Alabama Appellate Watch : Blog Published by Lightfoot Franklin & White : Alabama Litigation Lawyer & Attorney : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

An employee sued his employer for workers’ compensation benefits. Before deciding the core questions of whether the worker was disabled and what benefits he might be owed, the circuit court ordered the employer to provide the worker with a panel of physicians under Ala. Code § 25-5-77(a) (1975). This order was entered on March 29, 2007.

The trial court entered its (nominally) final decision on October 19, 2007. The court found that the worker was permanently disabled and awarded him “all past due . . . and future benefits.” The court did not specify the amount of this award.

The employer then filed two cases in the Court of Civil Appeals. It filed a petition for writ of mandamus on November 20, 2007, to review the March 29 order concerning the panel of physicians. Then, on November 29, 2007, it filed an appeal from the October 19 judgment awarding benefits.

The Court of Civil Appeals turned both of these aside. The mandamus petition, it noted, was filed well outside the 42-day period in which such petitions are considered presumptively timely under appellate Rules 21(a)(3) and 4(a)(1). In such a case, Rule 21(a)(3) requires the petitioner to show “good cause” for the late filing. The employer had not made this showing. The appellate court recognized that the “passage of time, without more” does “not necessarily, by itself,” condemn a late petition to dismissal. Here, however, there was “more.” The worker had been prejudiced by the employer’s delay in filing. Specifically, the worker was forced to “seek, obtain, and presumably pay for his [own] pain-management treatment” in the relevant period. The appellate court also indicated that the issues raised by the mandamus petition were encompassed by the employer’s direct appeal. The employer thus had “an opportunity for review by appeal,” which was “another factor to consider in determining whether good cause exists for allowing an untimely mandamus petition.” The Court of Civil Appeals thus denied the petition as late.

The employer’s direct appeal, for its part, was dismissed as being from a non-final judgment. Recall that the trial court’s October 19 order — which awarded the worker disability benefits — had “fail[ed] to specify a sum certain for” those benefits. This made the judgment non-final. The appellate court explained:

Where the amount of damages is an issue . . . the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.

Accordingly, the October 19 order “was not a final judgment that [would] support an appeal.” The Court of Civil Appeals dismissed the employer’s appeal.

(The employer had also couched its direct appeal alternatively as a petition for mandamus. The Court of Civil Appeals rejected this tack. Because the employer would have an adequate remedy by appeal, once a final judgment was entered, mandamus would not lie. The court thus denied the alternative petition.)

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.