Rel: October 16, 2026
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, 2026-2027
SC-2026-0083
Ex parte UOP, LLC; Honeywell International, Inc.; and Mark
Smith
PETITION FOR WRIT OF MANDAMUS
(In re: Southern Logistics, Inc., and Richland Resources, LLC
v.
UOP, LLC; Honeywell International, Inc.; Environmental
Business Specialists, LLC; and Mark Smith)
(Monroe Circuit Court: CV-24-900140)
McCOOL, Justice.
SC-2026-0083
UOP, LLC ("UOP"); Honeywell International, Inc. ("Honeywell");
and Mark Smith (collectively referred to as "the UOP defendants") have
petitioned this Court for a writ of mandamus. That petition asks this
Court to direct the Monroe Circuit Court to (1) promptly rule on the UOP
defendants' motion to dismiss the complaint filed against them by
Southern Logistics, Inc. ("SLI"), and Richland Resources, LLC
("Richland") (collectively referred to as "the plaintiffs"), and (2) vacate its
January 6, 2026, order ("the January discovery order"), which requires
the UOP defendants to provide the plaintiffs with certain discovery
before the circuit court will rule on the motion to dismiss. For the reasons
set forth herein, we grant the petition and issue the writ. 1
1Environmental Business Specialists, LLC ("EBS"), is also a
defendant in this case and also has a motion to dismiss that is currently
pending in the circuit court, but EBS did not join the UOP defendants'
petition for a writ of mandamus. After this Court ordered answers and
briefs, EBS filed an answer to the petition, in which it adopted the UOP
defendants' arguments and their requested relief. However, if EBS
intended for that an answer to serve as its own petition for a writ of
mandamus, the petition is untimely because EBS filed it almost four
months after the circuit court issued the January discovery order and did
not include any explanation for the late filing. See Ex parte Jefferson
Cnty. Bd. of Educ., 430 So. 3d 26, 30 (Ala. 2025) (noting that "the
presumptively reasonable time for filing a mandamus petition is 42 days
after the entry of the order from which relief is sought" and that, " '[i]f a petition is filed outside this presumptively reasonable time, it shall
include a statement of circumstances constituting good cause for the
2
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Facts and Procedural History
The litigation in this case stems from several related business
relationships among the various corporate plaintiffs and corporate
defendants, which, at times during the last 20 years, have each played a
role in the removal and repurposing of ammonium nitrate water from a
landfill in Mobile County. In October 2024, the plaintiffs filed in the
circuit court a complaint against the UOP defendants and Environmental
Business Specialists, LLC ("EBS"), in which they asserted multiple
counts of breach of contract, multiple counts of intentional interference
with a business relationship, and one count of conspiracy. In short, the
crux of the plaintiffs' complaint is that the UOP defendants and EBS
"disrupt[ed] long-standing contracts and business relationships of the
plaintiffs, cutting the plaintiffs out of a set of business relationships they
created and then spent years refining and developing."
There are several contracts at issue in this case, but the contract
that is relevant to this petition is a contract that SLI and Honeywell
executed in September 2013 ("the 2013 contract"). The 2013 contract
appellate court to consider the petition' " (quoting Rule 21(a)(3), Ala. R. App. P.)).
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required Honeywell and UOP, of which Honeywell owns "a controlling
interest," to protect certain confidential information for a period of 10
years following the termination of the contract. According to the
plaintiffs, Honeywell terminated the 2013 contract in August 2024, and
one of the plaintiffs' breach-of-contract claims alleges that the UOP
defendants breached that contract by sharing confidential information
with EBS, which "allowed [the UOP defendants] to secretly work around,
cut out and eliminate [the plaintiffs] from the existing business
relationship."
In December 2024, the UOP defendants took the necessary steps to
remove the case to the United States District Court for the Southern
District of Alabama. However, on the plaintiffs' motion, the district court
remanded the case back to the circuit court in June 2025. In early July
2025, SLI filed notice of its intent to serve several nonparty subpoenas
and also served the UOP defendants with interrogatories and requests
for production.
On July 15, 2025, the UOP defendants filed a motion to dismiss the
complaint on the basis of improper venue. See Rule 12(b)(3), Ala. R. Civ.
P. The UOP defendants also argued that the plaintiffs' tort claims fail to
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state a claim upon which relief can be granted and should therefore be
dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P. (EBS also filed a
motion to dismiss the complaint on those same grounds.) In support of
their venue argument, the UOP defendants noted that the 2013 contract
contained an "explicit contractual agreement that any dispute arising out
of or relating to [the 2013 contract] shall be brought exclusively in the
state or federal courts sitting in New York, New York." Thus, according
to the UOP defendants, venue for this case is not proper anywhere in
Alabama. Alternatively, the UOP defendants argued that, even if venue
is proper in Alabama, it is not proper in Monroe County because, they
said, "[n]one of [the] actionable conduct occurred in Monroe County."
That same day, the UOP defendants filed an objection to SLI's nonparty
subpoenas and a motion to "stay all merit-based discovery," arguing that
the plaintiffs "should not be permitted … to conduct merit-based
discovery until such time as the issues outlined in the … motion to
dismiss are resolved." A hearing on the UOP defendants' motion to
dismiss was scheduled for October 3, 2025.
It appears that the UOP defendants' deadline for responding to
SLI's interrogatories and requests for production was July 31, 2025. Ten
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days before that deadline, the UOP defendants' counsel asked SLI's
counsel if he would "have any issue with agreeing to extend the response
time … pending the results of [the UOP defendants'] motions." SLI's
counsel agreed to a "brief extension … as a professional courtesy," but he
stated that he planned to oppose the UOP defendants' motion to stay
discovery and, moreover, claimed that the requested discovery "will be
relevant to the venue issue."
On the morning of July 29, 2025, the UOP defendants' counsel
proposed a discovery compromise, which was that SLI's counsel "identify
which interrogatories and [requests for production] SLI believes are
pertinent for venue issues by … July 31, 2025, and [the UOP defendants]
w[ould] work to … have responses to [SLI] no later than August 28,
2025." Later that morning, SLI's counsel rejected the compromise,
claiming that all of SLI's requested discovery was "potentially relevant
to the venue motion[]" and that SLI was not willing to "self-limit [its]
discovery."
