Sherri Ellis v. Dr. John Chambers ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13984
Non-Argument Calendar
____________________
SHERRI ELLIS,
SCOTT PETERS,
Plaintiffs-Third Party
Plaintiffs-Appellants,
versus
DR. JOHN CHAMBERS,
CYNTHIA CHAMBERS,
Defendants-Third Party Plaintiffs
Cross Defendants-Appellees,
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2 Opinion of the Court 21-13984
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-01776-CLM
____________________
Before NEWSOM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
This appeal involving a failed home purchase is about
assumptions. The sellers assumed that the buyers could easily
obtain financing to purchase their home. The buyers assumed that
the terms of a job offer would be acceptable. However,
assumptions quite often to lead to disappointment and
(occasionally) to litigation—as is the situation before us now.
Sherri Ellis and Scott Peters 1 entered a sales contract to sell
their Alabama home to Dr. John and Cynthia Chambers. The
Chamberses ultimately were unable to obtain financing and the
deal fell through. The Peterses sold their house to another
purchaser for less money than the Chamberses had offered. The
Peterses then sued the Chamberses for breach of contract,
fraudulent inducement, and fraudulent suppression under
1
The district court referred to Appellants as “the Peters[es],” for ease of
reference, because Ms. Ellis and Mr. Peters were married at all times relevant
to this appeal. We will do the same.
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21-13984 Opinion of the Court 3
Alabama law. The district court granted summary judgment to the
Chamberses on all three counts. The district court also denied
various motions, which the Peterses take issue with on appeal.
After review, we affirm.
I. BACKGROUND
In 2018, the Alabama Bone and Joint Clinic (“ABJC”), along
with Shelby Baptist Hospital (“the Hospital”), recruited Dr. John
Chambers, a spine surgeon, to relocate his practice from Indiana to
Birmingham, Alabama. Dr. Chambers engaged in various
discussions with Dr. Daryl Dykes, a principal of ABJC, to discuss
the terms of the proposed joint venture. During the recruitment
process the Chamberses worked with Kim Barelare, a licensed real
estate agent, then affiliated with LAH Real Estate (“LAH”), to find
a home in Alabama. The Chamberses signed a Buyer’s Agency
Agreement2 with Barelare and LAH but, when Barelare transferred
to a different brokerage firm, Keller Williams, the Chamberses did
not sign another Buyer’s Agency Agreement.
After communications with Dr. Dykes and others at ABJC,
Dr. Chambers signed a Letter of Intent (“LOI”) in January 2019.
The LOI outlined the basic terms of the joint venture with ABJC
and stated that the terms were subject to a “Definitive Agreement”
2
A buyer’s agency agreement is an agreement between the home buyer and a
real estate agent defining the terms of the relationship between the parties.
This initial Buyer’s Agency Agreement is not part of the record because,
according to Ms. Barelare, the copy of the agreement was lost in a flood.
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with the Hospital. Dr. Chambers received the ABJC employment
contract on February 4, 2019, and ABJC informed him that the
agreement was “contingent upon execution of” a forthcoming
agreement with the Hospital, which would provide “more details”
related to various other employment terms.
Dr. Dykes testified that during the period of negotiations, he
discussed the “basic” terms that the Hospital agreement would
contain, including that the agreement would contain the “[m]ain
components of th[e] Letter of Intent.”
Sherri Ellis and Scott Peters, represented by their real estate
agent, Melvin Upchurch, had a home for sale in Birmingham. On
or about April 11, 2019, Ms. Barelare informed Mr. Upchurch that
she had a potential buyer, Dr. Chambers, who was pre-approved
for a mortgage and interested in the home but could not make an
offer until he had secured satisfactory employment arrangements.
Dr. Chambers orally accepted an updated LOI in April 2019, 3
gave written notice of resignation to his practice in Indiana, and
applied for his Alabama medical license and privileges at the
Hospital. On April 29, 2019, ABJC sent Dr. Chambers an updated
employment agreement, which needed to be signed at the same
time as the Hospital agreement. Dr. Chambers still had not yet
received the Hospital agreement. Sometime in late April 2019, Ms.
