Watters v. Lawrence County

• Decision Date: 01 September 1989
• Citation: 551 So.2d 1011
• Parties: Harold M. WATTERS v. LAWRENCE COUNTY and Lawrence County Commission. LAWRENCE COUNTY COMMISSION v. Harold M. WATTERS. 88-472, 88-598.
• Court: Alabama Supreme Court

Page 1011

551 So.2d 1011

Harold M. WATTERS v. LAWRENCE COUNTY and Lawrence County Commission.

LAWRENCE COUNTY COMMISSION v. Harold M. WATTERS.

88-472, 88-598.

Supreme Court of Alabama.

Sept. 1, 1989.

Richard L. Watters of Howell, Johnston, Langford & Watters, Mobile, and Joe R. Whatley, Jr. of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for appellant, cross-appellee.

Dennis Riley of Morring, Schrimsher & Riley, Huntsville, and W.H. Rogers, Moulton, for appellees, cross-appellants.

HOUSTON, Justice.

Harold M. Watters filed a multiple-count complaint against Lawrence County and the Lawrence County Commission (hereinafter together referred to as "the County"), ¹ alleging, inter alia, breach of contract (count one), fraud in the inducement (count two), and tortious interference with a contractual or business relationship (count seven). The County filed a counterclaim, alleging, inter alia, conversion on the part of Watters. The trial court directed verdicts in favor of the County on Watters's second and seventh counts. The trial court also directed a verdict in favor of Watters on the County's counterclaim. Watters's first count alleging a breach of contract was submitted to a jury, which returned a verdict in favor of Watters in the amount of $42,000. On appeal Watters questions the propriety of the trial court's directed verdicts for the County on his second count (fraud in the inducement) and his seventh count (interference with a contractual or business relationship). The County in its appeal challenges the directed verdict for Watters on its counterclaim and the denial of its motion for a new trial. We affirm.

This action was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12; Robichaux v. AFBIC Development Co., 551 So.2d 1017 (Ala.1989); Perry v. Hancock Fabrics, Inc., 541 So.2d 521 (Ala.1989). Thus, a directed verdict is proper in actions filed after June 11, 1987, when the claimant has failed to present substantial evidence as to each element of his cause of action. Substantial evidence is "evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven." § 12-21-12.

88-472

The second issue argued by Watters in his brief will be addressed first: "Did the trial court commit reversible error in granting a directed verdict for the [County] as to [Watters's] seventh cause of action for willful, intentional, and malicious interference with the plaintiff's trade, business, and/or profession?"

The seventh count of Watters's complaint reads, in pertinent part, as follows:

"On or about the 29th day of September, 1986, the defendants [Lawrence County, Lawrence County Commission, and the county commissioners in their individual capacities] terminated the employment of plaintiff, WATTERS, as county engineer for Lawrence County.

"The cause of action hereinafter stated against the Defendants is for the willful, intentional and malicious interference with the Plaintiff['s] trade, business and/or profession, which act occurred between January 13, 1986 and October 1, 1986.

"... [T]he Defendants, while acting within the line and scope of their employment as agent, servant and/or employee of the Defendant, LAWRENCE COUNTY and the Defendant, LAWRENCE COUNTY COMMISSION, willfully intentionally and maliciously interfered with Plaintiff['s] business, trade, and/or profession as County Engineer for Lawrence County...."

The employment contract whereby Watters was employed as county engineer of Lawrence County was entered into by Watters and the County Commission of Lawrence County, Alabama, acting for and on behalf of the County of Lawrence in the State of Alabama.

Even though the county commissioners were individual defendants in the trial court, Watters dismissed his appeal from the judgment in their favor. Therefore, we need not address whether they, as individuals, could be liable for interference with the contractual or business relations between the County on the one hand and Watters on the other. Clearly, the County was a party to the contract and to the business relationship with which Watters claimed the County interfered. As a matter of law, a party to a contract or to a business relationship cannot be liable for tortious interference with that contract or business relationship. Lolley v. Howell, 504 So.2d 253 (Ala.1987); Hickman v. Winston County Hospital Board, 508 So.2d 237 (Ala.1987).

