May 1, 2015
Kenneth R. Adams
Tractor & Equipment Co., Inc.
from Mobile Circuit Court. (CV-11-902295).
Appellant: Charles R. Driggars, Sirote & Permutt, P.C.,
Birmingham; Juan Ortega, Sirote & Permutt, P.C., Mobile.
Appelleee: Richard C. Kellar, Burr & Forman LLP, Birmingham;
Ricardo A. Woods, Burr & Forman LLP, Mobile.
Justice. Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main,
and Wise, JJ., concur.
R. Adams appeals from a summary judgment in favor of Tractor
& Equipment Co., Inc. (" TEC" ). We reverse and
and Procedural History
and James " Buddy" Money are the only two members
of Waste Two Energy, LLC (" Waste Two" ), a limited
liability company that operates two landfills in Mobile. In
early 2011, Money, the managing member of Waste Two, had
discussions with representatives of TEC, a company that
repairs, rents, and sells heavy equipment, about servicing
heavy equipment used by Waste Two in the operation of its
business. On February 1, 2011, Money sent an e-mail to Lloyd
Adams, a representative of TEC, stating that he was
collecting information regarding Waste Two's service and
equipment needs that could be filled by TEC and that he would
complete a credit application, which would include personal
financial statements for himself and Adams, and send it to
March 3, 2011, Waste Two provided a " credit application
and agreement" (" the agreement" ) to TEC.
Money and Adams were listed as the " officers, partners,
or owners" of Waste Two. The only specific terms
contained in the agreement are as follows: " Parts and
Services: due net 10th of month following date of
purchase" ; " Machine Sales: arranged at the time
order is received" ; " Rentals: net cash payable in
advance" ; and " Delinquency Charge: 1.5% per month
on all past due open balances." Money signed the
agreement as the " principal of the credit applicant or
a personal guarantor of its obligations" and authorized
TEC, among other things, to obtain his personal credit
profile for purposes of reviewing the credit application. The
agreement included a guaranty provision that provided, in
pertinent part: " The undersigned guarantor(s), jointly
and severally, unconditionally guarantee and warrant the full
and complete payment and performance of all obligations of
the above applicant to [TEC] ... arising under this
agreement, and all
other extensions of credit, sales, leases and account
balances now or hereafter owing by applicant ...." The
names " James Money" and " Ken Adams" are
handwritten on two lines below the guaranty provision that
are each labeled " Guarantor." Beginning in March
2011 and continuing through July 2011, TEC performed various
services on equipment owned by Waste Two. At some point after
TEC had performed a substantial amount of work on Waste
Two's equipment, a dispute arose between Waste Two and
TEC over the amount of money Waste Two owed TEC for the
services it had provided.
October 17, 2011, Waste Two filed a complaint in the Mobile
Circuit Court, asserting claims of breach of contract and
misrepresentation against TEC. On December 19, 2011, TEC
filed an answer to Waste Two's complaint, a counterclaim
against Waste Two alleging breach of contract, and a
third-party complaint against Money and Adams alleging breach
of the guaranty. In its counterclaim and its third-party
complaint, TEC sought compensatory damages, attorney fees,
interest, and court costs. On January 18, 2012, Waste Two
filed an answer to TEC's counterclaim, and Money and
Adams filed an answer to the third-party complaint denying
the material allegations of the third-party complaint.
10, 2012, TEC filed a motion for a summary judgment with
respect to its third-party claims against Adams and Money. To
support its motion, TEC attached the agreement, invoices, and
other evidence indicating that Waste Two had failed to pay
TEC $86,689.80 in principal and an additional $13,398.43 in
accrued interest and late fees for services TEC had provided
to Waste Two.
