Alabama Power Co. v. Blount Bros. Corp.
| Court | Supreme Court of Alabama |
| Writing for the Court | EMBRY; TORBERT |
| Citation | 445 So.2d 250 |
| Parties | ALABAMA POWER COMPANY v. BLOUNT BROTHERS CORPORATION and United States Fidelity and Guaranty Company. 82-515. |
| Decision Date | 02 December 1983 |
Page 250
v.
BLOUNT BROTHERS CORPORATION and United States Fidelity and Guaranty Company.
Rehearing Denied Jan. 20, 1984.
Robert McD. Smith and Lewis W. Page, Jr. of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Edward O. Conerly of McDaniel, Hall, Parsons & Conerly, Birmingham, and Richard J. Phelan and Donald B. Hilliker of Phelan, Pope & John, Chicago, Ill., and A.J. Noble, III of Bradley, Arant, Rose & White and W. Stancil Starnes for Starnes & Atchison, Birmingham, for appellees.
EMBRY, Justice.
This is an appeal from summary judgment entered against Alabama Power Company (APCO), in favor of Blount Brothers Corporation (Blount Brothers) and United States Fidelity and Guaranty Company (USF & G). We affirm.
The pertinent facts are as follows: Blount Construction Company (Blount Construction)
Page 251
and APCO contracted, pursuant to Contract No. J2-8, for Blount Construction to perform the powerhouse concrete, backfill, and embankment construction for the Jordan Dam No. 2 Development. USF & G was the surety on a performance bond for that construction. The excavation and embankment portions of the contract were subcontracted to Harbert Construction Corporation. Jordan Dam No. 2 was completed in 1967, and is today known as the Walter Bouldin Dam. After the dam was completed, a dispute arose between Blount Construction and APCO over sums due because of delays in construction. Blount Construction claimed $2,400,000 against Alabama Power and APCO claimed $900,000 against Blount Construction. These claims were compromised and the parties entered into a release agreement. Consideration for the agreement was $500,000 paid by APCO to Blount Construction.Five years later, in 1975, an earthen dike at the dam failed. APCO brought this action against Blount Brothers, Blount Construction, Harbert, USF & G, and other, unnamed, defendants, on the grounds that Contract No. J2-8 had been breached and certain work on the dam was performed negligently. APCO settled, pro tanto with Harbert, and it was dismissed as a defendant.
A motion to dismiss or, in the alternative, a motion to quash service, was entered on behalf of Blount Construction Company. The ground for the motion was that Blount Construction was dissolved and liquidated effective 13 March 1970. The trial court postponed decision on the motion for pretrial hearing.
Meanwhile, Blount Brothers and USF & G responded with a joint motion for summary judgment under Rule 56, ARCP. That motion was based upon the terms of the release agreement entered into between APCO and Blount Construction.
The trial court found, as a matter of law, that the terms of the release were unambiguous and they barred APCO's action against both Blount Brothers and USF & G. The release provided in pertinent part:
"(b) Alabama Power Company, its successors or assigns, does hereby release and forever discharge Blount Construction Company, its successors or assigns, of and from any claim, demand or demands, damages, action or actions, cause or causes of action which Alabama Power Company might have or could maintain by reason of any of the matters or things done or suffered to be done, or omitted or suffered to be omitted to be done, and involving in any way Contract No. J2-8 and Jordan Dam No. 2 Development."
In a separate order, the trial court struck two affidavits presented by APCO in opposition to defendants' motion for summary judgment. Both affidavits presented information as to the subjective intent of APCO's signatory to the release and evidence regarding negotiations leading to the execution of the release agreement.
APCO appeals from the trial court's grant of summary judgment and its decision to strike APCO's affidavits in response to the motion for summary judgment. It presents to this court three issues:
Whether the trial court erred in determining the release agreement was unambiguous and barred action by APCO against Blount Brothers and USF & G.
Whether the trial court erred by refusing extrinsic evidence offered by APCO in opposition to the motion for summary judgment.
Whether the trial court erred in determining APCO's claims against Blount Brothers were barred by the release agreement entered into with Blount Construction.
We will consider the above issues in the order presented. Our standard for review
Page 252
of the trial court's action in granting the motion for summary judgment is the same standard used by the trial court when ruling on the motion. Long v. Bankers Life & Casualty Co., 294 Ala. 67, 311 So.2d 328 (1975). It was bound to review the record in the light most favorable to APCO. Reasonable inferences were to be made in APCO's favor and reasonable doubts were to be resolved against Blount Brothers and USF & G. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Campbell v. Alabama Power Co., 378 So.2d 718...To continue reading
Request your trial
-
Home Bank of Guntersville v. Perpetual Federal Sav. and Loan Ass'n
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......
-
Lawson State Community College v. First Continental Leasing Corp.
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......
-
Schultz v. Southeast Supply Header, LLC, Civil Action No. 1:09-00055-KD-C.
...attempt to vary the unambiguous terms of the release and was therefore not admissible"); Alabama Power Co. v. Blount Bros. Corp., 445 So.2d 250, 251-53 (Ala.1983) (affirming trial court's exclusion of affidavits asserting that it was not Page 1266 plaintiff's intention, when it signed ......
-
Wright v. Robinson
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......
-
Home Bank of Guntersville v. Perpetual Federal Sav. and Loan Ass'n
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......
-
Lawson State Community College v. First Continental Leasing Corp.
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......
-
Schultz v. Southeast Supply Header, LLC, Civil Action No. 1:09-00055-KD-C.
...attempt to vary the unambiguous terms of the release and was therefore not admissible"); Alabama Power Co. v. Blount Bros. Corp., 445 So.2d 250, 251-53 (Ala.1983) (affirming trial court's exclusion of affidavits asserting that it was not Page 1266 plaintiff's intention, when it signed ......
-
Wright v. Robinson
...this court must apply the same standard used by the trial court when ruling on the motion. Alabama Power Co. v. Blount Brothers Corp., 445 So.2d 250 (Ala.1983). In Jehle-Slauson Construction Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716 (Ala.1983), we summarized the s......