Rel: 10/17/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.




           SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015

                         _________________________

                                  1130698
                         _________________________

                               Ronald L. Cooper

                                          v.

                                    MTA, Inc.

                   Appeal from Madison Circuit Court
                             (CV-12-901460)

MAIN, Justice.

       Ronald L. Cooper appeals from a summary judgment in favor

of MTA, Inc. ("MTA"), in MTA's action against Cooper seeking

contribution.        We reverse and remand.
1130698

                   I. Facts and Procedural History

    In     1999,   Cooper    and    Robert      L.   Flowers    formed   C&F

Enterprises, LLC ("C&F").          C&F owned a parcel of property on

Meridian Street in Huntsville, upon which it built a shopping

center    known    as   College    Plaza   ("the     shopping     center").

Subsequently, pursuant to an "Amended and Restated Operating

Agreement" dated November 9, 2000 ("the operating agreement"),

MTA became a member of C&F.         The operating agreement provided

that MTA, Flowers, and Cooper each owned a one-third interest

in C&F.    Section 16.2 of the operating agreement contains a

first right of refusal pursuant to which, after giving proper

notice, MTA could elect to purchase the shopping center.

    On December 27, 2000, C&F borrowed $650,000 from the

Southern    Development Council,         Inc.    ("SDC"),      a community-

development program; that debt is memorialized by a promissory

note ("the note").       On the same day, SDC assigned the note to

the Small Business Administration ("the SBA").                   Cooper and

Flowers personally guaranteed the indebtedness owed under the

note.

    On July 18, 2003, C&F received a foreclosure letter with

respect to the note.        On July 24, 2003, counsel for MTA sent


                                     2
1130698

Cooper a letter informing him of MTA's intent to exercise its

right of first refusal pursuant to section 16 of the operating

agreement.

    On October 18, 2012, MTA filed a complaint against Cooper

and Flowers.1 The complaint set forth the following statement

of facts:

    "4. On or about December 27, 2000, C&F Enterprises,
    LLC ('C&F') executed and delivered to Southern
    Development Council, Inc. ('SDC') promissory note
    (the 'Note') whereby C&F promised to pay SDC the sum
    of $650,000.00, with interest determined on the sale
    of the debenture[2], and agreed to pay reasonable
    attorney fees for collection. ...

    "5. On or about December 27, 2000, [MTA], Cooper,
    and Flowers each executed personal guarantees of the
    indebtedness owed under the Note.

    1
     Flowers is not a party to this appeal. The record on
appeal includes what appears to be an affidavit from Flowers,
in which he states, in pertinent part:

         "Though I was a member of C&F Enterprise, LLC.
    To the best of my knowledge does not exist anymore,
    at the request of majority partners, MTA and Ronald
    L Cooper. I, Robert L. Flowers, Jr. was removed from
    the personal Guarantee of the SBA ... portion of the
    loan amount. There is a letter removing me as the
    Guarantor, of which they are aware of. I deny owing
    any money on this summons of this case."

(Punctuated as in original.)
    2
     A "debenture" is "[a] debt secured only by the debtor's
earning power, not by a lien on any specific asset." Black's
Law Dictionary 486 (9th ed. 2009).
                               3
1130698


    "6. As such, [MTA] and [Cooper and Flowers] were
    each   jointly  and   severally   liable for the
    obligations owed pursuant to the Note.

    "7. On or about June 26, 2008, SDC filed a lawsuit
    against [MTA], C&F, and Cooper, asserting that they
    were in breach of the Note and Guarantees in the
    amount of $767,523.10.

    "8. On or about August 12, 2010, SDC obtained
    judgment against [MTA] and C&F in the amount of
    $767,523.10. Upon information and belief, Cooper was
    never served in the lawsuit.

    "9. On or about October 21, 2011, SDC withdrew the
    sum of $812,706.00 from monies owed to MTA by the
    government through the federal offset program.[3]
    This amount satisfied the judgment and interest
    thereon.

    "10. No contribution to this satisfaction has been
    made by [Cooper and Flowers]."



