Rel: 12/12/14




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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130758
                             ____________________

                                   Sarah Grimes

                                           v.

                                  Kristen Saban

                  Appeal from Tuscaloosa Circuit Court
                             (CV-12-900538)

BRYAN, Justice.

      Sarah Grimes appeals a summary judgment entered by the

Tuscaloosa Circuit Court in favor of Kristen Saban in Grimes's

civil action against Saban seeking damages for assault and

battery.        Viewing the evidence in the light most favorable to

Grimes, the nonmovant, as we must when reviewing a summary
1130758

judgment,   we    conclude   that   there   are   genuine   issues   of

material fact in this case. Therefore, we reverse the summary

judgment and remand the cause for further proceedings.

                    Facts and Procedural History

    In the early morning hours of August 29, 2010, Grimes,

Saban, and others were gathered in the kitchen at Saban's

apartment after returning from Rounders, a bar located in

Tuscaloosa.      Both Saban and Grimes had been drinking alcohol.

At one point, Grimes offended Saban by telling her to "shut

up" and saying that Grimes and the others were tired of

listening to her. Saban went to her bedroom and, according to

Grimes, as she did so, Saban shouted that no one liked Grimes

and that Grimes did not have any friends.          Grimes told Saban

that Saban needed to get therapy, to which Saban replied:

"Because that worked really well for you."              According to

Saban, Grimes then called Saban a "psycho."

    Saban locked herself in her bedroom.            Some time later,

Hannah Muncher went to Saban's bedroom to check on her. Saban

let Muncher into her bedroom and locked the door behind her.

Grimes, McKinnon Moultrie, and Courtney Reigel, one of Saban's




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1130758

roommates, were all sitting in Reigel's bedroom, which was

across the hall from Saban's bedroom.

       While Saban was locked in her bedroom, she posted the

following statement on her Facebook social-medium page: "No

one likes Sarah, Yayyyyy!" When Grimes saw the Facebook post,

she got up and moved toward Saban's door, saying "I'm done."

Reigel told Grimes not to confront Saban.                Grimes replied:

"[I]f she touches me, I'll kill her."             Grimes testified that

this statement was a figure of speech, that it was not a

threat directed at Saban, and that she did not know whether

Saban even heard it.          Grimes went to Saban's door, with her

telephone in her hand, and began banging on the door with her

hand, shouting to Saban to remove the post from her Facebook

page.

       A few seconds later, Saban opened the door and showed

Grimes her telephone, stating that she had removed the post.

A physical altercation ensued.              The facts as to how the

altercation began and the extent of it are disputed.              Grimes

testified that Saban came out of her bedroom to show Grimes

that    she   had   removed    the   post   and   that   Grimes   replied

"something to the effect of, okay, that's fine, we're done,


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and ... called [Saban] crazy."              According to Grimes, Saban

then    "used    both   of   her    hands   and   shoved   [Grimes]    into

[Reigel's] open door frame" and that Grimes "hit [her] head on

the door when [Saban] threw [her] back."               Grimes testified

that she then put "[o]ne hand on [Saban's] throat, one hand on

her chest, and threw her back ... toward the door to get her

away." Grimes testified further that "immediately after [she]

threw [Saban] back [Saban] start[ed] punching [her]" in the

face.     Grimes testified that Saban hit her in the face more

than five times and that Grimes "did not swing back" but put

her arm up to defend herself.

       The   two   women     were   eventually     separated.       Grimes

testified       that,   after   they   were   separated,    Saban     threw

Grimes's telephone against the wall and went into her room.

Grimes followed her to talk to her. Grimes testified that she

was bleeding and that blood was "all over the floor and all

over [her]" and that it had run down her face and into her

bra.    Grimes testified that Saban was not bleeding.            After a

brief conversation with Saban, Grimes determined that she

needed to go the hospital.          Reigel and Beth Terry, another of

Saban's roommates, drove her there and stayed with her until


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Grimes's parents arrived.   She testified that her injuries

were "extensive," including considerable swelling on her left

temple and a black eye.

