Karen H. Jackson
Jeannan C. Brewer
from Covington Circuit Court (CV-13-900164)
H. Jackson appeals from a judgment entered by the Covington
Circuit Court ("the trial court") awarding Jeannan
C. Brewer ("Brewer") damages in the amount of $5,
600, plus attorney's fees in the amount of $4, 502.83, on
Brewer's breach-of-contract claim. We affirm the trial
October 2, 2013, Brewer filed a complaint against Jackson,
seeking damages for an alleged breach of a purchase
agreement, which provided that John Brewer would purchase
certain commercial property owned by Jackson. Brewer alleged
that the property made the subject of the purchase agreement
was a portion of a building owned by Jackson that was to be
subdivided along an interior wall, with the property lying to
the north of the interior wall to be sold to John Brewer and
the property lying south of the interior wall to be retained
by Jackson. Brewer alleged that she was the assignee of John
Brewer and that she had paid a $5, 000 deposit to secure the
purchase agreement. Brewer asserted that Jackson had breached
the purchase agreement by refusing to close on the sale of
the property despite repeated requests from Brewer, and she
requested damages and attorney's fees. Jackson apparently
filed a counterclaim requesting that Brewer pay her
attorney's fees based on the terms of the purchase
agreement. Following a trial, the jury returned a verdict in
favor of Brewer on May 26, 2016, and awarded her $5, 600 in
damages and reasonable attorney's fees "as called
for by the [purchase agreement], " to be determined by
the trial court.
29, 2016, Jackson filed a motion essentially requesting that
the trial court enter judgment as a matter of law in her
favor; Jackson asserted that the purchase agreement was
"illegal and void due to its violation of the Andalusia
City's Code subdivision regulations and § 11-52-30[,
] Ala. Code 1975." Specifically, Jackson relied on the
testimony of Micah Blair, the assistant director of Planning
and Development for the City of Andalusia ("the
City"), who testified that Jackson's property could
not be subdivided without approval of the City, that no one
had applied to subdivide the property, and that the proper
authorities had not approved the subdivision of the property.
In support of her motion, on September 6, 2016, Jackson filed
two additional motions seeking to supplement the record --
one to admit the affidavit of Blair, in which he summarized
his trial testimony, and a second to admit copies of certain
ordinances of the City.
September 21, 2016, the trial court entered separate orders
denying the motions to supplement the record and denying the
motion for the entry of a judgment as a matter of law; it
also entered a judgment in favor of Brewer, awarding her
damages in the amount of $5, 600 and attorney's fees in
the amount of $4, 502.83. On November 2, 2016, Jackson filed
her notice of appeal.
appeal, Jackson argues that the trial court erred in entering
a judgment for Brewer despite the illegality of the purchase
addressing the merits of the appeal, we first reject
Brewer's contention that Jackson waived the illegality
issue and that she was estopped to assert the illegality of
the purchase agreement by relying on the agreement in her
counterclaim. Because an illegal contract is void ab initio
and will not support a cause of action or a judgment, a party
can raise the illegality of a contract at any time.
Kilgore Dev., Inc. v. Woodland Place, LLC, 47 So.3d
267, 271 (Ala. Civ. App. 2009). In Limestone Creek
Developers, LLC v. Trapp, 107 So.3d 189, 193-94 (Ala.
2012), our supreme court explained:
"[T]he judicial system may not be used to enforce
illegal contracts. See, e.g., Ex parte W.D.J., 785
So.2d 390, 393 (Ala. 2000) ('Moreover, this Court has
held that "[a] person cannot maintain a cause of action
if, in order to establish it, he must rely in whole or in
part on an illegal or immoral act or transaction to which he
is a party." Hinkle v. Railway Express Agency,
242 Ala. 374, 378, 6 So.2d 417, 421 (1942). In Oden v.
Pepsi Cola Bottling Co., 621 So.2d 953 (Ala. 1993), this
Court stated that the purpose of the Hinkle rule is
to ensure that "'those who transgress the moral or
criminal code shall not receive aid from the judicial branch
of government.'" 621 So.2d at 955....' (emphasis
omitted)). See also Kilgore Dev., Inc. v. Woodland Place,
LLC, 47 So.3d 267, 271 (Ala. Civ. App. 2009) (holding
that subdivision-control statutes were implemented to protect
the public, not to raise revenue, and that contracts
violating those statutes are accordingly void).
"Indeed, the policy behind this principle has been
deemed to be of such importance that contracts found to
violate the law will not be enforced even if, as has been
alleged in this case, the defaulting party failed to properly
plead the affirmative defense of illegality. Brown v.
Mountain Lakes Resort, Inc., 521 So.2d 24, 26 (Ala.
1988) ('"'It is the rule ... in Alabama and a
few other jurisdictions to not enforce a contract in
violation of the law and to deny the plaintiff the right to
recover upon a transaction contrary to public policy, even if
the invalidity of the contract or transaction be not
specially pleaded and is developed by the defendant's
evidence.'"' (quoting National Life &
Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 249,
170 So. 84, 86 (1936), quoting in turn Shearin v.
Pizitz, 208 Ala. 244, 246, 94 So. 92, 93 (1922)))."
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, as is the case in other jurisdictions. See
Pacific Wharf & Storage Co. v. Standard Am.
Dredging Co., 184 Cal. 21, 24, 192 P. 847, 849 (1920)
(holding that the illegality of a contract can be raised in a
posttrial motion). Thus, we reject Brewer's contention
that Jackson waived the illegality defense by failing to
raise it until after the jury returned its verdict.
on the same policy considerations, Alabama law holds that a
party cannot be prevented from asserting the illegality of a
contract based on the theory of estoppel. SeeCooper v. Johnston, 283 Ala. 565, 569, 219 So.2d
392, 396 (1969) ("Vitality cannot be injected into an
illegal transaction by way of estoppel."). Brewer
alleges that Jackson relied on the purchase agreement to
support her counterclaim for attorney's fees. The record
does not contain a copy of the counterclaim, so we cannot
discern whether, in fact, Jackson was seeking to enforce an
attorney-fee provision in the purchase agreement, although
Jackson seems to acknowledge as much in her brief to this
court. See Roberts v. Roberts, 424 So.2d 644, 645
(Ala. Civ. App. 1982) ("The record cannot be factually
enlarged, changed, altered or varied upon appeal by
statements appearing in briefs of counsel, but the record on
appeal must disclose the facts upon which the alleged error
is founded before such an error may be considered.").
Nevertheless, we hold ...