Century Plaza Co. v. Hibbett Sporting Goods, Inc.
| Decision Date | 21 March 1980 |
| Parties | CENTURY PLAZA COMPANY, a general partnership v. HIBBETT SPORTING GOODS, INC., a corporation. 78-562. |
| Court | Alabama Supreme Court |
James N. Brown, III, Birmingham, for appellant.
Jesse A. Keller of Keller & Cochran, Florence, for appellee.
This appeal involves a shopping center lease and a dispute between the parties over what agreement was reached regarding "common area maintenance." The essential facts are:
Century Plaza, through its agent, Engel Realty, presented to Ira Hibbett several proposed leases during a two-year period prior to the opening of the Century Plaza Mall in Birmingham in August, 1975. Century aggressively solicited Hibbett to open a sporting goods store in its facility. Section 28 of those proposed leases provided that a charge of thirty cents per square foot would be levied on the tenant for common area maintenance. Hibbett refused to enter into an agreement with Century Plaza at that time.
On September 29, 1975, negotiations were resumed and Engel Realty proffered to Hibbett a proposed lease. Hibbett claims that he asked one Bennett, agent of Engel Realty, whether Section 28 was unchanged from the earlier proposed leases, and that he was assured by Bennett there was no change, whereupon, he signed the lease without reading the contested section. Bennett says he told Hibbett that he would still be charged thirty cents per square foot, but Bennett contends he was not asked whether Section 28 had been changed in the new lease. The lease Hibbett signed exempted the square footage of several of the major department stores in the mall from the formula of calculating the common area maintenance charge; therefore, Hibbett's obligation for common area maintenance was substantially higher than his obligation would have been under the leases proffered to him previously.
The trial court heard the testimony ore tenus and found that Engel's agent made a material misrepresentation to Hibbett, upon which Hibbett relied to his detriment. The court found Engel's conduct to be inequitable, unconscionable and fraudulent. The court denied Century Plaza any relief on its declaratory judgment suit. The trial court reformed the lease so that the text of Section 28 as set forth in the proffered lease which was originally discussed with Hibbett was substituted for that in the executed lease. In effect, the court granted Hibbett the relief he requested in his counterclaim.
On appeal, counsel for Century Plaza contends that because Hibbett had ample opportunity to review for himself the contents of the questioned instrument, he may not now complain that the instrument does not represent the agreement consummated by the parties.
It is true generally that where a party, having the ability to read and understand an instrument, fails to do so, and signs it without reading it, he cannot avoid the obligations embodied in the instrument by pleading ignorance of its contents. A party is not bound, however, if fraud was practiced upon him. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 260, 266 So.2d 865 (1972).
The record adequately supports the finding of the trial court that fraud was practiced on Hibbett. The court could have found that Hibbett asked whether Section 28 remained unchanged from the earlier proposed leases, and was assured that it was the same, and that he relied on that representation to his detriment by executing the proffered lease without reading the subject section. Since this was an ore tenus case, the findings of fact made by the trial judge are favored with a presumption of correctness and his finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Tanner v. Winfield, 365 So.2d 651 (Ala.1978).
The second question presented is whether the trial court committed reversible error in refusing to permit Century Plaza, as plaintiff, to introduce Hibbett's deposition. The record indicates that when Century Plaza's counsel asked the court the accept Hibbett's deposition into evidence, an objection was made and a colloquy ensued between the court and counsel regarding the state of the law regarding the use of depositions at trial. The record shows that the following occurred:
Century Plaza has not designated the contested deposition as a part of the record on appeal; therefore, we do not have the deposition before us to determine whether Century was prejudiced by its exclusion from the evidence. We do know from the record, that in the instant case, Century's counsel, during cross-examination, made extensive use of Hibbett's deposition in cross-examining him.
Century Plaza cites Southern Guaranty Insurance Company v. Scott, 52 Ala.App. 641, 296 So.2d 730 (1974), and Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970), for the proposition that it is reversible error for a court to exclude a deposition of a party.
In Southern Guaranty Insurance Company v. Scott, the Court of Civil Appeals did hold that the exclusion of the deposition in that case was reversible error; nevertheless, the Court of Civil Appeals correctly cited Wright & Miller, Federal Practice and Procedure, Civil, § 1245, which deals with Rule 32(a)(2) of the Federal Rules of Civil Procedure, as follows:
" 'This provision must be liberally construed. The trial court has discretion to exclude parts of the deposition that are unnecessarily repetitious in relation to the testimony of the party on the stand, but it may not refuse to allow the deposition to be used merely because the party is available to testify in person. " It has been consistently held that the Rule permits a party to introduce, as part of his substantive proof, the deposition of his adversary, and it is quite immaterial that the adversary is available to testify at the trial or has testified there. Thus applied, the Rule is a restatement of the long recognized rule of evidence that statements of a party which are inconsistent with his claim in litigation are substantively admissible against him. " (Citations omitted)' "
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