Ex parte Robert Holland PETITION FOR WRIT OF MANDAMUS (In re: Ashley M. Moore v. City of Pleasant Grove) (Jefferson Circuit Court, Bessemer Division: CV-22-900141). ( 2024 )

Rel: October 4, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024
_________________________
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_________________________
Ex parte Robert Holland
PETITION FOR WRIT OF MANDAMUS
(In re: Ashley M. Moore
v.
City of Pleasant Grove et al.)
(Jefferson Circuit Court, Bessemer Division: CV-22-900141)
SELLERS, Justice.
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Robert Holland, one of the defendants below, petitions this Court
for a writ of mandamus directing the Jefferson Circuit Court ("the trial
court") to vacate its order denying his motion to dismiss an amended
complaint substituting him as a defendant in the underlying action
brought by Ashley M. Moore and to enter an order dismissing him as a
defendant in that action. We grant the petition and issue the writ.
I. Facts
On September 23, 2021, Pleasant Grove police officers Robert
Holland and Marque Gresham were attempting to apprehend a criminal
suspect who was fleeing in the residential neighborhood in which Moore
resided. During that time, the suspect fired gunshots at the officers, both
of whom fired back. One or more of the bullets discharged in the shooting
entered the home of Moore, who was allegedly injured when she "dove to
protect her young son at which time she fell to the concrete floor and a
television fell on top of them."
On March 22, 2022, Moore commenced an action against the City
of Pleasant Grove ("the City") and fictitiously named defendants, seeking
damages for her alleged injuries. In June 2022, Moore learned through
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discovery that Holland and Gresham were the officers who had been
involved in the shooting incident.
On September 23, 2023, the final day of the applicable two-year
statute-of-limitations period, Moore filed an amended complaint
substituting Holland and Gresham for fictitiously named defendants in
the original complaint; the complaint included instructions for the circuit
clerk to serve the summonses and the amended complaint on both officers
by certified mail at the addresses listed in the amended complaint. 1 As
explained in detail below, the clerk sent a copy of the summons and the
1Moore used the State's electronic-filing system, Alafile.gov., to
commence the underlying action. This Court takes judicial notice that,
when a plaintiff uses the electronic-filing system to file an amended
complaint adding multiple defendants, the plaintiff can add only one
defendant at a time and must enter all information pertaining to that
defendant. Once a plaintiff adds a defendant to an underlying action, the
plaintiff is prompted to check a box indicating whether the "[p]arty needs
to be served." Ultimately, if the plaintiff checks the box indicating that
the defendant needs to be served and the plaintiff requests service by
certified mail by the clerk and pays the required fee for that service, the
system automatically generates a summons directed to the defendant.
The summons along with the uploaded amended complaint is forwarded
to the circuit clerk who, in turn, initiates service of process for that
defendant. Notably, after a plaintiff supplies all the necessary
information regarding a defendant being added, the system generates an
"E-File Receipt."
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amended complaint to Gresham by certified mail; however, nothing was
sent by the clerk to Holland.
On December 19, 2023, Moore received notice that the certified mail
addressed to Gresham had been returned as unclaimed. On December
28, 2023, Moore supplied the circuit clerk with alias summonses for both
Holland and Gresham, advising that a private process server would be
used to accomplish service.
On January 17, 2024, 116 days after the statute-of-limitations
period had expired, Holland was served by a process server. Holland filed
a motion to dismiss pursuant to Rule 12(b)(6), Ala. R. Civ. P., contending
that he had not been served in the underlying action until after the
statute-of-limitations period had expired. Holland specifically argued
that, at the time Moore filed her amended complaint substituting him as
a named defendant in the underlying action, she had no bona fide
intention of having the amended complaint immediately served.
Following a hearing, the trial court denied the motion to dismiss, without
stating a reason for the denial. This mandamus petition followed.
II. Standard of Review
"A writ of mandamus is an extraordinary remedy
available only when the petitioner can demonstrate: ' "(1) a
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clear legal right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court." ' Ex parte Nall, 879
So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc.,
823 So. 2d 1270, 1272 (Ala. 2001))."
Ex parte Alabama Dep't of Corr., 252 So. 3d 635, 636 (Ala. 2017).
III. Discussion
Holland contends that, at the time Moore filed her amended
complaint substituting him as a named defendant in the underlying
action, she had no bona fide intention of having the complaint
immediately served. Thus, he says, the underlying action against him
could not be considered to have been commenced within the statute-of-
limitations period under Alabama law.2 We agree. A civil action is
commenced upon the filing of a complaint. See Rule 3, Ala. R. Civ. P.
However, the filing of a complaint, standing alone, does not commence an
action for statute-of-limitations purposes. Varden Cap. Props., LLC v.
