Hooks v. Pettaway

• Citation: 142 So.3d 1151
• Decision Date: 08 November 2013
• Docket Number: 2120224.
• Parties: Ethel L. HOOKS, individually and on behalf of her minor children v. Joseph D. PETTAWAY.
• Court: Alabama Court of Civil Appeals

142 So.3d 1151

Ethel L. HOOKS, individually and on behalf of her minor children

v.Joseph D. PETTAWAY.

2120224.

Court of Civil Appeals of Alabama.

Nov. 8, 2013.

Robert D. Bryant of Turner, Turner & Bryant, Marion, for appellant.

Walter G. (Stoney) Chavers of Fleming & Chavers, L.L.P., Mobile, for appellee.

DONALDSON, Judge.

Ethel L. Hooks (“Hooks”), individually and on behalf of her four minor children, Roger J. Hooks, Jr., Johnathan ¹ Hooks, Jordan Woodyard, and Janae Woodyard (collectively the “the Hookses”), appeals from a summary judgment entered in favor of Joseph D. Pettaway (“Pettaway”). We affirm the judgment as to those issues properly raised by Pettaway in his motion for a summary judgment and for which the burden shifted to Hooks to present substantial, admissible evidence in opposition. We reverse the judgment as to those issues not properly raised by Pettaway in his motion for a summary judgment and for which the burden never shifted to Hooks to present substantial, admissible evidence in opposition.

Procedural History

This case was previously addressed by this court in Hooks v. Pettaway, 102 So.3d 391 (Ala.Civ.App.2012), in which we summarized the facts as follows:

“On September 14, 2009, Hooks and Pettaway were involved in an automobile accident in Mobile County. On February 26, 2010, Hooks sued Pettaway, alleging claims of negligence and wantonness. Pettaway answered, denying the material allegations of the complaint and asserting various affirmative defenses. The trial court scheduled a jury trial for March 14, 2011, but, after two requests for a continuance, the trial was rescheduled for September 27, 2011. On September 21, 2011, six days before the scheduled trial date, Hooks took the deposition testimony of a physician who had provided treatment in this case. On September 26, 2011, one day before the scheduled trial date, Pettaway moved for a summary judgment, relying on the physician's deposition testimony taken by Hooks on September 21. In Pettaway's summary-judgment motion, he alleged that Hooks had failed to prove that Pettaway's actions had caused Hooks's alleged injuries. On September 27, 2011, the day the jury trial was scheduled to occur, the trial court entered a summary judgment in favor of Pettaway.

“On September 28, 2011, Hooks filed a postjudgment motion to alter, amend, or vacate the summary judgment. In her postjudgment motion, Hooks argued, among other things, that Pettaway's motion did not comply with the requirements of Rule 56, Ala. R. Civ. P., because, Hooks said, the motion was filed ‘too late.’ Hooks also argued in her postjudgment motion that she had objected to the trial court's ‘entertaining the [summary-judgment] motion in violation of ... Rule [56].’ The trial court denied the postjudgment motion on November 3, 2011. Hooks timely appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12–2–7(6), Ala.Code 1975.”

102 So.3d at 392. We reversed the summary judgment and remanded the case, holding that “allowing Hooks only one day's notice to prepare a response to the [summary-judgment] motion caused inevitable prejudice to Hooks.” Id. at 393. We noted that, “[a]lthough Hooks may not ultimately prevail in opposing the motion for a summary judgment, she is entitled to an opportunity to respond to the motion.” Id.

On remand, Pettaway filed a second motion for a summary judgment, which he described as a “renewed motion.” Pettaway did not address the issue of his liability to Hooks in the renewed motion. Instead, he argued that there was a lack of substantial evidence indicating that the accident proximately caused any damage to Johnathan's lung, one of the claims apparently made in the complaint.² In the renewed motion, he alleged:

“The impact [of the accident] was minor. There is no evidence of property [sic] and neither vehicle was towed. [The Hookses] refused medical treatment at the scene and in fact, never sought medical treatment the day of the accident. ( [Ethel] Hooks depo. p. 56, 62, 66). Three days after the accident, Johnathan was treated for a collapsed lung (pneu[m]othorax) that [Hooks] allege[s] was caused by the accident.

“The only medical evidence or claim for damages presented by [Hooks] concerns [Johnathan]'s collapsed lung. There has been no evidence or testimony to substantiate that ... Ethel, Roger, Jordan or Janae were injured.

“....

“The only injury alleged by [Hooks] is for [Johnathan]'s collapsed lung. No evidence or testimony substantiates injury to Ethel, Roger, Jordan or Janae. The only two doctors who treated [Johnathan] were unable to opine, within a reasonable degree of medical certainty, as to the cause of [Johnathan]'s injuries.”

