Ex parte Honaker, [Ms. SC-2022-0445, Sep. 2, 2022] __ So. 3d __ (Ala. 2022). The Court unanimously (Sellers, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur) denies Robert Keith Honaker’s petition for a writ of mandamus invoking the abatement statute, (§ 6-5-440, Ala. Code 1975) and seeking to dismiss a 2019 action filed by Ricky Hill d/b/a Ricky Hill Trucking (“Hill”). Hill sued Honaker in 2014 asserting a single claim for breach of contract alleging that Honaker had failed to pay Hill for gravel deliveries. Honaker filed a counterclaim in that action. That action was dismissed in a June 2019 interlocutory order as a sanction for Hill’s failure to respond to Honaker’s discovery requests; Honaker’s counterclaim remained pending. Ms. *2.
Hill then commenced a separate action in September 2019 alleging the same breach-of-contract claim, and also alleging fraud based on “Honaker’s alleged misrepresentation that he would pay Hill for the rock, and [a] slander claim … based on Honaker’s alleged statements to third parties that Hill had committed a crime by not delivering the amount of rock agreed upon.” Ms. *3. In 2021, the circuit court set side its previous order dismissing Hill’s 2014 action and subsequently dismissed the 2019 action in its entirety. Ms. *4.
In denying the petition, the Court concludes “Honaker has not established that Hill’s claim in the 2014 action was not still pending for purposes of abatement when the 2019 action was commenced. Thus, he has not demonstrated that the 2019 action should be considered the earlier action and therefore “‘a good defense to [Hill’s claim in the 2014 action]’ under § 6-5-440. Because Honaker has not demonstrated a clear legal right to the relief he seeks, we deny his petition for a writ of mandamus.” Ms. **11-12.