774 So. 2d 530 | Ala. | 2000
Lead Opinion
Larry E. Rowan and Kimberly J. Rowan filed a proposed class action against GE Capital Mortgage Services, Inc., in the Shelby Circuit Court. They have petitioned for a writ of mandamus directing Judge D. Al Crowson
I.
The Rowans had borrowed money from GE Capital to purchase their Shelby County home, and the loan was secured by a mortgage on that home. In July 1996, the Rowans sold the home. The loan was paid in full from the proceeds of the sale, and the Rowans asked GE Capital to make an entry in the Shelby County probate records showing that the mortgage was satisfied and the lien released. GE Capital did not file the satisfaction within 30 days, as is required by Ala.Code 1975, § 35-10-27.
The Rowans, on their own behalf and on behalf of a putative class of others similarly situated, sued GE Capital, seeking to recover the $200 penalty established by § 35-10-30 for failure to record a satisfaction within 30 days after the mortgagor asks the mortgagee to do so. In order to support the bringing of a statewide class action, the Rowans sought discovery from GE Capital concerning its failure to file records of satisfaction of mortgages recorded in other counties. GE Capital refused to comply with the Rowans’ discovery request, and the Rowans filed a motion to compel GE Capital to provide the requested information. The trial court denied that motion, holding that the Rowans were entitled to discovery only of failures to satisfy mortgages recorded in Shelby County. The court reasoned that pursuant to Ala.Code 1975, § 35-10-30(b),
II.
A writ of mandamus is an extraordinary remedy, issued only upon the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court. See Ex parte Conference America, Inc., 713 So.2d 953, 955 (Ala.1998) (citing Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989)). The Rowans would be entitled to a writ of mandamus only if it were clear that they are entitled to statewide discovery.
The right the Rowans seek to enforce exists only because of a statute, § 35-10-30(a). It did not exist at common law. That statute, establishing the right to bring an action to recover the penalty and strictly limiting where such an action may be brought, is a “statute of creation.” See Cofer v. Ensor, 473 So.2d 984 (Ala.1985) (holding that Alabama’s wrongful-death statute, Ala.Code 1975, § 6-5-410, was a statute of creation and that the two-year limitation set forth in that statute on the time allowed to bring an action alleging wrongful death was integral to the substantive right created by the statute and not, therefore, subject to tolling provisions). A limitation on a right of action, set forth in a statute of creation (typically, a limitation on the time in which the right may be exercised), is “‘so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself.’ ” Cofer, 473 So.2d at 987 (quoting Department of Revenue v. Lindsey, 343 So.2d 535, 537 (Ala.Civ.App.1977) (in turn citing 51 Am.Jur.2d Limitation of Actions § § 8,15, 22). Such limitations on the right of action must be strictly complied with. See id. at 992.
The Rowans argue that because the Shelby Circuit Court is the proper court to decide their claim, it is also the proper court to decide the claims of the members of the putative statewide class. Rule 82(c) provides that “[w]here several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.” However, the Alabama Constitution of 1901 prohibits the use of procedural rules to “abridge, enlarge or modify the substantive right of any party.” Ala. Const, of 1901, Amend. No. 328, § 6.11. Because § 35-10-30(b), requiring that “[a]ll actions for the recovery of the [statutory penalty] be brought in the county where such mortgage or other instrument is recorded,” is part of the substantive right to bring an action to recover the statutory penalty, it cannot be altered by the Alabama Rules of Civil Procedure.
The right conferred by § 35-10-30 is enforceable in the courts of one county and one county only — “the county where such mortgage ... is recorded.” § 35-10-30(b). Therefore, claims for the statutory penalty for failure to timely record the satisfaction of mortgages recorded in different counties may not be joined in one civil action. Because the Rowans are not entitled to maintain an action in Shelby County to recover the statutory penalty for a failure to timely satisfy a mortgage recorded in another county, their request for discovery relating to mortgages recorded in other counties is not reasonably calculated to lead to the discovery of evidence relevant to the subject matter involved in
III.
