May 29, 2015
Ex parte Fairfield Nursing and Rehabilitation Center, LLC, et al. In re: Myrtis Hill
Fairfield Nursing and Rehabilitation Center, LLC, et al.
(Jefferson Circuit Court, Bessemer Division, CV-06-1266).
Justice. Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock and Shaw, JJ., dissent.
FOR WRIT OF MANDAMUS
Nursing and Rehabilitation Center, LLC ("
Fairfield" ); D& N, LLC (" D& N" ); DTD HC,
LLC (" DTD" ); Aurora Cares, LLC (alleged to be
doing business, and herein sometimes referred to, as "
Tara Cares" ); and Aurora Healthcare, LLC ("
Aurora" ) (hereinafter sometimes referred to
collectively as " the defendants" ), petition this
Court for a writ of mandamus, directing the trial court to
vacate its February 6, 2015, order denying their "
Motion to Quash Depositions and Motion for Protective Order,
and Motion to Reconsider January 30, 2015[,] Order."
The defendants also request that we direct the trial court to
grant their motion. We grant the petition and issue the writ.
Facts and Procedural History
September 25, 2006, Myrtis Hill
(" Hill" ) filed an action in the Jefferson
Circuit Court, Bessemer Division, against Fairfield; D& N;
DTD; Donald T. Denz (" Denz" ); Norbert A. Bennett
(" Bennett" ); Tara Cares; and
Aurora. In the complaint, Hill asserted:
" 4. In May 2006 ... Hill ... was a patient at
[Fairfield]. At the time of admittance[,] [Fairfield]
undertook and agreed to provide [Hill] with all necessary and
proper care for [Hill's] physical health, and medical
" 5. On [Hill's] admittance to [Fairfield], [Hill]
had no broken bones.
" 6. On May 10, 2006, ... Hill ... suffered a broken leg
while under the care of [a Fairfield] employee, [who,] while
attempting to transfer [Hill to a bedside commode],
negligently dropped her to the floor thereby breaking
[Hill's] right leg and causing severe injury to both of
" 7. Upon information and belief, Defendants, their
employees, and assigns negligently used said lift in
attempting to lower [Hill,] thereby deviating from their own
safety rules as well as those imposed by state and federal
addition to the medical-negligence claim, Hill also stated a
claim of " breach of contract/piercing the corporate
August 2009 and October 2009, Hill deposed, among other
persons, Chance Becnel, the corporate representative of Tara
Cares; Denz, the corporate representative of both DTD and
Aurora; and Bennett, the corporate representative of D&
N. Hill also deposed Denz and Bennett in
their individual capacities in 2009; additionally, Hill
deposed 14 Fairfield employees and 2 other Tara Cares
defendants moved the trial court for a summary judgment;
after holding a hearing, the trial court denied the motion.
Subsequently, the defendants moved the trial court to "
reconsider" its denial of their summary-judgment motion.
On November 13, 2009, the trial court granted
the summary-judgment motion in part, entering a summary
judgment in favor of all the defendants except Fairfield. The
case against Fairfield proceeded to a jury trial. After Hill
concluded her case, Fairfield moved for a judgment as a
matter of law; the trial court granted Fairfield's motion
on November 24, 2009. Hill subsequently moved the trial court
to alter, amend, or vacate its judgment; the trial court
denied Hill's motion on January 5, 2010. Hill timely
appealed to this Court. We reversed both the summary judgment
in favor of all the defendants except Fairfield and the
judgment as a matter of law in favor of Fairfield, and we
remanded the cause to the trial court for further
proceedings, i.e., a new jury trial on Hill's
medical-negligence claim and, if necessary, and only after
the completion of the medical-negligence action, a bench
trial on Hill's piercing-the-corporate-veil
claim. Hill v. Fairfield Nursing & Rehab.
Ctr., LLC, 134 So.3d 396, 411 (Ala. 2013).
January 27, 2015, Hill filed a document entitled "
Motion to Compel the Deposition of all Corporate Defendant
Representatives, or in the Alternative to Strike the Newly
Named [Defendants'] Experts." In that filing, Hill
argued that Hill should be permitted to redepose all the
defendants' corporate representatives because, Hill said,
" facts may have changed that [Hill] would need to know
about prior to trial." Alternatively, Hill argued that
the trial court should strike the " newly named
experts" the defendants had disclosed as persons who
would be testifying at trial. On January 30, 2015, Hill filed
a document entitled " Second Motion to Compel the
Deposition of all Corporate Defendant Representatives,"
essentially restating the same arguments presented in the
first motion to compel.
