Ex parte Moore

• Decision Date: 31 October 2003
• Citation: 880 So.2d 1131
• Parties: Ex parte Andrea MOORE. (In re Montgomery Housing Authority v. Andrea Moore).
• Court: Alabama Supreme Court

880 So.2d 1131

Ex parte Andrea MOORE.

(In re Montgomery Housing Authority v. Andrea Moore).

1020599.

Supreme Court of Alabama.

October 31, 2003.

Lawrence F. Gardella of Legal Services Corp. of Alabama, Montgomery, for petitioner.

Richard G. Moxley III and Karen Materna of Holloway, Elliott & Moxley, LLP, Montgomery, for respondent.

HARWOOD, Justice.

The petitioner, Andrea Moore, a defendant in an action pending in the Montgomery Circuit Court, seeks a writ of mandamus ordering the circuit court to vacate its order denying her request for a jury trial in an eviction action brought by the Housing Authority for the City of Montgomery ("MHA"), pursuant to the Sanderson Act, Ala.Code 1975, § 35-9-80 et seq. The purpose of the Sanderson Act is to provide a more speedy remedy to a landlord for recovering possession of his or her land after expiration of a lease or when possession is wrongfully withheld by the tenant. See Garrett v. Reid, 244 Ala. 254, 13 So.2d 97 (1943). See also Riley v. Riley, 257 Ala. 636, 60 So.2d 432 (1952); Williams v. Prather, 236 Ala. 652, 184 So. 473 (1938); and Hicks v. Longfellow Dev. Co., 362 So.2d 219 (Ala.1978). The Sanderson Act also vests Alabama district courts with jurisdiction to hear cases brought under that act. Section 35-9-80 states:

"In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or after his right of possession has terminated or been forfeited, and the owner of the lands or tenements shall desire possession of the same, such owner may by himself, his agent or attorney-in-fact or attorney-at-law demand the possession of the property so rented, leased, held or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent or attorney-at-law or attorney-in-fact may go before the district court in the county in which the land lies, and make oath of the facts."

Section 35-9-83 provides:

"Any defendant in any such action may remove such action from the district court before whom the same is brought, to the circuit court of the county in which the real estate sued for is situated, in like manner and upon like proceedings as actions for forcible entry and detainer or unlawful detainer may now be so removed, and the trial of any such case so removed shall be conducted under like procedure and with like issues as now provided for the trial of actions of forcible entry and detainer or of unlawful detainer so removed."

Further, § 35-9-87, states, in pertinent part:

"(a) Any party may appeal from a judgment entered against him by any district court, to the circuit court, at any time within one day after the entry thereof, and such appeal and the proceedings thereon shall in all respects be governed by the law relating to appeals from district courts."

Moore, a tenant at 3704(B) Smiley Circle, in Smiley Court,¹ a housing complex in Montgomery, was served with a notice of eviction on November 13, 2002, and thereafter failed to deliver possession of the apartment at 3704(B) Smiley Circle. On December 12, 2002, MHA filed an eviction action against Moore under the Sanderson Act in the Montgomery County District Court. The basis of MHA's eviction action was that Moore had held possession of the premises over and beyond the term of her lease. Moore responded by filing an affidavit, contending that her lease had not been terminated and that she had a right to continue as a tenant of the residence. On January 6, 2003, the district court entered an order evicting Moore. The next day, Moore filed a notice of appeal to the Montgomery Circuit Court in which she requested a trial by jury. Thereafter, MHA filed a motion to strike Moore's jury demand, which Moore opposed. After a hearing on the matter, the circuit court entered an order denying Moore's request for a trial by jury and set the case for a nonjury trial. The circuit court's order denying Moore's request for a jury trial states:

"The above-referenced case having come before this Court on [MHA's] motion to strike [Moore's] jury request, and argument having been heard without the taking of evidence, the Court grants the motion to strike and strikes the jury request. The Alabama Constitution does not confer on a tenant the right to a trial by jury in an eviction pursuant to the Sanderson Act, because such an action differs from unlawful detainer actions in that a money judgment is not available, and in that a Sanderson Act eviction was specifically designed to be more expeditious."

