Triple J Cattle, Inc. v. Chambers

• Decision Date: 16 April 1993
• Citation: 621 So.2d 1221
• Parties: TRIPLE J CATTLE, INC., and Bennie D. Herring v. Robert F. CHAMBERS, et al. 1911635, 1911636.
• Court: Alabama Supreme Court

Page 1221

621 So.2d 1221

TRIPLE J CATTLE, INC., and Bennie D. Herring v. Robert F. CHAMBERS, et al.

1911635, 1911636.

Supreme Court of Alabama.

April 16, 1993.

Rehearing Denied June 4, 1993.

Bennie D. Herring, pro se.

Joseph E. Faulk of Calhoun, Faulk, Watkins, Clower & Cox, Troy, for appellees.

HORNSBY, Chief Justice.

Triple J Cattle, Inc., and Bennie D. Herring, its president, appeal from the trial court's denial of their motion for a new trial in two cases that had been consolidated and tried together. We affirm.

Herring and Triple J, represented by Herring, ¹ tried claims against Billy and Betty Joan Carter based on fraud and conspiracy to defraud and claims against Robert F. Chambers and his mother, Claudean F. Chambers, based on conspiracy to defraud and abuse of process. After Triple J and Herring presented their evidence and rested, the trial court directed verdicts in favor of the defendants, the Carters and the Chamberses, and in favor of Triple J and Herring on the Chamberses' counterclaim alleging abuse of process.

FACTS

The facts underlying this case involve negotiations for the sale and purchase of real property and a livestock auction company called C.L. Chambers and Son, Inc. (referred to herein as the "stockyard company"). On January 31, 1986, Herring, on behalf of Triple J, entered into an agreement with the Carters in which Triple J agreed to purchase the stockyard company; the agreement called for Triple J to assume two mortgages held by the Carters. The first mortgage had been executed in favor of First Alabama Bank of Troy, Alabama, for $50,000. The second mortgage, for $40,000, secured the unpaid portion of a promissory note the Carters had executed in favor of the Chamberses when the Carters purchased the stockyard company from the Chamberses on November 26, 1984. These mortgages related to the real property on which the stockyard company operated its business. With respect to the second mortgage, the sales agreement provided:

"(B) Triple J assumes the responsibility of that certain second mortgage payable to Robert Chambers and [his] mother, Claudean Chambers, at a maximum amount of Forty Thousand Dollars ($40,000) or whatever lesser sum might be negotiated between the parties."

(Emphasis added.)

Triple J made the payments due to First Alabama Bank; however, neither it nor the Carters made any payments on the debt secured by the second mortgage held by the Chamberses, because of a dispute as to the amount due on the debt. The Chamberses sued the Carters on the promissory note the Carters had executed when they purchased the stockyard company from the Chamberses. The Carters counterclaimed, arguing that their execution of the note had been induced by fraudulent misrepresentation on the part of the Chamberses regarding the amount of the accounts receivable, the inventory, and other assets of the business, and its liabilities.

Triple J and Herring intervened in that action and sought to enjoin the Chamberses from foreclosing on the property subject to the mortgage. The trial court enjoined the Chamberses from foreclosing until such time as the "correct balance of the mortgage debt due [and] owing has been legally ascertained between Robert F. Chambers and Claudean F. Chambers and Billy Carter and Betty Joan Carter by a settlement or final judgment rendered." (Emphasis added.) This Court affirmed the trial court's injunction. Triple J Cattle, Inc. v. Chambers, 551 So.2d 280 (Ala.1989).

Shortly before the date set for the trial to determine the amount due on the note, the Chamberses and the Carters reached a settlement and stipulated that the debt was $46,500. Triple J and Herring sued the Chamberses and the Carters, claiming that the settlement represented a conspiracy between the Chamberses and the Carters to defraud Triple J by requiring Triple J to pay an inflated amount to satisfy the second mortgage it had assumed.

Triple J and Herring's complaint alleged fraud on the part of Billy Carter. They alleged that Carter had misrepresented to Herring that the amount due on the second mortgage would be reduced by amounts recovered by the Carters on a claim the Carters had against the Chamberses for "shortages" in the custodial checking account, inventory, and accounts receivable of the stockyard company when the Carters bought the company from the Chamberses.

Triple J and Herring later amended their complaint to add a claim against the Chamberses, alleging an abuse of process in their foreclosure. The Chamberses counterclaimed against Triple J and Herring for abuse of process in the current litigation.

