Mitchell v. Mitchell

• Court: Alabama Court of Civil Appeals
• Writing for the Court: HOLMES; WRIGHT, P.J., and BRADLEY
• Citation: Mitchell v. Mitchell, 453 So.2d 1042 (Ala. Civ. App. 1984)
• Decision Date: 15 February 1984
• Parties: James L. MITCHELL v. W. Fay MITCHELL. Civ. 4088.

Page 1042

453 So.2d 1042

James L. MITCHELL v. W. Fay MITCHELL.

Civ. 4088.

Court of Civil Appeals of Alabama.

Feb. 15, 1984.

Rehearing Denied March 21, 1984.

Certiorari Denied July 13, 1984

Alabama Supreme Court 83-703.

Larry R. Grissett of Prestwood, Prestwood & Grissett, Andalusia, for appellant.

Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.

HOLMES, Judge.

This is an appeal from a summary judgment granted in favor of the plaintiff and against the defendant for possession of certain real property.

The parties to this appeal were divorced in 1980. As part of the division of property the defendant (husband) gave the plaintiff (wife) a quitclaim deed to certain real property.

In August 1982, the wife filed suit against the husband seeking possession of the property plus damages for the wrongful withholding of the property by the husband. In September 1982, the husband filed a motion to dismiss for failure to state a claim, which was denied by the trial court. The wife filed a motion for summary judgment accompanied by appropriate affidavits. The husband then filed an answer denying the allegations of the wife's complaint, i.e., a general denial. The husband did not offer anything in response to the wife's motion for summary judgment.

In December 1982, the trial court granted the wife's motion for summary judgment. The next day the husband filed a motion for reconsideration of the judgment accompanied by an affidavit. The trial court declined to reconsider its judgment. The case was subsequently tried before a jury on the issue of damages only. The wife received a jury verdict in her favor in the amount of $200. The husband, through able counsel, now appeals. The husband's only contention on appeal is that the trial court erred in granting the summary judgment. We find no error requiring reversal and affirm.

As stated, the only issue on appeal is whether the trial court erred in granting summary judgment.

A party moving for summary judgment has the burden of clearly showing that there is an absence of a genuine issue as to any material fact and that the moving party must be entitled to the summary judgment as a matter of law. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981).

Once a motion for summary judgment has been made and supported as required by Rule 56, Alabama Rules of Civil Procedure, the motion is to be granted unless the adverse party makes an evidentiary or factual showing that there is a genuine issue of fact for trial. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981).

In the instant case, the wife made a proper motion for summary judgment supported by affidavits. The motion and affidavits, taken along with the pleadings, show that the husband gave a quitclaim deed conveying certain real property to the wife as a division of property in a divorce case. The wife also showed that the husband was in possession of the property and refused to relinquish possession. Clearly, under these facts, the wife was entitled to a judgment in her favor on the claim to recover possession.

Once a prima facie showing is made that there is no genuine issue of material fact, it then becomes the burden of the opposing party to produce evidence to the contrary. Holliyan v. Gayle, 404 So.2d 31 (Ala.1981). An opposing party may not rest upon the mere allegations or denials of the pleadings. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981). In the instant case, as indicated, the husband did not offer anything in response to the wife's motion for summary judgment other than a general denial of the complaint.

When no evidence is offered to contradict, or the opposing party fails to respond to a motion for summary judgment, the trial court has no alternative but to consider the evidence presented by the moving party as uncontroverted; and, if warranted by such evidence, summary judgment may be entered against the non-moving party. Butler v. Michigan Mutual...