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Transcript of Appellate Brief Draft 8pm
1No.1131273________
IN THE SUPREME COURT OF ALABAMA_______________________________________________
EVANGELINE LIMON AND ELADIO LIMON,Appellants
v.SANDRA SANDLIN ET. AL.,
Appellees._______________________________________________
Appeal from theJefferson County Circuit Court
_______________
BRIEF OF THE APPELLANTS_______________
ORAL ARGUMENT REQUESTED________________
Freddy Rubio, Esq.Rubio Law Firm
438 Carr Ave., Suite 1Birmingham, AL 35209
[email protected](205) 443-7858
Wyndall Ivey, Esq.Ivey Law Group
3529 7th Ave. SouthBirmingham, AL 35222
[email protected](205) 226-0342
October 7, 2014
TABLE OF CONTENTSPage
STATEMENT REGARDING ORAL ARGUMENT .........................i
TABLE OF CONTENTS ....................................... ii
STATEMENT OF JURISDICTION ................................iv
TABLE OF AUTHORITIES ..................................... v
STATEMENT OF THE CASE .................................... .1
STATEMENT OF THE ISSUES ...................................3
STATEMENT OF THE FACTS ................................... 4
STATEMENT OF THE STANDARD OF REVIEW ......................17
SUMMARY OF THE ARGUMENT ..................................18
ARGUMENT ................................................ .22
CONCLUSION............................................... 30
STATEMENT OF JURISDICTION
This case is a direct appeal from the final judgment
Order issued by the circuit court on June 24, 2014. (C.
59.) The Notice of Appeal was timely filed on August 4,
2014. Ala. R. App. Proc. Rule 4. Jurisdiction is proper
under Ala. Stat. § 12-2-7(6), which grants this honorable
Court exclusive jurisdiction over final judgments in civil
cases where the amount in controversy exceeds $50,000. See
Ex Parte R.B.Z., 725 So. 2d 257, 259-60 (Ala. 1997). When
the appeal does not arise from a judgment fixing the amount
of recovery, the amount claimed in the complaint determines
jurisdiction. Thus, the Appellants’ Complaint seeking
damages in excess of $60,000 renders jurisdiction proper.
(C. 9 ¶ 16).
TABLE OF AUTHORITIES
CASES PAGE
Angell v. Shannon, 455 So. 2d 823, 823-24 (Ala. 1984)
DGB,LLC v. Hinds, 55 So. 3d 218 (Ala. 2010).
Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997).
Gilmore v. M & B Realty Co., 895 So. 2d 200, 210 (Ala.2004).
Hudson v. Moore, 194 So. 147 (Ala. 1940)
Miller v. Mobile County Bd. of Health, 409 So. 2d 420 (Ala. 1981).
Moulder v. Chambers, 390 So. 2d 1044 (Ala. 1980).
Papastefan v. B & L Constr. Co., 356 So. 2d 158, 160 (Ala. 1978).
Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala. 2001).
Potter v. First Real Estate Co., 844 So. 2d 540 (Ala. 2002).
Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640 (Ala. 1985).
Ex Parte R.B.Z., 725 So. 2d 257(Ala. 1997).
Ex Parte Seabol, 782 So. 2d 212 (Ala. 2000).
Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197, 200 (Ala. 2001).
Weaver v. Firestone, 2013 WL 6516389 (Ala. 2013).
Wheeler v. George, 39 So. 3d 1061 (Ala. 2009).
Willcut v. Union Oil Co. of Cal., 432 So. 2d 1217 (Ala. 1983).
City of Gadsden v. Harbin, 398 So. 2d 707 (Ala. Civ. App. 1981).
Rutledge v. Freeman, 914 So. 2d 364(Ala. Civ. App. 2004).
Ishler v. C.I.R., 442 F. Supp. 2d 1189, 1211 (N.D. Ala. 2006).
STATUTES
Ala. Code § 6–2–38(l)(1975).
Ala. Stat. § 12-2-7(6) (1975).
