Opinion
Civil Action No. 00-0167-BH-S
July 13, 2000
JUDGMENT
It is ORDERED, ADJUDGED and DECREED that JUDGMENT be and is hereby entered in favor of the defendant, William Timothy Welch, individually and as personal representative of the Estate of Mary Ervin Collins Welch, and against the plaintiff Michael E. Ledkins, the plaintiff to have and recover nothing of the defendant. Costs are taxed against the plaintiff.
FINDINGS OF FACT; CONCLUSIONS OF LAW AND ORDER
This action is before the Court on defendant's motion for summary judgment (Docs. 6 and 7) and motion for the award of attorney's fees and costs (Docs 11 and 12) pursuant to Ala. Code § 12-19-271, et seq., (1995) (commonly referred to as the Alabama Litigation Accountability Act). The plaintiff, Michael E. Ledkins, filed his complaint seeking specific performance of an alleged contract to sell real property. The defendant, William T. Welch, individually and as the personal representative of his mother's estate, pleaded as a defense the Statute of Frauds.
Plaintiffs response in opposition to this motion for summary judgment was accompanied by a motion for leave to amend the complaint (Doc. 15) to add a second count for breach of contract. The defendant advised the Court in writing (Doc. 17) that he did not oppose plaintiffs motion to amend but nonetheless moved to dismiss the added Count Two for the same reasons set forth in the pending motion for summary judgment. Specifically, the defendant contends, and this Court agrees, that plaintiffs Count Two alleges a breach of the same contract for the purchase of land which is at issue in Count One, the only difference being that plaintiff seeks specific performance in Count One and damages in Count Two. In view of the circumstances, it is first ORDERED that plaintiffs motion to amend to add Count Two be and is hereby GRANTED and that defendant's motion for summary judgment is deemed to relate to plaintiffs complaint as so amended.
Upon consideration of the motion for summary judgment as amended (Doc. 17) to include Count Two of the amended complaint, plaintiffs response in opposition thereto (Doc. 14), defendant's reply (Doc. 18) and all other pertinent portions of the record, the Court concludes that the motion for summary judgment is due to be granted.
FINDINGS OF FACT
Based on the parties stipulations and the Court's review of the testimonial and documentary evidence proffered in support of and opposition to the motion and all other pertinent portions of the record, the Court finds as follows:
1. The plaintiff, Michael E. Ledkins ("Ledkins") is a resident of the State of Alabama. The defendant, William T. Welch ("Welch"), is a resident of the State of Colorado, both in his individual and representative capacity.
2. This case now involves not only a demand for specific performance of an alleged contract but a demand for damages for breach of the same alleged contract. Ledkins contends that he entered into a contract with the defendant to purchase 519.7 acres of real property located in Wilcox County, Alabama, for a purchase price of $1,100,000. The Estate of Mary Ervin Collins Welch, the mother of defendant William T. Welch, owns the subject property.
3. Welch denies that there is an enforceable contract to purchase the subject real property. Welch asserts that the Statute of Frauds, Ala. Code § 8-9-2 (1993), bars Ledkins' request for specific performance.
4. Mary Ervin Collins Welch passed away on December 28, 1997, and her son, the defendant Welch, was appointed personal representative of her Estate. Ledkins does not dispute that Welch engaged the services of Donald M. McLeod ("McLeod"), an attorney in Camden, Alabama, for the purpose of filing an ancillary probate proceeding for the Estate in Wilcox County, Alabama.
5. On November 16, 1999, Welch as personal representative of the Estate requested proposals for the purchase of the subject property. Ledkins asserts that he did not make a bid on the property pursuant to Welch's request for proposals.
6. According to Ledkins, he was contacted and informed by Eddie Whitmire ("Whitmire") that all bids pursuant to Welch's request for proposals had been rejected by Welch. Ledkins then asserts that Whitmire received an e-mail from Welch on December 11, 1999, setting forth a firm offer of $1,100,000.00 for the sale of the property. This e-mail from Welch to Whitmire in fact states only:
Eddy I have not been able to contact you by cell phone and have misplaced your home number — please contact me at home 970-204-9596. The asking price for the land is $1,100,000.00. Does your contact want to make a final offer?
Plaintiffs Exhibit D.
7. Ledkins contends that on December 14, 1999, he telephoned Welch and "agreed to accept his offer to sell the property for $1,100,000.00." Ledkins' Brief in Opposition at 3. Ledkins then asserts only that he and Welch "agreed that [Ledkins] would go to the office of [Welch's] attorney Donald McLeod and that [Ledkins] would make a deposit of $25,000.00 toward payment for the property." Plaintiffs Brief in Opposition at 3-4. According to Ledkins, when he arrived at McLeod's office on December 15, 1999, McLeod told him that he (McLeod) "had the details of their agreement written on a legal pad." Id. at 4. McLeod then subsequently wrote a letter to Ledkins stating:
Ledkins has failed to appropriately number the pages of his Brief in Opposition. Consequently, any reference by the Court to such Brief is a reference to its unnumbered pages.
