Quimby v. Memorial Parks, Inc.

• Decision Date: 09 June 1995
• Citation: 667 So.2d 1353
• Parties: Robert E. QUIMBY v. MEMORIAL PARKS, INC. 1921315.
• Court: Alabama Supreme Court

Page 1353

667 So.2d 1353

Robert E. QUIMBY v. MEMORIAL PARKS, INC.

1921315.

Supreme Court of Alabama.

June 9, 1995.

Appeal from Escambia Circuit Court, No. CV-89-341; Bradley E. Byrne, Judge.

Bert W. Rice, Atmore, Charles E. Johns, Jr., Brewton, for Appellant.

J. David Jordan of Otts, Moore & Jordan, Brewton, for Appellee.

COOK, Justice.

Robert Quimby appeals from a summary judgment entered in favor of Memorial Parks, Inc., in an action by a third party seeking compensation for breach of contract. We reverse and remand.

In reviewing a summary judgment, a court is to construe the evidence in the manner most favorable to the appellant and to resolve all doubts against the appellee. Motes v. Matthews, 497 So.2d 1121, 1123 (Ala.1986). The evidence, construed in that manner, suggests the following facts:

In 1975, Quimby purchased two cemeteries from Memorial Cemetery Service, Inc., owned by Claude Bryant. The transaction provided in part that Quimby would be responsible for providing and placing memorials that had been purchased from Memorial Cemetery Service pursuant to pre-need contracts. On February 20, 1979, Quimby sold the cemeteries to Memorial Parks, Inc., a corporation formed by David Smart, a former employee of Bryant; Smart had sold pre-need memorials and was knowledgeable in the operation of cemeteries. All Memorial Parks stock, at that time, was held by Smart and his family. The Quimby/Memorial Parks contract did not mention the pre-need contracts, but Quimby ceased providing memorials under the pre-need contracts after the sale, and Memorial Parks serviced the pre-need contracts until this action was filed. In 1986, Smart sold 48% of the Memorial Parks stock to Charles Jackson, an investment broker, and his father. In 1989 the Jacksons acquired the remaining stock and assumed control of the corporation. At that time, on advice of counsel, the Jacksons ran a newspaper notice stating that they would not be responsible for any debts incurred by the previous owner. Numerous individuals began demanding the placement of memorials that had been bought pursuant to the pre-need contracts. A liability analysis was performed and no documents were found that imposed an obligation on Memorial Parks for providing and placing memorials purchased under the pre-need contracts before February 20, 1979. Quimby contended that he had agreed with Smart that Smart would fulfill the pre-need contracts. He said he thought that documents had been drawn to that effect, but they were never found. He contends that there was at least an oral agreement. The trial court entered a summary judgment on the grounds that even if there had been an oral contract between Quimby and Smart, it would be invalid because it would violate the Statute of Frauds.

Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So.2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" ( § 12-21-12, Ala.Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence rule, once the movant makes a prima facie showing that there is no genuine issue of material fact, the nonmovant must rebut that showing by presenting "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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).

The trial court found that there was no written agreement transferring the duty to fulfill the pre-need contracts from Quimby to Memorial Parks. Quimby contended that he had an oral agreement to that effect with Smart, and that that agreement was evidenced by Smart's fulfillment of the pre-need contracts up until the Jacksons assumed control of Memorial Parks, Inc., in 1989. The trial court held that this was irrelevant, saying that even if there was such an agreement, it would be void as violating the Statute of Frauds.

Under the Statute of Frauds, "[e]very agreement which, by its terms, is not to be performed within one year from the making thereof" 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." Ala.Code 1975, § 8-9-2(1); see W.P. Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851 (1939). The trial court held that under this Court's holding in Rattray the agreement fell within the Statute of Frauds if the improbability of fulfillment within one year was so great as to show unmistakably that the parties intended that the agreement last more than one year.

In Rattray, the plaintiff and the defendant entered into an oral contract whereby the plaintiff agreed to cut a large quantity of timber and saw it into lumber. The plaintiff was to be paid a certain amount per 1000 feet of lumber. The plaintiff entered upon the performance of the contract; after the plaintiff had cut approximately 700,000 feet of lumber, a dispute developed and the defendant refused to continue with the contract, claiming, among other things, that the contract was within the Statute of Frauds and therefore was unenforceable. This Court,...