Ex parte Maxwell
- Reporters:
- , ,
- Before:
- Harwood
Elizаbeth Ann Maxwell, a defendant in an action pending in the Montgomery Circuit Court, petitions this Court for a writ of mandamus directing Judge Eugene Reese to quash service of process made upon her and to dismiss her as a defendant in the underlying action. The petition is denied.
On August 25, 2000, Dorothy Morris filed a complaint in the Montgomery Circuit Court. The complaint alleged fraud, negligence, negligent supervision and training, misrepresentation and suppression, breach of fiduciary duty, wantonness,
On December 6, 2000, Maxwell filed a motion to quash service, or, alternatively, to be dismissed as a defendant. Citing
On January 31, 2001, in response to Maxwell‘s motion, Mоrris filed a motion to amend her complaint to add Maxwell as a defendant or, alternatively, to correct the style of her complaint tо include Maxwell. Morris‘s motion stated that Maxwell had filed a petition in bankruptcy on July 31, 2000, before Morris filed the complaint on August 25, 2000. As a result, she stated, all рroceedings against Maxwell were stayed by virtue of
On February 7, 2001, the trial court conducted a hearing on the motions, and on February 8, granted Morris‘s motion to amend her complaint and caption to add Maxwell as a defendant and denied Maxwell‘s motion to quash service or dismiss her as a defendant. Morris served Maxwell with the complaint for a second time on February 23, 2001.1 On March 12, 2001, Maxwell filed a motion to reconsider and to clarify based upon the trial court‘s February 8 order. She specifically requested the trial court to clarify its ruling so as to note speсifically whether it had granted Morris‘s motion to amend to add Maxwell as a defendant or to correct the style of the complaint. Maxwell aрparently requested the clarification because, depending on which aspect of the motion was granted, Maxwell believed she might havе a possible statute-of-limitations defense available to her. The trial court had not ruled on that motion when Maxwell petitioned this Court for a writ of mandamus.
This Court has stated:
“A writ of mandamus is an extraordinary remedy, and it will be `issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperativе 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 United Serv. Stations, Inc., 628 So.2d 501, 503
(Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts Serv. Co., 590 So.2d 252 (Ala. 1991). It is well settled that `a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.’ Ex parte Central Bank of the South, 675 So.2d 403, 406 (Ala. 1996).”
Ex parte Empire Fire Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998). Furthermore, “[m]andamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.” State v. Cannon, 369 So.2d 32, 33 (Ala. 1979).
Maxwell correctly states that this Court‘s precedent interpreting
“Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subjеct to disallowance on the court‘s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before thе first setting of the case for trial, and such amendment shall be freely allowed when justice so requires.”
Morris‘s motion to be allowed to amend her cоmplaint or to correct the caption was filed on January 31, 2001. From the materials before us, it appears that the trial court first set this case for trial for September 10, 2001. Therefore, Morris‘s motion was filed well before 42 days before the trial date. Moreover, the trial court heard the mоtion to amend the complaint along with the motion to quash or dismiss filed by Maxwell, and the materials before us do not show that Maxwell filed a motion to strikе the amendment, as provided in
The specific issue presented by Maxwell, however, is whether the triаl court erred in failing to quash the November 6, 2000, service of the complaint upon her. In Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 881-82 (Ala. 1983), this Court stated:
“In Ex parte Helveston, 267 Ala. 94, 100 So.2d 7 (1957), this court stated that the writ of mandamus is not the propеr vehicle for the review of a denial of a motion to quash service, since the dispute over proper service can be settled on appeal. Again, in
Orkin Exterminating Co. of North Ala. v. Krawcheck, 271 Ala. 305, 312, 123 So.2d 149, 156 (1960), it was stated on rehearing that ‘[w]e do not review the action of the trial court in refusing to quash the summons in such a case by extraordinary writs. The error, if any, must be raised on appeal from the final judgment.’ However, we have allowed review by extraordinary writ, even in the facе of a clear prohibition of its usage, where the issue or issues presented also raised matters of substantial importance.”
In this case, we сonclude that Maxwell does not have “a clear legal right” to the order that she seeks; nor does this present a matter of “substantial importаnce.” Therefore, the petition for the writ of mandamus is denied.
PETITION DENIED.
Moore, C.J., and See, Brown, and Stuart, JJ., concur.