Ex parte Hare, Wynn, Newell & Newton, LLP, and David Leon Ashford. PETITION FOR WRIT OF MANDAMUS (In re: Joel Wesley Pennington and Leigh Ann Pennington v. Hare, Wynn, Newell & Newton, LLP, and David Leon Ashford) (Baldwin Circuit Court: CV-22-901271).

• Court: Supreme Court of Alabama
• Decided: May 24, 2024
• Docket: SC-2023-0908
• Status: Published

Opinion

Rel: May 24, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2023-2024

_________________________

SC-2023-0908 _________________________

Ex parte Hare, Wynn, Newell & Newton, LLP, and David Leon Ashford

PETITION FOR WRIT OF MANDAMUS

(In re: Joel Wesley Pennington and Leigh Ann Pennington

v.

Hare, Wynn, Newell & Newton, LLP, and David Leon Ashford)

(Baldwin Circuit Court: CV-22-901271)

COOK, Justice. SC-2023-0908

This mandamus petition raises the issue whether a judgment is

final when the only "defendants" remaining are fictitiously named

defendants. In September 2019, David Leon Ashford, an attorney with

Hare, Wynn, Newell & Newton, LLP ("Hare Wynn"), commenced a

medical-malpractice action on behalf of Joel Wesley ("Wes") Pennington

and Leigh Ann Pennington. In their complaint, the Penningtons alleged

that several named and fictitiously named defendants had breached the

standard of care when treating Wes after he suffered a stroke in

September 2017.

In January 2022, Ashford and Hare Wynn terminated their

representation of the Penningtons and withdrew from the case. After

obtaining new counsel, the trial court entered a summary judgment in

favor of the original set of named defendants, and the Penningtons added

new named defendants, again stating medical-malpractice claims. Then,

in January 2023, the trial court entered an order dismissing the

Penningtons' medical-malpractice claims against the new named

defendants, leaving only fictitiously named defendants.

Approximately four months later, in May 2023, the Penningtons

moved to amend their complaint to add Ashford and Hare Wynn to their

2 SC-2023-0908

action and to allege legal-malpractice claims against them premised on

breach of contract and various misrepresentations that the Penningtons

contended had been made to them by Ashford and Hare Wynn when they

initially commenced their medical-malpractice action in September 2019.

After the trial court granted the Penningtons' request, Ashford and Hare

Wynn moved to dismiss the Penningtons' claims against them for lack of

subject-matter jurisdiction because, they asserted, the January 2023

dismissal order was a final judgment and more than 30 days had passed

since its entry. The trial court denied that motion.

Ashford and Hare Wynn now petition this Court for a writ of

mandamus directing the trial court to vacate its order denying their

motion to dismiss for lack of subject-matter jurisdiction and to dismiss

the Penningtons' action against them on that basis. For the reasons

stated below, we grant the petition and issue the writ.

Facts and Procedural History

On August 30, 2017, Wes underwent surgery at Thomas Hospital

in Bay Minette to fuse his C6 and C7 vertebrae. During the surgery, Dr.

William Roberts, an orthopaedic surgeon, requested the assistance of Dr.

Melanie Rose, a vascular surgeon, to repair an injury that had occurred

3 SC-2023-0908

to Wes's left carotid artery. Wes was discharged from the hospital the

following day.

Dr. Roberts saw Wes for a postoperative check up on September 6,

2017. During that visit, Wes reported that he was not having any pain

and X-rays revealed that the cervical plate used to fuse his C6 and C7

vertebrae remained in good position.

While at home on September 20, 2017, Wes suffered a stroke and

was taken by ambulance to a local hospital. In the emergency room, Wes

was seen by a neurologist, Dr. John L. Hinton. After confirming an

occlusion of the left carotid artery and the middle cerebral artery, Dr.

Hinton prescribed a heparin -- or anticoagulant -- medication treatment.

Wes was then admitted to the intensive-care unit, and Dr. William

H. Hewitt was assigned as his consulting neurologist. Dr. Hewitt and

Dr. Matthew McLean, another neurologist, monitored Wes's progress and

oversaw his treatment plan.

On September 25, 2017, Wes complained of a headache and was

having speech difficulty. Dr. McLean ordered additional testing, which

revealed a hemorrhagic stroke. Based on those results, Dr. McLean

discontinued the heparin therapy, prescribed Protamine to reverse the

4 SC-2023-0908

anticoagulation, and consulted neurosurgery.

Thereafter, Wes's family requested that he be transferred to Emory

University Hospital. On September 26, 2017, physicians at Emory

University Hospital confirmed the occlusion and hemorrhage and began

treatment. Wes remained at Emory University Hospital until October 5,

2017, when he was transferred to a rehabilitation center for an additional

three weeks.

