COBB, Chief Justice.
This Court's opinion of November 13, 2009, is withdrawn, and the following is substituted therefor.
Henry Penick, the defendant in an action in the Jefferson Circuit Court seeking specific performance of an agreement to execute a deed in lieu of foreclosure and ejectment, appeals from a summary judgment in favor of the plaintiff, Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc. ("the Lodge"). We affirm in part, reverse in part, and remand.
Penick is a member of the Alabama State Bar and practices law in Birmingham.
The notes were identical in all respects except for the amount. Paragraph 10 of the notes provided that, if an interest in the property securing the notes was transferred without the Lodge's prior written consent, the Lodge had a right to "demand immediate payment in full of all sums secured." If the Lodge exercised this option, the Lodge was to give Penick notice of acceleration providing not less than 30 days for full payment. If Penick failed to fully pay all sums secured by the property within that 30-day period, the Lodge was entitled to "invoke any remedies permitted by this Security Instrument without further demand on [Penick]."
Penick mortgaged his office building in Birmingham as security for the loan.
By September 2002, Penick had defaulted on the notes. On September 17, 2002, the attorney for the Lodge sent Penick a letter stating that the "account is seriously delinquent" and that the balance on the notes was immediately payable. The letter also stated that unless the entire balance of the debt was paid, the law-office property securing the notes would be offered for public sale. A copy of the mortgage-foreclosure-sale notice, specifying a sale date of October 14, 2002, was enclosed with the letter. The Lodge also filed a foreclosure action against Penick.
The October 14, 2002, sale date was postponed, and on October 16, 2002, Penick and the Lodge entered into a "modification agreement," which provided that Penick would pay a lump sum of $17,500, would resume monthly payments of $1,800, and would begin making monthly payments of $1,000 toward the arrearage. The modification agreement also provided:
(Capitalization in original.)
The record contains an affidavit by Penick. In the affidavit, Penick stated:
After Penick executed the modification agreement, the Lodge dismissed its foreclosure action against him.
On August 23, 2006, the Lodge sent Penick a letter that stated:
(Capitalization in original.)
Penick responded by letter dated September 15, 2006, to one of the Lodge's attorneys, in which he stated:
On September 25, 2006, Penick filed a petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama. On October 10, 2006, Penick again wrote one of the attorneys for the Lodge, offering to pay all past-due amounts "in exchange for" the Lodge's agreement to allow him to resume payments. On October 24, 2006, Penick's bankruptcy petition was dismissed.
On November 7, 2006, Penick sent the Lodge a letter that stated:
On November 13, 2006, the attorney for the Lodge wrote Penick and stated:
By correspondence dated November 20, 2006, the Lodge sent Penick a mortgage-foreclosure-sale notice.
By letter dated November 21, 2006, the Lodge informed Penick that it was rejecting Penick's offer to settle and returning his $14,000 cashier's check. The Lodge further stated: "We have previously made an offer to settle and provided the figures to pay off the mortgage and attorney fees incurred over the past four years of working on this file. . . . The balance in full is demanded."
On December 19, 2006, Penick filed a second petition in bankruptcy in the United States District Court for the Northern District of Alabama. On September 5, 2007, Penick's second bankruptcy petition was dismissed.
On October 5, 2007, a federal tax lien was filed on the mortgaged property for $61,407.97 in unpaid income taxes for the years 1996, 1997, 2000, 2001, 2002, 2004, and 2005. In 2007, the property was sold at a tax sale for unpaid property taxes.
On November 26, 2007, the Lodge filed a complaint in the Jefferson Circuit Court. The Lodge's complaint contained two "counts." Count I sought an order requiring Penick to sign a deed in lieu of foreclosure. Count II was a request for an order of ejectment. On January 2, 2008, Penick filed a motion to dismiss.
On June 12, 2008, the Lodge filed a motion for a summary judgment on both counts of the complaint. Penick opposed the motion. On July 10, 2008, the trial court held a hearing on the motion. At the hearing, Penick stated that it had "probably been" 24 months since he had made a payment on the notes. However, he stated that he had offered to pay the past-due amounts and had tendered a check to bring the loans current, but the Lodge had refused his check. Penick's statements at the hearing were not made under oath.
