Ex parte Tidmore

• Decision Date: 20 August 1982
• Citation: 418 So.2d 866
• Parties: Ex Parte: Ruth T. TIDMORE. (In re: Ruth T. TIDMORE v. The TUSCALOOSA NEWS, INC., a corporation; Atlanta Newspapers, a corporation; The Birmingham Post Company, a corporation; The Advertiser Company, a corporation; Bill Berkeley; and Howell Raines). 81-751.
• Court: Alabama Supreme Court

Page 866

418 So.2d 866

Ex Parte: Ruth T. TIDMORE (In re: Ruth T. TIDMORE v. The TUSCALOOSA NEWS, INC., a corporation; Atlanta Newspapers, a corporation; The Birmingham Post Company, a corporation; The Advertiser Company, a corporation; Bill Berkeley; and Howell Raines).

81-751.

Supreme Court of Alabama.

Aug. 20, 1982.

Mark A. Stephens of Stephens & Gunter, Tuscaloosa, for petitioner.

Perry Hubbard and Jay Guin of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for respondents.

SHORES, Justice.

The sole issue presented by this petition for writ of mandamus is whether the trial court abused its discretion in disallowing an amended complaint. We hold that, under the facts of this case, it did not, and we deny the petition.

Plaintiff/petitioner filed suit on November 5, 1980, alleging invasion of privacy against The Tuscaloosa News, Inc., a corporation, Atlanta Newspapers, a corporation, The Birmingham Post Company, a corporation, The Advertiser Company, a corporation, Bill Berkeley, and Howell Raines. No fictitious party defendants were named or described. The suit was based upon articles published by the various newspapers at different times, the Tuscaloosa paper having carried the article on December 2, 1979. Thus, the statute of limitations as to that publication ran on December 2, 1980.

Defendant The Tuscaloosa News, Inc., filed its answer on December 18, 1980, in which it answered:

"2. Defendant admits that The Tuscaloosa News, Inc., is a corporation duly organized and existing under the laws of the State of Delaware, but denies that Defendant is engaged in the business of publishing and distributing newspapers in Alabama and throughout the United States, and denies that its principal place of business is located at 2001 6th Street, in the City of Tuscaloosa, Alabama. Defendant denies that it operates and publishes a newspaper known as The Tuscaloosa News. To the contrary, Defendant alleges that it is the Lessor of certain business premises located at 2001 6th Street, in the City of Tuscaloosa, Alabama, which premises are leased to an Alabama corporation, "Tuscaloosa Newspapers Inc.," which operates and publishes a newspaper known as The Tuscaloosa News. The Tuscaloosa News, Inc., and Tuscaloosa Newspapers, Inc., are separate and distinct corporations, which are not affiliated with each other, and they bear the sole relationship of Lessor and Lessee."

Plaintiff/petitioner did not attempt to amend her complaint to meet the defect pointed out by the answer of The Tuscaloosa News, Inc., which clearly indicated that she had sued the wrong defendant.

Thereafter, on March 30, 1981, The Tuscaloosa News, Inc., filed a motion for summary judgment, based upon the single ground that it was not the entity which published The Tuscaloosa News. The motion was supported by an affidavit by the editor and publisher of The Tuscaloosa News, which again pointed out that the newspaper was leased and operated by a corporation known as "Tuscaloosa Newspapers, Inc.," a corporation.

Again, the plaintiff/petitioner offered no amendment to change and correct the name of the defendant newspaper corporation, nor did she file any affidavits or offer any evidence to refute the facts offered in support of the motion.

The trial court entered its order granting summary judgment in favor of The Tuscaloosa News, Inc., on December 4, 1981. The plaintiff did not seek a Rule 54(b), Alabama Rules of Civil Procedure, order and did not appeal. She alleges that she did file a motion to set aside the order granting summary judgment in favor of The Tuscaloosa News, Inc., on December 7, 1981, but does not include that motion in her exhibits to the petition for mandamus.

She filed an amendment to her complaint on December 17, 1981, for the first time naming Tuscaloosa Newspapers, Inc., and Charles H. Land, its editor, as defendants.

On January 19, 1982, the trial court overruled the plaintiff's motion to set aside the summary judgment in favor of The Tuscaloosa News, Inc. On January 21, 1982, Tuscaloosa Newspapers, Inc., filed its motion to strike the amended complaint which, after allowing a hearing, the court granted on April 27, 1982. Plaintiff filed this petition for writ of mandamus in this Court on June 8, 1982.

Amendments are to be freely allowed when justice requires. Rule 15, Alabama Rules of Civil Procedure. The amendment involved here is not one of right granted by ARCP 15(a), but is one changing parties, as opposed to substituting one party for another. It is, therefore, one within the discretion of the trial court under Rule 15(a), which permits the trial court to disallow it of its own motion or that of the adverse party unless justice will be denied by disallowing the amendment. Moreover, because the statute of limitations has run, the amendment relates back only if the requirements of ARCP 15(c) are met. The plaintiff/petitioner argues that those requirements are met and appears to assume that, if they are, the amendment is one of right and not one within the trial court's discretion. In this assumption, she is wrong. Only those amendments allowed by ARCP 15(a) are permitted as a matter of right. All others are discretionary, with the admonition that they should be freely allowed if justice so requires. In Stallings v. Angelica Uniform Co., 388 So.2d 942 (Ala. 1980), we quoted from Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975), where the Court said:

" 'We simply state here that if Rule 15 is to be of any benefit to the bench, bar and the public, trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground.' "

The Court went on to say:

"Rule 15, ARCP, is not carte blanche authority to...