Fisher v. Comer Plantation, Inc.

772 So. 2d 455 (2000)

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Nature of the Case

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Facts

P, a lawyer, knew nothing about Alabama real-estate markets, so he contacted Locators for assistance in purchasing land. Speaks, an agent for Locators, returned P's telephone call. P conveyed his wants and Speaks eventually sent P information regarding various properties, including Comer Plantation, a 2600-acre antebellum plantation. Speaks told P that Comer Plantation had been on the market for a long time and that the sellers would probably accept a price that P would find reasonable. P agreed to an inspection. On arrival Speaks provided him with a real-estate appraisal that had been prepared by Roger Pugh for the benefit of Paul Thomas, who was the owner of Locators and a stockholder in Comer Plantation, Inc. The report addressed to SouthTrust Bank, estimated the value of Comer Plantation to be $919,000. On inspection, the property was in very poor condition. Speaks advised him to make an offer on the property 'as-is.' Speaks again told him that the owners wanted to sell the property as soon as they could. Speaks suggested that P should offer between $500,000 and $600,000 for the property 'as-is.' After a second day of inspecting the property, Speaks introduced P to Paul Thomas. Speaks never told P that Thomas was also his employer. P offered $500,000 for the property 'as-is.' Thomas refused to take the offer to the other owners. Speaks said he would take the offer to the other owners. P said he was no longer interested and returned to North Carolina. Billy Pritchard, a Birmingham lawyer who was also a stockholder in Comer Plantation, Inc., telephoned P, apologized for Thomas's conduct, and told P that he was the only true representative of the owners in regard to a sale. P began to negotiate based on the appraisal figure of $919,000. Speaks had an active part in making the sales contract. P and Pritchard agreed on a price of $710,000. Pritchard sent Fisher a contract, which he signed and returned. Pursuant to the contract, Fisher tendered a check for $50,000 earnest money to be deposited in an escrow account maintained by Locators. P's personal banker go the paperwork and then quickly discovered an error in addition that had caused the estimated appraisal to be nearly $100,000 greater than the underlying numbers supported. P immediately telephoned Pritchard, notified him of the error, and told him that he no longer wished to be bound by the contract because, he said, the negotiations had been premised on a faulty estimate. P also demanded the return of his $50,000. Pritchard checked the appraisal, confirmed the error, and promised to investigate it. Pugh claimed the error was typographical. P questioned the explanation. P again demanded the return of his $50,000 but Speaks refused to return it. Comer Plantation, Inc., and its stockholders, then filed a declaratory judgment action against Locators. P was not notified and did not discover that it had been filed and adjudicated until after discovery in the present case had commenced. The Jefferson Circuit Court held that the contract had been breached and ordered that the $50,000 be disbursed among the owners of Comer Plantation. Consequently, the $50,000 was removed from escrow and was distributed to the owners of Comer Plantation, which included Thomas, according to the terms of the order. P filed this lawsuit to recover the $50,000 down payment and to recover other damages, based on claims of fraudulent misrepresentation, suppression, breach of fiduciary duty, and negligence. The court granted a summary judgment to Ds. P appealed.