Sidwell v. Wooten, 83-1318
| Decision Date | 21 June 1985 |
| Docket Number | No. 83-1318,83-1318 |
| Citation | 473 So.2d 1036 |
| Parties | Al C. SIDWELL a/k/a A.C. Sidwell v. Avolee Dunn WOOTEN, Lowder Realty Co., and Canterbury Realty Co. |
| Court | Alabama Supreme Court |
George Young, Birmingham, for appellant.
Thomas E. Baddley, Birmingham, for appellees.
This is an appeal from the judgment of the Circuit Court of Jefferson County in a case alleging breach of contract in the sale of commercial real estate.
Al Sidwell, defendant/appellant, is the owner of real property located at 2204 First Avenue, South, Birmingham. This property was leased for five years and the tenant was granted an option to purchase the property or to renew the lease for an additional five-year term.
The owner, Sidwell, and the tenant, Avolee Dunn Wooten, negotiated from November of 1981, through June of 1982, concerning the purchase of the property. Sidwell represented that he was willing and able to perfect the sale of the building. He indicated that there was a purchase option and an outstanding mortgage on the building, but that the purchase option could be negotiated and the mortgage could be assumed. Sidwell and Wooten entered into a sales contract on June 17, 1982. In compliance with the agreement, Wooten tendered the purchase price to Sidwell and requested that he convey the land. Sidwell, however, refused to accept the tender and refused to make the conveyance.
Wooten brought suit against Sidwell for specific performance and breach of contract. At the hearing, Wooten dismissed her prayer for specific performance and included a prayer for compensatory and punitive damages on her breach of contract claim. Lowder Realty and Canterbury Realty, not originally parties, filed what they styled a "third-party complaint" against Sidwell seeking a real estate commission which they claim they are entitled to for bringing the buyer and seller together.
The circuit court found in favor of Wooten and awarded her $39,760 as compensatory damages. In addition, the court found in favor of the realty companies, and awarded them $18,250, as their 7% real estate commission. Sidwell appeals here, raising three issues.
Before addressing these issues, however, we will first address a question we raised on our own: Whether the $18,250 judgment in favor of Lowder Realty and Canterbury Realty Co. should be reversed because they were never properly made parties plaintiff in the circuit court having filed a "third-party complaint" instead of a motion to intervene, Rules 14 and 24, Ala.R.Civ.P., or, alternatively, whether we should interpret the "third-party complaint" as a motion to intervene which the court granted.
We find that in order to do "substantial justice" in compliance with Rule 8(f), Ala.R.Civ.P., the "third-party complaint" should be interpreted as a motion to intervene granted by the circuit court. We believe this is the just result, especially in view of the fact that Sidwell did not object to the filing of the "third-party complaint" and did not otherwise raise the issue in the trial court or on appeal.
The real estate contract involved clearly indicated that the realty companies were entitled to a commission once the contract was consummated. In addition, if the realty companies are excluded from this suit, they would be obliged to file a separate suit and prove once again what they have already proven.
We believe the interests of justice will best be served by treating the realty companies' "third-party complaint" as one of intervention, because of several reasons. Sidwell had notice of the claims and was afforded due process in the current litigation. Neither Sidwell nor the circuit court, on its own motion, raised any issue or argument regarding whether the realty companies were proper parties. The realty companies had a definite interest in the lawsuit both legally and factually. To void the judgment would not comply with the spirit of our procedural rules, which must be construed "to secure the just, speedy and inexpensive determination of every action" on its merits. Rule 1(c), Ala.R.Civ.P. It appearing that the "third-party complaint" was treated by the trial court as a motion to intervene, which was granted, we hold that the procedural requirements were met.
As to the issues raised on appeal, Sidwell first contends that the circuit court erred in allowing a certified public accountant to testify regarding the content of the leases, because the witness later testified that he had not examined the leases but was testifying based on what he had been told they contained.
The testimony regarding the leases was as follows:
And further, on cross-examination:
The testimony allowed into evidence at trial regarding the lease was as follows:
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