Rel: June 7, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2023-2024
_________________________
SC-2023-0484 _________________________
Leanne W. Deaton
v.
South Highland Child Development Center, Inc., and Suzanne Snow
Appeal from Jefferson Circuit Court (CV-21-902447)
PARKER, Chief Justice.
Leanne W. Deaton, the plaintiff below, appeals an order of
dismissal entered by the Jefferson Circuit Court in favor of the SC-2023-0484
defendants, South Highland Child Development Center, Inc. ("South
Highland"), and Suzanne Snow. We affirm.
I. Facts
Deaton is the mother of three minor children -- J.D., L.W.D., and
R.E.D. During the proceedings for Deaton's divorce from the children's
father, the trial court conducting those proceedings appointed Deaton as
the primary custodial parent of all three children. In 2019, the father
enrolled J.D. and L.W.D. into Edgewood Elementary ("Edgewood") and
enrolled R.E.D. in the day-care facility operated by South Highland ("the
day-care facility"). Before R.E.D.'s enrollment at the day-care facility, the
father partially completed the child's pre-admission record. The father
did not list Deaton as R.E.D.'s biological mother, and South Highland did
not otherwise procure her identity or inquire why the mother was not
listed. Deaton did not approve or authorize R.E.D.'s enrollment at the
day-care facility.
On August 27, 2019, when Deaton discovered the enrollments, she
immediately returned to Birmingham to take custody of her children and
to remove them from the school and the day-care facility. She went first
to Edgewood with her attorney. She personally served the relevant court
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documents on Edgewood, and Edgewood relinquished physical custody of
J.D. and L.W.D. to Deaton. Edgewood then notified the father.
Once the father was notified that Deaton was coming to pick up
R.E.D., he traveled to the day-care facility. Deaton called South Highland
and informed it that she was the custodial parent and that the father had
enrolled the child in the day-care facility without her consent. In response
to this information, South Highland's representative hung up the
telephone. When Deaton called back, South Highland's representative
placed her on hold and did not connect her with anyone. South Highland
did not attempt to verify the information provided or to contact an
appropriate state agency, such as the Alabama Department of Human
Resources, or the police. When Deaton and her attorney attempted to
obtain custody of R.E.D., they were met by agents or employees of South
Highland who prevented them from retrieving R.E.D. Deaton personally
served South Highland with the court order appointing her as the
custodial parent, but South Highland still refused to relinquish physical
custody of R.E.D. to Deaton. While Deaton was trying to retrieve her
child, South Highland kept R.E.D. inside the day-care facility, away from
Deaton. Deaton's attorney observed Snow, the executive director of the
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day-care facility, direct R.E.D. away from the attorney and take R.E.D.
out the rear of the day-care facility. Snow subsequently relinquished
physical custody of R.E.D. to the father.
On August 25, 2021, Deaton sued South Highland and Snow in the
Jefferson Circuit Court, alleging claims of negligence and wantonness.
The next day, August 26, 2021, she filed her first amended complaint,
which corrected her name from "Denton" to "Deaton" and added a claim
alleging the tort of outrage/intentional infliction of emotional distress.
South Highland and Snow filed a motion to dismiss, pursuant to Rule
12(b)(6), Ala. R. Civ. P., asserting that Deaton had failed to state a claim
on which relief could be granted. The circuit court heard oral arguments
on that motion. But on February 5, 2022, before the circuit court could
rule on that motion, Deaton filed a second amended complaint, in which
she added a claim alleging intentional interference with her parental
rights. South Highland and Snow filed a motion to strike the second
amended complaint on the basis that Deaton had unduly delayed in filing
it and to dismiss for failure to state a claim on which relief could be
granted. The circuit court entered separate orders granting that motion
on both grounds.
4 SC-2023-0484
Nine days later, on February 14, 2022, Deaton filed a third
amended complaint that pleaded the same facts and claims as her first
and second amended complaints and added a conspiracy claim. Southern
Highland and Snow filed a motion to strike the conspiracy claim on the
basis that Deaton had unduly delayed in filing it and to dismiss for failure
to state a claim on which relief could be granted. Deaton argued that Rule
78, Ala. R. Civ. P., granted her an "automatic right" to file an amended
complaint after the dismissal of her second amended complaint. Four
days later, she filed a motion to alter, amend, or vacate the order
dismissing her second amended complaint. The circuit court set a hearing
date for that motion, but Deaton filed this appeal before the hearing date.
