Tamarra Martin and Lesester Williams v. Hodges Chapel, LLC, and Whispering Pines Cemetery, LLC
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Rel: 12/16/2011
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2011-2012
_________________________
2100446
_________________________
Tamarra Martin and Lesester Williams
v.
Hodges Chapel, LLC, and
Whispering Pines Cemetery, LLC
Appeal from Mobile Circuit Court
(CV-10-901467)
PITTMAN, Judge.
Tamarra
Martin
and
Lesester
Williams
(hereinafter
referred to collectively as "the plaintiffs") appeal from a
judgment dismissing their complaint against Hodges Chapel, LLC
2100446
("the funeral home"),1 and Whispering Pines Cemetery, LLC
("the cemetery").
We affirm in part, reverse in part, and
remand for further proceedings.
On June 25, 2010, the plaintiffs sued the funeral home,
the cemetery,
alleging
and several
claims
of
fictitiously
negligence,
named
wantonness,
defendants,
the
tort
of
outrage, breach of contract, and fraud, based on the following
factual allegations.
The plaintiffs had arranged with the
funeral home to have four of their deceased family members
buried in the cemetery:
Emma Lee Prince (Martin's mother and
Williams's grandmother) ("Ms. Prince"), who had been buried in
April 1990; Steven Prince, Sr. (Martin's father and Williams's
grandfather) ("Prince, Sr."), who had been buried in March
1996; Stephen Prince, Jr. (Martin's brother and Williams's
uncle) ("Prince, Jr."), who had been buried in January 2000;
and
William
Mae
Mobley
(Martin's
brother
and
Williams's
father) ("Mobley"), who had been buried in January 2004.
The
plaintiffs could not afford to place headstones or other
1
In their complaint, the plaintiffs identified this party
as "Hodges Funeral Chapel, LLC." As discussed infra, this
party indicated that its correct name is "Hodge's Chapel,
LLC." We have amended the style of this case to reflect the
correct name of this party.
2
2100446
markers on the graves at the time of the burials, but the
funeral home assured the plaintiffs that it "kept accurate
records" of the location of the grave sites so that the graves
could be found for visitation and the later placement of
headstones.
The
condition
of
the
cemetery
premises
deteriorated over time, and the landmarks changed so that it
became difficult to locate the grave sites.
In May 2009,
Martin contacted the funeral home to find the location of her
mother's grave so that she could place a headstone there;
Martin
also
requested
brothers' graves.
the
location
of
her
father's
and
The funeral home provided Martin with the
location of her father's and brothers' graves by lot and
section number, but the funeral home was unable to tell her
the location of her mother's grave.
The plaintiffs asserted
that they had recently been informed of a pending lawsuit, in
which it had been alleged that the same defendants had kept
poor records and had misplaced another decedent's remains, and
they "suspect[ed] that there [was] a great likelihood" that
the location of all four of their family members' graves was
also unknown.
3
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Both defendants were served with the complaint. Although
the cemetery failed to answer or otherwise defend, the funeral
home filed a motion to dismiss or, in the alternative, a
motion for a summary judgment, first stating that it had been
incorrectly named in the complaint as "Hodges Funeral Chapel,
LLC," when its correct name was "Hodge's Chapel, LLC." Citing
Ex parte Liberty National Life Insurance Co., 825 So. 2d 758,
763-66 (Ala. 2002), the funeral home asserted that, because
the plaintiffs' claims, it said, arose from the interment of
Ms. Prince, who had been buried in April 1990, but were not
brought until June 2010, the plaintiffs' claims were barred by
the 20-year rule of repose. Second, the funeral home asserted
that the plaintiffs' complaint was due to be dismissed based
on the two-year limitations period set forth in § 6-2-38, Ala.
Code 1975, and the six-year limitations period set forth in §
6-2-34, Ala. Code 1975.
Third, the funeral home alleged that
the complaint failed to state a claim against it because
Hodge's Chapel, LLC, had not been in existence in 1990, but
had been formed only in 1997.
The funeral home attached its
Articles of Organization, dated December 17, 1997, to the
motion.
