author: ROBERTS, J., JAMES, J.,

text:
    Willie CROWELL, Appellant v. Anne BUTTS d/b/a Magnolia Wrecker & Towing Service and Fani Atkinson, Appellees.
    No. 2012-CA-00763-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied April 22, 2014.

      Andrew Ross Wilson, Jackson, attorney for appellant.
    Michael Lee Dulaney, Tupelo, Daniel Sidney Dale, attorneys for appellees.
   ROBERTS, J.,

for the Court:

111. After Willie Crowell fell behind in his rent payments, his landlord changed the locks on his auto-repair shop and had the vehicles on the property towed. Cro-well filed a replevin action against the towing company for the return of the vehicles, and an unlawful-reentry action against his landlord. The trial court involuntarily dismissed both claims as merit-less. We reverse. Crowell met the statutory requirements to maintain his replevin action, and the evidence showed Crowell’s landlord acted without authority in using self-help to reenter the property. The replevin action is remanded, as a full hearing is necessary to determine which party has a superior possessory right to the towed vehicles. The unlawful-reentry issue is rendered in favor of Crowell, as the landlord failed to provide Crowell with a notice and hearing before reentering the property.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 21, 2009, Crowell entered a handwritten one-year lease agreement with Fani Atkinson for the rental of one acre of land and a metal building owned by Atkinson. The term of the lease was from January 1, 2010, to December 1, 2010. Crowell used the premises as an auto-repair shop. After Crowell became several months delinquent in his rent, Atkinson issued Crowell a notice of default on August 18, 2010. As of the date of the notice, Crowell owed $2,250 in past-due rent. The notice informed Crowell that he had until September 19, 2010, to clear his delinquency or vacate the property. The notice also provided that on September 18, 2010, all equipment on the premises would be towed and impounded, and Crowell would be denied access to the premises after that date.

¶ 3. According to Crowell, he approached Atkinson on Friday, September 17, 2010, and offered to give her $2,800 in cash to extinguish his delinquency, but Atkinson refused. However, Atkinson denies this allegation. Atkinson contacted Anne Butts of Magnolia Wrecker & Towing Service to remove thirty-seven vehicles from the premises in the early morning hours between midnight and 5 a.m. on Sunday, September 19, 2010. Butts towed all thirty-seven vehicles to her business establishment. After the vehicles were towed, Atkinson replaced the lock on the property gate with a new one. Later that day, Crowell arrived at the property and found that he had been locked out, and that all of his personal property, including the thirty-seven vehicles he claimed he rightfully possessed, had been removed.

¶ 4. On October 12, 2010, Crowell filed a replevin action in the County Court of Hinds County, naming Atkinson and Butts, d/b/a Magnolia Wrecker, as defendants. A bench trial was held in county court on May 3, 2011. Crowell testified and called Atkinson and Butts as adverse witnesses. Atkinson claimed her reentry was lawful because Crowell was behind on his rent, and Butts claimed that she rightfully possessed the vehicles through a statutory lien for the unpaid towing/storage fees. Crowell countered that because Atkinson unlawfully ordered the vehicles towed, he should not have to pay the towing/storage fees. Crowell also sought to discuss Atkinson’s breach of the lease agreement. However, the trial court was informed that Crowell had a separate civil action pending against Atkinson and Butts covering all matters surrounding the lease agreement. Thus, the trial court declined to address those issues.

¶ 5. At the conclusion of Crowell’s casein-chief, Atkinson and Butts moved for an involuntary dismissal. Finding that Cro-well failed to show he was entitled to immediate possession of the vehicles and that Atkinson lawfully reentered the property, the trial court dismissed Crowell’s case with prejudice. Crowell appealed to the Hinds County Circuit Court, which affirmed the county’s court decision. Cro-well now appeals the circuit court’s order.

STANDARD OF REVIEW

¶ 6. The grant or denial of a motion under Rule 41(b) must be supported by substantial evidence and is reviewed for manifest error. Milligan v. Milligan, 956 So.2d 1066, 1072 (¶ 14) (Miss.Ct.App.2007) (citing Stewart v. Merchs. Nat’l Bank, 700 So.2d 255, 259 (Miss.1997)). “Involuntary dismissals are rightly granted during a non[]jury trial pursuant to Mississippi Rules of Civil Procedure 41(b) at the close of the plaintiffs case-in-chief for failure to show a right to relief.” Milligan, 956 So.2d at 1072 (¶ 14) (citing Glover v. Jackson State Univ., 755 So.2d 395, 404 (¶23) (Miss.2000)). Unlike the standard for a motion for a directed verdict, “the [trial court] should review the evidence fairly, and not in the light most favorable to the plaintiff....” Id. (citing Century 21 Deep S. Properties Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992)). “The result is that the ruling for an involuntary dismissal is practically equivalent to a finding of fact.” Id. (quoting Ainsworth v. Callon Petroleum, Co., 521 So.2d 1272, 1274 (Miss.1987)).

¶ 7. Because this appeal originated in county court, “[t]he county court was the fact[-]finder, and the circuit court, as well as [the appellate court], are bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong.” Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990). We must “assume[ ] the [county court] judge made all necessary findings of fact in favor of appel-lee, whether stated or not.” Id.

ANALYSIS

I. REPLEVIN

¶ 8. Crowell claims the trial court’s judgment dismissing the replevin action with prejudice was reached in error. We agree.

¶ 9. We first note that while both Butts and Atkinson were named as defendants in Crowell’s replevin action, “[r]e-plevin lies alone against the party in possession at the time the action is begun.” Ainsworth v. Blakeney, 232 Miss. 297, 304, 98 So.2d 880, 883 (1957). It is undisputed that Butts possessed all but one of the vehicles when the action began, and seeks to retain possession until the towing/storage fees are paid. Atkinson has never possessed any of the vehicles, nor has she ever sought possession of the vehicles. Therefore, our discussion of the replevin action is limited to Crowell’s claim against Butts. The unlawful-reentry action against Atkinson is an ancillary matter, which we will discuss separately.

¶ 10. Replevin is a possessory action for personal property governed by statute. Ferris v. Hawkins, 418 So.2d 811, 813 (Miss.1982); see also M.R.C.P. 64 cmt. Mississippi Code Annotated section 11-37-101 (Rev.2012) states that an action for replevin may be maintained where a mov-ant sets forth under oath:

(a) A description of any personal property;
(b) The value thereof, giving the value of each separate article and the value of the total of all articles;
(c) The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all contracts and documents evidencing his claim;
(d) That the property is in the possession of the defendant; and
(e) That the defendant wrongfully took and detains or wrongfully detains the same_

See also Miss.Code Ann. § 11-37-131 (Rev.2012) (requiring proof of section 11-37-101(a) through (e) even in complaints where immediate seizure of property under section 11-37-101 is not sought).

¶ 11. In dismissing Crowell’s replevin action, the trial court did not make findings, but simply adopted Atkinson’s counsel’s arguments made in Atkinson’s motion to dismiss. These arguments were joined by Butts’s counsel. Atkinson’s counsel argued:

[Crowell] has not attached a single [vehicle title or other document showing a right to possession] to any pleading filed in this matter much less the affidavit required by [section] 11-37-101. He has presented no proof today that he is entitled to immediate possession of any of these vehicles. Actually, the proof submitted to the Court is that he is not the owner to any of these vehicles and that they were nothing more than just sitting on his property and were moved because he was four or five months delinquent in his rent, which he had notice of.... [The vehicles’ owners] are the parties who are entitled to immediate possession of these vehicles and they have been put on notice of it.

¶ 12. Crowell is correct that the trial court’s ruling incorrectly focused on his failure to present documentation of the vehicles’ titles or a mechanic’s lien as proof of his right to possession. This was not required for Crowell to pursue replevin. While Crowell was required under section ll-37-101(c) to present “all contracts and documents evidencing his claim,” this does not mean Crowell was required to show title ownership of the vehicles or a written and documented mechanic’s lien. “Replev-in is a suit involving the right of possession of personal property, and does not necessarily involve title.... ” Turnage v. Riley, 172 Miss. 83, 88, 158 So. 785, 786 (1935).

¶ 13. Crowell claimed possession of the vehicles under the theory of bailment. Black’s Law Dictionary 141 (6th ed.1990) defines “bailment” as:

A delivery of goods or personal property, by one person (bailor) to another (bailee), in trust for the execution of a special object upon or in relation to such goods, beneficial either to the bailor or bailee or both, and upon a contract, express or implied, to perform the trust and carry out such object, and thereupon either to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. '

As evidence of the bailment relationship with the vehicles’ owners, Crowell presented a copy of his lease agreement with Atkinson, which showed he maintained the leased facility for “auto repair.” The parties do not dispute that Crowell maintained the premises as an auto-repair shop, as the lease describes. The lease also establishes that Crowell was a tenant of the premises before Atkinson used self-help to regain possession. Therefore, any property that was removed from the premises was presumed to be in Crowell’s possession, including the thirty-seven vehicles. Replev-in hinges on possession, not ownership; thus, the trial court’s focus on Crowell’s proof of ownership was incorrect. Ownership of the vehicles was not outcome determinative and should not have been an issue of contention in this action. We find Crowell set forth all that was required by section ll-37-101(c).

¶ 14. Crowell also presented sufficient evidence of the remaining requirements of section 11-37-101. In compliance with subsections ll-37-101(a) and (b), Crowell submitted an affidavit listing each vehicle held by Butts and its value. In compliance with subsection 11-37-101 (d), Crowell presented evidence showing that Butts un-disputedly possessed the vehicles at all relevant times, with the exception of one vehicle that was picked up by its owner prior to the service of the replevin summons on Butts. And in compliance with subsection (e), Crowell alleged that Butts’s possession was wrongful.

