Ex parte Dwayne Atkinson. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Clarence Heard and Janice Heard v. APV North America, Inc., et al.)
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1051437 Rel 06/29/2007 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2006-2007 _________________________ 1051437 _________________________ Ex parte Dwayne Atkinson PETITION FOR WRIT OF MANDAMUS (In re: Clarence Heard and Janice Heard v. APV North America, Inc., et al.) (Jefferson Circuit Court, CV-04-7027) PARKER, Justice. I. Background Clarence Heard claims he was injured on November 23, 2002, in an accident involving a positive flow continuous fermenter manufactured by APV North America, Inc. ("the APV 1051437 tank"), while he was employed by Ventura Foods, L.L.C. On November 22, 2004, Heard and his wife, Janice, sued APV North America and others, including several fictitiously named defendants, claiming that Clarence's injury was caused by the negligence of the defendants in designing, manufacturing, and installing the APV tank. On February complaint, 15, 2006, substituting the Dwayne Heards filed an Atkinson for one amended of the fictitiously named defendants, claiming that Atkinson was one of the employees or supervisors at Ventura Foods who had negligently installed the APV tank. Atkinson filed a motion asking the trial court to dismiss him as a defendant because, he says, the statute of limitations on the Heards' claim had expired before the Heards named him as a defendant. court denied Atkinson's motion to dismiss, and The trial Atkinson petitioned this Court for a writ of mandamus directing the trial court to dismiss him as a defendant. II. Standard of Review "'A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly 2 1051437 invoked jurisdiction of the court.' Ex parte McNaughton, 728 So. 2d 592, 594 (Ala. 1998)." Ex parte State Farm Mut. Auto. Ins. Co., 761 So. 2d 1000, 1002 (Ala. 2000). Furthermore, this Court has held that a petition for a writ of mandamus is the appropriate vehicle by which to challenge the trial court's denial of a motion to dismiss or a motion for a summary judgment based on a statute-of- limitations defense when "the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue." 1999). Ex parte Snow, 764 So. 2d 531, 537 (Ala. See also Ex parte Chemical Lime of Alabama, Inc., 916 So. 2d 594 (Ala. 2005). III. Analysis The Heards filed their complaint on November 22, 2004, one day before the two-year statute of limitations expired. Atkinson was not listed as a defendant at that time; rather, they listed several fictitiously named defendants and Atkinson was substituted for one of those fictitiously named defendants on February 15, 2006, well after the expiration of the two-year statute of limitations. Rule 9(h), Ala. R. Civ. P., provides: 3 1051437 "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 that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name." This Court has stated on numerous occasions that in order to invoke the relation-back principles of Rule 9(h), that is, in order for the amended complaint with the defendant's true name to relate back to the original complaint fictitious name, the plaintiff must establish with the (1) that the plaintiff was ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time the complaint was filed that the party subsequently named was in fact the party intended to be sued, Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955 (Ala. 1983); and (2) that the plaintiff used due diligence to discover the defendant's true identity before filing the original complaint, Fulmer v. Clark Equipment Co., 654 So. 2d 45 (Ala. 1995). Atkinson argues that Clarence Heard knew his identity and his involvement with the installation of the APV tank before the Heards filed their original complaint. 4 He cites the 1051437 following in the deposition given by Clarence Heard December 6, 2005: "Q. Was the tank already installed when you moved to the 79th Street facility? "A. Yes. "Q. Was the piping already hooked up to it? "A. No. "Q. Were there people that were working on the [APV] tank when you went there, when you moved to that facility? "A. Yes. "Q. Do you know who they were? "A. I know Dwayne, Dwayne Atkinson. He was over it. "Q. All right. Now I'm going to have to ask you to spell Dwayne's last name if you can for me. "A. I can't spell it. "Q. Can you pronounce it for me again? "A. Dwayne Atkinson. "Q. Atkinson? "A. Yeah, I think that's it. "Q. Does Dwayne still work at Ventura [Foods]? "A. Yes. "Q. In what department does he work? 5 on 1051437 "A. He works in engineering. "Q. Was he super -- let me start over. From your observations, did it appear that Dewayne Atkinson was supervising the installation of the [APV] tank? "A. Yes, he was. ".... "Q. For how many days or weeks did you observe Dwayne Atkinson and these contractors working on the [APV] tank and connecting pipes to it? "A. I can't recall. "Q. Okay. What did you see them do with respect to the [APV] tank? "A. I just saw them hanging pipes, that's all." Atkinson argues that Heard's answers in this deposition establish that Heard knew Atkinson's true identity long before the Heards filed their original complaint and that, even if there is doubt as to whether he knew Atkinson's exact name at that time, he knew enough about Atkinson that with due diligence he could have determined Atkinson's true identity. The Atkinson. Heards argue They interrogatories that note filed on Clarence that in October Dwayne Atkinson as "Dewayne Adkins." Heard did Clarence's 19, 2005, not answers he know to identified They also cite testimony of other employees of Ventura Foods who stated that they did 6 1051437 not know Atkinson. ignorance of This, however, does not demonstrate the the defendant's identity Engineering and other cases require. that Columbia Even if it did establish ignorance, it falls far short of establishing that the Heards could not have learned Atkinson's diligence, as Fulmer requires. true name with due Certainly, if they knew that someone with a name similar to "Dewayne Adkins" worked as a supervisor for Ventura Foods, with due diligence they could have learned The Atkinson's true identity. Heards also argue that Atkinson has failed to demonstrate that he has suffered any prejudice from their failure to name him as a party in the earlier complaint, because, according to the Heards, he was aware participation in the events underlying their action. of his However, the cases cited by the Heards do not support their position. In Denney v. Serio, 446 So. 2d 7 (Ala. 1984), Denney was allowed to amend her pleading by substituting Serio as a defendant for one of the fictitiously named defendants even though the statute of limitations had expired, because the defendant had suffered no substantial prejudice resulting from her failure to name him in the original complaint. 7 However, 1051437 Denney had clearly established that she had no knowledge of Serio's identity at the time she filed her complaint. Likewise, in Wallace v. Doege, 484 So. 2d 404 (Ala. 1986), Doege was allowed to name Wallace as a defendant in place of the fictitiously limitations had named party expired; even however, though like the Denney, statute of Doege had established that she had no knowledge of Wallace's identity when she filed her original complaint. In each of these cases, the question of the prejudicial effect on the named defendant arises only after the plaintiff shows ignorance of the defendant's identity at the time of filing the original complaint. Even if the plaintiff can establish this lack of knowledge, however, the court will not allow the substitution if the plaintiff has inordinately delayed in amending the complaint and if plaintiff's delay. the defendant is prejudiced by the In this case, the Heards have failed to establish that they were ignorant of Atkinson's identity, and they have failed to establish that they could not have learned his identity through due diligence before they filed their original complaint. Therefore, we do not reach the issue of 8 1051437 any prejudice to Atkinson caused by allowing the Heards to amend their complaint to add him as a named defendant. IV. Conclusion Atkinson ignorant of complaint. has his established identify that when they the Heards filed their were not original Therefore, the Heards' amended complaint does not relate back to their original complaint; it is therefore timebarred as it relates to Atkinson. Accordingly, the trial court exceeded its discretion in denying Atkinson's motion to dismiss. grants Atkinson's petition for the This Court therefore writ of mandamus and directs the trial court to dismiss Atkinson as a defendant in this case. PETITION GRANTED; Cobb, C.J., and WRIT ISSUED. See, Lyons, Bolin, and Murdock, JJ., concur. 9 Woodall, Stuart, Smith,
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