(251) 299-0101

Mandamus to Compel a Trial Court to Rule

Ex parte International Paper Co., [Ms. 1170458, Apr. 27, 2018] __ So. 3d __ (Ala. 2018). The Supreme Court unanimously (Bolin, J., and Stuart, C.J., and Parker, Shaw, Main, Wise, Bryan, Sellers, and Mendheim, J.J., concur) grants a petition for a writ of mandamus filed by International Paper Company and three of its employees which sought an order directing the Wilcox Circuit Court to make a ruling upon a pending motion to dismiss premised upon the defense of improper venue which, in turn, was based upon an outbound forum-selection clause contained in a waste-services contract between International Paper and a waste-services contractor. The dispute arose from the waste-services contractor's inability to pay for heavy equipment purchased from and financed through Caterpillar. The waste-services contractor filed a third party complaint contending that if it was liable on the debt to Caterpillar, it was because of the actions of International Paper and its employees in not compensating the contractor for work and labor done. International Paper and its employees filed a motion to dismiss the third-party complaint pursuant to Rule 12(b)(3), Ala. R. Civ. P., arguing that the waste-services agreement between International Paper and the contractor contained an outbound forum-selection clause providing that courts of Tennessee had exclusive jurisdiction over any disputes arising out of their agreement. When the circuit court set the matter for trial without first ruling on the motion to dismiss, International Paper and its employees filed a petition for a writ of mandamus seeking an order compelling the circuit court to rule on the motion to dismiss premised upon the defense of improper venue.

Citing (Ms. *6-8) Ex parte Ford Motor Credit Co., 607 So. 2d 169 (Ala. 1992), the Court examined when a trial judge may be held to have exceeded his or her discretion in failing to rule upon a pending motion, noting "... [W]hile the writ will issue to compel the exercise of discretion by a circuit judge, it will not issue to compel the exercise of discretion in a particular manner. On the other hand, mandamus is an appropriate remedy when there is a clear showing that the trial judge abused his or her discretion by exercising it in an arbitrary and capricious manner." Ms. *7. Concluding (Ms. *14-15), the Court reasoned "the circuit court exceeded its discretion by failing to rule on, and instead 'taking under advisement' the motion to dismiss the third-party complaint based on improper venue while allowing discovery on the merits to proceed and setting deadlines for summary-judgment motions and setting the trial date. Therefore, we issue the writ and direct the circuit court to issue an order addressing the merits of [International Paper's] motion to dismiss based on improper venue."

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