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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

In re: Kinsman Investments, LLC v. Alfa Mutual Insurance Company and Jeffery Dimoff

Supreme Court of Alabama

• Citations: None known
• Docket Number: SC-2025-0478

• Judges: Wise, J.

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.4K)

• PDF

Combined Opinion

                        by [Alisa Kelli Wise](https://www.courtlistener.com/person/3674/alisa-kelli-wise/)

Rel: February 27, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

---

SC-2025-0478

---

Ex parte Alfa Mutual Insurance Company and Jeffery Dimoff

PETITION FOR WRIT OF MANDAMUS

(In re: Kinsman Investments, LLC

v.

Alfa Mutual Insurance Company and Jeffery Dimoff)

(Mobile Circuit Court: CV-22-900061)

WISE, Justice.

Alfa Mutual Insurance Company ("Alfa") and Jeffery Dimoff

petition this Court for a writ of mandamus directing the Mobile Circuit

Court to set aside its May 22, 2025, order denying their motions for a
SC-2025-0478

summary judgment and to enter a summary judgment in their favor. We

grant the petition and issue the writ.

Facts and Procedural History

Kinsman Investments, LLC ("Kinsman"), owned an apartment

complex in Mobile. In August 2005, buildings in the complex suffered

damage from Hurricane Katrina. The complex was insured by Alfa.

Dimoff, an insurance adjuster for Alfa, worked with Kinsman's owner to

pay for replacement of the roofs and siding on the damaged buildings in

the complex. In 2022, Kinsman sued Alfa and Dimoff in the trial court,

alleging that Alfa had failed to pay sums due under the insurance policy

and that Alfa and Dimoff had misrepresented and suppressed Alfa's duty

to do so.

Kinsman's complaint alleged:

"[Alfa] convinced [Kinsman] to have its vendor/contractor
place a 10-year roof on the complex and was advised by
Defendant [Alfa] and Defendant Dimoff that 25-year roofs of
the type (torch roofs) [Kinsman] had on the property were no
longer available and dangerous to install because of the
potential for fire."

According to the complaint, Kinsman's owner was unaware that

Kinsman's policy with Alfa included a provision for Alfa to either replace

damaged property with materials of like kind and quality or to pay
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Kinsman for the difference in value if materials of a lesser kind or quality

were used. The complaint alleged that Kinsman's owner instead "relied

on the adjuster to interpret the policy in good faith."

The complaint similarly alleged that Alfa and Dimoff had arranged

for replacement of the siding with less expensive material. It is unclear

from the complaint whether Kinsman's owner was aware of the difference

in siding materials at the time the repairs were made.1 Kinsman alleged

that the difference in roofing materials and siding diminished the value

of the complex.

Kinsman asserted three claims against Alfa and Dimoff: fraud,

fraudulent suppression, and "bad faith/breach of contract." As to the

fraud claim, the fact alleged to have been misrepresented is that "the

apartment complex would be covered by the [Alfa] insurance policy and

its terms." Kinsman asserted its owner was unaware of the "like, kind

and quality" requirement and of Alfa's alleged duty to pay the difference

in values of the existing materials and the new materials. Kinsman

alleged that its owner "first became aware in 2021 the defendants should

1However, it is undisputed that, in 2005, Kinsman's owner knew

that a different type of siding was being installed.
3
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have revealed they owe [Kinsman] a sum of money representing the

difference in value."

Based on the same allegations, Kinsman asserted that Alfa and

Dimoff had fraudulently suppressed the existence of the like-kind-and-

quality provision and Alfa's duty to pay for the difference in value of the

materials. Finally, Kinsman alleged that Alfa and Dimoff "acted in bad

faith and breached the contract of insurance in adjusting the insurance

policy by denying to Kinsman payments due under the policy." As to each

claim, Kinsman sought compensatory and punitive damages.

Kinsman supplemented its complaint to add an affidavit from

Daniel Engel, the contractor who completed the repairs on the complex.

His affidavit explained the difference in roofing materials. It then stated

that, at the time the repairs were made, Engel had discussed the

difference with Dimoff and had expressed his belief that Alfa had an

obligation to pay Kinsman for the difference in value. Engel stated that

he never spoke with Kinsman's owner about the matter. Engel stated he

was contacted by Kinsman's owner in 2021 to do work on the roof "as it

began to fail." At that time, he asked whether Kinsman had been paid

under the terms of the like-kind-and-quality provision and was told that

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it had not been and that Kinsman's owner had been unaware of the

provision.

The parties conducted discovery, and, in February 2025, Alfa moved

for a summary judgment. Alfa argued, in part, that each of Kinsman's

claims was barred by a two-year statute of limitations. Alfa asserted that

the claims had accrued at the time the repairs were made to the complex

in 2005 and 2006, more than 15 years before Kinsman filed suit in 2021.

