Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
(Calhoun Circuit Court, CV-10-900469).
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
FOR WRIT OF MANDAMUS
30, 2014, the Calhoun Circuit Court (" the trial
court" ) entered a summary judgment in favor of Sylvia
Curry, Loretta Cuthbert, and Letitia Clark (hereinafter
collectively referred to as " the plaintiffs" ) on
their claims against Ron Gibson and Ron Gibson Construction
Company (hereinafter collectively referred to as "
Gibson" ). Gibson filed a postjudgment motion
directed to the summary judgment on July 29, 2014. After a
status review, the trial court entered on October 22, 2014,
an order stating: " Trial of this matter is hereby set
for the week commencing on February 23, 2015, at 9:00
a.m." The trial court entered a scheduling order on
December 19, 2014. The parties complied with the trial
court's scheduling order even as late as February 3,
2015, but on February 4, 2015, counsel for the plaintiffs
informed counsel for Gibson that he believed that the trial
court lacked jurisdiction to hold a trial because, in his
opinion, Gibson's postjudgment motion had been denied by
operation of law on October 27, 2014.
response to the plaintiffs' communication, Gibson filed
on February 6, 2015, a Rule 60(b), Ala. R. Civ. P., motion
seeking to have the trial court enter an order specifically
granting the postjudgment motion. Gibson relied on Rule
60(b)(6) and argued that Gibson was entitled to relief from
the operation of the 90-day provision in Rule 59.1, Ala. R.
Civ. P., because the trial court had entered an order
scheduling a trial, which, Gibson contended, was an implicit
grant of the postjudgment motion. Furthermore, Gibson argued,
the parties had understood that the postjudgment motion had
been granted, as evidenced by their compliance with the trial
court's scheduling order. The trial court granted
Gibson's Rule 60(b) motion on February 11, 2015.
plaintiffs filed this petition for the writ of mandamus in
our supreme court on March 25, 2015; our supreme
court transferred the petition to this court on April 29,
2015. We called for an answer, which Gibson timely filed. The
standard applicable to the review of a petition for the writ
of mandamus is well settled.
" '" [M]andamus 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; (3) the lack of another adequate
remedy; and (4) properly invoked jurisdiction of the
court." Ex parte Horton, 711 So.2d 979, 983
Ex parte Builders & Contractors Ass'n of Mississippi
980 So.2d 1003, 1006
(Ala.Civ.App. 2007) (quoting Ex parte Alloy Wheels
Int'l, Ltd.,882 So.2d 819, 821 (Ala. 2003),
overruled on other grounds by Ex ...