4
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The plaintiffs filed a response in opposition to the
funeral home's motion, asserting that the funeral home had
addressed the claims relating to only one of their family
members (Ms. Prince), and arguing that the rule of repose was
inapplicable to those claims.
In addition, the plaintiffs
argued that all of their claims had accrued in May 2009, when
Martin had inquired as to the location of her family members'
grave sites, the funeral home had failed to provide her with
the location of Ms. Prince's grave site, the funeral home had
given her incorrect information regarding the location of the
other three grave sites, and the plaintiffs had suffered
emotional distress.
The plaintiffs maintained that because
they had filed suit 13 months after the date that their claims
had accrued, in their view, neither their tort nor their
contract claims were barred by any statutes of limitation.
The plaintiffs did not respond to the funeral home's assertion
that it was not liable on any of the plaintiffs' claims
because the funeral home did not exist before 1997.
The trial court entered a judgment stating:
"Motion to
dismiss is hereby granted. Case dismissed with prejudice."
The plaintiffs filed a postjudgment motion, arguing that no
5
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statute of limitations barred their tort or contract claims
because, the plaintiffs asserted, those claims had accrued in
May 2009 and they had filed their complaint in 2010; that the
allegation that Hodge's Chapel, LLC, was not in existence
until 1997 was not a valid legal basis to dismiss the claims
against that entity; and that the claims against the cemetery
were dismissed erroneously because the cemetery "ha[d] filed
no motion whatsoever."
The postjudgment motion was denied by
operation of law, after which the plaintiffs timely appealed.
The supreme court subsequently transferred the appeal to this
court pursuant to Ala. Code 1975, § 12-2-7(6).
Standard of Review
Because the funeral home presented, in support of its
dispositive motion, matters outside the pleadings that were
not excluded by the trial court, we review the trial court's
judgment under the principles of law pertaining to summary
judgments.
"'[W]here
matters
outside
the
pleadings
are
considered on a motion to dismiss, the motion is
converted into a motion for summary judgment as
provided in Rule 12(c), [Ala. R. Civ. P.],
regardless of its denomination and treatment by the
trial court.' Boles v. Blackstock, 484 So. 2d 1077,
1079 (Ala. 1986).
6
2100446
"'When the trial court is called upon
to consider a Rule 12(b)(6) motion, it must
examine the allegations in the complaint,
... and construe it so as to "resolve all
doubts concerning [its] sufficiency in
favor of the [claimant]." In so doing, the
court does not consider whether the
claimant will ultimately prevail, only
whether he has stated a claim under which
he may possibly prevail. Fontenot v.
Bramlett, 470 So. 2d 669, 671 (Ala. 1985),
citing First National Bank v. Gilbert
Imported Hardwoods, Inc., 398 So. 2d 258
(Ala. 1981), and Karagan v. City of Mobile,
420 So. 2d 57 (Ala. 1982).'
"'If the motion, however, is converted
to a Rule 56[(c), Ala. R. Civ. P.,] motion
for summary judgment, the 'moving party's
burden changes and he is obliged to
demonstrate that there exists no genuine
issue as to any material fact and that he
is entitled to a judgment as a matter of
law.' Papastefan v. B & L Const[r]. Co.,
356 So. 2d 158 (Ala. 1978), citing C.
Wright and A. Miller, Federal Practice and
Procedure: Civil § 1366 (1969).'"
A.W.
v.
Wood,
57
So.
3d
751,
756
(Ala.
2010)
(quoting
Hightower & Co. v. United States Fid. & Guar. Co., 527 So. 2d
698, 702–03 (Ala. 1988)).
The Claims Concerning the Burial Site of Ms. Prince
A.
The Rule of Repose
Citing Willis v. Shadow Lawn Memorial Park, 709 So. 2d
1241 (Ala. Civ. App. 1998), the plaintiffs contend that the
7
2100446
rule of repose does not bar their claims with respect to Ms.
Prince's grave site.
