Ex parte Carlton Lamar Avery PETITION FOR WRIT OF MANDAMUS (In re: Carlton Lamar Avery v. Erica Nicole Avery) (Elmore Circuit Court: DR-23-900094)

Rel: August 1, 2025

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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
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Ex parte Carlton Lamar Avery

PETITION FOR WRIT OF MANDAMUS

(In re: Carlton Lamar Avery

v.

Erica Nicole Avery)

(Elmore Circuit Court: DR-23-900094)

BOWDEN, Judge.

Carlton Lamar Avery has filed a petition for a writ of mandamus

asking this court to order the Elmore Circuit Court, which has already

held a trial in the underlying matter, to refrain from entering a judgment
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and to rule on his motions to enforce a pretrial-mediation order. Because

Avery's petition was not filed within a reasonable time, we dismiss the

petition.

According to the petition, this is a "domestic relations case," in

which, on November 17, 2023, the circuit court entered an order requiring

the parties to participate in mediation ("the pretrial-mediation order").

Despite the pretrial-mediation order, no mediation occurred. At some

point, the circuit court entered a stay and later lifted the stay in April

2024. Avery alleges that he filed motions to enforce the pretrial-

mediation order on or about May 1, 2025; however, the circuit court held

a trial on May 22, 2025, allegedly without having ruled on his motions.

Avery filed his petition for a writ of mandamus on June 3, 2025, after the

trial and approximately 14 months after the case had been returned to

the circuit court's active docket. In essence, Avery is asking us to order

the circuit court not to issue a final judgment in a case that has already

been tried and to order the circuit court to rule on motions to compel the

parties to participate in mediation. We find it unnecessary to reach the

merits of the petition, because we deem it to be untimely.

It is well settled under Alabama law that

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" '[a] writ of mandamus is an extraordinary remedy
available only when the petitioner can demonstrate : " '(1) a
clear legal right 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) the
properly invoked jurisdiction of the court. ' " ' "

Ex parte Hood, 401 So. 3d 251, 255-56 (Ala. 2024) (quoting Ex parte

Alabama Dep't of Corr., 252 So. 3d 635, 636 (Ala. 2017), quoting in turn

Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003), quoting in turn Ex parte

BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001)). "This court has

considered petitions for the writ of mandamus seeking an order directing

that a pending motion be ruled on when there was no adverse ruling by

the lower court." Ex parte T.A.W., 293 So. 3d 430, 432 (Ala. Civ. App.

2019). Nonetheless, a party must still file a mandamus petition "within

a reasonable time." Ala. R. App. P. 21(a)(3). Rule 21 defines the

presumptively reasonable time to file a mandamus petition, but there is

no presumptively reasonable time to file a mandamus petition when it is

based on a trial court's failure to rule on a matter. See Muellen v. Ritter,

96 So. 3d 863, 867 n.1 (Ala. Civ. App. 2012).

" ' "A petition for a writ of mandamus based on a trial
court's failure to rule on a matter does not have a benchmark
date from which to begin [to] measure a reasonable time.
Thus, [Rule 21(a)(3), Ala. R. App. P.], setting the
presumptively reasonable time within which to file a petition,

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will not affect the determination of what is a reasonable time
for filing a petition based on the failure to rule." ' "

Id. (quoting Ex parte Davis, 834 So. 2d 830, 832-33 (Ala. Crim. App.

2002), quoting in turn Committee Comments to Amendments to Rule

21(a) and 21(e)(4), Ala. R. App. P., Effective September 1, 2000).

