Little v. Pizza Wagon, Inc.

• Decision Date: 03 June 1983
• Citation: 432 So.2d 1269
• Parties: Alfred E. LITTLE, as successor in interest of Moniac Corporation, Inc., a dissolved corporation v. PIZZA WAGON, INC., a corporation, and Jad A. Wolf. 82-35.
• Court: Alabama Supreme Court

Page 1269

432 So.2d 1269

Alfred E. LITTLE, as successor in interest of Moniac Corporation, Inc., a dissolved corporation v. PIZZA WAGON, INC., a corporation, and Jad A. Wolf.

82-35.

Supreme Court of Alabama.

June 3, 1983.

Jerome P. Shinault, Mobile, for appellant.

William H. Saliba, Mobile, for appellees.

Joseph J. Boswell, Mobile, for amicus curiae Thomas W. Adams, Jr.

PER CURIAM.

Plaintiff Alfred E. Little initiated these proceedings on December 26, 1979, against defendants Pizza Wagon, Inc., Jad A. Wolf (as surety for Pizza Wagon, Inc.), and Thomas A. Adams, Jr. Plaintiff's complaint was premised upon defendants' alleged breach of a written leasehold agreement by their: (1) failure to maintain the leased premises; (2) improper transfer and/or assignment of the leased premises; (3) abandonment of the leased premises; and (4) failure to pay rent pursuant to the terms of the lease.

On March 10, 1980, defendant Adams filed a motion to dismiss or, in the alternative, to abate the action as to him, alleging that there was presently pending in the federal district court a civil action filed by him against Little, which suit arose out of the same transaction which is the subject of this lawsuit. Adams alleged that Little had been served with a copy of the complaint in the federal court action before service was obtained on Adams in the state court action, and that, in addition, Little had filed an appearance in the suit in federal court. He also asserted that the matter raised by Little in the state court constituted a compulsory counterclaim under Federal Rules of Civil Procedure and should be asserted in the federal action.

After a hearing, the trial court granted this motion and dismissed Little's action against Adams.

On May 2, 1980, defendant Wolf filed a motion to stay these proceedings, alleging that the action then pending in the federal district court, brought by Adams against Little, would be a complete bar and defense to any action by Little against Wolf. This motion was granted on June 5, 1980.

Thereafter, defendants Pizza Wagon and Wolf filed a motion for summary judgment, supported by copies of Little's federal court pleadings, as well as supporting briefs. Defendants' motion for summary judgment was predicated upon grounds that Little was estopped from offering different facts in the state court proceedings from those submitted in the federal cause of action in which, despite a favorable verdict for Adams, neither Adams nor Little was awarded damages. The trial court granted summary judgment in favor of the defendants. Little appealed. We reverse and remand.

There have been no factual hearings or trial in this case. The following facts are contained in the pleadings submitted in both the federal and state actions.

In 1974, Alfred E. Little owned an unimproved parcel of realty in Mobile. During this period, Little was approached by Jad A. Wolf, who proposed that Little construct a building on the property according to Wolf's plans, to be leased to Pizza Wagon, Inc., a corporation organized by Wolf. In order to satisfy loan requirements for financing, Little incorporated as Moniac Corporation. After the loan was procured, Moniac was dissolved, with Little as its successor in interest.

In December of 1974, Moniac (i.e., Little) consummated a lease agreement with Pizza Wagon, Inc., the term of the lease to run from January 1, 1975, through December 31, 1984. Wolf, by written endorsement to the lease, personally guaranteed full compliance by Pizza Wagon, Inc., with all terms of the lease. The lease document contained, inter alia, the following clauses:

"16. Lessee shall not transfer or assign this Lease or sublease the premises or any part without the written consent of the Lessor, provided that the Lessor will not withhold its consent unreasonably.

"....

"32. Each and every transfer or assignment of this Lease, or any interest therein, and each and every subletting of said premises, or any part thereof, or any interest therein, shall be null and void, unless the written consent of the Lessor be first obtained thereto, and any violation hereof is agreed and understood to constitute a substantial and material breach of condition of this Lease, with all of the rights thereunto pertaining as in the case of default for any other cause hereunder."

