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Bryant v. Robledo6/30/2005
in the present case are facts that establish the Robledos' fraud claim against Bryant. It is for this reason that I concur in the result reached by the main opinion. BRYAN, Judge, concurring in the result in part and dissenting in part.
Insofar as the main opinion reverses the summary judgment in favor of the plaintiffs, I concur in the result. Insofar as the main opinion affirms the summary judgment in favor of the plaintiffs on their fraud claim, I must respectfully dissent. In my opinion, the absence of evidence of an attorney-client relationship between the plaintiffs and the defendant James Bryant was fatal to the plaintiffs' fraud claim as pleaded by the plaintiffs. See § 6-5-573, Ala. Code 1975; Sessions v. Espy, 854 So. 2d 515, 522 (Ala. 2002) (recognizing that claims that are alleged to have arisen out of an attorney-client relationship are all subsumed under the Alabama Legal Service Liability Act ("the ALSLA", § 6-5-570 et seq., Ala. Code 1975); and Brackin v. Trimmier Law Firm, 897 So. 2d 207, 229 (Ala. 2004) (holding that " n attorney-client relationship is an essential element of a claim under the [ALSLA] ....").
Although the plaintiffs argued in support of their motion for a summary judgment that James Bryant fraudulently induced them to agree to pay for legal services for Mr. Nave, they had not pleaded such a claim. Given the requirement of Rule 9(b), Ala. R. Civ. P., that circumstances constituting the alleged fraud must be pleaded with particularity, the trial court erred in entering a summary judgment in favor of the plaintiffs on an unpleaded fraud claim. See Rector v. Better Houses, Inc., 820 So. 2d 75, 78-79 (Ala. 2001) (holding that trial court erred in entering a summary judgment in favor of defendant on the basis of an unpleaded affirmative defense even though the plaintiff had not objected to the assertion of the unpleaded affirmative defense in the trial court).
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