part performance exception in Alabama

2010In support of this argument, DeFriece and Durst cite the following passage from Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 427 (Ala.1989): "`It is a well-established principle that equity will intervene and render the Statute of Frauds defense inapplicable in a contract action "`"even though the part performance requirement is not met, when fraud operates from the beginning—that is, when the breaching party procured the land ... with no intent to perform the oral agreement admitted to have been made." "` Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).' "We did not, in Bruce

2010In support of this argument, DeFriece and Durst cite the following passage from Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 427 (Ala.1989): "`It is a well-established principle that equity will intervene and render the Statute of Frauds defense inapplicable in a contract action "`"even though the part performance requirement is not met, when fraud operates from the beginning—that is, when the breaching party procured the land ... with no intent to perform the oral agreement admitted to have been made." "` Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).' "We did not, in Bruce

2008Essentially, the part-performance exception applies ‘ “ ‘ “only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” ’ Rentz v. Grant, 934 So.2d [368] at 374 [ (Ala.2006) ] (quoting Holman v. Childersburg Bancorporation, Inc., 852 So.2d [691] at 698 [ (Ala.2002) ], quoting, in turn, Quinlivan v. Quinlivan, 269 Ala. 642, 645 , 114 So.2d 838, 840 (1959)) (emphasis added in Holman).” Fausak’s Tire Ctr., Inc. v. Blanchard, 959 So.2d 1132, 1143 (Ala.Civ.App.2006) (footnote omitted).

2008Essentially, the part-performance exception applies ‘ “ ‘ “only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” ’ Rentz v. Grant, 934 So.2d [368] at 374 [ (Ala.2006) ] (quoting Holman v. Childersburg Bancorporation, Inc., 852 So.2d [691] at 698 [ (Ala.2002) ], quoting, in turn, Quinlivan v. Quinlivan, 269 Ala. 642, 645 , 114 So.2d 838, 840 (1959)) (emphasis added in Holman).” Fausak’s Tire Ctr., Inc. v. Blanchard, 959 So.2d 1132, 1143 (Ala.Civ.App.2006) (footnote omitted).

2011See Ex parte Ramsay, 829 So.2d at 155 (holding that the executed-contract exception to the Statute of Frauds constituted a “matter in avoidance” of the affirmative defense of the Statute of Frauds and, therefore, that it had to be proved by the proponent of that exception); and Houston v. McClure, 456 So.2d 788, 789 (Ala.1984) (holding that, because there was no writing memorializing a contract for the dale of land that comported with the re- quirements of the Statute of Frauds, the parties seeking to enforce the contract could prevail only if they proved that the part-performance exception to

1985Last year, this Court in Houston v. McClure , 456 So.2d 788 (Ala. 1984), upheld a court's finding that claimants fell within the part performance exception to the Statute of Frauds.

2010In support of this argument, DeFriece and Durst cite the following passage from Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 427 (Ala.1989): “ ‘It is a well-established principle that equity will intervene and render the Statute of Frauds defense inapplicable in a contract action “ ‘ “even though the part performance requirement is not met, when fraud operates from the beginning — that is, when the breaching party procured the land ... with no intent to perform the oral agreement admitted to have been made.” “ ‘Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).’ “We did not, in

2010In support of this argument, DeFriece and Durst cite the following passage from Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 427 (Ala.1989): "`It is a well-established principle that equity will intervene and render the Statute of Frauds defense inapplicable in a contract action "`"even though the part performance requirement is not met, when fraud operates from the beginning—that is, when the breaching party procured the land ... with no intent to perform the oral agreement admitted to have been made." "` Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).' "We did not, in Bruce

2011See Smith v. Equifax Services, Inc., 537 So.2d 463, 465 (Ala.1988).

2011See Ex parte Ramsay, 829 So.2d at 155 (holding that the executed-contract exception to the Statute of Frauds constituted a “matter in avoidance” of the affirmative defense of the Statute of Frauds and, therefore, that it had to be proved by the proponent of that exception); and Houston v. McClure, 456 So.2d 788, 789 (Ala.1984) (holding that, because there was no writing memorializing a contract for the dale of land that comported with the re- quirements of the Statute of Frauds, the parties seeking to enforce the contract could prevail only if they proved that the part-performance exception to

2011See Ex parte Ramsay, 829 So.2d at 155 (holding that the executed-contract exception to the Statute of Frauds constituted a “matter in avoidance” of the affirmative defense of the Statute of Frauds and, therefore, that it had to be proved by the proponent of that exception); and Houston v. McClure, 456 So.2d 788, 789 (Ala.1984) (holding that, because there was no writing memorializing a contract for the dale of land that comported with the re- quirements of the Statute of Frauds, the parties seeking to enforce the contract could prevail only if they proved that the part-performance exception to

2011See Employees of the Montgomery County Sheriff’s Dep’t v. Marshall, 893 So.2d 326, 331 (Ala.2004) (holding that, when a trial court commits an error of law in its judgment and that error has not been the subject of a previous objection and ruling, an objection to that error must be presented to the trial court in a timely Rule 59(e), Ala. R.

2010Accordingly, DeFriece and Durst's argument in this regard is foreclosed by our holding in Bruce. "____________ "2 We did in Bruce expressly overrule Hinkle v. Cargill, Inc., 613 So.2d 1216, 1220 (Ala.1992), in which this Court had stated: "`[The appellee] argues that a fraud action cannot be based on the breach of an unwritten contract that is void under the Statute of Frauds.

2008Essentially, the part-performance exception applies ‘ “ ‘ “only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” ’ Rentz v. Grant, 934 So.2d [368] at 374 [ (Ala.2006) ] (quoting Holman v. Childersburg Bancorporation, Inc., 852 So.2d [691] at 698 [ (Ala.2002) ], quoting, in turn, Quinlivan v. Quinlivan, 269 Ala. 642, 645 , 114 So.2d 838, 840 (1959)) (emphasis added in Holman).” Fausak’s Tire Ctr., Inc. v. Blanchard, 959 So.2d 1132, 1143 (Ala.Civ.App.2006) (footnote omitted).

2008See Dozier v. Troy Drive-In-Theatres, Inc., 265 Ala. 93, 100 , 89 So.2d 537, 543 (1956) (stating that when a portion of the purchase price has been paid and “ ‘the purchaser or lessee [has been] put in possession, or [has taken] possession with the acquiescence of the vendor or lessor, of a definite tract of land, ... any uncertainty or indefiniteness in the description thereof is removed’ ”) (quoting 37 C.J.S., Statute of Frauds § 190).

2008See Dozier v. Troy Drive-In-Theatres, Inc., 265 Ala. 93, 100 , 89 So.2d 537, 543 (1956) (stating that when a portion of the purchase price has been paid and “ ‘the purchaser or lessee [has been] put in possession, or [has taken] possession with the acquiescence of the vendor or lessor, of a definite tract of land, ... any uncertainty or indefiniteness in the description thereof is removed’ ”) (quoting 37 C.J.S., Statute of Frauds § 190).

1997See Knight v. Smith , 250 Ala. 113 , 114 , 33 So.2d 242 , 243 (1947).

1997See Knight v. Smith , 250 Ala. 113 , 114 , 33 So.2d 242 , 243 (1947).