author: MAIN, Justice.

text:
    EX PARTE NOLAND HOSPITAL MONTGOMERY, LLC. (In re Wheatton K. Pynes, individually and as administrator of the estate of Houston Earl Pynes, deceased v. Jackson Hospital et al.).
    1110240.
    Supreme Court of Alabama.
    Aug. 10, 2012.

      Randal H. Sellers and Joseph L. Reese, Jr., of Starnes Davis Florie LLP, Birmingham, for petitioner.
    Mary Alexander-Oliver and Monica Ball Jackson of The Oliver Group, L.L.C., Montgomery, for respondent.
   MAIN, Justice.

Noland Hospital Montgomery, LLC (“NHM”), a defendant in a wrongful-death action alleging medical negligence, petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying NHM’s motion for a summary judgment and to enter a summary judgment in NHM’s favor. NHM contends that it is entitled to a summary judgment on the basis that the applicable statute of limitations for this wrongful-death action, § 6-5-410, Ala. Code 1975, bars the claims asserted against it by Wheatton K. Pynes (“Pynes”), individually and as administrator of the estate of Houston Earl Pynes, deceased. The disposition of this petition requires an interpretation of the interplay between Rule 9(h), Ala. R. Civ. P., relating to fictitiously named parties, and Rule 15(c), pertaining to the relation back of amendments to pleadings. We grant the petition and issue the writ.

I. Factual Background and Procedural History

This wrongful-death action alleges medical negligence relating to the long-term care of Pynes’s brother, Houston Earl Pynes (“Houston”). Houston died on March 9, 2007, while hospitalized at NHM, after he had been at several different hospitals, nursing homes, and rehabilitation facilities for an extended period.

On March 6, 2009, Pynes filed a wrongful-death action in Montgomery Circuit Court against “Jackson Hospital, Dr. Muk-esh Patel, and ‘Factitious [sic] party ‘A’, ‘B’ being that person and or agent for NOLAND COMPANY, whose true name and legal descriptions [are] otherwise unknown to Plaintiff but will be supplied by amendment when ascertained” (hereinafter collectively referred to as “the defendants”), alleging that the defendants caused Houston’s death by negligently injuring him while he was a patient of the defendants and by then negligently treating his injuries while he remained a patient of the defendants. The original two-count complaint alleges that “the Defendants failed to provide [Houston] with the professional medical services, care and treatment that a physician within the medical community possessing and exercising ordinary and reasonable medical knowledge and skills would have provided.... ”

On May 8, 2009, Pynes filed an amended complaint. The first amended complaint made no changes to the style of the complaint or to the description of the parties being sued. Subsequent to the filing of the first amended complaint, Pynes’s counsel withdrew, the trial court stayed the proceedings, and Pynes obtained new counsel.

On January 6, 2010, Pynes, through new counsel, filed a second amended complaint. The second amended complaint reasserted the allegations of the first two complaints, but substituted NHM for a fictitiously named defendant, as follows:

“(2) Plaintiff substitutes Noland Hospital Montgomery, LLC, previously named and d/b/a Long Term Care Hospital at Jackson, LLC, and its agents and/or employees for a fictitious party and further alleges all allegations listed in the original Complaint against this additionally named defendant.”

On March 5, 2010, NHM moved to dismiss Pynes’s second amended complaint, arguing that Pynes’s claims against it were barred by the statute of limitations because, it asserted, the second amended complaint had been filed more than two years after the act or omission giving rise to the claim. NHM, citing Rule 12(b)(6), Ala. R. Civ. P., also argued that Pynes failed to state a claim against it that would entitle him to relief. While NHM’s motion to dismiss remained pending, Pynes’s counsel withdrew, and a new attorney, Pynes’s third attorney, filed an appearance, and the trial court again stayed the proceedings.

On October 28, 2010, Pynes’s third attorney filed a third amended complaint, asserting new claims against NHM not raised in the previous three complaints. On November 19, 2010, the trial court heard NHM’s motion to dismiss, among other motions. NHM argued that Pynes was aware of NHM’s existence and of its role when Pynes filed his original complaint; thus, it argued, the second amended complaint substituting NHM for a fictitiously named defendant did not relate back to original complaint. On December 1, 2010, the trial court denied NHM’s motion to dismiss without an explanation and certified the order denying the motion to dismiss as final pursuant to Rule 54(b), Ala. R. Civ. P.

After the trial court denied NHM’s motion to dismiss, NHM filed an answer to Pynes’s third amended complaint, asserting, among other things, that Pynes’s claims against it were barred by the statute of limitations and by Rule 15(c) and Rule 9(h), Ala. R. Civ. P. NHM then conducted discovery as to the issue of Pynes’s knowledge of NHM’s existence and its role in Houston’s hospitalization prior to the filing of his original complaint. NHM’s discovery showed that during Houston’s hospitalization at NHM, Pynes signed forms consenting to procedures for his brother; those consent forms contained the heading “Long Term Hospital of Montgomery.” In Pynes’s deposition, he testified that when Houston was a patient at Jackson Hospital and then at NHM, he knew of “Noland” and understood the name Noland was associated with the long-term-care hospital that was at Jackson. Additionally, Pynes also testified that, when he met with administrative personnel at both Jackson and NHM to discuss various issues related to his brother’s care, he understood that the personnel at Jackson and the personnel at NHM were different.