29, 2012, Adams and Money, through counsel, filed a response
in opposition to TEC's motion for a summary judgment. In
that response, Adams and Money alleged that TEC and Waste Two
had an oral agreement pursuant to which TEC was to develop a
service plan for Waste Two's equipment and that "
[t]he third party defendant's [sic] entered into the
guaranty agreement with TEC pursuant to the parameters of the
agreement enacted by the parties and representations made by
Danny Wright[, TEC's service manager in Mobile,] and
others at TEC." Adams and Money further alleged that TEC
had misrepresented the condition of Waste Two's equipment
at the time of service and argued that TEC should be estopped
from asserting its rights under the agreement because, they
said, it had unclean hands. They also argued that TEC's
summary-judgment motion was premature because they had not
to Adams and Money's response was an affidavit from their
attorney, filed pursuant to Rule 56(f), Ala. R. Civ. P. In
the affidavit, their attorney stated that additional time was
needed for discovery to adequately oppose TEC's
summary-judgment motion. In that affidavit, the attorney
stated: " Along with [its] motion, [TEC] attached
Exhibits '1' and '2' showing a copy of the
credit application and agreement and affidavit of Jonella
Woods (credit manager of TEC) showing merely that [Adams and
Money] executed a guaranty agreement ...." The attorney
further stated in the affidavit, however, that the pertinent
issue was whether TEC was liable for breach of contract and
misrepresentation, which, he said, if true, would ultimately
void the guaranty provision of the agreement.
August 1, 2012, before the circuit court ruled on TEC's
motion for a summary judgment, Adams and Money filed a motion
to dismiss TEC's third-party claims against them. They
argued that they had not actually signed the guaranty
and that the unverified handwritten names below the guaranty
provision in the agreement was insufficient to satisfy the
Statute of Frauds. Adams and Money each attached an affidavit
to the motion to dismiss, stating that they had reviewed the
guaranty provision and " unequivocally deny
signing" the provision. TEC responded and argued that
the motion to dismiss should be denied because, it said, the
motion was based on evidence outside the pleadings and
because Adams and Money had already admitted, in their
response to TEC's summary-judgment motion, that they had
signed the guaranty provision as guarantors of Waste
Two's debts to TEC. TEC further stated that the argument
asserted in Adams and Money's motion to dismiss "
was never asserted in their answer or opposition to the
motion for summary judgment." See generally Hayes v.
Payne, 523 So.2d 333, 334 (Ala. 1987) (" Where an
answer has been filed and an affirmative defense has not been
pleaded, the defense generally is deemed to have been
September 7, 2012, the circuit court conducted a hearing on
TEC's motion for a summary judgment and on Adams and
Money's motion to dismiss. The same day, the circuit
court entered an order denying Adams and Money's motion
to dismiss without setting forth its basis for the denial.
There is no indication in the record that the circuit court
excluded the affidavits attached to the motion to dismiss.
See Rule 12(b), Ala. R. Civ. P. (stating that, in a motion to
dismiss asserting defense numbered (6) where " matters
outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary
judgment" ). Accordingly, the motion to dismiss had been
converted to a motion for a summary judgment. See
Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.
2002) (" '[W]here matters outside the pleadings are
considered on a motion to dismiss, the motion is converted
into a motion for summary judgment ... regardless of its
denomination and treatment by the trial court.'"
(quoting Boles v. Blackstock, 484 So.2d 1077, 1079
(Ala. 1986))). On September 19, 2012, new counsel for
Adams filed a notice of appearance in the circuit court. On
September 20, 2012, the circuit court entered a partial
summary judgment in favor of TEC on its third-party claims
against Adams and Money. However, the order did not
specifically adjudicate the issue of damages Money and Adams
owed to TEC.
October 16, 2012, Adams, through his new counsel, filed a
motion to reconsider and to vacate the partial summary
judgment entered in favor of TEC. Adams argued that the
affidavit he provided in support of his motion to dismiss
should have been considered by the circuit court as
substantial evidence creating a material question of fact
that precluded a summary judgment in favor of TEC. Adams
further argued that statements made by his first attorney in
response to TEC's motion for a summary judgment were made
before Adams had ever spoken to that attorney, that those
statements from his then attorney did not constitute "
evidence," and that, in his answer to the third-party
complaint, which was the only pleading filed by Adams that
was before the circuit court when it entered the summary
judgment for TEC, he had denied signing the guaranty
attached a second, more detailed affidavit to his motion to
stated that fro March 2011 through September 2012 he was a
minority member of Waste Two, that Money was the majority
member of Waste Two during that time, and that Money was
responsible for the daily operations of Waste Two, including
managing its finances and dealing with vendors and creditors.
