Hunt v. Dental Capital Corp., 84-872.
| Decision Date | 31 December 1985 |
| Docket Number | No. 84-872.,84-872. |
| Parties | Myrta L. HUNT, et al., Appellants, v. DENTAL CAPITAL CORPORATION, Appellee. |
| Court | D.C. Court of Appeals |
James M. Fallon, Jr., Washington, D.C., for appellants.
Richard M. Kind, Baltimore, Md., for appellee.
Before BELSON and ROGERS, Associate Judges, and GALLAGHER, Senior Judge.
Appellants Myrta L. Hunt and Mack A. Warren appeal from an order of the trial court granting appellee Dental Capital Corporation summary judgment in its suit against them on an installment note. Appellants, makers of the instrument, contend that summary disposition was inappropriate because there existed a genuine dispute as to whether they undertook the obligation on behalf of their principal, Dental Associates, Inc., and thereby insulated themselves from personal liability. Appellants further argue that the trial court abused its discretion when it denied their subsequent motion to reconsider the summary judgment. We conclude that summary judgment was properly entered and the motion to reconsider was properly denied, and therefore affirm.
On February 22, 1982, appellants, who are dentists by profession, executed an installment note by which they became "jointly and severally" indebted to appellee in the principal amount of $35,000, with interest accruing at a rate of 22 percent per annum. A chattel mortgage was executed on March 22, 1982, which granted appellee a security interest in appellants' dental equipment, inventory, and other related property. Soon thereafter, appellants defaulted on the note and in February 1983, appellee repossessed their dental equipment pursuant to the terms of the chattel mortgage. The collateral was later sold and appellee received $16,281.29 in proceeds from the sale.
To recover the deficiency, that is, the principal balance owing less the proceeds from the sale of the collateral, appellee filed a complaint in Superior Court on February 7, 1984. By its complaint, appellee also prayed for accrued interest on the amount owed, attorneys fees, and costs. Following the submission of appellants' answer, appellee filed a motion for summary judgment and attached thereto a statement of material facts and an affidavit from the credit manager of the corporation.1 The motion was stamped as having been filed on March 16, 1984. Earlier, on March 12, a copy of the motion had been mailed to appellants' counsel.
Appellants filed an opposition to the motion for summary judgment on March 27, 1984, a day later than it was due, and appended their own affidavits. On that date, the trial court entered summary judgment in favor of appellee in the amount prayed for in its complaint. However, it does not appear that appellants' opposition came to the attention of the motions judge before he signed the summary judgment order.2 Appellants subsequently moved the court to reconsider its March 27 order, arguing principally, under the authority of Milton Properties, Inc. v. Newby, 456 A.2d 349 (D.C. 1983), that the trial court erred in treating appellee's motion as conceded on the ground that no timely opposition had been filed.3 On May 18, 1984, the trial court denied appellants' motion for reconsideration without a hearing. Appellants then appealed to this court.
Appellants concede that their opposition to appellee's motion for summary judgment was untimely. Super.Ct.Civ.R. 12-I(k) provides that any party opposing a motion for summary judgment made pursuant to Super.Ct.Civ.R. 56 "may, within ten days after service of the motion upon him, serve and file a concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated." [Emphasis supplied.] Under Rule 12-I(k), if opposing party does not so respond, "the court may assume that the facts as claimed by the moving party [in his statement of material facts] are admitted to exist without controversy. . . ." Here, since appellee's statement of material facts was not controverted by appellants within the ten-day period,4 the court was entitled to deem the facts admitted.
As appellants suggest, however, this does not dispose of the issue. Even when a motion for summary judgment goes unopposed, the trial court must, prior to ruling on the matter, "review the pleadings and other papers to determine whether the moving party is legally entitled to judgment." Milton Properties, Inc., supra, 456 A.2d at 354 (citing Nader v. deToledano, 408 A.2d 31, 48 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980)); see Burt v. First American Bank, 490 A.2d 182, 184-85 (D.C. 1985); Turner v. American Motors General Corp., 392 A.2d 1005, 1006 (D.C. 1978); Super.Ct.Civ.R. 56(c). Although there is no specific indication in the record of this case that such consideration was given by the trial court, we have examined the pleadings and other papers on file and conclude that there were no triable issues.
