Court Case Record Steve EVANS. v. W.G. WALDROP. 2150342 UID(0eab)

Steve EVANS. v. W.G. WALDROP. Court Case Record

Court Case Number: 2150342

Case Number2150342
Case TitleSteve EVANS. v. W.G. WALDROP.
Case TypeCriminal
StateAlabama, AL
CountyAll Counties
CourtCourt of Civil Appeals of Alabama.
Court Address
Field Date8/12/2016
Close Date


Steve EVANS.Appellee/Petitioner
W.G. WALDROP.Appellant/Defendant
Steve Evans appeals from a judgment of the Walker Circuit Court in favor of W.G. Waldrop for unpaid rent. We affirm the trial court's judgment.
Procedural History
In 1999, Evans leased from Waldrop a piece of commercial real property (“the property”), which was part of a larger commercial shopping center. The lease term commenced on April 1, 1999, and ended on March 1, 2004. Evans stopped paying rent after May 2000. Accordingly, Waldrop sued Evans, alleging a breach of the lease agreement. In defense, Evans asserted that Waldrop had unreasonably withheld his consent to a sublease of the property.
After a nonjury trial, the trial court entered a judgment in favor of Waldrop, awarding him unpaid rent and prejudgment interest. There are no specific findings of fact contained in that judgment. In response to a postjudgment motion filed by Evans, the trial court entered an order vacating the judgment, but expressly declining to rule on Evans's request for a new trial; in that same order, the trial judge recused himself from further proceedings in the matter, leaving the issue of whether to grant a new trial for the successor judge. Waldrop appealed, arguing that the trial court had erred in vacating the judgment and that the trial-court judge had erred in recusing himself. This court dismissed Waldrop's appeal as having been taken from a nonfinal judgment. See Waldrop v. Evans, 181 So.3d 355 (Ala.Civ.App.2015).
After this court dismissed Waldrop's appeal, the action was assigned to a successor trial-court judge, who entered a judgment stating that he had reviewed the trial transcript, the exhibits submitted during the trial, and the parties' pleadings and legal memorandums. Based on a review of those materials, the trial court awarded Waldrop $36,000 in damages for unpaid rent. After the parties submitted postjudgment motions, the trial court entered an order amending its judgment in order to also award Waldrop prejudgment interest. Evans appealed.
There has been no argument that the successor trial-court judge erred in entering a judgment based on his review of the trial transcript and the evidence submitted during the trial, which had been presided over by the predecessor trial-court judge. See Rule 63, Ala. R. Civ. P. (governing further proceedings when “the judge is unable to proceed” and stating that, “[i]n a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed” (emphasis added)). See generally Kurtis A. Kemper, Annotation, Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 84 A.L.R. 5th 399 (2000) (collecting cases in which courts have held that parties may consent to a successor judge's rendering a decision based on evidence heard by a predecessor judge).1
Although the successor trial-court judge based his judgment on a review of the trial transcript and documentary evidence, Evans asserts in his appellant's brief to this court that this appeal is from “a trial court's judgment based on its assessment of disputed evidence and testimony.” Thus, he invites this court to apply the deferential ore tenus standard of review to the trial court's determinations of fact.2
Precedent, however, indicates that, when an action is submitted on briefs, transcribed testimony, and documentary evidence, appellate courts typically do not apply the ore tenus rule. See Jackson v. Strickland, 808 So.2d 993, 995 (Ala.2001) (“[W]here ‘[t]he testimony was taken by depositions' or was taken in a previous proceeding, ‘[t]here is ․ no presumption of the correctness of the conclusion of the circuit court.’ ” (quoting Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900 (1929))); and Hanks v. Spann, 33 So.3d 1234, 1237 (Ala.Civ.App.2009) (“Because Judge Carter reviewed the record of the bench trial conducted by Judge Aderholt and heard no oral testimony, the ore tenus rule does not apply to our review of the judgment he rendered.”). Regardless, however, of the applicable standard of review, we agree with the trial court's judgment.
Evans does not dispute that he stopped paying rent to Waldrop after May 2000, which was before the lease term expired. Rather, Evans argues that he cannot be held liable for breaching the lease agreement because, he asserts, Waldrop refused to allow Evans to sublease the property to a new tenant, who proposed to operate an “electronic-bingo parlor” on the property.3 Although the lease agreement between Waldrop and Evans contained a provision prohibiting Evans from assigning the lease or subleasing the property without Waldrop's written consent, that provision also provided that Waldrop's consent “may not be unreasonably withheld.” The trial court found that Waldrop's refusal to consent to the sublease was reasonable.
In June 2000, after he stopped paying rent, Evans moved off of the property. Waldrop testified that, thereafter, he began searching for a new tenant; that he negotiated with multiple prospective tenants, including automotive-parts sellers and furniture dealers; but that he was unable to immediately re-lease the property.4
According to Waldrop, Evans telephoned him at some point and talked to him about the possibility of leasing the property to someone who wanted to operate an “arcade” on the property. Unbeknownst to Waldrop, Evans had recorded that conversation (as well as a subsequent conversation), and the recording revealed that Evans had informed Waldrop that Evans had been contacted by a person who wanted “to put a game room” on the property.
