196 So. 3d 1219
Ala. Civ. App.2015Background
- Harp Law, LLC entered a subscription agreement with LexisNexis on Sept. 14, 2011, requiring monthly payments through Feb. 28, 2016; payments increased after Feb. 28, 2013.
- Harp ceased making required payments beginning March 31, 2013; invoices show an unpaid balance and an accelerated claim for remaining installments under an acceleration clause in the contract.
- LexisNexis sued on May 8, 2014 for breach of contract, open account, and account stated; it moved for summary judgment supported by a subscription agreement, invoices, and an affidavit by its accounting manager, Robert Berry.
- The trial court granted summary judgment for LexisNexis, finding Harp breached the contract, and awarded $23,160.57 plus costs; Harp appealed.
- On appeal, the court affirmed liability but found a small arithmetic discrepancy between the affidavit’s principal amount ($22,409.10) and the total shown on the invoices ($22,396.16), reversing only the damages award and remanding for correction.
Issues
| Issue | Plaintiff's Argument (LexisNexis) | Defendant's Argument (Harp) | Held |
|---|---|---|---|
| Whether LexisNexis made a prima facie showing on breach of contract for summary judgment | Exhibits (agreement, invoices) and Berry affidavit establish contract, services provided, nonpayment, and damages | LexisNexis’ motion relied on open-account narrative only and failed Rule 56 narrative requirements; thus did not meet initial burden | Affirmed: exhibits plus contract (including acceleration clause) established prima facie breach-of-contract claim; narrative-summary requirement satisfied |
| Sufficiency of Rule 56 narrative-summary and reliance on exhibits | Motion + exhibits satisfy the narrative requirement if exhibits prove prima facie case | Narrative was vague (stated "credit/open account") and lacked specific references | Affirmed: exhibits supplied needed facts so requirement met |
| Damages amount and support in record | Berry affidavit stated principal $22,409.10 and motion sought $23,160.57 (principal plus interest) | Invoices only support $22,396.16; therefore genuine issue as to correct damages amount | Reversed as to damages: remanded to enter judgment for the amount supported by invoices ($22,396.16) plus interest and costs |
| Adequacy of Harp’s Rule 56(f) discovery affidavit seeking more time | N/A (LexisNexis opposed) | Harp sought additional discovery (depositions, document inspection) to respond to motion | Affirmed denial: Harp’s affidavit was conclusory and failed to identify specific missing evidence, so summary judgment was proper despite pending discovery |
| Admissibility of Berry’s affidavit (motion to strike) | Berry is custodian of records; affidavit authenticates business records and outstanding balance | Berry’s affidavit is hearsay, conclusory, or lacks personal knowledge and should be struck | Affirmed: Harp failed to preserve detailed objection and did not develop argument on appeal; trial court did not err in considering the affidavit |
Key Cases Cited
- Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72 (Ala. 2003) (standard of review for summary judgment)
- Dow v. Alabama Democratic Party, 897 So.2d 1035 (Ala. 2004) (reciting summary-judgment review principles)
- Capmark Bank v. RGR, LLC, 81 So.3d 1258 (Ala. 2011) (elements required to recover on a breach-of-contract claim)
- A.W. ex rel. Hogeland v. Wood, 57 So.3d 751 (Ala. 2010) (exhibits attached to a summary-judgment motion may satisfy Rule 56 narrative requirements)
- Hope v. Brannan, 557 So.2d 1208 (Ala. 1989) (Rule 56(f) requires affidavit specifying why discovery is needed and what evidence is expected)
- Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458 (Ala. 1997) (vague Rule 56(f) affidavits are insufficient to avoid summary judgment)