Reese, 329 So. 3d 1230 (Ala. 2020). Rather, "[f]or statute-of-limitations
2The parties do not dispute that Moore's claims against Holland are
subject to the two-year limitations period. See Ala. Code 1975, § 6-2-38(l)
(providing that "[a]ll actions for an injury to the person or rights of
another not arising from contract and not specifically enumerated in this
section shall be brought within two years").
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purposes, the complaint must be filed and there must also exist 'a bona
fide intent to have it immediately served.' " Precise v. Edwards, 60 So. 3d
228, 231 (Ala. 2010) (quoting Dunnam v. Ovbiagele, 814 So. 2d 232, 237-
38 (Ala. 2001)). The question whether a bona fide intent existed at the
time the complaint was filed must be determined by an objective
standard. Varden, supra.
As previously indicated, the shooting incident occurred on
September 23, 2021; Moore commenced her action on March 22, 2022,
naming as defendants the City and fictitiously named parties. In June
2022, Moore learned through discovery that Holland and Gresham were
the officers involved in the shooting incident. On September 23, 2023,
the final day of the two-year statute-of-limitations period, Moore
amended her complaint to substitute Holland and Gresham as named
defendants. Although the amended complaint included instructions for
the circuit clerk to serve both officers by certified mail, the record reflects
that a summons was generated for and issued to only Gresham. On
December 28, 2023, after Moore learned that the certified mail addressed
to Gresham had been returned as unclaimed, she filed "alias" summonses
for both officers, advising that they would be served by process server.
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According to Holland, the alias summons filed on that date was the first
and only summons directed to him and that, by that time, the statute-of-
limitations period had run. Moore does not dispute that a summons was
not initially generated for and issued to Holland; nor does she dispute
that the fee required to have him served by certified mail by the clerk
was not paid. Rather, Moore states that she "is not able to explain the
issue that arose that prevented the initial issuance of the summons."
Answer at 9. Moore then states that, as soon her counsel became aware
of the clerk's failure to issue the summons and the amended complaint to
Holland, she took immediate steps to have him served by process server.
In Ex parte East Alabama Mental Health-Mental Retardation Board,
Inc., 939 So. 2d 1, 5 (Ala. 2006), this Court noted that, under Rule 4(i),
Ala. R. Civ. P., a plaintiff's request for service by certified mail by the
clerk places the burden of service on the clerk.3 Although a plaintiff's
3Rule 4(i)(2)(B)(i), Ala. R. Civ. P., provides, in relevant part:
"In the event of service by certified mail by the clerk, the clerk
shall place a copy of the process and complaint or other
document to be served in an envelope and shall address the
envelope to the person to be served with instructions to
forward. … The clerk shall affix adequate postage and place
the sealed envelope in the United States mail as certified mail
with instructions to forward, return receipt requested, with
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request for service by certified mail by the clerk places the burden of
service on the clerk under that rule, it is the plaintiff who has the initial
burden of performing all the tasks to facilitate, rather than preclude, the
clerk from setting the case in motion and perfecting service of process.
See Precise, 60 So. 3d at 233 (noting that, "when the plaintiff, at the time
of filing, does not perform all the tasks required to effectuate service and
delays a part of the process, a lack of the required bona fide intent to
serve the defendant is evidenced").
Here, the record confirms that, although Moore intended to serve
both Holland and Gresham by certified mail, only one summons was
generated -- the one generated for and directed to Gresham. The record
also confirms that only one certified-mail fee was paid -- the one paid in
connection with service upon Gresham. In the absence of a summons
generated for Holland and payment of a corresponding certified-mail fee,
we can only assume that the delay in perfecting service upon Holland
within the statute-of-limitations period occurred as a result of user error
instructions to the delivering postal employee to show to
whom delivered, date of delivery, and address where
delivered."
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during the electronic-filing process, and not because of any error on the
part of the circuit clerk. Moore used the State's electronic-filing system
to add Holland as a defendant in the underlying action. As indicated in
note 1, supra, after adding Holland as a defendant, the system would
have prompted her to check a box indicating whether Holland needed to
be served. Once Moore checked that box, she would have been provided
with an option for service of process. If Moore chose service by certified
mail by the clerk and paid the required fee, the system would have
ultimately generated a summons directed to Holland; upon receiving that
summons electronically, the clerk would have then assumed the burden
to commence service of process. Thus, viewed objectively, Moore's
unexplained failure to perform the necessary tasks required to effectuate
service at the time of filing shows a lack of the required bona fide intent
to have Holland immediately served. See, e.g., De-Gas, Inc., v. Midland
Res., 470 So. 2d 1218, 1222 (Ala. 1985) (holding that an action was not
commenced for statute-of-limitations purposes when a plaintiff had failed
to pay the filing fee at the time the complaint was filed); Maxwell v.
