Gordon v. West Weaver Baptist Church

777 So. 2d 734, 2000 Ala. Civ. App. LEXIS 518, 2000 WL 1134589
CourtCourt of Civil Appeals of Alabama
DecidedAugust 11, 2000
Docket2990419
StatusPublished
Cited by1 cases

This text of 777 So. 2d 734 (Gordon v. West Weaver Baptist Church) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. West Weaver Baptist Church, 777 So. 2d 734, 2000 Ala. Civ. App. LEXIS 518, 2000 WL 1134589 (Ala. Ct. App. 2000).

Opinion

ROBERTSON, Presiding Judge.

On February 4, 1999, Barbara Gordon sued the West Weaver Baptist Church (“the Church”), alleging that she had been injured during the course of her employment by the Church and seeking workers’ compensation benefits. The Church moved for a summary judgment on June 23, 1999. After various filings were submitted regarding the Church’s motion, the court entered a summary judgment for the Church on November 2, 1999.

In pertinent part, the summary judgment stated:

“The above styled cause came before the Court on July 20, 1999. The attorneys for both parties appeared and presented oral arguments before the Court regarding the pending Summary Judgment Motion filed by [the Church], On November 2, 1999, [Gordon] filed an additional affidavit and additional written arguments which have also been considered by the Court. The Court takes judicial notice that the exhibit attached to [Gordon’s] November 2, 1999, supplement has been previously objected to as irrelevant, and that said objection was sustained, and that said exhibit was not considered by the Court. Upon consideration of all relevant evidence presented to the Court,
“It is hereby ordered, adjudged, and decreed as follows:
“The Court finds that [the Church] regularly employed less than five persons at the time of [Gordon’s] injury, and that, therefore, [the Church] is not covered by the Alabama Workers’ Compensation Act.”

On November 30, 1999, Gordon moved to vacate the summary judgment; the trial court denied her motion on December 14, 1999.

Gordon appeals, arguing (1) that the trial court erred in determining that the Church employed fewer than five persons and (2) that the trial court erred in concluding that Nancy Humphrey was an in[736]*736dependent contractor in performing her services for the Church.

Our standard for reviewing a summary judgment is settled:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R.Civ.P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted). Moreover, in determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). No presumption of correctness attaches to a summary judgment, and our review is de novo. Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993) (citing Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635 (Ala.1992)).

The Church hired Gordon in 1995 as a custodian. When Gordon was hired as the Church’s custodian, the Church was also paying for services from a pastor, a music director, a pianist, an organist, and a youth director. Nancy Humphrey affirmed that she played the piano for the Church as an independent contractor at the time Gordon was hired; she testified that she was paid by the Church only when she came to a service and played the piano. Humphrey also affirmed that she was not under the supervision or control of any individual at the Church.

Diane Price presented an affidavit affirming that she was a volunteer bookkeeper for the Church and stating that during 1997 Nancy Humphrey, Regina Tubbs (who played the organ), and John Boss (who worked with church members’ children, apparently as youth director) had received payment from the Church as independent contractors. United States Internal Revenue Service W-2 forms for Joey Bonds,1 Gordon, Humphrey, Tubbs, and Boss were attached to the Church’s summary-judgment motion. These forms showed amounts paid to those individuals by the Church without any deduction for federal or state income taxes.

Gordon was injured when she slipped and fell while she was stripping a floor at the Church in 1997. Gordon stated in her affidavit that she was an employee-at-will of the Church and that she believed that the other persons who provided services to the Church were similarly employed. She stated that she was not aware that the Church paid for the services of any person as an independent contractor. In a supplemental affidavit, Gordon stated that the music director had ceased working for the Church before Gordon was injured. The record also shows that the exhibit referred to in the trial court’s summary-judgment order was a financial statement of the Church dated January 1999. This financial statement shows budgeted salaries for a pastor, a music director, a pianist, an organist, a youth director, and a custodian. However, the financial statement also shows that no actual salary payments were made for an organist or for a youth director.

Gordon’s arguments in this appeal resolve to a single contention — that the trial [737]*737court erred by concluding that the Alabama Workers’ Compensation Act did not apply to the Church because the Church employed fewer than five persons.

In pertinent part, § 25-5-50(a), Ala. Code 1975, provides:

“This article and Article 2 of this chapter shall not be construed or held to apply to ... an employer who regularly employs less than five employees in any one business.... ”

The evidence shows that at the time of Gordon’s injury, the Church was receiving the services of a pastor, a pianist, an organist, a youth director, and a custodian. Both the bookkeeper, Price, and the pianist, Humphrey, indicated that Humphrey performed her work for the Church as an independent contractor; Humphrey specifically stated that the Church had no right of control over when she played the piano for the Church. Whether a person is viewed as an employee or as an independent contractor turns on whether the alleged employer has reserved a right to control the person’s actions. Wheeler v. Wright, 668 So.2d 779 (Ala.Civ.App.1995); Martin v. Lawrence County, 628 So.2d 652 (Ala.Civ.App.1998). The evidence is undisputed that the Church reserved no right of control over Humphrey’s work as a pianist. We conclude, therefore, that the trial court correctly determined that the Church was employing fewer than five persons at the time of Gordon’s injury.

However, the conclusion that the Church was employing fewer than five persons at the time of Gordon’s injury is not dispositive of the issue whether § 25-5-50 bars Gordon’s claim for workers’ compensation benefits. Section 25-5-50 exempts an employer who “regularly employs” fewer than five persons. The meaning of the term “regularly employs,” in the context of § 25-5-50, was discussed by this court in LaPoint v. Barton, 57 Ala.App. 352, 328 So.2d 605 (Ala.Civ.App.1976):

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Bluebook (online)
777 So. 2d 734, 2000 Ala. Civ. App. LEXIS 518, 2000 WL 1134589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-west-weaver-baptist-church-alacivapp-2000.