source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Carl WEAVER v. Roger D. FIRESTONE.
    1101403.
    Supreme Court of Alabama.
    Dec. 13, 2013.
    Rehearing Denied June 20, 2014.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn <& Sullivan, L.L.C., Gadsden, for appellant.
    William Eugene Rutledge of Rutledge & Yaghmai, Birmingham; and John T. Natter of Natter & Fulmer, P.C., Birmingham, for appellee.

       Retired Associate Justice Patricia Smith was appointed on April 25, 2013, to serve as a Special Justice in regard to this appeal.

   On Application for Rehearing

MURDOCK, Justice.

The opinion of January 11, 2013, is withdrawn, and the following is substituted therefor.

This Court granted Carl Weaver permission to appeal the Coosa Circuit Court’s denial of his motion to dismiss the complaint filed against him by Roger D. Firestone. See Rule 5, Ala. R.App. P. Because the trial court correctly concluded that Firestone’s action might not be time-barred and thus was not due to be dismissed at this stage of the proceeding on that ground, we affirm the trial court’s order denying Weaver’s motion to dismiss.

I. Facts and Procedural History

In August 2010, Charles Richard Tooley, L.C. Collins, Jr., and Mickie Wayne Collins pleaded guilty to the attempted murder of Firestone in May 1995. A few days after the guilty pleas, Firestone filed a complaint against Weaver; Tooley; Collins, Jr.; Collins; and fictitiously named parties A-M. According to the allegations of the complaint:

“8. In the spring of 1995, Weaver entered into a conspiracy with Tooley, Collins, Jr. and ... Collins and A through M. The conspirators agreed to conceal their relationship and their involvement in the said conspiracy. Thereafter, each of the conspirators concealed their involvement through fraud and deception.
“9. At approximately 5:00 a.m. on May 16, 1995, at a point off of Coosa County Road No. 55 approximately two miles southwest of Unity Crossroads, west of Weogufka in Coosa County, Alabama, said conspiracy was put into effect when Tooley, Collins, Jr., M. Collins, and A through M came to a cabin and camper located at said place and attacked [Firestone, Charles T. Amber-son, Jr., and Darrell Thomas Coleman],
“10. The said Tooley, Collins, Jr. and ... Collins bound the hands and ankles of the said Firestone, Amberson, and Coleman with electrical wire, and then bound their hands and ankles with duct tape, sprayed their entire bodies and them surroundings in said cabin with lantern fuel and set them on fire.
“11. Amberson and Coleman subsequently died as a result of the burns suffered in said fire.
“12. After being set on fire, Firestone exited the cabin by jumping through a glass window, but was recaptured by the Defendants. He was then further assaulted and battered by the Defendants by being hit in the face and head several times with the butt of a shotgun, dragged back to the cabin, set on fire again, covered with plywood, and left for dead.
“13. As a proximate result of said tortious acts of the Defendants, [Firestone] was caused to suffer the following injuries and damages: the great majority of his body suffered second and third-degree burns, requiring skin grafts to approximately 75% of his body, covering, but not limited to his chest, abdomen, arms, legs, back, penis and feet; one or both of his hands and one or both of his legs were permanently injured; his whole body was permanently injured; he was caused to be hospitalized at Chil-ton Medical Center and at University of Alabama Hospitals in Birmingham for approximately two and one-half months to treat his injuries; he incurred over $1,000,000.00 in medical bills to treat his injuries, and he will be caused to incur medical bills for treatment for the remainder of his life; he suffered immense pain as a result of said burns and has suffered pain from May 16, 1995, to the present as a result of said injuries and will suffer such pain for the remainder of his life; he is permanently disabled and cannot work; he suffered distress and discord in his marriage, which culminated in divorce and separation from his children; and he was caused to suffer extreme mental anguish as a result of said injuries and he will be caused to suffer such for the remainder of his life.
“14. Defendants, by fraud and deception, concealed from [Firestone] the identity of those who had battered him and set him on fire on May 16,1995, and who had hired them to do so. [Firestone] did not discover who had physically perpetrated said acts until November 6, 2009. [Firestone] then learned that the Defendants Tooley, ... Collins and Collins, Jr. had physically caused him to be set on fire and to suffer said injuries. From the time of the fire and assault until November 6, 2009, ... Firestone made diligent efforts to learn who had assaulted him and why he had been assaulted, to no avail.
“17.... Defendant Weaver organized and financed the conspiracy. The other Defendants agreed to carry out the object and purpose of the conspiracy, to maim, torture and kill [Firestone]. Defendants agreed that secrecy was an integral part of their agreement and conspiracy. Defendants agreed to take all possible steps and precautions to maintain the said secrecy and to shield from all others the identity of the conspirators. Defendants agreed that even if some of them were arrested and charged with the conspiracy or carrying out its objects and purposes, they would continue to keep secret the fact of the conspiracy and the identity of the conspirators.”

The complaint included claims that Weaver, Tooley, Collins, Jr., and Collins had conspired to “maim, torture, and kill” Firestone, had committed the tort of outrage, had committed an assault and battery on his person, and had attempted to murder him.

Also, recognizing that a question might exist as to whether his action was barred by the pertinent statutes of limitations, Firestone averred in his complaint:

“On August 9, 2010, Tooley, ... Collins, and Collins, Jr. pleaded guilty to attempted murder of [Firestone]. It was not until this date that [Firestone] discovered the identity of the [individuals] who had attacked him because of the fraudulent concealment of the con spiracy and the identity of the conspirators. [Firestone] avers that despite diligent efforts, he could not discover the identity of his attackers before August 9, 2010. [Firestone] has since August 9, 2010, further discovered the identity of Defendant [Carl] Weaver and his role in this matter. [Firestone] avers that none of the acts of [Weaver, Tooley, M. Collins, and Collins, Jr.,] are barred by the statute of limitations. [Firestone] avers that this action is brought against [these individuals] within the time allowed by Alabama law for bringing an action following discovery of facts which have been fraudulently concealed by defendants. [Firestone] further avers that any otherwise applicable statute of limitations has been equitably tolled until the reasonable efforts of [Firestone] to discover the identity of [these individuals] and that [Firestone] has brought this action in the time allowed by law following such discovery. [Firestone] further avers that no statute of limitations is applicable to this case under Alabama law because it is an action for damages for maiming and attempted murder with the relevant facts of the identity of [these individuals] deliberately concealed as a part of a conspiracy by [these individuals] to maim and murder [Firestone] and others.'”

(Emphasis added.)

Weaver filed a motion to dismiss Firestone’s complaint pursuant to Rule 12(b)(6), Ala. R. Civ. R, and §§ 6-2-34 and 6-2-38, Ala.Code 1975. In his motion, Weaver argued that Firestone’s claims were barred by the applicable statutes of limitations and that no tolling provision precluded the application of the time-bars. Specifically, Weaver argued that neither the discovery rule of § 6-2-3, Ala.Code 1975, nor the doctrine of equitable tolling was applicable to Firestone’s claims.

After conducting a hearing on Weaver’s motion to dismiss, the trial court denied the motion. The trial court specifically noted that Firestone “alleges in the complaint that he made diligent efforts to discover the identity of his assailants, but could not do so until they pleaded guilty and implicated Weaver.”

ÍI. Standard of Review

“The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671
(Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’
“Nance v. Matthews, 622 So.2d 297; 299 (Ala.1993).”

DGB, LLC v. Hinds, 55 So.3d 218, 223 (Ala.2010). “ ‘Inasmuch as the issue before us is whether the trial court correctly denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, “[t]his Court must accept the allegations of the complaint as true.” ’ ” Ex parte Walker 97 So.3d 747, 749 (Ala.2012) (quoting Ex parte Alabama Department of Youth Servs., 880 So.2d 393, 397 (Ala.2003)).

III. Analysis

The petition for permission to appeal included a certification by the trial court of the following controlling question of law:

“In the absence of a possible confidential or other special relationship between the parties, can either the discovery rule of Ala.Code 1975, § 6-2-3, or the doctrine of equitable tolling be applied to extend the Plaintiffs time to file its lawsuit against the Defendant, when Plaintiff alleges in its personal injury complaint that: 1) the Defendant has committed a crime wherein the Plaintiff is the victim, 2) the identity of the Defendant was unknown to Plaintiff and was not discoverable within the time of the running of the statute of limitations, and 3) there was a fraudulent concealment by Defendant of Defendant’s identity as the perpetrator of the crime.”

A. Section 6-2-3, Ala.Code 1975

Section 6-2-3, Ala.Code 1975, commonly known as Alabama’s “savings clause,” states:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

In order to prevent a statute of limitations from being used as an instrument of fraud, this Court has held that § 6-2-3 applies not only to the tort of fraud, but also to torts where the existence of the cause of action has been fraudulently concealed. DGB, LLC, 55 So.3d at 224-25.

