Armstrong v. Brown Service Funeral Home West Chapel

• Decision Date: 11 April 1997
• Citation: 700 So.2d 1379
• Parties: Nora ARMSTRONG and Clarence Rowlins v. BROWN SERVICE FUNERAL HOME WEST CHAPEL. 2951290.
• Court: Alabama Court of Civil Appeals

Page 1379

700 So.2d 1379

Nora ARMSTRONG and Clarence Rowlins v. BROWN SERVICE FUNERAL HOME WEST CHAPEL.

2951290.

Court of Civil Appeals of Alabama.

April 11, 1997.

Rehearing Denied May 23, 1997.

Certiorari Denied Aug. 15, 1997

Alabama Supreme Court 1961491.

J. Gusty Yearout and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and Mac Parsons, Bessemer, for appellants.

Garrick L. Stotser of Massey & Stotser, P.C., Birmingham, for appellee.

RICHARD L. HOLMES, Retired Appellate Judge.

The plaintiffs appeal from the dismissal of their claims of the unauthorized practice of law and of fraud by suppression.

In December 1995 Nora Armstrong and Clarence Rowlins (plaintiffs) filed a complaint against Brown Service Funeral Home West Chapel (defendant), alleging that the defendant had engaged in the unauthorized practice of law, pursuant to Ala.Code 1975, § 34-3-6. Specifically, the plaintiffs alleged that they entered into a contract with the defendant for the burial of Robert Louis Armstrong; that the defendant charged them a fee of $175 in connection with the assistance of preparing certain legal forms; that the preparation of the forms constituted the unauthorized practice of law, as well as fraud by suppression; and that the contract between the parties is void as a result thereof. The plaintiffs further sought to have the trial court certify the case as a class action, pursuant to Rule 23, Ala. R. Civ. P.

On January 26, 1996, the defendant filed a motion to dismiss the plaintiffs' claims, pursuant to Rule 12(b)(6), Ala. R. Civ. P. On February 16, 1996, the trial court granted the defendant's motion. Thereafter, the plaintiffs filed a post-judgment motion, which was denied.

The plaintiffs appeal. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).

The dispositive issue on appeal is whether the trial court erred in granting the defendant's motion to dismiss. We find that it did.

At the outset we would note that our supreme court, in Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985), stated the following well-settled standard of review applicable to motions to dismiss:

"It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed. Childs v. Mississippi Valley Title Insurance Co., 359 So.2d 1146 (Ala.1978).

"Where a [Rule] 12(b)(6) [, Ala. R. Civ. P.,] motion has been granted and [the appellate] [c]ourt is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, [the appellate] [c]ourt does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982)."

(Emphasis in original.)

After applying the above-stated standard of review to the instant case, we are not convinced that the plaintiffs would be unable to recover against the defendant under any cognizable theory of law or under any given set of facts. The contract between the plaintiffs and the defendant clearly indicates that the plaintiffs were charged a fee of $175 for "ASSISTANCE WITH SOCIAL SECURITY, LEGAL & INSURANCE FORMS."

The defendant argues that the only forms it prepared for the plaintiffs were the Social Security form and the death certificate which, it says, is a service that it is allowed to perform under Alabama law. The defendant also contends that the plaintiffs did not pay any consideration under the contract. The plaintiffs did present evidence, however, that they gave the defendant a burial policy and a vault policy which, they say, constituted some consideration. The plaintiffs also contend that the defendant may have completed other forms. Based on the language contained in the contract, we conclude that there exists a question of fact as to what type of "legal" forms the defendant actually prepared for the plaintiffs.

We find it interesting to note that, according to an article published in the Alabama Lawyer, the unauthorized practice of law in Alabama is "rampant" and is occurring in virtually every county. See L....