Lewis v. Fraunfelder

• Decision Date: 12 May 2000
• Docket Number: 1982085
• Parties: Melinda L. Lewis v. Richard H. Fraunfelder 1982085 SUPREME COURT OF ALABAMA
• Court: Alabama Supreme Court

Melinda L. Lewis v Richard H. Fraunfelder

1982085

SUPREME COURT OF ALABAMA OCTOBER TERM, 1999-2000

05/12/00

Appeal from Mobile Circuit Court (CV-96-3431)

SEE, Justice.

Melinda L. Lewis appeals from the trial court's judgment dismissing her complaint against Richard H. Fraunfelder. Because the complaint states a claim upon which relief may be granted, we reverse and remand.

I.

In October 1996, Lewis filed this action in the Mobile Circuit Court against Fraunfelder and NationsBank of Delaware, N.A., alleging "civil mail fraud"¹ against Fraunfelder and libel against Fraunfelder and NationsBank. In her complaint, Lewis alleges that: (1) Fraunfelder moved into a house where she had previously lived; (2) Fraunfelder received credit-card applications and other items containing personal information that were mailed to her at that address; (3) Fraunfelder used those documents to obtain credit cards in Lewis's name and to incur debts in Lewis's name; and (4) NationsBank, the issuer of one of the credit cards, reported to Equifax Credit Information Services that the account information it had previously reported concerning that card was correct, despite the fact that Lewis had notified NationsBank that she did not have an account with NationsBank and that someone else had fraudulently obtained the credit card in her name.

In April 1997, in consideration of $20,000, Lewis settled and released her claim against NationsBank. In September 1997, Lewis, alleging that Fraunfelder had been adjudged guilty of credit-card fraud, a violation of 18 U.S.C. § 1029(a)(2), moved the trial court to amend her complaint to add a claim against Fraunfelder for "civil credit card fraud." The trial court granted that motion.

In October 1998, Fraunfelder filed with the trial court a motion to dismiss the complaint as it related to him, apparently asserting the ground that the complaint failed to state a claim upon which relief could be granted against him.² See Rule 12(b)(6), Ala. R. Civ. P. In January 1999, Fraunfelder filed with the trial court a motion for a summary judgment, asserting that Lewis had released her claims against him when she released her claim against NationsBank. He supported the motion with a copy of the release and settlement agreement. The case action summary sheet indicates that Fraunfelder's motion to dismiss was set for oral argument on February 12³ and that Lewis's attorney was "to submit [a] letter brief within a few days." Lewis's attorney did not submit a letter brief "within a few days." On February 17, the trial court entered an order on the case action summary sheet granting Fraunfelder's motion to dismiss.⁴ On March 16, Lewis moved the trial court to vacate its February 17 order and filed a brief addressing the issues raised in Fraunfelder's summary-judgment motion. On June 11, the trial court denied Lewis's motion to vacate the order of dismissal.

II.

Lewis argues that the trial court erred in dismissing her complaint as to Fraunfelder because, she argues: (1) Fraunfelder's motion to dismiss for failure to state a claim upon which relief can be granted was without merit; (2) the trial court could not properly consider matters outside the pleadings in dismissing the case because, she asserts, she did not receive notice, in accordance with Rule 56, Ala. R. Civ. P., that a summary-judgment motion was pending; and (3) in any event, Fraunfelder's summary-judgment motion was without merit. We agree with her first argument. The second argument is not preserved for our review because she did not raise it in the trial court. See Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988) ("[T]his Court will not reverse the trial court's judgment on a ground raised for the first time on appeal."). Lewis's third argument presents the question of how to properly treat Fraunfelder's motion to dismiss as granted by the trial court. This Court addressed this issue in Sims v. Lewis, 374 So. 2d 298, 302 (Ala. 1979), stating, "this court has, in several instances, `converted' a [Rule] 12(b)(6) motion into one for summary judgment when it has been apparent that the trial court, in ruling on the [Rule] 12(b)(6) motion, has considered matters outside the pleadings themselves." 374 So. 2d at 302. This Court further recognized in Sims that "the conversion may occur despite [the motion's] denomination and treatment by the trial court." Id. In Sims, although it was unclear from the record whether the trial court considered matters outside the pleadings, this Court analyzed the motion to dismiss as a motion for summary judgment because the appellant included in the record matters outside the pleadings. Similarly, in this case, where it is unclear from the record whether the trial court considered the release and settlement agreement filed in support of the motion for summary judgment, we consider that material, which Lewis included in the record, in determining whether the trial court erred in dismissing her complaint.

