INTRODUCTION

In Alabama, a transfer of interest in real property must be in writing, signed by the party charged, and contain a recital of consideration or it is void by the Statute of Frauds. (1) However, the Alabama Supreme Court has held that partial performance of an oral agreement

involving real property operates as an exception to remove the oral agreement from the Statute of Frauds. (2) Thus, an otherwise void oral agreement is removed from the Statute of Frauds when payment is made in full or in part, or when the purchaser is put in possession of the land by the seller, or when fraud is shown from the inception of the oral agreement. (3) In a recent opinion regarding an oral agreement to release a mortgage, the Alabama Supreme Court held in Holman v. Childersburg Bancorporation, Inc., (4) that 1) admittance of an oral agreement does not operate as an estoppel bar to remove the agreement from the Statute of Frauds 2) partial performance does not satisfy the Statute of Frauds if the requisite possession test is not met and 3) interrelated tort claims that require proof of an alleged oral agreement are also barred by the Statute of Frauds. (5)

The supreme court's holding in Holman v. Childersburg is significant because it clarifies the partial performance exception to Alabama's Statute of Frauds and explains the rationale of denying tort claims that arise from void oral agreements. This decision also reiterates that the Alabama Supreme Court will not allow the Statute of Frauds to be circumvented even if a party admits to the existence of an oral agreement. Likewise, the Holman decision could reflect a trend toward extending the Statute of Frauds to bar other claims that have previously been upheld. This Note addresses three issues related to Holman. The issues are 1) whether the purpose of the Statute of Frauds is promoted or frustrated by the holding in Holman v. Childersburg; 2) whether the Holman decision is consistent with precedent and whether it merely clarifies the partial performance exception to the Statute of Frauds or 3) whether the decision represents a new trend to limit recovery for oral agreements involving land transactions. The first part of this Note provides historical context of the Statute of Frauds and a brief overview of cases that have interpreted the partial performance exception to the Statute of Frauds. The second part provides a brief rendition of the facts of Holman and reviews the issues raised on appeal. The third part analyzes the Alabama Supreme Court's holding on estoppel, the possession requirement of partial performance, and denial of interrelated tort claims. Finally, part four is a brief summary of the issues.

HISTORICAL DEVELOPMENT

Alabama adopted the English Statute of Frauds in 1823 to prevent fraudulent practices and to prevent the enforcement of contracts that never existed. (6) The Statute of Frauds provides that certain agreements are void unless in a writing with a recital of consideration and signed by the party charged or by a lawfully authorized agent of the party charged. (7) The agreements which must be in writing to comply with the Statute of Frauds are: agreements which cannot be performed within one year from the time made; (8) promises made by an executor or an administrator to pay damages out of his own estate; (9) a promise to answer for the debt of another; (10) agreements made upon consideration of marriage; (11) contracts for the sale of lands or an interest in land, unless the purchase price or a portion is paid and the purchaser is put in possession of the land by the seller; (12) a promise to make a will or devise any real or personal property; (13) agreements to lend money or forebear repayment or modifications of an agreement; (except for consumer loans with a principal amount less than $25,000) (14) and every agreement for the sale or purchase of securities. (15)

Public policy is the foundation for the Statute of Frauds in that the statute protects the parties involved and aids judges or jurors in deciding whether an agreement existed. (16) The Statute of Frauds serves as a vital tool for judges or juries confronted with enforcing commercial and personal agreements because it "identifies defined categories of oral promises that are especially subject to fabrication and especially unworthy of enforcement." (17) Thus, when an oral agreement does not satisfy the requirements of the Statute of Frauds or involves inherent fraud, judges and juries have an easier job of determining whether an agreement is void and can further promote public polices by adhering to the requirements. (18)

The Alabama Supreme Court has identified partial performance as an exception to the Statute of Frauds in oral agreements concerning land and has been reluctant to waive the writing requirement. (19) Alabama case law contains numerous land transactions in which the court voided the agreements because the Statute of Frauds requirements were not met. (20) For example, in 1927 the Alabama Supreme Court held that an oral agreement to give a mortgage to secure a debt was void because it was not in writing. (21) The court further held that after the execution of a mortgage, the mortgage could not be altered by parol agreements nor could the obligations change from those in the original writing. (22) The court has also refused to uphold agreements in which one party asserted that a writing existed, but could not produce it as evidence, or only submitted an affidavit based on mere speculation instead of personal knowledge. (23) Therefore, the Alabama Supreme Court has decided several cases concerning oral agreements and generally has required strict compliance with the Statute of Frauds. (24)

However, the Alabama Supreme Court has held that equity may intervene, even when the partial performance exception has not been met, to deny a Statute of Frauds defense. (25) The court has held that a mere admission of an oral agreement or refusal to perform does not cause equity to intervene. (26) The court has denied affidavits as proof of oral agreements because of vagueness and failure to establish a genuine issue of material fact. (27) The court has not removed an oral agreement from the Statute of Frauds merely because a party admitted to the existence of the agreement because it would frustrate the purpose of the statute by tempting the breaching party to deny the existence of the agreement in an attempt to escape liability. (28) For example, in as early as 1881, the court recognized the difficulties concerning when equity should intervene and reasoned that "[i]t is far from being certain that these very exceptions do not assist parties in fraudulent contrivances, and increase the temptations to perjury, quite as often as they do assist them in promotion of good faith and the furtherance of justice." (29) The Statute of Frauds requirements serve to protect society and only in special circumstances will courts deny the Statute of Frauds defense. For instance in 1911, the court reasoned that equity will not permit a party "to retain property, obtained on the faith of a verbal contract, to consummate a fraud by retaining the property and refusing to perform the contract." (30) However, the court has only allowed estoppel to remove an oral agreement when the injured party detrimentally relied on the oral agreement and justice required enforcement. (31)

The Alabama Supreme Court has constantly been aware of the difficulties in determining when the partial performance exception removes an otherwise void oral agreement and in uniformly applying the exception to different factual scenarios. The Alabama Supreme Court has decided several cases concerning part performance and provided further clarity into the required type of possession. (32) Initially, mere possession of property was insufficient to take an oral agreement involving land out of the Statute of Frauds unless the possession was coupled with a contract of sale. (33) The court later encountered problems with possession that was acquired not through a sale, but through domestic or family relationships. Thus, the court held that family relationships did not operate to take an oral agreement out of the Statute of Frauds. (34) However, on at least one occasion, the court removed an oral agreement between family members from the statute when the purchase price was paid and possession was referable to the oral agreement. (35)

