Pickard v. Turner

• Citation: 592 So.2d 1016
• Parties: Marshall PICKARD v. Wayne P. TURNER, et al. 1900703.
• Decision Date: 17 January 1992
• Court: Supreme Court of Alabama

Page 1016

592 So.2d 1016

Marshall PICKARD v. Wayne P. TURNER, et al.

1900703.

Supreme Court of Alabama.

Jan. 17, 1992.

Alexander W. Jones, Jr. and Madison W. O'Kelley, Jr. of Pritchard, McCall & Jones, Birmingham, for appellant.

James W. Garrett, Jr. of Rushton, Stakely, Johnston, & Garrett, P.A., Montgomery, for appellees.

ALMON, Justice.

Marshall Pickard filed a legal malpractice action against Wayne P. Turner, Terry P. Wilson, Thomas R. Christian, and Robert T.J. Childers, individually and as partners in the firm of Turner, Wilson, and Christian. Pickard claims that the defendants are liable under theories of negligence and fraud. Following the defendants' motion for summary judgment, the trial court entered judgment in their favor. Because Pickard introduced evidence that the defendants breached their duty to him, the dispositive issue is whether he presented substantial evidence that such a breach by the defendants proximately caused his alleged loss.

The facts in this case are complex, and the resolution of the issue presented requires a detailed analysis of the evidence. Therefore, we recite the following facts, based upon a thorough review of the record, viewing all the evidence in a light most favorable to Pickard, the nonmoving party:

During March 1984, Pickard purchased a 391-acre tract of land in Jefferson County, Alabama, for approximately $392,000. The land's appraised value was approximately $1,000,000. Pickard financed the transaction by mortgaging the land to First American Mortgage Company, Inc. ("First American"). In March 1984 First American lent Pickard 60% of the land's appraised value, approximately $600,000. Pickard paid for the land and kept the surplus loan proceeds.

Immediately following his purchase of the land Pickard began to try to sell the land. Because Pickard failed to make any of the payments due under his loan agreement, First American foreclosed on the mortgage in August 1984. Pursuant to Ala.Code 1975, § 6-5-230, ¹ Pickard had until August 1985 to redeem the land. With his father's help, Pickard continued efforts to sell the land.

As the date for the expiration of his right of redemption approached, Pickard filed an action against First American to have the mortgage set aside. In June 1985, Pickard and First American settled the action, and the court entered judgment on the settlement. Under the terms of the settlement Pickard received an exclusive option to sell the land. This option was to exist until October 15, 1985. Pickard contends that First American attempted to avoid its settlement obligations and that, during negotiations in September 1985 over those obligations, his lawyer accepted an option that was worth less to him than the settlement's exclusive option to sell. Because Pickard's lawyer allegedly compromised Pickard's position without consulting him, he sought another lawyer for the purpose of filing a legal malpractice action. Pickard also wanted to have his exclusive option to sell the land extended. In late September 1985 or early October 1985, Pickard contacted Wayne Turner and discussed the possibility of filing a legal malpractice action and the possibility of having the exclusive option to sell extended.

During this time, Brooks Emory, a realtor, was looking for a 400-acre tract of land in Jefferson County. According to his deposition, he was looking for land for Waste Services of Birmingham, Inc. ("Waste Services"). Emory contacted William Murray. Murray, another real estate agent, was familiar with land in the area. Emory gave Murray the description of the kind of land that Waste Services wanted. According to Murray's deposition, he remembered having looked at Pickard's land several months earlier and thought that it might fit the description. Murray told Emory that he might be able to procure an option to purchase, if the land was still available. Murray and Emory agreed to work together and to split any difference between their purchase price and the price that Waste Services was willing to pay. Their arrangement was disclosed to Waste Services. Murray began to try to locate the land's owner.

In his search for the land's owner, Murray contacted another real estate agent, Jim Davis. Davis was also familiar with land in the Jefferson County area and had inspected Pickard's land with Murray earlier. Davis remembered the land and agreed to help Murray obtain an option to purchase. To compensate Davis for his help in obtaining the option, Murray agreed to split his share of the profits from the sale of the land to Waste Services.

