Referendum of Trust - Sham Affidavit Rule


G.R.L.C. Trust v. Garrison Decatur Crossings, LLC, [Ms. 1170315, June 15, 2018] __ So. 3d __ (Ala. 2018). This unanimous panel decision by Justice Sellers affirms the Morgan Circuit Court’s entry of summary judgment in favor of Garrison Decatur Crossings, LLC (Garrison Decatur) reforming the recorded memorandum of lease to include an Exhibit A containing the legal description of the property subject to the lease. As a consequence of the omission of Exhibit A, Defendant Franklin Land and Trust attempted to avoid the period of a 50-year ground lease exceeding 20 years. Ms. *3.

The Court found that Garrison Decatur established by clear and convincing evidence that the property description was omitted from the recorded memorandum of lease as a result of mutual mistake. The Court rejected the Trust’s argument that genuine issues of material fact precluded summary judgment. Ms. *15.

In support of its motion for summary judgment, Garrison Decatur submitted the deposition of Kenneth Lee, the Trustee, who executed the lease memorandum. Lee testified that the parties intended to attach a legal description of the subject property to the lease memorandum. Ms. *11. In opposition to the motion for summary judgment, the Trust submitted an affidavit from Lee that averred, among other things, that the Trust did not intend for the lease memorandum to contain the property description and that the Trust did not make any mistake with regard to the lease memorandum. Ibid.

The Court held that “the trial court properly struck those portions of Lee’s affidavit that were not based on personal knowledge, that purported to express opinions about the parties’ intentions that he was not qualified to express, and that attempted to color or qualify his earlier deposition testimony.” Ms. *12, citing McGough v. G&A, Inc., 999 So. 2d 898, 904 (Ala. Civ. App. 2007) (noting that “[t]he court may not consider deposition or affidavit testimony that directly contradicts earlier deposition or affidavit testimony without adequate explanation.”). Ms. *12.

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