Cherry v. Pinson Termite & Pest Control, LLC, [Ms. 1140369, Apr. 29, 2016] __ So. 3d __ (Ala. 2016). Cherry appeals from a summary judgment entered in favor of Pinson Termite & Pest Control and Jerry Pinson in a case stemming from Cherry’s purchase of a used home in Montgomery that contained termite damage not disclosed in conformance with the Alabama Department of Agriculture and Industry’s regulations concerning Wood Infestation Inspection Reports, Ala. Admin. Code (Agriculture), Rule 80-10-9-.18. When Cherry learned after closing that his home was infested with termites, he made claim upon Mr. Pinson and the termite company and eventually reached a written agreement whereby Pinson would pay approximately $13,000 for repairs and attorney’s fees. However, the agreed-upon sum was never paid. Suit followed. Pinson and his company then moved for partial summary judgment contending they owed no duties under the Wood Infestation Report, the termite bond assigned at closing, or under the Department of Agriculture’s administrative rules. The Montgomery Circuit Court, after a hearing recited at some length in the opinion, granted summary judgments for both defendants on all claims and made the judgment final pursuant to Rule 54(b), Ala. R. Civ. P. Cherry’s motion to alter, amend, or vacate the summary judgments was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Cherry appealed.

The Supreme Court reversed, finding the Montgomery County Circuit Court erred in concluding Cherry’s claims were barred by the settlement agreement executed with Pinson because Pinson never performed under that agreement, i.e., he never paid the money owed. The Court ruled “if mutual promises be the mutual consideration of a contract, then each promise must be enforceable in order to render the other enforceable.” Ms. at *19, quoting Marcrum v. Embry, 291 Ala. 400, 404, 282 So. 2d 49, 52 (1973). By its terms, the contract was void because Pinson failed to make the required payment.

Additionally, the Court found questions of fact existed as to all plaintiff’s theories of duty so the summary judgment was reversed and the cause remanded.

Related Documents: Cherry v Pinson Termite 4-29-16

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