(Tuscaloosa Circuit Court, CV-12-901218).
Justice. Stuart, Bolin, Parker, Murdock, Main, Wise, and
Bryan, JJ., concur. Moore, C.J., dissents.
PETITION FOR WRIT OF MANDAMUS
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.
and Procedural History
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.
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.
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.
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.
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.
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
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)).
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.
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 ...