Scannelly v. Toxey (Ex parte Scannelly)

• Decision Date: 30 June 2011
• Docket Number: 1100226.
• Parties: Ex parte Beverly SCANNELLY.(In re Beverly Scannelly v. Gary Toxey).
• Court: Alabama Supreme Court

74 So.3d 432

Ex parte Beverly SCANNELLY.(In re Beverly Scannelly

v.Gary Toxey).

1100226.

Supreme Court of Alabama.

June 30, 2011.

James H. White IV and Stephen K. Pudner of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.

Jon B. Terry of Bains & Terry, Bessemer, for respondent.

SHAW, Justice.

Beverly Scannelly petitions this Court for a writ of mandamus directing the Jefferson Circuit Court, Bessemer Division (“the Bessemer Division”), to vacate all orders entered after Scannelly filed a notice of dismissal pursuant to Rule 41(a), Ala. R. Civ. P., and for a writ of prohibition restraining that court from future attempts to exercise jurisdiction over Scannelly's case. For the reasons stated below, we deny the petition.

Facts and Procedural History

In June 2009, Scannelly initiated a civil suit against her brother, Gary Toxey, in the Birmingham Division of the Jefferson Circuit Court (“the Birmingham Division”), seeking to void certain real-estate transfers by their father to Toxey and alleging that those transfers were the result of undue influence by Toxey. Scannelly's complaint contained a legal description of each of the subject parcels.

Almost one year later, in May 2010, Toxey, in lieu of an answer, filed a motion pursuant to Rule 12(b), Ala. R. Civ. P., seeking to dismiss Scannelly's complaint based on, among others, grounds that the Birmingham Division lacked subject-matter jurisdiction based on the locations of the subject real estate and that the doctrine of res judicata precluded her action. In support of his claim that Scannelly's complaint was due to be dismissed pursuant to the doctrine of res judicata, Toxey's motion included three attachments consisting of orders relating to the subject real estate issued by the Jefferson Probate Court.

After a hearing on Toxey's motion, the Birmingham Division transferred the case to the Bessemer Division on August 13, 2010, based on the conclusion that “the only real property located within the territorial jurisdiction of Jefferson County lies in the Bessemer Division....” See § 12–11–11, Ala.Code 1975 (providing for a transfer to another court in same county in actions where “it shall appear to the court that any case filed therein should have been brought in another court in the same county”). The transfer order clearly indicated that, in transferring the case to the Bessemer Division, the court “[did] not address [Toxey's] grounds to dismiss based on the affirmative defense of res judicata” because, it said, “[t]he matters necessary for the Court to review in considering [those] grounds lie outside of the parameters of [Scannelly's] complaint or any documents referenced therein.” Therefore, the Birmingham Division noted, it left resolution of the issue of res judicata to the Bessemer Division.

Immediately following the transfer of her case to the Bessemer Division, on August 24, 2010, at 3:46 p.m., Scannelly filed, pursuant to Rule 41(a)(1), Ala. R. Civ. P., a “Notice of Dismissal of Claims” in which she purported to voluntarily dismiss all of her claims against Toxey without prejudice. ¹ In her notice, Scannelly alleged that no responsive pleading, either in the form of an answer or a motion for a summary judgment, had yet been filed in the matter. In response to Scannelly's notice, and on that same date at 4:29 p.m., the Bessemer Division entered an order dismissing Scannelly's case without prejudice. Also on August 24, at 4:42 p.m., Toxey filed in the Bessemer Division a motion to dismiss or, in the alternative, for a summary judgment. In that motion, Toxey renewed his argument “that the doctrine of collateral estoppel, res judicata, issue recursion [sic], equitable estoppel and the Alabama Rules of Civil Procedure prohibit retrying issues that have been tried or that should have been tried and alleged prior hereto.”

On August 26, 2010, Scannelly refiled her complaint in the Tuscaloosa Circuit Court, omitting her previous claims as to the real estate located in Jefferson County.² In response, on August 31, 2010, Toxey filed in the Bessemer Division a motion seeking to reinstate Scannelly's dismissed action to the Bessemer Division's active docket and alleging, in pertinent part:

“1. The Order granting the Motion to Dismiss was done within just a few hours of the Motion being filed.

“2. The Defendant had begun preparing, but had not yet filed a Motion to Dismiss and/or in the Alternative Motion for Summary Judgment.

