, the former wife argues that the trial court's ex parte temporary restraining order was issued contrary to the requirements contained within Rule 65(b), Ala. R. Civ. P. Finally, the former wife argues that the trial court lacks subject-matter jurisdiction because, she asserts, the former husband waived his right to object to her relocation with the children.

Standard of Review

"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).

"To justify the issuance of such a writ, there must be a clear showing of injury to the petitioner. [ Ex parte Johnson Land Co., 561 So.2d 506 (Ala. 1990) ]. The writ will not issue absent a clear abuse of discretion by the trial court or where the petitioner has some other adequate remedy. Ex parte Jones, 447 So.2d 709 (Ala. 1984) ; Ex parte Mid-Continent Systems, Inc., 447 So.2d 717 (Ala. 1984)."

Ex parte J.E.W., 608 So.2d 728, 729 (Ala. 1992).

Discussion

The former wife filed her petition for the writ of mandamus before the trial court had ruled on her pending motions. "A writ of mandamus will not issue to compel the respondent to act when the respondent has not refused to do so." Ex parte CUNA Mut. Ins. Soc'y., 822 So.2d 379, 384 (Ala. 2001). "[I]t is the duty of this court to review the propriety of orders and judgments made in the trial court; this court cannot issue rulings on the motions pending before the trial court." Ex parte Veteto, 230 So.3d 401, 403 (Ala. Civ. App. 2017). Therefore, the former wife's petition for the writ of mandamus seeking to compel the trial court to dismiss the action based on a lack of subject matter jurisdiction is premature because the trial court has not yet ruled on the motions.

Although the trial court had not ruled on the former wife's motion seeking to vacate the ex parte temporary restraining order at the time she filed her mandamus petition, we have considered petitions challenging the propriety of the issuance of such orders involving the change of custody of children in similar circumstances, even in the absence of a ruling from the trial court denying relief from such an order. See, e.g., Ex parte B.J.C., 248 So.3d 988 (Ala. Civ. App. 2017) ; Ex parte Hutson, 201 So.3d 570 (Ala. Civ. App. 2016) ; Ex parte Franks, 7 So.3d 391 (Ala. Civ. App. 2008) ; and Ex parte Russell, 911 So.2d 719 (Ala. Civ. App. 2005). Therefore, we will address the former wife's mandamus petition insofar as it challenges the propriety of the issuance of the ex parte temporary restraining order. The former wife argues that the trial court issued the ex parte temporary restraining order in violation of Rule 65(b), Ala. R. Civ. P. Rule 65(b) provides, in pertinent part:

"A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required."

Although the former wife mentions in her mandamus petition the issue whether the statements made by the former husband's attorney regarding the lack of notice to the former wife met the requirements of Rule 65(b)(2), she primarily argues that the motion for an ex parte temporary restraining order lacked proper verification and did not "contain any specific language as to any immediate danger or irreparable harm to the minor children absent the granting of a temporary restraining order" as required by Rule 65(b)(1). In his response to the petition, the former husband argues that his motion for an ex parte temporary restraining order was properly verified and that the sufficiency of the allegations contained within the motion is a question to be determined by the trial court.

"While the trial court is accorded wide discretion in determining whether or not a temporary restraining order should be granted, when such an order is issued without a hearing, a close scrutiny of the existing circumstances under which it is sought should be made by the trial court. Ex parte Purvis, 382 So.2d 512 (Ala. 1980) ; Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975). Furthermore, this kind of relief cannot be accorded without notice or hearing unless 'the verified facts of the complaint clearly justify the petitioner's apprehension about the threat of irreparable injury. See Committee Comments, Rule 65, [Ala. R. [Civ.] P.' Falk v. Falk, 355 So.2d 722, 725 (Ala. Civ. App. 1978)."

Ex parte Williams, 474 So.2d 707, 711 (Ala. 1985). In his motion for an ex parte temporary restraining order, the former husband alleged that the former wife intended to relocate with the children to reside with her paramour. The former husband alleged that the former wife had, in the past, been subjected to verbal and physical abuse by her paramour. The former husband does not mention any harm that may befall the children should the temporary restraining order not be granted.

In Ex parte Williams, the father learned that the mother had moved to the State of Georgia and became concerned that the mother would remove their minor child from the State of Alabama. 474 So.2d at 708. The father petitioned the trial court in that case for a temporary restraining order prohibiting the mother from removing the child from the trial court's jurisdiction and granting the father temporary custody pending a hearing on the father's petition for a modification of custody. Id. Our supreme court held:

"Our own close scrutiny of the verified complaint filed by [the father] reveals not only that the requirements of Rule 65(b)(2) were not met, but also that the only 'immediate and irreparable injury, loss, or damage' alleged by [the father] was a disruption of his visitation rights if the child was taken to Georgia. We find that this allegation falls short of constituting a clear threat of irreparable and immediate injury as required by Rule 65(b)(2)."

Id. at 711.

Similarly, in the present case, the former husband did not present any facts in his motion for an ex parte temporary restraining order that showed "immediate and irreparable injury." Rule 65(b)(1). Likewise, "[i]n Ex parte Boykin, 656 So.2d 821, 826 (Ala. Civ. App. 1994), this court held that an 'injunction was invalid because neither the mother nor the trial court complied with the requirements of Rule 65 ....' " Person v. Person, 236 So.3d 90, 100 (Ala. Civ. App. 2017). "A void order is a complete nullity, and it is the duty of the court on application of an interested party to vacate the void order at any time subsequent to its rendition." Id. (citing Hodges v. Archer, 286 Ala. 457, 459, 241 So.2d 324, 326 (1970) ).

The former husband, in his response to the former wife's petition for a writ of mandamus, addresses only the validity of his "verification" and not the sufficiency of the grounds he alleged in support of the issuance of an ex parte temporary restraining order. Because we have determined that the order is void for the reasons expressed, we pretermit any discussion of the sufficiency of the verification.

The former wife has established that she has a clear legal right to the vacation of the trial court's August 7, 2018, ex parte temporary restraining order. We grant the former wife's petition for the writ of mandamus directed to the entry of the ex parte temporary restraining order for the reasons expressed and direct the trial court to vacate that order.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Thompson, P.J., and Pittman and Moore, JJ., concur.

Thomas, J., concurs in the result, without writing.

      Although the former wife points out that the documents in support of the former husband's petition to modify custody were incorrectly filed in the divorce action, her arguments in support of her petition seeking the writ of mandamus are based on other grounds.