Defendant Christian Television Corporation of Alabama ("CTC") appeals from a summary judgment in favor of the plaintiffs, RCH Broadcasting, Inc. ("RCH"), and R.C. Hilton. Plaintiff RCH cross-appeals from a summary judgment in favor of CTC and defendant Robert D'Andrea. We affirm in part, reverse in part, and remand with instructions.
1. A $367,000 non-interest bearing note, payable in monthly installments of $10,000 each. If D'Andreа had to pay any of RCH's debts (RCH was in financial trouble at the time), between the execution of the agreement and the closing date, that payment was to be deducted from the $367,000 note.
2. A $170,000 interest bearing note, payable in interest-only installments beginning 91 days after closing. The payments were basеd on 6% per annum interest to the 12th month and 12% thereafter. The principal was due in 5 years, with CTC having the option to extend for 5 more years.
3. A $1,903,000 interest bearing note, payable on the same terms as the $170,000 note.
A list of RCH's debts, creditors, and inventory of equipment was provided to D'Andrea. The agreemеnt required RCH to deliver to the buyer clear title to all its assets at closing, and stated that the equipment *991 would be in "good operating condition" at closing. The agreement provided that D'Andrea could assign the agreement and be relieved of personal liability. CTC made some initial paymеnts on the notes to RCH and also made certain payments to RCH's creditors.
CTC later ceased making payments to RCH because it claimed that RCH had breached the agreement. RCH was subjected to a garnishment obtained on a $269,429.92 judgment entered on January 18, 1985, by the United States District Court for the Middle District of Alabama in a civil action brought by Paramount Television Domestic Distribution, Inc., against RCH. CTC was named by Paramount as garnishee in that action. The garnishment attached the payments that CTC was to make to RCH under the three promissory notes. In its answer and briefs filed in its defense of the garnishment action, CTC claimed that it was not indebted to RCH, because RCH had breached the agreement, specifically, (1) that RCH had made material misrepresentations as to the condition of the equipment; (2) that RCH had made misrepresentations as to the absence of liens on the assets; and (3) that CTC had had to pay certain debts of RCH in order to operate the equipment. After permitting limited discovery on the issue of "present indebtedness," the United States District Court held a hearing on Paramount's motion for judgment against garnishee CTC. The court stated in its order:
"D'Andrea . . . admitted that the interest payments arе due and owing. . . . D'Andrea argued for the first time . . . that his company had failed to make the interest payments because collateral securing the notes was defective. He agreed that the sole issue before the court was whether there is a factual basis for finding the collateral defective and classifying the debt as 'contingent.'
"The court concludes that no such factual basis exists. D'Andrea alleged that the collateral was defective only after he was called to testify before this court. He never mentioned this reason for nonpayment to RCH Broadcasting, thе company to whom the debt was owed; nor did he interpose this excuse at his deposition. Moreover, at the hearing before this Court, D'Andrea failed to produce a single piece of documentation or a single witness to support his claims that such defects do in fact exist. The сourt therefore finds D'Andrea's testimony to lack creditability."
The court entered judgment against the garnishee CTC and in favor of Paramount in the amount of $284,575.92.
In January 1987, RCH and Hilton sued CTC and D'Andrea in Montgomery Circuit Court and claimed damages (1) that arose out of the promissory notes; (2) for breach of contrаct; (3) for breach of a guaranty; (4) for fraudulent misrepresentation; (5) for reckless misrepresentation; and (6) for mistaken misrepresentation. CTC's and D'Andrea's answers to the complaint alleged failure of consideration; fraud in the inducement; lack of jurisdiction; and improper venue. CTC alsо filed a counterclaim against RCH and Hilton, claiming (1) that RCH had breached the warranties of sale because the assets were subject to liens and encumbrances; (2) that Hilton had failed to disclose to CTC that he had a security interest in the assets; (3) that RCH and Hilton had fraudulently misrepresented that thе assets were free and clear of liens and encumbrances; (4) that Hilton had subordinated his claim to the assets to Paramount;1 and (5) that RCH and Hilton had fraudulently induced D'Andrea to purchase the assets by fraudulently misrepresenting that the assets were free and clear of liens and encumbrances.
The parties filed cross-motions for summary judgment. In July 1988, the circuit court entered the following summary judgment:
*992"1. Judgment is entered in favor of Christian [(CTC)] and D'Andrea and against Hilton, and Hilton's claims are dismissed.