¶ 15. As Crowell presented sufficient evidence to maintain' his replevin action, the trial court’s dismissal was manifestly erroneous. We remand this case for a trial de novo on the merits between plaintiff Crowell and defendant Butts, as a hearing is necessary to determine which party is entitled to possession of the towed vehicles. Because the trial court dismissed the action at the close of Crowell’s case-in-chief, Butts has not been given the opportunity to present her case. Butts claims she rightfully possesses the vehicles because of the unpaid towing/storage fees. Crowell claims he has the superior right to possession through bailment, and he claims he is the title owner of eight to ten of the vehicles. But no determination has been made as to which parties’ rights are superior.

¶ 16. The dissent argues that a trial de novo is unnecessary because it has already been established that Butts has no posses-sory right to the vehicles. Thus, the dissent would reverse and remand, but only to ensure Crowell is given immediate possession'of the vehicles that have not been redeemed by their title owners, or the value thereof. The dissent finds that Butts has no right to retain the vehicles for the unpaid towing/storage fees because she failed to comply with Mississippi Code Annotated section 85-7-251 (Rev.2011). However, the trial testimony in Crowell’s case-in-chief has not conclusively established this. Section 85-7-251(1) gives a towing company the right to retain possession of a towed vehicle until the towing/storage fees are paid when the vehicle was towed “upon request of a real property owner upon whose property a vehicle has been left without permission of the real property owner for more than five (5) days.” This section does not distinguish between a property owner’s lawful or unlawful towing request. Butts testified she believed the towing request was lawful because Crowell was given more than five days’ notice that the vehicles would be towed. It remains unclear whether Atkinson’s request gave Butts superior authority to retain possession of the vehicles under the statute. This is for the trial court to determine. Moreover, Butts has never had the opportunity to present her case-in-chief to attempt to prove her possessory interest is superior to Crowell’s. If the trial court determines that Butts’s possession is proper under section 85-7-251(1), then the requirements of section 85-7-251(2) must also be met. Under section 85-7-251(2), the towing company is required to notify law enforcement within twenty-four hours if a vehicle is towed by a party other than its owner. If five days pass with no contact from the owner, the towing company must make a good-faith effort to locate the owner and lienholder. Id. The towing company must then provide notice that the vehicle will be sold at auction if not redeemed within ten days. Id. Because the case was dismissed at the end of Crowell’s case-in-chief, Butts has not been given an opportunity to testify as to whether she met any of these requirements. Thus, a hearing is necessary.

¶ 17. Because issues regarding the pos-sessory rights of the parties remain unresolved, remand for a new trial on the merits is warranted. Pursuant to Mississippi Code Annotated section 11-51-79 (Rev.2012), remand is to the circuit court docket for a trial de novo between Crowell and Butts.

II. RIGHT OF REENTRY TO THE LEASED PROPERTY

¶ 18. Within his replevin action, Crowell alleged that Atkinson unlawfully used self-help to reenter the leased premises without notice and remove his personal property. The trial court found that Atkinson’s self-help was lawful. Crowell argues the trial court’s decision was erroneous because the lease did not allow self-help.

¶ 19. Before considering this issue, we must address whether the trial court had jurisdiction to rule on this claim. In Hall v. Corbin, 478 So.2d 258, 254 (Miss.1985), the Mississippi Supreme Court addressed “the scope of jurisdiction and available remedies in circuit court ancillary to a replevin action ... under the Mississippi Rules of Civil Procedure.” The court found that the replevin statutes, Mississippi Code Annotated sections 11-37-101 to -157 (Rev.2012), may be “supplemented only by so much of the [Mississippi Rules of Civil Procedure] as are not inconsistent with those statutes.” Hall, 478 So.2d at 256. The court found that nothing in the replevin statutes precludes ancillary claims, even those arising in equity. Id. “To fall within pendent or ancillary jurisdiction, the intruding claim must arise out of the same transaction or occurrence as the principal claim or ... out of a common nucleus of operative fact.” Id. at 255; see also M.R..C.P. 20(a). We find the claims here arise from a common nucleus of operative fact. Crowell claims Butts’s possession is unlawful because Atkinson towed the vehicles without authority to do so. The claims against both Butts and Atkinson stem from Atkinson’s action in using self-help to have the vehicles removed. Therefore, the trial court acted within its authority in ruling on the unlawful-reentry issue.

¶ 20. The trial court’s order states that “Atkinson had authority to re[ ]enter her property and lock out [Cro-well.]” Based on the trial transcript, it appears the trial court drew this conclusion from the following findings: (1) Atkinson did not need permission to reenter her own property, and (2) Crowell’s rent delinquency gave Atkinson cause to use self-help to have the vehicles removed from the property. The trial court’s findings are incorrect, as neither of these reasons support using self-help. “Mississippi’s landlord lien statute does not authorize a landlord to use self-help to seize property of the tenant.” Bender v. N. Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss.1994). Because self-help is not statutorily authorized, “nonpayment of rent does not operate in the absence of a provision therefor in the lease as a forfeiture of the term or confer upon the lessor the right of re[]entry.” Clark v. Serv. Auto Co., 143 Miss. 602, 604, 108 So. 704, 706 (1926). If no such authority is given in the lease, the landlord is required to comply with “[a]ll of the provisions of law as to attachment for rent and proceedings thereunder....” Miss.Code Ann. § 89-7-51(2) (Rev.2011). These provisions require notice and a hearing. Miss.Code Ann. §§ 89-7-55 to - 125 (Rev.2011). In other words, reentry or self-help may only be used without notice and a hearing if it is permitted in the lease. The lease here contained no such provision. Neither Atkinson nor Crowell disputes that fact.

¶ 21. Because there was no lease provision allowing self-help, Atkinson was required to provide Crowell with notice and the opportunity for a hearing before locking him out of the property. Also, Atkinson had no authority to order the vehicles towed from the premises. Though Atkinson issued a notice of default to Crowell informing him that his property would be removed if he did not bring his rent current by September 18, 2010, the notice did not take the place of a valid forfeiture clause in the lease agreement and give Atkinson the right to deprive Crowell of property that was in his possession.

¶ 22. As Atkinson had no right to reenter the premises to lock Crowell out and seize his personal property, we reverse and render this issue.

¶ 23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND BARNES, J.

JAMES, J.,

concurring in part and dissenting in part:

¶ 24. I agree with the majority in finding that Atkinson was without authority to reenter the leased premises and allow Butts to tow the vehicles in Crowell’s possession, as the handwritten lease agreement did not contain a forfeiture provision for nonpayment of rent. “Where there is a provision in the lease for forfeiture and re-entry for nonpayment of rent, such a provision is valid and enforceable.” Clark v. Serv. Auto Co., 143 Miss. 602, 604, 108 So. 704, 706 (1926). However, I find that Crowell is entitled to immediate possession of the vehicles free of any lien, or he is entitled to receive the value of the vehicles. Therefore, I would reverse and remand as to the issue of replevin.

¶ 25. The majority asserts that a trial de novo is necessary to allow Butts an opportunity to present her case. I respectfully disagree. I do not find there to be unresolved issues as to who has the superior right to possession between Cro-well and Butts. Butts filed an answer to Crowell’s replevin complaint, and the only relief she requested was attorney’s fees. The majority states that “no determination has been made as to which parties’ rights are superior.” Maj. Op. at (¶ 15). However, during trial, Butts never alleged that she had a possessory right superior to that of Crowell due to unpaid towing and storage fees, nor has she raised that argument before this Court. Even if Butts had done so, she is precluded from collecting such fees because her removal of the vehicles was not in compliance with Mississippi Code Annotated section 85-7-251 (Rev. 2011), which governs the towing and storage of motor vehicles. The statute provides:

Towing and storage costs; notice and sale
(1) The owner of a motor vehicle that has been towed at his request or at the direction of a law enforcement officer, or towed upon request of a real property owner upon whose property a vehicle has been left without permission of the real property owner for more than five (5) days, shall be liable for the reasonable price of towing and storage of such vehicle; and the towing company to whom the price of such labor and storage costs may be due shall have the right to retain possession of such motor vehicle until the price is paid.
(2) Within twenty-four (24) hours, the towing company shall report to the local law enforcement agency having jurisdiction any vehicle that has been towed unless the vehicle was towed at the request of the owner of the vehicle. If the owner of a towed vehicle has not contacted the towing company within five (5) business days, of the initial tow, the towing company shall obtain from the appropriate authority the names and addresses of any owner and lienholder. If the information from the appropriate authority fails to disclose the owner or lienholder, a good faith effort shall be made by the towing company to locate ownership....

Miss.Code Ann. § 85-7-251(1), (2) (Rev. 2011).

¶ 26. Here, the true owners of the vehicles did not request that the vehicles be towed. The vehicles were not abandoned, nor did Butts receive any direction from a law enforcement officer to remove the vehicles. Further, Butts was not acting under authorization of a court order. Also, Atkinson did not have the authority to renter the property for nonpayment of rent. Butts did not make a good-faith effort to comply with the requirements of section 85-7-251, which precludes her from collecting any towing or storage charges. “The failure to make a good faith effort to comply with the requirements of this section shall preclude the imposition of any storage charges or towing charges against the towed vehicle.” Miss.Code Ann. § 85-7-251(3). The statute is clear that Butts has no possessory rights to the vehicles, nor does she have any rights to towing or storage fees due to her wrongful acts. Butts took an assumption of risk when she wrongfully removed the thirty-seven ■ unabandoned vehicles from the premises after midnight without the direction of proper authority.

¶ 27. For these reasons, I feel that a trial de novo is unnecessary. However, remand is warranted to ensure that Cro-well receives immediate possession of the remaining vehicles free and clear of any hen. If Crowell is unable to regain possession of the remaining vehicles, he should receive the value of the vehicles for which either Atkinson or Butts should be jointly or severally liable, as determined by the lower court.

