Reeves v. Porter

• Decision Date: 19 February 1988
• Parties: Johnathan REEVES and Norma Reeves v. Ben PORTER, et al. 86-1350.
• Court: Alabama Supreme Court

Page 963

521 So.2d 963

Johnathan REEVES and Norma Reeves v. Ben PORTER, et al.

86-1350.

Supreme Court of Alabama.

Feb. 19, 1988.

Jay E. Emerson, Jr., of Higgs & Conchin, Huntsville, for appellants.

David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellees.

HOUSTON, Justice.

Johnathan and Norma Reeves appeal from a summary judgment for defendants Jency Eldridge, Ben Porter, and Ben Porter Real Estate of Huntsville, Inc., in the Reeveses' action based upon fraud and suppression of material facts in the resale of a used dwelling. ¹

We affirm.

The Reeveses' first issue is:

"Did the trial court commit reversible error in granting summary judgment to defendants Jency Eldridge, Ben Porter and Ben Porter Real Estate before said defendants complied with pending interrogatory and production of documents requests?"

Neither the request for production of documents nor the interrogatories to defendants Jency Eldridge, Ben Porter, and Ben Porter Real Estate of Huntsville, Inc., are in the record. There is nothing in the record to show that the matter sought to be discovered was crucial or even pertinent to the motion for summary judgment.

The Reeveses responded as follows to these defendants' motion for summary judgment:

"Plaintiffs submit the affidavit of Jonathan [sic] Reeves in response to the affidavit of Jency Eldridge and further submit to the Court that there are issues of material fact in dispute and that therefore, Defendant Jency Eldridge's motion for summary judgment is due to be denied."

We find nothing in the record to indicate that the Reeveses sought to compel production of the documents or answers to the interrogatories. They made no request for a continuance of the hearing on the motion for summary judgment to allow such production or answers. Neither the Reeveses' motion for reconsideration nor their very thorough "Memorandum of Law in Support of Plaintiffs' Motion for Reconsideration," filed several days after the summary judgment was granted, mentioned that items had not been produced or answers to interrogatories filed which would in any way affect the motion for summary judgment.

The mere pendency of discovery does not bar summary judgment. If the trial court from the evidence before it, or the appellate court from the record, can ascertain that the matter subject to production was crucial to the non-moving party's case ( Parrish v. Board of Commissioners of Alabama State Bar, 533 F.2d 942 (5th Cir.1976)) or that the answers to the interrogatories were crucial to the non-moving party's case ( Noble v. McManus, 504 So.2d 248 (Ala.1987)), then it is error for the trial court to grant summary judgment before the items have been produced or the answers given. However, the burden of showing that these items are crucial is upon the non-moving party. He can do so by complying with Rule 56(f), Ala.R.Civ.P., Water View Developments, Inc. v. Eureka, Inc., 512 So.2d 916 (Ala.1987). Rule 56(f) provides: "Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." A pending motion to compel production ( Parrish, supra) and a motion to compel answers to interrogatories, which has been granted ( Noble, supra) when the evidence before the court clearly shows that the evidence sought is crucial to the non-moving party's case, have been held sufficient compliance with Rule 56(f). However, when no such crucial evidence would be supplied by the production or by the answers to the interrogatories, it is not error for the trial court to grant summary judgment with discovery pending. Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir.1983); Noble v. McManus, supra. In Wallace, Judge Kravitch noted: "Most, if not all, cases involving a Rule 56(f) issue will be factually dissimilar. For this very reason, a blanket rule would be inappropriate." 703 So.2d at 528. The burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party's case. The Reeveses have not done this, and there is no merit in this issue.

The Reeveses' second issue is:

"Did the trial court commit reversible error when it granted summary judgment in favor of defendants Jency Eldridge, Ben Porter and Ben Porter Real Estate?"