Ala. R. Civ. Pro. 9(b)
SECONDARY SOURCES
STATEMENT OF THE CASE
The claims in the instant case were filed on behalf of
Eladio and Evangeline Limon (hereinafter “Plaintiffs”), in
an attempt to seek justice for the deception that damaged
their parental rights to the care and custody of their minor
child. In May of 2013, Plaintiffs discovered that their
minor daughter had an abortion in the State of New York
seventeen months prior. The abortion took place while in
the care of the Appellees (hereinafter “Defendants”), who
materially misrepresented the intent of the trip to New York
and concealed their efforts in aiding the procurement of the
abortion. When Plaintiffs discovered the deception, they
took immediate steps to ascertain the truth about what
happened and subsequently filed suit in the Circuit Court of
Jefferson County, Alabama on April 17, 2014. (C. 9.)
The Complaint alleged the following causes of action:
Count One-Outrage; Count Two-Negligence; Count Three-
Interference with Parental Rights; and Count Four-Fraud.
(C. 9-14.) All of the Counts collectively hinge on the same
common nucleus of operative facts, namely the affirmative
misrepresentations by Defendants and the ongoing concealment
of their actions in procuring Plaintiffs’ minor daughter an
abortion. After receiving proper service, Co-Defendants
Sandra Sandlin and William Ogbourne Jr.1 filed a Motion to
Dismiss on June 3, 2014, seeking dismissal of all claims.
(C. 30.) The Defendants first argued that the two-year
Statute of Limitations barred Plaintiffs’ claims, citing
Ala. Code § 6-2-38 (1975) and stating that the savings
clause did not apply. (C. 30-32). Second, Defendants argued
that the claims were due to be dismissed for failure to
state a claim for which relief could be granted. (C. 32-41).
Lastly, Defendants motioned for a dismissal of the fraud
claim for failure to comply with Alabama Rule of Civil
Procedure 9(b). Id. The Motion sought in the alternative
an order for a more definitive statement on Count Four for
fraud. (C. 30-43.) Defendant William Ogbourne, Jr.
subsequently filed an Answer independently on June 9, 2014.
(C. 45.)
1 Appellant William Ogburn Jr. points out an error in the spelling of his name in his Answer to Appellant’s Complaint. The Complaint incorrectly states “Ogbourne.”
The Plaintiffs filed their Opposition to Defendants’
Sandlin and Ogbourne, Jr.’s Motion to Dismiss on June 23,
2014. (C. 53.) In their brief, Plaintiffs claimed the counts
were timely pled because the fraudulent behavior was not
discovered or reasonably discoverable until May 2013. (C.
54.) After the motion was heard before the Honorable Judge
Privett, Judge Privett issued her Order on June 24, 2014.
The Order provided that Counts One, Two, and Three of the
Complaint were dismissed with prejudice as to Defendants
Sandra Sandlin and William Ogbourne, Jr. because the counts
were barred by the Statute of Limitations. (C. 57.) Count
Four was dismissed with leave to file a more definite
statement or amended complaint within 10 days of the Order.
Id. Accordingly, to preserve their cause of action,
Plaintiffs filed an Amended Complaint on July 9, 2014,
providing a more definite statement regarding Defendants’
fraudulent acts. (C. 58-65.)
In response, Defendants filed a Motion to Strike and a
Motion to Dismiss the Amended Complaint, claiming that the
Counts One, Two, and Three were due to be stricken given the
previous Order. (C. 66.) Having received a final Order of
dismissal, Plaintiffs filed a Notice of Appeal with this
Court on August 5, 2014, contemporaneously with a Motion to
Stay Proceedings Pending Appeal. (C. 83, 89.) The circuit
court granted the motion to stay on August 5, 2014, pending
the outcome of this appeal. (C. 85.)
STATEMENT OF THE ISSUES
I. Whether Plaintiffs’ allegations against Defendants
sufficiently establish a claim for Fraud that was not
reasonably discoverable by Plaintiffs prior to its
disclosure, such that the claim for Fraud is tolled and the
savings clause prerequisite for fraudulent concealment is
established for Plaintiffs’ derivative claims.
