Bebee Props., LLC v. Ard

• Decision Date: 02 June 2017
• Docket Number: 2150963
• Citation: 241 So.3d 719
• Parties: BEBEE PROPERTIES, LLC v. Margaret A. ARD Margaret A. Ard v. Bebee Properties, LLC, and Thomas Greer
• Court: Alabama Court of Civil Appeals

241 So.3d 719

BEBEE PROPERTIES, LLC

v.Margaret A. ARD

Margaret A. Ard

v.Bebee Properties, LLC, and Thomas Greer

2150963

Court of Civil Appeals of Alabama.

June 2, 2017

Joseph Kulakowski, Mobile; and John Richardson, Mobile, for appellant/cross-appellee Bebee Properties, LLC.

Mark H. Taupeka of Taupeka Law LLC, Orange Beach; and Max Cassady of Cassady & Cassady, P.C., Fairhope, for appellee/cross-appellant Margaret A. Ard.

DONALDSON, Judge.

Bebee Properties, LLC ("Bebee Properties"), appeals from a summary judgment entered by the Baldwin Circuit Court ("the trial court") in favor of Margaret A. Ard ("Margaret") on its claims against Margaret. Margaret cross-appeals from a summary judgment entered in favor of Bebee Properties and Thomas Greer on two counts of her counterclaim. We hold that the partial-summary-judgment order could not be properly certified as final pursuant to Rule 54(b), Ala. R. Civ. P., and, therefore, we dismiss the appeals as being from a nonfinal judgment.

Facts and Procedural History

Bebee Properties is a limited-liability company; Greer is the sole member of Bebee Properties. Greer had served as an officer of another company for which Samuel David Ard ("David") had worked for approximately 20 years. In August 2006, Greer caused a check in the amount of $140,000, drawn from a Bebee Properties' account, to be issued to "David Ard." The check represented a loan from Bebee Properties. Margaret, upon instruction from David, deposited that check into her and David's joint bank account. Margaret then obtained a cashier's check from the bank for $140,335.55 payable to a mortgage company to pay off the Ards' mortgage on their property in the Havel Estates subdivision ("the property"), which they owned as joint tenants with right of survivorship. David resigned from his employment with the other company of which Greer was an officer in November 2012. In January 2013, David committed suicide. In March 2013, Bebee Properties began attempts to obtain the balance of the loan from Margaret.

In June 2013, Bebee Properties filed a notice of lis pendens regarding the property in the Baldwin Probate Court and a complaint against Margaret in the trial court. In the complaint, which was later amended, Bebee Properties alleged that the loan had been made based on a specific contractual agreement between Bebee Properties and the Ards that the title to the property would be held in trust for Bebee Properties and either that the property would be sold and Bebee Properties repaid or that title would be conveyed to Bebee Properties in exchange for Bebee Properties' loan to the Ards of $140,000. Bebee Properties further asserted that, even if Margaret was not a party to the agreement, she was a third-party beneficiary of the agreement.

Bebee Properties asserted two counts in its complaint. The first count sought the imposition of a constructive trust on the property and the sale of the property, with the proceeds paid to Bebee Properties, or, alternatively, the conveyance of the property to Bebee Properties. Bebee Properties' second count sought a judgment in the amount of $136,500 (the balance of the $140,000 loan) against Margaret based on various theories. Upon Margaret's motion, all of Bebee Properties' theories of liability under the second count were stricken except for two: breach of contract and moneys lent.

Margaret filed an answer and counterclaim in which she asserted claims against both Bebee Properties and Greer. See Rule 13(h), Ala. R. Civ. P. Margaret subsequently filed an amended answer and counterclaim in which she asserted the Statute of Frauds as a defense to Bebee Properties' complaint and incorporated her previously filed counterclaim. Bebee Properties filed a motion to strike Margaret's asserted defense of the Statute of Frauds, which was not granted. Margaret's counterclaim, as amended, asserted six counts: 1) count one sought a judgment declaring that Margaret is not indebted to Bebee Properties; 2) count two was a claim to cancel the notice of lis pendens filed by Bebee Properties regarding the property; 3) count three, asserted against both Bebee Properties and Greer, sought compensatory and punitive damages for slander of title based on the filing of the notice of lis pendens; 4) count four was a claim asserting intentional infliction of emotional distress against both Bebee Properties and Greer; 5) count five was a claim against Bebee Properties under the Alabama Litigation Accountability Act ("the ALAA"), § 12–19–270 et seq., Ala. Code 1975, for attorney's fees; and 6) count six was a claim asserting invasion of privacy against both Bebee Properties and Greer.