On September 19, 1985, as a result of Davis and Murray's efforts, Pickard signed an option contract agreeing to sell the land for $630,000. When the document evidencing the option to purchase was prepared, "Murray M. Burns" was inserted as the name of the purchaser. According to both parties, this was a clerical error. At some time, Pickard corrected the clerical error by crossing out "Murray M. Burns," inserting "William Murray," and initialling these changes. All of this was done in Pickard's handwriting. Under the terms of the option, Pickard was initially paid $1,000. For the option to remain effective until October 14, 1985, an additional $9,000 had to be paid on or before September 30, 1985. This was not done, and the option lapsed.

In early October, Murray contacted Pickard's father and inquired as to whether the land could still be purchased for $630,000. On October 8, 1985, Pickard, Pickard's father Murray, Davis, and Turner met to discuss the sale of the land. At the meeting, Pickard agreed to sell the land to Murray for $630,000. In his deposition, Pickard's father states that Murray's representation of a third party was mentioned at the meeting. At the meeting, Murray told Turner that someone would soon inform him of the name of the party that would be taking title to the land. Because a real estate closing would have to be accomplished within one week, Turner enlisted the aid of Terry Wilson. Wilson was one of Turner's law partners and was more experienced than Turner with real estate closings.

Shortly after the meeting, Pickard delivered the corrected option agreement and a handwritten note to Turner's office. The note read:

"10/08/85

"Mr. Turner--

"We delivered the letter to [my first lawyer]. He was in his conference room with clients, so we taped the letter to the office door. We will send him a copy certified mail also.

"Also, I corrected Mr. Murray's name and am sending you my original of my option contract with Mr. Murray. My R.E. Agent, Pam Ausley--CKM Realty (870-8448) may call you tomorrow morning (Wed.) to confirm that I have initialed the changed name, if Mr. Murray requests her to.

"Will check with you late tomorrow morning, or you can call me c/o my father--265-0511. Thanks for everything.

"/s/ Marshall"

Pickard left another handwritten note at Turner's office that read as follows:

"PERSONAL AND CONFIDENTIAL

"Mr. Turner--

"These are actual copies with copies of the certified receipts, of dad's letter of notice to First American--and the ORIGINAL LETTER sent to us today by Jim Williams [First American's lawyer] acknowledging BOTH ACCEPTABILITY of the notice, as well as their willingness to close BEFORE the 15th. We want a full blown all out no holds barred hearing to ABATE the interest, if the Judge will hear us. Jim was much to [sic] nice in his letter. He thinks, we believe, we are bluffing, and may have something else surupticious [sic] up his sleeve. I expect that he will be very disappointed when you call him to inform him that we actually DO have a buyer and CAN close Monday.

"Please call us, or we'll call you prior to calling Mr. Williams.

"Thanks,

"/s/ Marshall"

On Friday, October 11, 1985, Waste Services' lawyer contacted Wilson and informed Wilson that Waste Services was to be the grantee. Wilson met with Waste Services' lawyer, and at this meeting Wilson learned that, immediately after purchasing the land from Pickard for $630,000, Murray planned to sell the land to Waste Services for $1,134,000. ² According to the evidence in the record, this meeting on Friday afternoon was the earliest time that Turner or Wilson could have learned of the higher sales price to Waste Services.

In order to accomplish the conveyance of the land to Waste Services and avoid the expenses of a second title insurance policy and additional recording fees, Wilson and Waste Services' lawyer agreed that the closings should be consolidated, with Pickard executing a quitclaim deed to Waste Services and First American executing a statutory warranty deed to Waste Services. Waste Services would pay Pickard's obligation of $595,915.82 under the First American mortgage. Waste Services would also pay $296,084.18, from which the various closing costs, the different real estate agents' fees, and Pickard's profit would be paid. The consolidated closing also involved Murray's wholly-owned corporation MYCA, Inc. MYCA served as the conduit through which Murray's transfers from Pickard and to Waste Services would pass. Under this arrangement, Pickard was receiving $630,000 for the land. After paying his obligation to First American and paying his share of the closing costs, Pickard received $12,704.22. On MYCA's sale of the land to Waste Services, Emory Realty, Inc., received $42,000. After paying for the land and paying its share of closing costs, MYCA received $220,293.00. ³

On Saturday, October 12, 1985, during a brief meeting with Turner, Pickard became aware that Waste Services was to be the purchaser of the land. However, he still did not know the sales price. On Monday, October 14, 1985, Pickard went to the offices of a law firm in Birmingham and signed a quitclaim deed conveying his interest in the land to Waste Services. On Tuesday, October 15, 1985, Pickard's father went to Turner's office and signed the necessary closing documents as Pickard's agent. The real estate transaction was...