On the evening of July 29, 2025, the UOP defendants' counsel sent
SLI's counsel an email in which he disputed the notion that all of SLI's
requested discovery was relevant to the venue issues. In fact, the UOP
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defendants' counsel argued, none of SLI's requested discovery was
relevant to the issue of the applicability of the forum-selection clause, and
only very limited discovery was necessary to respond to the argument
that venue is not proper in Monroe County. The UOP defendants' counsel
stated, however, that if SLI's counsel could "articulate a reasonable basis
for how any of [the requested] discovery might be relevant to the venue
issues …, then we may reconsider." The UOP defendants' counsel also
stated:
"Given the impending deadlines, we will proceed with filing a
motion for a protective order limiting discovery to the pending
venue issues. Please do not misunderstand this filing as
unwillingness to continue to work with you on discovery
which is legitimately related to the venue issues …. The
proposal made earlier today still stands, and we will continue
working to provide you with responses and documents related
to the venue issues, but that process would be much more
fruitful with your legitimate participation rather than a
baseless blanket insistence that all discovery is relevant to
the venue issues when it clearly is not."
There is no indication that SLI's counsel replied to that email, and,
approximately 20 minutes later, the UOP defendants filed a motion for a
protective order, in which they asked the circuit court to "limit[] discovery
solely to … the venue issues." In support of that motion, the UOP
defendants alleged that the plaintiffs had "made it clear that they
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intend[ed] to push forward with full, unlimited merit-based discovery."
The UOP defendants argued, though, that, "when a motion challenging
venue is pending," a circuit court must "prioritize the venue issue over
any merits-based discovery matters" and "is within its sound discretion
to limit discovery to issues directly impacting the venue analysis."
It appears that, in accordance with the July 31, 2025, discovery
deadline, the UOP defendants provided the plaintiffs with "objections
and incomplete responses to the first set of interrogatories and requests
for production served by SLI." According to the plaintiffs, the UOP
defendants' "core objections track[ed] the grounds stated in the motion to
stay discovery," i.e., that the only discovery that is proper while their
motion to dismiss remains pending is discovery that is relevant to the
venue issues.
On August 12, 2025, the circuit court issued an order denying the
UOP defendants' motion to stay discovery and directing the issuance of
SLI's nonparty subpoenas. However, although the circuit court denied
the motion to stay discovery, it did not compel the UOP defendants to
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provide any discovery and did not address their motion for a protective
order. 2
It appears that the circuit court held a hearing on September 3,
2025, at which the court "ordered that [the] plaintiffs will be allowed to
conduct discovery," and, according to the plaintiffs, the UOP defendants
"represented … that they w[ould] be serving supplemental discovery
responses in the near future." Later that month, the plaintiffs filed a
motion to continue the hearing scheduled for October 3, 2025, because,
they said, they would "need time to analyze those responses and
determine what additional discovery they w[ould] need to conduct."
According to the plaintiffs, the UOP defendants did not object to a
continuance, and the circuit court rescheduled the hearing on the UOP
defendants' motion to dismiss for December 5, 2025. On September 25,
2025, the circuit court denied the UOP defendants' motion for a protective
order.
2The August 12, 2025, order instructed the UOP defendants to
submit a proposed protective order, but that proposed order was to be an
order intended to protect confidential information, not an order intended
to limit discovery to the venue issues.
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On October 27, 2025, SLI filed a motion to compel discovery,
alleging that the UOP defendants had not provided the supplemental
discovery that they had promised during the September 3, 2025, hearing.
The circuit court apparently did not take any action in response to that
motion, and, on November 13, 2025, SLI renewed its motion to compel,
alleging that the UOP defendants had still not provided any
supplemental discovery. SLI also asked for a continuance of the
December 5, 2025, hearing given the UOP defendants' alleged refusal to
provide supplemental discovery. Later that day, the circuit court
rescheduled the hearing for December 19, 2025, but the court did not
order the UOP defendants to provide any further discovery.
On December 10, 2025, the UOP defendants provided supplemental
responses to SLI's interrogatories, but they objected to almost all the
interrogatories on the ground that they were "premature." Specifically,
the UOP defendants argued that the information sought by the
interrogatories was "not reasonably related to the venue challenges," and
they provided only the information that, in their opinion, was "reasonably
related to venue-specific issues." That same day, the UOP defendants
filed a second motion for a protective order, in which they again asked
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the circuit court to "limit[] discovery solely to … the venue issues." In
support of that motion, the UOP defendants argued that the discovery
they had provided gave the plaintiffs "sufficient information … to fully
evaluate and respond to the [UOP] defendants' venue challenges." Thus,
according to the UOP defendants, "until such time as the venue
challenges are resolved, no further merit-based discovery … is warranted
or necessary."
On December 17, 2025 -- two days before the circuit court was
scheduled to hold a hearing on the UOP defendants' motion to dismiss --SLI filed a response to the motion. In that response, SLI argued that the
forum-selection clause in the 2013 contract should not be enforced for
several reasons, and it set forth in detail its argument that the discovery
it had been provided, including discovery from EBS, demonstrates that
venue is proper in Monroe County. The plaintiffs also argued that there
is no merit to the UOP defendants' contention that their tort claims fail
to state a claim upon which relief can be granted.
The circuit court held a hearing on December 19, 2025, but it did
not rule on the UOP defendants' motion to dismiss because SLI's counsel
"claimed to need the depositions of certain witnesses before [the]
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plaintiffs could adequately respond to" the motion. However, the UOP
defendants contend that the plaintiffs did not identify any witnesses they
needed to depose, and the plaintiffs have not disputed that contention in
their answers to the petition. According to the UOP defendants, the
circuit court
"directed the parties to confer and conduct certain depositions
before it reset the pending motion[] to dismiss for a hearing in
March at which time the court intends to address and rule on
the motion[], regardless of which depositions have or have not
been completed at that time. The court then directed SLI's
counsel to prepare and circulate a proposed order with [the
UOP] defendants' counsel consistent with that ruling."
On December 31, 2025, SLI sent the UOP defendants a proposed
discovery order, which listed seven witnesses that "the plaintiffs claim
they need to depose before addressing the [UOP] defendants' motion[] to
dismiss." SLI did not make clear in the proposed order, nor have the
plaintiffs made clear in their answers to the petition, whether those
depositions were necessary to respond to the UOP defendants' venue
arguments, their Rule 12(b)(6) arguments, or both. SLI's proposed order
did not include a date for holding a hearing on the UOP defendants'
motion to dismiss but, instead, provided that, "[f]ollowing the conclusion
of these depositions, the parties shall submit a report to the court
12
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regarding the court's need to set a hearing for the pending motion[] to
dismiss."