The possession requirement of partial performance developed rapidly over the years with attempts to remove agreements from the Statute of Frauds, requiring the Alabama Supreme Court to define and elaborate on certain language within the exception. As early as 1929, the court held that the required possession, to qualify as part performance, must be "clear, [and] definite, and referable exclusively to the contract, and by authority of the vendor." (36) The court further clarified the meaning of "referable exclusively to the contract" by holding that it must be such possession "that an outsider, knowing all the circumstances attending it save only the one fact, the alleged oral contract, would naturally and reasonably infer that some contract existed relating to the land, of the same general nature as the contract alleged." (37)

In 1958, the Alabama Supreme Court recognized the difficulty of evaluating possession when it resulted from other agreements or existing contracts and the need to further define the requisite possession to remove an oral agreement from the Statute of Frauds. (38) Thus, the court held that possession must be such that it "cannot be explained consistently with any other contract than the one alleged." (39) A recent opinion from the Alabama Court of Civil Appeals, the court held that the requisite possession must still be "referable exclusively to the contract" to save an oral agreement from the Statute of Frauds defense. (40) Therefore, the Alabama Supreme Court has clarified the language for partial performance and established that possession must be clear, definite, from the seller or vendor, involve more than a family relationship; possession cannot be explained consistently with any other existing contract; and possession must be exclusively referable to the alleged oral agreement. (41)

Even when it refused to uphold the contract claim, the Alabama Supreme Court has allowed recovery for tort-related claims when a contract is void under the Statute of Frauds. (42) In 1985, the court addressed an alleged oral agreement concerning an interest in property and reasoned that "equity may intervene, even though the part performance requirement is not met, when fraud operates from the beginning--that is, when the breaching party procured the land or purchase money with no intent to perform the oral agreement admitted to have been made." (43) Furthermore, the court reasoned that "[e]quity will not intervene when the party merely refuses to perform. To do so would render the Statute of Frauds a nullity in that the Statute is usually raised only when one of the parties breaches the oral agreement." (44)

In 1989, the court held that the Statute of Frauds was inapplicable when "the breaching party procured the land ... with no intent to perform the oral agreement." (45) Moreover, the court reasoned that equity will intervene when the elements of promissory fraud are established. The required elements for the tort of promissory fraud as the court outlined in Leisure are: "1) a false representation; 2) of a material fact; 3) that is relied upon by the plaintiff; 4) such that he is damaged as a proximate result thereof; 5) the representation must have been made with a present intent to deceive; and 6) when the representation was made, the defendant intended not to perform in accordance with it." (46)

In 1992, in Harrell v. Arrington (47), the court clarified when a fraud claim refers to acts to be performed in the future, there must have been a misrepresentation to deceive the other party and there must have been an intent, not to do the thing promised, when the representation was made. (48) Similarly, in 2002 the court awarded a monetary award to a plaintiff on a claim for promissory fraud that arose from a void oral agreement. (49) The court reasoned that reliance on oral agreement cannot be negated by the Statute of Frauds when the claim involves promissory fraud ... "a promise to do, or to abstain from doing, an act in the future." (50)

The most recent court decisions in Alabama reflect a trend toward promoting the purpose of the Statute of Frauds by limiting recovery for all claims that arise from void oral agreements. (51) For example, in 2002, inconsistently with previous cases, the Alabama Supreme Court denied various tort-related claims in a case because the underlying oral agreement was void under the Statute of Frauds. (52) The court reasoned that tort-related claims that turn on the proof of an alleged oral agreement must also be barred, or else the purpose of the Statute of Frauds is negated. (53) Likewise, in 2003, the court held that oral agreements that are void under the Statute of Frauds will not support a cause of action for promissory fraud when the claim requires proof of the alleged oral agreement. (54) The court has expressly overruled cases that allowed actions for promissory fraud when the promissory fraud claim requires proof of the alleged oral agreement. (55) Although the 2002 holding was a shift from previous cases, the Alabama Supreme Court resolved the uncertainty of tort-related claims in 2003. However, some states realize the negative impact that such a ruling has and allow recovery for tort-related claims. (56)

STATEMENT OF THE CASE

In 1995, Danita Holman and her husband, Mark Holman, borrowed $275,000 from the First Bank of Childersburg ("the Bank") to purchase sixteen acres. (57) The loan was secured by a mortgage on the property. The Holmans later divided the sixteen-acre tract into three separate tracts. The Holmans contended that they made an oral agreement in 1997 with Louie Henry, an officer of the Bank, to release the mortgage lien on tract II. The alleged agreement was that the Holmans would sell tract I and pay a portion of the sales price to satisfy the mortgage on tract I. The Holmans also alleged that the Bank agreed, in exchange for $175,000 from tract I, to release tract II from the mortgage with no additional consideration. The purpose of the agreement was to allow the Holmans to get a construction loan and build a house on tract 11. (58)

In May of 1997, tract I sold and the Holmans paid the Bank $175,000. The Bank executed a partial release for tract I. (59) Thereafter, the Holmans started building a house on tract II. Title searches conducted on July 2, 1998, December 11, 1998, and on July 25, 2000 revealed that tract II was never released. Since tract II was not released and the Bank continually denied the agreement, the Holmans filed suit on December 11, 2000. (60)

As proof of the oral agreement, The Holmans submitted an affidavit from their former counsel, Dennis Abbott, that detailed every interaction the Holmans had with him and the interactions Abbott had with Henry and the Bank. Abbott's affidavit indicated that he had a telephone conversation with Henry on August 29, 1997, and that Henry affirmed the agreement and requested release papers sent to the Bank. Abbott declared that he sent the papers and considered the release completed. (61) However, the Holmans contacted Abbott again on July 2, 1998, to close a second mortgage for the completion of their home. Thereafter, a title search revealed that tract II was not released. Abbott contacted the Bank, was assured that the failure to release was merely an oversight, and was advised to resend the release papers to the Bank for proper filing. Abbott closed the second mortgage and mailed the release papers to the Bank. (62)

The Holmans contacted Abbot again on December 11, 1998, to close another mortgage. Again, a title search revealed that tract II was not released. (63) Abbott obtained a payoff on the existing second mortgage and contacted the Bank concerning the release. The Bank indicated an oversight and expressed willingness to release the property. Abbott then stated "to the best of my knowledge and belief, I insisted that a [release] be faxed to the Bank and [that the release be signed] and faxed back to me ... I was assured ... that the mortgage would be released." (64) Abbot then indicated to the best of his knowledge the release was faxed back to his office. (65)

On July 25, 2000, another attorney performed a title search for the Holmans and discovered that the Bank had failed to release tract II. Abbott contacted the Bank and learned that Henry no longer worked there. Abbott discussed the release with another Bank official, who told Abbott that the release would not be executed. Thereafter, on August 1, 2000, Abbott contacted Henry by telephone phone and discussed the circumstances of the release. Henry informed him that he had signed the release and he did not understand why the document was not properly recorded. (66)

