Baker v. Ball

• Decision Date: 21 June 1985
• Citation: 473 So.2d 1031
• Parties: Wilmer E. BAKER and Mary Louise Baker v. E.E. BALL, d/b/a Owen and Ball, Attorneys at Law. Wilmer E. BAKER and Mary Louise Baker v. Arthur MANNICH, d/b/a Mannich Realtors, Inc. 83-1233, 84-255.
• Court: Alabama Supreme Court

Page 1031

473 So.2d 1031

Wilmer E. BAKER and Mary Louise Baker v. E.E. BALL, d/b/a Owen and Ball, Attorneys at Law.

Wilmer E. BAKER and Mary Louise Baker v. Arthur MANNICH, d/b/a Mannich Realtors, Inc.

83-1233, 84-255.

Supreme Court of Alabama.

June 21, 1985.

Rehearing Denied July 19, 1985.

Wilmer C. Baker and Mary Louise Baker, pro se.

Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, for appellees E.E. Ball, d/b/a Owen and Ball.

Edward S. Sledge III and Blane H. Crutchfield of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Arthur C. Mannich, d/b/a Mannich Realtors.

MADDOX, Justice.

These are consolidated appeals, one from an order granting summary judgment and one from an order denying a motion to rescind, revise, or clarify and denying a motion for relief from judgment.

In October 1976, Wilmer E. and Louise Baker sold a residence to Mr. and Mrs. William P. Dexter. In March 1977, the Dexters brought suit against the Bakers and Mannich Realtors, the listing agent, alleging fraud, requesting a rescission of the contract of sale, and seeking punitive damages. The Bakers retained attorney E.E. Ball to represent them in defense of the Dexters' suit. The case was tried, and a directed verdict was entered in favor of the Bakers and Mannich. The Dexters appealed, and this Court reversed and remanded for a new trial. Dexter v. Baker, 382 So.2d 552 (Ala.1980). Before a second trial could be held, in July 1980, the Dexters and Bakers reached a settlement agreement.

Thereafter, the Bakers retained the services of a second attorney and, on November 26, 1980, brought suit, alleging that Mannich had negligently failed to ensure restoration of their Veterans Administration loan eligibility and to ensure their release from mortgage liability. In February 1982, this suit was settled, the Bakers receiving $10,036.50 in return for their execution of a release and indemnity agreement. That agreement provided as follows:

"RELEASE AND INDEMNITY AGREEMENT

"KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Wilmer E. Baker and Mary L. Baker, being over the age of twenty-one (21) years and residents of the County of Baldwin, State of Alabama, for and in consideration of TEN THOUSAND THIRTY-SIX AND 50/100 ($10,036.50) DOLLARS cash in hand paid to them, on this day by, or on account of Arthur Mannich, individually and d/b/a Mannich's Realtors, and Affiliated FM Insurance Company, his insurance carrier, and for other good and valuable considerations, the receipt whereof in full is hereby acknowledged, there being no promises of further benefit or payment to be received, have for themselves, and their respective heirs, executors, administrators and assigns, released and discharged, and by these presents do hereby completely release, remise, acquit and discharge forever said Arthur Mannich, individually and d/b/a Mannich Realtors, Affiliated FM Insurance Company, his insurance carrier, and Lorena Gregorious, their and each of their directors, officers, agents, servants, employees, successors and assigns, jointly and severally, of and from any and all judgments, claims, demands, actions, cause of action, suits, costs, damages, expenses, compensation and liabilities of every kind, character and description, either direct or consequential, at law or in equity, which the undersigned, Wilmer E. Baker and Mary L. Baker, may have now, may have had at any time heretofore or may have at any time hereafter arising from, resulting from or in any manner incidental to any matter, thing or event whatever occurring or failing to occur, at any time in the past up to and including the date hereof, and, more particularly, but without limiting any of the foregoing, the undersigned, Wilmer E. Baker and Mary L. Baker, for themselves and their respective heirs, executors, administrators and assigns, for and in consideration of the payment of said sum, as aforesaid, and for other good and valuable considerations, the receipt of which in full is hereby acknowledged, do hereby forever release, remise, acquit, discharge and covenant to indemnify and hold harmless said Arthur Mannich, individually and d/b/a Mannich's Realtors, Affiliated FM Insurance Company, his insurance carrier, and Lorena Gregorious and each of their directors, officers, agents, servants, employees, successors and assigns, and any and all other persons, firms, corporations and parties whatever, jointly and severally, of and from any and all judgments, claims, demands, actions, causes of action, suits, costs, damages, expenses, compensation and liabilities of every kind, character and description, either direct or consequential, at law or in equity, which the undersigned, Wilmer E. Baker and Mary L. Baker, or any person or party claiming in any manner to any of their respective rights or interests may have now, may have had at any time heretofore or may have at any time hereafter on account of or in any manner growing out of or arising from that certain sale of real property and improvements on Mosely Road, Fairhope, Alabama, by Wilmer E. Baker and Mary L. Baker to William P. Dexter and Betty S. Dexter, occurring on or about the 30th day of October, 1976, including, without limitation, all claims for failure of Wilmer E. Baker and Mary L. Baker to be released from mortgage liability; for failure of Wilmer E. Baker to have his veterans loan eligibility reinstated; and relating to and/or resulting from the litigation between Wilmer E. Baker and Mary L. Baker, on one hand, and William P. Dexter and Betty S. Dexter, on the other hand, of whatsoever type.

The undersigned understand and agree that none of the parties hereby released nor any other party admits or has admitted liability to them, on account of any payment herein recited to have been made or otherwise; and that the sum hereinabove recited to have been paid and received is in full settlement and satisfaction of any and all claims and/or judgments that are or may be or might have been embraced by Wilmer E. Baker in that certain action now pending in the Circuit Court of Baldwin County, Alabama, entitled: Wilmer E. Baker, Plaintiff v. Arthur C. Mannich, d/b/a Mannich Realtors, Defendant, being Civil Action No. CV-80-467 on the docket of said Court." (Emphasis added.)

By stipulation of the parties, the suit was dismissed with prejudice on February 3, 1982.

On November 2, 1982...