Although the presumptively reasonable time of Rule 21 does not apply

here, the Committee Comments to Amendments to Rule 21(a) and

21(e)(4) Effective September 1, 2000 ("the Committee Comments"),

provide factors to determine if a mandamus petition is filed within a

reasonable time, regardless of whether the mandamus petition has been

filed outside or within the presumptively reasonable time, and we find

those factors instructive in determining whether Avery's mandamus

petition was filed within a reasonable time in this case. The Committee

Comments provide, in pertinent part:

"In a particular case, an appellate court may find a
petition challenging a ruling of the trial court to be untimely
even though it is filed within [the presumptively reasonable
time], as, for example, when the petition is filed shortly before
trial, yet several days or even weeks after the adverse ruling.
Consequently, the better practice is to include in the petition
a description of the circumstances constituting good cause for
any delay, although the amended rule mandates such a
showing only when the petition is filed beyond the time for
taking an appeal from the ruling.

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"To determine whether the circumstances warrant the
appellate court's accepting a petition filed beyond the
presumptively reasonable time established in this rule, the
court should weigh factors such as the prejudice to the
petitioner of the court's not accepting the petition and the
prejudice to the opposing party of the court's accepting it; the
impact on the timely administration of justice in the trial
court; and whether the appellate court has pending before it
other proceedings relating to the same action, and as to which
the jurisdiction of the appellate court is unchallenged."
This court addressed the issue of the timeliness of a petition for a

writ of mandamus seeking to require a trial court to rule on a matter in

Ex parte Williams, 183 So. 3d 186 (Ala. Civ. App. 2015). In that case, the

petitioner ("the mother") sought an order from this court directing the

trial court to enter a final judgment of divorce incorporating settlement

agreements between the parties. Id. at 187. The parties had apparently

entered into two separate settlement agreements during the course of the

litigation. Neither settlement agreement had been acted upon or

incorporated into an order by the trial court in Williams, although the

mother had filed motions seeking enforcement of the settlement

agreements in November 2013 and October 2014, respectively. In

January 2015, the trial court set the case for a final hearing to be held on

April 21, 2015. On that date, the day of trial, the mother filed a petition

for a writ of mandamus in this court seeking an order directing the trial

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court to enter a final divorce judgment incorporating the settlement

agreements. Id. In determining that the mother's petition was untimely,

this court stated:

"In her petition, the mother seeks an order from this
court requiring the trial court to enforce the 2013 settlement
agreement, which she first sought enforcement of in
November 2013, 17 months before the mother filed her
petition in this court. The mother did not seek mandamus
review of the trial court's failure to rule on her multiple
motions to enforce either settlement agreement in either 2013
or 2014. She participated in at least two hearings after filing
her initial motion seeking enforcement of the 2013 settlement
agreement, one of which, she alleges, produced the 2014
settlement agreement that she last sought enforcement of by
a motion filed on October 10, 2014, in the trial court. Despite
having knowledge in January 2015 that the divorce action
was set for a 'final hearing on any and all issues' on April 21,
2015, the mother waited until the day of trial to file her
petition for the writ of mandamus."

Id. at 188-89.

In Williams, this court denied mandamus relief, holding, in part,

that the petition was untimely because it had been filed on the day of

trial. In this case, Avery waited until after the trial to seek mandamus

relief. Although there are scenarios in which a litigant, because of unfair

surprise or another reason, might be excused for such a dilatory filing,

the facts of this case do not support Avery's inaction. In short, it is not

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reasonable for a litigant who seeks to compel a trial court to take certain

pretrial actions that would substantially affect the outcome of the

litigation to wait until after a trial to seek assistance in the form of a

petition for a writ of mandamus. Allowing the use of an "extraordinary

remedy" under these circumstances surely has a negative "impact on the

timely administration of justice in the trial court." See Committee

Comments. It naturally follows that a petition for a writ of mandamus

that ultimately seeks to compel the trial court to backtrack and force the

parties to mediate after the trial has concluded is untimely. 1 Accordingly,

we hold that in this case Avery's mandamus petition was not filed within

a "reasonable time" and is due to be dismissed. Ala. R. App. P. 21(a)(3).

PETITION DISMISSED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

1If Avery had a right to force mediation, he may assert the denial of

that right as error in a direct appeal. See Ex parte Jones, 338 So. 3d 198
(Ala. Civ. App. 2021).
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