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Ex parte Curry

Alabama Court of Civil Appeals

January 10, 2014

Ex parte Bonnie A. Curry and Bennie R. Walker;
v.
Bonnie A. Curry and Bennie R. Walker In re: State Farm Fire and Casualty Company, as subrogee for John Hawkins

Released for Publication November 6, 2014.

(Houston Circuit Court, CV-12-350). Henry D. Binford, Trial Judge.

PETITION DENIED.

For Petitioners: Mark A. Overall, Montgomery.

For Respondent: Alex L. Holtsford, Jr., and Rebecca L. Chambliss of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery.

Thompson, P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.

OPINION

Page 907

PETITION FOR WRIT OF MANDAMUS

Per Curiam.

On September 7, 2012, State Farm Fire and Casualty Company (" State Farm" ), as subrogee for its insured, John Hawkins, filed a complaint in the Houston District Court (" the district court" ), seeking $7,211.50 in damages from Bonnie A. Curry and Bennie R. Walker for the damage caused to an automobile insured by Hawkins (" the insured automobile" ) in an August 6, 2011, accident involving the insured automobile and an automobile owned by Walker and driven by Curry. On October 22, 2012, Curry and Walker answered the complaint and brought a " counterclaim" against Hawkins, in which they alleged that Hawkins had negligently or recklessly operated the insured automobile, resulting in the accident and injury to Curry.[1] Curry and Walker sought damages exceeding $10,000 and a jury trial; thus, the action was transferred to the Houston Circuit Court (" the circuit court" ). See Whorton v. Bruce, 17 So.3d 661, 663 (Ala.Civ.App. 2009); Miller v. Culver, 447 So.2d 761, 764 (Ala.Civ.App. 1984).

On February 12, 2013, Curry and Walker moved to amend their " counterclaim" to add MacArthur Mike Hawkins (" MacArthur" ), Hawkins's son, who was driving the insured automobile at the time of the accident, as a counterclaim defendant. In their amended " counterclaim," Curry and Walker alleged that MacArthur, Hawkins, and State Farm " are liable for

Page 908

this claim," asserted that MacArthur's negligence, recklessness, and or wantonness had caused the accident, and sought damages resulting from injuries to Curry caused by the accident. On February 12, 2013, Hawkins filed a motion to dismiss or, in the alternative, for a summary judgment on the claims asserted against him, alleging that he was not the driver of the insured automobile on the day of the accident and could not therefore have been negligent or reckless in its operation. Curry and Walker responded to this motion by conceding that Hawkins should be dismissed as a counterclaim defendant, but they again asserted that MacArthur should be made a counterclaim defendant. After a hearing on the pending motions, the circuit court entered an order on April 25, 2013, dismissing the claims against Hawkins and State Farm, denying the motion to amend the " counterclaim," and transferring the action back to the district court. The trial court did not state its reason for refusing to permit the amendment of the " counterclaim" to name MacArthur as a counterclaim defendant. After their timely postjudgment motion was denied on May 9, 2013, Curry and Walker filed a notice of appeal to this court on May 22, 2013. This court has elected to treat the appeal as a petition for the writ of mandamus. See Ex parte Bailey, 814 So.2d 867, 869 (Ala. 2001) (quoting Ex parte Cincinnati Ins. Co., 689 So.2d 47, 49 (Ala. 1997)) (stating that an appellate court may review the disallowance of an amendment by petition for the writ of mandamus " 'where ... amendment of the complaint would not unduly delay the judicial process or prejudice the substantial rights of any parties'" ); McConico v. Correctional Med. Servs., Inc., 41 So.3d 8, 11 (Ala.Civ.App. 2009) (treating a portion of an appeal as a petition for the writ of mandamus when proper review of the issue was by petition for the writ of mandamus).

" Mandamus is a drastic and extraordinary writ, to be issued only where 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; (3) the lack of another adequate ...

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