Rel: July 2, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2026
SC-2025-0591
Ex parte City of Birmingham
PETITION FOR WRIT OF MANDAMUS
(In re: Demarco Stoudmire
v.
City of Birmingham)
(Jefferson Circuit Court: CV-23-901036)
COOK, Justice.
SC-2025-0591
On April 3, 2021, Demarco Stoudmire was involved in a serious
motorcycle accident when a defect1 in the road on Avenue V in
Birmingham caused him to crash. He submitted a "Notice of Claim" to
the City of Birmingham ("the City") within 6 months of his accident as
required by Alabama law.
Eventually, Stoudmire filed suit against the City claiming
negligence. The City answered his complaint by asserting, among other
things, that it was entitled to municipal immunity.
After discovery, the City filed a motion for a summary judgment in
which it argued that it was entitled to a judgment in its favor for two
reasons. Among other things, the City argued that Stoudmire had
provided no evidence indicating that it had either actual or constructive
knowledge of the defect such that it would not be entitled to municipal
immunity.
Stoudmire responded by pointing the trial court to an affidavit by a
former city employee, a statement by a bystander to the accident, and a
1The parties dispute whether the condition was a "pothole" or a
"dip," with Stoudmire himself initially describing it as a pothole before
later retracting that term in favor of "dip." We therefore refer to it
throughout this opinion simply as the "defect."
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Birmingham Fire and Rescue patient-care report from first responders,
all of which, he said, showed that a genuine issue of material fact existed
as to this issue. The trial court denied the City's motion.
Around a year later, the City renewed its motion for a summary
judgment and attached a few new pieces of evidence. The City also filed
a motion to strike some of Stoudmire's evidence. After receiving
Stoudmire's response, the trial court struck the first responders' patientcare report, the bystander's statement, and part of the former city
employee's affidavit that Stoudmire had previously presented. It then
denied the City's renewed summary-judgment motion.
The City has now petitioned this Court for a writ of mandamus,
claiming that, with much of Stoudmire's evidence having been struck, the
evidence that remains does not present a genuine issue of material fact
as to whether the City had prior notice of the defect such that it was not
entitled to municipal immunity.
For the reasons stated below, we conclude that Stoudmire's
admissible evidence was not enough to show that a genuine issue of
material fact existed as to whether the City had actual or constructive
knowledge of the defect at issue and, thus, that the trial court should
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have entered a judgment for the City based on municipal immunity.
Therefore, we grant the petition and issue the writ.
Facts and Procedural History
On April 3, 2021, Stoudmire was traveling on Avenue V in Ensley,
a neighborhood within the Birmingham city limits, when the motorcycle
he was operating struck a defect in the road. He was thrown from the
motorcycle and suffered severe injuries, including a broken collar bone
and broken ribs, which required surgery.
About four months later, on August 2, 2021, he filed an "Affidavit
and Notice of Claim" with the Birmingham City Clerk, purportedly
notifying the City of his accident and injuries and making a claim for
medical bills for the treatment of his injuries. His only description of the
location of the accident was "Avenue V in Ensley."
The City acknowledged receipt of his claim and said that it would
"proceed to investigate." On September 2, 2022, the City denied his claim.
On March 31, 2023, Stoudmire sued the City in the Jefferson
Circuit Court. In his complaint, he alleged that the City had "failed to
repair or remedy the defects in Avenue V" after those defects had been
called to the City's attention.
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In its answer, the City asserted that it was immune from suit under
§ 11-47-190, Ala. Code 1975. It also asserted that Stoudmire was barred
from recovering damages under Alabama's notice-of-claim statutes -- §§
11-47-23 and 11-47-192, Ala. Code 1975.
After discovery, on April 29, 2024, the City moved for a summary
judgment, arguing, among other things, that (1) Stoudmire's notice of
claim was not specific enough to comply with the notice-of-claim statutes
and (2) Stoudmire had failed to provide evidence indicating that the City
had actual or constructive knowledge of the defect in the road before his
accident such that it was not entitled to municipal immunity under § 11-47-190.
First, the City argued that §§ 11-47-23 and 11-47-192 require that
a notice of claim indicate "the place where the accident occurred." In the
City's view, "Avenue V in Ensley" is too broad of a location because that
road is "wide-ranging and connects to numerous streets, intersections
and avenues." Therefore, the City reasoned, Stoudmire's notice of claim
was deficient and the suit should be dismissed.