On July 29, 2008, the trial court entered an order granting the Lodge's summary-judgment motion, ordering Penick to execute the deed in lieu of foreclosure, and ordering Penick to vacate the property. In that order, the trial court stated:
On August 5, 2008, Penick filed a notice of appeal from the judgment of the trial court.
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004).
The Lodge brought this action under the name of "The Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc." It is undisputed that the Alabama Secretary of State has no record of a corporation by this name.
The record contains no evidence indicating that the Lodge is a duly formed corporation. Penick contends that the record therefore contains no evidence indicating that the Lodge has standing to bring this action. Penick argues that the trial court should have dismissed this case for lack of
Regardless of whether the Lodge is a corporation, an unincorporated association, or some other kind of entity, it is undisputed that the Lodge lent Penick the money secured by the mortgage. It is undisputed that, as a result of Penick's failure to pay the loan as he contracted to do, the Lodge has suffered direct financial injury. Thus, regardless of the Lodge's organizational structure and corporate status, the Lodge seeks redress for an injury to its legally protected contractual rights; therefore, it has standing to bring this action. Rainbow Drive, 740 So.2d at 1027 ("Standing... turns on `whether the party has been injured in fact and whether the injury is to a legally protected right.'" (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting))); Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974) ("One has standing to bring his complaint into court `if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.'" (quoting Harman v. City & County of San Francisco, 7 Cal.3d 150, 159, 101 Cal.Rptr. 880, 886, 496 P.2d 1248, 1254 (1972); citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))).
Penick argues that the Lodge could be a foreign corporation and that there is no evidence in the record to indicate that the Alabama Secretary of State has authorized the Lodge to do business in Alabama. Penick contends that, if the Lodge is a foreign corporation lacking a certificate to do business in Alabama from the Alabama Secretary of State, then it would have no standing to maintain an action in the courts of this State pursuant to § 10-2B-15.02(a), Ala.Code 1975.
A foreign corporation's failure to obtain authorization to do business in Alabama is a capacity defense and does not per se implicate standing and subject-matter jurisdiction. Archer Western Contractors, Ltd. v. Benise—Dowling & Assocs., Inc., 33 So.3d 1216, 1219 n. 4 (Ala.2009) ("[Section] 10-2B-15.02(a), Ala.Code 1975, does not preclude the courts of this state from exercising jurisdiction over actions brought by unauthorized foreign entities transacting business in Alabama for the purpose of enforcing their contracts."); Moseley v. Commercial State Bank, 457 So.2d 967 (Ala. 1984) (holding that a foreign corporation's lack of authorization to do business in Alabama is a capacity defense that is waived unless timely asserted by specific negative averment); cf. Rainbow
Relying extensively on Shepherd v. Birmingham Trust & Savings Co., 233 Ala. 320, 171 So. 906 (1937), Penick argues that the Lodge had the burden of specifically pleading and proving that it had the capacity to sue. Penick further argues that, under Shepherd, the allegation in the Lodge's complaint that it was a corporation was insufficient to satisfy what Penick says was its burden to plead and prove its capacity to sue. Accordingly, Penick argues, the trial court should have granted Penick's motion to dismiss the Lodge's complaint.
In Shepherd, this Court noted that "[t]he rules of good pleading in equity require that the complainant must plead his character and capacity to sue." 233 Ala. at 322, 171 So. at 908. The Shepherd Court further held that, if, "construing the averments of the bill most strongly against the pleader, it is uncertain in what capacity the complainant sues, the bill is subject to demurrer." 233 Ala. at 323, 171 So. at 909. In addition, the Shepherd Court noted: "The name in which the complainant in this case sues `does not ex vi terminorum, import that the' complainant `is a corporation, rather than' a partnership or `an unincorporated organization or association,' and there is no presumption in its favor that it is one or the other." 233 Ala. at 323, 171 So. at 909. On these principles, and on the obsolete principle that "on, demurrer, the intendment is resolved against the pleader,"
However, in 1973, this Court adopted the Alabama Rules of Civil Procedure. Rule 9(a), Ala. R. Civ. P., addresses the capacity to sue and provides:
In short, Rule 9(a) renders obsolete the holding in Shepherd that capacity to sue must be pleaded by specific averment in the complaint. In accordance with Rule 9(a), the burden was on Penick, not the Lodge, to assert the capacity-to-sue issue. Penick has provided no evidence and no legal authority to establish that the Lodge lacks capacity to sue. Accordingly, we will not reverse the judgment of the trial court in declining to dismiss the Lodge's complaint for lack of capacity to sue.
