Old Republic Sur. Co. v. Auto Auction of Montgomery, Inc.

816 So. 2d 1059, 2001 Ala. Civ. App. LEXIS 217, 2001 WL 527613
CourtCourt of Civil Appeals of Alabama
DecidedMay 18, 2001
Docket2991198
StatusPublished
Cited by1 cases

This text of 816 So. 2d 1059 (Old Republic Sur. Co. v. Auto Auction of Montgomery, Inc.) 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
Old Republic Sur. Co. v. Auto Auction of Montgomery, Inc., 816 So. 2d 1059, 2001 Ala. Civ. App. LEXIS 217, 2001 WL 527613 (Ala. Ct. App. 2001).

Opinion

816 So.2d 1059 (2001)

OLD REPUBLIC SURETY COMPANY
v.
AUTO AUCTION OF MONTGOMERY, INC.

2991198.

Court of Civil Appeals of Alabama.

May 18, 2001.

*1060 Kay L. Cason and Donna Eich Brooks of Gorham & Waldrep, P.C., Birmingham, for appellant.

*1061 Kile T. Turner of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.

CRAWLEY, Judge.

Old Republic Surety Company issued a used-motor-vehicle-dealer bond to Milo Aita, pursuant to Ala.Code 1975, § 40-12-398. Aita purchased a used motor vehicle from Auto Auction of Montgomery, Inc., with a check for $6,640. The check was returned for insufficient funds. Auto Auction sued Aita in the Shelby Circuit Court, which eventually entered a $7,636 default judgment against Aita. Auto Auction filed a claim against Old Republic, seeking payment on the default judgment based on the used-motor-vehicle-dealer bond Old Republic had issued to Aita.

Old Republic filed a declaratory-judgment action, seeking a judgment declaring that the bond it had issued to Aita pursuant to § 40-12-398 does not create an obligation to satisfy the default judgment obtained by Auto Auction. Both Auto Auction and Old Republic filed summary-judgment motions. The trial court denied Old Republic's motion and granted Auto Auction's motion. Old Republic filed a postjudgment motion, which the trial court denied. Old Republic then appealed from the summary judgment for Auto Auction.

We review a summary judgment de novo, applying the same standard the trial court applied. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R.Civ.P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038. "Substantial evidence is evidence of such 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); see Ala.Code 1975, § 12-21-12(d). See West, 547 So.2d at 871, and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for a further discussion of the application of the summary-judgment standard.

At issue in this case is the interpretation of § 40-12-398, which Old Republic argues does not require it to indemnify Auto Auction for Aita's insufficient-funds check, while Auto Auction contends that the section does require Old Republic to indemnify it for Aita's insufficient-funds check. That section states:

"Annually, before any license shall be issued to a new motor vehicle dealer, used motor vehicle dealer, motor vehicle reconditioner, motor vehicle rebuilder, or motor vehicle wholesaler, the applicant shall either deliver to the commissioner a good and sufficient surety bond, executed by the applicant as principal and by a corporate surety company qualified to do business in the state as surety, in the sum of $25,000 for a new motor vehicle dealer and $10,000 for all other dealers. Such bond shall be in a form to be approved by the commissioner, and shall be conditioned that the motor vehicle dealer, the motor vehicle reconditioner, motor vehicle rebuilder, or motor vehicle wholesaler shall comply with the conditions of any contract made by such dealer in connection with the sale or exchange of any motor vehicle and shall not violate any of the provisions of law relating to the conduct of *1062 the business for which he is licensed. Such bond shall be payable to the commissioner and to his successors in office, and shall be in favor of any person who shall recover any judgment for any loss as a result of any violation of the conditions hereinabove contained. Such bond shall be for the license period, and a new bond or proper continuation certificate shall be delivered to the commissioner at the beginning of each license period; provided, that the aggregate liability of the surety in any one license year shall, in no event, exceed the sum of such bond. The provisions of this section shall not apply to motor vehicle dealers or wholesalers who hold a valid motor vehicle dealer license under Section 40-12-51 or to motor vehicle rebuilders or reconditioners, as defined in this article who hold a valid business license to engage in such business as of April 1, 1978."

Because Old Republic and Auto Auction disagree over the interpretation of § 40-12-398, this court must "ascertain and effectuate the legislative intent as expressed in the statute." Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). To do so, we must first focus our attention on the language of the statute and effectuate the intent clearly expressed therein, if that language is unambiguous. City of Hartselle, 460 So.2d at 1223. The language in the statute must be given its "natural, plain, ordinary, and commonly understood meaning." Id.

Old Republic argues that the bond required by the statute applies to protect only individual consumers who purchase motor vehicles from a dealer. Old Republic argues that a wholesaler, such as Auto Auction, who sells motor vehicles to a motor-vehicle dealer, such as Aita, is not entitled to seek payment on the motor-vehicle-dealer bond. Auto Auction contends that the bond applies to it, a wholesaler.

This state's courts have not explicitly addressed the question who may seek payment on a motor-vehicle-dealer bond. This court addressed the issue whether § 40-12-398 can be given extra-territorial effect, and held that it can be. Old Republic Sur. Co. v. Auction Way Sales, Inc., 733 So.2d 878 (Ala.Civ.App. 1997). In that case, Old Republic also argued that § 40-12-398 was not intended to apply to wholesalers. This court concluded that the issue had not been raised in the trial court. 733 So.2d at 880. The court did state:

"A broad construction of the statute in favor of those whom the statute was designed to protect and against the fraudulent dealer and surety is merited....
"We conclude that the legislature intended for the bond requirement of § 40-12-398 to serve as a remedy for any person who recovers any judgment as a result of any violation of the conditions pertaining to the initial granting of the license."

The supreme court granted certiorari review of this court's judgment. Ex parte Old Republic Sur. Co., 733 So.2d 881 (Ala. 1999). That court held that the facts of the case did not require extraterritorial application of the statute, but required only that Old Republic, a surety qualified to do business in Alabama, make indemnity on a motor-vehicle-dealer bond issued in Alabama. 733 So.2d at 885. Although the supreme court disagreed with this court's rationale, it concluded that this court had "properly affirmed the trial court's judgment holding that Old Republic must indemnify Auction Way." The supreme court's opinion did not discuss whether Auction Way was a proper party to seek relief under the statutory bond.

*1063 Old Republic cites Price v. Piotrowski, 632 So.2d 1 (La.App.1994), in support of its argument. Price

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Related

Old Republic Surety Co. v. Auto Auction of Montgomery, Inc.
816 So. 2d 1066 (Supreme Court of Alabama, 2001)

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816 So. 2d 1059, 2001 Ala. Civ. App. LEXIS 217, 2001 WL 527613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-republic-sur-co-v-auto-auction-of-montgomery-i-alacivapp-2001.