Government Street Lumber Co., Inc. v. AmSouth Bank, N.A.

• Decision Date: 08 September 1989
• Citation: 553 So.2d 68
• Parties: 9 UCC Rep.Serv.2d 1218 GOVERNMENT STREET LUMBER COMPANY, INC., and D.W. Blacksher, Jr. v. AmSOUTH BANK, N.A. D.W. BLACKSHER, Jr. v. AmSOUTH BANK, N.A. 87-1164, 88-566.
• Court: Alabama Supreme Court

Page 68

553 So.2d 68

9 UCC Rep.Serv.2d 1218

GOVERNMENT STREET LUMBER COMPANY, INC., and D.W. Blacksher, Jr. v. AmSOUTH BANK, N.A.

D.W. BLACKSHER, Jr. v. AmSOUTH BANK, N.A.

87-1164, 88-566.

Supreme Court of Alabama.

Sept. 8, 1989.

Rehearing Denied Nov. 3, 1989.

Irvin J. Langford of Howell, Johnston, Langford and Watters, Mobile, for appellants.

Broox G. Holmes and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.

HOUSTON, Justice.

These appeals are from a summary judgment in favor of AmSouth Bank, N.A. ("AmSouth"), defendant and counterplaintiff, and against Government Street Lumber Company, Inc. ("Lumber Company"), plaintiff, and D.W. Blacksher, Jr., plaintiff and counter-defendant. We affirm.

CASE NO. 87-1164

Lumber Company and Blacksher ("plaintiffs") present three issues for review. "Issue One

"Did the Trial Court err in granting AmSouth's Motion to Strike the Amended Complaint?"

The case was filed by the plaintiffs on March 13, 1987. AmSouth filed a motion to dismiss on April 3, 1987. Plaintiffs began discovery by serving two sets of interrogatories and a request for production on April 7, 1987. In April and May 1987, AmSouth took the depositions of Lumber Company's officers and witnesses. On May 4, AmSouth responded to the second set of interrogatories; on June 30, it responded to the request for production of documents; and, on July 17, it responded to the first set of interrogatories. AmSouth's motion to dismiss was denied, and it filed an answer and a motion for summary judgment on August 21, 1987. Before the motion could be heard, counsel for the plaintiffs filed a motion for leave to withdraw. On October 29, new counsel appeared for the plaintiffs through a Rule 56(f), A.R.Civ.P., affidavit in response to the motion for summary judgment, requesting an opportunity to conduct further discovery before AmSouth's motion for summary judgment was submitted. When the motion for summary judgment was set for oral argument, counsel for the parties agreed that discovery would be completed in 90 days; and the trial court permitted AmSouth to defer its motion for summary judgment until the expiration of the 90-day discovery period. In November 1987, the case was set for trial on January 11, 1988. In December and January, the plaintiffs took the depositions of certain AmSouth employees. On January 4, 1988, the case was removed from the trial docket to allow the trial court to consider AmSouth's motion for summary judgment. On January 6, the plaintiffs filed their "Opposition to Motion for Summary Judgment," with supporting material; and the motion for summary judgment was orally argued and submitted on that date. The trial court directed AmSouth to file a brief in support of its motion, which was filed within seven days of that date. The plaintiffs were to file their brief in opposition within ten days after the filing of AmSouth's brief. The plaintiffs obtained two extensions on grounds that more time was needed to prepare their brief. On January 29, the plaintiffs filed a brief and an amended complaint, a motion to defer submission of the motion for summary judgment, and a motion to compel AmSouth to produce documents. AmSouth moved to strike the amended complaint, objected to the motion to defer submission of the motion for summary judgment, and responded to the motion to compel. On February 19, the plaintiffs filed an affidavit of Blacksher in opposition to the motion for summary judgment. On June 10, the trial court granted AmSouth's motion to strike the amended complaint and granted AmSouth's motion for summary judgment.

In this issue, the plaintiffs complain of the trial court's striking of their amended complaint.

In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276, 1279 (Ala.1976), this Court said:

"Under Rule 15, the trial judges must be given discretion to allow or refuse amendments. This Court has held that amendments are to be freely allowed and that their refusal must be based on a valid ground. Liberality of amendment does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced."