As of December 11, 2000, tract II was not released. Thereafter, the Holmans filed suit alleging that the Bank failed to release tract II as agreed and that the Bank disclaimed any knowledge of the oral agreement. The Holmans' original complaint contained seven counts against the Bank and Louie Henry alleging 1) breach of contract, 2) negligence and wantonness, 3) fraudulent misrepresentation, 4) fraudulent suppression, 5) slander of title, 6) civil conspiracy, and 7) negligent supervising, hiring, and training of loan officer Henry. (67) The Holmans sought compensatory and punitive damages because their property was depreciated and devalued by the acts of Henry and the Bank. (68)

On November 2, 2001, the Talladega Circuit Court entered a summary judgment for the Bank after concluding that the breach of contract claim was barred by the Statute of Frauds and that the tort claims were barred by the applicable Statute of Limitations. (69) The Holmans appealed to the Alabama Supreme Court, alleging that the circuit court erred in holding that the breach of contract claim was barred by the Statute of Frauds and that the Statute of Limitations barred the tort claims. The Alabama Supreme Court held that: 1) the Bank could use the Statute of Frauds as an affirmative defense to a purported contract to release tract II from a mortgage, despite the affidavit from its former loan officer admitting to the oral agreement; (70) 2) the Holmans' possession and construction of a home on the property did not meet the partial performance exception that could take the alleged oral agreement out of the Statute of Frauds; (71) and 3) proof that there was a contract between the parties was an essential element for the Holmans' tort claims, and, therefore, their tort claims were also barred by the Statute of Frauds. (72)

A. Arguments Asserted by the Homans

First, the Holmans did not dispute the writing requirement for land transactions. Alabama considers the release of a mortgage as a transfer of interest in property that must be in writing to comply with the Statute of Frauds. (73) The Holmans argument was that a writing did exist for the release of the mortgage and that submission of an affidavit from their former counsel and from Henry established a genuine issue of material fact as to the existence of the agreement that should have precluded summary judgment. The Holmans argued that the Bank and Henry, through the affidavits, admitted to the existence of the agreement and were estopped to deny it. (74) The Bank contended that the Holmans could not create an estoppel bar to raising the Statute of Frauds even if an admission was made. (75)

The Holmans next contended that the Statute of Frauds did not bar their action because they satisfied the partial performance exception. The Holmans argued that payment of the sales proceeds and construction of their home on tract II constituted part performance and that the agreement was removed from the Statute of Frauds. (76) However, the Bank argued that the Holmans failed to satisfy the requisite possession because they constructed a house on property they owned before the alleged oral agreement and their possession was not referable exclusively to the alleged oral contract. (77))

Last, the Holmans contended that the Bank and Henry breached their duty to record and file the lease papers which constituted negligence and wantonness. (78) The Holmans contended that they had a cause of action for fraud because the Bank promised to release tract II in exchange for $175,000 from the sale of tract I, yet knew that the Bank personnel were not going to release tract II from the mortgage. (79) The Holmans contended that they had a cause of action for slander of title because the Bank wrongfully retained an interest in tract II when it agreed to release it. (80) Finally, the Holmans argued that they had a cause of action against the Bank for its negligent hiring, training and supervision of Henry because he breached his duty to sign, record, and file the release documents in the probate office. (81)

B. The Bank's Argument: Back to Square One

The Bank argued that the Holmans did not have any other cause of action against the Bank for tort related claims because the claims arose from the alleged oral agreement that was barred by the Statute of Frauds. (82) The Bank alleged that the Holmans could not establish that a duty was owed to them, without proving the agreement. The Bank alleged that the Holmans could not establish fraud unless they could prove that the Bank agreed to release tract II but never intended to release it. (83) The Holmans could not prove slander of title and negligent hiring, training, and supervision of Henry unless they established that the Bank withheld an interest in the property they were not entitled to and that they owed a duty to file and record the release papers. (84) The Alabama Supreme Court agreed with every defense asserted by Henry and the Bank and held that all tort related claims were barred because the claims required proof of the void oral agreement. (85)

ANALYSIS

The Alabama Supreme Court held that the Bank was not estopped from asserting the Statute of Frauds as a defense. "Equitable estoppel will bar the Statute of Frauds defense [only] in certain limited circumstances," (86) and admissions, "either judicially or extrajudicially," do not create an estoppel bar. (87) The decision on the estoppel element was consistent with past decisions and did not frustrate the purpose of the Statute of Frauds, which is to prevent perjury. (88) The court's reasoning that admissions did not create an estoppel bar is sound because there would be no need for the Statute of Frauds if admissions to an oral agreement automatically validated the agreement. (89) The Statute of Frauds requirements shields contractual interests and protects society from being forced to honor agreements that never existed. (90)

The Holmans failed to provide substantial evidence to prevent the Bank from asserting the Statute of Frauds defense. The court's holding on the estoppel element did not narrow the application of the Statute of Frauds, but clarified that personal beliefs and speculations within an affidavit do not amount to substantial evidence to overcome a summary judgment. The court reasoned that although the Holmans insisted a writing existed, they never presented the original or a copy of the agreement to support the statements made in the affidavit. Justice Johnstone's rationale in the concurrence was that the submitted affidavit did not qualify as "substantial evidence." (91) Justice Johnstone also pointed out that the language "to the best of [his] knowledge" used in the affidavit was held insufficient in prior cases and was inadequate for purposes of Rule 56(e) of the Alabama Rules for Civil Procedure. (92) The main opinion of the court briefly mentioned the vagueness of the affidavit and focused more on circumstances that do not create an estoppel bar for the Statute of Frauds defense. (93) The court pointed out that mere admittance is not "an estoppel bar to raising the Statute of Frauds merely because a party admits, either judicially or extra-judicially, the existence of or the substance of an oral contract within the Statute." (94) Furthermore, the Alabama Supreme Court's holding on the estoppel element was consistent with prior cases concerning vague affidavits and promoted the purpose of the Statute of Frauds by denying enforcement of an agreement evidenced only on an admission. (95)

