Davant v. United Land Corp.

• Citation: 896 So.2d 475
• Parties: Robert M. DAVANT, Jr., as trustee of The Farrell 1986 Trust v. UNITED LAND CORPORATION et al.
• Decision Date: 27 August 2004
• Court: Alabama Supreme Court

896 So.2d 475

Robert M. DAVANT, Jr., as trustee of The Farrell 1986 Trust v. UNITED LAND CORPORATION et al.

1021419.

Supreme Court of Alabama.

August 27, 2004.

Victor L. Hayslip and Howard Burchfield III of Burr & Forman, LLP, Birmingham, for appellant.

Philip J. Carroll III of Bradley Arant Rose & White, LLP, Birmingham, for appellees Jim Walter Resources, Inc., and United Land Corporation.

HARWOOD, Justice.

On September 12, 2001, Robert M. Davant, Jr., as trustee of the Farrell 1986 Trust ("the Trust"), sued United Land Corporation ("United Land") and Jim Walter Resources, Inc. ("JWR"), in the Tuscaloosa Circuit Court alleging breach of contract, fraudulent suppression, and unjust enrichment, and seeking an accounting. In addition to monetary damages, the Trust sought to rescind and cancel a coal-mining lease executed August 14, 1984, between Davant, as lessor, and United States Pipe and Foundry Company ("U.S. Pipe"), as lessee ("the lease"). The Trust appeals from summary judgments entered in favor of the defendants. We affirm.

The lease authorized U.S. Pipe to mine underground coal from Davant's undivided one-half interest in an 11.75-acre parcel and a contiguous 40-acre parcel in Tuscaloosa County. Subsequently, Davant created the Trust and conveyed his interest in the land to the Trust on December 31, 1987. The Trust alleged in its complaint that "[p]rior to 1988 [United Land] was known as United States Pipe and Foundry Company," and that the other undivided one-half interest in the leased premises was owned by the Hortense E. Davant Trust, which separately leased its interest to U.S. Pipe. Although not evident from the record, the involvement of JWR is stated in its and United Land's joint brief to be that "JWR is a corporate affiliate of United [Land] and is the company that actually mined coal from the Property." (Brief of Appellees, pp. 2-3. n. 1.) The complaint stated that the August 14, 1984, lease required the lessee to pay the lessor a three and one-half percent royalty for all coal mined; the royalty payments were due by the 20th day of each month and were to be accompanied by a reconciliation statement showing the exact amount of coal removed during the preceding month. The Trust averred that, although Davant had received three royalty payments through January 1986, after that neither he nor the Trust had received royalty payments or reconciliation statements and that Davant had assumed that mining operations had ceased on the property. The Trust asserted that it now had reason to believe that coal had been mined "from 1985 to the present" and that "[b]y failing to pay all of the royalties due under the Lease, the defendants have breached the Lease." The complaint asserted other instances of breach relating to the alleged failure or refusal of the defendants to provide information required to be provided under the terms of the lease.

On October 10, 2001, the defendants filed a motion to dismiss the action pursuant to Rule 12(b)(6), Ala. R. Civ. P., or, in the alternative, for a summary judgment pursuant to Rule 56, Ala. R. Civ. P. The summary-judgment motion was granted as to all of the claims except the fraudulent-suppression claim. The defendants subsequently filed a second summary-judgment motion directed toward the fraudulent-suppression claim; that motion was granted, and the action was dismissed with prejudice.

The defendants asserted in their motion to dismiss or for a summary judgment that the action represented an effort by the Trust to relitigate claims previously litigated in a federal district court action in Texas and that, because the last coal had been mined from the property in 1989, all claims asserted by the Trust were barred by applicable statutes of limitation, including the six-year statute governing breach-of-contract claims. In support of the motion, the defendants attached a copy of the complaint filed in the Texas action, a copy of an affidavit filed in that action, and copies of the order and the judgment in that action. Those materials reflected that Davant had sued "United States Pipe and Foundry Company" on January 27, 2000, asserting that it had breached the lease by failing "to pay Plaintiff a royalty for all the coal that Defendant has mined from Plaintiff's property." Subsequently, the original and then trustee of the Farrell 1986 Trust was added as a plaintiff, the court noting that Davant had "transferred his 50 percent mineral interest regarding the August 14, 1984, mining lease to the Farrell Trust." (Davant later became the trustee of the Trust, at a time he could place during his October 25, 2002, deposition only as having been "within five years" of the deposition.)