Adams alleged that he was not involved with the daily
operations at Waste Two, that he did not report to work at
Waste Two's place of business, and that Money was the
only member of Waste Two who spoke to anyone associated with
TEC about the agreement or the guaranty. Adams stated that he
did not print his name on the guaranty provision and that he
did not authorize anyone to print his name on the guaranty
provision. Adams further alleged that he had never received
personal service of TEC's third-party complaint against
him and that he had not authorized an attorney to file
anything on his behalf until after July 2012, when he first
obtained " detailed knowledge" of TEC's action
against Waste Two and learned of the claim against him
personally. Adams stated that he spoke to the attorney who
represented Waste Two, the same attorney who had filed a
response to TEC's motion for a summary judgment on behalf
of Money and Adams, for the first time in July 2012 and at
that time notified him that he had never signed the guaranty
provision. Adams also attached a copy of a guaranty he had
provided to TEC in December 2009 __ a guaranty not at issue
in this case __ that, he said, accurately depicted his
signature and demonstrated that his actual signature was
distinguishable from the printed name that is purported to be
his signature on the guaranty provision.
subsequently supplemented his motion to reconsider and to
vacate with Money's deposition testimony, which was taken
on November 14, 2012. Money testified that Adams had not been
involved in any discussions with TEC, that Money had never
discussed with Adams a need to provide a personal guaranty to
TEC as part of the agreement, that he was "
intimately" familiar with Adams's handwriting and
signature, and that the printed name on the guaranty
provision in the agreement was " absolutely not"
Adams's handwriting or signature. There is no indication
in the record that the circuit court ruled on Adams's
motion to reconsider.
February 22, 2013, the circuit court entered a summary
judgment in favor of TEC on all claims asserted by Waste Two
against TEC. On March 22, 2013, the circuit court entered a
partial summary judgment in favor of TEC on its counterclaim
against Waste Two; that order did not include an adjudication
of damages against Waste Two.
7, 2013, Adams filed a " postjudgment" motion,
purportedly pursuant to Rule 59, Ala. R. Civ. P., seeking to
the summary judgment against him vacated on the basis (1)
that a genuine issue of material fact exists as to whether he
signed the guaranty provision, and (2) that the guaranty
provision violates the Statute of Frauds. See § 8-9-2,
Ala. Code 1975. Adams argued that the guaranty provision was
void pursuant to the Statute of Frauds because his "
name hand printed on the signature blank to the guaranty
without [his] knowledge or consent is insufficient under the
statute of frauds" and because the guaranty failed to
" expressly state, in writing, any consideration related
to the purported guaranty." TEC responded to Adams's
motion, arguing, among other things, that Adams had failed to
timely raise the specific Statute of Frauds arguments raised
in his " postjudgment" motion because he had not
properly amended his answer to assert those affirmative
defenses. After conducting a hearing, the circuit court
denied Adams's motion. On May 16, 2014, the circuit court
entered a final judgment ordering Waste Two, Money, and Adams
to pay TEC $85,873.84 in unpaid principal, $40,484.99 in
" accrued late charges," and $60,000 in attorney
fees and costs. Adams appealed.
appeal, Adams argues that the circuit court erred in entering
a summary judgment in favor of TEC on its third-party claim
against him because, he says, he presented substantial
evidence creating a genuine issue of material fact that
precluded the entry of a summary judgment. Adams argues
further that the circuit court erred in entering a summary
judgment for TEC and against him because, he argues, the
guaranty provision violated the Statute of Frauds.
" 'This Court reviews a summary judgment de novo.