' IRVING, P.J., AND BARNES, J., JOIN THIS OPINION.

      . Although described as a motion for a directed verdict at trial and on appeal, the motion was technically one for a Mississippi Rule of Civil Procedure 41(b) involuntary dismissal, as the case was tried before a judge, not a jury. A motion for a Rule 41(b) dismissal is appropriately made in "an action tried by the court without a jury " once the plaintiff “has completed the presentation of his evidence.” (Emphasis added). A motion for a directed verdict under Mississippi Rule of Civil Procedure 50 "does not apply to cases tried without a jury....” M.R.C.P. 50 cmt.

      . Butts did not file an appellate brief, but rather filed a one-page document entitled "Pleading,” in which she states that she "joins the brief filed by Appellee Fani Atkinson and incorporates by reference said pleading as [her] own.” See M.R.A.P. 28(j).

      . Black’s Law Dictionary defines joint and several liability in this context as “liability that an individual or business shares with [others] or bears individually without the others.” Black’s Law Dictionary 837 (6th ed.1990).


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    William L. PEEBLES, Appellant v. Sandra A. PEEBLES, Appellee.
    No. 2013-CA-02111-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2014.

      S. Christopher Farris, attorney for appellant.
    Robert R. Marshall, attorney for appel-lee.
    Before GRIFFIS, P.J., BARNES, ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. William Peebles appeals a binding consent judgment he entered into with his ex-wife, Sandra. He wants to back out of paying Sandra $64,686.60 in past-due house-note payments and attorney’s fees. While he admitted in the consent judgment he owed Sandra this amount, on appeal he wants to relitigate whether his obligations to Sandra were discharged by his bankruptcy. Though this issue is barred from our review, the law is clear that support obligations are not dischargeable in a chapter 7 bankruptcy.

¶ 2. Alternatively, William argues that even if the note obligation was not discharged, he should get a dollar-for-dollar credit for all benefits Sandra receives from his Social Security. But William is not entitled to such a credit, since the parties did not agree he would receive one. We thus affirm.

Facts and Procedural History

¶ 3. On March 22, 2004, William and Sandra were granted an irreconcilable-differences divorce. Instead of asking the court to distribute the property, they entered into a property-settlement agreement. According to the PSA, Sandra would get the marital home, and William would execute a quitclaim deed conveying all of his interest in the home to Sandra. The parties also agreed William “shall be responsible” for the “house note[.]” And William was obligated to pay “taxes and insurance,” until either the house sold, or Sandra remarried or died. Each party waived the right to seek alimony or make any claims against the retirement income of the other.

¶4. Sandra claimed William stopped paying on the house note. And on June 30, 2011, she filed a contempt action against him for his nonpayment. William responded, asserting Sandra had agreed to relieve him of his house-note obligations for a one-year period after he underwent triple-bypass heart surgery. William also argued that the $708 per month Sandra began withdrawing from his Social Security should offset his missed payments on the house note. As William sees it, he should actually get a monthly credit of around $60 since the house note was $647.38 per month. He also raised an inability-to-pay defense.

¶ 5. On June 12, 2012, William filed for chapter 7 bankruptcy and sought to discharge his debt owed to Sandra. Under Schedule “E” of William’s bankruptcy petition — which is entitled “Creditors Holding Unsecured Priority Claims” — he had listed Sandra as a creditor for a “domestic support obligation ($640.00 per month),” and the total amount was listed as $33,084.47. The deadline for Sandra to object to the debtor’s discharge was September 24, 2012. And from the record it appears the deadline passed without Sandra objecting.

¶ 6. On October 9, 2012, William was “granted a discharge under section 727 of title 11, United States Code ... (the Bankruptcy Code).” Though the order did not specify which debts were actually discharged, it made clear: “Some of the common types of debts which are not discharged in a chapter 7 bankruptcy case are: ... Debts that are domestic support obligations!;.]”

¶ 7. On June 14, 2013, William filed for summary judgment in Sandra’s contempt action, asserting discharge in bankruptcy, waiver, and res judicata as defenses. He alternatively argued that if the house note was not discharged in bankruptcy, he should get a dollar-for-dollar credit against his monthly house-note obligation for all Social Security benefits paid to Sandra. Sandra disagreed. She insisted that since William’s house-note obligation was a domestic support obligation, it could not be discharged in bankruptcy.

¶8. The chancellor held a hearing on William’s summary-judgment motion. After hearing from both sides, he found the house note was not dischargeable in bankruptcy. And because the PSA did not mention William receiving a credit if Sandra drew from his Social Security benefits, the chancellor rejected William’s offset theory. Thus, he denied William’s summary-judgment motion.

¶9. After this ruling, the parties entered a “consent judgment.” Under its terms, William agreed he owed Sandra $54,686.60 for the house note and Medicare supplement costs. He also agreed to pay $10,000 for Sandra’s attorney’s fees, for a total of $64,686.60. As part of this judgment, William was ordered to pay $1,000 per month starting November 1, 2013, which represented a $647.33 payment on the house note plus $208.55 in taxes and insurance, totaling $862.33, with the remaining balance to be applied to the judgment. And Sandra agreed to stay execution of the consent judgment as long as William continued to pay the $1,000 per month.

¶ 10. The consent judgment did, howev- . er, give William “the right to seek an appeal from the [cjourt’s pretrial ruling denying his request for credit for the social security payments [Sandra] has been receiving as a result of [William’s] contributions into social security.” But William did not reserve. the right to appeal the judge’s finding that his house-note obligations to Sandra were not discharged in bankruptcy.

Discussion

I. House-Note Obligation Was Not Discharged in Bankruptcy

¶ 11. William’s first appellate claim ignores the consent judgment he entered with Sandra and backtracks to his initial suggestion that his house-note obligation was discharged in bankruptcy. We find William’s claim is not only barred but also lacks merit.

A. Consent Judgments Are Binding

¶ 12. First, William entered into a consent judgment, conceding he indeed owed Sandra the money on the house note. And consent judgments are “given the same force and effect as[ ] judgments rendered after litigation.” Smith v. Malouf, 826 So.2d 1256, 1259 (¶ 10) (Miss.2002). We do note, however, that while consent judgments are “binding and conclusive, operating as res judicata and an estoppel to the same extent as judgments after con-teste,]” there are limited grounds for an appeal from a consent judgment. But none of those exceptions are present here.

B. Appealability of a Consent Judgment

¶ 13. “Until 1991 there was a specific statutory bar to appealing from a consent judgment.” Sanghi v. Sanghi, 759 So.2d 1250, 1255 (¶22) (Miss.Ct.App.2000) (citing Miss.Code Ann. § 11-51-3 (1972) (an appeal may be taken from any judgment that is not “by confession”), amended 1991 Miss. Laws ch. 573, § 79). But “now an appeal can be taken from any judgment other than one by default.” Id. (citing Miss.Code Ann. § 11-51-3 (Supp.1999)). To survive the bar against appealing consent judgments, the issues on appeal must be akin to those under Rule 60(b) — claims such as fraud, misrepresentation, accident, or mistake. Rushing v. Rushing, 724 So.2d 911, 915-16 (¶¶ 19-20) (Miss.1998). As our supreme court has put it, for a consent judgment to be appealable, “the allegation and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id. at 916 (¶ 22) (quoting Askew v. Askew, 699 So.2d 515, 520 (Miss.1997)).

¶ 14. From our review here, it is obvious that relitigating the discharge issue is William’s chief concern. William does not contest the validity of the consent judgment; he simply wants to reargue something he ultimately agreed about — the fact that he owed Sandra $54,686.60 on the house note. Had he reserved the right to appeal this issue as he specifically did with his claim he should be credited for Social Security benefits, the bankruptcy issue would be properly before us. But he opted not to preserve it, so we find the bankruptcy-discharge issue is barred.

¶ 15. Still, while the discharge issue is barred, a look at the merits shows William listed his house-note obligation on his bankruptcy schedules as a “domestic support obligation.” And it is well established that a chapter 7 discharge “does not discharge an individual debtor from any debt ... for a domestic support obligation [.]” 11 U.S.C. § 523(a)(5) (emphasis added). So even though the issue is barred, we find the chancellor was right that the note obligation was not discharged by William’s chapter 7 bankruptcy.

II. The Parties Never Agreed to a Credit

¶ 16. William next argues that if the house-note payment was in the form of a domestic support obligation (and therefore not dischargeable in bankruptcy), he should get a dollar-for-dollar credit for all the benefits Sandra receives from his Social Security. He cites Spalding v. Spald-ing, 691 So.2d 435, 440 (Miss.1997), where our supreme court held that derivative Social Security benefits can be used as a substitute income stream to satisfy alimony obligations. (Emphasis added). But here, no alimony was awarded. Instead, under the PSA’s terms, each party expressly waived all rights to permanent or lump-sum alimony. Thus, Spalding does not apply.

¶ 17. More importantly, the parties’ PSA does not mention William receiving a credit if Sandra starts to draw Social Security benefits. A “property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So.3d 1111, 1118 (1121) (Miss.2013). “An agreement made between the parties should ordinarily be enforced, and the court should take a dim view of efforts to modify or reform the parties’ settlement agreement.” Id. at 1119 (¶ 23) (quoting Williams v. Williams, 37 So.3d 1171, 1174 (Miss.2010)). Where a PSA is a valid contract it should not be modified.

¶ 18. Our review here shows the parties’ PSA is clear and unambiguous. There is simply no mention of Social Security benefits or credits. Instead, the parties agreed that the only way William’s house-note obligation would cease was if Sandra died, remarried, or sold the house. Thus, we find no error in the chancellor refraining from changing it to give William the requested credit. We affirm.

