April 3, 2015
Ex parte Jacqueline Keith
Jacqueline Keith In re: Alexander City Housing Authority,
(Tallapoosa Circuit Court, CV-14-74).
Petitioner: Perry G. Myer, Legal Services Alabama,
Respondent: Joseph R. Fuller, J. Clay Maddox, Fuller Hampton,
LLC, Alexander City.
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
FOR WRIT OF MANDAMUS
Keith petitions this court for a writ of mandamus directing
the Tallapoosa Circuit Court to set aside its January 15,
2015, order that denied her request to proceed in forma
to the materials submitted for our review, the Alexander City
Housing Authority (" the housing authority" )
initiated in the Tallapoosa District Court (" the
district court" ) an unlawful-detainer action against
Keith, pursuant to § 6-6-310, Ala. Code 1975, on October
27, 2014. On December 10, 2014, the district court entered an
order evicting Keith from her residence.
acting pro se, filed a notice of appeal in the Tallapoosa
Circuit Court (" the circuit court" ). On December
23, 2014, Keith moved to proceed in forma pauperis and filed
an affidavit of substantial hardship in which she indicated
that she received government assistance in the forms of food
stamps and Medicaid benefits and that she earned a monthly
gross income of $1,200; the circuit court denied her request
to proceed in forma pauperis on January 15, 2015. On January
29, 2015, Keith, who was then represented by an attorney,
filed a second affidavit of substantial hardship that
indicated that she received " assistance benefits"
in the forms of food stamps and Medicaid benefits but that
she earned no monthly income. Keith attached a motion seeking
reconsideration of the January 15, 2015, order denying her
request to proceed in forma pauperis, asserting that she had
no income, that she had no assets, and that her " income
meets the federal court standard for an affidavit
of hardship." On February 4, 2015, Keith filed a second
motion seeking reconsideration of the January 15, 2015,
order, asserting that in the first affidavit of substantial
hardship she had incorrectly indicated that her " public
benefits" were income.
February 5, 2015, Keith filed this petition for the writ of
mandamus in which she argues to this court that the circuit
court, by denying her request to proceed in forma pauperis,
deprived her of her right to due process and violated §
12-19-70(b), Ala. Code 1975. On February 9, 2015,
Keith filed a motion in this court seeking an order allowing
her to proceed in forma pauperis and seeking a stay of the
district court's eviction order. On February 11, 2015,
this court granted the Keith's request to proceed in
forma pauperis, but we denied her motion seeking a stay of
the eviction order. Thereafter, Keith vacated her residence.
Meanwhile, on February 9, 2015, the housing authority filed a
motion in the circuit court seeking a dismissal of
Keith's appeal of the district court's judgment. That
same day, the circuit court dismissed Keith's appeal
because Keith, by failing to pay the requisite fees, had
failed to perfect the appeal.
" A writ of mandamus is an extraordinary remedy, and is
appropriate when the petitioner can show (1) a clear legal
right 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) the properly
invoked jurisdiction of the court. Ex parte Inverness
Constr. Co., 775 So.2d 153, 156 (Ala. 2000). A writ of
mandamus may not be issued to control or review the exercise
of discretion, except in a case of abuse. Ex parte
Auto--Owners Ins. Co., 548 So.2d 1029, 1030 (Ala.
Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.
this court did not stay the execution of the district
court's judgment ordering Keith's eviction, Keith was
evicted. The underlying unlawful-detainer action is no longer
in controversy; the action is now moot.
" 'A case is moot when there is no real controversy
and it seeks to determine an abstract question which does not
rest on existing facts or rights.' State ex rel.
Eagerton v. Corwin, 359 So.2d 767, 769 (Ala. 1977).
" '" The general rule is, if[,] pending an
appeal, an event occurs which renders it impossible for the
appellate court to grant any relief, the appeal may be
dismissed. ... The condition may ... arise from the act of
the court a quo, that is to say, from some order or judgment
in the case pending the appeal, which is made by the court,
which renders the determination of the questions presented by
the appeal unnecessary." '
" Siegelman v. Alabama Ass'n of Sch. Bds.,
819 So.2d 568, 575 (Ala. 2001) (quoting Caldwell v.
Loveless, 17 Ala.App. 381, 382, 85 So. 307, 307--08
(1920) (emphasis omitted)); see also Eagerton, 359
So.2d at 769 ( '[W]hen an event occurs which renders a
case moot prior to this court considering the appeal it will
be dismissed because a decision is not necessary.'
(citations omitted)). This same principle holds with regard
to petitions for the writ of mandamus. See, e.g., Ex
parte St. John, 805 So.2d 684, 686 4(Ala. 2001)
('To the extent that the petitioner seeks relief
requiring the trial judge to grant the petitioner's
motion to proceed in forma pauperis in the trial court ...
the petition for writ of mandamus is moot, ... because the
trial judge has by now granted the motion.')."
Ex parte Novartis Pharms. Corp., 991 So.2d 1263,
1271 (Ala. 2008).
the underlying action is now moot, Keith has failed to
demonstrate a clear legal right the relief she seeks;
therefore, we deny Keith's petition for a writ of
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
Section 12-19-70(b) provides, in its
" The docket fee may be waived initially and
taxed as costs at the conclusion of the case if the court
finds that payment of the fee will constitute a substantial
hardship. A verified statement of substantial hardship,
signed by the plaintiff and approved by the court,
shall be filed with the clerk of court."