Section 6-2-3, however, does not toll the statutes of limitations for Firestone’s causes of action. The language of § 6-2-3 provides that it is the discovery of the fraudulently concealed cause of action that triggers the accrual of that cause, not the discovery of the identity of the tortfea-sor. Here, Firestone knew in 1995 that he had been injured and that a cause of action existed. Consequently, § 6-2-3, which focuses on the discovery of the cause of action, not the discovery of the identity of the tortfeasor, does not toll the limitations periods for Firestone’s claims.

B. Equitable Tolling

We next consider the doctrine of equitable tolling. “[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” as to the filing of his action. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). In Ex parte Ward, 46 So.3d 888 (Ala.2007), this Court “[held] that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence.” 46 So.3d at 897. The Court noted that in determining whether equitable tolling is applicable, consideration must be given as “ ‘to whether principles of “equity would make the rigid application of a limitation period unfair” and whether the petitioner has “exercised reasonable diligence in investigating and bringing [the] claims.” ’ ” Id. (quoting Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001), quoting in turn Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998)); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” (footnotes omitted)). This Court acknowledged in Ward that “ ‘the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.’ United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000).” 46 So.3d at 897. The plaintiff

“bears the burden of demonstrating ... that there are !.. extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d [796,] 799 [(9th Cir.2003)] (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the ‘extraordinary circumstances’ alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir.2002) (‘The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.’).”

Ward, 46 So.3d at 897. It is well settled that whether equitable tolling is applicable in a case generally involves a “ ‘fact-specific inquiry.’ ” See, e.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003); Putnam v. Galaxy 1 Marketing, Inc., 276 F.R.D. 264, 275 (S.D.Iowa 2011) (“[R]esolution of the issue is fact-specific.”); see also Transport Ins. Co. v. TIG Ins. Co., 202 Cal.App.4th 984, 1012, 136 Cal.Rptr.3d 315, 337 (2012) (“[W]e are hard pressed to think of more fact-specific issues than ‘accrual’ and [equitable] ‘tolling.’ ”).

The circumstances alleged in the above-quoted passages from Firestone’s complaint are the type of “extraordinary circumstances” to which equitable tolling applies. As the United States Court of Appeals for the Seventh Circuit noted just a few years ago in Fidelity National Title Insurance Co. of New York v. Howard Savings Bank, 436 F.3d 836, 839 (7th Cir.2006), “[i]f despite the exercise of reasonable diligence [the plaintiff] cannot discover his injurer’s (or injurers’) identity within the statutory period, he can appeal to the doctrine of equitable tolling to postpone the deadline for suing until he can obtain the necessary information.” The general acceptance of the availability of the doctrine of equitable tolling under truly extraordinary circumstances, like those in the case before us, is confirmed by the following passage from American Jurisprudence (Second Edition):

“Equitable tolling, which allows a plaintiff to initiate an action beyond the statute of limitations deadline, is typically available only if the claimant was prevented in some extraordinary way from exercising his or her rights, or, in other words, if the relevant facts present sufficiently rare and exceptional circumstances that would warrant application of the doctrine. Equitable tolling is a remedy that permits a court to allow an action to proceed when justice requires it, even though a statutory time period has elapsed; it acts as an exception to the statute of limitations that does not extend broadly to allow claims to be raised except under narrow circumstances. The equitable tolling doctrine extends statutory deadlines in extraordinary circumstances for parties who have been prevented from complying with them through no fault or lack of diligence of their own. The time requirements in lawsuits between private litigants are ordinarily subject to equitable tolling if such tolling is necessary to prevent unfairness to a diligent plaintiff.
“Equitable tolling is only applied or used sparingly, and is available only in compelling circumstances which justify a departure from established procedures. Equitable tolling is a narrow doctrine that enables the courts to toll a statute of limitations for compelling-justifications, and the doctrine may be applied where it is justified under all the circumstances. Any inequitable circumstances preventing a party from initiating a timely lawsuit must be truly beyond the control of the plaintiff. Unlike judicial tolling, equitable tolling has a legal basis arising out of common law, and it may be invoked when traditional equitable reasons compel such a result.”

51 Am.Jur.2d Limitation of Actions § 153 (2011) (emphasis added); see also Spitsyn v. Moore, 345 F.3d at 799 (plaintiff must show a causal connection between the “extraordinary circumstances” and his untimeliness (cited with approval in Ward)).

The holding of the Supreme Court of California in Bernson v. Browning-Ferris Industries of California, Inc., 7 Cal.4th 926, 873 P.2d 613, 30 Cal.Rptr.2d 440 (1994), is particularly instructive for purposes of the present case. It speaks for itself and merits quoting at length:

