Tobiassen v. Sawyer12/30/2004
rs before the plaintiff filed suit. Because the defendants did not challenge the plaintiff's case on the ground of an absence of evidence of damage proximately resulting from the alleged act or omission and did not thereby shift the burden to the plaintiff to produce such evidence, no absence of such evidence in the materials before the trial court when it considered these motions supplied an alternative ground for judgments in favor of the defendants and against the plaintiff. Tanner v. State Farm Fire & Cas. Co., 874 So. 2d 1058, 1067 n.3 (Ala. 2003); Liberty Nat'l Life Ins. Co. v. University Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003); Hollis v. City of Brighton, [Ms. 1012381, January 9, 2004] __ So. 2d __, __ (Ala. 2004); McKenzie v. Killian, [Ms. 1021616, March 5, 2004] __ So. 2d __, __ (Ala. 2004); and Ex parte McCord-Baugh, [Ms. 1011067, April 2, 2004] __ So. 2d __, __ (Ala. 2004). Neither defendant argued any such alternative ground, and the trial court did not consider any such alternative ground. With this caveat, this dissent will proceed to the issue that is before us.
The statute of limitations is an affirmative defense. Rule 8(c), Ala. R. Civ. P.; Payton v. Monsanto Co., 801 So. 2d 829, 833-34 (Ala. 2001). "When the action is not time-barred on the face of the complaint, the defendant seeking a judgment of dismissal based on the affirmative defense of limitations has the burden of proof." Payton, 801 So. 2d at 834. As the main opinion acknowledges, the plaintiff's two-year period to file suit did not begin until some damage proximately resulted from the alleged act or omission. Grabert v. Lightfoot, 571 So. 2d 293, 294 (Ala. 1990).
Damage not proximately resulting from the alleged act or omission would not be recoverable. Bobo v. Bryant, 706 So. 2d 763, 766 (Ala. Civ. App. 1997) (a case analogous on this issue to the case now before us); Levesque v. Regional Med. Ctr. Bd., 612 So. 2d 445, 448-49 (Ala. 1993); Brooks v. Goldhammer, 608 So. 2d 394 (Ala. 1992). Therefore, such damage would not supply the damage element of a tort action and thus would not start the running of the statutory period for filing suit. Grabert, 571 So. 2d at 594.
Proximate causation in a medical-malpractice action can be proved only by expert testimony. University of Alabama Health Servs. Found. v. Bush, 638 So. 2d 794, 802 (Ala. 1994). The record considered by the trial court in the case now before us contained no expert testimony proving proximate causation.
The plaintiff filed suit in the case now before us on December 5, 2002. Therefore, unless the complaint shows on its face, or the record before the trial judge established without genuine dispute, that at least some damage proximately resulted from the alleged act or omission before December 5, 2000, no judgment was or is due either defendant. Grabert, supra; Payton, supra; Hollis,____ So. 2d at ____; Wal-Mart Stores v. Hepp, 882 So. 2d 329, 331 (Ala. 2003); see Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003).
The plaintiff's complaint did not allege that any damage resulted proximately on the December 1, 2000 date of the alleged act or omission, or on December 2, December 3, or December 4, 2000, the only dates more than two years before the plaintiff filed suit on December 5, 2002. In the second paragraph numbered 4 in the complaint, the plaintiff did allege abundant damage without any dates. For aught that appears in the complaint and the record considered by the trial court, this damage did not accrue until December 5, 2000 or thereafter, less than two years before the plaintiff filed suit.
The defendants contend and the main opinion in effect holds that the complaint on it
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