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COUCH v. CITY OF SHEFFIELD1/9/1998
o respond, summary judgment, if appropriate, shall be entered against him."
We do not consider the "Notice of Claim" and the accompanying unverified copies of the municipal trial transcript to be sufficient in form to satisfy Rule 56(e) and, thus, to defeat the motion for summary judgment. See Osborn v. Johns, 468 So.2d 103 (Ala. 1985). It is significant, we think, that the "Notice of Claim" is not in proper affidavit form. An affidavit sufficient to satisfy Rule 56(e) is a written declaration or statement of facts, made voluntarily and based on personal knowledge, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to
administer an oath or affirmation. See Black's Law Dictionary, "Affidavit" (6th ed. 1990); Rule 56(e). It is apparent that Couch's "Notice of Claim" was intended to satisfy § 11-47-23 by putting the City on notice of Couch's allegations of misconduct. It is also apparent that the bulk of the "Notice of Claim," which was filed on or about April 1, 1996, apparently was made up of pages lifted almost verbatim from Couch's complaint, which was filed on March 25, 1996, including the sections entitled "Identity of the Parties," "Factual Allegations," "Count 1 — False Arrest," and "Relief Sought." In the notary 's certification, Couch "avers that he has read and understands the information in the foregoing Notice of Claim and he affixes his signature thereto." It is one thing for a person to confirm on personal knowledge and under oath or by affirmation the truthfulness of the contents of a document that he has signed (such a document being an affidavit); it is quite another thing for a person to confirm under oath or by affirmation that he has read, understands, and has signed a document that was intended to satisfy a statutory notice requirement and that contains a section entitled "Factual Allegations," which includes matters ranging from information of which the claimant could have had personal knowledge to other information composed of legal conclusions, hearsay, and speculation. In this respect, we note that in the "Factual Allegations" section Couch does not refer to himself in the first person; rather, he refers to himself in the third person, i.e., calling himself "the plaintiff." Furthermore, the "Factual Allegations" section also contains statements that were allegedly made by Lesley and the city prosecutor to Couch's attorney and with respect to which Couch apparently had no personal knowledge. We conclude, therefore, that the defendants made a prima facie showing of no wrongdoing on their part and that Couch failed to rebut that showing by presenting evidence of misconduct on the part of the defendants, sufficient to satisfy Rule 56. An adverse party may not rest upon the mere allegations or denials of his pleadings. Rule 56(e).
Although the summary judgment was proper for the reasons discussed above, we think it appropriate to point out that even if we were to treat the "Notice of Claim" and the accompanying copies of the municipal court transcript as sufficient to satisfy Rule 56(e), we would still hold that the summary judgment was proper. Section 6-5-338 provides in pertinent part as follows:
"(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of thei
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