Ex parte Pelham Tank Lines, Inc.

• Court: Supreme Court of Alabama
• Writing for the Court: HARWOOD, Justice.
• Citation: 898 So.2d 733
• Parties: Ex parte PELHAM TANK LINES, INC. (In re Hunt Refining Company, Inc. v. Decatur Transit, Inc., and Pelham Tank Lines, Inc.)
• Decision Date: 08 October 2004

898 So.2d 733

Ex parte PELHAM TANK LINES, INC.
(In re Hunt Refining Company, Inc.
v.
Decatur Transit, Inc., and Pelham Tank Lines, Inc.)

1030220.

Supreme Court of Alabama.

October 8, 2004.

Tom Burgess of Burgess & Hale, L.L.C., Birmingham, for petitioner.

William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, LLP, Decatur, for respondent Hunt Refining Company, Inc.

George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville, for respondents Certain Underwriters at Lloyd's, London.

HARWOOD, Justice.

Pelham Tank Lines, Inc. ("Pelham"), petitions this Court for a writ of mandamus directing Judge Steven E. Haddock, circuit judge of Morgan County, to vacate his order granting the motion to intervene filed by "Certain Underwriters at Lloyd's, London" ("Lloyd's"). Lloyd's has moved to dismiss the petition as untimely. Because Lloyd's motion is well taken, we grant it and dismiss the petition. Because we dispose of the petition on that basis, we set forth only those facts relevant to that disposition.

On January 6, 2003, Hunt Refining Company, Inc. ("Hunt"), sued Decatur Transit, Inc. ("Decatur"), and Pelham in connection with an asphalt spill at an asphalt ground-storage facility. Decatur answered the complaint and cross-claimed against Pelham. On May 9, 2003, Lloyd's filed its "Motion to Intervene" and "Complaint in Intervention," seeking to recover from Pelham expenses Lloyd's had incurred on behalf of its insured, Decatur, in connection with the cleanup of the asphalt spill. On June 3, 2003, Pelham filed an objection to the motion to intervene and a motion to dismiss the complaint in intervention,

898 So.2d 734

asserting various grounds. On June 19, 2003, Lloyd's filed an amended complaint in intervention. On July 22, 2003, Judge Haddock issued an order granting Lloyd's motion to intervene, denying Pelham's objection to that motion and its motion to dismiss the complaint in intervention, and allowing Pelham 14 days within which to file a responsive pleading to the complaint in intervention

On August 22, 2003, Pelham filed with Judge Haddock a petition seeking permission "pursuant to Rule 5, Ala. R.App. P., ... to take an appeal from an interlocutory Order not otherwise appealable...." Pelham sought review of Judge Haddock's order granting Lloyd's motion to intervene and requested that Judge Haddock certify four separate "controlling questions of law" for interlocutory appeal.

On September 18, 2003, Judge Haddock entered an order declining to issue the requested certificate, stating that his order of July 22, 2003, "[did] not involve a controlling question of law as to which there is substantial ground for difference of opinion." See Rule 5, Ala. R.App. P. On October 30, 2003, Pelham filed with this Court the petition for a writ of mandamus now under consideration. Lloyd's has moved to dismiss the petition as untimely, pointing out the following provisions of Rule 21(a), Ala. R.App. P.:

"The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking a review of an order of a trial court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time."

"The time for taking an appeal" referenced by Rule 21(a) is that established by Rule 4(a)(1), Ala. R.App. P.: "within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from." Pelham's petition for the writ of mandamus was not filed until 100 days after Judge Haddock entered his order granting Lloyd's motion to intervene and denying Pelham's objection to that motion and Pelham's motion to dismiss Lloyd's complaint in intervention. The petition contains no "statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time." Rule 21(a), Ala. R.App. P.

In response to Lloyd's motion to dismiss the petition because it was untimely and failed to include a statement of circumstances constituting good cause for this Court to consider the petition, Pelham has filed its "Brief in Opposition to Motion to Dismiss Petition for Writ of Mandamus." Its stated defense to Lloyd's motion is twofold. First, it contends that the time for filing a petition for a writ of mandamus was "tolled" when it filed its petition for permission to appeal pursuant to Rule 5, Ala. R.App. P., and that the time thus suspended "did not restart until issuance of Judge Haddock's Order of September 18, 2003, denying Pelham's petition for permission to appeal." Therefore, Pelham argues, its petition for the writ of mandamus was timely, having been filed on the forty-second day following the September 18 order.

This Court addressed a similar situation in Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003). In that mandamus proceeding Troutman Sanders, LLP ("Troutman"), a...