Ex parte Jon S. Sanderson, et al., [Ms. 1160824, Feb. 9, 2018] __ So. 3d __ (Ala. 2018). This unanimous decision by Justice Bryan (Stuart, C.J., and Bolin, Parker, Shaw, Main, and Wise, JJ., concur; Sellers, J., recuses) denies mandamus review to defendants in a shareholder derivative action seeking to vacate the trial court’s order reinstating the claims of Wainwright, both derivative and direct, against defendants.
Defendants argued that Wainwright executed a release barring the claims he sought to prosecute both derivatively on behalf of the corporation and individually. The Court concluded that the order reinstating Wainwright’s claims was not properly reviewable on mandamus because of the general rule that denial of a motion to dismiss or for summary judgment is not reviewable except in certain narrow circumstances. Ms. *11.
Relying on Pharmacia Court v. Suggs, 932 So. 2d 95 (Ala. 2005), Petitioners/Defendants argued that mandamus review was appropriate because the release divested the trial court of subject matter jurisdiction. However, the Court distinguished Pharmacia on the basis that the release in Pharmacia was executed after the case was filed and mandamus review was appropriate because after the respondent “accepted the settlement that resulted in the entirely appropriate dismissal of their claims in this case, the matters made the basis of the complaint became moot, and the trial court no longer had subject-matter jurisdiction to entertain a motion to amend the moot complaint.” Ms. *13, quoting Pharmacia Court v. Suggs, 932 So. 2d at 99.
The Court held that by contrast “when a releasor executes a release before initiating legal proceedings against the release, there are no pending claims to be mooted by the release, and the release does not ‘moot’ any post-release claims the releasor might elect to bring.” Ms. *14. In support of its conclusion, the Court also noted that a release is an affirmative defense which may be waived. Ms. *16. The Court concluded that:
Because a release asserted as a defense to post-release claims does not moot those claims or otherwise implicate a trial court’s subject-matter jurisdiction, the May order does not fall within the subject-matter-jurisdiction exception to the general rule that this Court will not review by a petition for a writ of mandamus an interlocutory order denying a motion to dismiss or a motion for a summary judgment.