Hood v. City of Birmingham

• Decision Date: 26 January 1990
• Citation: 562 So.2d 164
• Parties: Betty HOOD, executrix of the estate of David Hood, deceased v. CITY OF BIRMINGHAM. 88-1382.
• Court: Alabama Supreme Court

Page 164

562 So.2d 164

Betty HOOD, executrix of the estate of David Hood, deceased v. CITY OF BIRMINGHAM.

88-1382.

Supreme Court of Alabama.

Jan. 26, 1990.

Rehearing Denied April 20, 1990.

William J. Baxley and Kearney Dee Hutsler III of Baxley, Dillard & Dauphin, Birmingham, for appellant.

Lee E. Bains, Jr. and Frank D. McPhillips of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee.

STEAGALL, Justice.

Betty M. Hood, as executrix of the estate of her husband, David H. Hood, Jr., sued the City of Birmingham for breach of contract for its failure to pay $60,800 in legal fees for services her husband had performed for Roosevelt City (annexed by Birmingham in 1988), as that city's attorney. Mrs. Hood filed her notice of claim with Birmingham on January 30, 1989. Section 11-47-23, Ala.Code 1975, requires that notice of certain claims be filed with the municipal clerk within two years from the accrual of the claims. The trial court dismissed both Mrs. Hood's complaint and her amended complaint, presumably for noncompliance with that statute. On appeal, Birmingham argues that Mrs. Hood's failure to comply with § 11-47-23 bars her suit. Mrs. Hood, on the other hand, argues that Birmingham, as successor in interest to Roosevelt City's assets and liabilities, is estopped from asserting the limitations defense.

On March 6, 1984, Roosevelt City, through its mayor and city council, entered into a written agreement with David Hood that itemized his services for the period January 1972 until February 1984 and acknowledged its debt to him:

"We, the undersigned, Mayor and City Council of Roosevelt City, Alabama, certify that the City of Roosevelt City, Alabama, is justly indebted to Attorney David H. Hood, Jr., in the sum of Sixty Thousand and Eight hundred ($60,800) Dollars as set out in Count One (1) herein, and in behalf of Roosevelt City, Alabama, and as Mayor and City Councilpersons of the City of Roosevelt City, Alabama, we confess judgment in behalf of the City of Roosevelt City to Attorney David H. Hood, Jr., as set out herein and the facts are true and correct."

Mrs. Hood contends that her husband withheld filing a notice of claim with Roosevelt City because it lacked the funds to pay him. She stated in her affidavit:

"[T]he Mayor and Council Members informed Attorney Hood that the City was without funds to satisfy the indebtedness at that [sic] time they signed a promissory agreement (Council Members and Mayor), acknowledging and binding the City to said indebtedness and would pay the indebtedness as soon as the City had funds to take care of this matter. As soon as annexation took place, it was apparent that funds were available and a claim was made on the indebtedness."

Although Alabama recognizes the estoppel defense in the context of § 11-47-23, see Large v. City of Birmingham, 547 So.2d 457 (Ala.1989), and City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), we find it unnecessary to reach that argument, in light of the written agreement between David Hood and Roosevelt City.

Restatement (Second) of Contracts § 82 (1981) states the rule with regard to such promises to pay indebtedness as follows:

" 82. Promise to Pay Indebtedness; Effect on the Statute of Limitations

"(1) A promise to pay all or part of an antecedent contractual or quasi-contractual indebtedness owed by the promisor is binding if the indebtedness is still enforceable or would be except for the effect of a statute of limitations.

"(2) The following facts operate as such a promise unless other facts indicate a different intention:

"(a) A voluntary acknowledgement to the obligee, admitting the present existence of the antecedent indebtedness...."

In this case, Roosevelt City's promise to pay Mr. Hood bound it contractually because the indebtedness owed Mr. Hood was not barred by the six-year statute of limitations for actions on contracts when the agreement was signed in March 1984. See § 6-2-34. In other words, by signing the agreement, Roosevelt City had voluntarily admitted the present existence of the...