Illegality of Contract - Judicial Notice - Municipal Ordinances - Opinion Testimony on the Law - Illegality Argument Raised for First Time on Appeal - Jackson v. Brewer


Jackson v. Brewer, [Ms. 2160099, Aug. 25, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In a unanimous decision by Judge Moore, (Thompson, P.J., Pittman, Thomas, and Donaldson, JJ., concur), the court affirms the trial court’s judgment on a jury verdict in favor of seller for breach of a contract to purchase real property. Pursuant to the contract, the property was to be subdivided with the seller retaining a portion of the property and the buyer purchasing a portion.

The defendant buyer argued the contract was illegal because the City of Andalusia, in which the property was located, had not approved subdivision of the subject property. The court first noted that “the policy against enforcing illegal contracts so strongly prevails in Alabama that a party can raise the issue even after a jury returns an adverse verdict based on the contract ....” Ms. *6. Based on the same strong policy considerations, a party may not be estopped to assert illegality of a contract. Ms. *6.

The court held that it could not consider the buyer’s illegality arguments based upon city ordinances because the ordinances were not part of the appellate record. Ms. *8. The trial court denied admission of the ordinances at trial, and the appellant did not argue error in the exclusion of the ordinances. Ms. *8, n. 2.

The court noted that pursuant to § 11-45-11, Ala. Code 1975, all courts must take judicial notice of ordinances of class 1 municipalities. Andalusia is not a class 1 municipality so that the court could not take judicial notice of the contents of Andalusia ordinances. Ms. *9.

The court rejected the buyer’s contention that witness testimony was conclusive on the meaning and application of city ordinances. The court applied “the general rule that a witness, whether a lay witness or an expert witness, should never be permitted to give his or her opinion on a question of law or upon the application of the law. See Ex parte Dial, 387 So. 2d 879, 880 (Ala. 1980).” Ms. *9-10.

The court refused to consider whether the buyer had waived objections to witness testimony concerning the meaning and application of the ordinances because the appellant buyer ordered only a portion of the trial transcript and “this court must presume that the missing portions support the verdict of the jury and the judgment of the trial court.” Ms. *10.

Finally, the court considered the buyer’s argument based upon § 11-52-33(a), Ala. Code 1975, even though the buyer did not cite or rely upon the statute in the trial court. Noting the strength of the rule that a party cannot use the courts to enforce an illegal contract, the court held that it could consider the effect of § 11-52-33(a) even though the buyer cited the statute for the first time on appeal. Ms. *10-11. The court rejected the buyer’s argument based on § 11-52-33(a) on the merits because the statute renders illegal transfers or sales of real property made “by reference to or exhibition of or by other use of a plat of subdivision before the plat has been approved by the municipal planning commission....” Ms. *11. A contract of sale violates § 11-52-33, and like statutes, “only when induced by specific reference to or exhibition of an unapproved plat or map.” Ms. *12. The contract at issue between Jackson and Brewer did not annex or reference a plat or map of an unapproved subdivision.

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