Alfa based its argument on the fact that Kinsman's owner had been made

aware of the difference in materials when the repairs were completed in

2006, as the complaint alleged. Further, Alfa showed by undisputed

evidence that Kinsman had a copy of the policy even before Hurricane

Katrina and thus was on notice of its coverage provisions. Thus, Alfa

asserted, the facts of coverage allegedly misrepresented or suppressed

were known to Kinsman and, thus, it had an immediate right to assert

its claims in 2006.

Dimoff also moved for a summary judgment. He asserted the same

arguments raised by Alfa. Kinsman responded; however, a copy of that

response does not appear in the materials before us. Alfa and Dimoff

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each replied. On May 22, 2025, the trial court entered an order denying

the motions for a summary judgment.

Alfa and Dimoff filed a petition for permission to appeal pursuant

to Rule 5, Ala. R. App. P., which this Court denied. Simultaneously, Alfa

and Dimoff filed their mandamus petition, seeking a writ directing the

trial court to vacate its May 22, 2025, order denying their motions for a

summary judgment and to enter a summary judgment in their favor.

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))."

Ex parte Hodge, 153 So. 3d 734, 738-39 (Ala. 2014).

It is well settled that a petition for a writ of mandamus ordinarily

is not an appropriate means of seeking relief from the denial of a motion

for a summary judgment. This Court explained in Hodge:

"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:

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" 'The general rule is that " 'a writ of
mandamus will not issue to review the merits of
an order denying a motion for a summary
judgment.' " Ex parte Empire Fire & Marine Ins.
Co., 720 So. 2d 893, 894 (Ala. 1998) (quoting Ex
parte Central Bank of the South, 675 So. 2d 403
(Ala. 1996)). In 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 plaintiff's 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 plaintiff's claim was barred by the
applicable statute of limitations.'

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

153 So. 3d at 745-46. However, in Hodge, this Court narrowly extended

the circumstances in which this Court will review a trial court's denial of
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a summary-judgment motion on statute-of-limitations grounds to include

those cases in which the defendants "have demonstrated, from the face

of the complaint, a clear legal right to relief and the absence of another

adequate remedy." Id. at 749.

Discussion

I. Clear Legal Right to Relief

First, we must determine whether Alfa and Dimoff have

demonstrated, based on the face of the complaint, that they have a clear

legal right to the relief sought. Alfa and Dimoff argue that Kinsman's

fraud, fraudulent-suppression, and bad-faith/breach-of-contract claims

are barred by the applicable statutes of limitations.

A. Fraud

The first count of Kinsman's complaint stated a claim of fraud.

Kinsman asserted that Alfa, through Dimoff, fraudulently represented

"that the apartment complex would be covered by the [Alfa] insurance

policy and its terms, and [Kinsman] relied on their representations.

[Kinsman] was unaware of the 'like, kind and quality' requirement of the

policy and the duty of the insurance company to pay the difference in

values." Kinsman further alleged that Alfa owed Kinsman "a sum of

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money representing the difference between the value of 10-year roof and

a 25-year roof; and the difference in money between the value of the

siding that was in place at the time of Hurricane Katrina, and the one

actually replaced which was not of 'like kind and quality' called for by the

policy" and that the value of the apartment complex was diminished.

Thus, the claim is based on allegations that Alfa and Dimoff made

misrepresentations in 2005 and 2006 about the contents of the policy and

the scope of coverage and that Kinsman suffered damage at that time.

Kinsman filed suit in 2022, approximately 15 years later.

The two-year statute of limitations of § 6-2-38(l), Ala. Code 1975,

applies to Kinsman's fraud claim. Under § 6-2-3, Ala. Code 1975, "the

claim must not be considered as having accrued until the discovery by

the aggrieved party of the fact constituting the fraud." This Court has

explained:

"[Section] 6-2-3 does not 'save' a plaintiff's fraud claim so that
the statutory limitations period does not begin to run until
that plaintiff has some sort of actual knowledge of fraud.
Instead, under Foremost[ Insurance Co. v. Parham, 693 So.
2d 409 (Ala. 1997)], the limitations period begins to run when
the plaintiff was privy to facts which would 'provoke inquiry
in the mind of a [person] of reasonable prudence, and which,
if followed up, would have led to the discovery of the fraud.'
Willcutt v. Union Oil Co., 432 So. 2d 1217, 1219 (Ala. 1983)

9
SC-2025-0478

(quoting Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389,
397, 281 So. 2d 636 (1973))."

