Opinion
No. 2000485.
Decided December 28, 2001.
Appeal from Jefferson Circuit Court (CV-2000-5401).
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala.R.App.P.; Rule 56(c)(3), Ala.R.Civ.P.; § 13A-9-13.2(3), Ala. Code 1975; and Chatham v. CSX Transp., Inc., 613 So.2d 341 (Ala. 1993).
Bruno's request for Rule 38, Ala.R.Civ.P., sanctions and fees is denied.
This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
Crawley and Thompson, JJ., concur.
Yates, P.J., and Murdock, J., dissent.
Because I believe that West presented substantial evidence creating a question of fact as to whether she had negotiated a worthless negotiable instrument, I must respectfully dissent.
Section 13A-9-13.2(3), Ala. Code 1975, provides: "Any party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in subdivision (2) of this section shall be immune from civil or criminal liability for the giving of the notice and for proceeding under the forms of the notice."
West testified in her affidavit that she presented to Bruno's check number 1192 drawn on her Regions Bank account in the amount of $150. She stated that the check was presented to her bank, that it was paid, and that the funds were withdrawn from her account. West testified that upon receiving notice from Bruno's claiming that the check had been returned, she presented her bank statement to the manager at Bruno's and informed her that the check had cleared her bank account and was in fact not a worthless check.
I believe that West's affidavit creates a question of fact as to whether Bruno's was holding a "worthless negotiable instrument" and, therefore, was immune from liability pursuant to § 13A-9-13.2(3). Accordingly, I dissent.
Murdock, J., concurs.