¶ 19. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

      . When the petition was filed, Sandra alleged William was in arrears $25,404.47 through May 2011. In William's answer, he claimed he paid every month in 2011 except September, October, and November.

      . Sandra’s responded to William’s answer, insisting there "was no agreement for [William] not to make the payments then or now and [William] was not 'relieved of payments' by Sandra nor was any order entered or sought to that effect.” But in her response to his summary-judgment motion, Sandra "admits that she waived the monthly payments while [William] was unable to work due to recovering from a heart attack but she did not waive her right to receive the payments at a later date.”

      . He also listed attorney Erik M. Lowery as a creditor.

      . A chapter 7 discharge "does not discharge an individual debtor from any debt . for a domestic support obligation^]” 11 U.S.C. § 523(a)(5) (2012). A "domestic support obligation” is defined as
      a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable non-bankruptcy law notwithstanding any other provision of this title, that is — (A) owed to or recoverable by — (i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or (ii) a government unit; (B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated; (C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provision of — (i) a separation agreement, divorce decree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and (D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.
      11 U.S.C. § 101(14A) (2012) (emphasis added).

      . Id.

      . Our supreme court also noted that this was allowed in the context of child-support obligations, but it never extended such a rule to property division or debt obligations. Id. at 439.

      . Courts can "modify property settlement agreements under certain circumstances, for example, where fraud, overreaching, or mistake are involved; however, absent special circumstances, courts should be hesitant to modify a property settlement agreement, as they would with any contract.” Id. at n. 8 (citing Speed v. Speed, 757 So.2d 221, 224-25 (Miss.2000)).


author: BOLIN, Justice. MURDOCK, Justice SHAW, Justice MOORE, Chief Justice

text:
    Ex parte Gerald HODGE, M.D. (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority et al.). Ex parte Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (In re David Tucker, Jr., as administrator ad litem for the Estate of Gertha R. Tucker, and David Tucker, Jr., individually v. The Tombigbee Healthcare Authority et al.).
    1121194 and 1121217.
    Supreme Court of Alabama.
    Feb. 7, 2014.

      Tabor R. . Novak, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioner Gerald Hodge, M.D.
    Philip W. Partridge and Bryan D. Smith of Partridge, Smith, P.C., Mobile, for petitioner Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital.
    Adedapo T. Agboola and Anthony C. Ifediba of The Ifediba Law Firm, Birmingham, for respondent.
   BOLIN, Justice.

Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for a writ of mandamus directing the Marengo Circuit Court to dismiss the claims asserted against them by Gertha R. Tucker and David Tucker, Jr., individually and as the administrator ad litem for Gertha Tucker’s estate, based on the applicable statute of limitations.

Factual and Procedural History

Gertha Tucker underwent a hysterectomy in 2006. The hysterectomy was performed, by Dr. Gerald Hodge at Bryan W. Whitfield Memorial Hospital. On December 28, 2011, Gertha was seen by a rheu-matologist upon her complaints of bilateral thigh pain. An X-ray revealed the presence of a surgical hemostat clamp lodged in Gertha’s peritoneal cavity. On February 8, 2012, Gertha underwent a surgical procedure to remove the retained hemostat clamp from her abdomen. Gertha also had her appendix removed at that time.

On March 5, 2012, Gertha sued Dr. Hodge, Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital (hereinafter referred to collectively as “the defendants”), and others, alleging claims under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975. In count I of the complaint, Gertha specifically alleged that Dr. Hodge performed a hysterectomy on her in 2005; that Dr. Hodge negligently failed to account for and to remove from her body a surgical hemostat clamp; that she did not discover the presence of the foreign object until December 2011, when she first started experiencing pain; and that as the proximate result of the negligent failure to remove the hemostat claim, she was made to suffer pain; life-threatening medical problems, including severe infections, and mental anguish.

In count II of the complaint, Gertha alleged that the defendants failed to properly manage, train, or supervise their surgical team, which, she says, directly resulted in the hemostat clamp being retained in her body and causing her injuries.

In count III of the complaint, Gertha asserted claims against Dr. Judy Travis and Dr. Ronnie Chu alleging a failure to diagnose; a failure to treat and to make a timely referral for treatment; a failure to disclose; and fraudulent suppression, which, she says, caused her condition to deteriorate resulting in her life-threatening medical problems including sepsis, infection, blood clots, possible stroke, and the removal of her appendix. On March 19, 2012, Gertha amended her complaint to add, as a plaintiff, her husband David, who asserted a claim for loss of consortium.

On March 22, 2012, Dr. Hodge moved the trial court to dismiss the amended complaint against him pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6-5-482, Ala. Code 1975. On April 8, 2012, Tombigbee Healthcare answered and also moved the trial court to dismiss the amended complaint against it pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that it was barred by the applicable statute of limitations set forth in § 6-5-482, Ala.Code 1975. Section 6-5-482(a) provides:

“(a) All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.”

(Emphasis added.) The defendants argued that Gertha’s injury occurred and her cause of action accrued at the time of the act or omission complained of whether or not the injury was or could have been discovered within the statutory period. See Jones v. McDonald, 631 So.2d 869 (Ala.1993) (holding that plaintiffs medical-malpractice action accrued when physician performed the surgery and left the surgical instrument in the body at the surgical site); Street v. City of Anniston, 381 So.2d 26 (Ala.1980) (holding that in medical-malpractice actions the legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period); and Bowlin Horn v. Citizens Hosp., 425 So.2d 1065 (Ala.1982). The defendants argued that the injury complained of occurred in 2005, when Gertha underwent the hysterectomy, and that her complaint filed in 2012 is barred by the four-year period of repose set forth in § 6-5-482(a).

On July 28, 2012, the Tuckers filed a response in opposition to the defendants’ motions to dismiss. Citing Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193 (Ala.2008), and Mobile Infirmary v. Delchamps, 642 So.2d 954 (Ala.1994), the Tuckers argued that Gertha’s legal injury occurred in December 2011, when she . first began experiencing pain in her abdomen and discovered the presence of the hemostat clamp. See Crosslin, 5 So.3d at 1196 (stating that “ ‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs’ ” (quoting Mobile Infirmary, 642 So.2d at 958)). Thus, the Tuckers contend that the complaint filed in March 2012 was not barred by the statute of limitations found in § 6-5-482.

Gertha passed away on April 8, 2012. On July 25, 2012, David was substituted by order as the administrator ad litem and personal representative of Gertha’s estate. On August 2, 2012, the trial court entered an order denying Tombigbee Healthcare’s motion to dismiss the amended complaint. The trial court’s order contained no express disposition of Dr. Hodge’s motion to dismiss.

On August 6, 2012, David, as the personal representative of Gertha’s estate, filed a second amended complaint in order to assert a wrongful-death claim against the defendants. David alleged that as the result of the defendants’ actions Gertha suffered injuries, including abdominal abscesses, sepsis, stroke, and pulmonary thromboembolism, which caused her death on April 8, 2012.

On August 9, 2012, Tombigbee Healthcare moved to dismiss the second amended complaint, arguing that any claims relating to the surgical procedure performed in 2006 were barred by the four-year period of repose set forth in § 6-5-482. Also on August 9, 2012, Tombigbee Healthcare moved the trial court for a partial summary judgment as to all claims asserted against it. Tombigbee Healthcare argued that Gertha’s cause of action accrued in 2006, the date of the act complained of, i.e., the hysterectomy, and that her cause of action filed in March 2012 was filed well beyond the absolute bar of the four-year period of repose found in § 6-5-482(a). Citing Hall v. Chi 782 So.2d 218 (Ala.2000), Tombigbee Healthcare further argued that because Gertha did not have a viable medical-malpractice claim at the time of her death — because that claim was barred by the four-year period of repose— her estate could not maintain a wrongful-death action because such an action would also be untimely as it relates to the complained of hysterectomy performed in 2006. See Hall, 782 So.2d at 221 (“If the decedent had a viable medical-malpractice claim when he died, then the decedent’s personal representative could, within two years after the decedent’s death, bring a wrongful-death action alleging medical malpractice.”).

On August 10, 2012, Dr. Hodge moved the trial court to dismiss the second amended complaint, echoing Tombigbee Healthcare’s argument that Gertha’s estate could not maintain a wrongful-death claim without the existence of a viable medical-malpractice claim at the time of her death.

On September 27, 2012, David, individually and in his representative capacity, filed a response in opposition to the defendants’ motions, arguing that the trial court had, by its order of August 2, 2012, denying Tombigbee Healthcare’s initial motion to dismiss, determined that Gertha had a viable medical-malpractice claim at the time of her death on April 8, 2012. David contended that the wrongful-death claim was governed by the applicable two-year statute of limitations found in § 6-5-410, Ala.Code 1975, and not by the provisions of § 6-5-482. Thus, David argued that the wrongful-death claim asserted on August 6, 2012, was timely because it was brought within the two-year limitations period set forth in § 6-5-410.

On January 28, 2013, Dr. Hodge supplemented his motion to dismiss with the affidavits of Dr. Jerry Luther and Dr. Judy Travis, which indicate that the hemostat clamp was discovered in Gertha’s abdomen by a CT scan as early as March 5, 2008; that Gertha was made aware of the discovery of the hemostat clamp in her abdomen; that Gertha refused surgery to remove the clamp; and that Gertha chose not to share the discovery of the clamp with her family because she said they would “make” her have the surgery to remove the clamp.

On January 29, 2013, David filed a response in opposition to the defendants’ motions along with evidentiary material in support of the response in opposition. Following a hearing, the trial court on July 1, 2013, entered an order denying Dr. Hodge’s motion to dismiss and Tombigbee Healthcare’s motion for a partial summary judgment.

