author: WOODALL, Justice. STUART, Justice

text:
    Ex parte Kenneth Edward MOFFITT. (Re Kenneth Edward Moffitt v. State of Alabama).
    1001739.
    Supreme Court of Alabama.
    Feb. 22, 2002.
    Rehearing Denied May 31, 2002.

      Amy M. Shumate, Dothan, for petitioner.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for respondent.
   WOODALL, Justice.

Kenneth Edward Moffitt was convicted of unlawful possession of a controlled substance (cocaine), a violation of § 13A-12-212(a), Ala.Code 1975. On appeal to the Court of Criminal Appeals, Moffitt presented the following arguments: that the trial court had erred in denying his motion to suppress the cocaine, because, he argued, the cocaine was seized during an illegal warrantless search; that the trial court had erred in denying his motion for a judgment of acquittal, because, he said, the State had failed to establish that he constructively possessed the cocaine; that the trial court had erred in denying his motion for a mistrial after the prosecutor had made statements indicating to the jury that Moffitt was in jail while he was awaiting trial; and that the trial court had erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. The Court of Criminal Appeals affirmed the judgment of the trial court in an unpublished memorandum. Moffitt v. State (No. CR-00-0574, May 18, 2001), 836 So.2d 1006 (Ala.Crim.App.2001) (table). Moffitt petitioned this Court for certiorari review as to all claims except the Batson claim. We granted Moffitt’s petition. We reverse and remand.

Moffitt first argues that the trial court erred in denying his motion to suppress evidence (cocaine), which, he argues, was seized pursuant to an illegal warrantless entry into a private residence. The facts surrounding the officer’s warrantless entry into an apartment were stated in the Court of Criminal Appeals’ unpublished memorandum:

“Jerry Lynn Watkins, an officer with the Dothan Police Department, testified that, on June 10, 2000, at approximately 3:23 a.m., he responded to a dispatch that shots had been fired at the Johnson Homes apartment complex. As he arrived, he saw four people who appeared to be arguing standing outside behind the apartments. The people yelled for him to stop, and when he did, [Moffitt] started running. A male who was standing with the group said that [Mof-fitt] had a gun. Watkins explained that he followed [Moffitt] because he ‘figured ... he would probably be pretty dangerous if he was out there shooting.’ (R. 38.) [Moffitt] ran into the back door of an apartment, and Watkins followed shortly thereafter. He searched the kitchen, the living room, and the master bedroom, but [Moffitt] was not in any of those rooms. However, while he was looking for [Moffitt] in the master bedroom, he saw in plain view what appeared to be cocaine on top of and on both sides of a television. Finally, he went into the bedroom across the hall from the master bedroom, where he saw a small child who was sitting on a bed pointing under the bed. Watkins took the child off of the bed, lifted the bed, and found [Moffitt] on the floor under the bed.”

Our conclusion regarding this first argument is dispositive of this case.

“[A] principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment [to the United States Constitution] on agents of the government who seek to enter the home for purposes of search or arrest.” Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). It is well established that warrantless entries to residences are presumptively unreasonable.

“It is well settled that warrantless entries to and searches of a residence are presumptively unreasonable and that the burden is on the government to demonstrate exigent circumstances justifying a warrantless entry and search. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Landreth v. State, 600 So.2d 440 (Ala.Cr.App.1992). To justify a warrantless entry and search, the state needs to show both the existence of probable cause and exigent circumstances. United States v. Rodgers, 924 F.2d 219 (11th Cir.1991), cert. denied, 501 U.S. 1221, 111 S.Ct. 2834, 115 L.Ed.2d 1003 (1991), appeal after remand, 981 F.2d 497 (11th Cir.1993); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).”

A.A.G. v. State, 668 So.2d 122, 126 (Ala.Crim.App.1995). “The establishment of probable cause requires only that facts available to the officer at the moment of [entry] would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.” Id. at 127.

The Court of Criminal Appeals held that probable cause existed to justify the officer’s warrantless entry into the apartment to search for Moffitt. After reviewing the undisputed facts, we conclude that the State did not carry its burden to show the existence of probable cause. Therefore, the trial court erred in denying Moffitt’s motion to suppress the cocaine evidence discovered following the unlawful warrantless entry.

Officer Watkins was sent to the Johnson Homes apartment complex, where gunshots were reported to have been fired. There is no evidence to indicate that he was given any information concerning the identity of the reported shooter. When he arrived at the apartment complex, Watkins saw four people, who appeared to be arguing, standing behind the apartments. The people yelled for Watkins to stop. When Watkins stopped, Moffitt, who was standing in the group, began to run. As Moffitt ran from the group, a male in the group told Watkins that Moffitt had a gun. There is no evidence indicating that anyone told Watkins that Moffitt had fired a gun. Watkins then ran after Moffitt, following him into an apartment. When asked why he entered the apartment, Watkins stated “[he] figured ... [Moffitt] would probably be pretty dangerous if he was out there shooting.” (R. 38.) While searching the apartment for Moffitt, Watkins saw in plain view the cocaine that Moffitt sought to suppress.

When Watkins entered the apartment, the facts available to him were not sufficient to support a reasonable belief that Moffitt had committed any crime. The State argues that Watkins “could have reasonably believed ... that Moffitt had committed the crime of attempted murder.” (State’s Brief, at 10.) However, this argument fails to acknowledge the fact that no one informed Watkins that Moffitt had fired a gun at another person or, for that matter, that he had fired a gun under any circumstance. While there was a basis for a reasonable suspicion that Moffitt was in possession of a gun, the mere possession of a gun is not a crime, and there is no evidence that Watkins was aware of any fact indicating that it was unlawful for Moffitt, in particular, to possess a gun. While the State argues that “[a]t the very least, the [officer was] aware that the alleged crime Moffitt had committed involved a gun” (State’s Brief, at 10), it is undisputed that Moffitt had not been accused by anyone of committing any crime before Watkins made the warrantless entry into the apartment.

The trial court erred in denying Mof-fitt’s motion to suppress the cocaine evidence. Therefore, the Court of Criminal Appeals erred in affirming its judgment. The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

MOORE, C.J., and BROWN and STUART, JJ., dissent.

STUART, Justice

(dissenting).

I respectfully dissent. I believe the Court of Criminal Appeals correctly decided this case. In its unpublished memorandum in this case, that court stated:

“The appellant argues that the search was not legal because the officers did not have a warrant to search the apartment and because the exceptions to the warrant requirement allegedly did not apply in this case.
“ ‘It is well settled that warrantless entries to and searches of a residence are presumptively unreasonable and that the burden is on the government to demonstrate exigent circumstances justifying a warrantless entry and search. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Landreth v. State, 600 So.2d 440 (Ala.Cr.App.1992). To justify a warrantless entry and search, the state needs to show both the existence of probable cause and exigent circumstances. United States v. Rodgers, 924 F.2d 219 (11th Cir.1991), cert. denied, 501 U.S. 1221, 111 S.Ct. 2834, 115 L.Ed.2d 1003 (1991), appeal after remand, 981 F.2d 497 (11th Cir.1993); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).
“ ‘The establishment of probable cause requires only that facts available to the officer at the moment of search would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.’

