161 Perdido Ventures, L.L.C. v. Swervo Development Corp.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15816 June 10, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00878-CV-M
161 PERDIDO VENTURES, L.L.C.,
Plaintiff-Appellant,
versus
SWERVO DEVELOPMENT CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 10, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
161 Perdido Ventures, L.L.C. (Perdido) appeals the district court’s grant of
summary judgment in favor of Swervo Development Corporation (Swervo), in
Perdido’s action against Swervo alleging breach of contract and promissory fraud.1
Perdido contends the district court erred in granting summary judgment because
triable issues exist on its breach of contract and promissory fraud claims. After de
novo review, we affirm the district court. See Rioux v. City of Atlanta, Ga., 520
F.3d 1269, 1274 (11th Cir. 2008) (reviewing the district court’s grant of summary
judgment de novo).
I. BACKGROUND
In May 2004, Perdido entered into a written Purchase Agreement to sell
Swervo a parcel of real property in Baldwin County, Alabama. According to the
Purchase Agreement, closing was to take place on or before September 10, 2004.
The closing date of September 10 passed without a consummation of the sale.
On March 10, 2005, Swervo contacted Perdido indicating its intent to
perform on the property. E-mails continued between the parties through April 18,
2006. On October 16, 2006, Perdido sent a letter to Swervo, stating it was “ready,
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Perdido’s complaint against Swervo also contained counts for slander of title and
tortious interference with a contractual relationship, but Perdido did not oppose Swervo’s motion
for summary judgment with respect to these claims. Likewise, Perdido does not mention these
counts on appeal.
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willing, and able to close the sale” of the property. Swervo responded on October
19, 2006, requesting an updated title commitment, ALTA survey, and proof of
resolution between Perdido the former owner of the property.2 Perdido later sent
the updated title commitment and current land survey, as well as a “Joint Notice of
Voluntary Dismissal” filed with the Alabama Supreme Court in the action between
Perdido and the Oswalt Family. On October 31, 2006, Perdido sent another letter
to Swervo, stating it had provided all requested information and had not received a
response to its prior letter. Perdido scheduled a closing date of November 15,
2006.
Perdido filed this action on November 17, 2006, in Baldwin County Circuit
Court, and Swervo removed the action to federal court on the basis of diversity
jurisdiction. On December 29, 2006, Swervo officially informed Perdido that it
was not going to purchase the property, citing the facts that certain defects had not
been timely cured by Perdido and that a home which had been on the property was
no longer there. On that same date, Swervo filed a Cancellation of the Purchase
2
The Purchase Agreement was not consummated on September 10, 2004 because
Perdido did not have title to the property. An Order of Final Judgment dated March 29, 2006,
from Baldwin County Circuit Court states that an agreement between Perdido and the Oswalt
Family for the sale and purchase of land (the land that is the subject of this dispute) was null and
void.
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Agreement that had been filed on June 21, 2004, with the Baldwin County Circuit
Court, as it was null and void and had been terminated.
Swervo filed a motion for summary judgment, seeking to have all claims
against it dismissed. The district court found Perdido failed to demonstrate that
Swervo breached a contract because the May 2004 Purchase Agreement was not
valid for the purposes of the action, and Perdido failed to demonstrate that a new
contract existed under the requirements of Alabama statutory law. The district
court further found that Perdido had no support for its claim of promissory fraud.
Thus, the district court granted summary judgment in favor of Swervo. Perdido
now appeals.
II. BREACH OF CONTRACT
On appeal, rather than challenging the district court’s conclusion that
Perdido’s and Swervo’s negotiations after the May 2004 Purchase Agreement
expired do not meet the requirements of the Alabama Statute of Frauds, Perdido
relies on “contingency” provisions in the May 2004 Purchase Agreement that
provided for closing dates 14 days after Swervo’s receipt of certain listed items.
Perdido asserts this alternative closing date shows the May 2004 Purchase
Agreement did not expire on September 10, 2004.
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Perdido did not raise the contingency provisions argument in the district
court, however. In fact, Perdido’s opposition to Swervo’s motion for summary
judgment does not even mention the contingency provisions. Perdido’s opposition
instead focuses on the following arguments (1) through its recording of the May
2004 Purchase Agreement, Swervo publicly declared the existence and continuing
validity of that Agreement; and (2) the writings subsequent to the original
September 10, 2004, closing date satisfied all elements of the Statute of Frauds.
“This Court has repeatedly held that an issue not raised in the district court and
raised for the first time in an appeal will not be considered by this court.” Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(quotations omitted). Thus, we do not consider Perdido’s contingency provisions
argument.
To the extent Perdido challenges the district court’s rejection of its
arguments on summary judgment, we agree with the district court that the May
2004 Purchase Agreement expired on September 10, 2004, and is not valid for
purposes of this action, and that Perdido failed to demonstrate Swervo breached a
contract as it failed to demonstrate a contract existed. See Rentz v. Grant, 934 So.
2d 368, 373 (Ala. 2006) (“Oral promises for the sale of lands, tenements or
hereditaments, or of any interest therein . . . are inherently suspect, and the Statute
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of Frauds prohibits the enforcement of such a promise even though both parties
acknowledge the existence of the oral agreement.”) (quotations omitted); Gewin v.
TCF Asset Mgmt. Corp., 668 So. 2d 523, 527 (Ala.1995) (holding a modification
to a contract for the purchase of land must be in writing and signed).
III. PROMISSORY FRAUD
In order to establish promissory fraud, a plaintiff must show: (1) a
false representation; (2) of an existing material fact; (3) that is
justifiably relied upon; (4) damage resulting as a proximate cause;
and that, (5) at the time of the misrepresentation, the defendant had
the intention not to perform the promised act and (6) that the
defendant had an intent to deceive.
Gewin, 668 So. 2d at 526 (quotations omitted).
Perdido has not attempted to show how Swervo’s actions met these required
elements of promissory fraud either in the district court or on appeal. Thus, we
agree with the district court’s conclusion there is no support for Perdido’s claim of
promissory fraud.
AFFIRMED.
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