Sydney Claire Frosch v. City of Birmingham (Appeal from Jefferson Circuit Court: CV-22-903566). ( 2023 )

Rel: December 8, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________
CL-2023-0392
_________________________
Sydney Claire Frosch
v.
City of Birmingham
Appeal from Jefferson Circuit Court
(CV-22-903566)
PER CURIAM.
Sydney Claire Frosch appeals from the dismissal of her personal-
injury complaint against the City of Birmingham ("the City") on the
ground that she failed to comply with the notice-of-claim requirements of
§ 11-47-23 and § 11-47-192, Ala. Code 1975.
CL-2023-0392
Background
On November 6, 2021, Frosch was injured in a fall while walking
on a sidewalk in Birmingham. (C. 7). On February 21, 2022, Frosch
signed and had notarized an "Affidavit of Claim" form, in pertinent part
provided by the City (“the affidavit-of-claim form”). That form states:
"THE LAW OF THE STATE OF ALABAMA REQUIRES
THAT A SWORN AFFIDAVIT OF CLAIM BE FILED WITH
THE CITY CLERK OF THE CITY OF BIRMINGHAM (710
NORTH 20TH STREET, SUITE 300, BIRMINGHAM,
ALABAMA 35203) WITHIN SIX MONTHS OF THE 1
INCIDENT ON WHICH THE CLAIM IS BASED. THIS
FORM SHOULD BE COMPLETED IN FULL AND
NOTARIZED. BE AS SPECIFIC AS POSSIBLE. USE
REVERSE SIDE IF NECESSARY, FOR VEHICLE
DAMAGE, ATTACH COPIES OF AT LEAST TWO
ESTIMATES OF REPAIR COSTS, ATTACH SPECIFIC,
ITEMIZED LIST OF PERSONAL PROPERTY DAMAGED
INCLUDING PURCHASE PRICE, AGE, ESTIMATED
PRESENT VALUE (BEFORE AND AFTER DAMAGE).
ATTACH PHOTO IF POSSIBLE (NOT REQUIRED). IF YOU
HAVE ANY QUESTIONS, PLEASE CALL THE LAW
DEPARTMENT OF THE CITY OF BIRMINGHAM AT (205)
254-2369."
(Capitalization in original.)
On March 7, 2022, Frosch's counsel mailed an envelope, via the
United States Postal Service, addressed to the City at the address the
city provided in the affidavit-of claim form - - 710 North 20th Street, Suite
300, Birmingham, AL 35203. The envelope contained a letter from
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Frosch’s counsel with a salutation of "To Whom It May Concern" and
stated that his firm had been retained to represent Frosch. Frosch’s
counsel also included the affidavit-of-claim form in the envelope. On
March 17, 2022, Frosch's counsel received a letter from the office of the
city attorney that stated, "This letter is to acknowledge receipt of the
affidavit-of-claim form you filed with the City of Birmingham." The letter
provided that if Frosch had any documents supporting her claim, "[o]ther
than the documents you have already provided," she was to send them to
the attention of the chief assistant city attorney. The letter also provided
that the city attorney's office would "proceed to investigate your claim
and you will be notified of our decision when our investigation is
complete."
On November 23, 2022, Frosch filed a complaint in the Jefferson
Circuit Court against the City, alleging negligence. 1 On January 9, 2023,
1Frosch also sued fictitiously named defendants as the individuals
or entities who controlled and/or constructed the sidewalk where Frosch
had fallen. The committee comments regarding the 1983 amendment to
Rule 54(b), Ala. R. Civ. P., state:
"Subdivision (b) is amended so as to harmonize it with
the provisions of Rule 4(f)[, Ala. R. Civ. P.,] dealing with
judgment against one or more defendants where other
defendants have not yet been served with process. Thus, a
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the City filed a motion to quash service because Frosch had served "The
City of Birmingham, Nicole E. King, City Attorney, Legal Department
6th Floor, 710 North 20th Street, Birmingham, AL 35202"; the City
argued that service was not properly addressed to the mayor or the city
clerk. The circuit court granted the motion. The record indicates that
service was reissued without further objection from the City.
On March 6, 2023, the City filed a motion to dismiss Frosch's
complaint for failure to file a notice of claim pursuant to § 11-47-23 and
§ 11-47-192, Ala. Code 1975. Frosch filed a response arguing that the
affidavit-of-claim-form had been timely filed because the City had
acknowledged receipt of the affidavit-of-claim form. On April 25, 2023,
judgment which disposes of fewer than all the parties is final
where the parties as to whom there has been no judgment
have not yet been served with process. See Ford Motor Credit
Co. v. Carmichael, 383 So. 2d 539 (Ala. 1980), for a contrary
result under Rules 4 and 54[,Ala. R. Civ. P.,] prior to the
proposal of this revision."
