Ex parte Charissa A. Smalls
Lloyd Harper, Charissa A. Harper (Smalls), and Jaylan Gopher In re: Wells Fargo Bank, N.A.
Circuit Court, CV-16-900965
PETITION FOR WRIT OF MANDAMUS
A. Smalls petitions this court for a writ of mandamus
directing the Madison Circuit Court ("the trial
court") to grant her motion to dismiss this action and
to set aside the order transferring this action from one
judge to another judge in the trial court. Mandamus relief
is not available to Smalls because she seeks dismissal of the
action on a ground not raised in the trial court. Further,
the trial court has not ruled on Smalls's motion to
dismiss or on her objection to the transfer order.
Accordingly, we deny the petition.
1998, Smalls and Lloyd Harper, who were married at the time,
purchased real property in Madison County ("the
property"). The purchase was financed by a promissory
note that was secured by a mortgage on the property. In 2006,
Smalls and Harper divorced, and, pursuant to an agreement,
Harper conveyed all of his interest in the property to
Smalls. The property was the subject of another action before
the trial court in case number CV-09-1669 ("the
foreclosure action"). In that action, Wells Fargo Bank,
N.A. ("Wells Fargo"), sought a judicial-foreclosure
sale of the property, and Smalls contested Wells Fargo's
right to foreclose. Smalls has appealed judgments entered by
the trial court in the foreclosure action twice. Smalls
v. Wells Fargo Bank, N.A., 180 So.3d 910 (Ala. Civ. App.
2015) ("Smalls I") (reversing in part and remanding
the cause); and Smalls v. Wells Fargo, (No. 2150308,
August 19, 2016), So.3d (Ala. Civ. App. 2016) ("Smalls
II") (table) (affirming without publishing an opinion).
On October 17, 2016, Charissa Smalls and Eugene Smalls filed
a petition for a writ of certiorari in the Alabama Supreme
Court seeking review of our decision in Smalls II.
That petition remains pending.
9, 2016, while the foreclosure action remained on appeal,
Wells Fargo initiated the present action by filing a
complaint in the trial court against Charissa Smalls alleging
a claim in the nature of ejectment pursuant to §
6-6-280, Ala. Code 1975. In the complaint, Wells Fargo alleged
that it had conducted a foreclosure sale on March 14, 2016,
and had purchased the property. On July 1, 2016, Charissa
Smalls filed an answer. In an amended answer, Smalls alleged
many of the claims she had alleged in the foreclosure action
as counterclaims in the present action.
October 17, 2016, Smalls filed a motion to continue the
present action and a motion to stay the issuance of a
confirmation order in the foreclosure action on the basis of
the pending petition for a writ of certiorari regarding our
decision in Smalls II in the foreclosure action. On
October 25, 2016, Smalls filed a motion to dismiss Lloyd
Harper and Jaylan Gopher as parties, asserting that they
lacked an interest in the property. On November 8, 2016,
Smalls filed a motion to compel discovery. On November 30,
2016, Smalls filed a "Motion to Dismiss with Prejudice,
" arguing that Wells Fargo had failed to state a claim
upon which relief can be granted, that Wells Fargo was not a
real party in interest that has standing to enforce the
promissory note or to foreclose on the property, and that the
pending petition for a writ of certiorari precludes the
present action from being heard on its merits. In support of
the motion, Smalls submitted exhibits, including affidavits
and copies of the mortgage, the promissory note, and an
assignment of the mortgage and promissory note to Wells
December 13, 2016, the trial court entered an order
transferring the present case from Judge Chris Comer, who was
originally assigned the case, to Judge Dennis O'Dell, who
presided over the foreclosure action. On December 19, 2016,
Smalls filed an objection to the transfer order reassigning
the case. In the objection, Smalls argued, in part, that the
trial court lacked jurisdiction to enter the transfer order,
asserting that the Alabama Supreme Court had jurisdiction
over the present action because of the pending petition for a
writ of certiorari in the foreclosure action. The record does
not contain any orders from the trial court ruling on
Smalls's motions and objection that were filed in the
January 10, 2017, Smalls filed a notice of appeal to this
court. We transferred the appeal to the supreme court for
lack of jurisdiction. The supreme court then transferred the
appeal to this court pursuant to § 12-2-7(6), Ala. Code
1975. This court asked the parties to brief whether the
appeal was taken from a final judgment. After determining
that the appeal was from a nonfinal order, this court entered
an order notifying the parties that the notice of appeal
would be treated as a petition for a writ of mandamus. See
Ex parte K.S., 71 So.3d 712, 715 (Ala. Civ.
App. 2011) ("Although we have concluded that the
[party's] appeal was from a nonfinal judgment, this court
has the discretion to treat an appeal from an interlocutory
order as a petition for a writ of mandamus.").
"'"[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
Ex parte Glassmeyer, 204 So.3d 906, 908 (Ala. Civ.
App. 2016) (quoting Ex parte Massengill, 175 So.3d
175, 178 (Ala. Civ. App. 2015), quoting in turn Ex parte
Horton, 711 So.2d 979, 983 (Ala. 1998)).
writ of mandamus will not issue to compel the respondent to
act when the respondent has not refused to do so."
Ex parte CUNA Mut. Ins. Soc'y, 822 So.2d 379,
384 (Ala. 2001).
"Moreover, this court will not issue a writ of mandamus
to compel a trial court to perform an act that the trial
court was never requested to perform. See Wood v. City of
Birmingham, 247 Ala. 15, 19, 22 So.2d 331, 334 (1945)
(holding that, when there was no attempt in a motion to set
aside that part of a decree that was final, mandamus would
not issue to review the action of the lower court in
rendering its final decree, since mandamus will not issue to
compel the court to do anything that it has not been asked to
do). Finally, '[t]his Court cannot put a trial court in
error for failing to consider evidence or accept arguments
that, according to the record, were not presented to it.'
Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.
Ex parte City of Prattville, 56 So.3d 684, 689-90
(Ala. Civ. App. 2010).
petition, Smalls contends that this case should be dismissed
with prejudice and that the trial court lacked jurisdiction
to enter a transfer order. She argues that Wells Fargo has
failed to state a claim, that Wells Fargo was not the real
party in interest with standing to conduct a foreclosure of
the property, and that the trial court lacks subject-matter
jurisdiction in the present action because of the pending
petition for a writ of certiorari in the foreclosure action.
She also attacks the evidentiary basis of Wells Fargo's
ejectment claim, reiterating many of her arguments against
Wells Fargo's right to foreclose on the property that she
made in Smalls I and Smalls II. Before this
court, Wells Fargo agrees that the present action should be
dismissed, not based on those arguments advanced by Smalls in
the trial court and before this court but, instead, because
Wells Fargo asserts it is prosecuting two actions with the
same claims and parties in contravention of § 6-5-540,
Ala. Code 1975. Neither party has presented that argument
to the trial court. Moreover, the trial court has not ruled
on Smalls's motion to dismiss or her objection to the
transfer order, and there is no indication in the materials
before us that the trial court has refused to do so. We
therefore deny Smalls's petition seeking an order
directing the trial court to grant her motion to dismiss and
to set aside the transfer order. See Ex parte City of
Prattville, supra; Ex parte Green, 108 So.3d
1010, 1013 (Ala. 2012) (holding that an argument regarding
the propriety of transferring a case could not be presented
for the first time in a petition for ...