On August 30, 1976, Pizza Wagon, Inc., and Wolf executed to Thomas A. Adams, Jr., an instrument entitled "Assignment of Leasehold Interest." According to Little, he had previously advised Wolf orally that, although he (Little) would not release Wolf by means of a new lease or otherwise, he would not object to Wolf's assigning or subletting to the parent company of Pasquale's Pizza franchises in Birmingham. Adams was not connected with the parent company, but was simply another franchisee.

Adams had possession of the premises until on or about March 15, 1979, at which time he executed an instrument, captioned "Agreement," with First Southeast Foods, Inc., under which Adams agreed to sell all of the assets utilized in the subject premises. On the same date, Adams executed to First Southeast Foods an "Assignment of Lease," which, according to Little, was done without his knowledge or consent and in direct contradiction to his wishes as expressed to Adams.

First Southeast Foods, Inc., closed the establishment on the premises and abandoned the property in August of 1979.

Appellant argues that Rule 56, Alabama Rules of Civil Procedure, requires that the court, when considering a motion for summary judgment, be presented with one or more of the following: (1) pleadings; (2) depositions; (3) answers to interrogatories; (4) admissions on file; and/or (5) affidavits. Accordingly, says the appellant, because of the lack of submission of such documentation to the trial court, a ruling that there existed no genuine issues of material fact and that the moving party (Adams) was entitled to judgment, as a matter of law, was totally erroneous. This argument is more extensively presented in appellant's brief as follows:

"In point of fact, there have been no depositions taken in this case; there were no answers to interrogatories, no interrogatories having been filed; no 'admissions on file,' no motions for admissions having been filed; and no affidavits, none having been filed by either plaintiff or defendant either in the court of litigation of this case or in support of the motion for summary judgment.

"The 'motion for summary judgment' does not comply with the requirements of the [Rule] upon which it is based. For this reason, if no other, the motion is to be denied.

"The rights as between Little and Pizza Wagon and Wolf were not litigated in the Federal action. Wolf and Pizza Wagon were not parties thereto. Little's rights as against Wolf and Pizza Wagon remain to be determined by the Circuit Court. The Federal action determined, if anything, only the rights as between Little and Adams, the second occupant.

"Wolf's brief written into the motion for summary judgment quotes passages from Little's Attorney's pretrial statement filed in the Federal Court action. These statements are not evidence in the Alabama Circuit Court, and do not constitute 'pleadings' in this Court within the meaning of the Alabama Statute on Summary Judgments. Yet, by the very language of Defendant's Motion for Summary Judgment, the motion is based upon the pleadings filed by the Plaintiff in this action in the United States District Court of Alabama titled: Thomas W. Adams, Jr., Plaintiff, vs. Alfred E. Little.... Defendant's motion for Summary Judgment therefore is devoid and naked of any of the elements prescribed in Rule 56(C) enabling the Circuit Court to grant the motion; these pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. The motion is therefore not in conformance with the requirements of our [Rule] and ... is for that reason alone due to be denied."

Appellant's argument that the trial court's "summary judgment" was, in effect, a judgment on the pleadings, is essentially correct; but this, of itself, does not render such judgment reversible if the record shows that no genuine issue of material fact remained in the case and only a question of law was presented.

Such is not the case here. There are any number of factual issues outstanding. As Little points out, he swore, in opposition to the defendants' motion for summary judgment, that the federal action did not involve and did not decide whether Pizza Wagon and Jad A. Wolf, the original signatories to the lease, owed him money. The movants for summary judgment did not carry their burden. In fact, it was supported by an affidavit of the attorney who was one of the lawyers representing Adams in the federal litigation. He said only that the jury found that Adams owed Little no further obligation under the terms of the lease assigned to him. There has been no determination of whether Pizza Wagon and Wolf owe Little under the lease. Clearly, the trial court erred in granting summary judgment in their favor. They have as movants the burden of establishing that no genuine issue as to any material fact exists and that they are entitled to prevail as a matter of law. Campbell v. Southern Roof Deck Applicators, Inc., 406 So.2d 910 (Ala.1981); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

Whether the defendants are entitled to prevail on their defenses of collateral estoppel or res judicata we cannot say. We can say that they cannot prevail on those defenses in the record before us. We have the unchallenged assertion that the issues raised by Little against them have never been decided in any court. He is entitled to one determination of his claims against them.

The judgment is reversed, and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur, except JONES, J., who concurs specially.

JONES, Justice (concurring specially).

I concur, without...