Madison Circuit Court, DR-17-3415
PETITION FOR WRIT OF MANDAMUS
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
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."
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
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.
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).
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.
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  at 550 [(Ala. 2003)])."
Ex parte Onyx Waste Servs. of Florida, 979 So.2d
833, 835 (Ala. Civ. App. 2007).
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 ...