The Alabama Supreme Court held that the Holmans did not satisfy the partial performance exception to remove the oral agreement from the Statute of Frauds and clarified the requirements of the part performance exception. (96) The acts of possession must be clear, [and] definite, referable exclusively to the contract, and consistent only with the alleged oral agreement to avert the operation of the Statute of Frauds. (97) The Alabama Code provides that a memorandum of an agreement to transfer an interest in land is not necessary if "the purchase money, or a portion thereof is paid," and "the purchaser is put in possession of the land by the seller." (98) In Holman, the court relied upon a 1959 case involving possession of a tenant in common who had orally agreed to buy out his cotenant and held that "the possession of a purchaser must refer exclusively to the contract sought to be enforced and be such as would not be done but for it." (99) The court further reasoned that the part performance exception could be fulfilled under circumstances presented in Talley v. Talley. (100) In Talley, a brother purchased a homestead, allowed his sister to live there, and later forced her to leave the homestead. (101) The court held that the oral agreement between the brother and sister was saved by part performance because the agreement was fully performed since the sister remained at home and handled the domestic aspects, the brother put the sister in possession, and a part of the purchase price was paid by her to her brother. (102) In Talley, the court reasoned that the brother, who bought the property in his name, was the sister's substituted vendor. When she went into possession under the contract and paid her part of the purchase price, she acquired a vested, valid interest in the land, and equity would intervene to protect that interest. The sister's possession was referable exclusively to the purposes of the contract and would not be done but for it. (103) In Smith, a twin brother sought to enforce an oral agreement concerning exchange of two pieces of property with his twin. (104) The court held that the agreement was referable to his domestic relationship with his brother and not exclusively referable to the alleged oral agreement. Thus, the court held his possession was not part performance to remove it from the Statute of Frauds. (105) In Smith, the court reasoned that the twin seeking to enforce the agreement had to prove not only the existence of the oral contract, but additionally that he gave the required consideration or a part thereof to his brother, and that he took possession of the land which was the subject of the contract. (106)

The court held that the Holmans failed to meet the possession requirement of the partial performance exception for several logical reasons. First, the Holmans owned the property before the alleged oral agreement took place. (107) Therefore, similar to the brother's possession in Smith, their possession was not referable exclusively to the oral agreement that the Bank would release tract II upon payment of money from the sale of tract I. Secondly, the Holman's possession of the property and construction of their home did not result from the alleged oral agreement, but resulted from the mortgage agreement when the original sixteen acres was purchased. The Holmans already owned the property and had physical possession, unlike the sister in Talley who paid according to the oral agreement for the specific reason of becoming the owner. (108) The Alabama Supreme Court also reasoned that the acts performed by the Holmans would not have led an outsider to reasonably believe that the Bank had agreed to release a mortgage on the property in exchange for $175,000, or that an agreement of that nature even existed. (109)

The Alabama Supreme Court's holding that the Holmans' tort claims were barred because the claims required proof of the underlying void oral agreement was inconsistent with case precedent at the time and seems to establish a new trend to limit recovery by extending the Statute of Frauds to bar claims that it was not intended to shield against. (110) The main opinion in Holman states that the court has not "expressly applied or rejected the general rule" and cites the "general rule" from the New York Civil Court. (111) Moreover, the court cites from Pacurib v. Villacruz that the general rule is: "[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain the action, there may be no recovery." (112) However, the court failed to include the remainder of the rule which says: "but, on the other hand, one who fraudulently misrepresents himself as intending to perform an agreement is subject to liability in tort whether the agreement is enforcible or not." (113)

The Pacurib holding supports quite the opposite of what the Alabama Supreme Court indicated and is cited as persuasive authority in Holman. (114) In fact, the general rule in New York as stated by the Pacurib Court is: "[the] Statute of Frauds [is] inapplicable to a tort cause of action based on fraud, even if the fraud is alleged to have occurred in connection with an unenforceable contract." (115) The Pacurib court further reasoned that "it has been held that although an underlying contract may be deemed void pursuant to the Statute of Frauds, parol evidence will be admissible to prove fraud arising out of the same transaction." (116) The plaintiff in that case was allowed to recover on a tort cause of action and was returned her investment money even though the oral indemnity promise was void by the Statute of Frauds (117)

The Alabama Supreme Court's holding in Holman barfing tort claims that require proof of the void oral agreement could lead to future unfair results. (118) The Pacurib court pointed out the harshness of barfing all tort related claims that involve a void oral agreement by stating: "that such an absolute bar would subvert ... the policy of the Statute and ... [allow] ... scoundrels to use the Statute as a sword to commit a wrong rather than as a shield against fraudulent and perjurious statements and testimony." (119) Moreover, barring all tort claims could leave the injured without a remedy, which could erode the principles of justice. (120)

The court's holding in Holman on tort related claims extended the Statute of Frauds to bar claims that were not barred in the past and was inconsistent with the holdings of previous cases. (121) However, the court did tacitly handle the inconsistencies in 2003 by overruling all previous cases that allowed tort claims, regardless of a void oral agreement. (122) Although the Alabama Supreme Court denied either applying or rejecting the general rule barfing tort related claims and as the concurrence points out, the Alabama Supreme Court has decided cases concerning interrelated tort claims and allowed recovery even when an oral agreement was void by the Statute of Frauds. (123) For example, in 2002 in U.S. Diagnostics v. Shelby Radiology, P.C., (124) the court awarded a monetary award to a radiologist group on a claim for promissory fraud (125)

that arose from an oral agreement. U.S. Diagnostics orally agreed to sign a three year contract, never returned the signed papers, instructed the three primary radiologists to hire a fourth doctor, and then terminated the agreement, alleging poor performance. (126) The radiologists' group contacted the president of Diagnostics several times and was assured that the contract would be signed and returned. The court reasoned that there was substantial evidence that Diagnostic's president intended to deceive the radiologists about signing the contract and that they relied on his false representations to their detriment. (127) The court had already established in 1981 that it was "... that fraud may be predicated upon a breach of contract which is void, because not in writing, where the contract was made for the purpose of perpetrating the fraud." (128) In Holman, the court's extension of the Statute of Frauds could establish a new trend of limiting recovery for actions arising from void oral agreements in an attempt to promote of the purpose of the Statute of Frauds. Perhaps the holding in Holman was a foreshadow of the limitations to expect in the future. (129)

The court barred all other claims asserted by the Holmans because the oral agreement was void. (130) The court's rationale of extending the Statute of Frauds seemed to frustrate the purpose of the statute, which is to prevent fraud, because the Holmans could not enforce the oral agreement and were forced to deal with the hardships of their reliance. (131)However, the holding is consistent with a similar Florida case where the parties were not allowed to recover because they sought monetary relief for breach of an oral agreement instead of equitable relief. (132) The Florida court reasoned that the Statute of Fraud requirements can not be circumvented by claiming an action in promissory fraud. (133) Moreover, the Florida court stood firm for the purpose of the Statute of Frauds when it stated that the "Distributors have turned a breach of contract action into a nine-count complaint claiming virtually every cause of action that could possibly be asserted where an action for breach of contract would not lie." (134) Therefore, the Holman decision did not frustrate the purpose of the Statute of Frauds, if the decision was to prevent tort claims from circumventing the requirements of the statute. (135)

