Opinion
No. 1000867.
Decided August 31, 2001. Rehearing Denied October 19, 2001.
Appeal from Mobile Circuit Court (CV-00-3569).
Larry C. Moorer, Mobile, for appellant.
R. Alan Alexander and Russell C. Buffkin of Helmsing, Leach, Herlong, Newman Rouse, P.C., Mobile, for appellees.
Rebecca Reynolds filed this medical-malpractice action against Dr. Stephen Sheppard and Azalea City Plastic Surgery, P.C. ("Azalea City"), on November 9, 2000, alleging breach of contract and negligence. Both claims alleged malpractice in regard to surgery Dr. Sheppard had performed on the plaintiff at the office of Azalea City on November 13, 1998. The defendants moved to dismiss the action as time-barred. The trial court granted their motion and dismissed the action. Reynolds appealed. We reverse and remand.
The Alabama Legislature established a two-year statute of limitations for "[a]ll actions against physicians, . . . medical institutions, or other health care providers for liability, error, [or] mistake, . . . whether based on contract or tort." Ala. Code 1975, § 6-5-482. Reynolds filed her complaint less than two years after the date of the alleged malpractice; however, § 6-5-482 requires that the action be "commenced" within the two-year period. For statute-of-limitations purposes, to "commence" an action one must timely file the complaint and must file it with the intention that process be served upon the opposing party or parties immediately. Mace v. Centel Bus. Sys., 549 So.2d 70 (Ala. 1989).
The motion to dismiss was based on the contention that Reynolds had not filed her complaint with the intent that service of process be made immediately upon the defendants. The trial court apparently based the dismissal on that contention. Does the record require a holding that Reynolds, who filed this action pro se, manifested an intent that process not be immediately served upon the defendants? The complaint begins with a recitation of the names and addresses of the plaintiff and the two defendants, with the defendants' addresses both being stated as
"6701 Airport Boulevard, Mobile, Alabama." The complaint ends with the following request:
"PLEASE SERVE DEFENANT [sic] AS FOLLOWS:
"Dr. Stephen R. Sheppard Azalea City Plastic Surgery 6701 Airport Blvd., Ste. B-223 Mobile, Alabama 36608"
With her complaint filed with the clerk, Reynolds included only one copy for service on a defendant, and she did not list the address for Dr. Sheppard or for Azalea City on the summonses she filed with her complaint.
An action has not been commenced if the complaint is filed with instructions to the clerk to withhold service. Mace v. Centel Bus. Sys., 549 So.2d 70 (Ala. 1989); Finkelstein v. Lovell, 449 So.2d 1240 (Ala. 1984); Freer v. Potter, 413 So.2d 1079 (Ala. 1982); Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala. 1980). Reynolds did not request that service be withheld.
Unless the filing fee is paid or a court-approved verified statement of substantial hardship is filed within the limitations period, the action has not been commenced within that period. Mace, supra; De-Gas, Inc. v. Midland Res., 470 So.2d 1218 (Ala. 1985). Reynolds paid her filing fee within the limitations period.
Unless the plaintiff provides instructions for service of process, or an explanation as to why no such instructions are provided, the plaintiff has not commenced an action, for purposes of the statute of limitations.Pettibone Crane Co. v. Foster, 485 So.2d 712 (Ala. 1986).
As previously stated, Reynolds's complaint listed addresses for both defendants, which addresses were the same; the complaint requested service and listed an address at which both defendants could be served. Reynolds filed summonses and paid the filing fee at the time she filed her pro se complaint. These facts do not support the conclusion that, as a matter of law, Reynolds did not intend, when she filed her complaint, that process be immediately served upon Dr. Sheppard and Azalea City.
The trial court erred in granting the motion to dismiss. Therefore, we reverse the judgment of dismissal and remand this case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Stuart, J., concurs.
Moore, C.J., and Lyons and Woodall, JJ., concur in the result.
The main opinion concludes, "These facts do not support the conclusion that, as a matter of law, Reynolds did not intend, when she filed her complaint, that process be immediately served upon Dr. Sheppard and Azalea City." 818 So.2d at 391. The mandate of the main opinion remands for further proceedings consistent with that opinion, presumably including a trial on the issue of intent.
This Court has previously held that certain facts, as a matter of law, establish a lack of intent to commence an action. Instructions to withhold service, that are not revoked within the period of limitations, standing alone, establish a lack of intent to commence an action, as a matter of law. Ward v. Saben Appliance Co., 391 So.2d 1030 (Ala. 1980). A lack of intent to commence an action can be found as a matter of law when the plaintiff pays no filing fee, files no summons for service on the defendant, gives no instructions for service, and provides no addresses within the period of
limitations. Latham v. Phillips, 590 So.2d 217 (Ala. 1991). This Court has held that paying the filing fee and providing instructions for service of process are jurisdictional prerequisites. Mace v. Centel Bus. Sys., 549 So.2d 70 (Ala. 1989). In Mace, the plaintiff neither paid the filing fee nor obtained court approval for proceeding without paying a filing fee and also did not provide addresses, a summons, or instructions for service of process. Under the circumstances, this Court determined that, as a matter of law, the plaintiff had lacked the requisite intent to commence the action at the time of filing. In Pettibone Crane Co. v. Foster, 485 So.2d 712 (Ala. 1986), failing to provide an address in the amended complaint and failing to give instructions regarding service established a failure to commence an action.
The difficulty comes when some, but not all, of these activities are carried out within the period of limitations. However, under the circumstances here presented, I conclude that the requisite intent has been established, as a matter of law. Reynolds paid a filing fee and included a single address that can reasonably be read as applicable to both defendants. She included a service copy for only one of the two defendants. She did not provide for either defendant a summons on which an address was given. Finally, she did not give instructions as to the manner of service, i.e., certified mail, delivery by a process server, or publication. Nevertheless, the clerk's office, under the undisputed evidence, advised her daughter that "everything was fine" and assigned a case number. Six days after the filing of the complaint, the clerk, contrary to the earlier assurance, notified Reynolds that she needed to prepare and send: (a) a service copy of the complaint for the second named defendant; (b) an original and two copies of the summons and complaint for each defendant; and (c) the service address or instructions on the required summons for each defendant. Reynolds promptly cooperated, and service was accomplished 14 days later.
In summary, when she filed her complaint, Reynolds paid her filing fee, furnished an address suitable for both defendants, and received an assurance from the clerk that "everything was fine." Thereafter, she effected service of the summons and the complaint on the defendants within 14 days of receiving notice from the clerk that additional documentation was necessary and, in all events, within just 20 days from the filing of her complaint. I would hold that, as a matter of law, the record establishes the requisite intent to commence the action.
I therefore concur in the result to reverse and remand, but I would limit further proceedings to matters other than the defense of the statute of limitations.
Woodall, J., concurs.