Ex parte Watters, [Ms. 1140526, June 3, 2016] __ So. 3d __ (Ala. 2016). Watters was sued in Conecuh Circuit Court by Gamble, a court-appointed administrator of an estate, alleging claims on behalf of the estate for legal malpractice under the Alabama Legal Services Liability Act for breach of fiduciary duty, vicarious liability, aiding and abetting, and an equitable claim seeking to quiet title to land in Conecuh County. Watters filed a motion for summary judgment contending that count one of the complaint asserting the legal-malpractice claim based on a breach of fiduciary duty was due to be dismissed because the claim, sounding in tort, did not survive the decedent’s death. Gamble responded contending that the claim contained in count one was comprised of breach-of-contract and equitable elements including unjust enrichment, both of which would survive the decedent’s death. The Conecuh Circuit Court entered a judgment granting Watters’s summary judgment motion as to all counts except the legal-malpractice claim and the count seeking to quiet title to the Conecuh property. Watters then petitioned the Supreme Court for a writ of mandamus seeking an order directing the Conecuh Circuit Court to vacate its order denying his motion for summary judgment as to count one.

The Supreme Court reiterated “[t]he general rule” that “a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment” because “[i]n all but the most extraordinary cases, an appeal is an adequate remedy. ...” Ms. *14-15, quoting Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000).

Citing Ex parte Hodge, 153 So. 3d 734 (Ala. 2014), Watters contended it was clear from the face of the complaint that count one, sounding in tort, did not survive the decedent’s death and was therefore due to be dismissed. The Court rejected this contention finding Hodge distinguishable. There, it was obvious from the face of the plaintiff’s complaint that the plaintiff’s claim was not filed within the four-year period of repose which serves as an absolute bar to all medical malpractice claims brought more than four years after the cause of action accrues as provided in § 6-5-482(a), Ala. Code 1975. Ms. *16-17. Here, by contrast, the Alabama Survival Statute, § 6-5-462, Ala. Code 1975, does not dictate the dismissal of count one of the complaint because it is not clear whether the claims contained within count one sound in tort, contract, or both. Relying upon Rutley v. County Skillet Poultry Co., 549 So. 2d 82, 84 (Ala. 1989), the Court noted it “must look to the allegations in the body of the complaint in order to determine the nature of a plaintiff’s cause of action.” As set forth in Hamner v. Mutual of Omaha Insurance Co., 49 Ala. App. 214, 218, 270 So. 2d 87, 90 (Ala. Civ. App. 1972), it is oftentimes difficult to distinguish between actions in tort and contract:

There is little question but that the line of distinction between actions in tort and contract is thin and often nebulous in many instances. The courts of this state have recognized that under certain circumstances, for the breach of a contract, there may be available either an action of assumpsit or one in tort. ... The theory on which the cases have been decided is often difficult to discern, but basically may be stated that if there is failure or refusal to perform a promise, the action is in contract; if there is a negligent performance of a contractual duty, or the negligent breach of a duty implied by law, such duty being not expressed in the contract, but arising by implication of law from the relation of the parties created by the contract, the action may be either in contract or tort. In the latter instance, whether the action declared is in tort or in contract must be determined from gist or gravamen of the complaint. Basically, the line of division between the actions of contract and tort in such instances is that of nonfeasance and misfeasance. If there is a defective performance, there is a breach of contract and may be also a tort. Law of Torts, Prosser, 4th ed., p. 614.

Ms. *19.

Because this case did not come within the exception to the general rule that a writ of mandamus will not issue to review the merits of an order denying the motion for a summary judgment, the petition for a writ of mandamus was denied.

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