1No.

1131273

________

IN THE SUPREME COURT OF ALABAMA

_______________________________________________
EVANGELINE LIMON AND ELADIO LIMON,
Appellants
v.
SANDRA SANDLIN ET. AL.,
Appellees.
_______________________________________________
Appeal from the
Jefferson County Circuit Court
_______________

BRIEF OF THE APPELLANTS

_______________
ORAL ARGUMENT REQUESTED
________________
Freddy Rubio, Esq.
Rubio Law Firm
438 Carr Ave., Suite 1
Birmingham, AL 35209
frubio@rubio.com
(205) 443-7858
Wyndall Ivey, Esq.
Ivey Law Group
3529 7th Ave. South
Birmingham, AL 35222
wivey@iveylawgroup.com
(205) 226-0342
October 7, 2014

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT .........................i

TABLE OF CONTENTS ....................................... ii
STATEMENT OF JURISDICTION ................................iv
TABLE OF AUTHORITIES ..................................... v
STATEMENT OF THE CASE .................................... .
1
STATEMENT OF THE ISSUES ...................................3
STATEMENT OF THE FACTS ................................... 4
STATEMENT OF THE STANDARD OF REVIEW ......................17
SUMMARY OF THE ARGUMENT ..................................18
ARGUMENT ................................................ .
22
CONCLUSION............................................... 30

STATEMENT OF JURISDICTION
This case is a direct appeal from the final judgment
Order issued by the circuit court on June 24, 2014. (C.
59.) The Notice of Appeal was timely filed on August 4,
2014. Ala. R. App. Proc. Rule 4.

Jurisdiction is proper

under Ala. Stat. 12-2-7(6), which grants this honorable

Court exclusive jurisdiction over final judgments in civil
cases where the amount in controversy exceeds $50,000. See
Ex Parte R.B.Z., 725 So. 2d 257, 259-60 (Ala. 1997).

When

the appeal does not arise from a judgment fixing the amount
of recovery, the amount claimed in the complaint determines
jurisdiction.

Thus,

the

Appellants

Complaint

seeking

damages in excess of $60,000 renders jurisdiction proper.

(C. 9 16).

TABLE OF AUTHORITIES
CASES
Angell v. Shannon,
455 So. 2d 823, 823-24 (Ala. 1984)
DGB,LLC v. Hinds,
55 So. 3d 218 (Ala. 2010).
Foremost Ins. Co. v. Parham,
693 So. 2d 409, 421 (Ala. 1997).
Gilmore v. M & B Realty Co.,
895 So. 2d 200, 210 (Ala.2004).
Hudson v. Moore, 194 So. 147 (Ala. 1940)
Miller v. Mobile County Bd. of Health,
409 So. 2d 420 (Ala. 1981).
Moulder v. Chambers,
390 So. 2d 1044 (Ala. 1980).
Papastefan v. B & L Constr. Co.,
356 So. 2d 158, 160 (Ala. 1978).
Payton v. Monsanto Co.,
801 So.2d 829, 834 (Ala. 2001).
Potter v. First Real Estate Co.,
844 So. 2d 540 (Ala. 2002).
Raley v. Citibanc of Alabama/Andalusia,
474 So. 2d 640 (Ala. 1985).
Ex Parte R.B.Z., 725 So. 2d 257(Ala. 1997).
Ex Parte Seabol,
782 So. 2d 212 (Ala. 2000).

PAGE

Simcala, Inc. v. American Coal Trade, Inc.,

821 So. 2d 197, 200 (Ala. 2001).
Weaver v. Firestone,
2013 WL 6516389 (Ala. 2013).
Wheeler v. George,
39 So. 3d 1061 (Ala. 2009).
Willcut v. Union Oil Co. of Cal.,
432 So. 2d 1217 (Ala. 1983).
City of Gadsden v. Harbin,
398 So. 2d 707 (Ala. Civ. App. 1981).
Rutledge v. Freeman,
914 So. 2d 364(Ala. Civ. App. 2004).
Ishler v. C.I.R., 442 F. Supp. 2d 1189, 1211 (N.D. Ala.
2006).
STATUTES
Ala. Code 6238(l)(1975).
Ala. Stat. 12-2-7(6) (1975).
Ala. R. Civ. Pro. 9(b)
SECONDARY SOURCES

STATEMENT OF THE CASE

The claims in the instant case were filed on behalf of
Eladio and Evangeline Limon (hereinafter Plaintiffs), in
an attempt to seek justice for the deception that damaged
their parental rights to the care and custody of their minor
child. In May of 2013, Plaintiffs discovered that their
minor daughter had an abortion in the State of New York
seventeen months prior.

