Ex parte Sealy, LLC

• Decision Date: 30 December 2004
• Docket Number: No. 1031820.,1031820.
• Citation: Ex parte Sealy, LLC, 904 So.2d 1230 (Ala. 2004)
• Parties: Ex parte SEALY, L.L.C. (In re Sealy, L.L.C. v. Napoleon Banks).
• Court: Alabama Supreme Court

904 So.2d 1230

Ex parte SEALY, L.L.C.

(In re Sealy, L.L.C. v. Napoleon Banks).

No. 1031820.

Supreme Court of Alabama.

December 30, 2004.

W. Cameron Parsons and Randal Kevin Davis of Davidson, Wiggins, Jones & Parsons, P.C., Tuscaloosa, for petitioner.

Christopher A. Thigpen, Tuscaloosa, for respondent.

WOODALL, Justice.

Sealy, L.L.C. ("Sealy"), petitions this Court for writs of mandamus and prohibition, directing the Hale Circuit Court to vacate its order dismissing with prejudice Sealy's action against Napoleon Banks and restraining that court from considering an award of attorney fees and costs. We grant the petition and issue the writs.

On October 3, 2003, Sealy sued Banks in the Tuscaloosa Circuit Court. Its complaint contained the following pertinent factual averments:

"3. On or about the 16th day of June, 2003, in Tuscaloosa, Alabama, [Sealy] agreed to sell to [Banks] a house located at 1919 6th Avenue East, Tuscaloosa, Alabama, for $20,000.00....

"4. [Banks] delivered to [Sealy] payment by check in the amount of $20,000.00. Upon presentment for payment of said check, the check was dishonored by [Banks's] bank and returned to [Sealy].

"5. [Banks] has breached his agreement by tendering a worthless instrument in the amount of $20,000.00 to [Sealy]."

Sealy sought damages under theories of breach of contract and fraud.

On October 31, 2003, Banks filed a "Motion to Dismiss and/or Transfer Venue." More specifically, Banks asserted that the "complaint fail[ed] to state a claim upon which relief [could] be granted," and that venue was proper only in Hale County. On November 17, 2003, Sealy filed an amended complaint, as well as a response to Banks's motion. The amended complaint added three counts specifically averring misrepresentation. On November 25, 2003, Banks moved to strike portions of the amended complaint. On December 9, 2003, the Tuscaloosa Circuit Court transferred the case to Hale County.

On December 16, 2003, Banks moved the Hale Circuit Court to strike portions of the amended complaint. In that motion, Banks also requested in general terms an award of "attorney's fees and costs; and... [a]ny further relief as [the court deemed] just and proper." On January 13, 2004, the Hale Circuit Court conducted a hearing, which Sealy did not attend.

On January 22, 2004, Banks filed a "Motion to Retain Jurisdiction," advising the court that Sealy was still filing motions in the Tuscaloosa Circuit Court. On January 28, 2004, the Hale Circuit Court granted the "motion to retain jurisdiction." Also in that order, the court indefinitely extended the "period to formally answer the complaint."

On February 13, 2004, Sealy filed in the Hale Circuit Court a "notice of dismissal," stating: "The Plaintiff gives Notice of Dismissal of this cause without prejudice pursuant to [Ala. R. Civ. P. 41(a).] The Plaintiff would show that Plaintiff has not been served with an Answer from the Defendant, nor has Plaintiff been served with a Motion for Summary Judgment." (Emphasis added.) On February 20, 2004, the trial court stamped and signed the notice: "Motion granted ... case dismissed."

On March 16, 2004, Banks filed an answer, and asserted counterclaims alleging fraud and breach of contract. The same day, Banks also served Sealy's counsel with interrogatories and requests for production. On March 22, 2004, Sealy sent a letter brief to the court, stating, in pertinent part:

"[Sealy] filed a Notice of Dismissal under Rule 41(a)(1) on February 13, 2004. At the time of the filing of said Notice of Dismissal [Banks] had not filed an Answer to [Sealy's] Complaint, nor a Motion for Summary Judgment; this is not in dispute. Consequently, the law is clear, that upon the filing of the Notice of Dismissal, the case was in fact dismissed, and therefore there was no necessity for this matter to be placed on the court's motion docket. Further, by operation of law upon the occurrence of the dismissal caused by the filing of the Notice of Dismissal, no pleadings filed after said notice can be considered by the court, whether the pleading was an Answer, a Counterclaim, or Motion for Summary Judgment."