In Willis, a woman sued the owners of
the cemetery in which her grandmother had been buried in 1931,
alleging that the owners had failed to maintain the grave
site, had sold the grave site to another party, and had
interred another body there.
stated
claims
of
fraud,
The complaint, filed in 1996,
conversion,
breach
of
contract,
negligence, wantonness, and intentional or reckless infliction
of emotional distress. The owners moved for a judgment on the
pleadings, contending that "the incidents giving rise to [the
granddaughter's] claims had occurred more than 20 years before
the
filing
of
the
complaint,
and
that
her
claims
therefore barred by the common-law rule of repose."
2d at 1242.
were
709 So.
The trial court granted that motion.
On appeal, this court reversed.
We decided that because
the complaint did not include the time when the defendants had
allegedly
breached
the
burial
contract
or
had
allegedly
engaged in the tortious conduct specified, it was impossible
to tell when the actions that gave rise to the granddaughter's
claims had occurred and, thus, when the rule of repose had
begun to run as to those claims.
8
In Willis, this court held
2100446
that "there remain[ed] a factual dispute, unresolved by the
pleadings themselves, concerning whether [the granddaughter's]
claims accrued more
than 20 years
complaint." 709 So. 2d at 1243.
before she
filed
her
Accord Evans v. Walter
Indus., Inc., 579 F. Supp. 2d 1349, 1375 (N.D. Ala. 2008)
(denying without prejudice the defendants' motions to dismiss
on the basis of Alabama's common-law rule of repose and
recognizing that "some of [the] claims may be barred under ...
[that] doctrine[], but the court cannot determine which ones
without
evidence
unavailable
at
this
stage
of
the
proceedings").
In Ex parte Liberty National Life Insurance Co., supra,
the supreme court reviewed the history and application of the
rule of repose in Alabama.
The court
stated that the rule of
repose is similar to but "'broader in scope than a statute of
limitations.'" 825 So. 2d at 764 (quoting Rector v. Better
Houses, Inc., 820 So. 2d 75, 77 n.2 (Ala. 2001)).
The court
emphasized the fact that the rule of repose is "not based upon
concepts of accrual, notice, or discovery -- concepts that are
applicable
to
statutes
of
limitation."
explained that
9
Id.
The
court
2100446
"the 20-year period [of the rule of repose] begins
to run against claims the first time those claims
could have been asserted,2 regardless of the
claimant's notice of a claim. See Moore [v. Liberty
Nat'l Ins. Co.], ... 108 F. Supp. 2d [1266,] 1275
[(N.D. Ala. 2000)] ('Application of the rule of
repose has only one element –- the passage of twenty
years time from the moment that the actions giving
rise to the claim occurred –- and, if that time has
elapsed, no claim can be pursued.').
____________
"2 In some instances, this point in time may be
the same as the date of the 'accrual' of a claim.
However, as stated above, repose does not depend on
'accrual,' because the concept of accrual sometimes
incorporates
other
factors,
such
as
notice,
knowledge, or discovery. For example, see Ala. Code
1975, § 6-2-3 (providing that a fraud claim does not
accrue 'until the discovery by the aggrieved party
of the fact constituting the fraud')."
10
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825 So. 2d at 764-65 (footnote omitted).2
In American General
Life & Accident Insurance Co. v. Underwood, 886 So. 2d 807
(Ala.
2004),
the
supreme
court
expanded
on
its
earlier
discussion in Liberty National as to what triggers the running
of the 20-year period.
In Underwood, the court stated that
"[t]he rule of repose begins running on a claim as soon as all
of the essential elements of that claim coexist so that the
plaintiff could validly file suit."
(emphasis added).
886 So. 2d at 812
The 20-year period will, therefore, begin
to run at different times for different types of claims.
For
example, because damages are an essential element of a tort
2
Notwithstanding this court's use of the accrual date to
analyze whether the claims in Willis were barred by the rule
of repose, the result in Willis remains correct because, for
the tort claims at issue in Willis, the date on which the 20year period of the rule of repose began to run as to those
claims was the same as the date of the accrual of the claims.
See Liberty Nat'l, 825 So. 2d at 764-65 & n.2. See also Spain
v. Brown & Williamson Tobacco Corp., 872 So. 2d 101, 129 (Ala.
