Ex Parte Children's Hospital of Alabama

• Decision Date: 19 August 2005
• Docket Number: 1040122.
• Citation: 931 So.2d 1
• Parties: Ex parte The CHILDREN'S HOSPITAL OF ALABAMA and Martha Pszyk. In re Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased v. The Children's Hospital of Alabama et al.
• Court: Alabama Supreme Court

Page 1

931 So.2d 1

Ex parte The CHILDREN'S HOSPITAL OF ALABAMA and Martha Pszyk.

In re Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased v. The Children's Hospital of Alabama et al.

1040122.

Supreme Court of Alabama.

August 19, 2005.

Rehearing Denied December 9, 2005.

Jasper P. Juliano and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for petitioners.

Ted Taylor, Leah O. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham; J. Gusty Yearout and M. Stan Herring of Yearout & Traylor, P.C., Birmingham; and William A. Short, Bessemer, for respondent.

SEE, Justice.

The Children's Hospital of Alabama and Martha Pszyk petition this Court for a writ of mandamus directing the trial court to transfer a case from the Bessemer Division of the Jefferson Circuit Court to the Birmingham Division. The respondent, Harrison Taylor Terry, as personal representative of the estate of Austin Taylor Terry, deceased, moved to dismiss the petition for the writ of mandamus. We deny the motion to dismiss, grant the petition, and issue the writ.

Facts and Procedural History

On September 6, 2002, Austin Taylor Terry, a 14-month-old child, was admitted to the emergency room of the Children's Hospital of Alabama ("the Hospital") in Birmingham. Austin lived with his mother and custodial parent, Amber Michelle Phillips, in Bessemer. The admitting doctor noted that Austin was suffering from "Non-Accidental Trauma." The doctor assigned Martha Pszyk, a social worker employed by the Hospital, to the case. Pszyk contacted both the Department of Human Resources ("DHR") and the Bessemer Police Department on the day Austin was admitted to the Hospital. The Hospital states that, upon determining that Austin was medically stable, the treating physician discharged Austin to Phillips, based on instructions received by the Hospital from DHR.

On November 2, 2002, Phillips discovered Austin nonresponsive in his crib. She rushed him to the Hospital and, according to the Hospital, Austin arrived "in grave condition"; he died the next day. Phillips's boyfriend, Christopher Wesson, was charged with capital murder for Austin's death. The criminal case against Wesson is pending in the Bessemer Division of the Jefferson Circuit.

On December 5, 2002, Harrison Taylor Terry, Austin's father, sued the Hospital, DHR, and DHR employee Susan Tulle in the Bessemer Division of the Jefferson Circuit Court (case no. CV-02-1703). The complaint alleged that the defendants: (1) had failed to adequately and timely report that Austin had been abused; (2) had failed to investigate and otherwise to act upon allegations of abuse; (3) had failed to remove Austin from a life-threatening situation; and (4) had allowed Austin to be released to the care and custody of individuals who were suspected of abuse. On January 16, 2003, the Hospital moved to dismiss Terry's complaint or, in the alternative, for a change of venue to the Birmingham Division of the Jefferson Circuit Court. The trial court denied that motion, and the Hospital moved the trial court to reconsider it.¹

On April 29, 2003, Phillips filed in the Bessemer Division of the Jefferson Circuit Court a separate wrongful-death action against the Hospital, Pszyk, Wesson, and DHR employees Susan Tulle, JoAnn Hood, and Evonne Sumerlin (case no. CV-03-565). Her complaint alleged that the Hospital, Pszyk, and the DHR employees failed properly to report and investigate suspicions and allegations of abuse and to remove Austin from a life-threatening situation. On June 3, 2003, the Hospital and Pszyk moved to dismiss Phillips's complaint or, in the alternative, for a change of venue to the Birmingham Division.

On that same day, June 3, 2003, the Hospital for a second time moved the trial court in case no. CV-02-1703, the case brought by Austin's father, Terry, to dismiss that case, arguing that, because Phillips was Austin's custodial parent at the time of his death, the exclusive right to bring a wrongful-death action belongs to Phillips. See § 6-5-390, Ala.Code 1975. Terry responded and also sought a preliminary injunction to prevent Phillips from pursuing her wrongful-death action.

On November 20, 2003, the trial court heard arguments regarding who is the proper plaintiff to bring a wrongful-death action arising out of Austin's death. The trial court stated, "I will rule on the standing issue. And I will do it before I do anything about the transfer concerning the medical malpractice and let y'all file whatever y'all want to."