Dr. Hodge petitions this Court for a writ of mandamus directing the trial court to grant his motion to dismiss and to dismiss all the claims asserted against him based on the applicable statute of limitations. Tombigbee Healthcare petitions this Court for a writ of mandamus directing the trial court to grant its motion for a partial summary judgment as to all claims asserted against it based on the applicable statute of limitations. The two petitions were consolidated for the purpose of writing one opinion.

Standard of Review

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “‘(1) a clear legal right 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) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d 541, 543 (Ala.2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala.2001)).

Discussion

The defendants contend that Gertha’s medical-malpractice action was absolutely barred at the time of her death by the four-year period of repose set forth in § 6-5-482(a). Because, they say, Gertha did not have a viable medical-malpractice claim at the time of her death, David could not maintain the wrongful-death action against them, as that claim was also considered to be time-barred. Thus, they argue that they are entitled to a writ of mandamus directing the trial court to dispose of the claims against them.

David argues that the petitions are due to be denied because, he argues, the defendants have failed to establish a clear legal right to the relief sought in that they have failed to demonstrate that the medical-malpractice and wrongful-death claims were barred by § 6-5-482(a). Further, David argues that the petitions are due to be denied because the defendants have failed to exhaust all other remedies available to them; specifically, David argues that they have failed to seek certification for a permissive appeal pursuant to Rule 5, Ala. R.App. P.

Initially, we note that Dr. Hodge supplemented his August 10, 2012, Rule 12(b)(6) motion to dismiss with the affidavits of Dr. Luther and Dr. Travis. Rule 12(b), Ala. R. Civ. P., provides, in pertinent part:

“If, on a motion asserting the defense number (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

The trial court did not expressly.exclude Dr. Luther’s and Dr. Travis’s affidavits. Therefore, Dr. Hodge’s support of his motion to dismiss with the affidavits of Dr. Luther and Dr. Travis effectively converted his motion to dismiss to a summary-judgment motion. Thus, both Dr. Hodge and Tombigbee Healthcare petition this Court for a writ of mandamus challenging the denial of a motion for a summary judgment.

1. Clear Legal Right to Relief

In support of their petitions for a writ of mandamus, the defendants reiterate their arguments from the trial court. They argue that Gertha’s legal injury occurred— and her medical-malpractice cause of action accrued — in 2006, at the time of the act or omission complained of, i.e., the hysterectomy, whether the injury was or could have been discovered by Gertha within the statutory limitations period. They state that it is immaterial whether Gertha did not actually become aware of the presence of the hemostat clamp in her body until December 2011. Thus, they conclude that the medical-malpractice action filed in March 2012 is absolutely barred by the four-year period of repose set forth in § 6-5-482(a). Further, the defendants argue that because Gertha did not have a viable medical-malpractice claim at the time of her death — because that claim was barred by the four-year period of repose — her estate could not maintain a wrongful-death action; that action would also be untimely because it relates to the complained of hysterectomy in 2006.

In support of their position, the defendants rely on Jones v. McDonald, supra. In Jones, the plaintiff underwent eye surgery in April 1987 to alleviate a condition known as acute dacryocystitis, a condition caused by an infection in the tear sac and tear duct. In September 1988, the plaintiff began experiencing tenderness and infection in the area of the 1987 surgical site. In December 1988, the plaintiff underwent a second surgery performed by a different ophthalmologist. During the second surgery, a piece of gauze was discovered embedded in the tear sac on which the first surgery had been performed. It was determined that the gauze was the cause of the plaintiffs post-surgery infection. In March 1990, the plaintiff sued the original ophthalmologist alleging medical malpractice. The defendant filed a motion to dismiss and a motion for a summary judgment, arguing that the claim was barred by the statute of limitations set forth in § 6-5-482(a). The trial court denied those motions, and the case proceeded to trial. After the jury returned a verdict in favor of the plaintiff, the defendant appealed to this Court. In determining that the plaintiffs cause of action was barred by § 6-5-482(a), this Court stated that the plaintiffs cause of action accrued on the date the ophthalmologist performed the initial surgery and left the gauze at the surgical site. Id.

In Jones, this Court relied on the decision in Grabert v. Lightfoot, 571 So.2d 293 (Ala.1990). In Grabert, the plaintiff was referred to a surgeon to repair a hernia. On May 1, 1987, the physician performed the surgery but was unable to locate the hernia. The plaintiff was forced to undergo a second surgery performed by a different surgeon in order to repair the hernia. The second surgeon was able to locate and repair the hernia; however, the second surgery left the plaintiff impotent and also unable to work.

On May 12, 1989, the plaintiff sued the surgeon who performed the first surgery, alleging medical malpractice. The surgeon moved the trial court for a summary judgment, asserting the two-year statute of limitations found in § 6-5-482(a). The trial court granted the motion for a summary judgment, and the plaintiff appealed. In affirming the summary judgment in favor of the surgeon, this Court stated:

“As this Court stated in Garrett v. Raytheon Co., 368 So.2d 516, 518-19 (Ala.1979):[]
“‘The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action “accrues.” The cause of action “accrues” as soon as the party in whose favor it arises is entitled to maintain an action thereon.’
“In Street v. City of Anniston, 381 So.2d 26, 31 (Ala.1980), this Court said:
“ ‘Code 1975, ■ § 6-5-482(a), is similarly titled “a statute of limitations,” and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon, [368 So.2d 516], Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972).’
“Certainly, [the plaintiff] was entitled to maintain an action against [the surgeon] immediately after the May 1,1987, operation, despite the fact that the extent of [the plaintiffs] injuries allegedly caused by [the surgeon’s] failure to find or to remedy the hernia'may not have been fully known then.”

Grabert, 571 So.2d at 294.

Relying on the decisions in Crosslin, supra, and Delchamps, supra, David argues that Gertha’s legal injury did not occur — and her medical-malpractice cause of action thus did not accrue — until December 2011, when she first began experiencing pain in her abdomen and discovered the presence of the hemostat clamp. Thus, he contends that the medical-malpractice action filed in March 2012 is timely and is not barred by § 6-5-482(a). Because, he argues, Gertha had a viable medical-malpractice claim at the time of her death, the wrongful-death claim filed within two years of Gertha’s death was timely under § 6-5-410.

In Crosslin, the plaintiff was seen on February 23, 2002, at the emergency room at Huntsville Hospital complaining of nausea, dizziness, and weakness. The physician evaluated the plaintiff and ordered diagnostic tests. A radiologist reviewed the images produced by a CT scan and issued a preliminary radiology report indicating the presence of a tumor on the plaintiffs pituitary gland. Subsequently, the physician spoke with the plaintiff concerning his condition but failed to inform him of the findings of the preliminary radiology report indicating the presence of a pituitary tumor. There was no allegation that the symptoms from which the plaintiff suffered on February 23, 2002, were related to the pituitary tumor. The plaintiff was discharged from Huntsville Hospital.

On September 1, 2005, the plaintiff returned to Huntsville Hospital complaining of a loss of vision in his left eye and decreased vision in his right eye. A CT scan of the plaintiffs head again indicated the presence of the pituitary tumor that had been previously identified. It was on this date that the plaintiff first learned of the pituitary tumor, and he alleges that he was unaware before this date of any facts that would have reasonably led to the discovery of the tumor.

On September 3, 2005, surgery was performed on the plaintiff to remove the tumor. Following the surgery, the plaintiffs vision did not improve, and he suffered from blindness and/or severely limited vision in both eyes.

On February 24, 2006, the plaintiff sued the physician and Huntsville Hospital asserting a medical-malpractice claim and alleging that Huntsville Hospital and the physician had been negligent and wanton by failing to inform him of the existence of the pituitary tumor following the 2002 CT scan that identified the tumor. Huntsville Hospital and the physician moved the trial court to dismiss the claims against them pursuant to Rule 12(b)(6), Ala. R. Civ. P. The defendants in Crosslin argued that the alleged breach of the standard of care in that case was a failure to inform the plaintiff of the presence of a pituitary tumor on February 23, 2002, and that, if the defendants breached the standard of care and caused damage as the plaintiff claims, he would have been damaged on the same date as the alleged negligence, because he was already suffering from the tumor. Because the plaintiff did not file his complaint until four years and one day after February 23, 2002, the defendants argued that the plaintiffs action was barred by the four-year period for repose set forth in § 6-5-482(a).

The plaintiff amended his complaint to allege that he suffered bodily injury after February 24, 2002, and argued in opposition to the motion to dismiss that his cause of action did not accrue until he suffered an injury, which, according to his amended complaint, allegedly happened after February 24, 2002. Thus, he argued, his complaint was not barred by § 6-5-482(a).