    Saban, on the other hand, testified that after she put

the post about Grimes on Facebook:

          "[Grimes] came banging on my door.

          "....

         "She banged on my door for a few seconds, maybe
    almost a minute. I wasn't answering the door. I
    didn't want to until I -– she was screaming at me to
    take it off and cursing, and I finally took it off,
    and I opened the door, and I showed her. I had my
    phone out, and I said, 'It's off. It's off.'

          "....

         "And then she took both of her hands and put
    them around my throat.

          "....

         "I believe we both had a hold of each other's
    hair at that point after she grabbed me."

Saban went on to testify that after Grimes grabbed her throat

there was "[j]ust a lot of slapping and punching, not many

landing, and scratching."   Saban testified that she had not

touched Grimes before Grimes "put her hands on [Saban's] neck"

and that, when Grimes had her hands on Saban's neck, Saban

"put[] [her] arms out to try to push [Grimes] off of [her]."

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1130758

Saban testified that Terry pulled Saban and Grimes apart and

that she, Saban, went back to her bedroom, crying.                       Saban

testified    that   her    nose    was       bleeding    and    that   she   had

scratches on her back.       She did not remember seeing any blood

on Grimes, but she did testify that Grimes's eye was a little

swollen. Saban testified that Grimes said she needed to go to

the hospital to document her injuries.

    In June 2012, Grimes sued Saban, alleging assault and

battery.    Grimes argued, among other things, that, "[a]s a

result of the beating and the head injuries [she] sustained by

Kristen    Saban,   [Grimes]      has       had   repeated     night   terrors,

anxiety,    physical      trembling,        fears   of   dying    from   brain

injuries, trouble sleeping, and intrusive recollections of the

event."    Grimes also alleged that her migraine headaches had

increased since the altercation with Saban, that she sustained

"severe emotional trauma," and that "the middle of [Grimes's]

nose was deformed, was shifted, and it was a direct result of

the beating that [Grimes] received from [Saban]."

    Saban moved the circuit court to dismiss the action,

pursuant to Rule 12(b)(6), Ala. R. Civ. P., and shortly

thereafter filed an answer to the complaint.                    Saban argued,


                                        6
1130758

among other things, that "Grimes instigated, or otherwise

brought on this altercation by uttering hateful words to

[Saban]" and that "Saban acted in self defense."   On July 18,

2012, the circuit court denied Saban's motion to dismiss.    In

December 2013, Saban moved the circuit court for a summary

judgment.   She included with her motion, among other things,

affidavits from Reigel, Moultrie, Muncher, Terry, and Meaghan

Williams, who had also been at the apartment on the morning of

August 29, 2010, giving their account of events related to

Grimes's and Saban's altercation. Grimes opposed the summary-

judgment motion and attached, among other items, as evidence

in support of her arguments in opposition the deposition

testimony of Grimes and Saban; photographs that Grimes alleged

were of the injuries she received during the altercation with

Saban; and medical records from Grimes's hospital visit after

the altercation.   Saban moved to strike those exhibits.    The

circuit court did not rule on Saban's motion before it entered

a summary judgment in Saban's favor on the assault and battery

claims.

    In its summary-judgment order, the circuit court stated:

                          "Findings


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1130758

         "In the early morning hours of August 29, 2010,
    [Grimes] and [Saban], along with some mutual
    girlfriends, returned to [Saban's] apartment after
    a night of socializing at a local bar. As they sat
    in the kitchen discussing the night's events, an
    argument ensued between [Grimes] and [Saban], which
    prompted [Saban] to leave the room, go upstairs to
    her bedroom, and lock her door.