Committee Comments to Amendment to Rule 54(b) Effective July 1,
1983.
Dismissal of all named defendants in a civil action disposes of the
remaining allegations against fictitiously named parties and, therefore,
is an appealable final judgment. Johnson v. Reddoch, 198 So. 3d 497(Ala. 2015).
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the circuit court granted the motion to dismiss with prejudice. Frosch
timely appealed. 2
Discussion
Frosch argues that the circuit court erred in dismissing her
complaint because (1) the affidavit-of-claim form complied with § 11-47-
23 and § 11-47-192 and the city attorney acknowledged receipt of that
form; and (2) the City should be equitably estopped from claiming failure
to file a claim as a defense because, again, the city attorney acknowledged
receipt of the affidavit-of-claim form.
Section 11-47-23 provides:
"All claims against the municipality (except bonds and
interest coupons and claims for damages) shall be presented
to the clerk for payment within two years from the accrual of
said claim or shall be barred. Claims for damages growing out
of torts shall be presented within six months from the accrual
thereof or shall be barred."
Section 11-47-192 provides:
"No recovery shall be had against any city or town on a
claim for personal injury received, unless a sworn statement
be filed with the clerk by the party injured or his personal
representative in case of his death stating substantially the
2Frosch's appeal had originally been filed in this Court, and we
transferred the appeal to the supreme court based on lack of jurisdiction.
See § 12-3-10, Ala. Code 1975. The supreme court then transferred this
case back to our court pursuant to § 12-2-7(6), Ala. Code 1975.
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manner in which the injury was received, the day and time
and the place where the accident occurred and the damages
claimed."
" 'These statutes are to be construed as being in pari materia.' "
Etherton v. City of Homewood, 741 So. 2d 1078, 1080 (Ala. 1999) (quoting
Poe v. Grove Hill Mem'l Hosp. Bd., 441 So. 2d 861, 863 (Ala. 1983)). This
court explained in Locker v. City of St. Florian, 989 So. 2d 546, 548-49
(Ala. Civ. App. 2008):
"Section 11-47-190, Ala. Code 1975, provides that a
municipality may be liable to an injured party when the
damage suffered by the injured party was due to the 'neglect,
carelessness or unskillfulness' of an agent, employee, or
officer of the municipality who was engaged in work for the
municipality and who was acting within the line and scope of
his or her employment. Section 11-47-23 provides, in
pertinent part, that '[c]laims [against a municipality] for
damages growing out of torts shall be presented [to the clerk
for payment] within six months from the accrual thereof or
shall be barred.' Pursuant to § 11-47-192, in order for an
injured party to properly 'present' a claim under § 11-47-23,
the injured party must file a sworn statement with the clerk
'stating substantially the manner in which the injury was
received, the day and time and the place where the accident
occurred and the damages claimed.' See Poe v. Grove Hill
Mem'l Hosp. Bd., 441 So. 2d 861 (Ala. 1983); and Etherton v.
City of Homewood, 741 So. 2d 1078 (Ala. 1999). However, if
an injured party files a complaint alleging tort claims against
a municipality within the six-month period prescribed by §
11–47–23, this will also satisfy the notice requirement. See
Diemert v. City of Mobile, 474 So. 2d 663 (Ala. 1985). The
purpose of the notice requirement is to furnish a municipality
with 'sufficient physical details' of the incident to 'enable the
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[municipality] to investigate the claim and settle with the
claimant if it deems such action appropriate.' Cox v. City of
Birmingham, 518 So. 2d 1262, 1264 (Ala. 1987) (citing
Hunnicutt v. City of Tuscaloosa, 337 So. 2d 346 (Ala. 1976))."
In the present case, Frosch mailed her affidavit-of-claim form to the
address supplied by the City on the affidavit-of-claim form. In Perry v.
City of Birmingham, 906 So. 2d 174 (Ala. 2005), our supreme court held
that an injured pedestrian's mailing of a notice of the pedestrian's claim
against the City did not constitute "filing" the claim with the city clerk,
for purposes of complying with § 11-47-23 and § 11-47-192. The plaintiff
in Perry sued the City after he was injured when his wheelchair
overturned on the sidewalk, alleging that the City had negligently
maintained the sidewalk. The incident occurred on August 28, 2002, but
the plaintiff did not sue until July 26, 2003. The City moved to dismiss
because the plaintiff did not file his claim within six months of his injury.
