Crowder v. Memory Hill Gardens, Inc.

• Decision Date: 02 October 1987
• Citation: 516 So.2d 602
• Parties: Evelyn R. CROWDER v. MEMORY HILL GARDENS, INC., et al. 86-676.
• Court: Alabama Supreme Court

Page 602

516 So.2d 602

Evelyn R. CROWDER v. MEMORY HILL GARDENS, INC., et al.

86-676.

Supreme Court of Alabama.

Oct. 2, 1987.

Rehearing Denied Nov. 6, 1987.

C. Delaine Mountain, Barbara W. Mountain, and Vickie E. House of Mountain & Mountain, Tuscaloosa, for appellant.

Sam Phelps of Phelps, Owens, Jenkins, Gibson & Fowler and Wilbor J. Hust, Jr. of Zeanah, Hust & Summerford, Tuscaloosa, for appellees.

JONES, Justice.

The plaintiff, Evelyn Crowder, appeals from a partial summay judgment, made final pursuant to Rule 54(b), A.R.Civ.P., dismissing the plaintiff's claims based on fraud and outrageous conduct. We affirm as to the outrage claim and reverse as to the claim for fraud.

On September 9, 1982, the plaintiff and her husband, James Crowder, signed a contract to purchase from Memory Hill Gardens, Inc. ("Memory Hill"), two cemetery plots, one bronze memorial plate, and two burial vaults. Mrs. Crowder claims that she and her husband were induced to enter this contract by Booker Campbell, an employee of Memory Hill, who told the Crowders that, with the execution of this contract, they would receive a certificate entitling them, upon presentment, to a 20% discount on funeral services rendered by Memory Chapel Funeral Homes, Inc. ("Memory Chapel"). ¹

Several days after executing the contract, the Crowders received a letter on Memory Hill letterhead, signed by defendant M.B. (Morgan) Brown as manager of Memory Hill. Enclosed with the letter was a payment book and the 20% discount certificate. The certificate read, in bold letters:

"THE BEARER OF THIS CERTIFICATE, UPON PRESENTATION, IS ENTITLED TO A 20 PERCENT DISCOUNT ON FUNERAL SERVICES RENDERED BY MEMORY CHAPEL FUNERAL HOME

"This Certifies that James F. Crowder and/or Evelyn R. Crowder (wife) is the purchaser and/or owner of Crypt No _____ Lot No. 60-D 1-2, Section Prayer, and is entitled to a Twenty Percent Discount on Funeral Services when rendered by Memory Chapel Funeral Home." (Capitalization in original.)

The certificate was authorized and endorsed by M.B. Brown as agent of Memory Chapel. In the lower left corner of the certificate appeared the following statement: "Memory Chapel Corporation reserves the right to cancel or recall this certificate, if for any reason it deems advisable." Mrs. Crowder testified during her deposition that she did not notice this language on the certificate when it arrived in the mail and that she put the certificate into a folder that Campbell had given her. She also stated that, prior to her husband's death, she received no notice either of cancellation or recall of the discount certificate.

James Crowder died on August 24, 1985. On August 25, 1985, Mrs. Crowder and several of her children met with Brown to make arrangements for Mr. Crowder's funeral. Mrs. Crowder presented her 20% discount certificate to Brown, but he refused to honor it. From Brown's office the family went to another building that housed the office of Memory Hill. There they met with Jerry Robinson, manager of Memory Hill, to make the cemetery arrangements for Mr. Crowder's funeral. During this discussion, James Crowder, Jr., showed the discount certificate to Robinson. Robinson told the family that the certificate did not apply to the cemetery and that he was unaware that the certificate was not being honored with respect to services being rendered by the funeral home.

