Shifting Sands of Mandamus Review, 0915 ALBJ, 76 The Alabama Lawyer 304 (2015)
| Author | By William W. Watts, III |
| Position | Vol. 76 5 Pg. 304 |
By William W. Watts, III
On the desert plains, strong winds will slowly move mountains of sand, peaks becoming valleys and valleys peaks. Several recent decisions of the Alabama Supreme Court have begun to shift some well-settled peaks and valleys of mandamus review of interlocutory trial court rulings. A ruling on the “standing” of a party to bring an action is no longer a sturdy peak for mandamus review. On the other hand, interlocutory decisions denying motions to dismiss or for summary judgment, traditionally an unpromising valley for mandamus review, have begun to form some peaks: mandamus petitions have been granted where the action is time-barred on the face of the complaint or where a conflicts of law issue is outcome-determinative. The contours of these new formations are still ill-defined, but the sands are shifting. Counsel should be aware of both the new opportunities for, and new limitations on, mandamus review.
General Requirement for Mandamus Review: The Inadequacy of Appeal as a Remedy
The standard by which the appellate courts will consider a petition for writ of mandamus is well established: “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).
Under this standard, mandamus is unavailable for many interlocutory rulings because of the “adequacy” of another remedy, i.e., an eventual appeal from those rulings. However, if an eventual appeal is incapable “of protecting parties from the injury immediately resulting from the error of the Court,” it is not an adequate remedy. Ex parte Hodge, 153 So.2d 734, 750 (Ala. 2014) (quoting Justice Murdock’s special concurrence in Ex parte Alamo Title Co., 128 So.3d 700, 714-15 (Ala. 2013), quoting in turn First National Bank of Anniston v. Chaney, 120 Ala. 117, 121-22, 23 So. 733, 734 (1898)). For this reason, mandamus review is available for certain discovery rulings requiring the disclosure of privileged matters or effectively eviscerating an entire action or defense; for a trial court’s failure to comply with the appellate court’s mandate or to grant the right to a jury trial; and for certain interlocutory rulings in divorce cases. Ex parte LSB, 800 So.2d at 578 (and cases cited therein). Similarly, the court treats erroneous rulings on certain defenses–such as immunity, subject matter jurisdiction, in personam jurisdiction, venue and some statute of limitations defenses–to be “of such a nature that a party simply ought not to be put to the expense and effort of litigation.” Ex parte Alamo Title Co., 128 So.3d at 716 (Murdock, J., concurring specially). An eventual appeal of these rulings does not protect parties from the immediate injury the defense was designed to prevent–the cost of litigating the merits of a claim that should not have to be litigated, either against this party, or at this particular time, or in this particular forum. See Ex parte U.S. National Bank Ass’n, 148 So.3d 1060, 1076 (Ala. 2014) (Murdock, J., dissenting) (“Where no court properly can adjudicate the merits of a claim, or where a claim ought to be, or ought to have been, tried on its merits in some different tribunal, mandamus review of the trial court’s decision to insist on adjudicating the merits of the claim has been granted by this Court”). Other “threshold issues,” unrelated to the merits, that the court has determined can be reviewed by mandamus, and should not have to await an eventual appeal, include the denial of a motion to dismiss or for summary judgment based on abatement, Ex parte J. E. Estes Wood Co., 42 So.3d 104 (Ala. 2010), or based on the doctrine of res judicata, Ex parte LCS, Inc., 12 So.3d 55, 56 (Ala. 2008); the refusal to permit the opt-out of a UIM insurer, Ex parte Geico Cas. Co., 558 So.3d 741 (Ala. 2002); a ruling on a motion to sever claims, Ex parte American Heritage Life Ins. Co., 46 So.3d 474 (Ala. 2010); the denial of a motion objecting to the appointment of a special master, Ex parte Alabama State Personnel Board, 54 So.3d 886 (Ala. 2010); the grant of a motion to set aside a previous supersedeas bond amount, Ex parte Mohabbat, 93 So.3d 79 (Ala. 2012); an indefinite stay of an action, Ex parte American Family Care, Inc., 91 So.3d 682 (Ala. 2012); and the failure to exhaust administrative remedies. Ex parte Blue Cross and Blue Shield of Ala., 90 So.3d 158 (Ala. 2012). These are merely exemplary of the innumerable kinds of rulings that need to be reviewed immediately if the injury from the ruling is to be remedied. So, in considering mandamus review of an interlocutory ruling, the critical inquiry should be whether an injury may immediately flow from the erroneous ruling, and whether an eventual appeal can adequately remedy that injury.
As a side note, the Alabama Supreme Court has held that the potential availability of a permissive appeal under Rule 5, A.R.C.P., is not an adequate alternative remedy so as to make mandamus unavailable. See Ex parte Hodge, 153 So.3d 734, 748 (Ala. 2014). Permissive appeals under Rule 5 are, first of all, limited to “controlling questions of law as to which there is a substantial ground for difference of opinion, . . . .” More importantly, Rule 5 certification is within the “wide discretion” of the trial judge as well as that of the supreme court. Id. This is not to say that an effort to certify a question for permissive appeal cannot strengthen a subsequent petition for writ of mandamus. In Ex parte U.S. Bank National Association, 148 So.3d 1060 (Ala. 2014), the court took note of the petitioner’s unsuccessful attempt to certify the matter for permissive appeal, thus leaving a petition for a writ of mandamus as the petitioner’s “only adequate remedy . . . .” Id. at 1065.
Shrinking Mandamus Review of Issues of “Standing”
A well-entrenched ground for mandamus review is a trial court’s ruling on its own subject matter jurisdiction over the dispute. If there is no justiciable controversy, the trial court lacks subject matter jurisdiction, and mandamus is available to review a refusal to dismiss the action. See Ex parte Valloze, 142 So.3d 504 (Ala. 2013) (trial court lacked subject matter jurisdiction over action seeking declaration of non-liability of potential tort defendants); South Alabama Gas District v. Knight, 138 So.3d 971 (Ala. 2013) (trial court lacks subject matter jurisdiction over action where actual controversy between parties ceases and case thereby becomes moot). Another aspect o f justiciability, and, thus, subject matter jurisdiction, has been the concept of the “standing” of a plaintiff to bring a claim. See Finn v. Ozark City School Board of Education, 9 So.3d 44, 46 (Ala. 2008) (“’Chief among these elements [composing the concept of justiciability] is the requirement that a plaintiff have ‘standing to invoke the power of the court in his behalf’ [citations]’”) (quoting Ex parte State Ex rel James, 711 So.2d 952, 960 (Ala. 1998)). This concept emerged in the federal courts as a way of limiting the category of plaintiffs who may challenge governmental action that affects the public generally. Standing was reserved to those who had some “direct injury” as a result of the governmental action, thus ensuring a sufficient “adverseness” for a justiciable “case” or “controversy” under the Constitution. See generally Wright & Miller, 13A Fed.Prac & Proc. Juris., §3531 (3d Ed. 2008). Over...
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