II. Whether Plaintiffs’ claims for Outrage, Negligence, and
Interference with Parental Rights were erroneously dismissed
as time-barred when all claims derive from the same nucleus
of operative facts that conceal Defendants’ tortuous conduct
from Plaintiffs.
STANDARD OF REVIEW
The final Order at issue in this appeal granted a
Motion to Dismiss based on a 12(b)(6) failure to state a
claim. When reviewing a dismissal under 12(b)(6), the
standard of review applied by the appellate court is whether
the allegations of the complaint, when viewed “most strongly
in the pleader’s favor,” could be proved by any given set of
circumstances such that they would entitle the pleader to
relief. Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d
640, 641 (Ala. 1985); see also Weaver v. Firestone, 2013 WL
6516389 (Ala. 2013) (noting, “[A] Rule 12(b)(6) dismissal is
proper only when it appears beyond doubt that the plaintiff
can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.”).
At the heart of this appeal is whether the savings
clause of Ala. Code § 6-2-38 tolls the statute of
limitations when the parties allegation of fraud concealed
the same facts giving rise to the derivative causes of
action. When a trial court’s judgment turns on the
determination and applicability of a statute, the decision
is a matter of law and is accordingly “reviewed de novo by
an appellate court, without any presumption of correctness.”
Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197,
200 (Ala. 2001) (applying a de novo standard of review to
the trial court’s interpretation of the statute at issue).
Therefore, this Court owes no deference to the trial court’s
determination that that the causes of action were time
barred or that the fraud was not properly plead.
STATEMENT OF FACTS
Defendant William Ogbourne Jr., a minor child during
the events of the instant case and the son of Defendants
William Ogbourne and Sandra Sandlin, began a sexual
relationship with Plaintiff’s daughter, also minor child,
more than a year before the events in the instant case. (C.
10, 59.) The sexual relationship resulted in pregnancy,
though the Plaintiffs were not made aware of their
daughter’s status. Id. Instead, on or about December 19,
2011, Defendants told Plaintiffs that they wanted to take
Plaintiffs’ daughter to New York so she could see Broadway
shows and meet William Ogbourne Jr’s stepsister. (C. 12,
61.) Unbeknownst to Plaintiffs, the true intent of the trip
was to obtain an abortion in a state where, unlike in
Alabama, no parental notification laws exist. (C. 10-11,
59.) Defendants made several requests to Plaintiffs over
the course of a few days, and eventually succeeded in
convincing Plaintiffs to allow their daughter to make the
trip to New York with Defendants. (C. 62.) Plaintiffs’
daughter had an abortion while in New York and under the
care and supervision of Defendants. (C. 10, 59.)
Some time after returning from New York, Plaintiff’s
daughter became distant and the course of her life
degenerated. (C. 10, 59.) Her grades plummeted and she
eventually dropped out of school. Id. She became
depressed, antisocial, and began using drugs. Id. Although
distraught by their daughter’s change in behavior,
Plaintiffs could not ascertain the cause and went to great
lengths to rescue their daughter from the inexplicable
downturn. Id. Plaintiffs even went so far as to sell their
home and relocate, at great financial hardship, in order to
move their daughter out of her apparently unwelcome
environment. Id. It was not until May of 2013, however,
that Plaintiffs’ daughter finally revealed to her parents
the truth about her pregnancy, the trip to New York, the
abortion, and the Defendants’ involvement in concealing
those events from Plaintiffs. (C. 10-11, 59.) Plaintiffs
filed the present action upon learning of Defendants’
participation in the deception and concealment of their
daughter’s abortion.
SUMMARY OF THE ARGUMENT
The order dismissing the counts of Outrage, Negligence,
and Interference with Parental Rights with prejudice should
be reversed because Plaintiffs could not reasonably have
discovered the deceptive and reprehensible actions of
Defendants prior to May of 2013. The sufficiently pleaded
fraud claim provides the foundational prerequisite for
applying the savings clause to Plaintiffs’ derivative causes
of action. For derivative claims to fall within the savings
clause, Plaintiffs must first establish Defendants
fraudulently concealed the facts giving rise to such claim
or that Defendants fraudulency concealed the cause of action
itself. Plaintiffs satisfied this requirement in their
Complaint with allegations establishing Defendants
contemplated and actualized their fraudulent conduct
specifically to conceal a minor child’s abortion from her
parents.