3
ABJC and the Hospital sent a second LOI on April 22, 2019, reflecting an
increased annual salary.
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Barelare informed Mr. Upchurch that Dr. Chambers had made
satisfactory employment arrangements in Alabama and was ready
to negotiate a sales contract.
On May 5, 2019, Ms. Barelare sent a text message to Mr.
Upchurch containing the terms of the Chamberses’ offer, including
that there would be “[n]o contingencies except home inspection.
That is all.” Mr. Upchurch forwarded this text message to Ms. Ellis
the same day, to which Ms. Ellis responded “Ok let me know when
you get it in writing. I was always taught it wasn’t a contract until
in writing . . . . I’ll talk to Scott. And let you know.” Ms. Barelare
testified that she asked Dr. Chambers if he wanted to include an
employment contingency in the offer, but Dr. Chambers declined,
expressing his desire that the sales contract be simple and clean for
the sellers to accept.
On May 11, 2019, following a period of negotiations, the
parties entered a sales contract, in which the Chamberses agreed to
purchase the Peterses’ house for $1.9 million along with $60,000.00
worth of furniture. In addition to the home inspection
contingency, the sales contract included a financing contingency
allowing either party to cancel the contract if the Chamberses
could not obtain financing by the date of closing. The sales contract
specified a closing date of June 28, 2019.
The Chamberses applied for a conventional mortgage loan.
Their mortgage application was approved subject to several
conditions, including receipt of “proof [that] the Definitive
Agreement with [Dr. Chambers’s] new employer has been fully
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executed and . . . [a] letter from [the] new employer stating all
contingencies have been met.”
In early June 2019, Dr. Chambers was informed that the
Hospital General Counsel was finalizing the Hospital agreement.
Given the delay, Dr. Chambers then applied for a home equity line
of credit that would serve as a “bridge loan.” Dr. Chambers was
conditionally approved for the bridge loan, which was contingent
on verification of Alabama employment and certification. He
understood that this loan would facilitate a faster closing allowing
the Chamberses to refinance the loan with a conventional
mortgage at a later date.
Dr. Chambers received the Hospital’s Definitive Agreement
on or around June 17, 2019, at which time he forwarded it to his
attorney for review. Dr. Chambers took issue with several terms
in the Hospital agreement, including restrictions on his ability to
transfer to another orthopedic practice in Birmingham if the ABJC
joint venture fell through.4 As a result, Dr. Chambers did not sign
4
Essentially, as Dr. Chambers understood it, the agreement would permit
ABJC to terminate him for any reason and then restrict his ability to work for
another practice or start his own in the Birmingham area. Dr. Chambers also
understood the agreement to trigger repayment obligations following
termination, contrary to what Dr. Dykes relayed during negotiations in early
2019.
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the employment agreements before the agreed upon closing date
and thus could not obtain financing.5
The Chamberses paid the Peterses a nonrefundable
$5,000.00 deposit in consideration for a two-week extension of the
closing date so Dr. Chambers could continue to negotiate the
employment agreements. However, Dr. Chambers did not reach
an agreement with the Hospital so the Chamberses failed to obtain
financing for a second time. The Peterses sold their house to
another buyer for $1.8 million. Dr. Chambers, after unsuccessfully
attempting to negotiate the terms of the employment agreements,
returned to his practice in Indiana.
The Peterses then filed a suit for breach of contract in
Alabama state court, alleging that the Chamberses breached the
sales contract when they refused to close on the sale of the Peterses’
home. The Chamberses removed the case to federal court on the
basis of diversity jurisdiction. The Peterses later amended their
complaint to add claims for fraudulent inducement and fraudulent
suppression.
The Chamberses moved for summary judgment and the
district court granted the motion on all counts. With respect to
their breach of contract claim, the district court found that the
Chamberses made a reasonable, good faith effort to obtain
5
Nor did Dr. Chambers obtain financing through the bridge loan, as he failed
to provide employment certification.
