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SUMMARY JUDGMENT / BANKRUPTCY / MANDAMUS - EX PARTE BONDS

Ex parte Bonds, [Ms. 2150845, Aug. 26, 2016] __ So.3d __ (Ala. Civ. App. 2016). In this divorce proceeding, the husband filed a petition for a writ of mandamus to seek review of an order of the St. Clair Circuit Court denying his motion for partial summary judgment in a divorce action instituted by wife. The motion for summary judgment was premised upon the wife's failure to list the couple's marital residence or claims for alimony and property division as potential assets or as pending claims in the schedule she attached to a bankruptcy petition filed under Chapter 7 of the United Stated Bankruptcy Code. After the wife's discharge in bankruptcy, the husband amended his answer in the divorce action to assert judicial estoppel and the failure to join the bankruptcy trustee as the real-party-in-interest given the non-disclosure of the assets in the bankruptcy proceeding. The St. Clair Circuit Court denied the motion for summary judgment, and the husband sought review by way of mandamus.

The Court of Civil Appeals notes that generally the denial of a motion for summary judgment is not reviewable by a petition for a writ of mandamus, Ms. *5, citing Ex parte Griffin, 4 So.3d 430, 435 (Ala. 2008), because an adequate remedy exists by way of an appeal. Id., citing Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761 (Ala. 2002), and Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000).

The court distinguished the holdings in Ex parte Jackson Hosp. & Clinic, 167 So.3d 324 (Ala. 2014), and Ex parte Tyson Foods, Inc., 146 So.3d 1041 (Ala. 2013) (both involving mandamus and real-parties-in-interest) (Ms. *6-8), because neither Jackson Hospital nor Tyson involved the review of a denial of a motion for summary judgment based upon either judicial-estoppel or real-party-in-interest grounds. Thus, husband failed to demonstrate that the denial of the motion for summary judgment in his case fell within the limited exceptions to the general rule that denial of a summary judgment motion is not reviewable by a petition for a writ of mandamus.

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