Dr. Janice WILLIS v. SHADOW LAWN MEMORIAL PARK, et al.
2961287
Court of Civil Appeals of Alabama
January 23, 1998
709 So. 2d 1241
ROBERTSON, Presiding Judge.
Robert M. Girardeau of Huie, Fernambucq & Stewart, Birmingham, for appellees.
ROBERTSON, Presiding Judge.
Dr. Janice Willis appeals from a judgment on the pleadings entered by the Jefferson County Circuit Court in her civil action against Shadow Lawn Memorial Park, Shadow Lawn Enterprises, and Michael Powell (“the defendants“). We reverse and remand.
Willis filed her complaint in the trial court on August 29, 1996, stating claims of fraud, conversion, breach of contract, negligence, wantonness, and intentional or reckless infliction of emotional distress. The defendants filed a motion to dismiss, which was denied, and later answered the allegations of the complaint.
The defendants then moved for a judgment on the pleadings, pursuant to
Our standard of review with respect to judgments on the pleadings entered pursuant to
“‘A Rule 12(c) motion for judgment on the pleadings disposes of a case when the material facts are not in dispute.’ McCullough v. Alabama By-Prods. Corp., 343 So. 2d 508, 510 (Ala.1977). ‘When such a motion is made, the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ B.K.W. Enterprises, Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 991 (Ala.1992). Moreover, a judgment on the pleadings is subject to de novo review, and the facts in the complaint are to be accepted as true and are to be viewed in the light most favorable to the nonmoving party. See Ortega v. Christian, 85 F.3d 1521, 1524-25 (11th Cir.1996).”
Harden v. Ritter, 710 So. 2d 1254, 1255-56 (Ala.Civ.App.1997).
The facts in the complaint, viewed in the light most favorable to Willis, are as follows. On January 15, 1931, the body of Willis‘s grandmother, Sadie White, was interred at Mason City Cemetery pursuant to a burial contract providing that, among other things, White‘s heirs would have exclusive use and control over the purchased grave site and that Mason City Cemetery would furnish perpetual care for the grave site. In 1939, the grounds of Mason City Cemetery were incorporated into Shadow Lawn Memorial Park, a cemetery owned and operated by the defendants, and the defendants assumed the obligations of Mason City Cemetery under the parties’ burial contract. At the time Mason City Cemetery was incorporated into Shadow Lawn Memorial Park, the defendants represented that the grave sites of those persons buried in Mason City Cemetery would not be disturbed, and that the cemetery would be properly maintained. At the same time, the defendants suppressed the facts that they would not provide the documentation of the grave site to Willis, and that they would not perpetually care and maintain the site.
Relying upon these representations and suppressions, Willis made no attempt to maintain the site and the nearby area herself; instead, she entrusted the defendants with the maintenance of White‘s grave site
The rule of repose relied upon by the defendants and by the trial court was summarized by the Alabama Supreme Court in Ex parte Grubbs, 542 So. 2d 927 (Ala.1989), as follows:
“In Alabama, there is ... a rule of repose or prescription by which an action not instituted for more than 20 years is absolutely barred. This rule is similar to, but broader than, a statute of limitations, and is not affected by it, nor dependent upon it. Its application is not affected by the circumstances of the situation, by whether prejudice has resulted, by whether evidence has become obscured, or by the status of the parties. The only element of the rule is time. Only a recognition by the defendant of the plaintiff‘s subsisting and continuing right will stay the running of the prescriptive period.”
542 So. 2d at 930 (citations omitted).
However, this 20-year period does not start to run until a plaintiff‘s cause of action has accrued. The common-law rule of repose “is couched in terms of the ‘running of the period against claims,’ ‘absolute bar to unasserted claims,’ ‘lack of diligence in asserting rights,’ ‘sleeping upon their rights,’ etc.,” and “is premised upon the pre-existing right to assert a claim.” Boshell v. Keith, 418 So. 2d 89, 92 (Ala.1982) (emphasis in original). Thus, the rule of repose “bars actions that have not been commenced within 20 years from the time they could have been commenced.” Tierce v. Ellis, 624 So. 2d 553, 554 (Ala.1993) (emphasis added).
Conspicuous in its absence from the complaint is any allegation concerning the time that any of Willis‘s claims accrued.1 While the complaint alleges that the defendants have breached the burial contract, there is no indication that this breach necessarily took place more than 20 years before the filing of Willis‘s complaint so as to implicate the rule of repose. All that may be gleaned from the pleadings is that a breach of the burial contract occurred on or before the date the complaint was filed.2 Likewise, the complaint does not allege that the defendants’ alleged negligence, wantonness, outrageous conduct, or conversion took place more than 20 years before the filing of the complaint. Finally, there is no indication in the complaint of the date upon which Willis‘s fraud claims accrued, i.e., when she first incurred damage as a result of the defendants’ alleged representations and suppressions in 1939. See Jackson v. Secor Bank, 646 So. 2d 1377, 1379 (Ala.1994);
Reviewing the trial court‘s judgment on the pleadings de novo, as we must, we conclude that there remains a factual dispute, unresolved by the pleadings themselves, concerning whether Willis‘s claims accrued more than 20 years before she filed her complaint. Consequently, the trial court‘s judgment on
REVERSED AND REMANDED.
YATES, MONROE, and THOMPSON, JJ., concur.
CRAWLEY, J., concurs in part and dissents in part.
Dr. Janice WILLIS v. SHADOW LAWN MEMORIAL PARK, et al.
CRAWLEY, Judge, concurring in part and dissenting in part.
Although I concur in the reversal of the judgment on the pleadings as to Willis‘s conversion, negligence, and breach of contract claims, I must respectfully dissent from the reversal of the judgment on the pleadings on Willis‘s fraud and outrage allegations. Willis‘s complaint indicates only the date that her grandmother was buried in Mason City Cemetery (1931) and the date that Mason City Cemetery was incorporated into Shadow Lawn Memorial Park, Inc. (1939). She does state that certain representations concerning the maintenance of her grandmother‘s grave were made at the time of the incorporation in 1939.
Under
The facts alleged in the complaint affirmatively demonstrate that more than two years has passed since the date of the alleged fraud. See