Smith v. Sec'y of Veterans Affairs (In re Sec'y of Veterans Affairs)

• Decision Date: 10 February 2012
• Docket Number: 1101171.
• Citation: 92 So.3d 771
• Parties: Ex parte SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America (In re Frank S. Smith, Jr. v. Secretary of Veterans Affairs, an officer of the United States of America).
• Court: Alabama Supreme Court

92 So.3d 771

Ex parte SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America(In re Frank S. Smith, Jr.

v.

Secretary of Veterans Affairs, an officer of the United States of America).

1101171.

Supreme Court of Alabama.

Feb. 10, 2012.

John T. Bender, Mobile, for petitioner.

Matthew Kinder, Fultondale, for respondent.

BOLIN, Justice.

On April 23, 2009, the Secretary of Veterans Affairs (“the Secretary”), an officer of the United States of America, sued Frank S. Smith, Jr. (“Frank”), in the Jefferson Circuit Court, stating a claim of ejectment and seeking possession of Frank's house in Bessemer.¹ On August 3, 2010, the trial court entered an order, granting the Secretary's motion for a summary judgment. Frank appealed the summary judgment to the Court of Civil Appeals, which reversed the summary judgment and remanded the action for further proceedings. See Smith v. Secretary of Veterans Affairs, 92 So.3d 766 (Ala.Civ.App.2011). We granted the Secretary's petition for certiorari review. We reverse and remand.

I. Factual Background and Procedural History

The facts and procedural history of this case are set forth in detail in the Court of Civil Appeals' opinion:

“Frank purchased a house located on 9th Court South in Bessemer (‘the house’) in 1998. In connection with the purchase, Frank, joined ‘pro forma’ by his wife, Juliet L. Smith (‘Juliet’), mortgaged the house to Franklin American Mortgage Company (‘Franklin’) to secure the payment of a promissory note evidencing a debt in the principal amount of $60,690.

“On April 23, 2009, the Secretary sued Frank and Juliet, stating a claim of ejectment and seeking possession of the house. As the factual basis of his claim, the Secretary alleged that the mortgage had been assigned to him; that he had sold the house at a foreclosure sale on February 22, 2007; that he had purchased the house at the foreclosure sale; that the auctioneer who had sold the house at the foreclosure sale had executed an auctioneer's deed conveying the house to the Secretary; that the Secretary had demanded in writing that Frank and Juliet vacate the house; and that Frank and Juliet had failed to vacate the house.

“Juliet had vacated the house before the Secretary filed his ejectment action, and she was never served with process. Frank, however, still lived in the house, and he was served. Answering, Frank denied the allegations of the complaint and asserted various affirmative defenses, which included ‘[d]efective notice,’ ‘[d]efective sale,’ and ‘[w]rongful foreclosure.’

“The Secretary moved for a summary judgment, asserting that, as a matter of law, he was entitled to possession of the house because, he said, he owned legal title to the house by virtue of the auctioneer's deed. In support of his motion, the Secretary submitted an affidavit signed by Scott Hiatt, which stated:

“ ‘My name is Scott Hiatt, and I am Assistant Vice President and Attorney in Fact for Bank of America, N.A. In my employment capacity, I am personally familiar with the account of Frank S. Smith, Jr. and Juliet L. Smith....

“ ‘On February 22, 2007, Plaintiff, Bank of America, N.A., sold at foreclosure the following real property located in Jefferson County, Alabama:

“ ‘[legal description of the house];

“ ‘Pursuant to power of sale contained in a promissory note and mortgage executed by Frank S. Smith, Jr. and Juliet L. Smith dated December 29, 1998, to and in favor of Franklin American Mortgage Company by instrument recorded in ... the records in the Office of the Judge of Probate, Jefferson County, Alabama, which mortgage was subsequently assigned to The Secretary of Veterans Affairs, an Officer of the United States of America by instrument recorded ... and re-recorded in ... the said Probate Court Records.

“ ‘Frank S. Smith, Jr. and Juliet Smith defaulted in the payments of said indebtedness and the Secretary of Veterans Affairs commenced foreclosure with written notices to Frank S. Smith, Jr. and Juliet Smith and due newspaper publication in The Alabama Messenger.

