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Whaley v. Perkins7/21/2005
he boundaries of this subdivision application.
OPD made the following recommendation:
4. Demonstrate that both the Radcliff and the Whaley properties are either legal lots of record, legally exempt lots, or include them within the boundaries of this subdivision application.
The Whaleys received the OPD report recommendations on July 13, 1995, and assert that it was their first knowledge that the property had not been properly subdivided. Denise Sharp, an OPD employee who had authorized the July 13, 1995 staff report, noted that the minimum lots that could be obtained without subdivision approval were four acres with 50 feet of road frontage. Mrs. Whaley claimed that she had contacted Perkins in 1995, after Ms. Perkins had sold the farm to Mr. McCarty, apparently after July 13, 1995, but Ms. Perkins advised her that there was nothing she could do to assist the Whaleys. At the Whaleys' request, Ms. Perkins obtained a copy of the Beshires' building permit and left it in her mailbox. On August 2, 1995, the Whaleys signed a paper agreeing to have the property included in the Timberlake Subdivision.
On May 26, 1998, almost three years after they had first learned that the property may not have been properly subdivided, and may not be a legal lot, the Whaleys filed a complaint against Perkins, the Beshires, and First American, alleging breach of contract, misrepresentation, and breach of warranty of title.
At trial, the Whaleys testified that after learning of the illegal subdivision, Mr. Whaley became nervous and worried all the time, wondering what would happen if a storm hit the house. The Whaleys stated that they had planned to retire in 1995, sell the property, and move to Alabama. The Whaleys testified that their retirement plans became impossible, because they stated that they were unable to sell the property. When asked the following question by her attorney, Ms. Whaley stated:
Q: he illegality of your lot, or your parcel? How did that affect you and your husband and your plans?
A: ... verything that we had always planned for, since the day we got married, we were unable to do.
The Whaleys testified that after the 1995 discovery, Mr. Whaley could not retire, but thereafter experienced substantial pressure on his job and couldn't give his job full attention. Mr. Whaley testified that the condition of the property had caused Ms. Whaley to be depressed, nervous, and caused her to worry frequently because she could not see her grandchildren. Ms. Whaley testified that she and Mr. Whaley were up all night after they were advised of the illegal subdivision, and when they had called Denise Sharp at OPD, Ms. Whaley was devastated. The Whaleys claimed that while they owned two other parcels of real property in Alabama, they could not afford to build a home on their property on the river in Alabama because they could not sell the Shelby County property. Mr. Whaley claimed that Ms. Whaley had spent "millions of hours trying to get the problem worked out." Ms. Sharp with OPD testified that Ms. Whaley called her 3-4 times per year to inquire about the status of the Timberlake Estates subdivision. The Whaleys also claimed that Ms. Whaley developed arthritis, and now has to walk with a cane, had to cash in her 401K to make house payments, all of which caused them to argue and had caused Mr. Whaley to be up at night with chest pains. Ms. Whaley testified that the property was worthless because it couldn't be sold.
III. ISSUES
Appellants, Jim Ann Perkins, Albert Lewis Beshires, and Terry Lynn Beshires, present the following issues on appeal:
1. Whether the trial court committed rever
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