(251) 299-0101

STATUTE OF LIMITATIONS/TIMELY COMMENCEMENT OF ACTION - ENT ASSOCIATES OF ALABAMA, P.A. V. HOKE

ENT Associates of Alabama, P.A. v. Hoke, [Ms. 1141396, 1141401, Sept. 2, 2016] __ So. 3d __ (Ala. 2016). The Supreme Court, pursuant to Rule 5, Ala. R. App. P., reverses the Montgomery Circuit Court's interlocutory order denying motions for summary judgment premised upon arguments that an action for medical negligence was not timely commenced as required by Ala. R. Civ. P. 3. Citing Precise v. Edwards, 60 So. 3d 228 (Ala. 2010), the Court concludes the evidence before the Montgomery Circuit Court on summary judgment was not sufficient for the court to find that plaintiff's counsel had "a bona fide intent to have [the complaint] immediately served." Ms. *12, quoting Dunnam v. Ovbiagele, 814 So. 2d 232 (Ala. 2001). The Court reiterated that the timely commencement of an action for statute-of-limitations purposes requires both the filing of a complaint within the limitations period and objective proof of a bona fide intent to have the complaint immediately served:

"'a bona fide intent to have [an action] immediately served' can be found when the plaintiff, at the time of filing, performs all the tasks required to serve process. ... On the other hand, when the plaintiff, at the time of filing, does not perform all the tasks required to effectuate service and delays a part of the process, a lack of the required bona fide intent to serve the defendant is evidenced."

Ms. *13, quoting Precise, 60 So. 3d at 233. Here, plaintiff did not provide the address of any of the defendants to the circuit court at the time she filed her complaint. She informed the clerk of court that she was electing to serve the defendants by use of a process server as permitted by Rule 4(i)(1), Ala. R. Civ. P. However, there was no evidence that she made any effort to actually obtain a process server at the time she filed her complaint, such that the Montgomery Circuit Court could not properly have concluded that the evidence supported a finding of a bona fide intention to immediately have the complaint served. See Ms. *13-26. Accordingly, the judgment denying the defendant's motion for summary judgment is reversed.

Related Documents: ENT Associates of Alabama v Hoke

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