The discovery also indicated that, following Houston’s death while a patient at NHM, Pynes signed an authorization for the release of Houston’s body, allowing the “Long Term Care Hospital at Jackson” to release Houston’s body to the funeral home. In addition, on August 29, 2008, when Houston’s death certificate was filed by Pynes in the Probate Court of Houston County, along with his petition for letters of administration, it listed the place of Houston’s death as the “Long Term Care Hospital at Jackson.”

On September 22, 2008, Pynes’s first attorney sent a letter to the “Long Term Care Hospital at Jackson,” requesting a copy of its records on Houston. Pynes signed an authorization for release of information directed to the “Long Term Care Hospital at Jackson.” In response to this request for medical records, the medical-records coordinator for NHM sent an invoice on November 3, 2008, to Pynes’s attorney for the copying costs associated with supplying these records. The heading of the invoice reads “Long Term Hospital of Montgomery,” and the invoice instructed that payment be made to the “Long Term Hospital of Montgomery.” The medical-records coordinator prepared a certification of records, dated November 5, 2008, in which she authenticated the records she sent to Pynes’s attorney as being those of the “Long Term Hospital of Montgomery.” On November 6, 2008, Pynes’s attorney issued a check made payable to “Long Term Hospital of Montgomery” for the invoiced amount. Additionally, Houston’s medical records from NHM contain references to the “Long Term Care Hospital of Montgomery,” as well as to the “Long Term Care Hospital,” “Long Term Care Hospital at Jackson,” and “Lloyd Noland Long Term Care Hospital at Jackson.”

After conducting discovery, NHM filed a motion for a summary judgment in which it contended, among other things, that Pynes had sufficient information before filing his wrongful-death action to have ascertained the existence of and the proper name of NHM. On November 8, 2011, the trial court denied NHM’s summary-judg-merit motion. NHM filed its petition with this Court on November 22, 2011.

II. Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy, and it “will be issued 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 Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

“The general rule is that ‘ “a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.” ’ Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (quoting Ex parte Central Bank of the South, 675 So.2d 403 (Ala.1996))....
“... In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiffs claim was barred by the applicable statute of limitations. See Ex parte Snow, 764 So.2d 531 (Ala.1999) (issuing the writ and directing the trial court to enter a summary judgment in favor of the defendant); Ex parte Stover, 663 So.2d 948 (Ala.1995) (reviewing the merits of the trial court’s order denying the defendant’s motion for a summary judgment, but denying the defendant’s petition for a writ of mandamus); Ex parte FMC Corp., 599 So.2d 592 (Ala.1992) (same); Ex parte Klemawesch, 549 So.2d 62, 65 (Ala.1989) (issuing the writ and directing the trial court ‘to set aside its order denying [the defendant’s] motion to quash service or, in the alternative, to dismiss, and to enter an order granting the motion’). In Snow, Stover, FMC Corp., and Klemawesch, the plaintiff amended his or her complaint, purporting to substitute the true name of a fictitiously named defendant. In each case, the plaintiffs claim against the newly named defendant would have been barred by the applicable statute of limitations if the plaintiffs amendment did not, pursuant to Rule 15(c), Ala. R. Civ. P., relate back to the filing of the plaintiffs original complaint.”

Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000).

III. Analysis

A. Motion to Dismiss and Rule 5k(b) Certification

We first address Pynes’s argument that NHM’s petition for a writ of mandamus is untimely because NHM did not appeal the trial court’s order of December 1, 2010, denying NHM’s motion to dismiss, which the trial court certified as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Rule 21(a)(3), Ala. RApp. P., provides that a petition for a writ of mandamus “shall be filed within a reasonable time” and further explains that “[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal,” which is 42 days. As we understand Pynes’s argument, he contends that because NHM did not file its petition for a writ of mandamus within the 42-day period following the entry of the December 1, 2010, order, the petition was untimely. We disagree.

For an order to be susceptible to Rule 54(b) certification, the order must dispose of at least one of a number of claims or one of multiple parties, must' make an express determination that there is no just reason for delay, and must expressly direct the entry of a judgment as to that claim or that party. Jakeman v. Lawrence Group Mgmt. Co., 82 So.3d 655, 659 (Ala.2011) (citing Committee Comments on 1973 Adoption of Rule 54(b), Ala. R. Civ. P.). Because a denial of a motion to dismiss does not dispose of a claim, the purported Rule 54(b) certification of finality was ineffective here.