    3
     The referenced "federal offset program" appears to be the
"Treasury Offset Program," which "is a centralized offset
program, administered by the Bureau of the Fiscal Service's
Debt Management Services (DMS), to collect delinquent debts
owed to federal agencies and states, ... in accordance with 26
U.S.C. § 6402(d) (collection of debts owed to federal
agencies), 31 U.S.C. § 3720A (reduction of tax refund by
amount of the debts), and other applicable laws." On the date
this opinion was released, this information could be found at
http://fiscal.treasury.gov/fsservices/gov/debtColl/dms/top/d
ebt_top.htm; a copy of the Web page containing this definition
is available in the case file of the clerk of the Alabama
Supreme Court. See Ala. R. Evid. Rule 201(b)(2) (noting that
this Court may take judicial notice of facts "capable of
accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned").
                              4
1130698

The complaint alleged a count of contribution and "demand[ed]

judgment in [MTA's] favor and against Cooper in the amount of

$270,902.00, and Flowers in the amount of $270,902.00."     In

the alternative, "[MTA] demand[ed] judgment in its favor and

against Cooper and Flowers for their individual pro rata

contribution shares as determined at trial."

    Cooper filed a motion to dismiss; the trial court denied

the motion.   Cooper then answered the complaint.   Thereafter,

MTA filed a motion for a summary judgment against Cooper and

Flowers. MTA's argument in its motion, in its entirety, is as

follows:

         "In Alabama, when a guarantor has paid the debt
    of a principal, it is entitled to judgment against
    each co-guarantor in the amount of their individual
    pro rata shares of the debt. Ala. Code (1975) §
    8-3-42(2)(a). The statute specifically states that:

           "'Sureties ... are entitled to a summary
           judgment against their principal and
           between each other, by motion in the
           circuit court on three days' notice thereof
           ... in the following manner ...

               "'(2) Between sureties:

                    "'a. A surety who has
                    paid the debt of his
                    principal may recover
                    of    each   of    his
                    cosureties      their
                    aliquot proportion of

                               5
1130698

                  the debt, and, if any
                  of the cosureties are
                  insolvent,          the
                  proportion    of    such
                  insolvent     must    be
                  excluded     from    the
                  estimate, and judgment
                  be entered against the
                  remaining       solvent
                  sureties    for    their
                  proportion of the debt
                  as if such insolvent
                  were not a cosurety.'

    "Id. Although the statute in question sets out
    remedies between 'sureties,' it has been clearly
    established in Alabama that the terms 'surety' and
    'guarantor' are interchangeable in this context.
    Specifically, the meaning of 'surety' for the
    purpose of Ala. Code [1975,] § 8-3-1 et [seq.,] is
    'one who has been forced to pay a debt that was the
    primary obligation of another, and which the latter
    ought to have paid in exoneration of the former.'
    Moody v. Hinton, 603 So. 2d 912 (Ala. 1992) (Shores,
    J., dissenting); see also, Bradley v. Bentley, 163
    So. 351, 355 (Ala. 1935); City of Birmingham v.
    Trammel, 101 So. 2d 259, 260 (Ala. 1958).

         "Alabama law specifically provides that this
    remedy is to be granted in the form of summary
    judgment. Ala. Code [1975,] § 8-3-42. The right to
    contribution    against    co-guarantors     is    a
    well-established, historical principle of Alabama
    law. See Dubberly v. Black's Adm'r, 38 Ala. 193
    (Ala. 1861); Douglass v. Orman, 119 So. 601 (Ala.
    App. 1928); Layne v. Garner, 612 So. 2d 404 (Ala.
    1992). This right is absolute absent an agreement
    between   the  parties   limiting   the   right   of
    contribution between co-guarantors. Ex parte Harris,
    837 So. 2d 283, 287 (Ala. 2002). No such agreement
    exists in this case. ...


                             6
1130698

          "The full amount of the debt and interest which
     MTA paid in order to satisfy ... C&F's liability to
     SDC is $812,706.00. ... As there were three
     guarantors to this debt (MTA, Cooper, and Flowers),
     the pro rata share of each guarantor is 1/3 of the
     total, or $270,902.00. ... For the reasons stated
     above, no genuine issue of material fact exists as
     to [MTA's] claim for contribution, and [MTA] is
     entitled to judgment as a matter of law against
     Cooper in the amount of $270,902.00 and Flowers in
     the amount of $270,902.00."

     MTA supported its summary-judgment motion with, among

other      evidence,   the   affidavit   of   Robert   Chastine,    the

president of MTA.        In his affidavit, Chastine stated, in

pertinent part, that, "[o]n or about October 21, 2011, [SDC]

withdrew the sum of $812,706.00 from monies owed to MTA by the

government through the federal offset program. This withdrawal

satisfied the judgment, as well as the post-judgment interest

that had accrued between the date of the judgment and the date

of   the    satisfaction."      Chastine   also   stated   that   "[n]o

contribution to MTA's satisfaction of C&F's debt to SDC has

been made by Cooper or Flowers, and no agreement exists among

MTA, Cooper, and Flowers limiting the right of contribution

between them."

