The Isbell v. Aztecas Mexican Grill opinion discusses a number of unusual procedural appellate issues regarding summary judgment motions. The defendant in that premises liability action moved for summary judgment. The trial court entered summary judgment based in part on its finding that the affidavit that the plaintiff offered in opposition to the defendant’s motion did not contain admissible evidence. The Court of Civil Appeals refused to consider the affidavit because the plaintiff did not appeal from that aspect of the summary judgment order. No. 2100333 (Ala. Civ. App. June 30, 2011).
The Court of Civil Appeals also refused to consider an affidavit that the plaintiff filed in support of his post-judgment motions. The Court explained that with respect to summary judgment motions, an appellate court will not consider affidavits that a plaintiff submits with a post-judgment motion unless the plaintiff proves that circumstances prevented him from gathering the evidence before the trial court granted summary judgment.