Mrs. Crowder and her son James both testified in deposition that Brown said that the new owner of the funeral home was refusing to honor the certificates because they had been issued by the previous owner. During his deposition, Brown stated that, although he had not been ordered to do so, he had refused to honor Mrs. Crowder's discount certificate because Memory Chapel was under new ownership and he did not know whether Jim Moore, the new owner, would continue to honor the certificates; and because the Federal Trade Commission had recently assumed the regulation of funeral homes and Brown was not sure what he could or could not do under FTC rules. Therefore, testified Brown, he decided to stop honoring the certificates "on the backup until ... [he] knew what [Memory Chapel] could do." Brown also stated, however, that he did not contact the FTC to inquire whether the certificates were valid under the FTC's regulations, and that he had never received or read a copy of any FTC rules.

Additional testimony elicited from Mrs. Crowder and her sons, James and Jerry, during their depositions revealed that Jerry Crowder's brother-in-law, Virgil Ray, had died two days before Mr. Crowder died. Ray's parents presented an identical 20% discount certificate to Memory Chapel and it, too, was dishonored. M.B. Brown testified, however, that because Ray's family complained about the cancellation of the certificate, he and Jim Moore, the owner of Memory Chapel, agreed to honor the certificate. Brown went on to say that he would have honored Mrs. Crowder's certificate if she had acted as Ray's family did or if she had come back and requested that he reconsider his decision not to honor the certificate. He did not, however, contact Mrs. Crowder at a later time to inform her that Memory Chapel had resumed honoring the certificates.

Mrs. Crowder filed suit on January 30, 1986, against Memory Hill, Memory Chapel, and later, by amendment, M.B. Brown, alleging breach of contract, fraud, and outrage. On January 5, 1987, the trial court granted the defendants' motions for partial summary judgment as to the claims for fraud and outrage. Mrs. Crowder filed a second amended complaint on January 7, 1987, adding counts IV, V, and VI, and again alleging fraud, but setting out more specifically both the actions of the defendants upon which her claims were based and the damages alleged to have resulted therefrom. The trial court granted the defendants' motions for summary judgment as to these added claims, ² and made the partial summary judgment final, pursuant to Rule 54(b), A.R.Civ.P. Mrs. Crowder appeals, contending that her claims for fraud and outrage should not have been disposed of by summary judgment. We agree as to the fraud claim and disagree as to the outrageous conduct claim.

To show an entitlement to summary judgment, the movants bear the heavy burden

" 'of clearly showing that ... there is an absence of a genuine issue as to any material fact. The moving party must be entitled to the ... judgment as a matter of law. Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the nonmovant.'

"Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981) (citations omitted). See Day v. Merchants Nat'l Bank of Mobile, 431 So.2d 1254, 1256 (Ala.1983).

"By the same token, a summary judgment motion, properly supported as provided for under Rule 56(e), Alabama Rules of Civil Procedure, must be granted 'unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial.' Butler, 402 So.2d at 951." Berkel & Co. Contractors v. Providence Hospital, 454 So.2d 496, 501 (Ala.1984).

Mrs. Crowder argues that because she provided factual evidence in opposition to the defendants' motions for summary judgment, summary judgment was inappropriate in disposing of her claim of fraud. According to both statutory and case law in Alabama, says Mrs. Crowder, the acts of the defendants clearly amounted to actionable fraud and the evidence before the trial court was sufficient to create an issue of material fact as to whether written and oral representations made to Mr. and Mrs. Crowder by the defendants were indeed fraudulent.

The elements of an actionable fraudulent representation are 1) a false representation 2) concerning a material existing fact, which was 3) relied upon by the plaintiff 4) to his detriment. § 6-5-101, Ala. Code 1975; International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). The suppression of a material fact, in order to amount to fraud, must include 1) the suppression of a material fact 2) that the defendant was under a duty to communicate 3) either because of a confidential relation between the plaintiff and the defendant or because of the particular circumstances of the case. § 6-5-102, Ala. Code 1975; Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969).

In order to establish a cause of action under either of these two statutes, the plaintiff must produce evidence of a present intent on the part of the defendant to deceive the plaintiff either by the misrepresentation of an existing material fact or by the suppression or active concealment of an existing material fact. See Berkel, supra, 454 So.2d at 505; Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983); Kaye v. Pawnee Construction Co., 680 F.2d 1360 (11th Cir.1982). Further, the...