Green v. Bradley Const., Inc.

• Court: Supreme Court of Alabama
• Writing for the Court: FAULKNER; TORBERT
• Citation: 431 So.2d 1226
• Parties: Thomas G. GREEN, III v. BRADLEY CONSTRUCTION, INC., et al. 81-705.
• Decision Date: 06 May 1983

Page 1226

431 So.2d 1226 Thomas G. GREEN, III
v.
BRADLEY CONSTRUCTION, INC., et al. 81-705. Supreme Court of Alabama. May 6, 1983.

Page 1227

John D. Cates, Jr., Montgomery, for appellant.

W.H. Brittain, II of Ball, Ball, Duke & Matthews, Montgomery, for appellees.

FAULKNER, Justice.

Plaintiff, Thomas G. Green, III, appeals from the Montgomery Circuit Court's finding in favor of defendants, Bradley Construction, Inc., Alfred E. Mann, Jr., Anita B. Green, and William E. Bradley (hereinafter all defendants referred to as Bradley) on two points of defense raised by defendants in their motion to dismiss, namely:

1. "The Plaintiff at the time the suit was filed was not a stockholder with Bradley Construction Company and was not a real party in interest in the action."

2. "The Plaintiff was barred by the theories of Res Judicata and Collateral Estoppel."

Green filed his complaint on October 1, 1981, alleging that Bradley engaged in fraudulent conduct which resulted in Green's suffering a loss of his share of certain equities and income of the corporation. In his complaint, Green states that as a result of the previous divorce proceeding between himself and defendant Anita B. Green, the court awarded his entire stock in Bradley Construction, Inc., to Anita B. Green on April 10, 1981. However, Green contends that he was a stockholder of record at the time the fraudulent conversions took place.

Bradley answered the complaint with a motion to dismiss. In support of the motion Bradley provided the lower court with an affidavit from defendant Anita B. Green, testimony of William Edward Bradley and Rudolph Ohme, Jr., taken during the previous divorce proceeding, and the depositions of William Edward Bradley and Thomas G. Green, III, taken as discovery in the prior divorce proceedings. The lower court granted defendants' motion to dismiss, stating:

"After consideration of the arguments presented by counsel in their briefs addressing

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the issues presented in the Defendant's Motion to Dismiss presented with affirmative defenses, it is the opinion of this Court that based on defendant's second and third affirmative defenses the Motion to Dismiss should be GRANTED."

This court notes that the lower court looked beyond the pleadings to rule on Bradley's motion to dismiss and therefore the motion should have been converted into a motion for summary judgment as provided in Rule 12(c), Alabama Rules of Civil Procedure. See Thorne v. Odum, 349 So.2d 1126 (Ala.1977) (motion to dismiss treated as motion for summary judgment by the appellate court even though it was not specifically designated as such by the trial court). Thus, once matters outside the pleadings are considered, the requirements of ARCP Rule 56 become operable and the "... moving party's burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law." C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1366 (1969). Therefore, we must determine whether the defendants met that burden, which is appropriately shifted...