Wheeler v. Randall L. George Southdale
| Citation | 39 So.3d 1061 |
| Decision Date | 04 December 2009 |
| Docket Number | and 1070514.,1070484,1070487 |
| Parties | Helen Kathryn WHEELER et al.v.Randall L. GEORGE et al.Southdale, LLCv.Randall L. George et al.Todd Strangev.Helen Kathryn Wheeler et al. |
| Court | Supreme Court of Alabama |
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Eugene P. Stutts, Steve R. Burford, Thomas S. Hiley, and Roderick K. Nelson of Spain & Gillon, LLC, Birmingham, for appellants/cross-appellees Helen Kathryn Wheeler et al.
Stephen D. Heninger of Heninger Garrison Davis, LLC, Birmingham, for appellant Southdale, LLC.
Turner B. Williams and John F. DeBuys, Jr., of Burr & Forman, LLP, Birmingham; and Lawrence J. Hamilton II and Dominic C. MacKenzie of Holland & Knight LLP, Jacksonville, Florida, for appellees CSX Transportation, Inc., CSX Real Property, Inc., David W. Hemphill, and J. Randall Evans.
Tyrone C. Means and Ramadanah S. Jones of Thomas, Means, Gillis & Seay, P.C., Montgomery, for appellees Montgomery County, Montgomery County Commission, and William Joseph, Jr.
Robert E. Poundstone IV of Bradley Arant Rose & White LLP, Montgomery; and Joseph B. Mays, Jr., and Marc James Ayers of Bradley Arant Rose & White LLP, Birmingham, for appellees Hyundai Motor Manufacturing Alabama, LLC, and Hyundai Motor America.
Albert L. Jordan and Will Booker of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellee/cross-appellant Todd Strange.
Thomas T. Gallion III and Constance C. Walker of Haskell, Slaughter Young & Gallion, LLC, Montgomery; and Jesse P. Evans III of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellees Industrial Development Board of the City of Montgomery and Reuben F. Thornton, Jr.
Walter R. Byars and Kimberly O. Fehl, City of Montgomery Legal Department; and Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery for appellees City of Montgomery and Bobby Bright.
H.E. Nix, Jr., and Murry S. Whitt of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellees Don Siegelman, Henry C. Mabry III, and the Alabama Incentives Financing Authority.
Kenneth Smith, gen. counsel, Alabama League of Municipalities; and James W. Porter II of Porter, Porter & Hassinger, P.C., Birmingham, for amicus curiae Alabama League of Municipalities, in support of the appellees.
Mary E. Pons, staff atty., Association of County Commissions of Alabama, Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the appellee Montgomery County Commission.
The opinion of July 17, 2009, is withdrawn, and the following is substituted therefor.
Helen Kathryn Wheeler and William Newton Phillips, as trustee under the Doris R.H. Phillips Revocable Living Trust Agreement dated February 21, 2001 (“Wheeler/Phillips”), and Southdale, LLC, the plaintiffs in the trial court, appeal from summary judgments entered in favor of all the appellees in case no. 1070484 and case no. 1070487, the defendants in the trial court. Those appellees are the Industrial Development Board of the City of Montgomery (“the IDB”); Reuben F. Thornton, Jr., individually and as chairman of the IDB; the City of Montgomery (“the City”); Bobby N. Bright, individually and as mayor of the City; 1 Montgomery County (“the County”); the Montgomery County Commission (“the County Commission”); William F. Joseph, Jr., individually and as chairman of the County Commission; the Alabama Incentives Finance Authority (“the AIFA”); Don Siegelman, individually and as former president of the AIFA; 2 Henry C. Mabry III, individually and as former secretary of the AIFA; 3 CSX Transportation, Inc., and CSX Real Property, Inc. (“CSX”); David W. Hemphill, an assistant vice president of CSX Transportation; J. Randall Evans, a vice president of CSX Transportation; Hyundai Motor Manufacturing Alabama, LLC, and Hyundai Motor America (“Hyundai”); 4 and Todd Strange, individually and in his official capacity as the current mayor of the City.5 The appellees will hereinafter sometimes be referred to collectively as “the project participants.” Southdale and Wheeler/Phillips also sued the Montgomery Area Chamber of Commerce (“the MACOC”); Randall L. George, individually and as president of the MACOC; and David Echols, a former employee of the Alabama Development Office (“the ADO”) but they were dismissed by stipulation and are not appellees. In case no. 1070514, Strange cross-appeals from the trial court's order denying his motion to dismiss. In case no. 1070484 and case no. 1070487, we affirm in part, reverse in part, and remand; in case no. 1070514, we affirm.
