CourtListener 10372806•Ex parte Jim Owings PETITION FOR WRIT OF MANDAMUS (In re: Alan Burns and John Harkonen v. Timothy Rosemore and Jim Owings) (Shelby Circuit Court: CV-20-900010).
Ex parte Jim Owings PETITION FOR WRIT OF MANDAMUS (In re: Alan Burns and John Harkonen v. Timothy Rosemore and Jim Owings) (Shelby Circuit Court: CV-20-900010).
CourtListener 10372806AlaApr 4, 2025
Full text
Rel: April 4, 2025
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, 2024-2025
_________________________
SC-2024-0645
_________________________
Ex parte Jim Owings
PETITION FOR WRIT OF MANDAMUS
(In re: Alan Burns and John Harkonen
v.
Timothy Rosemore and Jim Owings)
(Shelby Circuit Court: CV-20-900010)
SHAW, Justice.
SC-2024-0645
PETITION DENIED; NO OPINION.
Stewart, C.J., and Wise, Bryan, Sellers, Mendheim, Mitchell, and
McCool, JJ., concur.
Cook, J., dissents, with opinion.
2
SC-2024-0645
COOK, Justice (dissenting).
I respectfully dissent from our Court's decision to deny Jim
Owings's petition for a writ of mandamus.
I write separately because I am concerned that the arguments
raised by the parties in this case may signal confusion among the bench
and the Bar about how our Rules of Civil Procedure determine exactly
when certain decisions are final judgments and, thus, support an appeal.
I believe it is exceptionally important that the test for finality be clear for
the bench and the Bar.
I encourage our Standing Committee for the Alabama Rules of Civil
Procedure to examine the wording of Rule 4(f), Ala. R. Civ. P., which
states, in relevant part:
"When there are multiple defendants and the summons (or
other document to be served) and the complaint have been
served on one or more, but not all, of the defendants, the
plaintiff may proceed to judgment as to the defendant or
defendants on whom process has been served and, if the
judgment as to the defendant or defendants who have been
served is final in all other respects, it shall be a final
judgment."
(Emphasis added.)
First, the current wording of the rule is archaic and awkward. For
instance, before its amendment in 1989, this rule read that "the plaintiff
3
SC-2024-0645
may proceed to trial and judgment," but it now reads that "the plaintiff
may proceed to judgment." (Emphasis added.) The current language in
the rule does not directly discuss what occurs when a defendant
successfully makes a dispositive motion or a court enters a dispositive
order pursuant to Rule 41, Ala. R. Civ. P.
Second, Rule 4(f) does not directly discuss whether the result would
be the same if a dismissal is with, or without, prejudice for the only served
defendant.
Reexamining the language in this rule (or perhaps revising Rule 54,
Ala. R. Civ. P.) may thus provide clarity for the bench and the Bar for
these two issues.
4
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.