“Pursuant to Rule 54(b), a trial court may direct ‘the entry of a final judgment as to one or more but fewer than all of the claims or parties.’ But Rule 54(b) makes an order final — and therefore ap-pealable — ‘only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties.’” Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (quoting Committee Comments on the 1973 adoption of Rule 54(b)) (emphasis added in Tanner). In other words, for a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.”

Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999). “An appeal will not lie from a nonfinal judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007). Therefore, the fact that NHM did not appeal from the nonfinal order denying NHM’s motion to dismiss had no effect on its later motion for a summary judgment or its petition for a writ of mandamus filed after the denial of that summary-judgment motion.

The trial court’s order denying NHM’s summary-judgment motion was entered on November 8, 2011. NHM filed its petition for a writ of mandamus on November 22, 2011, well within the 42-day presumptively reasonable time. The petition thus was timely filed.

B. Motion for a Summary Judgment

We next address whether Pynes’s second amended complaint, filed on January 6, 2010, after the expiration of the two-year limitations period for bringing a wrongful-death action, see § 6-5-410, AIa.Code 1975, substituting NHM for the fictitiously named party in the original complaint, related back to the filing of his original complaint on March 6, 2009. Rules 9(h) and 15(c)(4), Ala. R. Civ. P., “ ‘ “allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.” ’ ” Ex parte Tate & Lyle Sucralose, Inc., 81 So.3d 1217, 1220 (Ala.2011) (quoting Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala.2005), quoting in turn Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Fictitious-party practice is governed by Rule 9(h), which provides:

“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.”

Under Rule 15(c)(4), 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).”

In order to avoid the bar of a statute of limitations when a plaintiff amends a complaint to identify a fictitiously named defendant on the original complaint, the plaintiff: (1) must have adequately described the fictitiously named defendant in the original complaint; (2) must have stated a cause of action against the fictitiously named defendant in the body of the original complaint; (3) must have been ignorant of the true identity of the fictitiously named defendant; and (4) must have used due diligence in attempting to discover the true identity of the fictitiously named defendant. Ex parte Tate & Lyle Sucralose, 81 So.3d at 1220-21. In addition,

“ ‘[a] plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Likewise, to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.’
“Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992). The test for determining whether a party exercised due diligence in attempting to ascertain the identity of the fictitiously named defendant is ‘whether the plaintiff knew, or should have known, or was on notice, that the substituted defendants were in fact the parties described fictitiously.’ Davis v. Mims, 510 So.2d 227, 229 (Ala. 1987).
“As evidence of due diligence, this Court looks to, among other things, whether the plaintiff has conducted formal or informal discovery. ‘Although it is true that formal discovery is not the only method of determining the identity of a fictitiously named defendant, it commonly is vital to demonstrating due diligence because it provides objective evidence of the plaintiffs case activity.’ Ex parte Hensel Phelps Constr. Co., 7 So.3d 999, 1004 (Ala.2008). The conducting of formal discovery does not necessarily prove due diligence, however. See, e.g., Jones v. Resorcon, Inc., 604 So.2d 370, 373 (Ala.1992) (finding a lack of due diligence where the plaintiff failed to seek a court order permitting inspection of a fan after the defendant refused to allow the plaintiffs requested access to the fan; inspection of the fan that allegedly caused the plaintiffs injury would have revealed the name of the fan’s manufacturer).
“This Court has found a lack of due diligence even when a plaintiff has conducted both formal and informal discovery. See, e.g., Ex parte Mobile Infirmary Ass’n, 74 So.3d 424 (Ala.2011) (finding a lack of due diligence where the plaintiff had inquired informally of defense counsel as to who should be the proper defendants, had searched the Alabama Secretary of State’s Web site, and had propounded interrogatories directed at determining the proper identities of the defendants, but waited until after the limitations period had expired to amend the complaint). See also Crowl v. Kayo Oil Co., 848 So.2d 930 (Ala.2002) (finding a lack of due diligence where the plaintiff was relying on interrogatories to determine the identities of the defendants, and the defendants never answered the interrogatories).”

Ex parte Tate & Lyle Sucralose, 81 So.3d at 1221. “In a case involving fictitiously named defendants, the answer to [the] question [whether an amendment relates back to the filing of the original complaint as permitted by Rules 9(h) and 15(c), Ala. R. Civ. P.,] depends upon the plaintiffs conduct.” Ex parte Mobile Infirmary Ass’n, 74 So.3d 424, 428 (Ala.2011).

NHM disputes that Pynes stated a cause of action against it, that he adequately described NHM’s role as it related to Houston’s death, and that Pynes was ignorant of the identity of NHM when NHM was identified only as a fictitiously named defendant in the original complaint. Houston died on March 9, 2007; Pynes had two years from that date in which to file a wrongful-death action. See § 6-5-410, Ala.Code 1975 (“A personal representative may commence an action ... for the wrongful act, omission, or negligence of any person, persons, or corporation ... whereby the death of his testator or intestate was caused.... Such action must be commenced within two years from and after the death of the testator or intestate.”). Pynes filed his original complaint on March 6, 2009, just a few days before the two-year limitations period expired. Pynes substituted NHM for the fictitiously named defendant on January 6, 2010, in his second amended complaint. The determinative issue is whether that amendment relates back to the filing of the original complaint as permitted by Rule 15(c), Ala. R. Civ. P. Because Pynes failed to adequately describe in the original complaint the fictitiously named defendant for which he substituted NHM; failed to state a claim against that fictitiously named defendant in the body of the original complaint; failed to demonstrate that he was ignorant of the true identity of that fictitiously named defendant; and failed to exercise due diligence to ascertain the true identity of that fictitiously named defendant, the second amended complaint does not relate back to Pynes’s original complaint.

