General Motors of Canada Limited ("GM Canada") petitions this Court for a writ of mandamus directing the Choctaw Circuit Court to enter a summary judgment in its favor on the ground that the plaintiff's substitution of GM Canada for a fictitiously named defendant was made after the expiration of the applicable statute of limitations and does not relate back to the filing of the original petition. We grant the petition and issue the writ.
Facts and Procedural History
The complaint in the underlying action was filed on April 6, 2009. It alleged that the plaintiff, Gerardo Poole, was injured in a motor-vehicle accident that occurred on April 11, 2007. Poole sought damages on a products-liability claim against General Motors Corporation n/k/a Motors Liquidation Company ("MLC"), the company that allegedly designed, tested, made parts of, and distributed the 2004 Chevrolet Impala automobile that Poole was operating at the time of the accident, and Stewart Motor Company, the dealership that sold the vehicle to Poole's mother.
GM Canada filed an answer and raised as an affirmative defense that Poole's claims were barred by the applicable statute of limitations. Thereafter, GM Canada sought a summary judgment in its favor on that ground. Specifically, it argued that it was added as a party after the two-year statute of limitations had expired and that its substitution as a party did not "relate back" to the date the original complaint was filed. Following a hearing, the trial court denied GM Canada's motion. GM Canada then petitioned this Court for a writ of mandamus.
Standard of Review
This Court will issue a writ of mandamus when the petitioner demonstrates: "(1) a 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 BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). This Court generally does not review by writ of mandamus a trial court's decision denying a motion for a summary judgment; however, an exception exists in situations like the one before us:
Ex parte Mobile Infirmary Ass'n, 74 So.3d 424, 427-28 (Ala.2011).
The parties do not dispute that Poole's claims are covered by the two-year statute
Rule 9(h), Ala. R. Civ. P., provides a mechanism by which a party who is "ignorant of the name of an opposing party" may designate that party by a fictitious name. When the opposing party's true name is later discovered, the party may amend the pleadings to substitute that true name.
Mobile Infirmary, 74 So.3d at 429 (emphasis added). Thus,
74 So.3d at 430 (quoting Clay v. Walden Joint Venture, 611 So.2d 254, 256 (Ala. 1992) (emphasis added)).
GM Canada contends that Poole did not act with due diligence in attempting to discover its identity because, it argues, Poole and/or his counsel of record should have known that GM Canada manufactured and/or assembled, at least in part, the subject vehicle. Specifically, GM Canada notes that, pursuant to the Code of Federal Regulations, see 49 C.F.R. § 567 (2000), it was required to affix a label to the driver's door area of the Impala stating its name as the manufacturer of the vehicle. In its summary-judgment filings below, GM Canada provided a photograph of the door of the vehicle depicting a clearly legible label that indicated that the motor vehicle was "MFD BY GENERAL MOTORS OF CANADA LTD." GM Canada thus argues that Poole had sufficient and readily available facts — via the door label — to lead to the discovery of its identity. We agree.
74 So.3d at 429-30 (emphasis added). See also Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala.2008) (finding that a substitution of a party for a fictitiously named party did not relate back where the plaintiff could have discovered an insurer's identity by, among other things, examining her policy or reviewing an accident report), and Marsh v. Wenzel, 732 So.2d 985, 990 (Ala. 1998) (holding that one could not reasonably conclude that a plaintiff was ignorant of the name of a pathologist when the pathologist's name was set forth in her medical records).
Like the plaintiff in Mobile Infirmary, Poole had a source of information that would have led him to the identity of the manufacturer of the Impala — that vehicle's legally required manufacturer's identification label. Poole argues, however, that he nevertheless acted with due diligence in investigating and discovering GM Canada's identity. Specifically, he argues that his counsel of record had assumed representation
The purported lack of possession of an allegedly defective product that is the subject of a products-liability action, this Court has previously held, does not necessarily excuse the failure to examine it to learn its manufacturer. In Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992), the plaintiff, Jones, was injured at his place of employment, USX, by a blower fan. He attempted to initiate a products-liability action against the manufacturer of the fan; after the statute of limitations had run, Jones discovered the name of, and attempted to substitute, the actual manufacturer of the fan, Resorcon, Inc., as a party for a fictitiously named defendant.
This Court held that Jones had failed to exercise due diligence in discovering Resorcon's identity. Specifically, the blower fan in question was marked with an identification plate indicating that Resorcon was the manufacturer. Jones's counsel had requested from USX the opportunity to inspect the fan to determine the manufacturer, but his request had been denied. We held that the failure of Jones's counsel to do more to inspect the fan to discover the name of the manufacturer indicated a lack of due diligence:
Jones, 604 So.2d at 373. Thus, despite the fact that the information in question — the identity of the manufacturer of the fan as disclosed on the identification plate — was held in the hands of a noncooperative third party, due diligence required that Jones act to inspect the allegedly defective product and to discover that information. See also Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala. 1995) (holding that the plaintiff failed to exercise due diligence to learn the identity of a forklift manufacturer because, among other things, "Clark Equipment forklifts have their names clearly listed on the nameplate....").
