Water View Developments, Inc. v. Eureka, Inc.
| Decision Date | 31 July 1987 |
| Citation | 512 So.2d 916 |
| Parties | WATER VIEW DEVELOPMENTS, INC. v. EUREKA, INC. 86-630. |
| Court | Alabama Supreme Court |
Byron A. Lassiter of Shores & Booker, Fairhope, for appellant.
Robert A. Wills, Bay Minette, for appellee.
This is an appeal from a summary judgment entered for the plaintiff, Eureka, Inc., in an action on a promissory note brought against Water View Developments, Inc.
Eureka filed its summons and complaint on August 5, 1986, and service was perfected on Water View Developments, Inc., on September 4, 1986. On September 3, 1986 (the day before Water View was served), Eureka filed its "motion for summary judgment based upon the pleadings and all affidavits on file in this cause."
Eureka's motion for summary judgment first came before the trial court on the regular motion docket on September 17, 1986 (two days before an appearance was made on behalf of Water View), and was continued. On September 23, 1986, Water View filed a request for production of documents. On September 30, 1986, Water View filed the counter-affidavit of Milton Andrews, which was to the effect that because of the poor maintenance of the corporate records of Water View during the presidency of Thomas Nonnemacher, it was necessary to have an accounting firm analyze those records for the transactions made during the time period under consideration in the litigation. Therefore, stated Andrews, until the accountant finished the research and analysis of the corporate records, "it cannot be stated with certainty that Water View Developments, Inc., either did or did not receive and use these funds."
On October 1, 1986, Eureka's motion for summary judgment again appeared on the regular motion docket and was again continued. On that same day, Water View filed interrogatories to Eureka. On November 5, 1986, and on December 3, 1986, the summary judgment motion was again continued. On December 12, 1986, Water View filed an answer and a motion to extend time, pursuant to Rule 56(f), A.R.Civ.P.
On December 17, 1986, with Water View's request for production and its interrogatories still outstanding, Eureka's motion for summary judgment was granted. We reverse.
Eureka rests its argument in support of the trial court's summary judgment on two grounds: 1) The large number of continuances of its summary judgment motion; and 2) the failure of Water View to pursue its discovery by seeking sanctions against Eureka for its noncompliance. We are not impressed with either of these arguments.
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