II. Standard of Review
This Court reviews de novo the propriety of a judgment of dismissal
for failure to state a claim, resolving all doubts in favor of the plaintiff.
Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So. 2d 1013, 1017 (Ala.
2002). For purposes of a Rule 12(b)(6) motion, the court must accept the
facts in the complaint as true. See Creola Land Dev., Inc. v. Bentbrooke
Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002). A Rule 12(b)(6) dismissal
is proper only when it appears beyond doubt that the plaintiff can prove
5 SC-2023-0484
no set of facts that would entitle the plaintiff to relief. Garrett v. Hadden,
495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769
(Ala. 1986). In making that determination, this Court considers not
whether the plaintiff will ultimately prevail, but only whether the
plaintiff may possibly prevail. Fontenot v. Bramlett, 470 So. 2d 669, 671
(Ala. 1985); Rice v. United Ins. Co. of America, 465 So. 2d 1100, 1101
(Ala. 1984).
The standard of review for analyzing the propriety of an order
granting a motion to strike is similar to the standard of review for
analyzing the propriety of a judgment granting a motion to dismiss -- i.e.,
the de novo standard of review pursuant to which doubts are to be
resolved in favor of the nonmoving party. See Bay Lines, 838 So. 2d at
1019.
III. Analysis
A. Deaton's Rule 78 Argument
Deaton first argues that Rule 78, Ala. R. Civ. P., gave her an
"automatic right" to file her third amended complaint. Rule 78 provides,
in relevant part: "Unless the court orders otherwise, an order granting a
motion to dismiss shall be deemed to permit an automatic right of
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amendment of the pleading to which the motion is directed within ten
(10) days from service of the order." Deaton argues that the circuit court
erred by not putting her case "back on the active docket" after she filed
her third amended complaint. She requests that this Court remand the
case back to the circuit court with instructions to place the case back on
the active docket for further proceedings.
This argument necessitates that " '[w]e … first consider whether
this court has jurisdiction over this appeal, because " jurisdictional
matters are of such magnitude that we take notice of them at any time
and do so even ex mero motu." ' " Pratt Cap., Inc. v. Boyett, 840 So. 2d
138, 144 (Ala. 2002) (quoting Nichols v. Ingram Plumbing, 710 So. 2d
454, 455 (Ala. Civ. App. 1998), quoting in turn Wallace v. Tee Jays Mfg.
Co., 689 So. 2d 210, 211 (Ala. Civ. App. 1997)). Ordinarily, an appeal will
lie only from a final judgment that conclusively determines all issues
before the trial court. Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995).
This Court lacks jurisdiction to entertain appeals from nonfinal
judgments. Dickerson v. Alabama State Univ., 852 So. 2d 704, 705 (Ala.
2002). The parties before us do not address this issue. We must therefore
determine ex mero motu whether the filing of Deaton's third amended
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complaint rendered the order dismissing her second amended complaint
nonfinal.
Ordinarily, a judgment dismissing a complaint is an appealable,
final judgment. Guilford v. Spartan Food Sys., Inc., 372 So. 2d 7, 9 (Ala.
1979). Here, however, Deaton purported to file her third amended
complaint under Rule 78 before filing her notice of appeal. The cases
dealing with this order of filings are sparse. However, the available
persuasive authority most on point, Parris v. Prison Health Services,
Inc., 991 So. 2d 270, 272-73 (Ala. Civ. App. 2008), seems to indicate that
filing an amended complaint after the entry of a judgment of dismissal
but before filing a notice of appeal renders the judgment of dismissal
nonfinal. In Parris, the plaintiff filed an amended complaint under Rule
78 seven days after his original complaint had been dismissed. 991 So.
2d at 271. The trial court did not address whether the plaintiff could
amend the dismissed complaint in its judgment of dismissal. Id. at 272.