Turner v. Westhampton Court, L.L.C., 903 So.2d 82,
87 (Ala. 2004). We seek to determine whether the movant has
made a prima facie showing that there exists no genuine
issue of material fact and has demonstrated that the movant
is entitled to a judgment as a matter of law. Turner,
supra. In reviewing a summary judgment, this Court reviews
the evidence in the light most favorable to the nonmovant.
Turner, supra. Once the movant makes a prima facie showing
that he is entitled to a summary judgment, the burden
shifts to the nonmovant to produce " substantial
evidence" creating a genuine issue of material fact.
Ala. Code 1975, § 12--21--12; Bass v. SouthTrust Bank
of Baldwin County, 538 So.2d 794, 797--98 (Ala. 1989).
" Substantial evidence" is " evidence of
such weight and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved. West v. Founders
Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.
" Muller v. Seeds, 919 So.2d 1174, 1176--77
(Ala. 2005). As is true with regard to a trial court's
rulings on questions of law in the context of a bench trial,
we review de novo questions of law arising in the context of
a summary judgment. Smith v. State Farm Mut. Auto. Ins. Co.,
952 So.2d 342, 346 (Ala. 2006)."
Van Hoof v. Van Hoof, 997 So.2d 278, 286 (Ala.
guaranty provision violates the Statute of Frauds, the
guaranty provision is void and, thus, unenforceable. See
§ 8-9-2, Ala. Code 1975. Accordingly, we will first
address Adams's argument that the guaranty provision
violated the Statute of Frauds. Section 8-9-2, Alabama's
Statute of Frauds, provides, in pertinent part:
" In the following cases, every agreement is void unless
such agreement or some note or memorandum thereof expressing
the consideration is in writing and subscribed by the party
to be charged therewith or some other person by him thereunto
lawfully authorized in writing:
" (3) Every special promise to answer for the debt,
default or miscarriage of another ...."
argues that his hand-printed name on the signature blank for
the guarantor is insufficient to satisfy the requirement in
the Statute of Frauds that the writing be " subscribed
by the party to be charged" and that the guaranty
provision expressed no consideration for Adams's promise
to pay the debt of Waste Two. In response, TEC contends that
Adams waived these Statute of Frauds defenses by failing to
amend his answer to specifically assert them.
Statute of Frauds is included in the list of affirmative
defenses in Rule 8(c), Ala. R. Civ. P., and that rule
requires that such a defense be specially pleaded. See
Wallace v. Alabama Ass'n of Classified Sch.
Emps., 463 So.2d 135, 136 (Ala. 1984). However, although
it is generally true that a party's failure to assert an
affirmative defense in its answer works as a waiver of that
defense, that rule is subject to certain exceptions.
Regarding affirmative defenses, this Court has stated:
" Once an answer is filed, if an affirmative defense is
not pleaded, it is waived. Robinson v. [Morse], 352
So.2d 1355, 1357 (Ala. 1977). The defense may be revived if
the adverse party offers no objection (Bechtel v. Crown
[Central] Petroleum Corp., 451 So.2d 793, 796 (Ala.
1984)); or if the party who should have pleaded it is allowed
to amend his pleading (Piersol v. ITT [Phillips] Drill
Division, Inc., 445 So.2d 559, 561 (Ala. 1984)); or if
the defense appears on the face of the complaint (cf.,
Sims v. Lewis, 374 So.2d 298, 302 (Ala. 1979); and
Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.
1977)). See, also, 2A J. Moore, Federal Practice §
8.27 at 8--251 (3d ed. 1984) ...."
Wallace, 463 So.2d at 136-37.
