Opinion
No. 2000485.
Decided June 7, 2002. Corrected Opinion, May 16, 2003
Appeal from Jefferson Circuit Court (CV-2000-5401).
Charles H. Boohaker of Roger D. Burton, P.C., Birmingham, for appellant.
Ralph D. Gaines III and Kenneth P. Flood of Gaines, Wolter Kinney, P.C., Birmingham, for appellee.
On Application for Rehearing
This court's no-opinion order of affirmance of December 28, 2001, is withdrawn, and the following opinion is substituted therefor.
Tina West appeals a summary judgment entered for Bruno's, Inc., on her claims alleging malicious prosecution, abuse of process, false imprisonment, invasion of privacy, and the tort of outrage. On August 20, 1999, West negotiated to Food World a check, number 1192, from her Regions Bank account written in the amount of $150. Food World is owned and operated by Bruno's Supermarkets, Inc., formerly known as Bruno's, Inc. (hereinafter "Bruno's"). The bank returned West's check, stamped "insufficient funds" to Bruno's. Bruno's then sent notice to West by certified mail that her check had been returned. The language in the notice is identical to the language set forth in § 13A-9-13.2, Ala. Code 1975. West received this notice on September 13, 1999.
Upon receipt of the notice, West contacted the store manager to tell her that the returned check had been paid by Regions Bank. West took bank records and her account statement to the store to verify the bank's payment on August 24, 1999, of check number 1192. West stated that she assumed the store and her bank would handle the situation. On November 19, 1999, Bruno's issued a warrant for West's arrest, asserting that it never received payment and that it was holding a worthless negotiable instrument. West was arrested, but the charges were nol-prossed on March 28, 2000, upon recommendation of the prosecuting attorney.
On September 7, 2000, West sued Bruno's, alleging malicious prosecution, abuse of process, false imprisonment, invasion of privacy, and the tort of outrage. Bruno's filed a motion to dismiss on November 8, 2000. On December 5, 2000, West filed her objection to the motion to dismiss. The trial court conducted a hearing on Bruno's motion to dismiss on December 7, 2000; at the conclusion of the hearing, the trial court denied the motion. On December 11, 2000, West filed interrogatories and a request for production of documents that, among other items, sought Bruno's bank records. On December 13, 2000, Bruno's filed both an answer to West's complaint and a motion for a summary judgment.
West filed her brief in opposition to Bruno's summary-judgment motion on January 4, 2001. In her brief, West argued that she needed Bruno's bank records in order to determine whether Bruno's claim that it had not been paid the amount of check number 1192 was valid. Because discovery was not complete, West argued further that summary judgment was inappropriate at that time. The trial court conducted a hearing on the motion and, at the conclusion of the hearing, granted Bruno's summary-judgment motion. West filed a timely appeal to the Alabama Supreme Court, which transferred her case to this court pursuant to § 12-2-7(6), Ala. Code 1975.
This court's review of a summary judgment is de novo. See Dudley v. Bass Anglers Sportsman Soc., 777 So.2d 135, 137 (Ala.Civ.App. 2000). We apply the same standard applied in the trial court. Rule 56, Ala.R.Civ.P., establishes a two-part standard for entering a summary judgment. The trial court must determine that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Rule 56(c)(3), Ala.R.Civ.P.; Gordon v. West Weaver Baptist Church, 777 So.2d 734, 736 (Ala.Civ.App. 2000).
Furthermore, to defeat a properly supported motion for a summary judgment, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact. See § 12-21-12, Ala. Code 1975; Cantrell v. North River Homes, Inc., 628 So.2d 551, 553 (Ala. 1993). "[S]ubstantial 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." See West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). In determining whether substantial evidence exists to defeat a properly supported summary-judgment motion, a court must view the evidence in the light most favorable to the nonmoving party. See Goodwin v. City of Fultondale, 706 So.2d 766, 767 (Ala.Civ.App. 1997).