The City also stated that it had no actual or constructive knowledge
of the defect before Stoudmire's accident. In support of its position, the
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City supplied deposition testimony from its director of the Department of
Public Works, Joshua Yates. He testified that he had checked the City's
311 system -- software that logs reports about infrastructure deficiencies
-- and that he could not find any reports about the location of Stoudmire's
accident. The City also argued that Stoudmire had failed to present
substantial evidence in support of his claims against it.
Stoudmire responded to the City's notice-of-claim argument by
arguing that the statutes do not require perfection -- only notice -- and
that his notice was sufficiently detailed for the City to discern where the
accident occurred. In support of his argument, he cited the City's
response to his notice of claim, in which it stated that, after "careful
review of the facts, reports and other information," it denied liability. He
also cited cases from our Court in which a notice of claim had been
determined to be adequate, even when it had contained incorrect
information. Finally, he stated that, even if his notice of claim was
lacking, the City still had copies of the patient-care report from the first
responders who had responded to the scene and a case-identification card
written by the police officer who also had responded to the scene. These,
he said, were sufficient to put the City on notice of his claim.
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As to the City's assertion that it was entitled to municipal
immunity, Stoudmire countered with several pieces of evidence. First, he
produced an affidavit by a former city employee, Thomas Fitzpatrick.
Fitzpatrick testified that, "[w]hile employed" with the City from 2003-2019, he had struck a large hole in the vicinity of where Stoudmire's
accident occurred, which broke his truck's trailer hitch. He then called
his supervisors, who dispatched a City tow truck that came and hauled
his truck away. In the final two sentences of his affidavit, he also testified
that he "was told that the hole on Avenue V was an ongoing problem
related to a pipe" that was "creating a sinkhole that had been patched
multiple times but never fixed."
Next, Stoudmire highlighted a statement by Neil MacDonald, a
neighbor who had helped him after his accident. That statement
recounted how the hole in Avenue V "was an ongoing problem for a long
time." It also detailed an incident when a Birmingham police officer
escorting a funeral procession on his motorcycle had crashed after hitting
the hole. Although this document was purportedly signed by MacDonald,
it was not notarized.
The trial court held a hearing on the City's motion and denied the
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motion on July 1, 2024.
On July 21, 2025, the City filed two motions: a renewed motion for
a summary judgment and a motion to strike four pieces of Stoudmire's
evidence. In the motion to strike, the City first argued that the final two
sentences of Fitzpatrick's affidavit, in which he discussed what someone
had told him about a pipe-caused sinkhole, were hearsay and
inadmissible. Second, the City wanted the statement purportedly signed
by MacDonald to be struck in its entirety because it was not notarized
and, thus, not admissible at trial. Third, it argued that the patient-care
report, generated by the first responders to the accident was not
authenticated and inadmissible at trial. Finally, the City moved to strike
portions of the Stoudmire's deposition that it believed constituted
hearsay.
In its renewed motion for a summary judgment, the City reiterated
the arguments that it had made in its initial motion, but it attached new
evidence. First, it provided an affidavit of Tywanna Davis. She was the
director of the 311 system's call center at the time of Stoudmire's accident
and at the time the investigation was completed. Davis testified that she
had conducted a search of the 311 system and had determined that there
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were no records indicating that the City knew of any defect in the road
before the accident.
Second, to counter evidence from MacDonald's statement, the City
submitted a notice of claim and deposition excerpts from a separate
lawsuit filed by the officer involved in the funeral-procession accident
referenced by MacDonald. Because the officer alleged that the accident
had occurred after Stoudmire's accident, the City argued that it could not
establish prior notice.
Stoudmire responded by complaining that the City was not
providing any new evidence and that the trial court should treat the
amended motion for a summary judgment as a motion for
reconsideration. He also incorporated his response to the City's earlier
summary-judgment motion.
On August 6, 2025, the trial court held a hearing on the motion.
Two days later, the trial court issued two orders: one striking three of the
four aforementioned pieces of evidence from the record and one denying
the City's amended motion for a summary judgment.
The City then filed a motion to reconsider on August 8, 2025, which
was denied. This petition followed, and our Court ordered answers and
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briefs.