The trial court did not abuse its discretion in striking the amendment to the complaint under the facts hereinbefore set out. See Robinson v. Kierce, 513 So.2d 1005 (Ala.1987); Arfor-Brynfield, Inc. v. Huntsville Mall Associates, 479 So.2d 1146 (Ala.1985); Metropolitan Life Ins. Co. v. Sullen, 413 So.2d 1106 (Ala.1982); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, supra; Burge v. Jefferson County, 409 So.2d 800 (Ala.1982); Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975).

"Issue Two

"Did the Trial Court err in granting AmSouth's Motion to Strike [Plaintiffs'] Motion to Compel Answers to Discovery, and in granting AmSouth's Objection to [Plaintiffs'] Motion to Defer Submission of Motion for Summary Judgment?"

On January 6, 1988, when the motion for summary judgment was orally argued and submitted, there was no motion to compel AmSouth to produce or to further answer interrogatories propounded by the plaintiffs, nor was there a motion to defer submission.

In Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988), we wrote:

"The mere pendency of discovery does not bar summary judgment. If the trial court from the evidence before it, or the appellate court from the record, can ascertain that the matter subject to production was crucial to the non-moving party's case (Parrish v. Board of Commissioners of Alabama State Bar, 533 F.2d 942 (5th Cir.1976)) or that the answers to the interrogatories were crucial to the non-moving party's case (Noble v. McManus, 504 So.2d 248 (Ala.1987)), then it is error for the trial court to grant summary judgment before the items have been produced or the answers given. However, the burden of showing that these items are crucial is upon the non-moving party. He can do so by complying with Rule 56(f), Ala.R.Civ.P., Water View Developments, Inc. v. Eureka, Inc., 512 So.2d 916 (Ala.1987). Rule 56(f) provides: 'Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.' A pending motion to compel production (Parrish, supra) and a motion to compel answers to interrogatories, which has been granted (Noble, supra) when the evidence before the court clearly shows that the evidence sought is crucial to the non-moving party's case, have been held sufficient compliance with Rule 56(f). However, when no such crucial evidence would be supplied by the production or by the answers to the interrogatories, it is not error for the trial court to grant summary judgment with discovery pending. Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir.1983); Noble v. McManus, supra. In Wallace, Judge Kravitch noted: 'Most, if not all, cases involving a Rule 56(f) issue will be factually dissimilar. For this very reason, a blanket rule would be inappropriate.' 703 F.2d at 528. The burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party's case."

The plaintiffs did not comply with Rule 56(f) or prove that the matter sought by discovery was or might be crucial to the plaintiffs' case. We will not hold that a trial court abuses its discretion in not compelling discovery when the motion to compel is filed after a motion for summary judgment has been argued and submitted.

A motion to defer submission of a motion for summary judgment filed after the submission of that motion for summary judgment is not timely filed, and a trial court will not be held to have committed reversible error in failing to grant such a motion.

"Issue Three

"Did the Trial Court err in granting AmSouth's Motion for Summary Judgment?"

Unfortunately, the plaintiffs did not argue each count of the complaint separately. There is no way for us to properly review this issue without addressing each alleged cause of action. We have attempted to ascertain the plaintiffs' argument as to each separate cause of action. In Count One, the plaintiffs seek to recover for a breach of duty of fair dealing and good faith. In Count Two, they seek to recover for a wanton breach of duty of fair dealing and good faith. In Count Three, they seek to recover for business interference. In Counts Four and Five, the plaintiffs allege wrongful control and domination. In Count Six, they seek to recover for negligence. Counts One and Two

Plaintiffs refer us to an article entitled "Banking Malpractice" by A. Barry Cappello in the September-October 1986 edition of Case and Comment, and urge us to follow State National Bank of El Paso v. Farah Mfg. Co., 678 S.W.2d 661 (Tex.Ct.App.1984) ("Farah "), and K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985) ("K.M.C."), which are discussed in that article. We declined to follow K.M.C., supra, in Pavco Industries, Inc. v. First National Bank of Mobile, 534 So.2d 572, 577 (Ala.1988).

Alabama Code 1975, § 7-1-203, does not create a substantive cause of action in tort. Brown-Marx Associates, Ltd. v. Emigrant Savings Bank, 527 F.Supp. 277 (N.D.Ala.1981), aff'd, 703 F.2d 1361 (11th Cir.1983) (cited with approval in Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1388 (Ala.1986)); Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983). Brown-Marx, supra, is similar to the case at issue; both arise from a claim that a bank breached a commitment to lend money. This Court stated in Harrell v. Reynolds Metals Co., supra:

"[w]e are not prepared to extend to the area of general contract law the tort of bad faith that we have recognized...