Lead Opinion
U.S. Bank National Association and U.S. Bancorp (hereinafter collectively referred to as “U.S. Bank”) seek a writ of mandamus ordering the Jefferson Circuit Court
Facts and Procedural History
In 2002, Sterne Agee, a Delaware corporation with headquarters in Alabama and offices in Seattle, Washington, acted as the underwriter in Washington for securities offered by a Washington business entity. Under the Washington State Securities Act, Sterne Agee was a “seller” of the securities. In 2004, in federal district court in Washington, U.S. Bank sued Sterne Agee, among others, alleging that the defendants had violated the Washington State Securities Act through a series of material omissions in the securities offering. U.S. Bank obtained default judgments or entered into settlement agreements with all the defendants except Sterne Agee. In 2006, U.S. Bank’s claims against Sterne Agee proceeded to trial. The trial court granted Sterne Agee’s motion for a judgment as a matter of law. U.S. Bank appealed, and the United States Court of Appeals for the Ninth Circuit vacated the federal district court’s order and remanded the case to the federal district court. Following a second trial in 2009, the federal district court entered a judgment in favor of Sterne Agee. U.S. Bank appealed, and the Court of Appeals for the Ninth Circuit affirmed the judgment in 2011.
On July 1, 2011, Sterne Agee sued U.S. Bank in the Jefferson Circuit Court, alleging malicious prosecution arising out of the lawsuit prosecuted by U.S. Bank in Washington. The case was removed to the United States District Court for the Northern District of Alabama, which subsequently remanded the case to Jefferson Circuit Court. On January 31, 2013, U.S. Bank filed a motion to dismiss, arguing that under Alabama’s choice-of-law rules applicable when two or more jurisdictions have an interest in the outcome of a dispute, Alabama would apply the law of the state where the injury occurred. Because this is a malicious-prosecution action, U.S. Bank argued, the injury was forcing U.S. Bank to defend an allegedly malicious securities action in Washington state and the injury thus occurred in Washington state. On April 11, 2013, the circuit court denied U.S. Bank’s motion to dismiss. On April 16, 2013, U.S. Bank moved the circuit court to certify its order for a permissive interlocutory appeal pursuant to Rule 5, Ala. RApp. P. On April 16, 2013, the circuit court denied the motion. On May 1, 2013, U.S. Bank petitioned this Court for a writ of mandamus.
Standard of Review
U.S. Bank sought to have the circuit court certify the conflict-of-laws issue for a permissive appeal pursuant to Rule 5, Ala. R.App. P. Rule 5 allows for an appeal of an interlocutory order involving a controlling issue of law as to which there is substantial ground for difference of opinion when an immediate appeal would materially advance termination of the litigation and would avoid protracted and expensive litigation. This Court has allowed permissive appeals to address conflict-of-laws situations where the trial court has certified the issue for permissive appeal under Rule 5. See, e.g., Precision Gear Co. v. Continental Motors, Inc.,
In the present case, the circuit court refused to certify the conflict-of-laws issue for a permissive appeal. We recognize that a certification allowing a party to seek a permissive appeal under Rule 5(a) is discretionary with the trial court. Ex parte Burch,
In Ex parte Liberty National Life Insurance Co.,
In Ex parte Exxon, supra, this Court held that a mandamus petition is an appropriate method by which to seek review of a trial court’s misapplication of conflict-of-laws analysis in a class-action certification. Although the Court in Exxon recognized the well settled principle that mandamus is a proper tool by which to challenge certification of a class action, it also recognized that, in determining whether there is a common question of law for class-certification purposes, Alabama will determine the rights of an injured party according to the law of the state where the injury occurred.
