Ex parte S. Mark Booth, [Ms. 1171194, Sept. 30, 2019] __ So. 3d __ (Ala. 2019). In a plurality opinion, the Court (Stewart, J.; Parker, C.J., and Wise and Mitchell, JJ., concur; Bolin, Shaw, Bryan, Sellers, and Mendheim, JJ., concur in the result) grants in part a petition for a writ of mandamus and directs the Marion Circuit Court to dismiss time-barred claims asserted against Booth by the City of Guin.
The Court first noted that “[g]enerally a petition for a writ of mandamus is not the appropriate means to seek review of whether a claim is time-barred by the expiration of a statute of limitations, but mandamus review of such a claim may be proper if the face of the complaint indicates the claim is untimely.” Ms. *7.
Booth argued that although § 4.4(b) of the development agreement at issue did not place a time limit on the City’s exercise of its option to repurchase the real property from Booth, § 35-4-76(a), Ala. Code 1975, required the City to exercise its option within two years. In pertinent part, § 35-4-76(a) states “‘[w]here the instrument creating any such option shall place no limit upon the duration of the option or otherwise state the terms controlling the duration of the option, the option shall cease to be enforceable two years after the time of its creation.’” Ms. *11.
In opposition, the City argued that § 4.4(b) did not provide it with an option to repurchase but was in the nature of a reverter. The Court rejected this argument holding that “§ 4.4(b), in clear and unequivocal terms, provides the City with an option to repurchase the property.” Ms. *15. The Court also emphasized that in its complaint, the City had stated that § 4.4(b) “provided it an ‘option to repurchase’” and held that the Court “has recognized the importance of the language used by the parties in the pleadings to determine whether a provision in a contract constitutes an option.” Ms. *15. The Court held that the City’s specific performance and fraud claims were time-barred by § 35-4-76. Ms. *24.
In regard to the City’s alternative claim that it did not possess legal authority to convey the property to Booth in the first place, although expressing skepticism on the merits of that claim, the Court declined to grant mandamus relief because it “has not previously recognized that a writ of mandamus is an appropriate means by which to review a trial court’s denial of a motion to dismiss that was based on the capacity of a party to enter into a contract.” Ms. *28.