The plaintiff subsequently filed a postjudgment motion to alter, amend,
or vacate the judgment of dismissal, id. at 271, but he did not ask for
leave to amend. Id. at 273. The trial court denied that motion. On appeal,
the Court of Civil Appeals held that the judgment dismissing the original
8 SC-2023-0484
complaint was not final because the plaintiff's amended complaint was
still pending before the trial court. The Court of Civil Appeals noted that
the trial court had not addressed amendments in its judgment and that
the plaintiff had not requested leave to amend in his postjudgment
motion. 991 So. 2d at 272-73. Therefore, the Court of Civil Appeals
reasoned, the trial court had not "order[ed] otherwise" and Rule 78
granted the plaintiff an "automatic right to amend" his complaint. 991
So. 2d at 273. Because he had availed himself of that right, the Court of
Civil Appeals determined, the case was still ongoing in the trial court.
We note, however, that the "automatic" right of amendment under
Rule 78 is not unconditional. Rule 78 provides, in pertinent part: "Unless
the court orders otherwise, an order granting a motion to dismiss shall
be deemed to permit an automatic right of amendment of the pleading to
which the motion is directed within ten (10) days from service of the
order." (Emphasis added.) Moreover, courts have discretion to refuse
amended complaints if there is some "valid ground" for doing so. United
Handicapped Indus. of America v. National Bank of Com., 386 So. 2d 437,
441 (Ala. Civ. App. 1980) (holding that Rule 78 "is expressive of [the]
policy" that "amendments are to be freely allowed and their refusal must
9 SC-2023-0484
be based on some valid ground" (emphasis added)). See also 1 Gregory C.
Cook, Alabama Rules of Civil Procedure Annotated 377 (5th ed. 2018)
(noting that "it would seem logical that [the Rule 78] right to amend
might be limited to the first order granting a motion to dismiss (or that
the court could, in the case of a second such order, restrict such a
repetitive use of Rule 78)"). Rule 78 therefore permits a trial court to
forbid a plaintiff from filing an amended complaint.
Here, the circuit court dismissed Deaton's second amended
complaint for failure to state a claim on which relief could be granted, but
it also simultaneously struck her second amended complaint on the basis
that Deaton had unduly delayed in filing it. This situation appears to
present an issue of first impression. An order striking a pleading is not,
by itself, a final order. Cooper v. Cooper, 216 Ala. 366, 366, 113 So. 239,
240 (1927).
"An amended complaint supersedes the previously filed complaint
and becomes the operative pleading, unless it subsequently is modified."
Ex parte Puccio, 923 So. 2d 1069, 1072 (Ala. 2005) (citing Grayson v.
Hanson, 843 So. 2d 146, 149 (Ala. 2002)). " 'Once an amended pleading is
interposed, the original pleading no longer performs any function in the
10 SC-2023-0484
case and any subsequent motion made by an opposing party should be
directed at the amended pleading.' " Holley v. St. Paul Fire & Marine Ins.
Co., 396 So. 2d 75, 79 (Ala. 1981) (plurality opinion) (quoting 6 Wright
and Miller, Federal Practice and Procedure § 1476 (1971)) (later adopted
by Ex parte Puccio, supra). Accordingly, Deaton's second amended
complaint was the only complaint pending before the circuit court when
it granted the motion to strike and to dismiss. Puccio, 923 So. 2d at 1072;
see also Holley, 396 So. 2d at 79 (noting that the "second-amended
complaint was the only complaint before the trial court when it ruled on
the motions to dismiss"). This is why its order of dismissal would have
been final in the case but for Deaton's attempted amendment pursuant
to Rule 78. Guilford, 372 So. 2d at 9. By dismissing the second amended
complaint, the circuit court left no previous complaint pending before it.
Puccio, 923 So. 2d at 1072; Holley, 396 So. 2d at 79. And by
simultaneously striking the second amended complaint, the circuit court
effectively rendered it void too, thereby leaving Deaton with no complaint
at all to amend under Rule 78.
The circuit court struck the second amended complaint on the
ground that "there was 'undue delay in filing an amendment, when it
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could have been filed earlier based on the information available or
discoverable,' which 'is in itself ground for denying an amendment.' " This
had the effect of the circuit court's "order[ing] otherwise" with respect to
the right of amendment under Rule 78. See Mississippi Valley Title Ins.