It is undisputed that Penick owns the real property at issue in this action, that Penick mortgaged the property, and that the Lodge holds the second mortgage on the property. It is undisputed that the mortgage originally described that property incorrectly but that a corrected mortgage was subsequently issued accurately describing the property. The record contains copies of both the original and the corrected mortgage documents. Those documents were properly before the trial court on the summary-judgment motion.
However, Penick argues that the trial court should have granted his motion to dismiss the Lodge's complaint because the mortgage that was attached to the Lodge's complaint was not the corrected mortgage and the property was not otherwise precisely and accurately described in the complaint. Penick also argues that the summary judgment in favor of the Lodge was improper because, according to Penick, the Lodge did not sufficiently aver in its complaint that it had fulfilled all conditions precedent to foreclosing on the mortgage and that it was willing to do equity. In support of these arguments, Penick relies on Shepherd, supra, which describes specific pleading requirements for complaints in actions on mortgages before the adoption of the Alabama Rules of Civil Procedure.
Penick also relies extensively on the following rule set forth in Chandler v. Bodeker, 219 Ala. 357, 359, 122 So. 435, 436 (1929), another case predating the Alabama Rules of Civil Procedure:
The adoption of the Alabama Rules of Civil Procedure rendered obsolete the specific pleading averments needed to overcome a demurrer in a contract action that are described in Shepherd and Chandler.
Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186-87 (Ala. 1992).
Paragraph 2 of the modification agreement gives the Lodge the right to demand a deed in lieu of foreclosure in the event of default by Penick. Penick points out that paragraph 2 of the modification agreement also states: "[A]ll other terms and conditions of the Note and Mortgage which are not expressly modified hereby remain in full force and effect. . . . The
However, paragraph 2 of the modification agreement states that, "[i]n the event [of] a default in the terms of the Note or Mortgage as modified, PENICK agrees to execute and deliver a Deed in Lieu of Foreclosure on written request of the [Lodge]." (Capitalization in original.) Thus, paragraph 2 unambiguously and "expressly" grants the Lodge an additional remedy "in the event of a default": the right to obtain a deed in lieu of foreclosure upon written request.
Penick argues that the modification agreement should be interpreted in light of Leo Math's alleged assurances that the notice and right-to-cure provisions of the original mortgage were prerequisites to the Lodge's right to demand a deed in lieu of foreclosure. Penick argues that parol evidence may be relied upon to resolve latent ambiguities in a contract or matters upon which a contract is silent. However, Penick's arguments are inapposite because the modification agreement is neither silent nor ambiguous as to the Lodge's right to obtain a deed in lieu of foreclosure upon written demand in the event of a default.
Penick also argues that, pursuant to paragraph 19 of the original mortgage, he had a right to reinstate the loans after the Lodge made its demand for a deed in lieu of foreclosure. Paragraph 19 provides that, after any default and "[n]otwithstanding... acceleration," Penick could reinstate the loan "at any time prior to the ... entry of a judgment enforcing this Mortgage... if: (a) [Penick] pays [the Lodge] all sums which would be then due under this Mortgage [and] the Note[s] ... had no acceleration occurred; [and] (b) [Penick] cures all breaches of any other covenants or agreements of [Penick] contained in this Mortgage. . . ."