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financing. As for their fraud-based claims, the district court
concluded that Ms. Barelare’s statements were not attributable to
the Chamberses such that they were liable for fraud or,
alternatively, that the written sales contract superseded previous
written communications between Ms. Barelare and Mr. Upchurch.
The Chamberses also moved to strike the testimony and
declaration of the Peterses’ expert witness, Maddox Casey, whom
the Peterses offered to testify on the purported reasonableness of
the employment agreements. The Chamberses moved to strike
Mr. Casey on the grounds that his report was conclusory, he did
not identify the documents upon which he relied, and the Peterses
failed to carry their burden of proving that Mr. Casey was reliable.
They also asserted that Mr. Casey’s declaration was untimely, as it
contained opinions based upon knowledge obtained after the close
of discovery. The district court denied this motion as moot
because consideration of the testimony and declaration did not
change its summary judgment rulings.
For their part, the Peterses moved to exclude paragraphs 38
through 42 of Dr. Chambers’s declaration and to strike or disregard
the Chamberses’ summary judgment arguments related to those
paragraphs. The Peterses argued that the paragraphs and related
arguments directly contradicted the Chamberses’ responses to
requests for admission under Federal Rule of Civil Procedure 36.
The district court denied this motion, finding that the declaration
and summary judgment arguments did not conflict with the
responses to requests for admission.
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Lastly, the Peterses moved to compel discovery seeking all
oral and written communications between the Chamberses and
their attorney about the sales contract and Dr. Chambers’s
employment agreements. They argued that the Chamberses
waived attorney-client privilege in Dr. Chambers’s declaration by
relying on the advice of counsel to prove they acted in good faith.
The district court denied the motion because Dr. Chambers’s
declaration did not reveal the contents of the communications with
the Chamberses’ attorney and the Chamberses did not rely on their
attorney’s legal advice as a defense. The Peterses timely appealed.
II. DISCUSSION
A. Summary Judgment
“We review a district court’s grant of summary judgment de
novo, viewing the evidence and drawing all reasonable inferences
in the light most favorable to the nonmoving party.” Hubbard v.
Bayer HealthCare Pharms. Inc., 983 F.3d 1223, 1232 (11th Cir.
2020). Summary judgment is appropriate only when “there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial.”
Tesoriero v. Carnival Corp., 965 F.3d 1170, 1177 (11th Cir. 2020)
(quotation omitted).
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1. Breach of Contract
Under Alabama law,6 in order to prevail on their breach of
contract claim, the Peterses must prove these elements: “(1) the
existence of a valid contract binding the parties in the action, (2)
[their] own performance under the contract, (3) the defendant[s’]
nonperformance, and (4) damages.” Southern Med. Health Sys.,
Inc. v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995).
“[C]ontract provision[s] making the contract subject to the
procurement of a loan to finance the purchase price” are “valid
condition[s] precedent to performance.” Duncan v. Rossuck, 621
So. 2d 1313, 1314 (Ala. 1993). Implicit in this condition is the
purchaser’s “duty to attempt to obtain financing through a
reasonable good faith effort.” Id. (citing Schottland v. Lucas, 396
So. 2d 72 (Ala. 1981)). “[W]hen a contract makes securing financing
a condition precedent to its performance, neither the contract nor
any of its provisions become binding obligations unless and until
financing is obtained.” Ex parte Bill Heard Chevrolet, Inc., 927 So.
2d 792, 799 (Ala. 2005). Conditional approval for a loan does not
satisfy a financing contingency. See Khalidi v. Weeks Fam. P’ship,
912 So. 2d 256, 261 (Ala. Civ. App. 2005).
First, it is clear under the plain language of the home
purchase contract that the financing contingency was not satisfied.
The Chamberses indisputably did not obtain financing by the date
6
The parties do not dispute that Alabama law applies.
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of closing and did not waive the financing contingency. The issue
here, then, is whether the Chamberses fulfilled their “duty to
attempt to obtain financing through a reasonable good faith
effort.” Duncan, 621 So. 2d at 1314. We agree with the district
court that they made a reasonable good faith effort.
In the Peterses’ view, Dr. Chambers rejected in bad faith the
proposed employment agreements from ABJC and the Hospital in
an attempt to get out of purchasing the Peterses’ home. They
contend that the district court improperly determined that Dr.
