JOHNSTON-TOMBIGBEE FURNITURE MFG. v. Berry

937 So. 2d 1029, 2004 Ala. Civ. App. LEXIS 733, 2004 WL 2127766
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 24, 2004
Docket2030045
StatusPublished
Cited by5 cases

This text of 937 So. 2d 1029 (JOHNSTON-TOMBIGBEE FURNITURE MFG. v. Berry) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JOHNSTON-TOMBIGBEE FURNITURE MFG. v. Berry, 937 So. 2d 1029, 2004 Ala. Civ. App. LEXIS 733, 2004 WL 2127766 (Ala. Ct. App. 2004).

Opinion

937 So.2d 1029 (2004)

JOHNSTON-TOMBIGBEE FURNITURE MANUFACTURING COMPANY, INC.
v.
Scott BERRY.

2030045.

Court of Civil Appeals of Alabama.

September 24, 2004.
Rehearing Denied December 3, 2004.

*1030 Thomas R. Jones, Jr., and Randal Kevin Davis of Davidson, Wiggins & Jones, P.C., Tuscaloosa, for appellant.

Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellee.

YATES, Presiding Judge.

Johnston-Tombigbee Furniture Manufacturing Company, Inc., sued Scott Berry on October 3, 2001, seeking to reform a deed to certain real property based on a mutual mistake of the parties or, in the alternative, to quiet title to the real property. On April 16, 2003, Scott moved the court for a summary judgment. The motion was set for a hearing on August 7, 2003.

On August 6, 2003, Johnston-Tombigbee moved the court to allow it to amend its complaint. On September 10, 2003, the trial court entered an order granting Scott a summary judgment as to Johnston-Tombigbee's complaint seeking a reformation of the deed or, in the alternative, to quiet title to certain real property. The court also granted Johnston-Tombigbee's motion to amend its complaint.

Johnston-Tombigbee alleged in its amended complaint that Scott had converted corporate assets; had breached a corporate fiduciary duty; had usurped a corporate opportunity; had committed self-dealing; and had wasted corporate assets. On September 8, 2003, Scott moved the court for a summary judgment as to the claims asserted in the amended complaint, arguing, among other things, that the claims asserted in the complaint are barred by the applicable statute of limitations and by the doctrine of estoppel. On September 25, 2003, the trial court entered a summary judgment in favor of Scott on the claims asserted by Johnston-Tombigbee in its amended complaint. Johnston-Tombigbee appeals.[1] This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is "substantial" if it is of "such *1031 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 Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Reau Berry and Scott Berry are brothers. On January 7, 1988, Reau and Scott each acquired a 50% ownership interest in the stock of a corporation known as Lounora. Lounora owned Johnston-Tombigbee; therefore, by way of their ownership of Lounora, Scott and Reau each owned an equal 50% share of Johnston-Tombigbee. Scott served as the president of Johnston-Tombigbee. At the time Reau and Scott acquired ownership of the companies, Johnston-Tombigbee owned 3,000 acres of land located in Pickens County; that land was used primarily by Johnston-Tombigbee as collateral and for the generation of cash through the harvesting of timber.

In 1989, Reau and Scott learned that 112 acres of land contiguous to the 3,000 acres was available for purchase. The 112 acres of land was owned by Beville Reagan and was known as the "Ziegler Tract." Reau and Scott resolved to purchase the Ziegler Tract with Johnston-Tombigbee's funds. On May 31, 1989, Johnston-Tombigbee issued a check in the amount of $16,800 payable to Beville Reagan for the purchase of the Ziegler Tract; in addition, Reagan was given lifetime "coon hunting" rights to the 3,000 acres owned by Johnston-Tombigbee.

At the time of the purchase of the Ziegler Tract, it was the intent of Reau and Scott to have the title to the property placed in their names rather than in Johnston-Tombigbee's. Scott testified in his deposition that he and Reau had intended to acquire the Ziegler Tract as a personal asset in order to "build some personal portfolio outside of the reach of the assets of Johnston-Tombigbee." Scott further stated that Johnston-Tombigbee's funds were used for the purchase of the Ziegler Tract because in June 1988 he had taken no salary from Johnston-Tombigbee and Reau had taken a reduced salary and that they therefore agreed to have the title to the Ziegler Tract placed in their names as "more or less ... a bonus payment to [themselves]." Reau testified in his affidavit that title to the Ziegler Tract was placed in his and Scott's names individually to allow them to build a personal portfolio. However, he further stated that the property was not considered a personal asset, but rather that it was an asset of Johnston-Tombigbee. Reau also testified that the property was not intended as a bonus payment to him or Scott.

Since the Ziegler Tract was acquired by Reau and Scott, Johnston-Tombigbee has paid taxes on the property, the property has been identified as an asset of Johnston-Tombigbee on the corporate books, and the property has been pledged by Reau and Scott as an asset of Johnston-Tombigbee for the purposes of borrowing money for Johnston-Tombigbee.

On June 30, 2000, Reau purchased Scott's ownership interest in Lounora (and thus his ownership interest in Johnston-Tombigbee) and became the sole owner and new president of Johnston-Tombigbee. Reau contends that he and Scott intended that he would be purchasing all the assets of Johnston-Tombigbee, including the Ziegler Tract, but that Scott has refused to convey his interest in the Ziegler Tract to Johnston-Tombigbee. Scott denies that he and Reau intended that Reau would be purchasing his ownership interest in the Ziegler Tract, and he contends *1032 that his interest in the Ziegler Tract was a personal asset given to him as a bonus for taking no salary from Johnston-Tombigbee in June 1988.

Johnston-Tombigbee argues that the trial court erred in granting Scott's motion for a summary judgment because, it contends, that motion failed to comply with Rule 56, Ala. R. Civ. P., in that the motion failed to contain a narrative summary of the undisputed facts. We disagree. Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for a summary judgment "be supported by a narrative summary of what the movant contends to be the undisputed material facts." See also Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782 So.2d 274 (Ala.2000).

Scott's motion for a summary judgment does not contain an abundance of facts; however, it does contain some facts relative to the issues on appeal. Therefore, after reviewing the motion we conclude that it at least meets the minimum requirements of Rule 56, Ala. R. Civ. P.

Johnston-Tombigbee next argues that the claims asserted in its amended complaint are timely because they relate back to the filing of its original complaint. As mentioned above, Scott argued in support of his motion for a summary judgment that the claims asserted in Johnston-Tombigbee's amended complaint are barred by the applicable statute of limitations.

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Cite This Page — Counsel Stack

Bluebook (online)
937 So. 2d 1029, 2004 Ala. Civ. App. LEXIS 733, 2004 WL 2127766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-tombigbee-furniture-mfg-v-berry-alacivapp-2004.