Neither the original complaint nor the first amended complaint stated a cause of action against a long-term-care facility or adequately described a long-term-care facility’s role as it related to Houston’s death. Moreover, even though Pynes was on notice that the area within Jackson Hospital in which long-term care was provided was identified by several different names, Pynes did not attempt to discover NHM’s true identity in a timely fashion. In his brief in response to NHM’s petition, Pynes stated that when he filed his original complaint, he was not sure whether NHM was an entity separate from Jackson Hospital because, he says, Houston “remained at the same physical location within, Jackson Hospital, throughout the pertinent timeframe.... ” Pynes’s brief, at 12. However, in another section of his brief Pynes states that Houston “was transferred to another wing within Defendant Jackson Hospital’s facility on November 28, 2006.” Pynes’s brief, at 15. Pynes also acknowledges that four different names for NHM are used in Houston’s medical records that were provided to his lawyers. Despite Houston’s transfer during his hospitalization and the different names of the entities in Houston’s medical records, Pynes conducted no discovery whatsoever to determine the correct entity that should have been sued. Such discovery — or lack thereof — is considered vital evidence by this Court in demonstrating due diligence. Tate & Lyle Sucralose, 81 So.3d at 1221. There simply is no evidence in the materials before us that Pynes exercised due diligence in learning the true identity of NHM.

Pynes’s failure to demonstrate that he is entitled to the relief afforded by Rules 9(h) and 15(c)(4) and his lack of due diligence prevent the second amended complaint from relating back to his original complaint. The two-year statute of limitations for a wrongful-death claim therefore was not tolled, and Pynes’s wrongful-death claim against NHM is time-barred.

In his brief, Pynes argues that this case involves relation-back analysis pursuant to Rule 15(c)(3), Ala. R. Civ. P. Rule 15(c)(3) provides, in pertinent part:

“(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
“(3) the amendment, other than one naming a party under the party’s true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied[] and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party....”

In this case, Pynes, in the original complaint, named “Jackson Hospital, Dr. Muk-esh Patel, and ‘Factitious [sic] party ‘A’, ‘B’ being that person and or agent for NOLAND COMPANY, whose true name and legal descriptions [are] otherwise unknown to Plaintiff but will be supplied by amendment when ascertained.” An amendment merely substituting a named party for a fictitiously named party relates back only if the provisions of Rule 9(h) are satisfied, i.e., if the plaintiff “is ignorant of the name of an opposing party and so alleges” in the original complaint.

IV. Conclusion

Based on the foregoing, we conclude that NHM has established a clear legal right to the relief sought. Accordingly, we grant the petition and issue the writ directing the Montgomery Circuit Court to enter a summary judgment in favor of NHM in Pynes’s wrongful-death action against it.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL and BOLIN, JJ., concur.

MURDOCK, J., concurs in the result.

      . See Johnson v. Brookwood Med. Ctr., 946 So.2d 849, 853 (Ala.2006) ("It is well established that the two-year limitations period found in § 6-5-410, Ala.Code 1975, for as-setting wrongful-death actions (and not § 6-5-482, Ala.Code 1975, the medical-malpractice limitations period) applies to wrongful-death cases alleging medical malpractice.”).

      . NHM also filed with its motion for a summary judgment the affidavits of Nurse Anita Deason and Dr. Mukesh Patel regarding standards of care applicable to the treatment of Houston.

      . Rule 5, Ala. R.App. P., provides a process by which a party can seek permission to file an appeal challenging an interlocutory order in civil cases under limited circumstances, but NHM did not seek such a permissive appeal in this case. Because that question was not presented to us, we express no opinion on whether we would have granted such a request.

      . Section 6-5-410 was' amended effective June 9, 2011; the amendment applies only to actions filed after June 9, 2011. See § 6-5-410(f).

      . Provision (2) states that the pleading relates back when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading-"


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    HOUSING AUTHORITY OF THE BIRMINGHAM DISTRICT v. LOGAN PROPERTIES, INC., and Alamerica Bank.
    1111015.
    Supreme Court of Alabama.
    Dec. 7, 2012.

      James A. Bradford and Ed R. Haden of Balch & Bingham LLP, Birmingham; and Marshell R. Jackson, Housing Authority of the Birmingham District, Birmingham, for appellant.
    Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Re-diker, LLC, Birmingham; and Dawn Stith Evans and David R. Donaldson of Donaldson & Guin, LLC, Birmingham, for appel-lee Logan Properties, Inc.
    Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellee Alamerica Bank.
   STUART, Justice.

