United States District Court, S.D. Alabama, Southern Division
MR. GOLF CARTS, INC., Plaintiff,
TAYLOR'S GOLF CAR SALES & SERVICE, INC., Defendant.
WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's motion for
summary judgment. (Doc. 31). The parties have filed briefs
and evidentiary materials in support of their respective
positions, (Docs. 31, 39-41), and the motion is ripe for
resolution. After careful consideration, the Court concludes
that the motion is due to be granted in part and denied in
to the amended complaint, (Doc. 9), the plaintiff sold the
defendant a number of golf carts between March 9 and December
24, 2009. The defendant received the golf carts and re-sold
some or all of them. The defendant owes the plaintiff over
$328, 000 for the golf carts. The amended complaint asserts
claims for breach of contract and for conversion.
defendant asserts that the contract claim is barred by the
statute of limitations. (Doc. 31-1 at 5-7). The defendant
also asserts that the plaintiff cannot establish the elements
of its conversion claim. (Id. at 7-8). The plaintiff
“concedes that it cannot meet the elements for proving
a claim for conversion of property.” (Doc. 40 at 5).
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The moving party may meet its burden in either of
two ways: (1) by “negating an element of the non-moving
party's claim”; or (2) by “point[ing] to
materials on file that demonstrate that the party bearing the
burden of proof at trial will not be able to meet that
burden.” Id. “Even after
Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.”
Id.; accord Mullins v. Crowell, 228 F.3d
1305, 1313 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
the party moving for summary judgment fails to discharge the
initial burden, then the motion must be denied and the court
need not consider what, if any, showing the non-movant has
made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
however, the movant carries the initial summary judgment
burden ..., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick, 2 F.3d at 1116.
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ' the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may … consider the
fact undisputed for purposes of the motion ….”).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003).
is no burden on the Court to identify unreferenced evidence
supporting a party's position. Accordingly, the Court
limits its review to the exhibits, and to the specific
portions of the exhibits, to which the parties have expressly
law provides several limitations periods for contract
actions. Actions founded on a contract under seal must be
brought within ten years. Ala. Code § 6-2-33(1). Actions
to recover on an open or unliquidated account must be brought
within three years from the date of the last item on the
account or from when the account was due. Id.§
6-2-37(1). Actions based on a written, unsealed contract must
be brought within six years. Id. § 6-2-34(4).
Actions based on a stated or liquidated account likewise must
be brought within six years. Id. § 6-2-34(5).
And actions “upon any simple contract … not
specifically enumerated in this section” also must be
brought within six years. Id. § 6-2-34(9).
is no written contract in this case, and the parties identify
no contract “not specifically enumerated in this
section.” Therefore, as presented by the parties, the
plaintiff's claim is either one on open account and thus
time-barred or one on account stated and thus timely. The
parties agree that the analysis for determining whether the
plaintiff proceeds on an open account or an account stated is
set forth in University of South Alabama v. Bracy,
466 So.2d 148 (Ala. Civ. App. 1985). (Doc. 31-1 at 5-6; Doc.
40 at 3).
account stated is a post-transaction agreement. It is not
founded on the original liability, but it is a new agreement
between parties to an original account that the statement of
the account with the balance struck is correct and that the
debtor will pay that amount.” Bracy, 466 So.2d
at 150. “A prima facie case on an account stated is
made when the plaintiff proves (1) a statement of the account
between the parties is balanced and rendered to the debtor;
(2) there is a meeting of the minds as to the correctness of
the statement; and (3) the debtor admits liability.”
Id. “The debtor's admission to the
correctness of the statement and to his liability thereon can
be express or ...