Braswell Wood Co., Inc. v. Fussell, 83-1361

• Decision Date: 21 June 1985
• Docket Number: No. 83-1361,83-1361
• Parties: BRASWELL WOOD COMPANY, INC. v. Paul FUSSELL.
• Court: Alabama Supreme Court

Page 67

474 So.2d 67

BRASWELL WOOD COMPANY, INC. v. Paul FUSSELL.

No. 83-1361.

Supreme Court of Alabama.

June 21, 1985.

William M. Russell, Jr., Tuskegee, for appellant.

Carl O. Pilgrim of Pilgrim & Gooden, Montgomery, for appellee.

BEATTY, Justice.

Appeal by Braswell Wood Company, Inc. (Braswell Wood) from a summary judgment entered against it in the amount of $15,000, together with interest and costs, in favor of plaintiff, Paul B. Fussell, Sr. We reverse and remand.

The action grows out of a mortgage and promissory note on 240 acres of land lying in Macon and Bullock Counties. The land was owned by Ronald K. and Sandra K. Pirnie, who had purchased it from Fussell, giving him a purchase money mortgage and note in exchange. Fussell, as mortgagee, filed a complaint seeking to foreclose, and also seeking damages from Braswell Wood for alleged conversion of timber on the mortgaged land. ¹

The mortgage was foreclosed, and a deficiency judgment was awarded to Fussell. The propriety of those proceedings is not in issue here.

Fussell, the mortgagee, moved for summary judgment against Braswell Wood. The gist of his claim against Braswell Wood was that, after the sale of the land to the Pirnies and while their mortgage to Fussell was extant, the Pirnies executed a timber deed to Braswell Wood, which proceeded to cut $15,000 worth of timber from the mortgaged lands, paying that amount into a bank on the directions of Ronald K. Pirnie instead of to the mortgagee Fussell. In support of this motion, Fussell attached part of the deposition of John Braswell, owner of Braswell Wood, the bank check evidencing payment for the timber drawn by Braswell Wood, the mortgage from the Pirnies to Fussell, the timber deed from the Pirnies to Braswell Wood, and the two affidavits of Fussell himself. Braswell Wood did not respond to this motion by affidavit or otherwise, nor did Braswell Wood file any post-judgment motions. Braswell Wood did appeal from the summary judgment.

The controlling question on appeal is whether or not summary judgment was appropriate in this case. Rule 56, A.R.Civ.P., provides in pertinent part:

"(c) ... The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

"...

"(e) ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

I.

Fussell contends that summary judgment was proper in this case because Braswell Wood never, by affidavit or otherwise, responded to Fussell's motion, and thus Braswell Wood failed to meet the requirement of showing that there was a genuine issue for trial. We disagree.

When Braswell Wood answered Fussell's complaint, it raised certain defenses, set forth below, based on an agreement between Fussell and the Pirnies to reinstate the mortgage:

"FIRST DEFENSE

"These Defendants allege that Plaintiff, Paul B. Fussell, Sr., waived his right to sue in conversion for the cutting of said timber by entering into the agreement to reinstate the mortgage and accepting the consideration paid therefor by Defendants Pirnie.

"SECOND DEFENSE

"These Defendants allege that the execution of the agreement to reinstate the mortgage by the Plaintiff, Paul B. Fussell, Sr., and his acceptance of the payment of $20,790.26 in consideration thereof constituted a release as to any wrongful acts for the cutting of said timber.

"THIRD DEFENSE

"The Plaintiff, Paul B. Fussell, Sr., is estopped from claiming damages for conversion of said timber because of his allowing the mortgage indebtedness to be reinstated.

"FOURTH DEFENSE

"Plaintiff, Paul B. Fussell, Sr., by the execution of the agreement to reinstate the mortgage attached as Exhibit A to the complaint, with knowledge of the facts relating to the cutting of the timber alleged in the complaint, duly ratified and confirmed, in all respects, the sale of this timber by the Defendants Pirnie, to Defendant Braswell Wood Co., Inc. Said Plaintiff thereby elected to consider said timber sale a proper and valid sale, and further agreed to look to the foreclosure of said mortgage as his remedy in the event the Defendants Pirnie defaulted in the terms of said agreement to reinstate the mortgage.

