MERITS DISCOVERY WHILE MOTION TO COMPEL ARBITRATION PENDING - MANDAMUS - DEATH OF PARTY DURING PENDENCY OF APPEAL: SLAMEN V. SLAMEN
Slamen v. Slamen, [Ms. 1160758, Dec. 22, 2017] __ So. 3d __ (Ala. 2017). This decision by Chief Justice Stuart (Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur; Murdock, J., concurs in the result) issues a writ of mandamus to the Jefferson Circuit Court vacating the court’s order requiring the defendants to respond to discovery on the merits while the defendants’ motion to compel arbitration was pending before the circuit court.
The Court first determined that because it involved management of discovery, the issue before the Court namely – “whether a trial court may order discovery not related to the issue of arbitration before ruling on a pending motion to compel arbitration” – should be reviewed as a petition for writ of mandamus rather than as an appeal. Ms. *8. Relying on its decision in Ex parte Locklear Chrysler Jeep Dodge, LLC [Ms. 1160372, Sept. 29, 2017] __ So. 3d __ (Ala. 2017), the Court reiterated “that a trial court exceeds its discretion when it orders a party to participate in merit-based discovery when that party is awaiting a ruling on its motion to compel arbitration.” Ms. *12.
The plaintiff died during the pendency of the appeal and no substitution of a personal representative had been filed. However, the Court noted that pursuant to Rule 43(a), Ala. R. App. P., the Court may resolve the issues raised in the appeal. The Court reiterated settled law that “‘[i]n such case[s], it is a common practice for the appellate court to affirm or reverse the judgment nunc pro tunc.” Ms. *6, n. 1, quoting Cox v. Dodd, 242 Ala. 37, 39, 4 So. 2d 736, 737 (1941).