Johnston v. Central Bank of the South

• Decision Date: 16 January 1987
• Citation: 501 So.2d 1237
• Parties: Billy F. JOHNSTON, Sr. v. CENTRAL BANK OF THE SOUTH. Civ. 5605.
• Court: Alabama Court of Civil Appeals

Page 1237

501 So.2d 1237

Billy F. JOHNSTON, Sr. v. CENTRAL BANK OF THE SOUTH.

Civ. 5605.

Court of Civil Appeals of Alabama.

Jan. 16, 1987.

Robert H. McKenzie of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.

Edward W. Doggett, Florence, for appellee.

WRIGHT, Presiding Judge.

This is an appeal from an order granting summary judgment in favor of plaintiff in a breach of contract case.

In January 1985, Eagle Sales and Manufacturing, Inc. (Eagle), by and through its officer, Billy F. Johnston, Sr., executed and delivered a promissory note to Central Bank of the South. The corporation defaulted on the note leaving a balance owed to the plaintiff of $5,000.00. In addition, a check dated August 30, 1985 from Tri-State Wholesale in the amount of $1,958.00 was deposited into the checking account of Eagle, whose checking account was with plaintiff bank. The check was returned unpaid due to either insufficient funds or a stop-payment order--the record is unclear on this point. In any case, the check amount was charged to the loan balance. In April 1984, defendant had executed and delivered to plaintiff an unlimited continuing guaranty providing that he would be liable for all indebtedness of Eagle corporation. Indebtedness was defined in the agreement to include:

"all advances, debts, obligations and liabilities of borrowers or any one or more of them, heretofore, now, or hereafter existing, made, incurred, or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, not limited to but including principal, interest, cost of collection, attorney's fees and all other lawful charges, and whether borrowers may be liable individually or jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred by any statute of limitations, or whether such indebtedness may be now or hereafter become otherwise unenforceable."

The plaintiff filed suit against the defendant for the $5,000.00 balance owed on the promissory note, the $1,958.00 returned check, and interest in the amount of $536.26. After the defendant filed his answer, Central Bank filed a motion for summary judgment. Summary judgment was entered in favor of the plaintiff in August 1986. From the court's order defendant appeals and we affirm.

For a summary judgment to be properly granted, the pleadings and affidavits must establish no scintilla of evidence which raises a genuine issue as to any material fact and the moving party must be entitled to judgment as a matter of law. Houston v. McClure, 425 So.2d 1114 (Ala.1983). In a breach of contract action, summary judgment is appropriate only where the contract is unambiguous and the facts are undisputed. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So.2d 928 (Ala.1985). In our review of a trial court's grant of summary judgment, we must use the same standard as that used by the court below. Henderson v. Hanson, 414 So.2d 971 (Ala.Civ.App.1982).

The...