There was no confidential relationship between the defendants and the Reeveses. The gravamen of the fraud charge in Count I is that defendant Eldridge, for whose acts defendant Porter as qualifying broker of Ben Porter Real Estate of Huntsville, Inc., and defendant Ben Porter Real Estate of Huntsville, Inc., as listing broker, are responsible, falsely stated, either willfully, recklessly, or mistakenly, that problems concerning water damage to the used dwelling that was being resold, which problems were listed in a termite report, had been "taken care of" when in fact they had not; and that $300 which was placed in escrow "would be more than enough to cover the damage" when in fact it was not.

On March 13, 1985, a real estate purchase contract was executed by Ms. Grubis, as seller, and the Reeveses as purchasers. The contract was conditioned on the Reeveses' obtaining a 30-year loan for all of the sales price except the $3,500 down payment. Ms. Grubis was to warrant title to be free from all encumbrances, with some non-pertinent exceptions. The contract provided that "the plumbing, wiring and mechanical equipment shall be in good working order when possession is given or title is passed." It was the Reeveses' responsibility to inspect the plumbing, wiring, and mechanical equipment prior to occupancy or closing. Ms. Grubis was to "furnish a letter from a licensed exterminating company certifying that the improvements are free of termites or damage caused by termites or other wood destroying insect infestation," and the contract provided, "The listing or selling agents do not warrant or guarantee the condition of this property...."

The contract provided that in the event the Reeveses failed to carry out the contract, Ms. Grubis had the option of suing for breach of contract, reaffirming the contract and seeking specific performance, or accepting the earnest money as liquidated damages. If Ms. Grubis failed to carry out the contract, the Reeveses had the option of seeking specific performance or obtaining a refund of the earnest money plus reimbursement for certain expenses incurred by them. The contract contained the following clauses:

"This contract states the entire agreement between the parties and merges in this agreement all statements, representations, and conditions heretofore made, and any other agreements not incorporated herein are void and of no force and effect.

"...

"The Purchaser [the Reeveses], herein, understands and agrees that he, or she, has entered into this contract without relying upon the accuracy of any representations regarding ... the condition of the dwelling made the subject of this agreement and agrees that neither the Seller nor any real estate agents involved in this transaction have made any representations to him, or her, upon which he, or she, has relied. The Purchaser [the Reeveses] agrees that he, or she, had ample opportunity to ... inspect said dwelling and has either done so or has elected not to do so."

The Reeveses initialed this last paragraph.

Ms. Grubis made no express warranty of habitability other than that the plumbing, wiring, and mechanical equipment would be in good working order when possession was given or when title passed, whichever occurred first.

After the contract was signed, the defendants arranged for an exterminating company to inspect the dwelling for termites or damage caused by termites or wood-destroying insect infestation. The termite report showed:

"Visible damage due to water under both bathroom areas and to bottom of framing to both garage doors.

"Will not be corrected by this company. Recommended that damage be evaluated by a qualified expert and that the needed repairs be made."

After receipt of this report, defendants called the Reeveses' sales broker, who suggested that the damage be checked by a particular contractor. That contractor repaired a minor leak (for $11.00), and stated that he did not see any serious problems. On May 2, 1985, at the closing, the termite report and the receipt for repairing the leak were shown to the Reeveses. Defendant Eldridge, the Reeveses, and the Reeveses' sales agent (Mrs. Brooks), attended the sales closing. This is when the alleged representations were made.

Defendant Eldridge stated in her affidavit that she did not know of any defects in the dwelling other than those shown in the termite report and noted by the contractor after that report was made. She divulged this to the Reeveses' agent before the closing and to the Reeveses at the time of the closing.

It is clear that Ms. Eldridge had no personal knowledge of the water damage under the bathroom areas. The only information she had on this came from the termite report. When she received this report, she contacted the Reeveses' sales broker and did what the Reeveses' broker told her to do--contact a particular contractor. That contractor found a leak, repaired it, and informed Ms. Eldridge that he saw no serious problems. Everything that was known by Ms. Eldridge was known by the Reeveses prior to closing the sale.

Fraud is defined in Code 1975, § 6-5-101:

"Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud."

This Court has said:

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