Kimbrel v. Mercedes-Benz Credit Corp., MERCEDES-BENZ

• Decision Date: 06 September 1985
• Docket Number: MERCEDES-BENZ
• Citation: 476 So.2d 94
• Parties: Lynn KIMBREL v.CREDIT CORPORATION. 84-286.
• Court: Alabama Supreme Court

Page 94

476 So.2d 94

Lynn KIMBREL v. MERCEDES-BENZ CREDIT CORPORATION.

84-286.

Supreme Court of Alabama.

Sept. 6, 1985.

E. Ray Large and Hub Harrington, Birmingham, for appellant.

William B. Hairston, Jr. of Engel, Hairston, Moses & Johanson, Birmingham, for appellee.

MADDOX, Justice.

The issue in this case is whether the trial court erred in granting summary judgment in favor of defendant Freightliner Credit Corporation (now Mercedes-Benz Credit Corporation) against plaintiff Lynn Kimbrel, who had sued the credit company for wrongful repossession, conspiracy, conversion, and breach of warranty. Although other defendants were named in the complaint, as amended, the appeal is taken only as to the defendant Freightliner. We affirm.

Kimbrel is a truck driver. On November 18, 1981, he entered into a contract with Liberty Truck Sales to purchase a new tractor. He negotiated only with employees of Liberty Truck Sales, and at no time prior to the sale did he have any contact with any employees or representatives of Freightliner Credit Corporation (Freightliner).

Kimbrel made a down payment of $3,000, in cash, and traded in his 1976 tractor, valued by both parties at $7,700. Freightliner financed the balance of the sale price and Kimbrel agreed to pay monthly installments to Freightliner.

Kimbrel took possession of the tractor and began hauling freight with it. Soon thereafter, the tractor broke down and Kimbrel returned the tractor to Liberty for repairs. While the tractor was in Liberty's shop, Kimbrel missed the first installment payment, due on December 18, 1981, and Freightliner repossessed the tractor, holding it on Liberty's premises. Liberty, under instructions from Freightliner, refused to return the tractor to Kimbrel.

Kimbrel filed his original complaint in the Circuit Court of Jefferson County on February 5, 1982, against Liberty, Freightliner, and the Caterpillar Company, the maker of the engine in the tractor. In Count One of his complaint, he alleged conversion against Liberty and Freightliner. In Count Two, he charged the defendants with conspiracy to deprive him of his down payment and his trade-in. Count Three was against Caterpillar. The count against Caterpillar was dismissed, with leave to amend. Motions to dismiss by the other defendants were denied.

On September 2, 1983, Kimbrel filed his first amended complaint, substituting it for his original complaint. This complaint consisted of Counts A through E, and in it Kimbrel claimed damages against Freightliner and Liberty for conversion, commercially unreasonable repossession, breach of express warranties, and wrongful repossession. Count E was a claim against Caterpillar. Count "F" was added by amendment on May 30, 1984. This count alleged breach of warranty against Freightliner. Kimbrel added Counts G and H, by amendment, on July 17, 1984. In Count G, he alleged fraud on the part of Freightliner that induced him to enter into the contract with Liberty. In Count H, he charged Freightliner with conversion based on this alleged fraudulent conduct.

On July 17, 1984, the court granted Mercedes-Benz's motion for summary judgment as to Counts A through D of the substituted complaint.

Kimbrel made a final amendment on July 27, 1984, in which he amended Counts G and H and added Count I. Count I claimed damages from Freightliner based upon alleged assertions made to him by employees of Liberty prior to the signing of the sales contract.

On November 2, 1984, a final judgment was granted in favor of Freightliner. Kimbrel appeals to this Court.

I

Final summary judgment was rendered in favor of defendant Freightliner Credit Corporation upon a finding that there existed no genuine issues of material fact. The trial court held that Count G and Count H of plaintiff's complaint "[d]id not 'relate back' under Rule 15(a), Ala.R.Civ.P., and consequently, being brought more than one year after the accrual of the fraud claims set forth therein, [were] barred by the applicable one year statute of limitations."

Kimbrel claims that the trial court erred in refusing to allow him to amend to add Counts G and H, which alleged fraud arising out of alleged misrepresentations made to him in connection with his purchase of the tractor. He contends that his amendment should relate back because it arises out of the same transaction or occurrence set forth in his original complaint.

The original complaint alleges that Freightliner and Liberty conspired to deprive Kimbrel of his down payment by selling him a defective tractor, and by wrongfully repossessing the tractor. No allegation of fraud is made in the original complaint. In his amended complaint, Kimbrel alleges that agents of Liberty Truck Sales made misrepresentations during the sales transaction. Of course, at this time, Kimbrel had had no contact with Freightliner, and further, Freightliner and Liberty are separate entities.

We find the factual situation here not unlike that presented in Bank of the Southeast v. Jackson, 413 So.2d 1091 (Ala.1982), and the cases therein cited. In Bank of the Southeast, the original complaint was based upon the dishonoring of a letter of credit. After the statute of limitations had run, plaintiffs attempted to amend their complaint by adding a count charging fraud in the dishonoring of the letter of credit. This Court upheld the trial court in refusing to permit the amendment, stating:

"[A]ny proof of fraud in the case at bar would entail proof of facts not remotely suggested in the prior pleadings which dealt with an alleged dishonor of the letter of credit."

413 So.2d at 1093.

Similarly, there was no indication in Kimbrel's original complaint that Freightliner would have to defend itself...