concedes that he did not raise a Statute of Frauds defense in
his answer as required by Rule 8(c) and that he never amended
his answer to assert that defense. However, he contends that
the Statute of Frauds defense was properly before the circuit
court because TEC failed to object to his assertion of that
defense when it was initially raised in his and Money's
August 2012 " motion to dismiss," which, as noted
above, was converted to a motion for a summary judgment by
the circuit court's consideration of his and Money's
affidavits. We disagree. TEC clearly set forth its position
that Adams and Money's " motion to dismiss" __
which was based primarily on a Statute of Frauds argument --
was due to be denied for various reasons, one of them being
that the argument raised in the motion had not been asserted
in his answer. Further, Adams concedes that TEC did object to
the Statute of Frauds defense that he asserted for the first
time in his " postjudgment" motion, i.e., the
argument that the guaranty provision violated the Statute of
Frauds because the guaranty did not express any consideration
given to the guarantors for the promise to pay the debt of
Waste Two. Because Adams raised this particular Statute of
Frauds defense for the first time in his "
postjudgment" motion, TEC's objection to this
defense in its response to that motion could not possibly be
construed, as Adams contends it should be, as untimely.
further contends that the circuit court could have
nonetheless considered his Statute of Frauds defense because,
he says, the defense appeared on the face of TEC's
third-party complaint. To support this argument, Adams cites
Wilder v. Clark, 263 Ala. 55, 56, 81 So.2d 273, 274
(1955), for the proposition that " '[w]here it
clearly appears on the face of the count of the complaint
that the contract or agreement alleged to have been breached
is obnoxious to the statute of frauds, it is subject to
demurrer; and can be raised by demurrer either at law or in
equity.'" (Quoting Bunch v. Garner, 208
Ala. 271, 272, 94 So. 114, 115 (1922) (emphasis added).) See
also Strouse v. Elting, 110 Ala. 132, 139, 20 So.
123, 125 (1896) (" The [Statute of Frauds defense] was
raised both by demurrer to the complaint and by plea. The
general rule is that the statute of frauds must be pleaded,
and, unless it affirmatively appears in the complaint ...
that the agreement declared upon was obnoxious to the statute
of frauds, a demurrer will not lie." ). These cases
support the proposition that a Statute of Frauds defense may
be raised in a motion to dismiss, even if it was not properly
raised in a pleading or an amended pleading, where it clearly
appears on the face of the complaint that the agreement or
contract at issue violates the Statute of Frauds. Although
later cases have stated the rule, in shorthand, as " an
affirmative defense that has not been pleaded may be revived
if the defense appears on the face of the complaint,"
Hayes v. Payne, 523 So.2d 333, 334 (Ala. 1987), the
authority cited in Hayes as support for such a rule, Sims
v. Lewis, 374 So.2d 298, 302 (Ala. 1979), which is also
cited in Wallace, supra, clearly provides that, although an
affirmative defense " should be presented in a pleading
to a preceding pleading, [it] may be properly raised via the
[Rule] 12(b)(6)[, Ala. R. Civ. P.,] motion where the face of
the complaint shows that the claim is barred."
we assume that the Statute of Frauds argument made in
Adams's " motion to dismiss" filed on August 1,
2012, was properly before the circuit court pursuant to the
rule expressed in Sims, we could not conclude that the face
of TEC's complaint showed that the breach-of-guaranty
claim was barred by the Statute of Frauds. At that time,
Adams argued only that the guaranty provision violated the
Statute of Frauds because it was not properly "
subscribed by the party to be charged therewith."
However, in its third-party complaint, TEC alleged that Adams
and Money had signed the agreement as guarantors. Further,
the agreement, which was attached to TEC's complaint,
demonstrated that the name " Ken Adams" is
handwritten on a line designated for a " guarantor"
immediately following the guaranty provision in the
second Statute of Frauds defense __ that the guaranty
provision violated the Statute of Frauds because it did not
express the consideration for the promise to pay the debt of
another -- was not raised in the motion to dismiss. Instead,
it was raised for the first time in the "
postjudgment" motion seeking to set aside the partial
summary judgment that had already determined Adams's
liability under the guaranty. As noted above, TEC objected to
Adams's assertion of this affirmative defense as
untimely, and there is no indication in the record that the
circuit court considered it. Adams has not cited
any authority to support his argument that the circuit court
was required to consider his second Statute of Frauds defense
under these circumstances. Accordingly, Adams has not
demonstrated that the summary judgment is due to be vacated
because the guaranty provision violates the Statute of
also argues that the circuit court erred in granting
TEC's motion for a summary judgment because, he says, the
record established that a genuine issue of material fact
exists regarding whether Adams actually signed the guaranty
provision and, thus, whether there existed a guaranty
contract binding Adams. " Every suit on a guaranty
agreement requires proof of the existence of the guaranty
contract, default on the underlying contract by the debtor,
and nonpayment of the amount due from the guarantor under the
terms of the guaranty." Delro Indus., Inc. v.
