Atkinson v. Long

Decision Date10 January 1990
Citation559 So.2d 55
PartiesLinda ATKINSON v. Walter LONG and Century 21 Academy Realty. Civ. 7388-X.
CourtAlabama Court of Civil Appeals

David Vance Lucas and William H. Johnston, Jr. of Johnston, Johnston & Moore, Huntsville, for appellant.

E. Ray McKee, Jr., Huntsville, for appellees.

ROBERTSON, Judge.

This case comes to us on an appeal from a summary judgment entered by the trial court. Consequently, we must determine the appropriateness of that order under the "substantial evidence" rule. § 12-21-12, Code 1975 (1987 Cum.Supp.).

Pursuant to 1987 Ala. Acts 184, now § 12-21-12, the scintilla rule was abolished and replaced on June 11, 1987, by the "substantial evidence" rule. This case, having been filed after the effective date of the new act, is governed by the new rule.

We note that this change did not alter the procedure concerning the burden of proof on a motion for summary judgment. It simply increased the burden of the nonmovant.

In other words, a Rule 56, Alabama Rules of Civil Procedure, motion for summary judgment requires that the movant establish that no genuine issue of material fact exists, at which time the burden of proof shifts to the nonmovant, who must then establish "substantial evidence" supporting his position. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989).

Here, Atkinson's complaint against her employer asserted that she was not paid real estate commissions pursuant to her contract with her employer and that her employer committed fraud with regard to certain insurance coverage paid for by Atkinson.

The trial court granted summary judgment in favor of the employer on both counts. We affirm.

When we review the propriety of a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Motes v. Matthews, 497 So.2d 1121 (Ala.1986).

The first count on which summary judgment was granted was a breach of contract action. Summary judgment is proper in breach of contract cases only if the contract is unambiguous and the facts are undisputed. Johnston v. Central Bank, 501 So.2d 1237 (Ala.Civ.App.1987).

The alleged contractual breach between the parties regarded commissions due to Atkinson for sales contracts that were to close after her termination. Specifically, Atkinson maintains that she was entitled to the full commission normally due an agent on houses that closed after her termination.

However, the employer asserts that Atkinson is due only 1/2 her normal commission. The language the employer relies on to provide this contract term is found in an "employee policy manual."

The pertinent manual language is as follows:

"TERMINATION

"....

"Pending Sales to be Closed: In the event a sales associate has sales contracts to be closed after termination, another sales associate will be assigned by the manager to follow through on completing the transaction, and the terminating sales associate will receive one half ( 1/2) the normal commission less outstanding expenses when the transaction closes." (Emphasis added.)

In Hoffman-LaRoche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987), the supreme court determined that "the language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract." (Emphasis added.)

Specifically, the court held:

"The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer.

Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he had become generally aware of the offer.

His actual performance supplies the necessary consideration."

We have set out the pertinent language from the manual and find that it is clear enough to constitute an offer to the employee. Likewise, we find no ambiguity in its provisions. Any of the employer's agents should have no difficulty understanding that commissions for pending sales, to be closed after an agent's termination, are reduced to 1/2 the normal commission.

Further, the record evidence is clear that Atkinson received the handbook and rate schedule. In fact, she signed a statement averring: "I have read the Century 21 Academy Realty Policy Manual, understand it completely, and agree to comply with its contents." The statement is dated April 4, 1988, and Atkinson was not terminated until May. Thus, she clearly retained employment after the offer was communicated to her. In view of our finding these facts to be uncontroverted and the contract provision unambiguous, we affirm the summary judgment on the contract claim. Johnston, supra.

Now we turn to the fraud count. On appeal, Atkinson alleges that summary judgment was improper on this count because of evidence suggesting fraud by the employer. Specifically, she asserted that the employer committed fraud by making misrepresentations about the applicability of errors and omissions coverage in insurance purchased by the employee at the employer's request. Atkinson argues that the employer knew the insurance did not cover her but that the employer continued to require premium payment, which implied coverage. In short, Atkinson appears to be relying on the provisions of § 6-5-102, Code 1975, and/or § 6-5-104, Code 1975, to assert a claim of fraudulent concealment by the employer.

The employer asserts in his affidavit that Atkinson "might not have been covered under the errors...

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11 cases
  • Driver v. National Sec. Fire & Cas. Co.
    • United States
    • Alabama Supreme Court
    • March 3, 1995
    ...of Rule 68 are plain and that, except in some cases presenting facts such as these, they should be enforced. See, Atkinson v. Long, 559 So.2d 55, 57 (Ala.Civ.App.1990). 1 She also sued Walter T. McKinney, the owner of the vehicle operated by the uninsured motorist, but the claims against Mc......
  • Green v. City of Hamilton, Housing Authority, 90-7364
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 9, 1991
    ...was specific enough to give rise to contractual rights and obligations. See Hoffman-LaRoche, 512 So.2d at 735-37; Atkinson v. Long, 559 So.2d 55, 56-57 (Ala.Civ.App.1990). Thus, the factfinder may also consider the handbook in determining whether a clear and unequivocal offer of permanent e......
  • Ennis v. Kittle
    • United States
    • Alabama Court of Civil Appeals
    • June 25, 1999
    ...pay the costs incurred after the making of the offer" (emphasis added). "[T]he language of the rule is mandatory." Atkinson v. Long, 559 So.2d 55, 58 (Ala. Civ.App.1990). As a noted commentator on the analogous Rule 68, Fed.R.Civ.P., has observed, this provision limits the customary discret......
  • Goree v. Shirley
    • United States
    • Alabama Court of Civil Appeals
    • March 24, 2000
    ...Presiding Judge Robertson, writing for this court in Ennis, stated: "`[T]he language of [Rule 68] is mandatory.' Atkinson v. Long, 559 So.2d 55, 58 (Ala.Civ.App.1990). As a noted commentator on the analogous Rule 68, Fed. R.Civ.P., has observed, this provision limits the customary discretio......
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