“While ignorance of the existence of an injury or cause of action may delay the running of the statute of limitations until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute. As we have observed, ‘the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.’ (Jolly v. Eli Lilly Co., supra, 44 Cal.3d [1103,] 1110[, 245 Cal.Rptr. 658, 662, 751 P.2d 923, 927 (1988) ].) Aggrieved parties generally need not know the exact manner in which their injuries were ‘effected, nor the identities of all parties who may have played a role therein.’ (Teitelbaum v. Borders (1962) 206 Cal.App.2d 634, 639[, 23 Cal.Rptr. 868, 871].)
“Although never fully articulated, the rationale for distinguishing between ignorance of the wrongdoer and ignorance of the injury itself appears to be premised on the commonsense assumption that once the plaintiff is aware of the injury, the applicable limitations period (often effectively extended by the filing of a Doe [i.e., fictitious-party] complaint) normally affords sufficient opportunity to discover the identity of all the wrongdoers.... That, indeed, is the normal situation for which the fictitious name statute, Code of Civil Procedure section 474, is designed: when the plaintiff is ignorant of the name of ‘a defendant,’ the plaintiff must file suit against the known wrongdoers, and, when the Doe’s true name is discovered, the complaint may be amended accordingly. (Code Civ. Proc., § 474.)
“The question here, however, is whether the general rule should apply when, as a result of the defendant’s intentional concealment, the plaintiff is not only unaware of the defendant’s identity, but is effectively precluded as a practical matter from ascertaining it through normal discovery procedures. May a thief, for example, who leaves no clues to his identity defeat an action by the rightful owner to recover the stolen property if the owner fails to find and serve the culprit within the applicable limitations period? Should the anonymous perpetrator of an assault and battery be immune from the victim’s civil damage action after the time for identifying and serving Doe defendants has been exhausted? Or, alternatively, should the defendants in these circumstances be estopped from capitalizing upon their own misconduct under an equitable rule, akin to the rule of fraudulent concealment, which would toll the statute until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the defendant’s identity?
“Although we have not previously considered the issue as framed, the question has been addressed in several other jurisdictions. The problem arises not infrequently when the owner of stolen artwork discovers its whereabouts many years after the theft and files an action to recover the property. This was the situation in Autocephalous Greek-Orthodox Church v. Goldberg (S.D.Ind.1989) 717 F.Supp. 1374, affirmed sub nom. Autocephalous Church v. Goldberg & Feldman Arts (7th Cir.1990) 917 F.2d 278. A Greek Orthodox church had been vandalized during the Turkish occupation of Cyprus in 1978 and a number of valuable mosaics removed. Ten years later the mosaics resurfaced in an Indiana art gallery. The church brought a replevin action in federal court and the art dealer moved for summary judgment on the basis of the six-year Indiana statute of limitations. The district court denied the motion on the ground, inter alia, that the equitable doctrine of fraudulent concealment tolled the running of the statute until the church discovered, or through the exercise of reasonable diligence should have discovered, the location of the mosaics. (717 F.Supp. at pp. 1387-1388, 1391-1392.) ‘[T]he Court concludes that as long as the plaintiff is duly diligent, the inability to discover the possessor of the stolen mosaics invokes the doctrine of fraudulent concealment and tolls the running of the statute of limitations for replevin purposes.’ (Id. at pp. 1392-1393, fn. 12.) The Court of Appeals affirmed, observing that in the context of a replevin action for concealed works of art, ‘a plaintiff cannot be said to have “discovered” his cause of action until he learns enough facts to form its basis, which must include the fact that the works are being held by another and who, or at least where, that “other” is.’ (917 F.2d at p. 289; see also O’Keeffe v. Snyder (1980) 83 N.J. 478[, 416 A.2d 862, 870] [holding that an artist’s replev-in action for paintings stolen 30 years earlier did not accrue until she discovered, or through the exercise of reasonable diligence should have discovered, ‘the identity of the possessor of the paintings’].)
“The Supreme Court of Wisconsin adopted a similar rule in a personal injury action for assault, observing: ‘A statute of limitations barring relief to victims before the defendant is, or could be, discovered violates this [equitable] guarantee of fairness.’ (Spitler v. Dean (1989) 148 Wis.2d 630, 436 N.W.2d 308, 310.) While acknowledging that the filing of a Doe complaint might have extended the time available to learn the identity of the defendant, it did not, in the Wisconsin court’s view, ‘weaken the public policy favoring the adoption of the discovery rule in this case.’ (Id. at p. 311; see also Royal Indem. Co. v. Petrozzino (3d Cir.1979) 598 F.2d 816, 819 [availability of fictitious name complaint does not preclude tolling of statute of limitations until bank’s insurer discovers identity of robber].)
“As these and other cases demonstrate, the equitable principle that a defendant who intentionally conceals his or her identity may be equitably es-topped from asserting the statute of limitations to defeat an untimely claim, has been widely embraced. (See also Lafferty v. Alan Wexler Agency, Inc. (1990) 393 Pa.Super. 400, 574 A.2d 671, 674 [‘[W]here a defendant or his agents actively mislead a plaintiff as to who are the proper defendant or defendants until after the statute of limitations period has expired, the proper remedy is to toll the statute of limitations as to the defendant regarding whom the concealment was directed.’]; Sattler v. Bailey (1990) 184 W.Va. 212, 400 S.E.2d 220, 229 [the statute of limitations is tolled when ‘despite the due diligence of the injured person to discover the identity of all the wrongdoers, the identity of one or more of them is hidden by words or acts constituting affirmative concealment’]; Noel v. Teffeau (1934) 116 N.J.Eq. 446, 174 A. 145, 147 [assertion of statute of limitations against victim of a hit-and-run who was ignorant of the identity of the driver ‘would be unconscionable’].)
“As many of the foregoing decisions observe, and as this court has often stated, the primary interest served by statutes of limitations is that of repose. Such statutes ensure that plaintiffs proceed diligently with their claims and mitigate the difficulties faced by defendants in defending stale claims, where factual obscurity through the loss of time, memory or supporting documentation may present unfair handicaps. Nevertheless, where the bar becomes a sword rather than a shield, wielded by a party that has intentionally cloaked its identity, factors of fairness and unjust enrichment come into play, which courts are bound to consider in equity and good conscience. As we long ago observed, ‘The statute of limitations was intended as a shield for [defendant’s] protection against stale claims, but he may not use it to perpetrate a fraud upon otherwise diligent suitors.’ (Pashley v. Pacific Elec. Ry. Co., supra, 25 Cal.2d [226,] 231, 153 P.2d 325[, 328 (1944) ].)
“... As Witkin observes: ‘There seems little justification in principle for limiting the estoppel rule to concealment of the cause of action. Giving the fraudulent defendant the benefit of our short limitations [period] as a reward for his fraud is hardly consistent with the purpose of the statute — protection of the defendant from stale claims of a dilatory plaintiff. From this point of view the situations are substantially similar: In each the plaintiff, by reason of the defendant’s conduct, is late in filing his action, and in each the statute is invoked by the defendant not for the legitimate purpose of preventing the surprise assertion of a stale claim but to defeat a trial on the merits of a claim well known. It is beside the point to contend ... that the plaintiff could file an action against a fictitious defendant. An injured person does not go to the expense of legal representation and litigation merely because he knows he has been wronged. If he knows something of the identity of the wrongdoer he will sue though ignorant of his true name, and this is of course the use for which the pleading rule was designed.... But if he has no knowledge of the wrongdoer’s identity ... it is scarcely expecta-ble that he will file an action and hope that something turns up to make it worthwhile.... In shoii, if the neces-sai°y showing of fraud is made, it would seem that the wrongdoer’s concealment of his identity should toll the statute.’ (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 529, p. 558....)
“We agree in the main with Witkin. One should not profit from one’s own wrongdoing. Accordingly, we hold that a defendant may be equitably estopped from asserting the statute of limitations when, as the result of intentional concealment, the plaintiff is unable to discover the defendant’s actual identity. Although several of the out-of-state decisions cited earlier conclude that a tort claim ‘accrues’ only when the identity of the defendant is discovered (e.g., Spitler v. Dean, supra, 436 N.W.2d at p. 311; O’Keeffe v. Snyder, supra, 416 A.2d at p. 870), we need not go so far here. It is sufficient to hold simply that, under the circumstances described, the statute may be equitably tolled.
“The rule of equitable estoppel includes, of course, the requirement that the plaintiff exercise reasonable diligence. Thus, under our holding the statute will toll only until such time that the plaintiff knows, or through the exercise of reasonable diligence should have discovered, the defendant’s identity. Lack of knowledge alone is not sufficient to stay the statute; a plaintiff may not disregard reasonably available avenues of inquiry which, if vigorously pursued, might yield the desired information.
“One factor which must be considered pertinent to the diligence inquiry is whether the filing of a timely Doe complaint would, as a practical matter, have facilitated the discovery of the defendant’s identity within the requisite three-year period for service of process. (Code Civ. Proc., § 583.210, subd. (a); Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1118, 245 Cal.Rptr. 658, 751 P.2d 923.) Where the identity of at least one defendant is known, for example, the plaintiff must avail himself of the opportunity to file a timely complaint naming Doe defendants and take discovery. However, where the facts are such that even discovery cannot pierce a defendant’s intentional efforts to conceal his identity, the plaintiff should not be penalized.
“Recognition of a potential equitable estoppel under the foregoing circumstances will not unduly burden the trial courts. Indeed, our holding will have virtually no affect on the vast majority of civil cases. It is only in those relative few where the defendant asserts a statute of limitations defense and the plaintiff claims that he was totally ignorant of the defendant’s identity as a result of the defendant’s fraudulent concealment, that the issue will even arise; among those few, it will be the rare and exceptional case in which the plaintiff could genuinely claim that he was aware of no defendants, and even more rare that, given knowledge of at least one, he could not readily discover the remainder through the filing of a Doe complaint and the normal discovery processes.”

7 Cal.4th at 932-38, 873 P.2d at 616-19, 30 Cal.Rptr.2d at 443-47 (footnotes omitted; some citations omitted; and some emphasis added).

Also instructive is the holding of the United States Court of Appeals for the Tenth Circuit in Allred v. Chynoweth, 990 F.2d 527 (10th Cir.1993), in which a defendant admitted that she had committed a murder of which she previously had been acquitted in a criminal trial. A wrongful-death action was then filed against her. The Court of Appeals held that the statute of limitations applicable to the tort of wrongful death was tolled on the grounds of both fraudulent concealment and exceptional circumstances:

“Because Ms. Chynoweth does not contest liability, she cannot assert the delay has impaired her ability to present a defense. Her only claim is that plaintiffs should not be able to recover because she successfully prevented them from discovering her liability for many years. That is not within the ambit of equitable concern which motivates the adoption of statutes of limitations.”

990 F.2d at 532.

Despite the presence of “extraordinary circumstances” here, Weaver argues that equitable tolling is not available because Firestone purportedly could have utilized fictitious-party pleading and filed a complaint before he discovered the identity of his assailants and that of Weaver, his assailants’ co-conspirator. Rule 9(h), Ala. R. Civ. P., states:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

This Court has noted that “Rule 9(h), Ala. R. Civ. P., allows a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.” Sherbert v. SCE, Inc., 678 So.2d 1115, 1117 (Ala.Civ.App.1996).

According to Weaver, Firestone could have timely filed a complaint naming as defendants only fictitious parties and that complaint would have served to commence an action against the alleged tortfeasors. Indeed, Weaver maintains that “the exercise of reasonable diligence” required that Firestone file such a complaint under Rule 9(h).

We reject Weaver’s argument for two reasons. First, filing an unservable complaint with only fictitiously named defendants does not, under our precedents, commence an action and stop the running of the statute of limitations. It accomplishes nothing insofar as satisfying the requirement that a plaintiff “exercise ... diligence” in identifying the defendant or defendants and commencing an action against them. Second, even if we were to “reverse field” as to the above-referenced precedents and accept the notion that the filing of an unserved and unservable fictitious-party complaint could be used to toll the running of a statute of limitations, that option should not be deemed a requirement when the conditions for equitable tolling are otherwise satisfied.

Our cases have clearly established the principle that the mere filing of a complaint is not a sufficient act in and of itself to commence an action for purposes of satisfying the statute of limitations but that there also must be an actual issuance of the “summons” and a delivery of it to the sheriff or other appropriate “office” with a “bona fide unequivocal intention of having it served.” Ward v. Saben Appliance Co., 391 So.2d 1030, 1033 (Ala.1980). As this Court explained in Saben Appliance Co.:

“The Court [in West v. Engel, 101 Ala. 509, 509-10, 14 So. 333, 334 (1893)], reasoned as follows:
“‘In Burdick v. Green, 18 Johns. 14 [(N.Y.1820)], it was held that the issuing of the writ is the commencement of the action, in all cases where time is.'material, so as-to save the statute of limitations; and that it is not necessary to show that it was actually delivered to the sheriff, but sufficient if made out and sent to him by mail or otherwise, with a bona fide, intention of having it served.
‘Ross v. Luther, 4 Cow. 158 [(N.Y.1825)], is a case directly in point, where it was held, that the issuing of the writ was the commencement of the action; that the mere filing it up is not sufficient; it must be either delivered to the sheriff or sent to him by mail or otherwise, with a bona fide, absolute, unequivocal intention to have it served; that if delivered to an agent or messenger who has power to determine, when or whether it shall be given to the sheriff, the writ is not deemed issued, nor the suit commenced ....
“‘Our conclusion, therefore, from our own and other adjudged cases, is, that a summons can not be said to be sued out, under our statute, until it passes from the hands of the clerk to the sheriff, or other proper office, to be executed or sent by mail or otherwise, with a bona fide unequivocal intention to have it served.’ ([Some e]m-phasis supplied.)”