The abortion took place while in

the care of the Appellees (hereinafter Defendants), who

materially misrepresented the intent of the trip to New York
and concealed their efforts in aiding the procurement of the
abortion.
took

When Plaintiffs discovered the deception, they

immediate

steps

to

ascertain

the

truth

about

what

happened and subsequently filed suit in the Circuit Court of

Jefferson County, Alabama on April 17, 2014.

(C. 9.)

The Complaint alleged the following causes of action:

Count

One-Outrage;

Count

Two-Negligence;

Count

Three-

Interference with Parental Rights; and Count Four-Fraud.

(C. 9-14.) All of the Counts collectively hinge on the same

common nucleus of operative facts, namely the affirmative

misrepresentations by Defendants and the ongoing concealment
of their actions in procuring Plaintiffs minor daughter an
abortion.

After receiving proper service, Co-Defendants

Sandra Sandlin and William Ogbourne Jr.1 filed a Motion to

Dismiss on June 3, 2014, seeking dismissal of all claims.
(C.

30.)

The

Defendants

first

argued

that

the

two-year

Statute of Limitations barred Plaintiffs claims, citing

Ala. Code 6-2-38 (1975) and stating that the savings
clause did not apply. (C. 30-32). Second, Defendants argued
that the claims were due to be dismissed for failure to
state a claim for which relief could be granted. (C. 32-41).
Lastly, Defendants motioned for a dismissal of the fraud
claim for failure to comply with Alabama Rule of Civil
Procedure 9(b).

Id.

The Motion sought in the alternative

an order for a more definitive statement on Count Four for

fraud.

(C.

30-43.)

Defendant

William

Ogbourne,

Jr.

subsequently filed an Answer independently on June 9, 2014.

(C. 45.)

Appellant William Ogburn Jr. points out an error in the

spelling of his name in his Answer to Appellants Complaint. The
Complaint incorrectly states Ogbourne.
1

The Plaintiffs filed their Opposition to Defendants Sandlin

and Ogbourne, Jr.s Motion to Dismiss on June 23, 2014. (C.
53.) In their brief, Plaintiffs claimed the counts were
timely

pled

because

the

fraudulent

behavior

was

not

discovered or reasonably discoverable until May 2013. (C.

54.) After the motion was heard before the Honorable Judge
Privett, Judge Privett issued her Order on June 24, 2014.
The Order provided that Counts One, Two, and Three of the
Complaint were dismissed with prejudice as to Defendants
Sandra Sandlin and William Ogbourne, Jr. because the counts
were barred by the Statute of Limitations. (C. 57.) Count
Four

was

dismissed

with

leave

to

file

more

definite

statement or amended complaint within 10 days of the Order.

Id.

Accordingly,

Plaintiffs

filed

to
an

preserve
Amended

their

Complaint

cause
on

of

July

action,
9,

2014,

providing a more definite statement regarding Defendants

fraudulent acts. (C. 58-65.)
In response, Defendants filed a Motion to Strike and a
Motion to Dismiss the Amended Complaint, claiming that the
Counts One, Two, and Three were due to be stricken given the
previous Order. (C. 66.) Having received a final Order of
dismissal, Plaintiffs filed a Notice of Appeal with this

Court on August 5, 2014, contemporaneously with a Motion to

Stay Proceedings Pending Appeal. (C. 83, 89.)

The circuit

court granted the motion to stay on August 5, 2014, pending

the outcome of this appeal. (C. 85.)

STATEMENT OF THE ISSUES

I.

Whether

sufficiently
reasonably

Plaintiffs
establish

discoverable

allegations
claim
by

for

against
Fraud

Plaintiffs

Defendants

that
prior

was

not

to

its

disclosure, such that the claim for Fraud is tolled and the
savings clause prerequisite for fraudulent concealment is
established for Plaintiffs derivative claims.

II.

Whether Plaintiffs claims for Outrage, Negligence, and

Interference with Parental Rights were erroneously dismissed

as time-barred when all claims derive from the same nucleus
of operative facts that conceal Defendants tortuous conduct
from Plaintiffs.

