Benton v. Clegg Land Co.

99 So. 3d 872, 2012 Ala. Civ. App. LEXIS 165, 2012 WL 2362628
CourtCourt of Civil Appeals of Alabama
DecidedJune 22, 2012
Docket2110317
StatusPublished
Cited by4 cases

This text of 99 So. 3d 872 (Benton v. Clegg Land Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benton v. Clegg Land Co., 99 So. 3d 872, 2012 Ala. Civ. App. LEXIS 165, 2012 WL 2362628 (Ala. Ct. App. 2012).

Opinion

BRYAN, Judge.

Russell Benton (“Russell”) and Jason Benton (“Jason”) appeal from a summary judgment in favor of Clegg Land Co., Ltd. (“Clegg”), Speaks Land Company, and Ken Buce. We affirm.

Facts

Sometime before 2002, Curtis Adams and his wife contracted for Don Casey to construct a 10-acre lake (“the lake”) on a 646-acre parcel of recreational property (“the property”) in Macon County that Adams and his wife then owned. Casey constructed the lake with a dam on one side; one side of the dam faced the lake, and the other side faced dry land. Subsequent to the construction of the lake, Adams and his wife sold the property to Clegg in 2002. Thereafter, Clegg enlarged the existing cabin on the property, built a pole barn, improved the hunting facilities on the property, and improved the roads on the property. Clegg’s owners used the property for hunting and fishing.

Within a year of Clegg’s purchasing the property, Clegg’s owners noticed that the water level in the lake would fluctuate. In 2003, Clegg asked Casey to inspect the lake to determine why the water level in the lake fluctuated. Casey used a bulldozer and a small excavator to remove dirt from the side of the dam that faced dry land. He found some dampness in the soil on that side of the dam, which indicated that water was seeping or leaking out of the lake, but he did not find a hole or any other explanation for the seepage or leak. Casey informed Clegg that he did not know what could be done to stop the seepage or leak and restored the dirt he had removed to its original location.

Subsequently, Clegg decided to sell the property and listed it for sale with Speaks Land Company for $3,250 per acre. After the property was listed for sale, members of the Clegg family, with the assistance of Harold Dennis, who lived near the property, and Dennis’s daughter, put 10,000 to 12,000 pounds of bentonite1 in the lake near the dam to see if the bentonite would [875]*875stop the seepage; however, the water level in the lake continued to fluctuate. Clegg did not take any other action to stop the water level from fluctuating.

After the property had been listed for sale for approximately 9 to 12 months, Jason contacted Speaks Land Company and asked to see the property. Jason and his father Russell are both experienced in the purchasing of land and own businesses that own land in several states. Tim Speaks, the owner of Speaks Land Company, and Buce, the qualifying real-estate broker for Speaks Land Company’s office in Union Springs, met Jason and Russell at the property on October 11, 2007, when Macon County was experiencing a drought, and Speaks and Buce showed Jason and Russell the property. Jason testified in his deposition that, while Speaks and Buce were showing them the property, he and Russell noticed that the water level in the lake was low and that they asked Speaks and Buce why the water level was low and whether there was a problem with the lake. Jason testified that Speaks and Buce said that the water level was low due to the drought and that there was no problem with the lake.

After seeing the property, Jason signed a contract to purchase the property (“the contract”) and asked Buce to see if Clegg would agree to sell the property on the terms stated in the contract. The contract listed the purchasers as Jason and Russell and provided that the total purchase price was $1,950,000, that the contract would expire on November 26, 2007, that the sale had to be closed on or before that date, and that time was of the essence. In addition, the contract contained the following provisions:

“Condition of Property: Neither Seller nor any Agent makes any representations or warranties regarding the condition of the Property except to the extent expressly and specifically set forth herein. Purchaser has the obligation to determine, either personally or through or with a representative of Purchaser’s choosing, any and all conditions of the Property material to Purchaser’s decision to buy the Property, including without limitation!:] Subsurface condition, including the presence of absence of sinkholes, mining activity, wells, or buried tanks and other objects!;] soil conditions; utility and sewer or septic tank availability and condition. Except as otherwise stated in this Contract or addenda, Purchaser accepts the Property in its present MS IS’ condition.
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“NO ORAL STATEMENT, REPRESENTATION, PROMISE, OR INDUCEMENT SHALL HAVE ANY VALIDITY NOR SHALL BE A PART OF THIS AGREEMENT. All covenants, promises, and understandings written herein survive the closing. All rights, privileges, obligations and duties hereby granted or assumed shall inure to the benefit of and shall be binding upon successors, assigns, heirs, administrators and executors of the parties hereto. “DISCLAIMER
“The Seller and Purchaser hereby acknowledge and confirm that this contract states the entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties. The Seller and Purchaser further acknowledge that neither of them have relied upon the representations, covenants, statements, warranties, or advice of any Broker, or agent of any Broker related to the legal and tax consequences of this contract or any other aspect of this contract unless expressly stated herein, including but [876]*876without limitations, the square footage, acreage, condition of the house and fixtures, the operating conditions, the electrical, heating, plumbing, water heating system and appliances, the availabilities of utilities to the property or the investment potential or resale value of the property made to the Seller or the Purchaser by the Seller, Seller’s Broker or agent or buyer’s Broker or agent or any person whatsoever. Purchaser and Seller have entered into this agreement based upon their own inspection and personal knowledge of this property and any financial agreements concerning said property. The Seller and Purchaser both acknowledge that if any such matter as enumerated herein has been of concern to them, they have sought and obtained independent advice relating thereto.”

(Capitalization original; emphasis added.) The contract did not contain any representations regarding the condition of the lake. Indeed, the contract did not even mention the lake. Moreover, the contract did not state that the purchasers’ obligation to purchase the property was conditioned on the lake being free from defects or the purchasers’ investigating the lake and determining that its condition was satisfactory to them. Along with the contract, Jason gave Buce a check in the amount of $100,000, which was to be held in escrow as earnest money if Clegg agreed to sell the property on the terms stated in the contract.

Clegg agreed to sell the property on the terms stated in the contract and signed the contract on October 15, 2007. Jason testified in his deposition that, after Clegg signed the contract, he communicated to Buce that he wanted to close the sale on a specific date, although he could not remember what that specific date was, and that he and Russell wanted to have access to the property before the closing. Jason further testified that Buce later informed him that Clegg would not agree to close on the specific date Jason had requested and would not agree that Jason and Russell could have access to the property before the sale was closed.

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Bluebook (online)
99 So. 3d 872, 2012 Ala. Civ. App. LEXIS 165, 2012 WL 2362628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-v-clegg-land-co-alacivapp-2012.