Statute of Limitations Defense & No Evidence of “Bona Fide Intent” to have Complaint Immediately Served


Varden Capital Properties, LLC v. Alexis Reese, [Ms. 1190692, Dec. 18, 2020] __ So. 3d __ (Ala. 2020). The Court (Sellers, J.; Parker, C.J., and Bolin, Shaw, and Mitchell, JJ., concur; Bryan, Mendheim, and Stewart, JJ., concur in the result) grants an Ala. R. App. P. 5 Petition for Permission to Appeal from an Interlocutory Order of the Montgomery Circuit Court denying a motion for summary judgment based on the statute of limitations, and reverses the Circuit Court’s Order and remands for entry of judgment in favor of the defendant. The Court finds that while the victim of a fall on real property timely filed suit on the last day before the two-year statute of limitations expired (Ms. *2), an unexplained delay of 100 days in effectuating service of the complaint demonstrates the plaintiff did not possess the requisite bona fide intent to have the complaint immediately served when she filed it. Citing (Ms. **3-4) Precise v. Edwards, 60 So. 3d 228, 230-231 (Ala. 2010), the Court reiterates the principle that “[t]he filing of a complaint commences an action for purposes of the Alabama Rules of Civil Procedure but does not ‘commence’ an action for purposes of satisfying the statute of limitations.” 60 So. 3d at 230-31. Rather, “[f]or statute-of-limitations purposes, the complaint must be filed and there must also exist ‘a bona fide intent to have it immediately served.’” Id. at 231 (quoting Dunnam v. Ovbiagele, 814 So. 2d 232, 237-38 (Ala. 2001)). “The question whether such a bona fide intent exist[s] at the time [a] complaint [is] filed must be determined by an objective standard.” ENT Assocs. of Alabama, P.A. v. Hoke, 223 So. 3d 209, 214 (Ala. 2016). Absent evidence demonstrating bona fide intent such as when she hired a process server and the steps taken to discover the proper address for service, the trial court erred in denying the motion for summary judgment based upon such an unexplained delay in service.

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