EX PARTE FIRST USA BANK, 840 So.2d 137 (Ala. 2002)

Ex parte First USA Bank, N.A. (In re: Wilbur Leroy Davis v. First USA Bank, N.A.).

No. 1000692.Supreme Court of Alabama.
Decided June 28, 2002.

Petition for Writ of Mandamus (Jefferson Circuit Court, Bessemer Division, CV-99-774); Dan C. King III, Judge.

Michael L. Edwards, Steven F. Casey, and Cynthia G. Burnside of Balch Bingham, L.L.P., Birmingham; and Jon B. Terry of Bains
Terry, Bessemer, for petitioner.

Lloyd W. Gathings and Honora M. Gathings of Gathings, Kennedy
Associates, Birmingham; and E.L. Brobston of Brobston Brobston, Bessemer, for respondent.

Deborah Alley Smith of Christian Small, L.L.P., Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.

JOHNSTONE, Justice.

WRIT DENIED.

MOORE, C.J., and BROWN, J., concur.

HOUSTON, SEE, LYONS, HARWOOD, and WOODALL, JJ., concur specially.

STUART, J., dissents.

HOUSTON, Justice (concurring specially).

I join Justice Lyons’s special concurrence.

Based on the material before this Court at this time, I cannot hold that the trial court abused its discretion in permitting the amendment to the complaint. If upon the trial of this action, a judgment exceeding $75,000, exclusive of interest and costs, is entered in favor of the plaintiff and against the defendant, and the facts in the record show an abuse of 28 U.S.C. § 1441, then this Court can take the necessary action to prevent such abuse. See Auto-Owners Ins. Co. v. Abston, 822 So.2d 1187, 1192 n. 3 (Ala. 2001).

Page 138

LYONS, Justice (concurring specially).

The petitioner seeks relief from the trial court’s order allowing an amendment of the ad damnum clause more than one year after commencement of the action. The original complaint sought damages in the amount of $74,900, just $100.01 less than the jurisdictional amount necessary for removal to federal court. See 28 U.S.C. § 1332(a).

I find no abuse of discretion in allowing the amendment. I therefore concur to deny the petition. However, the Standing Committee on Alabama Rules of Civil Procedure should address the question of amendments either increasing the amount in controversy or removing a stated amount in controversy after the expiration of the one-year period for removal provided by 28 U.S.C. § 1446(h). See, e.g., Ark.R.Civ.P. 8(a) (demand for an unspecified amount limits recovery to a sum less than the amount required for federal court jurisdiction) or S.C. R. Civ. P. 8(a) (a party pleading a stated sum as an upper limit thereby limits that party’s claim).

HOUSTON, SEE, HARWOOD, and WOODALL, JJ., concur.