Hendon v. Holloway

242 So. 3d 1000
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 17, 2017
Docket2150958
StatusPublished

This text of 242 So. 3d 1000 (Hendon v. Holloway) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendon v. Holloway, 242 So. 3d 1000 (Ala. Ct. App. 2017).

Opinion

THOMPSON, Presiding Judge.

Robin Hendon appeals from a summary judgment entered in favor of Sharon Holloway and Jerry Lagrone, the named defendants in a civil action Hendon filed in the Jefferson Circuit Court ("the trial court").

The record demonstrates that on August 11, 2015, Hendon filed a verified complaint against Holloway and Lagrone alleging claims of malicious prosecution and harassment. Hendon claims that Holloway initiated a criminal matter against her without probable cause and in bad faith. In the complaint, Hendon claimed that, in the criminal matter, Holloway had asserted that Hendon had harassed her "by shooting fireworks at [Holloway's] pets." After a trial in the Jefferson District Court, Hendon was found not guilty in the criminal matter.

In her complaint, Hendon further alleged that "respondent" had harassed her and listed the following alleged acts of harassment: "respondent" had stolen Hendon's mail, had knocked over trash cans in Hendon's yard, had slashed the cover on Hendon's boat and had stolen the boat from her "slew," had broken or stolen Hendon's outdoor decorative solar lights, had made prank telephone calls to Hendon, had allowed a tree to fall on Hendon's lot and had failed to make "any attempt to clean up the refuse" from the fallen tree, *1002and, finally, had called Hendon's husband's workplace to complain about where he parked his company vehicle.

On June 20, 2016, Holloway filed two identical "motion[s] for a partial summary judgment." One of the motions included an affidavit from Lagrone. The other motion for a partial summary judgment included Holloway's affidavit. In their affidavits, both Lagrone and Holloway denied each act of harassment of which Hendon had accused them. Lagrone also denied initiating the criminal complaint against Hendon that served as the basis of the malicious-prosecution claim. Nothing in Holloway's affidavit addresses Hendon's malicious-prosecution claim. The motions themselves also did not address the malicious-prosecution claim.

In Hendon's response to the motions, she stated that the affidavits fell "woefully short of the requirements for Summary Judgment." She also attempted to refute Lagrone's and Holloway's assertions that they had not engaged in the conduct of which they were accused. For example the response stated:

"On the topic of knocking over trash cans, [Hendon's] response again indicates that she was not able to personally witness the act because of the Defendants' clandestine acts done under the cover of night at late hours, but that she can show motive and opportunity, as well as the circumstantial evidence that it had never occurred before the Defendants lived adjacent to her."

(Emphasis in the original.) Hendon did not offer an evidentiary submission with her response to refute the evidence presented in Holloway's and Lagrone's affidavits.

On July 13, 2016, the trial court entered a summary judgment in favor of both Holloway and Lagrone on Hendon's claims. The judgment states:

"Pending are the defendants' motions for summary judgment. The motions are accompanied by affidavits from the defendants, in which they deny under oath having committed any of the misdeeds about which [Hendon] complains.
"[Hendon] has filed a response to these motions. The response consists of arguments from [Hendon's] counsel. [Hendon], however, presents no evidence to support the contentions of her complaint. This shortcoming is fatal especially since [Hendon] bears the burden of proving her allegations.
"The court must conclude, from the evidence before it, that the material facts stand undisputed. Based on those facts, the defendants are entitled to judgment as a matter of law.
"SUMMARY JUDGMENT is therefore entered in favor of both defendants on the claims of [Hendon], who shall have and recover nothing. This is the final order in this action, with costs taxed as paid."

(Emphasis in the original.)

Hendon timely filed a motion to alter, amend, or vacate the summary judgment in which she pointed out, among other things, that the "defendants'" motions requested only a partial summary judgment and did not address the claim of malicious prosecution. The trial court denied the postjudgment motion, and Hendon then appealed to this court.

On appeal, Hendon argues that, because Lagrone did not file a motion for a summary judgment, the trial court erred in entering the summary judgment in his favor. The record indicates that, at the trial-court level, the parties and the trial court treated the two motions for a partial summary judgment, which purport to be motions "for Defendant Sharon Holloway," as though they had been filed by both defendants, Holloway and Lagrone. On June 27, *10032016, the trial court entered an order stating that, "[p]ending are summary judgment motions filed by the defendants." That order granted Hendon leave to file her response by a certain date, at which time the matter would be taken under submission. On July 8, 2016, Hendon, through her attorney, filed her response, in which she referred to the "Defendants' Motion for Summary Judgment." Throughout the response, Hendon refers to the "defendants'" motion, the "defendants'" actions, and the "defendants'" duty of care. Not once in her response did Hendon mention that Lagrone had not filed a separate motion for a partial summary judgment.

After the trial court entered the summary judgment in favor of both Holloway and Lagrone, Hendon filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. In her postjudgment motion, Hendon argued that the "defendants' motion" requested only a partial summary judgment and addressed only the claim of harassment. She did not assert that the summary judgment was improper as to Lagrone because he had not filed a motion for a summary judgment.

As demonstrated, the parties and the trial court proceeded as though the motions for a partial summary judgment had been filed by both Holloway and Lagrone. Because Hendon never asserted before the trial court that the summary judgment was improper as to Lagrone because he had not filed a summary-judgment motion, this court cannot consider the issue on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) (holding that an appellate court's review is restricted to the evidence and arguments presented to the trial court and that, thus, an appellate court cannot consider an issue raised for the first time on appeal); see also Sutchaleo v. Sutchaleo, 228 So.3d 475 (Ala. Civ. App. 2017) (same). Accordingly, we will not reverse the summary judgment entered in favor of Lagrone as to this issue.

Hendon also argues that the trial court erred in entering a summary judgment in favor of Holloway and Lagrone on both the malicious-prosecution claim and the harassment claim. We review a summary judgment pursuant to the following standard:

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co.

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Bluebook (online)
242 So. 3d 1000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendon-v-holloway-alacivapp-2017.