EX PARTE S. Mark BOOTH
v.
S. Mark Booth. In re: City of Guin
Page 648
[Copyrighted Material Omitted]
Page 649
Marion
Circuit Court, CV-17-900134.
Thomas
A. Woodall and R. Ryan Daugherty of Sirote & Permutt,
P.C., Birmingham, for petitioner.
T.
Kelly May, H. Cannon Lawley, and William Thompson of Huie,
Fernambucq & Stewart, LLP, Birmingham, for respondent.
STEWART,
Justice.
S. Mark
Booth petitions this Court for a writ of mandamus directing
the Marion Circuit Court ("the trial court") to
dismiss an action filed against him by the City of
Page 650
Guin ("the City"). We grant the petition in part,
deny it in part, and issue the writ.
Background
On
January 17, 2008, Booth and the City entered into a contract
entitled "Commercial Development Agreement"
("the agreement"). The agreement provided that the
City would sell Booth approximately 40 acres of real property
located in Marion County at a price of $5,000 per acre.
Booth, in turn, promised to subdivide the property into lots
for commercial development. The agreement included a
provision granting the City the right to repurchase the
property should Booth fail to develop the land within three
years following the execution of the agreement. Section 4.4
of the agreement, which set forth the duration of the
agreement, stated:
"(a) The covenants in this Agreement shall not
terminate until they have been fully performed or have
expired by their terms. All covenants, representations, and
warranties shall survive the closing of this Agreement and
the delivery of any deeds.
"(b) [Booth] agrees that [he] will proceed diligently
to develop the Site. In the event that the construction of
at least one commercial facility is not completed on the
Site within three (3) years from the Effective Date of this
Agreement, then, and in such event, the City may exercise
its option, herein granted, to purchase all portions of the
Site then still owned by [Booth] or any affiliate thereof
at and for a purchase price of $5,000 per acre, prorated
for portions of an acre."
The
agreement became effective on January 17, 2008, the date it
was executed by both parties. In January 2008, the City
purportedly executed a statutory warranty deed conveying the
property to Booth.[1]
On
December 11, 2017, the City sued Booth, asserting a claim for
specific performance under Section 4.4(b) of the agreement
and referring to that section as "an option to
repurchase" the property. The City alleged that Booth
had failed to construct at least one commercial facility on
the property within three years from the effective date of
the agreement. The City alleged that it had "timely
tendered the purchase price to [Booth] and requested a
conveyance of the real property described in the contract but
[that Booth] refused to accept the tender or to make the
conveyance."
On
January 7, 2018, Booth filed a motion to dismiss the
City's complaint pursuant to Rule 12, Ala. R. Civ. P.,
arguing that, although he had fulfilled his obligations under
the agreement by developing a hotel on the
property,[2] the City's complaint seeking to
specifically enforce the repurchase of the property pursuant
to its option to repurchase in Section 4.4(b) of the
agreement was time-barred by the two-year statutory
limitations period for such options in § 35-4-76(a),
Ala. Code 1975. On January 19, 2018, the trial court entered
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an order setting Booth's motion to dismiss for a hearing
to be held on June 27, 2018.
On June
11, 2018, the City filed an amended complaint in which it
restated verbatim its claim for specific performance of
Section 4.4(b) and asserted additional claims against Booth
of rescission, fraud, and breach of contract. The City's
rescission claim consisted of a single statement in which the
City alleged that it, "being a municipal corporation,
did not possess lawful authority to dispose of real property
to [Booth]." Regarding the fraud claim, the City alleged
that it had detrimentally relied on Booth's allegedly
false assurances in the agreement that he would "proceed
diligently" toward the commercial development of the
property and that Booth "failed to construct a
commercial facility upon the site since taking title in 2008.
Due to that failure, [the City] has elected to exercise its
right of repurchase, but [Booth] has failed and refused to
grant said right of repurchase, even though [the City] has
tendered the purchase price." As to the
breach-of-contract claim, the City alleged that Booth
"has breached the agreement by failing to construct at
least one commercial facility within three (3) years from
January 17, 2008. [The City] has offered to purchase all
portions of the site owned by [Booth], which [Booth] has
refused."
On June
24, 2018, Booth filed a motion to dismiss the City's
amended complaint pursuant to Rule 12 in which he
incorporated the arguments he made in the motion to dismiss
the original complaint regarding the City's
specific-performance claim. He also requested dismissal of
the City's fraud and breach-of-contract claims on the
ground that those claims were time-barred by the applicable
statute of limitations. He further sought dismissal of the
City's rescission claim on the ground that the City
possessed the legal authority under the law to sell and
convey real property. On June 25, 2018, the trial court set
Booth's second motion to dismiss for a hearing to be held
on June 27, 2018, the same date the trial court had set to
hear Booth's motion to dismiss the original complaint. On
August 13, 2018, the trial court entered an order denying
Booth's motion to dismiss. Booth filed a timely petition
for a writ of mandamus with this Court.
Standard
of Review
A writ
of mandamus is an extraordinary remedy available only when
the petitioner can demonstrate: "`(1) a clear legal
right to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court.'" Ex parte
Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex
parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001)).
Analysis
Booth
contends that Section 4.4(b) of the agreement contains an
option reserved by the City to repurchase the property and
that the City's claim for specific performance of Section
4.4(b) was filed after the expiration of the two-year
statute-of-limitations period for enforcing option contracts
under § 35-4-76(a). Booth also argues that the
City's fraud and breach-of-contract claims are
time-barred by § 6-2-38( l ) and ยง 6-2-34,
respectively. Booth further contends that the City's
claim for rescission is due to be dismissed because, he says,
the City has authority under Alabama law to enter into
contracts for the sale of land. The City asserts that ...