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10/07/94 TOM REYNOLDS v. PEL-PAK

October 7, 1994

TOM REYNOLDS, AS TRUSTEE FOR CHARLES RAY UTTERBACK, SR., INDIVIDUALLY
v.
PEL-PAK, INC., GENE ARMSTRONG, LIBERTY TROUSER COMPANY, INC., AND MIKE RICHERZHAGEN



Appeal from Jefferson Circuit Court. (CV-90-3856). Stuart Leach, TRIAL JUDGE.

Rehearing Overruled November 10, 1994, . Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

Tom Reynolds, as trustee for Charles Ray Utterback, Sr., individually, appeals from an order granting a motion for summary judgment in favor of Pel-Pak, Inc., and Mike Richerzhagen, an employee of Pel-Pak, Inc. (collectively referred to as Pel-Pak), and Liberty Trouser Company, Inc., and Gene Armstrong, an employee of Liberty Trouser Company, Inc. (collectively referred to as Liberty).

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

Charles Ray Utterback, Sr., was president, CEO, secretary, treasurer, and 100% shareholder of Birmingham Sales Company, Inc. (Birmingham Sales). Birmingham Sales and Utterback, in his individual capacity, filed a multi-count complaint against multiple defendants, including Pel-Pak and Liberty. The complaint alleged, in pertinent part, that Pel-Pak and Liberty assisted two other defendants, Jerry Gunnin and Harold McDonald, who were former employees of Birmingham Sales, in breaching their covenants not to compete with Birmingham Sales. The complaint also alleged that such actions, along with other tortious conduct, resulted in damage to Birmingham Sales and Utterback.

We would note that during the time that the present litigation was pending, both Utterback and Birmingham Sales filed bankruptcy, and bankruptcy trustees were appointed. Thereafter, the bankruptcy trustees were properly substituted as the plaintiffs in this action. However, for purposes of this appeal, this court will refer to the plaintiffs as Utterback and Birmingham Sales rather than by the names of the bankruptcy trustees.

Pel-Pak and Liberty filed motions for summary judgment, which were granted in favor of Pel-Pak and Liberty on September 29, 1993. The September 29, 1993, order provided in pertinent part:

"It appears to the court that there is no dispute as to any material fact based on what was submitted to the court at the hearing. The court specifically finds that there is an absence of evidence to substantiate any of the grounds in the complaint. In addition, the court finds that the individual plaintiff, Charles Ray Utterback, Sr., has no cause of action against [Pel-Pak and Liberty].

"Accordingly, summary judgment is entered in behalf of [Pel-Pak and Liberty], and [Pel-Pak and Liberty] are dismissed with prejudice, costs taxed to [Utterback and Birmingham Sales]. The court specifically finds that there is no just reason for delay in the entry or finality of this judgment and, accordingly, it is made final under the provisions of Rule 54(b), ARCP."

On October 1, 1993, a motion to vacate the summary judgment in favor of Pel-Pak and Liberty was filed jointly by the attorneys representing Utterback and Birmingham Sales. The motion to vacate was granted on December 16, 1993. The December 16, 1993, order provided that "the motion of [Utterback and Birmingham Sales] to vacate the summary judgment previously entered in behalf of [Pel-Pak and Liberty] is granted. The judgments in behalf of [Pel-Pak and Liberty] are set aside and held for naught."

Thereafter, a motion for clarification, filed by Liberty, was granted by the trial court on March 1, 1994. The March 1, 1994, order provides in pertinent part:

"This court's vacation of its earlier summary judgment order was not intended to reinstate the individual claims of Charles Ray Utterback, Sr. It was the intention of the court to simply reinstate the corporate claims as against [Liberty] and [Pel-Pak]. Accordingly, it is the court's order ...


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