Two days later, the UOP defendants "returned the … proposed
order with … suggested edits" and provided a "detailed explanation" as
to "why certain depositions should not be conducted at this juncture."
Specifically, the UOP defendants claimed that "there is no need to
conduct any depositions at this stage because no discovery activities or
depositions will assist the court in addressing the enforcement of the
forum-selection clause." Nevertheless, "in the spirit of cooperation," the
UOP defendants agreed to "make [two of those seven witnesses] available
for their depositions" because those two witnesses -- one of whom is Smith
-- can arguably provide testimony relevant to the venue issues. However,
the UOP defendants argued that the other five witnesses have "nothing
to offer as it pertains to" the venue issues, and, thus, they "would not
agree to make [those five witnesses] available prior to a ruling on the
motion[] to dismiss." The UOP defendants indicated that they would
reconsider that position if SLI could "articulate a reason to conduct [those
five] deposition[s] that is reasonably related to the venue challenges," but
there is no indication that SLI attempted to provide such an explanation.
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The UOP defendants also objected to "the ambiguous submission of
a report at a future date 'following the conclusion of these depositions.' "
According to the UOP defendants, that was not the circuit court's " 'intent
that [was] expressed from the bench,' " and they proposed the following
language that, they said, would be consistent with the court's intent:
"The case is re-set for a hearing on the defendants'
pending motion[] to dismiss on March __, 2026. The parties
shall make all good faith efforts to complete the above
discovery/depositions prior to that date. The court will take
the motion[] to dismiss under submission and rule thereon
following the March __, 2026, hearing, regardless of whether
these discovery activities/depositions have been completed at
the time of the hearing."
However, according to the UOP defendants, SLI "indicated [it] would
submit the proposed order … without accepting any of the … proposed
changes." The UOP defendants also submitted a proposed discovery
order to the circuit court, which was consistent with the revisions they
had recommended to SLI's proposed order.
On January 6, 2026, the UOP defendants filed a brief in support of
their motion to dismiss and their second motion for a protective order. In
that brief, the UOP defendants continued to argue that discovery should
be limited to the venue issues until such time as the circuit court ruled
on their motion to dismiss, and they argued that the court should "set a
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firm March hearing date in order to more expeditiously address these
threshold [issues] which have been pending for nearly six months."
Doing so, they argued, would "more accurately align with applicable
Alabama law."
Approximately 30 minutes after the UOP defendants filed that
brief, the circuit court issued the January discovery order, which is a
verbatim copy of SLI's proposed order. The January discovery order
provides, in relevant part, that the parties are to "[c]omplete the
responses to the interrogatories and requests for production" and are to
conduct the depositions of the seven witnesses identified by SLI. That
order also states that the UOP defendants' motion to dismiss "REMAINS
PENDING" and that, "[f]ollowing the conclusion of these depositions, the
parties shall submit a report to the court regarding the court's need to
set a hearing for the pending motion[] to dismiss." (Capitalization in
original.)
On February 17, 2026, the UOP defendants filed a petition for a
writ of mandamus, asking this Court to direct the circuit court to (1)
promptly rule on their motion to dismiss the complaint and (2) vacate the
January discovery order. The UOP defendants also filed a motion to stay
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the circuit-court proceedings, and this Court granted that motion on
April 7, 2026.
Standard of Review
" ' "Mandamus is a drastic and extraordinary writ, to be issued
only where 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 Integon Corp., 672 So. 2d
497, 499 (Ala. 1995).' "
Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371, 373
(Ala. 2012) (citations omitted). A writ of mandamus will lie to compel a
trial court to exercise its discretion but generally will not lie to compel
the exercise of that discretion in a particular manner. Ex parte Seaman
Timber Co., 850 So. 2d 246, 256 (Ala. 2002).
Analysis
The UOP defendants seek a writ of mandamus directing the circuit
court (1) "to promptly rule on [their] motion to dismiss" and (2) "to vacate
[the January discovery] order compelling merits discovery and denying
[their] motion for protective order." Petition, pp. 22, 27. Before
addressing those arguments, however, we must first address the
plaintiffs' argument that this Court has no jurisdiction over the UOP
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defendants' petition because, according to the plaintiffs, the petition is
untimely.
I. The Timeliness of the UOP Defendants' Petition
It is well settled that "the presumptively reasonable time for filing
a petition for a writ of mandamus shall be the same time as that for
taking an appeal, which, in a civil case, is usually 42 days." Ex parte
State Farm Mut. Auto Ins. Co., 893 So. 2d 1111, 1113 (Ala. 2004). In this
case, the UOP defendants seek relief from the January discovery order,
which the circuit court issued on January 6, 2026, and they filed their
petition for a writ of mandamus on February 17, 2026 -- 42 days after the
circuit court issued that order. Thus, the UOP defendants filed their
petition within the presumptively reasonable time.
The plaintiffs argue, though, that the UOP defendants should have
filed their petition within 42 days of the circuit court's September 25,
2025, order, which denied the UOP defendants' first motion for a
protective order. In support of that argument, the plaintiffs cite Ex parte
Gentiva Health Services, Inc., 8 So. 3d 943, 948 (Ala. 2008), in which this
Court stated that "[t]he presumptively reasonable time for filing a
petition for writ of mandamus in a case in which a motion for a protective
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order has been filed begins to run on the date the trial court denies the
motion."3
However, after the circuit court denied the UOP defendants' first
motion for a protective order, they filed a second motion for a protective
order more than four months later, and it is the denial of the second
motion, i.e., the January discovery order, that they challenge in their
petition to this Court. We also note that the second motion was not
merely a request for the circuit court to reconsider its denial of the first
motion. Rather, the UOP defendants filed the second motion after
providing the plaintiffs with supplemental discovery, which, according to
them, had given the plaintiffs "sufficient information … to fully evaluate
and respond to the [UOP] defendants' venue challenges" -- an argument
they had not raised in the first motion. In other words, at the time the
UOP defendants filed their second motion for a protective order, the
circumstances of the case had changed. Thus, although nothing
prevented the UOP defendants from seeking mandamus relief directed
3The plaintiffs also suggest that the UOP defendants should have
filed their petition within 42 days of the circuit court's August 12, 2025, order, but that order did not deny the UOP defendants' motion for a
protective order; it merely denied their motion to stay discovery and
ordered the issuance of SLI's nonparty subpoenas.
