Harold Brown Builders, Inc. v. Jordan Co.
| Decision Date | 10 July 1981 |
| Citation | 401 So.2d 36 |
| Parties | HAROLD BROWN BUILDERS, INC. v. The JORDAN COMPANY, A Georgia Corporation d/b/a Jordan Supply Company. 80-254. |
| Court | Alabama Supreme Court |
James R. McKoon, Jr., of McKoon & Raiford, Phenix City, for appellant.
John V. Denson and J. Tutt Barrett of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.
In this case, Harold Brown Builders, Inc., defendant below, appeals from the granting of summary judgment against it on the second count of its counterclaim. Defendant asks our review of the propriety of the order granting that judgment.
The Jordan Company, plaintiff, brought action against defendant to collect the outstanding indebtedness due on a series of notes and mortgages. Defendant answered and alleged two counts in its counterclaim. The first count sought $200.00, the statutory penalty under Code 1975, § 35-10-30, for plaintiff's alleged failure to make an entry of satisfaction on one of the mortgages held by the plaintiff. The second count sought damages in the amount of $125,000.00 for plaintiff's alleged willful, wanton, and malicious failure to satisfy the disputed mortgage, and for the alleged attempt by the plaintiff to extort money from the defendant over and above the amounts due on the note and mortgage involved.
Plaintiff moved for summary judgment on the second count of defendant's counterclaim, and made an offer of judgment to defendant in the amount of $200.00 on its first count. The motion was heard before trial and granted by the circuit court. The case then proceeded to trial before a jury on plaintiff's complaint, and the first count of defendant's counterclaim which sought $200.00 in statutory damages. The circuit court judge, at the close of trial, in response to motions for directed verdicts by both plaintiff and defendant, directed the jury to return a verdict for the plaintiff on its complaint, in the amount of $16,575.46, and for the defendant on the first count of its counterclaim in the amount of $200.00. The jury returned the verdicts as directed.
Defendant contends that the trial court erred in granting summary judgment on the second count of its counterclaim, and that it should have been allowed to proceed to trial on that count. Two issues are dispositive of this appeal. The first is whether plaintiff's motion for summary judgment was properly supported as required by Rule 56, ARCP. The second is whether it was appropriate for the trial court to grant summary judgment. We answer yes to both and affirm.
Defendant argues that plaintiff failed to properly support its motion for summary judgment. Although plaintiff's motion for summary judgment was not accompanied by affidavits, it was supported by the deposition of plaintiff's vice-president that was taken by the defendant. In view of this, we cannot agree with defendant that plaintiff's motion was unsupported. Further, we observe that plaintiff's motion for summary judgment is properly within the scope of Rule 56(b), ARCP, and that supporting affidavits are not required under that subsection of the rule. That rule provides: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." (Emphasis added.)
We are aware, as defendant argues, that Rule 56(e), ARCP, addresses the need for a party to respond to a motion for summary judgment, when such a motion is made and supported under Rule 56. However, we do not accept defendant's argument that affidavits were necessary to support plaintiff's motion. Rule 56(b), ARCP, was applicable to the facts of this case because the plaintiff moved for summary judgment against a counterclaim of the defendant.
We next consider the issue of whether it was appropriate for the trial court to enter summary judgment against the defendant on count two of its counterclaim. This court has said, considering the question of the appropriateness of summary judgment, that:
In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate, Rule 56(e) ARCP; 6 Moore's Fed.Prac., par. 56.15 (2nd ed. 1971). Put in another way, "(W)here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."...
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...the trial court properly granted summary judgment against Simmons on the issue of liability for conversion. Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 (Ala.1981). Damages Simmons advances several reasons urging reversal of the award against it for conversion of the drill. T......
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...matter is presented.' First National Bank of Birmingham v. Culberson, 342 So.2d 347, 351 (Ala.1977)." Quoting Harold Brown Builders, Inc. v. Jordan, 401 So.2d 36, 36-37 (Ala.1981). Ray v. Midfield Park, Inc., 293 Ala. 609, 611, 308 So.2d 686 "The movant offered no evidence to negative the a......
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...we have said that all reasonable inferences from the facts are to be viewed most favorably to the non-movant. Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 (Ala.1981); Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979); Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976); Donald ......
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...First National Bank of Birmingham v. Culberson, 342 So.2d 347 at 351 (Ala.1977), quoted with approval in Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 at 37 (Ala.1981). This court has applied the scintilla evidence rule in determining the propriety of submitting a case to the ......