After Wes's discharge on October 28, 2017, Wes and his wife, Leigh

Ann, consulted Ashford at Hare Wynn regarding a possible medical-

malpractice action against Dr. Roberts, Dr. Rose, Dr. Hinton, Dr. Hewitt,

Dr. McLean, and IMC-Diagnostic and Medical Clinic, LLC ("IMC-

Diagnostic"), the entity that owned the medical clinic in Mobile where Dr.

Hinton, Dr. Hewitt, and Dr. McLean were employed.

During that time, Wes continued extensive rehabilitation. Despite

those efforts, however, Wes experienced functional, neurological, and

mental deficits and is now permanently disabled.

On September 11, 2019, Ashford and Hare Wynn commenced a

medical-malpractice action on behalf of the Penningtons against IMC-

Diagnostic, Dr. Hinton, Dr. Hewitt, and Dr. McLean (the "IMC

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defendants"), as well as 13 fictitiously named defendants, in the Mobile

Circuit Court. The complaint alleged that the IMC defendants had

breached the standard of care following Wes's stroke, resulting in Wes's

suffering "devastating neurologic damage" and leaving him permanently

disabled.

On January 31, 2022, Ashford and Hare Wynn filed a motion to

withdraw as the Penningtons' counsel, stating that "[c]ontinuing to

prosecute this action against these defendants would not comport with

[their professional responsibilities] under Rule 1.16(a)(1) of the Alabama

Rules of Professional Conduct." The Mobile Circuit Court granted that

motion on February 4, 2022. A later email to the Penningtons' new

counsel explained that, although he was sympathetic to the Penningtons'

situation, Ashford did not believe that causation could be proven in the

case against the IMC defendants. In addition, Ashford stated that he

believed that a claim against other possible defendants -- Dr. Roberts and

Dr. Rose -- could not be supported by expert testimony.

The Penningtons eventually obtained new counsel. In May 2022,

the IMC defendants filed a motion for a summary judgment, which the

Penningtons did not oppose. As a result, on August 11, 2022, a summary

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judgment was entered by the Mobile Circuit Court in favor of the IMC

defendants.

Later that same day, the Penningtons, through their new counsel,

filed an amended complaint, naming Dr. Roberts and Dr. Rose as

defendants. The amended complaint alleged that Dr. Roberts and Dr.

Rose had breached the standard of care when they failed to prescribe

antiplatelet medication to Wes following his surgery in August 2017.

On September 12, 2022, Dr. Roberts and Dr. Rose filed a motion to

dismiss the amended complaint as untimely or, in the alternative, to

transfer the case to Baldwin Circuit Court. The Penningtons agreed to

transfer the case, and, on November 18, 2022, the Mobile Circuit Court

transferred the case to the Baldwin Circuit Court ("the trial court").

On November 30, 2022, Dr. Roberts and Dr. Rose renewed their

motion to dismiss, reasserting their contention that the Penningtons'

medical-malpractice claims against them were time-barred. After the

Penningtons conceded that those claims were time-barred, the trial court,

on January 4, 2023, entered an order granting Dr. Roberts and Dr. Rose's

motion to dismiss -- thereby dismissing the claims against the last of the

named defendants in the action. Following the entry of that order, the

7 SC-2023-0908

only "defendants" that remained in the action were the 13 fictitiously

named defendants.

Four months later, on May 2, 2023, the Penningtons moved to add

Ashford and Hare Wynn to their action and to allege legal-malpractice

claims against them. The trial court granted the Penningtons' request

three days later.

About a month later, the Penningtons filed their second amended

complaint, in which they formally named Ashford and Hare Wynn as

defendants. They alleged legal-malpractice claims premised on negligent

or wanton misrepresentations and breach of contract against Ashford

and Hare Wynn, and they sought compensatory damages.

After Ashford and Hare Wynn filed their answer to the

Penningtons' second amended complaint, they moved to dismiss the

Penningtons' claims against them. In their motion, Ashford and Hare

Wynn argued that, because the trial court's January 4, 2023, order

dismissing the claims against the only remaining named defendants in

the Penningtons' medical-malpractice action constituted a final

judgment, the trial court lacked subject-matter jurisdiction to take

further action in the case 30 days after the entry of that order. As a

8 SC-2023-0908

result, Ashford and Hare Wynn asserted, any subsequent orders entered

by or actions taken by the trial court, including its order granting the

Penningtons' request to add them as defendants, were null and void.

In their response, the Penningtons argued, among other things,

that the trial court had retained subject-matter jurisdiction following the

entry of its January 4, 2023, order to allow them to add Ashford and Hare

Wynn as defendants in their action, asserting that there is "no case law

in Alabama holding that a case cannot remain pending as to fictitiously

named [d]efendants only."