In Batey & Sanders, supra, an employee sued his employer seeking worker’s compensation benefits; he also sought damages for an alleged retaliatory discharge for seeking worker’s compensation benefits. The employer had an office in Alabama and one in Georgia, and it hired the employee to work out of its Georgia office. The trial court originally dismissed the employee’s retaliatory-discharge claim but later reinstated it. The employer petitioned this Court for a writ of mandamus, and we transferred the case to the Court of Civil Appeals. The Court of Civil Appeals held that under the rule of lex loci delicti the law of Georgia governed the employee’s tort claim of retaliatory discharge because his employment had been terminated in Georgia. The Court of Civil Appeals stated that, “[b]ecause the wrong complained of occurred in Georgia, the law of Georgia applies,” and it granted the petition and ordered the trial court to dis
This Court has held that a writ of mandamus is an appropriate means by which to review the following: subject-matter jurisdiction, Ex parte Johnson,
Although this list may seem to contradict the nature of mandamus as an extraordinary writ, we note that the use of mandamus review has essentially been limited to well recognized situations where there is a clear legal right in the petitioner to the order sought; an imperative duty upon the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly
It is well settled that
“[mjandamus is a drastic and extraordinary writ that will be issued only when there is: 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; 8) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court. Ex parte AmSouth Bank, N.A.,589 So.2d 715 (Ala.1991); Ex parte Day,584 So.2d 498 (Ala.1991).”
Ex parte United Serv. Stations, Inc.,
In the present case, we reiterate that it is apparent on the face of Sterne Agee’s complaint that there is a conflict-of-laws issue. The complaint alleges malicious prosecution based on a civil action brought by U.S. Bank in Washington state. Sterne Agee sets out in detail the course of the Washington action. Sterne Agee, in its complaint, recognizes that there is a conflict-of-laws issue and contends that Alabama law applies to the exclusion of Washington law because Alabama is the forum state, because Alabama applies the rule of lex loci delicti, and because Sterne Agee’s injury occurred in Alabama. In filing a motion to dismiss and subsequently seeking permission to appeal and then filing a petition for a writ of mandamus, U.S. Bank contends that, under the rule of lex loci delicti Washington law should apply to Sterne Agee’s malicious-prosecution claim because, it says, the injury occurred in Washington. Because U.S. Bank sought permissive appeal and was denied certification for permissive appeal by the circuit court, a petition for a writ of mandamus is U.S. Bank’s only adequate remedy for the circuit court’s denial of its motion to dismiss based on conflict of laws.
In choosing to address U.S. Bank’s mandamus petition seeking review of the circuit court’s ruling on its motion to dismiss, we are cognizant that in order for the writ of mandamus to issue, U.S. Bank must have a “clear legal right” to the order of dismissal. Although the legal issue before us has not been definitively settled, this does not mean that mandamus relief is unavailable. In other words, the mere fact that a legal issue is debatable does not change the responsibility of this Court, as a “court of law,” to decide the law and provides no basis for denying relief. We find the following persuasive:
“The general statement is made: ‘That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld.’ ... It is evident that this statement is too general. There are many cases where the right is disputed, and where the ultimate right depends upon questions of law which may not have been definitely settled, where the writ will issue. If the right be made clear by proof ..., and the case is one where the party is without adequate remedy[,] mandamus may issue.... Can it be said ... that the remedy will be denied simply because certain questions of law may arise that are not clearly and definitely settled?”
2 W.F. Bailey, A Treatise on the Law of Habeas Corpus and Special Remedies 801 (1918).
One federal court has explained:
“The dissent argues that mandamus lies only to compel clear, mandatory duties, so that to the extent we find the state law issue unclear, the availability of mandamus relief is called into question. This argument fails, however, for the limitation of mandamus remedies to refusals to perform clear, mandatory duties is not intended to forestall judicial review of difficult legal issues, but primarily to prohibit intrusion on, discretionary functions. ”
Georgevich v. Strauss,
The considerable research and reflection provided by the Oregon Supreme Court in State ex rel. Maizels v. Juba,
“The issue thus drawn is whether, where there is no dispute in the facts, mandamus will lie to decide in a certain way an especially complicated question of law, the answer to which is in extreme doubt and the solution of which requires the use of legal judgment and acumen. The Oregon statute on mandamus[,] ORS 34.110, is as follows:
“ ‘A writ of mandamus may be issued to any inferior court, ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, ... but though the writ may require such court, ... to exercise its ... judgment, or proceed to the discharge of any of its ... functions, it shall not control judicial discretion. The writ shall not be issued ... where there is a plain, speedy and adequate remedy in the ordinary course of the law.’