391 So.2d at 1033 (some emphasis added). The Saben Appliance Co. Court went on to note:

“Various states with commencement statutes similar to Rule 3, [Ala. R. Civ. P.], have held that a civil action is commenced only when the complaint or other pleading is filed with the intention of having it served in due course. Louisville & N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936) (action not commenced when plaintiffs attorney filed the complaint but failed to deliver the complaint for process); Green v. Ferguson, 184 S.W.2d 790 (Mo.App.1945) (action not commenced where plaintiffs attorney filed a petition but instructed the clerk to withhold process); Erving’s Hatcheries, Inc. v. Garrott, [250 Miss. 701], 168 So.2d 52 (Miss.1964) (action not commenced where plaintiffs attorney filed a complaint but instructed the clerk to withhold process); Deboer v. Fattor, 72 Nev. 316, 304 P.2d 958 (1956) (action not commenced where plaintiff’s attorney filed a complaint but failed to deliver the complaint to the sheriff for service ).”

391 So.2d at 1034-35 (emphasis omitted; emphasis added). The Saben Appliance Co. Court concluded with the following pronouncement:

“We hold that in the present case the action was not ‘commenced’ when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it'immediately served.”

391 So.2d at 1035 (emphasis added).

Obviously, when only fictitious parties are named in a complaint,, there is no defendant to be served, and the plaintiff is not in a position to demonstrate his or her intent actually to commence the action, i.e., for the plaintiff to engage in the type of conduct our cases have held necessary to establish a bona fide intent to commence an action. In Ex parte East Alabama Mental Health-Mental Retardation Board, Inc., 939 So.2d 1, 3 (Ala.2006), this Court stated: “[Tfhe filing of a complaint, standing alone, does not commence an action for statute-of-limitations purposes.

‘ “Rather, the filing must be made with the intention of serving process upon the opposing party or parties.” ’ Maxwell v. Spring Hill College, 628 So.2d 335, 336. (Ala.1993) (quoting Latham v. Phillips, 590 So.2d 217, 218 (Ala.1991)).”

In Maxwell v. Spring Hill College, 628 So.2d 335 (Ala.1993), the plaintiff filed a complaint but failed to take action to initiate service of the complaint. Specifically, the plaintiff simply failed to “provide summonses, service instructions, or addresses until approximately one month” after filing the complaint. 628 So.2d at 336. Although the case involved no “overt action” to withhold service, this Court agreed with the defendant that the mere failure of service was sufficient to defeat the commencement of an action:

“Spring Hill correctly asserts that this case is factually similar to Latham [v. Phillips, 590 So.2d 217 (Ala.1991)]. The accident in Latham occurred on March 5, 1988, and the plaintiff filed her complaint on March 2, 1990, although she did not pay the filing fee until March 5, 1990. She did not supply summonses for the defendants when she filed the complaint, nor did she supply them when she paid the filing fee three days later. In addition, no addresses were contained within the complaint and no instructions were given to the clerk concerning how to proceed with service of process. Certified mail summonses were not filed until April 4, 1990, approximately one month after the limitations period had run. One of the defendants moved for a summary judgment, which the trial court entered and this Court affirmed.
“In this case, a summons for Spring Hill was not filed until one month after the statutory period had expired. In addition, the address Maxwell’s mother provided with that summons — that of the Mobile law firm of Vickers, Riis, Murray and Curran — was incorrect, because that firm was not authorized in any way, as an agent or otherwise, to receive service for Spring Hill....
“It is apparent that Spring Hill was entitled to a summary judgment based on the expiration of the statutory limitations period.”

628 So.2d at 336.

As this Court stated in Freer v. Potter, 413 So.2d 1079, 1081 (Ala.1982):

fT]he action was not “commenced” when it was filed with the circuit clerk because it was not filed with the bona fide intention of having it immediately served.... ’
“... [FJiling [a complaint] calls far an implied demand for immediate service.”

(Emphasis added.)

It is contended that the filing of a complaint naming only fictitious parties under facts such as those presented here indicates that the plaintiff has an intent to serve the complaint and prosecute the action as soon as the identity of the tortfea-sor is discovered or, in other words, “in due course.” How can we say for purposes of this case, however, that the mere filing of a complaint would indicate anything regarding the intention of the party as to when the complaint will be served? It was the fact that the mere filing of a complaint does not carry with it sufficient indication of intent that this Court developed the above-discussed rule that the filing of a complaint must be accompanied by some additional physical action, i.e., initiating and attempting to achieve physical service of the complaint on a defendant. We know no more from “the filing of a complaint ... under these facts” than that the plaintiff intended to “file[ ] a complaint ... under these facts.”

In sum, requiring an injured party who is unaware of the name of any potential defendant to file a complaint naming as defendants only fictitious parties on the ground that such a filing, standing alone, is sufficient to indicate an intent to serve that complaint one day and therefore also is sufficiént to commence an action and toll the running of the statute of limitations logically cannot be reconciled with — indeed it subverts — our established caselaw that we cannot reach any conclusions about a plaintiffs intent to serve a complaint merely from the act of filing the complaint and that the mere filing of a complaint is not sufficient to commence an action and satisfy the statute of limitations.

We are bolstered in our application of the above-cited precedents by the simple fact that the filing of a complaint without the initiation of service upon any party does nothing to satisfy the purpose behind statutes of limitations. As this Court noted in Travis v. Ziter, 681 So.2d 1348, 1352 (Ala.1996):

“[T]he public policy behind the time-bar concept [of statutes of limitations] is quite clear:
“'... [T]o prevent fraudulent and stale claims from springing up after long periods of time and surprising the parties or their representatives when evidence has become lost or the facts have become obscure from the lapse of time. 53 C.J.S. Limitations of Actions § 1, at 902-903, and authorities cited therein.’ ”

(Quoting Stephens v. Creel, 429 So.2d 278 (Ala.1983), quoting in turn Seybold v. Magnolia Land Co., 376 So.2d 1083, 1086 (Ala.1979).) The Travis Court further noted:

“The ultimate consideration in determining whether to allow the Travises’ claims to survive through application of the [pertinent] tolling provision is whether the policy goals furthered and protected by the statute of limitations would remain intact if that were allowed. At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims.”

681 So.2d at 1355.

Requiring a plaintiff who has no knowledge of the name of any defendant to file a fictitious-party complaint simply to preserve the availability of the doctrine of equitable tolling does nothing to further the purposes of a statute of limitations. Assuming the plaintiff is otherwise acting diligently in trying to identify the name or names of the defendant or defendants— which already would be a prerequisite to the availability of equitable tolling, see Meeks v. Meeks, 245 Ala. 559, 567, 18 So.2d 260, 267 (1944) (“ ‘It is inherent doctrine of equity jurisdiction that nothing less than conscience, good faith, and reasonable diligence can call courts of equity into activity, and that they will not grant aid to a litigant who has negligently slept on his rights and suffered his demand to become stale where injustice would be done by granting the relief asked.’ ” (quoting 21 Corpus Juris § 212)) — requiring the plaintiff to file a complaint that names only a fictitious defendant or defendants will avail nothing insofar as either the plaintiff or the defendant is concerned. It will not serve to “advance[ ] the truth-seeking function of our justice system.” Travis, 681 So.2d at 1355. The filing of such a complaint will not help the plaintiff identify the name of the defendant or names of the defendants; it will simply affirm to the court in which the complaint is filed that the plaintiff does not yet know the name of the defendant or defendants.

Nor is it remotely likely that the filing of such a complaint would provide any person with any real notice as to the plaintiffs claims so that that person might begin the process of preserving evidence before memories dim and documents are lost— unless we are to assume that everyday citizens peruse court records seeking to know whether they might be the subject of a fictitious-party complaint. Indeed, the only thing the fictitious-party-complaint requirement would appear to accomplish under circumstances such as those presented here is the generation of work for the lawyer hired to draft and file the complaint, the establishment of a meaningless legal hurdle to the entitlement to equitable relief, and a “trap” for the unwary party and practitioner, alike, created by this non-intuitive requirement not found in any rule of procedure.