     Cooper filed a response to MTA's summary-judgment motion.

In his response, Cooper argued, in relevant part:


                                   7
1130698

         "MTA correctly acknowledges in its memorandum
    that its right to contribution, if any, is not
    absolute if there is an agreement between the
    parties, limiting the right of contribution between
    the co-guarantors. See Ex parte Harris, 837 So. 2d
    283, 287 (Ala. 2002). In this case, MTA chose to
    exercise its first right of refusal to purchase the
    encumbered property, and in doing so, agreed to
    assume full responsibility for the repayment of the
    SBA loan. ... As such, MTA has effectively waived
    its right, if any, to contribution. ..."

    Cooper supported his response to MTA's summary-judgment

motion    with   his   own   affidavit,   in   which   he   stated,   in

pertinent part:

         "5. On or about December 27, 2000, C&F borrowed
    $650,000.00 from [SDC]. That debt is memorialized by
    the promissory note ('the Note')....

         "6. On December 27, 2000, the SDC assigned the
    Note to the Small Business Administration 'SBA.'

         "7. Thereafter, C&F received a foreclosure
    letter with respect to the SBA loan. The imminent
    sale of C&F's assets triggered the first right of
    refusal granted to MTA pursuant to Sections 16.1 and
    16.2 of the Operating Agreement. ...

         "8. On or about July 24, 2003, MTA notified me
    that it intended to exercise its first right of
    refusal. ... MTA demanded me to immediately
    relinquish and transfer to MTA my entire interest in
    C&F. ...

         "9. On August 1, 2003, I executed an 'Assignment
    Of interest in C&F Enterprises, LLC, wherein I sold,
    assigned, and transferred to MTA my entire interest
    in C&F. ...


                                   8
1130698

         "10. As a result, MTA then                      assumed     full
    responsibility of the SBA loan. ...

         "11. Notwithstanding the allegations in the
    Complaint, I have no knowledge of the factual
    circumstances associated with the alleged payment
    made, via the federal offset program, to the SBA."

    Cooper      also   supported     his    response      to   the   summary-

judgment motion with a letter, dated July 24, 2003, that MTA

sent to Cooper, in which MTA stated, in pertinent part:

         "As you probably are aware, C&F Enterprises has
    received a foreclosure letter with respect to its
    SBA loan. This imminent sale of C&F Enterprises'
    assets has triggered the right of first refusal
    granted to MTA in section 16 of C&F Enterprises'
    current Operating Agreement, giving MTA the right to
    purchase the College Plaza Shopping Center.

         "By this letter MTA is hereby notifying you, as
    required by section 16.2 of the Operating Agreement,
    of its intent to exercise its right of first
    refusal. To this end, MTA expects you to immediately
    relinquish and transfer to MTA your entire interest
    in C&F Enterprises, MTA will then assume full
    responsibility for the repayment of the SBA loan."

    Cooper further supported his response to the summary-

judgment   motion      with   a   document    entitled     "Assignment      of

Interest   in    C&F    Enterprises,       LLC[,]   an    Alabama     Limited

Liability Company."           That document, purporting to assign

Cooper's interest in C&F to MTA, signed by Cooper and a

witness, provides:


                                     9
1130698

         "For adequate consideration, the receipt of
    which is hereby acknowledged, Ronald L. Cooper
    hereby sells, assigns and transfers unto MTA, Inc.,
    an Alabama corporation, Ronald L. Cooper's entire
    interest in C&F Enterprises, an Alabama limited
    liability company, constituting thirty three and
    one-third membership units and a thirty three and
    one-third percentage interest in C&F Enterprises,
    LLC, and the undersigned hereby further irrevocably
    constitutes and appoints the [sic] Robert Chastine
    to transfer the said interests on the books of the
    within-named limited liability company, with full
    power of substitution in the premises."

    MTA filed a reply to Cooper's response to its summary-

judgment motion, stating, in pertinent part:

                    "SUPPLEMENTAL FACTS

    "1. On or about July 24, 2003, D. Ashley Jones,
    counsel for [MTA] and its principal, Robert
    Chastine, sent Ronald L. Cooper ('Cooper') a letter
    informing him of its intent to exercise its right of
    first refusal (the 'Demand Letter'). ...

