Gulf Coast v. Professional Real Estate
| Decision Date | 12 August 2005 |
| Docket Number | 1031924.,1031926.,1031928. |
| Citation | 926 So.2d 992 |
| Parties | GULF COAST REALTY COMPANY, INC., d/b/a Gulf Coast Reservations and McLaurin Unlimited v. PROFESSIONAL REAL ESTATE PARTNERS, INC., d/b/a Century 21 Professional Partners. Gulf Coast Realty Company, Inc., d/b/a Gulf Coast Reservations and McLaurin Unlimited v. Admiral's Quarters Associates, L.L.C. Gulf Coast Realty Company, Inc., d/b/a Gulf Coast Reservations and McLaurin Unlimited v. Tidewater Associates, L.L.C. |
| Court | Alabama Supreme Court |
Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellant.
Edward A. Dean and Mary Carol Ladd of Armbrecht Jackson, LLP, Mobile, for appellees.
The Baldwin Circuit Court entered summary judgments in favor of Professional Real Estate Partners, Inc., d/b/a Century 21 Professional Partners (CV-02-1219), Admiral's Quarters Associates, L.L.C. (CV-03-253), and Tidewater Associates, L.L.C. (CV-03-254). Gulf Coast Realty, Inc., d/b/a Gulf Coast Reservations and McLaurin Unlimited, appeals from those judgments. We affirm the judgments for Admiral'S Quarters and Tidewater; we affirm in part and reverse in part the judgment for Professional Real Estate.
On October 25, 1999, Professional Real Estate Partners, Inc., d/b/a Century 21 Professional Partners ("Professional Real Estate"), and Gulf Coast Realty, Inc., d/b/a Gulf Coast Reservations and McLaurin Unlimited ("Gulf Coast Realty"), entered into a written agreement ("the agreement"). The agreement states that Professional Real Estate and/or Rick Phillips, its president, planned to develop four condominium projects, including the Admiral's Quarters condominiums and the Tidewater condominiums. The agreement provides, among other things, that (1) for five years, Gulf Coast Realty will pay Professional Real Estate a certain percentage of the gross rentals or gross commission from rentals, depending on Gulf Coast Realty's seasonal commission rate;1 and (2) for five years from the date of the agreement, Professional Real Estate will assist and cooperate in Gulf Coast Realty's efforts to become the rental agent for purchasers of the condominium units.2 The provisions of the agreement that give rise to the underlying dispute in these cases are paragraphs 5 and 6, which read in full as follows:
The agreement is signed by Rick Phillips, as the president of Professional Real Estate and by Thomas M. Marr, Jr., as the president of Gulf Coast Realty.3
The Admiral's Quarters condominiums and the Tidewater condominiums apparently were developed by and are owned by Admiral's Quarters Associates, L.L.C. ("Admiral's Quarters"), and Tidewater Associates, L.L.C. ("Tidewater"), respectively — not by Professional Real Estate or by Rick Phillips individually, as was contemplated by the agreement. Rick Phillips is a member of and owns a 50% interest in both Admiral's Quarters and Tidewater.
Gulf Coast Realty has occupied the office condominium unit at the Admiral's Quarters condominiums and at the Tidewater condominiums and has paid Professional Real Estate certain sums due under paragraph 2 of the agreement. However, Professional Real Estate asserts that Gulf Coast Realty never paid the $10 annual rental for the office space and did not timely pay dues and assessments that Professional Real Estate says were owed under paragraph 6 of the agreement.
On October 25 and 29, and again on October 31, 2002, Professional Real Estate, Rick Phillips, and Tidewater notified Gulf Coast Realty in writing that its tenancy and possessory rights in the office unit at the Tidewater condominiums were being terminated because it had breached the agreement. Also on October 25, 29, and 31, 2002, Professional Real Estate, Rick Phillips, and Admiral's Quarters notified Gulf Coast Realty that its tenancy and possessory rights in the office unit at Admiral's Quarters condominiums were being terminated because it had breached the agreement. On October 28, 2002, the law firm representing "Professional Real Estate Partners, Inc., d/b/a Century 21 Professional Partners, Inc., and Rick A. Phillips" notified Gulf Coast Realty in writing that it was in default of the agreement for "among other reasons failure to comply with paragraphs 2, 5, and 6 of the agreement" and "[a]s a consequence, the agreement is terminated and no performance on the part of Professional Real Estate Partners, Inc., d/b/a Century 21 Professional Partners, Inc., and Rick A. Phillips is due."
On December 2, 2002, a letter signed by the "Attorney for [the] Owner" was delivered to Gulf Coast Realty demanding that Gulf Coast Realty leave and deliver possession of the commercial unit at the Tidewater condominiums "to me or my Agent (Century 21 Professional Partners)." Also on December 2, 2002, a letter signed by the "Attorney for [the] Owner" was delivered to Gulf Coast Realty demanding that Gulf Coast Realty leave and deliver possession of the commercial unit at the Admiral's Quarters condominiums "to me or my Agent (Century 21 Professional Partners)." Gulf Coast Realty did not deliver possession of either of the office units.
On November 12, 2002, after receiving notice that its tenancy was terminated and that it was considered in default of the agreement, Gulf Coast Realty brought an action against Professional Real Estate in the Baldwin Circuit Court seeking a judgment declaring that Professional Real Estate was prohibited from terminating Gulf Coast Realty's tenancy in the office units at the Admiral's Quarters condominiums and the Tidewater condominiums. Gulf Coast Realty later amended its complaint to include a claim seeking specific performance of Gulf Coast Realty's option to purchase the office units at the Admiral's Quarters condominiums and the Tidewater condominiums. Gulf Coast Realty did not name Admiral's Quarters or Tidewater — the owners of the condominiums — as defendants in its original complaint or in its first amended complaint, filed on December 6, 2002.
In September 2003, the trial court set trial for November 3, 2003. On October 27, 2003, Professional Real Estate moved for a summary judgment. The initial trial date of November 3, 2003, was continued to December 16, 2003, and then again to sometime in March 2004. On January 9, 2004, Gulf Coast Realty moved for leave to file a second amended complaint. Gulf Coast Realty's second amended complaint would have added Admiral's Quarters and Tidewater as defendants in the declaratory-judgment action and would have added alternative claims of breach of contract and fraud under the theory that Professional Real Estate was an agent for undisclosed principals — Admiral's Quarters and Tidewater — when it entered into the agreement.
On January 13, 2004, the trial court heard Professional Real Estate's summary-judgment motion. On January 29, 2004, the trial court entered a summary judgment in favor of Professional Real Estate on Gulf Coast Realty's claim for specific performance of the alleged purchase option "because the option was not supported by consideration." On August 10, 2004, the trial court entered a summary judgment in favor of Professional Real Estate on Gulf Coast Realty's claim seeking a judgment declaring that Professional Real Estate could not terminate its possessory rights. The trial court did not rule on Gulf Coast Realty's motion for leave to file a second amended complaint.4 Gulf Coast Realty appeals the summary judgment.
On December 16, 2002, Admiral's Quarters and Tidewater brought separate eviction actions against Gulf Coast Realty in the Baldwin District Court. Pursuant to Ala.Code 1975, § 35-9-85, Gulf Coast Realty responded to the eviction actions by filing in each case a counter-affidavit of Thomas Marr, Jr.5 In that affidavit, Marr asserted that Gulf Coast Realty had previously instituted an...
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