McKenzie v. Killian

• Decision Date: 05 March 2004
• Citation: 887 So.2d 861
• Parties: Rebecca McKENZIE v. George KILLIAN III.
• Court: Alabama Supreme Court

887 So.2d 861

Rebecca McKENZIE v. George KILLIAN III.

1021616.

Supreme Court of Alabama.

March 5, 2004.

W. Eugene Rutledge, Birmingham, for appellant.

Ralph D. Gaines III, Staci G. Cornelius, and Brian H. Tobin of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee.

LYONS, Justice.

Rebecca McKenzie appeals from the trial court's summary judgment against her in her action against George Killian III. We affirm.

On November 18, 2000, McKenzie stopped her vehicle on an interstate highway in Hoover while officials were clearing a previous accident. Killian, according to the accident report, entered the interstate from an entry ramp, was blinded by sunlight, and collided with the left rear of McKenzie's vehicle. Also according to the accident report, a third motorist, Samuel Barber II, followed Killian on to the interstate. After Killian's vehicle struck McKenzie's vehicle, Barber collided with the right rear of McKenzie's vehicle.

On November 18, 2002, McKenzie sued Barber and fictitiously named defendants, alleging that their negligent, willful, and/or wanton acts caused the accident. On January 6, 2003, McKenzie amended her complaint to substitute Killian for a fictitiously named defendant. Killian filed a motion for a summary judgment, arguing that McKenzie's negligence and wantonness claims were barred by the two-year statute of limitations set forth in § 6-2-38, Ala.Code 1975. Specifically, Killian argued that McKenzie was aware of his identity through correspondence from the insurance company and the accident report; therefore, he argued, McKenzie could not substitute him for a fictitiously named defendant after the lapse of the two-year statutory limitations period. McKenzie responded by arguing that her wantonness claims were grounded in an action for trespass and were therefore governed by the six-year statutory period of limitations set forth in § 6-2-34(1), Ala.Code 1975.

The trial court entered a summary judgment for Killian as to McKenzie's negligence and wantonness claims. In its summary-judgment order, the trial court concluded that McKenzie's failure to exercise due diligence in ascertaining the identity of the responsible party precluded her from relying upon Rule 9(h), Ala. R. Civ. P., for substituting him for the fictitiously named defendant; thus, the trial court concluded, the filing of the complaint with allegations against fictitiously named parties did not save McKenzie from Killian's statute-of-limitations defense. The trial court, in disposing of McKenzie's contention that a six-year, rather than a two-year, statute of limitations applied relied upon Lowery v. Densmore, 739 So.2d 1115 (Ala.Civ.App.1998), and stated, "[T]respass is an intentional or wanton direct application of force by defendant or under his or her authority." Then, the trial court concluded that "there is no evidence to establish a willful or wanton application of force." The trial court made the summary judgment final pursuant to Rule 54(b) and noted as follows in its certification order:

"It has been stated that the statutory period of limitations for negligence and wantonness actions is two years from the date the injury occurred. However, it has also been held that [in] an automobile accident where it is alleged that the defendant committed a trespass wrongfully and with great force, the plaintiff may recover if the facts prove an intentional or grossly negligent act, although there could be no recovery for simple negligence. Myers v. Baker, 24 Ala.App. 387, 136 [135] So. 643 (1931)."

McKenzie appealed.

Before this Court McKenzie does not challenge the trial court's adverse ruling on her negligence claim rejecting her effort to substitute Killian for a fictitiously named party, based on the statute of limitations. McKenzie maintains on appeal, just as she did in the trial court, that her wantonness claim against Killian constitutes an action in trespass. McKenzie argues that intent should be irrelevant in determining whether an act constitutes trespass. Instead, she says, Alabama courts should label an action trespass if an injury is caused by a direct force and the injury is immediate rather than consequential. McKenzie contends that personal injuries sustained in a vehicular collision are injuries immediately inflicted by a direct force. McKenzie refers us to a law review article by Linda Suzanne Webb, Limitation of Tort Actions under Alabama Law: Distinguishing between the Two-Year and the Six-Year Statutes of Limitations, 49 Ala. L.Rev. 1049 (Spring 1998) (hereinafter "the Webb article"), for a discussion of the issue.

