In Ex parte Secretary of Veterans Affairs, No. 1101171 (Ala. Mar. 20, 2012), in support of his summary-judgment motion, the Secretary proffered an affidavit executed by Hiatt to which were attached a number of unsworn, uncertified, and unauthenticated documents. In his opposing memorandum brief, Smith pointed out why Hiatt’s affidavit and the documents were inadmissible and should not be considered. Smith was correct. Yet, Smith never filed a motion to strike the affidavit and documents.
Bolin wrote a majority opinion to which Woodall, Stuart, Main and Wise concurred. The majority held that Smith waived his objection to the affidavit and documents when he failed to contemporaneously file a motion to strike. It was not sufficient to argue that the affidavit and documents were inadmissible in Smith's opposing memorandum brief.
Murdock, with Parker and Shaw concurring, wrote a strong dissent. Murdock pointed out that, having to file a motion to strike along with objecting to the affidavit and documents in the opposing memorandum brief was redundant and placed “form” over “substance.”
THEREFORE, IN THE FUTURE, IF THE MOVANT PROFFERS INADMISSIBLE EVIDENCE IN SUPPORT OF A MOTION, YOU MUST FORMALLY FILE A MOTION TO STRIKE IN ADDITION TO OBJECTING TO THE INADMISSIBLE EVIDENCE IN AN OPPOSING BRIEF.