In addition to establishing fraudulent concealment,
Plaintiffs established Defendants’ fraud was neither
discovered nor discoverable prior to the statute of
limitations running, thus satisfying the second part of the
requirements under the savings clause jurisprudence.
Although Plaintiffs were aware of their daughter’s
deteriorating condition, the observed behavioral changes
could be attributed to numerous actions or influences, none
of which would cause Plaintiffs to suspect Defendants’
targeted deceit. Because none of the claims were reasonably
discoverable by Plaintiffs prior to the minor child’s
disclosure in May of 2013, the savings clause of Ala. Code §
6-2-38 properly tolls the statute of limitations on the
fraud claim. Likewise, the savings clause also tolls the
claims for Outrage, Negligence, and Interference with
Parental Rights because they are derived from the same
nucleus of operative facts. To allow the bar from the
statute of limitations to stand would be tantamount to
allowing the defendants to benefit from their fraudulent
act, which runs afoul to the public policy behind the
savings clause. Accordingly, the district court erred in
dismissing the claims for Outrage, Negligence, and
Interference with Parental rights by failing to apply the
savings clause to the fraudulently concealed causes of
action. Because the claims are not time barred, this Court
should reinstate the claims, allowing them to be litigated
with the fraud claim, thus preserving judicial economy and
efficiency.
ARGUMENT
I. Plaintiffs Complaint sufficiently established a claim for Fraud that was not reasonably discoverable by Plaintiffs prior to its disclosure, such that the claim for Fraud is tolled and the savings clause prerequisite for fraudulent concealment is established for Plaintiffs’ derivative claims.
A. Plaintiffs Complaint sufficiently pleads Fraud as required by Rule 9(b) by detailing the time, place and the contents of Defendants’ false representations, and by identifying what was obtained by the fraud.
Defendants’ deception and gross misrepresentations made
to Plaintiffs with the intent to induce the Plaintiffs’ to
give consent for their minor to accompany the Defendants on
a trip to New York gives rise to a claim for fraud.
Defendants argued in their Motion to Dismiss that Count Four
of the Complaint for Fraud should be dismissed because
Plaintiffs failed to plead the fraud with particularity as
required by Rule 9(b). (C. 41-43); Ala. R. Civ. Pro. 9(b)
(requiring all averments of fraud state “the circumstances
constituting fraud or mistake . . . with particularity”).
In the alternative, Defendants sought an order for a more
definite statement as to the facts and circumstances
surrounding Plaintiffs’ fraud based claims. (C. 42).
Preserving their objection for appeal, Plaintiffs argued in
their opposition to the Motion to Dismiss that the
allegations in the Complaint complied with Rule 9(b). (C.
53-55.) On June 24, 2014, Judge Privett issued an order
erroneously finding the “claim of fraud lacks specificity as
required by Rule 9(b) of the Alabama Rules of Civil
Procedure,” and dismissing Count Four with leave to file a
more definite statement or amend the complaint. (C. 57.)
(Order). In accordance with the Order, Plaintiffs filed
their Amended Complaint augmenting their already
sufficiently pleaded claim for fraud. Additionally,
Plaintiffs filed contemporaneously an appeal on the issue of
the erroneous dismissal of the Complaint and a Motion to
Stay Proceedings Pending Appeal, which was granted. (C. 58,
83-85.)
