The Montgomery Circuit Court entered a summary judgment, as to all claims, for the defendants, the City of Montgomery and Cpl. D.P. Griffin (a police officer of the City of Montgomery), in the plaintiff Christopher Luckie's action alleging malicious prosecution, false imprisonment, assault and battery, and the tort of outrage. The Court of Civil Appeals reversed the summary judgment on all claims except the malicious-prosecution and tort-of-out-rage claims as to the City of Montgomery. Luckie v. City of Montgomery, 758 So.2d 560 (Ala.Civ.App.1999). We have granted the defendants' petition for certiorari review. We reverse.
The defendant Cpl. D.P. Griffin arrested Christopher Luckie on the night of October 9, 1996. Luckie was charged with driving under the influence of alcohol and a controlled substance. She was tried in the Montgomery Municipal Court and was convicted of DUI.
Luckie filed this action on March 7, 1997, against Cpl. Griffin and the City of Montgomery. On October 7, 1997, the defendants moved for a summary judgment and filed a brief in support of their motion. Also, in support of their summary-judgment motion, the defendants submitted the affidavit Cpl. Griffin had made earlier in regard to the DUI charge. That affidavit read as follows:
Luckie did not respond to the defendants' summary-judgment motion. On April 2, 1998, the trial court entered a summary judgment for the defendants, on all claims. Four days later, on April 6, 1998, Luckie filed a motion to set aside the summary judgment, and she filed a brief in support of that motion two months later, on June 3, 1998. The trial court denied this motion.
On appeal, by a 3-2 decision, the Court of Civil Appeals reversed the summary judgment as it related to all claims against Cpl. Griffin and as it related to all claims against the City except the malicious-prosecution and tort-of-outrage claims. In the majority opinion, the court appeared to treat Luckie's "Motion to Set Aside Summary Judgment," and her brief in support thereof, as a "response" to the defendants' summary-judgment motion.
The certiorari petition raises two substantive issues: (1) Whether the Court of Civil Appeals correctly designated Luckie's "Motion to Set Aside Summary Judgment" as a "response" to the defendants' already-granted summary-judgment motion. (2) Whether the defendants were entitled to the qualified immunity provided under Ala. Code 1975, § 6-5-338.
A trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The moving party must make a prima facie showing that there is no genuine issue of material fact; once that showing is made, the burden shifts to the nonmoving party to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989); Bean v. Craig, 557 So.2d 1249, 1252 (Ala.1990); Ex parte Martin, 733 So.2d 392 (Ala.1999). The evidence must be viewed in the light most favorable to the nonmoving party. Wayne J. Griffin Electric, Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993). However, Rule 56(e), Ala. R. Civ. P., provides:
(Emphasis added.) A lack of response by the nonmoving party will not automatically result in the entry of a summary judgment, but, instead, that party will risk having the motion granted against him if granting the motion is appropriate on the merits. Ex parte Oden, 617 So.2d 1020 (Ala.1992). A party failing to respond incurs the risk that the trial court will not hear evidence to support the nonmoving party's argument because, once the trial court enters a summary judgment, "[a] post-judgment motion may not be used to belatedly submit evidence in opposition to a motion for a summary judgment." White v. Howie, 677 So.2d 752, 754 (Ala. Civ.App.1995), citing Moore v. Glover, 501 So.2d 1187 (Ala.1986). "In determining whether to grant or deny a motion for summary judgment, `[t]he trial court can consider only that material before it at the time of submission of the motion.... Any material filed after submission of the motion comes too late.' Guess v. Snyder, 378 So.2d 691, 692 (Ala.1979)." Moore, 501 So.2d at 1189; Preferred Research, Inc. v. First American Title Ins. Co., 627 So.2d 861, 863 (Ala.1993).
Luckie, the nonmoving party, filed no response to the defendants' motion for summary judgment or to the brief filed in support of that motion. Six months after the defendants filed the motion and the brief, the trial court granted the motion.
Rule 56(e) does not provide that the nonmoving party will be in default for failing to respond to a summary-judgment motion. A trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R.Civ.P.
Because Luckie did not file any response or present any evidence to rebut the defendants' summary-judgment motion, all this Court must determine is whether the defendants made a prima facie showing that there was no genuine issue of material fact. Luckie's lawsuit was based on claims of malicious prosecution, false imprisonment, assault and battery, and the tort of outrage. The defendants, in their motion for summary judgment, contended that both the City of Montgomery and Cpl. Griffin are immune from such claims, under Ala.Code 1975, § 6-5-338, which provides in pertinent part:
(Emphasis added.) The first question we must ask is whether Cpl. Griffin was engaged in a discretionary function when he arrested Luckie? Discretionary functions have been described by this Court as being "those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996). This Court has also held, however, that acts taken in bad faith, or willful or malicious conduct, will not be considered discretionary in nature. Couch v. City of Sheffield,
Griffin's act of arresting Luckie was clearly a discretionary function. There is no hard and fast rule concerning when there is and when there is not probable cause to arrest a driver suspected to be under the influence of alcohol and/or drugs. Cpl. Griffin had to make a decision by exercising his judgment. As a result, he and his employer, the City of Montgomery, are immune under § 6-5-338, unless his actions were conducted with willful or malicious intent or in bad faith.
First, we look to whether Griffin had probable cause to arrest Luckie.
Couch, 708 So.2d at 155-56. Cpl. Griffin was told by Luckie that she had consumed some amount of alcohol, as well as a prescription drug that was not to be mixed with alcohol. The evidence indicated that Luckie's eyes were bloodshot, that she was nervous, that she was swaying, and, in addition, that she failed the "finger-to-nose test" and other field sobriety tests.
Although the evidence contains slight discrepancies as to Luckie's possible level of drunkenness, they do not affect the fact that the record contains undisputed evidence showing that Cpl. Griffin had facts on which he could reasonably believe Luckie was under the influence of alcohol and a controlled substance. Given these undisputed facts, it is clear that Cpl. Griffin had probable cause to arrest Luckie, and, because "the standard [was] met, it [was] unnecessary that the officer subjectively believe that he [had] a basis for the arrest." Dixon, 588 So.2d at 906.
Additionally, another factor contradicts any suggestion of malicious intent or bad faith on the part of Cpl. Griffin. The defendants point out that had Griffin released a probable drunk driver to drive on the streets, he would have been putting the citizens of Montgomery in danger.
Before the court entered the summary judgment, the defendants made a prima facie showing that Cpl. Griffin arrested Luckie with probable cause and without bad faith or a malicious or willful intent. Luckie did not refute this showing before the summary judgment was entered. Cpl. Griffin's arrest of Luckie was within the discretionary-function immunity provided in § 6-5-338. Therefore, the Court of Civil Appeals erred when it partially reversed
REVERSED AND REMANDED.
HOOPER, C. J., and MADDOX, COOK, SEE, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.
Luckie says the conviction was later reversed in the circuit court, but she admits that this fact does not appear in the record before this Court.