McGough v. G & a, Inc.

• Decision Date: 17 August 2007
• Docket Number: 2060145.
• Citation: 999 So.2d 898
• Court: Alabama Court of Civil Appeals
• Parties: Benjamin and Betty McGOUGH v. G & A, INC., d/b/a The Cajun Grille, Peter A. Audie, Dirk Swafford, and Adrienne Kloskin Sheffield.

999 So.2d 898

Benjamin and Betty McGOUGH v. G & A, INC., d/b/a The Cajun Grille, Peter A. Audie, Dirk Swafford, and Adrienne Kloskin Sheffield.

2060145.

Court of Civil Appeals of Alabama.

August 17, 2007.

Certiorari Denied August 8, 2008 Alabama Supreme Court 1061693.

Joseph R. Campbell II and William K. Abell of Shinbaum, Abell, McLeod & Vann, P.C., Montgomery, for appellants.

Stephen L. Poer and Cinda R. York of Campbell, Waller & Poer, LLC, Birmingham, for appellees.

MOORE, Judge.

Benjamin McGough and Betty McGough brought this action under the Dram Shop Act, § 6-5-71, Ala.Code 1975, seeking to recover from, among others, G & A, Inc., doing business as The Cajun Grille; Peter A. Audie, the president of G & A, Inc., d/b/a The Cajun Grille; Dirk Swafford, an employee of the Cajun Grille; and Adrienne Kloskin Sheffield, an employee of the Cajun Grille (collectively referred to hereinafter as "the appellees") damages resulting from the death of their adopted son, Jeremy Michael McGough ("Jeremy"). The McGoughs appeal from a summary judgment entered in favor of the appellees on October 11, 2006. We reverse and remand.

I.

Initially, we note that at the time the trial court entered the summary judgment, two motions remained pending before the trial court: a motion to award attorney fees filed by the appellees pursuant to the Alabama Litigation Accountability Act ("the ALAA"), Ala.Code 1975, § 12-19-270 et seq., and a motion filed by the McGoughs to hold the appellees in contempt for failing to attend mediation.

In Stone v. Haley, 812 So.2d 1245, 1245-46 (Ala.Civ.App.2001), this court stated:

"Although neither party has raised the issue whether this court has jurisdiction over this appeal, `jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.' Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App. 1997) (quoting Nunn v. Baker, 518 So.2d 711 (Ala.1987)). Ordinarily, only a final judgment will support an appeal. § 12-22-2, Ala.Code 1975. An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final. Ex parte Harris, 506 So.2d 1003 (Ala.Civ.App.1987)."

However, one exception to this rule provides that the pendency of a contempt motion does not render a judgment nonfinal. See, e.g., Wilcoxen v. Wilcoxen, 907 So.2d 447, 449 n. 1 (Ala.Civ.App.2005). Our caselaw has also clarified that the failure of a trial court to specifically reserve jurisdiction over an ALAA claim in a summary-judgment order impliedly disposes of the claim and renders the summary judgment final. See Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala.2002). Accordingly, we hold that the summary judgment is a final judgment that will support an appeal.

II.

We next address another issue not raised by the parties—the effectiveness of the notice of appeal that names "Cajun Grille, L.L.C., et al." as the appellees. The McGoughs voluntarily dismissed Cajun Grille, L.L.C., as a defendant by filing a motion on May 5, 2006, which was granted by the trial court on May 11, 2006.¹ The summary judgment from which the McGoughs appeal was entered in favor of the remaining appellees, none of whom are specifically named in the notice of appeal. However, the notice of appeal specifies that the McGoughs are appealing the summary judgment entered on October 12, 2006.² Moreover, the McGoughs served the notice of appeal on "Stephen L. Poer, Esq.," counsel for all the named defendants.

While dicta in several cases suggests that a "`notice of appeal from a judgment in favor of two or more parties must specifically name each party whose judgment the appellant wishes to overturn,'" see Veteto v. Swanson Servs. Corp., 886 So.2d 756, 763 (Ala.2003), and Sperau v. Ford Motor Co., 674 So.2d 24, 40 (Ala. 1995), at least two supreme court cases have clarified that no specific designation of every appellee is necessary when the appellant specifies the judgment from which he or she is appealing. See Edmondson v. Blakey, 341 So.2d 481 (Ala.1976); and Threadgill v. Birmingham Bd. of Educ., 407 So.2d 129 (Ala.1981). In Ayers v. Duo-Fast Corp., 779 So.2d 210 (Ala.2000), the supreme court further held that the failure to designate as an appellee a defendant in whose favor judgment had been entered would be excused when the notice specified the judgment appealed from and appellant's counsel properly served the notice of appeal on counsel for the unnamed appellee.

