Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc.

• Decision Date: 11 July 1986
• Citation: 494 So.2d 614
• Parties: MARKS FITZGERALD FURNITURE CO. v. CLARKLIFT OF ALABAMA, INC. 85-169.
• Court: Alabama Supreme Court

Page 614

494 So.2d 614

MARKS FITZGERALD FURNITURE CO. v. CLARKLIFT OF ALABAMA, INC.

85-169.

Supreme Court of Alabama.

July 11, 1986.

Rehearing Denied Sept. 12, 1986.

Alex W. Newton and H. Thomas Heflin, Jr., of Hare, Wynn, Newell & Newton, Birmingham, for appellant.

Robert L. Williams, of Norman, Fitzpatrick, Wood, Wright & Williams, Birmingham, for appellee.

JONES, Justice.

This is an appeal from a summary judgment entered, pursuant to Rule 54(b), in favor of Clarklift of Alabama, Inc., on the ground that the applicable statute of limitations bars Marks Fitzgerald Furniture Company's action for fraud against Clarklift. We reverse and remand.

Because this is an appeal from a summary judgment, we review the record for evidence which would yield any inference in support of Marks Fitzgerald's claim creating a factual dispute for resolution by a jury. In other words, in order to reverse the summary judgment below, there must have been factual evidence presented by the pleadings and supporting affidavits so that the trial judge necessarily made findings of fact in order to grant the motion for summary judgment. See Ingram v. Akwell Industries, Inc., 406 So.2d 897 (Ala.1981). Therefore, we recite those facts most favorable to the argument of Marks Fitzgerald and from which must be inferred any disputed material fact. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978).

In September of 1976 Marks Fitzgerald purchased from Clarklift a Clark lift truck which was represented as having a total lifting capacity of 2,500 pounds. On May 19, 1981, an employee of Marks Fitzgerald was injured when the lift truck toppled over and threw the employee to the floor. On October 30, 1981, the injured employee filed a personal injury action in Jefferson County Circuit Court, naming as defendants Clarklift of Alabama and John and David Marks, president and vice-president of Marks Fitzgerald, respectively.

On November 5, 1981, John Marks was served with the summons and complaint in the personal injury action. John Marks did not read these documents, but delivered them to Marks Fitzgerald's liability insurance carrier, as was his customary procedure in handling such papers.

In December of 1982, the deposition of Stanley Jackson, president of Clarklift, was taken in the pending personal injury action. The attorney hired by the Marks Fitzgerald insurance carrier informed John Marks that Jackson testified that the lift truck in question had a lifting capacity of only 1,500 pounds. On February 23, 1983, Marks Fitzgerald filed a complaint in the Jefferson County Circuit Court, alleging that Clarklift and other defendants were guilty of fraud, breach of contract, and breach of warranty in the sale of the lift truck to Marks Fitzgerald. Clarklift's motion for summary judgment was granted as to the breach of warranty claim, but was denied as to the allegation of fraud. On reconsideration, however, the trial court entered a final order dismissing Clarklift as a party defendant, "it appearing to the court that the claim of fraud is barred by the statute of limitations."

Marks Fitzgerald raises one issue on this appeal: Based on the evidence before it, did the trial court err in granting Clarklift's motion for summary judgment on the fraud claim on the ground that it was barred by the statute of limitations?

A strict chronological view of the events leading up to this appeal would seem to support the trial court's conclusion. Clarklift points out that the injured employee filed suit on October 30, 1981, and alleged in his complaint that Marks Fitzgerald failed to warn him that the lift truck sold to Marks Fitzgerald by Clarklift had a load limit capacity of only 1,500 pounds rather than the represented 2,500 pounds. John Marks, president of Marks Fitzgerald, was served with the summons and complaint on November 5, 1981, less than one week after the personal injury suit was filed. It was not until February 23, 1983, approximately 16 months after receiving the summons and complaint in the injured employee's suit, that Marks Fitzgerald filed the instant action alleging fraud in the sale of the lift truck.

Recognizing that these circumstances would ordinarily preclude its fraud claim, Marks Fitzgerald contends that under § 6-2-3, Code of Alabama 1975, the statute of limitations for bringing an action for fraud is extended to one year after the discovery of the fact constituting the fraud. ¹ Here, argues Marks Fitzgerald, there was evidence before the trial court that Marks Fitzgerald learned of the lifting capacity discrepancy only...