In the renewed motion, Pettaway made a cursory argument regarding Hooks's claim for medical expenses:

“Expert testimony is required to establish causation and the reasonableness and necessity of medical and hospital records and charges. Accordingly, [Hooks] must prove medical expenses are both reasonable and necessary.”

(Citations omitted.)

Attached as exhibits to Pettaway's renewed motion for a summary judgment were excerpts from the deposition of Hooks, as well as from the depositions of Dr. Dwight Yoder and Dr. Kimberly Cole, physicians who had treated Johnathan at different times. In her deposition, Hooks described the circumstances of the accident and its aftermath, stating that Pettaway's car hit her car from the back as she drove forward after being stopped at an intersection; that Johnathan complained of headaches and vomited twice shortly after the accident; and that she telephoned Dr. Yoder regarding Johnathan's complaints the day of the accident and was told to monitor his condition. The excerpts from Hooks's deposition indicate that the other three children complained of injuries following the accident; that Janae still complains of leg pain; and that Hooks took all the children to physicians within a few days of the accident.

The deposition excerpts of Dr. Yoder indicated that he saw Johnathan on September 17, 2009, three days after the accident. Dr. Yoder did not find that Johnathan had a pneumothorax, also known as a collapsed lung, at that time of his examination, but he found Johnathan's symptoms to be consistent with asthma.

The excerpts from the deposition of Dr. Cole indicated that she saw Johnathan at an unspecified time, and that he apparently had a collapsed lung at the time of that examination. Dr. Cole testified that the collapsed lung could have been caused by influenza or the motor-vehicle accident, but she could not give an opinion as to which event actually caused the collapsed lung.

Hooks responded to the renewed motion with a 2 1/2–page brief, in which she specifically referred to the claims apparently asserted in the complaint:

“On September 14, 2009, while waiting at a red light on Government Street, Mobile, Alabama, Plaintiff Ethel Hooks' (‘Ms. Hooks') vehicle was rear-ended by an automobile being driven by Defendant Joseph D. Pettaway, (Plaintiff's complaint @ para. 1.) Ms. Hooks' four (4) minor children: Roger J. Hooks, Jr. (‘Roger’), Johnathan Hooks (‘Johnathan’), Jordan Woodyard (‘Jordan’), and Janae Woodyard (‘Janae’) were also in her car at the time of the collision. (Plaintiff's complaint @ para. 6–25).

“Within days, all of the [Hookses] sought medical attention; however, Johnathan suffered more serious physical injuries: post-traumatic head injuries and collapsed lung. (Deposition of Dr. Kimberly Cole, attached as Exhibit A, @ pages 29–33).

“Ms. Hooks claims general bodily injury, medical expenses, lost wages and income, pain and suffering, mental anguish, emotional distress, and damages to the vehicle she was driving. (Complaint @ para. 2 & 4). On behalf of her children, she alleged the following damages: general bodily injury, medical expenses, pain and suffering, mental anguish and emotional distress. (Complaint @ para. 6–25).”

Hooks claimed in her response that a summary judgment was not appropriate because there were genuine issues of material fact regarding Pettaway's alleged negligence in causing the accident. Her sole argument consisted of the following:

“[Pettaway] does not, and cannot, contend that he did not have a duty to stop at the red light, that he breached that duty, [or] that the breach of that duty to stop proximately caused the collision that Ms. Hooks and her children complain about. Instead, he argues that the damage of medical bills and the specific injury (collapsed lung) to Johnathan cannot be proven, and therefore, he is not liable for all the other injuries caused by this accident. Ms. Hooks and her children also claim damages ranging from lost wages and income to mental anguish. And [Pettaway] has not offered any evidence, much less substantial evidence,disproving that those damages were not caused by him. The initial burden of proof is on the moving party to show the inexistence of any genuine factual issues.”

(Citation omitted.)

Hooks attached deposition excerpts of Dr. Cole as well. Hooks's entire argument regarding the deposition testimony of Dr. Cole consisted of a single sentence: “Nevertheless, Dr. Cole's medical testimony provides evidence that Johnathan's collapsed lung and head trauma resulted from the collision. (See Ex. A, Dr. Cole's depo.)” In the deposition excerpts submitted by Hooks, Dr. Cole testified that she examined Johnathan and diagnosed him with “posttraumatic headache,” or “headache after a trauma.” The date of the examination is not made clear. At some point in time, not specifically indicated in the record, Dr. Cole diagnosed Johnathan with influenza “A” and also treated him for a collapsed lung. Dr. Cole identified the reported automobile accident, influenza, and asthma as risk factors that may have caused Johnathan's collapsed lung, but she could not say to a reasonable degree of medical certainty which factor was the cause.

Regarding Pettaway's...