In the instant case, unlike Jones, the information needed by Poole — the identification of the manufacturer of the motor vehicle as stated on the vehicle — was actually in the possession of his own agents or his family. There is no allegation that either Poole or his subsequent counsel was denied access to the motor vehicle; instead, Poole's counsel stated in an affidavit that no one acted to "physically inspect the vehicle prior to filing the lawsuit." Further, if Poole had been denied access to the Impala, under Jones, due diligence would have required him to seek a court order to inspect it.
Poole contends that MLC's answer "misled Plaintiff's Counsel to believe [MLC] was in fact the primary manufacturer...." Poole's brief, at 18.
Poole, citing Ex parte Nail, 111 So.3d 125 (Ala.2012), appears to contend that an inspection of the vehicle for manufacturing information before filing the complaint would have amounted to more than due diligence.
Because the label on the vehicle, which was required by law, was conspicuous, legible, and in the possession of Poole's agents or his family, he should have readily discovered it, and his failure to do so amounted to a failure to act with due diligence. The "`"undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue,"'" Ex parte Mobile Infirmary, 74 So.3d at 428 (quoting Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000), quoting in turn Snow, 764 So.2d at 537); thus, the trial court had no discretion to do anything other than to grant GM Canada's motion seeking a summary judgment in its favor on the statute-of-limitations ground. For the foregoing reasons, we grant GM Canada's petition and issue a writ of mandamus directing the Choctaw Circuit Court to enter an order granting GM Canada's motion for a summary judgment.
PETITION GRANTED; WRIT ISSUED.
STUART, BOLIN, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.
MOORE, C.J., dissents.
MOORE, Chief Justice (dissenting).
I respectfully dissent because General Motors of Canada Limited ("GM Canada")
I. Standard of Review
Our standard for mandamus relief is as follows:
Ex parte Jackson, 780 So.2d 681, 683 (Ala. 2000). "The general rule is that `"a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment."' In all but the most extraordinary cases, an appeal is an adequate remedy; however, there are exceptions...." 780 So.2d at 684 (citation omitted).
One exception involves fictitiously named parties and the relation-back doctrine:
780 So.2d at 684 (quoting Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987) (citation omitted)). "`[A] writ of mandamus is proper ... if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.'" Id. (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala. 1999)).
GM Canada, however, presents the writ-of-mandamus standard of review in an extremely truncated fashion. GM Canada's standard of review and argument omit entirely any reference to the four elements a petitioner must show in order for mandamus to lie.
I also note that it is not enough that GM Canada demonstrates that this case is one of the "narrow class of cases involving fictitious parties and the relation-back doctrine." Ex parte Jackson, 780 So.2d at 684. Rather, GM Canada must also demonstrate it satisfies the four elements necessary for mandamus relief.
II. GM Canada Cannot Show That it is Entitled to Mandamus Relief
Even if GM Canada carried its burden by properly pleading its entitlement to the writ of mandamus in this case, I believe mandamus would not lie. First, GM Canada lacks a clear legal right to the order sought. The clear legal right must be an "indisputable right to a particular result." Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987) (emphasis added). "[T]he right to the relief sought [must be] clear and certain, with no reasonable basis for controversy." Ex parte Nissei Sangyo America,
A petitioner can hardly show a clear legal right to a summary judgment where relevant facts are disputed in the trial court. "A writ of mandamus is proper ... if the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant...." Ex parte Snow, 764 So.2d 531, 537 (Ala.1999) (emphasis added). The main opinion even recognizes the uncertainty of an important fact in this case: whether Poole had sufficient and readily available facts to lead to the discovery of GM Canada's identity. 144 So.3d at 240. Specifically, as to who possessed the Chevrolet Impala vehicle at issue, the opinion equivocates, stating on one hand it was "in the possession of Poole's agents or his family," 144 So.3d at 242 (emphasis added), while conceding that "[t]he location of the Impala for the nearly two-year period preceding the filing of the complaint is unclear. However, the materials before us suggest that the vehicle was owned by Poole's mother and that, for a period before and after the complaint was filed, the vehicle was in the possession of attorneys retained by Poole." 144 So.3d at 241 n. 6.
