Circuit Court, CV-18-900001
PETITION FOR WRIT OF MANDAMUS
Lindsey seeks to enforce her right to a civil jury trial. She
first asks this Court to reinstate claims that were dismissed
by the trial court. But because the dismissal of those claims
is not addressable on a mandamus petition, we need not decide
whether she would be entitled to a jury trial on those
claims. She is entitled to a jury trial, however, on new
issues raised in her most recent amended complaint because
those issues are based on facts different from those that
supported her original claim -- and her demand for a jury
trial as to those new issues was timely made. We therefore
grant her petition in part, deny it in part, and issue a writ
of mandamus directing the Dallas Circuit Court to vacate its
order striking her jury demand with respect to the new issues
in her second amended complaint.
and Procedural History
April 1, 2016, Lasonya Lindsey agreed to purchase real
property located in Selma ("the property") from
Doris Wallace. Attorney Charles H. Sims III was retained by
one or both of the transacting parties in connection with the
sale. On April 26, 2016, Sims incorrectly represented to
Lindsey that the property was unencumbered by any liens. The
transaction closed two days later.
November 10, 2017, Lindsey received written notice that the
property had been sold two days earlier at a foreclosure sale
after Wallace defaulted on a mortgage on the property.
Lindsey and her family were ordered to immediately vacate the
property, which they had already spent $20, 000 improving.
January 2, 2018, Lindsey brought a single-count complaint
against Sims under the Alabama Legal Services Liability Act,
§ 6-5-570 et seq., Ala. Code 1975 ("the
ALSLA"), alleging that Sims breached his duty of care by
misrepresenting that the property was free and clear of any
encumbrances to the title. Lindsey filed a first amended
complaint on January 31 for the sole purpose of correcting
the spelling of Sims's name. Neither the original
complaint nor the first amended complaint contained a jury
demand. Sims filed an answer to the first amended complaint
on March 8, and on April 25 he submitted a response to
Lindsey's interrogatories in which he stated that he had
never represented Lindsey, that his only involvement in the
transaction had been to prepare a warranty deed at
Wallace's instruction, and that he did not perform any
title work as part of his representation of Wallace.
filed a second amended complaint on May 1, 2018. This
complaint added a new theory to count I, the original
legal-malpractice claim, by alleging that Sims represented
both Lindsey and Wallace in the transaction despite an
obvious conflict of interest. The second amended complaint
also added three new counts. Count II asserted a fraud claim
against Wallace, alleging that she falsely represented that
she would convey the property free of encumbrances. Count III
asserted a fraud claim against Sims and Wallace, alleging
that Sims falsely represented that the title was unencumbered
and that Wallace was liable under a theory of respondeat
superior. And count IV alleged that Sims and Wallace
conspired to defraud Lindsey. The second amended complaint
included, for the first time, a jury demand on all counts.
filed a motion to dismiss counts III and IV for failure to
state a claim, arguing that the alleged underlying conduct
was covered by the ALSLA and that the only viable claim that
Lindsey could maintain against him was the existing
legal-services-liability claim in count I. He also filed a
motion to strike Lindsey's jury demand as untimely under
Rule 38(b), Ala. R. Civ. P., because, he said, it was
asserted more than 30 days after service of the last pleading
on the triable issue, Sims's March 8, 2018, answer.
August 9, 2018, the trial court granted both motions and
entered orders dismissing counts III and IV of the second
amended complaint and striking the jury demand as untimely.
Lindsey petitioned this court for a writ of mandamus
directing the trial court to vacate both orders.
writ of mandamus to issue, Lindsey must show
"'"'(1) a clear legal right to the order
sought; (2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly invoked
jurisdiction of the court.'"'" Ex parte
Utilities Bd. of Foley, 265 So.3d 1273, 1279 (Ala. 2018)
(quoting other cases). Mandamus is an appropriate vehicle by
which to review the availability of a jury trial. Ex
parte U.S. Bank Nat'l Ass'n, 148 So.3d 1060,
1064 (2014) (citing Ex parte BancorpSouth Bank, 109
So.3d 163 (Ala. 2012)).
necessary to discuss Lindsey's jury demand with respect
to counts III and IV of her second amended complaint only if
we issue the writ of mandamus directing the trial court to
reinstate those claims. Thus, we begin our analysis by
discussing the dismissal of ...