Under Rule 9(b), a plaintiff is required to plead
the “time, place and the contents or substance of the false
representation, and an identification of what has been
obtained.” Ruble 9(b)(committee comments). In this case,
Plaintiffs sufficiently placed Defendants on notice of the
fraudulent conduct in Plaintiffs’ original Complaint. First,
Plaintiffs identified the applicable time frame for (1)
Defendants’ fraudulent statements, stating that the
misrepresentations occurred sometime “prior to the events on
or about December 30, 2011,” and (2) for the fraudulent
behavior of taking Plaintiffs’ minor daughter to New York
under false pretenses and beyond the scope of Plaintiffs’
consent, stating that “[u]pon arriving in New York [on or
about December 30, 2011], Defendants William Ogbourne and
William Ogbourne Jr. arranged and obtained for Plaintiffs’
daughter an abortion.” (C. 10.)
Second, Plaintiffs satisfied the requirement for
pleading the place of the fraud in their Complaint.
Plaintiffs alleged the Defendants took their minor daughter
from Alabama to New York after Defendants deceitfully
obtained permission from Plaintiffs in Alabama for the sole
purpose of circumventing Alabama’s parental notification
laws for minors. Id. Accordingly, Defendants were on
notice of the location of the alleged fraud as required by
the spirit of Rule 9(b).
As for the content of the fraud, Defendants erroneously
claim in their Motion to Dismiss that Plaintiffs fail to
allege “the specific identification concerning which of the
Defendants committed the alleged misrepresentation.” (C.
42.) Plaintiffs would direct this Court to paragraph 6 of
the Complaint, wherein the Plaintiffs clearly state
“Defendants William Ogbourne, Sandra Sandlin, and William
Ogbourne Jr. did promise Plaintiffs that they were taking
Plaintiffs’ daughter to New York in order for her to see
Broadway shows.” (C. 10). This statement alone demonstrates
the content of the misrepresentation (i.e. the purpose and
scope of the Defendants’ trip) as well as the identity of
the individual tortfeasors. Plaintiffs went even further in
identifying the individual tortfeasors, noting in paragraph
12 of the Complaint that Defendant Sandra Sandlin “aided in
convincing Plaintiffs that their minor child’s trip to New
York was for the purpose of seeing shows on Broadway.” (C.
11.) Plaintiffs similarly attribute fraudulent behavior to
Defendants William Ogbourne and William Ogbourne, Jr. in
paragraph 13 of the Complaint, asserting on or about
December 29, 2011, “Defendants William Ogbourne and William
Ogbourne, Jr. . . . took Plaintiffs’ minor child with them
to New York under the auspice of seeking Broadway.” (C. 11-
12.)(emphasis added). Throughout the remainder of the
Complaint, Plaintiffs refer collectively to Defendants
because each substantially participated in the fraudulent
behavior designed to obtain Plaintiffs’ consent; doing so
does not defeat the particularity requirement as Defendants
suggest.
B. Plaintiffs could not reasonably discover Defendants’ fraud with due diligence when Defendants calculated to conceal the abortion from Plaintiffs and when their daughter’s resulting downward spiral could not readily be attributed to Defendants’ conduct.
Having established a well-pleaded claim for fraud,
Plaintiffs must now establish the savings clause is
applicable to such a claim. In Alabama, a claim for fraud
generally is subject to a two-year statute of limitations.
Ala. Code § 6–2–38(l)(1975); see also Potter v. First Real
Estate Co., 844 So. 2d 540 (Ala. 2002). When the two year
period begins to run depends on when the plaintiff
discovered, or should have discovered, the fact constituting
the fraud. This “savings clause,” as it is referred to in
Alabama, is codified in Alabama Code § 6-2-3, which
provides:
In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two
years within which to prosecute his action.
Ala. Code § 6-2-3 (1975).
When applying this savings clause, Alabama courts look
to whether the complaint alleges the “time and circumstances
of the discovery of the cause of action” and whether the
complaint alleges the “facts or circumstances by which the
defendants concealed the cause of action or injury and what
prevented the plaintiff from discovering the facts
surrounding the injury.” DGB,LLC v. Hinds, 55 So. 3d 218,
226 (citing Angell v. Shannon, 455 So. 2d 823, 823-24 (Ala.
