Kyser v. Harrison

• Decision Date: 07 January 2005
• Citation: 908 So.2d 914
• Parties: Tara KYSER and Chris Kyser, as parents of Steven Alvie Kyser, a deceased minor v. Diane HARRISON d/b/a Diane's Daycare.
• Court: Alabama Supreme Court

908 So.2d 914

Tara KYSER and Chris Kyser, as parents of Steven Alvie Kyser, a deceased minor v. Diane HARRISON d/b/a Diane's Daycare.

1031203.

Supreme Court of Alabama.

January 7, 2005.

As Modified on Denial of Rehearing March 11, 2005.

Albert H. Adams, Jr., and Russell Lee Irby, Eufaula, for appellants.

L. Merrill Shirley, Elba, for appellee.

LYONS, Justice.

Tara Kyser and Chris Kyser, the parents of Steven Alvie Kyser, sued Diane Harrison in the Coffee Circuit Court on June 20, 2002, alleging that she wrongfully caused the death of Steven, their infant son. The trial court entered a summary judgment in favor of Harrison; the Kysers appealed.

I. Facts

On the morning of May 10, 2002, Tara Kyser left Steven at Harrison's place of business, Diane's Daycare. Later that morning at approximately 10:30 a.m., Harrison placed Steven facedown in a crib, where he soon fell asleep. When checking on Steven at around 12:10 p.m. on that same day, Harrison's 14-year-old daughter discovered that he was no longer breathing. Harrison telephoned the police chief, who performed CPR on Steven, to no avail. Steven was then taken to a hospital where he was pronounced dead at 12:50 p.m. An autopsy performed by the Alabama Department of Forensic Sciences reported the cause of death to be sudden infant death syndrome, or SIDS, which, according to Harrison's expert, is considered by the medical community to be an unexplained natural cause of death.

The Kysers sued Harrison in the Coffee Circuit Court, alleging wanton and willful negligence in placing Steven facedown in a crib containing soft materials, which, according to the Kysers, caused Steven's death. Additionally, the Kysers alleged negligent hiring, training, and supervision of Harrison's employees; according to the Kysers, Harrison's 14-year-old daughter was caring for Steven when he died.

Harrison filed a motion for a summary judgment on December 5, 2003. On February 19, 2004, the Kysers filed a brief in opposition to Harrison's motion, along with the affidavit of their expert, Dr. E. Hunt Scheuerman. In his affidavit, Dr. Scheuerman expressed the opinion that Steven's death was caused by "being placed in a prone sleeping position in a lethal sleep environment and the cause of death was positional asphyxia or in other words, suffocation." The trial court held a hearing on Harrison's summary-judgment motion on March 2, 2004. The day before the hearing, Harrison filed a response to the Kysers' brief in opposition, as well as a motion to exclude Dr. Scheuerman's testimony.

The Kysers contend that they were unaware, until the morning of the summary-judgment hearing, of both Harrison's response to their brief in opposition and of Harrison's motion to exclude Dr. Scheuerman's testimony. The Kysers allege that Harrison faxed a copy of those documents to the office of the Kysers' attorneys after business hours on the night before the hearing on the summary-judgment motion, and that the faxed documents were not discovered until the next day.

Fifteen days after the hearing on the summary-judgment motion, the Kysers filed responses to Harrison's reply to the Kysers' brief in opposition to the motion for summary judgment and to Harrison's motion to exclude testimony. In a written order, the trial court granted Harrison's motion to exclude Dr. Scheuerman's testimony, along with her motion for a summary judgment, stating:

"[H]aving conducted [a] hearing [on Harrison's motions] and considered the various pleadings addressed to the issues, the supporting and opposing documentation, and the argument of counsel presented at the March 2, 2004, hearing, but excluding from consideration all post-hearing submissions as untimely filed, [Harrison's motion to exclude and her motion for a summary judgment are granted]."

(Emphasis added.)

On appeal, the Kysers argue that the trial court exceeded its discretion in refusing to consider their written response to Harrison's motion to exclude Dr. Scheuerman's testimony. They also argue that it was error for the trial court to grant Harrison's motion to exclude. Finally, the Kysers contend that even if the trial court properly granted Harrison's motion to exclude, conflicts in the evidence still exist that create a genuine issue of material fact and make a summary judgment improper.

