Appeal from Elmore Circuit Court. (CV-92-206).
Shores, Kennedy, Ingram, and Cook, JJ., concur. Maddox, J.
On Application for Rehearing
Shores, Kennedy, Ingram, and Cook, JJ., concur.
MADDOX, JUSTICE (dissenting).
Although I concurred in part and Dissented in part on original submission, I did not state my reasons for Dissenting. On application for rehearing, I address specifically some of the reasons for that Dissent.
In their brief on application for rehearing, the defendants argue that this Court, in reviewing the summary judgment, incorrectly relied on inadmissible hearsay evidence that the defendants say was included in the affidavit of expert Steven Johnsen and in an unauthenticated document entitled "General Motors Guideline."
This Court, on original deliverance, did not address the issue of the admissibility of the evidence, although I believe that this Court, in reviewing the judgment de novo, should have addressed that issue.
Rule 65(e), Ala.R.Civ.P., provides:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."
The role of this Court when reviewing the Disposition of a motion for summary judgment is plain: "We utilize the same standard as ... the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988); Rule 56(c), Ala.R.Civ.P. On our review, no presumption of correctness attaches to the summary judgment, and we review it de novo. See Hipps v. Lauderdale County Board of Educ., 631 So. 2d 1023 (Ala. Civ. App. 1993).
It is my opinion that the trial court did not consider, and that this Court should not consider, inadmissible evidence. Rule 56(e), Ala.R.Civ.P. Because this Court, in reversing the summary judgment on original deliverance, considered evidence that I believe was inadmissible, I must respectfully ...