Chambers’s receipt of the Hospital agreement, which contained
new and unfavorable terms, constituted “an unanticipated change
in circumstances” arising only after execution of the home
purchase contract to excuse the Chamberses’ failure to obtain
financing. Instead, they contend that, because Dr. Chambers had
“actual knowledge” of the provisions of the Hospital agreement
before signing the home purchase contract, 7 the Chamberses could
not have acted in good faith in refusing to sign the employment
contracts, thus dooming their efforts to obtain financing.
The Alabama Supreme Court has found bad faith in two
circumstances arising in the context of financing contingencies in
home purchase agreements. First, in Schottland v. Lucas, the
Alabama Supreme Court held that where the purchasers refused to
7
The Peterses contend that Dr. Chambers had actual knowledge by virtue of
his communications with Dr. Dykes during negotiations and Dr. Chambers’s
receipt of ABJC’s agreement.
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sign a loan application, the facts of the case supported the inference
that defendants frustrated the financing contingency and did not
make a reasonable good faith effort. 396 So. 2d at 74. Second, in
Duncan v. Rossuck, the court held that where evidence in the
record demonstrated that the purchasers rejected financing “solely
because they wished to be relieved from performing under a
contract that they had become disenchanted with,” the defendants
were not excused from the contract for failure of the financing
contingency. 621 So. 2d at 1314–15.
Conversely, in Carmichael v. Lambert Construction Co.,
the Alabama Supreme Court held that where, following execution
of a home purchase contract, the purchasers applied for financing
but then were unexpectedly informed by the husband’s employer
that he would be transferred to another state, the purchasers did
not “voluntarily prevent[ ] or frustrate[ ] the occurrence of the”
financing contingency by failing to obtain financing. 487 So. 2d
1367, 1368–69 (Ala. 1986).
Here, the record establishes that the Chamberses acted in
good faith. The Peters have not pointed to any evidence sufficient
to create a genuine dispute of material fact on this issue. The
Peterses contend that Dr. Chambers was fully apprised of the
substantive terms of the Hospital agreement before execution of
the sales contract through his discussions with Dr. Dykes. The
record, however, shows that the parties entered into the sales
contract in May 2019, one month prior to Dr. Chambers receiving
the Definitive Agreement from the Hospital. While Dr. Dykes
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testified that he discussed the “basic” terms of the Hospital
agreement with Dr. Chambers as they were described in the LOI,
the final agreement included additional terms beyond those in the
LOI—some of which were directly contradictory to what Dr.
Dykes discussed with Dr. Chambers.
The Peterses point to other facts in the record as evidence of
the Chamberses’ bad faith—namely, Ms. Barelare’s statements that
Dr. Chambers would not sign a sales contract before making
satisfactory employment arrangements and that, in early May
2019, Dr. Chambers had made such arrangements and was ready
to negotiate a sales contract. They also point to Dr. Chambers’s
instruction to Ms. Barelare not to include an employment
contingency in the sales contract.
These facts do not support a reasonable inference that the
Chamberses acted in bad faith in pursuing financing to purchase
the Peterses’ home. Before signing the sales contract, Dr.
Chambers believed that he had made satisfactory employment
arrangements. While understanding that the Hospital agreement
would contain additional terms, he believed the substance of those
terms would align closely with what he discussed with Dr. Dykes
and ABJC during negotiations as those terms were described in the
LOI. After signing the sales contract, however, he learned that the
Hospital agreement contained unfavorable terms.
Unlike the purchasers in Duncan or Schottland, the record
shows that the Chamberses did not thwart their application for
financing or reject an offer of financing simply because they
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became “disenchanted” with the sales contract. This case is much
more like Carmichael, where an unanticipated change in
circumstances led to the Chamberses’ failure to obtain financing.
What’s more, there are additional facts in the record here that
support a finding of good faith that were not present in Carmichael.
