Ex parte Walden

• Decision Date: 03 November 2000
• Citation: 785 So.2d 335
• Parties: Ex parte Willadean WALDEN et al. (Re Willadean Walden et al. v. Smith Children Trust et al.)
• Court: Alabama Supreme Court

785 So.2d 335

Ex parte Willadean WALDEN et al.

(Re Willadean Walden et al. v. Smith Children Trust et al.)

1990043.

Supreme Court of Alabama.

November 3, 2000.

David E. Hampe, Jr., Birmingham; and Gatewood Walden, Montgomery, for petitioners.

K. Anderson Nelms of Clark & Nelms, Montgomery, for respondents.

BROWN, Justice.

Willadean Walden appeals from two summary judgments entered in favor of the Smith Children Trust; Annee Caspari, as trustee of the Smith Children Trust; and Hugh V. Smith, Jr., father of the Smith children (these three parties will hereinafter be referred to as "the Smith Children Trust"). We affirm in part, reverse in part, and remand.

When this action began, Walden, a high-school graduate, was an 83-year-old widow. Hugh Smith, a lawyer, was her business associate. On January 24, 1991, Walden lent Smith $50,000. To secure the debt, property held by the Smith Children Trust was transferred to Walden by warranty deed. This property consisted of a one-half interest in an office building in Montgomery, Alabama, and a condominium in Destin, Florida. Walden recorded the deed to the Alabama property, but she did not record the deed to the Florida property. After Smith defaulted on the loan in 1993, Walden conducted a title search on the Florida property; the search showed two mortgages, tax liens, condominium liens, and other claims and charges against the property.¹ Fearing that there was no equity in the property, Walden confronted Smith and demanded that he provide her with other collateral. Smith gave Walden a written promise to pay her $50,000 when he sold an apartment building located in Prattville, Alabama.² Twelve days later, Smith sold the Florida condominium.³ He netted approximately $28,000 from the sale.

Smith testified by deposition that he informed Walden that the title search on the Florida property was wrong and that there was, in fact, equity in the property; he alleges that she was too hysterical to listen to him and insisted that he provide her with substitute collateral. Smith admits that he did not tell Walden, when she confronted him, that he had listed the condominium with a real-estate broker and that a sale was pending. Walden stated that Smith never told her that the title search was in error or that he had a buyer for the property.

On May 10, 1995, the Smith Children Trust sued Walden, seeking a judgment declaring the ownership rights as to the office building in Montgomery. Walden responded with an answer and a counterclaim, alleging, among other things, (1) default on a promissory note; (2) breach of an agreement; (3) fraud in the inducement; (4) fraudulent suppression; and (5) conspiracy to defraud. On April 16, 1997, the trial court entered a partial summary judgment in favor of the Smith Children Trust on Walden's claim alleging conspiracy to defraud. The trial court, pursuant to a pretrial order, allowed Walden to proceed on her other four claims. On May 13, 1997, Walden filed a motion to vacate the partial summary judgment; the court denied that motion.

Walden appealed to this Court, which transferred the case to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7; however, the Court of Civil Appeals, on December 22, 1997, without an opinion, dismissed Walden's appeal on the basis that it was not from a final judgment. Walden v. Smith Children Trust, 736 So.2d 696 (Ala.Civ.App.1997) (table). The Court of Civil Appeals dismissed the appeal apparently because the trial judge, when he made the Rule 54(b) certification of finality, had not complied with the additional requirements imposed by the Court of Civil Appeals in Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ. App.1996) (now overruled by Schneider Nat'l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000)). Upon Walden's motion to reconsider, the Court of Civil Appeals reinstated her appeal, on January 13, 1998. Walden v. Smith Children Trust, 738 So.2d 924 (Ala.Civ.App.1998) (table). On April 3, 1998, the Court of Civil Appeals remanded the case to allow the trial court, if it considered it appropriate to do so, to enter a Rule 54(b) certification complying with Brown. Walden v. Smith Children Trust, 716 So.2d 705 (Ala.Civ.App.1998). On April 17, 1998, the trial court entered an order setting aside its earlier Rule 54(b) certification; the Court of Civil Appeals, without opinion, dismissed the appeal on April 22, 1998, as not from a final judgment. Walden v. Smith Children Trust, 740 So.2d 492 (Ala.Civ.App.1998) (table).

During a two-year period beginning in 1997, Walden filed numerous motions for leave to amend her counterclaim, re-alleging conspiracy to defraud, as well as stating additional claims alleging "false pretenses" and breach of lease. On October 19, 1998, the trial court entered judgments against Hugh Smith on Walden's breach-of-contract and promissory-note claims. Walden moved for a clarification or modification of a pretrial order entered on October 19, 1998. On January 19, 1999, the trial court entered an order denying Walden's motion to amend her counterclaim, entered a judgment in favor of the Smith Children Trust on Walden's claims alleging fraud and fraudulent suppression, and declared all other pending motions moot.

Walden appealed to the Court of Civil Appeals, arguing that the trial court had erred in entering the summary judgments in favor of the Smith Children Trust on her claims alleging conspiracy to defraud and fraudulent suppression. The Court of Civil Appeals, on August 6, 1999, affirmed, without an opinion. Walden v. Smith Children Trust (No. 2980747), 781 So.2d 1029 (Ala.Civ.App.1999) (table). In its unpublished memorandum of affirmance, the Court of Civil Appeals cited several cases standing for the proposition that mere silence does not constitute fraud, absent a duty to disclose, and that one has no duty to disclose facts to another if the other has not specifically requested information. See Cato v. Lowder Realty Co., 630 So.2d 378 (Ala.1993), and Hintzel v. Chubb Life Ins. Co. of America, 678 So.2d 1140 (Ala. Civ.App.1996).

Our review of a summary judgment is de novo:

"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law,' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Walden argues, in regard to her fraudulent-suppression claim, that Hugh Smith had a duty to inform her that the findings of the title search on the Florida property were incorrect and that he suppressed this information from her....