In June 2001, a representative of Hyundai, a Korean automobile manufacturer, contacted Echols, who at that time worked for the ADO, expressing Hyundai's interest in locating an automobile-assembly plant in the United States and requesting information regarding incentives and available locations in Alabama that could accommodate a large automobile-manufacturing facility. Hyundai was considering at least two sites in Alabama-Montgomery and Opelika-as well as sites in several other states, including Kentucky. Hyundai's identity was kept secret during the initial negotiations. In September 2001, officials from the City, the IDB, the County Commission, and the MACOC began making preparations to secure options to purchase property in the Montgomery area in an effort to create an incentive package they hoped would persuade Hyundai to locate its plant near Montgomery. A significant parcel of land was an essential component of any incentive package. B.M. Ahn, the Hyundai representative in charge of the site selection for the United States plant, testified during his deposition that a critical element of an incentive package offered to an automobile manufacturer was “free land” on which to locate its plant. Ahn also stated that Hyundai had no role in acquiring the land and that land acquisition for an incentive package was the responsibility of the city or the state putting the package together. Officials of the City, the County Commission, and the IDB signed a letter of intent stating that they, “in partnership with the State,” would commit to provide an industrial site at no cost to Hyundai. Joseph, as chairman of the County Commission, was responsible for coordinating with City and County officials to develop the incentive package offered to Hyundai.
The City was to provide 62.5% of the funds to purchase the property; the County was to provide 37.5% of those funds. However, the option agreements on the parcels of property that would be included in the proposed Hyundai plant site were acquired by the IDB. Thornton testified that the IDB's primary role in industrial projects is to “serve as the entity through which monies flow for the purchase of land for the ultimate use in industry.” He further stated that the IDB is involved in such a process “to comply with state and federal tax laws for the tax breaks and other incentives to the industry.”
Over the course of several months, the IDB secured options on six parcels of property for the industrial site. At that time, the IDB did not disclose Hyundai's identity to the landowners. Neither Wheeler nor Phillips resided in Alabama; they retained Jesse Williams, a lawyer with the Montgomery law firm of Rushton, Stakely, Johnston & Garrett, P.A., to represent their interests. In September 2001, Thornton, in his capacity as chairman of the IDB, executed option agreements on behalf of the IDB for four of the six parcels. The IDB agreed to purchase approximately 320 acres from Southdale; approximately 807 acres from Wheeler/Phillips; approximately 328 acres from George E. Russell and Thomas E. Russell, as coexecutors and cotrustees of the will and testamentary trust of Earnest W. Russell, and Myrtis Russell (“the Russells”); and approximately 40 acres from John C. Parker and Eugenia M. Parker (“the Parkers”). These agreements provided for an option period of 120 days, and each stated:
(Emphasis added.) The parties refer to the provision in the option agreements that “the purchase price shall in no event be less than the price per acre paid to any other landowner included in the project planned for the Property” as a “most-favored-nation clause.” The purpose of the clause, as explained by Wheeler/Phillips and Southdale, was to ensure that all landowners conveying property to be used for the project would receive the same price so that no one parcel of land would be worth more than any other parcel. The most-favored-nation clause allowed Alabama officials to obtain control of the needed land quickly, because landowners who executed option agreements early in the acquisition period were assured that they would...
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