U.S. Pipe filed a motion for a summary judgment in the Texas action, supported by the affidavit of Charles A. Dixon, vice president of mining engineering for JWR, stating that he had been its vice president of mining engineering between 1984 and 1989 and that he had personal knowledge of U.S. Pipe's mining of coal from the acreage in question. The affidavit stated further:

"In 1984, Davant represented that he owned a 50% interest in the mineral rights to 51.75 acres in Section 3 of Township 20 in Tuscaloosa County, Alabama. On August 14, 1984, Davant leased this land to United States Pipe and Foundry Company for coal mining. "Between 1975[sic] and 1989, United States Pipe and Foundry Company mined coal from this acreage in Section 3 and made royalty payments to Davant. "United States Pipe and Foundry Company completed mining activities on this property in 1989. United States Pipe and Foundry Company has not removed any coal from this property since 1989. "If there was any mispayment of royalties to plaintiffs, which United States Pipe and Foundry Company denies, the error occurred in or before 1989.

"Throughout the time period involved, 1984-1989, the tonnage of coal mined by United States Pipe and Foundry Company was subject to review by Robert Davant or his representative or agent. The lease specifically authorized Davant and his engineers, agents, or attorneys, to examine and survey the mined premises and; to examine and verify United States Pipe and Foundry's books, accounts, sales records, maps and plans to determine the amount of coal taken from the premises and to verify the selling price."

On July 13, 2000, the federal district court entered a summary judgment for U.S. Pipe, specifically finding and declaring as follows:

"The undisputed facts in the record of this case establish that on August 14, 1984, the plaintiff Robert M. Davant, Jr., executed a mining lease with United States Pipe and Foundry Company wherein Mr. Davant retained a 50 percent mineral interest. Thereafter or at the same time, Mr. Davant entered into a lease agreement concerning the same property with the Estate of Hortense Davant (Mr. Davant was a beneficiary of this estate). On December 31, 1987, Mr. Davant transferred his 50 percent mineral interest regarding the August 14, 1984, mining lease to the Farrell Trust.

"United States Pipe and Foundry Company began mining coal under the August 14, 1984, lease in 1985, but completed all mining operations and vacated the property in 1989.

"The August 14, 1984, lease was for a twenty-year term and expires on August 14, 2004. It provided for royalty payments to be paid on the 20th day of each month with an accompanying reconciliation statement showing the exact amount of coal removed in the preceding month. The lease also expressly included when no coal was mined and/or sold, there was no necessity for the presentation of a reconciliation statement. The plaintiffs received no royalty payments nor reconciliation statements after January 1986. At all times, the August 14, 1984, lease specifically authorized plaintiffs or their agents to examine and survey the mined premises and to examine and verify United States Pipe and Foundry Company's books, accounts, sale records, maps, and plans to confirm the accuracy of the royalty payments.

"The plaintiffs allege that in 1999 the Hortense E. Davant Trust was scheduled to terminate and the plaintiff Davant became interested in purchasing the trust's interest in the land in question. During the examination of this interest, the plaintiff Davant and, subsequently, the Trustee of the Farrell Trust concluded that they had not receive[d] appropriate payments prior to United States Pipe and Foundry Company's completion of mining activities in 1989.

"United States Pipe and Foundry Company filed this motion for summary judgment based upon the applicable statute of limitations. The plaintiffs allege that the `discovery rule' is applicable and tolls the statute of limitations and that summary judgment is not appropriate. They primarily rely on Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156 [(Tex.Ct.App.1998)]. The defendant United States Pipe and Foundry Company relies upon HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex.1998). The undisputed factual recitals in this order as well as the Texas Supreme Court case persuade the undersigned the motion for summary judgment based on limitations is good. Since January of 1989 (according to the defendant's pleadings) or January of 1986 (according to the plaintiffs' pleadings), no royalty payments or reconciliation statements have issued and mining operations had completely stopped with the vacation of the premises by 1989. The plaintiffs had contractual rights to discover any inappropriate conduct under the contracts and obviously the contracts would have been breached by January 1989, if breached at all."

Davant and the Trust did not appeal the summary judgment.

On November 16, 2001, the Trust filed in the Tuscaloosa Circuit Court action its response to the defendants motion to dismiss or for a summary judgment, arguing with respect to the summary-judgment aspect of the motion that, among other things, the motion was deficient because it did not include a...