Alabama Appellate Watch

In this workers compensation case, the trial court denied Onyx's motion to dismiss or, in the alternative, to transfer the action from Tuscaloosa County to Chilton County.  The trial court denied the motion on October 26, 2006.  Onyx then moved the trial court to reconsider that order.  The motion to reconsider was denied on January 12, 2007.  Onyx petitioned the Alabama Supreme Court for a writ of mandamus on February 21, 2007.  The Supreme Court transferred the petition to the Court of Civil Appeals. 

The dispositive jurisdictional question for the court was whether Onyx's petition for a writ of mandamus was timely filed.  The court first noted that a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.  In this case, the petition for a writ of mandamus was filed 40 days after the denial of Onyx's motion to reconsider, and 118 days after the trial court first denied Onyx's motion to dismiss or, alternatively, to transfer.

The court rejected Onyx's argument that the trial court granted its motion to reconsider in part.  Although the ruling on the motion to reconsider did clarify the trial court's basis for denying the motion to dismiss or transfer, it did not grant the relief that Onyx sought, so could not be considered to have granted the motion in part.  

The court further contrasted the situation in this case from one in which a trial court withdraws its previous order and then enters a new order providing the same relief as the first order.  In those situations, the date the second order is entered is the date from which the period in which a party may petition for a writ of mandamus begins to run. Here, however, there was no indication that the trial court withdrew its first order.

As a result, the petition for a writ of mandamus was not filed within the presumptively reasonable  42 days. In such situations, the filing of a statement of circumstances constituting good cause for the appellate court to consider the petition notwithstanding its untimeliness is mandatory.  As Onyx failed to submit such a statement, the court was required to dismiss the petition.