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03/17/95 ENVIRONMENTAL WASTECONTROL v.

March 17, 1995

ENVIRONMENTAL WASTECONTROL, INC.
v.
BROWNING-FERRIS INDUSTRIES, INC., ET AL.



Appeal from Jefferson Circuit Court. (CVn-90-9359). Jack D. Carl, TRIAL JUDGE.

Cook, Hornsby, C. J., and Almon, Shores, Ingram, and Butts, JJ., concur.

The opinion of the court was delivered by: Cook

On Application for Rehearing

COOK, JUSTICE.

The opinion of August 12, 1994, is withdrawn, and the following is substituted therefor.

The plaintiff, Environmental WasteControl, Inc. ("EWC"), appeals from a summary judgment for the defendant Browning-Ferris Industries, Inc. ("BFI"), on EWC's claims of fraud, promissory fraud, breach of contract, breach of a joint venture agreement, and intentional interference with business relations. *fn1

The dispute in this case arises out of negotiations between EWC and BFI toward opening and maintaining a sanitary landfill in Blount County. The negotiations were extensive; however, the parties never entered a written agreement, and the letters exchanged between the parties indicate that the parties differed on several important aspects of the proposed venture.

EWC contends that while it was negotiating with BFI regarding the proposed landfill, BFI was, at the same time, working on its own with officials in Walker County with the hopes of operating a landfill there. EWC contends that it would be difficult for two landfills so close to be profitable. The record indicates that the parties began negotiations in 1988 and continued them through June 1990. During those negotiations, BFI made an offer to purchase from EWC a particular tract of land in Blount County that the parties were considering for the landfill; EWC held an option on that land. EWC refused BFI's offer to purchase at a certain price. EWC contends that at a time when the details were close to being ironed out, BFI "dropped EWC." EWC does agree, however, that the financial aspects of the details were never completely resolved.

"A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So.2d 186 (Ala. 1990). In determining whether a summary judgment was properly entered, this Court will view the evidence in a light most favorable to the nonmovant and will resolve against the moving party all reasonable doubts concerning the existence of a genuine issue of material fact. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala. 1991). In determining whether there was a genuine issue of material fact, this Court is limited to a consideration of the factors that were before the trial court when it ruled on the summary judgment motion. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So.2d 779 (Ala. 1990). However, this Court's reasoning is not limited to that applied by the trial court. Hill v. Talladega College, 502 So.2d 735 (Ala. 1987).

"Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmoving party has the burden of presenting evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So.2d 104 (Ala. 1989). Because this action was filed after June 11, 1987, the nonmovant must meet this burden by 'substantial evidence.' Alabama Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Under the substantial evidence test, the nonmovant must present '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. of Florida, 547 So.2d 870, 871 (Ala. 1989); § 12-21-12(d)."

Mims, Lyemance, & Reich v. UAB Research, 620 So.2d 594, 599 (Ala. 1993).

The record indicates that the parties conducted extensive negotiations. While they were negotiating, the state placed a moratorium on landfills in the state of Alabama; this moratorium complicated their dealings with one another. In June 1990, BFI formally notified EWC that BFI was no longer interested in a joint venture agreement with EWC. In August 1990, the Blount County Commission voted unanimously to negotiate a regional landfill agreement with BFI. The only other serious contender for the contract with Blount County was EWC, which by that time had a tentative agreement with Sanifill. BFI also signed a waste disposal contract with Walker County in October 1990, after "several months of negotiating"; this fact, EWC argues, is evidence that BFI did not intend to consummate an agreement with EWC.

The trial court properly entered the summary judgment for BFI with regard to the claim alleging breach of contract. The agreement, if there was a final agreement, was to include dealings with one another extending for approximately 20 years; it was never reduced to writing. Thus, the agreement would have been unenforceable because of the Statute of Frauds, § 8-9-1, Ala. Code 1975. Furthermore, the record indicates that although the parties offered proposals and counterproposals indicating that they may have been seriously interested in reaching an agreement, they, in fact, never reached one.

Likewise, the trial court properly entered the summary judgment with regard to the claim alleging breach of a joint venture agreement. It is true that ordinarily the existence of a joint venture agreement is a question for the jury. This Court ...


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