The Alabama Worthless Check Act is codified at § 13A-9-13.1 et seq., Ala. Code 1975. Bruno's relies on the following provision stating that "[a]ny party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in [§ 13A-9-13.2(2)] shall be immune from civil or criminal liability for the giving of the notice and for proceeding under the forms of the notice." § 13A-9-13.2(3), Ala. Code 1975. To support its motion for a summary judgment, Bruno's submitted a photocopy of the returned check, a photocopy of the notice sent to West, and an affidavit from Wendy Galen. The affidavit stated in part:
"3. Tina West signed a check, returned unpaid on 8/20/99.
"4. Attached is a true and accurate copy of the notice sent to Tina West as a result of that unpaid check."
West responded to Bruno's motion for a summary judgment with her own affidavit. That affidavit stated that as soon as she received the notice from Bruno's, West took her bank statement to the store manager to prove that the check had in fact been paid. Previously, West had submitted to the trial court photocopies of her bank statement and a computer printout from the bank showing payment of check number 1192 on August 24, 1999. Although Bruno's objected to the original submission of those records as unverified, West can rely on her own monthly bank statement as an accurate representation of the status of her bank account.
Bruno's motion to strike West's affidavit states that West's bank statement was inadmissible hearsay because it was "not supported by the testimony of any bank officer verifying its authenticity." That appears to be an objection based on lack of authentication rather than on hearsay, and might have been valid it the bank statement were being introduced as a record of the bank. However, West submitted the statement as her own record, upon which she relied. See State v. Cremer, 234 Kan. 594, 676 P.2d 59 (1984).
"It cannot be denied that the entries contained in bank statements are generated by the owner of the account. Bank statements are relied on every day in the business world to verify the account owner's financial transactions. We have no hesitancy in holding that bank statements made in the regular course of business and presented to the owner of the account as a record of account transactions are a trustworthy source of information and may be admitted . . . as a part of the financial records of the owner of the account."234 Kan. at 602, 676 P.2d at 64 (emphasis added). Moreover, even if we construe the objection by Bruno's as one based on hearsay, we conclude that West's affidavit was admissible. If bank statements reflecting insufficient funds are admissible to show "guilty knowledge" or "intent to defraud" in bad-check cases, see, e.g., Ledford v. State, 184 Ga. App. 556, 362 S.E.2d 133 (1987); Reynolds v. State, 172 Ga. App. 628, 323 S.E.2d 912 (1984); State v. Ricard, 535 So.2d 21 (La.App. 1988); State v. Carroll, 41 S.W.3d 878 (Mo. 2001); State v. Ben-Neth, 34 Wn. App. 600, 663 P.2d 156 (1983), then bank statements reflecting sufficient funds are admissible to show lack of guilty knowledge or the absence of an intent to defraud. The bank records were used only in conjunction with West's sworn statement that she believed the check was good and that it was not a worthless negotiable instrument under Alabama statutory law.
Section 13A-9-13.1, Ala. Code 1975, states in pertinent part:
"(a) A person commits the crime of negotiating a worthless negotiable instrument if the person negotiates or delivers a negotiable instrument for a thing of value and with the intent, knowledge, or expectation that it will not be honored by the drawee.
"(b) For the purposes of this section, it is prima facie evidence that the maker or drawer intended, knew, or expected that the instrument would not be honored in any of the following instances:
". . . .
"(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge. . ., within 10 days after receiving written notice from the holder of the instrument that payment was refused upon the instrument. . . ."
When West presented her bank statement to Bruno's, it showed that her bank had paid the check and had debited her account for that amount, leaving a remaining balance. Unless disputed, this proved that she had no intent, knowledge, or expectation that the check would not be honored by the bank.
Section 13A-9-13.1(a) clearly requires the prosecution to prove specific intent to defraud. See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975). A maker or drawer "is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section [ 13A-9-13.1(b)] of the Worthless Check Act." Tolbert, 294 Ala. at 743, 321 So.2d at 232.