Co. v. Hooper, 707 So. 2d 209, 214-15 (Ala. 1997) (rejecting the
proposition that trial courts have "only two choices: either, by silence, to
allow an amendment, or, by express direction, specifically to deny an
amendment," and holding that, instead, trial courts may craft a remedy
that "falls between" those two extremes). By striking Deaton's second
amended complaint on the basis that Deaton had unduly delayed in filing
it, the circuit court implicitly ruled that any amendments must present
something new to the circuit court beyond merely tacking new legal
theories onto the same "information available or discoverable" earlier.
Deaton's third amended complaint contains no information that
was not available and discoverable earlier. It only adds a claim of civil
conspiracy. But civil conspiracy is not an independent cause of action; it
is not viable absent the commission of an underlying independently
recognized tort. Funliner of Alabama, LLC v. Pickard, 873 So. 2d 198,
211 (Ala. 2003). Because Deaton's underlying claims had already been
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dismissed, her third amended complaint provided the circuit court with
nothing independently meritorious to consider beyond what it had
already dismissed and struck. The third amended complaint is thus
precluded by the circuit court's previous orders. Hooper, 707 So. 2d at 216
(holding that because the circuit court had already set conditions on the
plaintiff's right to amend, "there was no reason … to make a subsequent
order regarding amendment. Instead, [the circuit court] had 'ordered
otherwise,' as contemplated by Ala. R. Civ. P. 15 and 78, thus precluding
further amendments.").
This Court has defined a final judgment as "a judgment that is
'definitive of the cause in the court below, leaving nothing further to be
done, save [its enforcement].' " Faith Props., LLC v. First Com. Bank, 988
So. 2d 485, 490-91 (Ala. 2008) (quoting Ex parte Gilmer, 64 Ala. 234, 235
(1879)). In the absence below of a complaint amended in accordance with
the circuit court's orders, the dismissal and striking of the second
amended complaint leaves nothing to be done. Those orders together
constitute a final judgment, and therefore this Court has jurisdiction to
hear this appeal. We turn now to the merits of Deaton's claims in her
second amended complaint.
13 SC-2023-0484
B. Deaton's Claims of Negligence and Wantonness
"To meet the burden of proof in a negligence action, a plaintiff must
prove that the defendant owed a duty to the plaintiff, that the defendant
breached that duty, and that the breach proximately caused the plaintiff
to be injured." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala.
1997) (citing Ford Motor Co. v. Burdeshaw, 661 So. 2d 236 (Ala. 1995))
(emphasis added). Similarly, to establish wantonness, a plaintiff must
show that the defendant owed the plaintiff a duty and that it acted in
such a way that it knew injury would likely or probably result. Norfolk
S. Ry. Co. v. Johnson, 75 So. 3d at 624, 645 (Ala. 2011).
Deaton argues that "every person owes every other person a duty
not to hurt him." Deaton's brief at 15 (citing Smitherman v. McCafferty,
622 So. 2d 322, 324 (Ala. 1993)). She asserts that the central factor in the
"duty" analysis is whether the defendant could foresee the injury to the
plaintiff. She argues that Southern Highland and Snow "regularly
analyze[] rights to physical custody" and "ha[ve] a responsibility to
determine that the person removing the child from [the daycare's
facility's] physical custody has the legal right to do so." Id. at 17.
Therefore, Deaton argues, Southern Highland and Snow owed her a duty
14 SC-2023-0484
to deliver R.E.D. to her as soon as she personally served the custody order
on them. She argues that Southern Highland and Snow, as the owner
and executive director of the day-care facility, had a legal duty to comply
with that custody order and that, by failing to do so, they breached their
duty to her.
Deaton cites no direct authority for any of these propositions.
Instead, she argues that the duty for which she argues is derived from
the general duty of reasonable supervision that schools have toward
children. See Stevens v. Chesteen, 561 So. 2d 1100, 1103 (Ala. 1990)
(citing Best v. Houtz, 541 So. 2d 8, 9 (Ala. 1989)). This duty of reasonable
supervision, she argues, "is breached 'if there is evidence from which a
jury could find that supervision could have prevented the accident.'