"2. Judgment is entered in favor of D'Andrea and Christian and against RCH on Counts II, III, IV, V, and VI."3. Judgment is entered in favor of RCH and against Christian on Count I of thе complaint in the amount of Three Million, Eight Hundred Fifty-Two Thousand, Thirty-One Dollars and Ninety-five Cents ($3,852,031.95), representing the principal due on each promissory note, interest at the rate stated in each note to the date of this judgment, and a reasonable attorney's fee in the amount of 15% of eаch note.
"4. Judgment is entered in favor of RCH and Hilton and against D'Andrea and Christian on the counterclaim filed by D'Andrea and Christian, and the counterclaim is dismissed."
These appeals followed those judgments.
Leverette v. Leverette," 'Collateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action. Requirements for collateral estoppel to operate are (1) issue identical to one involvеd in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment. If these elements are present, the prior judgment is conclusive as to those issues actually determined in the prior suit.' "
Furthermore, we find the following analysis persuasive:
Moore's Federal Practice, § 0.443[2] at 760-61 (2d ed. 1978)."[A]n 'issue' is a 'single, certain and material point arising out of thе allegations and contentions of the parties.'
"A new contention is not, however, necessarily a new issue. If a new legal theory or factual assertion put forward in the second action is 'related to the subject-matter and relevant to the issues' that were litigated and adjudicatеd previously, 'so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.' The analogy to the rule against splitting a single cause of action is striking. Like a cause of action, 'an issue may not be . . . split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result.' Any contention that is necessarily inconsistent with a prior adjudication of a material and litigated issue, then, is subsumed in that issue and precluded by the prior judgment's collateral estoppel effect."
Here, the validity of the promissory notes and CTC's obligations thereunder was determined by the United States District Court in the garnishment proceeding, to which RCH and CTC were parties. That court determined that the "debt" was not "contingent" and that CTC's claim that it was not liable on the notes because the collateral was defective had no "factual basis"; therefore, CTC was found liable on the notes. CTC and D'Andrea raised the same issues (fraud and breach of warranty) in the federal garnishment action as thеy now raise in the answers and counterclaims in this state action. CTC had sufficient incentive to fully present all potential defenses to the notes in the garnishment proceeding. These identical issues were actually litigated in the United States District Court, and the resolution of these issues was necеssary for that court to find CTC liable on the notes and for it to order a garnishment of the payments owed by CTC to RCH. We conclude that the prior judgment of garnishment against CTC is conclusive as to the issue of whether it is liable to RCH on the three notes in this action.
"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."
In order to determine if an agreement is within §
"When, therefore, an action is brought against one charging him with the value of goods delivered to another, and on his promise to pay; and it is set up in defense, that the promise was to pay the debt of another, and was not in writing, the decisive question is, to whom was the credit given. If the credit was given solely to the defendant — that is, if the goods were really sold to him, though delivered to another — the statute is then out of the case. But, if the whole credit was not given to the defendant — that is to say, if any credit at all was given to the party receiving the goods — the promise of the defendant is collateral, and within the statute. . . ."
The evidence in this case indicates that the "whole credit" was not given to D'Andrea and that CTC received at least some credit under the Boykin test, supra. We conclude that any promise that D'Andrea made was "collateral" and was within the Statute of Frauds. Therefore, any agreement for D'Andrea to personally guarantee the purchase price must be in writing to be enforceаble. RCH argues that the following language in the application to assign the FCC license from RCH to D'Andrea is sufficient to establish a writing:
"The applicant [(D'Andrea)] certifies that: (a) it has a reasonable assurance of a present firm intention for each agreement to furnish capital or рurchase capital stock by parties to the application, each loan by banks, financial institutions or others, and each purchase of equipment on credit; (b) it can and will meet all contractual requirements as to collateral, guarantees, and capital investment; (c) it has determined that all such sources (excluding banks, financial institutions and equipment manufacturers) have sufficient nеt liquid assets to meet these commitments."
We conclude that this evidence is insufficient to establish that D'Andrea personally guaranteed the purchase price to RCH. Therefore, summary judgment for CTC and D'Andrea on these claims was proper. *994
Therefore, the judgment is affirmed in part, reversed in part, and the cause is hereby remanded for further proceedings consistent with this opinion.
88-374 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
88-412 AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.