“The statements of this court in its decisions concerning the use of mandamus have been fairly uniform. Generally, the court has said that when the facts are not in dispute and there is a clear rule of law requiring the matter to be decided in a certain way, mandamus will lie. It has also said that mandamus will not lie to control the exercise of discretion or judgment. While, at times, as previously demonstrated, the court has refused the use of mandamus because of difficult legal problems being involved, more frequently it has used the writ to decide problems where the law was far from clear and where the exercise of legal judgment was required for a solution. As an illustration, this court has often used the writ to decide difficult questions of law involving the adequacy of substituted service of summons. State ex rel. Carroll v. Redding,245 Or. 81 ,418 P.2d 846 (1966); State ex rel. Pardee v. Latourette,168 Or. 584 ,125 P.2d 750 (1942); State ex rel. Hupp, etc., Corp. v. Kanzler,129 Or. 85 ,276 P. 273 (1929); State ex rel. Sullivan v. Tazwell,123 Or. 326 ,262 P. 220 (1927). The cases in which the court has so used mandamus are not limited to those testing the adequacy of substituted serviceof summons. See the following cases where difficult questions of law have been decided in the interpretations of statutes and the constitution: State ex rel. Public Welfare Commission v. Malheur County Court, 185 Or. 392 ,203 P.2d 305 , 307 (1949); State ex rel. Pierce v. Slusher,119 Or. 141 ,248 P. 358 (1926); City of Astoria v. Cornelius et al.,119 Or. 264 ,240 P. 233 (1925); Peterson v. Lewis,78 Or. 641 ,154 P. 101 (1915); Crawford v. School District No. 7,68 Or. 388 ,137 P. 217 , 50 L.R.A., N.S., 147 (1913); State v. Ware,13 Or. 380 ,10 P. 885 (1886).
“It is plain, regardless of what this court has said to the contrary, that mandamus has repeatedly been used to require public officers, including inferi- or courts, to act in a certain way where the applicable law governing their actions was legitimately in dispute. There is ample authority elsewhere that justifies this use of the writ. F. Ferris, Extraordinary Legal Remedies § 210 (1926), has the following statement:
‘“Notwithstanding that courts will not grant mandamus to control discretion, the rule does not apply to preliminary questions of law. It applies only to the act to be commanded by the writ* The character of a purely preliminary question, though judicial, does not test the right to mandamus because the decision of such a question is a mere incident leading up to the main junction or act.’ (* footnotes omitted).
“In Poucher v. Teachers’ Retirement Board,130 Misc. 896 ,225 N.Y.S. 176 , 178-179 (1927), the court used the following language:
“ ‘The sole question, then, is one of law,....’
“‘... (R)espondent contends that mandamus will only lie where there is a clear legal right, and as an important question of law is involved, which admits of a reasonable doubt or controversy, the petitioner should be relegated to an action at law against the retirement board. There is no reason why difficult questionfs] of law cannot be determined upon this application, as well as in an action at law. The clear legal right referred to in the cases such as Matter of Whitman, No. 1,225 N.Y. 1 ,121 N.E. 479 [ (1918) ], means a right which is inferable as a matter of law from uncontroverted facts, regardless of the difficulty of the legal question to be decided.... ’
“For similar language, also see Stewart v. Wilson Printing Co.,210 Ala. 624 , 627-628,99 So. 92 , 96 (1924); Robinson v. Enking,58 Idaho 24 , 31-32,69 P.2d 603 , 606 (1937); Eberhardt Construction Co. v. Board of Com’rs of Sedgwick County,100 Kan. 394 , 396,164 P. 281 , 282-283 (1917); Cahill v. Mayor and City Council of Baltimore,173 Md. 450 , 455,196 A. 305 , 307 (1937); Perkins v. Burks,336 Mo. 248 , 254,78 S.W.2d 845 , 848 (1934); Fooshee v. Martin,184 Okl. 554 , 557,88 P.2d 900 , 903 (1939); State v. Town Council South Kingstown,18 R.I. 258 , 266,27 A. 599 , 602,22 L.R.A. 65 (1893). Finally, the following language is found in 55 C.J.S. Mandamus § 53 (1948):
“ ‘A “clear legal right, ” within the meaning of the rule under consideration, means a right clearly founded in, or granted by, law;* a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided_’ (* footnote omitted).
