Mantiply v. Mantiply

Decision Date12 May 2006
Docket Number1040006.,1031916.
Citation951 So.2d 638
PartiesM. Mallory MANTIPLY v. Mary Elizabeth MANTIPLY. Mary Elizabeth Mantiply v. M. Mallory Mantiply.
CourtAlabama Supreme Court

David P. Broome, Mobile; and David E. Hudgens of Hudgens & Eiland, LLP, Daphne, for appellant/cross-appellee M. Mallory Mantiply.

Peter F. Burns of Burns, Cunningham, Mackey & Fillingim, P.C., Mobile, for appellee/cross-appellant Mary Elizabeth Mantiply.

BOLIN, Justice.

M. Mallory Mantiply sued his ex-wife Mary Elizabeth Mantiply on July 7, 2003, seeking the repayment of amounts he alleges he lent her. On July 28, 2003, and August 19, 2003, Mallory filed notices of lis pendens as to certain real property owned by Mary Elizabeth in order to secure the debt Mallory alleged in his complaint he was owed by Mary Elizabeth. Mary Elizabeth answered the complaint on August 25, 2003, denying that she was indebted to Mallory. Mallory amended his complaint on December 13, 2003, reasserting his claim seeking the repayment of the alleged loans and also asserting a claim of fraud against Mary Elizabeth in the procurement of the alleged loans. Mary Elizabeth answered the amended complaint on January 5, 2004, denying the allegations contained in that complaint and counterclaimed against Mallory alleging conversion of personal property, conversion of business property, and money had and received, and seeking an accounting.

On March 22, 2004, Mallory amended his complaint a second time alleging, among others, claims for money lent and of unjust enrichment, equitable mortgage, fraud, and promissory fraud and seeking an accounting, or, in the alternative, compensation under a theory of quantum meruit for the value of certain legal services rendered. Mary Elizabeth answered the second amended complaint on April 8, 2004, denying the allegations contained in the complaint, reasserting her counterclaim, and asserting certain affirmative defenses.

On May 26, 2004, Mary Elizabeth moved the trial court for a summary judgement as to all of the claims asserted against her by Mallory. On July 20, 2004, Mary Elizabeth moved the trial court for a summary judgment on the claims asserted by her in the counterclaim and removal of record of the lis pendens notices filed by Mallory. On July 22, 2004, Mallory responded to the first motion for summary judgment filed by Mary Elizabeth. On August 5, 2004, Mallory moved the trial court to strike certain language from Mary Elizabeth's answer to the second amended complaint, her May 26, 2004, motion for a summary judgment, and her affidavit filed in support of that motion.

On August 16, 2004, the trial court, among other things, granted Mallory's motion to strike in part; entered a summary judgment in favor of Mary Elizabeth on each claim asserted against her by Mallory; determined that Mallory had no equitable mortgage in any real property owned by Mary Elizabeth; declared the lis pendens notices filed by Mallory invalid; and placed the claims asserted by Mary Elizabeth in the counterclaim on its administrative docket. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Mallory appeals and Mary Elizabeth cross-appeals from the judgment entered by the trial court, arguing that the trial court erred in granting Mallory's motion to strike.

In reviewing the disposition of a motion for summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating an issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Facts

The parties, both attorneys, were married in April 1981; they were divorced on April 8, 1998. The trial court awarded custody of the parties' minor daughter to Mary Elizabeth and ordered Mallory, among other things, to pay $1,200 per month in child support. Following the parties' divorce, Mallory left his position as a partner in a prominent Alabama law firm and moved to Virginia in December 1998. Mallory returned to Alabama in December 1999 to attend his daughter's birthday party. Mallory testified that at the time he returned to Alabama he "wanted to put [his] family back together" and "hoped" to move in with Mary Elizabeth and his daughter. Mary Elizabeth owned a waterfront residence in Elberta ("the Neumann Drive property") and a waterfront residence in Montrose; Mary Elizabeth and her daughter lived at various times in both residences. Mallory began living with Mary Elizabeth and his daughter upon his return to Alabama and continued to reside with them until April 2003. Mallory and Mary Elizabeth did not engage in a romantic or sexual relationship after Mallory returned to Alabama.

