Ex parte Dean Kenneth Hicks. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:Virginia Gayle Marshall v. Dean Kenneth Hicks)

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REL: 01/14/11 N o t i c e : This o p i n i o n i s s u b j e c t t o formal r e v i s i o n before p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e Courts, 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2010-2011 1100136 Ex p a r t e Dean K e n n e t h Hicks PETITION FOR WRIT OF MANDAMUS (In re: Virginia Gayle M a r s h a l l v. Dean K e n n e t h (Houston C i r c u i t LYONS, Court, CV-04-364) Justice. Dean out Hicks) Kenneth Hicks, the defendant of a vehicular accident, has f i l e d i n an a c t i o n a petition arising f o ra writ 1100136 o f mandamus r e q u e s t i n g to vacate i t s order Gayle Civ. for relief and Marshall, reinstating docket. We I. The May a Background 18, 2002. filed before an the commenced, requests. 2005, with and and issue the plaintiff, Ala. i n favor the of court's the Shortly after Procedural action Hicks active History but On Hicks's dismissed discovery the did not motion, case as requests. on May 2004, trial on January for failing Ala. to R. deadline for completing r e i n s t a t e d the Decker t h a t the the court's discovery. case to On notices F e b r u a r y 25, i t s a c t i v e docket case would again 2 be dismissed and 20, comply P. that he setting a of copies day Civ. had received the discovery case r e i n s t a t e d , contending not case the court 37(d), was Discovery with Rule the on run. comply a sanction See 18, would have the Marshall Decker accepted Hicks limitations Decker accident, Decker. against s t a t u t e of the R. writ. Decker sought to have the court court vehicular accident underlying this action occurred r e f e r r e d to attorney Charles and judgment to trial 60(b)(6), Rule action petition the f i l e d by to final underlying the Factual pursuant from the grant Court d i r e c t granting a motion Virginia P., that this 2005, the cautioned i f a l l discovery 1100136 requests were not did provide not trial court proceeding answered fully discovery then entered with and complied her t a x i n g her i n c u r r e d by by the January 10, 2006, to comply w i t h from this In had with the final June case three the docket, which At aware the of properly to his order On were in attorney fees and $418 court to pay entered an case " f o r repeated Marshall the fees order on refusals d i d not 60(b), June Ala. 21, new R. 2010, reinstating the Civ. case now seeks Marshall failure to claims. several to appeal have the 3 have a her held 2010, court's she court stated that but filed court 21, case a i t active vacated. comply w i t h occasions to September to her and P., trial contended that She after counsel the on her on obtained years and Hicks Decker's one-half motion, hearing, office requests the and Rule Marshall's pursue a l l discovery orders." Marshall reinstated. entered The order. pursuant on time. from When M a r s h a l l f a i l e d Court's 2009, hearing specified Decker Marshall costs court, days. prohibiting d i s m i s s i n g her been d i s m i s s e d , motion by trial the order until the defense. ordered within an case w i t h w i t h i n 21 that had not orders she she had had been and to stopped seldom 1100136 been able She t o speak w i t h him s a i d t h a t she 2004. had not and he In 2007, M a r s h a l l s a i d , had that been Decker, who suspended from she 26, suspension i n the late a copy of the Bar in a local Marshall September clerk 2008, learned In December and said 2008, obtained that Marshall s a i d she office to "motion" seeking the file her case. The is disabled, by the Alabama her sent i t to took no action she went to to ask case had a learned n o t i c e p u b l i s h e d by and the about until she file the went of status to from h i s w i f e . r e i n s t a t e d and c l e r k again the advised 4 the circuit the by of trial Marshall circuit her Decker's in entered the i n January back to the case State approximately office been d i s m i s s e d said, the her. document to have purportedly that s p r i n g o r e a r l y summer o f 2 0 0 7 when Marshall about law know a t and his then took that ask since of a copy of h i s case f i l e she and of she t h a t her d i d not practice f o r Houston County and Marshall suspension when calls. went