As noted above, even if we were to “reverse field” as to the above-discussed precedent and accept the notion that the filing of an unservable fictitious-party complaint should be deemed to toll the running of a statute of limitations, the presence of such an option should not be considered an obstacle to the application of the doctrine of equitable tolling in those rare cases where the conditions for the application of that doctrine are present. As the Court in Bernson observed:

“The Supreme Court of Wisconsin adopted a similar rule in a personal injury action for assault, observing: ‘A statute of limitations barring relief to victims before the defendant is, or could be, discovered violates this [equitable] guarantee of fairness.’ (Spitler v. Dean (1989) 148 Wis.2d 630, 436 N.W.2d 308, 310.) While acknowledging that the filing of a Doe complaint might have extended the time available to learn the identity of the defendant, it did not, in the Wisconsin court’s view, ‘weaken the public policy favoring the adoption of the discovery rule in this case.’ (Id. at p. 311; see also Royal Indem. Co. v. Petrozzino (3d Cir.1979) 598 F.2d 816, 819 [availability of fictitious name complaint does not preclude tolling of statute of limitations until bank’s insurer discovers identity of robber].)
“... It is beside the point to contend ... that the plaintiff could file an action against a fictitious defendant. An injured person does not go to the expense of legal representation and litigation merely because he knows he has been wronged. If he knows something of the identity of the wrongdoer he will sue though ignorant of his true name, and this is of course the use for which the pleading rule was designed.... But if he has no knowledge of the wrongdoer’s identity ... it is scarcely expectable that he will file an action and hope that something turns up to make it worthwhile. ... In short, if the necessary showing of fraud is made, it would seem that the wrongdoer’s concealment of his identity should toll the statute.’ (8 Wit-kin, Cal. Procedure (3d ed. 1985) Actions, § 529, p. 558....)”

7 Cal.4th at 934-36, 873 P.2d at 617-19, 30 Cal.Rptr.2d at 444-46.

“[W]here the bar becomes a sword rather than a shield, wielded by a party that has intentionally cloaked its identity, factors of fairness and unjust enrichment come into play, which courts are bound to consider in equity and good conscience. As we long ago observed, ‘The statute of limitations was intended as a shield for [defendant’s] protection against stale claims, but he may not use it to perpetrate a fraud upon otherwise diligent suitors.’ (Pashley v. Pacific Elec. Ry. Co., supra, 25 Cal.2d [226,] 231, 153 P.2d 325[, 328 (1944)].)”

7 Cal.4th at 935, 873 P.2d at 618, 30 Cal. Rptr.2d at 445.

Indeed, requiring that a plaintiff file a complaint against a fictitiously named defendant within the pertinent limitations period as a precondition to his or her entitlement to relief under the doctrine of equitable tolling would effectively eliminate the doctrine of equitable tolling in cases such as the one presented here. If filing a complaint against only a fictitiously named defendant or defendants is necessary in all cases in order to preserve a claim against an unknown defendant, then it follows that in all cases the commencement of that action within the applicable limitations period will be accomplished without actually resorting to the doctrine of equitable tolling. A subsequent amendment to the complaint that adds the real names of the fictitiously named defendant or defendants and that is in compliance with the requirements applicable to fictitious-party practice will relate back to the date of the filing of the complaint. See Rule 15(c)(4), Ala. R. Civ. P. (“An amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h).”); Dannelley v. Guarino, 472 So.2d 983, 986 (Ala.1985) (holding that, where a plaintiff meets the requirements of Rule 9(h), Ala. R. Civ. P., “amendments to the complaint relate[ ] back to the date of the original filing and, consequently, the cause of action stated against the defendants is not barred by the running of the statute of limitations”). Thus, accepting Weaver’s argument would mean that the doctrine of equitable tolling no longer has a field of operation in those cases in which the plaintiff has no way of learning the identity of the tortfeasor or even in cases in which multiple tortfeasors have engaged in a conspiracy to conceal their identities. Weaver would have us turn equity “on its head” by eliminating the availability of equitable relief in extraordinary- circumstances rather than acknowledge its continuing availability in such circumstances. We decline that invitation.

IV. Conclusion

Because Firestone has alleged facts that would support the conclusion that equitable tolling is applicable in the present case, the trial court did not err by denying Weaver’s motion to dismiss Firestone’s complaint as untimely.

APPLICATION GRANTED; OPINION OF JANUARY 11, 2018, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

PARKER, MAIN, WISE, and BRYAN, JJ., and SMITH, Special Justice, concur.

BOLIN, J., concurs in the result.

STUART and SHAW, JJ., dissent.

MOORE, C.J., recuses himself.

      . Collins died while Firestone’s action was pending. Thereafter, the trial court dismissed the claims against him. Also, the trial court entered a default judgment against Tooley and Collins, Jr., because they failed to respond to the complaint.

      . There is some discrepancy in the pleadings as to whether Firestone discovered the identity of three of his attackers — Tooley, Collins, and Collins, Jr. — on November 6, 2009 (which we assume was the date on which these three individuals were arrested or charged in connection with the attempted murder of Firestone), or on August 9, 2010, the date on which these individuals pleaded guilty. In any event, as noted, Firestone' alleges in paragraph 15 of his complaint that he could not and did not discover Weaver's alleged role in the attacks on him until the latter date. As noted, the trial court understood Firestone’s complaint to allege that, despite Firestone’s diligent efforts to discover Weaver’s identity, he could not do so until the other assailants pleaded guilty on August 9, 2010, and implicated Weaver.

      . Our holding in the present case concerns only whether Firestone should have an opportunity to offer evidence to prove that he meets the requirements of equitable tolling. The trial court did not address, and we do not address, whether Firestone will succeed on the merits as to the equitable-tolling issue.

      . This is not a case in which the plaintiff knew the name of at least one defendant and, by forgoing the filing of a complaint against that defendant, could be accused of a lack of diligence in not putting himself in a position to pursue formal discovery as to other tortfea-sors whose existence, but not identity, is known:
      "One factor which must be considered pertinent to the diligence inquiry is whether the filing of a timely Doe complaint would, as a practical matter, have facilitated the discovery of the defendant’s identity within the requisite three-year period for service of process. (Code Civ. Proc., § 583.210, subd. (a); Jolly v. Eli Lilly & Co., supra, 44 Cal.3d [1103] at p. 1118, 245 Cal.Rptr. 658, 751 P.2d 923 (1988).) Where the identity of at least one defendant is known, for example, the plaintiff must avail himself of the opportunity to file a timely complaint naming Doe defendants and take discovery. However, where the facts are such that even discovery cannot pierce a defendant's intentional efforts to conceal his identity, the plaintiff should not be penalized."

        Bernson, 7 Cal.4th at 936-37, 873 P.2d at 619, 30 Cal.Rptr.2d at 446.

      . In fact, construing Rule 9(h) as contemplating the preparation and filing of a complaint that names nothing but fictitious parties as defendants and that might or might not ever be served on anyone but will simply occupy space at the courthouse until some future unknown date (and especially to require this action as a prerequisite to procuring equitable relief under such doctrines as equitable tolling) does not appear to be in accord with the admonition that our Rules of Civil Procedure are to "be construed and administered to secure the just, speedy and inexpensive determination of every action." Rule 1, Ala. R. Civ. P.


author: THOMAS, Judge. BRYAN, Judge, PITTMAN, Judge,

text:
    SACRED HEART HEALTH SYSTEM, INC. v. INFIRMARY HEALTH SYSTEM and South Baldwin Regional Medical Center. Infirmary Health System and South Baldwin Regional Medical Center v. Sacred Heart Health System, Inc.
    2090239.
    Court of Civil Appeals of Alabama.
    Sept. 24, 2010.

      Robert D. Segall and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery; and G. Dennis Nabors and David E. Belser of Nabors, Belser & De-Bray, LLC, Montgomery, for appellant/cross-appellee Sacred Heart Health System, Inc.
    James E. Williams, J. Flynn Mozingo, and C. Mark Bain of Melton, Espy & Williams, PC, Montgomery, for appel-lee/cross-appellant Infirmary Health System.
    Laurence J. McDuff of Adams & Reese LLP, Birmingham, for appellee/cross-ap-pellant South Baldwin Regional Medical Center.
    Lenora W. Pate and Charles R. Drig-gars of Sirote & Permutt, P.C., Birmingham, for amici curiae Johnson Development, LLC, and Colonial Pinnacle MOB, LLC, in support of the appellant/cross-appellee Sacred Heart Health System, Inc.
    Les Hayes III, gen. counsel, Montgomery, for amicus curiae the Medical Association of the State of Alabama, in support of the appellant/cross-appellee Sacred Heart Health System, Inc.
    Michael L. Jackson, Albert L. Jordan, and Oscar M. Price III of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for amici curiae Associated Builders and Contractors of Alabama, Inc., and Alabama Associated General Contractors, Inc., in support of the appellant/cross-appellee Sacred Heart Health System, Inc.
   On Application for Rehearing

THOMAS, Judge.