Penick contends that he timely and properly attempted to reinstate the loans by paying the sums necessary to bring the loans current. Penick further
Penick argues that the Lodge is judicially estopped from demanding a deed in lieu of foreclosure because the Lodge filed a claim in Penick's bankruptcy case seeking regular monthly payments. Penick states that, on October 24, 2006, he "dismissed the Chapter 13 petition" and on November 7, 2006, he gave the Lodge a cashier's check for the full amount of the arrearage, which the Lodge rejected. In support of this argument, Penick quotes Edwards v. McCord, 461 So.2d 1319 (Ala. 1984), for the general proposition that "`[t]he law is settled in Alabama that a party who has, with knowledge of the facts, assumed a particular position in a judicial proceeding is estopped from assuming a position inconsistent to the first one to the prejudice of an adverse party.'" 461 So.2d at 1319 (quoting Russell v. Russell, 404 So.2d 662, 665 (Ala.1981)(emphasis added)).
However, Penick cites no evidence or legal authority to establish that the elements of judicial estoppel are met in this case. See Edwards, 461 So.2d at 1320 ("It is essential, in order to invoke the operation of the legal doctrine of estoppel, that the inconsistent position first asserted must have been successfully maintained."). In particular, Penick makes no attempt to demonstrate that he would be prejudiced if the Lodge sought a remedy inconsistent with the Lodge's claim for monthly payments in Penick's bankruptcy action, which apparently was dismissed without adjudication of the Lodge's claim. See generally Edwards, 461 So.2d at 1320 ("`It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.'" (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1894))); see also Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) ("`[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'" (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994))).
Penick argues that, "if Leo Math knew [that the Lodge was] not going to
Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976) (quoting Dobbs, Remedies § 2.3 (1973)).
Penick cites no evidence indicating or legal authority to support his bare assertion that the general proposition cited above applies in this case. For example, he cites no evidence indicating that he relied on Leo Math's representations regarding the right to cure any default. His unsworn arguments are not evidence. Ex parte Alabama Dep't of Mental Health & Mental Retardation, 937 So.2d 1018, 1026 (Ala.2006) ("Argument of counsel is not evidence."); American Nat'l Bank & Trust Co. of Mobile v. Long, 281 Ala. 654, 656, 207 So.2d 129, 132 (1968) (noting that an "unsworn statement of counsel was not evidence"); and Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) ("The unsworn statements, factual assertions, and arguments of counsel are not evidence." (citing Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000))).
In short, Penick's promissory-estoppel argument consists of nothing more than bare citations to generic legal principles, and he has made no meaningful attempt to demonstrate that those legal principles apply to the facts of this case. Therefore, Penick's promissory-estoppel argument is wholly insufficient to sustain a reversal of the trial court's judgment. Long v. Bryant, 992 So.2d 673, 683 (Ala.2008) ("Rule 28(a)(10), Ala. R.App. P., requires that an argument in an appellant's (or cross-appellant's) brief contain `citations to the cases, statutes, other authorities, and parts of the record relied on.'"); Dykes v. Lane Trucking, Inc., 652 So.2d at 251 ("We have unequivocally stated that it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." (citing Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992))).
Penick argues that the Lodge's foreclosure action in 2002 was wrongful because, according to the undisputed evidence, the September 17, 2002, notice of foreclosure did not inform Penick of the amount due or give him 30 days in which to cure the default. Therefore, Penick argues, he executed the modification agreement on October 16, 2002, under economic duress.
"[T]o demonstrate a prima facie case of economic duress, a party must show `(1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; (3) the absence of any reasonable alternative to the terms presented by the wrongdoer.'" Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 707 (Ala.2008) (quoting International Paper Co. v. Whilden, 469 So.2d 560, 562 (Ala. 1985)). Penick cites no evidence in the record showing that his only reasonable alternative to the allegedly wrongful foreclosure
Penick argues that the trial court's judgment, which requires him to sign a deed in lieu of foreclosure, is inappropriate in light of the circumstances of this case. According to Penick, the deed in lieu of foreclosure will create a problematic cotenancy among the Lodge, the City of Birmingham (which holds a first mortgage on the property), and the purchaser at the tax sale. In support of this argument, Penick cites 1631 Second Avenue North, L.L.C. v. Raine, 963 So.2d 71 (Ala.2007). In Raine, "the trial court, after considering the circumstances of this case, held that `the court would be causing more problems for these parties than it would solve'" if it ordered specific performance of a real-estate contract because such an order would result in a cotenancy among strangers. 963 So.2d at 75 (emphasis added). This Court affirmed the trial court's judgment, stating: "Given the circumstances of this case, we find no palpable error by the trial court in declining to order specific performance. . . ." 963 So.2d at 75-76 (emphasis added).
