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CONTRACTS/FRAUD/EVIDENCE - BRANCH BANKING & TRUST CO. V. NICHOLS

Branch Banking & Trust Co. v. Nichols, [Ms. 1130631, Apr. 24, 2015] __ So.3d __ (Ala. 2015). The Supreme Court reverses an $11 million judgment entered by the Baldwin Circuit Court after a non-jury trial concerning claims that officers of Colonial Bank and its successor, BB&T, failed to provide renewal financing for a real estate development project. Engaging in a de novo review of the questions of law presented by the appeal, R&G, LLC v. RCH IV-WB, LLC, 122 So.3d 1253, 1256 (Ala. 2013) ("We review questions of law de novo"), the Court concluded that Alabama's Statute of Frauds, ¤ 8-9-2, Ala. Code 1975, precluded recovery for breach of contract claims because there were no written documents memorializing the alleged promises to carry the interest on the loan or to lend the real estate developer additional money to fund development of the real property. While the developer presented some communications with officers of the bank, they were insufficient to meet the requirements of the Statute of Frauds as set forth in DeFriece v. McCorquodale, 998 So.2d 465, 471 (Ala. 2008) ("Although a writing relied on to satisfy the statute of frauds need not be a complete contract, it must contain the essential terms of the alleged contract, 'namely, an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement.'"). Because the contract claims were barred by the Statute of Frauds, the developer's tort claims for fraud, misrepresentation, and negligence in failing to fund the loans were also barred. Holman v. Childersburg Bancorp., Inc., 852 So.2d 691, 699 (Ala. 2002) ("Where ... an element of a tort claim turns on the existence of an alleged agreement that cannot, consistent with the Statute of Frauds, be proved to support a breach-of-contract claim, the Statute of Frauds also bars proof of that agreement to support the tort claim."). The Court also rejected the argument that recovery was required under principles of equitable or promissory estoppel because "promissory estoppel [cannot] be used to enforce an oral agreement that [is] void under the Statute of Frauds." Durham v. Harbin, 530 So.2d 208, 213 (Ala. 1988). Finally, the Court reviewed the evidence supporting the counterclaim for the balance owed on the original loan and directed the Baldwin Circuit Court to enter judgment in favor of the lender on its counterclaim.

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