The trial court granted the defendants’ motion to dismiss. In reversing the trial court’s order dismissing the plaintiffs action as untimely, this Court stated:

“This Court has held that the four-year period of repose in § 6-5-482(a) ‘is an “absolute bar to all medical malpractice claims which are brought more than four years after the cause of action accrues.’” Ex parte Sonnier, 707 So.2d 635, 637 (Ala.1997) (quoting Bowlin Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982)). ‘A cause of action “accrues” under § 6-5-482 when the act complained of results in legal injury to the plaintiff.’ Mobile Infirmary v. Del-champs, 642 So.2d 954, 958 (Ala.1994). “When the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6-5-482 commences when the legal injury occurs.’ Id.; see also Grabert v. Light-foot, 571 So.2d 293, 294 (Ala.1990) (‘ “The statutory limitations period does not begin to run until the cause of action accrues.... A cause of action accrues when the act complained of results in injury to the plaintiff.’” (quoting Col-burn v. Wilson, 570 So.2d 652, 654 (Ala. 1990))); Ramey v. Guyton, 394 So.2d 2, 4 (Ala.1981) (noting that when the negligent act and the resultant harm do not coincide, the accrual date of a cause of action under the [Alabama Medical Liability Act] is the date of the latter).
“In the present case, [the plaintiff] has alleged that Huntsville Hospital and [the physician] failed to inform him that he had a tumor on his pituitary gland on February 23, 2002. [The plaintiff] has alleged that, as a result of the failure of Huntsville Hospital and [the physician] to inform him of the existence of the pituitary tumor, he later suffered vision loss in both of his eyes. Thus, it appears that the legal injury [the plaintiff] is alleging is that, because Huntsville Hospital and [the physician] did not inform him of the existence of the pituitary tumor when it was discovered on February 23, 2002, he did not have the condition remedied before the tumor worsened and other physical injuries were caused by it.
“The allegations of the complaint, if taken as true, do not foreclose the possibility of [the plaintiffs] proving a set of facts that would entitle him to relief. For example, the evidence might show that the tumor was not in a growth phase when [the physician] first diagnosed it on February 23, 2002, and therefore that the tumor did not worsen on that date. Nor do the allegations of the complaint foreclose the possibility of proof that, even if the tumor did worsen on February 23, 2002, a disclosure of the presence of the tumor to [the plaintiff] on February 23, 2002, would likely not have resulted in surgery on that same day so as to halt whatever worsening of his condition otherwise would have occurred between that day and the following day, February 24, 2002. Indeed, even after the tumor was discovered in a much advanced state several years later, surgery to remove it was not scheduled until two days after its discovery. In other words, the complaint does not, on its face, establish that Huntsville Hospital’s and [the physician’s] failure to inform [the plaintiff] of the tumor on February 23, 2002, resulted in any actual injury to [the plaintiff] before February 24, 2002, the first day of the four-year period in question.
“Relying on Grabert v. Lightfoot, supra, and Tobiassen v. Sawyer, 904 So.2d 258 (Ala.2004), Huntsville Hospital and [the physician] argue that [the plaintiff] necessarily sustained a legal injury on February 23, 2002, the date they allegedly failed to inform him of the existence of the pituitary tumor, and that, therefore, his action is time-barred under § 6-5-482(a). Grabert and Tobiassen, however, are distinguishable because in those cases the act of alleged medical malpractice immediately caused an identifiable injury to the complaining party and that injury fell outside the applicable time period, whereas, in the present case, [the plaintiffs] complaint does not foreclose his ability to prove that the injury caused by Huntsville Hospital’s and [the physician’s] alleged malpractice did not occur until some time after the actual act of malpractice and therefore within the applicable time period.
“In Grabert, the plaintiff was diagnosed with a hernia and underwent surgery for the purpose of repairing it. During that surgery, however, the surgeon failed to locate and repair the hernia. After a second surgery to repair the hernia left the plaintiff impotent, he sued the first surgeon because of that surgeon’s failure to remedy the hernia during the first surgery. We held that the plaintiffs cause of action for medical malpractice accrued on the date of the first surgery because it was immediately after the first, unsuccessful operation that the plaintiff was entitled to maintain an action against the surgeon. Gra-bert, 571 So.2d at 294. Because of the alleged negligence of the first surgeon, the plaintiff had ‘suffered’ a surgery that availed him nothing.
“Unlike the malpractice at issue in Grabert, [the physician’s] alleged failure to inform [the plaintiff] of the existence of the pituitary tumor did not, in and of itself, cause [the plaintiff] any actual injury. As explained above, [the plaintiff] may be able to prove a set of facts establishing that he suffered no actual injury until within the applicable four-year period at issue. Thus, our holding in Grabert does not compel a finding in this case that [the plaintiffs] injury arose at the time of Huntsville Hospital’s and [the physician’s] alleged negligent or wanton act or omission.”

Crosslin, 5 So.3d at 1196-99 (footnotes omitted).

In Delchamps, the plaintiff, on December 5, 1985, underwent surgery to place temporomandibular implants in her jaw. On December 10, 1991, X-rays indicated that the implants had caused severe bone degeneration in the plaintiffs temporo-mandibular joints. On June 2, 1992, the plaintiff sued various defendants alleging various theories of recovery, including negligence. On July 8, 1992, the plaintiff amended her complaint to add Mobile Infirmary as a defendant. Mobile Infirmary moved the trial court to dismiss the complaint against it, alleging that the claims were barred by § 6-5-482(a). The trial court denied the motion to dismiss; Mobile Infirmary was permitted to appeal the denial of its motion pursuant to Rule 5, Ala. R.App. P. In affirming the denial of the motion to dismiss, this Court stated:

“The limitations period of § 6-5-482 commences with the accrual of a cause of action. Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Bowlin Horn v. Citizens Hosp., 425 So.2d 1065 (Ala.1983); Ramey v. Guyton, 394 So.2d 2 (Ala.1981). A cause of action ‘accrues’ under § 6-5-482 when the act complained of results in legal injury to the plaintiff. Grabert v. Lightfoot, 571 So.2d 293, 294 (Ala.1990); Colburn v. Wilson, 570 So.2d 652, 654 (Ala.1990). The statutory limitations period begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. Garrett V. Raytheon Co., 368 So.2d 516, 518 (Ala.1979). When the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the’limitations period of § 6-5-482 commences when the legal injury occurs. Moon v. Harco Drugs, Inc., 435 So.2d 218, 219 (Ala.1983); Ramey v. Guyton, 394 So.2d 2, 4-5 (Ala.1981).
“Mobile Infirmary argues that [the plaintiffs] claims are barred by § 6-5-482 because, it says, they accrued on December 5, 1985, when the Vitek II implants were surgically placed in [the plaintiffs] jaw, not, as she contends, on December 10, 1991, when she ‘discovered’ the injury from X-rays. Mobile Infirmary also contends that in asserting that her claims accrued on December 10, 1991, [the plaintiff] elides the distinction between the date of discovery and the date of legal injury. Mobile Infirmary asserts that, according to the allegations of her complaint, [the plaintiff] was legally injured, however slightly, when the defective implants were surgically inserted into her jaw. Because, Mobile Infirmary ■ says, [the plaintiffs] complaint alleges that she suffered injury at the time of the December 5,1985, operation, her claims were brought beyond the limitations period of § 6-5-482, which, it says, expired on December 5, 1987.
“[The plaintiff] responds by arguing that her causes of action accrued on December 10, 1991, when X-rays first revealed the bone degeneration she alleges was caused by the December 5, 1985, surgical placement of the Vitek II implants. Citing Ramey v. Guyton, 394 So.2d 2 (Ala.1980), [the plaintiff] contends that although the negligent act occurred on December 5, 1985 (the date of the alleged act or omission), the ‘legal injury’ did not occur until December 10, 1991 (the date the X-rays first revealed the bone degeneration). The implication of [the plaintiffs] argument is that the bone degeneration, the ‘legal injury,’ occurred, and was not merely discovered, on December 10, 1991. [The plaintiff] contends that her causes of action did not accrue until December 10, 1991, and that, therefore, she filed her action well within the two-year limitations period of § 6-5-482, which she says would not have expired until December 10, 1993.
“After reviewing the allegations of [the plaintiffs] complaint in light of the applicable standard of review, we cannot' say that [the plaintiff] can prove no set of facts that would entitle her to recover. Whether her claims are barred by § 6-5-482 depends on when in fact she first suffered the alleged legal injury, i.e., bone degeneration in her jaw. [The plaintiffs] complaint, as presently amended, alleges the date on which the implant was placed in her jaw and the date on which she first became aware of the alleged injury to her jaw. The key fact not alleged is the time when [the plaintiff] first suffered the alleged bone degeneration. Considering the type of personal injury alleged and the alleged cause of this injury, we must conclude that she may be able to establish that although the implants were placed in her jaw on December 5, 1985, she did not suffer legal injury until December 10, 1991, or some other time within two years of the filing of her complaint. [The plaintiff] is entitled to present evidence establishing the time at which the bone degeneration began.”

Delchamps, 642 So.2d at 958.

David’s reliance upon Crosslin and Del-champs is misplaced. In both Crosslin and Delchamps, the complained-of negligent acts — failure to inform the patient of the presence of a tumor and the implantation of defective implants, respectively — did not immediately cause an identifiable legal injury. Rather, this Court concluded that, although the negligent acts complained of in those cases occurred beyond the four-year period of repose in § 6-5-482(a), the plaintiffs may have been be able to prove a set of facts indicating that the actual legal injury, i.e., complications from the tumor and temporomandibular bone degeneration, occurred within the four-year period of repose in § 6-5-482(a).

The situation in this case is more akin to those presented in Jones and Grabert, in which this Court determined that the plaintiffs suffered an immediate legal injury at the time of the alleged negligent act. In Jones, a case factually similar to the present ease, the plaintiff suffered an actionable legal injury at the time the surgeon performed the surgery and left the gauze inside the plaintiffs body at the surgical site. In Grabert, the plaintiff suffered an actionable legal injury at the time the physician burdened the plaintiff with an invasive procedure without successfully locating and repairing the hernia.

