Hembree v. Nowlin

• Court: Alabama Court of Civil Appeals
• Writing for the Court: THIGPEN; ROBERTSON, P.J., and YATES
• Citation: Hembree v. Nowlin, 628 So.2d 750 (Ala. Civ. App. 1993)
• Decision Date: 23 July 1993
• Parties: Bobby D. HEMBREE v. H.M. NOWLIN. AV92000289.

Page 750

628 So.2d 750

Bobby D. HEMBREE v. H.M. NOWLIN.

AV92000289.

Court of Civil Appeals of Alabama.

July 23, 1993.

Bobby D. Hembree, pro se.

R. Eric Summerford, Decatur, for appellee.

THIGPEN, Judge.

This is a contract case.

The record reveals that Bobby D. and Glenda Hembree sold certain property to William D. Permenter for the purchase price of $21,750. As part of the purchase price, the Hembrees agreed to accept a promissory note in the amount of $2,635.16, together with interest in a stated amount, payable in 24 equal monthly installments secured by a purchase money second mortgage on the premises. H.M. Nowlin, an attorney, was retained by Permenter to close the sale.

Nowlin claims that he failed to list the second mortgage loan as a deduction from the proceeds due the seller, and in effect, overpaid the Hembrees at closing in 1989. In August 1991, Nowlin filed a complaint in the district court against Bobby Hembree, claiming that Nowlin had paid Hembree the sum of $2635.16 by mistake, and requesting judgment in that amount. Hembree answered, asserting the affirmative defense of the statute of limitations.

Following an adverse ruling, Hembree appealed to the circuit court. Thereafter, Nowlin filed a motion for summary judgment, together with his sworn affidavit describing the transaction and how the error occurred, and documentation, including copies of the promissory note, the mortgage, and a settlement statement from the United States Department of Housing and Urban Development (HUD-1). Hembree responded with his own affidavit, contending, inter alia, that he never had a contract with Nowlin; that Nowlin's affidavit did not expressly state that it was based upon personal knowledge; that in view of the fact that Hembree's wife was a party to the transaction, only one-half of the money claimed could have been paid by mistake to him; and that the statute of limitations on the claim had expired. Thereafter, the trial court granted Nowlin's motion for summary judgment and it entered a judgment in favor of Nowlin and against Hembree in the amount claimed, together with interest. Hence, this appeal.

A trial court's ruling on a motion for summary judgment is a non-discretionary ruling, and no presumption of correctness attaches to that ruling; accordingly, our review of the evidence properly contained in the record is de novo. Stone v. Southland National Insurance Corp., 589 So.2d 1289 (Ala.1991). "The standard of review applicable to a motion for summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law." Olympia Produce Co. v. Associates Financial Services of Alabama, Inc., 584 So.2d 477, 480 (Ala.1991).

In his affidavit in support of his motion for summary judgment, Nowlin asserts that he, by mistake, failed to list the $2,635.16 note on the seller's side of the HUD-1 and that he failed to deduct same from the proceeds due the sellers at closing. Additionally, he alleges that the purchaser paid the amount of the note in full, in accordance...