Purcell Co., Inc. v. Spriggs Enterprises, Inc., s. 80-600

• Decision Date: 08 April 1983
• Docket Number: Nos. 80-600,80-670,s. 80-600
• Citation: 431 So.2d 515
• Parties: PURCELL COMPANY, INC., a Corporation, and Lake Forest, Inc., a Corporation, v. SPRIGGS ENTERPRISES, INC., an Alabama Corporation, and Delta Oil Company, a Corporation. GULF OIL CORPORATION, a Corporation, v. SPRIGGS ENTERPRISES, INC., a Corporation, et al.
• Court: Alabama Supreme Court

Page 515

431 So.2d 515

PURCELL COMPANY, INC., a Corporation, and Lake Forest, Inc., a Corporation, v. SPRIGGS ENTERPRISES, INC., an Alabama Corporation, and Delta Oil Company, a Corporation.

GULF OIL CORPORATION, a Corporation, v. SPRIGGS ENTERPRISES, INC., a Corporation, et al.

Nos. 80-600, 80-670.

Supreme Court of Alabama.

April 8, 1983.

Broox G. Holmes, Christopher I. Gruenewald, and Roy W. Scholl, III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellants Lake Forest, Inc. & Purcell Co., Inc.

Wesley Pipes of Lyons, Pipe & Cook, Mobile, and Douglas Arant and Samuel H. Franklin of Bradley, Arant, Rose & White, Birmingham, and Taylor D. Wilkins of Wilkins, Bankester & Biles, Bay Minette, for appellant Gulf Oil Corp.

E.E. Ball, of Owen & Ball, Bay Minette, for appellee.

PER CURIAM.

The opinion originally released in this cause on December 30, 1982, is withdrawn and the following is substituted therefor:

This action, brought on theories of fraud, civil conspiracy, interference with business or contractual relations, and breach of contract claims, is before this Court for the second time. On the first appeal, a new trial was ordered by this Court because plaintiff, Spriggs Enterprises, Inc., was both granted specific performance and awarded damages under inconsistent theories of relief. These appeals are from a judgment for Spriggs after a second trial predicated on damages theories only.

The underlying transactional facts, as stated in the opinion on the first appeal, Gulf Oil Corporation v. Spriggs Enterprises, Inc., 388 So.2d 518 (Ala.1980), are as follows:

"On June 21, 1972, Lake Forest, Inc., a real estate developer which is a wholly-owned subsidiary of Diamondhead Corporation, sold some real property along U.S. 98 just off I-10 to Dixon Shell Service Station, Inc. (That corporation later became Spriggs Enterprises, Inc.) During the negotiations prior to the sale Spriggs and Dixon, the initial partners in this enterprise, obtained a commitment in a personal letter ¹ from Ralph Prince, who was at that time national sales manager for Diamondhead, that Diamondhead would not sell any of its property north of or between the Spriggs property and I-10 for the purpose of an 'automotive service station,' making the Spriggs station the first station off of I-10. Spriggs recorded this letter in the office of the Judge of Probate in Baldwin County. In November, 1972, Spriggs opened its service station supplied with Shell products by Mothershed Oil Co., Inc.

"In November, 1976, Diamondhead began negotiations to sell the property between Spriggs' Shell station and I-10 to Gulf Oil. Even though Diamondhead and Lake Forest felt that the Prince letter had no binding effect, the deed executed by Lake Forest to Gulf in December, 1976, specifically stated that the purchaser agreed and it became a covenant running with the property that the land sold would be used solely for the construction of 'one convenience store with no more than two islands for self-service gasoline pumps.' This deed was also recorded. The property was cleared but the Gulf station has never been built."

Diamondhead is now Purcell Company, Inc.

Before the second trial, after remand, Spriggs amended its complaint by striking all claims for declaratory and injunctive relief, choosing to proceed on the claims for monetary damages. Delta Oil Company, Inc., was added as a real party in interest after the defendants discovered that an agreement existed between Spriggs and Delta whereby the proceeds of any successful prosecution of this action would be shared equally. ²

The case was tried to a jury for a second time on February 3, 1981. It returned three separate jury verdicts in favor of the "plaintiff"; against Gulf for the sum of $1,000,000, against Purcell Company, Inc., for the sum of $662,500, and against Lake Forest, Inc., for the sum of $662,500. These defendants each timely filed motions for a directed verdict, raising specific objections to each theory upon which Spriggs sought damages, at the close of Spriggs's case and at the conclusion of all the evidence. All motions were denied. On March 5, 1981, the defendants filed post-trial motions for J.N.O.V., or alternatively, for a new trial. The motions were denied.

