Lis Pendens

Ex parte MUSA Properties, LLC, [Ms. SC-2022-1061, May 19, 2023] __ So. 3d __ (Ala. 2023). The Court (Mendheim, J.; Parker, C.J., and Shaw, Wise, Bryan, Sellers, Stewart, Mitchell, and Cook, JJ., concur) issues a writ of mandamus to the Calhoun Circuit Court directing the court to vacate its order expunging a lis pendens notice filed by MUSA Properties, LLC (“MUSA”) related to litigation between MUSA and R.K. Allen Oil Co., Inc. (“Allen Oil”) arising from MUSA’s agreement to purchase a convenience store from Allen Oil.

The trial court granted a partial summary judgment based on MUSA’s repudiation of the contract and expunged the lis pendens. Ms. *12. The Court first explains “ ‘[t]he doctrine of lis pendens is based on considerations of public policy and convenience, which forbid a litigant to give rights to others, pending the litigation, so as to affect the proceedings of the court then progressing to enforce those rights.’” Ms. *21, quoting Reed v. Skeen, 591 So. 2d 51, 52 (Ala. 1991). The Court holds “[u]ntil this litigation ‘is terminated by judgment and the expiration of any appropriate period for appeal, or appellate determination, if an appeal is taken,’ the lis pendens notice must remain in effect.” Ms. *22, quoting Walden v. Hutchinson, 987 So. 2d 1109, 1121 (Ala. 1991), some internal quotation marks omitted.

The Court also rejects Allen Oil’s argument that Rule 59(e), Ala. R. Civ. P., provided MUSA another adequate remedy and explains “Rule 59(e) does not apply to interlocutory orders, such as the circuit court’s order expunging the lis pendens notice. Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 549-50 (Ala. 2003) …. Rule 59 does not apply to interlocutory orders, because such orders remain ‘within the breast of the court.’ Rheams v. Rheams, 378 So. 2d 1125, 1128 (Ala. Civ. App. 1979).” Ms. **24-25.

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