Arfor-Brynfield, Inc. v. Huntsville Mall Associates

• Citation: 479 So.2d 1146
• Decision Date: 30 August 1985
• Docket Number: ARFOR-BRYNFIEL,INC
• Parties: , a/k/a Germano's Gallery v. HUNTSVILLE MALL ASSOCIATES, a partnership. 84-379.
• Court: Alabama Supreme Court

Page 1146

479 So.2d 1146

ARFOR-BRYNFIELD, INC., a/k/a Germano's Gallery v. HUNTSVILLE MALL ASSOCIATES, a partnership.

84-379.

Supreme Court of Alabama.

Aug. 30, 1985.

Rehearing Denied Nov. 8, 1985.

L. Tennent Lee III of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellant. ¹

Frank K. Noojin, Jr. and Michael I. Spearing of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.

SHORES, Justice.

The tenant appeals from the final judgment set out below in an unlawful detainer action brought by the owner:

"FINAL JUDGMENT

"This cause came on for trial on December 10, 1984, on the Court's regularly scheduled and published trial docket and the Plaintiff moved the Court to rule on its Motion In Limine filed in this cause; the Plaintiff's Motion In Limine takes the point that defenses of waiver and estoppel have not been plead as required by Alabama Rule of Procedure 8(c) and are not listed as defenses in this Court's Pre-Trial Order, and therefore, said issues of waiver and estoppel should not be injected into the case by counsel for the Defendant at this point in time.

"The Court considers the Motion and arguments and other matters presented by counsel for the Plaintiff and counsel for the Defendant and notes that the Pre-Trial Order lists the only defense of the Defendant as follows:

" 'B. In answer to the Complaint the Defendant generally denies the allegations thereof;'

The Court finds that the defenses of waiver and estoppel are not made issues in the case by the Court's Pre-Trial Order and that the Plaintiff would be prejudiced if the Defendant were allowed at this point in time to inject the issues of waiver and estoppel into the case;

"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Plaintiff's Motion In Limine is granted;

"WHEREUPON, on December 10, 1984, Defendant's counsel orally moves the Court, for the first time, to allow Defendant to amend its Answer to add the defenses of waiver and estoppel arising out of the Defendant's claim that some other tenants of the Plaintiff had not been required by the Plaintiff to operate the same hours as the Defendant was being required to operate and the Court having considered said oral Motion and the arguments of counsel for the Defendant and counsel for the Plaintiff thereon, the pleadings, issues and status of the proceedings, the specific objection of counsel for the Plaintiff that the Order for Pre-Trial Conference entered in this cause dated April 19, 1984, was entered and forwarded to all parties, that the Pre-Trial Order entered by the Court allowed a defense of general denial only and not the affirmative defenses of waiver and estoppel, which must be specially pleaded, as required by Rule 8(c) of the Alabama Rules of Civil Procedure and other matters presented by the parties, and the Court finds that said amendment should not be allowed and that there would be undue prejudice to the Plaintiff if same were allowed;

"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Defendant's motion to amend its answer to assert the defenses of waiver and estoppel is denied;

"WHEREUPON, the Defendant's counsel advises the Court in open court that the Defendant has no defense to the Plaintiff's claim in this action due to the fact this Court has previously ruled the lease in question was unambiguous, and due to the fact that said affirmative defenses of waiver and estoppel are not allowed and reserving his right to appeal and assign error, Defendant's counsel confesses judgment on the merits in favor of the Plaintiff and against the Defendant on the issues in the case for the premises described in the pleadings and herein. The parties agree in open court that no jury need be impaneled to render verdict but that said verdict and judgment may be rendered by the Court. The Defendant further moves the Court to set bond to stay execution and set an amount for supersedeas bond on appeal and to set a time for which execution will be stayed without filing bond and without filing supersedeas bond;

"WHEREUPON, Plaintiff's and Defendant's counsel agree, with the consent of the court, that execution on this Order shall be stayed for a period of seven days from the date hereof without bond and that thereafter execution shall issue unless the Defendant shall post bond in the amount of $9,126.60 to stay execution until the expiration of time for appeal and that said sums shall also serve as the amount of supersedeas bond to be filed by the Defendant to stay execution upon the filing of Defendant's notice of appeal in this cause "And now the Defendant having confessed judgment for the Plaintiff on the merits in open court, but reserving his right to appeal, the Court enters final judgment in favor of the Plaintiff and against the Defendant on the issues in this cause;

"It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that

"1. The Defendant is now in possession of the premises sued for, to-wit: Space F-8B, Parkway City Shopping Center, 2801 South Memorial Parkway, Huntsville, Alabama 35801;

"2. That said Defendant holds the said premises after its right of possession is terminated and after Plaintiff has demanded same;

"3. That the Defendant, Arfor-Brynfield, Inc. d/b/a Germano's Gallery do forthwith deliver to the said Huntsville Mall Associates, the Plaintiff, the full and quiet possession of the following described property, to-wit: Space F-8B, Parkway City Shopping Center, 2801 South Memorial Parkway, Huntsville, Alabama 35801;

"4. That the said Defendant remove therefrom itself, those holding under it and all of its personal property;

"5. That the said Plaintiff do have and recover of the said Defendant possession of Space F-8B, Parkway City Shopping Center, 2801 South Memorial Parkway, Huntsville, Alabama 35801 and the cost of this proceeding for all of which let execution issue provided that execution is stayed for a period of seven days from the date of this Order as per agreement of the parties above set out but, thereafter, execution shall only be stayed by the posting of bond as above stated.

"Dated this 13th day of December, 1984.

"/s/ S.A. Watson, Jr.

"Circuit Court Judge"

The dispositive issue on appeal is whether the trial court erred to reversal in disallowing the amendment to the tenant's answer offered for the first time on the day the case was set for trial, some seven months after a pre-trial conference was held and a pre-trial order was entered which stated that the tenant's defense was a general denial and that amendments would be allowed only to meet proof at trial of which the parties were presently unaware. The order setting the pre-trial conference cautioned:

"PARTIES SHALL NOTE THAT THE REQUIREMENTS OF THIS ORDER ARE MANDATORY AND FAILURE TO COMPLY HEREWITH SHALL RESULT IN IMPOSITION OF SANCTIONS. PARTIES SHALL NOTE FURTHER THAT DISTRIBUTION OF THIS ORDER SHALL BE REGARDED BY THE COURT AS SUFFICIENT NOTICE UPON WHICH TO BASE DEFAULT JUDGMENT OR DISMISSAL IN THE EVENT OF A FAILURE TO APPEAR."

Three and one-half months before the case was set for trial, the owner filed the following motion in limine, specifically objecting to any reference to waiver or estoppel:

"Plaintiff, Huntsville Mall Associates, hereby moves the Court in limine to instruct, direct, and order Defendant Arfor-Brynfield, Inc., d/b/a Germano Gallery, its witnesses and attorneys not to mention, refer to, or mention in any way, either directly or indirectly any evidence, of any form or nature, regarding any alleged waiver by Plaintiff of its right to rely on the continuous operation clause of the Lease Agreement between the parties that is the ground for evicting the Defendant or regarding any allegation that Plaintiff is estopped to rely on the continuous operation...