Nix v. Wick

• Decision Date: 30 December 2010
• Docket Number: 1090687.
• Citation: 66 So.3d 209
• Parties: Martha A. NIX and Charles E. Uphamv.Skip WICK, Christie Wick, and James Robert Oldfield.
• Court: Alabama Supreme Court

66 So.3d 209

Martha A. NIX and Charles E. Upham

v.Skip WICK, Christie Wick, and James Robert Oldfield.

1090687.

Supreme Court of Alabama.

Dec. 30, 2010.

Stephen P. Brown, Birmingham, for appellants.Michael B. Odom and Michael B. Beers, Jr., of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellees.LYONS, Justice.

Martha A. Nix and Charles E. Upham appeal from a summary judgment entered by the Jefferson Circuit Court against them and in favor of Skip Wick, Christie Wick, and James Robert Oldfield. We affirm.

Factual Background and Procedural History

Skip Wick and his wife Christie Wick (“the Wicks”) owned a house with approximately 4 1/2 acres of land at 296 West Shugart Ridge in Gardendale. Christie Wick, jointly with her brother, James Robert Oldfield, owned several acres of land adjacent to and surrounding the Wicks' property. On April 2, 2008, the Wicks signed an agreement to sell their house and 4 1/2 acres (“the April 2 contract”) to Charles Upham and Martha Nix, a married couple (“the Uphams”). On the same day, the Wicks and the Uphams signed an addendum (“the addendum”) to the April 2 contract. The addendum stated:

“... This agreement is for the additional at least 5 acres at a price of ... $32,500 per acre.

“This is an option for the [Uphams] to purchase this adjoining acreage. [The Wicks] to have property surveyed and do county zoning requirements in a timely manner (not to exceed three months) at [the Wicks'] expense. Survey to be approved and acceptable to [the Uphams].”

The Wicks and the Uphams closed on the April 2 contract on April 16, 2008, and the Wicks deeded their house and 4 1/2 acres to the Uphams on that date.

Subsequently, on April 22, 2008, the Wicks and the Uphams signed an agreement (“the April 22 contract”) stating:

“The [Uphams] hereby agree to purchase and the [Wicks] hereby agree to sell the following described lot or other unimproved land and appurtenances thereto (‘the Property’) situated in the City of Gardendale, County of Jefferson, Alabama on the terms stated below: Address: adjacent to 296 West Shugart Ridge and legally described as Lot ___, Block ___ Survey ___ Map Book ___ Page ___

“1A. THE PURCHASE PRICE Shall be $32,500 per acre ( at least 5 acres )....

“....

“This contract is per agreement written on Addendum sheet on 4/2/08.”

(Emphasis added.) The April 22 contract stated that the addendum was attached to it; however, none of the copies of that contract in the record included the addendum.

Skip Wick testified that “prior to the [April 16, 2008,] closing, but after the [April 2] contract had been written,” the Wicks and the Uphams met on the Wicks' property and discussed the Uphams' purchase of 5 adjacent acres. Wick testified that they “discussed that the potential property lines would run forty feet to the left of the mailbox [along a road] as you are facing the house, and then would run back to the right corner of the property.” In her testimony, Martha Nix confirmed Skip Wick's description of the potential property lines. That description, however, was not included in either the addendum or the April 22 contract. The following exchange occurred at Martha Nix's deposition:

“Q. ... Tell me, looking at this April 22 contract, tell me how I can look at it and go out there and locate the five acres that's supposed to be the subject of this April 22 contract.

“A. There's no way you can.

“....

“Q. ... [Y]ou testified earlier that you can't look at the April 22, 2008, contract and determine where that five acres is; correct?

“A. Well, that's because there was no legal description to the five acres that we were told.

“Q. Okay.

“A. And there's no legal description without a survey.

“Q. Okay. But there's no dispute that there's not a legal description attached to that April 22, 2008, contract?

“A. That's right. Because there's no survey.

