Opry South Land Inv. Group, Ltd. v. Price

• Citation: 679 So.2d 1083
• Parties: OPRY SOUTH LAND INVESTMENT GROUP, LTD. v. Harold P. PRICE, et al. Harold P. PRICE, et al. v. OPRY SOUTH LAND INVESTMENT GROUP, LTD. 2940661, 2940782.
• Decision Date: 02 February 1996
• Court: Alabama Court of Civil Appeals

Page 1083

679 So.2d 1083

OPRY SOUTH LAND INVESTMENT GROUP, LTD. v. Harold P. PRICE, et al.

Harold P. PRICE, et al. v. OPRY SOUTH LAND INVESTMENT GROUP, LTD.

2940661, 2940782.

Court of Civil Appeals of Alabama.

Feb. 2, 1996 Rehearing Denied March 15, 1996 Appellant's Certiorari Petition Denied July 12, 1996 Alabama Supreme Court 1951033.

Fred K. Granade and George R. Irvine III of Stone, Granade & Crosby, P.C., Bay Minette, for Appellant (Opry South Land).

Ralph Loveless of Loveless, Banks & Lyons, Mobile, for Appellees-Cross Appellants.

YATES, Judge.

Opry South Land Investment Group, Ltd., an Alabama limited partnership, sued Harold Price, Katherine Price, Janice McLean, Katherine Tyson, and AmSouth Bank, N.A., to quiet title to 30 acres of land it claimed to own located in Baldwin County. Before trial, McLean and Tyson disclaimed all interest in the land, in favor of the Prices, and were discharged from the proceedings. The jury returned a verdict for Opry South Land Investment, finding that title to the property was vested in it.

The Prices moved for a new trial or, in the alternative, to alter or amend the judgment. The trial court denied the motion for a new trial; however, it granted the motion to alter or amend the judgment, awarding the Prices a 16% interest in the property, pursuant to § 10-8-73(b), Ala.Code 1975. Additionally, it imposed a constructive trust on Opry South Land Investment's interest in the property, to be discharged upon payment by Opry South Land Investment to the Prices of 84% of the total sum of $3,835.09 that the Prices had paid in property taxes (i.e., $3,221.48). Opry South Land Investment then moved to alter or amend the order and amended judgment; the trial court denied that motion. Opry South Land Investment appeals; the Prices cross-appeal. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Opry South Land Investment was composed of nine limited partners and one corporate general partner. The corporate general partner, Opry South, Inc., had a 16% interest in the limited partnership; each of the nine limited partners had a 9 1/3 interest. The limited partnership was formed to buy land and to then sell it to developers. On October 18, 1983, Opry South purchased a large tract of land, which included the 30 acres at issue, from Craft Farms. Opry South took title by way of deed from Craft Farms; however, Craft Farms retained a vendor's lien on the tract of land.

On October 9, 1984, Opry South conveyed the land to Opry South Land Investment by statutory warranty deed. On October 18, 1984, Opry South Land Investment prepared a restriction on transfer, which prevented Opry South, as general partner of Opry South Land Investment, from selling, mortgaging, or otherwise conveying the land without written consent of at least two-thirds of the limited partners; however, this document was not recorded until January 22, 1988. On September 25, 1987, a "correction vendor's lien deed" was prepared to correct an error contained in the original deed executed in October 1983 from Craft Farms to Opry South. This correction deed made no reference to the statutory warranty deed executed in October 1984 transferring the property from Opry South to Opry South Land Investment.

On November 6, 1987, more than three years after Opry South had conveyed the land to Opry South Land Investment by statutory warranty deed, the president of Opry South, Joe Mitchell--acting as president of the corporation and not as president of the general partner of Opry South Land Investment--executed a document purporting to create a mortgage on the 30 acres at issue to Rock-Co Construction Company, Inc., in exchange for a $12,500 cash advance by Rock-Co to Opry South and the promise to do additional work on a tract of property not involved in this litigation. The mortgage was executed without the knowledge of and authorization from Opry South Land Investment. Four months later, Rock-Co foreclosed on the mortgage and was named the grantee in the foreclosure deed. Thereafter, the Prices, in exchange for their home, acquired title to the 30 acres of land from Rock-Co by a warranty deed dated June 8, 1989.

Opry South Land Investment contends that the trial court erred in granting the Prices' motion to alter or amend the judgment and awarding them a 16% interest in the land pursuant to § 10-8-73(b), Ala.Code 1975. It argues that "a partner does not own any specific percentage interest in the real property owned by a partnership" and, therefore, that Opry South, as a corporate general partner in Opry South Land Investment, could not convey title or any interest in the land to Rock-Co. Section 10-8-73(b), Ala.Code 1975, states, however: "Where title to real property is in the name of the partnership, a conveyance executed by a partner, in his own name, transfers only the equitable interest in the property of that partner". Title to the land was in the name of Opry South Land Investment when Opry South made the conveyance to Rock-Co. Opry South had a 16% interest in Opry South Land Investment. Thus, we conclude that the trial court did not abuse its discretion in applying § 10-8-73(b) and in awarding a 16% interest in the land to the Prices.

We note that whether to grant or to deny a motion to alter, amend, or vacate a judgment is within the sound discretion of the trial court. Smith v. Smith, 644 So.2d 22 (Ala.Civ.App.1994), K.R.D. v. E.D., 622 So.2d 398 (Ala.Civ.App.1993). "This Court will not disturb an order denying or granting a motion to alter, amend, or vacate a judgment unless there has been a manifest abuse of...