Interstate Truck Leasing, Inc. v. Bender
| Decision Date | 13 November 1992 |
| Parties | INTERSTATE TRUCK LEASING, INC. v. Houston O. BENDER. INTERSTATE TRUCK LEASING, INC. v. METCALF REALTY COMPANY. 1910707, 1911107. |
| Court | Alabama Supreme Court |
W. Lewis Garrison, Jr. of Corley, Moncus & Ward, P.C., Birmingham, for Interstate Truck Leasing, Inc.
John H. Lavette and John R. Christian, Birmingham, for Houston O. Bender.
Douglas J. Centeno of Schoel, Ogle, Benton and Centeno, Birmingham, for Metcalf Realty Co.
In July 1988, the State of Alabama filed an application in the Jefferson County Probate Court to condemn certain real property owned by Houston O. Bender and leased from him by Interstate Truck Leasing, Inc. (hereinafter "Interstate"). The probate court granted the State's application awarding Bender $103,000 as compensation for his property. The State appealed the compensation award to the Jefferson Circuit Court.
Interstate filed a cross-claim against Bender, alleging that before Interstate had leased the property he had fraudulently suppressed the fact that the condemnation proceeding was pending. Interstate also filed a third-party complaint against Metcalf Realty Company, alleging fraud and breach of fiduciary duty. In May 1990, the State moved to sever Interstate's claims from the condemnation action. At the June 6, 1990, hearing on this motion, the trial court ordered a separate trial as to Interstate's claims. The issue of the State's compensation to Bender was tried by jury in October 1990, and the trial court reduced the compensation award to $87,000.
Bender and Metcalf Realty subsequently moved for a summary judgment on Interstate's claims, arguing that the trial court's June 6 order was actually a severance of Interstate's claims, not an order for a separate trial, and that the severed claims were barred by res judicata. The trial court granted Bender's motion and made the resulting judgment final pursuant to Rule 54(b), A.R.Civ.P. The trial court also entered a summary judgment for Metcalf Realty on the remaining claims. Interstate appeals from those two summary judgments.
The first issue presented is whether Interstate's claims were barred by the doctrine of res judicata. Interstate points out that, by definition, res judicata constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action. Croft v. Pate, 585 So.2d 799 (Ala.1991). Interstate argues that its claim against Bender was merely set aside for a separate trial, not actually severed under Rule 21, A.R.Civ.P., and thereby concludes that res judicata is not applicable here.
Although the State's motion was styled as a "motion to sever," the written motion did not refer to Rule 21 and, in granting the motion, the trial court noted in the record: "Motion granted to the extent that a separate trial is ordered as to the Interstate claims against Bender and Metcalf Realty." The trial court did not require Interstate to file a new suit against Bender, and Interstate's claims remained under the same case number as the initial condemnation action.
When separate trials are ordered pursuant to Rule 42(b), A.R.Civ.P., a single judgment usually results; accordingly, when the court wishes to enter a judgment as to fewer than all of the claims or parties in the action, it must follow Rule 54(b). Ex Parte Palughi, 494 So.2d 404 (Ala.1986). When a claim is severed under Rule 21, however, a new action is created and a completely different judgment results. Palughi. Thus, when a judgment is rendered on all the issues in the new action, the fact that issues remain pending in the original action does not make the ruling in the new action an adjudication "as to fewer than all the claims on the rights and liabilities of fewer than all the parties." Thus, Rule 54(b) does not apply. Palughi.
In its October 1990 order awarding compensation to Bender, the trial court included the following provisions:
In view of the foregoing, we conclude that the trial court did not intend to sever Interstate's claims pursuant to Rule 21, but merely ordered a separate trial for the claims, as provided for in Rule 42(b). Accordingly, Interstate's claims against Bender and Metcalf Realty are not barred by the doctrine of res judicata.
Interstate next argues that the trial court erred in entering a summary judgment against its claims of fraudulent suppression against Bender and Metcalf Realty. In order to withstand a defendant's properly supported motion for summary judgment on a claim of fraudulent suppression, the plaintiff must offer substantial evidence (1) that the defendant had a duty to disclose material facts; (2) that the defendant concealed or failed to disclose these facts; (3) that the suppression induced the plaintiff to act; and (4) that the plaintiff's action resulted in his injury. Cornelius v. Austin, 542 So.2d 1220 (Ala.1989).
The record reveals these facts: Bender owned a certain piece of business property in Birmingham on which the State planned to build a highway overpass. Bender knew for a number of years about the proposed overpass; however, because the State had postponed the project several times, he did not believe it would ever come to fruition. In 1986, Bender retained the services of Metcalf Realty to sell or lease the property. In December 1986, while Metcalf Realty was seeking a lessee or purchaser, Bender received a letter from Lonnie Tidwell, an independent appraiser hired by the State to ascertain the fair market value of Bender's property. Bender telephoned Tidwell and learned that the State had decided to proceed with its plans to build the overpass. On December 17, he met with Tidwell at the property site to discuss the value of the land. Bender contacted his agent at Metcalf Realty and told him about the meeting with Tidwell and about the State's plan to build the overpass. He also gave the agent a copy of the tract map of his property, which was issued to him by the State Highway Department and which included the project number assigned to the property.
Bender subsequently moved to California, and Metcalf Realty continued to search for a buyer or lessee for the property. In February 1987, Metcalf Realty entered into negotiations with Interstate for the lease of the property. Bender conducted business with Interstate solely through Metcalf Realty and never personally spoke with, or otherwise contacted, Interstate. Metcalf Realty did not disclose to Interstate any facts about the State's plan to build an overpass on the property.
During the period of negotiation, Interstate requested a map of the property and Metcalf Realty supplied it with a copy of the tract map issued by the State...
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