Ex parte Reynolds
| Decision Date | 05 August 1983 |
| Citation | 436 So.2d 873 |
| Parties | Ex parte John M. REYNOLDS, Jr. (Re John M. REYNOLDS, Jr. v. Frances Weber BIRNBAUM, et al.) 82-275. |
| Court | Alabama Supreme Court |
Gregory J. McKay, Birmingham, for petitioner.
Jack B. McNamee of Topazi, Morton & McNamee, Birmingham, for respondents.
John Reynolds, Jr., petitions this court to issue the writ of mandamus to Honorable William C. Barber to compel him to set aside an order denying a trial of related equitable and legal claims in a single action, and trial to a jury of a legal claim.
The subject of this lawsuit is a house located in Homewood, Alabama, which was purchased by Reynolds from the defendants, Frances and Herbert Birnbaum and Alice and Robert Bolick. That property was sold at a foreclosure sale subsequent to Reynolds's default in payment to defendants.
Reynolds filed suit contending defendants did not provide notice of the sale to him as is required by § 6-8-66, Code 1975. He requested that the mortgage foreclosure be declared invalid or void, or, in the alternative, that he be allowed to redeem the property.
At a hearing on motions for summary judgment in that action, the defendants submitted an affidavit stating facts from which Reynolds concluded that fraud had been perpetrated upon him by defendants during the process of foreclosure. Two days after receipt of that affidavit, Reynolds amended his complaint, which had theretofore requested only equitable relief, to allege fraud and deceit. He also filed a demand for trial by jury of those legal claims.
Defendants submitted a motion to strike the amended complaint and the jury demand. The trial court granted this motion in part. Its order provides as follows:
Rule 15(a), ARCP, provides that "a party may amend his pleading without leave of court but subject to disallowance on the court's own motion or motion to strike of an adverse party." The purpose of this rule is to allow maximum opportunity for the parties to state each claim and have those claims decided on the merits of the issues to be tried. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979). The grant or denial of leave to amend is a matter within the sound discretion of the trial judge and is subject to reversal on appeal only for an abuse of that discretion. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977). The trial court acts within its discretion so long as its disallowance of an amendment of pleadings is based upon some valid ground, such as actual prejudice or undue delay. Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).
We have carefully reviewed the record presented with this petition. It reveals Reynolds's fraud count was filed more than a month before the date set for hearing of the case. It was based on a combination of facts previously alleged by Reynolds in support of his original complaint and facts set forth by the defendants in the affidavit in support of their motion for summary judgment. It named no new parties. Where an amendment merely changes the legal theory of a case or adds on additional theory, but the new or...
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