Green By and Through Green v. Bester, 568 So. 2d 792, 794 (Ala. 1990)."
Deaton's brief at 17.
In Stevens, supra, a student whose leg had been injured in a
motorcycle accident was sent to the football field for physical-education
class despite having an injury exemption. As the student observed the
class without participating, some of the participants ran into him,
reinjuring his leg. This Court held that the school owed a duty of
15 SC-2023-0484
reasonable supervision to the student but that the school had not violated
that duty. 561 So. 2d at 1103. In Green ex rel. Green v. Bester, 568 So.
2d 792 (Ala. 1990), a fourth-grade student was injured when she was hit
in the head by a rock thrown by a sixth-grade student on the school
playground. This Court held that the supervising teacher and the school
principal owed a duty of reasonable supervision "to [their] students." Id.
at 794 (emphasis added). In Gordon v. Cornerstone Assembly of God
Church, 985 So. 2d 762 (La. Ct. App. 2008), the First Circuit Court of
Appeal of Louisiana held that a supervising member of a church owed a
duty of reasonable supervision to a minor who was attending the church's
youth service. None of those cases either deal with day-care facilities or
establish that Southern Highland and Snow owed a duty to anyone but
R.E.D. And Deaton cites no further authority to connect those cases to
her assertion that South Highland and Snow owed her a duty to deliver
R.E.D. to her.
South Highland and Snow argue that they are subject to the "Child
Care Licensing and Performance Standards for Day Care Centers and
Nighttime Centers" prescribed by the Alabama Department of Human
Resources (Nov. 30, 2018) ("the DHR standards"). The DHR standards
16 SC-2023-0484
require day-care operators to keep a list of persons to whom a child can
be delivered ("the approved pickup list"). That list is obtained from the
enrolling parent, and Deaton was not on South Highland's list. South
Highland and Snow argue that the DHR standards do not require them
to deliver a child to a person who is not on that list, even if that person
hands them official-looking paperwork. South Highland and Snow also
argue that, while Deaton may have established that they owed a duty to
R.E.D., she has not established that they owed a duty to her.
Deaton concedes that the DHR standards impose a duty of care. But
she argues that the existence of a duty imposed by regulations does not
necessarily abrogate a preexisting common-law duty. She argues that
"South Highland's compliance with the D.H.R. minimum standards does
not preclude a distinct claim under common law." Deaton's brief at 23.
As the United States Supreme Court has put it, "[t]he mere
imposition of statutory duties does not remove liability for breach of
existing common-law duties." United States ex rel. Willoughby v.
Howard, 302 U.S. 445, 452 (1983). But the holding in Howard does not
change the result in this case. The reason is simple: Deaton has not
established that South Highland and Snow owed her any duty under the
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common law. She has shown that schools and churches owe children a
duty of reasonable supervision. But she has not established (1) that South
Highland and Snow owed any duty to her or (2) that their duty of
reasonable supervision included any duty to R.E.D. to deliver her to a
particular parent, particularly one who was not on the approved pickup
list. Nor has she sued on behalf of R.E.D.
From our investigation of our precedents, it seems that Alabama
courts have yet to rule whether the common-law duty of reasonable
supervision requires a day-care facility to deliver a child to the custodial
parent when that parent is not on its approved pickup list. But it seems
that the sparse available persuasive authority from other states seems to
cut against Deaton's arguments.
In the only case we found in which a court held that the release of
a child to a noncustodial father amounted to negligence, (1) the father
was not on the approved pickup list; (2) a woman impersonating the
custodial mother asked the school to let the father pick up the child; and
(3) a school employee released the child to the father without consulting
the school records or a school administrator. See McDowell v. Smith, 285
Ga. 592, 678 S.E.2d 922 (2009). In the present case, the father was on the
18 SC-2023-0484
approved pickup list, but the mother was not. And there are other
decisions holding that it is negligence to release a child to a person who
does not appear on an approved pickup list. See Haney v. Bradley Cnty.