“A.A.G. v. State, 668 So.2d 122, 126-27 (Ala.Crim.App.1995).

“ ‘ “ ‘[T]he ultimate test for determining whether exigent circumstances exist justifying a warrant-less entry “is whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant.” ’ United States v. Cresta, 592 F.Supp. 889, 901 (D.Maine, 1984).... ‘The exigent circumstances doctrine recognizes several common situations where the time consuming resort to a neutral magistrate for an arrest or search warrant is unnecessary, for example: hot pursuit, ... fleeing suspect, ... danger to arresting officer or the public from the suspect. ...’ United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir.1981) (citations omitted).”
‘Musgrove [v. State], 519 So.2d [565,] 572 [(Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988)]. See also Bush v. State, 523 So.2d 538 (Ala.Cr.App.1988).’
“C.M.B. v. State, 594 So.2d 695, 699 (Ala.Crim.App.1991) (emphasis added [in Court of Criminal Appeals’ unpublished memorandum]). Furthermore, an officer’s belief that a suspect is carrying a weapon is a factor that may be considered in determining whether exigent circumstances exist for the purpose of making a warrantless entry. Id.
“In this case, Watkins had responded to a report that shots had been fired. When he arrived, [Moffitt] fled, and another person stated that [Moffitt] was armed with a gun. [Moffitt] entered an apartment, and Watkins, who was in hot pursuit of [Moffitt], subsequently entered the apartment. Therefore, both probable cause and exigent circumstances existed to justify Watkins’s war-rantless entry into the apartment to search for [Moffitt].”

Viewing the evidence at the time of the incident in question rather than with the benefit of hindsight, I conclude that the police officer did not know when he pursued Moffitt whether he was faced with a menacing or a reckless endangerment (both misdemeanors) or with an attempted murder (a felony). Moffitt’s flight from the scene when the police officer arrived was evidence indicating that he had committed some offense. Officer Watkins was informed that Moffitt had a gun, so he had reason to believe he was dangerous. As he was being chased by Watkins, Moffitt entered an apartment. Before he entered, Officer Watkins could not know who might be inside and what Moffitt might do to anyone who was inside. Officer Watkins’s warrantless entry into the apartment was justifiable and lawful. Once he was inside and saw contraband in “plain view,” his seizure of it was lawful. I would quash the writ of certiorari. Therefore, I must dissent.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Kenneth Edward MOFFITT v. STATE of Alabama.
    CR-00-0574.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Amy M. Shumate, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for ap-pellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Moffitt, 844 So.2d 531 (Ala.2002), we reverse the trial court’s judgment and remand this case to the trial court for proceedings that are consistent with that opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.


author: LYONS, Justice. MOORE, Chief Justice

text:
    Ex parte Michael Levonne RUSSELL. (In re Michael Levonne Russell v. City of Mobile).
    1010489.
    Supreme Court of Alabama.
    May 17, 2002.

      James M. Byrd, Mobile, for petitioner.
    Carol Carr Little, asst, city atty., City of Mobile, for respondent.
   LYONS, Justice.

Michael Levonne Russell was convicted of driving under the influence of alcohol. The circuit court sentenced him to serve one year in the county jail; it split that sentence, ordering Russell to serve 10 days of the sentence, and it suspended the balance of the sentence and placed Russell on one year’s probation. The court also ordered him to pay a $750 fine, a $25 victim’s compensation assessment, and court costs. Russell appealed his conviction. The Court of Criminal Appeals affirmed Russell’s conviction in an unpublished memorandum. (No. CR-00-1160) — So.2d - (Ala.Crim.App.2001) (table). We granted certiorari review to determine whether the City of Mobile (“the City”) presented sufficient evidence to establish that venue was proper in Mobile County. We reverse the judgment of the Court of Criminal Appeals.

I.

The City’s evidence showed that, on March 15, 2001, Mobile police officer General Finklea stopped Russell for a headlight violation. The complaint states that Russell was stopped on “a public street, road, highway or other place, at or near [the intersection of] Dr. M[artin] L[uther] K[ing] [Boulevard] and English [Street]” within the city limits of Mobile. When Officer Finklea approached Russell’s vehicle, he detected the odor of alcohol on Russell’s person. When Russell was unable to perform a field sobriety test successfully, Officer Finklea placed him under arrest for driving under the influence of alcohol. Two Intoxilyzer tests revealed that Russell’s blood-alcohol level was .18 and .19, respectively.

At trial the only evidence tending to establish venue was the following: Officer Finklea testified that at the time of Russell’s arrest he had been employed with the Mobile Police Department for approximately six months. Officer Finklea testified that when he turned on his flashing lights and siren to stop Russell’s vehicle, Russell stopped within about 500 to 600 feet. The prosecutor did not specifically ask Officer Finklea the location at which Russell stopped his vehicle. However, the prosecutor did ask Officer Finklea the following question: “I think you heard the Judge say earlier that you stopped Mr. Russell at Dr. Martin Luther King and English?” Officer Finklea responded, ‘Wes, ma’am.” Officer Finklea testified that after he placed Russell under arrest he took him to the police station in the “first precinct,” which is located at the corner of Virginia Street and Broad Street. According to Officer Finklea it took about 10 minutes to drive from the location of the arrest to the first precinct police station. Officer Troy Faulk performed the Intoxñyzer tests on Russell. Officer Faulk testified that he also was employed by the Mobüe Police Department. He stated that he was a patrol officer in the “third precinct” but that he went to the “first precinct” to perform the Intoxñyzer tests on Russeñ.

At the close of the City’s case, Russell moved for a judgment of acquittal, arguing, among other things, “lack of venue.” The trial court denied Russell’s motion. Russeñ was convicted and sentenced.

On appeal Russell argues that the City faded to establish that venue was proper in Mobüe County. According to Russell, Officer Finklea’s testimony did not indicate where the offense occurred, and there was no other testimony establishing the venue of the offense. The Court of Criminal Appeals affirmed Russell’s conviction, holding that the City had introduced circumstantial evidence sufficient to allow the jury to infer that the offense had occurred within the City of Mobüe, which is within Mobile County. Further, the Court of Criminal Appeals held that the circuit court could have taken judicial notice of the location of the offense.

II.