    "2. The Demand Letter stated that 'Time is of the
    essence,' and gave Cooper a period of seven days in
    which to execute and return a transfer of membership
    interest. ...

    "3. No response was ever received from Cooper, and
    no executed assignment of membership interest was
    ever received. ...

    "4. In further support of [MTA's] Motion for Summary
    Judgment, true and correct copies of the collection
    letters from the Department of the Treasury
    evidencing the transfers referenced in the Complaint
    and Motion for Summary Judgment are attached hereto
    as Exhibit '2.'


                             10
1130698

                   "SUPPLEMENTAL ARGUMENT

         "A few days before the initial hearing on
    [MTA's] Motion for Summary Judgment, [Cooper] filed
    its response to [MTA's] motion, to which was
    attached the Demand Letter, as well as a purported
    assignment of Cooper's interest in C&F Enterprises,
    LLC ('C&F') to [MTA] (the 'Assignment'). ... The
    Assignment was never received -- in fact, no
    response to the letter requesting the executed
    Assignment was received whatsoever. ...

         "Regardless of the receipt of the Assignment,
    that document is insufficient to constitute a
    transfer of the membership of Ronald L. Cooper to
    MTA, Inc. Section 9 of the Operating Agreement of
    C&F (the 'Operating Agreement') sets out the method
    by which a transfer of membership interest in C&F
    may be formalized. ... Section 9.1 of the Operating
    Agreement provides that any assignment of membership
    interest must be:

          "'1. Executed both by the assignor and the
          assignee;

          "'2. Received by the members;

          "'3. Recorded on the books of C&F;

          "'4. Approved by prior written consent of
          at least 75% of outstanding members; and

          "'5. Accompanied by an opinion of counsel
          that said assignment will not contravene
          applicable   law,   terminate   C&F,   or
          jeopardize C&F's tax status. ...'

         "The Assignment clearly fails to meet these
    requirements, as it was not signed by [MTA] ....
    Furthermore, the Assignment was never received by
    [MTA's] Counsel .... No evidence in support of the
    remaining requirements has been submitted by Cooper,

                             11
1130698

    but the sole fact that [MTA] did not sign the
    Assignment is enough to render the Assignment
    invalid pursuant to Section 9 of the Operating
    Agreement.

         "It is also clear that the Assignment is not a
    transfer pursuant to the first right of refusal set
    out in Section 11 of the Operating Agreement. Such
    a transfer would require:

               "1. Written notice by the seller (in
          this case, Cooper) to the purchaser (in
          this case, [MTA]) of the seller's intent to
          sell, including the price and terms the
          seller is willing to accept; ...

               "2. Written    acceptance from the
          purchaser (MTA) of said notice within 30
          days of the seller's notice; ... and

               "3. An execution of the purchase
          within 75 days of the seller's notice of
          intent to sell ....

         "No evidence supporting any of these three
    requirements has been submitted by Cooper. Finally,
    the Court should note that the Demand Letter refers
    to a right of first refusal set out in Section 16.2
    of the Operating Agreement. ... However, the first
    right of refusal set out in Section 16[4] is only a
    first right of refusal entitling MTA to purchase a
    shopping center owned by C&F, not a right of first
    refusal   entitling   MTA   to   purchase   Cooper's
    membership interest. As such, any transfer of
    membership interest between the members of C&F would
    have to be executed pursuant to section 9[5] or

    4
     Section 16 of the operating agreement is entitled "First
Right of Refusal as to Shopping Center."
    5
     Section 9 of the operating       agreement   is    entitled
"Transfer of a Member's Interest."
                              12
1130698

    section 11[6] of the Operating Agreement. As
    described above, the Assignment, even if it was
    executed, would not operate as a transfer of
    Cooper's membership interest in C&F to [MTA]."

    Cooper filed a supplemental response to his original

response to the summary-judgment motion, stating, in pertinent

part:

         "1. MTA supplements its summary judgment motion
    by arguing that Ashley Jones never received Cooper's
    assignment of interest in C&F Enterprises, LLC
    ('C&F'). In support, MTA attaches the Affidavit of
    Ashley Jones who claims that he does not recall ever
    receiving the Assignment. Nevertheless, Cooper has
    previously stated in his Affidavit that he executed
    the assignment of his membership interest in
    accordance with MTA's instructions. See paragraph 9
    of the Affidavit of Ron Cooper ('Cooper Affidavit')
    .... Therefore, an issue of fact exists as to
    whether MTA exercised its first right of refusal,
    thereby   purchasing   Cooper's   interest  in   C&F
    Enterprises and assuming responsibility of C&F's
    debt.