Standard of Review
We will grant a mandamus petition only when there is " ' 1) a clear
legal right in the petitioner to the order sought; 2) an imperative duty
upon the respondent to perform, accompanied by a refusal to do so; 3) the
lack of another adequate remedy; and 4) properly invoked jurisdiction of
the court.' " Ex parte U.S. Bank Nat'l Ass'n, 148 So. 3d 1060, 1065 (Ala.
2014) (citation omitted).
While orders denying a summary-judgment motion are not
typically reviewable by a mandamus petition, our Court has
acknowledged an exception when the motion is "grounded on a claim of
immunity." Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002); see also Ex
parte City of Muscle Shoals, 257 So. 3d 850, 855 (Ala. 2018)
(acknowledging that "[t]his Court in several cases has entertained a
mandamus petition where a municipality asserted an immunity defense"
and collecting cases). We will consider the issues presented only to the
extent that they challenge the trial court's determination of the
immunity issues. See Ex Parte Kelley, 296 So. 3d 822, 826 (Ala. 2019).
We review an order denying a summary-judgment motion de novo.
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See Nettles v. Pettway, 306 So. 3d 873, 875 (Ala. 2020). First, the movant
must make a prima facie showing that no genuine issue of material fact
exists and that the movant is entitled to a judgment as matter of law. See
Blue Cross & Blue Shield of Alabama v. Hodurski, 899, So. 2d 949, 952-53 (Ala. 2004). If the movant does so, then the burden shifts to the
nonmovant to present substantial evidence demonstrating that there is
a genuine issue of material fact. See Powers v. Chadwell Homes, LLC,
413 So. 3d 707, 709-10 (Ala. 2024). When making our evaluation, we view
the evidence in the light most favorable to the nonmovant. See Jefferson
Cnty. Comm'n v. ECO Preservation Servs., L.L.C., 788 So. 2d 121, 127
(Ala. 2000).
Discussion
Municipalities in Alabama are generally not "liable for damages for
injury done to or wrong suffered by any person." § 11-47-190, Ala. Code
1975. However, there are two exceptions to that general immunity. This
case is about the second exception, which allows claims for damages when
the
"injury or wrong was done or suffered through the neglect or
carelessness or failure to remedy some defect in the streets,
alleys, public ways, or buildings after the same had been
called to the attention of the council or other governing body
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or after the same had existed for such an unreasonable length
of time as to raise a presumption of knowledge of such defect
on the part of the council or other governing body."
Id. Put simply, a municipality can be liable for failing to maintain certain
types of public infrastructure when it knew about a defect or when the
defect persisted long enough that, in the ordinary course of things, it
should have known about it. See Slade v. City of Montgomery, 577 So. 2d
887, 893 (Ala. 1991) (articulating that the presumption of knowledge
arises when a municipality could have obtained that knowledge "by the
use of ordinary diligence").
In its petition, the City argues that Stoudmire failed to present
substantial evidence demonstrating that the City knew or should have
known of the alleged defect and that the City is therefore entitled to
immunity.2 Specifically, the City contends that, because much of
2The City also makes a second, more vigorous argument about
Stoudmire's compliance with the notice-of-claim statutes. Those statutes
detail procedures for how an injured person may proceed with such a
claim against a municipality. First, the person must present a claim
"within six months" of the time it accrues. § 11-47-23, Ala. Code 1975.
Second, the person must file a sworn statement specifying "the day and
time and the place where the accident occurred and the damages
claimed" or else "[n]o recovery shall be had." § 11-47-192. Ala. Code 1975. We read those statutes together -- in pari materia -- to say that "a
plaintiff in a tort action against a municipality must file a sworn
statement with the clerk within six months from the accrual of the claim."
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Stoudmire's evidence had been struck, the scant evidence remaining --namely, the portions of an affidavit from a former City employee that had
not been struck, stating that he had encountered a defect at some point
between 2 and 18 years before Stoudmire's accident -- is insufficient as a
matter of law to support Stoudmire's claim. We first address whether the
City established a prima facie entitlement to immunity. We then consider
whether Stoudmire presented sufficient evidence to create a genuine
issue of material fact precluding a judgment in the City's favor.