Bd. of Educ., 160 S.W.3d 886 (Tenn. Ct. App. 2004); see generally Ralph
Gerstein & Lois Gerstein, 133 Am. Jur. Proof of Facts 3d 87, Liability of
Public or Private Day Care Center or Nursery School § 13 (2013). Also,
in all those cases, the injury involved was physical injury to the child, not
a temporary loss of physical custody by a parent. Those cases therefore
confirm that a duty is owed to the child but do not establish any duty
owed to the parent.
Without an established common-law duty, the circuit court
correctly applied the duty of care imposed by the DHR standards. Those
standards provide that day-care operators cannot establish any policies
that contradict the DHR standards. They also require every day-care
operator to keep an approved pickup list. The circuit court correctly noted
that those standards did not impose on South Highland and Snow a duty
to determine who had custody of R.E.D. before she was enrolled, "so long
as a 'parent/guardian' enrolled her." Here, there is no dispute that
R.E.D.'s father enrolled her. Deaton, her mother, was not on the approved
19 SC-2023-0484
pickup list. The duty imposed by the D.H.R. standards was to keep an
approved pickup list. To deliver R.E.D. to someone not on the approved
pickup list would arguably have been negligence. See generally 133 Am.
Jur. Proof of Facts 3d 87, at § 13. And as South Highland and Snow point
out, to deliver R.E.D. to Deaton would have violated the DHR standards.
Deaton's last argument is that South Highland and Snow are liable
to her for negligence or wantonness under the doctrine of res ipsa
loquitur. The doctrine of res ipsa loquitur applies when
" 'a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, then the injury arose from the defendant's want of care.' "
Martin v. Comfort Touch Transp., Inc., 278 So. 3d 1254, 1262 (Ala. Civ.
App. 2018) (quoting Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48
So. 2d 231, 238 (1950), citing in turn San Juan Light & Transit Co. v.
Requena, 224 U.S. 89, 99 (1912)). Deaton cites no authority to establish
that the doctrine of res ipsa loquitur has ever been applied in the context
of a day-care facility refusing to deliver a child to a custodial parent who
is not on the approved pickup list. The only authority she does cite
involved the mutilation of a decedent's corpse by funeral-home personnel,
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which caused the plaintiff extreme emotional distress. And, indeed, both
Alabama cases that have discussed the application of the doctrine of res
ipsa loquitur to suits by parents against day-care facilities involved
injuries to the child, not to the parent. See Ward v. Forrester Day Care,
Inc., 547 So. 2d 410 (Ala. 1989); Edosomwan ex rel. Edosomwan v. A.B.C.
Daycare & Kindergarten, Inc., 32 So. 3d 591 (Ala. Civ. App. 2009).
Moreover, Deaton has not presented this Court with any authority
for any of her arguments as to the second prong of the doctrine of res ipsa
loquitur. She merely asserts that "[c]ommon knowledge would lend itself
to the belief that any harm would be the fault of South Highland [and
Snow] because [they were] the only one[s] who had the minor child and
[were] the only one[s] who could release the child." Deaton's brief at 24.
But she does not show that South Highland and Snow's failure to deliver
R.E.D. to a person not on the approved pickup list would not occur "in the
ordinary course of things" without negligence. Without that showing,
Deaton cannot prevail on this ground.
Because she has not established that South Highland and Snow
owed her a duty or that the doctrine of res ipsa loquitur is applicable,
Deaton can prove no set of facts establishing that Southern Highland and
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Snow are liable to her for either negligence or wantonness. The circuit
court therefore did not err in dismissing those claims in her second
amended complaint for failure to state a claim on which relief could be
granted.
C. Deaton's Claim of Intentional Infliction of Emotional Distress
Deaton's next argument is that the circuit court erroneously
dismissed her claim of intentional infliction of emotional distress
("IIED"), which is often referred to in our cases as a tort-of-outrage claim.
See Wilson v. University of Alabama Health Servs. Found., P.C., 266 So.
3d 674, 675 n. 1 (Ala. 2017). Under Alabama law, to recover for IIED, the
plaintiff must establish that "[the conduct] (1) was intentional or
reckless; (2) was extreme and outrageous; and (3) caused emotional
distress so severe that no reasonable person could be expected to endure
it." Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.
