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Nichols v. HealthSouth Corp.

Supreme Court of Alabama

March 22, 2019

Steven R. Nichols et al.
v.
HealthSouth Corporation

          Appeal from Jefferson Circuit Court (CV-03-2023)

         On Application for Rehearing

          MENDHEIM, Justice.

         APPLICATION OVERRULED. NO OPINION.

          Parker, C.J., and Wise, Bryan, Sellers, and Stewart, JJ., concur.

          Bolin and Shaw, JJ., dissent.

          Mitchell, J., recuses himself.

          BOLIN, Justice (dissenting).

         I believe that the application for rehearing should be granted. Accordingly, I respectfully dissent.

         As is the posture with Justice Shaw, I also did not participate in the original opinion in this matter, it being decided by a division of the Court on which I did not sit. I do join Justice Shaw's special writing, agreeing that the application for rehearing should be granted, the opinion on original submission withdrawn, and the trial court's judgment affirmed.

          SHAW, Justice (dissenting).

         I did not participate in the original decision in this case because it was decided by a division of the Court on which I did not sit.[1] In considering the application for rehearing and the arguments presented in it, I believe that the application should be granted, the main opinion on original submission withdrawn, and the trial court's judgment affirmed. I thus respectfully dissent.

         The issue on rehearing, as it was on original submission, is whether an amendment to a complaint is sufficiently related to the original complaint for the purposes of the relation-back doctrine found in Rule 15(c), Ala. R. Civ. P. The decision in McCollough v. Warfield, 523 So.2d 374 (Ala. 1988), notes a distinction between amendments that "'aver new facts or a new cause of action, '" 523 So.2d at 357 (quoting Cooper v. Thomas, 456 So.2d 280, 283 (Ala. 1984)), which are generally not allowed unless those amendments are based on facts in the original complaint as to which defendants have notice, and amendments that are "'merely a more definite statement, or refinement, of a cause of action set out in the original complaint, '" which are allowed to relate back to the original complaint. 523 So.2d at 375 (quoting Cooper, 456 So.2d at 283). According to the main opinion on original submission, the amendment here was merely a more definitive statement or refinement of the gravamen of this fraud case and thus related back. I disagree; I do not believe that the amendment in this case is merely a refinement.

         It is clear that, when parties allege fraud, they generally can amend the complaint to allege further facts regarding that fraudulent conduct, and that amendment would relate back. The main opinion relies on Rodopoulos v. Sam Piki Enterprises, Inc., 570 So.2d 661 (Ala. 1990), where an amendment to a complaint in a fraud case did just this. In that case, the original complaint alleged that the defendants had misrepresented to the plaintiffs that a franchise restaurant the plaintiffs purchased could be expected to gross $12, 000 a week, that it needed to gross $7, 000 a week to break even, and that it would be "no problem" for the restaurant to gross that amount. 570 So.2d at 663. The plaintiffs later amended the complaint to allege that the restaurants the defendants operated grossed only between $4, 000 ...


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