Swain v. Terry
| Decision Date | 13 July 1984 |
| Citation | 454 So.2d 948 |
| Parties | Willie J. SWAIN, et al. v. Cuviere TERRY. 82-679. |
| Court | Alabama Supreme Court |
Martha A. Campbell, Birmingham, for appellants.
Houston L. Brown and Robin L. Burrell, Birmingham, for appellee.
This is an appeal from a judgment entered on a jury verdict which determined that a parol contract for the sale of certain realty situated in Talladega County, Alabama, complied with the Code 1975, § 8-9-2(5), exception to the Statute of Frauds.
On May 11, 1979, Cuviere Terry filed suit in circuit court against Willie J. Swain, Thomas Beavers, and certain fictitious parties. The complaint alleged that as of 1979, Swain was of sound mind, but that Swain had previously been an incompetent under the guardianship of attorney Ralph D. Gaines, Jr. 1 Terry alleged that in 1978 Swain was the owner of certain property adjacent to Terry's business and home in Talladega County, Alabama, which Terry wanted to purchase for the construction of a new home. According to Terry, he contacted Swain's guardian concerning this purchase, and Gaines told Terry that he would execute a quit claim deed to Terry for $2,000.00 with the circuit court's approval. Based upon this alleged representation, Terry began construction of a house on this property in August 1978. Terry alleged that Swain ratified this agreement on numerous occasions both before and after the construction began and both before and after Swain's disabilities were removed.
According to Terry, in January 1979, Swain and Beavers, his son-in-law, erected a fence around this property and committed acts of waste on the property, thereby preventing completion of Terry's improvements. Terry sought the following relief: 1) an order ejecting Swain and Beavers from the property and restraining them from committing acts of waste or interference with completion of his improvements on the property; 2) an order determining the legal owner and fair market value of the property; and 3) an order requiring Swain, if found to be the legal owner, to perform the contract entered into by his guardian during his incompetency or, alternatively, an order declaring that the legal owner of the property was unjustly enriched in a sum exceeding $75,000.00, the current value of Terry's improvements.
In addition to this complaint, Terry filed a lis pendens notice wherein he asserted title to this property. The circuit court granted Terry temporary relief and enjoined the defendants from interfering with completion of Terry's improvements on the property.
Swain filed an answer and counterclaim wherein he denied the existence or ratification of any such agreement to purchase this property and pleaded the Statute of Frauds as an affirmative defense to the enforcement of such an oral contract. Swain then counterclaimed for $250,000.00 in damages, stating that he was the owner in fee of such property and that Terry had been continuously trespassing thereon.
Terry amended his complaint by adding three additional counts. In Count Two, Terry alleged that on or about July 22, 1978, he and Swain entered into an oral agreement whereby Terry would take possession of this realty, deliver to Swain earnest money in the amount of $200.00, and pay the remainder of the purchase price upon delivery of a deed. Terry alleged that in reliance upon this agreement he paid the earnest money, took possession of the property, and spent $70,000.00 in making improvements thereon. Terry alleged that in September 1978, Swain breached this parol contract by refusing to execute a deed to Terry, despite Terry's repeated attempts to tender the outstanding purchase price. Terry sought an injunction compelling Swain to convey the property to him.
The third count of Terry's amended complaint alleged that Swain willfully, recklessly, or innocently misrepresented to Terry that either he or his guardian would convey the property to Terry in exchange for $2,200.00 if Terry made a $200.00 down payment. In reliance upon these misrepresentations, Terry alleged, he was damaged in excess of $70,200.00.
In the final count of Terry's amended complaint, he alleged that although the parol contract between himself and Swain might be unenforceable, Swain was unjustly enriched by the improvements which Terry made on the property. Terry sought injunctive relief against further acts of waste on the property, specific performance of the parol agreement, and $90,000.00 compensatory and $100,000.00 punitive damages.
Swain answered the amended complaint and demanded a jury trial. Terry then amended his complaint again, adding Gloria Jean Swain and the Estate of Willie J. Swain as defendants, and including a fifth cause of action. In this count, Terry averred that Gloria Swain was the daughter of Willie J. Swain and that the Estate of Willie J. Swain was a guardianship pending in Talladega Circuit Court in which there was no final settlement as to the realty which Swain acquired during his guardianship and which Terry claimed under the parol contract. According to Terry, Swain and his guardian, Gaines, misrepresented to Terry that they would convey this property to Terry in accordance with the July 22, 1978, parol agreement. Moreover, Swain allegedly conveyed an undivided one-half interest in the property to Gloria on August 28, 1978. Terry sought an equitable estoppel against the defendants to preclude their benefiting from his improvements, and an equitable lien upon the property for the value of his improvements.
At a hearing, both sides agreed to an injunction prohibiting them from going on the property pending a final hearing. On May 30, 1980, the circuit court granted Terry's motion for temporary restraining order and preliminary injunction to allow him to remain in possession of the property and to complete construction of the residence on this property.
On March 13, 1981, Terry filed an answer to Swain's counterclaim and obtained default judgments against the Estate of Willie J. Swain and Gloria Jean Swain. Various appeals were taken, and both sides' motions for summary judgment were denied.
In the jury trial which followed, Ray Robbins, the attorney in Gaines's law firm who initiated the circuit court proceeding to convey the subject property, testified that Swain visited the law firm on several occasions to discuss this conveyance. In particular, Robbins testified that Swain and Terry had entered into an agreement to sell the realty, that Terry had paid Swain $200.00 as earnest money, and that Swain became angry when he realized that he could not obtain the remaining purchase price without court action. This testimony was allowed over the strenuous objections of Swain, who asserted the attorney-client privilege.
At the close of all the evidence, Swain unsuccessfully moved for a directed verdict. Upon deliberation, the jury found that Swain was, during the month of July 1978, mentally competent to contract for the sale of his property; that Swain received $200.00 from Terry as a down payment on the property; and that Swain put Terry in possession of the property.
The circuit court then entered judgment in favor of Terry, vesting complete title to the property in him, based upon the existence of an agreement between Terry and Swain to purchase this property, Terry's payment of a portion of the purchase price, Swain's act of placing Terry in possession of the property, and Terry's payment of the remaining purchase price into court. In accordance with this judgment, the court register was ordered to pay Swain the $2,000.00, less costs, which Terry deposited with him in satisfaction of the outstanding purchase price.
The issues presented for review are 1) whether Swain's post-judgment motion properly preserved alleged errors for appellate review; and, if so, 2) whether the circuit court erred in denying Swain's motion for directed verdict which challenged the sufficiency of Terry's evidence as to whether the alleged agreement between the parties complied with the Code 1975, § 8-9-2(5), exception to the Statute of Frauds; 3) whether the circuit court erred in denying Swain's motion for directed verdict which challenged the sufficiency of the...
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