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at the denial of their first motion for a protective order, the fact that they
chose not to do so does not prohibit them from seeking mandamus relief
directed at the denial of their second motion for a protective order. Cf.
Ex parte Profit Boost Mktg., Inc., 254 So. 3d 862, 868 (Ala. 2017) (holding
that a petition for a writ of mandamus was timely, even though it had
not been filed within 42 days of the denial of the petitioner's first motion
to dismiss, because it had been filed within 42 days of the denial of the
petitioner's second motion to dismiss, which was more than "a mere
request for reconsideration of the trial court's original denial").
II. The Merits of the UOP Defendants' Petition
The UOP defendants argue that the circuit court "should be
directed to promptly rule on [their] motion to dismiss challenging venue"
and "should be directed to vacate [the January discovery] order
compelling merits discovery and denying [their] motion for protective
order." Petition, pp. 22, 27. In support of their argument, the UOP
defendants rely on this Court's decisions in Ex parte International Paper
Co., 263 So. 3d 1035 (Ala. 2018), and Ex parte Nationwide Agribusiness
Insurance Co., 276 So. 3d 674, 678 (Ala. 2018), which, they say, involved
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circumstances that were "virtually identical" to the circumstances of this
case. Petition, p. 23.
In International Paper, several defendants, collectively referred to
as "IPC," filed a motion to dismiss the complaint that had been filed
against them, which alleged that they had breached their contract with
the plaintiff. In support of that motion, IPC relied on a forum-selection
clause in the contract, which provided that Tennessee courts had
exclusive jurisdiction over any disputes related to the contract. Without
having ruled on that motion, the trial court set a discovery deadline of
February 28, 2018, and scheduled the trial for May 21, 2018. Well in
advance of the discovery deadline, IPC filed a motion to delay the trial
"pending a ruling on IPC's motion to dismiss." 263 So. 3d at 1037.
Several weeks before the discovery deadline, the trial court denied the
motion to continue and stated that it would " 'continue to take the
[m]otion to [d]ismiss under advisement.' " Id. IPC then sought
mandamus relief, asking this Court "to direct the [trial] court to rule on
its motion to dismiss." Id. In support of its petition, IPC argued, as the
UOP defendants argue here, that it should not be required to participate
in the litigation process until its venue challenge had been resolved. This
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Court agreed with IPC and issued the writ of mandamus, based on the
following analysis:
"In the present case, the [trial] court left pending IPC's
motion to dismiss asserting improper venue, but ordered that
final discovery on the merits was to be completed by February
28, 2018, that all motions for a summary judgment were to be
filed by March 26, 2018, and that the trial was to be held on
May 21, 2018. IPC argues that venue is a threshold issue,
citing Thompson v. Skipper Real Estate Co., 729 So. 2d 287
(Ala. 1999) (noting, in discussion of issue whether defendant
had substantially invoked the litigation process, that a
defendant has a right to determine venue before asserting a
demand for arbitration), and Ex parte Windom, 776 So. 2d 799
(Ala. 2000) (holding that venue is a threshold matter that
must be raised at the beginning of litigation and that a trial
court should rule on a motion for a change of venue as
expeditiously as possible). … IPC argues that requiring it to
participate in the litigation process while failing to rule on the
motion to dismiss requires that it either waive the right to
conduct discovery and to formulate an adequate defense or
waive the right to enforce the outbound forum-selection
clause, based on Ex parte Spencer, 111 So. 3d 713 (Ala. 2012)
(holding that a party may waive a forum-selection clause by
substantially invoking the litigation process).
"….
"In Professional Insurance Corp. v. Sutherland, 700 So.
2d 347, 351 (Ala. 1997), this Court adopted the majority rule,
by which an 'outbound' forum-selection clause is upheld
unless the party challenging the clause clearly establishes
that it would be unfair or unreasonable under the
circumstances to hold the parties to their bargain. 700 So. 2d
at 351. The party challenging the clause can meet its burden
by clearly establishing either '(1) that enforcement of the
forum selection clause would be unfair on the basis that the
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contract was affected by fraud, undue influence, or
overweening bargaining power or (2) that enforcement would
be unreasonable on the basis that the chosen … forum would
be seriously inconvenient for the trial of the action.' 700 So.
2d at 352. 'Because "[i]t is a difficult burden to defeat a forum
selection clause[,]" Smith v. Professional Claims, Inc., 19 F.
Supp. 2d 1276, 1282 (M.D. Ala. 1998), such clauses will
usually be enforced.' Ex parte CTB, Inc., 782 So. 2d 188, 191
(Ala. 2000).
"Here, the [trial] court exceeded its discretion by failing
to rule on, and instead 'taking under advisement,' the motion
to dismiss the … complaint based on improper venue while
allowing discovery on the merits to proceed and setting
deadlines for summary-judgment motions and setting the
trial date. Therefore, we issue the writ and direct the [trial]
court to issue an order addressing the merits of IPC's motion
to dismiss based on improper venue. We express no opinion
as to whether IPC's motion should or should not be granted;
'[w]hile the writ [of mandamus] will issue to compel the
exercise of discretion by a circuit judge, it will not issue to
compel the exercise of discretion in a particular manner.' [Ex
parte] Ford Motor Credit [Co.], 607 So. 2d [169,] 170 [(Ala.
1992)]."
263 So. 3d at 1040-41 (emphasis added).
In Nationwide Agribusiness, the defendants filed a motion to
change venue in July 2018, and the trial court issued an order setting the
motion for a hearing on October 26, 2018, which was 18 days before the
trial was scheduled to begin. The defendants filed a motion to reconsider
that order, arguing that "the delay in hearing their motion would
effectively require them to complete discovery," as well as engage in other
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aspects of the litigation process, "all before their change-of-venue motion
was heard." 276 So. 3d at 677. The trial court refused to change the date
for the hearing, and the defendants then sought mandamus relief, asking
this Court to order the trial court "to promptly rule on their pending
motion for a change of venue." Id. Relying on International Paper, this
Court issued the writ of mandamus and, in support of decision, stated:
"In this case, by deferring its ruling on venue until the
pretrial hearing, the trial court effectively required that [the
defendants] complete discovery, prepare dispositive and other
pretrial motions, mediate the case, and prepare for trial before
it would resolve the venue question. Under these facts, our
analysis in International Paper controls. Venue is a threshold
matter, and, 'as a general rule, a trial court should rule on a
motion alleging improper venue as expeditiously as possible.'