The burden of proof regarding venue is on the State, and the State may establish venue by circumstantial evidence. Ex parte East, 584 So.2d 496, 498 (Ala.1991); Willcutt v. State, 284 Ala. 547, 550, 226 So.2d 328, 380 (1969). This Court has held that, “ 'A conviction in a criminal case can never be had except upon proof of the venue, and this need not be proved by direct evidence, but evidence from which it may be inferred is sufficient; but the venue of a crime should never be left in doubt, nor supplied by inference, when it may be readüy proved.’ ” Ex parte Jones, 519 So.2d 589, 590 (Ala.1987), quoting Mayhall v. State, 22 Ala.App. 223, 225, 114 So. 361, 363 (1927), citing Walker v. State, 153 Ala. 31, 45 So. 640 (1908), rev’d on other grounds, 184 Ala. 26, 63 So. 1010 (1913) (emphasis added).

When there is conflicting evidence as to venue, whether the State has proven venue is a question for the jury. Ex parte East, supra. However, when no evidence as to venue has been presented, the question is one for the court. Ex parte Day, 584 So.2d 493, 496 (Ala.1991); Ex parte East, supra. In that event, upon proper motion, the court may, and should, take the issue of venue from the jury and enter a directed judgment of acquittal for the defendant. Fañure to prove venue is ground for reversal. Ex parte Jones, 519 So.2d at 590.

We are unpersuaded by the City’s argument that it presented circumstantial evidence sufficient to establish that the offense occurred in Mobüe County and that venue was proper there. The prosecutor could have elicited the exact location of the offense simply by asking Officer Finklea where he stopped Russeü’s vehicle. Instead, the prosecutor asked Officer Fink-lea if he heard the trial judge say earlier that Officer Finklea had stopped Russell at the intersection of Dr. Martin Luther King Boulevard and English Street. A witness’s response to a question asking if he or she heard something that another has said indicates only whether the witness heard such statement. Thus, Officer Fink-lea’s affirmative response was not substantial evidence indicating that the offense occurred at or near the intersection of Dr. Martin Luther King Boulevard and English Street in Mobüe County. Furthermore, if there is no evidence indicating where Officer Finklea activated his siren and lights, then evidence indicating that Russell stopped his vehicle within 500 to 600 feet of that event does not, on its own, establish venue. For all that appears, Russell stopped his vehicle outside of Mobile County.

The City also argues that venue may be established based upon the fact that the officers who arrested Russell were employed by the Mobile Police Department and that Russell was taken to the police station in the first precinct, located at the corner of Virginia Street and Broad Street, after his arrest. Evidence indicating that Officer Finklea was a member of the Mobile Police Department when he made the arrest and that Russell was taken to the police station to which Officer Finklea was assigned is not proof beyond a reasonable doubt that Officer Finklea made the arrest within Mobile County. There must be affirmative evidence of the location at which a crime occurs. The City of Mobile was charged with the burden of proving venue; it failed to do so in this case. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.

MOORE, Chief Justice

(dissenting.)

I respectfully dissent from the Court’s conclusion that the venue of the offense was not sufficiently proved in this case. Officer Finklea testified that it took 10 minutes to transport Russell from the place of his arrest to the police station in the first precinct, which is in Mobile County. This in itself is a strong indication of proper venue. Officer Finklea, who is employed by the Mobile Police Department, was asked by the prosecutor the following question at trial: “I think you heard the Judge say earlier that, you stopped Mr. Russell at Dr. Martin Luther King [Boulevard] and English [street in Mobile]?” Officer Finklea responded, “Yes, ma’am.” I find Russell’s contention that Officer Fink-lea was merely stating that he had heard the Judge’s statement about where the arrest took place and was not verifying the location of the arrest to be suspect. The police complaint states that Russell was stopped on “a public street, road, highway or other place, at or near [the intersection of] Dr. M[artin] L[uther] K[ing] and English” within the city limits of Mobile. While the complaint cannot be considered evidence of the venue of the offense, it certainly provides a context for Officer Finklea’s answer to the prosecutor’s question.

The question of venue is one for the jury when some evidence tending to show that the offense was committed within the jurisdiction of the court has been presented. ‘When there is no evidence of venue or the evidence on the issue is undisputed, it is a question for the court, but when there is conflicting evidence of venue, it is a question for the jury.” Ex parte East, 584 So.2d 496, 498 (Ala.1991). Some evidence of venue was introduced; therefore, it was for the jury to decide if venue was proper, which it clearly did by convicting Russell.

Admittedly, the evidence as to venue could have been stronger; it would have been ideal had the prosecutor directly asked the arresting officer where he had picked Russell up. We make a mistake, in my view, if in our zeal for procedural perfection we overlook reality. The purpose of the venue requirement is to ensure that a court has geographical jurisdiction of the case. Neither the trial court nor the jury had any reasonable doubt about the evidence, as shown by the verdict. Because the evidence indicates that Russell was arrested in Mobile County, we have no reason to question the trial court or the jury on this matter.

The rationale of the Court of Criminal Appeals in its unpublished memorandum, that sufficient evidence of venue was presented at trial, is sound, given the evidence in the record. Accordingly, I would find that venue was sufficiently proved in this case and affirm the judgment of the Court of Criminal Appeals. Therefore, I dissent.

BROWN and STUART, JJ., concur.

      . Chief Justice Moore’s dissent relies upon the police report and the fact that Officer Finklea testified that it took 10 minutes to transport Russell from the place of his arrest to the police station in the first precinct. However, the police report was inadmissible; therefore, we should not even consider it. In addition, the fact that it took 10 minutes to get to the police station does not in and of itself prove venue; in a metropolitan area one can travel in and out of city limits in minutes.


author: McMILLAN, Presiding Judge.

text:
    Michael Levonne RUSSELL v. CITY OF MOBILE.
    CR-00-1160.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    James M. Byrd, Mobile; and Shelbonnie Coleman-Hall, Mobile, for appellant.
    Carol Carr Little, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

The Alabama Supreme Court, in Ex parte Russell, 844 So.2d 536 (Ala.2002), reversed the prior judgment of this court. Therefore, we reverse the judgment of the trial court and remand this cause to the trial court for proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: LYONS, Justice. HARWOOD, Justice SEE, Justice

text:
    Joseph POTTER and Jamie Potter, v. FIRST REAL ESTATE COMPANY, INC., and Dawn Borden.
    1010339.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      W. Lee Pittman and C. Carter Clay of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham (rehearing brief filed by W. Lee Pittman, C. Carter Clay, and J. Chris Cochran of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham), for appellants.
    Michael R. Lunsford and William Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for appellees.
   On Application for Rehearing

LYONS, Justice.

The opinion of May 24, 2002, is withdrawn, and the following is substituted therefor.