Moore contends that the issue presented to this Court is whether the circuit court violated her constitutional right to a trial by jury guaranteed by § 11 of the Alabama Constitution of 1901. She argues that she is entitled to a jury trial because, she says, an eviction under the Sanderson Act is within the class of actions for which a right to a jury trial existed when the Alabama Constitution was adopted in 1901. Thus, she asserts that she has a clear legal right to a writ of mandamus from this Court ordering the trial court to grant her request for a jury trial.

"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). "The rights of the parties secured by those statutory provisions [providing for a right to a trial by jury] are subject to the enforcement by mandamus in view of the fact that as a rule there would not be an adequate remedy by appeal from the final judgment." Ex parte Merchants Nat'l Bank of Mobile, 257 Ala. 663, 664, 60 So.2d 684, 685 (1952), citing Ex parte Ansley, 107 Ala. 613, 18 So. 242 (1895); Knight v. Farrell & Reynolds, 113 Ala. 258, 20 So. 974 (1896); 55 C.J.S. Mandamus, § 93, p. 151. "Mandamus is the appropriate review where the availability of a jury trial is at issue." Ex parte Cupps, 782 So.2d 772, 775 (Ala.2000).

"The right to a trial by jury in civil cases is protected in the federal courts by the Constitution of the United States and in our state courts by Section 11 of the Alabama Constitution of 1901, which provides: `That the right to a trial by jury shall remain inviolate.'

"Unlike the Federal Constitution which preserves the right to jury trial as of 1791, Alabama's Constitution effected a `freezing' of the right to jury trial as of 1901. Section 11 did not extend the right to cases in which it did not exist at that time. Miller v. Gaston, 212 Ala. 519, 103 So. 541 (1925); In re One Chevrolet Automobile, 205 Ala. 337, 87 So. 592 (1921); Alford v. State, ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910). See also Thomas v. Bibb, 44 Ala. 721 (1870); Tims v. State, 26 Ala. 165 (1855); and Boring v. Williams, 17 Ala. 510 (1850).

"The correctness of these general principles cannot be disputed. However, as is often the case, generality leads to oversimplification. In several of our later decisions, it was held that the constitutional right to a trial by jury does not extend to causes unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution. See, e.g., Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966); City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So.2d 247 (1965); Miller v. Gaston, supra.

"This proposition lends itself to two possible interpretations. One construction is that the constitutional guaranty of trial by jury extends only to common law causes of action existing at the time of adoption of the 1901 Constitution, i.e., that the guaranty does not extend to statutory law existing at that time. The other construction is that the guaranty of trial by jury extends only to causes existing either at common law or under statutory law at the time of the adoption of the 1901 Constitution. The courts of the several states are divided on this question, some having adopted the former interpretation and some, including Alabama, being committed to the latter. In one of our older cases, Tims v. State, supra, the principle is stated:

"`But it also urged, that the act is in conflict with the twenty-eighth section of the bill of rights, which declares "that the trial by jury shall remain inviolate." In relation to this position, it is only necessary to observe, that it was not intended by this clause of the constitution to extend the right of jury trial to cases which were unknown either to the common or statute law, at the time of the adoption of that instrument.'

"In Alford v. State, supra, the court quoted from Tims v. State, supra, and set forth the principle as it applies to both civil and criminal cases:

"`The right [trial by jury] is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution. Where there have been several Constitutions, the right is in reference to its existence at the time of the adoption of the last one.'"

Gilbreath v. Wallace, 292 Ala. 267, 269-70, 292 So.2d 651, 653 (1974) (footnote omitted).

In light of the rule discussed in Gilbreath, we must determine whether the right to a trial by jury existed by statute or at common law for a Sanderson Act...