White v. Howie

Decision Date13 October 1995
Citation677 So.2d 752
PartiesThomas E. WHITE v. Jerry R. HOWIE. 2940750.
CourtAlabama Court of Civil Appeals

Robert F. Lewis, Birmingham, and Daniel B. Feldman of Roden, Hayes & Carter, Birmingham, for Appellant.

R.W. Woodrow of Doster & Woodrow, Anniston, for Appellee.

THIGPEN, Judge.

This case involves an entry of a summary judgment in a negligence action.

The record indicates that in January 1994, Thomas E. White filed a complaint against Jerry R. Howie and others, seeking damages for injuries he claimed had resulted from an automobile collision in January 1992. White alleged that Howie negligently or wantonly operated his motor vehicle, thereby causing the accident. Howie answered by denying the material allegations of the complaint and asserting numerous affirmative defenses. Howie's motion to compel White to respond to discovery requests was granted, and in August 1994, Howie filed a motion for a summary judgment. Thereafter, Howie filed an affidavit detailing his version of the events surrounding the accident, to support his summary judgment motion. In October 1994, the trial court set a hearing on the motion for November 14, 1994, and following that hearing, the trial court issued an order stating, in pertinent part:

"Upon consideration of the defendant's motion, the sworn affidavit of the defendant in support of his motion, the defendant's answers to Interrogatories, the pleadings in the case, and the Court's order compelling discovery to which plaintiff has not responded, it is hereby Ordered that summary judgment be and is hereby entered in favor of the defendant, Jerry R. Howie, and against the plaintiff, Thomas E. White. Costs are hereby taxed as paid."

On December 6, 1994, a different attorney entered an appearance for White and filed a post-judgment motion requesting that the summary judgment be set aside. White's supporting brief included statements from two witnesses. White's post-judgment motion was denied by operation of law, and he appealed to the Supreme Court, which transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7.

White raises two issues: (1) whether the trial court erred by entering a summary judgment in favor of Howie, and (2) whether the trial court erred by refusing to reconsider and set aside the summary judgment.

A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The moving party bears the burden of negating the existence of a genuine issue of material fact and showing that it is entitled to a judgment as a matter of law. Economy Fire & Casualty Co. v. Goar, 551 So.2d 957 (Ala.1989).

"In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present 'substantial evidence' creating a genuine issue of material fact--'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.' "

Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Additionally, we note that while a summary judgment is rarely appropriate in negligence actions, it may be proper under certain circumstances. Gordon v. Mobile Greyhound Park, 592 So.2d 208 (Ala.1991).

White, the nonmovant, contends that the summary judgment was improper because, he says, Howie failed to meet his initial burden of proving the absence of a genuine issue of material fact. We note, however, that "[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Rule 56(b), A.R.Civ.P. Howie's motion for a summary judgment was followed by a supporting affidavit, which was a...

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  • Cook's Pest Control, Inc. v. Rebar
    • United States
    • Alabama Supreme Court
    • December 13, 2002
    ...filed after submission of the motion comes too late"'") (quoting Moore v. Glover, 501 So.2d 1187, 1189 (Ala.1986)); White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App. 1995) ("A post-judgment motion may not be used to belatedly submit evidence in opposition to a motion for a summary The second......
  • Kruse v. Vanderbilt Minerals, LLC
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    • Alabama Supreme Court
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    ...post-judgment motion may not be used to belatedly submit evidence in opposition to a motion for a summary judgment.’ White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App.1995)." Ex parte City of Montgomery, 758 So.2d 565, 568 (Ala.1999) (abrogated on other grounds).The obvious reason Sanders did......
  • Ex parte City of Montgomery
    • United States
    • Alabama Supreme Court
    • November 19, 1999
    ...post-judgment motion may not be used to belatedly submit evidence in opposition to a motion for a summary judgment." White v. Howie, 677 So.2d 752, 754 (Ala. Civ.App.1995), citing Moore v. Glover, 501 So.2d 1187 (Ala.1986). "In determining whether to grant or deny a motion for summary judgm......
  • City of Montgomery v. Luckie
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    • October 1, 1999
    ...motion may not be used to belatedly submit evidence in opposition to a motion for a summary judgment." White v. Howie, 677 So. 2d 752, 754 (Ala. Civ. App. 1995), citing Moore v. Glover, 501 So.2d 1187 (Ala. 1986). "In determining whether to grant or deny a motion for summary judgment, '[t]h......
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