Joseph Potter and Jamie Potter filed an action to recover damages from Dawn Borden and First Real Estate Company, Inc., based upon allegations of misrepresentation, suppression, fraud, promissory fraud, breach of contract, negligence and recklessness in the sale of a house. Borden and First Real Estate moved for a summary judgment. The trial court denied the Potters’ Rule 56(f), Ala. R. Civ. P., motion to continue the summary-judgment hearing and entered a summary judgment for First Real Estate and Borden on the ground that the statute of limitations barred the Potters’ claims. The Potters appealed, but limited their submissions to this Court to the misrepresentation, suppression, fraud, and promissory-fraud claims. Therefore, those are the only claims before us. See Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 852 (Ala.2002).

Pertinent Facts

The following discussion of the facts is based entirely on Joseph Potter and Jamie Potter’s depositions and the documents underlying the sales transaction. First Real Estate did not submit an affidavit from Borden, and the trial court declined to postpone the hearing on the motion for a summary judgment to permit Borden to be deposed. We review the facts before the trial court at the time it ruled on the motion for a summary judgment in the light most favorable to the Potters, the nonmovants. Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2001).

In 1998 Joseph Potter and his then fian-cée, Jamie, were looking to purchase their first house. Joseph had graduated from Birmingham-Southern College with a degree in graphic design and was working as a graphic designer. Jamie was working as a dental assistant and was living with her parents. Joseph and Jamie saw a “First Real Estate” sign in the yard in front of Kimberly Boler’s house. They telephoned the number on the sign and spoke with Borden, a real-estate agent employed by First Real Estate.

Joseph Potter, Boler, First Real Estate, and Borden entered into an agency agreement; that agreement provided as follows:

“Seller and Buyer hereby acknowledge and agree that First Real Estate and its Agent(s) (for convenience referred to together, or interchangeably as ‘Broker’) are representing both Buyer and Seller and that Broker has been and is now the Agent of both Seller and Buyer with respect to this transaction. Seller and Buyer have consented to this dual representation.
“Seller, Buyer and Broker understand that Limited Consensual Dual Agency can create conflicts of interest. Therefore, Broker will not represent the interests of one party to the exclusion or detriment of the interest of the other party. Seller and Buyer, hereby acknowledge that Broker’s relationship with them is not one of a fiduciary, and they waive all claims which they have now or which may arise in the future in connection with conflict of interest and/or limited consensual dual agency.
“The parties understand that because Broker represents both parties, Broker must endeavour to be impartial as between Seller and Buyer. Except as expressly provided below, Broker in its capacity as Limited Consensual Dual Agency, will disclose to both Seller and Buyer all facts and information which Broker believes are material or which might affect Seller’s or Buyer’s decisions with respect to this transaction, whether or not the facts or information would be confidential except for the limited consensual dual agency.”

It is undisputed that Borden told Jamie Potter that she represented Joseph and Jamie “as much as she represented the seller.”

Borden twice accompanied Joseph and Jamie to the house. Joseph Potter testified that during the first visit he asked Borden if the house was located in a flood plain. Joseph Potter further testified that Borden responded that to her knowledge it was not, but that she would check on a survey she had in her office. Borden told Joseph and Jamie that they could obtain another survey if they wished, but that the one she had was a recent one and that they could save money if they used it. During their second visit to the property, Borden brought with her a survey of the property that she purportedly had obtained from a prior owner. Borden showed the survey to Joseph Potter. In his deposition, Joseph Potter testified:

“I looked over it and there was something on there about the flood [plain] and it was hard to read. You know, I attempted to read it and she said, well, ‘it says it’s not in a flood plain.’ And I tried to read the — you know, it’s got, ‘is, is not.’ It was hard to decipher so I just took her word.”

He further testified that he believed that the survey introduced into evidence by Borden and First- Real Estate in support of their motions for a summary judgment was a copy of the survey Borden showed him during the second visit. However, Joseph also stated that the survey Borden and First Real Estate introduced into evidence was “easier to read” than the one he was shown during his second visit to the house. Comparing the survey introduced into evidence and the one he was shown on his second visit, Joseph testified:

“I can make out most of the words on [the survey introduced into evidence by the defendants] by guessing [their] shape. [The survey I was shown at the house] was hard to make out ... half the words probably.”

Joseph testified that the survey he was shown during the second visit to the house was “almost illegible.”

On July 7, 1998, Joseph and Jamie met with Borden and Joseph executed an eight-page “Financed Sales/VA Contract” for the house. The sales contract stated: “THE PROPERTY ... _ IS X_ IS NOT LOCATED IN A FLOOD PLAIN .... ” (Capitalization original.) At the July 7 meeting, Jamie asked if the property was in a flood plain, and Borden replied, “No.” The sales contract also included a disclaimer that read, in part:

“Seller and Purchaser acknowledge that they have not relied upon the advice or representations of Broker ... relative to ... (vii) the investment or resale value of the Property; ... or (ix) any other matters affecting their willingness to purchase the Property on the terms and price herein set forth. Seller and Purchaser acknowledge that if such matters are of concern to them in the decision to sell or purchase the Property, they have sought and obtained independent advice relative thereto.”

Joseph placed his initials under this disclaimer. The sales contract also stated that “Neither Purchaser, Seller, nor Broker ... shall be bound by any understanding, agreement, promise, or representation concerning the Property expressed or implied, not specified herein.” An addendum to the sales contract stated that it was possible that sinkholes existed on the property and further stated:

“NO WARRANTY OR REPRESENTATION RESPECTING THE SOIL CONDITION OR ANY SUBSURFACE FAULT OR DEFECT, OR ANY OTHER CONDITION OF THE LAND ... IS MADE BY FIRST REAL ESTATE ... OR ITS AGENTS OR SUB-AGENTS.”

(Capitalization original.) Joseph Potter placed his initials below this addendum.

At the closing on July 31, 1998, Joseph was given several documents in addition to the sales contract, including a copy of the survey of the property. On that survey, in small print, appeared a notation that once stated, before the presence of any handwritten marks, “the property described herein (is) (is not) located in a special flood hazard area.” A slightly diagonal handwritten line moves from the lower left to the right over the words “is not.” The record before us does not contain a document purporting to be the actual document presented at closing. For all that appears, we have only a photocopy.

Joseph Potter signed a certificate acknowledging that he had “received and approved a copy of the survey.” Jamie did not sign any of the documents. According to Joseph’s deposition, as is discussed later, the copy of the survey he was given at the closing was another copy of the same survey he described as “almost illegible” at the time he first saw that survey on his second visit to the house.

Joseph and Jamie married on October 23, 1998, and she moved into the house with him. The Potters testified that they •first learned their property was in a flood plain on September 2, 1999, when they received a letter from their mortgage company stating that the property was in a flood plain and that they were required to purchase flood insurance. Joseph testified that when he received the letter he thought, “This can’t be right, we’re not in a flood plain,” and he put the letter in a drawer. After he received a second letter from his mortgage company, he contacted a friend who consulted “some old maps” and told him that he thought part of the Potters’ property was in a flood plain. Joseph contacted an insurance agent and purchased flood coverage for the structure of the house. In March 2000, after heavy rains, the Potters’ house flooded. Potter testified that he then consulted the survey he had received at the closing. He testified,

“It was very hard to read and I couldn’t make out whether it said ‘is’ or ‘is not’ so it didn’t end my questions.”

