Ex parte Courtyard Citiflats, LLC, and Action Property Management, L.L.C.
Courtyard Citiflats, LLC, and Action Property Management, L.L.C. PETITION FOR WRIT OF MANDAMUS In re: Coretta Arrington
Montgomery Circuit Court, CV-14-447
Courtyard Citiflats, LLC, and Action Property Management, L.L.C. (hereinafter collectively referred to as "Citiflats"), the defendants below,  petition this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss the complaint of the plaintiff, Coretta Arrington, as untimely filed. We grant the petition and issue the writ.
Facts and Procedural History
On July 18, 2014, Arrington filed, both individually and in her capacity as the administrator of the estate of her deceased minor child, a complaint against Citiflats. Arrington's complaint alleged tort-based claims in connection with the death of Arrington's child as the result of injuries allegedly sustained on July 24, 2012, on premises owned and managed by Citiflats. Arrington's complaint was accompanied by an "Affidavit of Substantial Hardship" (hereinafter referred to as "the hardship statement") alleging that Arrington was unable to pay the corresponding filing fee. See § 12–19–70, Ala. Code 1975. It is undisputed that, at the time it was filed, the hardship statement had not been approved by the trial court as required by § 12-19-70(b). Arrington's complaint was also accompanied by the summonses necessary for service on the named defendants, which were stamped "filed" by the clerk of the trial court on the filing date.
On August 18, 2014 –- after the July 24, 2014, expiration of the applicable two-year statute of limitations –- the trial court entered an order purporting to approve the hardship statement. On August 19, 2014, the clerk of the trial court issued the previously filed summonses for service.
Citiflats filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to dismiss Arrington's complaint on the ground that the statutory limitations period had expired without the payment of a filing fee or the approval of a hardship statement–-either of which, according to Citiflats, was necessary to commence the action and to invoke the jurisdiction of the trial court. Relying on prior authority from this Court, notably De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala. 1985), and Mace v. Centel Business Systems, 549 So.2d 70 (Ala. 1989), Citiflats alleged that the mere filing of Arrington's complaint without payment of the filing fee or approval of the hardship statement was insufficient to commence the action for statute-of-limitations purposes; thus, Citiflats contended, all of Arrington's claims were time-barred.
In her opposition to the dismissal motion, Arrington, among her other arguments, attempted to distinguish the present case from the authorities cited by Citiflats and requested, pursuant to Hornsby v. Sessions, 703 So.2d 932 (Ala. 1997), that the trial court enter an order nunc pro tunc deeming its approval of the hardship statement as having been "retroactively entered" on the original filing date.
After a hearing, the trial court, on November 5, 2014, entered, over Citiflats' opposition, an order approving the hardship statement "Nunc Pro Tunc retroactive to [the original] filing date"; shortly thereafter, the trial court entered a second order denying Citiflats' motion to dismiss. Citiflats promptly filed this petition for a writ of mandamus.
Standard of Review
A writ of mandamus will be granted where there is
"'"(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court."'
"Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala. 2003)(quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004)."
Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004).
In its petition, Citiflats maintains that either the payment of the requisite filing fee or the trial court's approval of the hardship statement was a jurisdictional prerequisite for the commencement of Arrington's action. More specifically, Citiflats contends that the trial court exceeded its discretion in issuing an order "nunc pro tunc" in an effort to cure a jurisdictional defect. Although this Court is aware of the unfortunate result from Arrington's perspective, and despite her attempts to demonstrate that the authorities cited by Citiflats are inapposite, we must agree that the authorities cited by Citiflats are both applicable and controlling: caselaw clearly dictates that the payment of a filing fee or the preapproval of the hardship statement is a jurisdictional prerequisite to the commencement of Arrington's action.
Here, it is undisputed that Arrington timely filed her complaint -- accompanied by the hardship statement -- within the applicable limitations period. This Court has repeatedly cautioned, however, that mere filing, alone, is not always sufficient to commence an action and to toll the running of the limitations period:
"Although Rule 3, Ala. R. Civ. P., states that '[a] civil action is commenced by filing a complaint with the court, ' this Court has held that the filing of a complaint is not the sole factor in determining when an action is 'commenced.' A major function of Rule 3, Ala. R. Civ. P., is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing an action and suspending the operation of the applicable statute of limitations; however, it is not the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, ...