1984); Papastefan v. B & L Constr. Co., 356 So. 2d 158, 160
(Ala. 1978))(concealment of the facts giving rise to
complaint). In this case, Plaintiffs’ Complaint satisfied
these requirements by providing: (1) the circumstances
surrounding the discovery of Defendants fraud—namely, their
daughter ultimately disclosing the circumstances surrounding
her abortion; (2) the facts and circumstances by which
Defendants concealed their tortuous conduct—namely,
Defendants devising a plan to fraudulently obtain Plaintiffs
permission to accompany Defendants to New York while knowing
the true purpose of the trip; and (3)what prevented
Plaintiffs from discovering the tortuous conduct of
Defendants—namely, the nature of the ultimate achievement of
the fraud, an abortion, and the type of psychological
struggle Plaintiffs’ daughter was experiencing, prevented
Plaintiffs from reasonably discovering the truth within two
years of the fraud. (C. 9-13.)
In their Motion to Dismiss, the Defendants properly
cite the standard for determining when a claim for fraud
accrues, namely when “the party actually discovered the
fraud or had facts that, upon closer examination, would have
led to the discovery of fraud.” (C. 32.) (emphasis added in
Defendants’ Motion to Dismiss)(quoting Ishler v. C.I.R., 442
F. Supp. 2d 1189, 1211 (N.D. Ala. 2006)(additional citations
omitted)); see also Willcut v. Union Oil Co. of Cal., 432
So. 2d 1217, 1219-20 (Ala. 1983) (“Facts which provoke
inquiry in the mind of a man of reasonable prudence, and
which, if followed up, would have led to a discovery of the
fraud, constitute sufficient evidence of discovery.”).
Stated another way, the savings clause “supplies an
objective test, tolling the statute of limitations on a
fraud claim until the aggrieved party discovers or, in the
exercise of reasonable care, should have discovered, the
facts constituting the fraud.” Potter, 545 So. 2d at 545
(citing Ex Parte Seabol, 782 So. 2d 212, 216 (Ala. 2000);
Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala.
1997); Moulder v. Chambers, 390 So. 2d 1044, 1046 (Ala.
1980))(emphasis added). Note, therefore, that under this
standard, the issue is not whether the abortion itself was
discoverable, but rather whether Defendants’ fraudulent
behavior that gave rise to “the events complained-of herein”
was discoverable. (C. 32.)
Whether facts giving rise to fraud were reasonably
discoverable is a question properly reserved for the jury.
Gilmore v. M & B Realty Co., 895 So. 2d 200, 210 (Ala. 2004)
(“The question of when a party discovered or should have
discovered the fraud is generally one for the jury.”)
(quoting Seabol, 782 So. 2d at 216 (Ala. 2000)). Courts are
reticent to invade the province of the jury except under
limited circumstances, such as when a party “actually knew
of facts that would have put a reasonable person on notice
of fraud.” Wheeler v. George, 39 So. 3d 1061, 1084 (Ala.
2009)(holding that a document in and of itself was
insufficient to attribute knowledge of fraudulent facts when
the parties had no reason to doubt the accompanying
explanation at the time). Actual facts that may have put
Plaintiffs’ on notice of the fraud could have been any
number of things, including the knowledge of the pregnancy
prior to the trip coupled with the subsequent termination of
the pregnancy. However, these facts were not known by
Plaintiffs. Therefore, it is proper for a jury to determine
the reasonableness of Plaintiffs inquiry into the facts
giving rise to their fraud claim.
Should this Court determine that the decision is not
properly reserved for a jury, this Court may conclude
Defendants erred in conclusively asserting Plaintiffs “had
facts in late December 2011/early 2012 that, ‘upon closer
examination, would have led to discovery of the events
complained-of herein....’” (C. 32.) While it is true that
Plaintiffs began to notice a change in behavior sometime
after their daughter returned from New York, there are no
facts to suggest Plaintiffs should have known that the
Defendants had engaged in deceitful conduct that played an
integral role in their daughter’s changed behavior. In
their Complaint, Plaintiffs briefly outline some of the
behavioral changes they observed in their daughter, which
included: a sudden drop in grades, dropping out of school,
drug use, withdrawal from her social circle, depression, and
antisocial behavior. (C. 10.) To illustrate the difficulty
in deciphering the cause of such behavior in the face of
other viable explanations, Plaintiffs draw this Court’s
attention to a few representative resources summarizing the
psychological and behavioral changes in behavior that can
arise after an abortion compared to those arising from, say,
substance abuse.2 The lists are nearly identical and could
be understandably difficult for Plaintiffs to decipher the
root cause when both an abortion and substance abuse
precipitate withdrawal and a breakdown of communication.
