Bank Independent v. Byars

• Decision Date: 23 December 1988
• Citation: 538 So.2d 432
• Parties: BANK INDEPENDENT v. Sue Francis BYARS. 87-485.
• Court: Alabama Supreme Court

Page 432

538 So.2d 432

BANK INDEPENDENT v. Sue Francis BYARS.

87-485.

Supreme Court of Alabama.

Dec. 23, 1988.

Charles D. Rosser of Rosser, Gardner & Marthaler, Tuscumbia, for appellant.

Steve A. Baccus of Almon, McAlister, Ashe, Baccus and Tanner, Tuscumbia, for appellee.

TORBERT, Chief Justice.

After the trial court entered judgment based on a jury verdict in favor of the defendant, Sue Francis Byars, Bank Independent timely moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The motion for new trial was denied, and Bank Independent appealed.

Before setting forth the facts of this case, we must set forth the proper procedural status and determine what is before us for review. Bank Independent moved for J.N.O.V., or, in the alternative, a new trial, on November 6, 1987. The record also discloses that on December 16, 1987, the trial court overruled the "motion for new trial." We see nothing in the record to indicate that the J.N.O.V. motion was ever ruled upon; we are cognizant, however, that, pursuant to Rule 59.1, Ala.R.Civ.P., the J.N.O.V. motion would be denied by operation of law 90 days after November 6, 1987. Bank Independent filed its notice of appeal on January 25, 1988--during the pendency of its J.N.O.V. motion. "[A] party's notice of appeal works as a withdrawal of that party's pending post-judgment motion, whether the notice of appeal is given during the [original] 42-day period [within which appeal must be taken], or at some later time during the pendency of the post-judgment motion." Herring v. Shirah, [Ms. 87-599, 1988, opinion substituted March 3, 1989] (Ala.1988). Accordingly, in the case at bar, the only issue before us is the propriety of the trial court's denial of Bank Independent's new trial motion. With that in mind, we now set forth the facts necessary to resolve the issue.

On or about July 5, 1984, Jimmy and Sue Francis Byars, husband and wife, executed promissory notes in the amounts of $263,000.00 and $71,351.90 to Bank Independent. Jimmy Byars planned to use the funds to build townhouses. As collateral for the notes, the Byarses mortgaged two pieces of land. The Byarses subsequently defaulted on the notes, and Bank Independent foreclosed on the mortgages. Bank Independent, as sole bidder, purchased the townhouse property for $225,000.00; the other piece of property was sold to the highest bidder for $45,100.00. Bank Independent then sued the Byarses for the deficiency; they counterclaimed, alleging that the foreclosure sale was commercially unreasonable. Sue Francis Byars and Jimmy Byars were divorced, Jimmy Byars filed for bankruptcy, and Bank Independent pursued its claim solely against Sue Francis Byars.

Between the September 25, 1985, foreclosure sale and December 6, 1985, Jimmy Byars met several times with representatives of Bank Independent to negotiate settling the deficiency. On December 6, 1985, Jimmy Byars and lawyer Joe Fine, each acting on behalf of Sue Francis Byars, met with the president, the executive vice-president, and the loan administrator of Bank Independent to discuss resolving the problem of the outstanding deficiency. Accompanying Mr. Byars and Mr. Fine was David Sibley, who was interested in purchasing the property that Bank Independent had taken in the foreclosure. Witnesses testifying on behalf of both parties recalled an offer made to the Byarses during the course of the December 6 meeting. That offer consisted of the following terms and conditions: 1) Sibley would pay $50,000.00 cash as a down payment on the townhouse property; 2) Bank Independent would finance the remaining purchase price, $225,000.00, at a maximum interest rate of 14%; 3) Jimmy Byars would pay $10,000.00; 4) Jimmy Byars would satisfy a materialman's lien on the property; 5) the counterclaim would be dropped; and 6) in exchange, Bank Independent would drop its claim for recovery of the deficiency. The offer was to remain open until 1:00 p.m. on December 6, 1985.

Shortly before 1:00 p.m., lawyer Joe Fine asked the president of Bank Independent for more time. Fine explained that Jimmy Byars could not locate the holder of the materialman's lien during lunch. The president extended the offer until 5:00 p.m. that day.

By mid-afternoon, the record discloses, Jimmy Byars was ready to perform those obligations of Bank Independent's offer pertinent to him. Sibley was also ready to perform. At 3:43 p.m., Fine called Bank Independent's president to accept the offer on behalf of Jimmy and Sue Francis Byars and David Sibley. Fine was then informed that the property had been sold and thus the offer withdrawn.

At trial, the defense of Sue Francis Byars was that Bank Independent's offer and her subsequent acceptance amounted to an accord and satisfaction. Bank Independent points out that, assuming an offer was made, oral contracts for the purchase and sale of real property or for the assumption of the debt of another are barred by the Statute of Frauds. Section 8-9-2, Code of 1975, the Alabama Statute of Frauds, provides in pertinent part:

"In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:

"....

"(3) Every special promise to answer for the debt, default or miscarriage of another;

"....

"(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller...."

We turn our attention first to the question of whether the agreement between Bank Independent and Sue Francis Byars ¹ (as negotiated on her behalf by Fine and Jimmy Byars) was barred by the Statute of Frauds.

First of all, we do not agree with Bank Independent that the agreement was "for the sale of lands ... or of any interest therein." Code 1975, § 8-9-2(5). Rather, Byars agreed to pay cash, drop her counterclaim, and satisfy the materialman's lien; her other obligation under the agreement was to provide a person willing and able to purchase the property in question. This last term was fulfilled by the production of Sibley. Thus the Bank Independent-Byars agreement was not a contract for the sale of land; there needed to be no writing, because Byars was not the "party to be charged" with consummating the purchase; and, hence, the argument based on § 5 of the Statute of Frauds is not available to Bank Independent in this context. ²

Likewise, we reject Bank Independent's contention that its agreement with Byars constituted a "promise to answer for the debt ... of another." Code 1975, § 8-9-2(3). Byars is not attempting to use the agreement for that purpose. Assuming for the sake of analysis that Sibley has agreed to answer for Byars's debt, ³...