STANDARD OF REVIEW
The

final

Order

at

issue

in

this

appeal

granted

Motion to Dismiss based on a 12(b)(6) failure to state a

claim.

When

reviewing

dismissal

under

12(b)(6),

the

standard of review applied by the appellate court is whether

the allegations of the complaint, when viewed most strongly
in the pleaders favor, could be proved by any given set of
circumstances such that they would entitle the pleader to
relief. Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d
640, 641 (Ala. 1985); see also Weaver v. Firestone, 2013 WL
6516389 (Ala. 2013) (noting, [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.).
At the heart of this appeal is whether the savings
clause

of

Ala.

Code

6-2-38

tolls

the

statute

of

limitations when the parties allegation of fraud concealed

the same facts giving rise to the derivative causes of

action.

When

trial

courts

judgment

turns

on

the

determination and applicability of a statute, the decision

is a matter of law and is accordingly reviewed de novo by
an appellate court, without any presumption of correctness.
Simcala, Inc. v. American Coal Trade, Inc., 821 So. 2d 197,
200 (Ala. 2001) (applying a de novo standard of review to
the trial courts interpretation of the statute at issue).
Therefore, this Court owes no deference to the trial courts
determination

that

that

the

causes

of

action

were

time

barred or that the fraud was not properly plead.

STATEMENT OF FACTS
Defendant William Ogbourne Jr., a minor child during
the events of the instant case and the son of Defendants
William

Ogbourne

and

Sandra

Sandlin,

began

sexual

relationship with Plaintiffs daughter, also minor child,

more than a year before the events in the instant case.
10, 59.)
though

the

(C.

The sexual relationship resulted in pregnancy,

Plaintiffs

daughters status.

Id.

were

not

made

aware

of

their

Instead, on or about December 19,

2011, Defendants told Plaintiffs that they wanted to take

Plaintiffs daughter to New York so she could see Broadway
shows and meet William Ogbourne Jrs stepsister.

(C. 12,

61.)
was

Unbeknownst to Plaintiffs, the true intent of the trip

to

obtain

an

abortion

in

state

where,

unlike

in

Alabama, no parental notification laws exist. (C. 10-11,

59.)
the

Defendants made several requests to Plaintiffs over

course

of

few

days,

and

eventually

succeeded

in

convincing Plaintiffs to allow their daughter to make the

trip to New York with Defendants.

(C. 62.)

Plaintiffs

daughter had an abortion while in New York and under the

care and supervision of Defendants. (C. 10, 59.)
Some time after returning from New York, Plaintiffs
daughter

became

degenerated.
eventually

distant

and

(C. 10, 59.)

dropped

out

of

the

course

by

their

her

life

Her grades plummeted and she

school.

Id.

depressed, antisocial, and began using drugs.

distraught

of

daughters

change

She
Id.
in

became
Although

behavior,

Plaintiffs could not ascertain the cause and went to great

lengths

to

downturn.

rescue
Id.

their

daughter

from

the

inexplicable

Plaintiffs even went so far as to sell their

home and relocate, at great financial hardship, in order to

move

their

environment.

daughter
Id.

out

of

her

apparently

unwelcome

It was not until May of 2013, however,

that Plaintiffs daughter finally revealed to her parents

the truth about her pregnancy, the trip to New York, the
abortion,

and

the

Defendants

those events from Plaintiffs.

filed

the

present

participation

in

action

the

involvement

in

concealing

(C. 10-11, 59.)

upon

deception

learning
and

of

Plaintiffs
Defendants

concealment

of

their

daughters abortion.
SUMMARY OF THE ARGUMENT
The order dismissing the counts of Outrage, Negligence,
and Interference with Parental Rights with prejudice should
be reversed because Plaintiffs could not reasonably have
discovered

the

deceptive

and

reprehensible

Defendants prior to May of 2013.

fraud

claim

provides

the

actions

of

The sufficiently pleaded

foundational

prerequisite

for

applying the savings clause to Plaintiffs derivative causes

of action.
clause,

For derivative claims to fall within the savings

Plaintiffs

must

first

establish

Defendants

fraudulently concealed the facts giving rise to such claim

or that Defendants fraudulency concealed the cause of action
itself.

