Holland v. Sweeney (Ex parte Sweeney)
Decision Date | 14 September 2012 |
Docket Number | 1110035. |
Citation | 104 So.3d 877 |
Parties | Ex parte Carson SWEENEY. (In re Timmy Joe Holland v. Carson Sweeney). |
Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
Lee F. Knowles, Geneva, for petitioner.
Jeffery Dewayne Hatcher, Geneva, for respondent.
Carson Sweeney petitions this Court for a writ of mandamus directing the Geneva Circuit Court to vacate its order of May 26, 2011, insofar as the order granted Timmy Joe Holland's motion to strike Sweeney's demand for a trial by jury in Holland's trespass action against him. We grant the petition and issue the writ.
On November 24, 2010, Holland sued Sweeney, alleging that Sweeney had entered Holland's property and damaged it by, among other things, “remov[ing] trees, timber and other foliage, [and] soil”; “redirect[ing] water flow”; and “install[ing] drainage apparatuses.” The complaint stated the following causes of action: “trespass—trespass to chattels,” negligence, negligent supervision, and conversion.
On January 14, 2011, attorney Lee F. Knowles filed a notice of appearance on Sweeney's behalf. On February 21, 2011, Holland's attorney, Jeffrey D. Hatcher, sent a letter to Knowles, stating, in relevant part, that
On March 23, 2011, Holland filed what he styled as a “motion to set final hearing”; in that motion Holland stated, among other things, that “an answer to the Complaint has not yet been filed.” The circuit court set the matter for a nonjury trial on May 26, 2011.
On April 26, 2011, Sweeney filed an answer and a counter-complaint and asserted two claims—breach of contract and violation of the Alabama Litigation Accountability Act, Ala.Code 1975, § 12–19–270 et seq., for filing an action “without substantial justification”—and demanded “a trial by struck jury on all issues.” On May 9, 2011, Holland filed a motion to strike Sweeney's answer and counter-complaint, including the demand for a trial by jury, arguing that the answer and counter-complaint were untimely filed.
On May 26, 2011, the circuit court entered an order that, among other things, granted in part and denied in part Holland's motion to strike Sweeney's answer and counter-complaint. In its order, the circuit court found that Sweeney's failure to file his answer and counter-complaint in a timely manner “was unreasonable and inherently prejudicial” to Holland and that “[g]ood cause has not been shown for said failure.” Nonetheless, the circuit court denied Holland's motion insofar as it sought to strike Sweeney's answer and counter-complaint because, the circuit court said, “the interest of preserving a litigant's right of trial on the merits is paramount.” However, the circuit court granted Holland's motion insofar as it sought to strike Sweeney's demand for a jury trial, concluding that Sweeney had “waived his right to demand a trial by jury.” 1
On June 9, 2011, Sweeney filed a “motion for reconsideration, modification, new hearing, or in the alternative, motion to alter, amend or vacate” the order striking his jury-trial demand, which the circuit court denied. Sweeney then filed this petition for the writ of mandamus, seeking relief from the circuit court's order.
“The standard of review applicable to a petition for a writ of mandamus is well settled:
“ ‘
“Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000).”Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 788 (Ala.2011). We also note that
Sweeney argues that, by granting Holland's motion insofar as it sought to strike Sweeney's demand for a trial by jury, the circuit court “deprived [Sweeney] of one of the most basic fundamental rights in American Law which should not, is not, and has never been left to the discretion of the Court.” Specifically, Sweeney argues that the circuit court's ruling violated his right to a trial by jury as “guaranteed by the Seventh Amendment of the United States Constitution as well as by the Constitution of Alabama of 1901.” We agree.
“this Court's mandate to preserve the right to a trial by jury is clear when that right was available at common law, Ex parte Jones, 447 So.2d 709, 711 (Ala.1984), if it has not been abridged by Federal law, see Green Tree Fin. Corp. v. Shoemaker, 775 So.2d 149, 150 (Ala.2000) ( ), and has not been expressly waived by contract, Gaylord Dep't Stores of Alabama, Inc. v. Stephens, 404 So.2d 586, 588 (Ala.1981) ( ).”
Ex parte Cupps, 782 So.2d 772, 775 (Ala.2000) (emphasis added).
In this case, Sweeney demanded a trial by jury in his consolidated answer and counter-complaint, which the circuit court allowed despite finding that it was untimely filed. It is well settled that the circuit court is vested with broad discretion in determining whether to allow an untimely filed answer. See Hair v. Moody, 9 Ala. 399, 400 (1846) . In this case, the circuit court's determination that Sweeney's consolidated answer and counter-complaint would be allowed despite the fact that it was untimely conforms to this Court's “long-established and compelling policy objective of affording litigants a trial on the merits whenever possible.”Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So.2d 822, 827 (Ala.1991) (citing numerous cases).
However, having allowed Sweeney's consolidated answer and counter-complaint to proceed for a determination of the case on the merits, the circuit court had no basis to strike Sweeney's demand for a trial by jury. By allowing Sweeney's consolidated answer and counter-complaint to proceed for a determination on the merits of the case, the circuit court effectively treated the answer as timely filed. See Manatt v. Union Pacific R.R., 122 F.3d 514, 517 (8th Cir.1997) ( ); see also8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2257 (3d ed. 2010) . Thus, there is no basis for concluding, as Holland argues we should do, that Sweeney's demand for a trial by jury, filed with his answer and counter-complaint, was untimely.
Furthermore, nothing before us indicates that Sweeney either waived his right to a trial by jury or that a trial by jury is unavailable to him for any reason established by prior precedent. See Ex parte Cupps, supra ( ); 2Alford v. State ex rel. Att'y Gen., 170 Ala. 178, 189, 54 So. 213, 216 (1910) (). 3
In sum, there was no basis on which the...
To continue reading
Request your trial-
Henry v. First Exch. Bank (In re First Exch. Bank)
... 150 So.3d 1010 (Mem) Ex parte FIRST EXCHANGE BANK et al. (In re Thomas Henry and Darla Henry v. First ... Ex parte Sweeney, 104 So.3d 877, 880 (Ala.2012) (quoting Smith v. Smith, 6 So.3d 534, ... ...