The Statute of Frauds applies to specific agreements and filters out fictional agreements, but in some circumstances it voids promises that were made. (136) The Statute's sharp application is softened by the exceptions that remove an oral agreement and prevent injury to those that have relied or performed on an unwritten promise. (137) Alabama has allowed partial performance as an exception or when inherent fraud is proven to remove an otherwise void oral agreement from the Statute of Frauds. (138) However, the Alabama Supreme Court held in Holman that tort claims can not be upheld if arising from a void oral agreement. (139) Although an overextension of the Statute of Frauds would defeat the purpose of preventing perjury and limit recovery for the injured, the Holman decision was not such an overextension. (140) The court's decision is logical because the Statute of Frauds prevents enforcement of agreements that never existed and it would frustrate the purpose of the statute to allow parties to recover the benefit of the bargain by asserting a tort claim. (141)

CONCLUSION

The holding in Holman is significant because it extends the application of the Statute of Frauds in Alabama, clarifies the requisite possession for the part performance exception, and could establish a new trend to limit recovery for all other claims that are related to a void oral agreement in promotion of the underlying principles of preventing fraud. In Holman v. Childersburg Bancorporation, Inc., the Alabama Supreme Court held that mere admission of an oral agreement did not create an estoppel bar to prevent the Bank from asserting the Statute of Frauds defense. Moreover, the court held that prior ownership of property and possession that was not referable exclusively to the oral agreement did not satisfy the part performance exception to remove agreement for the Statute of Frauds. Likewise, the court held that the tort claims asserted by the Holmans required proof of an alleged oral agreement and were also barred by the Statute of Frauds.

The Holman decision promotes the Statute of Frauds for two reasons. First, the court promoted the purpose of the Statute of Frauds by holding that a mere admission by a party to the existence of an oral agreement did not create an etoppel bar from asserting the Statute of Frauds as a defense. The Statute of Frauds is designed to prevent fraud by requiring a writing for agreements that are susceptible of fabrication. If the court allowed an admission to an oral agreement to remove the agreement from the Statute of Frauds, the whole purpose of the statute would be negated and could result in perjury or tempt parties to deny the agreement to avoid liability. Secondly, the court promoted the Statute of Frauds by clarifying the required possession needed to satisfy the partial performance exception. The court strictly adhered to the statute's requirements and merely clarified the language of the partial performance exception by holding that possession must be clear, definite, from the seller or vendor, involve more than a family or partnership relationship, cannot be explained consistently with any other existing contract, and be exclusively referable to the alleged oral agreement.

However, the Holman decision may frustrate the purpose of the Statute of Frauds in at least one respect. Since the purpose of the Statute of Frauds is to prevent fraud and prevent enforcement of agreements that never existed, the decision in Holman to bar tort claims that arise from void oral agreements may bar claims that the Statute of Frauds was not designed to prevent. Consequently, the Holman decision could result in a trend to limit recovery for claims arising out of void oral agreements and result in an overextension of the statute. Furthermore, the Holman decision deviated from case precedent, but the Alabama Supreme Court resolved all inconsistencies in 2003 by overruling prior cases that allowed recovery for tort claims based on a void oral agreement.

(1) ALA. CODE [section] 8-9-2 (5) (1975); see also Baldwin County, Ala. v. Purcell Corp., 971 F.2d 1558, 1565 (1992) (holding that the parties did not form a valid contract to transfer Valentine Island in Baldwin County, Alabama because part of the agreement was in writing and the other part was an oral agreement, there was no consideration, and the agreement was simply an agreement to make a future contract).

(2) See Talley v. Talley, 26 So. 2d 586, 587 (1946). In Talley, a brother and sister took joint possession of land. Id. Thereafter, the brother paid the purchase price and put the title in his name. Id. The court held that the partial performance exception was satisfied to remove the oral agreement from the Statute of Frauds when both people took possession of the land, worked on the land, and their possession was referable to the oral agreement. Id.; but see Knight v. Smith, 33 So. 2d 242, 243 (1947). In Knight, an oral agreement between an ill man and a woman concerning a transfer of property for care provided for the man was not taken out of the Statute of Frauds. Id. at 242. The court reasoned that the legal title remained with the man even though he told others that he had turned over possession to the woman. Id. The court held that the woman did not meet the requisite possession requirements to remove the oral agreement from the Statute of Frauds. Id. at 243.

(3) See Darby v. Johnson, 477 So. 2d 322, 326-27 (Ala. 1985) (holding that an oral agreement between two friends concerning a reconveyance of property was not removed from the Statute of Frauds because there was no partial performance or inherent fraud).

(4) 852 So. 2d 691 (Ala. 2002).

(5) Id. at 697-99.

(6) Bruce v. Cole, 854 So. 2d 47, 58 (Ala. 2003).

(7) ALA. CODE [section] 8-9-2 (1975).

(8) [section] 8-9-2(1).

(9) [section] 8-9-2(2).

(10) [section] 8-9-2(3).

(11) [section] 8-9-2(4).

(12) [section] 8-9-2(5).

(13) [section] 8-9-2(6).

(14) [section] 8-9-2(7).

(15) [section] 8-9-2(8).

(16)73 AM. JUR. 2D Statute of Frauds [section] 425 (2001).

(17) Bruce v. Cole, 854 So. 2d 47 (Ala. 2003).

(18) John C. Ward & Kim J. Dockstader, Placing Article 2's Statute of Frauds in Its Proper Perspective, 27 IDAHO L. REV. 507, 513 (1990/1991) (focusing on the purpose of the Statute of Frauds and providing a historical background dating back to the 1600s).

(19) See Gibson v. Bryant, 100 So. 2d 32, 33 (1958) (where oral agreement to purchase property was upheld because the parties had paid some of the purchase price, were in possession, and had made significant improvements upon that property that fulfilled the partial performance requirements and removed the oral agreement from the Statute of Frauds); see also Casey v. Travelers Ins. Co., 585 So. 2d 1361, 1364 (Ala. 1991) (holding that an oral agreement for partial release of lands from mortgage was an agreement for transfer of real property and was void because not in writing under the Statute of Frauds).

(20) See e.g., Darby v. Johnson, 477 So. 2d 322, 326-27 (Ala. 1985); Nelson v. Miller, 479 So. 2d 1225 (Ala. 1985); Smith v. Smith, 466 So. 2d 922 (Ala. 1985); Quinlivan v. Quinlivan, 114 So. 2d 838 (Ala. 1959).