Therefore, it is disingenuous for Defendants to claim that
reasonable investigation into the matter would have led to
the discovery of Defendants’ role in securing an abortion.
Plaintiffs would have had to first suspect an abortion,
rather than another reasonable cause like substance abuse,
and then would have had to suspect someone defrauded
2 Abortion Risks: A list of major psychological complications related to abortion, available at http://afterabortion.org/2011/abortion-risks-a-list-of-major-psychological-complications-related-to-abortion/ (last visited October 6, 2014) (citing “diminished interest in previously enjoyed activities; drug or alcohol abuse; suicidal thoughts or acts; and other self-destructive tendencies” as possible complications post-abortion); cf. Early Detection of Illicit Drug Use in Teenagers, Innovations in Clinical Neuroscience, Shahid Ali, MD, et. Al., available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3257983/ (last visited October 6, 2014) (citing warning signs for drug abuse, including frequent change of friends, withdrawal from family, deterioration of school grades and skipping of classes, and changes in personality.)
Plaintiffs to procure their daughter in getting an abortion
without consent. This goes beyond what courts contemplate
as a required “reasonable investigation.” See, e.g.,
Foremost, 693 So. 2d at 420-21 (finding unreasonable
plaintiffs’ claim for tolling when “the plaintiffs received
documents . . . that if read or even briefly skimmed would
have put reasonable persons on notice [of the facts
constituting the fraud]”); Willcut, 432 So. 2d at 2020
(holding that statute of limitations was not tolled when the
plaintiff admitted that he initiated an inquiry into the
very subject matter of the fraud allegations).
Certainly, Plaintiffs were actively trying to uncover
the cause for their daughter’s downward spiral, even going
so far as selling their house to provide their daughter with
a fresh environment. (C. 10-11.) While the behavioral and
psychological changes alerted the Plaintiffs’ to
“something,” the difficulty of discovering the root of the
cause was compounded by their daughter’s guilt, shame, and
natural tendency for suppressing the trauma often associated
with the difficult and personal decision to have an
abortion. To say, as Defendants do, that Plaintiffs’
failure to discover the abortion was because they “fail[ed]
to communicate with their own daughter,” is an egregious
misunderstanding of the impact an abortion has on a
teenager’s psychology.3 (C. 43.)
Having sufficiently pleaded the circumstances
constituting fraud and why the fraudulent behavior was not
reasonably discoverable, Plaintiffs have satisfied the
requirements under the savings clause, rendering their count
for Fraud timely.
II. UNDER LONG-RECOGNIZED PRINCIPLES, PLAINTIFFS’ CLAIMS FOR OUTRAGE, NEGLIGENCE, AND INTERFERENCE WITH PARENTAL RIGHTS ARE TIMELY BECAUSE THEY ARE DERIVED FROM THE SAME NUCLEUS OF OPERATIVE FACTS CONCEALING THE TORTOUS CONDUCT FROM THE PLAINTIFFS, RENDERING THE SAVINGS CLAUSE APPLICABLE TO SUCH DERIVATIVE CLAIMS.
