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Ex parte T.M.F.

Supreme Court of Alabama

May 3, 2019

Ex parte T.M.F.
v.
T.F. In re: Ex parte T.M.F. In re: Ex parte I.W.

          (Jefferson District Court, DR-18-500939; Court of Civil Appeals, 2180428)

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          SELLERS, Justice.

         T.M.F. petitions this Court for a writ of certiorari to review the March 5, 2019, order of the Court of Civil Appeals denying his petition for a writ of mandamus, Ex parte T.M.F. (No. 2180428, March 5, 2019), ___ So.3d ___ (Ala. Civ. App. 2019) (table); T.M.F. sought a writ of mandamus directing the Jefferson District Court to vacate its order denying his motion for a change of venue in an underlying case involving a petition for protection from abuse from Jefferson County to Mobile County and to enter an order transferring the case to Mobile County. We dismiss the petition for a writ of certiorari.

         Rule 21(e), Ala. R. App. P., sets forth the procedures for seeking review of decisions of the Courts of Appeals granting or, as in this case, denying a petition for a writ of mandamus. Rule 21(e) states, in relevant part:

"(1) A decision of a court of appeals on an original petition for writ of mandamus or prohibition or other extraordinary writ (i.e., a decision on a petition filed in the court of appeals) may be reviewed de novo in the supreme court, and an application for rehearing in the court of appeals is not a prerequisite for such review. If an original petition for extraordinary relief has been denied by the court of appeals, review may be had by filing a similar petition in the supreme court (and, in such a case, in the supreme court the petition shall seek a writ directed to the trial judge). ...
"....
"(3) Without regard to whether the court of appeals has issued an opinion, rehearing may be sought in the court of appeals, but if a rehearing is sought, then review in the supreme court shall be by petition for writ of certiorari pursuant to Rule 39[, Ala. R. App. P.]."

(Emphasis added.)

         Rather than filing a petition for a writ of mandamus in this Court seeking de novo review of the issue before the Court of Civil Appeals in denying his petition for a writ of mandamus, T.M.F. filed a petition for a writ of certiorari pursuant to Rule 39, Ala. R. App. P. However, under Rule 21(e), Rule 39 comes into play only if T.M.F. had first sought a rehearing in the Court of Civil Appeals. Because T.M.F. did not file an application for rehearing in the Court of Civil Appeals, his only avenue for seeking review in this Court would be filing a petition for a writ of mandamus. Rule 21(e); see also generally State v. Lewis, 907 So.2d 1020 (Ala. 2005). Accordingly, the petition for a writ of certiorari is dismissed.

         PETITION DISMISSED.

          Bolin, Shaw, Mendheim, and Stewart, JJ., concur.

          Parker, C.J., and Wise, Bryan, and Mitchell, JJ., concur in the result.

          PARKER, Chief Justice (concurring in the result).

         I agree that T.M.F.'s petition should be dismissed. However, I disagree with the conclusion of the main opinion that mandamus is the exclusive avenue for seeking review of the Court of Civil Appeals' decision on a mandamus petition where the losing party has not filed an application for rehearing. This exclusive view lacks a clear basis ...


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