Ex parte Kenneth Hood, [Ms. SC-2023-0806, Mar. 29, 2024] __ So. 3d __ (Ala. 2024). The Court (Sellers, J.; Wise, Bryan, Mendheim, Stewart, and Cook, JJ., concur; Mitchell, J., dissents in part and concurs in the result in part, which Shaw, J., joins; Parker, C.J., dissents) denies Kenneth Hood’s petition for a writ of mandamus directing the Lee Circuit Court to dismiss derivative claims in an action filed by his wife, Joan Hood.
While the parties’ divorce proceeding was ongoing, Joan filed this action , individually and derivatively on behalf of Broadview Properties Family Limited Partnership alleging that Kenneth had used the partnership to hide and transfer marital assets. Kenneth moved to dismiss, arguing that Joan was not a limited partner and did not have capacity to sue on behalf of the partnership derivatively. Kenneth also sought a protective order prohibiting discovery into the derivative claims.
The Court first notes that the Alabama Limited Partnership Act at § 10A-9A-9.03 provides that only a partner may sue “‘in the right of a limited partnership.’” Ms. *12. The Court denies Kenneth’s mandamus petition because the allegations of Joan’s complaint “if taken as true, do not foreclose the possibility that the wife may possibly prevail in demonstrating that she is a proper person [i.e. a limited partner] to enforce the rights of the partnership.” Ms. *14.
The Court further holds that Kenneth failed to establish a clear legal right to a protective order prohibiting discovery because he “impliedly agreed to move forward with discovery” by not objecting to the circuit court’s suggestion that the parties work out the discovery without court intervention and by not asking the court for an express ruling on his motion for a protective order. Ms. *16.