Killian responds that McKenzie's analysis is flawed because labeling a tort as a trespass simply because the injury is caused by direct force would convert several unintentional torts into trespasses without the necessary element of intent. Furthermore, Killian argues that the summary judgment should be affirmed because, he argues, McKenzie has not presented any evidence that his action constituted wantonness. Killian offered the accident report in support of his motion for a summary judgment as evidence relevant only to his defense that McKenzie was not ignorant of his identity, thereby rendering unavailable substitution by fictitious-party practice under Rule 9(h). This Court has previously stated that we will affirm a judgment on any valid legal ground contained in the record regardless of whether that ground was considered by the trial court, Ex parte Ryals, 773 So.2d 1011 (Ala.2000); however, that rule has no application

"where a summary-judgment movant has not asserted before the trial court a failure of the non-movant's evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. V. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)."

Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013 (Ala.2003) (holding that this Court can affirm the judgment of the trial court for a reason that is supported by evidence in the record). See also First Fin. Ins. Co. v. Tillery, 626 So.2d 1252, 1254 (Ala.1993). Nevertheless, as previously noted, the trial court in its summary-judgment order held: "In this case there is no evidence to establish a willful or wanton application of force." While we do not have a transcript of proceedings before the trial court, we must conclude either that at the hearing on the motion Killian went beyond his contention relating solely to the unavailability of Rule 9(h) permitting his substitution for a defendant initially sued under a fictitious name or that the trial court, after the hearing and without oral argument on this issue from Killian, determined that there was no genuine issue as to a material fact on the question whether McKenzie could establish a willful or wanton application of force. While McKenzie does not challenge the summary judgment on this basis on appeal, she would be precluded from doing so, regardless of which of the two alternatives led to the trial court's finding of insufficiency of evidence. If Killian changed his grounds at the hearing, McKenzie could have challenged Killian's departure from the lone ground relied upon in his motion for a summary judgment by invoking her right to 10 days' notice pursuant to Rule 56(c). But we must assume from the silent record that she failed to do so, and she has therefore waived any objection. Holleman v. Elmwood Cemetery Corp., 295 Ala. 267, 273, 327 So.2d 716, 720 (1976). Compare Payton v. Monsanto Co., 801 So.2d 829, 834 (Ala.2001) ("Before the trial court, Payton [the nonmovant] timely raised the issue of Monsanto's failure to meet its initial burden of proof on its defense of the statute of limitations, claiming that it was inappropriate to shift the burden to him to defeat Monsanto's motion for summary judgment. Consequently, this argument is available to Payton on appeal."). On the other hand, if the trial court's order relying upon insufficiency of the evidence came without prior argument from Killian, McKenzie would have to lay a predicate for error by timely objection in the trial court in the form of a motion to alter, amend, or vacate made pursuant to Rule 59(e) because this issue does not involve a question of law that has been the subject of a previous objection and ruling. See Barnes v. Dale, 530 So.2d 770, 777 (Ala.1988) ("[W]e know of no requirement for a party to renew his objection by way of a post-judgment JNOV motion on a pure question of law that had been previously objected to and ruled upon adversely by the trial court." (emphasis added)). See also Woodham v. New York Times Broad. Serv., Inc., 526 So.2d 5, 5 (Ala.1988) ("`The rationale behind the Wade [v. Pridmore, 361 So.2d 511 (Ala.1978)] decision and the general rules regarding the necessity for post-trial motions is that, ordinarily, issues not raised before the trial court may not be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979),'" quoting Green v. Taylor, 437 So.2d 1259, 1260 (Ala.1983) (emphasis added)).

In its statement in its Rule 54(b) certification order, the trial court cited Myers v. Baker, 24 Ala.App. 387, 135 So. 643 (1931), for the proposition that an automobile accident occurring "wrongfully and with great force," 24 Ala.App. at 388, 135 So. at 643, would constitute trespass if the facts prove an intentional or grossly negligent act. In Myers, the Court of Appeals stated:

"That the act was wrongfully done admits of but little doubt. That defendant drove his car forcibly against plaintiff's admits of no doubt at all. The intent is to be presumed from the act itself."

24 Ala.App. at 388, 135 So. at 644 (emphasis added).

We interpret the trial court's reference to Myers as indicative of...