Barbara Lane, as administrator of the Estate of Ora Sullins, deceased
Main and Associates, Inc., d/b/a Southern Springs Healthcare Facility
from Bullock Circuit Court (CV-16-900025)
Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Stuart, C.J., and Bryan and Sellers, JJ., dissent.
and Wise, JJ., recuse themselves.
Justice (concurring specially).
concur to affirm the summary judgment in this case that, for
purposes of this writing, essentially held that the
underlying action was untimely filed. The background of this
case is provided in Justice Sellers's dissenting opinion,
and I see no need to repeat it here.
dispositive issue to me is whether the defendant, Main and
Associates, Inc., d/b/a Southern Springs Healthcare Facility
("Main and Associates"),  was properly and timely
served with process. The chief executive officer and part
owner of Main and Associates is also a part owner of Main
Drug Store, a pharmacy. It appears from the record that these
are two distinct businesses that are not affiliated and do
not operate as alter egos and that they are both located in
Lane, as administrator of the estate of Ora Sullins,
deceased, attempted to commence a wrongful-death action
against Main and Associates but apparently served the
complaint on another business. When she discovered Main and
Associates' identity, she attempted service of process by
a certified letter addressed and mailed to Main and
Associates' registered agent at Main and Associates'
street address. For some inexplicable reason, the letter was
not delivered to that address but was instead placed in Main
Drug Store's post-office box. That letter was received
and signed for by Dorothy Surles, an employee of Main Drug
received the letter after the statute of limitations for
Lane's wrongful-death action had expired, but it is
alleged that she received it within the 120-day period
provided in Rule 15(c)(3), Ala. R. Civ. P. Main and
Associates apparently received the letter from the drug store
after the 120-day period had expired. For Lane's action
to be considered timely, Lane was required to show that
Surles's receipt of the letter imputed service to Main
and Associates. The pertinent legal issue is whether Surles
was an "agent" for Main and Associates as
contemplated by Rule 4(i)(2)(C), Ala. R. Civ. P. That rule
"Service by certified mail shall be deemed complete and
the time for answering shall run from the date of delivery to
the named addressee or the addressee's agent as
evidenced by signature on the return receipt. Within the
meaning of this subdivision, 'agent' means a
person or entity specifically authorized by the addressee to