Plaintiffs

Complaint
contemplated

with
and

satisfied

allegations
actualized

this

requirement

establishing
their

in

their

Defendants

fraudulent

conduct

specifically to conceal a minor childs abortion from her

parents.
In

addition

to

establishing

Plaintiffs

established

discovered

nor

fraudulent

Defendants

discoverable

concealment,

fraud

prior

to

was

the

neither

statute

of

limitations running, thus satisfying the second part of the

requirements
Although

under

the

Plaintiffs

deteriorating

savings

were

condition,

aware

the

clause
of

jurisprudence.

their

observed

daughters

behavioral

changes

could be attributed to numerous actions or influences, none

of

which

would

cause

Plaintiffs

to

suspect

Defendants

targeted deceit. Because none of the claims were reasonably

discoverable

by

Plaintiffs

prior

to

the

minor

childs

disclosure in May of 2013, the savings clause of Ala. Code

6-2-38 properly tolls the statute of limitations on the
fraud claim.
claims
Parental

for

Likewise, the savings clause also tolls the

Outrage,

Rights

Negligence,

because

they

nucleus of operative facts.

statute

of

limitations

to

are

and

Interference

derived

from

the

with
same

To allow the bar from the

stand

would

be

tantamount

to

allowing the defendants to benefit from their fraudulent

act,

which

runs

afoul

to

the

public

policy

behind

the

savings clause. Accordingly, the district court erred in

dismissing

the

claims

for

Outrage,

Negligence,

and

Interference with Parental rights by failing to apply the

savings

clause

to

the

fraudulently

concealed

causes

of

action.

Because the claims are not time barred, this Court

should reinstate the claims, allowing them to be litigated

with the fraud claim, thus preserving judicial economy and
efficiency.

ARGUMENT
I. Plaintiffs Complaint sufficiently established a
claim for Fraud that was not reasonably discoverable by
Plaintiffs prior to its disclosure, such that the claim
for Fraud is tolled and the savings clause prerequisite
for
fraudulent
concealment
is
established
for
Plaintiffs derivative claims.
A. Plaintiffs Complaint sufficiently pleads Fraud
as required by Rule 9(b) by detailing the time, place
and the contents of Defendants false representations,
and by identifying what was obtained by the fraud.
Defendants deception and gross misrepresentations made
to Plaintiffs with the intent to induce the Plaintiffs to
give consent for their minor to accompany the Defendants on
a

trip

to

New

York

gives

rise

to

claim

for

fraud.

Defendants argued in their Motion to Dismiss that Count Four

of

the

Complaint

for

Fraud

should

be

dismissed

because

Plaintiffs failed to plead the fraud with particularity as

required by Rule 9(b).

(C. 41-43); Ala. R. Civ. Pro. 9(b)

(requiring all averments of fraud state the circumstances

constituting fraud or mistake . . . with particularity).
In the alternative, Defendants sought an order for a more
definite

statement

as

to

the

facts

and

circumstances

surrounding

Plaintiffs

fraud

based

claims.

(C.

42).

Preserving their objection for appeal, Plaintiffs argued in

their

opposition

that

the

allegations in the Complaint complied with Rule 9(b).

(C.

53-55.)

to

the

Motion

to

Dismiss

On June 24, 2014, Judge Privett issued an order

erroneously finding the claim of fraud lacks specificity as

required

by

Rule

9(b)

of

the

Alabama

Rules

of

Civil

Procedure, and dismissing Count Four with leave to file a

more definite statement or amend the complaint.
(Order).
their

(C. 57.)

In accordance with the Order, Plaintiffs filed

Amended

sufficiently

Complaint

pleaded

claim

augmenting
for

their

fraud.

already

Additionally,

Plaintiffs filed contemporaneously an appeal on the issue of

the erroneous dismissal of the Complaint and a Motion to
Stay Proceedings Pending Appeal, which was granted.
83-85.)

