Weaver v. Firestone

• Decision Date: 13 December 2013
• Docket Number: 1101403.
• Citation: 155 So.3d 952
• Parties: Carl WEAVER v. Roger D. FIRESTONE.
• Court: Alabama Supreme Court

155 So.3d 952

Carl WEAVER

v.Roger D. FIRESTONE.

1101403.

Supreme Court of Alabama.

Dec. 13, 2013.

Rehearing Denied June 20, 2014.

Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.

William Eugene Rutledge of Rutledge & Yaghmai, Birmingham; and John T. Natter of Natter & Fulmer, P.C., Birmingham, for appellee.

On Application for Rehearing

MURDOCK, Justice.

The opinion of January 11, 2013, is withdrawn, and the following is substituted therefor.

This Court granted Carl Weaver permission to appeal the Coosa Circuit Court's denial of his motion to dismiss the complaint filed against him by Roger D. Firestone. See Rule 5, Ala. R.App. P. Because the trial court correctly concluded that Firestone's action might not be time-barred and thus was not due to be dismissed at this stage of the proceeding on that ground, we affirm the trial court's order denying Weaver's motion to dismiss.

I. Facts and Procedural History

In August 2010, Charles Richard Tooley, L.C. Collins, Jr., and Mickie Wayne Collins pleaded guilty to the attempted murder of Firestone in May 1995. A few days after the guilty pleas, Firestone filed a complaint against Weaver; Tooley; Collins, Jr.; Collins; and fictitiously named parties A–M. According to the allegations of the complaint:

“8. In the spring of 1995, Weaver entered into a conspiracy with Tooley, Collins, Jr. and ... Collins and A through M. The conspirators agreed to conceal their relationship and their involvement in the said conspiracy. Thereafter, each of the conspirators concealed their involvement through fraud and deception.

“9. At approximately 5:00 a.m. on May 16, 1995, at a point off of Coosa County Road No. 55 approximately two miles southwest of Unity Crossroads, west of Weogufka in Coosa County, Alabama, said conspiracy was put into effect when Tooley, Collins, Jr., M. Collins, and A through M came to a cabin and camper located at said place and attacked [Firestone, Charles T. Amberson, Jr., and Darrell Thomas Coleman].

“10. The said Tooley, Collins, Jr. and ... Collins bound the hands and ankles of the said Firestone, Amberson, and Coleman with electrical wire, and then bound their hands and ankles with duct tape, sprayed their entire bodies and their surroundings in said cabin with lantern fuel and set them on fire.

“11. Amberson and Coleman subsequently died as a result of the burns suffered in said fire.

“12. After being set on fire, Firestone exited the cabin by jumping through a glass window, but was recaptured by the Defendants. He was then further assaulted and battered by the Defendants by being hit in the face and head several times with the butt of a shotgun, dragged back to the cabin, set on fire again, covered with plywood, and left for dead.

“13. As a proximate result of said tortious acts of the Defendants, [Firestone] was caused to suffer the following injuries and damages: the great majority of his body suffered second and third-degree burns

, requiring skin grafts to approximately 75% of his body, covering, but not limited to his chest, abdomen, arms, legs, back, penis and feet; one or both of his hands and one or both of his legs were permanently injured; his whole body was permanently injured; he was caused to be hospitalized at Chilton Medical Center and at University of Alabama Hospitals in Birmingham for approximately two and one-half months to treat his injuries; he incurred over $1,000,000.00 in medical bills to treat his injuries, and he will be caused to incur medical bills for treatment for the remainder of his life; he suffered immense pain as a result of said burns and has suffered pain from May 16, 1995, to the present as a result of said injuries and will suffer such pain for the remainder of his life; he is permanently disabled and cannot work; he suffered distress and discord in his marriage, which culminated in divorce and separation from his children; and he was caused to suffer extreme mental anguish as a result of said injuries and he will be caused to suffer such for the remainder of his life.