2003) (Johnstone, J., concurring in part, concurring specially
in part, and dissenting in part) (noting that "the rule of
repose is superfluous to the two-year statute of limitations
for actions based on negligence [and] wantonness"). Accord
Evans v. Walter Indus., Inc., 579 F. Supp. 2d at 1361 n.7
(noting that when "the relevant statutes of limitations ...
happen to define 'accrual' as the date of the injury, [that
date] is for all practical purposes the same date the rule of
repose starts to run").
11
2100446
claim, the rule of repose does not begin to run as to a tort
claim until "the defendant's tortious act proximately causes
the plaintiff to suffer an actual injury."
886 So. 2d at 812-
13. "A suit on a breach-of-contract claim, on the other hand,
may be commenced
as soon as the defendant
breaches
the
contract, regardless of whether the plaintiff has suffered an
actual injury."
886 So. 2d at 813 n.1 (citing Stephens v.
Creel, 429 So. 2d 278 (Ala. 1983)).
That is so because
"even if the plaintiff could not show any actual
damage, [Alabama appellate courts] have repeatedly
allowed a recovery of at least nominal damages where
the plaintiff has shown that defendant has breached
the terms of the contract."
Stephens, 429 So. 2d at 280.
Based on the foregoing principles, we must determine when
all
the
essential
elements
of
the
plaintiffs'
tort
and
contract claims concerning the burial site of Ms. Prince
coexisted for the first time and, thus, when the 20-year
period of the rule of repose began to run as to those claims.
1.
The Negligence and Wantonness Claims
"To establish negligence, the plaintiff must
prove: (1) a duty to a foreseeable plaintiff; (2) a
breach of that duty; (3) proximate causation; and
(4) damage or injury. Albert v. Hsu, 602 So. 2d 895,
12
2100446
897 (Ala. 1992). To establish wantonness, the
plaintiff must prove that the defendant, with
reckless
indifference
to
the
consequences,
consciously and intentionally did some wrongful act
or omitted some known duty. To be actionable, that
act or omission must proximately cause the injury of
which the plaintiff complains. Smith v. Davis, 599
So. 2d 586 (Ala. 1992)."
Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994).
The
complaint alleged that the funeral home, the cemetery, and
fictitiously named defendants owed them the duty of keeping
accurate records of the location of all grave sites; that the
defendants had negligently or wantonly breached that duty; and
that the plaintiffs had suffered emotional distress as a
consequence of learning in May 2009 that the funeral home had
been
unable to provide
Martin with
the
location
of
Ms.
Prince's grave site.
In its dispositive motion, the funeral home asserted
that the plaintiffs' claims were barred by the rule of repose,
but the funeral home did not demonstrate that the 20-year
period of the rule of repose had begun to run, as a matter of
law, more than 20 years before the plaintiffs filed their
complaint in 2010.
2.
The Outrage Claim
13
2100446
"The four elements of the tort of intentional
infliction of emotional distress, which is also
known as the tort of outrage, are: '"(1) the actor
intended to inflict emotional distress, or knew or
should have known that emotional distress was likely
to result from his conduct; (2) the conduct was
extreme and outrageous; (3) the defendant's actions
caused the plaintiff distress; and (4) ... the
distress was severe."' Gunter v. Huddle, 724 So. 2d
544, 547 (Ala. Civ. App. 1998) (quoting Harris v.
McDavid, 553 So. 2d 567, 569-70 (Ala. 1989)).
Because a cause of action does not accrue until a
plaintiff is entitled to maintain the action, a
cause of action alleging the intentional infliction
of emotional distress does not accrue until the
defendant's actions have caused the plaintiff severe
distress, two of the four necessary elements for
such a cause of action."
Chaney v. Ala West-AL, LLC, 22 So. 3d 488, 498 (Ala. Civ. App.
2008).
Because all the essential elements of the plaintiffs'
tort-of-outrage claim concerning the burial site of Ms. Prince
did not coexist until May 2009 when the plaintiffs suffered
emotional distress, the funeral home failed to demonstrate
that the 20-year period of the rule of repose had begun to
run, as a matter of law, more than 20 years before the
plaintiffs filed their complaint in 2010.
3.