t o D e c k e r ' s o f f i c e the newspaper said her w i t h Decker 2007. on A p r i l saw returned s u f f e r s from dementia S t a t e Bar son not s p o k e n w i t h o r met found i t "permanently c l o s e d . " time had file court case 2006. house Marshall clerk's styled as a "orders" in reinstating t h a t her case had 1100136 been d i s m i s s e d i n 2006 Marshall said fabricated also the motion, fabricated signature that and t h a t she later which the orders i t had n o t been learned was n e v e r new 2009. Decker had a n d t h a t he h a d and had f o r g e d t h e t r i a l court's on them. attorney filed After reinstating of that filed, M a r s h a l l d i d n o t s e e k new c o u n s e l u n t i l Her reinstated. the t r i a l the Rule II. spring motion 2009. on J u n e 1, c o u r t e n t e r e d t h e S e p t e m b e r 2010 o r d e r the case, Hicks f i l e d mandamus w i t h t h i s 60(b)(6) late a timely petition f o ra w r i t Court. Standard of Review "'Mandamus i s a d r a s t i c a n d e x t r a o r d i n a r y w r i t , t o b e i s s u e d o n l y w h e r e t h e r e i s (1) a c l e a r l e g a l r i g h t i n t h e p e t i t i o n e r t o t h e o r d e r s o u g h t ; (2) a n imperative d u t y upon t h e r e s p o n d e n t to perform, a c c o m p a n i e d b y a r e f u s a l t o do s o ; (3) t h e l a c k o f another adequate r e m e d y ; a n d (4) p r o p e r l y i n v o k e d j u r i s d i c t i o n of the c o u r t . ' " Ex p a r t e P e r f e c t i o n Siding, 2003) ( q u o t i n g Ex p a r t e (Ala. I n c . , 882 S o . 2 d 3 0 7 , 3 0 9 - 1 0 ( A l a . Integon Corp., 672 S o . 2 d 4 9 7 , 4 9 9 1995)). "'A p e t i t i o n f o r the writ o f mandamus i s a p r o p e r method f o r a t t a c k i n g t h e g r a n t o f a R u l e 60(b) m o t i o n . ' Ex p a r t e A & B T r a n s p . , I n c . , 8 So. 3d 9 2 4 , 931 ( A l a . 2 0 0 7 ) . 'In general, the d e c i s i o n whether t o g r a n t o r t o deny a postjudgment motion f i l e d p u r s u a n t t o ... R u l e 60 i s w i t h i n t h e s o u n d 5 1100136 d i s c r e t i o n o f t h e t r i a l c o u r t , and t h e e x e r c i s e o f t h a t d i s c r e t i o n w i l l n o t b e d i s t u r b e d ... u n l e s s t h e t r i a l c o u r t [exceeded] i t s d i s c r e t i o n . ' Comalander v . S p o t t s w o o d , 846 S o . 2 d 1 0 8 6 , 1 0 9 0 ( A l a . 2 0 0 2 ) . However, ' [ a ] p a r t y s e e k i n g r e l i e f must b o t h a l l e g e a n d p r o v e o n e o f t h e g r o u n d s s e t f o r t h i n R u l e 60 i n o r d e r t o be g r a n t e d r e l i e f under that r u l e . ' Ex p a r t e A m e r i c a n R e s . I n s . C o . , 663 S o . 2 d 9 3 2 , 936 (Ala. 1995). Thus, where a 'Rule 60(b) motion o f f e r [ s ] no p r o p e r b a s i s f o r g r a n t i n g r e l i e f from t h e j u d g m e n t , ... t h e t r i a l c o u r t ' s g r a n t i n g o f t h a t motion [exceeds i t s ] d i s c r e t i o n . ' Ex p a r t e Alfa Mut. G e n . I n s . C o . , 681 S o . 2 d 1 0 4 7 , 1 0 5 0 (Ala. 19 9 6 ) . " Ex parte 175, Wallace, 177-78 Jordan, (Ala. Ratliff 60(b), L . L . C . , 29 S o . 3 d 2009). III. Rule & Brandt, Analysis A l a . R. C i v . P., s t a t e s , i n p e r t i n e n t part: "On m o t i o n a n d u p o n s u c h t e r m s a s a r e j u s t , t h e court may relieve a party or a party's legal representative from a f i n a l judgment, order, or proceeding f o r the f o l l o w i n g reasons: (1) m i s t a k e , inadvertence, s u r p r i s e , or excusable n e g l e c t ; (2) newly d i s c o v e r e d e v i d e n c e w h i c h b y due d i l i g e n c e c o u l d n o t h a v e b e e n d i s c o v e r e d i n t i m e t o move f o r a new t r i a l u n d e r R u l e 5 9 ( b ) ; (3) f r a u d (whether heretofore denominated intrinsic or extrinsic), m i s r e p r e s e n t a t i o n , o r o t h e r m i s c o n d u c t o f an a d v e r s e p a r t y ; (4) t h e j u d g m e n t i s v o i d ; (5) t h e j u d g m e n t has been s a t i s f i e d , r e l e a s e d , o r d i s c h a r g e d , or a p r i o r j u d g m e n t upon w h i c h i t i s based has been reversed or otherwise vacated, o r i t i s no l o n g e r e q u i t a b l e t h a t t h e judgment s h o u l d have p r o s p e c t i v e a p p l i c a t i o n ; o r (6) a n y o t h e r reason justifying relief from the o p e r a t i o n o f t h e j u d g m e n