“ ‘Said real property was sold at foreclosure February 22, 2007, for a successful bid of $66,097.50, paid by The Secretary of Veterans Affairs, Purchaser. Frank S. Smith, Jr. and Juliet Smith were notified of said foreclosure sale by letter dated February 28, 2007, sent by certified mail of the foreclosure proceeding and [Frank S. Smith and Juliet Smith] were given ten (10) days to vacate said property.’

“(Emphasis added.) Along with Hiatt's affidavit, the Secretary submitted an uncertified copy of the mortgage; uncertified copies of the subsequent assignments of the mortgagee's rights under the mortgage, which included an assignment to the Secretary; an uncertified copy of the auctioneer's deed; an unauthenticated copy of an affidavit by the publisher of the Alabama Messenger; and an unauthenticated copy of a letter dated February 28, 2007, from an attorney representing the Secretary and addressed to Frank and Juliet at the house, which informed them that the Secretary had purchased the house at the foreclosure sale on February 22, 2007, and demanded that they vacate the house within 10 days.

“Frank opposed the summary-judgment motion by filing a pleading titled ‘Defendant's Response to Plaintiff's Motion for Summary Judgment.’ In his response, Frank argued, among other things, that the Secretary had failed to establish that he was entitled to possession of the house because, Frank said, the Hiatt affidavit did not comply with Rule 56(e), Ala. R. Civ. P., because, Frank said, (1) it did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America, N.A. (‘Bank of America’), had acquired personal knowledge of the information recited in his affidavit, (2) it did not affirmatively show that Hiatt was competent to testify to that information, and (3) it was not accompanied by sworn or certified copies of the documents to which it referred.

“Following a hearing, the trial court entered a summary judgment in favor of the Secretary on August 3, 2010, without stating its rationale. On August 31, 2010, Frank filed a Rule 59, Ala. R. Civ. P., postjudgment motion, which the trial court denied on October 13, 2010.”

92 So.3d at 766–68 (footnote omitted).

II. Appeal Before the Court of Civil Appeals

Frank argued before the Court of Civil Appeals that Scott Hiatt's affidavit did not comply with Rule 56(e), Ala. R. Civ. P., because, he said:

“(1) [The affidavit] did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America had acquired personal knowledge of the information recited in his affidavit; (2) [the affidavit] did not affirmatively show that Hiatt was competent to testify to that information; and (3) [the affidavit] was not accompanied by sworn or certified copies of the documents referred to in the affidavit.”

92 So.3d at 768. The Secretary, on the other hand, argued that Frank had waived his objection to Hiatt's affidavit and to the unsworn, uncertified, and unauthenticated documents that supported the affidavit because, he said, Frank did not move the trial court to strike them.² The Court of Civil Appeals concluded that Frank was not required to move the trial court to strike the Hiatt affidavit and the supporting documents because Frank had objected to the inadmissibility of the affidavit and the supporting documents in his pleading titled “Defendant's Response to Plaintiff's Motion for Summary Judgment.” The Court of Civil Appeals reversed the judgment of the trial court, relying upon Ex parte Elba General Hospital & Nursing Home, Inc., 828 So.2d 308 (Ala.2001) (noting that an objection to a trial court's consideration of unauthenticated materials submitted in support of a summary-judgment motion need not be in any particular form). The Court of Civil Appeals stated:

“In the case now before us, although Frank did not move to strike Hiatt's affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied it, Frank's response to the summary-judgment motion called the trial court's attention to the inadmissibility of the affidavit and those documents by objecting to them and stating the grounds of the objection. Therefore, we find no merit in the Secretary's argument that Frank waived his objection to the Hiatt affidavit and the documents that accompanied it because he failed to move to strike them. See Ex parte Elba Gen. Hosp. & Nursing Home, Inc.”

92 So.3d at 769 (emphasis added).

III. Standard of Review

“The standard of review applicable to a summary judgment is well established:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989); § 12–21–12(d), Ala.Code 1975. Evidence is “substantial” if it is 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 Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

“ ‘In our review of a summary judgment, [either on a direct appeal or on a certiorari review,] we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’

“Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).”

Ex parte Elba Gen. Hosp. & Nursing Home,...