"The difference between the improper use of a statute as a means of punishment for debt and the proper use of a statute as a means of punishment for a criminal act is intent. Harris v. State, 378 SO.2d 257 (Ala.Cr.App.), cert. denied, 378 So.2d 263 (Ala. 1979). A mere failure or inability to pay a debt does not necessarily constitute theft. Theft requires the specific intention to deprive which cannot be inferred from the mere naked fact of non-payment of a debt. Thus, the theft statute was designed to punish those who exert unauthorized control over the property of another with the intent to deprive that person of his property and not to punish persons who are unable to pay a debt.
"The central and critical issue in this case is this appellant's intent."
Bullen v. State, 518 So.2d 227, 233-34(Ala.Crim.App. 1987).
Without a specific intent to defraud, there was no probable cause to support the issuance of an arrest warrant. Bruno's remedy, if any, was civil, not criminal. "It is axiomatic that a charge of malicious prosecution must be supported by proof of a lack of probable cause and malice." Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 48 (Ala. 1982). "Probable cause in malicious prosecution cases is that state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail." Allen v. Molton, Allen Williams Realty Co., 495 So.2d 27, 30 (Ala. 1986).
A discussion of the causes of action other than malicious prosecution is unnecessary. See Cutts v. American United Life Ins. Co., 505 So.2d 1211 (Ala. 1987). Because West's affidavit creates a question of fact as to whether Bruno's was holding a "worthless negotiable instrument" and was therefore immune from liability pursuant to § 13A-9-13.2(3), summary judgment was erroneously granted. We reverse the trial court's summary judgment and remand the cause for further proceedings consistent with this opinion.
APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF DECEMBER 28, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
Yates, P.J., and Crawley, J., concur.
PITTMAN and Murdock, JJ., concur in the result.
Thompson, J., dissents.
I concur with the main opinion insofar as the court reverses the summary judgment. However, based upon the following argument, I believe further discovery is necessary before the trial court may entertain a motion for a summary judgment or may set a date for trial. The competing affidavits offered by Bruno's and West raise a genuine issue of material fact: whether check number 1192 stamped "insufficient funds" and returned to Bruno's, was in fact paid on August 24, 1999. If these funds were not paid, then Bruno's is entitled to immunity under § 13A-9-13.2, Ala. Code 1975. If the funds were paid to the wrong account, then West or Bruno's may have an action against the bank. Because the trial court granted Bruno's summary-judgment motion before discovery was complete, this crucial fact is unrevealed.
Our supreme court has consistently stated that it is error for a trial court to enter a summary judgment before the party moving for the summary judgment has produced answers to interrogatories and any documents requested. See Parr v. Goodyear Tire Rubber Co., 641 So.2d 769 (Ala. 1994); Tyler v. City of Enterprise, 521 So.2d 951 (Ala. 1988). The mere pendency of discovery does not bar a summary judgment; but the "burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party's case." Reeves v. Porter, 521 So.2d 963, 965 (Ala. 1988). Although West did not file a Rule 56(f) affidavit, she argued the need to complete discovery in her opposition to Bruno's motion for a summary judgment.
Before the trial court and on appeal, Bruno's relied exclusively on the statutory interpretation of § 13A-9-13.2(3), as promulgated inJohnson v. Wal-Mart Stores, Inc., 769 So.2d 929 (Ala.Civ.App. 2000). InJohnson this court held that the statute immunizes one whose conduct otherwise might constitute malicious prosecution. However, our supreme court recently overruled Johnson. See Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala. 2001). In Patterson, our supreme court foundJohnson to be inapplicable where there is no evidence before the court that the holder of the instrument has complied with the other provisions of the Worthless Check Act. In order to use the immunity provisions, Bruno's has a burden under Patterson to show the trial court that it has complied with all provisions of the statute.