Ex parte Windom, 776 So. 2d 799, 803 (Ala. 2000). Therefore,
a trial court should, generally, not wait until the pretrial
hearing to consider a motion for a change of venue.
Accordingly, we issue the writ and direct the trial court to rule
on [the defendants'] motion for a change of venue as soon as
practicable. See Ex parte Monsanto Co., 794 So. 2d 350, 356
(Ala. 2001) (directing the trial court to dispose of the motion
for a change of venue as the first order of business)."
Id. at 678 (footnote omitted).
We agree with the UOP defendants' argument that this case is
controlled by International Paper and Nationwide Agribusiness. As
those cases point out, venue is a threshold matter that should be resolved
early in the litigation process and, in any event, as soon as practicable.
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In this case, however, the UOP defendants' motion to dismiss had been
pending for almost six months when the circuit court issued the January
discovery order, and the court has ruled that the motion shall "remain[]
pending" while the UOP defendants provide the plaintiffs with extensive
discovery that reaches beyond the venue issues to the merits of the case.
(Capitalization omitted.) Indeed, the plaintiffs do not contend that the
January discovery order, which includes seven depositions, is limited to
the venue issues; in fact, they argue that the circuit court was not
required to limit discovery to the venue issues before ruling on the UOP
defendants' motion to dismiss, which essentially serves as an admission
that the required discovery extends beyond those issues. Plus, the
January discovery order requires the UOP defendants to provide
complete responses to SLI's interrogatories and requests for production,
and those interrogatories, which are attached as an exhibit to SLI's
answer to this petition, clearly seek information that extends beyond the
venue issues. Thus, in short, the circuit court has indefinitely stayed a
ruling on the UOP defendants' motion to dismiss until the parties
complete time-consuming discovery on the merits, with any future
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hearing on that motion being dependent on the plaintiffs' willingness to
agree that the time for ruling on the motion has arrived. 4
The plaintiffs make a brief attempt to distinguish International
Paper and Nationwide Agribusiness by arguing that, in those cases, the
trial court had set either a discovery deadline or a trial date, or both,
which is not the case here. However, nothing in those opinions indicates
that the setting of a discovery deadline or a trial date was a determinative
fact. Rather, the point that this Court made in each of those opinions
was that the defendants had challenged venue, yet the trial court had
ordered them to participate in the litigation process by providing
discovery on the merits of the case while their venue challenge remained
pending. That is precisely what has occurred here. Thus, we are
unpersuaded by the plaintiffs' attempt to distinguish International Paper
and Nationwide Agribusiness, and, in accord with those cases, we hold
4The plaintiffs argue that, "contrary to the UOP defendants'
arguments," the circuit court did not "give the plaintiffs unilateral control over" when the hearing on the motion to dismiss would occur. SLI's
answer, p. 37 (adopted by Richland). That much is true, but the circuit
court certainly gave the plaintiffs some control over when that hearing
will occur because the court stated that it will not hold a hearing on the
motion until the parties submit a report following the completion of
certain discovery.
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that the circuit court "exceeded its discretion by failing to rule on … the
motion to dismiss the … complaint based on improper venue while
allowing discovery on the merits to proceed." International Paper, 263
So. 3d at 1041. We therefore issue the writ of mandamus and direct the
circuit court to vacate the January discovery order and to rule on the
UOP defendants' motion to dismiss "as expeditiously as possible." Id. at
1040.
In holding that the circuit court must vacate the January discovery
order, we do not suggest that all discovery must be prohibited until such
time as the court rules on the UOP defendants' motion to dismiss. In Ex
parte Windom, 776 So. 2d 799 (Ala. 2000), the trial court issued an order
directing the parties to complete all discovery and stating that it would
schedule a hearing on the defendant's motion to transfer the action after
discovery was complete. On the defendant's petition for a writ of
mandamus, this Court ordered the trial court to vacate its discovery order
and explained that "[t]he trial court, pending its ruling on the
[defendant's] motion to transfer, should limit discovery to the venue
issue." 776 So. 2d at 804. See also Ex parte Continental Roofing Co.,
[Ms. SC-2025-0613, Feb. 27, 2026] ___ So. 3d ___, ___ n.4 (Ala. 2026)
26
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("Parties are entitled to conduct discovery related to the issue of venue.").
Thus, the circuit court may order the UOP defendants to provide the
plaintiffs with any discovery that is relevant to the venue issues,
assuming any such discovery remains outstanding. If the parties cannot
agree as to whether certain discovery is relevant to the venue issues, the
circuit court is capable of resolving any such disputes. See New York
Times Co. v. Spears, [Ms. SC-2025-0370, Apr. 10, 2026] ___ So. 3d ___,
___ (Ala. 2026) (noting that "trial courts are fully capable of resolving"
discovery disputes).
The plaintiffs correctly note that, in Windom, this Court stated that
"a blanket rule limiting discovery to the issue of venue, once a motion to
transfer has been filed, is not generally desirable," and the Court clarified
that it was "not hold[ing] that trial judges must limit discovery to the
venue issue in every case in which a transfer motion is pending." 776 So.
2d at 804. However, although there is no blanket rule to that effect,
International Paper and Nationwide Agribusiness, which are more
recent cases, indicate that the general rule is to prohibit discovery on the
merits until such time as a trial court rules on a venue challenge. See
also Ex parte Newmeyer, [Ms. CL-2026-0549, July 24, 2026] ___ So. 3d
27
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___, ___ (Ala. Civ. App. 2026) (citing International Paper and Nationwide
Agribusiness for the principle that "parties should not be expected to
participate in … discovery … before the issue of venue is resolved"). The
plaintiffs have not presented this Court with any compelling reason why
discovery in this case should not likewise be limited to the venue issues
until such time as the circuit court rules on the UOP defendants' motion
to dismiss.