On February 22, 2001, the Potters filed this action. On September 28, 2001, after the Potters unsuccessfully attempted to postpone consideration of Borden’s and First Real Estate’s motions for a summary judgment to allow further discovery, the trial court entered a summary judgment for Borden and First Real Estate, stating:

“The Court finds that the Plaintiff[s] [were] put on notice that the property in question was in a flood hazard zone and therefore the Motion for Summary Judgment filed 9/4/01 is GRANTED and judgment is rendered in favor of the Defendants and against the Plaintiffls].”

On November 1, 2001, the trial court denied the Potters’ motion to alter, amend, or vacate the judgment. The Potters appealed.

Standard of Review

We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.”

Nationwide Prop. & Cas. Ins. Co., 792 So.2d at 872 (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.

Discussion

The Potters’ fraud claims are subject to a two-year statute of limitations. § 6-2-38(l), Ala.Code 1975; Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000). However,

“[t]hat statute of limitations is subject to the ‘saving clause’ provided by § 6-2-3:
“ ‘In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.’ ”

Seabol, 782 So.2d at 216. Section 6-2-3 supplies an objective test, tolling the statute of limitations on a fraud claim until the aggrieved party discovers or, in the exercise of reasonable care, should have discovered, the facts constituting the fraud. Seabol, 782 So.2d at 216; Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997); Moulder v. Chambers, 390 So.2d 1044, 1046 (Ala.1980).

In Foremost, the plaintiffs asserted fraud claims arising from their purchases of insurance for their mobile homes. A salesman told the plaintiffs that a premium would not be required for their first year of coverage. The salesman also sold them “adjacent structures coverage” in a “package policy,” although the plaintiffs did not desire such coverage. However, the plaintiffs received “various sales documents ..., all of which indicated that premiums were charged for the first year’s coverage.” Foremost, 693 So.2d at 414. Moreover, on the declarations page of the insurance policies the plaintiffs received, the letters “INCL” were typed under the line indicating adjacent-structures coverage. Foremost, 693 So.2d at 414-15. The plaintiffs relied on the salesman’s oral representations; they did not read the documents. Foremost, 693 So.2d at 414. The plaintiffs conceded “that had they read their sales documents and insurance policies they would have learned that they had paid for their first year’s coverage and that their policies included adjacent structures coverage.” Foremost, 693 So.2d at 422.

This Court reaffirmed that the “reasonable-reliance” standard is the test for determining when an aggrieved person should have discovered the facts constituting the fraud. Foremost, 693 So.2d at 421. “ ‘The question of when a party discovered or should have discovered the fraud is generally one for the jury.’ ” Seabol, 782 So.2d at 216, quoting Liberty Nat’l Life Ins. Co. v. Parker, 703 So.2d 307, 308 (Ala.1997). However, under the reasonable-reliance standard,

“the trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms.”

Foremost, 693 So.2d at 421. This Court held that “the plaintiffs received documents when they purchased their mobile homes ... that if read or even briefly skimmed would have put reasonable persons on notice [of the facts constituting the fraud].” Foremost, 693 So.2d at 421-22. However, the Court held that the reasonable-reliance standard would be applied prospectively in all cases filed after March 14, 1997, the date the opinion in Foremost was released, but would not be applied in Foremost itself. 693 So.2d at 421. Nevertheless, the Court commented that, had it applied the reasonable-reliance standard in that ease, the plaintiffs’ claims would have been barred by the statute of limitations because they received the documents more than two years before they filed their complaints alleging fraud and they testified that had they read those documents they would have learned of the fraud. Foremost, 693 So.2d at 422.

Two years ago in Seabol, we reversed a summary judgment for the defendant that had been entered on the basis that the statute of limitations barred the action, even though the plaintiff had received documents that could have alerted him to the fraud more than two years before the commencement of the action. In that case the plaintiff, a realtor, alleged that the defendants, his attorney and bank, knew that a mortgage on his property did not constitute a valid hen against six acres of his property as to future advances because the mortgage contained no provision to secure future advances. The plaintiff alleged that the attorney and the bank nevertheless represented to him that the property could be immediately foreclosed on in order to persuade him to sell the property to the attorney at a low price. 782 So.2d at 213-14. Although Seabol had possession of the mortgage and the promissory note more than two years before he commenced the action, we held that his fraud claim was not barred by the statute of limitations. Seabol, 782 So.2d at 213. Seabol’s mortgage made no reference to future advances and, thus, was not a valid hen against the property as to any future advances. However, his promissory note for the future advances stated that it was secured by a mortgage. Seabol, 782 So.2d at 213.

We distinguished Foremost, holding that the documents Seabol was provided were “not as easily understood” as those in Foremost. Seabol, 782 So.2d at 216. In Foremost, ah the documents provided to the plaintiff clearly showed that an insurance premium had been charged, contrary to the salesman’s representations, and that adjacent-structures coverage was included. Moreover, the plaintiffs in Foremost conceded that had they read the documents they would have learned of the fraud. 693 So.2d at 422. In Seabol, we held that despite Seabol’s knowledge of real-estate transactions and despite the fact that he had documents in his possession that might have revealed the fact he said was not disclosed, “a jury, taking Seabol to be a reasonable realtor, could find that his rebanee on the oral representations of his attorney and his banker was reasonable.” Seabol, 782 So.2d at 217.

Whether an agreement is ambiguous is a question of law for the trial court. ERA Commander Realty, Inc. v. Harrigan, 514 So.2d 1329 (Ala.1987). In the context of a contract action, an unambiguous agreement must be enforced as written. Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala.2000). It is clear that the trial court, notwithstanding Joseph’s testimony as to his subsequent difficulty in reading the survey furnished him at the closing, concluded as a matter of law that the survey unambiguously informed the Potters that the property was situated in a flood plain. Based upon the documents before us that clearly show the words “is not” to have been struck through by a hand-drawn bne, we cannot say that the trial court erred in reading the survey as giving the Potters notice that the property is situated in a flood plain. Potter’s testimony that “I couldn’t make out whether it [the survey included in the closing documents] said ‘is’ or ‘is not’ so it didn’t end my questions,” cannot override the trial court’s holding on this question of law reserved for the court under our settled jurisprudence.