Auto-Owners Ins. Co. v. Abston, 822 So. 2d 1187, 1195 (Ala. 2001).

"An insured who is competent in intelligence and background
to understand insurance policy language is charged with
knowledge of language in a policy received by that insured.
Mitchell Nissan, Inc. v. Foster, 775 So. 2d 138 (Ala. 2000);
Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997);
Brushwitz v. Ezell, 757 So. 2d 423, 430 (Ala. 2000)."

Allstate Ins. Co. v. Ware, 824 So. 2d 739, 745 (Ala. 2002).

The complaint did not include any allegations that Kinsman did not

receive a copy of its policy during the relevant periods or that Alfa had

suppressed the contents of the policy. Rather, Kinsman merely asserted

that it had "relied on the adjuster to interpret the policy in good faith."

In fact, it is undisputed that Kinsman had a copy of its Alfa policy in 2005

and 2006. Additionally, it is clear that Kinsman would have had a duty

to obtain and read its policy when making a claim under its terms. See

Alfa Life Ins. Corp. v. Reese, 185 So. 3d 1091, 1102-04 (Ala. 2015).

Further, it is clear from the complaint that Kinsman was made

aware of the difference in the roofing materials at the time the repairs

were made. Knowledge of the difference in materials should have

provoked inquiry about the scope of coverage, which would have led to

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the discovery of the like-kind-and-quality provision and the alleged

misrepresentations on which Kinsman's fraud claim rests. See, e.g.

Sexton v. Liberty Nat'l Life Ins. Co., 405 So. 2d 18, 21-22 (Ala. 1981)

(holding that alleged underpayments under policy should have provoked

inquiry and investigation, which would have led to discovery that

payments were not as allegedly promised).

Because Kinsman was privy to facts that, if it had inquired further,

would have led to the discovery of the scope of coverage on which

Kinsman bases its allegations of fraud, it is clear from the complaint that

Kinsman's fraud claim accrued in 2006. Kinsman did not file suit until

2022, undeniably outside the two-year statute of limitations of § 6-2-38(l).

Therefore, it is clear from the face of the complaint that Kinsman's fraud

claim is barred by the applicable statute of limitations.

B. Fraudulent Suppression

The second count of Kinsman's complaint stated a claim of

fraudulent suppression. This claim rests on allegations identical to those

asserted in Kinsman's fraud claim. In its suppression claim, Kinsman

alleged: "[Alfa and Dimoff] fraudulently represented … that the

apartment complex would be covered by the [Alfa] insurance policy and

11
SC-2025-0478

its terms, and [Kinsman] relied upon their representations. [Kinsman]

was unaware of the 'like, kind and quality' requirement of the policy." It

further alleged that Alfa owed Kinsman "a sum of money representing

the difference between the value of 10-year roof and a 25-year roof; and

the difference in money between the value of the siding that was in place

at the time of Hurricane Katrina, and the one actually replaced which

was not of 'like kind and quality' called for by the policy." Finally,

Kinsman alleged that Alfa and Dimoff "fraudulently suppressed these

facts from [Kinsman] even after being advised by the contractor they

should pay [Kinsman] the difference."

Like Kinsman's fraud claim, its suppression claim is subject to the

two-year limitations period of § 6-2-38(l). See Liberty Nat'l Life Ins. Co.

v. Ingram, 887 So. 2d 222, 227 (Ala. 2004). The limitations period for this

claim began to run when Kinsman "was privy to facts which would

'provoke inquiry in the mind of a [person] of reasonable prudence, and

which, if followed up, would have led to the discovery of the fraud.' " Auto-

Owners, 822 So. 2d at 1195 (citation omitted); see also Davant v. United

Land Corp., 896 So. 2d 475, 490-91 (Ala. 2004).

12
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As we noted previously, Kinsman was charged with knowledge of

the terms of its insurance policy. See Allstate, supra. Additionally, it is

clear from the complaint that Kinsman had knowledge of the difference

in the roofing materials in 2006 at the latest. The difference in materials

is a fact that would have provoked a reasonable person to inquire about

the scope of coverage and the specific provisions in the policy at that time.

However, Kinsman did not bring suit until 2022, years after the

expiration of the two-year limitations period of § 6-2-38(l). Thus, it is

clear from the face of the complaint that Kinsman's fraudulent-

suppression claim is also time-barred.

C. Bad Faith/Breach of Contract

In its bad-faith/breach-of-contract count, Kinsman alleged that Alfa

and Dimoff "acted in bad faith and breached the contract of insurance in

adjusting the insurance policy by denying to Kinsman payments due

under the policy." Kinsman's bad-faith claim is subject to the two-year

limitations period of § 6-2-38(l). See Alfa Mut. Ins. Co. v. Smith, 540 So.