(21) Pattillo v. Tucker, 113 So. 1 (1927) (holding that an oral agreement that was made with the bank was void because there was no writing and it was irrelevant that a deed was placed in escrow).

(22) Weatherwax v. Herin, 12 So. 2d 554 (1943). In Weatherwax, the court denied an attempt made by the mortgagee to alter his repayment requirements with correspondence letters between him and a loan officer at the bank. Id. at 560. The court held that the parties obligations were as articulated in the original loan papers, despite the attempted alteration. Id. at 562.

(23) Sooudi v. Century Plaza Co., 622 So. 2d 1275, 1278 (Ala. 1993) (where party submitted affidavit to show fraud, but affidavit was merely subjective general pleading to support his claim and not substantial evidence).

(24) See e.g., Darby, 477 So. 2d at 326-27; Nelson, 479 So. 2d 1225; Smith, 466 So. 2d 922; Quinlivan, 114 So. 2d 838.

(25) Goza v. Johnson, 587 So. 2d 998 (Ala. 1991).

(26) Durham v. Harbin, 530 So. 2d 208, 212-13 (Ala. 1988).

(27) Roberts v. Sec. Trust and Sav. Bank, 470 So. 2d 674, 676 (Ala. 1985); see also Day v. Merchs. Nat'l Bank of Mobile, 431 So. 2d 1254 (Ala. 1983) (where affidavit was insufficient to prove genuine issue of material fact to overcome motion for summary judgment made by the bank); see also Alabama Rule for Civil Procedure 56(e) which requires affidavits to be based on personal knowledge, set forth facts that would be admissible in evidence, and show that the person is competent to testify to the matters contained in the document.

(28) Darby, 477 So. 2d at 327.

(29) Id. at 325 (quoting Heflin v. Milton, 69 Ala. 354, 357 (1881).

(30) Deming v. Lee, 56 So. 921,924 (1911) (Emphasis in original). In Deming, the court refused the Statute of Frauds defense because the defendant took plaintiff's property and refused to convey other property as previously agreed with plaintiff. Id. The court reasoned that the Statute of Frauds was to prevent fraud and that the defense could not be used to aid a party in the "preparation of a fraud or in the consummation of a fraudulent scheme." Id.

(31) Goza v. Johnson, 587 So. 2d 998 (Ala. 1991) (holding that lessee was estopped from asserting invalidity of oral mineral lease that was void by the Statute of Frauds where allowing the defense would not have been in accordance with equitable principles); see also RESTATEMENT (SECOND) OF CONTRACTS [section] 129, Action in Reliance; Specific Performance, provides: "A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement."

(32) See e.g. Nelson, 479 So. 2d 1225; Smith, 466 So. 2d 922; Quinlivan, 114 So. 2d 838.

(33) Danforth v. Laney, 28 Ala. 274 (Ala. 1856) (reasoning that possession must be accompanied with a contract or agreement for sale of the property). Id. at 279.

(34) West v. McKay, 143 So. 573, 574 (Ala. 1932). In West, the purchaser was the husband of a tenant in common with the seller, and at the time of and before the contract of sale be and his wife (the tenant in common) had resided upon the land. Id. He had a contract with the seller to look after it for the joint owners. Id. After the sale, there was no change in his possession, and it was not referable solely to his contract of purchase, but also referable to his domestic relations with his wife who, as a tenant in common, had the right to its occupancy. Id. Thus, the court held that where the purchaser's possession is referable to a domestic or family relationship, as well as to the contract of purchase, it cannot be said to be referable solely to such contract within the requirements of the rule. Id.

(35) Talley v. Talley, 26 So. 2d 586, 587 (Ala. 1946). Talley involved an oral agreement by the defendant and his sister to purchase a farm as a joint homestead and provided for the utilization of their joint labors in paying the purchase price. Id. The brother paid the purchase price, took title in his own name, and the agreement was taken out of the Statute of Frauds, because both parties went into possession of the farm, worked on it, and the possession of the sister was referable exclusively to the contract so as to constitute sufficient part performance to satisfy the exception to the statute. Id. at 589.

(36) Hagood v. Spinks, 122 So. 815, 816 (1929) overruled on other grounds by Bruce v. Cole, 854 So. 2d 47 (Ala. 2003). Hagood involved a man taking possession of a garden from an elderly women. Id. He paid her seven dollars but the circumstances surrounding his possession were not clear because the lady was alleged to be insane. Id. The court outlined the rule that possession must be clear, definite, referable exclusive to the contract, and with the vendor's consent. Id.

(37) Jones v. Jones, 121 So. 78 (1929). In Jones, a man died intestate owning the house and lot on which he resided at the time of his death. Id. He left no widow but had several heirs, and the dispute arose over a petition on the part of some of the heirs to have all the realty sold for division. Id. One son, John D. Jones, insisted that his father, during his life, gave him the house and lot by way of compensation for services rendered during the latter days of his life. Id. The agreement was oral and the son wanted the agreement removed from the Statute of Frauds by proof of performance of services as in payment of the consideration, and because he was placed in possession of the property by his father. Id. The court reasoned that nothing appeared more natural than the son moving into the home of the father, who was alone and in need of aid. Id. The court further reasoned that such a possession gave no indication of a changed condition or aroused any suspicion that a contract relation to the property instigated or prompted the move. Id. at 79. The court held that the possession was not such that an outsider would have inferred that a contract existed. Id.

(38) Gibson v. Bryant, 100 So. 2d 32, 35 (1958). Gibson involved an alleged oral agreement to purchase property. Id. at 33. A portion of money was paid and plaintiffs made improvements upon the land. Id. The court held that the plaintiffs' possession was clearly referable to that contract of purchase because it was unlikely that a mere tenant would make such extensive and valuable improvements on the landlord's property without having any title to it. Id. at 35.

(39) Id. at 34.

(40) Davis v. Barnfield, 833 So. 2d 58, 62 (Ala. Civ. App. 2002). In Davis, a brother contributed to the purchase of property for himself and his sisters. Id. at 60. He later brought action against his sisters for partition. Id. at 61. The court held that loan papers did not constitute writing, within the meaning of the Statute of Frauds and possession of certain portions of the land by the two siblings whose names did not appear on the contract of sale by which the siblings had collectively come into possession of the land did not satisfy the performance-possession exception to the Statute of Frauds. Id. at 63.

(41) Id. at 62-63.

(42) See e.g., Hinkle v. Cargill, Inc. 613 So. 2d 1216, 1220 (Ala. 1992) overruled by Bruce v. Cole, 854 So. 2d 47 (Ala. 2003); Caron v. Teagle, 408 So. 2d 494, 496 (Ala. 1981) overruled by Bruce v. Cole, 854 So. 2d 47 (Ala. 2003).

