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STATUTE OF LIMITATIONS - KENDRICK V. LEWIS

In Kendrick v. Lewis, [Ms. 2100527, Jan. 13, 2012] __ So. 3d __(Ala. Civ. App. 2012), the Alabama Court of Civil Appeals held, among other things, that regardless of whether a complaint has been filed, if there is no "bona fide intent" to serve the defendant until after the statute of limitations has run, and that defendant is not, in fact, served until after the statute of limitations runs, then the defendant can successfully assert a statute of limitations defense. In that case, the plaintiff was injured in an automobile accident on December 10, 2007. The plaintiff's attorney filed a complaint on December 9, 2009, but failed to include a civil summons with it. A note in clerk's records stated, in part, "Mr. Jones [the plaintiff's attorney] failed to include a civil summons along with his complaint. Mr. Jones informed me that he has (120) one hundred and twenty days until service must be sent, and that he would wait to request service until he finished 'negotiations.'" Because there was no evidence of a "bona fide intent" to serve the defendant before the running of the statute of limitations, the fact that the defendant's name and address were on the complaint made no difference. Therefore, the Court affirmed the circuit court's grant of summary judgment for the defendant.

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