Ex parte Head

• Decision Date: 28 September 1990
• Citation: 572 So.2d 1276
• Court: Alabama Supreme Court
• Parties: Ex parte Nelson H. HEAD, Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard. (Re Nelson H. HEAD, et al. v. THISTLE CONSTRUCTION COMPANY, INC.) 89-689.

Page 1276

572 So.2d 1276

Ex parte Nelson H. HEAD, Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard (Re Nelson H. HEAD, et al. v. THISTLE CONSTRUCTION COMPANY, INC.)

89-689.

Supreme Court of Alabama.

Sept. 28, 1990.

William H. Mills and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for petitioners.

Rodney E. Nolen of Sirote & Permutt, Birmingham, for respondent.

JONES, Justice.

We granted the defendant's petition for a writ of certiorari in order to address their contention that the Court of Civil Appeals' decision affirming the plaintiff's summary judgment conflicts with prior decisions of this Court. After a careful study of the record and of the arguments of the parties, we hold that the Court of Civil Appeals erred in affirming the judgment of the trial court; therefore, we reverse and remand.

Thistle Construction Company, Inc. ("Thistle"), sued Costa & Head (Atrium), Ltd., Costa & Head (Birmingham One), Ltd., Costa & Head Land Company, Pedro C. Costa, and Nelson H. Head for $5,574.70 owed on a contract and on an open account. By subsequent amendment, Thistle added as parties defendant Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard, Jr. Thistle moved for summary judgment against individual defendants Nelson Head, Beverly Head, Forman, and Howard, and based the motion on the complaint and on the affidavit of its board chairman, E.K. Strauss. ¹

Strauss's original affidavit referenced an "Exhibit 'A' "--a contract between the parties; however, the contract was not attached to the affidavit. Thistle later filed Strauss's amended affidavit, signed by Thistle's lawyer, which stated that the contract had been "inadvertently omitted" from the original affidavit. A copy of the contract was attached to the amended affidavit.

The defendants moved to strike portions of the two affidavits, alleging (1) that the contract, referred to as the basis for the complaint, was not attached to the original affidavit as required by A.R.Civ.P. Rule 56(e); (2) that a paragraph in the original affidavit regarding the relationships among the defendants was not made upon the personal knowledge of the affiant, but was made upon her "best information and belief," did not set forth facts that would be admissible in evidence, and did not affirmatively show that the affiant was competent to testify to the matters contained in that paragraph, contrary to the requirements of Rule 56(e); and (3) that the contract supplied by the later "amended affidavit" was not sworn to or certified as required by Rule 56(e).

In response to the defendants' motion to strike, Thistle filed another supplemental affidavit, which contained, as attachments in support of Strauss's assertions regarding the relationships among the defendants, copies of two previous appellate court decisions involving some of these parties. The defendants again moved to strike, again asserting a failure to comply with the requirements of Rule 56(e).

Thistle filed another supplemental affidavit, signed by Strauss and accompanied by another copy of the contract. At the same time, Thistle filed a second affidavit of Strauss, in which she indicated how she had knowledge of the specific facts she had testified to in her previous affidavit and amendments:

"I have examined the records of the Probate Court of Jefferson County, Alabama, for the purpose of determining the legal relationship of the parties in [this] case as the relationship is disclosed in those records."

The opinion of the Court of Civil Appeals, in describing the next phase of the proceedings below, reads:

"On March 24, 1989, the trial court granted summary judgment in favor of Thistle, specifically noting that, after hearing arguments on the motion, the court allowed additional affidavit proof. [The defendants] filed a post-trial motion to vacate or set aside the summary judgment. Thistle responded by filing another affidavit from its chairman of the board. After hearing arguments and reviewing supporting affidavits, the trial court denied [the defendants'] motion [to strike]. This appeal followed."