For instance, the Chamberses applied for a bridge loan to close on
the Peterses’ home more quickly, they did not seek to terminate
their loan applications when Dr. Chambers’s employment
negotiations stalled, and they sought an extension of the closing
date for which they paid a nonrefundable deposit as consideration.
On summary judgment, we must draw all inferences in favor of the
Peterses, as the non-moving party; however, the facts relied upon
by the Peterses do not have probative value sufficient to create a
fact issue precluding summary judgment on this claim. 8
8
The Peterses argue that the Chamberses are estopped from relying on failure
of the financing contingency because the Chamberses “misrepresented that
there was no employment contingency and . . . they concealed their intent to
condition their performance on the” employment agreements which were
“subjectively agreeable to Dr. Chambers.” This argument is meritless.
The Chamberses could not have misrepresented that the sales contract
did not contain an employment contingency because the sales contract did
not, in fact, contain such a contingency. The Peterses seem to argue that there
was an unwritten and undisclosed employment contingency in the sales
contract, implying a term that the Chamberses would not close on the house
if Dr. Chambers did not finalize his employment in Alabama. First, we are
confined to the four corners of the sales contract when interpreting its terms,
assuming there is no ambiguity. See, e.g., Dupree v. PeoplesSouth Bank, 308
So. 3d 484, 490 (Ala. 2020). There is no employment contingency in the sales
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2. Fraud Claims
For both their fraudulent inducement and fraudulent
suppression claims, the Peterses rely on two statements made by
Ms. Barelare: first, the oral statement from Ms. Barelare to Mr.
Upchurch that Dr. Chambers had made satisfactory employment
arrangements and was prepared to begin moving forward on a
sales contract; and second, the text message from Ms. Barelare to
Mr. Upchurch that there are “no contingencies except home
inspection.” The Peterses contend these statements are not true
because (1) Dr. Chambers had not yet made employment
arrangements satisfactory to him; and (2) the Chamberses knew
that they would not sign a sales contract without having secured
employment (effectively enforcing an unwritten employment
contingency). The purported purpose of these alleged
misrepresentations “was to present a ‘clean’” sales contract while
Dr. Chambers continued to negotiate more favorable employment
terms. The Peterses also contend the Chamberses suppressed the
actual status of Dr. Chambers’s employment.
Under Alabama law, a plaintiff must prove these elements
of fraud: “(1) a false representation (2) of a material existing fact (3)
relied upon by the plaintiff (4) who was damaged as a proximate
result of the misrepresentation.” Deng v. Scroggins, 169 So. 3d
contract. Second, “contingency” has a unique meaning in the context of real
estate transactions. Whether the Peterses believe that there was an unwritten
“contingency” at work is of no consequence.
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1015, 1024 (Ala. 2014). “Moreover, a plaintiff must prove that he
or she reasonably relied on the defendant’s misrepresentation in
order to recover damages for fraud.” AmerUs Life Ins. Co. v.
Smith, 5 So. 3d 1200, 1207 (Ala. 2008). Alabama uses a reasonable
reliance standard, asking whether the plaintiff’s “reliance was
reasonable in light of the facts surrounding the transaction in
question.” Id. at 1208 (emphasis in original).
Fraud in the inducement, a creature of fraud under Alabama
law, exists where one party misrepresents “a material fact
concerning the subject matter of [an] underlying transaction” and
the other party “rel[ies] on the misrepresentation to his . . .
detriment in . . . taking a course of action.” Oakwood Mobile
Homes, Inc. v. Barger, 773 So. 2d 454, 459 (Ala. 2000) (emphasis
omitted). “In Alabama, it is not always necessary to prove that a
misrepresentation was made directly to the person who claims to
have been injured.” Thomas v. Halstead, 605 So. 2d 1181, 1184
(Ala. 1992). Rather, “[i]f a third person is injured by the deceit, he
may recover against the one who made possible the damages to
him by practicing the deceit in the first place.” Id. (internal
quotations omitted).
Fraudulent suppression, on the other hand, requires proof
of (1) a defendant’s duty to disclose “an existing material fact”; (2)
the defendant’s concealment or suppression of that material fact;
(3) the plaintiff’s reliance on the suppression in choosing to act or
refraining from acting; and (4) damage suffered by the plaintiff.
