Horner v. First Nat. Bank of Mobile

• Decision Date: 07 June 1985
• Citation: 473 So.2d 1025
• Parties: Avis C. HORNER v. The FIRST NATIONAL BANK OF MOBILE, Alabama, a National Banking Association. 84-239.
• Court: Alabama Supreme Court

Page 1025

473 So.2d 1025

Avis C. HORNER v. The FIRST NATIONAL BANK OF MOBILE, Alabama, a National Banking Association.

84-239.

Supreme Court of Alabama.

June 7, 1985.

Rehearing Denied July 19, 1985.

Mayer W. Perloff of Reid, Perloff & Doyle, Mobile, for appellant.

Michael S. McNair of Noojin & McNair and Caine O'Rear, III, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.

SHORES, Justice.

This is an appeal from a summary judgment in favor of the First National Bank of Mobile, creditor, against the guarantor on a note. We affirm.

Sometime prior to September 1982, Horner Cabinets, Inc., a corporation, was formed. The incorporators and officers included John Horner and Avis C. Horner, husband and wife. Avis Horner was secretary-treasurer of the corporation.

On September 29, 1982, John and Avis C. Horner signed a guaranty agreement whereby they agreed to unconditionally guarantee payment to the bank of all sums of money loaned to the corporation, Horner Cabinets, Inc., up to $40,000.00. This agreement was signed before a notary public, who took the individual acknowledgement of each signatory to the guaranty agreement, and who certified that each acknowledged before her that, being informed of the contents of the instrument, he or she executed it voluntarily on the date it bore.

Thereafter, on January 4, 1983, the bank loaned the corporation $20,000; subsequently, on March 23, 1983, the bank loaned the corporation an additional $10,000.

After the notes became overdue, the bank brought this action against Horner Cabinets, Inc., and John Horner and Avis C. Horner, jointly and individually. Avis C. Horner filed an answer denying the allegations of the complaint, denying that there was consideration for her signature on the guaranty agreement, and alleging that she was coerced into signing it. She subsequently filed a counterclaim against the bank, alleging that the bank had falsely and fraudulently represented to her that it would be necessary for her to execute the guaranty agreement before the bank would extend credit to her husband's business, Horner Cabinets, Inc.

The bank filed a motion for summary judgment against Avis C. Horner on her counterclaim. This motion was supported by an affidavit of an officer of the bank who agreed with Mrs. Horner's contention that she was told that her signature was necessary before the bank would extend a line of credit to the family corporation. Avis Horner's affidavit to the effect that there was no consideration for the guaranty agreement extended to her and that her signature was coerced by the bank, in that it had already loaned the money to the corporation, is insufficient as a matter of law to raise a genuine issue of fact. The first contention, that there was no consideration for the guaranty agreement, is conclusively rebutted by the undisputed fact that the bank subsequently loaned the corporation $30,000. The second, that she signed the agreement without knowing what it was, is inadmissible where the instrument itself carries an acknowledgement by the signatories, who swore that they were informed of its contents and voluntarily signed it.

To prevent summary judgment, after the movant has prima facie shown himself to be entitled to judgment as a matter of law, the opposing party must show by admissible evidence that a genuine issue of material fact exists which requires resolution by a factfinder. Alabama Rules of Civil Procedure, Rule 56(e). It is not enough that the opposing party merely disputes or refutes an immaterial fact, nor is it enough that evidence which is inadmissible under the normal rules of evidence is advanced to contravene that of the movant. Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980); Morris v. Morris, 366 So.2d 676 (Ala.1978); Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So.2d 314 (Ala.1979).

Real Coal, Inc. v. Thompson Tractor Co., supra, is particularly applicable here. There, the Court held, speaking through Beatty, J.:

"The plaintiff, Thompson Tractor Company, filed its complaint to recover money allegedly due on open account and upon certain equipment rental agreements from the defendants Norman C. Reid, Real Coal, Inc., Southern States Coal, Inc., Poe Coal Company, and R & K Coal Company, a partnership. The count of the complaint against Reid was based upon his personal guaranties for the debts of two of the defendant companies. All of the defendants filed motions to dismiss. The motions of Reid and two of the companies, Poe and R & K, were overruled. While the remaining motions were pending, and before any answers were filed by the defendants, the plaintiff moved for summary judgment. In support of this motion the plaintiff filed an affidavit of one Dickson, plaintiff's vice-president for...