Kessler v. Simmons

PER CURIAM. Because we find no evidence before the trial court from which the trier of the fact could reasonably conclude either that defendants David Simmons and Durham W. Ellis, as corporate officers and stockholders, contractually stipulated to act as co-sureties of the corporation or that the corporation was operated as a mere sham, we affirm the summary judgment on their behalf, on the authority of Washburn v. Rabun, 487 So.2d 1361 (Ala.1986), and Little v. People's Bank of Mobile, 209 Ala. 620, 96 So. 763 (1923). We note that the summary judgment in favor of these two defendants was made final pursuant to Rule 64(b), A.R.Civ.P., and that the plaintiff’s claim against Simmons and Ellis, Inc., as well as the corporate defendant's counterclaim against Kes-sler, is still pending in the trial court. AFFIRMED. TORBERT, C.J., and JONES, SHORES, ADAMS and STEAGALL, JJ., concur.