Thomas v. Black Mark 2, LLC (Ex parte Cowgill)

• Decision Date: 07 February 2020
• Docket Number: 1180936
• Citation: 301 So.3d 116
• Parties: EX PARTE George COWGILL and Elise Yarbrough (In re: Paul Thomas v. Black Mark 2, LLC, d/b/a Black Market Bar & Grill ; George Cowgill; and Elise Yarbrough)
• Court: Alabama Supreme Court

301 So.3d 116

EX PARTE George COWGILL and Elise Yarbrough

(In re: Paul Thomas

v.Black Mark 2, LLC, d/b/a Black Market Bar & Grill ; George Cowgill; and Elise Yarbrough)

1180936

Supreme Court of Alabama.

February 7, 2020

Ben B. Robinson, Larry L. Logsdon, and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for petitioners.

Frederick A. Erben of Beddow, Erben & Bowen, PA, Birmingham; and Raymond L. Pharo, Jr., Birmingham, for respondent.

SHAW, Justice.

George Cowgill and Elise Yarbrough (hereinafter collectively referred to as "the petitioners"), two of the defendants below, petition this Court for a writ of mandamus directing the Jefferson Circuit Court to grant their motion seeking a partial summary judgment on the ground that the plaintiff's substitution of them for fictitiously named defendants was made after the expiration of the applicable two-year statute of limitations. See § 6-2-38(l ), Ala. Code 1975. We grant the petition and issue the writ.

Facts

The basic underlying facts are largely undisputed. The petitioners are the owners of Black Mark 2, LLC ("Black Mark"), a limited-liability company doing business as Black Market Bar & Grill ("Black Market"), a bar in Birmingham.¹ They are also the managers of Black Market.

In the late evening of December 31, 2012, and into the early morning of January 1, 2013, Paul Thomas, the plaintiff below, was at Black Market with his friend, Brian Pallante.² An altercation ensued between Pallante and Dalton Teal, another patron, resulting in Black Market staff removing Teal from the building by way of a rear door. After Teal had left the Black Market building but while he still remained on its outdoor premises, an unidentified female apparently returned to Teal a handgun he had dropped inside Black Market; this exchange occurred in the presence of the Black Market employee who oversaw Teal's ejectment.³ Following the altercation, Pallante, accompanied by Thomas and a female friend, left Black Market by the front entrance. Teal was waiting for friends on a nearby bench, where Pallante and Thomas again encountered him. Within approximately five minutes, a second confrontation ensued between Teal and Pallante during which Teal fired his gun at Pallante but struck and injured Thomas.

Procedural History

As a result of the above-described events, Thomas initially filed, on January 16, 2013, an emergency petition seeking the permission of the Jefferson Circuit Court to conduct pre-suit discovery against Black Mark and Teal (case no. CV-13-45). The petition sought production and preservation of information including an incident/offense report allegedly completed by the Birmingham Police Department in relation to the shooting,⁴ the transcript of a resulting telephone call placed to emergency 9-1-1, any available surveillance video, and information related to any potentially applicable insurance coverage.

Thomas later filed, on May 30, 2013, a complaint against Black Mark, Teal, and 10 fictitiously named defendants (case no. CV-13-902154), which was subsequently consolidated with Thomas's previous emergency petition and with a separate action that Teal had filed against Pallante (case no. CV-14-905269). Thomas's complaint included claims made pursuant to Alabama's Dram Shop Act⁵ against Black Mark and the fictitiously named defendants and claims seeking damages for assault and battery, negligence, and wantonness/willfulness against Teal. On December 31, 2014, Thomas filed a first amended complaint substituting Black Mark for the first fictitiously named defendant included in his original complaint, i.e., for "that person, firm, corporation or entity who owned, operated and/or controlled ... Black Market." On June 29, 2018, more than five years after the shooting and the filing of his original complaint and more than three years after the applicable limitations period had expired, Thomas filed a second amended complaint that, among other changes, identified the petitioners as Black Market's owners and purported to substitute them for fictitiously named defendants in prior filings (specifically fictitiously named defendants 5, 6, and 7 in Thomas's prior complaints) and to add a negligence count (count II), a wantonness/willfulness count (count III), and a negligent-supervision count (count VI) against them and Black Mark based on the return of the firearm to Teal.

