Ex Parte Awtrey Realty Co., Inc.

827 So. 2d 104, 2001 WL 1658318
CourtSupreme Court of Alabama
DecidedDecember 28, 2001
Docket1000769 and 1000804
StatusPublished
Cited by26 cases

This text of 827 So. 2d 104 (Ex Parte Awtrey Realty Co., Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Awtrey Realty Co., Inc., 827 So. 2d 104, 2001 WL 1658318 (Ala. 2001).

Opinion

827 So.2d 104 (2001)

Ex parte AWTREY REALTY COMPANY, INC. and
Ex parte Awtrey Development Company, Inc.
(In re Susan Y. Moore v. Awtrey Realty Company, Inc., et al).

1000769 and 1000804.

Supreme Court of Alabama.

December 28, 2001.

*105 C. Peter Bolvig of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham, for petitioner Awtrey Realty Company, Inc.

H.C. Ireland III and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for petitioner Awtrey Development Company, Inc.

Thomas E. Baddley, Jr., and Jeffrey P. Mauro of Baddley & Mauro, L.L.C., Birmingham, for respondent.

BROWN, Justice.

Awtrey Realty Company, Inc. ("Awtrey Realty"), and Awtrey Development Company, Inc. ("Awtrey Development"), petitioned this Court for certiorari review of the Court of Civil Appeals' opinion reversing the summary judgments entered in their favor by the Jefferson Circuit Court. We granted the petitions, and we reverse the judgment of the Court of Civil Appeals and remand both cases.

Factual Background

In 1996, Awtrey Development entered into an agreement with Regency Homes ("Regency") to develop a subdivision known as "The Arbors at Lake Crest" or "The Arbors." Awtrey Development owned the land that was to be developed. The agreement provided that Awtrey Development would clear land it owned in the subdivision and prepare the land for the construction of homes. Regency would then construct homes on the land cleared and prepared by Awtrey Development; those homes would be offered for sale. In a separate oral agreement, Regency gave Awtrey Realty the exclusive right to list and sell the homes in The Arbors. Under that agreement, Regency retained the *106 right to terminate Awtrey Realty's exclusive listing and selling privileges at any time.[1]

Awtrey Realty later entered into a "Commission Agreement" with Susan Y. Moore, an independent real estate agent, pursuant to which Moore was to serve as one of Awtrey Realty's sales agents for The Arbors. An attachment to the commission agreement stated, in pertinent part:

"EARNED COMMISSION
"Beginning at first closing in the Arbors section of the Lake Crest community and continuing for life of project, the Sales Associate [Moore] will be paid a straight 75% split on selling side of all commissions earned for in-house sales. Note: Associate must discuss all possible commission reductions with Management, or commission earned will automatically divert [sic] to a 50/50 split basis."

The attachment further provided that Moore would earn a "Project End Bonus" if she remained until the "last unit [was] closed in [the] community."

In 1998, Awtrey Development experienced financial problems because of a substantial debt incurred in the ongoing development of The Arbors. At that time, Awtrey Development owned approximately 50 lots in the subdivision that were undeveloped and that remained unsold. To offset some of its debt, Awtrey Development sold the 50 undeveloped lots to Regency at a purchase price that was lower than the price of the developed lots.

Dwight Sandlin, the president of Regency, had become dissatisfied with the slow sales of homes in The Arbors. Shortly after Regency had purchased the undeveloped lots from Awtrey Development, Sandlin informed Marie Awtrey, the president of Awtrey Realty, that Regency was terminating Awtrey Realty's exclusive listing arrangement for the houses in The Arbors. When Sandlin terminated Awtrey Realty's listing agreement with Regency, Awtrey Realty terminated Moore as an exclusive sales associate for The Arbors. Awtrey Realty and Regency offered Moore other sales associate positions within their companies, which involved selling real estate other than houses at The Arbors, but Moore rejected the offers.

On September 24, 1998, Moore sued Awtrey Realty and Awtrey Development, claiming damages for breach of contract, misrepresentation, tortious interference with contractual relations, and negligent, willful, or wanton failure to honor the commission agreement. On February 22, 2000, the Jefferson Circuit Court entered summary judgments for Awtrey Realty and Awtrey Development. Moore appealed the summary judgments as to only two of her claims: the breach-of-contract claim against Awtrey Realty and the tortious-interference claim against Awtrey Development. The Court of Civil Appeals, in a plurality opinion, reversed the Jefferson Circuit Court. See Moore v. Awtrey Realty Co., 827 So.2d 98 (Ala.Civ.App.2000). Awtrey Realty and Awtrey Development appeal to this Court, arguing that the Court of Civil Appeals' decision conflicts with existing Alabama caselaw.

*107 Discussion

In reviewing the Court of Civil Appeals' reversal of a summary judgment, we apply the following standard set forth in Ex parte Alabama Department of Transportation, 764 So.2d 1263 (Ala.2000):

"[A] party moving for a summary judgment [under Rule 56, Ala. R. Civ. P.,] is entitled to such a judgment if that party meets the following two-tiered standard: 1) There must be no genuine issue of material fact and 2) the movant must be entitled to judgment as a matter of law. Rule 56(c); Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). Furthermore this Court must view all the evidence in a light most favorable to the nonmovant and must resolve all reasonable questions from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991); see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
"The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So.2d at 257. If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by presenting `substantial evidence' creating a genuine issue of material fact. Id. `Substantial evidence' is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)."

764 So.2d at 1266.

I.

Awtrey Realty contends that the Court of Civil Appeals erroneously concluded that its commission agreement with Moore was ambiguous. Moore argues in her brief that the contract clearly states that she was "entitled to list and sell homes on all 99 lots in The Arbors, and thereby earn commission thereon." Awtrey Realty contends that Moore's interpretation of the commission agreement is not reasonable and that it agreed to share with Moore only those commissions that were earned from in-house sales. Awtrey Realty argues that once its listing agreement with Regency was terminated, it no longer earned commissions from sales of homes in The Arbors; thus, it argues, after that point it no longer had commissions to share with Moore. The Court of Civil Appeals concluded that because Moore and Awtrey Realty presented conflicting interpretations of the commission agreement, the agreement was ambiguous.

As this Court stated in P & S Business, Inc. v. South Central Bell Telephone Co., 466 So.2d 928 (Ala.1985), "[s]ummary judgment is appropriate in a breach of contract action where the contract is unambiguous and the facts undisputed." 466 So.2d at 931-32. "As a general rule, whether or not a written contract is ambiguous is a question of law for the trial court." Upton v.

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827 So. 2d 104, 2001 WL 1658318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-awtrey-realty-co-inc-ala-2001.