Ex parte Troutman Sanders, LLP

• Court: Supreme Court of Alabama
• Writing for the Court: WOODALL, Justice.
• Citation: 866 So.2d 547
• Parties: Ex parte TROUTMAN SANDERS, LLP. (In re Mary A. Champion et al. v. Dill, Dill, Carr, Stonbraker & Hutchings, P.C., et al.).
• Decision Date: 21 February 2003

866 So.2d 547

Ex parte TROUTMAN SANDERS, LLP.
(In re Mary A. Champion et al. v. Dill, Dill, Carr, Stonbraker & Hutchings, P.C., et al.)

1011812.

Supreme Court of Alabama.

February 21, 2003.

Rehearing Denied May 30, 2003.

866 So.2d 548

Warren B. Lightfoot, Mac M. Moorer, and James F. Hughey III of Lightfoot, Franklin & White, L.L.C., Birmingham; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for petitioner

E. Britton Monroe of Lloyd, Gray & Whitehead, P.C., Birmingham; Andrew P. Campbell and Caroline Smith Gidiere of Campbell, Waller & Loper, L.L.C., Birmingham; and Frank Corley Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for respondents.

WOODALL, Justice.

Troutman Sanders, LLP ("Troutman"), petitions this Court for a writ of mandamus directing the Shelby Circuit Court to dismiss the claims of approximately 230 foreign plaintiffs, which are joined with the claims of Alabama plaintiffs, in two actions against Troutman and others. We dismiss the petition as untimely.

This petition arises out of the same litigation that precipitated Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519 (Ala.2003), also released today, which involves two cases, one filed by Mary Champion and others, CV-01-430 ("Champion"), and the other filed by Allen Austin and others, CV-01-971 ("Austin "). Troutman is one of several defendants in those cases. The substantive facts are set forth in Ex parte Dill; we will not repeat them here. Because this petition is resolved on procedural grounds, we set forth only those facts relevant to the procedural posture of this petition.

On February 7, 2002, Troutman, pursuant to Ala.Code 1975, § 6-5-430, moved in each case to dismiss the claims of the nonresident plaintiffs against it on the ground of forum non conveniens. On April 9, 2002, the trial court denied the motion in Austin. On April 29, 2002, Troutman filed in each case a "motion to reconsider" the denial of its motion to dismiss the foreign plaintiffs. On May 13, 2002, the trial court denied Troutman's motion to dismiss in Champion. On May 24, 2002, the trial court denied Troutman's "motion to reconsider" in Austin. On June 27, 2002, Troutman petitioned this Court for a writ of mandamus, directing the trial court to "vacate [its] orders of April 9, May 13, and May 24, 2002, and ... to enter an order dismissing the 230 foreign plaintiffs from this suit, without prejudice." In other words, the petition was filed 79 days after the denial of the motion to dismiss in Austin, and 45 days after the denial in Champion. Citing Ala. R.App. P. 21(a), the respondents move this Court to dismiss the petition as untimely. They also request sanctions against Troutman "as a result of its filing an untimely [petition]

866 So.2d 549

and failing to provide any good cause for the delay in its filing."

Rule 21(a) provides, in pertinent part:

"The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking 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."

(Emphasis added.) As the respondents correctly point out, Troutman's petition contains no explanation for Troutman's failure to file the petition within the 42 days contemplated by Rule 21.¹ They also correctly note that an explanation is mandatory, that is, the petition "shall include a statement of circumstances constituting good cause for the appellate court to consider the petition." (Emphasis added.)

In opposition to the respondents' motion to dismiss, Troutman argues: "The Rule 21 period for filing a mandamus petition commences with the denial of Troutman's motions for reconsideration. Those motions, it must first be noted, are correctly treated as (and might have been better labeled) motions to `alter, amend, or vacate' under Ala. R. Civ. P. 59(e)." Opposition to Respondents' Motion to Dismiss Petition and for Sanctions, at 3 (emphasis added).

In this connection, Rule 59(e), Ala. R. Civ. P., provides: "A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment." (Emphasis added.) "Although the Alabama Rules of Civil Procedure do not talk of `motion[s] to reconsider,' this Court has consistently treated them as 59(e)...