(43) Darby, 477 So. 2d at 326-27. In Darby, a lady asked a close friend of the family if he would be interested in assuming the balance of payments and obtaining title to property for which she was unable to pay for. Id. Darby agreed to do so in order to assist the defendant. Darby stated that he would re-convey to defendant or her children the parcel at some future time if he was reimbursed. Id. at 327. Both parties and several witnesses testified to the existence of this agreement to reconvey. Id. However, the written contract did not include this promise of reconveyance. Id. The court held that there was no inherent fraud shown from the agreement to save it from the Statute of Frauds, and, therefore, the agreement was void. Id.

(44) Id. at 327.

(45) Leisure American Resorts, Inc., v Knutilla, 547 So. 2d 424, 421 (Ala. 1989) (quoting Darby v. Johnson, 477 So. 2d 322, 326-27 (Ala. 1985); Leisure case arose out of an alleged agreement between the plaintiffs and the defendants, by which the defendants were to repurchase the plaintiffs' condominium timeshare unit. Id. The court held that the defendants had made a material misrepresentation and had no intention of performing when they made the agreement with plaintiffs. Id. at 427.

(46) Id. at 426. (The elements of promissory fraud).

(47) 595 So. 2d 1356 (Ala. 1992). In Harrell, a retired state patrolman filed an action against the city, alleging breach of oral contract of lifetime employment, and against mayor and chief of police, alleging fraud based on representations that he would be permanently employed as police officer for city. Id. at 357. The court held that retired state patrolman could not recover on the fraud claim against the mayor and chief of police based on their alleged misrepresentations to him that he would be permanently employed as a police officer for the city because there was no evidence supporting the allegation that, at the time the representations were made, the mayor and chief of police intended to deceive the state patrolman and lacked any intent to perform. Id. at 1358.

(48) Harrell, 595 So. 2d at 1358.

(49) U.S. Diagnostic v. Shelby Radiology, P.C., 793 So. 2d 714 (Ala. 2000) overruled by Bruce v. Cole, 854 So. 2d 47, 58 (Ala. 2003). In Diagnostic, an oral agreement was made between radiologists and a medical provider concerning a term of employment. Id. at 716. The radiologists were assured that their employment contracts would be signed and relied on the promise by hiring another partner and increasing insurance coverage. Id. at 718. The court held that the Statute of Frauds did not bar tort claim of fraudulent-misrepresentation because the plaintiffs proved all elements for promissory fraud including reliance on the representation. Id. at 723.

(50) Id. at 719.

(51) See Holman, 852 So. 2d 691; see also Bruce v. Cole, 854 So. 2d 47 (Ala. 2003).

(52) Holman, 852 So. 2d at 703.

(53) Id.

(54) Bruce v. Cole, 854 So. 2d 47, 58 (Ala. 2003) overruled U.S. Diagnostic v. Shelby Radiology, P.C., 793 So. 2d 714 (Ala 2000); Wilma Corp. v. Fleming Foods of Alabama, Inc. 613 So. 2d 359 (Ala. 1993); Hinkle v. Cargill, Inc., 613 So. 2d 1216 (Ala.1992); Dean v. Myers, 466 So. 2d 952 (Ala. 1985), and Caron v. Teagle, 408 So. 2d 494 (Ala.1981).

(55) Id.

(56) See Pacurib v. Villacruz, 183 Misc. 2d 850, 866, 705 N.Y.S.2d 819, 827 (N.Y. Civ. Ct. 1999).

(57) Holman, 852 So. 2d at 693.

(58) Id.

(59) Id.

(60) Id.

(61) Id.

(62) Id. at 695.

(63) Id. at 696.

(64) Holman, 852 So. 2d at 696.

(65) Id.

(66) Id.

(67) Holman, 852 So. 2d at 693.

(68) Id.

(69) Id. at 694.

(70) Id. at 696.

(71) Id. at 698.

(72) Id. at 701.

(73) ALA. CODE [section] 8-9-2(5).

(74) Holman, 852 So. 2d at 696.; see Goza v. Johnson, 587 So. 2d 998, 1000 (Ala. 1991). The Goza Court reasoned that the Statute of Frauds could not be used as means of effecting that which it was designed to prevent and that Goza was estopped from asserting the statute as a defense. Id. at 999. The court agreed with the trial court and further reasoned that "to hold that Goza could escape the provisions of the oil, gas, and mineral lease, would be, under the totality of these circumstances, contrary to the "will of the law giver." Id. at 1000.

(75) Holman, 852 So. 2d at 697.; see Durham v. Harbin, 530 So. 2d 208, 212-13 (Ala. 1988); see also Rice v. Barnes, 149 F. Supp. 2d 1297, 1302 (M.D. Ala. 2001) (quoting Pate v. Billy Boyd Realty & Constr., Inc., 699 So. 2d 186, 192 (Ala. Civ. App. 1997). In Pate, a contractor admitted to have orally agreed to a joint venture, but was still allowed to raise the Statute of Frauds defense. Id. at 187. The Pate court reasoned that the Alabama Supreme Court allows admissions to an oral agreement to prevent perjury, but the court does not validate the agreement based on an admission. Id. at 192.

(76) Id.; see Talley v. Talley, 26 So. 2d 586, 589 (1946). Talley involved an oral agreement between a brother and sister. Id. at 590. The court held that the sister met partial performance requirement because she paid consideration and took possession. Id.

(77) Holman, 852 So. 2d at 698-99; See Hagood v. Spinks, 122 So. 815 (1929) (overruled by Bruce v. Cole, 854 So. 2d 47, 58 (Ala. 2003)); see also Smith v. Smith, 466 So. 2d 922, 924-25 (Ala. 1985).

(78) Holman, 852 So. 2d at 699.

(79) Id. at 700-01.

(80) Id. at 701.

(81) Id.

(82) See Pacurib v. Villacruz, 705 N.Y.S.2d 819, 827 (N.Y. Civ. Ct. 1999). However, the correct holding in the case does not bar tort-related claims.

(83) Holman, 852 So. 2d at 699.

(84) Id. at 701.

(85) Id.

(86) Pate, 699 So. 2d 186, 192 (Ala. Civ. App. 1997).

(87) Id.

(88) ALA. CODE [section] 8-9-2(5) (1975).

(89) See Goza v. Johnson, 587 So. 2d 998 (Ala. 1991) In Goza, a lessee was estopped from asserting an oral mineral lease that was void by the Statute of Frauds. Id. at 999. The court reasoned that allowing the defense would not have been in accordance with equitable principles. Id.