Because the Rowans are not entitled to maintain an action in Shelby County to recover the statutory penalty for any failures to timely satisfy mortgages recorded in other counties, and because discovery concerning recorded mortgages held by GE Capital in other counties would not lead to relevant evidence in this case, we deny the Rowans’ petition for a writ of mandamus.
WRIT DENIED.
. This case has since been assigned to Judge G. Daniel Reeves.
. Section 35-10-30(b) provides that "[a]ll actions for the recovery of the penalties men
Dissenting Opinion
(dissenting).
Section 35-10-30(b), Ala.Code 1975, providing that “[a]ll actions for the recovery of the [statutory penalty] shall be brought in the county where such mortgage or other instrument is recorded,” is NOT part of the substantive right to bring an action to recover the statutory penalty. Rather, § 35-10-30(b) is a mere Johnny-come-lately venue provision adopted by the Legislature some 70 years after the Legislature originally created the right of action to recover the statutory penalty now codified in § 35-10-30(a).
The right of action first appeared in § 1343 and § 1344 of the Alabama Code of 1852:
Ҥ 1343. Any mortgagee who has received satisfaction of the amount secured by such mortgage, must, if the same has been recorded, at the request of the mortgagor, enter satisfaction upon the margin of the record thereof, which operates as a release to such mortgage, and a bar to all actions thereon.
“§ 1344. Any mortgagee who fails, either in person or by attorney, for three months, after such payment and request, to make such entry, forfeits to the party aggrieved two hundred dollars.”
No specification of where such an action should be filed accompanied these 1852 Code sections. Rather, such a specification did not appear until the adoption of the Code of 1923, where the specification appears as a mere venue provision accompanying the current version of the wording of the right of action. Section 9024 of the 1923 Code, which is identical to the current § 35-10-30(a), and § 9028 of the 1923
“9024. (4898) (1066) (1869) (2222, 2223) (1613, 1614) (1343, 1344) Penalty for failure to enter satisfaction. — If, for thirty days after such request, the mortgagee or assignee or transferee, trustee or cestui que trust, fails to make such entry, he forfeits to the party making the request two hundred dollars unless there is pending, or there is instituted, a suit within that time, in which the fact of payment or satisfaction is or may be contested. In construing this section, the right of action given herein shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage or deed of trust before a demand was made for the satisfaction to be entered upon the record.”
“9028. Venue of suits for penalties under this article. — All suits for the recovery of the penalties mentioned in this article shall be brought in the county where such mortgage or other instrument is recorded.”
Because the specification of the place for filing an action for the statutory penalty is a mere venue provision, it does not restrict a statewide class action for recovery of these statutory penalties; and Rule 82(c), Ala. R. Civ. P., allows venue in any county, such as the forum county in the case before us, where venue is proper for any of the claims for the statutory penalty.
Concurrence Opinion
(concurring in the result).
Whether Ala.Code 1975, § 35-10-30(b) (“All actions for the recovery of the penalties mentioned in this article shall be brought in the county where such mortgage or other instrument is recorded.”) (emphasis added) is jurisdictional or prescribes proper venue is immaterial.
The Constitution of Alabama of 1901, Amendment 328, § 6.11, gives the Supreme Court the power to “make and promulgate rules governing ... practice and procedure in all courts.” Using this power, we promulgated the Alabama Rules of Civil Procedure, including Rule 23. However, our power was expressly restricted by the proviso in § 6.11, which reads in pertinent part: “provided, however, that such rules shall not ... affect the jurisdiction of circuit and district courts or venue of actions therein.... ” (Emphasis added.)
Therefore, whether § 35-10-30(b) is jurisdictional, as this Court held a similar provision was in United Supply Co. v. Hinton, 396 So.2d 1047 (Ala.1981), or prescribes proper venue, as I tend to believe, it is mandatory (“shall be brought”), and this Court has — and has had — no power to change this by rule.
