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Ex parte Lindsey

Supreme Court of Alabama

January 10, 2020

Ex parte Lasonya Lindsey
v.
Charles H. Sims III and Doris Wallace In re: Lasonya Lindsey

          Dallas Circuit Court, CV-18-900001

          PETITION FOR WRIT OF MANDAMUS

          MITCHELL, JUSTICE.

         Lasonya 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.

         Facts and Procedural History

         On 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.

         On 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.

         On 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.

         Lindsey 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.

         Sims 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.

         On 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.

         Standard of Review

         For a 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)).

         Analysis

         It is 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 ...


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