 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ex Parte Breman Lake View Resort3/12/1999
REL:03/12/99BREMANLAKEREVIEWRESORT
PETITION FOR WRIT OF MANDAMUS
(In re: Steve Clark III and Rosita Clark, as co-administrators of the estate of Cordarrius Allan Clark, deceased v. Rainbow Ministries et al.)
Breman Lake View Resort, L.P., a limited partnership ("Breman"), is a defendant in a wrongful-death action in the Jefferson Circuit Court. The plaintiffs in that action are Steve Clark III and Rosita Clark, as co-administrators of the estate of Cordarrius Allan Clark, their deceased child. Breman is also the plaintiff in a declaratory-judgment action pending in the Cullman Circuit Court, in which the Clarks and others are defendants. The declaratory-judgment action was filed before the wrongful-death action. Breman petitions for a writ of mandamus directing Jefferson Circuit Judge Daniel C. King III to dismiss the wrongful-death action as to Breman, or, alternatively, to transfer that action to Cullman County. We grant the petition.
Cordarrius Clark, a six-year-old child, was enrolled in the Rainbow Inner City Ministries Day Care. The day-care facility is located in Jefferson County and is operated by Rainbow Inner City Ministries. On July 20, 1997, Rainbow Ministries took Cordarrius and approximately 15 other children to Breman on a field trip. Breman is located in Cullman County. During the outing, Cordarrius drowned in a swimming pool on Breman's property.
During settlement negotiations between the Clarks and Breman before any action was filed, Breman was informed that one possible basis for its liability was its alleged violation of swimming pool regulations promulgated by the Cullman County Board of Health ("the regulations"). On February 20, 1998, Breman filed a declaratory-judgment action in Cullman County against Rainbow Ministries, Reverend Tavares Lee Ward, Sr., LaShelle Clark, Rosita Clark, Steve Clark, and the Cullman County Board of Health to determine whether the regulations were applicable to it. Approximately two weeks later, the Clarks filed a wrongful-death action in Jefferson County against Breman, Rainbow Ministries, and other fictitiously-named parties. The Clarks unsuccessfully sought to have the Cullman County declaratory-judgment action dismissed. The Clarks did not seek review of the denial of their motion to dismiss the Cullman County action.
Breman then sought to have the claims against it in the wrongful-death action in Jefferson County dismissed because the Clarks were defendants in the declaratory-judgment action in Cullman County. Breman later amended its motion to seek, in the alternative, the transfer of the action to Cullman County pursuant to the doctrine of forum non conveniens. The Jefferson County trial Judge denied Breman's motion. Breman now asks this Court to direct the dismissal of the wrongful-death action as to Breman now pending in Jefferson County or to transfer the action to Cullman County.
A writ of mandamus is an extraordinary remedy, and it will be "issued only when 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 United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993). A writ of mandamus will issue only to compel the exercise of a trial court's discretion; it will not issue to control or to review a court's exercise of its discretion unless an abuse of discretion is shown. Ex parte Auto- Owners Ins. Co., 548 So. 2d 1029 (Ala. 1989).
This Court has held that the obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert c
Page 1 2 3 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|