Alabama Psychiatric Servs., P.C. v. 412 S. Ct. St., LLC, 81 So. 3d
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1239, 1247 (Ala. 2011). “A duty to disclose can arise either from a
confidential relationship with the plaintiff or from the particular
circumstances of the case.” Ex parte Farmers Exch. Bank, 783 So.
2d 24, 27 (Ala. 2000). When a defendant does not have a duty to
disclose because of a confidential relationship, the defendant “may
nevertheless be liable for fraudulent concealment if he knowingly
takes action to conceal a material fact that has been requested of
him by the plaintiff and does so with the intent to deceive or
mislead the plaintiff.” Id. at 28. “[T]he existence of a duty is a
question of law to be determined by the trial judge.” State Farm
Fire & Cas. Co. v. Owen, 729 So. 2d 834, 839 (Ala. 1998).
The district court concluded that the Peterses’ claims for
fraudulent inducement and fraudulent suppression failed because
they were premised on Barelare’s communications. Because no
agency relationship existed under Alabama’s Real Estate
Consumers Agency and Disclosure Act (“RECAD”), Ala. Code.
§ 34-27-80 et seq., Barelare’s statements could not be attributed to
the Chamberses.
We first address the applicability of RECAD to this claim.
RECAD provides that an agency relationship exists between a real
estate agent and a consumer only when the parties enter a signed,
written agency agreement. Ala. Code § 34-27-82(b). Under the
statute, “[a]n agency relationship shall not be assumed, implied, or
created without a written bilateral agreement establishing the
terms of the agency relationship.” Id. RECAD defines “agency
agreement” as “[a] written agreement between a broker and a
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client which creates a fiduciary relationship between the broker
and a principal, who is commonly referred to as a client.” Id. § 34-
27-81(1). Until such an agreement is entered, the real estate agent
is a transaction broker for purposes of the transaction. Id. § 34-27-
82(b). The statute defines “transaction broker” as “[a] licensee who
assists one or more parties in a contemplated real estate transaction
without being an agent or fiduciary or advocate for the interest of
that party to a transaction.” Id. § 34-27-81(17) (emphasis added).
The statute defines “licensee” as “any broker, salesperson, or
company.” Id. § 34-27-81(10). RECAD further specifies that “[i]n
the absence of a signed brokerage agreement between the parties,
the transaction brokerage relationship shall remain in effect.” Id.
§ 34-27-82(e). RECAD supersedes all inconsistent common law
agency principles. Id. § 34-27-87.
The Peterses contend that RECAD is not applicable to this
case. RECAD, however, supersedes common law agency
principles in the real estate context. Therefore, under RECAD, an
agency relationship between Ms. Barelare and the Chamberses
could not exist without an applicable buyer’s agency agreement
such that Ms. Barelare’s statements could be attributable to the
Chamberses. It is undisputed that the Chamberses did not sign a
buyer’s agency agreement with Keller Williams when Ms. Barelare
left LAH and changed brokerages. Because buyer’s agency
agreements are between brokers and clients, id. § 34-27-81(1), the
signed agreement between the Chamberses and LAH could not
and did not create an agency relationship when Ms. Barelare
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transferred to Keller Williams. Her alleged misrepresentations
made to Mr. Upchurch, therefore, are not imputable to the
Chamberses.
But even if we were to accept the Peterses’ contention
RECAD does not apply, their claims would fail.
a. Fraudulent inducement
First, the Peterses have not established that when Dr.
Chambers informed Ms. Barelare that he had made satisfactory
employment arrangements (or when Ms. Barelare subsequently
informed Mr. Upchurch of this information), the statement was
false when made. The record shows that Dr. Chambers did, in fact,
believe he had made satisfactory employment arrangements.
Given the information he had received prior to receiving the
Hospital agreement, Dr. Chambers believed in May 2019 that he
would be moving to Alabama to join ABJC and that he would
accordingly enter into the ABJC and Hospital agreements. Indeed,
he applied for his Alabama medical license, applied for hospital
privileges in Alabama, and resigned from his partnership in Indiana.
