Thompson v. Wilson
| Decision Date | 28 June 1985 |
| Parties | C. Lenoir THOMPSON v. Milton C. WILSON. 84-343. |
| Court | Alabama Supreme Court |
Mayer W. Perloff of Reid, Perloff & Doyle, Mobile, for appellant.
Oliver J. Latour, Jr. of Owens, Latour & Simpson, Bay Minette, for appellee.
This appeal arises from the circuit court's grant of summary judgment for the defendant on all of the counts set forth in the plaintiff's complaint. We affirm.
On June 20, 1984, plaintiff, C. Lenoir Thompson, filed a complaint against the defendant, Milton C. Wilson, claiming in Count One that on January 27, 1978, the defendant entered into a lease agreement with plaintiff's son which provided for the lease of certain real property for a period of five years and which provided that the plaintiff's son would have the right to renew the lease in its entirety for three additional five-year terms. It was further stated in the complaint that at the time the lease was negotiated, the defendant knew that the lessee was intending to operate a barbecue business on the property and that in furtherance of this objective the plaintiff's son had erected a building on the property at his expense. In September 1981, the lease was assigned by plaintiff's son to plaintiff.
According to the complaint, about the time it became necessary to give notice to exercise the option to renew, plaintiff and defendant entered into negotiations which led plaintiff to believe that defendant intended to purchase the improvements on the property for the sum of $10,000.00. However, plaintiff says defendant dragged out the negotiations to the extent that plaintiff failed to exercise his option to renew the lease, and plaintiff claims that such conduct on the part of the defendant was taken with the intent to defraud plaintiff out of the improvements on the property.
Plaintiff made other claims in Count Two and amended Count Two-A. He does not challenge the adverse rulings on those counts.
Defendant, in his answer to plaintiff's complaint denied that he had entered into any negotiations concerning purchasing improvements placed on the leasehold property by the plaintiff's son, or any agreement concerning these improvements. In addition thereto, and we believe this to be dispositive of plaintiff's case, defendant specifically raised two affirmative defenses by way of special pleas: The Statute of Frauds and the statute of limitations. Defendant also claimed that plaintiff, by his allegations, was attempting to modify, by an alleged parol agreement, the terms of a written contract required to be in writing by the Statute of Frauds.
In plaintiff's brief to us he claims that the sole issue for determination on this appeal is whether the trial court erred in granting summary judgment when the complaint and answer provided a factual dispute in the evidence, thus providing a scintilla of evidence supporting plaintiff's contention. Strangely, he does not attempt, by way of original brief or reply brief (he did not file a reply brief), to refute defendant's claim in his special pleas that the Statute of Frauds and the statute of limitations acted as a bar to recovery in this case. Under these circumstances, defendant is entitled to suggest another issue. He does. And we agree that the dispositive issue in this case is:
Are there any affirmative defenses required to be pleaded by Rule 8(c), A.R.C.P., such as the Statute of Frauds and statute of limitations, which, if properly pleaded and proven would allow the trial court to grant a summary judgment for defendant, even if there exists a dispute as to the material facts constituting plaintiff's prima facie case?
By affidavit, deposition, and exhibits, the following evidence was adduced by defendant. The primary term of the lease, dated January 27, 1978, expired on May 8, 1983. The last day plaintiff had to exercise his first option under the lease was November 8, 1982. Suit was not filed in this case until June 20, 1984, more than a year and a half after the last day plaintiff could have exercised his option and more than a year after the lease had expired. In response to a request made by the defendant that plaintiff bring all written instruments bearing on the claim made concerning the leasehold property, plaintiff responded that he had no written instruments other than the lease itself.
Although plaintiff, in his complaint, alleged that the defendant began negotiating with him at or near the time plaintiff was to exercise his option to renew, and that plaintiff began his negotiations concerning the purchasing of the improvements on the property at or near the time he was to exercise his option to renew, in his deposition, plaintiff contradicted this statement in his complaint. The following is plaintiff's testimony on this point:
Q. All right. Now, just so that we will have no misunderstanding--
A. Yes. I've had mine with him.
Q. Right. You are telling me, then, that the first time that you entered into negotiations with Mr. Wilson at which time Mr. Wilson was going to supposedly buy this property was some time in June of 1983; is that correct?