January 30, 2015, the defendants filed a document entitled
" Response to [Hill's] Motion to Compel and Motion
to Strike, and Defendants' Motion for Protective
Order." In that filing, the defendants argued, in sum:
(1) that " [Hill] already took the Rule 30(b)[, Ala. R.
Civ. P.,] depositions of the corporate defendants in August
2009 and October 2009" and " has provided no
justifiable reason, nor does one exist, that entitles [Hill]
to take any of these depositions again" ; (2) that
" [Hill's] informal request for additional corporate
representative depositions amount[s] to nothing more than an
attempt to annoy and harass the Defendants that would be
unduly burdensome, and lead to unnecessary time and
expense," in contravention of Rule 26(c), Ala. R. Civ.
P.; and (3) that the defendants had designated only one new
expert, namely, Dr. Lars Reinhart, to testify at trial and
had " offered the deposition of Dr. Reinhart on January
29, 2015," but that " [Hill's] counsel advised
that they did not need to depose Dr. Reinhart and that they
would just 'see him at trial.'" On the same day,
the trial court entered an order stating: " [Hill's]
Motion To Compel the [Rule] 30(b)(5) & (6) depositions of the
Defendant LLCs is granted and [the defendants are] ordered
to comply or suffer imposition of sanctions."
February 4, 2015, the defendants filed a document entitled
" Defendants' Motion to Quash Depositions and Motion
for Protective Order, and Motion to Reconsider January 30,
2015[,] Order" (" motion for a protective
order" ). The defendants presented four arguments in
support of the
motion for a protective order. First, the defendants argued:
" [Hill] first issued [the] Deposition Notices seven (7)
days before the discovery cutoff mandated by this Court's
Scheduling Order. Because [Hill] failed to initiate the
discovery in such a time that the depositions could be
completed before the discovery cutoff date, the requested
depositions should be quashed and a protective order in favor
of Defendants is warranted."
the defendants argued that " [t]he Depositions should be
quashed because they are duplicative of depositions
previously taken by [Hill]." Third, the defendants
argued that " [t]he depositions should also not proceed
because the topics for which the depositions are sought
pertain solely to [Hill's] piercing the corporate veil
claim that both this Court and the Alabama Supreme Court have
held must be tried separately in equity." Fourth, the
defendants argued that " [they] are entitled to a
protective order regarding the depositions because they
subject [the] defendants to 'annoyance, ... undue burden
and expense,'" in contravention of Rule 26(c). Also,
the defendants moved the trial court to vacate its order
compelling the depositions of the defendants' corporate
representatives for the same four reasons. On February 6,
2015, the trial court denied the motion for a protective
order without explaining its reasoning for doing so. The
defendants now seek mandamus review.
Standard of Review
" 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 BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala.
" '" Discovery matters are within the trial
court's sound discretion, and this Court will not reverse
a trial court's ruling on a discovery issue unless the
trial court has clearly exceeded its discretion. Home
Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991).
Accordingly, mandamus will issue to reverse a trial
court's ruling on a discovery issue only (1) where there
is a showing that the trial court clearly exceeded its
discretion, and (2) where the aggrieved party does not have
an adequate remedy by ordinary appeal. The petitioner has an
affirmative burden to prove the existence of each of these
" 'Ex parte Ocwen Fed. Bank, FSB, 872
So.2d 810, 813 (Ala. 2003).
" 'Moreover, this Court will review by mandamus only
those discovery matters involving (a) the disregard of a
privilege, (b) the ordered production of " patently
irrelevant or duplicative documents," (c) orders
effectively eviscerating " a party's entire action
or defense," and (d) orders denying a party the
opportunity to make a record sufficient for appellate review
of the discovery issue. 872 So.2d at 813-14.'"
Ex parte Mobile Gas Serv. Corp., 123 So.3d 499, 504
(Ala. 2013) (quoting Ex parte Meadowbrook Ins. Grp.,
Inc., 987 So.2d 540, 547 (Ala. 2007)). Mandamus review
is the appropriate manner by which to challenge the denial of
a motion for a protective order after a trial court has
compelled discovery. See Ex parte Community Health Sys.
Prof'l Servs. Corp., 72 So.3d 595 (Ala. 2011);
Ex parte Aramark Mgmt. Servs. Ltd. P'ship,
156 So.3d 407 (Ala.Civ.App. 2014).
initial matter, we must address the defendants' rather
confusing and misguided argument regarding the trial
court's exercise of subject-matter jurisdiction in this
case. The defendants' argument is unclear. As best we
understand, the defendants argue that, because the
information Hill seeks from the requested depositions
pertains only to the piercing-the-corporate-veil claim that
is not yet being adjudicated in the trial court, "
[that] court is adjudicating claims for which it has no
subject matter jurisdiction." This argument is faulty
for a number of reasons; among others, this argument is
erroneously premised on the defendants' apparent belief
that taking of depositions is the functional equivalent of
" adjudicating claims." That analogy is simply
incorrect. Also, taking depositions -- potentially -- with
regard to the yet-to-be-litigated piercing-the-corporate-veil
claim in no way disturbs the trial court's subject-matter
jurisdiction over the pending medical-negligence claim.
