Doe v. Campus Evolution Villages, LLC (In re Doe)
Decision Date | 09 July 2021 |
Docket Number | 1191073 |
Citation | 344 So.3d 877 |
Parties | EX PARTE Jane DOE, individually and as mother and next friend of her minor children, Judy Doe and John Doe (In re: Jane Doe, individually and as mother and next friend of her minor children, Judy Doe and John Doe v. Campus Evolution Villages, LLC, et al.) |
Court | Alabama Supreme Court |
Gregory M. Zarzaur of The Zarzaur Law Firm, Birmingham, for petitioner.
Joseph H. Driver and Russell Q. Allison of Carr Allison, Birminghan, for respondents Pinnacle Campus Living, LLC; CEV Tuscaloosa, LLC; and CEV Tuscaloosa LP.
Emily Sides Bonds of Jonas Walker LLP, Birmingham, for respondent Gulf South Security Solutions, LLC.
Neal D. Moore III of Moore Young Foster & Hazelton, LLP, Birmingham, for respondent Signal 88, LLC.
Jane Doe ("Doe"), individually and as mother and next friend of her minor children, Judy Doe and John Doe, petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its August 18, 2020, order staying all discovery in this case. We grant the petition and issue the writ.
On August 25, 2019, Doe was dropping off her children to stay with a friend at the Campus Evolution Villages apartments in Tuscaloosa. Doe alleges that, while she was in the common area of the apartments, Tereza Demone Jones assaulted her and raped her in front of her children and then fled the scene. Jones was later arrested and is being prosecuted by the State of Alabama for first-degree rape, a violation of § 13A-6-61(a)(1), Ala. Code 1975.
On February 14, 2020, Doe sued Campus Evolution Villages, LLC; Pinnacle Campus Living, LLC ("Pinnacle"); Pinnacle Property Management Services, LLC; Jones; and various fictitiously named defendants in the Tuscaloosa Circuit Court. On April 23, 2020, Doe amended the complaint to dismiss Pinnacle Property Management Services, LLC, and Campus Evolution Villages, LLC, without prejudice and to substitute CEV Tuscaloosa, LLC; Signal 88, LLC; Gulf South Security Solutions, LLC ("Gulf South"); and CEV Tuscaloosa, LP, for fictitiously named defendants. The amended complaint included counts alleging assault and battery, invasion of privacy, and the tort of outrage against Jones and counts alleging negligence and/or wantonness and negligence and/or wantonness based on a premises-liability theory against CEV Tuscaloosa, LLC, CEV Tuscaloosa, LP, Pinnacle, Signal 88, and Gulf South.
On July 31, 2020, Doe filed a motion for the entry of a default against Jones. She alleged that the summons, complaint, and amended complaint had been served on Jones on June 16, 2020, and that he had not answered or otherwise responded.
On August 13, 2020, Gulf South and Pinnacle filed a joint motion to stay the civil action pending the outcome of the criminal proceeding against Jones. They alleged that no discovery had been conducted in the case; that Doe and the defendants would need to conduct discovery relating to the incident, including taking the deposition of Jones; and that, because any such deposition would involve questions relating to the matters at issue in the criminal proceeding, conducting discovery in this case must be stayed until the criminal proceeding is concluded. Gulf South and Pinnacle also alleged that this civil proceeding and the criminal proceeding against Jones are parallel; that Jones's privilege against self-incrimination under the Fifth Amendment to the United States Constitution would be threatened if he is called for a deposition in this case while the criminal proceeding is still pending; and that the factors in the balancing test set forth in Ex parte Baugh, 530 So. 2d 238, 244 (Ala. 1988), and Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003), weigh in favor of allowing the criminal proceeding to be concluded before conducting discovery in this proceeding.
On August 18, 2020, the trial court granted the motion to stay. On that same date, it denied Doe's motion for the entry of a default against Jones.
On August 24, 2020, Doe filed a motion to reconsider both orders and asked the trial court to enter an order allowing her to pursue discovery and permitting the circuit clerk to enter a default against Jones. On September 2, 2020, the trial court denied Doe's motion to reconsider. This petition followed.
Doe argues that the trial court exceeded its discretion by granting Gulf South and Pinnacle's motion to stay based on speculation that Jones might assert his Fifth Amendment privilege against self-incrimination in response to discovery, or questioning he might face in a deposition, that might be served on him in this case. Specifically, she contends that Gulf South and Pinnacle "cannot assert the Fifth Amendment for Jones and [that] they failed to present evidence that Jones had asserted or would assert his Fifth Amendment right against self-incrimination in response to discovery that might, at some point in the future, be served on him in this case, so as to justify the stay imposed by the trial court." We agree that Gulf South and Pinnacle cannot assert the Fifth Amendment on behalf of Jones.
In Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006), this Court set forth the following method for determining whether a stay is warranted when a Fifth Amendment privilege against self-incrimination is invoked:
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