Lewis argues that the trial court erred in granting Fraunfelder's motion to dismiss because, she argues, her complaint stated claims cognizable pursuant to Ala. Code 1975, § 6-5-370. We agree.

"When reviewing a trial court's dismissal of a complaint for failure to state a claim upon which relief can be granted, this Court, in determining the sufficiency of the complaint, construes the plaintiff's allegations in favor of the plaintiff and resolves all doubts concerning the sufficiency of the complaint in favor of the plaintiff. See Boswell v. Liberty Nat'l Life Ins. Co., 643 So. 2d 580, 581 (Ala. 1994). `"`In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail.'"' Id. (quoting Grant v. Butler, 590 So. 2d 254, 255 (Ala. 1991) (quoting Greene County Bd. of Educ. v. Bailey, 586 So. 2d 893 (Ala. 1991))) (emphasis added in Grant). Thus, `"`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.'"' Id."

Bethel v. Thorn, [Ms. 1972267, Oct. 29, 1999] ___ So. 2d ___ (Ala. 1999).

Pursuant to § 6-5-370, "[f]or any injury, either to person or property, amounting to a felony, a civil action may be commenced by the party injured without prosecution of the offender." Lewis's complaint alleges that Fraunfelder committed two felonies -- mail fraud, see 18 U.S.C. §§ 1341, 1342, and credit-card fraud, see 18 U.S.C. § 1029(a)(2) -- and that she was injured by Fraunfelder's felonious conduct. Therefore, Lewis's complaint does state a cause of action and was not due to be dismissed for failure to do so.

Lewis also argues that Fraunfelder's summary-judgment motion based upon the release and settlement agreement is without merit and that the trial court could not properly have dismissed her complaint on that basis. We agree.

Fraunfelder argues that, because the release Lewis signed, pursuant to her settlement with NationsBank, did not specifically reserve her claims against Fraunfelder, it released her claims against him. Fraunfelder relies on Baker v. Ball, 473 So. 2d 1031 (Ala. 1985), for the proposition that, unless a cause of action is specifically reserved against another tortfeasor, the release of one tortfeasor releases all tortfeasors. See 473 So. 2d at 1035 ("[B]y executing a general release, like the one signed by the Bakers, a party releases all tortfeasors against whom a cause of action is not specifically reserved, regardless of whether those tortfeasors are parties to the release or are expressly mentioned therein."). However, Fraunfelder's reliance on Baker is misplaced.

Pursuant to Ala. Code 1975, § 12-21-109, "[a]ll receipts, releases and discharges in writing ... must have effect according to their terms and the intentions of the parties thereto." Baker does not stand for the proposition that the failure to specifically reserve a cause of action against another tortfeasor, when that other tortfeasor is not a joint tortfeasor, somehow turns a release of one tortfeasor into a general release. In Baker, the plaintiffs sued a real-estate listing agent, alleging that the agent "had negligently failed to ensure restoration of their Veterans Administration loan eligibility and to ensure their release from mortgage liability." 473 So. 2d at 1033. They settled that action and signed a document whereby they released their claims against "any and all ... persons ... on account of or in any manner growing out of or arising from" the real-estate transaction. 473 So. 2d at 1033-34. Later, they sued an attorney, "alleging essentially the same things they had alleged against" the listing agent. 473 So. 2d at 1034. This Court held that, given effect according to the intention of the parties as determined from the release itself, the plaintiffs' general release, which explicitly named the listing agent but not the attorney, operated as a release of the attorney as well. 473 So. 2d 1031.

Baker is easily distinguishable from the present case. The release Lewis signed provides, in pertinent part:

"Lewis agrees to now and forever, fully and finally release, acquit and discharge NationsBank and all its officers, directors, shareholders, representatives, attorneys, predecessors, successors, parent companies, subsidiaries, affiliated companies, heirs, assigns, agents and employees, from any and all claims, liability, damages, injuries, causes of action, demands and/or losses, known or unknown, of any kind or character, now accrued or hereafter to accrue, arising out of, or related in any way to, the alleged actions by NationsBank at issue in the above-referenced litigation ...."⁵

Thus, unlike the release at issue in Baker, the release Lewis signed clearly indicates that she intended to release only her claims against NationsBank and any others who could be vicariously or derivatively liable for...