The Housing Authority of the Birmingham District (“HABD”) appeals the judgment entered by the Jefferson Circuit Court awarding Logan Properties, Inc., $350,000 on its inverse-condemnation claim against HABD, as well as an additional $100,000 for litigation expenses, . and awarding the intervening plaintiff Alameri-ca Bank $10,000 for litigation expenses. We reverse and remand.

I.

Logan Properties is a real-estate and property-management company that purchases, renovates, rents, and maintains single-family and multi-family residences in the Birmingham area. In January 2002, Logan Properties purchased Patio Court, a 30-unit apartment complex in the Ensley neighborhood in Birmingham for approximately $101,000. Logan Properties began renovating the vacant units in the complex with the plan of transferring current tenants into the newly renovated units until the entire complex was eventually renovated and leased. Logan Properties financed the purchase and rehabilitation of Patio Court by obtaining a construction loan from Alamerica Bank. In February 2003, Logan Properties obtained an adjacent parcel of property including a triplex unit with the same goal of renovating and leasing the units.

Sometime in 2004, Logan Properties learned that HABD had obtained a federal grant to redevelop Tuxedo Court, a multi-block public-housing complex located across 22nd Street from Patio Court. That project, referred to by the parties as the Hope VI project, entailed the demolition of the existing Tuxedo Court housing complex and the construction of new housing in its place. At trial, Logan Properties’ officers testified that, after the plans for the Hope VI project were made public, tenants started leaving Patio Court, telling Logan Properties that HABD was going to condemn Patio Court as part of the Hope VI project. As residents in Tuxedo Court left as well, the general area deteriorated, and the vacant Patio Court apartments became the subject of theft and vandalism. Although Logan Properties had completely renovated 18 of the units, it eventually stopped renovation work, and, during the 2011 trial, it was conceded that the entire property had become unlivable.

In September 2005, the Boulevard Group, which was hired by HABD to be the project manager for the Hope VI project, offered to buy Patio Court, but not the triplex, from Logan Properties for $200,000. Logan Properties rejected the offer but, in November 2005, made a counteroffer to sell Patio Court and the triplex for $415,000. That offer was not accepted.

It is not clear exactly what transpired over the next 18 months, but it appears that there were at least some ongoing negotiations between Logan Properties and HABD while Patio Court continued to deteriorate. On May 15, 2007, Logan Properties received an appraisal report it had commissioned, placing the fair market value of Patio Court and the adjacent triplex on September 1, 2005 — “the date the owners state the property was in livable condition” — at $425,000. On June 18, 2007, HABD sent Logan Properties a letter formally offering to buy Patio Court and the triplex for $104,200, the amount those properties had been appraised for in an independent appraisal commissioned by HABD. The letter also advised Logan Properties that if it did not accept the offer, “it will be necessary for HABD to file suit to acquire the property by condemnation under its power of eminent domain.” See § 24-1-28, Ala.Code 1975 (providing that a municipal housing authority may “acquire by eminent domain any property, real or personal, which it may deem necessary to carry out the purposes * of [the Housing Authorities Law, § 24-1-20 et seq., Ala.Code 1975]”). Logan Properties did not accept the offer and, in accordance with § 18-1A-270 et seq., Ala.Code 1975, HABD subsequently initiated, on September 26, 2007, condemnation proceedings in the Jefferson Probate Court. As required by § 18-1A-75(a), Ala.Code 1975, HABD simultaneously filed a lis pendens notice on the properties.

The probate court thereafter granted HABD’s application for condemnation and appointed three disinterested commissioners to determine the compensation due Logan Properties for the condemnation of its property. On February 25, 2008, those commissioners filed a report with the probate court setting the amount of compensation at $104,950. However, the probate court failed to enter an order adopting the commissioners’ report within the seven-day period required by § 18-1A-282, Ala. Code 1975, and Logan Properties thereafter moved for a dismissal of the condemnation action on the basis of the probate court’s failure to comply with § 18-1A-282. On July 2, 2008, the probate court granted that motion and dismissed the action.

In May 2009, HABD renewed its effort to acquire the property belonging to Logan Properties, ordering a new appraisal, which valued the property at $108,700. On May 22, 2009, HABD made a formal offer to buy the property from Logan Properties for that amount, again advising that it would exercise its powers of eminent domain if the offer was not accepted. On November 20, 2009, HABD sent Logan Properties a letter reiterating its offer and its intent to initiate condemnation proceedings if Logan Properties did not agree to sell the property.

On January 21, 2010, Logan Properties initiated this action in the Jefferson Circuit Court, asserting an inverse-condemnation claim against HABD and arguing that HABD’s pursuit of its property over the previous several years constituted a de facto taking of the property. See, e.g., McClendon v. City of Boaz, 395 So.2d 21, 24 (Ala.1981) (“Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation.”).