Following the logic in Edmondson, Threadgill, and Ayers, we conclude that the McGoughs' failure to designate G & A, Inc., d/b/a The Cajun Grille, Peter A. Audie, Dirk Swafford, and Adrienne Kloskin Sheffield as the appellees did not amount to a significant defect that would render the appeal a nullity. See Ayers, 779 So.2d at 214. The McGoughs specified the judgment from which they were appealing and properly served counsel representing all the named defendants. Counsel has filed a brief on behalf of all the appellees. Thus, the technical error has not prejudiced them in any substantive manner. Accordingly, we will consider the merits of the appeal, and we have recast the style of the appeal to reflect the true appellees.

III.

"Our standard of review in a summary judgment case is well settled. The summary judgment was proper if there was no genuine issue of material fact and [the movants] were entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. [The movants] had the burden to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. Long v. Jefferson Cty., 623 So.2d 1130, 1132 (Ala. 1993). If [the movants] made that showing, then the burden shifted to [the nonmovant] to present evidence creating a genuine issue of material fact so as to avoid the entry of a judgment against [the nonmovant]. Id. In deciding whether there was a genuine issue of material fact, we view the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Id. The applicable standard of review is the `substantial evidence' rule. § 12-21-12, Ala.Code 1975. `Substantial evidence' is defined as `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.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)."

Duckett v. Wilson Hotel Mgmt. Co., 669 So.2d 977, 978 (Ala.Civ.App.1995).

IV.

Before proceeding to a complete recitation of the facts, we must address the admissibility of certain evidence submitted by the McGoughs to the trial court and determine whether that evidence amounted to substantial evidence. See Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046 (Ala.2007) (holding that on de novo review an appellate court cannot consider inadmissible evidence that should have been stricken by the trial court before ruling on a motion for a summary judgment). Pursuant to Rule 56(e), Ala. R. Civ. P., evidence submitted by a nonmovant in opposition to a motion for a summary judgment must be in a form admissible in evidence—i.e., affidavits must be based on personal knowledge and must contain information that allows more than speculative inferences, and documents must be admissible in evidence as either sworn or certified copies. Chatham v. CSX Transp., Inc., 613 So.2d 341 (Ala. 1993). The court may not consider deposition or affidavit testimony that directly contradicts earlier deposition or affidavit testimony without adequate explanation. See Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992) (holding that contradictory deposition testimony would be considered when deponent adequately explained conflict).

Under Ala.Code 1975, § 12-21-12(d), once the movant makes a prima facie showing that there is no genuine issue of material fact, the nonmovant must rebut that showing by presenting "`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.'" Quimby v. Memorial Parks, Inc., 667 So.2d 1353, 1355 (Ala.1995) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Evidence that consists of mere speculation is not considered substantial evidence that will defeat a motion for summary judgment. Gilmore v. Shell Oil Co., 613 So.2d 1272 (Ala.1993).

The McGoughs argue that four pieces of evidence create a genuine issue of material fact as to the liability of the appellees under the Dram Shop Act—(1) an excerpt from Betty McGough's deposition in which she claims Sheffield admitted serving alcohol to Jeremy on the date of the accident; (2) the affidavit of May Darden, a former employee of the Cajun Grille, which is set out in detail below; (3) Sheffield's unsworn statement; and (4) two affidavits signed by Markey Golden, a former employee of the Cajun Grille, which are set out in detail below.³ The appellees moved to strike that evidence. The trial court did not rule on that motion before entering the summary judgment. Because our review is de novo, we must determine the merits of that motion before considering the merits of the motion for summary judgment. See Tanksley, supra.

Betty McGough's Deposition

The McGoughs rely on the following excerpt that appears on page 73 of Betty McGough's deposition:

"Q: ... Adrienne never said that she served him on that day, either, did she?

"A: She told me Saturday morning when she brought the coconut cake, she said, I've been wanting to bring it to you, but I haven't had a chance to. And she said, I am sorry that I served Jeremy a drink that day. And I know she was meaning the 16th because she was working that day."

That testimony followed clear and unequivocal testimony to the contrary on pages 23 and 24 of her deposition:

"Q: Adrienne...