Kuhns v. Coussement

• Decision Date: 06 May 1981
• Citation: 412 So.2d 779
• Parties: Virginia K. KUHNS as Executrix of the Estate of Joseph H. Kuhns d/b/a Kuhns Engineering Service v. S. H. COUSSEMENT. Civ. 2519.
• Court: Alabama Court of Civil Appeals

Page 779

412 So.2d 779

Virginia K. KUHNS as Executrix of the Estate of Joseph H. Kuhns d/b/a Kuhns Engineering Service v. S. H. COUSSEMENT.

Civ. 2519.

Court of Civil Appeals of Alabama.

May 6, 1981.

Rehearing Denied June 10, 1982.

Mary R. McKay of Tucker, Gray & Espy, Tuscaloosa, for appellant.

Stanley Jay Murphy of Murphy & Murphy, Tuscaloosa, for appellee.

BRADLEY, Judge.

This is an appeal from a judgment in favor of the defendant and against the plaintiff in a dispute over who is responsible for the payment of the balance due on a note.

The facts show that S. H. Coussement, president of Replex Corporation, executed a note whereby Replex promised to pay Kuhns Engineering Service $3,844.50 for consulting services which would be furnished to Replex Corporation.

Coussement signed the note without indicating that he was signing it as president of Replex. After the execution of the note, Kuhns died and his wife, the plaintiff, was appointed executrix of his estate.

Mrs. Kuhns, as executrix of her husband's estate, brought suit in the District Court of Tuscaloosa County against Replex Corporation and Mr. Coussement individually.

Counsel for Mr. Coussement responded to this complaint by filing a "motion in response to the complaint" on January 18, 1980 with the court requesting it, inter alia, to dismiss Coussement from the suit on the ground that:

(T)his action is based upon alleged business relationships between the Plaintiff and the Defendant Replex Corporation. There is no showing in the Complaint or in the attachments thereto of any basis whatsoever for individual liability on the part of the corporate officer for alleged obligations of the corporation.

On February 13, 1980 defendant filed an affidavit in support of this motion stating, among other things that:

As to the subject matter of the ... lawsuit, this suit involves a business transaction between Replex Corporation and Kuhns Engineering Services. At all times, under all circumstances, Replex Corporation was doing business as a corporate entity and I acted and was acting as a corporate official and not in my individual capacity. At no time did I represent to any party to the above-referenced transaction that I was acting in an individual capacity.

The district court never ruled on this motion before rendering a judgment in this cause on April 2, 1980 against Replex Corporation for $4,063.93. At the same time, however, the court refused to find Mr. Coussement liable on the note. Appeal was perfected by plaintiff to the circuit court from that part of the judgment finding in favor of Coussement.

After the appeal to the circuit court, plaintiff filed a motion for summary judgment based on the pleadings, the note, and an attached memorandum of law. The trial court overruled the motion and proceeded to a hearing on the merits. After the ore tenus hearing the court found for the defendant, Coussement.

Before considering the merits of this appeal, we will examine plaintiff's complaint that the trial court erroneously overruled her motion for summary judgment.

As we have said in the past, a party is not entitled to a summary judgment if he fails to show by the pleadings, depositions, answers to interrogatories, admissions, and affidavits that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Hudson-Thompson, Inc. v. Leslie C. King Co., Ala., 361 So.2d 541 (1978); Vasko v. Jardine, Ala., 346 So.2d 962 (1977).

As previously noted, plaintiff relied on the pleadings and a copy of the note to support her summary judgment motion that Coussement had signed the note in an individual rather than a representative capacity and was therefore personally liable thereon as provided by § 7-3-403(2)(b), Code of Alabama 1975, which provides:

(2) An authorized representative who signs his own name to an instrument:

....

(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 .... (Emphasis added.)

The defendant did not oppose the motion with affidavits; consequently, the trial court was required to consider the factual allegations in the pleadings filed in this case as true. Hudson-Thompson, Inc. v. Leslie C. King Co., supra.

The only pleadings present in this cause at this time were plaintiff's complaint and defendant's "motion in response to the complaint" which was accompanied by Coussement's affidavit. Although defendant did not specifically refer to his "motion" as an answer, the district court apparently regarded it as such for defendant never filed an ARCP 7(a) answer in response to plaintiff's complaint before the court entered a judgment in his favor. A bona fide motion is certainly not a pleading within the intendment of Rule 7 of the Alabama Rules of Civil Procedure. See generally In re Zweibon, 565 F.2d 742 (D.C.Cir.1977); ARCP 7(a), (b). Nevertheless, if the grounds marshalled by a defendant in support of his "motion to dismiss" a plaintiff's complaint collectively constitute a general denial of liability to the...