In his brief filed with this Court, Watters also argues that the County interfered with his private business. This was not raised by the pleadings or in any pre-trial order; it is obvious from the trial brief filed by the County that it based its motions for summary judgment and directed verdict as to the seventh count on the proposition that a party to a contract or business relationship cannot be liable for tortious interference with that contract, and it cited Lolley v. Howell, supra, in support of its motions. There is nothing in the record to show that Watters was seeking to recover under his seventh count for anything other than the County's alleged interference with his contract as county engineer.

Watters also presented the following issue for our review: "Did the trial court commit reversible error in granting a directed verdict for the [County] as to [Watters's] second cause of action for fraud in the inducement?"

Watters's second count reads, in pertinent part, as follows:

"Plaintiff, Watters, was induced to enter into the contract [with the County] by the [County's] representations to Plaintiff, Watters, that he would not be terminated except for justifiable cause as defined by the contract. Furthermore, the contract stated that it contained the entire agreement between the parties and that it could not be enlarged or altered except in writing by all the parties and endorsed on the contract itself.

"The representations made by the [County] were false and the [County] knew they were false and they were made with intent to deceive and without the intent of [the County] to perform same at the time they were made."

Watters contends that the County, in order to induce him to move to Lawrence County and become county engineer, made certain promises to him concerning the freedom that he would have to run the County's road department and that the County never intended to follow through on these promises. Watters argues that he relied on the County's alleged misrepresentations when he decided to leave his former employment to become county engineer for Lawrence County.

It is clear that Watters's fraud claim is predicated upon the County's alleged misrepresentations concerning its intent to perform under the contract. In order to have the fraud claim submitted to the jury, Watters not only had to present evidence of the basic elements of fraudulent misrepresentation, see Ala.Code 1975, § 6-5-101, but he also had to prove that the County intended "at the time of the alleged misrepresentation[s], not to perform" and that the County "made the representation[s] with a present intent to deceive." Selby v. Quartrol Corp., 514 So.2d 1294, 1297 (Ala.1987) (emphasis in Selby ); see also Coastal Concrete Co. v. Patterson, 503 So.2d 824 (Ala.1987); and Russellville Production Credit Association v. Frost, 484 So.2d 1084 (Ala.1986).

" 'The only basis upon which one may recover for fraud, where the alleged fraud is predicated on a promise to perform or abstain from some act in the future ... is when the evidence shows that, at the time ... the promises of future action or abstention were made, the promisor had no intention of carrying out the promises, but rather had a present intent to deceive. Robinson v. Allstate Insurance Co., 399 So.2d 288 (Ala.1981). If such intent is not substantiated by the evidence, the fraud claim should not be submitted to the jury. The failure to perform, alone, is not evidence of intent not to perform at the time the promise was made. If it were, a mere breach of contract would be tantamount to fraud. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976)....' "

Hearing Systems, Inc. v. Chandler, 512 So.2d 84, 87 (Ala.1987); see also Russellville Production Credit Association v. Frost, supra.

The County argues that there was no proof that, at the time it entered into the contract with Watters, it did not intend to perform under the contract. The record substantiates that argument. Watters's evidence tended to show only that the County failed to perform under the contract. As previously noted, evidence of a failure to perform a promise, alone, is not evidence of an intent not to perform at the time the promise was made. Therefore, the trial court properly directed a verdict for the County on Watters's second count, alleging fraud in the inducement.

88-598

The County contends that the trial court erred in directing a verdict for Watters on its counterclaim, in which it alleged that Watters had converted certain property belonging to the County. In Ott v. Fox, 362 So.2d 836, 839 (Ala.1978), this Court defined "conversion" as follows:

"To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse. The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where the plaintiff has a general or special title to the property or the immediate right to possession." (Citations omitted.)

Consequently, to enable the trial court to submit the issue to the jury, the County had to present substantial evidence that Watters wrongfully exercised dominion over property as to which it had a general or special title or as to...