A defendant sought mandamus review of the circuit court’s denial of its motion for summary judgment. The motion presented issues of fictitious-party practice and the statute of limitations. Because the trial court had not reached the limitations issue, and because that issue might make the fictitious-party question irrelevant, the defendant had an adequate remedy other than mandamus. The Supreme Court of Alabama thus denied the writ. Ex parte Brian Nelson Excavating, LLC, No. 1071473 (Ala. Jun. 12, 2009).
Plaintiffs sued various defendants, real and fictitious, for damage that nearby construction work caused to their houses. Four years after the underlying events, they substituted Nelson for one of the fictitious defendants. Nelson moved for summary judgment. He argued that the plaintiffs’ claim sounded in nuisance, that this was subject to a two-year time bar, that the amendment naming him did not relate back to the original complaint, and that the claims against him should therefore be dismissed as untimely.
The plaintiffs replied that their naming of Nelson should relate back to the initial filing. They also argued that their case lay in trespass. Trespass, they said, drew a six-year time bar which made their claims against Nelson timely.
The trial court denied Nelson’s summary judgment motion. In doing so, it did not resolve the limitations issue. It simply reasoned: “There remains a question as to whether [Nelson’s] actions constituted nuisance or trespass; therefore, [Nelson’s] motion for summary judgment . . . is denied.” Nelson then filed a petition for the writ of mandamus.
The Supreme Court of Alabama declined to grant the writ. Mandamus, the court reminded readers, typically does not lie from the denial of a motion for summary judgment. However, a mandamus petition
is the proper vehicle by which to seek review of a denial of a motion for summary judgment filed by a party originally listed as a fictitiously named defendant when 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.
The fictitious-party question in this case depended upon the limitations question. If the claims were indeed for trespass, and thus under a six-year statute, the fictitious-party question would be “irrelevant.” But the lower court had not yet decided this point. Nelson therefore still had “[an]other adequate remedy.” The court wrote: “The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.” The fictitious-party issue was “not ripe for mandamus review” and the petition was denied.