If the appellate court can ascertain from the record that the matter subject to production, or the answers to the pending interrogatories, are crucial to the nonmoving party's case, "then it is error for the trial court to grant summary judgment before the items have been produced or the answers given."Reeves v. Porter, 521 So.2d at 965 (Ala. 1988); Williams v. Williams, 617 So.2d 1032, 1035-6 (Ala. 1992). It is clear from our review of the record that Bruno's bank records are needed to verify whether payment was indeed made. Production of these documents could resolve whether any genuine issue remains to be litigated by the parties. Therefore, I would reverse the summary judgment and remand the case to the trial court for the completion of discovery before any further proceedings.
I disagree with the main opinion's reversal of the summary judgment. I believe that Bruno's has demonstrated that it is entitled to immunity under § 13A-9-13.2, Ala. Code 1975, and that West failed to present sufficient evidence to defeat Bruno's properly supported motion for a summary judgment. The main opinion's holding creates a duty on the part of a business or other party holding a worthless negotiable instrument to investigate whether it is entitled to immunity under § 13A-9-13.2, and it places on that party the burden of establishing the elements of the crime of negotiating a worthless negotiable instrument. See § 13A-9-13.1, Ala. Code 1975.
Section 13A-9-13.2(3), Ala. Code 1975, provides that a party who (1) holds a worthless check and (2) who notifies the writer of that check in compliance with the requirements of § 13A-9-13.2(2), shall be immune from civil or criminal liability" with regard to its proceeding under the Worthless Check Act to prosecute the writer of the worthless check. (Emphasis added.) I believe that the sole question presented to this court for resolution is whether Bruno's complied with the provisions of the Worthless Check Act and is, therefore, entitled to immunity under § 13A-9-13.2, Ala. Code 1975.
West does not dispute that she issued a check that was returned to Bruno's marked "insufficient funds." West does not dispute that Bruno's properly notified her, in compliance with the requirements of § 13A-9-13.2(2), Ala. Code 1975, of the fact that her check had been returned for insufficient funds. Because the two elements that entitle Bruno's to immunity under § 13A-9-13.2(3) are not contested by the parties, I conclude that the summary judgment should be affirmed, and that this court should go no further in its analysis. However, I feel it necessary to address the main opinion.
I would note that the Judge Pittman's concurring opinion would also reverse for Bruno's to "comply" with the holding in Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala. 2001). In that case, our supreme court addressed one issue — whether a holder of a worthless negotiable instrument must prove that it complied with the identification requirements of § 13A-9-13.3, Ala. Code 1975, in establishing a prima facie case that it was entitled to immunity under § 13A-9-13.2(3), Ala. Code 1975. The court held that "compliance with the identity provisions of § 13A-9-13.3, on which prima facie evidence of identity depends, is part and parcel of the grant of immunity [under § 13A-9-13.2(3)]," Wal-Mart Stores, Inc. v. Patterson, 816 So.2d at 7. West has not contended that Bruno's failed to comply with the requirements of the Worthless Check Act, including § 13A-9-13.3. Even so, the record contains a copy of the face of West's check, and the face of that check contains all of the information required by § 13A-9-13.3. I believe that the record clearly indicates that Bruno's demonstrated that it has complied with all of the requirements of the Worthless Check Act. See § 13A-9-13.1 through -13.3, Ala. Code 1975. Therefore, I cannot agree that the judgment should be reversed and the case remanded to the trial court on that basis.