“It appears that much of the difficulty in the case law revolves around the use of the terms ‘discretion’ and ‘judgment’; i.e., in the case of a judicial officer, ‘judicial discretion’ as differentiated from ‘judicial judgment’ or ‘acting judicially.’ They have been confused andused interchangeably. ‘Discretion’ refers to the power or privilege to act unhampered by a legal rule. It describes a situation where a choice can be made among several courses of action, any one of which is legally permissible and not subject to review. In such a situation mandamus or any other method of review is inappropriate. The present case does not pose such a situation. Petitioner either is entitled to have the warrant quashed and his property returned or he is not. There is only one legally permissible answer. The exercise of ‘judgment’ means the formation of an opinion concerning something by exercising one’s mind upon it. Some courts, including this court, have, at times, used the terms interchangeably and, therefore, have erroneously said that mandamus will not lie to decide difficult questions of law because the exercise of judgment, judicial or official, was necessary for their solution. State ex rel. Ricco v. Biggs, 198 Or. 413 , 422,255 P.2d 1055 ,38 A.L.R.2d 720 (1953); State ex rel. Coast Holding Co. v. Ekwall,144 Or. 672 , 681,26 P.2d 52 (1933); and State ex rel. Harvey Malheur County Court,54 Or. 2 [2]5, 2[2]8,101 P. 907 ,103 P. 446 (1909).
“It is also apparent that in a mandamus context, ‘clear rule of law5 and ‘clear legal right’ have been used erroneously at times to describe a situation where there can be no dispute as to the proper legal theory rather than a situation where a right is inferable as a matter of law from uncontroverted facts. See Poucher v. Teachers’ Retirement Board, supra, and 55 C.J.S. Mandamus § 53 (1948). We are now satisfied that in an otherwise proper case, mandamus may be used to decide disputed and difficult questions of law.”
This Court has stated:
“There remains for consideration but one question. It is, abstractly the most important in the case. It is also the most difficult. It is whether the secretary of state was under a duty to erase and expunge the alleged unauthorized entries from the house journal. That he was under such duty must be made to clearly appear before the writ of mandamus will lie against him in respect of it. If the duty exists, it is purely statutory. The secretary of state has no duties to perform except those imposed upon him by the constitution and statutes of the state. Mandamus is a conservative, not a creative, remedy. It enforces existing duties, but does not impose new duties. By it the officer may be coerced to an act which it was his duty to perform without it, but to no act as to which he was under no duty before its issuance. And the duty must be clear upon the statute. The rule as to the duty and the right to its performance is variously, and not always accurately, expressed in the adjudged cases. The right must be ‘certain and positive.’ Beaman v. Board,42 Miss. 237 [ (1868) ]. The duty must be ‘clear, and if there be doubt, involving the necessity for litigation,’ the writ will not lie. Townes v. Nichols,73 Me. 515 [ (1882) ]. There must be ‘a specific legal right and a positive duty.’ State v. Burnside,33 S.C. 276 ,11 S.E. 787 [ (1890) ]. ‘Duty must be specifically enjoined by law.’ Freon v. Carriage Co.,42 Ohio St. 30 [ (1884) ]. Right ‘must be clearly established. If right doubtful, writ will be refused.’ Mobile & O.R. Co. v. People,132 Ill. 559 ,24 N.E. 643 [ (1890) ]. ‘Writ will not issue, where there is a substantial doubt of respondent’s duty.’ State v. Buhler,90 Mo. 560 ,3 S.W. 68 [ (1887) ]. Will not be awarded when there is a doubt of the relator’s right to the relief sought.’ People v. Salomon,46 Ill. 415 [ (1868) ]‘Duty must be clearly enjoined by law.’ Draper v. Noteware, 7 Cal. 276 [ (1857) ]. ‘It must be clearly commanded by law.’ Puckett v. White,22 Tex. 559 [ (1858) ]. ‘When the legal right is doubtful, writ will be denied.’ State v. Appleby,25 S.C. 100 [ (1886) ]. Issued when there is a failure to perform ‘plain official duty’ (Maddox v. Neal,45 Ark. 121 [ (1885) ]), not ‘when well founded doubt as to the alleged duty arises’ (People v. Johnson,100 Ill. 537 [ (1881) ]; People v. Hatch,38 Ill. 9 [ (1839) ]). ‘Where the validity of a judgment of conviction is doubtful, writ will not issue to enforce it.’ Rex v. Broderip, 5 Barn. & C. 239; Reg. v. Ray, 44 U.C.Q.B. 17. The act sought to be compelled, must be ‘clearly defined and enjoined by law.’ Glasscock v. Commissioner,3 Tex. 51 [ (1848) ]. ‘The writ does not lie to compel a county judge to perform an act which the law does not specifically enjoin upon him as a duty resulting from his office.’ State v. Napier,7 Iowa 425 [ (1858) ]. The duty must be either imposed upon the officer ‘by some express enactment, or necessarily result from the office he holds.’ Pond v. Parrot,42 Conn. 13 [ (1875) ]. Officer must be ‘expressly authorized by law" to do the act. Chisholm v. McGehee,41 Ala. 192 [ (1867) ]. ‘A clear specific legal right ’ to have the act performed must be shown. 3 Brick. Dig. p. 625.
“As we have said, some of the foregoing expressions are inaccurate or misleading. A doubt that may arise in the mind of the court in matter of law, as to the existence of the duty, will not, as some of the cases seem to hold, require or justify the denial of the unit. It is the court’s province and duty to solve all such doubts, and declare the duty as it finds it to be, after its misgivings as to the intent and meaning of the statute involved, or as to any other question of law, have been eliminated. Substantial doubt as to whether the facts of the particular case present the conditions upon which the officer is bound to act may, it would seem, justify or require a refusal of the writ. Of course, the doubts of the officer as to his duty are of no consequence. State v. Tarpen (Ohio) [43 Ohio St. 311 ,]1 N.E. 209 [ (1885) ]. Again, the duty need not be ‘specifically enjoined’ or ‘expressly prescribed’ by law. The true rule in this connection, we apprehend, is that the duty must be imposed in terms by the statute, in cases like the one in hand, or must result therefrom by fair and reasonable construction or interpretation. It must appear from the statute in terms or by fair implication.”
State ex rel. Brickman v. Wilson,
In light of the foregoing, we now turn to the legal issue before, us.
Discussion
The principle that governs which state’s substantive law applies to tort claims in a conflict-of-laws analysis is well settled: “Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.” Fitts v. Minnesota Min. & Mfg. Co.,
The parties agree that under the principle of lex loci delicti the governing law is the law of the jurisdiction where the injury occurred. The parties disagree, however, as to where an injury occurs for purposes of a malicious-prosecution claim. U.S. Bank argues that the injury in a malicious-prosecution action occurs in the
Unlike Alabama, Washington follows the “English rule” for malicious-prosecution claims, which requires a plaintiff to plead arrest or seizure of property. See Clark v. Baines,
For the reasons below, we find that injury in a malicious-prosecution action occurs in the state where the allegedly malicious lawsuit was terminated in favor of the complaining party. Therefore, the principle of lex loci delicti requires that the law of the state in which the antecedent lawsuit was litigated governs a claim of malicious prosecution.