We cannot, however, end our inquiry at this juncture because to do so would overlook the fraud claims made the basis of this action. In other words, while, in an action based in contract, the contract that is the subject of the action must be enforced as written, the same rule may not apply in a fraud action. It has long been the settled law of this State that a party to a contract who is ilbterate can allege fraud and thereby overcome the other party’s reliance on the terms expressed in the contract. See, for example, Paysant v. Ware, 1 Ala. 160 (1840), where this Court stated:

“So, oral evidence is admissible to prove a fraudulent omission of some material part of an agreement. Thus, if a plaintiff, in reducing a contract to writing, between the defendant and himself, were to omit a material stipulation, and represent to the defendant, who could not read, that the writing was drawn according to the intention of both parties, the presumption of fraud would be so strong as to let in oral proof of what was their agreement. And in general, it may be shown, that fraud and imposition were practised upon a party to an instrument, by a fraudulent omission, or misrepresentation of the contents, especially, if the party were illiterate: Joynes v. Statham; 3 Atk. Rep. 388.”

1 Ala. at 165-66 (emphasis added).

In Goetter, Weil & Co. v. Pickett, 61 Ala. 387 (1878), this Court held:

“The evidence without conflict showed that he could read and write, and that he had ample opportunity of reading the note before signing it, and that he did read it so far as to ascertain its amount. There was no misrepresentation to him of the contents of the note, and if he has executed an instrument, he did not intend executing, his own negligence without any fraud or deceit of the party with whom he was dealing, is the cause. The fact that he did not read it, having full opportunity to do so, simply proves his negligence and inattention to his own interests, and in the absence of all misrepresentation or artifice by the party with whom he was dealing, was immaterial and irrelevant. A party who having full capacity and opportunity to read a paper, and to whom there is no misrepresentation of its contents, can not set up his own want of attention — his failure to read it, as a fact to invalidate it.”

61 Ala. at 390-91 (emphasis added).

The continued vitality of this doctrine is noted in Foremost, where this Court held that summary judgment is appropriate “where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents.” Foremost, 693 So.2d at 421 (emphasis added). As previously noted, we distinguished Foremost in Seabol, where the complexities of a transaction requiring the correlation of multiple documents made it appropriate for the jury to determine whether Seabol was fully capable of understanding the documents.

The Potters recognize that Foremost permits the trial court to enter a summary judgment in the face of testimony from the plaintiff that he had not read the written documents. However, the Potters contend that Foremost does not empower trial judges to decide when discovery of the fraud should reasonably have occurred unless the undisputed evidence establishes that the fraud should have been discovered. To support their contention, the Potters direct our attention to cases decided under the reasonable-reliance standard, where this Court excused the victim of an alleged fraud from the consequences of the plain language of a document in face of evidence “that he was lulled into a feeling of security and into any neglect to read the same by the misrepresentations of the agent.” See Southern Building & Loan Ass’n v. Dinsmore, 225 Ala. 550, 552, 144 So. 21 (1932). See also Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala.1983); Bedwell Lumber Co. v. T & T Corp., 386 So.2d 413 (Ala.1980), and Cahaba Valley Dev. Corp. v. Nuding, 512 So.2d 46 (Ala.1987). Borden and First Real Estate offer us no aid in harmonizing these cases with Foremost, standing instead on a broad reading of Foremost.

It is not clear from Foremost whether Alabama cases predating the justifiable-reliance standard and allowing, under limited circumstances, misrepresentations that lull even a literate party into not reading the contents of an agreement create a jury question as to the reasonableness of the reliance, thereby tolling the running of the statute of limitations until the discovery of the inconsistency between the representations and the documents. We must therefore decide in this case whether, under the reasonable-reliance standard, evidence showing that a single clear and unambiguous document was submitted to a literate person at the time of closing always triggers the running of the statute of limitations, regardless of circumstances and events preceding the closing or events occurring at the closing.

The justifiable-reliance standard was first adopted in Hickox v. Stover, 551 So.2d 259 (Ala.1989). Under the justifiable-reliance standard, a plaintiff “ ‘has not justifiably relied on the defendant’s representation if that representation is “one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth.” ’ ” 551 So.2d at 263 (quoting Southern States Ford, Inc. v. Proctor, 541 So.2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially)). Under this standard, any representation falling just short of being “patently and obviously false” required submission of the case to a jury. Hicks v. Globe Life & Accident Ins. Co., 584 So.2d 458 (Ala.1991), was decided soon after Hickox. Hicks was described in Foremost as follows:

“However, in Hicks, a plurality of this Court rejected the long-standing rule that our objective standard of reviewing the statute of limitations issue in fraud cases incorporated the duty to read a document upon its receipt or presentation; and it held that ‘[t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud.’ 584 So.2d at 463.”

Foremost, 693 So.2d. at 418 (emphasis on “actually knew” in Hicks; other emphasis added).

Viewing the Foremost Court’s description of the problem in Hicks as permitting a fraud case to go to the jury in all circumstances where all the plaintiff had to say was that he did not, in fact, know what the contract said, it is consistent with Foremost to recognize a jury question in a fraud case where the plaintiffs ignorance of the contents of a document is reasonable under the circumstances.

Such a result conforms to earlier Alabama cases decided before the adoption of the justifiable-reliance standard. The plaintiff in Southern Building & Loan Ass’n v. Dinsmore was a farmer with little or no experience in corporate transactions who, as a result of the fraudulent description of a document as being merely an “identification card,” executed a subscription contract. Nothing in the opinion suggests that the plaintiff was illiterate. This Court stated the standard as follows:

“The argument for the affirmative charge is rested upon the possession by the plaintiff of the surplus certificate continuously from the time of its delivery to him and a knowledge of its contents imputed to him by the law. But plaintiff did not read the certificate and there is no evidence he had any actual knowledge of its contents, and his proof tends to show that he was lulled into a feeling of security and into any neglect to read the same by the misrepresentations of the agent. Under these circumstances the law imputes to him no knowledge of its contents.”

225 Ala. at 552, 144 So. at 23. The Court then concluded:

“Plaintiffs proof tends to show he acted in entire ignorance of this scheme and in absolute reliance upon the representations made and read neither the card nor the surplus certificate. But no detailed discussion of the evidence is necessary to demonstrate the jury’s right to infer from the evidence a gross fraud within the meaning of the above noted authorities.”

225 Ala. at 553, 144 So. at 23. Three years before Hickox, in Holman v. Joe Steele Realty, Inc., 485 So.2d 1142, 1144 (Ala.1986), this Court, albeit referring to the reliance in that case as “justifiable,” upheld a summary judgment for the defendant and distinguished Dinsmore, stating:

“The instant case does not come within the rule of Southern Building & Loan Ass’n v. Dinsmore, 225 Ala. 550, 144 So. 21 (1932), that the law imputes no knowledge of a contract’s contents to a party who signs the contract without having read or having knowledge of its contents, if that party is lulled into a feeling of security because of a misrepresentation of the contents of the contract and because of special circumstances, relationships, or disability of the party relating to the contract’s execution. See also Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala.1983); Rose v. Lewis, 157 Ala. 521, 48 So. 105 (1908). There is no evidence that the Holmans did not read or were incapable of understanding the import of the contract provision. There is no evidence of any special relationship between the Hol-mans or Clokey [the defendant real-estate broker] or any special circumstance or disability of the Holmans that would negate a finding that they knew of the contract provision. Moreover, there is no evidence of any misrepresentation of the content of the agreement or the employment of trick or artifice that would lull the Holmans into a false sense of security.”