Spring Hill Coll., 628 So. 2d 335 (Ala. 1993) (holding that an action was
not commenced for statute-of-limitations purposes when a plaintiff filed
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a complaint but failed to provide summonses, service instructions, or
addresses for the defendants until approximately one month after filing
the complaint); and Pettibone Crane Co. v. Foster, 485 So. 2d 712 (Ala.
1986) (holding that an action was not commenced for statute-of-
limitations purposes when the plaintiff failed to provide the clerk with
the defendant's address or any instructions concerning service of
process).
IV. Conclusion
The burden of perfecting service of process on a defendant rests
with the plaintiff. The record is clear that Moore failed to complete the
process to have a summons issued and served by certified mail by the
clerk and effectively served Holland only after the statute-of-limitations
period had expired. Thus, Holland has established a clear legal right to
the relief sought. Accordingly, we grant the petition for a writ of
mandamus and direct the trial court to enter an order dismissing Holland
as a defendant in the underlying action.
PETITION GRANTED; WRIT ISSUED.
Wise, Bryan, Mendheim, and Stewart, JJ., concur.
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Mitchell, J., concurs specially, with opinion, which Parker, C.J.,
joins.
Cook, J., concurs specially, with opinion.
Shaw, J., concurs in the result.
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MITCHELL, Justice (concurring specially).
I concur fully in the main opinion because it faithfully applies our
precedents. But I write separately to call into question the rule in Ward
v. Saben Appliance Co., 391 So. 2d 1030 (Ala. 1980), which the majority
opinion applies.
The statute of limitations in Ward was largely identical to the one
at issue here.4 Ward held that, to toll the statute-of-limitations period, a
plaintiff must both (1) file a complaint and (2) demonstrate a bona fide
intention of having the complaint immediately served. Ward, 391 So. 2d
at 1035. The Ward Court drew the first requirement from Rule 3(a), Ala.
R. Civ. P. ("A civil action is commenced by filing a complaint with the
court."). Id. at 1032. It drew the second requirement, which is the focus
of this writing, from a string of 19th century cases interpreting a 19th
century statute. Id. at 1033-35.
Those 19th century cases, most notably West v. Engel, 101 Ala. 509,
14 So. 333 (1893), interpreted an 1886 statute as imposing a bona fide-
intention requirement. See § 2631, Ala. Code 1886. But that 1886
4Former § 6-2-39, Ala. Code 1975, controlled in Ward. The
Legislature essentially incorporated § 6-2-39 into the statute that
controls in this case, § 6-2-38, Ala. Code 1975, in 1984.
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statute pegged a suit's commencement not to the filing of the complaint
but to the "suing out of the summons." West, 101 Ala. at 510, 14 So. at
333. A summons could not be sued out until it "passe[d] from the hands
of the clerk … to the sheriff, or other proper officer, to be executed." 101
Ala. at 512, 14 So. at 334. In other words, under the 1886 statute and
the caselaw interpreting it, commencing a suit had more to do with
serving process than it did with filing a complaint.
That changed in the early 20th century. In 1907, the Legislature
shifted course and pegged the commencement of a suit to the filing of the
complaint. See § 4853, Ala. Code 1907; Horn v. Pope, 205 Ala. 127, 129,
87 So. 161, 163 (1920). The Legislature reiterated this filing requirement
in 1940, when it adopted a statute providing that "[t]he filing of the
complaint, bill of complaint, or other statement of plaintiff's cause of
action, in the office of the clerk or register of the circuit court … shall
constitute the commencement of the suit." Tit. 7, § 43, Ala. Code 1940.
It was against this backdrop that the Legislature adopted the
statute of limitations at issue in Ward. That statute, § 6-2-39, mandated
that an injured party "commence" a claim within one year. See Former
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§ 6-2-39, Ala. Code 1975. 5 Thus, at the time the Legislature adopted this
language, to file a complaint meant to commence suit. And no
subsequent legislation displaced this understanding. Indeed, Rule 3(a),
Ala. R. Civ. P., which this Court adopted in 1973, confirmed this
understanding.
Ward, in interpreting § 6-2-39, should have relied on this
background understanding to ascertain what it meant to "commence"
suit. See Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 397 (Thomson/West 2012). Had it done so, I believe that the Court
likely could have interpreted "commenced" as used in § 6-2-39 to mean
the filing of the complaint and nothing else. But, instead, Ward imported
a bona fide-intention requirement that does not appear to square with
the language of the statute. In fact, Ward does not even cite the statutory
text, and this oversight may have opened the door to an atextual
interpretation of § 6-2-39.