         "2. Further discovery is needed to resolve
    issues of fact regarding MTA's exercise of its first
    right of refusal and Cooper's assignment of his
    membership interest. Specifically, Cooper is issuing
    subpoenas to take the depositions of: (i) Erskine
    Valrie, the former Small Business [Administration]
    officer that handled the loan at issue in this case,
    (ii) Robert Flowers, the co-defendant who failed to
    appear in this case; and (iii) Ashley Jones, MTA's
    former transactional attorney. ...



    6
     Section 11 of the operating agreement is entitled "First
Right of Refusal as to Member Interest."
                             13
1130698

         "3. MTA further supplements its summary-judgment
    motion with attached collection letters from the
    Department of Treasury that MTA claims purport to
    transfer the funds via the federal offset program to
    satisfy the C&F debt at issue in this lawsuit.
    However, MTA has failed to produce evidence that the
    withdrawals via the federal offset program were used
    to satisfy the SBA's loan to C&F Enterprises. ...
    While MTA attached collection letters from the
    Department of Treasury, those collection letters do
    not reference C&F Enterprises in any way. Moreover,
    there is no explanation from Robert Chastine, MTA's
    corporate    representative,   authenticating   these
    facts. As such, the deposition of Robert Chastine is
    also needed to develop these factual issues. ...

         "4. Finally, MTA's supplemental submission
    raises additional factual issues regarding the scope
    of the first right of refusal. MTA argues that the
    first right of refusal found in Section 16.2 of the
    Operating Agreement only entitles MTA to purchase
    the shopping center and does not entitle MTA to
    purchase Cooper's membership interest. This argument
    is inconsistent with MTA's prior position as
    articulated by its counsel in his July 24, 2003,
    letter. ... Moreover, the SBA loan documents, which
    are attached to MTA's Complaint, and the operating
    agreement, when read in their entirety, are evidence
    that C&F Enterprises was formed to construct and
    lease the College Plaza Shopping Center. Therefore,
    MTA's last-minute attempt to manipulate the terms of
    the Operating Agreement is disingenuous."

    After   a   hearing,   the   trial   court   entered   an   order

granting MTA's summary-judgment motion and stating: "Judgment

is hereby entered in favor of plaintiff MTA, Inc., and against

defendants Ronald Cooper and Robert Flowers in amount of

$270,902.00, plus costs of this action."         The trial court's

                                 14
1130698

order included no specific findings of fact.   Cooper filed a

Rule 59(e), Ala. R. Civ. P., motion, arguing, in sum, that,

"[i]n this case, MTA chose to exercise its first right of

refusal to purchase the encumbered property, and in doing so,

agreed to assume full responsibility for the repayment of the

SBA loan."    The trial court denied Cooper's postjudgment

motion.   Cooper appealed.

                    II. Standard of Review

    "Our standard of review of a summary judgment is
    well settled:

               "'"The standard of review applicable
          to a summary judgment is the same as the
          standard for granting the motion...."
          McClendon v. Mountain Top Indoor Flea
          Market, Inc., 601 So. 2d 957, 958 (Ala.
          1992).

                   "'"A summary judgment is
              proper when there is no genuine
              issue of material fact and the
              moving party is entitled to a
              judgment as a matter of law. Rule
              56(c)(3), Ala. R. Civ. P. The
              burden is on the moving party to
              make a prima facie showing that
              there is no genuine issue of
              material fact and that it is
              entitled to a judgment as a
              matter of law. In determining
              whether the movant has carried
              that burden, the court is to view
              the evidence in a light most
              favorable to the nonmoving party

                              15
1130698

              and   to  draw   all   reasonable
              inferences in favor of that
              party. To defeat a properly
              supported    summary     judgment
              motion, the nonmoving party must
              present 'substantial evidence'
              creating a genuine issue of
              material fact -- '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.' Ala. Code 1975, §
              12–21–12; West v. Founders Life
              Assurance Co. of Florida, 547 So.
              2d 870, 871 (Ala. 1989)."

          "'Capital    Alliance     Ins.    Co.    v.
          Thorough–Clean, Inc., 639 So. 2d 1349, 1350
          (Ala. 1994). Questions of law are reviewed
          de novo. Alabama Republican Party v.
          McGinley, 893 So. 2d 337, 342 (Ala. 2004).'