Subsequently, Black Mark and the petitioners jointly filed a motion seeking a partial summary judgment in their favor as to counts II, III, and VI of Thomas's second amended complaint. More specifically for our purposes, the petitioners contended that Thomas's claims failed as a matter of law for various reasons and that the newly added counts against them did not "relate back" to the filing of Thomas's original complaint in 2013 and were barred by the statute of limitations and/or the doctrine of laches. See Rule 15(c), Ala. R. Civ. P. According to the petitioners, not only were the newly added claims distinct from Thomas's original Dram Shop claim against Black Mark, but, they asserted, Thomas was also aware of the petitioners' identity by, at the latest, October 2013, when Black Mark responded to interrogatories propounded by Thomas. The petitioners further noted that Thomas possessed ample opportunity before June 2018 to have sufficiently investigated all relevant factual avenues -- including Black Market's management structure –- so as to timely amend his complaint and that his failure to do so demonstrated a lack of due diligence.

As support for their claims, the petitioners pointed to Thomas's first interrogatories to Black Mark, which, in addition to other information, sought the following:

"2. ... [T]he name, address and job position of the individual(s) at ... Black Market ... responsible for hiring, terminating, and supervising bartenders, servers, staff, and/or employees as of December 31, 2012.

"3. ... [T]he name, address, birth date and job position or job duty of each and every employee at ... Black Market on December 31, 2012 to January 1, 2013 between the hours of 4 p.m. to 2 a.m., indicating which employees are still employed....

"....

"7. ... [T]he name, address and job position of the individual(s) responsible for training bartenders at the subject Black Market as of December 31, 2012.

"8. ... [T]he name, address and job position of the individual(s) responsible for training employees, other than bartenders, who were involved with the distribution of alcohol, if different from above at ... Black Market on December 31, 2012.

"....

"20. ... [W]hether it was policy and procedure at the subject Black Market on December 31, 2012 and January 1, 2013 for a manager to be on duty at all times. If your response is in the affirmative, identify the manager(s) on duty on said occasion."

The exhibits to the motion for a partial summary judgment included Black Mark's responses to the foregoing interrogatories, which were filed on October 16, 2013, and, as to the foregoing requests, supplied the following responsive information:

"2. Subject to our attorney's objection to the terms ‘responsible for’ and ‘supervising,’ the answer is George Cowgill, Rebecca Keaton,^[6] and James Sharp, all of whom still work at the Bar and can be contacted through our attorney.

"3. Objection. Birthdates are private and confidential information, personal to nonparties to this action.... All were old enough to serve alcohol at the time: the three above, plus Andrea Nunn, Brendan Owens, Dan Chattam, Dillon Campbell, Lauren Bryant, Wes Greg. All of them still work at the Bar and can be contacted through our attorney.

"....

"7. Subject to our attorney's objection to the phrase ‘Responsible for training,’ the following worked with the bartenders on duty that night: George [Cowgill] and Rebecca [Keaton].

"8. Subject to our attorney's objection to the phrases ‘Responsible for training,’ and ‘involved with the distribution of alcohol,’ the following fit that description that evening: Rebecca Keaton and Elise [Yarbrough].

"....

"20. Subject to our attorney's objection to the phrase ‘policy and procedure,’ and ‘on duty,’ yes, and it was George [Cowgill] and Rebecca [Keaton]."

(Emphasis added.)

In his opposition to the motion for a partial summary judgment, Thomas apparently conceded that his willfulness/wantonness claim against Black Mark and the petitioners (count III) was due to be dismissed.⁷ As to the petitioners, Thomas also conceded that he was, prior to filing his second amended complaint, aware of their identities and their supervisory roles but not their particular duties at Black Market at the time of the events preceding the shooting.

In a post-hearing filing, the petitioners, in response to an apparent claim by Thomas that any undue delay was the result of an alleged lack of cooperation by the petitioners during the discovery process, explained that Thomas did not take any depositions within two years of filing his original complaint and, in fact, did not notice the deposition of any individual connected with Black Market until May 1, 2018 –- over five years after the shooting and approximately four and one-half years after the filing of Black Mark's initial discovery responses identifying the petitioners. As further purported evidence of Thomas's lack of diligence, they noted that the trial court's case-action summary did not indicate any instance in which Thomas had requested the intervention of the trial court in compelling discovery of any kind from the petitioners or Black Mark.

Thereafter, the trial court, among other rulings, concluded that Thomas's new claims and the parties added by the second amended complaint related back to timely identified fictitiously named parties and to the timely made claims in his original complaint. Although recognizing that Thomas knew the petitioners' identity before the expiration of the limitations period, the trial court on July 11, 2019, denied the petitioners' motion for a summary...