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08/26/94 AMSOUTH BANK v. HAROLD E. HOLLAND

August 26, 1994

AMSOUTH BANK, N.A.
v.
HAROLD E. HOLLAND, JR.



Appeal from Jefferson Circuit Court. (CV-92-2404). Claude Hughes, TRIAL JUDGE.

Rehearing Denied September 30, 1994. Released for Publication February 20, 1996.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

AmSouth Bank, N.A. (Bank), filed suit against Harold E. Holland, Jr., d/b/a Holland Cars, Inc., an individual (Holland), and Holland's Cars, Inc., a corporation (corporation). In its complaint, the Bank alleged that Holland failed to pay $59,000, plus interest, the amount due under a promissory note executed with the Bank on September 4, 1991. Holland answered and contended that because he signed the promissory note in a representative capacity for the corporation, he was not personally liable on the promissory note.

Both parties filed motions for summary judgment, with supporting documentation. After hearing arguments, the trial court issued an order, wherein it determined that Holland was not individually liable on the note and, thus, granted Holland's motion for summary judgment. The trial court also granted the Bank's motion for summary judgment as to the corporation and entered a judgment in favor of the Bank and against the corporation in the amount of $84,202.21 (principal of $59,000.00; interest of $14,214.96; and attorney fees in the amount of $10,987.25). Final judgment was entered pursuant to Rule 54(b), A.R. Civ. P. The Bank's post-judgment motion was denied.

The Bank appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal the Bank contends that the trial court erred when it granted the motion for summary judgment in favor of Holland, individually.

Rule 56(c), A.R. Civ. P., provides that summary judgment is appropriate in situations where there exists no genuine issue of any material fact and the movant is entitled to a judgment as a matter of law. The moving party has the burden of establishing that no genuine issue of a material fact exists. Burks v. Pickwick Hotel, 607 So. 2d 187 (Ala. 1992). All reasonable uncertainties concerning the existence of a genuine issue of a material fact must be resolved against the movant. Sadie v. Martin, 468 So. 2d 162 (Ala. 1985).

However, if the moving party makes a prima facie showing that no genuine issue of a material fact exists, then the burden shifts to the non-moving party to present substantial evidence regarding the existence of a genuine issue of a material fact. Clay v. River Landing Corp., 601 So. 2d 919 (Ala. 1992).

In our review of the record, we note that the following pertinent facts are revealed: The Bank and Holland maintained a business relationship over a period of several years. In the summer of 1991, Holland had an installment loan and an executive line of credit, which were in serious default. In addition, Holland owed money to the Bank, which arose out of the settlement of a lawsuit between the Bank and Holland. All of the money owed to the Bank by Holland was owed in his individual capacity.

The Bank, by and through Monique Miller, agreed to restructure these existing debts through a 90-day note in the amount of $60,000. On September 4, 1991, Holland went to the Bank to sign the note. Miller had prepared the note with no typed signature line, and she was not at the Bank when Holland came to sign the note.

Miller stated in her affidavit that it was her understanding that the note would be signed by Holland in his individual capacity. Holland testified in his deposition that he had talked with Miller about signing the note in the name of a corporation which he was ...


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