The Fraud Claims
"The elements of a fraudulent-misrepresentation
claim are: '(1) a false representation (2) of a
material existing fact (3) reasonably relied upon by
the plaintiff (4) who suffered damage as a proximate
consequence of the misrepresentation.' Padgett v.
14
2100446
Hughes, 535 So. 2d [140,] 142 [(Ala. 1988)]. 'The
elements of a claim of fraudulent suppression are:
"'(1) a duty on the part of the defendant to
disclose facts; (2) concealment or nondisclosure of
material facts by the defendant; (3) inducement of
the plaintiff to act; (4) action by the plaintiff to
his or her injury.'"' DGB, LLC v. Hinds, 55 So. 3d
218, 231 (Ala. 2010) (quoting Freightliner, L.L.C.
v. Whatley Contract Carriers, L.L.C., 932 So. 2d
883, 891 (Ala. 2005), quoting in turn Lambert v.
Mail Handlers Benefit Plan, 682 So. 2d 61, 63 (Ala.
1996))."
Sexton v. Bass Comfort Control, Inc., 63 So. 3d 656, 662 (Ala.
Civ. App. 2010). The complaint alleged that the funeral home,
the
cemetery,
and
fictitiously
named
defendants
had
misrepresented the fact that they kept accurate records of the
location of all grave sites and had suppressed the true facts
concerning their inadequate record keeping as to the location
of the grave sites.
The plaintiffs further alleged that they
had been induced to their detriment, by the misrepresentation
as
to
the
suppression
defendants'
of
the
true
accurate
record
facts
regarding
keeping
the
and
the
defendants'
inadequate record keeping, to believe that they could visit
their family members' grave sites and that they could, when
they were financially able to do so, place headstones on the
grave sites.
15
2100446
Because all the essential elements of the plaintiffs'
fraudulent-misrepresentation and fraudulent-suppression claims
concerning the burial site of Ms. Prince did not coexist until
May 2009, when the plaintiffs suffered emotional distress as
a consequence of learning that the funeral home had no record
of the whereabouts of Ms. Prince's grave site, the funeral
home did not demonstrate that the 20-year period of the rule
of repose had begun to run, as a matter of law, more than 20
years before the plaintiffs filed their complaint in 2010.
4.
Unlike
The Breach-of-Contract Claim
the
plaintiffs'
tort
claims
(whose
essential
elements did not coexist until the plaintiffs suffered damages
in May 2009), all the essential elements of the plaintiffs'
breach-of-contract claim coexisted at the time of the breach
-- that is, when the funeral home, the cemetery, or the
fictitiously named defendants failed to maintain accurate
records
concerning
the
burial
site
of
Ms.
Prince
–-
"regardless of whether the plaintiff[s] ha[d] suffered an
actual injury" at that time.
American Gen. Life & Acc. Ins.
Co. v. Underwood, 886 So. 2d at 813 n.1.
16
2100446
The complaint did not allege the time of the breach, and,
in its dispositive motion, the funeral home made no showing
that, if a breach had occurred, it had occurred between April
1990
and
June
24,
1990
(more
than
20
years
before
plaintiffs filed their complaint on June 25, 2010).
the
Thus,
this case is like Willis, because it is impossible to tell
when the actions giving rise to the plaintiffs' contract claim
as to Ms. Prince's grave site occurred and, therefore, when
the rule of repose began to run as to that claim.
As in
Willis,
"[w]hile the complaint allege[d] that the defendants
ha[d] breached the burial contract, there is no
indication that this breach necessarily took place
more than 20 years before the filing of [the
plaintiffs'] complaint so as to implicate the rule
of repose. ...
"... [W]e conclude that there remains a factual
dispute ... concerning whether [the plaintiffs']
claims accrued more than 20 years before [they]
filed [their] complaint."
709 So. 2d at 1243.
Accordingly, the funeral home did not
satisfy its burden of demonstrating that
17
2100446
the period of the rule of repose had begun to run, as
a
matter of law, more than 20 years before the plaintiffs filed
their complaint.
Insofar as the trial court may have determined that the
plaintiffs' claims concerning the burial site of Ms. Prince
were barred by the rule of repose, that determination was
erroneous.
