FISHER V. COMER PLANTATION, INC.
772 So. 2d 455 (2000)
NATURE OF THE CASE: Fisher (P) appealed a summary judgment for Comer (D) on P's claim for
fraud, fraudulent suppression, negligent misrepresentation, and breach of fiduciary duty.
FACTS: P, a lawyer, knew nothing about Alabama real-estate markets, so he contacted
Locators for assistance in purchasing land. Speaks, an agent for Locators, returned P's
telephone call. P conveyed his wants and Speaks eventually sent P information regarding
various properties, including Comer Plantation, a 2600-acre antebellum plantation. Speaks
told P that Comer Plantation had been on the market for a long time and that the sellers
would probably accept a price that P would find reasonable. P agreed to an inspection. On
arrival Speaks provided him with a real-estate appraisal that had been prepared by Roger
Pugh for the benefit of Paul Thomas, who was the owner of Locators and a stockholder in
Comer Plantation, Inc. The report, addressed to SouthTrust Bank, estimated the value of
Comer Plantation to be $919,000. On inspection, the property was in very poor condition.
Speaks advised him to make an offer on the property 'as-is.' Speaks again told him that the
owners wanted to sell the property as soon as they could. Speaks suggested that P should
offer between $500,000 and $600,000 for the property 'as-is.' After a second day of
inspecting the property, Speaks introduced P to Paul Thomas. Speaks never told P that Thomas
was also his employer. P offered $500,000 for the property 'as-is.' Thomas refused to take
the offer to the other owners. Speaks said he would take the offer to the other owners. P
said he was no longer interested and returned to North Carolina. Billy Pritchard, a
Birmingham lawyer who was also a stockholder in Comer Plantation, Inc., telephoned P,
apologized for Thomas's conduct, and told P that he was the only true representative of the
owners in regard to a sale. P began to negotiate based on the appraisal figure of $919,000.
Speaks had an active part in making the sales contract. P and Pritchard agreed on a price of
$710,000. Pritchard sent Fisher a contract, which he signed and returned. Pursuant to the
contract, Fisher tendered a check for $50,000 earnest money to be deposited in an escrow
account maintained by Locators. P's personal banker go the paper work and then quickly
discovered an error in addition that had caused the estimated appraisal to be nearly
$100,000 greater than the underlying numbers supported. P immediately telephoned Pritchard,
notified him of the error, and told him that he no longer wished to be bound by the contract
because, he said, the negotiations had been premised on a faulty estimate. P also demanded
the return of his $50,000. Pritchard checked the appraisal, confirmed the error, and
promised to investigate it. Pugh claimed the error was typographical. P questioned the
explanation. P again demanded the return of his $50,000, but Speaks refused to return it.
Comer Plantation, Inc., and its stockholders, then filed a declaratory-judgment action
against Locators. P was not notified and did not discover that it had been filed and
adjudicated until after discovery in the present case had commenced. The Jefferson Circuit
Court held that the contract had been breached and ordered that the $50,000 be disbursed
among the owners of Comer Plantation. Consequently, the $50,000 was removed from escrow and
was distributed to the owners of Comer Plantation, which included Thomas, according to the
terms of the order. P filed this lawsuit to recover the $50,000 down payment and to recover
other damages, based on claims of fraudulent misrepresentation, suppression, breach of
fiduciary duty, and negligence. The court granted a summary judgment to Ds. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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