(Emphasis added.)

Pre-Hicks precedent in this State — allowing a fraud case to go to a jury on the issue of reasonable-reliance, even when the plaintiff had documents in hand that he or she could have read, and, if read, were inconsistent with the statements allegedly relied on — indicates that Foremost, with its return to the reasonable-reliance standard, does not always require a summary judgment for the defendant whenever the closing documents contradict the allegedly fraudulent misrepresentation. In our willingness to eliminate a standard that recognized a jury question whenever a plaintiff simply failed to read the agreement, we must avoid embracing a rule, inconsistent with our settled precedent, that would tolerate abuse of special relationships, particularly involving artifices to deceive as to the content of documents when presented at the time the agreement is memorialized. The challenge is to recognize those circumstances that make reliance reasonable even in the face of a clear contract document stating the fact alleged to have been misrepresented without setting a standard that returns us to the rule of Hicks whereby all a plaintiff had to say to sustain a fraud claim or to defeat a summary judgment on a fraud claim was that he never read the contract and that a fact had previously been misrepresented. Fortunately, Dinsmore and the pre-justifiable-reliance cases applying it spare us the task of reinventing the wheel. Moreover, the rule in Dinsmore falls within the mainstream of American jurisprudence. See Comment to Restatement (Second) Torts § 545A (“Thus one who presents a document to an illiterate man, misrepresenting its contents, and invites him to sign it, knowing that he cannot read it, cannot be heard to say that he is negligent in doing so. The same may be true when there is a relation of trust and confidence between the parties or the defendant has made successful efforts to win the confidence of the plaintiff and then takes advantage of it to deceive him.”).

Examining the transaction in this case for its consistency with Dinsmore and its differences from Foremost, we first note that Borden told Jamie Potter that she represented Joseph and Jamie “as much as she represented the seller.” Moreover, the agency agreement prepared by First Real Estate and executed by First Real Estate, Borden, Joseph Potter, and Boler states, “Broker will not represent the interests of one party to the exclusion or detriment of the interest of the other party.” The agency agreement further states, “Broker in its capacity as Limited Consensual Dual Agency, will disclose to both Seller and Buyer all facts and information which Broker believes are material or which might affect Seller’s or Buyer’s decisions with respect to this transaction.” These facts presented the jury with a contractual basis that formalized the existence of a special relationship of trust or confidence between Borden and the Potters that included a duty to disclose and that lulled the Potters into a feeling of security. See Dinsmore, 225 Ala. 550, 144 So. 21 (1932). The duty to disclose is at the heart of the special relationship, and this duty was expressly assumed by contract and by statements made by Borden that she was representing the buyers as much as the sellers. See § 6-5-102 (“Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”). See also Bethel v. Thorn, 757 So.2d 1154, 1162 (Ala.1999), referring to the fraud claim in Deupree v. Butner, 522 So.2d 242, 244-45 (Ala.1988), as being supported by evidence “sufficient to show, as between the developer and the purchasers, a ‘special relationship’ that gave rise to a duty to disclose.” No special relationship existed between the insurance salesman and the purchaser in Foremost.

Joseph Potter was given documents that were inconsistent. The sales contract stated: “THE PROPERTY ... _ IS _X IS NOT LOCATED IN A FLOOD PLAIN ....” As earlier noted, the survey furnished at the closing indicated otherwise. No inconsistent documents were present in Foremost. According to Joseph, the survey shown to him at the time of his second visit to the property was almost illegible, yet the real-estate agent, who was acting as an agent for both Joseph Potter and the seller, looked at the survey and stated that the property was not located in a flood plain. The trial court has made no finding as to the clarity or import of this document. Joseph’s testimony that the survey was almost illegible is the entire evidence before us on this point. No conflicting copies of the same document were present in Foremost. Again, according to Joseph, another copy of the same survey was included in the closing documents. At that time, he again asked Borden for assurances that the property was not located in a flood plain, and his agent gave such assurances. Although Joseph signed a certificate acknowledging that he had “received and approved a copy of the survey,” that fact, under the circumstances of this case and especially in light of the aforementioned reassurance by Borden given at the closing, does not necessarily imply that he then read the survey. Had he signed a statement that clearly acknowledged that he had read the survey at the time of the closing, in light of our conclusion as to the correctness of the trial court’s finding that the copy of the survey presented at closing was not ambiguous, a different case would be presented.

Under these circumstances, applying the standard in Dinsmore, as amplified in Holman, we conclude that there is evidence of a special relationship between the Potters and Borden, evidence indicating that Joseph was unable to read an earlier version of a document that was presented again at the closing in a legible condition, and evidence of renewed assurances that the document presented at the closing was consistent with the previous document described by Joseph as almost illegible. Suffice it to say that the conclusion reached in Holman, 485 So.2d at 1144 (“there is no evidence of any misrepresentation of the content of the agreement or the employment of trick or artifice that would lull the Holmans into a false sense of security”) does not apply to these facts. Here there is sufficient evidence to warrant a determination by the jury that there was a “misrepresentation of the content of the agreement or the employment of trick or artifice” at the time of the closing that lulled the Potters into a “false sense of security.”

This application of the reasonable-reliance standard is consistent with Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983), described by Justice Houston in his dissent in Hickox, 551 So.2d at 266-67, as the appropriate standard by which reasonable reliance should be determined. In Torres, this Court stated as follows:

“In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances. If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover. Bedwell Lumber Co. v. T & T Corporation, 386 So.2d 413, 415 (Ala.1980).
‘If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, “vo-lunti non fit injuria.”
“Munroe v. Pritchett, 16 Ala. 785, 789 (1849).”

438 So.2d at 759 (emphasis added). On the record before us it cannot be said as a matter of law that the Potters blindly trusted their broker — who acknowledged that she represented them — where they should not have and closed their eyes where ordinary diligence required them to see.

