
    Ex parte WAL-MART STORES, INC. (Re Ex parte Wal-Mart Stores, Inc. (Re Jimmy England v. Wal-Mart Stores, Inc.))
    1990229.
    Supreme Court of Alabama.
    March 31, 2000.
    
      Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
   SEE, Justice.

WRIT DENIED. NO OPINION.

MADDOX, HOUSTON, COOK, LYONS, BROWN, and ENGLAND, JJ., concur.

HOOPER, C.J., concurs specially.

HOOPER, Chief Justice

(concurring specially).

Wal-Mart Stores, Inc., petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to set aside its order granting Jimmy England’s petition to hold Wal-Mart in contempt for failure to comply with a settlement agreement. The Court of Civil Appeals, on September 28, 1999, without an opinion, denied Wal-Mart’s petition for the writ of mandamus. Ex parte Wal-Mart Stores, Inc. (No. 2981451) — So.2d - (Ala.Civ.App.1999) (table). In its order denying the petition, the Court of Civil Appeals cited Rule 70A(g)(2), Ala. R. Civ. P., which provides: “If the person found in contempt is not being held in custody pursuant to the adjudication of contempt, the adjudication is reviewable by appeal.” Because Wal-Mart was not held in custody pursuant to the adjudication of contempt, it is clear that an appeal was the appropriate means for securing a review of the trial court’s order.

Wal-Mart contends that, even if a petition for the writ of mandamus was not the appropriate vehicle for obtaining a review of the contempt order, the Court of Civil Appeals should have treated the petition for the writ of mandamus as a notice of appeal, based on the holding in Ex parte Burch, 730 So.2d 143, 146 (Ala.1999). In Burch, this Court held that it has the discretion to treat a mandamus petition as a notice of appeal. I concur in denying certiorari review in this present case because I cannot say that the decision of the Court of Civil Appeals conflicts with prior caselaw. The Burch Court stated: “There is no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.” 730 So.2d at 146.

I write specially because I am concerned that the appellate courts are setting up an arbitrary system regarding the question of when a filing will be treated as a mandamus petition and when it will be treated as a notice of appeal. The appellate courts often treat mandamus petitions as notices of appeal, and yet we have no articulable standard for doing so. This Court should establish a standard for determining when such treatment is proper.  