(90) John C. Ward & Kim J. Dockstader, Placing Article 2 's Statute of Frauds in Its Proper Perspective, 27 IDAHO L. REV. 507, 513 (1990/1991).

(91) Holman, 852 So. 2d at 702. (Johnstone, J., concurring).

(92) Holman, 852 So. 2d at 701; See Day v. Merch. Nat'l Bank of Mobile, 431 So. 2d 1254, 1255-57 (Ala. 1983) (similar language was used in plaintiff's submitted affidavit and held insufficient for Rule 56(e) of Alabama Rules of Civil Procedure); see also Alabama R. Civ. P. Rule 56(e) (requiring that when affidavits are used to support or oppose a motion for summary judgment they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein" are mandatory).

(93) Holman, 852 So. 2d at 696.

(94) Id. (quoting Pate v. Billy Boyd Reality & Constr., Inc. 699 So. 2d 186, 192 (Ala. Civ. App. 1997).

(95) See Darby, 477 So. 2d 322, 327 (Ala. 1985) (reasoning that enforcement of an oral agreement because of admission would tempt people to deny agreements to escape liability and thus promote perjury).

(96) Holman, 852 So. 2d at 698.

(97) See Jones v. Jones, 121 So. 78 (1929). In Jones, the court reasoned that a son moving in with his sick father would not lead others to believe that a contractual agreement existed. Id.

(98) ALA. CODE [section] 8-9-2(5) (1975). see also Merch. Nat'l Bank v. Steiner, 404 So. 2d 14, 19 (Ala. 1981). In Merchants National Bank, the parties had no written contract and a conditional verbal offer was made. Id. at 15. The court held that the oral agreement was not removed from the Statute of Frauds because merely making improvements on the land and making a deposit did not constitute partial performance. Id. at 19.

(99) Quinlivan v. Quinlivan, 114 So. 2d 838, 840 (1959). In Quinlivan, the Plaintiff and defendant operated an ice company and appliance company as a partnerships. Id. at 839. An alleged oral agreement was made concerning a conveyance of interest in the ice company. Id. The court held that the possession was not referable exclusively to the alleged oral agreement and that possession could have been from a cotenant relationship or partnership. Id. at 841.

(100) 26 So. 2d 586, 589 (1946).

(101) Id. at 589.

(102) Id.

(103) Id.

(104) Smith v. Smith, 466 So. 2d 922, 924-25 (Ala. 1985).

(105) Id.

(106) Id.

(107) Holman, 852 So. 2d at 697-98.

(108) Id. at 698.

(109) Id. at 698.; see Jones v. Jones, 121 So. 78 (1929). In Jones, a son moved in with his sick father and alleged that an oral agreement existed. Id. at 83. The court reasoned that under those circumstances, an outsider would not have reasonably inferred that the son's actions arose from an oral agreement. Id. at 84.

(110) See Holman, 852 So. 2d at 699-700.

(111) Id.

(112) Id. (quoting Pacurib v. Villacruz, 183 Misc.2d 850, 861,705 N.Y.S.2d 819, 827 (N.Y. Civ. Ct. 1999) (emphasis added). In Pacurib, the plaintiff was involved in a pyramid scheme, which is outlawed in New York, and Villacruz orally promised to reimburse the $2,000 introductory fee to the plaintiff. Id. at 853-55. Villacruz raised the Statute of Frauds as a defense to the oral indemnity agreement, but the court affirmed a judgment for Pacurib based on fraud. Id. at 866.

(113) Id. at 861. (Emphasis in original).

(114) Holman, 852 So. 2d at 699.

(115) Pacurib, 183 Misc. 2d at 860, 705 N.Y.S.2d at 826. (Emphasis in original).

(116) Id..

(117) Id. at 827.

(118) Holman, 852 So. 2d at 700; see John C. Ward & Kim J. Dockstader, Placing Article 2's Statute of Frauds in Its Proper Perspective, 27 IDAHO L. REV. 507, 513 (1990/1991) (article contends that sometimes the Statute of Frauds allows more harm than it prevents).

(119) Pacurib, 183 Misc. 2d at 860, 705 N.Y.So.2d at 826.

(120) 27 ID. L. REV. 507,513 (1991).

(121) See U.S. Diagnostic v. Shelby Radiology, P.C., 793 So. 2d 714 (Ala. 2000) overruled by Bruce v. Cole, 854 So.2d 47 (Ala. 2003).

(122) Bruce v. Cole, 854 So.2d 47, 58 (Ala. 2003).

(123) Holman, 852 So. 2d at 698 (J. Johnstone concurrence).

(124) U.S. Diagnostic v. Shelby Radiology, P.C., 793 So. 2d 714 (Ala. 2000) overruled by Bruce v. Cole, 854 S.2d 47, 58 (Ala. 2003).

(125) Id.

(126) U.S. Diagnostics, 793 So. 2d at 718 overruled by Bruce v. Cole, 854 S.2d 47, 58 (Ala. 2003).

(127) Id. at 720.

(128) Cargon v. Teagle, 408 So. 2d 494, 496 (Ala. 1981) overruled by Bruce v. Cole, 854 S.2d 47, 58 (Ala. 2003).

(129) Holman, 852 So. 2d at 698. see Bruce v. Cole, 854 S.2d 47, 58 (Ala. 2003).

(130) Id.

(131) Holman, 852 So. 2d at 701.

(132) Eclipse Medical, Inc. v. American Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334, 1335 (S.D. Fla., 1999) (holding that the performance exception to statute of frauds applies only when plaintiff seeks purely equitable relief).

(133) Id. at 1340.

(134) Id. at 1343.

(135) See Lloyd T. Wilson, Jr., New Bricks for the Wall: Developments in Property Law in Indiana, 34 IND. L. REV. 955, 998 (2001).

(136) John C. Ward & Kim J. Dockstader, Placing Article 2's Statute of Frauds in Its Proper Perspective, 27 IDAHO L. REV. 507, 513 (1990/1991).

(137) See Lloyd T. Wilson, Jr., New Bricks for the Wall: Developments in Property Law in Indiana, 34 IND. L. REV. 955, 998 (2001).

(138) See Talley v. Talley, 248 Ala. 84, 87, 26 So. 2d 586, 589 (1946) (oral agreement between brother and sister where sister met partial performance requirement because she paid consideration and took possession).

(139) Holman, 852 So. 2d at 701.

(140) See Lloyd T. Wilson, Jr., New Bricks for the Wall: Developments in Property Law in Indiana, 34 IND. L. REV. 955, 998 (2001).

(141) Id. at 999.

Johnni L. Franks, B.A., Freed-Hardeman University; M.B.A., Freed-Hardeman University; J.D. Candidate, Thomas Goode Jones School of Law.