I. The City's Prima Facie Case
Poe v. Grove Mem'l Hosp. Bd., 441 So. 2d 861, 863 (Ala. 1983). The City
insists that Stoudmire did not, with enough detail, name the "place" of
his accident. The City says that this failure to meet a procedural
condition precedent for recovery warrants a judgment in its favor.
We find no caselaw that affirmatively addresses whether
mandamus will lie to consider a trial court's adverse ruling on a condition precedent for recovery. The City and Stoudmire argue extensively over
whether we should consider those grounds for relief here. But even if
failure to comply with the notice-of-claim statutes was not reviewable via
mandamus, the baseline immunity determination plainly is. We
therefore do not consider whether mandamus extends to rulings
regarding compliance with the notice-of-claim statutes. Instead, we will
proceed with determining whether the City has demonstrated that no
genuine issue of material fact existed as to whether it was entitled to
municipal immunity and, therefore, has shown a clear right to
mandamus relief.
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To establish a prima facie case for municipal immunity in its
renewed motion for a summary judgment, the City primarily cited two
pieces of evidence. First, it relied on affidavit testimony by Davis, who
was a supervisor for the 311 system's call center. She testified that she
had "conducted a diligent search of the City's 311 records" and had
determined that there was "no record of receiving any notice of any
alleged defective condition in the 20th block of Avenue V in Ensley" before
Stoudmire's accident. Then, the City leaned on deposition testimony from
Yates, the director of the Department of Public Works. He testified that
he "[did not] have any evidence" and was "not aware of" any
documentation that evidenced the City's notice or knowledge of the defect
before Stoudmire's accident.
Together, those two pieces of evidence adequately present a prima
facie case that the City did not have notice of the defect in the street
before Stoudmire's accident. See Ex parte City of Muscle Shoals, 257 So.
3d at 857 ("The City presented evidence from [City officials] indicating
that the City had never received a complaint about the [defect].").
Specifically, they showed that the City did not know about the specific
defect and that the defect had not existed long enough so that, in the
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ordinary course of things, it should have known about it. So, the burden
shifted to Stoudmire to produce substantial evidence showing that a
genuine issue of material fact did exist as to this issue.
II. Stoudmire's Evidence
A. Stoudmire Did Not Produce Substantial Evidence
Demonstrating That The City Had Actual Notice.
Section 11-47-190 allows municipalities to be subject to liability
only "after the [defect] ha[s] been called to the attention of the council or
other governing body." In other words, a municipality can be subject to
liability only after it is put on "actual notice" of the defect at issue.
In his answer, Stoudmire points us to Fitzpatrick's affidavit, the
first responders' patient-care record from the accident, and the caseidentification card from the police officer who had responded to the scene
of the accident to show that the defect at issue had been "called to the
attention of" the City. However, the first responders' patient-care record
and the case-identification card from the police officer cannot be evidence
of actual notice because those documents were made contemporaneously
with Stoudmire's accident. Section 11-47-190 indicates that notice must
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have been given before his accident.3 Thus, only Fitzpatrick's affidavit
potentially could be evidence of actual notice in this case.
In his affidavit, Fitzpatrick testifies that he had been employed by
the City from 2003 through 2019. Sometime during his employment (he
does not specify when), he was driving a City truck "on Avenue V in
between I-20/59 and 21 Street." His truck hit a large hole, and his trailer
hitch broke off. He called and informed his City supervisors that the hole
in the road was severe enough to break the trailer hitch. Those
supervisors arranged a tow truck for his truck.
However, Fitzpatrick did not state that the City had actual notice
because there is no testimony that the defect he encountered was the
same one later encountered by Stoudmire. Rather, he states only that he
worked for the City for a 17-year period and that, at some unspecified
point during that period, he struck a large hole on Avenue V between I3At times, the City conflates the two distinct notice requirements
for the notice-of-claim statutes and the municipal-immunity notice;
arguments for one sometimes appear under headings for the other.
Nevertheless, the City did present both arguments to the trial court and
to this Court.
Stoudmire repeats the City's error in his answer, in which he
argues that records from the day of the accident constitute actual (prior)
notice to the City of the defect. Stoudmire's answer at 18-19.
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20/59 and 21st Street. He does not identify when the incident occurred or
provide any details that would tie that defect to the one at issue here.