The record does not support a reasonable inference that Ms.
Barelare (or Dr. Chambers through Ms. Barelare) misrepresented
an existing fact in making this statement.
Further, the Peterses have failed to establish that Ms.
Barelare’s text message stating “[n]o contingencies except home
inspection” contained any affirmative misrepresentation. It is clear
that the Peterses assumed that the agreement would not contain
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an employment contingency and that the Chamberses would easily
obtain financing to purchase the Peterses’ home. The Peterses,
however, have not established that it was reasonable to rely on
what they assumed from the text message—that the home
purchase contract would not contain an employment contingency.
Indeed, the agreement contained no such contingency. The
Peterses essentially argue that, through this text message, the
Chamberses somehow represented through their real estate agent
that Dr. Chambers had secured employment and would easily
obtain financing, obviating the need for a run-of-the-mill financing
contingency. The Peterses’ assumption is not supported by record
evidence. For these reasons, their fraudulent inducement claim
fails, and the district court’s grant of summary judgment was
proper.
b. Fraudulent suppression
Lastly, as for the Peterses’ fraudulent suppression claim,
they have not pointed to any evidence to show that the
Chamberses owed the Peterses any duty to disclose the status of
Dr. Chambers’s employment. The Peterses contend that a duty to
disclose arose through the Chamberses’ “elect[ion] to speak, or
speak in half-truths.” However, it is indisputable that the Peterses
and the Chamberses were not in a confidential relationship such
that duty to disclose arose as a matter of law. Further, the Peterses
have not alleged that they ever requested information from the
Chamberses regarding Dr. Chambers’s employment status that
might have given rise to the Chamberses’ duty to disclose such
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information. See Farmers Exch., 783 So. 2d at 28. If they wished
to know more about the status of Dr. Chambers’s employment
negotiations, they could have readily requested that information,
but they did not do so.
Accordingly, the district court’s grant of summary judgment
on the fraudulent suppression claim was proper.
B. Motion to Strike Testimony and Declaration of Plaintiff’s
Expert
The Peterses appeal the district court’s denial as moot of the
Chamberses’ motion to strike the testimony and declaration of
Maddox Casey, the Peterses’ expert witness. The district court
denied this motion as moot because consideration of Mr. Casey’s
testimony and declaration would not have changed the result of its
opinion.9
Mr. Casey’s opinions and testimony discuss his conclusion
that the terms of the ABJC and Hospital agreements “were fair and
reasonable and fully consistent with standard and customary
contracting practices of medical groups and hospital systems in
Birmingham, Alabama with physicians in general and in particular,
9
The parties do not agree on which standard of review we should apply to a
district court’s decision to deny as moot a motion to strike expert opinions and
testimony. The Peterses contend that we should apply de novo review, while
the Chamberses contend that we should review for abuse of discretion. We
need not decide which standard of review applies, as we discern no error under
even a de novo standard.
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22 Opinion of the Court 21-13984
with orthopedic surgeons . . . .” These opinions and testimony are
unnecessary to our conclusion that summary judgment on all three
counts was proper on the grounds we have already discussed.
Therefore, we affirm the district court’s denial of the Chamberses’
motion to strike as moot.
C. Motion to Exclude
The Peterses challenge the district court’s denial of their
motion to exclude certain paragraphs of Dr. Chambers’s
declaration and related arguments in the Chamberses’ motion for
summary judgment. In support of their motion for summary
judgment, the Chamberses submitted a declaration of Dr.
Chambers. The challenged paragraphs describe Dr. Chambers’s
understanding, following a conference call with his wife and their
attorney, of the substance of the ABJC and Hospital agreements
and how the agreements worked together. The Peterses contend
that because those paragraphs directly contradict the Chamberses’
responses to requests for admission in which they denied seeking
legal counsel on the breach of contract claim, the fraud claims, and
punitive damages, they should have been excluded. They also
sought exclusion of the portions of the Chamberses’ motion for
summary judgment that relied on those paragraphs.
