Pileri Indus., Inc. v. Consolidated Indus., Inc.

• Decision Date: 10 September 1999
• Citation: 740 So.2d 1108
• Parties: PILERI INDUSTRIES, INC. v. CONSOLIDATED INDUSTRIES, INC.
• Court: Alabama Court of Civil Appeals

740 So.2d 1108

PILERI INDUSTRIES, INC. v. CONSOLIDATED INDUSTRIES, INC.

2971377.

Court of Civil Appeals of Alabama.

September 10, 1999.

Brian Dowling, Dothan, for appellant.

Submiteed on appellant's brief only.

YATES, Judge.

Pileri Industries, Inc., sued Consolidated Industries, Inc., alleging, in Count One, that Consolidated owed $45,259.25 on a stated account and, in Count Two, that Consolidated had breached a contract. Following a nonjury trial, the court found in favor of Consolidated. We affirm.

Where a trial court's judgment in a nonjury case is based on ore tenus testimony, the court's findings of fact are presumed correct, and the judgment will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. McDonald v. Schwartz, 706 So.2d 1230 (Ala.Civ.App.1997).

On April 17, 1991, the parties agreed that Pileri would produce parts for 6,500 battery assemblies and that Consolidated would purchase the parts for $228,465. In that document labeled "Purchase Order 8691," under the section "Ship Via" is typed "Best Way." Other terms agreed to were either marked or initialed. The section labeled "F.O.B." is blank. Mr. Pileri, as owner, testified at trial that some of the shipping invoices related to Purchase Order 8691 that Pileri sent to Consolidated contained the wording "F.O.B. Farmingdale," Pileri's place of business. (A contract with the term "F.O.B. Farming-dale/New York" would be a "shipping contract," and that term would relieve Pileri of the risk of loss during shipment.) The "F.O.B" term on the other invoices was left blank. None of those invoices were introduced into evidence. Moreover, Mr. Pileri wrote a letter on February 12, 1992, which was admitted into evidence, wherein he specifically "void[ed] any prior agreements" and terminated Purchase Order 8691.

On March 30, 1992, the parties made a new agreement whereby the seller would sell the parts completed or in progress, for $65,075.25. The invoice relating to those parts shipped on November 4, 1992, pursuant to the March 30, 1992, agreement, does not contain an "F.O.B." term. The bill of lading from November 4, 1992, indicates only that Pileri shipped some items to Consolidated. It does not indicate whether the contract was a "shipping contract" or a "destination contract." In other words, it does not state "F.O.B. Farmingdale" (Pileri's place of business) or "F.O.B. Huntsville" (Consolidated's place of business). Pileri sued Consolidated, attempting to recover money for the parts shipped on November 4, 1992.

Pileri raises two issues on appeal: (1) "Did the trial court err in ruling against the seller of goods when an account stated was uncontested and supported by an affidavit?" and (2) "When a U.C.C. transaction is clear or is made clear by the parties' dealings, is seller entitled to judgment?"

Pileri argues that because its complaint contained an uncontested affidavit, it was entitled to a judgment in its favor, pursuant to § 12-21-111, Ala.Code 1975. First, we note that there are deficiencies in Pileri's brief. Throughout, Pileri's brief cites headnotes from West's Southern Reporter. A headnote is not legal authority; rather, it is a publisher's interpretation of what the particular court stated, and it should not be relied upon to convey the precise case holding. A headnote is intended solely for the convenience of the public and the Bar as a research and indexing aid.

Second, Pileri argues that Mr. Pileri's uncontested affidavit filed in support of the stated account entitles it to a judgment based on § 12-21-111. However, § 12-21-111 requires that the affidavit be notarized, and Mr. Pileri's affidavit was not.

Third, Pileri cites Rose Manor Health Care, Inc. v. Barnhardt Mfg. Co., 608 So.2d 358 (Ala.1992), and Merchant's Printers, Inc. v. Vulcan Publications, Inc., 597 So.2d 1322 (Ala.1992), to support its argument regarding the uncontested affidavit. It cites Rose Manor for the proposition that the "Seller's uncontested affidavit of account stated was sufficient for judgment." This is an incorrect statement of the holding in that case. In Rose Manor, the plaintiff was entitled to a summary judgment where the defendant did not notify the plaintiff that the account should be closed or that another entity was operating the nursing home that had previously been operated by the defendant. The plaintiff continued to supply goods on credit and was not paid. The supreme court does not cite § 12-21-111 in Rose Manor. Further, the defendant in Rose Manor did file an affidavit to counter the plaintiffs affidavit filed with its summary-judgment motion. However, it was the defendant's failure to notify the plaintiff that the account should be closed or that another entity was operating the nursing home that entitled the plaintiff to a summary judgment—not the filing of an uncontested affidavit, as Pileri suggests.

