IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DONNA DORSEY DAVIS, :

as an individual and derivatively upon :

behalf of I-65 Properties, Inc., :

:

Plaintiff, :

:

vs. : Case No. 2:06-cv-766-MHT

:

RICHARD M. DORSEY, as an individual :

and CD&O, LLC, as a necessary party, :

:

Defendants. :

DEFENDANTS’ MEMORANDUM BRIEF IN OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

COME NOW Richard M. Dorsey and CD&O, LLC, Defendants in the above-styled cause, and

submit the following Memorandum Brief in Opposition to Plaintiff’s Motion for Summary Judgment.

I. DEFENDANTS’ MOTION TO STRIKE

Contemporaneous with the filing of this opposition brief, Defendants have filed a brief in

support of their previously filed Motion to Strike. Defendants strenuously object to Davis being

permitted to file her Motion for Summary Judgment, out of time and without seeking leave of court.

By the filing of the instant brief, Defendants do not intend to waive their arguments contained in

said motion to strike. However, because the Court ordered that briefs be submitted on the Motion

to Strike and Plaintiff’s Motion for Summary Judgment on the same day, Defendants accordingly

comply therewith.

II. ALA. CODE §7-3-118(B)

Davis asserts that the subject promissory note is barred by the statute of limitations

pursuant to Ala. Code §7-3-118(b). That statute provides as follows:

Note payable on demand. Except as provided in subsection (d) or

(e), if demand for payment is made to the maker of a note payable

on demand, an action to enforce the obligation of a party to pay the

note must be commenced within six years after the demand. If no

Case 2:06-cv-00766-MHT-TFM Document 40 Filed 04/27/2007 Page 1 of 5
All exhibits referenced herein have been previously filed with Defendants’ Motion for 1

Summary Judgment. However, for the convenience of the Court, Defendants refile the exhibits

referred to in the instant brief with the same exhibit numbers previously assigned. 

-2-

demand for payment is made to the maker, an action to enforce the

note is barred if neither principal nor interest on the note has been

paid for a continuous period of 10 years.

Davis’ argument regarding this statute is misplaced as she clearly ignores the language of

the note in her attempt to bar recovery. (See Exhibit “3" - October 1, 1990 Promissory Note).1

Irrespective of the statutory language quoted above, this statute does not apply to the promissory

note at issue because the note plainly and unequivocally waives the requirement for a demand.

Accordingly, Davis’ asserted defense is waived as evidenced by the language of the note. 

The promissory note states in pertinent part as follows:

...[E]ach maker, endorser, surety and guarantor of this note severally

waives demand, presentment, protest, notice of protest, suit

and all other requirements necessary to hold them or any of them

and they severally agree that time of payment may be extended or

a renewal note taken or other indulgence granted without notice of,

or consent to, such action, without release of liability of any such

party. 

(Emphasis added).

Ala. Code §7-1-306 provides that “[a] claim or right arising out of an alleged breach may be

discharged in whole or in part without consideration by agreement of the aggrieved party in an

authenticated record.” The above waiver is part of the contract and therefore said waiver contained

within the instrument supercedes the limitations imposed by Ala. Code §7-3-118(b). It is well-settled

that where certain terms are contained within the instrument, the terms are binding. See Little v.

People’s Bank of Mobile, 96 So. 763, 766 (Ala. 1923)(waiver contained in note is valid for stated

purpose).

The terms of the note itself support Defendants’ contention that this debt was not intended

to comport to the requirements of a bank or other commercial lending company. The language

Case 2:06-cv-00766-MHT-TFM Document 40 Filed 04/27/2007 Page 2 of 5
-3-

suggests the unique situation that often exists in a closely held family corporation. The flexibility

of the demand requirements (as well as other requirements) worked to the benefit of Davis as the

note could remain unpaid for several years until the company realized a profit. Davis now seeks

to take advantage of the very structure which permitted her to enjoy the benefit of the property

absent any responsibility for seventeen years. Again, the parties were aware of the debt from the

inception of the note. Further, as evidenced by the correspondence in 2000, Davis was interested

in refinancing the debt. To now suggest that the debt was stale or was within months of being stale

is disingenuous as best. We adopt and incorporate herein the additional factual assertions made

in Defendants’ Motion for Summary Judgment.