Alamerica Bank thereafter moved to intervene pursuant to Rule 24(a), Ala. R. Civ. P., to protect its interest as mortgagee of the Patio Court property, and, on April 8, 2011, the trial court granted that motion. A three-day jury trial was held beginning October 4, 2011. HABD moved for a judgment as a matter of law at the close of the plaintiffs’ case and renewed that motion at the close of all evidence; the trial court denied both motions. Ultimately, the jury returned a verdict in favor of Logan Properties and against HABD in the amount of $350,000.

Logan Properties and Alamerica Bank subsequently moved the trial court to award them litigation expenses, including attorney fees. See § 18-lA-32(b), Ala. Code 1975 (“The judgment and any settlement in an inverse condemnation action awarding or allowing compensation to the plaintiff for the taking or damaging of property by a condemnor shall include the plaintiffs litigation expenses.”). Following a hearing, the trial court granted their motions. On December 16, 2011, the trial court entered its final judgment, awarding Logan Properties $350,000 on the jury verdict and an additional $100,000 for litigation expenses and awarding Alamerica Bank $10,000 for litigation expenses. HABD’s subsequent postjudgment motion for a judgment as a matter of law or, in the alternative, for a new trial was denied by the trial court on March 16, 2012, and, on April 20, 2012, HABD filed its notice of appeal to this Court.

II.

In Alabama Department of Transportation v. Land Energy, Ltd., 886 So.2d 787 (Ala.2004), this Court considered an appellant’s argument that the trial court had erred by failing to grant the appellant’s motion for a judgment as a matter of law on the appellee’s inverse-condemnation claim. We described the applicable standard of review as follows:

‘“When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate issue is whether the non-movant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992).... A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. If the question is one of law, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992).’ ”

886 So.2d at 791-92 (quoting Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1237, 1240 (Ala.1999)).

III.

Section 235 of the of Alabama Constitution provides that entities invested with the privilege of taking property for public use — including municipal authorities such as HABD — “shall make just compensation ... for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction.” Ala. Const.1901, Art. XII, § 235. Section 235 does not expressly discuss inverse condemnation; however, statutes and this Court’s cas'elaw have long recognized that, if an entity holding eminent-domain powers fails to make compensation before taking, injuring, or destroying private property, the aggrieved property owner is entitled to assert an inverse-condemnation claim against that municipal corporation. See Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala.1993) (“Sonat ”) (“ ‘Inverse condemnation’ refers to a legal action against a governmental authority to recover the value of property that has been taken by that governmental authority without exercising its power of eminent domain — it is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings.”), and § 18-1A-32, Ala.Code 1975 (“A condemnor shall not intentionally make it necessary for an owner of property to commence an action, including an action in inverse condemnation, to prove the fact of the taking of his property.”). Applying § 235, a plaintiff asserting an inverse-condemnation claim is required to put forth substantial evidence of the following elements: (1) that the defendant is an entity “invested with the privilege of taking property for public use”; (2) that the plaintiffs property was “taken, injured, or destroyed”; and (3) that that taking, injury, or destruction was caused “by the construction or enlargement of [the defendant’s] works, highways, or improvements.” See, e.g., Mahan v. Holifield, 361 So.2d 1076, 1079 (Ala.1978) (“[Section 235] has been interpreted to support a cause of action by a private landowner whose property is taken or damaged by a municipality as a consequence of its acts of construction or enlargement.”). In this case, there is no dispute that HABD holds eminent-domain powers pursuant to § 24-1-28, Ala.Code 1975. On appeal, however, HABD argues that there was no taking, injury, or destruction of Logan Properties’ property and that, even if the “injuries” alleged by Logan Properties were cognizable, they were not caused by the construction or enlargement of HABD’s works or improvements.

It is undisputed in this case that HABD never seized, occupied, or exercised control over the Patio Court property or the adjacent triplex owned by Logan Properties. It is likewise undisputed that HABD never took any action that physically injured or had any direct physical impact upon those properties. Finally, there is no allegation that HABD ever impeded access to any property owned by Logan Properties. In light of these undisputed facts, HABD argues that it was entitled to a judgment as a matter of law because, it says, there was no evidence of any taking of or injury to property owned by Logan Properties. See, e.g., Sonat, 621 So.2d at 1286-87 (“Section 235 specifically requires municipalities and other corporations ‘invested with the privilege of taking property for public use’ to make ‘just compensation’ for ‘property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements,’ where there is evidence of some direct physical injury to the property.” (emphasis added)); Reid v. Jefferson Cnty., 672 So.2d 1285 (Ala.1995) (affirming a summary judgment entered in favor of municipalities on plaintiffs inverse-condemnation claim alleging that he suffered an injury when a pedestrian bridge was constructed adjacent to his business, where evidence indicated that no work was performed on plaintiffs property, that the surface of plaintiffs property was not disturbed, and that the plaintiffs property was not subjected to any direct or indirect physical disturbance); and Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 145, 177 So. 332, 340 (1937) (“The embarking upon a competitive business with appellant, without any physical disturbance of appellant’s property, or any interference with the right the appellant has to the legal and proper use of the same, is not such an injury to, or destruction of, property as falls within the protection of section 235 of the Constitution.” (emphasis added)).

