EX PARTE CITYR EAGLE LANDING, LLC, and Foresite Realty Management, LLC. (In re: Tiffany Adams et al.
CityR Eagle Landing, LLC et al.)
Circuit Court, CV-16-202
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.
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.
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
and Procedural History
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,
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
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.
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. 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. The parties in both the first lawsuit
and the second lawsuit filed a joint motion to consolidate
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.
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
being able to act in their best interest when it comes to
"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
"[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
"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 COURT: You want a guardian ad litem for the
"MR. ALLRED: I — I think it would be a good
"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
"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 —
"THE COURT: Now, it's not incumbent you know,
you can get sued, too.
"MR. ALLRED: Yes, sir, absolutely. We're going to
"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."
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. 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,