         "While in her room, [Saban] posted on Facebook,
    'No one likes Sarah, yayyyyy!' apparently in
    reference to [Grimes]. Sometime later, [Grimes] saw
    this post, became angry, went to [Saban's] bedroom
    and began yelling and pounding on the locked door,
    demanding the post be removed. When [Saban] opened
    the door to her bedroom and attempted to show
    [Grimes] her phone and that the post had been
    removed, [Grimes] advanced toward [Saban], got
    within inches of [Saban's] face, and continued
    yelling. As [Saban] pushed [Grimes] away, [Grimes]
    grabbed [Saban] by the throat, and the physical
    altercation began.

                        "Conclusions

         "[Saban] was in her home, locked in her bedroom,
    when [Grimes] sought out [Saban] and initiated the
    confrontation. [Grimes's] response to [Saban's]
    Facebook post was unreasonable and excessive.
    [Grimes] initiated the confrontation when she sought
    out [Saban] after [Saban] had left the room where
    the argument had taken place, and by going to
    [Saban's] locked bedroom door yelling and demanding
    the post be taken down.     When [Saban] opened the
    door to an angry [Grimes] within inches of her face,
    it was reasonable for [Saban] to believe imminent
    use of unlawful physical force by [Grimes] was about
    to be used against her. [Saban] had a right to be
    in her home, had no duty to retreat and had the
    right to stand her ground. Therefore, [Saban] was
    justified in using physical force to defend herself
    from what she reasonably believed to be the use of

                             8
1130758

    unlawful physical force by [Grimes]. Furthermore,
    [Saban] was justified in using a degree of force
    that she reasonably believed was necessary to repel
    [Grimes's] use and threat of physical force.

         "Due to these facts, Alabama Code [1975,] § 13A-
    3-23[,] presumes that [Saban's] actions were
    justified and necessary to repel the use of physical
    force against her.      [Grimes] failed to present
    evidence to rebut this presumption. Therefore, it
    is ORDERED, ADJUDGED AND DECREED that [Saban's]
    Motion for Summary Judgment is hereby GRANTED with
    costs taxed as paid."

(Capitalization in original.)

    Grimes moved the circuit court to alter, amend, or vacate

its judgment.   The circuit court denied that motion on March

18, 2014, and Grimes appealed.

                          Discussion

         "'The standard of review applicable to a summary
    judgment is the same as the standard for granting
    the motion ....' McClendon v. Mountain Top Indoor
    Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992).

               "'A summary judgment is proper when
          there is no genuine issue of material fact
          and the moving party is entitled to a
          judgment as a matter of law.          Rule
          56(c)(3), Ala. R. Civ. P. The burden is on
          the moving party to make a prima facie
          showing that there is no genuine issue of
          material fact and that it is entitled to a
          judgment as a matter of law.            In
          determining whether the movant has carried
          that burden, the court is to view the
          evidence in a light most favorable to the
          nonmoving party and to draw all reasonable

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1130758

           inferences in favor of that party.       To
           defeat   a   properly   supported   summary
           judgment motion, the nonmoving party must
           present "substantial evidence" creating a
           genuine issue of material fact -- "evidence
           of such weight and quality that fair-minded
           persons in the exercise of impartial
           judgment can reasonably infer the existence
           of the fact sought to be proved."      Ala.
           Code 1975, § 12–21–12; West v. Founders
           Life Assurance Co. of Florida, 547 So. 2d
           870, 871 (Ala. 1989).'"

Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935

(Ala.     2006)    (quoting   Capital   Alliance   Ins.   Co.   v.

Thorough–Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994)).

    Grimes argues that the circuit court erred in entering a

summary judgment in favor of Saban because, she says, genuine

issues of material fact exist as to whether Saban acted in

self-defense, under § 13A-3-23, Ala. Code 1975.      Section 13A-

3-23 provides, in pertinent part:1

         "(a) A person is justified in using physical
    force upon another person in order to defend himself
    or herself or a third person from what he or she
    reasonably believes to be the use or imminent use of
    unlawful physical force by that other person, and he
    or she may use a degree of force which he or she
    reasonably believes to be necessary for the purpose.
    ...

           "....