On May 13, 2004, Phillips filed a motion to amend the complaint in her wrongful-death action to dismiss "without prejudice any claims by the Plaintiff, Amber Michelle Phillips, in her capacity as mother and custodial parent of Austin Taylor Terry," and to substitute as the plaintiff "Harrison Taylor Terry, as personal representative of the Estate of Austin Taylor Terry, deceased."² On May 24, 2004, the trial court dismissed the case that had been filed by Terry on December 5, 2002 (case no. CV-02-1703), and on May 28, 2004, the Hospital moved for the dismissal of the amended complaint in case no. CV-03-565, in which Terry had been substituted as the plaintiff. The Hospital argued that, under § 6-5-390, Terry, as a noncustodial parent, is not a proper plaintiff. Thus, there were before the trial court two motions to dismiss in case no. CV-03-565: first, there was the June 3, 2003, motion to dismiss or to change venue, and, second, there was the May 28, 2004, motion to dismiss on the ground of standing because, the motion argues, Terry, as a noncustodial parent, is not a proper plaintiff.

On June 21, 2004, the trial court entered a notation on the case-action summary sheet in case no. CV-03-565 stating: "Motion to Dismiss is Denied. Motion to Amend Complaint is Granted." On July 28, 2004, the Hospital and Pszyk filed a "Motion for Clarification, Alternatively to Reconsider and Supplement Motion to Dismiss, Alternatively Motion to Transfer." They sought clarification from the trial court as to which motion to dismiss it had ruled on-the one that alternatively sought a change of venue or the one that sought only a dismissal.

On September 13, 2004, the trial court entered an order on the case-action summary sheet, stating, in pertinent part:

"[T]he motion to transfer is denied as the matter the subject of this suit arose in Jefferson County Bessemer Division. The matter is properly pleaded to bring the case in this Court. The individuals involved at [the] Hospital who are named in the complaint are not medical care providers and as such do not come under [the] Alabama Medical Liability Act. This was the ruling on 6/21/04 and the same ruling made in open court before this date."³

On October 12, 2004, the Hospital and Pszyk moved the court to reconsider the motion to change venue. The motion to reconsider was denied on October 20, 2004. On October 22, 2004, the Hospital and Pszyk petitioned this Court for the writ of mandamus.⁴

The Hospital and Pszyk argue in the petition that the petition is timely in that they petitioned this Court within 42 days of the date on which the trial court "clearly stated that the Motion to Transfer Venue was denied, September 13, 2004." They further argue in their petition that, even if this Court concludes that the trial court had ruled on the motion on an earlier date, they petitioned this Court within a reasonable period under Rule 21, Ala. R.App. P., "due to the great deal of confusion associated with the two cases in question." They further argue:

"Among the confusing aspects were (1) the fact that there were two pending cases and an issue of which of those two would go forward, (2) the fact that the trial court and the parties agreed that the threshold standing issue should be decided prior to any other issues, (3) the fact that the trial court was not specific or clear in its rulings, (4) the fact that all orders were only written as notations on the Case Action Summary Sheet, and (5) the fact that those entries were not placed in chronological order. The [Hospital and Pszyk] took every reasonable step to alleviate this confusion and clarify the trial court's rulings. Each of those steps was timely and appropriately made to ensure what matters were ruled upon, and therefore, ripe for appellate review. Finally, after numerous steps, the court made its decision clear on September 13, 2004. Upon such ruling, the [Hospital and Pszyk] filed this Petition."

On November 4, 2004, Terry moved to dismiss the Hospital and Pszyk's petition for the writ of mandamus, arguing that it was untimely. Terry argues that a motion to reconsider an interlocutory order does not toll the time for filing a petition for the writ of mandamus and that if a mandamus petition is filed outside the presumptively reasonable time, the petitioner must include in the petition an explanation of the circumstances constituting good cause for the delay in filing. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala.2003). Terry further argues that the Hospital and Pszyk's statement in their petition of good cause is inadequate. In support of that argument Terry cites Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 737 (Ala.2004)(stating that the petitioner had failed to include a statement of good cause in its mandamus petition and that the statement included in the response to the motion to dismiss the petition was also inadequate because the petitioner did not address "the impact on the timely administration of justice in the trial court"). On November 12, 2004, the Hospital and Pszyk responded to Terry's motion to dismiss, reiterating their arguments that because the trial court's June 21, 2004, order was unclear as to which motion to dismiss it was ruling on, the mandamus petition was timely and, even if this Court determines that it was not filed within a presumptively reasonable time, there is good cause to...