The district court denied their motion because it determined
that there was no direct contradiction between the filings—the
Chamberses denied in their responses to requests for admission
that they sought legal advice on the claims involved here, but Dr.
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21-13984 Opinion of the Court 23
Chambers’s declaration shows only that he sought legal advice on
the employment agreements. We agree.
We review the district court’s decision to strike an affidavit
for an abuse of discretion. Hall v. United Ins. Co. of Am., 367 F.3d
1255, 1259 (11th Cir. 2004). Admissions to requests for admission
pursuant to Federal Rule of Civil Procedure 36 are controlling in
the presence of conflicting subsequent testimony. See Williams v.
City of Dothan, 818 F.2d 755, 762 (11th Cir. 1987). However, there
is no conflict between the Chamberses’ Rule 36 admissions and Dr.
Chambers’s declaration. The Chamberses admitted pursuant to
Rule 36 that they did not seek legal advice for the claims brought
against them by the Peterses. The Peterses did not seek admissions
that Dr. Chambers sought legal advice regarding his employment
agreements, which is what Dr. Chambers declared in support of
the Chamberses’ motion for summary judgment. The district
court did not abuse its discretion in denying the Peterses’ motion
to strike and we therefore affirm.
D. Motion to Compel
The Peterses appeal the district court’s denial of their
motion to compel all oral and written communications between
the Chamberses and their lawyer regarding Dr. Chambers’s
employment agreements and the sales contract. The Peterses
argue that the Chamberses waived attorney-client privilege and
that they are entitled to the requested communications because in
his declaration Dr. Chambers described his understanding of the
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24 Opinion of the Court 21-13984
employment agreements following a conference call with his
attorney.
The district court denied the motion to compel on the
grounds that the Chamberses did not waive attorney-client
privilege because Dr. Chambers’s declaration did not reveal the
contents of the communication with his attorney.
We review a district court’s denial of a motion to compel
discovery for abuse of discretion. Holloman v. Mail-Well Corp.,
443 F.3d 832, 837 (11th Cir. 2006). “This means that a district court
is allowed a range of choice in such matters, and we will not
second-guess the district court’s actions unless they reflect a clear
error of judgment.” Id. Under Alabama law, 10 attorney-client
privilege may be waived by the client if the client discloses the
content of the communication. See Ex parte Great Am. Surplus
Lines Ins. Co., 540 So. 2d 1357, 1359 (Ala. 1989) (quotation
omitted). Under the Federal Rules of Evidence, the waiver of
attorney-client privilege
extends to an undisclosed communication or
information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or
information concern the same subject matter; and
10
State law governs the application of attorney-client privilege in civil matters.
Fed. R. Evid. 501.
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21-13984 Opinion of the Court 25
(3) they ought in fairness to be considered together.
Fed. R. Evid. 502(a).
The district court did not abuse its discretion in denying the
motion to compel on the grounds that the declaration did not
reveal the contents of the communications between the
Chamberses and their attorney. Rather, the declaration merely
describes Dr. Chambers’s understanding of the employment
agreements following his conversations with his attorney. For
instance, in paragraph 41 of his declaration, Dr. Chambers states
after reviewing the contract with his attorney, “a clear picture
emerged” of the substance of the agreements for him and his wife.
In paragraph 42, Dr. Chambers states that “after our telephone
conferences with our attorney on June 26, 2019, I understood the
following . . . ,” proceeding to describe how he understood the
employment agreements to operate. Dr. Chambers did not reveal
the contents of the communications with their attorney nor did he
reveal the substance of any legal counsel he received during the
communications. The Chamberses therefore did not waive
attorney-client privilege such that the Peterses are entitled to
discovery of their privileged communications with their attorney.
III. CONCLUSION
The district court’s grant of summary judgment on the
Peterses’ breach of contract, fraudulent inducement, and
fraudulent suppression claims was proper. The district court’s
denial of the Chamberses’ motion to strike the testimony and
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26 Opinion of the Court 21-13984
declaration of the Peterses’ expert witness was also proper. It was
not an abuse of discretion for the district court to deny the Peterses’
motion to exclude and motion to compel. For these reasons, we
affirm.
AFFIRMED.