Douglass v. Allen

574 So. 2d 38, 1989 Ala. Civ. App. LEXIS 216, 1989 WL 71915

Opinion

J. ED TEASE, Retired Circuit Judge.

This is an appeal by claimant of trial court’s denial of his unemployment compensation claim.

After an ore tenus proceeding, the trial court initially entered judgment in favor of claimant. However, on Department of Industrial Relations’ post-trial motions, the trial court set aside its original judgment in favor of claimant and entered judgment in favor of employer and Department. The final judgment did not include specific findings, grounds, or conclusions of law.

For reasons unexplained by the record before us, the ore tenus testimony at the trial was not transcribed. We have consistently held that in such cases the trial court must be affirmed.

In the unemployment compensation case of Argo v. Carter, 376 So.2d 746 (Ala.Civ.App.1979), we said:

“[I]t is well settled in this state that where it appears that the trial court heard evidence that is not before this court, such evidence will be conclusively presumed to support the findings and judgment of the trial court and will not be disturbed on appeal. English v. English, Ala.Civ.App., 352 So.2d 454 (1977). As pointed out above, the testimony heard by the trial court is not before this court. Consequently we are of the opinion that we have no alternative but to affirm the trial court’s judgment.”

We therefore affirm the judgment of the trial court.

The foregoing opinion was prepared by Retired Circuit Judge J. ED TEASE while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.