Bookmark
PDF
Share
CaseIQ

EX PARTE PALMER

Court of Civil Appeals of Alabama.

Dec 13, 1989

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Case Summary: Ex parte Selena Ann Baggett Palmer (Re Gregory Scott Palmer v. Selena Ann Baggett Palmer)

Factual and Procedural Background

This opinion arises from a petition for a writ of mandamus filed in the Court of Civil Appeals of Alabama on December 13, 1989 (Civ. 7294). The petitioner (Selena Ann Baggett Palmer) originally filed in the circuit court a motion for an order of attachment after two subpoenaed witnesses failed to appear at a scheduled hearing. The trial court denied the motion for attachment, citing the authority of Clark v. State ex rel. Williams, 527 So.2d 1306 (Ala.Civ.App. 1988). The petitioner then sought mandamus relief from the Court of Civil Appeals to compel the trial court to compel the witnesses by attachment. Counsel of record for the appellant are Carl E. Chamblee, Jr. and G. Edward Coey; there was no appearance for the appellee in the published opinion.

Legal Issues Presented

Whether Rule 45(f) of the Alabama Rules of Civil Procedure supersedes and abolishes the statutory remedy of attachment for absent subpoenaed witnesses in civil cases (specifically § 12-21-182, Code 1975), as suggested by Clark v. State ex rel. Williams.
Whether the availability of contempt proceedings under Rule 45(f) precludes the alternative remedy of attachment provided by statute.
Whether a writ of mandamus is appropriate to compel the trial court to compel witnesses by attachment—i.e., whether mandamus may be used to require a trial court to exercise its discretion concerning attachment of subpoenaed witnesses.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Clark v. State ex rel. Williams, 527 So.2d 1306 (Ala.Civ.App. 1988)	Held that Rule 45(f) superseded § 12-21-182 in civil cases, adopting the federal rule that authorizes contempt rather than attachment for failure to obey a subpoena.	The trial court relied on Clark to deny attachment. The Court of Civil Appeals overruled Clark to the extent it conflicts with the present opinion, concluding Rule 45(f) does not abolish the attachment remedy but provides an additional discretionary alternative.
In re Tarpley, 293 Ala. 137, 300 So.2d 409 (1974)	Established that the existence of a statutory remedy for dealing with a defaulting witness does not preclude the trial court from imposing contempt penalties.	The court analogized Tarpley to conclude that the existence of contempt as an alternative under Rule 45(f) does not abolish the statutory attachment remedy in § 12-21-182(a), Code 1975.
Ex parte Rogers, 533 So.2d 245 (Ala. 1988)	Mandamus requires a clear right to relief and the absence of any other adequate remedy; the right enforced must be peremptory rather than an act of judicial discretion.	Used to state the standard for issuing an extraordinary writ of mandamus and to frame the threshold analysis whether mandamus is appropriate in this case.
Ex parte Adams, 514 So.2d 845 (Ala. 1987)	Mandamus will not compel a trial court to exercise its discretion in a particular manner but may be used to compel the court to exercise its discretion.	Applied to justify granting a limited writ that requires the trial court to exercise its discretion concerning attachment without directing the specific outcome.
Lyons v. Lyons, 279 Ala. 329, 185 So.2d 121 (1966)	Holds that the right to compel a witness by attachment is not absolute but rests within the trial court's discretion.	Relied upon to reaffirm that attachment is a discretionary remedy for the trial court, supporting the view that mandamus cannot command a particular exercise of discretion.

Court's Reasoning and Analysis

The court conducted the following analysis based on the materials and authorities cited in the opinion:

Identified the immediate procedural posture: petitioner sought attachment for two subpoenaed witnesses; the trial court denied the motion relying on Clark, which had concluded that Rule 45(f) superseded the statutory attachment remedy in civil cases.
Examined Clark's statement and found it overstated the effect of Rule 45(f). The panel concluded that Rule 45(f) does not specifically abolish the statutory right to attachment found in § 12-21-182; rather, Rule 45(f) provides an additional discretionary alternative (contempt) for addressing noncompliance with subpoenas.
Emphasized textual support from Rule 45(f), which uses permissive language ("may be deemed a contempt"), indicating that contempt is not the exclusive remedy. This permissive language supported the view that Rule 45(f) does not automatically displace preexisting statutory remedies.
Noted that the predecessor statute to § 12-21-182 was not listed among statutes superseded by Rule 45 in the Appendix II of the Alabama Rules of Civil Procedure, which further supported the conclusion that Rule 45 did not expressly abolish the statutory attachment remedy.
Drew an analogy to In re Tarpley, where the supreme court held that statutory remedies for defaulting witnesses did not preclude contempt sanctions. From that analogy, the court concluded that the availability of contempt under Rule 45(f) does not abolish attachment under § 12-21-182(a).
Addressed the standards for mandamus (citing Ex parte Rogers), noting that mandamus requires a clear right and lack of adequate remedy, and must involve a peremptory duty rather than discretionary acts. The court reiterated that mandamus cannot force a court to exercise its discretion in a specified way but can compel the act of exercising discretion (citing Ex parte Adams).
Reiterated that the decision to compel a witness by attachment is itself discretionary (citing Lyons v. Lyons). Because the trial court's denial indicated it believed attachment was unavailable (i.e., the court treated the remedy as unavailable rather than exercising its discretion), the appellate court concluded mandamus was appropriate to require the trial court to reconsider and exercise its discretion concerning attachment.