That gap in time resolves the issue before us. Fitzpatrick's
encounter could have occurred at any time between 2003 and 2019. The
defect he describes, therefore, could have existed years -- or even decades
-- before Stoudmire's accident. In fact, the end of his employment (2019)
is approximately two years before Stoudmire's accident occurred (2021).
Even if it is possible that the two incidents involved the same defect,
possibility is not enough; the conclusion that the two incidents involved
the same defect would rest on " ' " speculation that fact issues exist," ' "
which our Court has said is insufficient to defeat a properly supported
summary-judgment motion. Ex parte Ala. Peace Officers' Standards &
Training Comm'n, 34 So. 3d 1248, 1252 (Ala. 2009) (quoting Brown ex
rel. Brown v. St. Vincent's Hosp., 899 So. 2d 227, 238 (Ala. 2004)
(plurality opinion), quoting in turn Crowne Invs., Inc. v. Bryant, 638 So.
2d 873, 878 (Ala. 1994)).
Nothing in the materials before us affirmatively connects
Fitzpatrick's defect to the defect at issue in this case. The hole Fitzpatrick
encountered could have been repaired, resurfaced, or re-formed multiple
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times in the intervening years. Without evidence tying the two together
more explicitly, Fitzpatrick's affidavit cannot establish that a genuine
issue of material fact regarding whether the City had actual notice of the
specific defect at issue exists in this case.
B. Stoudmire Did Not Produce Substantial Evidence
Demonstrating That The City Had Constructive Notice.
In his answer, Stoudmire points to four pieces of evidence that, he
says, indicate that the City was put on constructive notice of the road's
defect. First, he cites MacDonald's statement that multiple serious
wrecks had occurred at that location before the defect was eventually
repaired. Second, he claims that the City has record-keeping practices
that include regularly generating accident reports and dispatching
various departments to vehicle accidents. Third, he references the City's
own testimony that the road was first paved at least 20 years ago and
states his belief that "the mere age and expected deterioration of such a
road should have placed the City on notice that dangerous defects were
likely to exist." Stoudmire's answer at 20. Finally, he points to the same
Fitzpatrick affidavit that gives a nearly two-decade-long window during
which a defect could have existed. Stoudmire argues that constructive
notice can be "found or inferred by virtue of the defect's likely age and
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size." Id. at 19.
Stoudmire is wrong on all points. First, MacDonald's statement was
struck from the record by the trial court and, thus, cannot be relied on by
this Court in determining whether there are any genuine issues of
material fact left to be decided. Stoudmire suggests that the trial court
erred in determining that the entirety of MacDonald's statement was
inadmissible because, he says, "[MacDonald] planned to attend trial and
testify live to that effect." Stoudmire's answer at 8. But that does not
matter. "Written documents not certified or otherwise authenticated as
required by Rule 56(e), Ala. R. Civ. P., may not properly be considered on
a motion for a summary judgment." Barrett v. Radjabi-Mougadam, 39 So.
3d 95, 97 (Ala. 2009). Affidavits that satisfy Rule 56(e) must be
"confirmed by the oath or affirmation of the party making it, taken before
a person having authority to administer an oath or affirmation." Couch
v. City of Sheffield, 708 So. 2d 144, 152-53 (Ala. 1998) (plurality opinion)
(emphasis added).
Stoudmire repeatedly refers to MacDonald's written statement as
an affidavit. But it is not. Even calling it "MacDonald's" statement is a
bridge too far because there is nothing to indicate that MacDonald is the
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one who signed it. Therefore, the trial court was correct to strike the
statement because it lacked authentication, and Stoudmire cannot rely
on it here.
Second, the record contains no evidence of other accidents at this
precise location from which one could infer that first responders
generated reports. Besides, Stoudmire does not allege what these
accident reports might show. The only suggestion to the contrary comes
from MacDonald's statement, which was struck.
Third, Stoudmire's argument that 20-year-old streets must have
defects rests on mere speculation. The materials before us contain no
testimony supporting that premise. Cf. Ex parte City of Muscle Shoals,
257 So. 3d at 857 ("Nor is there any evidence indicating the City or its
personnel knew or should have known that a steel grate of the nature of
the grate at issue would deteriorate to a hazardous state within a 25-year
period.").