1990). Whether conduct is outrageous is generally for the trier of fact to
determine. American Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala.
1980) . The conduct must " 'be regarded as atrocious and utterly
intolerable in a civilized society. ' " Harrelson v. R.J., 882 So. 2d 317, 322
(Ala. 2003) (quoting Inmon, 394 So. 2d at 365).
22 SC-2023-0484
Deaton argues that the circuit court erroneously narrowed the
scope of the tort by acknowledging that this Court had applied it to only
"three kinds of conduct." Deaton's brief at 27. In acknowledging this, the
circuit court quoted this Court's own dicta in Little v. Robinson, 72 So. 3d
1168, 1172-73 (Ala. 2011). However, this Court more recently held that,
although we have allowed recovery for IIED only in those three factual
scenarios, that does not mean that it is only applicable in those scenarios.
Wilson, 266 So. 3d at 677.
Deaton goes on to argue that South Highland and Snow's actions
were tantamount to a kidnapping. She relies on United States v. Uces, F.
App'x 115 (11th Cir. 2018), to support this argument. In Uces, the United
States Circuit Court of Appeals for the 11th Circuit held that the removal
of a child from inside the United States to outside the United States by a
noncustodial parent constituted a violation of the International Parental
Kidnapping Crime Act. Deaton does not argue that R.E.D.'s father
removed her from the United States in this case or otherwise kidnapped
R.E.D. Nor does she address this glaring factual distinction. She does cite
persuasive authority from other jurisdictions tending to show that a
noncustodial parent's abduction of a child can support a claim of IIED.
23 SC-2023-0484
But those persuasive authorities all involve claims against the other
parent, not against the owner and executive director of a day-care facility.
Deaton does not argue that South Highland and Snow had any
knowledge that R.E.D.'s father intended to abduct her or colluded with
him intentionally in doing so. South Highland and Snow merely complied
with the DHR standards, as required under Alabama law -- which is
hardly "extreme and outrageous" conduct.
As noted above, South Highland and Snow were caught in the
middle here. On the one hand, they were required to keep an approved
pickup list and would violate the DHR standards if they released R.E.D.
to anyone not on that list. On the other hand, Deaton was at the day-care
facility with her attorney and a court order showing that she was R.E.D.'s
custodial parent. South Highland and Snow decided to follow the DHR
standards and return R.E.D. to the parent who was on the approved
pickup list. Deaton is correct that an IIED claim may be applicable in
more situations than the three situations it has been applied to
historically. But this Court will affirm a trial court's judgment on any
ground supported by the record, even if that ground was not considered
or was rejected by the trial court. Austill v. Prescott, 293 So. 3d 333, 349
24 SC-2023-0484
(Ala. 2019). And in this case, the record shows that Deaton failed to plead
sufficient facts for her IIED claim to survive a motion to dismiss. The
dismissal of this claim is therefore due to be affirmed.
D. Deaton's Claim of Intentional Interference with a Parental Right
Deaton's next argument is regarding her claim of intentional
interference with a parental right ("IIPR"), a claim added in her second
amended complaint. That complaint was stricken based on Deaton's
undue delay in filing it and dismissed for failure to state a claim on which
relief could be granted. In Alabama, the tort of IIPR tracks the
Restatement (Second) of Torts § 700 (Am. L. Inst. 1977). Anonymous v.
Anonymous, 672 So. 2d 787, 789 (Ala. 1995). That provision says: "[A
person] who, with knowledge that the parent does not consent, abducts
or otherwise compels or induces a minor child to leave a parent legally
entitled to its custody or not to return to the parent ..., is subject to
liability to the parent." To state a claim of IIPR, a plaintiff must plead
fact s tending to show
" '(1) some active or affirmative effort by [the] defendant to detract the child from the parent's custody or service, (2) [that] the enticing or harboring [was] willful, [and] (3) [that the enticing or harboring was done] with notice or knowledge that the child had a parent whose rights we re thereby invaded.' "
25 SC-2023-0484
Anonymous, 672 So. 2d at 790 (quoting 67A C.J.S. Parent and Child §
131, p. 513 (1978)).
