Jacks v. Madison County

• Decision Date: 20 August 1999
• Citation: 741 So.2d 429
• Parties: Helen Faye JACKS v. MADISON COUNTY.
• Court: Alabama Court of Civil Appeals

741 So.2d 429

Helen Faye JACKS v. MADISON COUNTY.¹

2980821.

Court of Civil Appeals of Alabama.

August 20, 1999.

C. Wayne Morris, Huntsville, for appellant.

J. Jeffery Rich of Sirote & Permutt, P.C., Huntsville, for appellee.

ROBERTSON, Presiding Judge.

Helen Faye Jacks appeals from a judgment of the Madison County Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala. R.Civ.P., her complaint against Madison County ("the county"). We affirm.

The standard of review of the grant of a motion to dismiss pursuant to Rule 12(b)(6) was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) 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)."

According to Jacks's complaint, in 1993 a Madison County commissioner approached her and her former husband about building a water storage tank on one of two parcels of property that Jacks and her former husband jointly owned at the time, but which were later awarded solely to Jacks in a divorce action. The complaint further alleged that Jacks had agreed to permit the county to build a water storage tank on a parcel of her property on the condition that the county "fence in" the tank and build and maintain a public road leading to the tank that traversed other land that she owned so as to assist in the development of residential lots on that land. The complaint averred that the tank had been built in 1993, but that in doing so the county had cut an access road on land other than the two parcels allegedly agreed upon, causing the destruction of hundreds of hardwood trees; additionally, the complaint stated that the public road contemplated by the parties had not been built at that time. The complaint further alleged that in 1996, the county's attorney had confirmed the parties' purported 1993 contract in a letter addressed to an attorney representing Jacks, and that Jacks had deeded the two subject parcels to the county to be held in escrow until the road was constructed; however, the county had since refused to build the public road allegedly agreed upon.

Jacks's complaint contained four counts. Count one alleged that the county had breached the parties' purported 1993 contract by taking land from her without just compensation; by destroying trees on portions of her land; by failing to build the public road to the water tank so as to facilitate residential development of other land she owned; and by failing to prevent trespassing upon her property. Count two alleged that the county had made fraudulent misrepresentations in order to induce her to convey her property to the county. Count three of the complaint stated that the county had trespassed upon her land by building the water tank on a parcel of her property, by constructing the access road across other portions of her property to facilitate the construction of the tank, and by later placing a gate and a fence across the access road. Finally, Count four alleged that the installation of the water tank, the access road, and the county's later installation of a gate and a fence across the access road constituted private nuisances.

Attached to Jacks's complaint was a photocopy of a verified claim she had presented to the county on August 25, 1998, pursuant to § 11-12-5, Ala.Code 1975. In her verified claim, Jacks alleged that she owned 1.82 acres of land in Madison County and that she had negotiated a contract with the county wherein she would execute a deed conveying the 1.82 acres to the county in consideration of the county's construction of a public road across her land. Her claim further stated that the deed to the 1.82 acres was to be held in escrow until the road was constructed, and that if the road was not constructed within one year of June 5, 1996, the deed to the 1.82 acres and the water tank would revert to her. She also alleged that the county had constructed a logging access road on land other than the 1.82 acres conveyed. Jacks alleged that due to the county's breach of that contract, she had been unable to develop residential lots along the road that was to have been built by the county, that she had been denied just compensation for the real estate taken, and that she had been injured and damaged by the county's alleged contractual breach in the amount of $500,000. However, Jacks's claim did not allege that the continued presence of the water tank constituted a nuisance or a continuing trespass.

The county moved to dismiss the complaint for failure to state a claim upon which relief could be granted, alleging that all of Jacks's causes of action had accrued more than 12 months before August 25, 1998, the date she presented her verified claim to the county, and that her judicial claims were therefore barred by § 11-12-8, Ala.Code 1975, which states that "[a]ll claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred." The trial court agreed with the county, and entered a judgment dismissing the complaint.

Jacks appealed from the trial court's judgment to the Alabama Supreme Court. That court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Jacks contends that the trial court erroneously dismissed her complaint because, she says, she presented her verified claim to the county within 12 months of the accrual of her breach of contract, fraudulent misrepresentation, trespass, and nuisance causes of action. The county contends that the trial court correctly concluded that Jacks's causes of action accrued more than 12 months before her verified claim was presented to the county.

Section 6-5-20, Ala.Code 1975, states that no action may be commenced against a county until a claim has been presented to the county commission and has been either (1) disallowed, or (2) reduced, where the reduction is refused by the claimant. As stated previously, § 11-12-8 requires that such a claim be presented within 12 months of the accrual of the claimant's cause of action, and the failure to present such a claim to the county within that period is a bar to a subsequent civil action on that claim. See Health Care Auth. v. Madison County, 601 So.2d 459, 462 (Ala.1992).

The nature and purpose of § 11-12-8 were summarized by the Alabama Supreme Court in Chumney v. Houston County, 632 So.2d 1328 (Ala.1994):

"In Groeschner v. Mobile County, 512 So.2d 70, 72 (Ala.1987), we restated with approval the purpose of § 11-12-8, which is `to prevent and guard against excessive and embarrassing demands on the revenue of a particular year, growing out of occurrences in the too distant past.' We held in Groeschner that the statutory requirement that a claim be presented to the county commission was a condition precedent to the maintenance of an action against the county. 512 So.2d at 72. In Garner v. Covington County, 624 So.2d 1346, 1354 (Ala.1993), we recently acknowledged the legislature's power to pass laws regulating municipal and county liability.

"`Section 11-12-8, which bars claims against the county not presented within 12 months from the time they accrue, is actually a statute of nonclaim.' Groeschner, 512 So.2d at 72. The motivation behind the creation of a statute of nonclaim in addition to a statute of limitations was to provide county governments with a broader defense than that provided by the statute of limitations, to bar not only remedies but also to extinguish debts and liabilities. Ivory v. Fitzpatrick, 445 So.2d 262, 264 (Ala.1984). Statutes of nonclaim and statutes of limitations `are separate and distinct, and embrace scopes of policy not commensurate, but, in many particulars, essentially diverse.' Ivory v. Fitzpatrick, 445 So.2d at 264, quoting Yniestra v. Tarleton, 67 Ala. 126 (1880)."

632 So.2d at 1329. In determining whether the trial court correctly concluded that Jacks did not comply with § 11-12-8, we must consider precisely when the causes of action alleged in the counts of her complaint "accrued," an analysis most often undertaken in connection with statutes of limitation. See § 6-2-30(a), Ala.Code 1975 (providing that all civil actions must be brought within the statutory limitations period after the cause of action has accrued).

I. Breach of contract

A breach-of-contract cause of action "accrues" when the contract is breached, rather than when the contract is entered into or when damage is sustained. AC, Inc. v. Baker, 622 So.2d 331, 333 (Ala. 1993); Stephens v. Creel, 429 So.2d 278, 280 (Ala.1983). According to the complaint and the attached exhibits, the parties' alleged 1993 agreement that the county would build a public road over Jacks's land at some time in exchange for permission to build a water tank was modified with the parties' express consent in 1996, when the county agreed to construct the road within a year of June 5, 1996, in exchange for Jacks's execution of a deed...