Logan Properties does not dispute that there was no trespass onto its property. Rather, it argues that HABD engaged in a series of actions that resulted in the devaluation of its property. In its complaint, it articulated the alleged taking as follows: “The fact that the HABD has indicated, attempted and continues to pursue the condemnation of [Patio Court and the adjacent triplex] from Logan Properties constitutes a taking.” Essentially, Logan Properties argues that the possibility of condemnation became public in 2004, resulting in a steady exodus of tenants. As tenants left, income was reduced, making it harder to finance the ongoing renovations of Patio Court and the triplex. Eventually, Alamerica Bank stopped loaning Logan Properties money for the renovations because of the possibility of condemnation, and the lis pendens notice placed on the property in September 2007, Logan Properties argues, not only made it impossible to borrow money to maintain or to renovate the property but also rendered the property unmarketable. Finally, Logan Properties argues, even after the first condemnation action was dismissed in July 2008, HABD did not remove the lis pen-dens notice or file a new condemnation action, and Logan Properties was finally forced to initiate this action in January 2010 in order to get the property out of the limbo it had been in for approximately six years. In sum, Logan Properties argues, HABD’s actions over this lengthy period cannot be considered simply part of the normal condemnation process and any number of those actions have injured Logan Properties sufficiently to constitute an injury or taking that is compensable pursuant to § 235.

Logan Properties has put forth substantial evidence indicating that the Hope VI project as a whole and HABD’s efforts to acquire Patio Court and the adjacent triplex had a negative effect, either direct or indirect, upon Patio Court and the adjacent triplex. However, we cannot agree that any decrease in value of those properties related to the Hope VI project constituted a taking or an injury that is compen-sable pursuant to § 235. As is evident from our caselaw, § 235 is most generally implicated either when property is physically taken by an authorized entity, see, e.g., Florence v. Williams, 439 So.2d 83, 88 (Ala.1983) (in which a municipality condemned private property for the construction of an off-street parking facility), or when property is physically injured, disturbed, or damaged in association with a public-works project, see, e.g., Warwick v. Mobile Cnty., 17 Ala.App. 206, 84 So. 396 (1919) (holding county hable where its employees entered onto plaintiffs property to remove soil for use in repair of adjacent roadway). Additionally, we have noted that § 235 is applicable in cases where an authorized entity engaged in “the construction or enlargement of its works, highways, or improvements” interferes with a nearby property owner’s right of access to his or her property. See Davis v. State, 346 So.2d 936, 939 (Ala.1977) (“ ‘ “The overwhelming weight of authority is that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. Access to the highway is one of these private rights and is a property right, and the interference with the right of access of an abutting owner is an element of damage.” ’ ” (quoting St. Clair Cnty. v. Bukacek, 272 Ala. 323, 328, 131 So.2d 683, 687 (1961), quoting in turn Blount Cnty. v. McPherson, 268 Ala. 133, 135, 105 So.2d 117, 119 (1958))).

Indeed, with the exception of McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153 (1909), the cases Logan Properties cites in support of the trial court’s judgment uniformly fall within one of these two categories. Yet it is undisputed in this case that there has been no physical disturbance to or intrusion upon Logan Properties’ property and no interference with its access to the property. Logan Properties accordingly emphasizes this Court’s holding in McEachin and argues that it controls, while HABD argues that McEachin was wrongly decided and that this Court has since retreated from its holding. A review of that case is accordingly appropriate.

In McEachin, a property owner sued a municipality after it had cut down shade trees located in the public right-of-way in front of her house, arguing that her house was made less comfortable and valuable as a result and that she was accordingly entitled to compensation under § 235. The trial court held that she had no claim; however, this Court reversed that judgment, holding that “if her property was injured by the destruction of the trees, by the defendant, in and about the enlargement or improvement of the street, she is entitled to just compensation, under the very letter of the Constitution.” 164 Ala. at 265, 51 So. at 153. Thus, the McEachin Court placed no import on the fact that there was no physical invasion or damage to the plaintiffs property or impairment to access, instead effectively holding that the plaintiff was entitled to compensation merely because her property suffered a loss in value in association with improvements made by a municipality to adjacent property. Logan Properties argues that the circumstances in this case are analogous and that it is entitled to compensation for the same reasons.

