Ex parte Vestavia Hills, Ltd., No. SC-2025-0296, ___So. 3d ____ (Ala. Jan. 30, 2026). The Supreme Court (Mendheim, J., and Stewart, C.J., Shaw, Wise, Sellers, Cook, McCool, and Parker, JJ., concur; Bryan, J., concurs in the result) denies petition for writ of mandamus, holding the right to a jury trial on all issues triable provided by Ala. R. Civ. P. 38 is limited to issues for which a constitutional or statutory right to a jury trial existed as of the adoption of the Alabama Constitution of 1901.
Commonwealth Assisted Living, LLC, Series E (“Commonwealth”) and Vestavia Hills, Ltd. (“VHL”) entered into an agreement for VHL to sell Commonwealth Mount Royal Towers in Jefferson County, Alabama. Ms. *3. The agreement included a provision wherein VHL would lease back a skilled-nursing facility on the property to Commonwealth. The sale fell through and Commonwealth sued VHL and others for breach of contract, including a demand for “trial by jury of all claims so triable.” See Ala. R. Civ. P. 38.
In October 2024, Commonwealth filed a motion seeking leave to prove attorneys’ fees and expenses to the jury in advance of its December 2024 jury trial regarding damages. Ms. *4. The defendants opposed this motion, arguing that Commonwealth had no expert to testify about attorneys’ fees and that the determination of the amount of attorneys’ fees and reasonableness of said fees were questions for the jury. The trial court granted Commonwealth’s motion for leave to prove attorneys’ fees and expenses and determined the “issue of post-breach recoverable attorneys’ fees is for the court to determine after the trial on damages has been completed.” Ms. *8. Defendants filed a motion to vacate or modify the order and which was denied, so Defendants filed the petition for a writ of mandamus.
Ala. R. Civ. P. 38(c) provides that a jury demand “’shall be deemed to have demanded trial by jury for all the issues so triable’ unless the party specifies the issues for which it requests a jury trial.” “The guaranty of trial by jury extends only to causes existing either at common law or under statutory law at the time of the adoption of the 1901 Constitution.” Gilbreath v. Wallace, 292 Ala. 267, 269 (1974). The Court denies the petition, holding the Defendants presented insufficient arguments to show that an Alabama statute as of the adoption of the 1901 Constitution provided that a prevailing party’s contractual right to attorneys’ fees and expenses is an issue triable to a jury. Ms. *25-26.