“3. Contrary to [Scannelly's] [assertion] that no pleadings had been filed ... attacking the jurisdiction of the Court to even hear these matters and asking the Court to dismiss this case[, such pleadings] had already been filed in the Birmingham Division.

“4. It is obvious that the Court would not have been aware of this filing that went directly to the merits of [Scannelly's] ability [to bring] this case because of the doctrines of res judicata and collateral estoppel.”

Thereafter, on October 19, 2010, the Bessemer Division granted Toxey's motion to reinstate Scannelly's action, set aside its August 24, 2010, order dismissing Scannelly's case, and both returned the matter to the court's active docket and scheduled a hearing. In support of that decision, the court specifically found “that the submission of [Toxey's] amounted to the filing of a Motion for Summary Judgment pursuant to Ala. R. Civ. P. 12(b)(6) thereby precluding summary unilateral dismissal by [Scannelly] pursuant to Ala. R. Civ. P. 41(a).” Scannelly then filed the present petition seeking the above-described writs of mandamus and prohibition. On January 4, 2011, this Court ordered answers and briefs.

Standard of Review

“ ‘Mandamus is an extraordinary remedy and will be granted 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 Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003)(quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).

“Like mandamus, prohibition is an extraordinary writ, ‘and will not issue unless there is no other adequate remedy.’ Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992) (citing Ex parte Strickland, 401 So.2d 33 (Ala.1981)). ‘Prohibition is proper for the prevention of a usurpation or abuse of power where a court undertakes to act in a manner in which it does not properly have jurisdiction.’ Ex parte K.S.G., 645 So.2d at 299. A writ of prohibition will issue ‘[o]nly if the pleadings show on their face that the lower court does not have jurisdiction.’ Ex parte Perry County Bd. of Educ., 278 Ala. 646, 651, 180 So.2d 246, 250 (1965). ‘In such instances, the act of the usurping court is wholly void, and will not support an appeal.’ Id.”

Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232–33 (Ala.2004).

Discussion

In her petition, Scannelly contends that she had “a clear legal right” to a Rule 41(a) dismissal because, she says, when she filed her notice of dismissal Toxey had not yet filed either an answer or a summary-judgment motion in response to her complaint. She further argues that once she filed her Rule 41(a)(1) notice of dismissal, that notice—and the dismissal—became effective immediately (even without the Bessemer Division's subsequent dismissal order) and prevented the Bessemer Division's attempt to assert jurisdiction over her case. More specifically, Scannelly contends that, because in transferring her case to the Bessemer Division the Birmingham Division made clear in its order that it did not consider matters outside the pleadings, Toxey's Rule 12(b) motion was not converted to a motion for a summary judgment and therefore no answer or motion for a summary judgment had been filed before she filed her Rule 41(a)(1) notice of dismissal.

In support of her petition, Scannelly relies primarily on this Court's decision in Ex parte Sealy, supra. Among other issues, Sealy similarly involved a petitioner's contention that, because the defendant had filed neither an answer nor a motion seeking a summary judgment before the petitioner filed its Rule 41(a)(1) notice of dismissal, any action taken by the trial court subsequent to the filing of the petitioner's notice of dismissal was void. This Court agreed with the petitioner's argument and granted the requested writs of mandamus and prohibition. In doing so, we stated the following regarding the application of Rule 41:

“Rule 41(a)(1) ..., Ala. R. Civ. P., provides, in pertinent part:

“ ‘ (a) Voluntary Dismissal: Effect Thereof.

“ ‘(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.... Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice....

“ ‘....’

“(Emphasis added.) ‘The committee comments to Rule 41 state that this rule is substantially the same as the federal rule, and we normally consider federal cases interpreting the federal rules of procedure as persuasive authority.’ Hammond v. Brooks, 516 So.2d 614, 616 (Ala.1987).

“It is well settled that ‘[d]ismissal on motion under [ subdivision (2) of Rule 41(a) ] is within the sound discretion of the court.’ Bevill v. Owen, 364 So.2d 1201, 1202 (Ala.1979); see also MetFuel, Inc. v. Louisiana Well Serv. Co., 628 So.2d 601 (Ala.1993). By contrast, review of a dismissal pursuant to subdivision (1) is de novo. See Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 545 (4th Cir.1993); Matthews v....