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Ex parte Nicholson Mfg. Ltd.

Supreme Court of Alabama

May 29, 2015

Ex parte Nicholson Manufacturing Limited
v.
KyKenKee, Inc., et al. In re: Gerald A. Templeton, as administrator of the Estate of Casimiro Deleon Ixcoy, deceased

Page 511

          (Tuscaloosa Circuit Court, CV-12-901218).

         SHAW, Justice. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents.

          OPINION

Page 512

          PETITION FOR WRIT OF MANDAMUS

         SHAW, Justice.

         Nicholson Manufacturing Limited (" Nicholson" ) petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to enter a summary judgment in its favor on the ground that Gerald A. Templeton's substitution of Nicholson for a fictitiously named defendant was made after the expiration of the applicable statutory limitations period and does not " relate back" to the filing of the original complaint. We grant the petition and issue the writ.

         Facts and Procedural History

         On December 31, 2010, Casimiro Deleon Ixcoy died as the result of injuries sustained at KyKenKee, Inc., a sawmill where he was employed. At this sawmill, logs are cut and, by way of an " in-feed" conveyor, fed into a " debarker" machine that removes the bark from the logs. When the debarking process is complete, the logs are carried on an " out-feed" conveyor to another station, where they are then cut into boards. The conveyors were manufactured by Morbark Industries, Inc.; the debarker machine was manufactured by Nicholson. As Ixcoy was walking through the debarking area, he was struck on the head by a 160-pound log that fell from a conveyor overhead. He died as a result of the injury.

         Templeton, the administrator of Ixcoy's estate, retained the services of an attorney to investigate any potential wrongful-death claims. On January 5, 2011 -- five days after the accident -- the attorney sent a letter to KyKenKee, demanding that evidence regarding the accident be preserved. Nearly two years later, in December 2012, a second attorney was hired to assist in filing a complaint.

         On December 28, 2012, Templeton, through the second attorney, filed a complaint seeking damages for wrongful death against several named and fictitiously named defendants. Among other things, the complaint alleged that the accident that resulted in Ixcoy's death was a result of negligent, wanton, willful, and intentional conduct. Additionally, Templeton sought damages on a products-liability theory.

         On January 2, 2013 -- two days after the expiration of the two-year statutory limitations period -- Templeton filed an amendment to the original complaint seeking to substitute Nicholson, as the manufacturer of the debarker machine, for one of the fictitiously named defendants, claiming that Nicholson was liable as the manufacturer of a defective product. Nicholson filed an answer and raised the two-year statute of limitations as an affirmative defense.

         Subsequently, Nicholson moved for a summary judgment in its favor. It argued that its substitution as a defendant after the expiration of the two-year limitations period did not " relate back" to the date the original complaint was filed and that, therefore, the claims against it were time-barred. In response, Templeton filed an opposition and requested that the trial court deny Nicholson's summary-judgment motion. Following a hearing, the trial court denied Nicholson's motion. Nicholson then petitioned this Court for a writ of mandamus.

         Standard of Review

          This Court will issue a writ of mandamus when the petitioner shows: " '(1) a clear legal right 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) the properly invoked jurisdiction of the court.'" Ex parte General Motors of Canada Ltd., 144 So.3d 236, 238 (Ala. 2013) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001)). This Court generally will not review by a writ of mandamus a trial court's

Page 513

denial of a motion for a summary judgment unless one of a limited number of exceptions apply. The case before us satisfies one such exception:

" '...In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court's denial of a summary-judgment motion in which a defendant argued that the plaintiff's claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So.2d 531 (Ala. 1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So.2d 948 (Ala. 1995) (reviewing the merits of the trial court's order denying the defendant's motion for a summary judgment, but denying the defendant's petition for a writ of mandamus); Ex parte FMC Corp., 599 So.2d 592 (Ala. 1992) (same); Ex parte Klemawesch, 549 So.2d 62, 65 (Ala. 1989) (issuing the writ and directing the trial court " to set aside its order denying [the defendant's] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion" ). ...'"

Ex parte Mobile Infirmary Ass'n, 74 So.3d 424, 427-28 (Ala. 2011) (quoting Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000)).

         Discussion

         The parties do not dispute that a two-year statute of limitations applies to the claims against Nicholson. The accident that resulted in Ixcoy's death occurred on December 31, 2010; Templeton filed his original complaint on December 28, 2012. The parties likewise do not dispute that on January 2, 2013--the date Templeton attempted to amend the complaint to substitute Nicholson for one of the fictitiously named defendants--the two-year limitations period had expired.

         Rule 9(h), Ala. R. Civ. P., provides:

" When a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name, and when the party's true name is discovered, the process and all pleadings and proceedings in the ...

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