Harris v. Preskitt

Decision Date11 March 2005
Docket NumberNo. 2031144.,No. 2031016.,2031016.,2031144.
Citation911 So.2d 8
PartiesYvonne Harris v. Mike PRESKITT and Mr. Install, Inc. Yvonne Harris v. Cotton States Mutual Insurance Company, Buddy Borland, and Bill Phillips.
CourtAlabama 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.

THOMPSON, Judge.

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:

"RE: Yvonne Harris v. Cotton States Mutual Insurance Company, et al.

"CV-030-1646

"Dear Christmas:

"This will confirm our oral conversation on January 29, 2004, wherein you informed me that your client Ms. Harris has agreed to accept our offer of $35,000.00, all inclusive of costs, in settlement of the above-referenced matter as against all defendants. I have this day requested a check in the amount of $35,000.00 to be made payable to `Yvonne Harris and her attorneys, Chestnut, Sanders, Sanders, Petaway & Campbell, L.L.C.'

"....

"Upon receipt of the check, I will draft the appropriate General Release and Settlement Agreement along with a Joint Stipulation for Dismissal with Prejudice so we can proceed to consummate this settlement."

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:

"RE: Yvonne Harris v. Cotton States Mutual Insurance Company, et al.

"CV-030-1646

"Dear Christmas:

"Enclosed please find the following:

"1. A check in the amount of $35,000.00 made payable to Ms. Harris and your firm;

"2. An original of a General Release and Settlement Agreement; and

"3. An original of Joint Stipulation for Dismissal with Prejudice.

"I would request that you please have Ms. Harris execute the General Release and Settlement Agreement, have her signature acknowledged and you sign on the approval line. I would further request that you execute the original of the Joint Stipulation for Dismissal with Prejudice and return both original documents to me. Upon receipt of these documents, I will get Ron Wise to execute the Joint Stipulation for Dismissal and I will execute the same and file it with the Court along with a proposed Order. I will further provide you with a fully executed copy of the Joint Stipulation for Dismissal with Prejudice.

"Thank you for your cooperation in this matter."

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:

"RE: Yvonne Harris v. Cotton States Mutual Insurance Company, et al.

"Dear Bill:

"Christmas emailed me about the release and settlement of our case. She advised that you proposed to have the case dismissed against all defendants. When I looked at the documents, I did see the stipulation for dismissal and read the language in the release itself, which is not clear as to the `protanto' nature of our settlement. It is our desire to pursue this case against the contractor and the documents may well foreclose that opportunity. Moreover, our client is not in agreement with the documents, which dismisses her case against all defendants.

"Therefore, I am returning the documents and your check to you, as they do not represent our settlement. Our settlement did not in anyway dismiss the case. Thus, we have no settlement and will have to push forward with prosecution of Ms. Harris's case."

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:

"RE: Yvonne Harris v. Cotton States Mutual Insurance Company, et al.

"CV-030-1646

"Dear Christmas:

"As per our telephone conversation on February 16, 2004, enclosed please find a Pro Tanto Release as well as a Motion to Dismiss all defendants other than Mike Pres[kitt] and Mr. Install, Inc. in the above-referenced matter. I am also returning the $35,000.00 settlement check. I trust this complies with your understanding of this dismissal. As you can determine, the Pro Tanto Release releases all defendants other than Mike Pres[kitt] and Mr. Install, Inc. and the motion to dismiss dismisses all defendants other than Mike Pres[kitt] and Mr. Install, Inc.

"It is my understanding, subject to correct[ion], [that] neither Mike Pres[kitt] nor Mr. Install, Inc. have been served with the original Summons and Complaint.

"I would request that you have Ms. Harris execute the Pro Tanto Release, have her signature acknowledged and you sign on the approval line. I would further request that you execute the Motion to Dismiss and file the same with the Court and send an executed copy to Ron [Wise] and me as per the certificate of service.

"If you have any questions in reference to this matter, please do not hesitate to contact me."

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:

"1. That on or about January 29, 2004, the parties by and through their attorneys of record entered into an oral settlement agreement. The settlement agreement was confirmed in writing by the attorney for Cotton States, Phillips, and Borland on January 30, 2004.

"2. Further discussions took place between attorneys for [Harris] and the defendants between January 30, 2004 and February 13, 2004, regarding the terms of the settlement. These final terms were confirmed in writing by the attorney for [Harris] on February 13, 2004, wherein for the consideration of $35,000, [Harris] agreed to release the defendants Cotton States, Phillips, and Borland and retain [Harris's] right to pursue her claim against the remaining defendant.

"3. On February 16, 2004, the attorney for the defendants Cotton States, Phillips, and Borland further reconfirmed in writing the final terms of the settlement and submitted to [Harris]'s counsel a check in the amount of $35,000, a Pro Tanto Release and Settlement Agreement and proposed motion of dismissal with prejudice [of] the defendants Cotton States, Phillips and Borland.

"4. Subsequent to these writings, [Harris] attempted to repudiate the terms of the written settlement agreement thereby facilitating these defendants' motion, testimony and oral argument held before this Court on April 2, 2004.

"5. Neither of the attorneys for the parties deny that they had authority to bind their clients to this settlement.

"6. The Court therefore is of the opinion based on written communications between the attorneys for the parties as enumerated above, as well as § 34-3-21, Code of Alabama, as amended; Mays v. Julian LeCraw & Co., Inc., 807 So.2d 551 (Ala.Civ.App.2001), and Beverly v. Chandler, 564 So.2d 922 (Ala.1990), there was a binding settlement in writing between the attorneys for the respective parties...."

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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11 cases
  • Haddan v. Norfolk S. Ry. Co.
    • United States
    • Alabama Supreme Court
    • February 4, 2022
    ...is not a party to the action. Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005). Haddan attempts to differentiate this case from Harris by insisting that Cox had been served, which, as noted above, is not supported by the record. Haddan, therefore, has not shown that the circuit cou......
  • Cathedral of Faith Baptist Church, Inc. v. Moulton
    • United States
    • Alabama Supreme Court
    • June 25, 2021
    ...the claims against Walker, that order is a nullity because Walker was never served and was not a party to the action. Harris v. Preskitt, 911 So. 2d 8 (Ala. Civ. App....
  • Glasgow v. Jackson Land Surveying, LLC
    • United States
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    • April 7, 2017
    ...judgment at the time of its entry), overruled on other grounds by Ex parte Luker, 25 So.3d 1152 (Ala. 2007) ; and Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the serv......
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    • United States
    • Alabama Supreme Court
    • June 25, 2021
    ...the claims against Walker, that order is a nullity because Walker was never served and was not a party to the action. Harris v. Preskitt, 911 So. 2d 8 (Ala. Civ. App....
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