(C. 58,

Under Rule 9(b), a plaintiff is required to plead

the time, place and the contents or substance of the false

representation,
obtained.

and

an

identification

of

Ruble 9(b)(committee comments).

what

has

been

In this case,

Plaintiffs sufficiently placed Defendants on notice of the

fraudulent conduct in Plaintiffs original Complaint. First,

Plaintiffs

identified

Defendants

the

fraudulent

applicable
statements,

time

frame

stating

for

that

(1)
the

misrepresentations occurred sometime prior to the events on

or about December 30, 2011, and (2) for the fraudulent
behavior of taking Plaintiffs minor daughter to New York
under false pretenses and beyond the scope of Plaintiffs
consent, stating that [u]pon arriving in New York [on or
about December 30, 2011], Defendants William Ogbourne and
William Ogbourne Jr. arranged and obtained for Plaintiffs
daughter an abortion. (C. 10.)
Second, Plaintiffs satisfied
pleading

the

place

of

the

fraud

the
in

requirement
their

for

Complaint.

Plaintiffs alleged the Defendants took their minor daughter

from

Alabama

to

New

York

after

Defendants

deceitfully

obtained permission from Plaintiffs in Alabama for the sole

purpose

of

circumventing

laws for minors.

Id.

Alabamas

parental

notification

Accordingly, Defendants were on

notice of the location of the alleged fraud as required by

the spirit of Rule 9(b).
As for the content of the fraud, Defendants erroneously
claim in their Motion to Dismiss that Plaintiffs fail to
allege the specific identification concerning which of the
Defendants committed the alleged misrepresentation.

(C.

42.)
the

Plaintiffs would direct this Court to paragraph 6 of

Complaint,

wherein

the

Plaintiffs

clearly

state

Defendants William Ogbourne, Sandra Sandlin, and William

Ogbourne Jr. did promise Plaintiffs that they were taking
Plaintiffs daughter to New York in order for her to see
Broadway shows. (C. 10). This statement alone demonstrates
the content of the misrepresentation (i.e. the purpose and
scope of the Defendants trip) as well as the identity of
the individual tortfeasors. Plaintiffs went even further in
identifying the individual tortfeasors, noting in paragraph
12 of the Complaint that Defendant Sandra Sandlin aided in
convincing Plaintiffs that their minor childs trip to New
York was for the purpose of seeing shows on Broadway. (C.
11.)

Plaintiffs similarly attribute fraudulent behavior to

Defendants William Ogbourne and William Ogbourne, Jr. in

paragraph

13

of

the

Complaint,

asserting

on

or

about

December 29, 2011, Defendants William Ogbourne and William

Ogbourne, Jr. . . . took Plaintiffs minor child with them
to New York under the auspice of seeking Broadway.

(C. 11-

12.)(emphasis

of

Complaint,

added).

Plaintiffs

Throughout
refer

the

remainder

collectively

to

the

Defendants

because each substantially participated in the fraudulent

behavior designed to obtain Plaintiffs consent; doing so

does not defeat the particularity requirement as Defendants
suggest.
B.
Plaintiffs
could
not
reasonably
discover
Defendants fraud with due diligence when Defendants
calculated to conceal the abortion from Plaintiffs
and when their daughters resulting downward spiral
could not readily be attributed to Defendants
conduct.
Having
Plaintiffs

established
must

now

well-pleaded

establish

applicable to such a claim.

the

claim
savings

for

fraud,

clause

is

In Alabama, a claim for fraud

generally is subject to a two-year statute of limitations.

Ala. Code 6238(l)(1975); see also Potter v. First Real
Estate Co., 844 So. 2d 540 (Ala. 2002).
period

begins

to

run

depends

on

When the two year

when

the

plaintiff

discovered, or should have discovered, the fact constituting

the fraud.
Alabama,

is

This savings clause, as it is referred to in

codified

in

Alabama

Code

6-2-3,

provides:
In actions seeking relief on the ground
of fraud where the statute has created a
bar, the claim must not be considered as
having accrued until the discovery by the
aggrieved party of the fact constituting
the fraud, after which he must have two
years within which to prosecute his
action.

which

Ala. Code 6-2-3 (1975).

When applying this savings clause, Alabama courts look
to whether the complaint alleges the time and circumstances
of the discovery of the cause of action and whether the
complaint alleges the facts or circumstances by which the
defendants concealed the cause of action or injury and what
prevented

the

plaintiff

from

discovering

the

facts

surrounding the injury. DGB,LLC v. Hinds, 55 So. 3d 218,

226 (citing Angell v. Shannon, 455 So. 2d 823, 823-24 (Ala.
1984); Papastefan v. B & L Constr. Co., 356 So. 2d 158, 160
(Ala.