The trial court denied Ashford and Hare Wynn's motion to dismiss.

This petition followed.

Standard of Review

It is well settled that

" ' "[m]andamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So. 2d 805 (Ala. 2000).' " 9 SC-2023-0908

Ex parte Tutt Real Est., LLC, 334 So. 3d 1249, 1251-52 (Ala. 2021)

(quoting Ex parte Huntingdon Coll., 309 So. 3d 606, 609-10 (Ala. 2020)).

Discussion

In their mandamus petition, Ashford and Hare Wynn maintain that

the trial court lacked subject-matter jurisdiction to allow the

Penningtons to amend their complaint to add new claims and new

parties. Specifically, they contend that the trial court's January 4, 2023,

order dismissing the claims against the only remaining named

defendants in the Penningtons' medical-malpractice action -- Dr. Roberts

and Dr. Rose -- constituted a final judgment and thus concluded the

litigation in this case. Because neither the Penningtons nor the trial

court took any additional action in the case within 30 days after the entry

of that order, Ashford and Hare Wynn contend, the trial court lost

jurisdiction over the case and, therefore, lacked jurisdiction to allow the

Penningtons to amend their complaint to add legal-malpractice claims

against Ashford and Hare Wynn 4 months later. As a result, Ashford and

Hare Wynn contend, the order permitting the Penningtons to add

Ashford and Hare Wynn as defendants is void and they are entitled to

mandamus relief. 10 SC-2023-0908

The Penningtons do not dispute that the trial court granted their

request to amend their complaint to add new named defendants and new

claims over four months after entering its January 2023 order dismissing

the claims against the only remaining named defendants in their

medical-malpractice action. They nevertheless contend, however, that

the trial court retained jurisdiction to allow them to do so because (1) the

trial court's January 2023 order does not explicitly state that it was

dismissing the Penningtons' claims against the remaining fictitiously

named defendants, (2) the status of the case is listed as "active" rather

than as "disposed" on the docket sheet, and (3) the trial court continued

to accept filings in the case even after that order was entered.

Accordingly, the Penningtons contend that Ashford and Hare Wynn are

not entitled to mandamus relief.

It is well settled in Alabama that a judgment or order entered by a

trial court without subject-matter jurisdiction is void. See Ex parte

Norfolk S. Ry., 816 So. 2d 469, 472 (Ala. 2001). Thus, unless the trial

court had subject-matter jurisdiction when it entered its order granting

the Penningtons' request to add Ashford and Hare Wynn as defendants

to their action, that order -- along with any subsequent order entered or

11 SC-2023-0908

action taken by the trial court -- was a nullity and must be set aside. See

Faith Props., LLC v. First Com. Bank, 988 So. 2d 485, 490 (Ala. 2008).

As stated previously, on January 4, 2023, the trial court granted

the parties' unopposed motion to dismiss the claims against the only

remaining named defendants -- Dr. Roberts and Dr. Rose -- from the

Penningtons' medical-malpractice action. It is undisputed that, once Dr.

Roberts and Dr. Rose were dismissed from the action, no named

defendants remained.

Although the Alabama Rules of Civil Procedure allow for the use of

fictitiously named defendants in pleadings under specific circumstances,

see Rule 9(h), Ala. R. Civ. P.,1 this Court has held that an order

dismissing all the claims against all the named defendants in a civil

action is a final judgment. Zinn v. Till, 380 So. 3d 1026 (Ala. 2023); see

also Ex parte Harrington, 289 So. 3d 1232, 1237 n.5 (Ala. 2019) ("A

judgment that disposes of fewer than all the defendants is final when the

1Rule 9(h) provides:

"When a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name." 12 SC-2023-0908

defendants as to whom there has been no judgment have not yet been

served with notice."); Johnson v. Reddoch, 198 So. 3d 497, 504 (Ala.

2015); Sims v. JPMC Specialty Mortg., LLC, 218 So. 3d 376, 383 (Ala.

Civ. App. 2016) (holding that an order that disposed of all the claims

pending against the only named defendants was final); and Frosch v. City

of Birmingham, [Ms. CL-2023-0392, Dec. 8, 2023] ____ So. 3d ____ (Ala.

Civ. App. 2023) (determining that there was an appealable final

judgment because the dismissal of all the claims against the named

defendants disposed of the remaining allegations against the fictitiously

named defendants).

Under such circumstances, our Court has held that a final

judgment exists as to all parties, including fictitiously named defendants,

and that there is nothing left to litigate. See Toomey v. Foxboro Co., 528

So. 2d 302, 303 (Ala. 1988) (holding that an order entering a summary

judgment in favor of the named defendant and the notation that the case

was being "dismissed" meant that the trial court's order was a final

judgment as to all parties, including the fictitiously named defendants).

