Motion For Summary Judgment Must Be Based On Evidence, Not Mere Averments

In Jones-Lowe Company v. Southern Land and Exploration Company, Inc., [Ms. 1071575] (Ala. March 6, 2009), the Alabama Supreme Court reversed the trial court’s granting of a motion for summary judgment because the motion was based on mere averments and not supported by evidence filed with the trial court.  "[M]otion averments are not evidence in any sense."

Southern Land and Exploration Company ("Solexco") filed a motion for summary judgment in an action to quiet title against Jones-Lowe.  Solexco’s motion contained averments in the "Statement of Material Undisputed Facts" of the motion.  However, Solexco submitted no evidence or other supporting documentation, such as copies of the documents relied upon.  Rather, it just relied upon the averments in the motion.  The trial court granted summary judgment to Solexco, but the Supreme Court reversed.

The Supreme Court held that the requirement of making "specific reference" to evidence in the narrative summary of undisputed facts "is not satisfied if the materials on which the movant purports to rely have not been filed with the court."  p. 10.  The Court repeated the well settled rule that "motion averments are not evidence in any sense." p. 12.  Thus, because Solexco did not meet its burden of proof to be entitled to summary judgment, the motion was due to be denied.

Further, Jones-Lowe filed a cross-motion for summary judgment in the trial court, and appealed the denial of its own motion.  The Supreme Court affirmed the denial of that motion.  The Court stated that "[t]he fact  that Solexco is not entitled to a summary judgment quieting title in it does not mean that Jones-Lowe is entitled to such a judgment on its cross-motion."  p. 14.   On appeal, Jones-Lowe made arguments which were not made to the trial court.  However, because the arguments were not made to the trial court, they could not be considered as a basis for reversal on appeal.  p. 15-16.  Conversely, the arguments in support of the cross-motion for summary judgment made to the trial court were not addressed in the appellate brief.  So, the arguments were waived on appeal.  p. 16.

Therefore, neither party was entitled to summary judgment, and the case was remanded to the trial court.