1978))(concealment

complaint).
these

of

the

facts

giving

rise

to

In this case, Plaintiffs Complaint satisfied

requirements

by

providing:

(1)

the

circumstances

surrounding the discovery of Defendants fraudnamely, their

daughter ultimately disclosing the circumstances surrounding
her

abortion;

Defendants

(2)

the

concealed

facts
their

and

circumstances

tortuous

by

which

conductnamely,

Defendants devising a plan to fraudulently obtain Plaintiffs

permission to accompany Defendants to New York while knowing
the

true

Plaintiffs

purpose
from

of

the

trip;

discovering

the

and

(3)what

tortuous

prevented

conduct

of

Defendantsnamely, the nature of the ultimate achievement of

the

fraud,

an

abortion,

and

the

type

of

psychological

struggle Plaintiffs daughter was experiencing, prevented

Plaintiffs from reasonably discovering the truth within two
years of the fraud. (C. 9-13.)
In their Motion to Dismiss, the Defendants properly
cite the standard for determining when a claim for fraud
accrues,

namely

when

the

party

actually

discovered

the

fraud or had facts that, upon closer examination, would

have led to the discovery of fraud. (C. 32.) (emphasis
added in Defendants Motion to Dismiss)(quoting Ishler v.
C.I.R.,

442

F.

Supp.

2d

1189,

1211

(N.D.

Ala.

2006)

(additional citations omitted)); see also Willcut v. Union

Oil

Co.

(Facts

of

Cal.,

which

432

provoke

So.

2d

inquiry

1217,
in

1219-20

the

mind

(Ala.
of

1983)

man

of

reasonable prudence, and which, if followed up, would have

led

to

discovery

of

evidence of discovery.).

the

fraud,

constitute

sufficient

Stated another way, the savings

clause supplies an objective test, tolling the statute of

limitations

on

fraud

claim

until

the

aggrieved

party

discovers or, in the exercise of reasonable care, should

have discovered, the facts constituting the fraud.

Potter,

545 So. 2d at 545 (citing Ex Parte Seabol, 782 So. 2d 212,

216 (Ala. 2000); Foremost Ins. Co. v. Parham, 693 So. 2d

409, 421 (Ala. 1997); Moulder v. Chambers, 390 So. 2d 1044,
1046 (Ala. 1980))(emphasis added).

Note, therefore, that

under this standard, the issue is not whether the abortion

itself

was

discoverable,

fraudulent

behavior

but

that

rather

gave

whether

rise

to

Defendants
the

events

complained-of herein was discoverable. (C. 32.)

Whether

facts

giving

rise

to

fraud

were

reasonably

discoverable is a question properly reserved for the jury.

Gilmore v. M & B Realty Co., 895 So. 2d 200, 210 (Ala. 2004)
(The question of when a party discovered or should have
discovered

the

fraud

is

generally

one

for

the

(quoting Seabol, 782 So. 2d at 216 (Ala. 2000)).

jury.)

Courts are

reticent to invade the province of the jury except under

limited circumstances, such as when a party actually knew
of facts that would have put a reasonable person on notice
of fraud. Wheeler v. George, 39 So. 3d 1061, 1084 (Ala.
2009)(holding

that

document

in

and

of

itself

was

insufficient to attribute knowledge of fraudulent facts when

the

parties

had

no

reason

explanation at the time).

to

doubt

the

accompanying

Actual facts that may have put

Plaintiffs on notice of the fraud could have been any

number of things, including the knowledge of the pregnancy

prior to the trip coupled with the subsequent termination of
the pregnancy.
Plaintiffs.
the

However, these facts were not known by

Therefore, it is proper for a jury to determine

reasonableness

of

Plaintiffs

inquiry

into

the

facts

giving rise to their fraud claim.

Should this Court determine that the decision is not
properly

reserved

for

jury,

this

Court

may

conclude

Defendants erred in conclusively asserting Plaintiffs had

facts in late December 2011/early 2012 that, upon closer
examination,

would

have

complained-of herein....

led

to

discovery

(C. 32.)

of

the

events

While it is true that

Plaintiffs began to notice a change in behavior sometime

after their daughter returned from New York, there are no
facts

to

suggest

Plaintiffs

should

have

known

that

the

Defendants had engaged in deceitful conduct that played an

integral role in their daughters changed behavior.
their

Complaint,

Plaintiffs

briefly

outline

some

of

In
the

behavioral changes they observed in their daughter, which

included: a sudden drop in grades, dropping out of school,
drug use, withdrawal from her social circle, depression, and
antisocial behavior. (C. 10.)