III. DAMAGES OUTSIDE PROMISSORY NOTE

In the alternative, to the extent that the note may be unenforceable, Davis’ summary

judgment is still due to be denied. Davis’ argument wrongfully assumes that the entire amount

claimed is for the promissory note. On the contrary, as established in Dorsey’s counterclaim, the

corporation—of which Davis is a 30% owner—has had expenses for matters outside the

promissory note over the past seventeen years. To the extent Davis seeks the benefit of that

ownership, so does she bear the responsibility. It is undisputed that Davis has failed to pay any

portion of the maintenance, upkeep, taxes or other expenses associated with I-65 Properties.

(Exhibit “2” - Deposition of Richard Dorsey p. 123 at lines 1-6, p. 156 at lines 10-22; Exhibit “1” -

Deposition of Donna Dorsey Davis p. 129 at lines 11-14; Exhibit “15” - Compilation of Expenses

Owed). That expense has been borne solely by Dorsey. (Exhibit “14” - Affidavit of Richard M.

Dorsey; Davis Depo. p. 129 at lines 11-14).

Accordingly, Davis’ Motion for Summary Judgment is due to be denied.

Case 2:06-cv-00766-MHT-TFM Document 40 Filed 04/27/2007 Page 3 of 5
-4-

IV. CONCLUSION

Wherefore the premises having been considered, the Defendants respectfully request the

Court to grant the Defendants’ Motion for Summary Judgment and deny Plaintiff’s Motion for

Summary Judgment.

Respectfully Submitted this 27 day of April, 2007. th

RICHARD M. DORSEY, as an individual, and

CD&O, LLC, as a necessary party,

/s/ Clifford W. Cleveland 

CLIFFORD W. CLEVELAND 

OF COUNSEL:

CLEVELAND & COLLEY, P.C.

744 East Main Street

Prattville, AL 36067

(334) 365-1500 phone

(334) 365-1601 fax

Case 2:06-cv-00766-MHT-TFM Document 40 Filed 04/27/2007 Page 4 of 5
-5-

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing Defendants’ Memorandum Brief

in Opposition to Plaintiffs’ Motion for Summary Judgment with the Clerk of the Court for the United

States District Court, for the Middle District of Alabama, Northern Division, using the CM/ECF

system which will send notification of such filing to Lindsay B. Erwin, Esquire

(lindsayerwin@gmail.com) and James Edward Roberts, Esquire (attyjuris@aol.com) this the 27th

day of April, 2007.

/s/ Clifford W. Cleveland 

OF COUNSEL

Case 2:06-cv-00766-MHT-TFM Document 40 Filed 04/27/2007 Page 5 of 5
Case 2:06-cv-00766-MHT-TFM Document 40-2 Filed 04/27/2007 Page 1 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-2 Filed 04/27/2007 Page 2 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-2 Filed 04/27/2007 Page 3 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-3 Filed 04/27/2007 Page 1 of 4
Case 2:06-cv-00766-MHT-TFM Document 40-3 Filed 04/27/2007 Page 2 of 4
Case 2:06-cv-00766-MHT-TFM Document 40-3 Filed 04/27/2007 Page 3 of 4
Case 2:06-cv-00766-MHT-TFM Document 40-3 Filed 04/27/2007 Page 4 of 4
Case 2:06-cv-00766-MHT-TFM Document 40-4 Filed 04/27/2007 Page 1 of 2
Case 2:06-cv-00766-MHT-TFM Document 40-4 Filed 04/27/2007 Page 2 of 2
Case 2:06-cv-00766-MHT-TFM Document 40-5 Filed 04/27/2007 Page 1 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-5 Filed 04/27/2007 Page 2 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-5 Filed 04/27/2007 Page 3 of 3
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 1 of 6
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 2 of 6
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 3 of 6
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 4 of 6
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 5 of 6
Case 2:06-cv-00766-MHT-TFM Document 40-6 Filed 04/27/2007 Page 6 of 6