Furthermore, the defendants have effectively conceded that
the trial court has subject-matter jurisdiction in this
action; notably, the defendants in their mandamus petition do
not seek the dismissal of Hill's action for lack of
subject-matter jurisdiction but seek the issuance of a
protective order, which the trial court could not do if it
lacked subject-matter jurisdiction. See, e.g., Redtop
Market, Inc. v. State, 66 So.3d 204, 206 (Ala. 2010)
(noting that, when a circuit court lacks subject-matter
jurisdiction, all orders and judgments entered in the case,
except an order of dismissal, are void ab initio). The
defendants' argument regarding the trial court's
subject-matter jurisdiction in this case is meritless.
defendants' arguments on the merits of the petition are
more straightforward. The defendants argue, in pertinent
part, that the trial court exceeded its discretion in denying
the motion for a protective order because, they claim, Hill
has offered no compelling reason to support her request to
redepose the defendants' corporate representatives; that
the taking of those depositions would provide Hill
information that is merely duplicative of the information
provided by the corporate representatives during prior
depositions; and that the taking of those new depositions
would cause the defendants unnecessary " annoyance"
and " expense" and would constitute an " undue
burden." We agree.
26(b)(2)(B), Ala. R. Civ. P., provides that a trial court
" shall" limit or prohibit discovery if it
determines (1) that the discovery sought is "
unreasonably cumulative or duplicative" ; (2) "
that the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information
sought" ; or (3) that the discovery sought is "
unduly burdensome." (Emphasis added.) The party
contesting the discovery request must demonstrate the
existence of only one of the three reasons for limiting or
prohibiting discovery quoted above; in this case, the
defendants have demonstrated the existence of all three
reasons for prohibiting the requested depositions.
the defendants have demonstrated that the requested
depositions would be unreasonably duplicative of the
depositions already provided by the defendants' corporate
representatives. In their mandamus petition, the defendants
set forth nine examples of information Hill is seeking in the
requested depositions and demonstrate how the defendants'
corporate representatives have already provided substantial
testimony as to all nine of those issues. See Petition, at
6-13. The defendants state that they have provided "
only representative examples" of the duplicative nature
of requested deposition testimony because, they say, "
there are nearly five hundred (500) pages of testimony
responsive to the topics" set forth in the petition.
Id. at 6. Hill neither provides meaningful response
to nor contradicts the defendants' argument. Instead,
Hill merely posits that " [t]he simple truth is that
whenever this case gets close to trial, the
Petitioners/Defendants improvidently file baseless motions
seeking only to delay and deny both the trial and
justice." Respondent's brief, at 14. See also
respondent's brief, at 17 (" The simple truth is
that the Defendants have purposely attempted to derail the
trial of this case on two different occasions ... to delay
justice and distract the Respondent from trial
preparation." ). In fact, Hill goes so far as to allege
that " [the defendants'] 'delays,' in their
eyes, have brought about the intended outcome, i.e.[,] the
death of [Myrtis] Hill...." Id. at 14.
Hill's response to the defendants' argument is
baseless; it does nothing to defeat the defendants'
showing that the requested depositions are unreasonably
duplicative of the depositions previously given by the
defendants' corporate representatives.
the defendants have demonstrated that Hill has had "
ample opportunity by discovery in the action to obtain the
information sought." As noted, Hill filed the original
complaint against the defendants on September 25, 2006. Hill
deposed the defendants' corporate representatives between
August 2009 and October 2009. On January 27, 2015, Hill moved
the trial court to redepose the defendants' corporate
representatives. This action had been pending for almost 9
years when Hill moved to redepose the defendants'
corporate representatives, and this action is before the
trial court after having been addressed by this Court on
three occasions. Furthermore, as previously stated, Hill has
already obtained the information she seeks from the corporate
representatives. We are clear to the conclusion that Hill has
had ample opportunity to obtain, and, in fact, has already
obtained, the information sought in the requested
the defendants have demonstrated that the discovery would be
" unduly burdensome." Suffice it to say, the time,
effort, and financial costs that would be required of the
defendants if Hill were allowed to redepose the
defendants' corporate representatives for information
already obtained by Hill would be unduly burdensome.
we note that Rule 26(c) provides that a trial court may issue
a protective order refusing to compel discovery in order to
protect a party from, among other things, "
annoyance" and " undue burden and expense." As
stated, allowing Hill to redepose the defendants'
corporate representatives would clearly impose on the
defendants an undue burden and expense. Thus, based on the
foregoing, we hold that the trial court exceeded its
discretion in denying the motion for a protective order. See
Rule 26(b)(2)(B), Ala. R. Civ. P.; Rule 26(c), Ala. R. Civ.