To illustrate the difficulty

in deciphering the cause of such behavior in the face of

other

viable

explanations,

Plaintiffs

draw

this

Courts

attention to a few representative resources summarizing the

psychological and behavioral changes in behavior that can
arise after an abortion compared to those arising from, say,
substance abuse.2 The lists are nearly identical and could
be understandably difficult for Plaintiffs to decipher the
root

cause

when

both

an

abortion

and

substance

abuse

precipitate withdrawal and a breakdown of communication.

Therefore, it is disingenuous for Defendants to claim that
reasonable investigation into the matter would have led to
the discovery of Defendants role in securing an abortion.
Plaintiffs would have had to first suspect an abortion,
rather than another reasonable cause like substance abuse,
and

then

would

have

had

to

suspect

someone

defrauded

Plaintiffs to procure their daughter in getting an abortion

without consent.

This goes beyond what courts contemplate

2 Abortion Risks: A list of major psychological complications related to

abortion, available at http://afterabortion.org/2011/abortion-risks-a-list-ofmajor-psychological-complications-related-to-abortion/ (last visited October
6, 2014) (citing diminished interest in previously enjoyed activities; drug
or alcohol abuse; suicidal thoughts or acts; and other self-destructive
tendencies as possible complications post-abortion); cf. Early Detection of
Illicit Drug Use in Teenagers, Innovations in Clinical Neuroscience, Shahid
Ali, MD, et. Al., available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3257983/ (last visited October 6,
2014) (citing warning signs for drug abuse, including frequent change of
friends, withdrawal from family, deterioration of school grades and skipping
of classes, and changes in personality.)

as

required

Foremost,

693

reasonable
So.

2d

at

investigation.
420-21

(finding

See,

e.g.,

unreasonable

plaintiffs claim for tolling when the plaintiffs received

documents . . . that if read or even briefly skimmed would
have

put

reasonable

constituting

the

persons

fraud]);

on

notice

Willcut,

432

[of
So.

the
2d

facts

at

2020

(holding that statute of limitations was not tolled when the

plaintiff admitted that he initiated an inquiry into the
very subject matter of the fraud allegations).
Certainly, Plaintiffs were actively trying to uncover the
cause for their daughters downward spiral, even going so
far as selling their house to provide their daughter with a
fresh environment.
psychological

(C. 10-11.)

changes

While the behavioral and

alerted

the

Plaintiffs

to

something, the difficulty of discovering the root of the

cause was compounded by their daughters guilt, shame, and
natural tendency for suppressing the trauma often associated
with

the

abortion.

difficult
To

say,

and

personal

as

Defendants

decision
do,

that

to

have

an

Plaintiffs

failure to discover the abortion was because they fail[ed]

to communicate with their own daughter, is an egregious

misunderstanding

of

the

impact

an

abortion

has

on

teenagers psychology.3 (C. 43.)

Having sufficiently pleaded the circumstances constituting
fraud and why the fraudulent behavior was not reasonably
discoverable,

Plaintiffs

have

satisfied

the

requirements

under the savings clause, rendering their count for Fraud

timely.
II. UNDER LONG-RECOGNIZED PRINCIPLES, PLAINTIFFS CLAIMS FOR
OUTRAGE, NEGLIGENCE, AND INTERFERENCE WITH PARENTAL RIGHTS
ARE TIMELY BECAUSE THEY ARE DERIVED FROM THE SAME NUCLEUS OF
OPERATIVE FACTS CONCEALING THE TORTOUS CONDUCT FROM THE
PLAINTIFFS, RENDERING THE SAVINGS CLAUSE APPLICABLE TO SUCH
DERIVATIVE CLAIMS.
Defendants

claim

that

the

two-year

statute

of

limitation applies to bar all of Plaintiffs claims, which

include

the

interference
above).
these

torts
with

of

outrage,

parental

negligence,

rights,

and

fraud

intentional
(discussed

(C. 31.) (Each count Plaintiffs allege against

Defendants

is

barred

statute of limitations.)

by

the

applicable

two-year

This Court has long recognized

that the savings clause, while couched in terms of fraud,

applies to other causes of action where the existence of a
tort is fraudulently concealed from the party in whose favor
3 See, e.g., Abortion Risks: A list of major psychological complications
related to abortion, supra FN 2.

the cause of action exists.