Holding and Implications

Holding: WRIT GRANTED. The Court of Civil Appeals granted the petition for writ of mandamus for the limited purpose of compelling the trial court to exercise its discretion concerning the propriety of attaching the subpoenaed witnesses.

Additional operative holdings and immediate implications:

The court expressly overruled Clark v. State ex rel. Williams to the extent Clark held that Rule 45(f) superseded and abolished the statutory attachment remedy in civil cases. The panel held that Rule 45(f) does not abolish the statutory remedy of attachment found in § 12-21-182(a), Code 1975, but instead provides an additional discretionary alternative (contempt).
The trial court is required to exercise its discretion anew regarding whether attachment of the subpoenaed witnesses is proper; however, the appellate court did not direct the trial court to enter an attachment order or otherwise prescribe the particular outcome of that discretionary ruling.
Because the opinion frames attachment as a discretionary remedy and confines mandamus to compelling the exercise of discretion, the decision does not mandate a specific substantive result (i.e., it does not order the witnesses to be attached), but it changes the legal understanding available to trial courts by clarifying that attachment remains an available statutory remedy alongside contempt under Rule 45(f).

Note: The court's ruling is limited in scope to the legal question of availability of the attachment remedy and to ordering the trial court to exercise its discretion; it does not itself order the attachment of the witnesses.

Opinion by ROBERTSON, Judge. INGRAM, P.J., and RUSSELL, J., concur.

Show all summary ...

ROBERTSON, Judge.

This case involves a petition for writ of mandamus.

Petitioner filed a motion for order of attachment in the circuit court in response to the failure to appear at a scheduled hearing of two subpoenaed witnesses. The trial court denied petitioner's motion of attachment on the authority of Clark v. State ex rel. Williams, 527 So.2d 1306 (Ala.Civ.App. 1988). Petitioner now seeks a writ of mandamus from this court ordering the trial court to compel the witnesses by attachment. Clark, the case relied on by the trial judge, provides in pertinent part:

"Attachments of absent subpoenaed witnesses are still authorized in criminal cases by § 12-21-182 of the Alabama Code, but, as to civil cases, that code section is superseded by Rule 45(f), Alabama Rules of Civil Procedure, which adopted the federal rule that authorizes contempt proceedings for the failure of a person to obey a subpoena served upon him."

Although the above quoted language indicated that Rule 45(f) superseded § 12-21-182, Code 1975, Rule 45(f) does not specifically abolish the right of attachment of absent subpoenaed civil witnesses. Instead, we find that it provides an additional discretionary alternative, and we overrule Clark, supra, to the extent that it conflicts with this opinion.

"Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued." (emphasis added)

A.R.Civ.P., Rule 45(f).

Our conclusion is further supported by the fact that the predecessor section to § 12-21-182, which is Title 7, § 452, Code 1940 (recompiled 1958), is not among those sections enumerated by the supreme court as being superseded by Rule 45, A.R.Civ.P. See, A.R.Civ.P., Appendix II, Statutes and Rules Superseded (West 1989).

Finally, we note that in the case of In re Tarpley, 293 Ala. 137, 300 So.2d 409 (1974), the supreme court determined that the existence of the statutory remedy for dealing with a defaulting witness did not preclude the trial court from imposing contempt penalties. We likewise find that the existence of the contempt alternative as provided by Rule 45(f), A.R.Civ.P., does not abolish the remedy of attachment found in § 12-21-182(a), Code 1975.

We now consider whether to grant the writ or to deny it. The extraordinary writ of mandamus should not be issued absent a finding that petitioner's right to relief is clear and, further, that no other adequate remedy exists. Ex parte Rogers, 533 So.2d 245 (Ala. 1988). For mandamus to lie, the right that petitioner seeks to have enforced must involve a peremptory duty and not an act of judicial discretion. Rogers.

In short, mandamus will not issue to compel the trial court to exercise its discretion in a particular manner; however, it will issue to compel the circuit court to exercise its discretion. Ex parte Adams, 514 So.2d 845 (Ala. 1987).

The right of the trial court to compel a witness by attachment is not an absolute and unqualified right, but rather is a matter within the trial court's discretion. Lyons v. Lyons, 279 Ala. 329, 185 So.2d 121 (1966).

Consequently, because the trial court's order denying the motion for attachment reflected its opinion that the remedy of attachment was unavailable, the writ is granted for the limited purpose of compelling the trial court to exercise its discretion concerning the propriety of the attachment of the witnesses.

WRIT GRANTED.

INGRAM, P.J., and RUSSELL, J., concur.