Finally, we note that the plaintiffs use the bulk of their answers to
the petition to raise arguments that are directed at the enforceability and
applicability of the forum-selection clause. For example, they argue that
the 2013 contract is not the only contract that the UOP defendants have
allegedly breached and that those other contracts do not contain forumselection clauses; that the forum-selection clause is not as broad as the
UOP defendants suggest and "will not extend to all the claims outlined
in the complaint," SLI's answer, p. 32 (adopted by Richland); that
enforcing the forum-selection clause will result in "claim-splitting," id.,
i.e., "certain contract-related claims spun off to a New York forum, while
other … claims … would remain in … Monroe County," id., p. 34; that
splitting the claims in this manner will unduly prejudice the plaintiffs by
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unnecessarily increasing their litigation expenses; and that the UOP
defendants have waived enforcement of the forum-selection clause.
The problem with these arguments is that they challenge the merits
of the UOP defendants' motion to dismiss; indeed, the plaintiffs have
copied these arguments essentially verbatim from their response to that
motion. However, the issue before this Court is not whether the UOP
defendants are entitled to have their motion to dismiss granted but,
instead, is merely whether they are entitled to an expeditious ruling on
their motion without having to first provide discovery on the merits of
the case. See International Paper, 263 So. 3d at 1037 ("IPC is not asking
this Court to issue a ruling on venue. Instead, IPC seeks a writ
compelling the circuit court to rule on its pending motion to dismiss for
improper venue."). Thus, even if there is merit to these arguments -- and
we offer no opinion on that issue -- they do not provide a basis for denying
the UOP defendants' petition for a writ of mandamus.
Conclusion
The UOP defendants have a clear legal right to a prompt ruling on
their motion to dismiss, which challenges venue, before being required to
provide discovery on the merits of the case. We therefore grant their
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petition and issue a writ of mandamus directing the circuit court to
vacate the January discovery order and to rule on the UOP defendants'
motion to dismiss "as expeditiously as possible." International Paper,
263 So. 3d at 1040. Any discovery that the circuit court orders before
ruling on that motion must be limited to the venue issues raised in that
motion.
PETITION GRANTED; WRIT ISSUED.
Wise, Bryan, Sellers, Cook, and Parker, JJ., concur.
Mendheim, J., dissents, with opinion, which Stewart, C.J., joins.
Shaw, J., recuses himself.
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MENDHEIM, Justice (dissenting).
Because I cannot conclude, based on the arguments and limited
materials before us, that the circuit court has "refused" to perform any
"imperative duty," Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala.
1995); that UOP, LLC ("UOP"), Honeywell International, Inc.
("Honeywell"), and Mark Smith have demonstrated "a clear legal right"
to any order in that regard, id.; or that they timely filed their petition for
a writ of mandamus, I respectfully dissent.
Accepting the allegations of the complaint as true, the present case
does not involve only claims based on the October 2013 "Transportation,
Disposal and Recycling Agreement" between Honeywell and Southern
Logistics, Inc. ("SLI"), which contains an outbound forum-selection clause
applicable to the "disputes, controversies, or differences arising out of
[that] Agreement." Nevertheless, UOP, which is apparently owned by
Honeywell, Honeywell, and Smith, an Alabama resident and employee of
"UOP/Honeywell," after their significant delay in providing discovery
responses to SLI and Richland Resources, LLC ("RRL"), petition this
Court for a writ of mandamus directing the Monroe Circuit Court "to (1)
promptly issue an order addressing the merits of their motion to dismiss
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based on [the] outbound forum-selection clause and improper venue, and
(2) vacate those portions of its January 6, 2026 order compelling [what
they characterize as] broad merits discovery and denying [their] motion
for protective order." Petition at 7. Contrary to that characterization,
after a hearing in December 2025, UOP's counsel indicated in a letter
that the circuit court had stated that its order would be "ordering the
parties to conduct depositions which need to be taken in order for the
Plaintiffs to adequately respond to the motions [to dismiss] prior to a
hearing to be set in March [2026]," not authorizing "broad merits
discovery." Based on the materials and arguments before us, I cannot
conclude that the January 6, 2026, order at issue reflects anything other
than the circuit court's stated intent or that the circuit court has ordered
anything regarding discovery that is not otherwise within its discretion.
The petition for the writ of mandamus is based on the January 2026
order compelling UOP, Honeywell, and Smith to respond to certain
discovery requests and denying their third attempt to obtain a protective
order and a stay of any discovery that they consider to be merits-based.
Importantly, their first motion to stay and for a protective order, which
was filed on July 15, 2025, had argued that
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"the UOP Defendants have filed a Motion to Dismiss all of
Plaintiffs' claims on multiple grounds, but the most
indisputable reason for dismissal (and to stay discovery
issued through this Court) is the enforcement of the parties'
bargained for forum selection clause which calls for 'any
dispute, controversies or differences arising out of' the
contracts to be brought in New York, New York, including all
associated tort claims. [See Generally UOP Defendants’
Motion to Dismiss, pp. 6-16]. As there is no basis for this case
to be filed in Monroe County, the Plaintiffs should not be
permitted to use the authority of this Court to conduct meritbased discovery until such time as the issues outlined in the
UOP Defendants' Motion to Dismiss are resolved."
That motion for a protective order was denied by an order entered by the
circuit court on August 12, 2025, which also stated that "[d]efendants'
Motion to Stay discovery is DENIED." (Capitalization in original.) UOP,
Honeywell, and Smith sought no mandamus relief as to the August 2025
order.
UOP, Honeywell, and Smith also filed a separate motion on July
29, 2025, with extensive argument, requesting the entry of "a protective
order limiting discovery solely to issues directly impacting the venue
issue raised" by them and Environmental Business Solutions, LLC
("EBS"), in their respective motions to dismiss until the court issued a
ruling on those motions; they asserted that "this Honorable Court should
grant the UOP Defendants' motion and enter the proposed protective
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order filed herewith, limiting discovery only to matters which clearly and
directly impact the pending motions challenging the Plaintiffs'
allegations that Monroe County Circuit Court is a proper venue for this
action." Further, UOP, Honeywell, and Smith filed a motion to vacate
the August 2025 order, arguing that "ordering merit-based discovery
while a venue challenge remains pending constitutes reversible error
under Alabama law." Following a hearing in September 2025, those
motions were denied by an order entered by the circuit court on
September 25, 2025. UOP, Honeywell, and Smith sought no mandamus
relief as to the September 2025 order.
