Kinard v. C.A. Kelly and Co., Inc.

• Decision Date: 29 March 1985
• Citation: 468 So.2d 133
• Parties: Emogene KINARD v. C.A. KELLY AND COMPANY, INC., et al. 83-712.
• Court: Alabama Supreme Court

Page 133

468 So.2d 133

Emogene KINARD v. C.A. KELLY AND COMPANY, INC., et al.

83-712.

Supreme Court of Alabama.

March 29, 1985.

Donald M. Briskman and Mark R. Ulmer, Mobile, for appellants.

Douglas L. McCoy of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.

FAULKNER, Justice.

This case reaches us on an appeal from a summary judgment. The dispositive issue involves Alabama's fictitious party rule, A.R.Civ.P. 9(h).

On August 12, 1979, Emogene Kinard, a tenant of the Magnolia Inn Apartments in Mobile, fell in the apartment's parking lot while carrying a small trash can toward the apartment's garbage collection point. The parking area had recently been resurfaced and Kinard claims that her fall was the proximate result of the uneven condition of the surface.

Kinard retained an attorney, who contacted her lessor, C.A. Kelly & Co., Inc. Kelly & Co. (hereinafter Kelly & Co.), informed Kinard's lawyer that it managed the apartments on behalf of the owners of the complex, "a group of men including Alex Foreman and Larry McKinney." On August 8, 1980, Kinard's lawyer filed an action on her behalf against the Magnolia Inn Apartments, C.A. Kelly & Co., Inc., Alex Foreman, Larry McKinney, and fictitious parties described as owners of the premises. Kelly & Co. was the only defendant served with a copy of the summons and complaint.

Although Kinard's brief states that her lawyer commenced "informal discovery efforts" soon after the complaint was filed, in an attempt to discover the true identities of the other owners and the addresses of Foreman and McKinney, we find no evidence in the record of any attempts to discover the true identities of the fictitious parties until January 1983, when the plaintiff propounded interrogatories to Kelly & Co. In response to Kinard's interrogatories, Kelly & Co. informed Kinard that the apartments were owned by Wade Faulkner, William Healy, Max McLaughlin, Larry McKinney, Michael Maitre, John Robertson, and Alex Foreman. Upon being informed of the names and addresses of the owners, Kinard immediately amended her complaint in an attempt to substitute the named individuals for the fictitious parties. She obtained service on the defendants substituted for the fictitious parties and on the defendants named in the original complaint who had not been served.

The defendants filed a motion for summary judgment. It was based on two grounds. First, all of the defendants argued that recovery could not be had against any of them because of the presence of an exculpatory clause in the lease under which Kinard was occupying the apartment. Second, the defendants who were substituted for the fictitious parties pleaded the statute of limitations. The trial court granted the motion as to all defendants, and Kinard appeals.

We need not address the issue regarding the exculpatory clause. The defendants concede that, in light of this Court's decision in Lloyd v. Service Corp. of Alabama, Inc., 453 So.2d 735 (Ala.1984), they are not entitled to a summary judgment, at least at this stage of the proceedings, on that ground.

Resolution of the statute of limitations issue will require application of the fictitious party rule, A.R.Civ.P. 9(h). Under Alabama law, when a plaintiff has a cause of action against someone, but is ignorant of the person's identity, he may in his pleadings designate that person by any name and, thereafter, when he ascertains the true identity of the defendant, he may amend his pleadings and substitute the party's true name for the fictitious one. A.R.Civ. 9(h). An amendment pursuant to Rule 9(h) substituting the defendant's true name for a fictitious one is not an amendment changing the party against whom a claim is asserted. The substitution of a named defendant for a fictitious one relates back to the date of the original pleading. A.R.Civ. 15(c). When, as is the case here, the amendment purporting to substitute parties takes place after the expiration of the statute of limitations, the question whether the amendment was made pursuant to Rule 9(h) becomes crucial, since the action would otherwise be time-barred.

In order to proceed under Rule 9(h), the plaintiff must be ignorant of the identity of the fictitious party when he files the original complaint and he must state a cause of action against the fictitious party in the body of the original complaint. Phelps v. South Alabama Elec. Co-Op, 434 So.2d 234, 236 (Ala.1983). In this case the fictitious parties were clearly designated in the body of the complaint. The issue here, therefore, involves the "knowledge" element and the length of time which elapsed between the filing of the complaint and the amendment.

The defendants point out that in Columbia Engineering Int'l. Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983), this...