Evans, 514 So.2d 976, 979 (Ala. 1987). Adams does not
argue that TEC failed to make a prima facie showing that
there was no genuine issue of material fact regarding its
breach-of-guaranty claim against Adams. Accordingly, the
burden shifted to Adams to produce substantial evidence
creating a genuine issue of material fact. Van Hoof, 997
So.2d at 286.
argues that his first affidavit, in which he "
unequivocally" denied signing the guaranty provision,
was substantial evidence sufficient to create a genuine issue
of material fact as to whether Adams had in fact signed the
guaranty provision and that the circuit court erred by
entering a partial summary judgment in favor of TEC in light
of this evidence. He further argues that the circuit court
erred in failing to modify the partial summary judgment in
light of the additional evidence he presented after the
partial-summary-judgment order was entered. See generally
Simmons Mach. Co. v. M & M Brokerage, Inc., 409
So.2d 743, 759 (Ala. 1981) (holding that a partial summary
judgment is subject to revision at any time before a final
judgment is entered, but noting that " [w]hether a trial
court revises a partial grant of summary judgment, as allowed
by Rule 54(b), [Ala. R. Civ. P.,] is a matter of discretion
which, absent an abuse, we will not disturb" ).
response, TEC questions whether Adams's first affidavit
was properly before the circuit court because, it says, the
affidavit was attached to a " defective" motion to
dismiss. As discussed above, Adams and Money's motion to
dismiss was converted to a motion for a summary judgment
because the circuit court did not exclude the attached
affidavits. See Phillips, 833 So.2d at 31. Furthermore, it is
well settled that " a trial court may properly consider
any material that would be admissible at trial and all
of record as well as material submitted in support of or in
opposition to the motion when ruling on a motion for summary
judgment." Fountain v. Phillips, 404 So.2d 614,
618 (Ala. 1981). Accordingly, we conclude that Adams's
first affidavit was properly before the circuit court in its
consideration of TEC's motion for a summary judgment.
also argues that Adams's first affidavit was insufficient
to meet his burden of presenting substantial evidence to
create a question of fact because, it states, the affidavit
was " conclusory." See Rule 56(e), Ala. R. Civ. P.
(requiring an affidavit submitted in opposition to a motion
for summary judgment to " set forth specific facts
showing there is a genuine issue for trial" ). See also
Bradley Outdoor, Inc. v. Colonial Bank, 952 So.2d
359, 362-63 (Ala. 2006) (holding that an affidavit that
contained legal conclusions, not statements of fact, was
insufficient to create a genuine issue of material fact).
Although Adams's first affidavit was not detailed, it
contained a recitation of specific facts __ that he had
reviewed the guaranty provision at issue and that he did not
sign the guaranty provision __ that constituted substantial
evidence demonstrating a genuine issue of material fact
regarding whether a guaranty binding Adams existed.
further argues that the circuit court did not err in entering
a summary judgment for TEC, even in light of Adams's
first affidavit, because Adams's first affidavit
contradicted statements made by Adams's attorney in the
affidavit filed in response to TEC's summary-judgment
motion. TEC contends that Adams should be bound by his
attorney's response to its summary-judgment motion and by
his attorney's affidavit stating that TEC had submitted
evidence showing " merely that third-party defendants
executed a guaranty agreement." In support of this
argument, TEC cites several cases, such as SouthTrust
Bank v. Jones, Morrison, Womack & Dearing, P.C., 939
So.2d 885 (Ala.Civ.App. 2005), for the general propositions
that " 'omissions and commissions of an attorney at
law are to be regarded as acts of the client whom he
represents'" and that a " 'party is deemed
bound by the acts of his lawyer-agent.'" 939 So.2d
at 903-04 (quoting Lawrence v. Gayle, 294 Ala. 91,
94, 312 So.2d 385, 387 (1975), and Link v. Wabash
R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1962), respectively). Applying those general principles of
law, the cases cited by TEC hold that a client can be liable
for the tortious conduct of his attorney, see SouthTrust,
supra; that an attorney's request for a license on behalf
of a client is to be " 'regarded as [the] act of
the client whom he represents,'" Lawrence, 294 Ala.
