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Ex parte Murray

Alabama Court of Civil Appeals

July 13, 2018

Ex parte Cameron Murray
v.
Cameron Murray In re: Trukessa Scott

          Madison Circuit Court, DR-17-3415

          PETITION FOR WRIT OF MANDAMUS

          PER CURIAM

         On December 21, 2017, Trukessa Scott ("the wife") filed an action in the Madison Circuit Court seeking a protection-from-abuse order pursuant to § 30-5-1 et seq., Ala. Code 1975. That action was assigned case no. DR-17-3415 and is hereinafter referred to as "the protection-from-abuse action." It appears from the materials submitted to this court that the wife alleged that Cameron Murray ("the husband") had committed an act or acts of domestic violence against her. A pendente lite protection-from-abuse order was entered on December 21, 2017, but that order is not included in the materials before this court.

         On February 12, 2018, the circuit court entered an order scheduling a final hearing on the protection-from-abuse petition. However, before that hearing could take place, the circuit court, on February 15, 2018, entered an order that consolidated the protection-from-abuse action with a divorce action pending between the parties and transferred the protection-from-abuse action to the docket of the judge in whose court the divorce action was pending; the divorce action was assigned the case no. DR-18-900019. Among other things, the circuit court ordered that the protection-from-abuse action would be set for a final hearing by the trial judge before whom the divorce action was pending and who would now consider the protection-from-abuse action. For the remainder of this opinion, we refer to as the court in which the consolidated actions were pending as "the trial court," and we refer to the court in which the protection-from-abuse petition was originally filed as "the first trial court."

         On February 28, 2018, the trial court scheduled the protection-from-abuse action for a hearing on March 15, 2018. After the hearing, the trial court entered an order on March 15, 2018, in the protection-from-abuse action in which it made final the December 21, 2017, pendente lite order. In its March 15, 2018, order, the trial court noted that the husband had not appeared at the final hearing, and it made a finding, based on the evidence presented at the hearing, that the husband had committed an act of domestic violence against the wife.

         We note that, because the protection-from-abuse action and the divorce action were consolidated in the trial court, the March 15, 2018, order entered in the protection-from-abuse action was not a final judgment. Hanner v. Metro Bank & Prot. Life Ins. Co., 952 So.2d 1056, 1060 (Ala. 2006). See also Austin v. Austin, 102 So.3d 403, 406 (Ala. Civ. App. 2012). The husband filed a purported postjudgment motion on April 3, 2018, in which he argued that he had received no notice of the final hearing. However, a valid postjudgment motion may be taken only in reference to a final judgment, Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala. Civ. App. 1999), and, as previously noted, the March 15, 2018, order was not a final judgment. On April 4, 2018, the trial court entered an order denying the husband's purported postjudgment motion. The husband filed a petition for a writ of mandamus to this court on April 30, 2018.

         The husband has briefly asserted in his brief filed in support of his petition for a writ of mandamus that the petition was timely filed. The issue of timeliness is jurisdictional, and this court may take notice of the issue ex mero motu. Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987); C.T. v. Mobile Cty. Dep't of Human Res., 142 So.3d 705, 707 (Ala. Civ. App. 2013).

         A petition for a writ of mandamus must be filed within a reasonable time, which has been held to be the same time for taking a timely appeal. Meadwestvaco Corp. v. Mitchell, 195 So.3d 290, 294 (Ala. Civ. App. 2015); Ex parte C&D Logging, 3 So.3d 930, 933 (Ala. Civ. App. 2008). The husband's purported postjudgment motion did not operate to extend the time for timely filing the petition for a writ of mandamus. Meadwestvaco Corp. v. Mitchell, supra; Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003) (a motion to reconsider an interlocutory order does not toll the time for filing a petition for a writ of mandamus). The presumptively reasonable time for filing a petition for a writ of mandamus from the March 15, 2018, order in the protection-from-abuse action was 42 days, or until April 26, 2018. Ex parte Hoyt, 984 So.2d 424, 425 (Ala. Civ. App. 2007) ("'The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken.' Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007)."); see also Placey v. Placey, 51 So.3d 374, 376 n. 3 (Ala. Civ. App. 2010) (because the protection-from-abuse action was filed in the circuit court, the 42-day period for taking a timely appeal applied). The husband filed his petition for a writ of mandamus in this court on April 30, 2018, and, therefore, the petition for a writ of mandamus was not timely filed.

          A petitioner may obtain review by way of an untimely petition for a writ of mandamus if the petition includes a statement of good cause explaining the reason for the untimely filing. Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 100 (Ala. Civ. App. 2004). This court has explained:

"When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition 'shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.' Rule 21(a)(3), Ala. R. App. P. 'The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory.' Ex parte Fiber Transp. L.L.C., 902 So.2d 98, 100 (Ala. Civ. App. 2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala. 2004), and Ex parte Troutman Sanders, [LLP, ] 866 So.2d [547] at 550 [(Ala. 2003)])."

Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 835 (Ala. Civ. App. 2007).

         The husband did not include in his petition for a writ of mandamus a statement of good cause for this court to consider the untimely petition. However, our supreme court has held that when an untimely petition for a writ of mandamus raises an issue pertaining to the jurisdiction of the lower court, it may consider the jurisdictional argument. Ex parte K.R., 210 So.3d 1106 (Ala. 2016). That case involved, among other things, a challenge to a probate court's jurisdiction in an action involving an adoption contest; our supreme court explained:

"Regardless, we may consider K.R.'s argument because it concerns the probate court's jurisdiction. See Bush v. State, 171 So.3d 679 (Ala.Crim.App.2014) (holding that the improper appointment of a judge to a case deprived the court of jurisdiction to rule on any motions pending before that judge; the orders entered by that judge were entered without jurisdiction of the court and were, thus, void). The timeliness of K.R.'s challenge to Druhan's appointment to serve as a temporary judge of probate is insignificant because 'we take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala. Civ. App. 2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing to several cases noting that rule).' Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala. Civ. App. 2004). Therefore, even though K.R.'s petition is untimely filed, we will consider her argument concerning this issue because it concerns the jurisdiction of the probate court, of which we may take notice ex mero motu."

Ex parte K.R., 210 So.3d at 1112. See also Ex parte J.B., 223 So.3d 251, 254 (Ala. Civ. App. 2016) ("[O]ur supreme court recently determined that, in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of ...


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