597 So. 2d 1322 | Ala. | 1992
The issue in this case is whether a plaintiff is always entitled to have summary judgment entered in its favor when it makes out a prima facie case of a debt owed to it by attaching a verified statement of account to its complaint, as permitted by Ala. Code 1975, §
On December 21, 1987, Merchant's Printers, Inc. (Merchant's), sued Vulcan Publications, Inc.; a partnership known as Vulcan Publications; and the partnership's three alleged partners, claiming that the defendants owed it $26,525.45 due by verified account, plus interest and costs. As permitted by the provisions of Ala. Code 1975, §
On April 11, 1991, the three alleged partners of the alleged partnership moved for summary judgment based on the claim that such a partnership did not exist. The trial court granted the motion.
On April 30, 1991, Merchant's filed a new motion for summary judgment.2 In response, Vulcan Publications, Inc., filed a brief in opposition to the motion; affidavits of Douglas Moore, the president of Vulcan Publications, Inc.; Joel Ellis, a former employee of Merchant's; and various documents produced by Merchant's Printers under a production order. The trial court never ruled on the motion, but instead set the case for a trial.
After the trial, the court entered judgment in behalf of Vulcan Publications, Inc., on the claim by Merchant's and a judgment in behalf of Merchant's on Vulcan Publications' counterclaim. Merchant's appealed. *1324
The sole claim by Merchant's here is that the trial court erred in refusing to grant its initial motion for summary judgment; Merchant's contends that when it made that motion it made a showing that it was entitled to a judgment as a matter of law at that time. Merchant's says that because it filed a verified statement of account, as permitted by Ala. Code 1975, §
Section
"In all actions upon accounts, an itemized statement of the account, verified by affidavit of a competent witness, taken before and certified by, a notary public or any officer having authority under the laws of this or another state to take and certify affidavits, is competent evidence of the correctness of the account if the plaintiff, at the time of bringing his action, files with his complaint such verified itemized statement and endorses on the complaint the fact that the account is verified by affidavit. Unless the defendant, within the time allowed him for pleading, files in the case an affidavit denying on information and belief the correctness of the account, which affidavit of the defendant shall state whether or not the defendant denies liability and whether or not he disputes the whole account or only a part or parts or an item or items thereof . . ., the verified account so filed and noted by the plaintiff shall be competent evidence of the correctness of all parts and items of the account not disputed by defendant's affidavit."
Based on this record, we conclude that the trial court correctly refused to enter summary judgment in favor of Merchant's.
Merchant's presented an itemized statement of an account, verified by the affidavit of a competent witness taken before a notary public. Unless Vulcan Publications, Inc. filed an affidavit stating that it disputed the account, in whole or in part, the trial court would consider Merchant's account as "competent evidence of the correctness" of the account.
Section
We cannot agree with the argument that Merchant's was entitled to a summary judgment, as a matter of law, because of the failure of Vulcan to file a counteraffidavit within 30 days after Merchant's filed its complaint containing the verified account. Section
*1325"This statute does not undertake to describe a cause of action, nor prescribe a defense to any action. . . . The effect of the statute is merely to provide a rule of evidence for the proof and denial of the correctness of an account. . . . The rule of evidence here laid down is cumulative and does not preclude the appellant from proving his claim otherwise. . . . [T]he defendant [has] the right to elect to defend as in simple account . . . or to avail himself of the method of refuting appellant's claim laid down in the statute; one or both."
From this record and the pleadings filed, it is apparent that the defendants disputed the claim by Merchant's.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires that the trial court must determine that (1) there is no genuine issue of material fact, and (2) the moving party is entitled to a judgment as a matter of law.4
Merchant's would have been entitled to a judgment only if Vulcan had offered "no other evidence" in its defense. SeeAlpin v. Swift Agricultural Chemicals Corp.,
The judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.