Nevertheless, as discussed infra, the judgment in
favor of the funeral home (but not the cemetery) as to the
claims concerning the burial site of Ms. Prince is due to be
affirmed for another reason.
B.
Fictitious-Party Allegations
The funeral home contended that, because it was not in
existence when Ms. Prince was buried in 1990, it could not
have contracted with the plaintiffs, owed them any duty, or
breached any duty regarding Ms. Prince's burial site.
In
response, the plaintiffs argued that, in their complaint, they
had alleged claims against fictitiously named defendants who,
the plaintiffs asserted, were responsible for the interment of
their family members and the record keeping regarding their
family members' burial sites. Accordingly, they insist, their
fictitious-party allegations were "broad enough to encompass
18
2100446
claims they might have against any other entity, including an
entity purchased by" the funeral home.
Assuming, without deciding, that a motion to substitute
the funeral home for a fictitiously named defendant would have
been proper, we note that no such motion was made in this
case. Moreover, in response to the funeral home's dispositive
motion,
the
plaintiffs
filed
neither
a
request
for
a
continuance nor an affidavit, pursuant to Rule 56(f), Ala. R.
Civ. P., stating that, without discovery, they could not
ascertain
the
true
identity
of
the
fictitiously
named
defendants, could not determine whether the funeral home had
successor
liability
to
them,
and
could
not
amend
their
complaint to substitute actual defendants for the fictitiously
named defendants.
Rule 56(f) provides:
"Should it appear from the affidavits of a party
opposing the [summary-judgment] motion that the
party cannot, for reasons stated, present by
affidavit facts essential to justify the party's
opposition, the court may deny the motion for
summary judgment or may order a continuance to
permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such
other order as is just."
"Rule 56(f) requires from the party opposing the summary
judgment motion an affidavit stating the reasons why he cannot
19
2100446
present essential facts." Herring v. Parkman, 631 So. 2d 996,
1002 (Ala. 1994).
Here, the plaintiffs presented the trial court with no
basis upon which to delay its ruling on the funeral home's
motion.
Although the plaintiffs argued in their postjudgment
motion that they "should have the opportunity to prove their
case," and although they cited Prattville Memorial Chapel v.
Parker, 10 So. 3d 546 (Ala. 2008), for the proposition that a
corporate cemetery owner may be the successor to a previous
owner, "[w]e cannot hold the trial court in error for failing
to
grant
a
requested."
Civ. App.
We,
continuance
under
Rule
56(f)
when
none
was
Thompson v. Huntley, 977 So. 2d 493, 496, (Ala.
2007).
therefore,
affirm
the
judgment
in
favor
of
the
funeral home insofar as it relates to the plaintiffs' claims
concerning the grave site of Ms. Prince.
However, we reverse
that judgment as to the claims asserted against the cemetery,
which, for all that appears in the record, was in existence at
all pertinent times.
20
2100446
The Claims Concerning the Burial Site of Prince, Sr.
We also affirm the judgment in favor of the funeral home
(but
not
the
cemetery)
insofar
as
it
relates
to
the
plaintiffs' claims concerning the grave site of Prince, Sr.,
who was buried in 1996.
In response to the funeral home's
assertion that it was not liable to the plaintiffs on any of
their
claims
because
it
did
not
exist
until
1997
and,
therefore, could not have contracted with or breached any duty
to the plaintiffs, the plaintiffs filed neither a request for
a continuance nor an affidavit, pursuant to Rule 56(f),
stating that, without discovery, they could not ascertain the
true identity of the fictitiously named defendants, could not
determine whether the funeral home had successor liability to
them, and could not amend their complaint to substitute actual
defendants for the fictitiously named defendants.
The Claims Concerning the Burial Sites
of Prince, Jr., and Mobley
In its dispositive motion, the funeral home did not
controvert
any
of
the
plaintiffs'
factual
allegations.
Instead, the funeral home argued (a) that it was not in
existence until 1997 and that it, therefore, could not have
contracted with the plaintiffs or breached any duty to them
21
2100446
before that date and (b) that the plaintiffs' claims were
barred by the applicable statutes of limitations.
