Appeal from Lauderdale Circuit Court. (CV-94-242). Ned Michael Suttle, Trial Judge.
Released for Publication April 22, 1995.
Ingram, Maddox, Shores, Steagall, and Cook, JJ., concur.
The opinion of the court was delivered by: Ingram
During the pendency of their divorce, Helen Ann Perkins Wright sued her estranged husband, Andrew James "Pop" Wright, asserting various claims based on allegations that he had made threats toward her; those claims included assault, battery, the tort of outrage, and invasion of privacy. The trial court entered a summary judgment for Mr. Wright. Mrs. Wright appealed.
On a motion for summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala. 1992); Elgin v. Alfa Corp., 598 So. 2d 807 (Ala. 1992). "The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact." McClendon, at 958; Elgin, at 810-11.
Rule 56 must be read in conjunction with the "substantial evidence rule," § 12-21-12, Ala. Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). In order to defeat a defendant's properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., "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). On review of a summary judgment, this Court reviews the record in a light most favorable to the nonmovant, and it must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993).
The Wrights were married in 1966, and they separated in 1979. Mrs. Wright testified that Mr. Wright had beat her while they were together and shortly after they had separated; the last alleged beating occurred in 1981. Their next contact after that time occurred when Mrs. Wright telephoned Mr. Wright in 1990. According to Mrs. Wright, during that telephone conversation Mr. Wright used a tone of voice that led her to believe that he "would have did something to [her]"; however, Mr. Wright took no action against her at all. Mrs. Wright had no further contact with Mr. Wright until 1992, when they were both present at a hospital to visit Mrs. Wright's daughter. Concerning this encounter, Mrs. Wright stated: "We did not talk. We did not talk, period. We just came to the hospital because my daughter got shot in the head." The last communication between Mr. and Mrs. Wright before Mrs. Wright filed this action occurred in 1993, when Mrs. Wright telephoned Mr. Wright to arrange for him to get her daughter released from jail. According to Mrs. Wright, Mr. Wright neither said nor did anything during that conversation to upset her.
Mrs. Wright contends, however, that she is threatened by Mr. Wright because he occasionally drives by her apartment. In her affidavit she stated:
"I try to not even look at [Mr. Wright's] car when he drives by my apartment because I am scared to death of him when he looks at me with that look in his eye that means he is going to beat me or shoot me.
"I try not to look at [Mr. Wright] because he always 'looks' at me with that look that only I know what it means. I cannot even describe the 'look' that [Mr. Wright] gives me, but I know exactly what it means. It means that he is telling me that I had better do exactly what he says to do and that I had better not cross him or he will beat me or shoot me.
"... [Mr. Wright] always wants me to know that he will beat me or kill me.
"There are other ways that [Mr. Wright] can go to the grocery store ...