In arguing that Bruno's was not entitled to immunity under § 13A-9-13.2(3), West contends only that, with regard to her check, Bruno's was not "holding a worthless negotiable instrument," and that Bruno's, rather than West, had a duty to investigate whether West or her bank had made a mistake. I conclude that this court, in agreeing with West's argument, has imposed a duty on the party holding a check returned for insufficient funds — a duty our Legislature, in enacting the Worthless Check Act, did not impose. The main opinion concludes that Bruno's was required to prove that West had a "specific intent to defraud," see 837 So.2d at 307, and that Bruno's did not meet its burden of proof by presenting evidence regarding West's intent. In support of that conclusion, the main opinion cites two cases in which the appellate courts discussed the elements the State must ultimately prove in prosecuting a person charged with the crime of negotiating a worthless instrument. See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975) andBullen v. State, 518 So.2d 227 (Ala.Crim.App. 1987). In relying on these cases, the main opinion improperly imposes on a party who holds a worthless negotiable instrument and who complies with § 13A-9-13.2 the same burden the State bears in a criminal trial to prove the element of intent. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala. 1992) ("Because subjective intent . . . is often difficult to ascertain, it stands to reason that the person in the best position to assess the merits of a criminal prosecution under [the Worthless Check Act] is the district attorney.").
Even assuming that a holder of a worthless negotiable instrument must address the issue of the maker's intent, the Worthless Check Act, rather than requiring that the holder of a worthless negotiable instrument demonstrate that it had probable cause to believe the issuer of the check intended to defraud the payee of the check, sets forth the situations in which there is prima facie evidence of intent to negotiate a worthless instrument:
"[I]t is prima facie evidence that the maker or drawer intended, knew, or expected that the instrument would not be honored in the any of the following instances:
". . . .
"(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of not more than (fill in appropriate amount as provided by law), within 10 days after receiving written notice from the holder of the instrument that payment was refused upon the instrument, as provided in Section 13A-9-13.2."
§ 13A-9-13.1(b), Ala. Code 1975 (emphasis added).
In support of its motion for a summary judgment, Bruno's submitted evidence indicating that West's check had been returned to it for insufficient funds, and that, pursuant to § 13A-9-13.2, Ala. Code 1975, it properly notified West of the insufficiency and requested payment. In opposition to Bruno's summary-judgment motion, West presented her affidavit stating that, even assuming it was admissible, demonstrates only that West's bank removed funds representing the amount of the check from her bank account, i.e., that it paid the check. West's affidavit states that "[the] check was presented to my bank and was paid and withdrawn from my account," and that West contacted a Bruno's manager and informed the manager that "the check had cleared my bank and that it was in fact not a bad or bounced check." However, West has not presented any evidence indicating that Bruno's was the party who presented her check to her bank and received payment. West has presented no evidence indicating that Bruno's was properly paid, and she has not at any time contended that she told the Bruno's manager that Bruno's had received the proceeds of her check.
West's affidavit contains some statements constituting hearsay and unauthenticated copies of her bank statement. For the purposes of this writing, I will assume that the courts may properly consider all parts of West's submissions in opposition to Bruno's motion for a summary judgment. See Chatham v. CSX Transp., Inc., 613 So.2d 341 (Ala. 1993) (the nonmovant may oppose a motion for a summary judgment only with admissible evidence).
More significantly, West has not demonstrated that she herself complied with the Worthless Check Act after Bruno's notified her that her check had been returned for insufficient funds. West did not present evidence indicating that she paid the amount of the check, plus any applicable service charge, to Bruno's, when she was notified that her bank had returned the check to Bruno's. See § 13A-9-13.1(b)(2), Ala. Code 1975. See also Steeley v. City of Gadsden, 533 So.2d 671, 677 (Ala.Crim.App. 1988) ("the refusal of the drawee to honor the check because of `insufficient funds' and the failure of the appellant to pay the amount of the check . . . within ten days after proper notice are prima facie evidence that the appellant intended, knew or expected that [her] check would not be honored."). The clear terms of § 13A-9-13.1(b)(2) dictate the actions required of the maker of the check, but nothing in the Worthless Check Act requires any duty on the part of the holder of a worthless negotiable instrument to investigate the circumstances leading to the instrument's being returned to it for insufficient funds. Given the foregoing, I do not believe that West presented sufficient evidence to defeat the prima facie evidence of intent by demonstrating that as the "maker or drawer" of the instrument, she "paid the holder thereof the amount due thereon." § 13A-9-13.1(b)(2), Ala. Code 1975. Further, although West's bank statement, upon which she apparently bases her affidavit, indicates that the check did clear her bank, there is no evidence in the record regarding to whom the funds from that check were transferred. The funds might have been properly transferred to Bruno's, or they might have been directed to the wrong account; such information was readily available to West upon a mere inquiry to her bank. It is speculation to conclude that the bank properly paid Bruno's rather than some other party, or that West demonstrated to the Bruno's manager that Bruno's did receive payment for her check. It is well settled that speculation that a fact exists will not defeat a properly supported motion for a summary judgment. Ex parte Wal-Mart Stores, Inc., 806 So.2d 1247 (Ala. 2001); Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996). Therefore, I conclude that West failed to meet her burden of presenting substantial evidence to defeat Bruno's properly supported motion for a summary judgment.
