This was error, because the defendants had sought summary judgments only as to the fraudulent suppression claim.’). See also Parr v. Goodyear Tire & Rubber Co., 641 So. 2d 769, 772 (Ala. 1994); Henson v. Mobile Infirmary Ass’n, 646 So. 2d 559, 562 (Ala. 1994); Sexton v. St. Clair Fed. Sav. Bank, 653 So. 2d 959, 962 (Ala. 1995); and Bibbs v. MedCenter Inns of Alabama, Inc., 669 So. 2d 143, 144 (Ala. 1995)." Baugus v. City of Florence, 968 So. 2d 529, 532 (Ala. 2007).
The difficulty comes in determining upon what basis this Court should find an abuse of discretion when the party seeking discovery in opposing a motion for a summary judgment seeks interlocutory review by mandamus. If the issue is presented to us on appeal from a final summary judgment entered over the opposing party's objection citing the need for additional discovery, we can review the merits of the summary judgment and, if we are satisfied that the trial court erred as a matter of law in entering the summary judgment, we will reverse for further proceedings on the motion for a summary judgment after discovery. See, e.g., Parr v. Goodyear Tire Rubber Co., 641 So.2d 769, 772 (Ala. 1994) ("Clearly, the discovery we have discussed was `crucial' to the Parrs' attempts to show what Goodyear had disposed of at the landfill and in what amounts. Accordingly, we hold that the trial court erred in entering the summary judgment before the crucial materials were produced.").
See Dunlap v. Regions Fin. Corp., 983 So. 2d 374, 377 (Ala. 2007) ("Because the arguments Dunlap now advances in opposition to Regions’ summary-judgment motion were not presented to the trial court, they are not properly before this Court ....") Cadence also argues that it was hampered in responding to the motion for a summary judgment because the Robertsons failed to respond to discovery. Cadence cites Parr v. Goodyear Tire & Rubber Co., 641 So. 2d 769, 771 (Ala. 1994), which states: "The [appellants] correctly state that if it can be ascertained that the information sought by pending interrogatories and requests for production of documents is crucial to the nonmoving party's case, it is error to enter a summary judgment before the party moving for summary judgment has produced the documents and answers to the interrogatories."
The plaintiff apparently filed three motions to compel discovery, yet she does not disclose to this Court the specific discovery that she requested, nor does she argue that she was unable to adequately respond to the Wal-Mart defendants' summary-judgment motion in the absence of the requested discovery. See Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769, 771 (Ala. 1994) (noting that, "if it can be ascertained that the information sought by pending interrogatories and requests for production of documents is crucial to the nonmoving party's case, it is error to enter a summary judgment before the party moving for summary judgment has produced the documents and answers to the interrogatories"). Moreover, the plaintiff's argument--that the trial court erred in failing to compel discovery--does not comply with Rule 28, Ala. R. App. P., insofar as she cites only one case, in which the purpose of discovery is stated in a special concurrence.
This was error, because the defendants had sought summary judgments only as to the fraudulent suppression claim."). See also Parr v. Goodyear Tire Rubber Co., 641 So.2d 769, 772 (Ala. 1994); Henson v. Mobile Infirmary Ass'n, 646 So.2d 559, 562 (Ala. 1994); Sexton v. St. Clair Fed. Sav. Bank, 653 So.2d 959, 962 (Ala. 1995); and Bibbs v. MedCenter Inns of Alabama, Inc., 669 So.2d 143, 144 (Ala. 1995). The City never completely abandoned its motion to strike before the trial court or before this Court.
"if it can be ascertained that the information sought by pending interrogatories and requests for production of documents is crucial to the nonmoving party's case, it is error to enter a summary judgment before the party moving for summary judgment has produced the documents and answers to the interrogatories."Parr v. Goodyear Tire Rubber Co., 641 So.2d 769, 771 (Ala. 1994). See also Reeves v. Porter, 521 So.2d 963 (Ala. 1988).
No evidence indicates such a situation in this case. The following cases cited by Barry are distinguishable: Naramore v. Duckworth-Morris Realty Co., 669 So.2d 946, 950-51 (Ala.Civ.App. 1995); Parr v. Goodyear Tire Rubber Co., 641 So.2d 769, 771 (Ala. 1994); Malloy v. Sullivan, 455 So.2d 12, 13 (Ala. 1984); Henderson v. Alabama Dep't of Indus. Relations, 827 So.2d 129, 131 (Ala.Civ.App. 2002); Phillips v. AmSouth Bank, 833 So.2d 29, 32 (Ala. 2002); Starks v. Commercial Union Ins. Co., 501 So.2d 1214, 1216 (Ala. 1987); Central Acceptance Corp. v. Colonial Bank of Alabama, N.A., 439 So.2d 144, 147 (Ala. 1983). Barry next argues that the Drennen Trust failed to make a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law.
"Said information is in the control and custody of the defendants and [Crowl] needs responses to his discovery or in the alternative to take depositions in order to determine such information." Crowl cites Parr v. Goodyear Tire Rubber Co., 641 So.2d 769 (Ala. 1994), and Noble v. McManus, 504 So.2d 248 (Ala. 1987). While it is true that in those cases this Court held that summary judgment was not proper because there were outstanding discovery requests, the facts sought by the discovery in those cases were critical to the plaintiffs' cases.
Evidence in the record indicates that DuPont's calculated conduct in Alabama restrained trade and frustrated the competitive warfarin sodium market in this State. DuPont unilaterally denied the plaintiffs access to the document depository for months. It is settled law that where a motion to compel discovery is pending and the motion makes it clear that the discovery sought is crucial to the nonmoving party's case, it is error to enter a summary judgment before discovery materials have been made available to the nonmoving party. Parr v. Goodyear Tire Rubber Co., 641 So.2d 769, 771 (Ala. 1994), citing Reeves v. Porter, 521 So.2d 963 (Ala. 1988). I conclude that the trial judge abused his discretion in limiting discovery.
The Carrells' attorney asked for more time to depose corporate officers of Masonite. Based on the record and the briefs, we can conclude only that the trial court abused its discretion as to two causes of action in the Carrells' complaint by not allowing the Carrells to complete their discovery before entering the summary judgment. See, e.g., Parr v. Goodyear Tire Rubber Co., 641 So.2d 769 (Ala. 1994). However, there are some causes of action as to which the trial court's judgment must be affirmed, because the corporate officers of Masonite and the witnesses listed in the Rule 56(f) motion cannot supply substantial evidence of missing elements in these causes of action.