Danny Clements Builder, Inc. v. Wilcutt

46 So. 3d 884, 2010 Ala. LEXIS 22
CourtSupreme Court of Alabama
DecidedFebruary 12, 2010
Docket1071620
StatusPublished

This text of 46 So. 3d 884 (Danny Clements Builder, Inc. v. Wilcutt) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Danny Clements Builder, Inc. v. Wilcutt, 46 So. 3d 884, 2010 Ala. LEXIS 22 (Ala. 2010).

Opinion

WOODALL, Justice.

Clifford H. Willcutt III petitioned this Court for a writ of mandamus, seeking relief from the trial court’s denial of Will-cutt’s motions to amend his answer and counterclaims in an action Danny Clements Builder, Inc. (“Clements Builder”), filed against Willcutt in the Montgomery Circuit Court. On September 10, 2008, Willcutt filed in this Court a suggestion of bankruptcy, and on September 15, 2008, this Court placed Willcutt’s petition on its [885]*885administrative docket. On November 19, 2008, Susan S. DePaola, as Willcutt’s bankruptcy trustee, filed a notice of substitution of party, substituting the trustee for Willcutt as the petitioner. DePaola, as Willcutt’s trustee in bankruptcy, now pursues Willcutt’s petition for mandamus relief. We deny the petition.

Facts and Procedural History

In December 2005, Willcutt contracted with Clements Builder for the construction of a commercial building in Montgomery. In March 2007, after constructing the building, Clements Builder sued Willcutt, alleging that Willcutt owed it approximately $22,000 in unpaid construction costs. Willcutt answered the complaint and filed several counterclaims against Clements Builder. In his counterclaims, Willcutt alleged that Clements Builder (1) had been overpaid for its work; (2) had breached the contract by failing to follow the contract plans with respect to exterior wall studs, electrical panels, louver vents, and a driveway; (3) had fraudulently misrepresented facts regarding the elevation of the building; and (4) had fraudulently misrepresented facts related to the installation of a fireplug.

In May 2007, the trial court entered a scheduling order, setting the case for trial on November 26, 2007, and stating that discovery had to be completed by November 5, 2007. On November 16, 2007, after the close of discovery and only 10 days before the scheduled trial, Willcutt filed a “Second Amendment to Counterclaim,” seeking leave of court to add a demand for attorney fees. Three days later, on November 19, Willcutt filed a “Third Amendment to Counterclaim,” seeking leave of court to add a claim that Clements Builder had breached the contract in another manner by improperly installing anchor bolts in the building. On that same day, Will-cutt also sought to amend his answer to add a claim for attorney fees. Clements Builder moved the trial court to strike each of the requested amendments, arguing that Willcutt had not demonstrated good cause for the amendments and that Clements Builder “would be substantially prejudiced if it is forced to defend new claims that it did not have an opportunity to explore during the discovery process.” (Emphasis in original motion.)

On November 20, 2007, the trial court continued the trial date because of a scheduling conflict. On March 14, 2008, the trial court held a hearing on all the pending motions. At the hearing, the trial court orally denied Willcutt’s motions to amend his answer and counterclaims. The trial court stated that the amendments were untimely because discovery was closed and because Willcutt knew or should have known of his new counterclaims for attorney fees and alleging breach of contract well in advance of the time he filed his motions to amend.

In April 2008, Willcutt petitioned this Court for mandamus relief from the trial court’s ruling. This Court dismissed Will-cutt’s petition on the ground that the trial court’s oral ruling was not an “order,” under Rule 58(a), Ala. R. Civ. P.1 On August 19, 2008, the trial court entered a written order denying Willcutt’s motions to amend his answer and counterclaims. On August 29, 2008, Willcutt again petitioned [886]*886this Court for a writ of mandamus directing the trial court to grant his motions for leave to amend his answer and counterclaims. DePaola, as Willcutt’s trustee in bankruptcy, now pursues Willcutt’s second petition for mandamus relief. We deny the petition.

Standard of Review

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex paite Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). “A writ of mandamus, being a drastic and extraordinary remedy, will issue to correct a trial court’s ruling regarding the amendment of pleadings only when it is shown that the trial court has exceeded its discretion.” Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 952 (Ala.2003).

Analysis

This Court has stated:

“Rule 15(a), Ala. R. Civ. P., reflects Alabama’s liberal policy in favor of allowing amendments to pleadings:
“ ‘Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.... ’
[[Image here]]
“We noted in Ex parte GRE Insurance Group, 822 So.2d 388, 390 (Ala.2001), that under Rule 15 amendments to pleadings are to be ‘freely allowed’ unless there exists some valid reason to deny them, such as ‘actual prejudice or undue delay[.]’
[[Image here]]
“When, as here, the amendment is sought within the 42-day window, the trial court is free to deny a party leave to amend his or her pleading unless the party can demonstrate ‘good cause.’ ... However, in light of the overarching liberal policy of allowing amendments under Rule 15, the appropriate way to view the request for leave to amend, if a party demonstrates ‘good cause,’ is as though the request had been brought more than 42 days before trial, when the trial court does not have ‘unbridled discretion’ to deny the leave to amend, but can do so only upon the basis of a ‘valid ground’ as stated above.”

Liberty National, 858 So.2d at 953-54.

In Blackmon v. Nexity Financial Corp., 953 So.2d 1180, 1189 (Ala.2006), this Court noted:

“Rule 15[, Ala. R. Civ. P.,] ‘ “is not carte blanche authority to amend ... at any time.” ’ Burkett v. American Gen. Fin., Inc., 607 So.2d 138, 141 (Ala.1992) (quoting Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980)).... The trial court can refuse to allow an amendment if allowing it would result in actual prejudice to the opposing party or for reasons of ‘undue delay.’ [Ex parte] GRE Ins. Group, 822 So.2d [388,] 390 [ (Ala.2001) ].
“Undue delay can have two different meanings in a case. First, the trial court has discretion to deny an amend[887]*887ment to a pleading if allowing the amendment would unduly delay the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ex Parte Liberty Nat. Life Ins. Co.
858 So. 2d 950 (Supreme Court of Alabama, 2003)
Stallings v. Angelica Uniform Co.
388 So. 2d 942 (Supreme Court of Alabama, 1980)
Burkett v. AM. GENERAL FINANCE
607 So. 2d 138 (Supreme Court of Alabama, 1992)
Ex Parte Ocwen Federal Bank, FSB
872 So. 2d 810 (Supreme Court of Alabama, 2003)
Blackmon v. Nexity Financial Corp.
953 So. 2d 1180 (Supreme Court of Alabama, 2006)
Ex Parte Alfab, Inc.
586 So. 2d 889 (Supreme Court of Alabama, 1991)
Ex Parte Gre Insurance Group
822 So. 2d 388 (Supreme Court of Alabama, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
46 So. 3d 884, 2010 Ala. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danny-clements-builder-inc-v-wilcutt-ala-2010.