Triple J and Herring, represented by Herring, tried their claims against the Chamberses and the Carters. After Triple J and Herring presented their evidence and rested, the trial court directed verdicts in favor of the Chamberses and the Carters on Triple J and Herring's claims. The court also granted a directed verdict in favor of Triple J and Herring on the Chamberses' counterclaim alleging abuse of process.

Triple J and Herring filed a motion to set aside the directed verdict and for a new trial. After a hearing, the trial court denied these motions. Triple J and Herring appeal.

I. STANDING

The Chamberses and Carters filed a motion with this Court to dismiss the appeal, arguing that Bennie D. Herring, as assignee of Triple J, lacks standing to appeal.

To have standing to appeal a judgment, one must have been a party to the judgment below. Daughtry v. Mobile County Sheriff's Dep't ex rel. Purvis, 536 So.2d 953, 954 (Ala.1988). The caption of the complaint indicates the parties to a judgment on that complaint. See Rule 10(a), A.R.Civ.P. (requiring that "[i]n the complaint the title of the action shall include the names of all the parties").

As early as May 20, 1991, the trial court allowed Triple J and Herring, as intervenors in the action between the Chamberses and the Carters, to appear as "Triple J Cattle, Inc., and Bennie D. Herring, as assignee of Triple J." Although no assignment from Triple J to Herring appears in the record, the parties and the court proceeded with the case including parties identified as "Triple J Cattle, Inc. and Assignee, Bennie D. Herring." At the commencement of the trial, the judge stated that he interpreted the action to be one by Bennie D. Herring and Triple J, as plaintiffs, against the Chamberses and the Carters, as defendants.

The ruling from which Triple J and Herring now appeal, the denial of their motion for a new trial, was entered under the style "Triple J Cattle, Inc. and Assignee, Bennie D. Herring, Intervenor." In addition, the motion for directed verdict and the order granting that motion carried the style "Triple J Cattle, Inc. and Assignee, Bennie D. Herring, Intervenor." Herring was, thus, a party to the judgment and has standing to appeal that judgment. Based on the trial court's finding that Triple J had assigned its interest (and liabilities) to Herring, we conclude that Herring had a sufficient individual involvement in the case to appeal this case.

II. DIRECTED VERDICT

The appellants argue that the trial court erred in directing verdicts for the Chamberses and the Carters. On appeal, we review a motion for directed verdict by the same standard the trial court uses in determining whether to grant or deny the motion. "Thus, when reviewing the trial court's ruling on the motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the nonmovant." Ogle v. Long, 551 So.2d 914, 915 (Ala.1989); Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988).

This action was commenced before June 11, 1987; therefore, the applicable standard of proof is the "scintilla rule." Ala.Code 1975, § 12-21-12. The motion for directed verdict was to be denied if there was a scintilla of evidence in support of Herring and Triple J's claims. Peete v. Blackwell, 504 So.2d 222, 224 (Ala.1986).

When the trial court directed the verdicts, Triple J and Herring's claims included a claim of fraud against Carter, a claim of abuse of process against the Chamberses, and a claim of conspiracy to defraud against the Carters and the Chamberses. Triple J and Herring argue that they presented sufficient evidence to create an issue of fact warranting jury consideration of each of their claims.

A. FRAUD-AS TO THE CARTERS

Triple J and Herring argue that they presented sufficient evidence to create a conflict warranting jury consideration of their promissory fraud claim against the Carters. Although Betty Joan Carter was included as a defendant, Triple J and Herring made no allegations or arguments regarding her. Therefore, the court properly directed the verdict in favor of Betty Joan Carter.

The sole evidence presented at trial with respect to the fraud claim was this testimony by Herring:

"And in the process of buying [the stockyard company], Billy [Carter] told me that he and his attorney were going to sue Bobby Chambers and [that] I would be the beneficiary of any amount of money that was received as a result of that suit."

Billy Carter's alleged misrepresentation constitutes a promise to perform an act in the future contingent on the outcome of litigation or negotiations. Therefore, the claim is one of promissory fraud. See Padgett v. Hughes, 535 So.2d 140, 141 (Ala.1988) (holding that the claim that defendant promised that "he would foreclose the mortgage so that Padgett could receive clear, unencumbered title when the [outstanding tax] liens were satisfied" constituted a claim of promissory fraud).

A claim of promissory fraud requires proof of six elements: (1) a false representation, (2) of a material existing fact, (3) that is justifiably relied upon by the plaintiff, (4) that causes damage to the plaintiff as a proximate result of the reliance, (5) "proof that at the time of the misrepresentation, the defendant had the...