Appellants' dilatory opposition to summary judgment and supporting affidavits purport to raise a genuine issue regarding the capacity in which they signed the installment note. In this regard, appellants submit that they executed the note solely as officers of Dental Associates, Inc., and never intended to assume personal liability. Appellee counters that the instrument itself, the self, as well as the chattel mortgage, discloses no such representative undertaking. While neither party has directed us to authority from the State of Illinois on this subject — the installment note contains a choice of law provision which designates the statutes, laws, and decisions of Illinois as governing the "validity, enforcement, interpretation, [and] effect . . ." of the note — under our construction of Illinois law, appellants' claim must fail.5
Section 3-403 of the Illinois Uniform Commercial Code (Ill.Rev.Stat. ch. 26, § 3-403 (1983)) provides as follows:
(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.
Under this section,
if there is a question as to whether or not a person signed as an individual or as agent for a principal, parol evidence is admissible if, and only if, two criteria are met. First, the action must be between the immediate parties to the note. Secondly, there must be some indication of the existence of a principal or that the signator signed in a representative capacity.
J. P. Sivertson & Company v. Lolmaugh, 63 Ill.App.3d 724, 725, 20 Ill.Dec. 542, 543, 380 N.E.2d 520, 521 (1978) (citations omitted). Put another way, "section 3-403(2)(a) makes no provision for the admission of parol evidence where the instrument neither names the person represented nor shows that the signator signed in a representative capacity." Schwarzwalder v. Waitkoss, 101 Ill.App.3d 377, 380, 57 Ill. Dec. 83, 86, 428 N.E.2d 633, 636 (1981) (quoted in Millstadt Drilling, Inc. v. Southern Illinois Exploration Co., 135 Ill. App.3d 85, 88, 90 Ill.Dec. 72, 75, 481 N.E.2d 872, 875 (1985)); see Maywood-Proviso State Bank v. Sotos, 95 Ill.App.3d 155, 158, 50 Ill.Dec. 560, 563, 419 N.E.2d 668, 671 (1981) ().
The instrument here was signed as follows:
appear on a guaranty agreement which, according to appellants, was printed on the reverse side of the original note.6 The guaranty was executed in the following manner:
Dental Associates, Incorp
/s/ Mack A. Warren /s/ Vice President
/s/ Myrta L. Hunt /s/ Vice President
Cryptic handwritten notations were made on the guaranty next to and above "Dental Associates, Incorp." and look to be the initials of two persons and an abbreviated signature of appellant Hunt.
We are not persuaded that there are sufficient indicia of a representative undertaking to get this case past summary judgment. The face of the installment note7 contains no reference to Dental Associates, Inc., nor the slightest suggestion that appellants entered the obligation on behalf of some principal. Inasmuch as the installment note here "neither names the person represented nor shows that the representative[s] signed in a representative capacity," § 3-403(2)(a) clearly operates to assign personal liability to appellants. Compare Wolfram v. Halloway, 46 Ill.App.3d 1045, 1047, 5 Ill.Dec....
To continue reading
Request your trial
-
BECKMAN v. FARMER
...whether a disputed issue of fact exists. See Spellman v. American Security Bank, 504 A.2d 1119, 1122 (D.C. 1986); Hunt v. Dental Capital Corp., 503 A.2d 205, 206 (D.C. 1985) (unopposed motion). We do not expect the trial court to ferret out disputed facts from a voluminous record without th......
-
Wyandot, Inc. v. Gracey Street Popcorn Co., Inc., 13339
...J.P. Sivertson & Co. v. Lolmaugh, 63 Ill.App.3d 724, 726, 20 Ill.Dec. 542, 380 N.E.2d 520 (1978); see also Hunt v. Dental Capital Corporation, 503 A.2d 205, 207 (D.C.App.1985); Schwarzwalder v. Waitkoss, supra, 101 Ill.App.3d 340-41, 57 Ill.Dec. 83, 428 N.E.2d Here there was certainly "some......
-
Faggins v. Fischer
...been treated as calendar days. Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 517 n. 2 (D.C.1985); Hunt v. Dental Capital Corp., 503 A.2d 205, 206 n. 4 (D.C.1985). In neither case, however, was the issue now before us presented or in dispute. See Umana v. Swidler & Berlin, Charter......