The thrust of defendants' arguments is, among other things, that plaintiffs failed to produce a scintilla of evidence that they had suffered any actual damage, loss, or injury or that they were entitled to an award of punitive damages. It is also argued that plaintiffs proved no right to recover under any cognizable theory of law.

Because the dispositive issue in this case revolves around the sufficiency of the evidence, we first address our standard of review in analyzing that question. A trial court will not be reversed for refusing to direct a verdict in favor of a movant if a scintilla of evidence exists in favor of the party opposing the motion. Examining the evidence most favorably to the plaintiffs in this case, we cannot find a scintilla of evidence justifying submission of this case to the jury.

We examine each claim separately to determine whether the trial court erred in submitting it to the jury, tested by the scintilla rule:

The Fraud Count

Defendants Lake Forest and Purcell contend the trial court erred in denying their motion for directed verdict and motion for judgment notwithstanding the verdict as to the fraud claim.

The only basis upon which one may recover for fraud, where the alleged fraud is predicated on a promise to perform or abstain from some act in the future (here, that no other "automotive service station" would be built between Spriggs's gas station and I-10), is when the evidence shows that, at the time of the promises of future action or abstention were made, the promisor had no intention of carrying out the promises, but rather had a present intent to deceive. Robinson v. Allstate Insurance Co., 399 So.2d 288 (Ala.1981). If such intent is not substantiated by the evidence, the fraud claim should not be submitted to the jury. The failure to perform, alone, is not evidence of intent not to perform at the time the promise was made. If it were, a mere breach of contract would be tantamount to fraud. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976). On this point, under the peculiar, and particular, facts of this case, our careful and thorough review of the record discloses no evidence which supports the jury's conclusion that, at the time of the conveyance to Spriggs in 1972, Lake Forest and Purcell did not intend to perform the promise alleged to bind them. There were no pending negotiations for sale of the property in question for an automotive service station on or prior to June 21, 1972; there had been no attempt to procure a purchaser for same; and there had been no statements or actions evidencing an intent not to perform at that time. It is apparent from the evidence that Lake Forest and Purcell did not have a present intent to defraud Spriggs in 1972, since the former were not even aware, until 1976, that Gulf was considering purchasing the property to the north of the Spriggs Shell station. To the contrary, as it appears from the evidence, each party thought the Prince letter was a confirmation of their oral agreement; it was not disputed in 1972, and Lake Forest and Purcell abided by that agreement according to their interpretation of its meaning. The evidence is crystal clear regarding defendants' good faith attempt to preserve any rights Spriggs may have acquired under the Prince letter. That letter was posted on the Lake Forest sales lodge bulletin board from 1972 to 1976 in an effort to ensure that the property would not be sold for use as an automotive service station; Lake Forest incorporated into the warranty deed to Gulf the "convenience store" restriction; and in January, 1981, Lake Forest and Gulf executed a corrective instrument ³ which encumbered the property so that it could not be used for an "automotive service station, a convenience store with self-service gasoline pumps, or any use inconsistent with [the Prince letter]."

Ordinarily, intent is a matter peculiarly within the province of the trier of facts. Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972). However, the jury has no untrammeled discretion to speculate upon the existence of fraudulent intent. Any finding on the issue must be based on reasonable inferences from the evidence, and intent to defraud must be clearly proved by a preponderance of the evidence. Universal Brokers, Inc. v. Higdon, 56 Ala.App. 184, 320 So.2d 690 (1975); Boulevard Chrysler-Plymouth v. Richardson, 374 So.2d 857 (Ala.1979) (Torbert, C.J., dissenting). There is nothing in the record of this particular case from which fraudulent intent on the part of Lake Forest or Purcell could be inferred.

A second element required to be proved in a fraud claim is actual damage resulting from the alleged fraudulent act. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979).

"Injury is not merely a consequence following the fraud alleged, but is an essential element of wrong. There can be no recovery of even nominal damages where the Plaintiffs fail to show injury sufficient to sustain an action of fraud. The elements of fraud and damage must concur to give rise to an action for damages."

Mobile Building & Loan Ass'n v. Odom, 232 Ala. 19, 21, 166 So. 698, 700 (1936). An examination of testimony in the record taken at trial reveals absolutely no evidence from which the jury could infer that Spriggs or Delta Oil sustained any actual injury, loss, or damage, either in a decline in value of the Spriggs property or in lost profits by virtue of the 1976 deed from Lake Forest to Gulf.

Our examination of the testimony taken at both trials points to the correctness of our findings that plaintiffs here suffered no damages. Lamar Mothershed, now retired, president of Mothershed Oil, the...