Further, § 11-47-190 does not permit liability based on the mere
possibility of a street's deterioration over time. It requires that "such
defect" -- that is, the defect at issue -- exist for "such an unreasonable
length of time" that the municipality can be charged with knowledge of
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it. § 11-47-190. In other words, the inquiry is defect-specific. A plaintiff
cannot rely on a general assumption that aging infrastructure tends to
develop problems; he or she must show that the particular defect
persisted long enough to justify imputing knowledge to the municipality.
Finally, Fitzpatrick's affidavit, which had stated that he had hit a
defect sometime between 2003 and 2019, is deficient for the same reason.
Because there is not enough evidence indicating that the defects that
caused his and Stoudmire's accidents are the same defect, the inquiry
ends there. We simply do not have enough information from his affidavit
alone, even viewing it favorably to Stoudmire, to infer that the defect in
Fitzpatrick's case is the same defect at issue in this case. Because of that,
we do not have enough testimony to establish that the defect existed for
any period of time, much less for such an unreasonable length of time
that the City could be charged with notice of it. Thus, Stoudmire failed to
produce substantial evidence demonstrating that a genuine issue of
material fact existed as to whether the City had constructive notice of the
defect at issue.
Conclusion
The City provided evidence demonstrating that it had no notice of
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the defect before Stoudmire's accident. Stoudmire delivered only a
combination of inadmissible statements and evidence based on
speculation that was not sufficient to defeat the City's motion for a
summary judgment. Therefore, the trial court erred in denying the City's
motion for a summary judgment.4 For those reasons, we grant the City's
petition and issue a writ directing the trial court to vacate its order
denying the City's motion for a summary judgment and to enter, instead,
an order granting that motion.
PETITION GRANTED; WRIT ISSUED.
Shaw, Wise, Sellers, and Parker, JJ., concur.
Bryan, J., dissents.
Mendheim, J., dissents, with opinion, which Stewart, C.J., and
McCool, J., join.
4Because we find this issue to be decisive in this case, we decline to
address any other issues raised by the parties on appeal. See Jackson
Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d 490, 498 n.3 (Ala. 2021)
(pretermitting discussion of remaining issues on appeal after resolving a
dispositive issue).
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MENDHEIM, Justice (dissenting).
I respectfully dissent.
The City of Birmingham has been aware of Demarco Stoudmire's
possible cause of action against the City since before August 6, 2021,
when Lawrence Cooper, the Chief Assistant City Attorney, sent
Stoudmire a letter regarding Stoudmire's "Claim Filed with the City of
Birmingham." Stoudmire's notice of claim had described the date of the
alleged incident involving a "large Pothole in the roadway" on Avenue V
in the Ensley neighborhood in Birmingham and had the stated purpose
of "comply[ing] with Alabama Code Sections 11-47-23 and 11-47-192."
Stoudmire's notice of claim also had requested that "the appropriate
officials contact [Stoudmire's] attorney," whose contact information was
included in the notice of claim. Further, I note that, in the May 5, 2021,
affidavit of former City employee Thomas Fitzpatrick, Fitzpatrick
averred that a truck that he drove had been damaged upon hitting a
"large hole in the road" "on Avenue V in between I-20/59 and 21 Street
Ensley" and that he had informed his supervisors at the City of that
incident. Fitzpatrick was employed by the City from 2003 through 2019.
In Cooper's August 2021 letter responding to Stoudmire's notice of
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claim, Cooper informed Stoudmire that the City would "proceed to
investigate [his] claim" and "notif[y] [him] of [the City's] decision when
[the] investigation [was] complete." Cooper's letter stated that, "[o]ther
than the documents [Stoudmire had] already provided, if [he had] any
additional documents or items to support [his] claim, … please send them
to my attention." Cooper's letter made no mention of any defect in
Stoudmire's notice of claim. Cooper's letter likewise made no reference
to any inability of the City to investigate the claim based on the
information known to the City at that time.
After the City completed its investigation, Pamela L. Jones, as
Assistant City Attorney, sent Stoudmire's counsel a letter dated
September 2, 2022, that quoted Ala. Code 1975, § 11-47-190, and stated:
"After careful review of the facts, reports and other information regarding
the claim you filed, we do not find that the City of Birmingham is liable
for the damages you have claimed. Therefore, your claim is denied."
