Perdue v. Gates
| Decision Date | 17 July 1981 |
| Citation | 403 So.2d 165 |
| Parties | William C. PERDUE v. Ora GATES and Estes Wilson Realty Corp., a corporation. Richard A. BOYKIN, Sr. v. Ora GATES and Estes Wilson Realty Corp., a corporation. 79-554, 79-555. |
| Court | Alabama Supreme Court |
Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, for appellant William C. Perdue.
Sidney H. Schell of Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for appellant Richard A. Boykin, Sr.
Emmett R. Cox and R. Joel Potter of Nettles, Cox & Barker, and M. A. Marsal of Seale, Marsal & Seale, Mobile, for appellee.
These appeals come to us from judgments on jury verdicts in favor of plaintiffs, a real estate saleslady and the broker holding her license, on suits to recover commissions on the sale of land. Defendants, seller and remote partial-interest buyer of the property in question, appeal the denial of their motions for judgment notwithstanding the verdict or, in the alternative, for new trial. The cases present procedural questions regarding the right of defendants to appeal from the denials of their post-trial motions, as well as questions relating to the law of "procuring cause" in real estate sales. After careful consideration of the law and the facts, we reverse.
William C. Perdue (hereinafter Perdue) and his sister Ann Perdue Ballard inherited a sizable tract of beach-front property in Gulf Shores, Alabama. In April of 1972, Ora Gates (hereinafter Gates), a licensed real estate saleslady (Gates did business as a saleslady under the supervision of Estes Wilson Corporation, also a plaintiff, but not an active party) heard that Perdue and his sister might be interested in selling the property. Gates telephoned Perdue and told him she knew someone who might be interested in buying it. Perdue told her that he was interested in selling and that she could speak to her prospective buyer. Gates then contacted Richard A. Boykin, Sr., (hereinafter Boykin) who told her that he was interested and asked her to secure more information. The two men agreed to pay her $25,000.00 each should a sale go through. The exact nature of this agreement is in dispute, but it was certainly not an exclusive listing. Gates testified at trial that Perdue and Boykin agreed to pay the commission "when Boykin purchased the property." She asserted that Boykin told her from the outset that he would have associates with him.
Perdue and Boykin began negotiations and went to the property to inspect it. There was evidence that Richard A. Boykin, Jr., (hereinafter Boykin, Jr.), Boykin's son, went out to the property and was otherwise involved in the negotiations on his father's behalf at this stage. Perdue told Gates that there was an option on the property, but he would get out of it if he ethically and legally could. He did so, apparently sometime in May 1972. Boykin, along with Boykin, Jr., and Lykes Boykin, an attorney from Washington who was a friend, but not a relative of defendant Boykin, made an offer to Perdue and Mrs. Ballard in May or June of 1972. This offer was refused. Apparently negotiations continued thereafter, but on June 26, 1972, Boykin wrote a letter "withdraw(ing) entirely our previous proposals."
From this point the evidence is confusing and conflicting. Because we are viewing the evidence in the light most favorable to plaintiff/appellee Gates, we will give her version of events with occasional references to denials by Boykin, Perdue and others. Gates testified that she arranged meetings between Boykin and Perdue, wrote letters to them, and generally had about thirty or forty contacts with each of them between April and September 1972.
Gates testified that Boykin told her that he was working with Jack Nicklaus's business manager and was arranging financing with some people from Ohio. Boykin denied this, saying he never talked to anybody from Ohio until later in the fall, when an Ohio man whom he had never met called him from the Holiday Inn at Gulf Shores, Alabama. Gates said she also negotiated with Perdue's brother-in-law, Mr. Ballard, while Perdue was in Europe. She testified that sometime after June 26, 1972, (the date of Boykin's letter withdrawing his offer) Boykin called her one night "and said he was at his son's apartment and there were two men there from Mississippi who had come to talk to him about the Perdue property." He asked her to reopen negotiations with Perdue, which she did. Boykin denied this.