The Court of Civil Appeals affirmed the summary judgment in favor of Thistle, and we granted the defendants' petition for the writ of certiorari in order to address the alleged impropriety of summary judgment for Thistle based on the affidavits submitted in support of Thistle's motion for summary judgment.

The portion of the Court of Civil Appeals' opinion with which we are here concerned reads:

"Although the contract was not attached to the original affidavit as referenced, the trial court, in its discretion, allowed an amended affidavit supplying the contract. The [defendants] argue that the contract should not have been allowed because it was not a 'sworn or certified paper' under Rule 56(e). The contract was clearly identified and incorporated in the sworn affidavit by one who had personal knowledge of its contents and authenticity. Clearly, Rule 56(e) was satisfied in that the affidavit set forth facts as would be admissible in evidence and showed that Strauss was competent to testify to those facts. Real Coal, Inc. v. Thompson Tractor Co., 379 So.2d 1249 (Ala.1980).

"It is the purpose of a motion for summary judgment to test the sufficiency of the evidence to determine if any real issue exists. Garrigan v. Hinton Beef & Provision Co., 425 So.2d 1091 (Ala.1983).

" 'Once the movant [for summary judgment] supports his motion by affidavit or other testimony, the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show a material issue of fact does exist. In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence uncontroverted. [Citations omitted.]'

"Adams v. Bay Minette Production Credit Association, 450 So.2d 149, 151 (Ala.Civ.App.1984). (Citations omitted.)

"Our review of the record reveals that the [defendants'] only responses to the entire case were motions to strike Thistle's affidavits. The [defendants] failed to offer, at any time, any evidence showing that there was a genuine issue for trial. The [defendants] also did not offer any evidence denying the allegations in the complaint and the facts as stated in the affidavits. The record is totally void of any evidence submitted by [the defendants] denying the facts in the complaint and affidavits for the liability or the amount of damages claimed. In view of the sworn affidavits and in the absence of any contradictory evidence, summary judgment was proper. Adams, supra; Garrigan, supra; and Real Coal, supra."

Head v. Thistle Construction Co., 572 So.2d 1273 (Ala.Civ.App.1989).

The significance of the defendants ' argument is best understood by first noting Thistle's argument in support of the judgments of the trial court and the Court of Civil Appeals: The defendants did not, at any time, offer any affirmative statement of fact to negate the assertions made by Thistle in its motion for summary judgment and to show the existence of a triable issue of fact; therefore, Thistle says, its summary judgment was proper. Thus, if we hold that the totality of the affidavits and attachments submitted by Thistle in support of its motion for summary judgment effected a compliance with Rule 56(e), and if the substance of such compliance entitles the movant to a judgment as a matter of law, then, concomitantly, we must also hold that Thistle's assertions put upon the defendants the burden of proving the existence of a material issue of fact and that Thistle's assertions, uncontradicted by the defendants, must be taken as true. See Garrigan v. Hinton Beef & Provision Co., 425 So.2d 1091 (Ala.1983).

If, however, the defendants are correct in their argument that the documents offered by Thistle in support of its motion for summary judgment did not comply with the requirements of Rule 56(e), or, in the alternative, if they did comply but such compliance did not entitle Thistle to a judgment as a matter of law, then we must hold that the trial court erred in entering the summary judgment based on these documents.

Rule 56(e) provides:

"(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The disposition of the issues presented by this petition is best accomplished by analyzing the pertinent requirements for a valid affidavit in support of or in opposition to a motion for summary judgment in the context of the facts presented by this case.

I. "... made on personal knowledge ..."

Rule 56(e) "plainly requires (the word 'shall' being mandatory) that an affidavit state matters personally known to the affiant." Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949). See, also, Wright, Miller, and Kane, Federal Practice & Procedure: Civil 2d § 2738, p. 467 (1983).

The defendants argue that because, in her first affidavit, Strauss prefaced her statements regarding the relationships among the defendants with the words "It is my best information and belief," this evidence was not based upon personal...