As per my telephone conversation with Mr. Will Welch, I acknowledge your agreement to purchase the 529 acre, more or less, Welch Wilcox County tract for $1,100,000.00. A one-tenth mineral interest is to be conveyed and the closing will be within thirty (30) days. This conveyance is subject to a clear title.
Plaintiffs Exhibit E. Ledkins has neither produced a writing signed by Welch confirming the alleged oral agreement to sell the property to Ledkins nor even alleged that one exists.
8. Although Ledkins gave McLeod a check in the amount of $25,000.00 as a "deposit on the Welch Tract," this check was made payable to Donald E. McLeod Trust Account and Ledkins does not dispute that this check was never negotiated and was returned to him.
9. Welch did not give authority to McLeod, either orally or in writing, to enter into any contract to sell the subject property. Ledkins has proffered no evidence to refute this alleged lack of authority.
10. Ledkins never paid Welch for the subject property and was never given permission by Welch to take possession of the land.
CONCLUSIONS OF LAW
This Court has jurisdiction over the parties and the subject matter of this litigation pursuant to 28 U.S.C. § 1332. The parties do not dispute that complete diversity exists and the jurisdictional amount in dispute is satisfied.
The essential issue in this case is whether the Alabama Statute of Frauds has been satisfied. The Statute of Frauds provides, in pertinent part:
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 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 any interest therein . . . unless the purchase money, or a portion thereof is paid and the purchaser put in possession of the land by the seller.Ala. Code § 8-9-2 (1993) (emphasis added).
Summary judgment must be granted in favor of Welch because there is no writing subscribed by Welch, either individually or as personal representative of the Estate, agreeing to sell the subject property to Ledkins. Furthermore, there is no written agreement subscribed to by Welch, either individually or as personal representative of the Estate, giving McLeod or any other person the authority to sell the land at issue. Consequently, there is no written agreement subscribed to by any person legally authorized in writing to sell the land at issue to Ledkins. In addition, Ledkins never paid the alleged purchase price or a portion thereof to Welch and was never put in possession of the land by Welch.
In view of the Court's findings and conclusions relative to the absence of the requisite writing authorizing a sale which has been subscribed to by the seller or his legally authorized (i.e. in writing) agent and the inapplicability of the only exception to same (i.e., payment and possession), the affidavit testimony of Ledkins and Whitmire concerning any discussions which might have occurred regarding the sale or purchase of the subject property is indeed irrelevant and immaterial in addition to containing inadmissible hearsay statements. However, inasmuch as the Court has not relied on this evidence, and could not properly do so, Welch's motion to strike these affidavits (Doc. 18) is MOOT.
In Hight v. Byers, 569 So.2d 387 (Ala. 1990), the Alabama Supreme succinctly held:
It is apparent that the underlying transaction in this case — a contract for the sale of an interest in real property — falls within the ambit of Alabama's Statute of Frauds. Ala. Code 1975, § 8-9-2. Alabama law is well settled on the principle that in order for an agent to act on a principal's behalf regarding a matter controlled by the Statute of Frauds, the agent's authority must be in writing. § 8-9-2; Durham v. Harbin, 530 So.2d 208 (Ala. 1988), and Cammorata v. Woodruff 445 So.2d 867 (Ala. 1983). Moreover, any contract made by an agent without written authority is void if the contract itself is one that has to be in writing. Cammorata v. Woodruff supra. See, also, Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31 (1903).
* * *
The record is devoid of any writing signed by Hanson authorizing either AmSouth Bank or Byars Realty to sell the lot. Because the Hights have not produced a scintilla of evidence that either AmSouth Bank or Holland or Byars or Byars Realty had written authority to sell Hanson's lot, the purchase agreement is void as to all defendants and third-party defendants.
Because the agreement was void, the plaintiffs were entitled to only a refund of the earnest money. Based on the foregoing, the summary judgment for the defendants and third-party defendants is affirmed.569 So.2d at 388-89. Hight is indistinguishable in all material ways from the case at bar and dictates that judgment be entered in Welch's favor.
Ledkins has not even argued that Hight is distinguishable or otherwise inapplicable. Instead, Ledkins relies on Ryder v. Johnston, 45 So. 181 (Ala. 1907), and Herring v. Prestwood, 414 So.2d 52 (Ala. 1982), each of which is clearly distinguishable because each involved the sale of land pursuant to some form of writing signed by the seller. It was the written acknowledgments by the sellers to the purchasers in Ryder and Herring which were held to satisfy the Alabama Statute of Frauds. No such writing addressed to Ledkins concerning the sale of the subject property was ever signed by Welch.