A. I would say that or just immediately after. I'll say within thirty days of the day Doggett was up here.
Q. Thirty days after--
A. Within thirty days after he came up here. It may have been within ten days or twenty. I didn't keep exact count. I had the thirty days identified in a way at home.
Q. Let me--listen to my question, now. Within thirty days after Mr. Doggett's negotiations ended?
A. Yes.
Q. All right. So Mr. Doggett's negotiations ended June 21--
A. Right.
A. Right. (CR Supp. A-42).
Q. So your negotiations with Mr. Wilson would have begun--
A. Some time after.
Q. --some time after june--
A. Yes.
On the other hand, testimony adduced by defendant makes it very clear when plaintiff thought his rights were terminated. In plaintiff's deposition, he stated the following:
Q. Mr. Thompson, can you tell me, please, sir, according to Defendant's Exhibit Number 2, which is the lease executed by your son on January 27th, 1978, which was thereafter assigned to you, when did the primary term of that lease expire?
A. I don't know. I never studied it to that extent. You can find it in there as well as I can, but I never looked for it. I was trying to sell it before it expired.
Q. Do you know when it expired?
A. No. He never gave me a notice in writing of any kind.
Q. Does the lease require him to give you a notice as to when the lease expires?
A. I would assume if I wanted to renew it I would have to give him one, but I assumed he had to give me a notice. [Emphasis added.]
As we have previously stated, defendant raises two special pleas of affirmative defense, namely, the Statute of Frauds and the statute of limitations. In addition thereto, he argues the rule that a parol agreement cannot be used to undermine a written lease required to be in writing by the Statute of Frauds. We will discuss defendant's claims with reference to these defenses together, since they act in tandem to deny plaintiff's recovery. They will be discussed as each bears on the issue as reframed above.
Code 1975, § 8-9-2 provides as follows:
In the following cases, every agreement 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:
....
(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller; ....
The thrust of plaintiff's complaint is that defendant began negotiations with him concerning the purchase of improvements, in the form of a building which had been put on the leasehold premises, for the sum of $10,000.00. Plaintiff admits that he has no written expression of this; therefore, his complaint flies in the teeth of the Statute, although on the face of the complaint and defendant's answer, plaintiff has shown a genuine fact dispute, namely, the dispute as to whether defendant did agree to purchase the improvements. This is not enough when the defendant sets up the special plea of the Statute of Frauds. We have held that in such land situations, where the Statute of Frauds has been pleaded, it is incumbent upon the opposite party to show some reasons why the Statute is not applicable in his case. Moore v. Merchants and Planters Bank, 434 So.2d 751, 754 (Ala.1983); ...
To continue reading
Request your trial
-
Durham v. Harbin
...at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate." Thompson v. Wilson, 474 So.2d 657, 660 (Ala.1985). Accordingly, our task in this case is to determine whether, under the applicable law, a scintilla of evidence supports the p......
-
Casey v. Travelers Ins. Co.
...with at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate. Thompson v. Wilson, 474 So.2d 657, 660 (Ala.1985).' Durham v. Harbin, 530 So.2d 208, 210 (Ala.1988). Therefore, our task is to determine whether, under the applicable law,......
-
Hight v. Byars
...at least a scintilla of proof that these defenses do not apply to him. Otherwise, summary judgment is appropriate.' "Thompson v. Wilson, 474 So.2d 657, 660 (Ala.1985)." 530 So.2d at The record is devoid of any writing signed by Hanson authorizing either AmSouth Bank or Byars Realty to sell ......
-
Lands v. Lull Intern., Inc.
...of the good[ ]," there must be some evidence of that warranty. However, the Landses have submitted none.4 In Thompson v. Wilson, 474 So.2d 657, 660 (Ala.1985), this Court "We have already said that plaintiff, in neither affidavit, deposition, brief, nor reply brief, has produced a scintilla......