Here, Deaton has presented facts to show (1) that R.E.D. was
enrolled in and dropped off at the day-care facility by her father; (2) that
South Highland and Snow had R.E.D. in their physical custody when
Deaton arrived to pick her up; (3) that R.E.D.'s father arrived to pick her
up at the same time; (4) that Deaton and her attorney served the custody
order on South Highland and Snow; and (5) that South Highland and
Snow turned R.E.D. over to her father instead of Deaton through an
entrance other than the one where Deaton and her attorney were. None
of these facts show any "enticing" or "harboring" of R.E.D. She needed no
enticing; she was in South Highland and Snow's custody already. And
South Highland and Snow did not "harbor" R.E.D.; they merely
relinquished her custody to her father rather than her mother.
Deaton argues that the "intent" element of an IIPR claim can be
satisfied by knowledge that the custodial parent does not consent.
Neither Restatement (Second) of Torts § 700 nor our cases so hold.
"[K]nowledge that the parent has not consented" is necessary only when
the defendant has "induce[d] the child to leave its home." Restatement
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(Second) of Torts § 700 cmt. a. (emphasis added). Here, R.E.D. was
already away from home. South Highland and Snow did not in any way
induce her to leave her home. And South Highland and Snow followed
their obligation under the DHR standards to release R.E.D. only to
persons on the approved pickup list.
Deaton did not present the circuit court with sufficient facts to
allow a reasonable jury to conclude that South Highland and Snow
intended to interfere with her parental rights or that South Highland and
Snow "enticed" or "harbored" R.E.D. The circuit court therefore did not
err in dismissing this claim for failure to state a claim on which relief
could be granted.
Deaton also argues that the circuit court erred in striking this
claim. Because we are affirming the circuit court's dismissal of this claim
under Rule 12(b)(6), Ala. R. Civ. P., we need not reach this argument.
However, the record shows that the circuit court did not err in striking
this claim.
Although Deaton is correct that leave to amend a pleading should
be freely granted (Rule 15(a), Ala. R. Civ. P.), this Court has held that
undue delay can constitute a ground for refusing leave to amend. Rector
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v. Better Houses, Inc., 820 So. 2d 75, 77 (Ala. 2001). Undue delay can be
found when the plaintiff seeks to amend the complaint to add a new claim
based solely on facts the plaintiff knew or should have known at the time
of filing the original complaint. In Rector, the plaintiff filed an amended
complaint in which she raised new allegations seven months after filing
her original complaint. 820 So. 2d at 77. The trial court determined that,
because the new allegations were based on information that the plaintiff
knew or should have known when she filed the original complaint, there
had been undue delay. Id. On appeal, the plaintiff's only argument was
that "the trial court abused its discretion because … amendments to
pleadings should be liberally allowed." Id. at 78. She did not refute the
trial court's conclusion that "the new allegations were based on facts she
had known since the date she had commenced the action." Id. On appeal,
this Court concluded that the trial court did not abuse its discretion in
striking the plaintiff's amended complaint.
A plurality of the Court of Civil Appeals has held that two months
is a sufficiently unreasonable delay to allow a court to refuse leave to
amend. Nettles v. White, 36 So. 3d 48, 50 (Ala. Civ. App. 2008). We have
held that a delay of six months without alleging new facts is undue delay.
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Burkett v. American Gen. Fin., Inc., 607 So. 2d 138, 141 (Ala. 1992). Here,
Deaton filed her original complaint on August 25, 2021, and her first
amended complaint on August 26, 2021. She filed her second amended
complaint on February 5, 2022. She waited five months between the filing
of her first amended complaint and her second amended complaint, and
she has offered no reasonable basis for the delay. The circuit court
therefore did not err in striking the new claim for IIPR on the basis that
Deaton had unduly delayed in asserting it.
IV. Conclusion
Based on the foregoing, we affirm the circuit court's order
dismissing Deaton's case.
AFFIRMED.
Wise, Mendheim, Stewart, Mitchell, and Cook, JJ., concur.
Shaw, Bryan, and Sellers, JJ., concur in the result.