HABD, however, argues that McEachin is an outlier from which this Court has retreated, as evidenced by cases like City of Guntersville, in which we indicated that in order to recover for a taking pursuant to § 235 there must be either some physical disturbance to property or interference with a property owner’s right to use that property. 235 Ala. at 145, 177 So. at 340 (“The embarking upon a competitive business with appellant, without any physical disturbance of appellant’s property, or any interference with the right the appellant has to the legal and proper use of the same, is not such an injury to, or destruction of, property as falls within the protection of section 235 of the Constitution.”). Moreover, HABD argues that this Court, in Alabama Power Co. v. Christian, 216 Ala. 160, 162, 112 So. 763, 764 (1927), suggested that it was willing to revisit the holding of McEachin, but ultimately declined to do so because the appellant had not made that specific argument. (“[A]p-pellant, as we understand the argument, has not seen fit, on this appeal, to draw into question the authority of the prevailing opinionf ] in McEachin....”).

The ongoing validity of McEachin has, however, been called into question in this case, and we agree with HABD that, to the extent McEachin holds that a compensa-ble injury or taking can occur in the absence of any physical intrusion, injury, or destruction, including an injury to access, it was wrongly decided. Section 235 provides that an entity authorized to exercise the power of eminent domain “shall make just compensation ... for the property taken, injured, or destroyed by the construction or enlargement of [that entity’s] works, highways, or improvements.... ” The requirement that the taking or injury result from the “construction or enlargement of ... works, highways, or improvements” — projects that themselves have a tangible physical effect on property — suggests that any injury or taking must also be of a physical nature. Logan Properties’ assertion that it has suffered a taking or injury merely because its property was identified for acquisition and/or condemnation by HABD and because that fact made it more difficult to renovate, lease, or otherwise use the property, thus decreasing its market value, therefore fails in the absence of any evidence of a physical injury to that property.

In sum, we reiterate the following articulation of the rule made by this Court in City of Guntersville:

“We think the proper rule, deducible from the foregoing authorities, is, that just compensation must be made by municipal corporations and other corporations and individuals invested with the privilege of taking property for public use, when, by the construction or enlargement of ‘its’ works, highways, or improvement, there will be occasioned some direct physical disturbance of a right, either public or private, which the owner enjoys in connection with his property, and which gives it an additional value, and that by reason of such disturbance he has sustained some special damage with respect to his property in excess of that sustained by the general public.”

235 Ala. at 143-44, 177 So. at 339 (emphasis added). It is undisputed that HABD caused no “direct physical disturbance” to property owned by Logan Properties; accordingly, the trial court erred by failing to grant HABD’s motions for a judgment as a matter of law.

IV.

Logan Properties initiated an inverse-condemnation action against HABD, alleging that HABD had taken or injured property owned by Logan Properties. Following a trial, a jury returned a verdict in favor of Logan Properties, and the trial court entered a judgment on that verdict, awarding Logan Properties $350,000 in damages and $100,000 for litigation expenses. Alamerica Bank, which had intervened to protect its interest as the mortgagee of the property, was also awarded $10,000 for litigation expenses. However, because no evidence was presented at trial indicating that HABD was responsible for a direct physical injury upon Logan Properties’ property, that judgment is now reversed and the cause remanded for the trial court to enter a judgment as a matter of law in favor of HABD.

REVERSED AND REMANDED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . At the 2011 trial, the parties stipulated that at that time at least $325,876 remained owing on that loan.

      . It appears Patio Court still had some tenants as late as 2007.

      . This holding is consistent with the United States Supreme Court's rulings in cases involving claims alleging that the threat of condemnation and/or precondemnation procedures constitute a taking. See, e.g. Agins v. City of Tiburon, 447 U.S. 255, 263 n. 9, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (overruled on other grounds by Lingle v. Chevron, 544 U.S. 528, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)) ("Appellants also claim that the city's precondemnation activities constitute a tak-ing_ The [California] Supreme Court correctly rejected the contention that the municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants’ enjoyment of their property as to constitute a taking- Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense.’ Danforth v. United States, 308 U.S. 271, 285 (1939).”); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 336, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) ("A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmak-ing.”); and First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 320, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) ("[D]epreciation in value of the property by reason of preliminary activity is not chargeable to the government.”).

      . We disagree, however, with the conclusion of the City of Guntersville Court that the removal of trees in McEachin constituted "a direct physical injury” to the plaintiff's property. 235 Ala. at 141, 177 So. at 336-37.

      . Logan Properties also argues to this Court that HABD's motions for a judgment as a matter of law should not have been granted because it is always for the jury to decide whether there has been an injury or taking for purposes of § 235. See Sonat, 621 So.2d at 1287 ("This case involves inverse condemnation; therefore, the trial court did not err in allowing the jury to determine whether there had been a § 235 ‘taking’ or ‘injury.’ ”). However, a jury issue arises only when a genuine issue of material fact has been raised. See also Reid, 672 So.2d at 1290, and Avery v. Marengo Cnty. Comm’n, 646 So.2d 1347, 1351 (Ala. 1994) (affirming summary judgments entered by the trial court in favor of defendant government entities on plaintiffs’ inverse-condemnation claims). In this case, the facts are undisputed — there has been no physical injury and there is accordingly no issue regarding what caused that injury. Thus, a judgment as a matter of law is appropriate.