Prince, Jr., was buried in January 2000, and Mobley was
buried in January 2004.
The funeral home was admittedly in
existence on both occasions, a fact that would have defeated
any successor-liability defense that the funeral home might
have asserted.
Therefore, with respect to the plaintiffs'
claims concerning the burial sites of Prince, Jr., and Mobley,
the funeral home had the burden of demonstrating that there
was no genuine issue of material fact as to any element of its
statute-of-limitations defenses and that it was entitled to a
judgment as a matter of law.
Wal–Mart Stores, Inc. v.
Smitherman, 743 So. 2d 442, 444 (Ala. 1999).
The plaintiffs maintained that their claims accrued, and
that the relevant statutes of limitations began to run, in May
2009 when the funeral home failed to identify the correct
location of the burial sites of Prince, Jr., and Mobley, and
that their tort and contract claims, filed 13 months later in
June 2010, were not barred by the statutes of limitations.
Thus, the funeral home was entitled to a summary judgment only
if the accrual date posited by the plaintiffs was erroneous as
22
2100446
a matter of law and the accrual date occurred outside the
applicable statutory limitations period.
"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."
Garrett v. Raytheon Co., 368 So. 2d 516, 518-19 (Ala. 1979).
A. The Negligence and Wantonness Claims
In Payne v. Alabama Cemetery Ass'n, 413 So. 2d 1067 (Ala.
1982), the plaintiff sued a funeral home and a cemetery,
alleging negligent and wanton destruction of her mother's
remains, which had disappeared from the grave where her mother
had been buried.
The evidence indicated that the remains had
been missing from the mother's grave since 1975 but that the
plaintiff did not discover they were missing until May 1979.
The plaintiff filed her complaint in January 1980.
The trial
court entered a summary judgment in favor of the defendants.
On appeal, the defendants argued that the summary judgment
could be affirmed on the basis that the plaintiff's claims
were barred by the then-existing one-year, residual statute of
limitations applicable to tort claims found in § 6-2-39, Ala.
23
2100446
Code 1975.
The supreme court disagreed, holding that the
statute of limitations did not begin to run, as a matter of
law, until the plaintiff discovered that her mother's remains
were missing because it was at that point that the plaintiff
suffered an injury and was entitled to maintain an action.
Payne, 413
So. 2d at 1072.
Payne,
therefore, mandates
reversal, in part, of the trial court's judgment.
B. The Tort-of-Outrage Claim
"[A] cause of action alleging the intentional
infliction of emotional distress does not accrue
until the defendant's actions have caused the
plaintiff severe distress, two of the four necessary
elements for such a cause of action."
Chaney v. Ala West-AL, LLC, 22 So. 3d at 498.
Because the
plaintiffs' distress did not exist until May 2009, the trial
court's judgment as to the tort-of-outrage claim is also
erroneous.
C.
The Fraud Claims
"[A] fraud claim accrues at the time of discovery by the
aggrieved party of the fact constituting the fraud."
Gray v.
Liberty Nat'l Life Ins. Co., 623 So. 2d 1156, 1159 (Ala.
1993).
As we have noted, the plaintiffs allegedly discovered
the facts amounting to fraudulent conduct on the part of the
24
2100446
defendants in May 2009, and they brought suit well within the
two-year statutory period for doing so.
Ala. Code 1975, § 6-
2-3.
D.
The Contract Claim
"The statute of limitations on a contract action runs
from the time a breach occurs rather than from the time actual
damage is sustained." AC, Inc. v. Baker, 622 So. 2d 331, 335
(Ala. 1993).
"'Breach' consists of the failure without legal
excuse to perform any promise forming the whole or
part of the contract. 17 Am. Jur. 2d Contracts §
441 at 897. Where the defendant has agreed under
the contract to do a particular thing, there is a
breach and the right of action is complete upon his
failure to do the particular thing he agreed to do.
17 Am. Jur. 2d, supra."
Seybold v. Magnolia Land Co., 376 So. 2d 1083, 1085 (Ala.
1979). The plaintiffs' theory of the case was that the breach
occurred upon the defendants' failure to keep accurate records
of the location of their family members' grave sites.
