Angell v. Shannon

Full title: Blanche B. ANGELL v. Charles E. SHANNON

Court: Supreme Court of Alabama

Date published: Aug 31, 1984

455 So. 2d 823 (Ala. 1984)

Opinion

83-345.

July 13, 1984. Rehearing Denied August 31, 1984.

Appeal from the Circuit Court, Montgomery County, Charles Price, J.

Julian L. McPhillips, Jr. and Robert D. Segall, Montgomery, for appellant.

Albert L. Roemer, Montgomery, for appellee.

PER CURIAM.

Blanche Angell appeals from an order dismissing her complaint against the defendant, Charles E. Shannon, for breach of contract. We affirm.

The complaint in this action was filed on August 23, 1983, alleging a breach of a March 7, 1966, agreement between Blanche Angell and Charles E. Shannon, who was her husband at the time of the agreement, but from whom she had become divorced on March 14, 1966. Angell argues that the six-year statute of limitations was tolled by § 6-2-3, Code of Alabama 1975, due to the fraudulent suppression of a material fact by Shannon.

Shannon filed a motion to dismiss on the grounds that the complaint did not allege fraud with particularity, as required by Rule 9 (b) A.R.Civ.P., and that the cause was barred by the statute of limitations. Angell's amended complaint stated that she discovered the falsity of Shannon's representations less than one year prior to the filing of the present lawsuit. The complaint did not state the time or circumstances of the discovery of the alleged fraud. On October 14, 1983, a hearing on the motion to dismiss was held. On December 5, 1983, the lower court entered an order dismissing Angell's complaint, stating that it was barred by the statute of limitations.

This judgment is affirmed on the authority of Papastefan v. B L Construction Co., 385 So.2d 966 (Ala. 1980), which requires that the complaint show the time and circumstances of the discovery of the alleged fraud in order for a plaintiff to successfully assert that the statute of limitations has been tolled. Cf. A.R.Civ.P. 9 (b); Code of Alabama 1975, §§ 6-2-3, 6-2-39.

AFFIRMED.

TORBERT, C.J., and FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.