The recording indicates that, after Evans had mentioned the “game room,” Waldrop stated that he did not want anything too “wild” on the property and that he did not want any “carrying on” on the property. He stated that, if the business was “up to par,” he would not object.
Evans testified that the person he had spoken to about a “game room” was Christine Miller's husband. Miller testified that she had wanted to operate an electronic-bingo parlor on the property. She described the business to the trial court as “an arcade where, you know, they have the machines, bingo machines and different ones. It's adult machines, you know.” Miller testified further that she had called Waldrop on the telephone, that she had “explained to him exactly what kind of business it was to be,” that Waldrop had said “that was fine with him,” and that Waldrop had “agreed to everything and ․ knew exactly what [Miller] was going to do there.”
According to Miller, after she had spoken to Waldrop, she was under the impression that she would be allowed to sublease the property. Waldrop, on the other hand, testified that he did not know who Miller was and that he could not recall having had any conversations with her. Waldrop did not remember telling Miller that she could sublease the property. As Evans points out, the trial court found that “[t]he [proposed] sub-lease was contingent on [Waldrop's] agreement which at first was given but quickly was revoked.” It is not clear whether, in making that finding, the trial court relied on Miller's testimony or on the referenced recorded telephone conversation between Evans and Waldrop.
Miller also testified that she and Evans had signed a sublease. It appears that the testimony of Miller and Evans indicates that they executed the sublease after Miller's alleged telephone conversation with Waldrop. Miller also testified that she had borrowed funds, had opened a bank account, and had obtained a business license in preparation for opening the electronic-bingo parlor. Finally, Miller testified that she had given Evans a check in the amount of $2,400 for one month's rent and a “security deposit.”
Evans testified that he had informed Waldrop that Miller had executed a sublease and that, “within probably two or three days,” Waldrop told Evans that “he had changed his mind.” One of the recorded telephone conversations between Waldrop and Evans indicates that Waldrop's other tenants had expressed disapproval of Miller's operating her business on the property.
According to Evans, in response to Waldrop's having allegedly changed his mind, Evans stated that he would ask Miller if she “want[ed] to give up the lease.” Evans testified that, in response to that inquiry, Miller had “said she didn't want to be [on the property] if it was going to cause a conflict,” that Evans had returned Miller's security deposit, and that Miller had returned the keys to the property to Evans.
Consistent with Evans's testimony, Miller testified that Evans had called her on the telephone and stated that “Waldrop had changed his mind and [that] he didn't want that type of business in his building.” Miller also confirmed that Evans had returned her security deposit and that she had returned the keys to the property. She agreed that doing so “pretty much ․ end[ed] the situation.”
Evans argues first that Waldrop could not “withhold” his consent to the sublease because, Evans asserts, Waldrop actually consented to the sublease but later “withdrew” that consent. We note initially that the original lease required Waldrop's consent to be expressed in writing, and it is undisputed that Waldrop never provided a written document exhibiting his consent to the sublease. Evans does not expressly argue, in his appellant's brief to this court, that Waldrop waived any rights he had under the lease by orally consenting to the sublease, and he does not point to any authority governing waiver. Although Evans makes a waiver argument in his reply brief, this court typically will not consider arguments made for the first time in a reply brief. Meigs v. Estate of Mobley, 134 So.3d 878, 889 n. 6 (Ala.Civ.App.2013).
In any event, assuming Waldrop's alleged oral consent was sufficient, the evidence clearly indicates that, after Waldrop “changed his mind,” Evans and Miller rescinded the sublease they had executed. See L.B. Whitfield, III Family LLC v. Whitfield, 150 So.3d 171, 188 (Ala.2014) (indicating that parties to a contract may rescind their agreement by mutual consent). Evans addresses that rescission in his appellant's brief to this court only by asserting that Waldrop “forced” Evans to rescind the sublease. The evidence, however, does not support the suggestion that Waldrop exercised undue pressure on Evans. Rather, the evidence indicates that Waldrop expressed that the other tenants were unhappy with Miller's business being located on the property, that Evans responded that he would “ask [Miller if] she want[ed] to give up the lease,” and that Miller “said she didn't want to be there if it was going to cause a conflict.” In addition, Evans does not point to any authority that would support
Thus, Mattox v. Wescott, 156 Ala. 492, 47 So. 170 (1908), upon which Evans relies in his reply brief, is distinguishable. In that case, our supreme court held that a landlord, by orally consenting to a sublease, had waived the right to consent in writing. There was no indication in Mattox, however, that the sublease, which had been executed in reliance on the landlord's oral consent, was rescinded after the landlord purported to revoke that consent. Accordingly, we reject Evans's argument that Waldrop's alleged oral consent precluded him from later withholding that consent.5