5Again, § 6-2-39, which was operative at the time of Ward, was
essentially incorporated into § 6-2-38, which controls in this case. Section
6-2-38 contains a two-year, rather than a one-year, limitations period.
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This Court has repeatedly extended Ward's holding. Shortly after
Ward, the Court held that filing a complaint without paying the filing fee
indicates a lack of a bona fide intention to proceed. De-Gas, Inc. v.
Midland Res., 470 So. 2d 1218 (Ala. 1985). Later, the Court found that
filing a complaint without providing instructions for serving process falls
short of the needed bona fide intention to pursue. Pettibone Crane Co. v.
Foster, 485 So. 712 (Ala. 1986). Most recently, when applying the bona
fide-intention requirement, this Court held that it is an objective
standard. Varden Cap. Props., LLC v. Reese, 329 So. 3d 1230 (Ala. 2020).
And the majority's opinion here further advances Ward's holding,
applying the bona fide-intention requirement to a suit brought under §
6-2-38.
I do not question the wisdom of the rule announced in Ward. It may
very well reflect sound policy and prevent gamesmanship. This Court's
role, however, is not to make policy. Our Constitution leaves that job to
the Legislature. And the Legislature has spoken here. Our duty, then,
is to interpret the laws as written, and not to revise them as the Ward
Court may have done. See Gamble v. United States, 587 U.S. 678, 713
(2019) (Thomas, J., concurring). And if our precedent is not rooted in the
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meaning of the law's text, then we should be open to revisiting that
precedent, provided that a request is properly made to our Court.
Ultimately, however, the parties in this case have not asked us to
reconsider the Ward line of precedent. See Ex parte McKinney, 87 So. 3d
502, 509 n.7 (Ala. 2011) (noting that "this Court has long recognized a
disinclination to overrule existing caselaw in the absence of either a
specific request to do so or an adequate argument asking that we do so").
In an appropriate future case, I would be open to doing so.
Parker, C.J., concurs.
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COOK, Justice (concurring specially).
Like Justice Mitchell, I concur fully with the main opinion's
conclusion that Robert Holland has demonstrated a clear legal right to
the relief he is seeking here. I write separately, however, to express my
concern with reconsidering Ward v. Saben Appliance Co., 391 So. 2d 1030(Ala. 1980), and its progeny, in a future case.
In Ward, our Court held that, although the Alabama Rules of Civil
Procedure provide that an action commences with the filing of the
complaint with the clerk of the court, that action is not commenced for
purposes of the statute of limitations unless it is filed with the bona fide
intention of having process served in due course. In the over 40 years
since our Court issued our decision in Ward, the bona fide-intention
principle has been consistently applied by our Court. See, e.g., Maxwell
v. Spring Hill Coll., 628 So. 2d 335, 336 (Ala. 1993); and Latham v.
Phillips, 590 So. 2d 217, 218 (Ala. 1991). This requirement has even been
extended to various other circumstances. See, e.g., Dunnam v. Ovbiagele,
814 So. 2d 232, 238 (Ala. 2010); Pettibone Crane Co. v. Foster, 485 So. 2d
712 (Ala. 1986); and De-Gas, Inc. v. Midland Res., 470 So. 2d 1218 (Ala.
1985).
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Justice Mitchell expresses concern that Ward -- and, consequently,
its progeny -- have gone too far by importing the bona fide-intention
requirement when, he says, Rule 3(a), Ala. R. Civ. P., and former § 6-2-
39, Ala. Code 1975, appeared to make clear that all that was needed to
"commence" an action was the filing of the complaint and nothing else. It
is for this reason that he indicates that he would be open to reconsidering
this well-settled precedent in an appropriate future case.
I believe that the bona fide-intention requirement and our caselaw
applying it is consistent with our Rules of Civil Procedure and relevant
statutes. Our Court's consistent application of this well-settled
requirement has created procedural stability for the bench and bar, and
I am concerned that deviating from it might invite gamesmanship. See,
e.g., Ward, 391 So. 2d at 1031 (noting that plaintiff's "attorney directed
the clerk to withhold personal service").
Moreover, to my knowledge, neither the Advisory Committee for the
Alabama Rules of Civil Procedure nor our Legislature has ever taken any
action to move away from this well-settled requirement. Thus, absent a
compelling reason to do so, I would be extremely hesitant to recommend
that we do so. See Bryan A. Garner et al., The Law of Judicial Precedent
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333 (Thomson Reuters 2016) ("Stare decisis applies with special force to
questions of statutory construction. Although courts have power to
overrule their decisions and change their interpretations, they do so only
for the most compelling reasons -- but almost never when the previous
decision has been repeatedly followed …."); but compare id. at 352
(explaining that it is easier to overrule constitutional precedent).
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