Ex parte John H. Jones, M.D., [Ms. SC-2023-0812, Sep. 27, 2024] __ So. 3d __ (Ala. 2024). The Court (Bryan, J.; Parker, C.J., and Wise, Sellers, Mendheim, Stewart, Mitchell, and Cook, JJ., concur) denies Dr. John Jones’s mandamus petition contending that the Jackson Circuit Court should have dismissed the subject medical malpractice wrongful death case because it was not “commenced within two years from and after the decedent’s death.” The action was filed on the Monday after the second anniversary of the decedent’s death and would be timely applying Rule 6(a) Ala. R. Civ. P. (in computing a time period “[t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday ….”).
Dr. Jones argued that because “§ 6-5-410 is a statute of creation, as opposed to a statute of limitations,” Rule 6(a) do not apply and any question of expanding the two-year period should be for the legislature. Ms. *7. The Court concluded Dr. Jones failed to establish a clear legal right to the issuance of a writ of mandamus. “[H]e admits that there is no controlling authority clearly supporting his contention that the method for computing time provided by Rule 6(a) does not apply to an action brought under § 6-5-410(d). In citing secondary authority that he contends is persuasive, Dr. Jones fails to address the discussions provided by such authority regarding § 1-1-4 [Ala. Code 1975], the plain language of which applies to the computation of time for ‘any act … provided by law to be done.’” Ms. *18.
Section 1-1-4 provides in pertinent part “[t]ime within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday as defined in § 1-3-8, or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.” The Court notes “[i]t may be argued that § 1-1-4 does not apply to wrongful-death actions. However, we do not conclusively resolve that question in disposing of this petition because Dr. Jones has not explicitly addressed § 1-1-4 at all and, consequently, offers us no substantive analysis to consider regarding that statute.” Ibid.