II. Analysis

A. Failure to Consider the Kysers' Response

The Kysers argue that the trial court erred in refusing to consider their written response to Harrison's motion to exclude. In their initial appellate brief, the Kysers cite no legal authority in support of that argument. In Spradlin v. Birmingham Airport Authority, 613 So.2d 347, 348 (Ala.1993), this Court stated:

"`Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant. Rule 28(a)[(10)], Ala. R.App. P.; Henderson v. Alabama A & M Univ., 483 So.2d 392 (Ala. 1986).' Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala. 1990)."

In their reply brief, the Kysers cite Rule 6(d), Ala. R. Civ. P., which provides:

"A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time."

We note "the well-established principle of appellate review that we will not consider an issue not raised in an appellant's initial brief, but raised only in its reply brief." Brown v. St. Vincent's Hosp., 899 So.2d 227, 234 (Ala.2004). Whether Rule 6(d) was violated in this case is an issue the Kysers raise for the first time in their reply brief, to which Harrison has not had the opportunity to respond.

Even if we were to ignore the fact that the only legal authority cited by the Kysers in support of their argument first appears in their reply brief, the record reveals that the Kysers never presented this argument to the trial court. During the summary-judgment hearing, the following exchange took place with respect to Harrison's motion to exclude:

"MR. ADAMS [the Kysers' attorney]: Your Honor, if I might, but I would like to go on record and say that [the motion to exclude] . . . was faxed to our office yesterday afternoon after we left. We have not received a copy of that until this morning. And I just would like for the Court to be aware of that.

"THE COURT: And let me say this: I don't intend to make a bench ruling on that motion. I'm not going to preclude you from making argument on your response in opposition. Okay?"

The Kysers' attorneys did not ask the trial court for a continuance or for leave to submit additional argument or materials after the hearing, nor did they refer the court to the provision of Rule 6(d), Ala. R. Civ. P., requiring a written motion and notice of the hearing on the motion to be served at least five days before the hearing. "We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him . . . ." Defore v. Bourjois, Inc., 268 Ala. 228, 230, 105 So.2d 846, 848 (1958). Therefore, we do not reach the question whether the trial court erred in refusing to consider the Kysers' written response to Harrison's motion to exclude.

B. Harrison's Motion to Exclude

1. Standard of Review

The Kysers next argue that the trial court erred in granting Harrison's motion to exclude the testimony of Dr. Scheuerman. The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is "largely discretionary with the trial court, and that court's judgment will not be disturbed absent an abuse of discretion." Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002). We now refer to that standard as a trial court's "exceeding its discretion." See, e.g., Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 106 (Ala.2004) ("Our review of the record supports the conclusion that the trial court did not exceed its discretion in finding that Jones was properly qualified as an expert under Rule 702[, Ala. R. Evid.,] and in considering his testimony."). However, the standard itself has not changed.

2. Admissibility of Dr. Scheuerman's affidavit

The gist of Harrison's argument to the trial court in her motion to exclude was that, first, Dr. Scheuerman was not competent to testify as to the cause of death of an infant (from SIDS or some other cause), and second, even if he was, his conclusion, as set forth in his affidavit, was based on nothing more than speculation and conjecture. In ruling on Harrison's motion to exclude, the trial court stated:

"1. That for the assigned reasons set forth in both [Harrison's motion to exclude] and her response to [the Kysers'] brief in opposition [to Harrison's motion for summary judgment], [the Kysers'] expert, E. Hunt Scheuerman, M.D., is not shown to be properly qualified and/or competent to render a rebutting expert opinion as to medical causation in this case, particularly considering that he does not possess the degree of specialty of [Harrison's] expert, J. Bruce Beckwith, M.D., a pediatric pathologist of international repute, and in view of findings of the State's Chief Medical Examiner, Dr. J.C. Upshaw Downs, as stated in his autopsy report, together with the strong presumption which attends the certificate of death under [§ 12-21-101, Ala.Code 1975].

"2. That there is no genuine issue as to any material fact and [Harrison] is

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