Alabama continues to follow the traditional view of the Restatement (First) of Conflicts of Law, as discussed in Fitts v. Minnesota Min. & Mfg. Co., supra, which looks to the lex loci delicti in tort claims, “in the state where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement (First) of Conflict of Laws § 377 (1934). This interpretation adheres to the holding of the seminal lex loci delicti case in Alabama, Alabama Great S. R.R. v. Carroll,
“Up to the time [this] train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied upon to justify a recovery transpired.”
Carroll,
In the present case, the “fact which created the right to sue” was the termination of the allegedly malicious lawsuit in
We note that in support of its “feel the financial harm” argument for malicious-prosecution claims, Sterne Agee cites several decisions from federal district courts, sitting in Alabama, holding that where the alleged injury is financial, the location where the financial injury was felt is determinative. Glass v. Southern Wrecker Sales,
“In examining other courts’ application of the lex loci delicti rule to fraud claims, the court has found that courts consistently conclude that the state where the injury occurred in a fraud claim is the state in which the plaintiff suffered the economic impact. See Management Science America, Inc. v. NCR Corp.,765 F.Supp. 738 , 740 (N.D.Ga.l991)(examining cases from Indiana and Tennessee in determining that ‘[fjederal courts ... consistently have considered [fraud] to have been committed in the state where the economic loss occurred and not where the fraudulent misrepresentations were made.’); Steele v. Ellis,961 F.Supp. 1458 (D.Kan.1997); Restatement of Conflict of Laws § 377 (1934). Therefore, the court will look to see in which state any alleged economic impact was felt.”
For a malicious-prosecution claim, the event creating the right to sue is not the expenditure of financial resources in order to defend a lawsuit. Such expenses would be made even if the antecedent lawsuit was ultimately terminated in favor of the defendant. It is the determination that such expenses were required to defend an allegedly malicious prosecution (by
Alabama courts’ application of the principle of lex loci delicti to cases involving the tort of bad-faith failure to defend a lawsuit are more on point with the present case. Like malicious prosecution, bad-faith failure to defend is based on injury resulting from an antecedent lawsuit, and the injury often involves more than mere financial harm. In Lifestar Response of Alabama, Inc. v. Admiral Insurance Co.,
Similarly, in Twin City Fire Insurance Co. v. Colonial Life & Accident Insurance Co.,
In short, Sterne Agee’s reliance on cases involving fraud and tortious interference in support of its argument is misplaced, and we decline to apply the “feel the financial harm” analysis to a malicious-prosecution claim. Like Lifestar and Twin City Fire Insurance Co., Sterne Agee’s malicious-prosecution claim is based on injury allegedly resulting from an antecedent lawsuit. Accordingly, the principle of lex loci delicti likewise requires that the governing law come from Washington, the state of the antecedent lawsuit.
Conclusion
The principle of lex loci delicti requires that the law of the state in which the antecedent lawsuit was terminated in favor of the complaining party governs a malicious-prosecution claim. Thus, Washington law governs Sterne Agee’s claim of malicious prosecution. Accordingly, U.S. Bank’s petition for writ for mandamus is granted, and the circuit court is ordered to dismiss Sterne Agee’s malicious-prosecution case.
PETITION GRANTED; WRIT ISSUED.
Dissenting Opinion
(dissenting).