On March 25, 2014, Margaret filed a motion for a partial summary judgment as to all counts of Bebee Properties' complaint against her and as to counts one, two, three, and five of her amended counterclaim. Margaret later filed a supplement to her partial-summary-judgment motion to which she attached personal notes from David and portions of Greer's and Margaret's depositions. Greer filed an affidavit in opposition to Margaret's motion. Margaret filed a motion to strike hearsay statements contained in Greer's affidavit, which was granted. Bebee Properties filed a response to Margaret's motion for a partial summary judgment, and it subsequently argued that Margaret's motion should be denied based on Margaret's alleged admission that she had been unjustly enriched. The trial court denied Margaret's motion for a partial summary judgment on October 21, 2014, without explanation.

On January 29, 2016, Margaret filed another motion for a partial summary judgment in which she focused primarily on the Statute of Frauds as a defense to Bebee Properties' claims. In her motion, Margaret expressly incorporated her previous motion for a partial summary judgment, which had sought a summary judgment on all the counts of Bebee Properties' complaint and on counts one, two, three and five of Margaret's counterclaim. Bebee Properties filed a response to Margaret's second motion for a partial summary judgment, and Margaret filed a reply to Bebee Properties' response.

On February 15, 2016, Bebee Properties and Greer filed a joint motion for a partial summary judgment as to counts four and six of Margaret's counterclaim. Margaret filed a motion to strike that motion for a partial summary judgment, asserting that it was untimely filed. Margaret's motion to strike was never ruled on by the trial court. On March 2, 2016, the trial court entered a partial-summary-judgment order in which it granted a summary judgment in favor of Margaret as to both counts of Bebee Properties' complaint and in favor of Bebee Properties and Greer on counts four and six of Margaret's counterclaim. The trial court's partial-summary-judgment order reads, in part:

"This matter was before this Court on a Motion for Summary Judgment filed by Margaret A. Ard against Bebee Properties, LLC on January 29, 2016. Bebee Properties, LLC[, and Greer] filed their own Motion for Summary Judgment against Margaret A. Ard on February 1[5], 2016. After reviewing the briefs with accompanying documents filed by both parties and hearing oral arguments from attorneys of all interested parties, the Court finds that there is no genuine issue as to any material fact and the Defendant, Margaret A. Ard is entitled to a judgment as a matter of law. Additionally, Plaintiff Bebee Properties, LLC and Thomas Greer are entitled to summary judgment on Counts IV and VI of Margaret A. Ard's Counter–Claim.

"1. Plaintiff BEBEE PROPERTIES, LLC advanced $140,000.00 to [Margaret] and her husband for their oral agreement to sell their real property and repay [Bebee Properties] from the proceeds thereof or convey the same to [Bebee Properties] in repayment.

"2. The oral agreement was a contract for the sale of lands or an interest therein, it was not in a writing expressing the consideration thereof and therefore no written agreement was ever signed by [Margaret] or her husband, and [Bebee Properties] was not put in possession of the real property.

"3. [Margaret] was not an active participant to the agreement but the agreement was oral between her husband[, David,] and [Bebee Properties] of which there is some evidence that she was aware. There is no evidence [Margaret] acted fraudulently with respect to the making of the oral agreement. Therefore, the agreement as to [Margaret] is void under the Alabama Statute of Frauds and equity will not intervene to impose the relief. It was also not an enforceable trust as it was not in the form of a signed writing.

"4. The Court cannot impose a purchase money resulting trust because the funds advanced in 2006 were not used to purchase the land. [Margaret and her husband David] purchased the land and acquired legal title and a legal estate in lands to the subject real property by warranty deed in 1995.

"5. [Bebee Properties] seeks equity in a constructive trust, but the facts of the case do not show that this is a situation where a constructive trust is to be used. ‘Equity may impose a constructive trust on property in favor of the one beneficially entitled to it in situations in which another party holds title to the property through fraud, commission of a wrong, abuse of a confidential relationship, or any other form of unconscionable conduct.’ Beasley v. Mellon Financial Services Corp., 569 So.2d 389, 394 (Ala. 1990) (citing Keeton, Law on Trusts, 210 (5th ed. 1949); 4 Pomeroy Equity Jurisprudence, § 1053 (5th ed. 1941); and Walsh on Equity, § 106 (1930)).

"6. The maxim, that ‘he who seeks equity must do equity,’ lies at the foundation of equity jurisprudence. Tilley's Alabama Equity § 1:5 (5th ed. 2015). [Bebee Properties] had sufficient time to reduce the agreement to writing and chose not to do so. [Bebee Properties] cannot seek a remedy for its own failure to act.

"7. The Court declines to impose a constructive trust as [Bebee Properties] does not allege any fraud by, or any confidential relation

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