at 94, 312 So.2d at 387; that a client is bound by his
attorney's failure to appear at a hearing, which results
in dismissal of the client's case, Link, supra; that a
client is bound by his attorney's failure to object to a
matter raised at trial or during a jury voir dire, see
Edwards v. Edwards, 79 So.3d 629, 633 (Ala.Civ.App.
2010), and Calhoun v. State, 932 So.2d 923, 942
(Ala.Crim.App. 2005); and that a defendant is bound by his
attorney's specific, repeated admission to a particular
allegation contained in a complaint filed against him, see
Ayala v. Holder, 574 Fed. App'x 734, 737 (7th
Cir. 2014) (not selected for publication in the Federal
Reporter). None of these cases, however, addresses the
circumstances presented here.
we note that the response to TEC's motion for a summary
judgment was signed only by Adams's attorney and was not
verified in any manner; thus, the statements made by
Adams's attorney in that response, although made on
behalf of Adams, do not constitute evidence.
See Jackson v. State Farm Fire & Cas. Co., 999 So.2d
499, 502 (Ala.Civ.App. 2008) (noting that, where counsel for
the insured, in response to insurer's summary-judgment
motion, " recited a number of assertions in a
'statement of undisputed facts,'" " the
assertions contained in the response to the insurer's
summary-judgment motion do not constitute evidence in this
case" ); and Thomas v. Earnest, 72 So.3d 580, 586 n.5
(Ala. 2011) (" There is an assertion in a brief filed in
support of the motion for summary judgment that Cook told an
officer responding to the accident that she could not see
vehicles entering the intersection from Fairfax Avenue;
however, assertions in motions do not constitute
56(e), Ala. R. Civ. P., sets forth the form of affidavits
filed in support of or in opposition to a motion for a
summary judgment. An affidavit filed pursuant to Rule 56(e)
" shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein." An affidavit filed pursuant to
Rule 56(e) does constitute evidence in support of or in
opposition to a motion for a summary judgment.
present case, however, the affidavit filed by Adams's
attorney in response to TEC's summary-judgment motion was
filed pursuant to Rule 56(f). " Rule 56(f) allows a
party opposing a summary-judgment motion to file an affidavit
alerting the trial court that it is presently unable to
present 'facts essential to justify the party's
opposition.'" Scrushy v. Tucker, 955 So.2d
988, 1007 (Ala. 2006). Adams argues that the statement made
by his attorney in the Rule 56(f) affidavit __ that the
attachments to TEC's motion for a summary judgment "
merely [showed] that third-party defendants executed a
guaranty agreement" -- should not be binding as an
admission on his part because his attorney's affidavit
was filed for the purpose of seeking additional time in which
to conduct discovery and because his attorney effectively
repudiated the statements made in his Rule 56(f) affidavit
when he filed Adams's first affidavit with the circuit
Starke v. Kenan, 11 Ala. 818, 820 (1847), this Court
" It is said admissions made by attorneys of record bind
their clients in all matters relating to the progress and
trial of the cause. But to this end they must be distinct and
formal, or such as are termed solemn admissions, made for the
express purpose of alleviating the stringency of some rule of
practice, or of dispensing with the formal proof of some fact
at the trial. In such cases they are in general
the particular facts of this case, we cannot conclude that
the statement made in the Rule 56(f) affidavit filed by
Adams's attorney for the purpose of seeking additional
time in which to conduct discovery binds Adams in such a
manner that the circuit court was at liberty to disregard the
affidavit subsequently filed by Adams, pursuant to Rule
56(e), effectively in opposition to TEC's motion for a
summary judgment. This is not a case where Adams, by filing
an affidavit, contradicted his own prior sworn testimony.