    1
     Section 13A-3-23 was amended effective August 1, 2013.
That amendment affected parts of § 13A-3-23 not quoted above.
                                 10
1130758

         "(b) A person who is justified under subsection
    (a) in using physical force, including deadly
    physical force, and who is not engaged in an
    unlawful activity and is in any place where he or
    she has the right to be has no duty to retreat and
    has the right to stand his or her ground.

         "(c)   Notwithstanding  the   provisions   of
    subsection (a), a person is not justified in using
    physical force if:

              "....

               "(2) He or she was the initial
          aggressor, except that his or her use of
          physical force upon another person under
          the circumstances is justifiable if he or
          she withdraws from the encounter and
          effectively communicates to the other
          person his or her intent to do so, but the
          latter person nevertheless continues or
          threatens the use of unlawful physical
          force.

              "....

         "(d) A person who uses force, including deadly
    physical force, as justified and permitted in this
    section is immune from criminal prosecution and
    civil action for the use of such force, unless the
    force was determined to be unlawful."

    The circuit court determined that Grimes "sought out

[Saban] and initiated the confrontation"; that Saban "was

justified in using physical force to defend herself from what

she reasonably believed to be the use of unlawful physical

force by [Grimes]"; and "that [Saban's] actions were justified


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1130758

and necessary to repel the use of physical force against her."

These conclusions were apparently based on the circuit court's

findings that, after she saw Saban's Facebook post about her,

Grimes

    "became angry, went to [Saban's] bedroom and began
    yelling and pounding on the locked door, demanding
    the post be removed. When [Saban] opened the door
    to her bedroom and attempted to show [Grimes] her
    phone and that the post had been removed, [Grimes]
    advanced toward [Saban], got within inches of
    [Saban's] face, and continued yelling. As [Saban]
    pushed [Grimes] away, [Grimes] grabbed [Saban] by
    the throat, and the physical altercation began."

    These   findings    are   supported   by   Saban's   deposition

testimony and by the affidavits of Reigel, Moultrie, Muncher,

Terry, and Williams, which she attached to her motion for a

summary judgment.      However, they are disputed by Grimes's

deposition testimony, which was attached to Grimes's brief

filed in opposition to Saban's summary-judgment motion.          As

noted previously,

    "[i]n determining whether the movant has carried
    that burden [of showing that there is no genuine
    issue of material fact and that the movant is
    entitled to judgment as a matter of law], the court
    is to view the evidence in a light most favorable to
    the nonmoving party and to draw all reasonable
    inferences in favor of that party."

Capital Alliance Ins., 639 So. 2d at 1350 (emphasis added).


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1130758

       Grimes testified in her deposition that after she banged

on Saban's door, insisting that Saban take down the Facebook

post, Saban opened the door and came out of her bedroom to

show Grimes that the post had been removed.                     Grimes testified

that       Saban    was   in   the    hall       when   she   showed   Grimes    her

telephone and that "[Grimes] had backed away from [Saban's]

door       when    [Saban]     came   out    of     her   room."       Grimes   also

testified that she and Saban were "in close proximity" and

"[c]loser than [arms' length]," but her testimony does not

indicate that she was "within inches of [Saban's] face" or

that she continued yelling or threatening Saban once Saban

told her the post had been removed.2

       Grimes also testified in her deposition that, after Saban

told her that the Facebook post had been removed, she said to

Saban "something to the effect of 'I don't care, okay, but

we're done,' and I called her crazy."                     Grimes testified that

Saban then "used both of her hands and shoved [Grimes] into

[Reigel's] open door frame."                     Grimes testified that, after

Saban pushed her, she grabbed Saban, putting one hand on her

throat and one hand on her chest "and threw [Saban] back ...

       2
     The statement that Grimes was yelling at Saban "within
inches of Saban's face" appears only in Reigel's affidavit.
                                            13
1130758

toward the door to get her away."   According to Grimes, when

she put her hands on Saban's throat and chest to push her

away, Saban started punching her and hit her in the face

"[m]ore than five times."