Penick, however, has not articulated in his brief how specific performance of the agreement in this case could result in a "cotenancy," much less a "problematic" one. Further, he has not cited any legal authority to support his bare assertion that specific performance will result in a problematic cotenancy. We are unable to address the merits of an Penick's argument regarding the creation of a "problematic cotenancy" because he has failed to articulate that argument, and he presents no authority in support of it. See Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985).
Penick argues that summary judgment was not proper on the Lodge's ejectment count because, he says, the undisputed evidence demonstrates that the Lodge did not have legal title to or possession of the property at the time it filed this action. Ala.Code 1975, § 6-6-280 ("[T]he complaint [in an ejectment action] is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto ... and that the defendant entered thereupon and unlawfully withholds and detains the same."); Atlas Subsidiaries of Fla., Inc. v. Kornegay, 288 Ala. 599, 601, 264 So.2d 158, 161 (1972) (noting that a statutory action in the nature of ejectment exists under two alternatives: "The first such alternative is where the complaint alleges that the plaintiff was possessed of the premises and the defendant entered thereupon and unlawfully withholds and detains the same. The other alternative is where the complaint alleges that the plaintiff has the legal title to the lands and the defendant entered thereupon
The Lodge argues, without citation to legal authority, that, at the time the action was filed, it held an equitable title to the property that was superior to Penick's legal title. Without citing legal authority, the Lodge further argues that proof that the Lodge held a superior equitable title at the time it filed the complaint for ejectment, coupled with proof of an immediate right to possession, is sufficient to entitle the Lodge to an order of ejectment. Butler, 871 So.2d at 20 ("`[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'" (quoting Dykes, 652 So.2d at 251)).
It is undisputed that, at the time the trial court entered the summary judgment, the Lodge did not have possession of, or legal title to, the property. Accordingly, the trial court's judgment in favor of the Lodge on the ejectment count is due to be reversed.
We find no merit in any of Penick's remaining arguments, which he fails to support with citation to the record or sufficient legal authority.
For the reasons stated above, the trial court's summary judgment on the ejectment count is reversed. In all other respects, the judgment of the trial court is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.
APPLICATION OVERRULED; OPINION OF NOVEMBER 13, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SMITH, PARKER, and SHAW, JJ., concur.
MURDOCK, J., concurs specially.
MURDOCK, Justice (concurring specially).
As to the issue of the Lodge's capacity to sue, the primary focus of Henry Penick's argument is whether the Lodge is an Alabama corporation, as opposed to a foreign corporation. The reasoning aptly employed in response by the main opinion is applicable, according to the main opinion, "[r]egardless of whether the Lodge is a corporation, an unincorporated association, or some other kind of entity," 46 So.3d at 425. Penick's brief contains no meaningful challenge (and no citation of authority in opposition) to the proposition that the Lodge is a legal entity of some sort (i.e., that it has a legal existence) that has the capacity to sue and to hold title to the real property that is the object of its action.
I also note that the main opinion concludes its discussion of the issue of the legal existence of the Lodge and its capacity to sue as follows: "In accordance with Rule 9(a), [Ala. R. Civ. P.,] the burden was on Penick, not the Lodge, to assert the capacity-to-sue issue. Penick has provided no evidence and no legal authority to establish that the Lodge lacks capacity to sue." 46 So.3d at 427. I agree that Rule 9(a), Ala. R. Civ. P., places the burden, as to pleading, on Penick. I do not read the main opinion as deciding whether, after a defendant makes the specific averment required by Rule 9(a) and supplies "such supporting particulars as are peculiarly within [its] knowledge," it has the burden