The City submitted an affidavit from the city clerk, who stated that she
had no record of the claim. In response, the plaintiff submitted an
affidavit from his counsel's secretary stating that she had mailed a
verified notice of claim on February 25, 2003. The trial court entered a
summary judgment for the City.
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On appeal, our supreme court, in affirming the trial court,
reasoned:
"Rule 3(a), Ala. R. Civ. P., provides that '[a] civil action is
commenced by filing a complaint with the court.' Rule 5(e),
Ala. R. Civ. P., defines filing with the court as '[t]he filing of
papers with the court as required by these rules shall be made
by filing them with the clerk of the court, except that the judge
may permit the papers to be filed with the judge ....' Rule 25,
Ala. R. App. P., provides:
" '(a) Filing. Papers required or permitted to
be filed in an appellate court shall be filed with the
clerk. Filing may be accomplished by mail
addressed to the clerk, but filing shall not be
timely unless the papers are received by the clerk
within the time fixed for the filing, except that
papers shall be deemed filed on the day of mailing
if certified, registered, or express mail of the
United States Postal Service is utilized.'
"Thus, Rule 25 implies that a mailing generally does not
constitute a completed filing and that only an express
provision in the law can impart completed filing status to a
mailing.
"Perry cited Rule 5(b), Ala. R. Civ. P., to the trial court
for the proposition that '[s]ervice by mail is complete upon
mailing.' The defect in this argument is that neither § 11-47-
23 nor § 11-47-192[, Ala. Code 1975,] provides for 'service by
mail' or filing by mail. …
"….
"Perry has not presented this Court with any authority
or any compelling legal reason to hold that a mailing of a claim
against an Alabama municipality, without receipt of the
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claim, is a presentment or a filing within the meaning of § 11-
47-23 and § 11-47-192. As the Olsen [v. Moffat Road
Veterinary Clinic, 441 So. 2d 971 (Ala. Civ. App. 1983)] court
observed, § 11-47-23 and § 11-47-192 do not prohibit the
mailing of the claim by the plaintiff, but they do require the
receipt of the claim by the city clerk within the specified six
months as a condition precedent to further prosecution of the
claim in court. "
Perry, 906 So. 2d at 177-179 (emphasis added).
Here, Frosch mailed the affidavit-of-claim form to the address
supplied by the City. Although there is nothing in the record showing
that the city clerk received the notice of Frosch's claim within six months
of her injury, the city attorney acknowledged receipt of Frosch's claim
within six months.
Large v. City of Birmingham, 547 So. 2d 457 (Ala. 1989), involved
a fireman for the city who was injured during a training exercise on
October 16, 1986. He submitted an injury report that same day. On
March 5, 1987, the fireman was placed on "injured with pay status." 547
So. 2d at 458. On June 17, 1987, more than six months after the injury,
the fireman filed a notice of the claim with the city. On October 26, 1987,
he sued the city for damages for injuries received, claiming negligence
and wantonness. The trial court dismissed the City, ruling that the
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fireman had failed to comply with the notice-of-claim requirement of §11-
47-23.
On appeal, the fireman in Large argued that the City had had
actual notice of the incident and that that actual notice rendered strict
compliance with § 11-47-23 unnecessary. In addition to filing an accident
report, the fireman communicated, cooperated, and maintained contact
with the city. "However, the required notice must be served upon the
authorized representative of the City, in this case, the city clerk, and
disclosure to any other division or supervisor cannot be treated as notice
for the purposes of instituting a claim." 547 So. 2d at 458. Mere
knowledge of the incident resulting in the injury did not satisfy the
objectives of § 11-47-23, especially when the fireman had not previously
indicated that he intended to sue the city. Unlike in Large, the City in
this case had notice that Frosch intended to sue the City.
Our supreme court has held that substantial compliance with
notice-of-claim requirements to a municipality is permissible when that
notice comports with its purpose, which is to provide sufficient notice so
that the municipality has an opportunity to investigate the claim,
prepare its defenses, or negotiate a settlement. In Brasher v. City of
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Birmingham, 341 So. 2d 137 (Ala. 1976), the plaintiffs filed the notices of
their claims with the mayor's office and requested that the mayor forward
those notices to the City's legal department. The supreme court construed
a local act 3 which provided in pertinent part that "No suit shall be
brought or maintained … against the city on a claim for personal injury
… unless within ninety days from the receipt of such injury, a sworn
statement be filed with the city clerk, or the city officer corresponding
thereto…" 341 So. 2d at 138. The supreme court held that the plaintiffs
had substantially complied with the notice-of-claim requirements within
the local act.