t . The m o t i o n s h a l l b e made w i t h i n a r e a s o n a b l e time, and f o r r e a s o n s ( 1 ) , ( 2 ) , a n d (3) n o t m o r e t h a n f o u r (4) 6 1100136 months a f t e r the judgment, o r d e r , or p r o c e e d i n g was e n t e r e d or taken. ... T h i s r u l e does not l i m i t the p o w e r o f a c o u r t t o e n t e r t a i n an i n d e p e n d e n t a c t i o n w i t h i n a r e a s o n a b l e t i m e a n d n o t t o e x c e e d t h r e e (3) years after the e n t r y of the judgment (or such a d d i t i o n a l t i m e a s i s g i v e n b y § 6-2-3 and 6-2-8, C o d e o f A l a b a m a 1975) to r e l i e v e a p a r t y from a judgment, order, or p r o c e e d i n g , or to s e t a s i d e a judgment f o r f r a u d upon the c o u r t . ..." 1 (Emphasis added.) Rule the portion of only Subsection judgment (5)] So. (6) 225, reserved only R.E. ( A l a . 1994). Comm'rs of extreme v. ( q u o t i n g D o u g l a s s v. So. 2d 917, 920 Capital (Ala. applicable to than the Grills, "'Relief 459 or So. City 2d provision, is in grant this relief reasons Inc. v. and 866 a through Davison, 641 60(b)(6) is is available injustice.'" 861, case. from (1) under Rule circumstances, hardship Walker, "catchall" court [other extraordinary i n cases County trial relief." 229 for a a 60(b) "reason justifying 2d Rule allows f o r any 60(b)(6), Chambers (Ala. 1984 ) Church of the Nazarene, 443 1983)). S e c t i o n 6-2-3, A l a . C o d e 1 9 7 5 , t o l l s t h e r u n n i n g o f t h e s t a t u t e o f l i m i t a t i o n s f o r an a c t i o n b a s e d u p o n f r a u d i f t h e p a r t y a g a i n s t whom t h e f r a u d c l a i m e x i s t s h a s f r a u d u l e n t l y concealed h i s or her a c t s . S e c t i o n 6-2-8, A l a . C o d e 1975, t o l l s t h e r u n n i n g o f t h e s t a t u t e o f l i m i t a t i o n s f o r an a c t i o n b a s e d u p o n f r a u d i f t h e p a r t y who h a s b e e n d e f r a u d e d i s l e s s t h a n 19 y e a r s o l d o r i s c o n s i d e r e d "insane." 1 7 1100136 The filed dispositive question i n this her Rule required by Rule the elements a Rule 60(b)(6) motion 60(b). within This Court that determine case i s whether M a r s h a l l a "reasonable has p r e v i o u s l y a reasonable time time" as discussed f o rpurposes of 60(b) motion: "What c o n s t i t u t e s a ' r e a s o n a b l e t i m e ' d e p e n d s on t h e f a c t s o f each case, t a k i n g i n t o c o n s i d e r a t i o n t h e i n t e r e s t of f i n a l i t y , the reason f o r the delay, the p r a c t i c a l a b i l i t y t o l e a r n e a r l i e r of the grounds r e l i e d upon, and t h e p r e j u d i c e t o o t h e r p a r t i e s . Adams v . F a r l o w , 516 S o . 2 d 528 ( A l a . 1 9 8 7 ) , cert. d e n i e d , 485 U.S. 1 0 1 0 , 108 S. C t . 1 4 7 7 , 99 L. E d . 2 d 705 (1988). In addition, the doctrine of laches, which denies equitable relief t o one g u i l t y of unconscionable delay i n asserting a claim, applies to Rule 60(b) motions. W a l d r o p v . W a l d r o p , 395 S o . 2 d 62 ( A l a . 1 9 8 1 ) . " Ex p a r t e W.J., The facts 622 S o . 2 d 3 5 8 , 361 of this case t h a t M a r s h a l l was a v i c t i m Decker acted intentionally Nevertheless, 2004 t o 2007, (Ala. 1992). are extraordinary. I t i s clear of her attorney's conduct, o r as a r e s u l t whether of h i s d i s a b i l i t y . M a r s h a l l h a d no c o n t a c t w i t h h e r a t t o r n e y approximately three years. By spring from 2007, d e s p i t e t h e f a c t t h a t M a r s h a l l knew t h a t D e c k e r h a d c l o s e d h i s office took and had been no a c t i o n inquired suspended from f o r approximately at the c i r c u i t clerk's 8 the practice a year office o f l a w , she and a h a l f , when s h e i n September 2008 a n d 1100136 was told that She waited Decker's in her another file December on learned clerk again were obtaining dismissal of when she contact his office had returned file six and before to the containing with that her case she office i n the had of Decker's December reason spring for three been of had been before to years, r e t a i n e d new the dismissal reasons for dismissed. taking action-¬ to Set A s i d e " after that from having Decker the the returned she waited counsel and set aside. her delay to the almost filed does obtaining 9 the case a more