Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GEORGE A. FULLER v. ALEXANDER & REED

April 1, 1991

GEORGE A. FULLER COMPANY, PLAINTIFF,
v.
ALEXANDER & REED, ESQS., DEFENDANTS.



The opinion of the court was delivered by: Irving Ben Cooper, District Judge.

OPINION

Alexander & Reed deny Fuller's allegations. They contend that Fuller abandoned the escrow agreement either by instructing them to act contrary thereto or by ratifying the acts Alexander & Reed took in contravention of the written escrow agreement. Thus Alexander & Reed deny that any of their acts damaged Fuller.

The action was tried before this Court on June 4, 1990. In addition to presenting in their post-trial papers the facts and law supportive of their respective positions, Alexander & Reed moved, at our direction, to amend the pleadings to conform to the evidence admitted at trial pursuant to Federal Rule of Civil Procedure 15(b). We base our disposition of the motion and the substantive claims of this action on the findings of fact and conclusions of law discussed hereunder.

FINDINGS OF FACT

Prior to March 13, 1986, Fuller agreed to loan $300,000 to real estate developer Clinton E. Hutchcraft (not a party in the instant action). The loan was made to pay certain closing costs and expenses incident to the purchase of properties in Tennessee which were to be developed into apartment complexes by WildHorse Associates, Ltd. ("WildHorse") and SilkRock Associates, Ltd. ("SilkRock") for which Fuller was to be construction manager or general contractor. (Tr. 23)*fn1 WildHorse and SilkRock were two of thirteen limited partnerships that were created for the purpose of developing various apartment projects; Hutchcraft was general partner and had employed Alexander & Reed as counsel. In addition, defendant Alexander held a 0% limited partnership interest in the two aforementioned partnerships. (Tr. 30-31)

On March 13, 1986, Hutchcraft went to New York with defendant Alexander to secure the loan from Fuller. While in New York, Hutchcraft signed a promissory note on behalf of the partnerships and personal guarantees and then received the $300,000. (Tr. 24) Later that day, Fuller brought up the subject of an escrow agreement, which Fuller's attorneys, Haythe & Curley, Esqs., subsequently prepared. (Tr. 24-25)

The escrow agreement, signed by Fuller, Hutchcraft on behalf of WildHorse and SilkRock, and defendant Alexander on behalf of Alexander & Reed, provided in pertinent part:

  The Escrow Agent [Alexander & Reed] is hereby
  authorized and directed to hold funds represented
  by the certified check (the "Funds") in escrow
  pending the closing (the "Closing") on or about
  March 14, 1986 of the acquisition by WildHorse . .
  . and SilkRock . . . of those certain properties
  (the "Property") located in Nashville, Tennessee
  contemplated to be developed by WildHorse and
  SilkRock by the construction of apartment
  complexes. The Escrow Agent is hereby authorized
  to release the Funds to the designees of WildHorse
  and SilkRock at the Closing in payment of certain
  related costs and expenses; provided however, that
  the Escrow Agent's authority to disburse the Funds
  shall be subject to its holding a deed of trust
  with respect to the Property in favor of Fuller .
  . . in recordable form.
  Upon the release of the funds from escrow, the
  Escrow Agent agrees forthwith to cause the deed of
  trust to be recorded with the appropriate state
  and local authorities in Tennessee no later than
  24 hours after the Closing.
  In the event that the Closing shall not occur as
  contemplated herein on or before March 31, 1986,
  the Escrow Agent

  agrees to deliver the certified check . . . to
  Fuller no later than 10:00 a.m. on April 2, 1986.
  (Ex. 1)*fn2

In addition, the following handwritten terms were added to the agreement and initialled by Fuller's president, Mr. Mango:

  Both parties agree that said funds may be released
  upon the closing of the land purchase by SilkRock
  and that the Escrow Agent shall record a second
  trust deed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.