West has argued on appeal and on application for rehearing that the trial court erred in entering a summary judgment before the parties completed discovery. "The mere pendency of discovery does not bar summary judgment." Hope v. Brannan, 557 So.2d 1208, 1212 (Ala. 1989). If a party opposing a motion for a summary judgment cannot properly respond to that summary-judgment motion because necessary discovery is still pending, that party must file an affidavit in the trial court stating that the requested discovery is crucial and stating the reason the party cannot respond to the summary-judgment motion without that discovery. Rule 56(f), Ala.R.Civ.P.; Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458 (Ala. 1997); McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala. 1996); Hope v. Brannon, supra; Reeves v. Porter, 521 So.2d 963 (Ala. 1988); Dorsey v. Bowers, 709 So.2d 51 (Ala.Civ.App. 1998). "Such an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence." Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f), Rule 56, Ala.R.Civ.P.
In McCullar v. Universal Underwriters Life Ins. Co., supra, the party opposing a motion for a summary judgment ("the nonmovant") moved the trial court for a continuance, but the trial court denied her request. The nonmovant stated only that she needed certain documents in order to depose certain witnesses. The supreme court found that the nonmovant did not specifically state to the trial court, or argue to the supreme court, the reason "why the discovery was significant to her effort to rebut the summary judgment motion." McCullar, 687 So.2d at 161. Therefore, the supreme court, noting that Rule 56(f) places the burden on the nonmovant to show why the discovery was crucial, held that the trial court did not abuse its discretion in refusing to continue its consideration of the motion for a summary judgment. McCullar, 687 So.2d at 161-62.
In this case, in her response to Bruno's motion for a summary judgment, West did not file a Rule 56(f) affidavit. West argued only that "to allow a summary judgment prior to even rudimentary discovery being completed would be unjust and prejudice [her]." Even assuming that such an argument is sufficient, in so arguing, West did not specify what pending discovery was necessary for her to respond to the motion for a summary judgment, why that discovery information was crucial to her ability to properly respond to that motion, or why she could obtain that information only through discovery. West's argument on appeal as to this issue was virtually identical to the argument she made before the trial court. In her brief on application for rehearing, West, for the first time, makes a specific argument regarding the discovery she contends was necessary to her ability to respond to the motion for a summary judgment. It is well-settled that an issue may not be raised for the first time on application for rehearing, Millar v. Wayne's Pest Control, 804 So.2d 213 (Ala.Civ.App. 2001), and it follows that an issue, although raised, may not be properly argued for the first time on application for rehearing.
I believe that the burden was on West, the issuer of the check, to ensure payment to the merchant, see § 13A-9-13.2, Ala. Code 1975, and that this court's reversal of the summary judgment places the burden on Bruno's, the merchant and the holder of the worthless negotiable instrument, to defend a claim supported only by conclusory allegations and speculation. Therefore, I dissent from the reversal of the summary judgment entered in favor of Bruno's.