P.; and Ex parte Industrial Dev. Bd. of City of
Montgomery, 42 So.3d 699, 718 (Ala. 2010) ("
Because the [petitioner] has shown that [the proposed
deponent] is not the only source of information about each of
the topics on which the plaintiffs sought to depose him and
because the plaintiffs have not demonstrated that deposing
[the proposed deponent] is crucial to preparing their cases,
the [petitioner] is entitled to a protective order preventing
the plaintiffs from deposing [the proposed deponent]."
defendants have demonstrated " a clear legal right ...
to the order sought" and that the trial court clearly
exceeded its discretion in denying the defendants' motion
for a protective order. See Ex parte Mobile Gas Serv.
Corp., 123 So.3d at 515. Therefore, we direct the trial
court to vacate its February 6, 2015, order denying the
motion for a protective order and to enter an order granting
the same motion. Hill's " Motion for Award of
Damages based on [the defendants'] pattern and practice
of filing frivolous appeals" is denied. We pretermit as
unnecessary any discussion of the defendants' remaining
GRANTED; WRIT ISSUED; RESPONDENT'S MOTION FOR DAMAGES
Bolin, Parker, Wise, and Bryan, JJ., concur.
C.J., and Murdock and Shaw, JJ., dissent.
The trial court's January 30, 2015,
order granted the " Motion to Compel the Deposition of
All Corporate Defendant Representatives, or In the
Alternative to Strike the Newly Named Experts [for the
Defendants]" filed by the original plaintiff below,
These parties have been before this Court
on several occasions. See Ex parte Fairfield Nursing &
Rehab. Ctr., L.L.C., 22 So.3d 445 (Ala. 2009); Hill
v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So.3d 396
(Ala. 2013) (opinion on application for rehearing); and
Ex parte Fairfield Nursing & Rehab. Ctr., LLC (No.
1130955, June 6, 2014) (denial of petition for the writ of
" The complaint also listed Hill's
son, Fred Hill, as a plaintiff in the capacity of 'next
of friend' of Myrtis Hill, but Fred Hill later was
dismissed as a plaintiff after the parties stipulated that
Myrtis Hill was competent." Hill v. Fairfield
Nursing & Rehab. Ctr., LLC, 134 So.3d 396, 399 n. 1
(Ala. 2013). Hill died on January 26, 2015. Respondent's
brief, at 7. Although the attachments to the petition and the
respondent's brief do not include a " Suggestion of
Death" or any filing showing that Hill's son, Fred,
was substituted for Hill as the plaintiff in this case, some
of the documents attached to the petition and the
respondent's brief that were filed after Hill's death
show the named plaintiff as " Fred Hill, as next friend
of [Myrtis] Hill." For the sake of continuity, in this
opinion we continue to refer to the plaintiff as "
Denz and Bennett are no longer parties in
this matter. See Hill v. Fairfield Nursing & Rehab. Ctr.,
LLC, 134 So.3d 396, 399 n. 2 (Ala. 2013)(" In
addition to the defendants listed, Hill at one point asserted
claims against several other individuals and one limited
liability company, LKC, LLC, not listed. At a hearing on a
summary-judgment motion before trial, Hill voluntarily
dismissed those other defendants." ).
The piercing-the-corporate-veil claim will
be litigated, if at all, in a separate bench trial after the
medical-negligence claim, which will be tried before a jury,
has been fully litigated.
 " A party may ... name as the
deponent a public or private corporation ... and describe
with reasonable particularity the matters on which
examination is requested. In that event, the organization so
named shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on
its behalf ...." Rule 30(b)(6), Ala. R. Civ. P.
In Hill v. Fairfield Nursing &
Rehabilitation Center, LLC, 134 So.3d 396, 411 (Ala.
2013), this Court noted that " '[w]hether the
corporate veil of a business entity should be pierced is a
matter of equity, properly decided by a judge after a jury
has resolved the accompanying legal issues.'"
(Quoting Heisz v. Galt Indus., Inc., 93 So.3d 918,
929 (Ala. 2012) (emphasis added).)