    Grimes testified that, after the first punch, she told

Saban that "[she] was calling the cops."   Grimes stated:

    "I'm not sure how many blows were after that. I did
    not swing back. I know I had my arm up to defend
    myself. She had a grip on my hair. And we were
    somehow moving along the wall ....     [Muncher] at
    this point ... tried to pull her off, and it wasn't
    working.

         "And at some point, the closer we got towards
    the living room, [Terry], who was asleep, got up out
    of bed and they somehow managed to pull [Saban] off
    of me."

Grimes also testified in her deposition that she may have

scratched Saban and pulled her hair to "get away from her and

get her off of me."

    When viewed in the light most favorable to Grimes and

when all reasonable inferences are drawn in favor of Grimes,

see Pritchett, supra, Grimes's deposition testimony raises

genuine issues of material fact as to whether Saban reasonably

believed the use of force was necessary to defend herself

against Grimes, whether Saban used a degree of force she


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1130758

reasonably believed was necessary, and whether Saban was the

initial aggressor in the altercation.            See § 13A-3-23(a) and

(c)(2), supra.       Thus, Saban was not entitled to a summary

judgment pursuant to § 13A-3-23 on the ground that she acted

in self-defense.

      Saban argues that Grimes's deposition testimony alone is

not   "substantial      evidence"   creating      a   genuine    issue   of

material fact as to whether Saban acted in self-defense.                 She

cites Blackburn v. State Farm Automobile Insurance Co., 652

So. 2d 1140 (Ala. 1994), Mitchell v. Torrence Cablevision USA,

Inc., 806 So. 2d 1254 (Ala. Civ. App. 2000), and Walsh v.

Douglas, 717 So. 2d 807 (Ala. Civ. App. 1998), in support of

that argument.    Her reliance on those cases is misplaced.

      In   Blackburn,    this   Court    noted    that   the    undisputed

evidence in the record disproved the plaintiff's claim that

the defendant had acted in bad faith.            In Mitchell, the Court

of Civil Appeals determined that the plaintiff's own testimony

supported the defendants' claim that there was no genuine

issue of material fact as to their affirmative defenses.

Here, the evidence related to Grimes's assault and battery

claims and Saban's claim that she acted in self-defense is


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highly disputed and raises genuine issues of material fact as

to whether Saban is entitled to protection under § 13A-3-23.

    In Walsh, the Court of Civil Appeals concluded that the

"unsupported allegations" in the testimony of one of the

defendants "[did] not constitute substantial evidence" and

that that testimony "was insufficient to create a factual

issue precluding summary judgment."   717 So. 2d at 810.   The

Court of Civil Appeals stated: "Mere conclusory allegations

that a fact exists will not defeat a properly supported

summary judgment motion." Id. Grimes's deposition testimony,

however, is not composed of "[m]ere conclusory allegations."

Instead, she sets forth specific facts that, when viewed in

the light most favorable to Grimes, as they must be, see

Pritchett, supra, constitute substantial evidence of genuine

issues of fact as to whether Saban acted in self-defense,

pursuant to § 13A-3-23, see Rule 56, Ala. R. Civ. P., i.e.,

evidence from which "fair-minded persons in the exercise of

impartial judgment can reasonably infer the existence of the

fact sought to be proved."    Pritchett, supra.    Thus, the

circuit court erred in entering a summary judgment in Saban's

favor based on § 13A-3-23.   In so holding, we should not be


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understood as expressing a view as to the merits of the

underlying claims or affirmative defenses; we merely hold that

there remain genuine issues of material fact for resolution by

the fact-finder so as to preclude the entry of a summary

judgment.

                             Conclusion

    In light of the foregoing, we reverse the circuit court's

judgment    and   remand   the   cause    for   further   proceedings

consistent with this opinion.

    REVERSED AND REMANDED.

    Moore, C.J., and Bolin, Parker, and Main, JJ., concur.




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