Although I fully concur with what I consider to be an important part of the analysis offered by the main opinion, for the
This case addresses a petition for a writ of mandamus filed by U.S. Bank National Association and U.S. Bancorp (hereinafter collectively referred to as “U.S. Bank”). In the portion of the main opinion that discusses the “Standard of Review,” the majority observes:
“In choosing to address U.S. Bank’s mandamus petition seeking review of the circuit court’s ruling on its motion to dismiss, we are cognizant that in order for a writ of mandamus to issue, U.S. Bank must have a ‘clear legal right’ to the order of dismissal. Although the legal issue before us has not been definitively settled, this does not mean that mandamus relief is unavailable. In other words, the mere fact that a legal issue is debatable does not change the responsibility of this Court, as a ‘court of law,’ to decide the law and provides no basis for denying relief.”
I fully agree with the foregoing statement and the analysis that follows it. If the issue described in the above-quoted portion of the main opinion was the only potential obstacle to the issuance of the writ of mandamus, I would fully concur in issuing the writ.
In this case, however, there exists a second obstacle to granting the petition for a writ of mandamus: this is not one of the types of cases in which this Court allows mandamus review of an interlocutory trial court decision refusing to dismiss an action. As this Court has stated:
“‘Subject to certain narrow exceptions ..., we have held that, because an “adequate remedy” exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ ”
Ex parte Kohlberg Kravis Roberts & Co.,
“Th[e] general rule is not without exceptions. See, e.g., Ex parte Alloy Wheelsi Int’l, Ltd.], 882 So.2d [819,] 822 [ (Ala.2003) ] (‘One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdic-tion_’); Ex parte Rizk,791 So.2d 911 , 912 (Ala.2000) (While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’); and Ex parte Snow,764 So.2d 531 , 537 (Ala.1999) (noting that the denial of a summary-judgment motion is reviewable by a petition for a writ of mandamus when the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying fictitiously named defendants). See also [Ex parte] Integon Corp., 672 So.2d [497,] 499 [ (Ala.1995) ] (holding that a petition for a writ ofmandamus is the proper method for challenging a forum non conveniens ruling)”
See also Ex parte Alamo Title Co.,
The present case does not fall within any of the foregoing exceptions to the general rule; instead, it involves a “choice-of-law” issue. Nonetheless, the main opinion arrives at the conclusion that mandamus review is, or should be, available. I disagree.
Put simply, Ex parte Exxon did not involve a trial court’s denial of a motion to dismiss or the denial of a motion for a summary judgment. It concerned a trial court’s certification of a class action. As the Ex parte Exxon Court noted: “A mandamus petition is the proper procedural tool to challenge the certification of a class action.”
Although the main opinion couples its citation to Ex parte Exxon with a citation to a second case, Batey & Sanders, Inc. v. Dodd,
Batey & Sanders was a workers’ compensation case. The opinion issued by the Court of Civil Appeals contains no acknowledgment of the general rule against mandamus review of the denial of a motion to dismiss or for a summary judgment, nor did the Court of Civil Appeals provide any explanation as to why or how it was able to circumvent the general rule in deciding Batey & Sanders as it did. I suggest that the Court of Civil Appeals simply overlooked the general rule and that, accordingly, Batey & Sanders provides no persuasive support for the result reached in the present case.
A closer look at the exceptions to the general rule against interlocutory mandamus review of the denial of a motion to dismiss or for a summary judgment appears to reveal that they involve questions as to whether the trial court that has declined to dismiss the action or to enter a summary judgment is a, or the, proper tribunal to decide the merits of the claims that will remain for adjudication in the wake of its decision. Where no court properly can adjudicate the merits of a claim, or where a claim ought to be, or ought to have been, tried on its merits in some different tribunal, mandamus review of the trial court’s decision to insist on adjudicating the merits of the claim has been granted by this Court. I see no reason to conclude that the time has come to recognize some additional exception that is not of the same character.
