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Barnwell v. CLP Corporation

Supreme Court of Alabama

May 11, 2018

Andre Barnwell
v.
CLP Corporation

          Appeal from Calhoun Circuit Court (CV-14-900270.80)

          BRYAN, JUSTICE.

         Andre Barnwell, the plaintiff below, appeals from a summary judgment entered in favor of CLP Corporation ("CLP"), the defendant below. This is the second time these parties have been before this Court. In Barnwell v. CLP Corp., 235 So.3d 238 (Ala. 2017), we reversed a summary judgment entered in favor of CLP and remanded the case. Because in the first

         As we noted in our first opinion involving these parties, CLP owns and operates a McDonald's fast-food restaurant ("the restaurant"). Barnwell sued CLP, alleging that he was injured when he slipped and fell in the restaurant. CLP moved for a summary judgment, arguing that the alleged fall was caused by an open and obvious danger and that part of Barnwell's testimony about the alleged fall was unreliable and should not be considered. CLP also filed a motion to strike Barnwell's affidavit and part of his earlier deposition. In that motion, CLP argued that Barnwell's affidavit testimony conflicted with his deposition testimony. CLP also argued that part of Barnwell's deposition testimony regarding the accident is contradicted by photographs showing the interior of the restaurant. In August 2016, the circuit court entered an order granting CLP's motion for a summary judgment, without stating a reason. The circuit court did not enter an order indicating a ruling on CLP's motion to strike.

         Barnwell appealed to this Court, and we reversed the summary judgment and remanded the case. Early in our analysis, we considered whether the circuit court had considered Barnwell's affidavit and full deposition in ruling on CLP's summary-judgment motion. As noted, CLP had filed a motion to strike Barnwell's affidavit and part of his deposition. We stated: "The circuit court did not enter an order specifically denying CLP's motion to strike. However, in entering its summary judgment in favor of CLP, the circuit court specifically stated that it had considered all the evidence before it. The circuit court clearly did not find CLP's argument [for striking the evidence] convincing." Barnwell, 235 So.3d at 243.

         Thus, in the first appeal, we determined that the circuit court had considered Barnwell's affidavit and full deposition in ruling on the summary-judgment motion. We later addressed whether the circuit court's consideration of that evidence was proper, i.e., whether that evidence was admissible. See, e.g., Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1053 (Ala. 2007) (stating that evidence submitted in opposition to a summary-judgment motion must be admissible and refusing to consider, on de novo review of a summary judgment, inadmissible evidence the circuit court should have struck before it ruled on the summary-judgment motion). That determination was key, because the disputed evidence was crucial to Barnwell's attempt to withstand the summary-judgment motion. As we will discuss in more detail below, we determined that the disputed evidence was properly before the circuit court. Based on the evidence that the circuit court properly had before it, i.e., Barnwell's affidavit and full deposition, and its indication in the summary-judgment order that it had considered "all the evidence" before it, we concluded that the circuit court had erred in entering a summary judgment in favor of CLP, and we reversed the summary judgment and remanded the case. More specifically, Barnwell's affidavit and his full deposition provided evidence supporting Barnwell's claim, thus precluding a summary judgment on the ground that such evidence was lacking, and CLP had not presented any evidence establishing that the dangerous condition that allegedly caused the fall was open and obvious.

         After we remanded the case, CLP filed a renewed motion to strike Barnwell's affidavit and part of his deposition. The renewed motion to strike presents the same substantive grounds as did the original motion to strike, but there is one difference between the two motions. In the renewed motion to strike, CLP contended that the circuit court, in considering the original motion to strike at a hearing before the entry of the first summary judgment, actually had ruled from the bench that the motion to strike was due to be granted. As noted, before the first appeal, the circuit court had never entered an order ruling on the original motion to strike. In the renewed motion to strike, CLP asked the circuit court to grant the motion to strike "for a second time" and to enter an order to that effect. CLP also filed a renewed summary-judgment motion that is substantively the same as CLP's original summary-judgment motion. Barnwell responded to the renewed motion to strike and the renewed summary-judgment motion, arguing that this Court had already decided the issues raised by those filings.

         The circuit court subsequently entered an order granting CLP's renewed motion to strike. The circuit court struck Barnwell's affidavit and parts of his deposition because the circuit court concluded that they conflicted with each other. On the same day the circuit court granted the motion to strike, the circuit court entered a summary judgment in favor of CLP, stating, in pertinent part:

"During the original hearing on [CLP's] Motion for Summary Judgment and Motion to Strike held on August 15, 2016, this Court ruled that [Barnwell's] affidavit and certain [deposition] testimony were due to be stricken from the record, and summary judgment was due to be granted for [CLP]. This Court entered an order granting [CLP's] Summary Judgment. However, this Court did not enter a separate order granting [CLP's] Motion to Strike, although this Court ruled from the bench that the Motion to Strike was due to be granted.
"Upon detailed review of the Supreme Court's opinion [reversing the first summary judgment], it is ... this Court's opinion that the Supreme Court was unaware of this Court's decision to grant [CLP's] Motion to Strike. ...
"Despite relying on the misunderstanding that this Court [had] denied [CLP's] Motion to Strike, the Supreme Court opined, 'Of course, if [Barnwell's affidavit and deposition] were not considered by the circuit court, there would be no evidence supporting the allegations in Barnwell's complaint and, thus, CLP would be entitled to a summary judgment in its favor.' This Court clarifies that it in fact granted [CLP's] prior Motion to Strike. As such, it appears to this Court, based the Supreme Court's Opinion, that had [the Supreme Court] been informed of this Court's prior decision to grant [CLP's] Motion to Strike, CLP would be entitled to summary judgment.
"[CLP's] Renewed Motion to Strike has been granted. Subsequently, [Barnwell] has once again failed to present sufficient evidence to overcome [CLP's] Renewed Motion for Summary Judgment."

         Following the denial of his postjudgment motion, Barnwell once again appealed to this Court.

         Essentially, the only difference in this case as it is now postured and the case as it was postured for the first appeal is that the circuit court has now informed this Court that it orally granted CLP's motion to strike at the hearing held before the first summary judgment was entered. There was no indication in the record of the first appeal that the circuit court had orally granted the motion to strike. Conversely, we determined that the record actually indicated that the circuit court had considered the evidence CLP sought to strike, noting that the first summary-judgment order stated that the circuit court had considered "all the evidence." 235 So.3d at 243. In this appeal, Barnwell does not seem to object to the circuit court's clarifying that it had denied the motion to strike his affidavit and full deposition. Barnwell argues, however, that the circuit court erred by striking that evidence. That is, he argues that the stricken evidence is admissible and that, in light of that evidence, a summary judgment should not have been entered against him. As we will discuss in detail below, these are issues that were resolved in the first appeal

         We first address the circuit court's reliance on remand on a statement we made in our opinion in the first appeal. In the second summary judgment entered on remand, the circuit court noted that in our first opinion we stated: "Of course, if [Barnwell's affidavit and deposition] were not considered by the circuit court, there would be no evidence supporting the allegations in Barnwell's complaint and, thus, CLP would be entitled to a summary judgment in its favor." 235 So.3d at 243. That statement, however, must be read in the context of the entire opinion. When this Court made that statement, it was attempting to pinpoint the circuit court's rationale for entering the first summary judgment. In response to the grounds CLP asserted in the first summary-judgment motion, the circuit court may have entered a summary judgment on the ground either (1) that it was disregarding Barnwell's affidavit and deposition, leaving no evidence to support Barnwell's claim, or (2) that the dangerous condition that caused the alleged fall was open and obvious. In that context, we did say that if the circuit court did not consider Barnwell's affidavit and deposition in ruling on the summary-judgment motion, there would be no evidence supporting Barnwell's claim and, "thus, CLP would be entitled to a summary judgment in its favor." 235 So.3d at 243. But that statement did not end the discussion because, regardless of whether the circuit court actually had considered the evidence, the question remained whether the circuit court properly considered or properly failed to consider the evidence. Barnwell argued that the evidence CLP sought to strike is admissible and thus was properly before the circuit court, and CLP argued the opposite. We spent a good part of our analysis in the first appeal discussing that issue.

         In the current appeal, the parties mostly reiterate the same arguments they made in the first appeal. This is unsurprising because, as noted, we discussed in the opinion in the first appeal the key issue in this appeal: Whether the circuit court should have considered Barnwell's affidavit and full deposition. As the first opinion indicates, the admissibility of that evidence is crucial; if that evidence is properly before the circuit court, summary judgment is inappropriate. We thoroughly discussed this issue in the first opinion, and we repeat our discussion here, beginning with a recitation of the evidence:

"The following facts are derived from Barnwell's deposition testimony. On April 25, 2013, Barnwell visited the restaurant. Barnwell stated that after he entered the restaurant, he went straight to the restroom to wash his hands. Barnwell's deposition testimony explains what happened next:
"'[Barnwell:] I just come out and started walking straight back and the door -- the entrance door would be on my left and the counter would be on the right.
"'[CLP's trial counsel:] What happened after that?
"'[Barnwell:] I had -- I was going to turn and go to the counter, I planted my left foot. When I did, it just kind of slipped out from under me sort of sideways and I went back down on my left hip and pushed myself just kind of all one motion, just down and hit and then back up.
"'[CLP's trial counsel:] I'm going to walk through what we just talked about. You're coming out of the restroom and you're going to make a right turn to head towards the counter?
"'[Barnwell:] Yes.
"'[CLP's trial counsel:] I take it you're headed to the counter. Were you going to order?
"'[Barnwell:] Yes.
"'[CLP's trial counsel:] And you plant your left foot?
"'[Barnwell:] Right.
"'[CLP's trial counsel:] What happens immediately after you plant ...

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