According to the record, when Poole's attorney filed the complaint on April 6, 2009, he was not aware of the location of the Impala, nor was he aware who had possession of the vehicle. Poole's attorney also stated that neither "[Poole] nor anyone acting on [Poole's] behalf had possession of the vehicle." Indeed, it was not until after the June 10, 2009, motion to amend the complaint that Poole's attorney learned that the Impala was in the possession of one of Poole's prior attorneys. The facts do not indicate whether Poole's prior attorney acted as the "referring attorney" to Poole's current attorney or was twice removed from the attorney-client relationship. Further, the facts do not indicate whether Poole's prior attorney undertook representation on this matter, which would make his prior attorney his agent for this matter.
With such a significant fact still in dispute, I fail to see how the main opinion glosses over the question in order to issue the writ of mandamus here. When there is no clear factual record on the past possession and location of the Impala and the label that indicates its manufacturer, there can be no clear legal right to a summary judgment.
The main opinion relies primarily upon Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992) (concerning a label on a blower fan), and Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.1995) (concerning a label on a forklift). In both of those cases, the presence of a manufacturer's label was only one aspect of the due-diligence inquiry. In Jones, the plaintiff went to an industrial plant and visually inspected a label that identified the fan manufacturer, but read the label incorrectly. 604 So.2d at 373. We observed: "When Jones did begin efforts to determine the true manufacturer, his efforts were sporadic and ineffectual, and he did not amend to state a claim against the true manufacturer until September 17, 1991." 604 So.2d at 374. In Jones, the plaintiff filed a motion to substitute Resorcon for a fictitiously named defendant about 14 months after filing his initial complaint and after he had received the codefendant's answer denying that it had manufactured the fan. Id. at 372.
Unlike the plaintiff in Jones, Poole was unable to investigate the vehicle label by himself, having been rendered a quadriplegic in the automobile accident. Unlike the plaintiff in Fulmer, Poole had not learned anything indicating that the Impala was a "GM Canada" model. In contrast to the plaintiffs' dilatory actions in Jones and Fulmer, Poole's attorney diligently attempted to discover the manufacturer's identity. Poole's complaint specifically included as a fictitiously named defendant that "corporation ... which designed, engineered, tested, manufactured ... the 2004 Chevrolet Impala." Poole's attorney served discovery with the initial complaint on General Motors Corporation that sought the identity of the manufacturer of the Impala. Poole's attorney later discovered the identity of GM Canada and immediately filed the motion to substitute GM Canada for the fictitiously named party. Unlike the 14-month delay in Jones and the 12-month delay in Fulmer, the delay between Poole's filing the initial complaint and his filing the motion to substitute GM Canada was only 2 months.
Upon consideration of all the facts before us, "reasonable people could differ as to whether [Poole] proceeded in a reasonably diligent manner in identifying [GM Canada]." Ex parte FMC Corp., 599 So.2d 592, 595 (Ala. 1992). There is a "reasonable basis for controversy" in the facts that renders GM Canada's right to relief unclear and uncertain. Nissei Sangyo, 577 So.2d at 914. A plaintiff's due diligence in identifying a fictitiously named defendant should not be reduced to a one-factor test of whether a car had a manufacturer's label, and, indeed, in Jones and Fulmer the Court did not so hold. Because reasonable people could dispute whether Poole exercised due diligence here, GM Canada does not have an indisputable or clear legal right to a summary judgment.
Second, where there is no "clear legal right" to the order sought, there can be no imperative duty for the trial court to act. "[W]here the right sought to be enforced is a clear legal right, the allowance of which is a matter of peremptory duty, and not of judicial discretion, there can be but little doubt or difficulty in determining the propriety of the remedy by mandamus." Bank of Heflin v. Miles, 294 Ala. 462, 466-67, 318 So.2d 697, 701 (1975) (emphasis added). The trial court denied GM Canada's motion for a summary judgment. "After careful consideration of [GM Canada's] motion and [Poole's] response in opposition and his supplemental report," the trial court found that Poole "exercised due diligence in ascertaining the identity of [GM] Canada and amending the Complaint to include that Defendant as a party to this litigation." The trial court in carefully considering GM Canada's motion did not clearly exceed its discretion; neither did the trial court act in an arbitrary and capricious manner. Here, the evidence simply does not indisputably show that Poole failed to act with due diligence in identifying GM Canada as the party to be sued. This Court should not second-guess the reasonable judgment of the trial court.
Third, GM Canada has not demonstrated that it lacks another adequate legal remedy. We have previously stated:
Ex parte Jackson, 780 So.2d at 685. Because GM Canada could have sought permission to appeal the trial court's order under Rule 5, Ala. R.App. P., and did not, we should deny its petition for a writ of mandamus.
Because GM Canada completely failed to plead the required elements for mandamus relief, the Court must deny the writ. Moreover, if GM Canada had adequately pleaded the required elements, GM Canada would still not be entitled to the writ. GM Canada has not demonstrated that Poole indisputably failed to exercise due diligence in discovering its identity. Thus, GM Canada, even under the fictitious-party exception, is not entitled to the writ. I therefore dissent.