The petition for the writ of mandamus relates to yet a third attempt
to obtain a protective order and a stay of discovery, after months of
unexplained delay by UOP, Honeywell, and Smith before their December
2025 filing of supplemental responses to interrogatories and requests for
production. 5 But UOP, Honeywell, and Smith do not establish that the
5UOP, Honeywell, and Smith provided SLI and RRL with
incomplete discovery responses in July 2025. The motion to dismiss filed
by UOP, Honeywell, and Smith was set for a hearing to be held on
October 3, 2025; certain other motions were the subject of a hearing on
September 3, 2025. On September 24, 2025, SLI and RRL filed a motion
to continue the hearing scheduled for October 3, 2025, which stated:
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December 2025 supplemental responses provided information that is any
more meaningful than their incomplete discovery responses in July 2025,
which they have not provided to this Court and which were the basis for
SLI's and RRL's attempts to obtain additional discovery in relation to the
motion to dismiss.
"As grounds for this motion, Plaintiffs submit that at the
September 3, 2025, hearing on numerous pending motions,
the Court ordered that Plaintiffs will be allowed to conduct
discovery. Also at that hearing, the Court noted that the
October 3, 2025, hearing would likely need to be rescheduled
to allow sufficient time for the parties' discovery proceedings
to conclude.
"Counsel for Plaintiff [SLI] has conferred with counsel for the
UOP Defendants and Defendant EBS, all of whom confirmed
the Defendants would not be filing an opposition to this
Motion to Continue. In addition, counsel for the UOP
Defendants represented to SLI's counsel that they will be
serving supplemental discovery responses in the near future.
Plaintiffs will need time to analyze those responses and
determine what additional discovery they will need to conduct
prior to the hearing of the motions currently set for hearing
on October 3, 2025."
On September 25, 2025, the circuit court entered an order granting the
motion to continue. The hearing was reset for December 2025. UOP,
Honeywell, and Smith filed their still incomplete supplemental discovery
responses on December 10, 2025, concurrent with the filing of their third
motion for a protective order, a few days before the rescheduled hearing
on their motion to dismiss.
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Also, the motion to dismiss filed by UOP, Honeywell, and Smith has
not been denied, either actually or as a practical matter, and the circuit
court has not unduly delayed its ruling on that motion. See Ex parte
Nationwide Agribusiness Ins. Co., 276 So. 3d 674, 678 (Ala. 2018) ("[B]y
deferring its ruling on venue until the pretrial hearing, the trial court
effectively required that Nationwide and Hartford complete discovery,
prepare dispositive and other pretrial motions, mediate the case, and
prepare for trial before it would resolve the venue question."); Ex parte
International Paper Co., 263 So. 3d 1035, 1041 (Ala. 2018) ("Here, the
circuit court exceeded its discretion by failing to rule on, and instead
'taking under advisement,' the motion to dismiss the third-party
complaint based on improper venue while allowing discovery on the
merits to proceed and setting deadlines for summary-judgment motions
and setting the trial date. Therefore, we issue the writ and direct the
circuit court to issue an order addressing the merits of IPC's motion to
dismiss based on improper venue."); see also Ex parte Nationwide, 276
So. 3d at 680 (Mendheim, J., dissenting, joined by Shaw. J.) (noting that
the trial court had indicated its intention to rule on the motion and that
this Court was, in, "practical effect," "ordering the trial court to do what
36
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it was attempting to do before we stayed it from acting"). Instead, UOP,
Honeywell, and Smith unduly delayed in seeking mandamus relief,
assuming they were entitled to such, until after their delay in making
marginal additional discovery submissions to SLI and RRL following the
denial of their two previous requests for a stay and a protective order.
See Rule 21(a)(3), Ala. R. App. P.; see also Ex parte Jones, 147 So. 3d 415
(Ala. 2013); id. at 421 (Shaw, J., concurring in the result) ("[T]he second
or renewed motion for a summary judgment raised no new significant
factual or legal arguments differing from the first motion: it was, for all
intents and purposes, the same motion."). And I disagree with the main
opinion that "circumstances of the case [have] changed" materially
between the second and third requests for a protective order. __ So. 3d
at __. The third motion for a protective order filed by UOP, Honeywell,
and Smith was filed on December 10, 2025, the same day the limited, and
still inadequate, supplemental discovery responses were given to SLI and
RRL and before the entry of the January 2026 order that described the
limited persons whom the circuit court authorized SLI and RRL to depose
37
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before the hearing on the motion to dismiss filed by UOP, Honeywell, and
Smith. 6
Based on the limited supplemental discovery responses provided by
UOP, Honeywell, Smith, and EBS, 6 of the 7 persons who were identified
6Following the December 19, 2025, hearing, the circuit court
directed counsel for SLI to prepare an order and circulate it. The seven
potential deponents were described in a proposed order that SLI provided
to UOP, Honeywell, and Smith on December 31, 2025. UOP, Honeywell,
and Smith responded by editing and returning the proposed order on
January 2, 2026, purportedly "to more accurately reflect the Court’s
directive during the December 19, 2025, hearing and the current posture
of the case," and conceding only to the depositions of Smith and Mike
Foster. SLI did not agree with the proposed changes and informed UOP,
Honeywell, and Smith on January 5, 2026, which was the deadline for
submitting a proposed order, that it would submit the proposed order to
the circuit court without changes. The following day, less than 30
minutes before the entry of the January 2026 order, UOP, Honeywell,
and Smith filed a "Supplemental Brief" in support of their third motion
for a protective order, describing the foregoing and arguing that their
proposed order "more accurately align[ed] with applicable Alabama law
and the Court's directives from the bench during the December 19, 2025
hearing." Their objection to five of the seven potential deponents (not
including Smith and Foster) was that "[t]he proposed order came with
no explanation of why any of the depositions were needed" and that SLI
and RRL had "not provided the Defendants or this Court with any written
explanation for their alleged 'need' to depose any witnesses other than
Smith and Foster." According to their assessment of the other five
potential deponents, their testimony would have no bearing upon the
motion to dismiss. UOP, Honeywell, and Smith also argued that
"potential 'claim splitting' " would not warrant any discovery, despite the fact that claim splitting may prevent the enforcement of an outbound
forum-selection clause.