2d 691, 692-93 (Ala. 1988)); see also Jones v. Alfa Mut. Ins. Co., 875 So.

2d 1189, 1193 (Ala. 2003). Kinsman's breach-of-contract claim is subject

to the six-year limitations period set forth in § 6-2-34(9), Ala. Code 1975.

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"A cause of action for bad faith refusal to pay insurance
benefits accrues for statute of limitations purposes 'when the
party seeking to bring the action knew of facts which would
put a reasonable mind on notice of the possible existence of
[bad faith].' Farmers & Merchants Bank v. Home Ins. Co.,
514 So. 2d 825 (Ala. 1987)."

Smith, 540 So. 2d at 692-93. "Additionally, '[i]t is well settled that a cause

of action for breach of contract accrues when the contract is breached.'

Wheeler v. George, 39 So. 3d 1061, 1084 (Ala. 2009)." Ex parte National

Tr. Ins. Co., 405 So. 3d 208, 220 (Ala. 2024).

As explained above, Kinsman was charged with knowledge of the

terms of its insurance policy, which included the like-kind-and-quality

provision. See Allstate, supra. Moreover, it is clear from the complaint

that Kinsman knew of the difference in the materials used in the roof, a

fact that would have put a reasonable person on notice of questions about

the scope of coverage and thus of the possible existence of its claim.

Kinsman had this knowledge in 2006 at the latest, yet it failed to bring

suit until 2022, years after the expiration of the two-year limitations

period. Therefore, it is clear from the face of the complaint that

Kinsman's bad-faith claim is barred by the applicable statute of

limitations.

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Additionally, Kinsman's breach-of-contract claim would have

accrued at the time Alfa allegedly failed to pay Kinsman for the difference

in value between the roofing materials and siding used to repair the

complex and the roofing materials and siding that existed at the time of

the hurricane, which was 2006 at the latest. Accordingly, it is clear from

the face of the complaint that Kinsman's breach-of-contract claim is also

barred by the applicable statute of limitations.

Based on the foregoing, it is clear from the face of the complaint

that Kinsman's claims are barred by the applicable statutes of

limitations. Therefore, the trial court erred when it denied their motions

for a summary judgment. Accordingly, Alfa and Dimoff have

established, based on the face of the complaint, that they have a clear

legal right to the relief requested.

II. Lack of Another Adequate Remedy

Next, we must determine whether Alfa and Dimoff have another

adequate remedy. In Hodge, this Court discussed the issue whether, in

a similar situation, a petitioner had another adequate remedy:

"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
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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 "winning" 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.
16
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" '....

" '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).

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"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 Murdock 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,
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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
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the claims against Alamo for lack of in personam
jurisdiction because Alamo has available to it the
following alternative and allegedly adequate
remedy: " 'continu[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 remedy" 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
20
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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 thousands 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 remedy"
that meets these "subjects." '

"Ex parte Alamo Title Co., 128 So. 3d at 715-17 (Murdock, J.,
concurring specially)(footnote 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.
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"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."

153 So. 3d at 746-49.

In this case, Alfa and Dimoff have demonstrated, based on the face

of the complaint, a clear legal right to a summary judgment in their favor.

Also, this case involves no unsettled, controlling question of law, and this

Court previously declined to accept Alfa and Dimoff's petition for a

permissive appeal. Thus, appeal by permission under Rule 5, Ala. R.

App. P., is plainly an inadequate remedy in this case. See Hodge, supra.

Additionally, based on the particular circumstances in this case, an

appeal from a final judgment following further litigation is also an

inadequate remedy. As in Hodge, Alfa and Dimoff "face the substantial

expense, time, and effort of litigating a matter as to which they have

demonstrated from the face of [the] complaint a clear legal right to have

dismissed." Hodge, 153 So. 3d at 749. Accordingly, Alfa and Dimoff have

demonstrated the lack of another adequate remedy.

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SC-2025-0478

Because Alex and Dimoff have demonstrated, from the face of the

complaint, that they are entitled to a summary judgment on statute-of-

limitations grounds and because they have demonstrated the lack of

another adequate remedy, a writ of mandamus is an appropriate remedy

in this case. See Hodge, supra.

Conclusion

For the above-stated reasons, we grant the mandamus petition and

issue the writ directing the trial court to set aside its May 22, 2025, order

denying Alfa's and Dimoff's motions for a summary judgment and to

enter a summary judgment for Alfa and Dimoff.

PETITION GRANTED; WRIT ISSUED.

Stewart, C.J., and Bryan, Sellers, Mendheim, Cook, McCool, and

Parker, JJ., concur.

Shaw, J., concurs in the result.

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