Borden and First Real Estate also contend that an unambiguous reference on the survey to “Community Panel Number 0102170183 Panel 183 of 660, Jefferson County, Ala. Zone A-2,” when read in connection with a document entitled “Insurance Requirements,” admonishing the purchasers to secure adequate flood insurance on improvements located in FEMA maps “whose Zone Designations are ... AR/A1-30,” should have put Joseph and Jamie on notice that the property was located in a flood plain. We conclude, as we did in Ex parte Seabol, 782 So.2d at 216, that “the documents at issue are not as easily understood” as those in Foremost. Hence, a jury question is presented. •

Even absent the evidence the Potters sought leave to obtain in their Rule 56(f) motion, a jury, taking the Potters as reasonable first-time home buyers, could conclude that they reasonably relied on Borden’s oral representations and the statement in the sales agreement that the property was not in a flood plain. Seabol, 782 So.2d at 217. See also Liberty Nat’l, 703 So.2d at 308. A jury could find that the two-year statute of limitations did not begin to run when the Potters received the survey at the closing, and their claims would not be time-barred. The trial court erred in entering a summary judgment based on a finding “that the Plaintiff was put on notice that the property in question was in a flood hazard zone.” We hasten to add that we are viewing the evidence in a light favorable .to the Potters, as we are required to do, and that we have no testimony before us from Borden and First Real Estate. However, any contradictory version of the transaction must be presented at trial.

Borden and First Real Estate argue that they cannot be liable to the Potters because, they say, they were acting as mere conduits of information between the buyer and the seller. However, in none of the authorities relied upon by Borden and First Real Estate was the broker or agent acting as a dual agent. As already noted, according to the evidence before us, Borden told Jamie Potter that she represented the Potters “as much as she represented the seller.” Moreover, according to Joseph, Borden looked at the document Joseph determined to be almost illegible and stated that the survey indicated that the property was not in a flood plain. Under the evidence before us, she was not acting merely as a conduit but was rather a direct source of information.

Borden and First Real Estate challenge Jamie’s standing to bring the action because she did not enter into any contract to purchase the property nor did she take title to the property. In Doss v. Serra Chevrolet, Inc., 781 So.2d 973, 976-77 (Ala.Civ.App.2000), the Court of Civil Appeals addressed this issue:

“However, ‘[i]t is not necessary to an action for misrepresentation that there be a contractual relationship between the representor and the person deceived.’ Mid-State Homes, Inc. v. Startley, 366 So.2d 734, 735-36 (Ala.Civ.App.1979). Similarly, ‘in an action alleging suppression of a material fact, a duty to disclose may be owed to a person with whom one has not had a contractual relationship or other dealings.’ Carter v. Chrysler Corp., 743 So.2d 456, 461 (Ala.Civ.App.1998) (internal quotation marks omitted). Although Alabama law recognizes that persons who are not parties to a particular transaction generally have ‘no right of action [for fraud occurring during that transaction], there is an exception to this general rule: “If a third person is injured by the deceit, he may recover against the one who made possible the damages to him by practicing the deceit in the first place.” Thomas v. Halstead, 605 So.2d 1181, 1184 (Ala.1992) (quoting 37 C.J.S. Fraud § 60 (1944)).”

(Emphasis added.)

Although Jamie was Joseph’s fiancée at the time of the transaction made the basis of this action, this circumstance was known to Borden and First Real Estate, and her experience as a wife in a flooded house confers upon her standing to seek damages for fraud.

Based upon our resolution of this matter it is unnecessary to consider the issue urged on us by the Potters concerning the necessity for further discovery before the entry of the summary judgment. We reverse the summary judgment entered in favor of Borden and First Real Estate and remand the case for further proceedings consistent with this opinion.

APPLICATION OVERRULED; OPINION OF MAY 24, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

HARWOOD, J., concurs specially.

SEE, BROWN, and STUART, JJ., dissent.

HARWOOD, Justice

(concurring specially).

I concur with the main opinion. I write specially to comment further on the standing of Jamie Potter to participate as a plaintiff with respect to the claims presented on appeal. Certain facts in addition to those stated in the main opinion serve to reinforce in my mind the conclusion reached in the main opinion that Jamie has such standing.

The realtor in this case, Dawn Borden, clearly understood by the time of her first meeting at the house with Joseph Potter and Jamie that they were engaged to be married in the near future and that they were looking for a marital home. Borden, as a realtor, presumably understood that, even if title to the home was taken solely in Joseph’s name, Jamie would acquire homestead rights in it as his wife. Joseph and Jamie were again together, as an engaged couple, when Borden met with them at the house for a second visit. After that visit, the three of them traveled to Borden’s nearby office, and Joseph made an offer on the house. The clear import of the respective deposition testimonies of Joseph and Jamie is that the various statements Borden made on those occasions concerning the non-flood-plain status of the property were directed to both of them. Joseph and Jamie were again both present at the closing of the transaction, on July 31, 1998, and Jamie was the one who broached again the question whether the property was possibly in a flood plain. Borden, in response to Jamie’s inquiry, once again stated that it was not. As noted in the main opinion, Borden had told Joseph and Jamie “that by law she had to represent them as much as she represented the seller.”

Viewing all of these facts in a light most favorable to the Potters, and according them the benefit of all inferences reasonably to be derived from those facts, as we are bound to do in reviewing a summary judgment, it is clear that Jamie was an intended recipient of the information imparted by Borden concerning the floodplain status of the property and that she was expected to act in reliance on it. It is certainly a reasonable inference that when an engaged couple is jointly dealing with a realtor concerning the acquisition of a marital home, and the wife-to-be participates as fully as did Jamie in all of the discussions and dealings concerning the home, she would have a strong, if not decisive, voice in whether a particular house was selected.

SEE, Justice

(dissenting).

I dissent from the main opinion’s holding that the Potters’ decision to enter into a contract without fully ascertaining its terms or making an independent inquiry when faced with ambiguities in that contract frees them from the operation of the statute of limitations on their fraud claims. The trial court found that the Potters had entered into a contract that stated that the house was in a flood plain, a conclusion the main opinion does not reverse. I agree with the statement in the main opinion that Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997), with its return to the reasonable-reliance standard, does not always require a summary judgment for a defendant whenever the closing documents contradict the allegedly fraudulent misrepresentations; however, I am mindful of the troubling history of the justifiable-reliance standard, which relieved plaintiffs from the burden of reading contracts and acting within some limitations period. Nor do I think that the language in Ex parte Seabol, 782 So.2d 212, 216 (Ala.2000), that “the documents at issue are not as easily understood” as those in Foremost is a meaningful standard to guide us through this thicket. Consistent with my previous writings on this subject, concurring specially in Foremost and concurring in part and dissenting in part in Ex parte Seabol, I do not find reasonable the Potters’ reliance on the representations of the real-estate agent who was acting in a dual capacity as an agent for both the buyers and the seller. To hold otherwise, as discussed in my special writing in Foremost, is to sever the “bond between the right to rely and the responsibility to act reasonably.” 693 So.2d at 439 (footnote omitted). I therefore dissent from the reversal of the summary judgment for First Real Estate and Dawn Borden as to the Potters’ fraud claims.

BROWN and STUART, JJ., concur.