Mitchell v. Thornley

98 So. 3d 556, 99 A.L.R. 6th 727, 2012 WL 1959050, 2012 Ala. Civ. App. LEXIS 138
CourtCourt of Civil Appeals of Alabama
DecidedJune 1, 2012
Docket2101127
StatusPublished
Cited by4 cases

This text of 98 So. 3d 556 (Mitchell v. Thornley) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Thornley, 98 So. 3d 556, 99 A.L.R. 6th 727, 2012 WL 1959050, 2012 Ala. Civ. App. LEXIS 138 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

This action arises from a three-car automobile accident occurring on September 27, 2005, involving Lindsey Mitchell, Fred Webb, and Crystal Fields Day. In May 2007, Webb died from causes unrelated to the automobile accident. On September 21, 2007, Mitchell filed a complaint against Webb and Day, alleging claims of “negligence and/or wantonness.” When Mitchell attempted to have Webb served, the summons and complaint were returned with a notification that Webb was deceased. Although Webb died before Mitchell filed her complaint, Mitchell’s claims survived against Webb’s personal representative. See Nelson v. Estate of Frederick, 855 So.2d 1043, 1047 (Ala.2003) (“Personal-injury claims upon which no action has been filed survive against the personal representative of a deceased tortfeasor, so long as the claim is not of an equitable nature. § 6-5-462, Ala.Code 1975.”). On April 13, 2009, more than a year and a half after filing the complaint, Mitchell filed a motion in the trial court to appoint an administrator ad litem for Webb’s estate “to serve as the personal representative” of Webb’s estate “for purposes of this lawsuit.” On October 19, 2009, the trial court appointed John Brent Thornley as the administrator ad litem of Webb’s estate.

Thornley, as the administrator ad litem of Webb’s estate, moved for a summary judgment, asserting, among other things, that Mitchell’s action is barred by the applicable statute of limitations. Mitchell filed a response to Thornley’s summary-judgment motion, asserting that her action is not time-barred. On March 8, 2011, the trial court entered a summary judgment in Thornley’s favor, concluding that Mitchell’s [558]*558claims are time-barred. The trial court appears to have applied a two-year limitations period to both the negligence claim and the wantonness claim.

Mitchell appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. Because Mitchell’s claims against Day remained pending in the trial court and the trial court had not certified the summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., the summary judgment was not a final, appealable judgment. See Edmonds Indus. Coatings, Inc. v. Lolley, 863 So.2d 1121, 1122 (Ala.Civ.App.2003) (stating that an appeal ordinarily lies only from a final judgment and that a judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided). Thus, we reinvested the trial court with jurisdiction for 14 days for that court either to certify the summary judgment as a final judgment under Rule 54(b) or to adjudicate the claims against Day. The trial court subsequently certified the summary judgment as a final judgment under Rule 54(b). This appeal does not concern the claims against Day.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth, 749 So.2d 425 (Ala.1999).... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.”

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

Initially, we address whether Thornley, the administrator ad litem of Webb’s estate, was actually made a defendant in this case. As noted, Webb, the alleged tortfea-sor, died before Mitchell commenced this action. Any personal-injury claims that Mitchell may have had against Webb survived against Webb’s personal representative. Mitchell moved the trial court to appoint an administrator ad litem to serve as the personal representative in this case, and the trial court appointed Thornley in that capacity. However, Mitchell never amended her complaint to add Thornley, the proper party in interest, as a defendant.

Thornley argues that Mitchell was required to amend her complaint to add Thornley as a defendant after the trial court appointed him as administrator ad litem. Thornley contends that Webb remains the nominal defendant. Thus, Thornley contends, with respect to Mitchell’s claims concerning Webb, there is no proper defendant in this case. Conversely, Mitchell argues that, when the trial court appointed Thornley as administrator ad litem, he was automatically made a defendant in this case. Thus, Mitchell contends, she was not required to amend her complaint to add Thornley as a defendant.

Thornley was appointed administrator ad litem pursuant to § 43-2-250, Ala.Code 1975, which provides:

“When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.”

No Alabama case appears to have squarely addressed whether the appoint[559]*559ment of an administrator ad litem automatically makes that person a party or whether the complaint must be amended to add the administrator ad litem as a party. However, Loving v. Wilson, 494 So.2d 68 (Ala.1986), is informative on this issue. In Loving, the plaintiffs filed a complaint seeking a sale of property and a division of the proceeds. During the proceedings, the plaintiffs unsuccessfully moved the trial court to appoint an administrator ad litem for the estates of James Wilson, one of the named defendants, and Robert Wilson, who had allegedly devised in his will a part of the property to be sold. 494 So.2d at 69. The supreme court concluded that the trial court erred by failing to appoint an administrator ad litem for the two estates. 494 So.2d at 70. Citing § 43-2-250, the court in Loving also observed that “[t]he appointment of administrators ad litem by the court would have joined the two estates as parties to the action.” Id. Thus, Loving indicates that a trial court’s appointing an administrator ad litem under § 43-2-250 automatically makes the administrator ad litem a party.

This conclusion is supported by the text of § 43-2-250, which requires a trial court to appoint an administrator ad litem if the estate of a deceased person must be represented in “the particular proceeding.” Because the trial court must appoint an administrator ad litem for certain proceedings, it would seem unnecessary to also require the filing of an amendment to the complaint to add the administrator ad li-tem as a party in such proceedings. Requiring such an amendment would essentially make the trial court’s appointment ineffective until an amendment is made. When the trial court appointed Thornley as administrator ad litem on October 19, 2009, Thornley automatically replaced Webb as the proper defendant in this case.

We next address Mitchell’s argument that the trial court erred in concluding that her negligence claim is time-barred. A negligence claim is subject to a two-year limitations period. § 6-2-38(£), Ala.Code 1975; and Booker v. United American Ins. Co., 700 So.2d 1333, 1339 (Ala.1997). However, in this case, the limitations period for the negligence claim was tolled for an additional six months under § 6-2-14, Ala.Code 1975.

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Cite This Page — Counsel Stack

Bluebook (online)
98 So. 3d 556, 99 A.L.R. 6th 727, 2012 WL 1959050, 2012 Ala. Civ. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-thornley-alacivapp-2012.