Glassmeyer ex rel. Hamm v. Glassmeyer

THOMAS, Judge,

concurring in the rationale in part and concurring in the result.

Although I agree with the conclusion that the petition must be denied because it is premature, I would also have concluded, upon initial review of this petition, that the petition was untimely filed. I dissented from the consideration of the application for rehearing in Ex parte K.A.S., 197 So.3d 503, 511 (Ala.Civ.App.2015) (Thomas, J., dissenting), and, at that time, I did not state my specific objections to all the conclusions reached by the majority with which I disagreed, including the majority’s decision to consider the untimely petition in that case based on what I conclude is dicta from Ex parte Sharp, 893 So.2d 571 (Ala.2003).2 It is beyond question that an appellate court may consider the issue of subject-matter jurisdiction at the behest of a party even when, that party has failed to assert a lack of subject-matter jurisdiction in the lower court; an appellate court may also consider the issue of subject-matter jurisdiction ex mero motu. C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003). However, I cannot agree that because the issue of subject-matter jurisdiction cannot be waived and may be considered “at any time,” Ex parte Sharp, 893 So.2d at 576, an appellate court can ignore the requirement that its jurisdiction be properly invoked before considering the *910issue; certainly, the jurisdiction of this court is not properly invoked by the untimely filing of a petition for the writ of mandamus.3 Mandamus is an extraordinary remedy. Therefore, I continue to adhere to the principle stated in Ex parte A.E.Q., 102 So.3d 388, 390-91 (Ala.Civ.App.2012), that this court lacks jurisdiction to consider the issue of subject-matter jurisdiction if the petition for the writ of mandamus was untimely filed.

PITTMAN, J., concurs.

. In Ex parte Sharp, our supreme court concluded that the Court of Criminal Appeals had improperly considered an untimely petition for the writ of prohibition. Ex parte Sharp, 893 So.2d at 575-76. In so doing, our supreme court stated some of the bases for considering the untimely petition that the Court of Criminal Appeals had set forth in its opinion, including the assertion that an appellate court " 'can review a jurisdictional issue at any time.’ ” Id. The court rejected this basis for considering the untimely petition, stating ' that, "[ajlthough an appellate court may review a jurisdictional issue at any time, the present case does not involve a jurisdictional issue." Id. at 576, Thus, Ex parte Sharp does not, in my opinion, stand for the proposition that an appellate court may consider an untimely petition for an extraordinary writ simply because a jurisdictional issue is involved.

. Rule 21(a)(3), Ala. R.App. P., permits an appellate court to consider a petition for the writ of mandamus filed outside the presumptively reasonable time only if a statement of good cause is submitted in conjunction with the late-filed petition and the statement provides reasons establishing good cause for the late filing. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 n. 1 (Ala.2003); Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala,2004); and Ex parte Massengill, 175 So.3d 175, 178 (Ala.Civ.App.2015) ("[0]ur supreme court has previously indicated that the failure to offer an explanation for the untimely filing of a petition for a writ of mandamus in the body of the petition itself cannot be cured in a subsequent filing.”).