The issue in this case is whether a plaintiff is always entitled to have summary judgment entered in its favor when it makes out a prima facie case of a debt owed to it by attaching a verified statement of account to its complaint, as permitted by Ala.Code 1975, § 12-21-111, and the defendant fails to file a counteraffidavit as required by that statute. We hold that § 12-21-111 is only an evidentiary rule and that the prima facie case may be rebutted by other means outside the scope of the statute.
On December 21, 1987, Merchant's Printers, Inc. (Merchant's), sued Vulcan Publications, Inc.; a partnership known as Vulcan Publications; and the partnership's three alleged partners, claiming that the defendants owed it $26,525.45 due by verified account, plus interest and costs. As permitted by the provisions of Ala.Code 1975, § 12-21-111, Merchant's attached a "statement of account" to the complaint. On March 16, 1988, Merchant's filed a motion for summary judgment, which the trial court scheduled for a hearing, but before the date set for the hearing the defendants filed discovery requests, and they later filed an affidavit by one Dennis Johnson in opposition to the motion for summary judgment, in which Johnson stated, among other things, that Merchant's had breached the contract that formed the basis for the alleged debt.
On April 11, 1991, the three alleged partners of the alleged partnership moved for summary judgment based on the claim that such a partnership did not exist. The trial court granted the motion.
On April 30, 1991, Merchant's filed a new motion for summary judgment.
After the trial, the court entered judgment in behalf of Vulcan Publications, Inc., on the claim by Merchant's and a judgment in behalf of Merchant's on Vulcan Publications' counterclaim. Merchant's appealed.
Section 12-21-111, upon which Merchant's relies, states in pertinent part:
Based on this record, we conclude that the trial court correctly refused to enter summary judgment in favor of Merchant's.
Merchant's presented an itemized statement of an account, verified by the affidavit of a competent witness taken before a notary public. Unless Vulcan Publications, Inc. filed an affidavit stating that it disputed the account, in whole or in part, the trial court would consider Merchant's account as "competent evidence of the correctness" of the account.
Section 12-21-111 states that the defendant must file his counteraffidavit "within the time allowed him for pleading." A.R.Civ.P. 12(a) requires the defendant to file his answer within 30 days of service of the complaint. Merchant's filed its complaint, accompanied by a verified account, on December 21, 1987, and the record shows that Vulcan did not file its counteraffidavit to the verified account "within the time allowed ... for pleading. The failure of Vulcan to timely file a counteraffidavit required the trial court to consider the plaintiff's statement of the amount due to be "competent evidence of the correctness of the account."
We cannot agree with the argument that Merchant's was entitled to a summary judgment, as a matter of law, because of the failure of Vulcan to file a counteraffidavit within 30 days after Merchant's filed its complaint containing the verified account. Section 12-21-111 upon which Merchant's strongly relies, is merely an evidentiary rule. This rule was adequately described in Duck Brand Co. v. Douglass, 16 Ala.App. 437, 438, 78 So. 635, 636 (1918), as follows:
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires that the trial court must determine that (1) there is no genuine issue of material fact, and (2) the moving party is entitled to a judgment as a matter of law.
Merchant's would have been entitled to a judgment only if Vulcan had offered "no other evidence" in its defense. See Alpin v. Swift Agricultural Chemicals Corp., 53 Ala.App. 409, 301 So.2d 171, 173 (1974).
The judgment of the trial court is hereby affirmed.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.