Here, it is clear from the face of the second amended complaint that Gertha underwent a surgical procedure in 2006; that Dr. Hodge left a surgical hemostat clamp in her body at that time; and that she filed a medical-malpractice complaint on March 5, 2012. It is clear from the face of the second amended complaint that Ger-tha suffered an actionable legal injury at the time of the surgery in 2006 when Dr. Hodge left the hemostat clamp in her body, regardless of when or to what extent the complications from the negligent act would be discovered. Therefore, her medical-malpractice complaint filed on March 5, 2012, was barred by the four-year period of repose found in § 6-5-482(a). Because Gertha did not have a viable medical-malpractice action at the time of her death, David could not maintain a wrongful-death action. Hall, supra. Accordingly, we conclude that the defendants have established a clear legal right to the relief sought. ■

2. Other Adequate Remedy

[4] David argues that the petitions should be denied because the defendants failed to seek a permissive appeal pursuant to Rule 5, Ala. RApp. P. Generally, an order denying a motion for a summary judgment is not appealable, except by permission pursuant to Rule 5, Ala. R.App. P. F.A. Dobbs & Sons, Inc. v. Northcutt, 819 So.2d 607, 609 (Ala.2001). This Court has stated:

“The general rule is that 1 “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 all but the most extraordinary cases, an appeal is an adequate remedy; however, there are exceptions — for example, when the trial court denies a motion for a summary judgment that is based on an argument that governmental immunity bars the plaintiffs claim. See, e.g., Ex parte Butts, 775 So.2d 173, 177-78 (Ala.2000). In such a case, the defendant may seek pretrial appellate review by petitioning for permission to appeal an interlocutory order in accordance with Rule 5, Ala. R.App. P., or by petitioning for a writ of mandamus. See id.
“In Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987), this Court stated that ‘[t]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.’ 514 So.2d at 955. Subject to a narrow exception, that statement remains true. 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.”

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

As discussed above, the defendants have demonstrated from the face of Gertha’s complaint a clear legal right to the relief sought. Once the trial court denied their motions for a summary judgment, the defendants were left with seeking a permissive appeal pursuant to Rule 5, Ala. R.App. P., petitioning this Court for a writ of mandamus, or possibly taking an appeal from a final verdict or judgment. Rule 5(a), Ala. R.App. P., provides:

“A party may request permission to appeal from an interlocutory order in civil actions under limited circumstances. Appeals of interlocutory orders are limited to those, civil cases that are within the original appellate jurisdiction of the Supreme Court. A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.”

Justice Murdock aptly explained, in his special concurrence in Ex parte Alamo Title Co., 128 So.3d 700, 714-15 (Ala.2013), the inadequacy of a Rule 5 permissive appeal and/or the taking of an appeal from a final verdict or judgment, as alternative remedies where a petitioner has established a clear legal right to the relief sought. As to Rule 5, Justice Murdock stated:

“[T]he standard referenced for mandamus relief — a ‘clear legal right’ to the relief — is the standard for actually ‘winning1 relief in the appellate court. The standard referenced for Rule 5 — that there be a controlling question of law as to which there is ‘substantial ground for difference of opinion’ — is merely the standard that must be met to get one’s grievance before the appellate court in the first place.
“More fundamentally, Rule 5 is indeed limited to rulings involving ‘questions of law’ and, specifically, unsettled questions ■for which there is a ground for substantial difference of opinion. Such uncertainty simply is not characteristic of most disputes over subject-matter jurisdiction, in personam jurisdiction, immunity, venue, discovery, and fictitious-party practice in the context of a statute-of-limitations concern, all of which are subjects as to which legal principles are well established and as to which we repeatedly have held that mandamus relief may be appropriate. Instead, the types of disputes listed above typically turn, as does the dispute in the present case, on whether the trial court has exceeded its discretion in deciding whether the evidence presented justifies factual findings sufficient to meet a well settled legal standard.
“Finally, but perhaps most importantly, there is no right to a Rule 5 certification. Granting ‘permission’ to appeal an interlocutory order is within the wide discretion of the trial judge, and a question exists as to whether appellate relief would even be available on the ground that the trial court exceeded some measure of discretion. Even if the trial court gives its consent, this Court must agree to accept the question certified. See Rule 5(c), Ala. R.App. P. I fail to see how that to which a party has no right can be deemed a true ‘remedy.’ ”

Ex parte Alamo Title Co., 128 So.3d at 714-15 (Murdock, J., concurring specially) (footnote omitted; emphasis added).

As for the notion that further litigation in the trial court and the eventual taking of an appeal from a final judgment provides an adequate remedy, Justice Mur-dock stated:

“In Ex parte L.S.B., 800 So.2d 574 (Ala.2001), this Court held that the standard for whether some remedy other than mandamus is ‘adequate’ is not whether there simply is some other remedy, e.g., an eventual appeal, but whether that other remedy is ‘adequate to prevent undue injury.’ 800 So.2d at 578. As a result, the Court noted that mandamus would lie to address certain discovery disputes, to enforce compliance with the court’s mandate, to enforce a right to a jury trial, and to vacate certain interlocutory rulings in divorce cases. Id. at 578. All of these — indeed, virtually any ground for mandamus relief— could eventually be raised in an appeal from a final judgment. Yet we do not consider this to be an ‘adequate’ remedy in many cases.
“Long before L.S.B. was decided, this Court discussed • the requirement that the alternative remedy be adequate to avoid the particular harm at issue:
“‘[T]he appeal must be an adequate remedy[;] it must be capable of protecting parties from the injury immediately resulting from the error of the court. While the error in refusing a dismissal for want of security for costs, may be available on error for the reversal of a judgment, obviously, an appeal is not an adequate remedy. The citizen is compelled into litigation with a non-resident, pending the further continuance of the suit and the appeal, without indemnity against the costs, the evil the statute intends to avoid. Hence, it has been the uniform course of decision that mandamus is an appropriate remedy to compel the dismissal of such suit.’
“First Nat’l Bank of Anniston v. Cheney, 120 Ala. 117,121-22, 23 So. 733, 734 (1898) (citations omitted).
“The view expressed in Cheney is consistent with the view expressed elsewhere:
‘It is the mere inadequacy and not the mere absence of all other legal remedies, and the danger of the failure of justice without it, that must usually determine the propriety of the writ. Where none but specific relief will do justice, specific relief should be granted if practicable, and when a right is single and specific it usually is practicable.
“ ‘To supersede the remedy by mandamus a party must not only have a specific, adequate, legal remedy, but one competent to afford relief upon the very subject of his application.’
“2 W.F. Bailey, A Treatise on the Law of Habeas Corpus and Special Remedies 825-26 (1913) (emphasis added).
“In the present case, the position expressed in Part II.B of the dissent is that mandamus does not lie to remedy the trial court’s failure to dismiss the claims against Alamo for lack of in per-sonam jurisdiction because Alamo has available to it the following alternative and allegedly adequate remedy: ‘ “con-tinu[ing] to challenge personal jurisdiction in ... answers to the complaint and by motions for summary judgment or at trial” ’ and, if unsuccessful in all of these, pursuing an appeal. 128 So.3d at 713 (quoting Ex parte United Insurance Cos., 936 So.2d 1049, 1056 (Ala.2006)). Although the dissent cites Ex parte United Insurance Cos. for the proposition that the petitioner can in fact continue to challenge personal jurisdiction in these ways, that case does not stand for the proposition that the right to do so in a case challenging in personam jurisdiction is an ‘adequate remedy1 that justifies the refusal of the appellate court to hear a mandamus petition.
“Indeed, the very reason for the limited exceptions we have carved out to the general rule that interlocutory denials of motions to dismiss and motions for a summary judgment cannot be reviewed by way of a petition for a writ of mandamus is that there are certain defenses (e.g., immunity, subject-matter jurisdiction, in personam jurisdiction, venue, and some statute-of-limitations defenses) that are of such a nature that a party simply ought not to be put to the expense and effort of litigation. The cases recognizing the availability of mandamus relief as to such matters are countless. Further, we have not been asked to overrule any of these cases.
“Nor do I believe we should consider overruling this precedent, even in a case in which we might be asked to do so. It simply is not an ‘adequate remedy’ — i.e., as stated in Ex parte L.S.B., a remedy ‘adequate to prevent undue injury’ or, as Bailey states, a remedy ‘competent to afford relief upon the very subject of his application’ — to say to a party that has no meaningful contact with the State of Alabama or who, under our precedents, is protected by sovereign immunity from even going through litigation much less from liability that he or she must simply ‘further litigate’ the case and one day take an appeal. In a given case, such an approach could subject a defendant to years of litigation, hundreds of thou- • sands of dollars in attorney fees and other litigation expenses, the time, effort, and expense of traveling to Alabama from elsewhere in the country for depositions.and hearings (in the case of the party with no contact with the State), and a cloud of uncertainty and worry hanging over the party’s business or personal affairs all this time. I cannot agree that further litigation and an eventual appeal serves as an ‘adequate remedy1 that meets these ‘subjects.’ ”

Ex parte Alamo Title Co., 128 So.3d at 715-17 (Murdock, J., concurring special-lyXfootnote omitted).

Based on the particular circumstances of this case, we agree with Justice Murdock’s assessment of a Rule 5 permissive appeal as being an inadequate alternative remedy. As discussed above, the defendants have demonstrated a clear legal right from the face of Gertha’s complaint to a summary judgment in their favor. The question presented here is not the type of unsettled question of law for which there is a ground for substantial difference of opinion that is generally considered in a Rule 5 permissive appeal. More importantly, there is no guarantee of Rule 5 certification because certifying an interlocutory order for a “permissive” appeal is within the wide discretion of the trial judge. Moreover, should the trial court grant its consent to appeal, there is no guarantee that this Court would accept the question certified.

Likewise, the taking of an appeal from a final judgment following further litigation of this matter is also an inadequate remedy based on the particular circumstances of this case. If appeal were their only remedy the defendants would potentially face the substantial expense, time, and effort of litigating a matter as to which they have demonstrated from the face of Gertha’s complaint a clear legal right to have dismissed.

3. Mandamus as Permissible Remedy

As noted above, a writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “ ‘(1) a clear legal right 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) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d at 543 (quoting Ex parte BOC Grp., Inc., 823 So.2d at 1272 (emphasis added)). Although characterized as an extraordinary writ, this Court has repeatedly recognized that mandamus may be appropriate in disputes over subject-matter jurisdiction, Ex parte Johnson, 715 So.2d 783 (Ala.1998); in personam jurisdiction, Ex parte Northstar Battery Co., 99 So.3d 1204 (Ala.2012); immunity, Ex parte Butts, 775 So.2d 173 (Ala.2000); venue, Ex parte Daniels, 941 So.2d 251 (Ala.2006); outbound forum-selection clauses, Ex parte Bad Toys Holdings, Inc., 958 So.2d 852 (2006); abatement, Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010); and issues involving discovery, Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810 (Ala.2003).

