Harris v. Preskitt
Decision Date | 11 March 2005 |
Docket Number | No. 2031144.,No. 2031016.,2031016.,2031144. |
Citation | 911 So.2d 8 |
Parties | Yvonne Harris v. Mike PRESKITT and Mr. Install, Inc. Yvonne Harris v. Cotton States Mutual Insurance Company, Buddy Borland, and Bill Phillips. |
Court | Alabama Supreme Court |
Kindaka J. Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C., Selma, for appellant.
F. Tim McCollum of McCollum & Brown, LLC, Montgomery, for appellee Mike Preskitt.
Yvonne Harris appealed from an April 8, 2004, order of the trial court enforcing a settlement agreement between Harris, on the one hand, and Cotton States Mutual Insurance Company, Buddy Borland, and Bill Phillips, on the other, and directing her to execute the settlement documents. She also appealed from the trial court's May 17, 2004, order dismissing her claims against Mike Preskitt.1 Because Mr. Install Inc.,2 had never been served, the May 17, 2004, dismissal order disposed of all of Harris's pending claims, and, therefore, it constituted a final judgment.
Harris sued Cotton States, Borland, Phillips, Preskitt, and Mr. Install alleging forgery; fraudulent suppression; civil conspiracy; negligent hiring, training, and supervision; fraud or deceit; and retaliation. Cotton States and Phillips answered and asserted various affirmative defenses. Borland answered and asserted affirmative defenses.
On September 16, 2003, Preskitt answered the complaint. On December 15, 2003, Harris amended her complaint to change the factual allegations rather than the legal theories of the complaint. On January 29, 2004, the attorney representing Cotton States and Phillips wrote the following letter to Christmas Green, one of the attorneys representing Harris:
A copy of this correspondence was also sent to the attorney representing Borland. On February 9, 2004, the attorney representing Cotton States and Phillips wrote the following letter to Christmas Green:
This correspondence was copied to Ron Wise, the attorney representing Borland.
It is undisputed that on February 13, 2004, Christmas Green telephoned the attorney representing Cotton States and Phillips and left a voice-mail message indicating that Harris did not want to settle the case against all the defendants but wanted to pursue her claims against Mike Preskitt and Mr. Install. That same day, another attorney from the law firm representing Harris wrote the following letter to the attorney representing Cotton States and Phillips in response to his letter of February 9, 2004:
This correspondence was copied to the attorney representing Borland.
After discussions among the attorneys, on February 16, 2004, the attorney representing Cotton States and Phillips wrote the following letter to Christmas Green:
The pro tanto release and settlement agreement were attached to the letter, and the letter was copied to the attorney representing Borland. Harris did not execute the settlement documents.
Around February 18 or 19, 2004, the attorney representing Cotton States and Phillips received a telephone call from an attorney representing Harris. The attorney stated that Harris was backing out of the settlement agreement and that she, the attorney, was leaving the firm. The attorney for Cotton States and Phillips said that he would file a motion to enforce the settlement unless he immediately heard from the other attorney representing Harris.
On February 27, 2004, Cotton States, Borland, and Phillips filed a motion "to enforce [the] settlement that was reached in the above-referenced matter" and attached an affidavit executed by counsel along with exhibits. After a hearing, the trial court entered its April 8, 2004, order finding:
The trial court ordered Harris to execute the settlement documents.
Harris filed a "motion to alter, amend, or vacate, or, in the alternative, for a new trial,"3 alleging in that motion that her attorney had rejected the settlement offer in the February 13, 2004, letter to the attorney for Cotton States and Phillips, which was also copied to the attorney representing Borland. The trial court did not rule on that motion.
On May 17, 2004, the trial court entered a final judgment granting Preskitt's motion to dismiss...
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