The question in the present case is, in essence, simply whether applicable law recognizes the cause of action at issue. The trial court may err in deciding this question, just as it may err in deciding an innumerable number of other legal questions that determine whether an action in a given case is cognizable or not. By answering the question here, we place ourselves on a slippery slope. On what principled basis, for example, do we distinguish between this case and a case in which a trial court must choose which of two Alabama statutes is applicable: one of which establishes a cause of action and one of which does not? On what basis do we grant mandamus review in this case, but deny mandamus review in a case in which
This Court recently made the following statement regarding the prospect of expanding the number or type of cases in which we will conduct mandamus review of trial court decisions regarding discovery:
“ ‘Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order.’ ”
Ex parte Guaranty Pest Control, Inc.,
Based on the foregoing, I respectfully must dissent.
Notes
. In a few cases, we also have permitted mandamus petitions from a denial of a motion to dismiss or a motion for a summary judgment where a movant has sought to avoid a multiplicity of litigation.
"The supreme court also has considered petitions for a writ of mandamus to review orders denying motions to dismiss based on the compulsory-counterclaim rule, see Ex parte Cincinnati Ins. Co.,806 So.2d 376 (Ala.2001), and on Ala.Code 1975, § 6-5-440, the abatement statute, see Ex parte J.E. Estes Wood Co.,42 So.3d 104 (Ala.2010), both of which are intended to avoid multiplicity of litigation.”
Ex parte Ocean Reef Developers II, LLC,
In its discussion of the standard of review, the main opinion also notes several other categories of cases in which this Court has permitted mandamus relief; however, the cases cited do not address the denial by the trial court of a motion to dismiss a claim or for a summary judgment and do not recognize additional exceptions to the general rule that interlocutory appellate review of such rulings by an appellate court by way of a petition for a write of mandamus is not available.
. As a preliminary matter, I note the main opinion’s observance of the fact that U.S. Bank did elect in this case to seek a certification by the trial court of a question for a permissive appeal pursuant to Rule 5, Ala. R.App. P., but that the trial court denied this request. I do not read this observation or any other reference to the trial court's denial of U.S. Bank’s attempt to obtain Rule 5 review as suggesting that, had U.S. Bank elected not to seek a Rule 5 certification, this fact would have barred it from mandamus review of an issue that otherwise would be appropriate for such review. This Court has never suggested that the availability of mandamus review of an issue otherwise appropriately reviewable by mandamus turns on whether a party first seeks a discretionary certification of that issue for a permissive appeal. See Ex parte Alamo Title Co.,
Concurrence Opinion
(concurring specially).
I concur in the main opinion. I write specially to note the following.
It is undisputed that this Court has the authority, based on the Alabama Constitution and statute, to issue any writs necessary to give general superintendence and control of lower courts. Ala. Const.1901, Art. VI, § 140; Ala.Code 1975, § 12-2-7(3). As noted in the main opinion, there are numerous situations in which this Court exercises authority by mandamus to review interlocutory decisions that, if properly set aside, would terminate an action so as to avoid the waste and expense of further litigation.
The appellate courts of this State have, in the past, issued writs of mandamus to correct trial courts’ decisions on issues relating to the conflict of laws. Ex parte Exxon Corp.,
Here, the correct application of conflict-of-laws principles requires the utilization of the law of the State of Washington. That law undisputedly results in the termination of this litigation. See respondent’s answer, at 29-30 (noting that Washington law “would bar a remedy” in this case). Given that our determination terminates the litigation in this action, that this Court has the power to issue writs of mandamus to supervise the trial courts, and that decisions on conflict-of-laws issues have been previously decided on mandamus review, I concur to issue the writ.
Concurrence Opinion
(concurring specially).
I write specially to emphasize my belief that mandamus is appropriate where, as here, “there is an obvious conflict-of-laws issue,”
Dissenting Opinion
(dissenting).
I respectfully dissent because I do not believe that U.S. Bank National Association and U.S. Bancorp have demonstrated a clear legal right to mandamus relief. I do not see how a party could have a clear legal right to relief when the issue presented is one of first impression. Making the alleged legal right even less clear is the fact that federal courts in Alabama have held that where, as here, the alleged injury is financial, jurisdiction is proper where the injury is felt. Glass v. Southern Wrecker Sales,