Court Discusses Admissibility of Summary Judgment Affidavits

In summary judgment proceedings, it is well-settled that parties may rely only on evidence that would be admissible at trial.  In Stephens v. First Commercial Bank, No. 1080648 (Ala. March 12, 2010), Stephens argued that he had no obligation to present evidence in opposition to the bank’s summary judgment motion on its claim for breach of a promissory note because the affidavit that the bank offered in support of its motion violated the best evidence rule and the prohibition against hearsay.  The Alabama Supreme Court disagreed and affirmed the summary judgment for the bank. 

"On appeal, Stephens argues that FCB failed to establish by competent evidence that he had defaulted on the promissory note or what its damages were even if such a default was established. The only evidence submitted by FCB other than the promissory note itself, Stephens notes, was Brown’s affidavit, which, he alleges, was inadmissible because it violated the best-evidence rule and/or the rule prohibiting hearsay in that it "simply repeats statements and facts contained within [FCB’s] books and records." Stephens’s brief, p. 12. Accordingly, Stephens argues, because ‘Rule 56, Ala. R. Civ. P., requires that a motion for summary judgment be supported by facts that would be ‘admissible in evidence,’ Aldridge v. DaimlerChrysler Corp., 809 So. 2d 785, 797 (Ala. 2001), FCB failed to make a prima facie showing that there was no genuine issue of material fact, and, he says, summary judgment was therefore inappropriate.

Stephens is correct that the best-evidence rule or the hearsay prohibition would render Brown’s affidavit inadmissible if Brown were simply reciting facts he learned by examining FCB’s books and records. In such a case, those books and records would themselves be the best evidence of the asserted facts, and they would themselves be able to directly ‘state’ the facts at issue. However, although Stephens asserts that Brown has, in his affidavit, simply repeated statements and facts contained within FCB’s books and records, he overlooks the fact that Brown also swore in his affidavit that ‘I have personal knowledge of the matters set forth herein.’ ‘[W]hen a witness testifies based upon his own personal knowledge, independent from any document, the ‘best evidence’ rule does not apply.’ Ex parte Walker, 623 So.2d 281, 284 (Ala. 1992).  Likewise, if Brown is testifying based upon his personal knowledge and not merely repeating the contents of documents, his statements are by definition not hearsay.

. . .

Brown unequivocally states in his affidavit that ‘I have personal knowledge of the matters set forth herein.’ Although Stephens disputes that statement, he submitted no evidence that would indicate that the statement is false or that it was made in bad faith. In light of the fact that Brown’s affidavit was filed with FCB’s motion for a summary judgment on November 7, 2008, and that the trial court expressly delayed ruling on that summary-judgment motion until January 6, 2009, in order to give Stephens time to conduct discovery, Stephens had ample time in which to question Brown as to the source of his personal knowledge, either by interrogatories or by deposition. He apparently elected not to do so. In the absence of any evidence indicating that Brown’s affidavit was not based upon his personal knowledge, the trial court correctly considered the affidavit as evidence, because neither the best-evidence rule nor the rule prohibiting hearsay is applicable here."

Stephens (some internal quotations omitted).  The Court noted that, "[h]ad Stephens obtained and submitted evidence in response to FCB’s summary-judgment motion calling into question the source of Brown’s knowledge, that response might have ‘made [FCB’s books and records] crucial to the decision in the case.’"  Id. at n. 2.