Roger D. Firestone
from Coosa Circuit Court (CV-10-900025)
ON APPLICATION FOR REHEARING
Court's opinion of May 12, 2017, is withdrawn, and the
following is substituted therefor.
D. Firestone sued Carl Weaver, Charles Tooley
("Tooley"), L.C. Collins, Jr. ("L.C."),
and Mickie Wayne Collins ("Mickie") (hereinafter
collectively referred to as "the defendants"),
alleging that the defendants conspired to and did brutally
assault and batter and attempt to murder Firestone and
seeking damages. Firestone appeals from a summary judgment
entered by the Coosa Circuit Court in favor of Weaver
dismissing Firestone's claims against Weaver as barred by
the applicable statutes of limitations.
and Procedural History
deposition testimony indicates that Firestone, Chuck
Amberson, and Daryl Coleman frequented a hunting cabin they
had built in Coosa County ("the hunting cabin").
According to Firestone's deposition testimony, Amberson
and Coleman regularly smoked crystal methamphetamine at the
hunting cabin, a supply of which they kept in "a hiding
place somewhere" at the hunting cabin.
statement Tooley gave the Coosa County Sheriff's
Department after he was apprehended for the offense and after
waiving his rights under Miranda v. Arizona, 384
U.S. 436 (1966), Tooley indicated that Weaver knew that there
was "a bunch of crystal meth" at the hunting cabin.
Tooley said in his statement that Weaver took Tooley to the
area where the hunting cabin was located to show him where
the cabin was and urged Tooley to return to the cabin to
steal the crystal methamphetamine. According to Tooley's
statement, Weaver gave Tooley $600 "for expenses"
and Tooley recruited L.C. and Mickie to help him steal the
deposition testimony indicates that, on May 16, 1995,
Firestone, Amberson, and Coleman were at the hunting cabin
when Tooley, L.C., and Mickie arrived. L.C. and Mickie
restrained Firestone, Amberson, and Coleman and questioned
them about the location of the crystal methamphetamine and
any cash they may have had. Coleman gave L.C. and Mickie the
crystal methamphetamine, and Firestone, Amberson, and Coleman
gave L.C. and Mickie all the cash they had. According to
Firestone's deposition testimony, L.C. and Mickie did not
believe that Firestone, Amberson, and Coleman had given them
all the crystal methamphetamine and cash in their possession.
L.C. and Mickie then doused the hunting cabin and Firestone,
Amberson, and Coleman with kerosene and set the hunting
cabin, with Firestone, Amberson, and Coleman restrained
inside, on fire. Firestone, Amberson, and Coleman suffered
substantial injuries as a result of being burned in the fire;
Amberson and Coleman eventually died from their injuries.
Tooley, L.C., and Mickie were eventually charged with various
crimes arising out of the events described in Firestone's
deposition testimony; all three men ultimately pleaded guilty
to the charges in 2010.
February 23, 2000, D.B. Matson, a deputy state fire marshal
employed by the Alabama Department of Insurance, created a
report concerning the incident. Matson's report states
that, on June 10, 1996, Christi Coleman Hicks, who was
married to Coleman at the time of the incident, informed an
Alabama Bureau of Investigation ("ABI") agent
investigating the case that "she heard that L.C. ...,
Stanley Tooley, and ... Tooley did the burning in Coosa
County." Matson's report further indicates that
Tooley told another individual "that he and his brother
[Stanley] did the crime." Matson's report states
that "Tooley was picked up by an undercover police
officer ... and questioned about this incident."
deposition testimony indicates that, in 2007, Firestone's
son told Firestone that he had heard rumors that in 1995
Tooley had stolen the same amount of crystal methamphetamine
that had been stolen from the hunting cabin on May 16, 1995.
Firestone informed the ABI officers investigating the case
what Firestone's son had told him concerning Tooley.
Firestone's deposition testimony indicates that the ABI
officers told him that they were going to investigate the
information Firestone's son had heard concerning Tooley.
testimony of Eddie Whorton, Betty Cheney, Brian Farley, and
Christi Coleman Hicks was presented by Weaver. Whorton's
affidavit testimony states that he "was an acquaintance
of ... Amberson and ... Firestone" and that,
"in 1995, approximately five months after the incident
[at the hunting cabin] which resulted in the deaths of ...
Amberson and ... Coleman and injury to ... Firestone, I
obtained information from a female friend that ... Tooley was
one of the individuals that perpet[r]ated the deaths and
injuries. I obtained pictures of ... Tooley taken at a
wedding from this friend and took them to ... Firestone. I
showed the pictures of ... Tooley to [Firestone] and he
identified him as one of the assailants. I then contacted Roy
Harbin, who was a local law enforcement officer and provided
him with the information. I have knowledge that Roy Harbin
talked to [Firestone] after this and even put ... Tooley in a
line-up for ... Firestone."
deposition testimony, Firestone confirmed that in 1995
Whorton had shown him a picture of Tooley and that Whorton
told Firestone that Tooley "knew something about"
the incident. Firestone also confirmed in his deposition
testimony that he had met with Roy Harbin and that Harbin had
Firestone look at Tooley in a room to determine if Tooley was
one of Firestone's assailants.
affidavit states that she was married to Firestone at the
time of the incident but that they divorced in 1998.