Gates arranged a meeting between Perdue and Boykin at a motel sometime in August 1972. She testified that Boykin informed her that the meeting was very satisfactory and that he would make a new offer. Soon after that, Perdue telephoned Gates and told her that another option, to last for 60 days, had been taken on the property as of September 7, 1972. Gates related this to Boykin, and he dictated a letter to Perdue to the effect that he was still interested in the property. During the latter part of October, she called Boykin to tell him the option was about to expire and to ask him what he wanted her to do, "and he said, I want you to just sit still because this property is coming back to us." On November 8, 1972, she wrote Boykin a letter suggesting that if he made another offer he should give Perdue a check as evidence of his good faith. This letter included the statement "If you want it I hope it comes back to you." Gates testified that in her letter she was quoting Boykin's earlier instructions to her.
Unbeknownst to Gates during this period, Perdue was also negotiating with W. A. McClung and P. L. Blake (hereinafter McClung and Blake) through another Mobile area real estate broker, James D. McCown. These negotiations had begun in late 1971. On February 11, 1972, McCown wrote to Perdue detailing an offer from McClung and Blake to purchase the property in question. These parties were also working with parties in Atlanta, including James Jones and Donald Nichols, who were directors or officers of various corporations, including Trans-Georgia Corporation and Trans-North Corporation. The latter was incorporated on January 15, 1973. McClung and Blake were the holders of two options on the Perdue property described above. On November 30, 1972, McClung and Blake exercised their option, for which they had paid $5,000.00, enclosing an earnest money deposit of $50,000.00. Testimony at trial indicated that the two exercised their option only after ensuring that the Atlanta parties would, in turn, purchase the property.
Boykin testified that he did not think about the Perdue property again after withdrawing his offer until a man named Fergus called him from Gulf Shores and asked him to discuss his ideas for development of the property. Boykin, Jr., and Lykes Boykin were apparently also at this meeting. Fergus was from Ohio, and Boykin testified that shortly after this first meeting, he went to Ohio to join Fergus and some others in a partnership called Gulf Shores Properties. Boykin could not produce a copy of the partnership agreement, nor did he remember the date of the agreement. Boykin, his son, and Lykes Boykin each bought an 111/9% interest in Gulf Shores Properties for $30,000.00. In a letter dated December 27, 1972, John Kessler (a partner in Gulf Shores Properties), sent Boykin, Jr., "a first draft of the contract pertaining to the Perdue property," with Trans-North Corporation listed as seller and Kessler, John and Robert Fergus, and Boykin Sr. and Jr. named as buyers. James P. Jones was listed as the person to receive communications concerning the contract for seller and Kessler to receive communications concerning the contract for buyer. Jones's address was given as 100 East Broad Street, and Kessler's, as 88 East Broad Street, both in Columbus, Ohio. Defendants objected to the introduction of this contract draft, but apparently it was admitted along with its cover letter. This James Jones is the same one listed with an Atlanta address in the Trans-North articles of incorporation.
On January 19, 1973, Samuel M. McMillan, a Mobile attorney, wrote a letter to John F. Rogers, the Ballards' son-in-law and their attorney. (The Ballards were co-owners of the property in question.) One of the statements in the letter included the following:
On the morning of January 25, 1973, Perdue and Mrs. Ballard and their spouses executed a warranty deed conveying the property to McClung and Blake for $4,000,000.00. That afternoon McClung and Blake conveyed the entire property, approximately 1800 acres, for approximately $5,000,000.00 to Trans-North Corporation.
On January 29, 1973, Trans-North Corporation conveyed part of the property, approximately 1300 acres, to Gulf Shores Holding Co., for approximately $3,600,000.00.
Defendants raise contentions a appeal that amount to challenges to the sufficiency of the evidence. One further ground raised was the allegedly improper closing arguments by plaintiffs' counsel. However, this matter was not sufficiently preserved in the record for us to consider it.
Defendants moved for summary judgment and for directed verdicts at the close of plaintiffs' cases. The motions were denied. After verdicts for plaintiffs, defendants moved for judgment notwithstanding the verdicts (JNOV) and, in the alternative, for new trials. These motions remained pending for 90 days and were denied perforce by Rule 59.1, Alabama Rules of Civil Procedure (A.R.C.P.).
To test the sufficiency of the evidence on appeal, a party must have moved at trial for JNOV under Rule 50(b), A.R.C.P. Great Atlantic and Pacific Tea Company v. Sealy, 374 So.2d 877 (Ala.1979). A motion for...
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