Crowl v. Kayo Oil Co.

• Decision Date: 18 October 2002
• Citation: 848 So.2d 930
• Parties: Robert CROWL v. KAYO OIL COMPANY.
• Court: Alabama Supreme Court

848 So.2d 930

Robert CROWL v. KAYO OIL COMPANY.

1002058.

Supreme Court of Alabama.

October 18, 2002.

Michael E. Auffenorde of Auffenorde & Auffenorde, P.C., Huntsville, for appellant.

D. Edward Starnes III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.

MADDOX, Retired Justice.

The dispositive issue on this appeal, involving a premises-liability question, is whether the plaintiff, whose complaint asserted claims against several fictitiously named defendants, as permitted by Rule 9(h), Ala. R. Civ. P., exercised "due diligence" to ascertain the name of the appellee in this case, Kayo Oil Company ("Kayo"), so that Kayo could be substituted as a defendant and the substitution of Kayo as a defendant would relate back to the date of the filing of the original complaint under the provisions of Rule 15(c), Ala. R. Civ. P.¹

The trial court granted a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss filed by Kayo,² and because the trial court considered matters outside the pleadings in ruling on Kayo's motion to dismiss, we treat Kayo's motion as a motion for a summary judgment.³ The judgment was made final by the trial court pursuant to Rule 54(b), Ala. R. Civ. P.; claims against Conoco, Inc., are still pending in the trial court. After carefully considering the arguments of the parties, we find that the trial court did not err in holding that Crowl did not exercise "due diligence" in determining the identity of the fictitiously named defendant; therefore, we affirm the judgment of the trial court.

Facts and Procedural History

On September 11, 1997, Robert Crowl slipped and was injured at a gasoline service station located at 800 Oakwood Avenue in Huntsville. On August 31, 1999, shortly before the two-year statute of limitations for his cause of action would have run, Crowl sued Conoco, Inc., and six fictitiously named defendants, alleging that they had negligently and wantonly failed to maintain the parking lot of the service station. On September 21, 1999, service was attempted by leaving a copy of the summons and complaint and a set of interrogatories at the service station at 800 Oakwood Avenue.⁴ On November 17, 1999, Crowl filed an application for the entry of default with a supporting affidavit. On April 10, 2000,⁵ the trial court entered a default judgment against Conoco, Inc., in the amount of $200,000 together with costs.

On April 6, 2001, Conoco, Inc., filed an answer to the complaint and a Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment, with supporting affidavits attached.⁶ In its Rule 60(b) motion, Conoco, Inc., alleged that the judgment entered on April 10, 2000, was void, and was due to be set aside, because, it said, it did not perform business operations at the service station; it had no ownership interest in the business or real property at the service station; no agent appointed to receive service of process on behalf of Conoco, Inc., was at the station on September 21, 1999, and it had received no notice that an action had been filed. In addition, Conoco, Inc., identified Kayo as the owner of the service station at the time the plaintiff was injured. The motion and affidavits state that Conoco, Inc., and Kayo both first learned of the action on March 19, 2001.

On April 27, 2001, the trial court vacated the judgment it had previously entered against Conoco, Inc.

The trial court, in its order setting aside the default judgment, stated only that "[t]he Court, having considered Defendant Conoco, Inc.'s motion to set aside a default judgment entered by the Court on April 10, 2000, finds that the motion is due to be granted." We note that in its motion to set aside the default judgment, Conoco, Inc., cited this Court's cases of Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983), and Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993) ("One of the requisites of personal jurisdiction over a defendant is `perfected service of process giving notice to the defendant of the suit being brought' [quoting Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d at 884] .... A judgment rendered against a defendant in the absence of personal jurisdiction over the defendant is void."), and Rule 4(c)(6), Ala. R. Civ. P., which provides the manner in which a corporation may be served. In its motion, Conoco, Inc., stated:

"5. Simply leaving the summons and complaint at a location where Conoco branded gasoline is sold is not proper service on Conoco Inc. It is undisputed that no agent authorized by appointment or by law to receive service of process on behalf of Conoco Inc. was present at 800 Oakwood Avenue on September 21, 1999. Exhibit 2. Likewise, 800 Oakwood Avenue is not a usual place of business of Conoco Inc., and no agent of Conoco Inc. was present at 800 Oakwood Avenue on September 21, 1999. The act of leaving the summons and complaint at 800 Oakwood Avenue with an unknown individual does not satisfy Rule [4(c)(6)]."

In its motion to set aside the default judgment, Conoco, Inc., citing Wright v. Rogers, 435 So.2d 90, 91 (Ala.Civ.App.1983), also alleged that "[i]n Alabama, `[s]trict compliance with the Rules of Civil Procedure regarding service of process is required.' " Conoco, Inc., also cited other Alabama and federal cases in which courts held that service of process of an individual connected with or employed by a corporation did not constitute proper service on the corporation.

On May 3, 2001, Crowl filed an amended complaint substituting Kayo as a defendant for the entities originally identified as fictitiously named parties 1, 2, 3, 4, and 5 in the original complaint.⁷

On June 6, 2001, Kayo filed a motion to dismiss and a brief in support of the motion with attached exhibits and affidavits. Kayo argued that Crowl's claims against it were barred by the two-year statute of limitations. In its motion to dismiss, Kayo pointed out that Crowl's amended complaint substituting Kayo for fictitiously named parties was filed in May 2001, over three and one-half years following the accident. Kayo argued in the trial court, and argues to this Court, that the substitution of Kayo for fictitiously named parties should not be allowed to relate back to the date of the filing of the original complaint because, it says, Crowl cannot show that he was ignorant of the true identity of the fictitiously named defendant and that he used due diligence in attempting to discover it. Kayo attached to the motion the affidavit of Charles E. Haygood, the city clerk/treasurer for the City of Huntsville, who stated that his office keeps a listing of current holders of business licenses in the City of Huntsville. He stated in the affidavit that "[i]f a citizen calls and provides the name and address of a business in Huntsville, our office is capable of providing them with the name of the entity which holds the business license." He further stated that in 1997 and 1998 Kayo was the holder of the business license for the gasoline service station located at 800 Oakwood Avenue. Also attached to the motion was a letter from Wayland Cooley, tax assessor for Madison County, and certified copies of property tax records relating to the property in question.

I.

Because we treat this appeal as an appeal from a summary judgment, we first state our standard of review. Recently, in Rosen v. Montgomery Surgical Center, 825 So.2d 735 (Ala.2001), this Court stated:

"Our review of a summary judgment is de novo.

"`In reviewing the disposition of a motion for summary judgment, "we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact," Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988), and whether the movant was "entitled to a judgment as a matter of law." Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala. 1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990).'

"Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)

."

825 So.2d at 737.

II.

The dispositive issue on this appeal is whether Crowl exercised "due diligence" in ascertaining that Kayo was one of the fictitiously named defendants in his original complaint, as required by the provisions of Rule 9(h), Ala. R. Civ. P., which states:

"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."

Rule 15(c), Ala. R. Civ. P., provides that "[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)."

Crowl argues that he exercised "due diligence" in discovering Kayo's identity. In his reply brief to this Court, Crowl's counsel states:

"The correct standard is not whether Crowl discovered the identity of Kayo Oil Company before or after the statute ran or before or after the suit was

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