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as permissible deponents in the January 2026 order were specifically
named by EBS among 25 named individuals (and other unnamed
"representatives" and "other individuals") who "ha[d] any knowledge
regarding the facts and circumstances surrounding the contracts and
business relationships described in the Complaint." Three of those six
persons were identified as having been involved in communications
between UOP, Honeywell, Smith and representatives of EBS concerning
the facts and claims at issue, which again involved more than claims
regarding breach of the October 2013 agreement between Honeywell and
SLI that included the outbound forum-selection clause. 7 Further, three
7In addition to SLI's claim alleging breach of the October 2013
agreement and a civil-conspiracy claim, the complaint included claims
alleging intentional interference with SLI's "contracts and business
relationships with (a) [RRL] and (b) trucking company GTT, as well as
existing business relationships with the papermill facilities involved in
the ammonium nitrate water transportation" and a claim alleging breach
of a May 2005 agreement between SLI and UOP that did not contain an
outbound forum-selection clause. The complaint also included (1) RRL's
claim against EBS alleging breach of a covenant, which was part of an
agreement other than the 2013 Agreement, "not to disclose [RRL's]
confidential information when it communicated with Honeywell, UOP, …
Smith and others to formulate plans to usurp [RRL's] and SLI's
established business of transporting ammonium nitrate waste waters
from Honeywell and UOP to the pulp and paper facilities" and (2) RRL's
claim against Smith and certain fictitiously named defendants alleging
intentional interference with RRL's "contracts and/or established
business relationships with EBS and SLI, and with the paper mill
39
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of the remaining four deponents listed in the January 2025 order were
on the email chain from Smith regarding the termination of SLI's services
in August 2024 and the purported status of the October 2013 agreement,
which UOP, Honeywell, and Smith claim had terminated in 2018. Those
three potential deponents also were identified by UOP, Honeywell, and
Smith as being involved, along with Smith, in the decision to terminate
UOP’s business with SLI.
The motion to dismiss filed by UOP, Honeywell, and Smith raised
two venue questions, one regarding the outbound forum-selection clause
in the October 2013 agreement and one regarding the proper county in
Alabama for venue if the action (or presumably any claims that might
not be subject to the outbound forum-selection clause) was not subject to
the outbound forum-selection clause. In the January 2026 order, the
circuit court authorized limited discovery, and it presumably has been
attempting to provide SLI and RRL, which have a "difficult" burden, an
adequate opportunity to establish whether the outbound forum-selection
clause must be enforced or might be subject to a recognized exception. Ex
facilities involved in the beneficial re-use of ammonium nitrate waste
waters."
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parte D.M. White Constr. Co., 806 So. 2d 370, 372 (Ala. 2001). Given the
nature of the claims and parties at issue, and the not insignificant
possibility that some severance of claims could be required -- resulting in
the necessity of actions in separate forums -- if the outbound forumselection clause is to be enforced, some discovery in that regard is
warranted for the circuit court to be able to make an informed and just
decision.
Limitations on discovery generally are a matter within the
discretion of a trial court, and this Court has stated that judges are not
required to
"limit discovery to the venue issue in every case in which a
transfer motion is pending. We agree that a blanket rule
limiting discovery to the issue of venue, once a motion to
transfer has been filed, is not generally desirable and that the
principle that trial judges may limit discovery to a threshold
matter like venue is 'a salutary principle if it is applied
sparingly and with real discretion rather than as an absolute
rule.' "
Ex parte Windom, 776 So. 2d 799, 804 (Ala. 2000) (quoting 8 Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2040 (1994)). As Ex parte Windom indicates, the question
whether and the extent to which discovery limitations are required is
fact-specific, and where " 'the transactions involved are so interrelated
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that a limitation to specific matters would frustrate the inquiry or a
limitation would lead to wasted effort by requiring two depositions to be
taken of the same witness a court is well justified in refusing a
limitation.' " Id. (quoting Wright & Miller). And in that regard, I note
the following from a January 2, 2026, letter from UOP's counsel to
counsel for the other parties:
"The Defendants will agree to make both Smith and [Mike]
Foster[, who is the chief executive officer of EBS,] available
for their depositions. Defendants will agree to put these
witnesses up to be deposed with the understanding these
witnesses will not be made available a second time, regardless
of the outcome of the Motions to Dismiss, absent some
extraordinary, independent showing by the Plaintiffs that
critical information/evidence later comes to light that would
warrant bringing these witnesses back for subsequent
deposition testimony. While we maintain our objections that
the substance of their testimony should be limited solely to
Smith's residency status and/or the time, place, and manner
of meetings and communications between Honeywell/UOP
and EBS prior to August 2024, we do not intend to prevent
the Plaintiffs from asking (or the witnesses from answering)
questions which are otherwise reasonably related to the facts
and claims of the lawsuit that may not be directly related to
the venue issues."
(Emphasis added.) In assessing the basis for UOP, Honeywell, and
Smith's proffered reasons for limiting discovery to the extent they
requested, I am inclined to conclude that the circuit court recognized the
incongruity in their offering to permit merits-based questioning of Smith
42
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and Foster, two witnesses acceptable to UOP, Honeywell, and Smith,
while also denying SLI and RRL any opportunity to have meaningful
merits-based discovery for purposes of questioning them and indicating
opposition to any second deposition, "regardless of the outcome of the
Motions to Dismiss."
The circuit court has held several hearings with the parties' counsel
in an attempt to address their discovery disputes and has access to the
entire record made thus far in this case. After carefully reviewing the
arguments and the limited materials submitted by the parties, it appears
to me, as a former trial judge, that the circuit court has been attempting
to allow limited discovery for purposes of deciding the venue questions
presented in the motion to dismiss filed by UOP, Honeywell, and Smith.
The materials before us certainly do not support the conclusion that the
circuit court has refused to perform an imperative duty to further limit
discovery more than it has. And, in any event, I do not agree with
permitting a party to use piecemeal and inadequate discovery responses
to form the foundation for repetitive issue presentation in order to seek
mandamus relief, particularly under circumstances such as those
presented in this case. The petition, in my opinion, is due to be denied.
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Stewart, C.J., concurs.
44