See, e.g., Wilson v. Teng, 786 So.2d 485, 497 (Ala. 2000)
(" '" When a party has given clear answers to
unambiguous questions which negate the existence of any
genuine issue of material fact, that party cannot thereafter
create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear
testimony." ' [Doe v. Swift, 570 So.2d
1209, 1214 (Ala. 1990)], quoting Robinson v. Hank
Roberts, Inc., 514 So.2d 958, 961 (Ala. 1987)." ).
As noted above, Adams's first affidavit contained
substantial evidence that demonstrated that there was a
genuine issue of material fact regarding whether he had
signed the guaranty provision and, thus, whether a valid
guaranty binding Adams existed. Because that affidavit was
properly before the circuit court and because the circuit
court had no basis for disregarding it, we conclude that the
circuit court erred in entering a summary judgment in favor
of TEC on its breach-of-guaranty claim against Adams.
a genuine issue of material fact exists, we reverse the
summary judgment against Adams and remand the cause for
further proceedings consistent with this opinion.
C.J., and Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ.,
In Phillips, this Court held that "
unless the trial court expressly declines to consider the
extraneous material [filed with a motion to dismiss,] its
conclusions may be construed to include the extraneous
material." 833 So.2d at 31.
On April 8, 2013, the circuit court entered
an order stating that all claims presented in the action had
been " disposed." Although the circuit court had
entered orders adjudicating TEC's liability on the claims
asserted against it by Waste Two and Waste Two's,
Money's, and Adams's liability on the claims brought
by TEC, it had not entered a final judgment as to any
of those latter claims because it had not entered an order
adjudicating the amount of damages Waste Two, Money, and
Adams owed TEC. See Dzwonkowski v. Sonitrol of Mobile,
Inc., 892 So.2d 354, 361 (Ala. 2004)(" 'Where
the amount of damages is an issue, ... the recognized rule of
law in Alabama is that no appeal will lie from a judgment
which does not adjudicate that issue by ascertainment of the
amount of those damages.'" (quoting Moody v.
State ex rel. Payne, 351 So.2d 547, 551 (Ala. 1977))).
Under these circumstances, even a Rule 54(b), Ala. R. Civ.
P., certification purporting to make those orders final for
purposes of appeal would be " ineffective to confer
appellate jurisdiction" over those claims. Dzwonkowski,
892 So.2d at 362.
" The common-law 'demurrer'
has been succeeded by a motion filed pursuant to Rule
12(b)(6)[, Ala. R. Civ. P.,] seeking dismissal of a
complaint on the ground that it fails to state a claim upon
which relief may be granted." Working v. Jefferson
Cnty. Election Comm'n, 2 So.3d 827, 833 n.7 (Ala.
2008) (citing Roberts v. Meeks, 397 So.2d 111, 114
Even if we were to apply a rule that
required a circuit court to consider the merits of an
affirmative defense at any stage of a proceeding if the
defense clearly appeared on the face of the complaint, we
could not conclude that Adams has demonstrated that it
clearly appeared on the face of TEC's complaint that no
consideration for the guaranty was expressed. TEC's
third-party complaint does not mention, or otherwise discuss,
consideration, or lack thereof, to support the guaranty. Even
if we were required to look beyond the face of the complaint
and consider the actual terms of the agreement, we note
that the agreement was an application by Waste Two for an
extension of credit by TEC; that Adams was listed as an owner
of Waste Two; and that Adams agreed to be liable for Waste
Two's obligations, including all extensions of credit,
that arose pursuant to the agreement. Generally speaking,
" [t]he promise of future extension of credit is good
and valid consideration." Medley v. SouthTrust Bank
of Quad Cities, 500 So.2d 1075, 1078 (Ala. 1986).
Accordingly, we cannot conclude that the absence of expressed
consideration was clear from the face of TEC's