Lolley v. Howell
| Citation | 504 So.2d 253 |
| Parties | Fred R. LOLLEY, v. Ruth Ann HOWELL. 85-470. |
| Decision Date | 27 February 1987 |
| Court | Supreme Court of Alabama |
Robert Burdine, Jr. of Burdine & Mitchell, Florence, for appellant.
Steve A. Baccus, Larry B. Moore of Almon, McAlister, Ashe, Baccus, & Tanner, Tuscumbia, for appellee.
These proceedings began when Ralph Biernbaum, the sole general partner of Regency Square Associates, Ltd., and Regency Square Merchants' Association, Inc. ("Regency Square"), filed a complaint in Lauderdale County Circuit Court against Fred R. Lolley d/b/a F.J.F. Interiors, seeking the collection of past due rent, real estate taxes, insurance premiums, and membership dues. F.J.F. Interiors is located in Regency Square Mall in Florence, Alabama. Lolley filed a counterclaim against Biernbaum and Regency Square and a third-party complaint against Ruth Ann Howell; the third party complaint alleged interference with the contractual relations between Lolley and Howell and also alleged conspiracy to interfere with those contractual relations. Lolley also filed a separate lawsuit against Howell, alleging, inter alia, fraud and breach of contract. The trial court granted Lolley's motion to consolidate the two cases. Subsequently, Lolley reached a settlement with Biernbaum and Regency Square and all claims between them were dismissed by stipulation. Thereafter, the trial court granted a summary judgment in favor of Howell in both cases. Lolley appeals. We affirm in part, reverse in part, and remand.
This dispute arose out of an agreement which Lolley entered into with Howell for the sale of his store space in Regency Square Mall. Howell gave Lolley a $500 check as earnest money, and Lolley typed two memoranda evidencing the terms of the agreement. The first states:
The memorandum was signed by Lolley and was dated April 11, 1983. The second memorandum reads:
"I Ruth Ann Howell agree to pay Fred R. Lolley the sum of 30,000.00 for the space being occupied by FJF Interiors (m-3) in Regency Square Mall (500.00 in deposit money and the balance on or before May 31, 1983)."
This memorandum was signed by Howell and was also dated April 11, 1983. On April 13, 1983, Howell stopped payment on the check and informed Lolley that she would not purchase his space.
The general nature of the parties' agreement in this case does not appear to be in dispute. Lolley was to sublease his space in the mall to Howell and sell her the leasehold improvements which he had made. In return, Howell was to pay Lolley $30,000. Howell contends, however, that she was not obligated to go through with the purchase because Lolley did not have the right to sublease the space and sell the leasehold improvements at the time the agreement was entered into. She also contends that Lolley made certain material misrepresentations to her during their negotiations. Lolley concedes (and the record shows) that the leasehold improvements were the property of Regency Square Associates, Ltd., under the terms of his shopping center lease at the time he entered into the agreement with Howell. Likewise, at the time he entered into the agreement with Howell, Lolley had not received approval from Regency Square Associates, Ltd., to sublease the space, as he was required under the terms of the lease to do.
However, as we read his brief, Lolley contends that he had an agreement with Howell which was conditioned upon his having an opportunity to secure the necessary approval. This is disputed in the deposition and affidavits submitted by Howell to the trial court.
Lolley's fraud claim is also predicated upon his negotiations with Howell concerning the sale of the store space. Lolley maintains that Howell fraudulently misrepresented her intentions to purchase his space in order to gain valuable trade information. Howell insists that Lolley cannot recover for fraud because h...
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