DBG, LLC, 55 So. 3d at 225

(citing Hudson v. Moore, 194 So. 147 (Ala. 1940); see also
Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala. 2001)
(finding plaintiffs claim for negligence, among others,
could

overcome

defense

of

statute

of

limitations

upon

showing the defendant concealed the wrongdoing); Angell, 455

So. 2d at 823-24 (applying savings clause and Rule 9(b) to a
breach-of-contract claim); Miller v. Mobile County Bd. of
Health, 409 So. 2d 420 (Ala. 1981) (same);

Rutledge v.

Freeman, 914 So. 2d 364, 369 (Ala. Civ. App. 2004) (holding
the savings clause and its predecessor have long been held
to apply to any cause of action that has been fraudulently
concealed from a plaintiff.); City of Gadsden v. Harbin,
398 So. 2d 707 (Ala. Civ. App. 1981) (holding tolling of
statute of limitations proper until such time the plaintiff
discovered or could have discovered tort by due diligence).
For the savings clause to apply to other causes of
action,

the

complaint

must

allege

the

time

and

circumstances of the discovery of the cause of action.

DGB,LLC, 55 So. 3d at 226; Angell, 455 So. 2d at 823-24
(citing

Papastefan,

356

So.

2d

at

160).

Further,

the

complaint must also allege the facts or circumstances by

which the defendants concealed the cause of action or injury

and what prevented the plaintiff from discovering the facts
surrounding the injury. Id.
In the case before this Court, Plaintiffs have provided
sufficient

information

circumstances

to

surrounding

establish

the

Defendants

acts

facts

and

intended

to

conceal their tortuous conduct, which includes communicating

outright

lies

secretly

and

regarding
knowingly

the

purpose

interfering

of

with

their
the

trip

and

Plaintiffs

parental rights. (C. 10-13).

Given the facts of this case,

the

the

policy

behind

applying

causes of action is paramount.

savings

clause

in

other

As stated in the DBG case,

A party cannot profit by his own wrong in concealing a

cause of action against himself until barred by limitation.
The

statute

of

limitations

cannot

be

converted

instrument of fraud. DBG, LLC., 55 So. 3d at 224.

into

an

To allow

Defendants to claim that the minors failure to communicate

the Defendants torts after Defendants went to such great
lengths to contrive a plan intended to keep Plaintiffs from
discovering the abortion would offend the policy in place to
protect victims of fraudulent behavior.

Finally, Plaintiffs have sufficiently established what

prevented

the

plaintiff

from

discovering

surrounding the injury. Id. at 226.

the

facts

The very nature of the

facts alone support a finding that Defendants conduct was

not discoverable with a reasonable inquiry.
facts

to

anything

suggest

that

tortuous

that

the

Defendants

would

behaviors in the daughter.

have

There are no

were

caused

involved
the

in

observed

Moreover, Plaintiffs allege that

they were only told of the Defendants fraudulent scheme and

the daughters participation in the execution of the plan in
May 2013, after a year-long process of trying to help their
daughter navigate her downward spiral.

(C. 10-13). Even if

Defendants claim the great weight of the acts preceding the

abortion in December 2011 rest solely with the daughter who
willingly sought an abortion, the Plaintiffs minor child
cannot

consent

to

tortuous

acts

committed

Plaintiff.
CONCLUSION

Respectfully submitted this 7th day of October, 2014.

upon

the

______________________
Freddy Rubio, Esq.
The Rubio Law Firm
433 Carr. Ave., Suite 1
Birmingham, AL 35209

______________________
Wyndall Ivey, Esq.
Ivey Law Group
3529 7th Ave. South
Birmingham, AL 35222

CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of
the foregoing upon the following persons by placing a copy
of the same in the United States Mail this 7th day of October, 2014.
Sandra Sandlin
William Ogbourne, Jr.
c/o White Arnold & Dowd
2025 3rd Ave. N., Suite 500
Birmingham, AL 35203
William Ellis Ogbourne, Sr.
3251 Fernwood Drive
Gulf Breeze, FL 32563