Pate v. Merchants Nat. Bank of Mobile

• Decision Date: 22 January 1982
• Citation: 409 So.2d 797
• Parties: Cornelia G. PATE v. The MERCHANTS NATIONAL BANK OF MOBILE. 80-627.
• Court: Alabama Supreme Court

Page 797

409 So.2d 797

Cornelia G. PATE v. The MERCHANTS NATIONAL BANK OF MOBILE.

80-627.

Supreme Court of Alabama.

Jan. 22, 1982.

Joseph J. Boswell, Mobile, for appellant.

R. Gregory Watts of Butler & Sullivan, Mobile, for appellee.

MADDOX, Justice.

Where a cause of action involves the original claim and, also, a counterclaim, can, under the appropriate facts, a trial court enter a partial summary judgment and thereby finally adjudicate the original claim and leave the counterclaim undecided so that the parties involved can further litigate the issues pertaining to that counterclaim? By answering this question in the affirmative, we deem the findings and order of the trial court to be proper and, therefore, affirm its holding.

On July 10, 1978, Gordon R. Pate, Phillip R. Pate, Susan Pate, J. Richard Pate, Brenda Pate and Cornelia Pate executed a personal guaranty agreement with Merchants National Bank of Mobile whereby they jointly and severally guaranteed the payment at maturity of all and various loans and notes executed by Pate Foundation and Pile Driving, Inc., to Merchants National, to the extent that those various notes did not exceed the sum of $20,000.

On or about April 2, 1980, Pate Foundation defaulted on a promissory note in the amount of $13,000 payable to Merchants National, and Merchants National filed suit against Pate Foundation and against the individual guarantors listed previously.

All the defendants filed an answer to Merchants National's complaint and, thereafter, Merchants National filed its motion for summary judgment.

On March 31, 1981, after Merchants National had filed its motion for summary judgment, the defendants filed an amended answer to Merchants National's complaint which contained a counterclaim by one of the defendants, Mrs. Cornelia Pate (hereinafter referred to as Mrs. Pate), alleging that Merchants National had wrongfully converted funds belonging to Mrs. Pate which had been deposited in a checking account at Merchants National. The conversion allegedly took place during the year 1979, prior to the execution of the March 3, 1980, note sued on by Merchants National in this action.

On April 3, 1981, the trial judge granted Merchants National's motion for summary judgment on its complaint and entered judgment against all defendants. The trial judge later amended this judgment of April 3, 1981, by entering a final order pursuant to Rule 54(b), ARCP. In this order the trial judge ordered that the judgment in favor of Merchants National on its motion for summary judgment be made final, but expressly reserved Mrs. Pate's right to pursue her counterclaim against Merchants National.

It is from this final order of the trial court that Mrs. Pate brings her appeal and presents this issue for our determination:

Did the trial court err in ordering a final judgment against Mrs. Pate and for Merchants National on its guaranty and promissory note claims while leaving her counterclaim against Merchants National still pending? In arguing that the trial court was in error by issuing the order of final judgment, the appellant sets forth the following in her brief:

"In this case Merchants National offered the affidavit testimony of its Assistant Vice-President with the promissory note executed by Pate Foundation attached to the affidavit as Exhibit 1 and the personal guaranty agreement signed by all of the individually named defendants attached as Exhibit 2 to the affidavit and the affiant stated that the sum of $13,000.00 principal plus $1,499.00 interest plus attorney's fee of 15% as provided for in said promissory note was now due and owing to Merchants National by Pate Foundation under the terms of the promissory note and by all of the named individual guarantors under the terms of the personal guaranty agreement. Pate Foundation offered no evidence to controvert the evidence of Merchants National pertaining to the execution of the promissory note, the default in payment thereof and the amount due thereunder. Therefore the trial court was left with no alternative but to consider Merchants National's uncontroverted evidence as true and to enter judgment against Pate Foundation as claimed in Merchants National's First Cause of Action. Further, the trial court properly directed the entry of final judgment against Pate Foundation on the promissory note as authorized by Rule 54(b) ARCP.

"None of the named individual defendants offered any evidence to controvert Merchants National's evidence in support of its motion for summary judgment against the named individual guarantors. Therefore, the trial court was left with no alternative but to consider Merchants National's evidence offered in support of its motion for summary judgment against the individual guarantors as true and the trial court properly entered final judgment against all of the named individual guarantors EXCEPT Mrs. Pate and the trial court properly directed the entry of final judgment...