Johnson v. Lowe's Home Centers, Inc.

89 So. 3d 768, 2011 WL 6273670, 2011 Ala. Civ. App. LEXIS 355
CourtCourt of Civil Appeals of Alabama
DecidedDecember 16, 2011
Docket2100623
StatusPublished

This text of 89 So. 3d 768 (Johnson v. Lowe's Home Centers, Inc.) 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
Johnson v. Lowe's Home Centers, Inc., 89 So. 3d 768, 2011 WL 6273670, 2011 Ala. Civ. App. LEXIS 355 (Ala. Ct. App. 2011).

Opinion

THOMAS, Judge.

Dorrian D. Johnson (“the employee”) appeals from the Autauga Circuit Court’s judgment in his workers’ compensation action against Lowe’s Home Centers, Inc. (“the employer”).

On December 10, 2010, the circuit court determined that the employee’s injury was not compensable under the Workers’ Compensation Act (“the Act”), codified at § 25-5-1 et seq., Ala.Code 1975. We reverse.

Facts and Procedural History

This is the second time this cause has been before this court. See Johnson v. Lowe’s Home Ctr., Inc., 59 So.3d 698 (Ala.Civ.App.2010). In that opinion, we recited [770]*770the following facts pertinent to the present appeal:

“On July 1, 2008, [the employee] filed a workers’ compensation action against [the employer]. [The employee] alleged that he had sustained an injury on May 14, 2008, that arose out of and in the course of his employment with [the employer]. [The employer] answered [the employee]’s complaint on July 25, 2008, admitting that [the employee] was a part-time employee of [the employer] on May 14, 2008, and that the Act applied to [the employee]’s claims. [The employer] denied, however, that [the employee^ injury arose out of and in the course of his employment, that [the employee] had suffered any disability, and that it had received notice of [the employee^ injury occurring on May 14, 2008.
“On July 27, 2009, following a hearing at which the trial court heard ore tenus testimony concerning only the issue of the compensability of [employee]’s injury, the trial court entered the following judgment:
“ ‘This cause coming on before this Court upon the Petition for Worker’s Compensation Benefits as filed by [the employee] and the parties appearing on May 19, 2009 and by agreement presented only the issue of compensability or the issue of whether or not the alleged injury is compensa-ble. The testimony being taken ore tenus and certain stipulations being made as follows:
“ ‘A. [The employee] was an employee of [the employer] on May 14, 2008.
“‘B. The Alabama Worker’s Compensation Act covers all parties.
“ ‘Upon hearing the testimony at length on the issue of the alleged injury, this Court finds this not to be a compensable injury.’
“On August 26, 2009, [the employee] filed a motion to alter, amend, or vacate the trial court’s judgment or, in the alternative, to amend its judgment to include specific findings of fact. The trial court conducted a hearing on [the employee]’s postjudgment motion and subsequently denied it. [The employee] appealed.”

Johnson, 59 So.3d at 699.

The employee appealed, and this court concluded that the circuit court had failed to include findings of fact responsive to the issues presented, as required by Ala.Code 1975, § 25-5-88. We reversed the judgment and remanded the cause for the circuit court to enter a judgment that complied with the requirements of § 25-5-88. Id. at 700. On December 10, 2010, the circuit court entered a judgment in compliance with our mandate in Johnson; the judgment included the necessary findings to support its determination that the employee’s injury was not compensable under the Act. The employee filed a motion to alter, amend, or vacate the December 10, 2010, judgment, claiming that evidence existed that his injury was compensable and that certain deposition testimony had been improperly admitted. The circuit court denied his motion on February 28, 2011. The employee filed a timely notice of appeal to this court on April 1, 2011.

Standards of Review

“Section 25-5-81(e), Ala.Code 1975, provides this court’s standard of review:
“‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court [771]*771shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).
“ ‘Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81 (e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’
“Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission). The ‘appellate court must view the facts in the light most favorable to the findings of the trial court.’ Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).”

Equity Group-Alabama Div. v. Harris, 55 So.3d 299, 305-06 (Ala.Civ.App.2010).

This court has often repeated that

“ ‘[i]t is well established that the trial court is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers’ compensation case.’ Mayfield Trucking Co. [v. Napier], 724 So.2d [22] at 25 [(Ala.Civ.App.1998)]. ‘The resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review.’ Id.”

Clear Creek Transp., Inc. v. Peebles, 911 So.2d 1059, 1063 (Ala.Civ.App.2004).

Discussion

Initially, the employee contends, for the first time on this second appeal, that the circuit court should not have, admitted the deposition testimony of his supervisor, Michelle Jennings. The employer contends, and the employee does not refute, that the employee’s failure to raise the issue of the admission of Jennings’s deposition testimony in the prior appeal is a proper basis for the application of the law-of-the-case doctrine, which prevents our consideration of the issue in this subsequent appeal. Our supreme court has stated that

“[i]t is enough that the issue should have been raised in the first appeal. ‘Under the . law of the case doctrine, “[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal.” ’ Kortum v. Johnson, 786 N.W.2d 702, 705 (N.D.2010) (quoting State ex rel. North Dakota Dep’t of Labor v. Riemers,

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Bluebook (online)
89 So. 3d 768, 2011 WL 6273670, 2011 Ala. Civ. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-lowes-home-centers-inc-alacivapp-2011.