Ex parte Stover

• Decision Date: 07 July 1995
• Citation: 663 So.2d 948
• Parties: Ex parte Jack STOVER, d/b/a Associated Engineering. (Re Terry CHAVERS and Tammy Chavers v. Robert G. DUKE, et al.). 1940596.
• Court: Alabama Supreme Court

Page 948

663 So.2d 948

Ex parte Jack STOVER, d/b/a Associated Engineering (Re Terry CHAVERS and Tammy Chavers v. Robert G. DUKE, et al.).

1940596.

Supreme Court of Alabama.

July 7, 1995.

Edward S. Sledge III, George M. Walker and Lisa Tinsley O'Hara of Hand, Arendall, Bedsole, Greaves & Johnston, L.L.C., Mobile, for petitioner.

Mark J. Upton of Richardson, Daniell, Spear & Upton, P.C., Mobile, for Terry Chavers and Tammy Chavers.

MADDOX, Justice.

This petition for the writ of mandamus requires an interpretation of the provisions of Rule 9(h), Ala.R.Civ.P., relating to fictitious parties, and the provisions of Rule 15(c), Ala.R.Civ.P., pertaining to the relation-back of amendments to pleadings. The specific question presented is whether a plaintiff who was allegedly injured while operating an off-line decorator machine at Scott Paper Company, and who described a defendant or defendants in the caption to his complaint as "J, K, and/or L, being the person, firm or corporation who manufactured, designed, sold, distributed, retailed or otherwise made available the Off-Line Decorator 102184" has sufficiently described the defendant/petitioner Jack Stover d/b/a Associated Engineering (hereinafter "Stover"), who had modified the machine 24 years after its purchase.

Stover was served with the plaintiff's complaint as the fictitiously named defendant. He filed a motion for summary judgment and filed in support of the motion affidavits that he contends show that the trial judge should have granted his motion for a summary judgment against the amended complaint on the ground that the amendment naming him was barred by the statute of limitations, and that the original complaint did not adequately assert a claim against him or sufficiently describe him. Stover asks for a writ of mandamus directing the trial judge to set aside the order denying Stover's summary judgment motion and to grant that motion.

On July 9, 1991, Terry Chavers suffered an on-the-job injury while working for Scott Paper Company as an operator of an off-line decorator machine that had been modified by Jack Stover, an engineer, 24 years after its purchase by Scott Paper Company. Chavers was injured when his arm was caught in a nip point between the drive roll and the idler roll in the unwind section of the off-line decorator. ¹ At the time of the accident, Chavers was attempting to clean up paper that had piled up between the rolls as a result of a paper break during operation of the decorator.

Chavers and his wife sued on July 2, 1993. The two-year statutory limitations period on the action expired on July 9, 1993. The Chaverses' original complaint named as defendants four of Terry Chavers's co-employees at Scott Paper Company; it named Black Clawson Kennedy, Inc., which they alleged was the original designer and manufacturer of the off-line decorator; it fictitiously described other co-employees; and it fictitiously described the following entities the Chaverses claimed were responsible for the manufacture, design, sale, or distribution of the off-line decorator: "J, K, and/or L, being the person, firm or corporation who manufactured, designed, sold, distributed, retailed or otherwise made available the 'Off-Line Decorator 102184' described hereinafter in this complaint." The off-line decorator was not further described in the original complaint.

On April 14, 1994, the Chaverses filed their first amended complaint, wherein they substituted Jack Stover, doing business as Associated Engineering, for the entity previously designated as "J" in the original complaint.

In the original complaint, the Chaverses claimed that defendant "J" was liable under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for manufacturing, selling, distributing, retailing, supplying, or otherwise providing the off-line decorator 102184 in a defective and unreasonably dangerous condition. Further, the plaintiffs charged that "J" negligently or wantonly designed, sold, distributed, retailed, or manufactured that machine; that "J" negligently or wantonly failed to provide adequate warnings or instructions for the safe use of the machine; and that "J" negligently or wantonly failed to provide adequate guarding of the nip point in which Terry Chavers was injured.

The following facts are undisputed: The off-line decorator had been in place since 1965. Stover did design work on the unwind section of the off-line decorator in 1989. Stover was not the original designer, manufacturer, or seller of the off-line decorator, and he was not asked to do work on the machine before its installation and use by Scott Paper Company.

Stover argues that the Chaverses' description of the fictitiously named defendant in the original complaint did not include any person or entity responsible for modifying the off-line decorator or any of its components, or any person who was responsible for failing to correct defects in the original design or manufacture of the off-line decorator. Stover argues that the original complaint described the original 1965 designer, manufacturer, seller, distributor, and/or retailer of the off-line decorator. He contends that the complaint did not adequately describe him--as the engineer who, in 1989, performed work to strengthen certain components in the existing unwind section.

Stover argues in his brief that this Court most recently addressed the dispositive issue in this case in Fulmer v. Clark Equipment, 654 So.2d 45, 46 (Ala.1995):

"Such a substitution is allowed to relate back to the date of the original complaint if the original complaint adequately described the fictitiously named defendant and stated a claim against such a defendant."

Stover argues that the claim the Chaverses make against him is not a claim against the fictitiously named party who originally designed the off-line decorator 102184, but a claim alleging that he failed to correct a defect created 24 years earlier by the person or entity fictitiously described as "J" in the original complaint. Stover argues that the pleadings never stated such a claim against him, not even in the original complaint.

Based on these facts, Stover moved for a summary judgment, alleging that the Chaverses' original complaint did not adequately describe him and that the original complaint did not state a claim against him. Because of these facts, Stover argued before the trial court, and has argued here, that the amended complaint did not relate back to the date of the filing of the original complaint and thus was barred by the applicable statute of limitations. The trial judge denied Stover's motion for summary judgment, holding that the description in the...