“14. Defendants, by fraud and deception, concealed from [Firestone] the identity of those who had battered him and set him on fire on May 16, 1995, and who had hired them to do so. [Firestone] did not discover who had physically perpetrated said acts until November 6, 2009. [Firestone] then learned that the Defendants Tooley, ... Collins and Collins, Jr. had physically caused him to be set on fire and to suffer said injuries. From the time of the fire and assault until November 6, 2009, ... Firestone made diligent efforts to learn who had assaulted him and why he had been assaulted, to no avail.

“....

“17.... Defendant Weaver organized and financed the conspiracy. The other Defendants agreed to carry out the object and purpose of the conspiracy, to maim, torture and kill [Firestone]. Defendants agreed that secrecy was an integral part of their agreement and conspiracy. Defendants agreed to take all possible steps and precautions to maintain the said secrecy and to shield from all others the identity of the conspirators. Defendants agreed that even if some of them were arrested and charged with the conspiracy or carrying out its objects and purposes, they would continue to keep secret the fact of the conspiracy and the identity of the conspirators.”

The complaint included claims that Weaver, Tooley, Collins, Jr., and Collins had conspired to “maim, torture, and kill” Firestone, had committed the tort of outrage, had committed an assault and battery on his person, and had attempted to murder him.

Also, recognizing that a question might exist as to whether his action was barred by the pertinent statutes of limitations, Firestone averred in his complaint:

“On August 9, 2010, Tooley, ... Collins, and Collins, Jr. pleaded guilty to attempted murder of [Firestone]. It was not until this date that [Firestone] discovered the identity of the [individuals] who had attacked him because of the fraudulent concealment of the conspiracy and the identity of the conspirators. [Firestone] avers that despite diligent efforts, he could not discover the identity of his attackers before August 9, 2010. [Firestone] has since August 9, 2010, further discovered the identity of Defendant [Carl] Weaver and his role in this matter. [Firestone] avers that none of the acts of [Weaver, Tooley, M. Collins, and Collins, Jr.,] are barred by the statute of limitations. [Firestone] avers that this action is brought against [these individuals] within the time allowed by Alabama law for bringing an action following discovery of facts which have been fraudulently concealed by defendants. [Firestone] further avers that any otherwise applicable statute of limitations has been equitably tolled until the reasonable efforts of [Firestone] to discover the identity of [these individuals] and that [Firestone] has brought this action in the time allowed by law following such discovery. [Firestone] further avers that no statute of limitations is applicable to this case under Alabama law because it is an action for damages for maiming and attempted murder with the relevant facts of the identity of [these individuals] deliberately concealed as a part of a conspiracy by [these individuals] to maim and murder [Firestone] and others. ”

(Emphasis added.)¹

Weaver filed a motion to dismiss Firestone's complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., and §§ 6–2–34 and 6–2–38, Ala.Code 1975. In his motion, Weaver argued that Firestone's claims were barred by the applicable statutes of limitations and that no tolling provision precluded the application of the time-bars. Specifically, Weaver argued that neither the discovery rule of § 6–2–3, Ala.Code 1975, nor the doctrine of equitable tolling was applicable to Firestone's claims.

After conducting a hearing on Weaver's motion to dismiss, the trial court denied the motion. The trial court specifically noted that Firestone “alleges in the complaint that he made diligent efforts to discover the identity of his assailants, but could not do so until they pleaded guilty and implicated Weaver.”²

II. Standard of Review

“The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985) ; Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail.

Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985) ; Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that 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. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986) ; Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).'

“Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).”

DGB, LLC v. Hinds, 55 So.3d 218, 223 (Ala.2010). “ ‘Inasmuch as the issue before us is whether the trial court correctly denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, “[t]his Court must accept the allegations of the complaint as true.” ’ ” Ex parte Walker 97 So.3d 747, 749 (Ala.2012) (quoting Ex parte Alabama Department of Youth Servs., 880 So.2d 393, 397 (Ala.2003) ).

III. Analysis

The petition for permission to appeal included a certification by the trial court of the following controlling question of law:

“In the absence of a possible confidential or other special relationship between the parties, can either the discovery rule of Ala.Code 1975, § 6–2–3, or the doctrine of equitable tolling be applied to extend the Plaintiff's time to file its lawsuit against the Defendant, when Plaintiff alleges in its personal

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