Sims v. Lewis

Citation374 So.2d 298
PartiesDouglas H. SIMS and Clara Mae Sims v. Douglas H. LEWIS and Sue A. Lewis et al. 78-424.
Decision Date24 August 1979
CourtSupreme Court of Alabama

Gary D. Porter and A. Holmes Whiddon, Mobile, for appellants.

John Earle Chason, Bay Minette, for appellees.

MADDOX, Justice.

This appeal involves the propriety of the trial court's granting a motion to dismiss a complaint in which the buyers of a new house alleged the breach of an implied warranty and fraud by the seller. The trial court's judgment was based on the ground that the action was barred by the statute of limitations and laches.

In their original complaint filed on May 11, 1978, the plaintiffs named as defendants the builder-vendor and several other defendants, who were dismissed as parties. The plaintiffs prosecute this appeal only against the defendants-appellees, Douglas H. and Sue A. Lewis.

The basic facts underlying the action are relatively uncontroverted: Appellants purchased a house constructed and offered for sale by appellees. When negotiations for purchase began in early 1972, the house was then still in the process of construction. The buyers apparently moved into the house upon its completion, but before actually purchasing it. The dwelling itself is located in a subdivision which, because of its location, does not have central sewerage facilities. Each individual dwelling has a septic tank and field line system for waste disposal.

The septic system was actually constructed by a subcontractor. A health department permit had been issued for the construction, based upon soil tests conducted by an engineering firm (the health department and engineering firm were both named as original defendants). The disposal system apparently conformed to applicable guidelines of the Farmers' Home Administration, which financed appellants' purchase.

In June, 1977, almost six years after the purchase of the home, the septic system malfunctioned. Sewage backed up into appellants' house through the plumbing, and the seepage of sewage surfaced in their yard. Appellants claimed this was the first major problem with the system. 1

The problem with the system evidently stems from saturation of the septic field with ground water.

Appellants instituted this action on May 11, 1978. Their complaint was dismissed as to these appellees in February, 1979. On this appeal, appellants urge two grounds of error: (1) the trial court erred in dismissing the action for failure to state a claim, and (2) the action is not barred by the statute of limitations.

Appellants initially contend that the trial court erred in sustaining appellees' motion to dismiss for failure to state a claim upon which relief could be granted. ARCP Rule 12(b)(6). They argue that the complaint is sufficient to state a claim under implied warranty and fraud. Appellees counter by contending that the effect of appellants' argument is to make them "insurers" against all defects caused by future, unforeseen changes in the surroundings, and that, at any rate, appellants did not sufficiently allege or show fraud.

Before discussing the main issue, we point out a procedural irregularity for the benefit of the trial court here and the bench and bar in general. Neither party treated this procedural issue in briefs. It involves the propriety of granting a 12(b)(6) motion after an answer and a motion for summary judgment have been filed. Chronologically, appellants filed the action on May 11, 1978; from the record, it appears that subsequent to this, in June, 1978, appellees filed an answer And motion for summary judgment supported by several affidavits. Appellants filed a counter-affidavit, and it appears that the trial court took the motion for summary judgment under advisement, but never subsequently ruled on it. In December, 1978, appellees filed with the court a 12(b)(6) motion to dismiss, and urged two affirmative defenses, laches and statute of limitations. This motion was granted, and the action dismissed in February, 1979.

Acceptance by the court of a 12(b)(6) motion After the close of the pleadings (ARCP Rule 7(a)) is technically and procedurally erroneous. Rule 12(b) provides that a motion asserting the defense of failure to state a claim "shall be made before pleading if a further pleading is permitted." Wright and Miller state:

"A motion under Rule 12(b)(6) raising the defense of failure to state a claim upon which relief may be granted must be made before the service of a responsive pleading but according to Rule 12(h)(2) the defense may be made as late as trial. Technically therefore, a post-answer Rule 12(b)(6) motion is untimely and some other vehicle, such as a motion for judgment on the pleadings or for summary judgment must be used to challenge the failure to state a claim for relief."

