MAIN, Justice.
Noland Hospital Montgomery, LLC ("NHM"), a defendant in a wrongful-death action alleging medical negligence, petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying NHM's motion for a summary judgment and to enter a summary judgment in NHM's favor. NHM contends that it is entitled to a summary judgment on the basis that the applicable statute of limitations for this wrongful-death action, § 6-5-410, Ala. Code 1975,
This wrongful-death action alleges medical negligence relating to the long-term care of Pynes's brother, Houston Earl Pynes ("Houston"). Houston died on March 9, 2007, while hospitalized at NHM, after he had been at several different hospitals, nursing homes, and rehabilitation facilities for an extended period.
On March 6, 2009, Pynes filed a wrongful-death action in Montgomery Circuit Court against "Jackson Hospital, Dr. Mukesh Patel, and `Factitious [sic] party `A', `B' being that person and or agent for NOLAND COMPANY, whose true name and legal descriptions [are] otherwise unknown to Plaintiff but will be supplied by amendment when ascertained" (hereinafter collectively referred to as "the defendants"), alleging that the defendants caused Houston's death by negligently injuring him while he was a patient of the defendants and by then negligently treating his injuries while he remained a patient of the defendants. The original two-count complaint alleges that "the Defendants failed to provide [Houston] with the professional medical services, care and treatment that a physician within the medical community possessing and exercising ordinary and reasonable medical knowledge and skills would have provided...."
On May 8, 2009, Pynes filed an amended complaint. The first amended complaint made no changes to the style of the complaint or to the description of the parties being sued. Subsequent to the filing of the first amended complaint, Pynes's counsel withdrew, the trial court stayed the proceedings, and Pynes obtained new counsel.
On January 6, 2010, Pynes, through new counsel, filed a second amended complaint. The second amended complaint reasserted the allegations of the first two complaints, but substituted NHM for a fictitiously named defendant, as follows:
On March 5, 2010, NHM moved to dismiss Pynes's second amended complaint, arguing that Pynes's claims against it were barred by the statute of limitations because, it asserted, the second amended complaint had been filed more than two years after the act or omission giving rise to the claim. NHM, citing Rule 12(b)(6), Ala. R. Civ. P., also argued that Pynes failed to state a claim against it that would entitle him to relief. While NHM's motion to dismiss remained pending, Pynes's counsel withdrew, and a new attorney, Pynes's third attorney, filed an appearance, and the trial court again stayed the proceedings.
On October 28, 2010, Pynes's third attorney filed a third amended complaint, asserting new claims against NHM not raised in the previous three complaints. On November 19, 2010, the trial court heard NHM's motion to dismiss, among other motions. NHM argued that Pynes was aware of NHM's existence and of its role when Pynes filed his original complaint; thus, it argued, the second amended complaint substituting NHM for a fictitiously named defendant did not relate back to original complaint. On December 1, 2010, the trial court denied NHM's motion to dismiss without an explanation and
After the trial court denied NHM's motion to dismiss, NHM filed an answer to Pynes's third amended complaint, asserting, among other things, that Pynes's claims against it were barred by the statute of limitations and by Rule 15(c) and Rule 9(h), Ala. R. Civ. P. NHM then conducted discovery as to the issue of Pynes's knowledge of NHM's existence and its role in Houston's hospitalization prior to the filing of his original complaint. NHM's discovery showed that during Houston's hospitalization at NHM, Pynes signed forms consenting to procedures for his brother; those consent forms contained the heading "Long Term Hospital of Montgomery." In Pynes's deposition, he testified that when Houston was a patient at Jackson Hospital and then at NHM, he knew of "Noland" and understood the name Noland was associated with the long-term-care hospital that was at Jackson. Additionally, Pynes also testified that, when he met with administrative personnel at both Jackson and NHM to discuss various issues related to his brother's care, he understood that the personnel at Jackson and the personnel at NHM were different.
The discovery also indicated that, following Houston's death while a patient at NHM, Pynes signed an authorization for the release of Houston's body, allowing the "Long Term Care Hospital at Jackson" to release Houston's body to the funeral home. In addition, on August 29, 2008, when Houston's death certificate was filed by Pynes in the Probate Court of Houston County, along with his petition for letters of administration, it listed the place of Houston's death as the "Long Term Care Hospital at Jackson."
On September 22, 2008, Pynes's first attorney sent a letter to the "Long Term Care Hospital at Jackson," requesting a copy of its records on Houston. Pynes signed an authorization for release of information directed to the "Long Term Care Hospital at Jackson." In response to this request for medical records, the medical-records coordinator for NHM sent an invoice on November 3, 2008, to Pynes's attorney for the copying costs associated with supplying these records. The heading of the invoice reads "Long Term Hospital of Montgomery," and the invoice instructed that payment be made to the "Long Term Hospital of Montgomery." The medical-records coordinator prepared a certification of records, dated November 5, 2008, in which she authenticated the records she sent to Pynes's attorney as being those of the "Long Term Hospital of Montgomery." On November 6, 2008, Pynes's attorney issued a check made payable to "Long Term Hospital of Montgomery" for the invoiced amount. Additionally, Houston's medical records from NHM contain references to the "Long Term Care Hospital of Montgomery," as well as to the "Long Term Care Hospital," "Long Term Care Hospital at Jackson," and "Lloyd Noland Long Term Care Hospital at Jackson."
After conducting discovery, NHM filed a motion for a summary judgment in which it contended, among other things, that Pynes had sufficient information before filing his wrongful-death action to have ascertained the existence of and the proper name of NHM. On November 8, 2011, the trial court denied NHM's summary-judgment
Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).
Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000).
We first address Pynes's argument that NHM's petition for a writ of mandamus is untimely because NHM did not appeal the trial court's order of December 1, 2010, denying NHM's motion to dismiss, which the trial court certified as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Rule 21(a)(3), Ala. R.App. P., provides that a petition for a writ of mandamus "shall be filed within a reasonable time" and further explains that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal," which is 42 days. As we understand Pynes's argument, he contends that because NHM did not file its petition for a writ of mandamus within the 42-day period following the entry of the December 1, 2010, order, the petition was untimely. We disagree.
For an order to be susceptible to Rule 54(b) certification, the order must
Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999). "An appeal will not lie from a nonfinal judgment." Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007). Therefore, the fact that NHM did not appeal from the nonfinal order denying NHM's motion to dismiss had no effect on its later motion for a summary judgment or its petition for a writ of mandamus filed after the denial of that summary-judgment motion.
The trial court's order denying NHM's summary-judgment motion was entered on November 8, 2011. NHM filed its petition for a writ of mandamus on November 22, 2011, well within the 42-day presumptively reasonable time. The petition thus was timely filed.
We next address whether Pynes's second amended complaint, filed on January 6, 2010, after the expiration of the two-year limitations period for bringing a wrongful-death action, see § 6-5-410, Ala.Code 1975, substituting NHM for the fictitiously named party in the original complaint, related back to the filing of his original complaint on March 6, 2009. Rules 9(h) and 15(c)(4), Ala. R. Civ. P., "`"allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted."'" Ex parte Tate & Lyle Sucralose, Inc., 81 So.3d 1217, 1220 (Ala.2011) (quoting Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005), quoting in turn Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Fictitious-party practice is governed by Rule 9(h), which provides:
Under Rule 15(c)(4), an amendment of a pleading relates back "to the date of the original pleading when ... relation back is
In order to avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant on the original complaint, the plaintiff: (1) must have adequately described the fictitiously named defendant in the original complaint; (2) must have stated a cause of action against the fictitiously named defendant in the body of the original complaint; (3) must have been ignorant of the true identity of the fictitiously named defendant; and, (4) must have used due diligence in attempting to discover the true identity of the fictitiously named defendant. Ex parte Tate & Lyle Sucralose, 81 So.3d at 1220-21. In addition,
NHM disputes that Pynes stated a cause of action against it, that he adequately described NHM's role as it related to Houston's death, and that Pynes was ignorant of the identity of NHM when NHM was identified only as a fictitiously named defendant in the original complaint. Houston died on March 9, 2007; Pynes had two years from that date in which to file a wrongful-death action. See § 6-5-410, Ala.Code 1975 ("A personal representative may commence an action ... for the wrongful act, omission, or negligence of any person, persons, or corporation ... whereby the death of his testator or intestate was caused.... Such action must be commenced within two years from and after the death of the testator or intestate.").
Neither the original complaint nor the first amended complaint stated a cause of action against a long-term-care facility or adequately described a long-term-care facility's role as it related to Houston's death. Moreover, even though Pynes was on notice that the area within Jackson Hospital in which long-term care was provided was identified by several different names, Pynes did not attempt to discover NHM's true identity in a timely fashion. In his brief in response to NHM's petition, Pynes stated that when he filed his original complaint, he was not sure whether NHM was an entity separate from Jackson Hospital because, he says, Houston "remained at the same physical location within, Jackson Hospital, throughout the pertinent timeframe...." Pynes's brief, at 12. However, in another section of his brief Pynes states that Houston "was transferred to another wing within Defendant Jackson Hospital's facility on November 28, 2006." Pynes's brief, at 15. Pynes also acknowledges that four different names for NHM are used in Houston's medical records that were provided to his lawyers. Despite Houston's transfer during his hospitalization and the different names of the entities in Houston's medical records, Pynes conducted no discovery whatsoever to determine the correct entity that should have been sued. Such discovery — or lack thereof — is considered vital evidence by this Court in demonstrating due diligence. Tate & Lyle Sucralose, 81 So.3d at 1221. There simply is no evidence in the materials before us that
Pynes's failure to demonstrate that he is entitled to the relief afforded by Rules 9(h) and 15(c)(4) and his lack of due diligence prevent the second amended complaint from relating back to his original complaint. The two-year statute of limitations for a wrongful-death claim therefore was not tolled, and Pynes's wrongful-death claim against NHM is time-barred.
In his brief, Pynes argues that this case involves relation-back analysis pursuant to Rule 15(c)(3), Ala. R. Civ. P. Rule 15(c)(3) provides, in pertinent part:
In this case, Pynes, in the original complaint, named "Jackson Hospital, Dr. Mukesh Patel, and `Factitious [sic] party `A', `B' being that person and or agent for NOLAND COMPANY, whose true name and legal descriptions [are] otherwise unknown to Plaintiff but will be supplied by amendment when ascertained." An amendment merely substituting a named party for a fictitiously named party relates back only if the provisions of Rule 9(h) are satisfied, i.e., if the plaintiff "is ignorant of the name of an opposing party and so alleges" in the original complaint.
Based on the foregoing, we conclude that NHM has established a clear legal right to the relief sought. Accordingly, we grant the petition and issue the writ directing the Montgomery Circuit Court to enter a summary judgment in favor of NHM in Pynes's wrongful-death action against it.
PETITION GRANTED; WRIT ISSUED.
MALONE, C.J., and WOODALL and BOLIN, JJ., concur.
MURDOCK, J., concurs in the result.