The circumstances made the basis of this action arise from (1) payments totaling $250,723.98 that Mallory alleges he paid directly to Mary Elizabeth or on Mary Elizabeth's behalf in satisfaction of certain of her obligations, which he says were loans that Mary Elizabeth was obligated to repay, and (2) Mallory's practicing law at Mantiply & Associates, Mary Elizabeth's law office.1 We set out the factual allegations arising out of the alleged loans and practice of law separately.

I. The Alleged Loans to Mary Elizabeth

Mallory paid Mary Elizabeth $60,000 between January 2000 and November 2000. Mary Elizabeth testified in her affidavit that when Mallory returned to Alabama in December 1999 she did not want him to move in with her and the parties' daughter but that he offered to stay in a guest bedroom and to help with the living expenses. Mary Elizabeth testified that she allowed Mallory to move in with her on the condition that he pay what she considered to be his share of the household expenses. She stated that she and Mallory had an oral contract, terminable at will by either party, under the terms of which she provided Mallory with room, board, and incidentals and she charged him as she deemed appropriate.

Mary Elizabeth testified that the payments Mallory made to her during that period were for the living expenses he incurred while he resided with her and that Mallory never referred to the payments made to her as loans she was obligated to repay. She stated that Mallory never wrote the word "loan" on any of the checks he gave her or otherwise presented her with a promissory note or other writing indicating that the payments he made to her were loans. Mary Elizabeth further testified that Mallory related to her on a number of occasions during the 40-month period in which they resided together that he took great pride in paying his share of the expenses.

Mallory disputes Mary Elizabeth's contentions regarding the nature of the payments made to her. Mallory testified that on the evening he arrived back in Alabama Mary Elizabeth invited him to stay at her residence and that he accepted. Mallory testified that he never entered into an agreement with Mary Elizabeth to pay any living expenses. He stated that he inquired of Mary Elizabeth on several occasions as to his status and that she would tell him that he was a "guest." Mallory testified that the $60,000 he paid Mary Elizabeth between January 2000 and November 2000 represented loans and that Mary Elizabeth acknowledged that those payments were loans.

II. The Neumann Drive Property

On March 12, 2001, Mallory transferred to Mary Elizabeth one-half of his Morgan Keegan brokerage account, an amount equal to $103,996.80, which consisted of stock and cash; assumed the monthly mortgage payments of $3,993.77 on the Neumann Drive property; and began paying for the insurance and certain utilities for the Neumann Drive property. Mallory contends that his expenditures relating to the Neumann Drive property were loans to Mary Elizabeth that she agreed to repay. He further contends that Mary Elizabeth agreed to secure repayment of those loans, as well as the $60,000 loaned to her between January 2000 and November 2000, with an interest in the Neumann Drive property payable to him should the property ever be sold.

Mary Elizabeth testified that she had wanted to sell the Neumann Drive property but had been unable to do so. She stated that Mallory had not wanted her to sell the Neumann Drive property and that the property was important to him because he wanted their daughter to inherit the property. Therefore, Mary Elizabeth stated that she proposed to Mallory that she would transfer a one-half undivided interest in the Neumann Drive property to him in exchange for his transferring to her one-half of the value of his brokerage account; his assuming the expenses associated with the property, including the mortgage payments of $3,993.77; both parties' agreeing to change the trustee of a trust established for the parties' daughter; and both parties' agreeing to execute irrevocable wills that each included a $500,000 bequest to the other.

Although Mallory transferred $103,996.80 to Mary Elizabeth on March 12, 2001, and assumed the mortgage payments of $3,993.77, as well as other expenses associated with the Neumann Drive property, Mary Elizabeth testified that Mallory did not fully comply with the terms of the agreement and...

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