In light of these legal principles, it seems evident that the trial court's

dismissal of the claims against Dr. Roberts and Dr. Rose disposed of any

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remaining allegations against the other 13 fictitiously named

defendants, thereby creating a final judgment and ending the ligation in

this case.

The Penningtons contend, however, that the trial court's January

2023 order did not constitute a final judgment because, they say, the trial

court intended to dismiss only the claims against Dr. Roberts and Dr.

Rose and did not intend to dismiss the action as a whole. That intent,

they say, is evidenced by the facts (1) that the case's status is listed as

"active" rather than as "disposed" on the docket sheet and (2) that the

trial court continued to accept filings in the case even after that order

was entered.

We note, however, that our Court has previously made clear that

"[a] trial ' "court cannot, by its subsequent action, divest a [judgment] of its character of finality. A final [judgment] is not rendered interlocutory by the retention of the case on the docket, nor by the subsequent rendition of another [judgment] therein." ' [Pratt Capital, Inc. v.] Boyett, 840 So. 2d [138] at 144-45 [(Ala. 2002)] (quoting Nichols[ v. Ingram Plumbing], 710 So. 2d [454] at 456 [(Ala. Civ. App. 1998)], quoting in turn Mingledorff v. Falkville Downtown Redev. Auth., 641 So. 2d 830, 832 (Ala. Civ. App. 1994)). Neither can a final judgment 'be made nonfinal by the trial court's calling it nonfinal.' Smith v. Fruehauf Corp., 580 So. 2d 570, 572 (Ala. 1991) (emphasis added)."

14 SC-2023-0908

Faith Props., LLC, 988 So. 2d at 491. See also Queen v. Belcher, 888 So.

2d 472, 475 (Ala. 2003) (clarifying that the true test of finality is whether

the order sufficiently ascertains and declares the rights of the parties,

not whether the order has been titled "Final Order" and the case status

has been updated to "Disposed" on the case-action summary). Thus, the

facts that the trial court did not specify that the action was dismissed as

to the fictitiously named defendants and did not list the case as being

"disposed" on the docket sheet are irrelevant here, and the January 2023

order constituted a final judgment.

Finally, our Court has previously said that a trial court has the

authority to alter, amend, or vacate a judgment, either on its own or on

a party's Rule 59(e), Ala. R. Civ. P., motion, within 30 days after the entry

of that judgment. See Ex parte Owen, 420 So. 2d 80, 81 (Ala. 1982). In

other words,

"a trial court has no jurisdiction to entertain a motion to amend a complaint to add new claims or new parties after a final judgment has been entered, unless that 'judgment is first set aside or vacated' pursuant to the state's rules of civil procedure. Greene v. Eighth Judicial Dist. Court of Nevada, 115 Nev. 391, 393, 990 P.2d 184, 185 (1999); see also Paganis v. Blonstein, 3 F.3d 1067 (7th Cir.1993); DiPaolo v. Rollins Leasing Corp., 700 So. 2d 31 (Fla. Dist. Ct. App. 1997); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1489 (2d ed. 1990)." 15 SC-2023-0908

Faith Props., 988 So. 2d at 490 (emphasis added).

In the present case, it is undisputed that neither the trial court nor

the Penningtons took any such action within 30 days of the entry of the

trial court's January 4, 2023, order. Under the legal principles discussed

above, the trial court thus lacked subject-matter jurisdiction to take any

further action in the case after February 3, 2023. See Ex parte Utilities

Bd. of Roanoke, 348 So. 3d 1098, 1104 (Ala. 2021) (recognizing that, after

expiration of the 30-day period prescribed by Rule 59(e), the trial court

lost subject-matter jurisdiction to take any further action in the case).

The materials before us indicate, however, that on May 2, 2023, the

Penningtons moved to amend their complaint to add Ashford and Hare

Wynn as defendants in their action. Three days later, on May 5, 2023,

the trial court entered an order granting their motion. Because the trial

court lacked subject-matter jurisdiction to enter that order, it is a nullity

and must be set aside. See Faith Props., 988 So. 2d at 490. Under these

circumstances, Ashford and Hare Wynn have demonstrated a clear legal

right to the vacation of the trial court's order allowing the Penningtons

to add them as defendants and to the entry of an order dismissing the

claims against them. 16 SC-2023-0908

Conclusion

Because Ashford and Hare Wynn have demonstrated a clear legal

right to the relief they are seeking, we direct the trial court to vacate its

order granting the Penningtons leave to amend their complaint and to

dismiss the Penningtons' claims against them.

PETITION GRANTED; WRIT ISSUED.

Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,

and Mitchell, JJ., concur.