Ex parte Maxwell

• Decision Date: 31 August 2001
• Citation: 812 So.2d 333
• Court: Alabama Supreme Court
• Parties: Ex parte Elizabeth Ann MAXWELL. (Re Dorothy D. Morris v. Havenwood Village, Inc., et al.)

812 So.2d 333

Ex parte Elizabeth Ann MAXWELL.

(Re Dorothy D. Morris v. Havenwood Village, Inc., et al.)

1001085.

Supreme Court of Alabama.

August 31, 2001.

William Dudley Motlow and Christopher N. Smith of Porterfield, Harper & Mills, P.A., Birmingham, for petitioner.

John N. Pappanastos and Janie S. Gilliland of Pappanastos, Wilson & Associates, P.C., Montgomery, for respondent.

HARWOOD, Justice.

Elizabeth Ann Maxwell, a defendant in an action pending in the Montgomery Circuit Court, petitions this Court for a writ of mandamus directing Judge Eugene Reese to quash service of process made upon her and to dismiss her as a defendant in the underlying action. The petition is denied.

On August 25, 2000, Dorothy Morris filed a complaint in the Montgomery Circuit Court. The complaint alleged fraud, negligence, negligent supervision and training, misrepresentation and suppression, breach of fiduciary duty, wantonness, conversion, conspiracy, and breach of contract against several defendants in regard to her purchase of a condominium. The caption, or title, of Morris's complaint did not include Maxwell's name among the defendants, but she was identified in the body of the complaint as a person involved in the sale of the condominium and against whom Morris was asserting claims. On November 6, 2000, Maxwell was served with the complaint.

On December 6, 2000, Maxwell filed a motion to quash service, or, alternatively, to be dismissed as a defendant. Citing Rule 10(a), Ala. R. Civ. P., she argued that because Morris had failed to name her as a defendant in the caption of the complaint, she was not a defendant in the lawsuit. She argued that this Court has held that "`it is the title of the [c]omplaint and not the body that establishes the parties who are before the court as litigants.'" Cofield v. McDonald's Corp., 514 So.2d 953, 954 (Ala.1987)(quoting Corona v. Southern Guar. Ins. Co., 294 Ala. 184, 186, 314 So.2d 61, 63 (1975)).

On January 31, 2001, in response to Maxwell's motion, Morris filed a motion to amend her complaint to add Maxwell as a defendant or, alternatively, to correct the style of her complaint to include Maxwell. Morris's motion stated that Maxwell had filed a petition in bankruptcy on July 31, 2000, before Morris filed the complaint on August 25, 2000. As a result, she stated, all proceedings against Maxwell were stayed by virtue of 11 U.S.C. § 362. The motion stated that this was the reason Maxwell was described in the body, but was not named as a defendant in the caption of the original complaint. The motion further stated that on August 28, 2000, Morris petitioned the United States Bankruptcy Court for the Middle District of Alabama to obtain relief from the stay so that she could pursue her claims against Maxwell. On September 28, 2000, the bankruptcy court entered an order terminating the stay, which allowed Morris to proceed against Maxwell.

On February 7, 2001, the trial court conducted a hearing on the motions, and on February 8, granted Morris's motion to amend her complaint and caption to add Maxwell as a defendant and denied Maxwell's motion to quash service or dismiss her as a defendant. Morris served Maxwell with the complaint for a second time on February 23, 2001.¹ On March 12, 2001, Maxwell filed a motion to reconsider and to clarify based upon the trial court's February 8 order. She specifically requested the trial court to clarify its ruling so as to note specifically whether it had granted Morris's motion to amend to add Maxwell as a defendant or to correct the style of the complaint. Maxwell apparently requested the clarification because, depending on which aspect of the motion was granted, Maxwell believed she might have a possible statute-of-limitations defense available to her. The trial court had not ruled on that motion when Maxwell petitioned this Court for a writ of mandamus.

This Court has stated:

"A writ of mandamus is an extraordinary remedy, and it will be `issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991). It is well settled that `a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.' Ex parte Central Bank of the South, 675 So.2d 403, 406 (Ala.1996)."

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). Furthermore, "[m]andamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion." State v. Cannon, 369 So.2d 32, 33 (Ala.1979).

Maxwell correctly states that this Court's precedent interpreting Rule 10, Ala. R. Civ. P., requires that all parties be named in the caption of a complaint. See Corona v. Southern Guar. Ins. Co., supra, and Cofield v. McDonald's Corp., supra. However, the trial court acted within its discretion in allowing Morris to amend her complaint to add Maxwell as a defendant. Rule 15(a), Ala. R. Civ. P., states, in pertinent part:

"Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first

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