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Chambless-Killingsworth & Associates, P.C. v. Osmose Wood Preserving, Inc.
Citations: 695 So. 2d 25; 1996 Ala. Civ. App. LEXIS 847; 1996 WL 675435Docket: 2950466
Court: Court of Civil Appeals of Alabama; November 21, 1996; Alabama; State Appellate Court
Sam A. Beatty, Retired Justice, addresses an appeal by Chambless-Killingsworth Associates, P.C. (CKA) against a summary judgment favoring Osmose Wood Preserving, Inc. The appeal was transferred to this court by the Alabama Supreme Court. The underlying case began in April 1992 when the Lamar County Board of Education sued CKA and Osmose, claiming that fire-retardant-treated plywood in school buildings had deteriorated, compromising safety. CKA, the architectural firm, filed a cross-claim against Osmose for fraud, suppression of facts, and negligence after the Board settled with Osmose. Osmose sought summary judgment, arguing that the cross-claim constituted a contribution claim, which is not recognized in Alabama, or was barred by the statute of limitations. The trial court granted summary judgment without specifying reasons, prompting CKA's appeal. The court reviews summary judgments by determining if there are genuine material facts in dispute and if the movant is entitled to judgment as a matter of law. Osmose had the burden to show no genuine issue of material fact existed, after which CKA needed to provide evidence to counter this. Osmose's argument that the cross-claim was solely for contribution was rejected, as the evidence indicated claims of fraud and negligence, not contribution. Furthermore, the statute of limitations for fraud is two years, beginning when the fraud is discovered or should have been discovered. Thus, the court found that Osmose was not entitled to summary judgment on either ground, leading to a reversal and remand of the case. When the statutory period for a fraud action has expired, the burden lies with the plaintiff to show that their case falls under the provisions of 6-2-3. Generally, the determination of when a plaintiff discovered or should have discovered the fraud is a matter for the jury unless it is clear that the plaintiff had actual knowledge of facts that would alert a reasonable person to the fraud. In this case, John Chambless indicated that he only became aware of Osmose’s alleged fraudulent acts regarding FRT plywood in late 1992 or early 1993 during the discovery phase of a related case. CKA filed a cross-claim against Osmose on September 13, 1994. The court ruled that the question of when CKA should have discovered the fraud, thus triggering the statute of limitations, should be resolved by a jury. Consequently, Osmose was not entitled to summary judgment on this basis. The judgment was reversed and the case remanded for further proceedings. This opinion was authored by Retired Justice Sam A. Beatty while serving actively as a judge. All judges concurred with the decision to reverse and remand.