789 So. 2d 227 | Ala. | 2000
Kenworth of Birmingham, Inc. ("Kenworth"), and Bryan Harland are defendants in an action pending in the Fayette Circuit Court. They petition for a writ of mandamus directing Judge James Moore to vacate two orders allowing general unlimited discovery. We grant the petition.
Kenworth and Harland answered, raising several affirmative defenses and alleging that the plaintiffs' claims were subject to an arbitration agreement. They moved the circuit court to stay the court proceedings and to compel arbitration; they attached to their motions a copy of the "buyer's order," which contains an arbitration agreement they allege Mr. Newman signed when he purchased the truck. Kenworth and Harland also offered in support of their motion the affidavit of Kenworth's president and general manager, Robert Mitchell; in that affidavit, Mitchell stated that Mr. Newman signed the buyer's order; that the buyer's order contains a conspicuous arbitration provision; that the truck at issue was "manufactured outside of Alabama and shipped into Alabama across state lines"; and that "[i]ts intended and stated use was to transport items across state lines."
The circuit court scheduled a hearing on the motion to stay and to compel arbitration for February 3, 2000. The plaintiffs filed a response, to which they attached an affidavit of Mr. Newman, which reads in relevant part:
"4. Harland asserts that he brought the paperwork on the [truck] when he brought the truck to Fayette County. I do not recall seeing any paperwork at that time, or signing an arbitration agreement. I have reviewed the signature on the first page of the paperwork that purports to be mine. I do not recall ever seeing that page. I know *229 that I have never seen the page that contains the arbitration language.
"5. In December 1999, after this suit was filed, Harland came to my office in Belk, Alabama. Harland stated on that occasion that Kenworth of Birmingham didn't know if the arbitration agreement was signed by me, and that Kenworth of Birmingham was interested in settling the case. He stated that they weren't sure who had signed the agreement, whether it was me, or my father, or my secretary, or someone else. Furthermore, Harland stated that on occasion Kenworth of Birmingham signed arbitration agreements on behalf of their customers, affixing to the documents signatures that purported to be those of their customers."
On the day of the hearing on the motion to stay and to compel arbitration, Kenworth and Harland moved in open court to continue the hearing and requested leave to conduct discovery. The circuit court rescheduled the hearing on the motion for May 18, 2000, and ordered that discovery would not be stayed pending the hearing, and that discovery would not be limited to the issue of the genuineness of the signature on the buyer's order containing the arbitration provision.
Kenworth and Harland noticed Mr. Newman's deposition for March 8, 2000. The plaintiffs noticed Harland's deposition and that of Kenworth's corporate representative for the same date. A week before that date, Kenworth and Harland moved for what they called a "reconsideration" and to stay discovery, arguing that they had made a prima facie showing that the arbitration agreement was enforceable. On March 6, 2000, the trial judge denied that motion and further stated that "there is no `prima facie showing that the arbitration agreement is enforceable.'" He then set the motion to compel arbitration for a hearing on May 18, 2000. Kenworth and Harland petitioned for the writ of mandamus before the hearing could be held.
The trial court's orders challenged by the mandamus petition allowed unrestricted discovery. A petition for the writ of mandamus is the proper method for securing review of a trial court's discovery order. See, e.g., Ex parte Windom,
Mandamus is an extraordinary remedy. One seeking the writ of mandamus must show: "(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 parteEdgar,
PETITION GRANTED AND WRIT ISSUED.
Hooper, C.J., and Maddox, Houston, See, Lyons, Brown, Johnstone, and England, JJ., concur.