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12/16/94 WILLIAM MILLER AND FIRST CAPITAL

December 16, 1994

WILLIAM MILLER AND FIRST CAPITAL ASSOCIATES, INC.
v.
ALABAMA CENTRAL CREDIT UNION



Appeal from Madison Circuit Court. (CV-93-909). Thomas N. Younger, TRIAL JUDGE.

Rehearing Overruled January 27, 1995, . Certiorari Denied May 5, 1995. Released for Publication October 17, 1995.

Richard L. Holmes, Retired Appellate Judge. All Judges concur.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the trial court's order granting the motion for summary judgment in favor of Alabama Central Credit Union (credit union) on the counterclaim filed by William Miller and First Capital Associates, Inc. (First Capital).

The credit union originally filed suit against Miller and First Capital for advances under a line of credit and for breach of contract. Miller and First Capital filed an answer and counterclaim, wherein claims for conversion, breach of fiduciary duty, fraud, and a violation of Ala. Code 1975, §§ 7-9-501 through -507, were asserted.

Thereafter, the credit union filed a motion for summary judgment, wherein it alleged that there was no genuine issue of a material fact and that the credit union was entitled to judgment as a matter of law on each count of the counterclaim filed by Miller and First Capital.

After a hearing, the trial court issued an order, granting the motion for summary judgment in favor of the credit union. The trial court deemed the judgment in favor of the credit union to be a final judgment, pursuant to Rule 54(b), A.R. Civ. P.

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

The dispositive issue is whether the trial court erred in granting the motion for summary judgment in favor of the credit union. Miller and First Capital contend that the undisputed facts support all of the claims alleged in their counterclaim and that, therefore, the motion for summary judgment should not have been granted in favor of the credit union.

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. It is well settled that the moving party has the burden of establishing that there exists no genuine issue of a material fact and that all reasonable uncertainties regarding the existence of a genuine issue of a material fact must be resolved against the moving party. Porter v. Fisher, 636 So. 2d 682 (Ala. Civ. App. 1994).

Once the movant 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. Porter, 636 So. 2d 682.

Our review of the record reveals the following pertinent facts: First Capital is a corporation which assists businesses in obtaining Small Business Administration (SBA) loans. Miller is the owner and president of First Capital.

First Capital entered into an agreement with the credit union, under which First Capital would bring potential borrowers to the credit union and assist the borrowers in preparing SBA loan applications. In exchange, the credit union would pay to First Capital certain commission premiums earned on SBA loans. One of the businesses which received such ...


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