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

frubio@rubio.com(205) 443-7858

Wyndall Ivey, Esq.Ivey Law Group

3529 7th Ave. SouthBirmingham, AL 35222

wivey@iveylawgroup.com(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