The opinion of June 25, 2010, is withdrawn, and the following is substituted therefor.

Sacred Heart Health System, Inc. (“Sacred Heart”), is an out-of-state, not-for-profit corporation that, among other things, provides medical services through three hospitals and other medical facilities located in the northwestern region of Florida. Sacred Heart is also the owner of a multi-specialty physician group known as Sacred Heart Medical Group (“SHMG”). SHMG is made up of 143 physicians practicing in the northwestern area of Florida and the south Baldwin County area of Alabama. The record indicates that SHMG is not a separate legal entity; however, Sacred Heart has presented evidence indicating that the physicians of SHMG have employment contracts with SHMG, that SHMG employees perform consolidated billing for all the SHMG physicians’ patients, that third-party providers like insurers consider SHMG a medical group, and that SHMG physicians all share the same billing number.

Six SHMG physicians provide healthcare services to patients in the south Baldwin County area of Alabama. Because the practices of three of those physicians had increased and an expansion of the physicians’ existing offices was not feasible, Sacred Heart began, as early as 2003, seeking a way to assist those physicians in locating more office space to provide better service to their patients. To that end, Sacred Heart ultimately began negotiations regarding some property upon which it could construct a medical office building (“MOB”). Once the property was secured, Sacred Heart entered into a preconstruction agreement with Colonial Pinnacle MOB, LLC, an affiliate of Johnson Development, LLC, the developer of the MOB project, regarding the construction of and proposed leasing of the MOB from Colonial Pinnacle MOB, LLC, by Sacred Heart. That agreement contained the details of the utilization of the space in the 44,000-square-foot MOB. Included in the space to be leased was an area to house an ambulatory-surgery center, an area for medical-office suites, an area for timeshare space for incremental use by non-SHMG physicians, an area for a diagnostic center, an area for a rehabilitation center, and an area for a laboratory.

Sacred Heart advertised the MOB project as a new facility providing new and improved services to the south Baldwin County area. The information contained on the Sacred Heart Web site about the project explained that the MOB was part of a process to “expand ... services in order to meet the growing health care needs of [the south Baldwin County] area.... This is part of a long-term commitment that Sacred Heart is making to the communities of south Baldwin County.” Other advertisements and information concerning the MOB project indicated that Sacred Heart intended to seek an oncologist to join SHMG and offer services in the MOB, including mammography and CT scans, neither of which were offered by SHMG physicians already practicing in the south Baldwin County area and which would require the purchase of the CT scanner and mammography unit once an oncologist was recruited.

The minutes of a'March 31, 2006, meeting of the Sacred Heart board of directors mention the planning and development of the MOB project. Those minutes state that

“[t]he hospital is currently engaged in a planning process for the construction of a 60,000 square foot office building in Gulf Shores, which would include an ambulatory surgery center, outpatient diagnostic services and physician offices. The construction and operation of an ambulatory surgery center will require a certificate of need, which has been applied for.”

(Emphasis added.) Minutes from the SHMG management board meetings also include references to the planned MOB project. The minutes from April 27, 2006, read:

“We have reserved property on Highway 59, north of the intercoastal waterway, which is large enough to build a 60,000 [square foot] building and are in the process of talking to developers who will build the building. The plan is for an integrated SHMG practice, surgery center, and diagnostic center like in Pace, [Florida], We are in discussions with surgeons to put a surgery center, deal together. We have filed for a [certificate of need] for the surgery center.”

(Emphasis added.) The minutes from the. August 17, 2006, SHMG management board meeting indicate that the group had a letter of intent to purchase the property for the MOB project and mentioned “detailed negotiations” regarding the proposed ambulatory-surgery center to be operated by Pleasure Island Ambulatory Surgery Center, LLC (“PIASC”).

In addition to the reference in the SHMG management board meeting minutes to the medical facility in Pace, Florida, the record contains another reference to the Pace facility. In its announcement regarding the MOB project on the Sacred Heart Web site, Sacred Heart noted that Johnson Development, LLC, had partnered with Sacred Heart to construct similar medical office parks. The Web site specifically referenced, among other locations, the medical office park in Pace, Florida. According to information on the Sacred Heart Web site about Sacred Heart Medical Park in Pace, the Pace facility provides laboratory and imaging services, outpatient-surgery services, rehabilitation services, physical therapy, and also contains physician offices. The Sacred Heart Web site declares that “[t]he new Sacred Heart Medical Park [in Pace] will make it easier for Santa Rosa County residents to receive outpatient services from Sacred Heart, all in one convenient location. This is an important step in the growth of our regional health system.” The Pace facility operates as a part of the Sacred Heart Hospital System.

Procedural History

South Baldwin Regional Medical Center (“South Baldwin”), a health-care facility located in Baldwin County, filed a petition for a declaratory ruling with the State Health Planning and Development Agency (“SHPDA”), requesting that SHPDA declare Sacred Heart’s plans to develop the MOB required Sacred Heart to obtain a certificate of need (“CON”) from SHPDA. Infirmary Health System (“IHS”), another health-care facility that provides health services in the Mobile County/Baldwin County area, intervened in support of the petition. The administrative law judge (“ALJ”) assigned to hear the petition determined that he lacked jurisdiction to decide the matter and remanded the petition to the CON Review Board (“CONRB”). Because neither the CONRB nor the ALJ issued any ruling on the petition within 45 days, see Ala.Code 1975, § 41-22-ll(b) (stating that an agency’s failure to rule on a request within 45 days constitutes a denial of the request), South Baldwin and IHS (hereinafter referred to collectively as “the opponents”) filed a petition for judicial review in the Montgomery Circuit Court. See Ala.Code 1975, § 41-22-20 (explaining the procedure to seek judicial review of an agency decision).

In the petition for judicial review, as originally filed, the opponents sought an order directing that SHPDA conduct a fact-finding proceeding and issue a ruling on the merits of the petition for a deelara-tory ruling. The opponents later amended their petition, requesting that the circuit court declare that the MOB project that Sacred Heart was developing was reviewable under the statutes and regulations pertaining to SHPDA and thus required Sacred Heart to obtain a CON in order to offer health-care services in the MOB. Finally, in their final amended petition and complaint, the opponents sought declaratory and injunctive relief under the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq.; the Declaratory Judgment Act, Ala.Code 1975, § 6-6-220 et seq.; and § 22-21-276(a), one of the statutes relating to the regulation of health-care facilities, codified at Ala.Code 1975, § 22-21-260 et seq. The opponents specifically requested that the circuit court determine that a CON was required for Sacred Heart to offer health-care services in the MOB and that the circuit court enjoin Sacred Heart from offering those services in the MOB until it obtained a CON.

Although both, Sacred Heart and the opponents each sought a summary judgment in their respective favor, the circuit court denied both motions and set the case for trial. By agreement of the parties, the circuit court did not hold a bench trial; instead, it took the case under submission on a joint submission of evidence. The circuit court entered a judgment determining that the MOB project fell under “the physician’s office exemption” contained in Ala.Code 1975, § 22-21-260(6), and, thus, that it was not the establishment of a new health-care facility, which requires CON review under Ala.Code 1975, § 22-21-263(a)(1). Based on that determination, the circuit court concluded that Sacred Heart was not required to secure a CON to offer health-care services in the MOB. After consideration of a timely filed post-judgment motion, the circuit court amended its judgment to explain that the MOB project qualified for the physician’s office exemption only insofar as the three SHMG physicians who were relocating their south Baldwin County-area offices into the MOB were concerned; however, the circuit court further ruled that adding any additional physicians or providing additional services would require Sacred Heart to obtain a CON before adding such physicians or providing such services in the MOB. Sacred Heart appealed that judgment to the Alabama Supreme Court; the opponents cross-appealed. Our supreme court transferred the appeal and the cross-appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). All the parties requested oral argument; this court granted those requests, and oral argument was held on April 21, 2010.

Standard of Review

Our review of the circuit court’s judgment is de novo. Sevigny v. New South Fed. Sav. & Loan Ass’n, 586 So.2d 884, 886 (Ala.1991). “When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516 (Ala.2003) (citing Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990), and Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989)). . However, we note that we should recognize that SHPDA’s interpretation of the statutes governing CON review should be given great weight by this court. Pleasure Island Ambulatory Surgery Ctr., LLC v. State Health Planning & Dev. Agency, 38 So.3d 739, 743 (Ala.Civ.App.2008).