In Merchant's Printers, the issue was whether a plaintiff is entitled to a summary judgment when it makes a prima facie showing of a debt owed to it by attaching to the complaint a verified statement of account, as permitted by § 12-21-111, and the defendant fails to file a counter-affidavit as required by that statute. The supreme court held that § 12-21-111 is an evidentiary rule and that the prima facie case may be rebutted by other means. Pileri disingenuously cites Merchant's for the proposition that "the defendant did not file an affidavit stating that it disputed the account, in whole or in part, so the trial court had to consider Merchant's account as `competent evidence of the correctness' of the account." The Merchant's court clearly stated:

"We cannot agree with the argument that Merchant's was entitled to a summary judgment, as a matter of law, because of the failure of Vulcan to file a counteraffidavit within 30 days after Merchant's filed its complaint containing the verified account. Section 12-21-111[,] upon which Merchant's strongly relies, is merely an evidentiary rule."

597 So.2d at 1324. Pileri's citation of Merchant's Printers does not support its argument, and its argument misstates the law.

Although Pileri does cite cases and a statute, each of these authorities stands only for general propositions of law and none is cited in such a way as to support any contentions of error by the trial court. See Rule 28(a)(5), Ala. R.App. P. A lawyer is obligated to read every case cited in his brief, to be certain that it stands for the proposition asserted. It is not the job of the appellate courts to do a party's legal research. Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993). Nor is it the function of the appellate courts to "make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).

Pileri's second argument is that the November 4, 1992, agreement was a "shipping contract," that it delivered the goods to the carrier, and, therefore, that it is entitled to a judgment. With a shipping contract, the risk of loss is shifted from the seller to the buyer when the seller delivers the goods to the carrier. § 7-2-319(a), Ala. Code 1975. With a destination contract, the seller is required to deliver the goods to a particular destination; such a contract imposes the risk of loss on the seller until the buyer actually receives the goods. § 7-2-319(b).

Again, Pileri's brief falls short in its arguments. Pileri cites headnotes as authority; as discussed above, it is improper to do that. Pileri goes on to make bare assertions and to cite general propositions of law. Pileri cites State Dep't of Revenue v. Dixie Tool & Die Co., 537 So.2d 921 (Ala.Civ.App.1987), reversed and remanded, 537 So.2d 923 (Ala.1988),¹ for the proposition that "Both appellate courts agree a Seller completes its performance and title passes when goods are delivered to a common carrier, because that starts a continuous flow to Buyer." Dixie Tool was a sales-tax case dealing with interstate commerce and the question when certain sales are exempt from state taxation. It does not stand for the proposition asserted by Pileri.

Pileri cites State v. Natco Corp., 265 Ala. 184, 90 So.2d 385 (1956), for the proposition that "The general rule is that delivery by seller to common carrier is delivery to purchaser and title passes, especially where buyer pays shipping." Natco was a tax case and the issue was whether the seller should include transportation charges in computing its sales-tax liability. The supreme court held:

"[I]f the seller contracts to sell tangible personal property F.O.B. origin [i.e., a shipping contract] the title to the property passing at such point to the buyer and the buyer pays the transportation charges, then the transportation charges are rendered to the buyer and are not a part of the selling price of the vendor."

Id., 265 Ala. at 188, 90 So.2d at 389 (emphasis added). Pileri again fails to cite authority to support its argument that the November 4, 1992, agreement was, in fact, a shipping contract.

We note that even if Pileri's brief was supported by proper arguments, as is required by Rule 28, Ala. R.App. P., its substantive claim is without merit, because it failed to prove that the November 4, 1992, agreement was indeed a shipping contract. We disagree with Pileri's suggestion that Consolidated did not present any evidence to dispute Mr. Pileri's characterization of the agreement as a shipping contract. Consolidated cross-examined Mr. Pileri as to whether the November 4, 1992, invoice contained an "F.O.B. New York" term; Mr. Pileri admitted it did not. Additionally, Pileri cannot rely on Mr. Pileri's testimony that it was "standard procedure" among Government contractors that, unless otherwise agreed, the contract was a shipping contract. Mr. Pileri was not proffered as an expert in...