finding that scienter was not pleaded
How later courts described this case
- finding that scienter was not pleaded
Written by the judges who cited it.
The opinion
FORD ELLIOTT, Judge,
dissenting:
I respectfully dissent to that part of the majority’s opinion which holds that the waiver of liens agreement was clear as to precisely how much and what land was contemplated by the agreement.
The majority notes on pages 960 and 961 of its opinion that the basis of appellant’s argument, the so-called “Exhibit B,” which allegedly limited the waiver of liens to some plot of land somewhat smaller than the entire Viewmont Mall project, was never introduced into the official record. The majority correctly recites the rule that we may not consider evidence not made a part of the record. However, we find other evidence which is of record that at least presents the issue that the waiver of liens agreement is ambiguous in scope. Specifically, the “Defendant’s Brief in Reply to Claimant’s Brief in Opposition to Preliminary Objections” admits that “the entire tract of land for the Viewmont Mall inadvertently was not included in the legal descriptions for the stipulations against liens.” Additionally, the Stipulation of Counsel signed by both sides clearly implies that there was some amount of land to which appellant was entitled to a lien and to which appellant had not granted a waiver.
While the evidence which is of record is insufficient for us to broadly rule in appellant’s favor, it should at least permit *582 appellant to survive preliminary objections. I would remand for a hearing to determine exactly what land was described and contemplated by the parties in the execution of the waiver of liens.