Jones's letter made no mention of any defect in Stoudmire's notice of
claim or of any inability of the City to investigate the claim as the basis
for the City's denial. Likewise, Jones's letter did not reference Ala. Code
1975, § 11-47-23 or § 11-47-192.
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The City raised the insufficiency-of-notice argument when it filed
its motion for a summary judgment on April 29, 2024; the City also
argued that Stoudmire did not have substantial evidence to support his
claim on the merits. The circuit court denied the City's summaryjudgment motion on July 1, 2024.5 The City did not seek mandamus
review of the July 2024 order.
The underlying case was twice scheduled for trial, but the trial
settings were continued. The trial was then rescheduled for August 18,
2025. On July 21, 2025, less than one month before the scheduled trial
and over one year after the City's motion for a summary judgment had
been denied, the City filed a renewed motion for a summary judgment,
arguing the same issues it had presented in its April 2024 motion for a
summary judgment. The City also filed a motion to strike, challenging
evidence it could have challenged when it filed the April 2024 motion for
a summary judgment. Further, in support of its renewed motion for a
summary judgment, the City submitted additional evidence, but that
5In his April 2024 deposition, Joshua Yates, who was the director of
the City's Department of Public Works, testified that it was "the City's
intent to state that we weren't on notice about" the alleged road defect on Avenue V.
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evidence could have been obtained and presented in support of its April
2024 motion for a summary judgment. The circuit court again denied the
City's motion.
The extraordinary writ of mandamus should "be issued only where
there is (1) a clear legal right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform, accompanied by a
refusal to do so; (3) the lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court." Ex parte Integon Corp., 672 So. 2d 497,
499 (Ala. 1995). I acknowledge that a trial court may exercise its
discretion to reconsider its ruling on, or to permit the renewal of, a motion
for a summary judgment. See Ex parte Jones, 147 So. 3d 415, 420 (Ala.
2013) (discussing the trial court's discretion regarding summaryjudgment practice). However, this Court is not obligated to exercise its
discretion to allow mandamus review simply because the trial court chose
to reconsider a motion for a summary judgment. And, in the context of a
renewed motion for a summary judgment, the requirement for seeking
timely review is a pertinent consideration to the exercise of such
discretion. Id. at 420 (concluding, as to Chad Jones's second mandamus
petition raising the issue of State-agent immunity, "that [he] ha[d] failed
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to demonstrate that he ha[d] a clear legal right to the relief sought" when
he had not timely filed his initial mandamus petition from the trial
court's ruling on his initial motion for a summary judgment).
Under the facts before us, I cannot conclude that the circuit court
had an imperative duty to grant the City's renewed motion for a
summary judgment as to Stoudmire's action against the City simply
because it chose to consider the City's renewed motion for a summary
judgment. Nor, assuming that there was no disputed issue of material
fact as to the sufficiency of Stoudmire's notice, can I conclude that review
by appeal from an adverse judgment would be an inadequate remedy in
light of the timing of the City's renewed motion for a summary judgment
in relation to the scheduled trial. This mandamus petition reflects
nothing more than an inefficient, last-minute interruption to what would
have been the normal trial-and-appeal process regarding issues that the
City could have sought timely mandamus review of after the entry of the
July 2024 order. By rewarding the City's essentially duplicative motion
practice, this Court is encouraging more of the same. Specifically, by
taking a liberal approach to renewed-motion practice near the time of a
scheduled trial, this Court is creating a back-door mechanism that lowers
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the bar for what would otherwise require a showing of "good cause"
justifying the late timing of a petition for the writ of mandamus. A
petition for the writ of mandamus may be considered untimely even if it
is filed within the presumptively reasonable period for filing a notice of
appeal. See Rule 21(a)(3), Ala. R. App. P.; see also Committee Comments
to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000
("[A]n appellate court may find a petition challenging a ruling of the trial
court to be untimely even though it is filed within the time for taking an
appeal, as, for example, when the petition is filed shortly before trial, yet
several days or even weeks after the adverse ruling. Consequently, the
better practice is to include in the petition a description of the
circumstances constituting good cause for any delay, although the
amended rule mandates such a showing only when the petition is filed
beyond the time for taking an appeal from the ruling."). Under the
circumstances before us, what good cause justifies the City's delay in
presenting this petition to this Court?
Stewart, C.J., and McCool, J., concur.
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