had copy office seeking not law. circuit obtained s i x months no closed p r a c t i c e of clerk's a motion Marshall in she case had had l e a r n e d t h a t her passed before and and she The i n q u i r e about her 2007, suspended More t i m e file 2008, she signatures. a "Motion i n S e p t e m b e r 2008 and been d i s m i s s e d . office documents N e a r l y 18 m o n t h s e l a p s e d b e f o r e M a r s h a l l c o n t a c t e d clerk's 2006. obtained clerk's the forged months filing sufficient Decker and months i n January case. learned with four fabrications lawyer her Marshall the another a new dismissed and Marshall waited been to case with told had three her 2008 later Marshall case in before to have provide any different legal 1100136 representation, and she circuit clerk's office case. Hicks argues reinstatement of this could at easily any time that he has case over have about been four inquired the the of her by the status prejudiced years at after i t had been Marshall argues that dismissed. Despite she filed after her she some o f the above-described motion obtained the a documents to delays, reinstate within copy of Decker's i n i t had been file set aside a j u d g m e n t and her conversation the filing of unreasonable relies which her Ex approximately four that had from his case this to In parte plaintiff circuit Oden, months been 617 a the time f o r seeking between c l e r k i n December 2008 of her argument, 2d 1020 motion to receiving dismissed. because Oden plaintiff's lawyer d e l i b e r a t e l y m i s l e d him his this found 10 that in the (Ala. actual and an Marshall reinstate a however, Court 2009 i s not So. after that argues case, case, learned She r e i n s t a t e i n June support filed and time case the d e l a y t h a t i n her the motion delay. upon the with reasonable fabricated. t h a t f r a u d upon the c o u r t e q u i t a b l y t o l l s to a 1992 ) , in judgment knowledge is distinguishable Oden, although about the s t a t u s plaintiff the of showed 1100136 "extraordinary weekly about diligence" his case i n checking with h i s lawyer and in obtaining a different w i t h i n a month of s e v e r a l u n s u c c e s s f u l a t t e m p t s lawyer that for who her had m i s l e d him. delay i n making approximately she confirmed We and had t o g e t h e r w i t h the before obtained t h a t her t h e r e f o r e need filing a fabricated any type case copy had of to reinstate documents situation regrettable, motion allow we within a his on file her file her another a reasonable about year case, to time. s i t idly the s t a t u s of before pursuing even though by It for a case delay about a 11 was in the not then for not although certainly her Rule 60(b) reasonable several remedy the p l a i n t i f f is file is and and reasonable. herself d i d not of delay case six-month was had unreasonable. learning found t h a t she case four-month after Marshall conclude plaintiff inquiring that i n which her the p r a c t i c e Under the p a r t i c u l a r c i r c u m s t a n c e s of t h i s case, the conclude t h r e e - to whether i n Decker's the learned that Decker b e e n d i s m i s s e d , was decide we about been suspended from not motion inquiry she additional the of lawyer to contact M a r s h a l l ' s case, 18 m o n t h s a f t e r closed his office law, In almost years to wait the without almost dismissal informed to of of the 1100136 dismissal. and The l e g a l system i t i s unreasonable reinstate a case that must have under a degree the facts h a s now b e e n of here finality, presented to d i s m i s s e d f o r over four years. IV. Because within a discretion Therefore, and that Marshall reasonable d i d not f i l e time, i n granting we grant order the t r i a l granted Conclusion the her Rule trial her motion to Hicks's petition court Marshall's court f o r a writ t o v a c a t e t h e September motion for relief the of the case other issues argued on t h i s ground, we motion exceeded i t s reinstate judgment and r e i n s t a t e d t h e u n d e r l y i n g a c t i o n . disposition 60(b) the case. o f mandamus 2010 o r d e r from a final Because of our need not address by t h e p a r t i e s . P E T I T I O N GRANTED; WRIT ISSUED. Cobb, C . J . , and S t u a r t , Bolin, 12 and Murdock, J J . , concur.

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