On August 12, 2004, the Hale Circuit Court entered an order purporting to dismiss Sealy's action with prejudice. The order stated, in pertinent part:

"[T]he court finds, as did the Tuscaloosa County Circuit Court ..., that this court is and was the proper venue for this action as of the date of filing of the complaint; and further that all pending motions and defenses of [Banks] were properly before this court, submitted and considered without opposition, response or appearance by [Sealy] at the motion hearing of January 13, 2004, and that [Banks's] motions and arguments were well taken and granted as of January 13, 2004. Consequently, the court finds that [Sealy's] Notice of Dismissal and [Banks's] counterclaim both were untimely at the time of filing; and it is therefore,

"ORDERED, ADJUDGED and DECREED that judgment is hereby entered in favor of [Banks] and against [Sealy].

"IT IS FURTHER ORDERED, ADJUDGED and DECREED that this matter is set for hearing the 23rd day of September, 2004, ... on [Banks's] request for attorney's fees and cost of court."

(Emphasis added.)

Contending that the August 12, 2004, order is void, Sealy filed this petition on August 25, 2004, seeking (1) a writ of mandamus "compelling the circuit court of Hale County to vacate its August 12, 2004, order," and (2) a writ of prohibition restraining the court from "taking any further action in the case, specifically to not hold any further hearings or enter any further orders [regarding attorney fees and costs] in this matter." On October 5, 2004, this Court ordered Banks to answer the petition and to brief the issues.

"Mandamus is an extraordinary remedy and will be granted only where 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 Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003)(quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004).

Like mandamus, prohibition is an extraordinary writ, "and will not issue unless there is no other adequate remedy." Ex parte K.S.G., 645 So.2d 297, 299 (Ala. Civ.App.1992) (citing Ex parte Strickland, 401 So.2d 33 (Ala.1981)). "Prohibition is proper for the prevention of a usurpation or abuse of power where a court undertakes to act in a manner in which it does not properly have jurisdiction." Ex parte K.S.G., 645 So.2d at 299. A writ of prohibition will issue "[o]nly if the pleadings show on their face that the lower court does not have jurisdiction." Ex parte Perry County Bd. of Educ., 278 Ala. 646, 651, 180 So.2d 246, 250 (1965). "In such instances, the act of the usurping court is wholly void, and will not support an appeal." Id.

Banks contends that this action was, in reality, dismissed with prejudice by an order entered at the motion hearing on January 13, 2004, that is, before Sealy filed its notice of dismissal. Bank's brief, at 8-9. Thus, he insists, Sealy's notice of dismissal and the subsequent order purporting to "grant" the dismissal were void.

In support of this argument, Banks produced, in materials accompanying his respondent's brief, "exhibit 12," which purports to be a copy of an order entered on January 13, 2004. The handwritten "order" states: "All parties appear to have been notified. There is no notice to continue or any contact from [Sealy's] counsel. [Banks] and his counsel were present. [Banks's] motions are granted. The other issue regarding attorney's fees will be ruled upon once the jurisdictional issue is resolved." (Emphasis added.) It was initialed by the trial judge.

Banks contends that one of the "motions" purportedly granted on January 13, 2004, was the "Motion to Dismiss and/or Transfer Venue" he filed in the Tuscaloosa Circuit Court on October 31, 2003. In particular, he argues that the January 13, 2004, order granted that portion of the October 31, 2003, motion seeking dismissal for failure to state a claim.

In its reply brief, Sealy contends that exhibit 12 is a "document that has never before been seen by Sealy," and that it was not "a part of the court file on August 16, 2004, [when] Sealy reviewed and copied the complete court file located at the Hale County Circuit Clerk's office." Sealy's reply brief, at 1. Additionally, Sealy states:

"[Exhibit 12] ... appears to be a `motion docket' sheet for a motion `day' set by the Circuit Court of Hale County for January 13, 2004....

"[It] contains what appears to be some handwritten notes indicating that the Hale County Circuit Court granted some `motions' of Defendant Banks. The `note' is apparently initialed by Judge Marvin Wiggins and dated for January 13, 2004. However, the document at issue bears no indication of [its] being `filed' and no certification stamp indicating that it is indeed a record that is contained in the court file maintained by the Hale County Circuit Court Clerk's Office. Further, this `order' does not appear anywhere on the case action summary sheet for the Hale County action."

Sealy's reply brief, at 1-2 (emphasis in original; footnote omitted). Sealy argues that exhibit 12 is not an entry of a judgment of dismissal. For the following reasons, we agree.

Ala. R. Civ. P. 58 governs the rendition and entry, as well as the form and sufficiency, of judgments. Rule 58(a) provides:

"A judge may render an order or judgment: (1) by notation thereof upon bench notes without any other or further written document or (2) by executing a separate written document, or (3) by including the order or judgment in the opinion or memorandum, or (4) by simply appending to the

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