Applicable Statutes

The laws relating to the regulation of health-care facilities are set out in Ala. Code 1975, § 22-21-260 et seq. Section 22-21-260(6) defines “health care facility” as follows:

“(6) Health care facility. General and specialized hospitals, including tuberculosis, psychiatric, long-term care, and other types of hospitals, and related facilities such as, laboratories, out-patient clinics, and central service facilities operated in connection with hospitals; skilled nursing facilities; intermediate care facilities; skilled or intermediate care units operated in veterans’ nursing homes and veterans’ homes, owned or operated by the State Department of Veterans’ Affairs, as these terms are described in Chapter 5A (commencing with Section 31-5A-1) of Title 31, rehabilitation centers; public health centers; facilities for surgical treatment of patients not requiring hospitalization; kidney disease treatment centers, including free-standing hemodialysis units; community mental health centers and related facilities; alcohol and drug abuse facilities; facilities for the developmentally disabled; hospice service providers; and home health agencies and health maintenance organizations. The temí health care facility shall not include the offices of private physicians or dentists, whether for individual or group practices and regardless of ownership, or Christian Science sanatoriums operated or listed and certified by the First Church of Christ, Scientist, Boston, Massachusetts, or a veterans’ nursing home or veterans’ home owned or operated by the State Department of Veterans’ Affairs, not to exceed 150 beds to be built in Bay Mi-nette, Alabama, and a veterans’ nqrsing home or veterans’ home owned or operated by the State Department of Veterans’ Affairs not to exceed 150 beds to be built in Huntsville, Alabama, for which applications for federal funds under federal law are being considered by the U.S. Department of Veterans’ Affairs prior to March 18,1993.”

(Emphasis added.)

That same section, § 22-21-260, further defines both “health services” and “institutional health services”:

“(8) Health services. Clinically related (i.e., diagnostic, curative, or rehabilitative) services, including alcohol, drug abuse, and mental health services customarily furnished on either an in-patient or out-patient basis by health care facilities, but not including the lawful practice of any profession or vocation conducted independently of a health care facility and in accordance with applicable licensing laws of this state.
“(9) Institutional health services. Health services provided in or through health care facilities or health maintenance organizations, including the entities in or through which such services are provided.”

Section 22-21-263 provides:

“(a) All new institutional health services which are subject to this article and which are proposed to be offered or developed within the state shall be subject to review under this article. No institutional health services which are subject to this article shall be permitted which are inconsistent with the State Health Plan. For the purposes of this article, new institutional health services shall include any of the following:
“(1) The construction, development, acquisition through lease or purchase, or other establishment of a new health care facility or health maintenance organization.”

Pursuant to § 22-21-265:

“(a) On or after July 30, 1979, no person to which this article applies shall acquire, construct, or operate a new institutional health service, as defined in this article, or furnish or offer, or purport to furnish a new institutional health service, as defined in this article, or make an arrangement or commitment for financing the offering of a new institutional health service, unless the person shall first obtain from the SHPDA a certificate of need therefor....”

Analysis

The issue central to both the appeal and the cross-appeal is whether Sacred Heart is required to obtain a CON before it may offer health-care services in the MOB. Pursuant to §§ 22-21-263(a)(l) and 22-21-265, no new institutional health services may be offered in the state without first securing a CON from SHPDA. Institutional health services are health services provided through health-care facilities and health-maintenance organizations. There is no dispute among the parties that the MOB project does not qualify as a health-maintenance organization. However, the parties are sharply divided over whether the MOB project qualifies as a health-care facility as defined in § 22-21-260(6) or whether it qualifies for an exemption from CON review under that same statute.

Sacred Heart argues that the MOB project fits within the exemption for a physician’s office contained in § 22-21-260(6). The physician’s office exemption, as it is commonly known, contained in the statute does exclude from the definition of “health care facility” “the offices of private physicians or dentists, whether for individual or group practices and regardless of ownership.” § 22-21-260(6). The opponents, however, argue that the MOB project does not qualify for the exemption. Thus, the main question confronting us in these appeals is whether the MOB project is a health-care facility that requires a CON or whether it qualifies as a physician’s, office under the exemption in § 22-21-260(6) and therefore does not require a CON.

The opponents rely on the planned scope of the MOB project in making their argument that the MOB project does not qualify for the physician’s office exemption. They point out that the MOB project was developed and designed to house an ambulatory-surgery center, a rehabilitation center, a laboratory, and diagnostic equipment. Based on Sacred Heart’s own advertisements regarding the MOB project and the minutes of both the Sacred Heart board of directors and the SHMG management board, the opponents contend that the MOB project was designed to offer a wide array of services and to expand Sacred Heart’s presence in the area and not merely to provide a new primary office for SHMG physicians.

Sacred Heart readily admits that any ambulatory-surgery center housed within the MOB would require a CON in order to operate. However, Sacred Heart contends that it was not required to secure a CON for the proposed ambulatory-surgery center because PIASC, the entity that intended to actually provide ambulatory-surgery services in the MOB, sought a CON on its own behalf. Thus, Sacred Heart argues, the fact that a portion of the space it leased in the MOB was intended for use as an ambulatory-surgery center would not prevent the utilization of the remaining parts of the building. Because PIASC was not awarded a CON to operate an ambulatory-surgery center, Sacred Heart says that it will convert the space originally intended to house the ambulatory-surgery center into additional office space for the SHMG physicians or into time-share office space for other, non-SHMG physicians. Therefore, Sacred Heart argues that the fact that the MOB project was intended to house an ambulatory-surgery center should not be considered when determining whether the MOB project is or is not a health-care facility under § 22-21-260(6).

The opponents, however, argue that, regardless of PIASC’s attempt to secure a CON for the ambulatory-surgery center, the MOB project was never designed to simply house a multi-specialty practice, but was instead developed to provide new institutional health services to the south Baldwin County area through both the planned ambulatory-surgery center and the recruitment of an oncologist and the necessary purchase of certain equipment for cancer diagnosis. See § 22-21-263(a)(l) (requiring CON review be sought for the development of a new health-care facility). The crux of the argument presented by the opponents is that the MOB project must .be viewed as a whole, not in its various parts, to determine whether the MOB project requires a CON. The opponents rely on various administrative rulings by the CONRB, which indicate that the project should be viewed as a whole to determine whether it qualifies for the physician’s office exemption or whether it is subject to CON review. See CONRB Administrative Ruling Regarding Heart Lung Associates of America, P.C., DR-100 (August 29, 2001) (determining that the project under review, “as a whole,” did not qualify for the physician’s office exemption); CONRB Administrative Ruling Regarding Mobile Urology Group, P.A., DR-116 (March 6, 2008) (“DR-116”) (noting that the determination whether a project falls within the physician’s office exemption must be based on all the evidence in the record before the CONRB and that the CONRB performs “a careful and informed review of the nature of the facility, the relationship of the treating physicians, the technical capability being acquired by the sponsors and the proposed services to be provided” in making such a determination). In fact, in one letter of non-reviewa-bility contained in the record, Alva' Lambert, the Executive Director of SHPDA, indicated that, in reviewing whether a particular project fits within the physician’s office exemption, SHPDA seeks “to understand the scope of the proposal,” indicating that the entire project and not just separate parts of a project must be reviewed to determine whether a project requires CON review as a new health-care facility or whether it qualifies as a physician’s office and is exempt from CON review. Letter of Non-Reviewability Regarding Norwood Clinic, RV2001-18 (May 1, 2001).

The CONRB has set out four criteria it considers when determining whether a particular project meets the physician’s office exemption:

“1. That the proposed services are to be provided, and related equipment used, exclusively by the physicians identified as the owners or employees of the physicians’ practice for the care of their patients.
“2. That the proposed services are to be provided, and related equipment used, at the primary office of such physicians.
“3. That all patient billings related to such services are through, or expressly on behalf of, the physicians’ practice, and not on behalf of a third party.
“4. That the equipment shall not be used for inpatient care, nor by, through or on behalf of a health care facility.”

CONRB Administrative Ruling Regarding The Institute for Advanced Cardiovascular Care, DR-110 (May 3, 2007) (“DR-110”).

Sacred Heart argues that the MOB project qualifies as a physician’s office under the four criteria. Sacred Heart points out that a large portion of the MOB will be used to house the primary offices of SHMG physicians and the diagnostic equipment presently used by those physicians, which was originally located at an office in Foley. That diagnostic equipment, says Sacred Heart, will be utilized only by SHMG physicians. However, evidence presented to the circuit court indicated that SHMG physicians whose primary office will not be within the MOB will utilize the equipment housed within the MOB. According to Sacred Heart, the non-SHMG physicians that use the other areas of the MOB, i.e., the area originally planned to house an ambulatory-surgery center and the time-share space, will not have access to the equipment used for diagnostic purposes by the SHMG physicians with their primary offices in the MOB. As noted earlier, Sacred Heart presented evidence indicating that SHMG physicians all use the same billing number and that all patient billing is handled by a division dedicated to performing that function for all SHMG physicians. Finally, Sacred Heart assures that the equipment housed within the MOB will not be used for inpatient care or be used by, though, or on behalf of any health-care facility.