Defendants’ claim that the two-year statute of
limitation applies to bar all of Plaintiffs’ claims, which
include the torts of outrage, negligence, intentional
interference with parental rights, and fraud (discussed
above). (C. 31.) (“Each count Plaintiffs allege against
these Defendants is barred by the applicable two-year
statute of limitations.”) This Court has long recognized
that the savings clause, while couched in terms of fraud,
applies to other causes of action where the existence of a
tort is fraudulently concealed from the party in whose favor 3 See, e.g., Abortion Risks: A list of major psychological complications related to abortion, supra FN 2.
the cause of action exists. DBG, LLC, 55 So. 3d at 225
(citing Hudson v. Moore, 194 So. 147 (Ala. 1940); see also
Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala. 2001)
(finding plaintiffs’ claim for negligence, among others,
could overcome defense of statute of limitations upon
showing the defendant concealed the wrongdoing); Angell, 455
So. 2d at 823-24 (applying savings clause and Rule 9(b) to a
breach-of-contract claim); Miller v. Mobile County Bd. of
Health, 409 So. 2d 420 (Ala. 1981) (same); Rutledge v.
Freeman, 914 So. 2d 364, 369 (Ala. Civ. App. 2004) (holding
the savings clause and its predecessor “have long been held
to apply to any cause of action that has been fraudulently
concealed from a plaintiff.)”; City of Gadsden v. Harbin,
398 So. 2d 707 (Ala. Civ. App. 1981) (holding tolling of
statute of limitations proper until such time the plaintiff
discovered or could have discovered tort by due diligence).
For the savings clause to apply to other causes of
action, the complaint must allege the “time and
circumstances of the discovery of the cause of action.”
DGB,LLC, 55 So. 3d at 226; Angell, 455 So. 2d at 823-24
(citing Papastefan, 356 So. 2d at 160). Further, the
complaint must also allege the “facts or circumstances by
which the defendants concealed the cause of action or injury
and what prevented the plaintiff from discovering the facts
surrounding the injury.” Id.
In the case before this Court, Plaintiffs have provided
sufficient information to establish the “facts and
circumstances” surrounding Defendants’ acts intended to
conceal their tortuous conduct, which includes communicating
outright lies regarding the purpose of their trip and
secretly and knowingly interfering with the Plaintiffs’
parental rights. (C. 10-13). Given the facts of this case,
the policy behind applying the savings clause in other
causes of action is paramount. As stated in the DBG case,
“A party cannot profit by his own wrong in concealing a
cause of action against himself until barred by limitation.
The statute of limitations cannot be converted into an
instrument of fraud.” DBG, LLC., 55 So. 3d at 224. To allow
Defendants to claim that the minor’s failure to communicate
the Defendants’ torts after Defendants went to such great
lengths to contrive a plan intended to keep Plaintiffs from
discovering the abortion would offend the policy in place to
protect victims of fraudulent behavior.
Finally, Plaintiffs have sufficiently established “what
prevented the plaintiff from discovering the facts
surrounding the injury.” Id. at 226. The very nature of the
facts alone support a finding that Defendants conduct was
not discoverable with a reasonable inquiry. There are no
facts to suggest that the Defendants’ were involved in
anything tortuous that would have caused the observed
behaviors in the daughter. Moreover, Plaintiffs allege that
they were only told of the Defendants’ fraudulent scheme and
the daughter’s participation in the execution of the plan in
May 2013, after a year-long process of trying to help their
daughter navigate her downward spiral. (C. 10-13). Even if
Defendants claim the great weight of the acts preceding the
abortion in December 2011 rest solely with the daughter who
willingly sought an abortion, the Plaintiffs’ minor child
cannot consent to tortuous acts committed upon the
Plaintiff.
CONCLUSION
Respectfully submitted this 7th day of October, 2014.
______________________ ______________________Freddy Rubio, Esq. Wyndall Ivey, Esq.The Rubio Law Firm Ivey Law Group433 Carr. Ave., Suite 1 3529 7th Ave. SouthBirmingham, AL 35209 Birmingham, AL 35222
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy ofthe foregoing upon the following persons by placing a copyof the same in the United States Mail this 7th day of October, 2014.
Sandra SandlinWilliam Ogbourne, Jr.c/o White Arnold & Dowd2025 3rd Ave. N., Suite 500Birmingham, AL 35203
William Ellis Ogbourne, Sr.3251 Fernwood DriveGulf Breeze, FL 32563