Cheney's affidavit further states:
"3. Sometime between 1995 to 1996, ... Firestone was
called in for a meeting with Roy Harbin for the purpose of
attempting to identify ... Tooley from a lineup. Roy Harbin
specifically questioned ... Firestone about ... Tooley's
involvement. After the meeting, ... Firestone explained that
he was not able to identify [Tooley]. In response,
[Firestone] explained to me that Roy Harbin responded that
... Tooley was the guy who did it and he just let him go.
"4. In late 1997 to spring 1998, I received a telephone
call from a Kristy Hollingsworth. During this call, Ms.
Holling[s]worth informed me that she knew what happened to
[Firestone] in Coosa County. She gave me specific names of
people that she claimed to be involved, including ... Tooley
..., L.C. ..., [and] Mickie .... The caller told me that it
was ... Tooley who did it. ... She also said that ... Weaver
was involved. ... I made contemporaneous hand-written notes
of this phone conversation.
"5. At a later date, I passed along my notes to ...
Firestone in anticipation of one of his meetings with the ABI
affidavit states that he "was a close friend" of
Coleman's and that he knew Firestone. Farley's
affidavit states that he "had heard information that the
perpetrators of this incident were Mickie ..., ... Tooley and
L.C." Farley's affidavit further states that in 1995
he informed an ABI investigator of the information he had
received concerning Tooley's, L.C.'s, and
Mickie's involvement in the incident. According to his
affidavit testimony, Farley also informed Firestone while
Firestone was in the hospital recovering from the injuries he
suffered in the fire of the information he had received
concerning Tooley's, L.C.'s, and Mickie's
involvement in the incident.
affidavit indicates that Farley also told her of the
information he had received concerning Tooley's,
L.C.'s, and Mickie's involvement in the incident.
Hicks's affidavit does not indicate that she passed this
information along to Firestone.
August 2010, Tooley, L.C., and Mickie pleaded guilty to the
attempted murder of Firestone. On August 20, 2010, Firestone
filed a complaint against the defendants and several
fictitiously named parties, seeking damages on claims of
conspiracy, the tort of outrage, assault and battery, and
attempted murder. Although Weaver was not present at the
hunting cabin, Firestone alleged that he organized and funded
the incident. Recognizing that a question might exist as to
whether his action was barred by the applicable statutes of
limitations, Firestone averred in his complaint:
"On August 9, 2010, Tooley, [Mickie], and [L.C.] pleaded
guilty to attempted murder of [Firestone]. It was not until
this date that [Firestone] discovered the identity of the
[individuals] who had attacked him because of the fraudulent
concealment of the conspiracy and the identity of the
conspirators. [Firestone] avers that despite diligent
efforts, he could not discover the identity of his attackers
before August 9, 2010. [Firestone] has since August 9, 2010,
further discovered the identity of Defendant [Carl] Weaver
and his role in this matter. [Firestone] avers that none of
the acts of [the defendants] are barred by the statute of
limitations. [Firestone] avers that this action is brought
against [these individuals] within the time allowed by
Alabama law for bringing an action following discovery of
facts which have been fraudulently concealed by defendants.
[Firestone] further avers that any otherwise applicable
statute of limitations has been equitably tolled until the
reasonable efforts of [Firestone] to discover the identity of
[these individuals] and that [Firestone] has brought this
action in the time allowed by law following such discovery.
[Firestone] further avers that no statute of limitations is
applicable to this case under Alabama law because it is an
action for damages for maiming and attempted murder with the
relevant facts of the identity of [the defendants]
deliberately concealed as a part of a conspiracy by [the
defendants] to maim and murder [Firestone] and others."
September 24, 2010, Weaver filed a motion to dismiss
Firestone's complaint. On July 21, 2011, the circuit
court denied Weaver's motion to dismiss. On the same day,
the circuit court entered an order concerning Tooley and
L.C., which stated: "[H]aving been served with process
in this action, and the time for answering having passed,
this action will be dismissed as to [Tooley and L.C.] unless
[Firestone] shall, within 21 days, initiate default."
The circuit court also entered a separate order noting that
Mickie had died and dismissing him from the lawsuit; no
motion requesting that a representative of Mickie's
estate be substituted as a party had been filed at that time.
August 4, 2011, Firestone filed applications for default
judgments against Tooley and L.C. On August 10, 2011, the
circuit court entered an "order entering default, "
which states: "Default is hereby entered against
defendants L.C. ... and ... Tooley. [Firestone] may submit a
proposed order for consideration." The circuit
court's August 10, 2011, order did not assess damages
against Tooley or L.C. and specifically requested that
Firestone submit a proposed order doing so.
the circuit court denied Weaver's motion to dismiss,
Weaver filed a motion for a permissive appeal pursuant to
Rule 5, Ala. R. App. P. This Court granted Weaver permission
to appeal the circuit court's denial of his motion to
dismiss. Weaver v. Firestone, 155 So.3d 952, 954
(Ala. 2013)("Weaver I"). In W ...