Neither Prince, Jr. (buried in January 2000) nor Mobley
(buried in January 2004) was interred within six years of the
filing of this action on June 25, 2010.
Unlike the tort
claims we have discussed, we cannot tell when the plaintiffs'
contract claims concerning the burial sites of Prince, Jr.,
25
2100446
and Mobley accrued because the time of the breach is not
apparent.
Although
it
is
possible
that
the
defendants'
record-keeping system was inadequate from the outset, and that
the breach occurred as early as the burials of Prince, Jr., in
January 2000 and Mobley in January 2004 -- thus resulting in
the contract claims being barred by the six-year statute of
limitations applicable to breach-of-contract claims, see § 62-34(9), Ala. Code 1975 -- it is also possible that the
records may have been lost or may have become disorganized at
some
later
date
that
limitations period.
was
within
the
six-year
statutory
Because there remains a genuine issue of
material fact as to the accrual date of the contract claims
concerning the burial sites of Prince, Jr., and Mobley, the
funeral home did not establish that those claims were barred,
as a matter of law, by the statute of limitations.
Citing Campbell v. City of San Antonio, 43 F.3d 973, 975
(5th Cir. 1995), the funeral home argues for the first time on
appeal that the judgment in its favor on the claims relating
to the burial sites of Prince, Jr., and Mobley can be affirmed
on the basis that the plaintiffs alleged no more than a mere
"suspicion" that they had a cause of action against the
26
2100446
funeral home as to those claims.
Campbell is not particularly
helpful because, for the point cited by the funeral home, the
United States Court of Appeals for the Fifth Circuit was
merely quoting a federal-practice treatise for the appropriate
standard of review on a Rule 12(b)(6), Fed. R. Civ. P.,
dismissal of a complaint; the court was not commenting upon
any particular deficiency in the plaintiff's complaint.
The
court stated:
"'[T]he complaint must contain either direct
allegations on every material point necessary to
sustain a recovery ... or contain allegations from
which an inference fairly may be drawn that evidence
on these material points will be introduced at
trial.' 5 Wright & Miller, Federal Practice and
Procedure: Civil 2d § 1216 at 156-159 (footnote
omitted). '[A] statement of facts that merely creates
a suspicion that the pleader might have a right of
action' is insufficient. Id. at 163 (footnote
omitted). 'Dismissal is proper if the complaint lacks
an allegation regarding a required element necessary
to obtain relief ...' 2A Moore's Federal Practice ¶
12.07 [2.-5] at 12-91 (footnote omitted). The court
is not required to 'conjure up unpled allegations or
construe elaborately arcane scripts to' save a
complaint. Gooley v. Mobil Oil Corp., 851 F.2d 513,
514 (1st Cir. 1988)."
Campbell, 43 F.3d at 975.
Notwithstanding
the
plaintiffs'
statement
that
they
"suspect[ed] that there [was] a great likelihood" that the
location of their family members' graves was unknown, the
27
2100446
plaintiffs' statement of facts constituted more than a "mere
suspicion" of a claim against the funeral home because it was
based on the following other factual allegations:
that the
funeral home had represented to the plaintiffs that it kept
accurate records of the location of all grave sites; that the
funeral home had informed Martin of the location of three of
her family members' grave sites; and that the plaintiffs had
subsequently been informed of a pending lawsuit, in which it
had
been
alleged
that
the
same
defendants
had
misplaced
another decedent's remains as a result of poor record-keeping
practices.
most
When those allegations are viewed in the light
favorable
to
the
plaintiffs,
an
inference
of
fraud
arises.
Conclusion
The summary judgment is affirmed insofar as it relates to
the plaintiffs' claims against the funeral home concerning the
burial sites of Ms. Prince and Prince, Sr.
The judgment is
reversed insofar as it relates to the plaintiffs' claims
against
the
funeral
home
Prince, Jr., and Mobley.
concerning
the
burial
sites
of
As to the claims asserted against
the cemetery (which has not favored this court with a brief),
28
2100446
the summary judgment is reversed.
The cause is remanded for
further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Thompson, P.J., and Bryan, Thomas, and Moore, JJ., concur.
29
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