The opponents, however, disagree with Sacred Heart’s conclusion that the MOB project meets the CONRB’s criteria. Among other things, the opponents rely on DR-116 in arguing that the MOB project “goes beyond a common sense definition of a ‘physician’s office,’ and is subject to review under the CON statutes and regulations.” The CONRB determined in DR-116 that the proposed construction of a new facility to house the group practice Mobile Urology Group, P.A. (“MUG”), MUG’s plan to add six new urologists to the practice, MUG’s anticipated employment of an oncology radiologist, and MUG’s purchase of a VARIAN Medical System for the treatment of certain cancers would require a CON. According to the CONRB, MUG already had two geographical locations and satellite clinics in three smaller communities in Mobile County and Baldwin County. MUG had indicated that it desired the VARIAN Medical System only to assist in its treatment of cancers related to its urology practice; however, the system could be utilized to treat various forms of cancer. In part, the CONRB indicated that it did not have sufficient information before it to support MUG’s claim that the physician’s office exemption would apply to its plan. However, the CONRB further explained that “[t]he far-flung nature of MUG’s practice is particularly significant when viewed in light of the broad capabilities of the [VAR-IAN] Medical System and MUG’s plans to add at least (1) oncology radiologist at the new facility.” The CONRB concluded its ruling by stating that

“[t]here is a point where an out-patient facility, even one developed and owned by physicians, goes beyond a common sense definition of a ‘physician’s office,’ and is subject to review under the CON statutes and regulations. A review of such projects as part of the normal CON process is necessary to prevent the very type of health care duplication and waste that the CON laws were intended to prevent.”

Similarly, in DR-110, the CONRB concluded that a multi-floor facility intended to house a CT scanner, a heart-catheterization laboratory, and space for other medical practices besides the primary cardiovascular groups that intended to develop the facility, which was to be known as the Institute for Advanced Cardiovascular Care (“IACC”), did not qualify for the physician’s office exemption. The CONRB noted that the main problem with the proposed facility was the fact that one physician group owned the equipment and that it intended to share that equipment with another physician group. The CONRB stated that “the design and plans for the facility reflect a different intent, one where multiple physicians use the facility and the on-site equipment for medical procedures in a fashion that is functionally indistinguishable from the services performed in a hospital.” Thus, the CONRB concluded that “the design and structure of this large multi-floor facility reflects an intent to share and use facilities and equipment for the treatment of patients other than just those of the treating physicians whose primary offices are located at the facility” and determined that the IACC facility did not qualify for the physician’s office exemption and required CON review.

Based on the evidence in the record, we cannot agree with Sacred Heart that the MOB project meets the criteria for the physician’s office exemption set out by the CONRB. Like the facility in DR-110, the equipment housed in the MOB would be used for the treatment of patients other than those of the SHMG physicians whose primary office would be located in the MOB. In addition, the scope of the MOB project, as originally designed and developed, reaches in our minds the point referred to by the CONRB in DR-116, “where an out-patient facility, even one developed and owned by physicians, goes beyond a common sense definition of a ‘physician’s office,’ and is subject to review under the CON statutes and regulations.” Thus, we conclude that the MOB project is not exempt from CON review by virtue of the physician’s office exemption.

Conclusion

Viewing the MOB project as a whole and considering the announcements regarding its scope during its early development, this court cannot determine, as Sacred Heart would have us do, that the MOB was designed for use merely as a physician’s office. Although Sacred Heart included in the MOB project space for SHMG physicians’ offices, the scope of the project extended far beyond a mere expansion of the offices of SHMG physicians. The stated purpose of the statutes requiring CON review is “to prevent the construction of unnecessary and inappropriate health care facilities through a system of mandatory reviews of new institutional health services.... ” Ala.Code 1975, § 22-21-261. To allow without CON review the development of a healthcare facility intended to house not only physicians’ offices but also an ambulatory-surgery center, a laboratory, and a rehabilitation center, would undermine the purposes of the CON statutes. See Pleasure Island Ambulatory Surgery Ctr., 38 So.3d at 744. Sacred Heart, by proceeding with the development of the 44,000-square-foot MOB project without seeking either a letter of non-reviewability or a CON, acted prematurely. Sacred Heart’s choice to build first and to hope that a CON would be granted later violates the letter and spirit of the CON statute.

Based on our conclusion that the MOB project does not qualify for the physician’s office exemption, we reverse the judgment of the circuit court and remand the cause for the entry of a judgment declaring that the MOB project, as developed as a whole, does not qualify for the physician’s office exemption because SHMG diagnostic equipment would be used by SHMG physicians whose primary offices are not located in the MOB, and, thus, that it requires CON review. In addition, the circuit court should enjoin Sacred Heart from offering health-care services in the MOB until a CON is secured. In light of our resolution of this issue, we pretermit consideration of the other issues raised by the parties. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (preter-mitting discussion of additional issues when the decided issue was dispositive of the case).

APPLICATION OVERRULED; OPINION OF JUNE 25, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

THOMPSON, P.J., concurs in the result, without writing.

BRYAN, J., concurs to deny the application for rehearing but concurs in the result as to the opinion, with writing.

PITTMAN, J., dissents, with writing.

MOORE, J., dissents, without writing.

BRYAN, Judge,

concurring in the result.

This is a close case, and I commend counsel for all the parties for the excellent briefs and arguments. Considering the medical-office-building (“MOB”) project as a whole from its inception, I conclude that that project was intended to be something more than an “office[] of private physicians” so as to be exempt under § 22-21-260(6), Ala.Code 1975. I note particularly that one of the criteria considered by the Certificate of Need Review Board (“CONRB”) in determining whether a project meets the “physician’s office exemption” is whether “the proposed services are to be provided, and related equipment used, at the primary office of such physicians.” CONRB Administrative Ruling Regarding The Institute for Advanced Cardiovascular Care, DR-110 (May 3, 2007). In this case, Peter Heckatorn, the executive vice president of Sacred Heart Health System, Inc., and president of the Sacred Heart Medical Group (“SHMG”), testified that he intended to permit SHMG physicians whose offices were not located in the MOB to use the MOB’s facilities.

PITTMAN, Judge,

dissenting.

The plain language chosen by the legislature in “the physician’s office exemption” excludes from the scope of regulated “health care facilities]” the “offices of private physicians or dentists ... for ... group practices ... regardless of ownership.” Ala.Code 1975, § 22-21-260(6) (emphasis added). The facility at issue in this case, with the exception of an ambulatory-care center (which, as the main opinion notes, has already been the subject of administrative CON proceedings) and separate areas intended for sublease and for retention by the owner, is intended for the exclusive use of a single group practice: Sacred Heart’s affiliated physicians, whose patient billings are fully centralized. In my view, the main opinion penalizes Sacred Heart for being too successful in recruiting and retaining its numerous physicians by preventing it from establishing a medical office for those physicians in Gulf Shores. Because I believe that the facility at issue falls within the physician’s office exemption as set forth by the legislature and as reasonably interpreted by the administrative agency with primary implementation authority, I respectfully dissent from the reversal of the trial court’s judgment.

      . The area intended to house an ambulatory-surgery center was to be subleased by Sacred Heart to, and operated by, Pleasure Island Ambulatory Surgery Center, LLC (“PIASC”), a group of non-SHMG physicians in which Sacred Heart holds a minority interest. This court recently affirmed, without an opinion, PIASC's appeal from the denial of a certificate of need to operate the ambulatory-surgery center. Pleasure Island Ambulatory Surgery Center, LLC v. State Health Planning & Dev. Agency (No. 2080953, Apr. 16, 2010), 82 So.3d 17 (Ala.Civ.App.2010) (table). The certificate of judgment in that case was issued on May 5, 2010.

      . The copy of the redacted minutes from the August 17, 2006, SHMG management board meeting contained in the record is cut off, so only portions of the minutes regarding the development of the MOB project are readable.

      . Sacred Heart argues that the specific argument that a CON was required before Sacred Heart developed the MOB project because of the plan for the inclusion of the ambulatory-surgery center was not raised in the circuit court. The opponents, however, say that they challenged the development of the MOB project and its operation from the beginning based on their assertion that, as a whole, the MOB project was new health-care facility and required a CON because of its purposes, design, and the new institutional health services it proposed to offer. We agree that the opponents have challenged the MOB project from its inception with arguments broad enough to cover the argument that the inclusion of the ambulatory-surgery center in the plan for the MOB project required Sacred Heart to seek a CON for the entire MOB project.

      . Pursuant to Rule 410-1-7-02(1), Ala. Admin. Code (SHPDA), any person may request, “for informational purposes only,” what is commonly referred to as a letter of non-re-viewability from the executive director of SHPDA:
      “Any person may request for informational purposes only a determination as to the current reviewability of an anticipated project or determination of exemption for replacement equipment. Such request shall be submitted in writing disclosing full factual information, supplemented by any additional information or documentation which the Executive Director may deem necessary.”
      Sacred Heart did not seek a letter of non-reviewability regarding the MOB project.