In view of the above, the Court also concludes that Welch is entitled to an award of attorney's fees and costs pursuant to the Alabama Litigation Accountability Act which provides:
Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein . . ., that a court determines to be without substantial justification , either in whole or in part.Ala. Code § 12-19-272(a) (1995) (emphasis added). "Without substantial justification" is defined as "frivolous, groundless in fact or in law." § 12-19-271(1). The Alabama Litigation Accountability Act provides, in pertinent part, the following guidelines for consideration:
In determining the amount of an award of costs or attorneys' fees, the court shall exercise its sound discretion. When granting an award of costs and attorneys' fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorneys' fees and costs and the amount to be assessed:
(1) The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted;
(2) The extent of any effort made after the commencement of an action to "reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;
(3) The availability of facts to assist in determining the validity of an action, claim or defense;
(4) The relative financial position of the parties involved;
(5) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;
(6) Whether or not issues of fact, determinative of the validity of a parties' claim or defense, were reasonably in conflict;
(7) The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;
(8) The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;
(9) The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;Ala. Code § 12-19-273. Alabama appellate courts have upheld the award of fees in several cases. See e.g, Meek v. Diversified Products Corp., 575 So.2d 1100 (Ala. 1991 (plaintiff filed a lawsuit attempting to re-litigate matters decided in a prior case); Cauthen v. Yates, 716 So.2d 1256 (Ala.Civ.App. 1998) (affirmed award of one-half of a father's litigation expenses when the mother maintained in that child support case that the alleged father was the only possible father of her child even after genetic tests excluded him as the father); Williams v. Capps Trailer Sales, Inc., 607 So.2d 1272 (Ala.Civ.App. 1992 (plaintiff filed a lawsuit clearly barred by the statute of limitations); Hall v. American Indemnity Group, 681 So.2d 220 (Ala.Civ.App. 1996) (insured held to have misrepresented and withheld information with respect to his bad faith failure to pay claim against his insurer in that he alleged no prior water damage despite having previously filed a lawsuit against the former owners of the property seeking damages for such water damage).
As applied to the case at bar, the Court first notes that Ledkins only response (Doc. 19) to Welch's motion for an award of attorney's fees and costs (Doc. 12) is that the motion "is due to be denied in that the complaint and amended complaint are absolutely justified in light of Plaintiff's brief and supporting affidavits." Ledkins does not dispute that, prior to filing his complaint, his counsel received ample warning that his contention regarding the existence of a contract to purchase the subject property was without factual or legal support. Nor does Ledkins contend that he and his counsel were unaware of the requirements of the Alabama Statute of Frauds that any agreement for the sale of land is void unless either in writing signed by the seller or, pursuant to which, the purchaser has paid at least a portion of the purchase price to the seller and has been put in possession of the land by the seller, neither of which occurred in this case.
Consequently, this Court must agree and find that: (1) Ledkins and his counsel made little or no effort to determine the validity of this action before it was filed despite the specific information provided by Welch's counsel; (2) Ledkins and his counsel had available all facts to assist them in determining the validity of this action and should have known that the request "for specific performance and damages had no basis in fact or law; (3) there is no issue of fact reasonably in conflict with regard to this action; (4) Ledkins has not alleged an attempt to establish a new theory of law in this state; (5) Ledkins did not attach to his complaint any written document indicating there was a valid contract to purchase the subject property and thus his claim is clearly barred by the Alabama Statute of Frauds. Given these facts, this lawsuit is clearly "without substantial justification" and the defendant is therefore entitled to recover his attorney's fees and costs.
CONCLUSION AND ORDER
For the reasons stated above, it is ORDERED that defendant's motion for summary judgment (Doc. 6) be and is hereby GRANTED and the judgment be entered in favor of the defendant, William Timothy Welch, individually and as personal representative of the Estate of Mary Ervin Collins Welch, and against the plaintiff, Michael E. Ledkins, the plaintiff to have and recover nothing of the defendant. Costs are taxed against the plaintiff.
It is FURTHER ORDERED that defendant's motion (Doc. 11) for an award of attorney's fees and costs pursuant to the Alabama Litigation Accountability Act, Ala. Code § 12-19-271, et seq., (1995), be and is hereby GRANTED and, in conjunction therewith, the defendant shall file an itemized statement of such fees and costs no later than July 28, 2000. The Court shall retain jurisdiction to determine the amount of such award and enter a judgment specific to same for which the plaintiff and his counsel, C. Daryl Drinkard, shall be jointly and severally liable. Finally, it is ORDERED that plaintiff and his counsel must file any objection they might have to the amount sought and br itemization presented by the defendant in writing on or before 5:00 p.m. on August 10, 2000. The Court will again take the matter under submission no later than August 11, 2000.
The Court would encourage the parties to negotiate an amicable settlement of this final matter regarding fees and costs.