Steven R. Nichols et al.
from Jefferson Circuit Court (CV-03-2023)
Application for Rehearing
OVERRULED. NO OPINION.
Parker, C.J., and Wise, Bryan, Sellers, and Stewart, JJ.,
and Shaw, JJ., dissent.
Mitchell, J., recuses himself.
believe that the application for rehearing should be granted.
Accordingly, I respectfully dissent.
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original submission withdrawn, and the trial court's
not participate in the original decision in this case because
it was decided by a division of the Court on which I did not
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withdrawn, and the trial court's judgment affirmed.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.
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.
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,