“Q. Right. And so there's no way that you can just look at that April 22 contract and determine where the five acres is; correct?

“A. Right.

“Q. But you had a verbal understanding of where you thought the five acres was supposed to be; correct?

“A. Well, we had an understanding of where we were told the five acres would be.”

It is undisputed that Skip Wick did not own the five acres to the left of the mailbox that he had described to the Uphams (hereinafter “the left five acres”). He testified that he told the Uphams that “all that”—presumably his description of the left five acres and the Uphams' purchase of those acres—“was contingent on [Oldfield] as being the partial owner of the property.” The Uphams deny that Wick told them that Oldfield was joint owner of the left five acres. At his deposition, Skip Wick testified that he could understand how his statements to the Uphams along with his execution of the April 22 contract may have been misleading; however, he denied any intent to mislead the Uphams.

Ultimately, Oldfield refused to sell the left five acres, and the Wicks did not obtain a survey of them. The Wicks instead submitted to the Uphams a survey of other land adjacent to 296 West Shugart Ridge, which, they contend, satisfied the descriptions in the addendum and the April 22 contract. The Uphams rejected that land as noncompliant with their oral agreement with the Wicks. They also contend that they would not have purchased the Wicks' house and 4 1/2 acres at 296 West Shugart Ridge if they had known that they could not also purchase the left five acres. Skip Wick conceded at his deposition that he knew that the Uphams purchased his house and land, in part, because of the availability of the left five acres.

On March 23, 2009, the Uphams sued the Wicks and Oldfield seeking specific performance of the addendum and the April 22 contract. Alternatively, the Uphams sought rescission of the April 2 contract. The Uphams also stated claims against the Wicks and Oldfield alleging breach of contract, fraudulent misrepresentation, suppression, and fraudulent inducement; against Oldfield alleging tortious interference with the April 22 contract; and against “any defendant” for negligence and wantonness.

The Wicks and Oldfield answered the complaint, raising as a defense § 8–9–2(5), Ala.Code 1975, the Statute of Frauds. The Wicks and Oldfield subsequently moved for a summary judgment as to all the Uphams' claims. They argued that the April 22 contract was void under the Statute of Frauds because it did not sufficiently describe the land to be purchased, that the Uphams' tort claims failed because they were based on the void April 22 contract, and, alternatively, that the Uphams' tort claims were not supported by sufficient evidence. The Uphams responded and, on January 11, 2010, the trial court entered an order stating:

“The April 22, 2008, contract is void under the Statute of Frauds because the real property which is the subject of said contract is insufficiently described. The [Uphams'] claims, being dependant upon the April 22, 2008, document, must fail. See, DeFriece v. McCorguodale, 998 So.2d 465 (Ala.2008); Bruce v. Cole, 854 so.2d [So.2d] 47 (Ala.2003); and Holman v. Childersburg Bancorporation, Inc., 852 So.2d 691 (Ala.2002). Therefore, the Motion for Summary Judgment is due to be granted.”

The Uphams appealed.

Analysis

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact—“evidence 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.” Ala.Code 1975, § 12–21–12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’

“ Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Alabama Elec. Coop. v. Bailey's Constr. Co., 950 So.2d 280, 283 (Ala.2006).

Section 8–9–2, Ala.Code 1975, provides, in part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:

“....

“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.”

This Court has stated “that a contract for sale of land, to satisfy the statute of frauds, must describe the land with such certainty that it can be identified without resort to oral evidence.” Goodwyn v. Jones, 288 Ala. 71, 75, 257 So.2d 320, 323 (1971).

It is undisputed that the Uphams had not yet paid any purchase money and were not in possession of any land contemplated under the April 22 contract. Accordingly, the exclusion described in § 8–9–2(5) does not apply. The April 22 contract is, therefore, void unless it describes the land to be sold “with such certainty that it can be identified without resort to oral evidence.” Goodwyn, 288 Ala. at 75, 257 So.2d at 323. The ...