5 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1357, at 593 (1969). As indicated in the above excerpt, Rule 12(h)(2) "protects" a 12(b) (6) defense from waiver, if not raised in the pleadings by allowing the defense to be made "in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits," ARCP Rule 12(h) (2). Wright and Miller are of the opinion that this should be construed liberally ("within the spirit, if not the letter, of the provision"), although some courts hold the instances listed in 12(h)(2) to be the only points at which the 12(b)(6) defense may be asserted. Wright and Miller, supra, § 1392 at 861 Et seq. While this Court has not passed specifically upon the issue as to when a 12(b)(6) motion should properly be made, the Court of Civil Appeals has stated that though "this defense, as enumerated in Rule 12(b)(6), is preserved by Rule 12(h)(2), it cannot be raised by a motion to dismiss filed subsequent to a responsive pleading." Trotter v. Sumner, 56 Ala.App. 87, 89, 319 So.2d 284, 285 (1975). The 12(b)(6) motion should not be used to test the sufficiency of a complaint after a responsive pleading has been filed. The proper, and indeed correct, method to raise a failure to state a claim at this point would be a motion for judgment on the pleadings, or summary judgment.

A second, related procedural point is the introduction of the defenses of limitations and laches, which were appended to the 12(b)(6) motion. Limitations and laches are both affirmative defenses which should be set forth "(i)n pleading to a preceding pleading," ARCP Rule 8(c), and the failure to plead such defenses can result "in a waiver of that defense, and its exclusion from the case," Wright and Miller, supra, § 1278 at 339. Waiver is seldom applied "automatically" due to the liberal amendment provisions of Rule 15 which allow a party to amend his pleading at any point "subject to disallowance on the court's own motion or motion to strike of an adverse party." Amendments are "freely allowed when justice so requires," the adverse party having time to answer to the amendments. In the instant case, appellees' answer did not contain the defenses of laches and limitations which were later raised in the 12(b)(6) motion. At that point, appellants conceivably could have moved to strike these affirmative defenses, but did not, and did not file any subsequent answers to them. The courts seem now to agree that limitations and laches may indeed be raised on a 12(b)(6) motion where the face of the complaint shows that the claim is barred by the statute of limitations, and/or laches, Wright and Miller, supra, § 1277 at 336; see McGruder v. B. & L. Construction Company, Inc., 293 Ala. 354, 303 So.2d 103 (1974). We hold that while the defenses of laches or limitations should be presented in a pleading to a preceding pleading, both may be properly raised via the 12(b)(6) motion where the face of the complaint shows that the claim is barred.

There remains for the court the question of how to properly treat the 12(b)(6) motion as granted by the trial court. This court has, in several instances, "converted" a 12(b)(6) motion into one for summary judgment when it has been apparent that the trial court, in ruling on the 12(b)(6) motion, has considered matters outside the pleadings themselves. See, e. g., Thorne v. Odom, 349 So.2d 1126 (Ala.1977). This conversion of a motion to dismiss into one for summary judgment is, of course, in accordance with the last sentence of Rule 12(b), which states:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, Matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . ." (Emphasis added.)

In this regard, the conversion may occur despite its denomination and treatment by the trial court. Papastefan v. B. & L. Construction Co., Inc. of Mobile, 356 So.2d 158, 160 (Ala.1978). The effect of such a conversion to summary judgment would be to impose upon appellees the burden of demonstrating the "conjunctive" standard that there is no genuine issue of material fact, And that appellees are entitled to judgment as a matter of law. McGuire v. Wilson, 372 So.2d 1297 (Ala.1979).

The parties argue the issue in the briefs from the point of view apparently that the motion was properly a 12(b)(6) motion; in fact, appellants, in their notice of appeal to this court, characterize the ruling appealed from as "summary judgment." It is evident that affidavits were Earlier submitted in support of appellees' original motion for summary judgment, which was never ruled upon; there is no indication, however, that the trial court considered these in making its determination on the 12(b)(6) motion. The court gives no real indication of the basis of the decision except that it "duly considered the motion together With the arguments of counsel." (Emphasis added.)

In some instances, briefs and oral arguments of counsel, when submitted...

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