Ex parte Cityr Eagle Landing, LLC

         Montgomery Circuit Court, CV-16-202

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          Christopher J. Zulanas and Gwendolyn A. Gordon of Friedman, Dazzio, Zulanas & Bowling, PC, Birmingham; and George R. Parker and Jonathan C. "Rudy" Hill of Bradley Arant Boult Cummings LLP, Montgomery, for petitioners.

          David E. Allred and D. Craig Allred of Allred & Allred, P.C., Montgomery; and R. Lewis Gillis and Kristen J. Gillis of Means Gillis Law, LLC, Montgomery, for respondents.

         BOLIN, Justice.

         CityR Eagle Landing, LLC ("CityR"), and Foresite Realty Management, LLC ("Foresite"), have petitioned this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order appointing Kia Scott as guardian ad litem for certain minor parties to the underlying action against CityR and Foresite. We grant the petition and issue the writ.

         Facts and Procedural History

         On April 4, 2016, residents of Eagle Landing Apartments, an apartment complex owned by CityR and managed by Foresite, sued CityR and Foresite, among others. They asserted claims of breach of contract, breach of implied warranty, negligence,

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wantonness, premises liability, negligent hiring, trespass, and nuisance, all arising out of conditions at the apartment complex. The residents were adults living in the apartments with their minor children, who were represented in the action by their parents. All the residents were represented by legal counsel.

         On August 10, 2017, additional residents of the apartment complex owned by CityR and managed by Foresite sued CityR and Foresite along with additional defendants. Those residents' claims also arose out of conditions at the apartment complex. Those residents were adults, and the minor resident children were represented by their parents. All of those residents were represented by legal counsel.

         On October 14, 2017, 14 minor residents, represented by their parents and by counsel, along with CityR and Foresite, filed a joint motion seeking a dismissal based on a pro ami settlement in the first lawsuit.^[1] On December 6, 2017, the trial court appointed a guardian ad litem to aid the court in determining if the settlement was fair to the 14 minor residents.^[2] The parties in both the first lawsuit and the second lawsuit filed a joint motion to consolidate the cases.

         On January 11, 2018, the guardian ad litem filed a report indicating that she did not have enough information to determine whether the settlement was fair to the 14 minor residents. On February 21, 2018, the guardian ad litem filed a motion in both lawsuits seeking to be appointed as guardian ad litem for all the minor residents in both lawsuits, not just the 14 minor residents who had entered into the pro ami settlement with the defendants. In support of her motions, the guardian ad litem cited § 26-2A-52, Ala. Code 1975. The guardian ad litem also asked the court to consolidate the two lawsuits. On March 7, 2018, CityR and Foresite filed a motion in both lawsuits opposing the appointment of the guardian ad litem for all the minor residents, arguing that there was nothing to indicate that the parents and their legal counsel's representation of the minor residents was somehow inadequate.

         On March 26, 2018, the trial court held a hearing on pending motions. At the hearing, the trial court denied the joint motion, filed by CityR and Foresite and the 14 minor plaintiffs, for a stipulation of dismissal as a result of the settlement, on the basis of "the guardian ad litem's recommendation to the court." After a discussion of other matters, the following exchange occurred among the guardian ad litem, plaintiffs' counsel, CityR and Foresite's counsel, and Judge Hardwick:

"[GUARDIAN A.D. LITEM]: Your Honor, if I may. There is actually a motion before the Court to extend the GAL [guardian ad litem] representation. Currently, Your Honor has — or the Court has ordered representation for about 11 of the children that are attached to the case based on the plaintiffs' joint motion that was previously before the Court and denied. But there are some additional 40 plus children that are a part of this matter. And my concern would be that if their parents are not questioned on the record about any medical issues that developed that these children — at the time that they lived in the apartment during the condition, that it would hurt or preclude the GAL from

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being able to act in their best interest when it comes to settlement.

"THE COURT: Well, nobody's filed a motion for appointment of guardian ad litem in those matters.

"[GUARDIAN A.D. LITEM]: I filed a motion.

"THE COURT: You can't — you can't file a motion. You can't invite yourself to the party as I understand the law, now.

"[GUARDIAN A.D. LITEM]: Yes, Your Honor.

"THE COURT: So it perhaps would be incumbent upon the plaintiffs or the defendants for just adjudication, we need a guardian ad litem on these matters. That's the way it normally goes. So, really, in essence, if they don't want to be sued twice, if they don't want to be sued when these children reach the age of majority, who said — Craig Allred [plaintiffs' counsel] just — just blew the case. And they come back and they sue y'all again. That's what could happen. So I — not my concern; not my concern. Hint, hint. So, all right. Anything else? So those ones you don't represent, okay, when they reach the age of majority, they can go out and hire themselves a lawyer and sue on their own behalf.

"[GUARDIAN A.D. LITEM]: Yes, Your Honor.

"THE COURT: Isn't that right?

"[COUNSEL FOR CITYR AND FORESITE]: Well, we suggested that in the event a guardian is needed, when they continue, then the case is settled, that's the time to put the guardian in place.

"THE COURT: Well, you can, but what if it's not settled? And what if it goes to trial and as minors, you know, the parents, they're going to come back and argue, you know, my momma and daddy didn't have good sense hiring Mr. Allred to sue in this case. What do you say?

"MR. ALLRED: Well, Your Honor, I believe there's also some caselaw out there in famous words, but I believe there's some caselaw that says that the guardian ad litem is supposed to be appointed for all major stages of the litigation if there's a minor involved, so that would be our concern with not having a guardian ad litem in the case.

"THE COURT: You want a guardian ad litem for the minors?

"MR. ALLRED: I — I think it would be a good idea.

"THE COURT: Let's not make it an idea, now. I don't deal with ideas, now.

"MR. ALLRED: I think it would be the safe thing to do.

"THE COURT: I understand, but I need to hear the magic word.

"MR. ALLRED: A yes?

"THE COURT: No. As plaintiffs' counsel —

"MR. ALLRED: That would be our preference, yes, sir.

"THE COURT: No. I need to hear the magic words. We move the Court —

"MR. ALLRED: Well, if we could all agree on it —

"THE COURT: You don't have to agree. You don't have to agree.

"MR. ALLRED: Well, if we could talk about it and get some sort of agreement —

"THE COURT: No. We're not going to talk about it. It's time — not time to talk about it, now.

"MR. ALLRED: Okay.

"THE COURT: Now, listen. I've invited them, and not only did they say no, but they said hell no. All right.

"MR. ALLRED: Well, let —

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"THE COURT: Now, it's not incumbent — you know, you can get sued, too.

"MR. ALLRED: Yes, sir, absolutely. We're going to avoid that.

"THE COURT: Well, say the magic word.

"MR. ALLRED: May we consider that and file something with the Court?

"THE COURT: Say the magic words.

"MR. ALLRED: Well, we would move the Court to appoint a guardian ad litem.

"THE COURT: Granted. Ms. Scott, you're appointed.

"[GUARDIAN A.D. LITEM]: Thank you."

         The trial court did not enter a written order denying the joint motion for a stipulation of dismissal of the 14 minor residents who had entered into the pro ami settlement with the defendants.^[3] Also, the trial court did not enter a written order appointing the guardian ad litem to represent the minor residents in the ongoing litigation. On April 11, 2018, ...