"FIFTH DEFENSE

"By the execution of the agreement to reinstate the mortgage attached as Exhibit A to Plaintiff, Paul B. Fussell, Sr.'s, complaint, said Plaintiff and the Defendants Pirnie, agreed to the substitution of said agreement in place of the original mortgage agreement and thereby discharged the Defendants Pirnie, and Defendant, Braswell Wood Co., Inc., from any liability for the cutting of said timber."

Here, as in Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988, 989 (Ala.1977), the "plaintiff-movant [here, Fussell] offered no allegations to negative" the defenses raised by Braswell Wood in its answer. In Imperial Group this Court reiterated the well established rule that:

"A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Birmingham Television Corporation v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974)." 347 So.2d at 989.

Furthermore, even though no affidavits were filed by Braswell Wood in opposition to Fussell's motion for summary judgment, the court, nevertheless had to consider

"any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on [the] motion for summary judgment. Morris v. Morris, 366 So.2d 676 (Ala.1978). See also, 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2721 (1973). [A]ll evidence of record, as well as that evidence formally submitted in support of or in opposition to a motion for summary judgment, should be considered in ruling on the motion."

Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981). Accord Speigle v. Lott, 423 So.2d 163 (Ala.1982).

In addition, the following quotation taken from C. Wright, Handbook of the Law of Federal Courts, § 99 at 664 (4th ed. 1983), is apropos:

"The motion lies whenever there is no genuine issue as to any material fact. It follows that a formal denial in an answer should not necessarily defeat such a motion as otherwise the rule could be rendered nugatory at will. To take a simple example, in an action [on] a promissory note, the defendant in his answer denies the making of the note. Plaintiff moves for summary judgment, accompanying his motion with an affidavit of a person who swears that he saw the defendant sign the note. If the defendant does not file an opposing affidavit, raising a genuine issue as to this fact, summary judgment should be rendered for plaintiff." (Emphasis added.)

Because Fussell offered nothing to contradict the defenses raised by Braswell Wood in its answer, summary judgment was improper if granted merely because Braswell Wood rested on its pleadings. Nevertheless, we find the following caution given in Imperial Group, Ltd. v. Lamar Corp., supra, at 989-900, instructive, and it bears repeating in this case:

"Having so ruled, we should emphasize that a party cannot always rely upon the allegations and denials of his pleadings to establish a genuine issue of fact. When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of the pleadings. In fact, it can be perilous for the opposing party neither to proffer any countering evidentiary materials nor to file an affidavit. Ray v. Midfield Park, Inc., [293 Ala. 609, 308 So.2d 686 (1975) ]. For instance, had the movant here presented evidence to negative defendant's defense of estoppel, defendant could not merely rest on the allegation in its counterclaim that estoppel had occurred." (Emphasis added.)

II.

Notwithstanding all of the above, Fussell contends, in essence, that all of the defenses raised by Braswell Wood must fail as a matter of law, and therefore, that summary judgment was proper. We do not agree as to the first four defenses.

Because our analysis depends, in part, on the construction of the agreement to reinstate the mortgage entered into by Fussell and the Pirnies after the timber was cut, it is set forth in its entirety below:

"AGREEMENT TO REINSTATE MORTGAGE

"THIS AGREEMENT made and entered into the 23rd day of April, 1981, by and between RONALD K. PIRNIE AND SANDRA K. PIRNIE (herein referred to as Mortgagors) and PAUL B. FUSSELL, SR. (herein referred to as Mortgagee).

"WITNESSETH:

"WHEREAS, heretofore on, to-wit: the 29th day of February, 1980, the Mortgagors executed a promissory note in favor of Mortgagee which promissory note was secured by a real estate mortgage which mortgage is duly recorded in the Probate Office of Macon County, Alabama, in Mortgage Book 361, page 291, and in the Probate Office of Bullock County, Alabama, in Mortgage Book 272, page 697; and

"WHEREAS, without the consent or permission of the Mortgagee, the Mortgagors sold and allowed the cutting of timber from the mortgaged premises thereby violating the rights of the Mortgagee in and to the mortgaged property and thereby defaulting under the terms of the mortgage; and

"WHEREAS, the Mortgagors failed to pay the installment of principal and interest which was due and payable on, to-wit: the 28th day of February, 1981, the principal installment being $10,000.00 and the accrued interest being...