    "Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d
    933, 935 (Ala. 2006)."

Smith v. Fisher, 143 So. 3d 110, 122-23 (Ala. 2013).

                        III. Analysis

    We conclude that the trial court erred in granting MTA's

motion for a summary judgment.     The legal arguments presented

by the parties and the substantial evidentiary documentation

supporting those arguments7 show that there exist a number of

    7
     The parties collectively submitted to the trial court no
fewer than seven affidavits, along with numerous other
documentary evidence.
                              16
1130698

disputed issues of material fact in this case.                  The following

constitute some of, but perhaps not all, the disputed issues

of material fact that make a summary judgment inappropriate in

this case:

       In       his   affidavit,   Chastine,   who,   as    noted,     is   the

president of MTA, stated that, "[o]n or about October 21,

2011, [SDC] withdrew the sum of $812,706.00 from monies owed

to MTA by the government through the federal offset program.

This    withdrawal        satisfied   the   judgment,      as   well   as   the

post-judgment interest that had accrued between the date of

the judgment and the date of the satisfaction."                  However, in

her affidavit, Deanna Smith, one of Cooper's attorneys, stated

that "MTA has failed to produce evidence that the withdrawals

via the federal offset program were used to satisfy the SBA's

loan to C&F Enterprises. While MTA attached collection letters

from the Department of Treasury, those collection letters do

not reference C&F Enterprises in any way."

       In his affidavit, Cooper stated that, "[o]n August 1,

2003,       I     executed   an    'Assignment   Of     interest       in   C&F

Enterprises, wherein I sold, assigned, and transferred to MTA

my entire interest in C&F [Enterprises, LLC]."                  "As a result,


                                       17
1130698

MTA then assumed full responsibility for the repayment of the

SBA loan."      Also, in her affidavit, Dana M. Moore, the

executive director of SDC, stated that she was aware that

"Cooper had executed an assignment transferring his interest

in C&F Enterprises to MTA."         However, in his affidavit, D.

Ashley Jones, counsel for MTA and Chastine in July 2003,

stated that he sent a letter to Cooper on July 24, 2003,

"informing     him   of   said     pending     foreclosure   [of     C&F

Enterprises,     LLC],    and    instructing    him   to   execute    an

assignment of interest to MTA, Inc. within seven days" but

that Jones "never received any communication in return from

... Cooper and never received the executed Assignment of

Interest ...."

    Furthermore, there exists an issue of material fact as to

whether Cooper's purported assignment to MTA of his interest

in C&F was an assignment of Cooper's interest in C&F pursuant

to section 11 of the operating agreement; an assignment of

Cooper's interest in the shopping center operated by C&F

pursuant to section 16 of the operating agreement; or an

assignment of Cooper's interests under both sections 11 and 16

of the operating agreement. In its supplement to its summary-


                                   18
1130698

judgment motion, MTA argued that, "[f]inally, the Court should

note that the Demand Letter refers to a right of first refusal

set out in Section 16.2 of the Operating Agreement. ...

However, the first right of refusal set out in Section 16 is

only a first right of refusal entitling MTA to purchase a

shopping center owned by C&F, not a right of first refusal

entitling    MTA    to   purchase   Cooper's    membership   interest."

However, the affidavit of Jones, then MTA's attorney, does not

distinguish between MTA's purchasing Cooper's interest in C&F

as opposed to or in addition to Cooper's interest in the

shopping center owned by C&F.             As noted above, Jones stated

only that he "never received the executed Assignment of

Interest."         Furthermore,     the     purported   "Assignment   of

Interest" document to which Jones referred is not specific as

to whether Cooper assigned to MTA his interest in C&F as

opposed to or in addition to his interest in the shopping

center.

    In sum, it is clear that there exist several issues of

material fact that preclude a summary judgment in this case.

Accordingly, the trial court's summary judgment in favor of

MTA is due to be reversed.


                                    19
1130698

                          IV. Conclusion

    Because genuine issues of material fact exist in this

case, the trial court erred in granting MTA's motion for a

summary judgment.    Therefore, we reverse the trial court's

judgment   and   remand   the   cause   for   further   proceedings

consistent with this opinion.

    REVERSED AND REMANDED.

    Moore, C.J., and Murdock and Bryan, JJ., concur.

    Bolin, J., concurs in the result.




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