As noted above, this Court has stated that the applicability of a statute-of-limitations defense is not a proper basis for issuing a writ of mandamus, because of the availability of a remedy by appeal. Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987). However, this Court has recognized a narrow exception to the general rule regarding a statute-of-limitations defense involving fictitious parties and the relation-back doctrine, in which this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion where the defendant argued that the plaintiffs claim was barred by the applicable statute of limitations. Ex parte Jackson, supra.

Although the situation with which we are presented here does not involve the statute-of-limitations defense in the context of fictitious-party practice and the relation-back doctrine, the defendants, Dr. Hodge and Tombigbee Healthcare, are faced with the extraordinary circumstance of having to further litigate this matter after having demonstrated from the face of the plaintiffs complaint a clear legal right to have the action against them dismissed based on the four-year period of repose found in § 6-5-482(a). Having concluded that an appeal pursuant to Rule 5 or an appeal from a final judgment following further litigation is not an adequate remedy in this case, we conclude, based on the particular circumstances of this case, that mandamus is necessary in order to avoid the injustice that would result from the unavailability of any other adequate remedy. See Ex parte J.Z., 668 So.2d 566 (Ala.1995). This case is not to be read as a general extension of mandamus practice in the context of a statute-of-limitations defense; rather, it should be read simply as extending relief to the defendants in this case where they have demonstrated, from the face of the complaint, a clear legal right to relief and the absence of another adequate remedy.

1121194 — PETITION GRANTED; WRIT ISSUED.

1121217 — PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., concur specially.

BRYAN, J., concurs in the result.

MOORE, C.J., dissents.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately to explain my concurrence in Part 3 of the “Discussion” section in the main opinion and, as to the issue addressed therein, why I believe this case can be distinguished from the case of Ex parte U.S. Bank National Association, 148 So.3d 1060 (Ala.2014), also decided by the Court today.

As I discuss in a dissenting opinion in U.S. Bank, this Court has long adhered to the view that most issues raised by motions to dismiss or for a summary judgment, if not properly addressed by the trial court, can be raised before this Court on appeal and that the appeal of such issues constitutes an “adequate remedy” for purposes of the elements necessary to warrant the issuance by this Court of a writ of mandamus directed to a lower court. We therefore have long adhered to a general rule, subject only to “certain narrow exceptions,” that mandamus review is not available to review interlocutory orders of the trial courts of this State denying motions to dismiss or for a summary judgment. See U.S. Bank, 148 So.3d at 1074 (Murdock, J., dissenting). Counting circuit court judges, probate court judges, and juvenile court judges, there are over 200 “trial judges” throughout the numerous jurisdictions of this State who, in any given week, rule upon scores of such motions. There is only one Court of Civil Appeals and only one Supreme Court. The general rule is critical to preserving the proper balance of roles between trial and' appellate courts and preserving our limited appellate resources.

Accordingly, it is with some trepidation, and no small amount of concern that we may have failed to anticipate all the ramifications of our action, that in the present case I acquiesce in the relaxation of the general rule so as to make mandamus review available where a trial court has denied a motion for a summary judgment based on the ground that the applicable statute of limitations barred the plaintiffs action and that that fact is plainly reflected on the face of the complaint. This circumstance will now become one of the “certain narrow exceptions” that we have heretofore recognized to the general rule.

Unlike in U.S. Bank, the relaxation of the general rule in the present case does not involve a question that goes to the merits of the action, at least not in the sense that question at issue in U.S. Bank does. See U.S. Bank, 148 So.3d at 1076 (Murdock, J., dissenting). Instead, the present case concerns a question as to whether a plaintiff should be allowed to pursue in our courts a decision on the merits of a claim in the face of a legal rule — a statute of limitations — that has as its purpose the avoidance of such a decision under circumstances where the ability of a court to make a correct decision on those very merits may have been denigrated. See 51 Am.Jur.2d Limitation of Actions § 7 (“A primary purpose of a statute of limitations is to ensure timely notice to the defendant of a claim against him or her, to permit the defendant to take necessary steps to gather and preserve the evidence needed to defend against the suit, so that the defendant is not prejudiced by having an action filed against him or her long after the time the defendant could have prepared a defense against the claim. Statutes of limitation are intended to provide an adverse party a fair opportunity to defend a claim, as well as to preclude claims in which a party’s ability to mount an effective defense has been lessened or defeated due to the passage of time.”); 51 Am.Jur.2d Limitation of Actions § 98 (“The object of a statute of limitations [is] keeping stale litigation out of the courts-”). Accordingly, the present case better lends itself than does U.S. Bank to an argument that an appeal is not an adequate remedy to prevent “the particular harm at issue,” or, as one Court put it, “the evil the statute intends to avoid.” Ex parte Alamo Title Co., 128 So.3d 700, 716 (Ala.2013) (Murdock, J., concurring specially) (quoting the latter passage from First Nat’l Bank of Anniston v. Cheney, 120 Ala. 117, 121-22, 23 So. 733, 734 (1898)).

SHAW, Justice

(concurring specially).

I concur in the main opinion. I write specially to note the following.

It is undisputed that this Court has the authority, based on the Alabama Constitution and statute, to issue any writs necessary for the general superintendence and control of lower courts. Ala. Const.1901, Art. VI, § 140; Ala.Code 1975, § 12-2-7(3). This Court exercises authority by mandamus to review interlocutory decisions that, if properly set aside, would terminate an action so as to avoid the waste and expense of further litigation. Such interlocutory decisions include decisions on issues of, among other things, personal jurisdiction, Ex parte Duck Boo Int’l Co., 985 So.2d 900 (Ala.2007); immunity, Ex parte Butts, 775 So.2d 173 (Ala.2000); enforcement of outbound forum-selection clauses, Ex parte Bad Toys Holdings, Inc., 958 So.2d 852 (Ala.2006); and abatement, Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010). Most notably, this Court will review by mandamus interlocutory decisions involving the substitution of a defendant for a fictitiously named party where the defendant argues that the plaintiff’s claim was barred by the applicable statute of limitations. Ex parte General Motors of Canada Ltd., 144 So.3d 236 (Ala.2013); Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594 (Ala.2005). If this Court will review by mandamus a decision on whether the statute of limitations bars a claim against one party substituted for a fictitiously named defendant, then I see no logical reason why this Court cannot review a decision on whether the entire action is barred.

As explained in the main opinion, applying clear law to the undisputed facts as stated in the complaint in the instant case, one must conclude that the underlying action is barred by the statute of limitations. It is no adequate remedy to require a defendant to try a case and then subsequently, on appeal, to seek the exact relief that was available earlier in the process. I note that this Court has inherent authority to award just damages and costs to respondents in any case in which this Court determines that a petition for the writ of mandamus is frivolous. Cf. Rule 38, Ala. R.App. P.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital separately petition this Court for a writ of mandamus from the denial of a motion for a summary judgment. “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.’ ... In all but the most extraordinary cases, an appeal is an adequate remedy....” Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000). This Court has created rare exceptions such as “when the trial court denies a motion for a summary judgment that is based on an argument that governmental immunity bars the plaintiffs claim.” Id. No such exception applies in the case before us. The majority opinion creates a new exception, however, for cases involving a statute of limitations. Not only does this new exception undermine the general rule that mandamus will not issue to review an order denying a motion for a summary judgment, but it also undermines the nature and function of mandamus as an “extraordinary remedy.” Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) (emphasis added); see generally Rule 21, Ala. R.App. P.

Although this Court has constitutional and statutory authority to issue writs to superintend lower courts under Ala. Const. 1901, Art. VI, § 140, and § 12-2-7(3), Ala. Code 1975, it abuses that authority when it purports to invent, change, and modify the laws over time so that a petition for a writ of mandamus is no longer only for “emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.” Rule 21(e)(4), Ala. R.App. P. The majority opinion references several cases in which this Court created new exceptions to general rules regarding mandamus relief; those references supposedly justify yet another exception to our rules regarding mandamus relief. No doubt this Court will, at some later date, reference the majority opinion in this case to justify yet another exception to those rules. At some point, there will be so many exceptions that the general rule will no longer exist. Perhaps that moment is already upon us.

      . Although the original complaint asserted that the surgery was performed in 2005, David asserted in the second amended complaint that Gertha underwent the hysterectomy in May 2006. For purposes of discussion we will use May 2006 as the date of the hysterectomy. However, in summarizing the parties' arguments, we will use 2005 as the date, that being the date to which the materials filed before the second amended complaint were geared.

      . The previously filed personal-injury claims, including those filed pursuant to the Alabama Medical Liability Act, survived Gertha’s death. See § 6-5-462, Ala.Code 1975; King v. National Spa & Pool Inst., Inc., 607 So.2d 1241 (Ala.1992).

      . David also added Dr. Jerry Luther as an additional defendant in the second amended complaint.

      . We note that Garrett involved a personal-injuiy action based on a chemical exposure and has been overruled on other grounds.

      . In contrast, I see the "particular harm” at issue in U.S. Bank as one primarily related to the merits of the action. If an appeal is not to be deemed an adequate remedy in that circumstance, the "general rule” is at an end. There is no place left to “draw the line” — no principled basis on which to refuse to involve this Court on an interlocutory basis in the untold number of preliminary decisions made daily by the trial courts of this State regarding the merits of the cases before them. The same cannot be said of the relaxation of the general rule to cover the circumstances presented in the present case.