"Compliance with the provisions of this statute is a condition
precedent to bringing suit. But, it is sufficient if there is
substantial compliance, and the statute will be liberally
construed in an effort to determine whether a claimant has so
complied with its requisites as to serve the purpose of the
statute. Allbritton v. City of Birmingham, 274 Ala. 550, 150
So. 2d 717 (1963).
Its purpose is to provide sufficient notice so that the City
has an opportunity to investigate the claim, prepare its
defenses or negotiate a settlement."
3The local act, Tit. 62, § 659, Ala. Code 1940 (1958 Recomp.), was
not repealed upon adoption of the Alabama Code of 1975, see Ala. Code
1975, § 1-1-10, but it was found unconstitutional in Crandall v. City of
Birmingham, 442 So. 2d 77 (Ala. 1983).
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341 So. 2d at 138 (emphasis added).
More recently, in Etherton v. City of Homewood, 741 So. 2d 1078,
1080 (Ala. 1999), our supreme court explained that the purpose of § 11-
47-23 and § 11-47-192 " is to give notice of a claim in order that the
municipality may investigate and determine the merits of the claim, 714
So, 2d at 1080 (quoting McCarroll v. City of Bessemer, 289 Ala. 449, 455,
268 So. 2d 731, 736 (1972)).." In Etherton, the notice was insufficient
because the plaintiff's notice stated that he was making a claim against
the Birmingham Water Works Board; it did not suggest that he was
making a claim against the City. Consequently, the City had not
investigated the claim. The notice therefore did not satisfy the objectives
of the notice-of-claim requirements.
In Brasher, supra, the court discussed another case, City of
Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967), explaining
that, in Weldon,
"the claimant failed to file a sworn statement with the city
clerk, but instead, wrote a letter to the mayor informing him
of the claim. Although that case differs from the present one
in that it went off on an estoppel theory when it was shown
that the city had actually mislead claimant as to the
sufficiency of his notice, it is authority for us to say that
compliance with the statute as to with whom notice was filed
may not be subject to a test of technical accuracy. In keeping
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with the purpose of the statute, plaintiffs should be permitted
to develop facts which would indicate the City did have benefit
of notice; therefore there was either substantial compliance
with the statute or the City is estopped to deny there was."
Brasher, 341 So. 2d at 138 (emphasis added).
In the present case, on March 7, 2022, within six months of the
incident made the basis of her complaint, Frosch's attorney sent a letter
and the notarized, completed affidavit-of-claim form to the "City of
Birmingham." The record shows that Frosch addressed the letter to the
"City of Birmingham" and mailed it and the completed form to the city
clerk's office, located at 710 North 20th Street, Suite 300, Birmingham,
AL 35203, which the city-prepared affidavit-of-claim form lists as the city
clerk's address. The salutation on the letter was "To Whom It May
Concern."
On March 17, 2022, the chief assistant city attorney sent Frosch's
counsel a letter acknowledging receipt of the affidavit-of-claim form "you
filed with the City of Birmingham." In the letter, the city attorney wrote
that if Frosch had any documentation supporting her claim "[o]ther than
the documents you have already provided," she was to send them to his
attention. The letter ended: "We will proceed to investigate your claim
and you will be notified of our decision when our investigation is
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complete." (Emphasis added.) We note that the city attorney's address is
different from the city clerk's office; specifically, the city attorney's office
is in a different suite than the city clerk's office.
Here, it is undisputed that the affidavit-of-claim form was mailed
to the City at the city clerk's address, an address the City itself supplied
on its affidavit-of-claim form. The letter the city attorney mailed to
Frosch's attorney makes clear that the City was investigating Frosch's
claim and was taking advantage of the opportunity to prepare a defense
to her claim or negotiate a settlement with her; thus, the purpose of the
notice-of-claim requirements was fulfilled. Under these circumstances,
the rejection of the propriety of the notice of claim based merely on the
absence of the word "clerk" in the address line of the envelope enclosing
her affidavit-of-claim form is nothing more than an attempt to enforce
technical accuracy with § 11-47-193, and our supreme court has already
rebuffed a lack of such accuracy as a ground for dismissing a complaint.
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Accordingly, we reverse the judgment of the circuit court dismissing
Frosch's complaint and remand the case for proceedings consistent with
this opinion. 4
REVERSED AND REMANDED.
Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.
4Based on our holding, we pretermit discussion of Frosch's
equitable estoppel argument.
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