Question of whether trial court erred when it awarded property purchased during the marriage to the wife.

Divorce hearing was held in 06/10. Transcript of proceedings ends during direct examination of wife after a discussion was held off the record. No other testimony was presented. Both wife and husband filed written summary of their testimony. In 10/10, the trial court entered a divorce judgment dividing real and personal property. Each was awarded real property owned prior to the marriage and the wife was awarded a farm purchased during the marriage. The husband appealed.

The properties in questions consisted of three parcels. One parcel was inherited by the wife and the other two were purchased in using an equity line from one of the properties owned by the husband. Both parties contributed monies towards the building of the home on the farm. The husband believed that he should be awarded equity in the farm. The wife argued that she contributed money to improvement of husband’s rental property which offset the husband’s financial contributions to the farm. The trial court’s judgment did not address the husband’s rental property as divisible marital asset. Husband also argued that property owned by him prior to the marriage remained on the farm.

The Court stated that “Because such a determination affects the analysis of whether the division of property was equitable, we remand the cause with instructions to the trial court to clarify its division of personal property.

Remanded.

On 09/01/09, Harry Foster, Sr. purchased an $80,000.00 certified check and sent it to Harry Foster, Jr. On 09/03/09, Sr. committed suicide. On 09/03/09, Jr. received package from Sr. a few hours after suicide. Another son, Michael filed Petition for Letters Testamentary and was appointed executor of Sr.’s estate. Michael also filed a petition for the return on the $80,000.00. Jr. testified at trial that in 3 separate conversations, Sr. stated that he was going to give the money to Jr. as a monetary gift. He was told by Sr. to spend the money on his family. Sr. knew that Jr’s son suffered from a form of blood cancer and that his daughter was getting married in August. Probate court determined that the check was a completed gift and was not part of the estate. Michael appealed.

The elements of a gift are: (a) an intention to give and surrender title to, and dominion over , the property; (b) delivery to the donee; (c) acceptance by the donee. Garrison v. Grayson, 284 Ala. 247, 249, 224 So.2d 606, 608 (Ala. 1969). The gift is complete when it is “paid, certified or accepted by the drawee.” Dial v. Dial, 603 So2d 1020 (Ala.1992).

The Court determined that there was a completed gift from Sr. to Jr. Evidence in this case was also sufficient to support a finding of intent to gift monies to Jr.

Judgment affirmed.

Question of whether findings by Unemployment Administrative Hearing Officer barred argument of discharge for violating attendance policy.

Employee of Hyundai was provided handbook which included policies related to attendance and bereavement leave. In 2008, a Hyundai document stated that Hyundai may request documentation to verify relationship of Employee to deceased. Falsification of the requested documentation would result in termination.

Employee developed carpal tunnel syndrome and underwent surgery. He returned to light duty on 10/06/08. Between 10/06/08 and 11/02/08, the Employee missed 9 days of work and took one bereavement day. He then took short-term disability from 10/27/08 to 02/16/09. On 02/20/09, Hyundai sent a request for documentation as it related to work absences and to complete a bereavement-leave form. When Employee returned to work, he was told he needed to provide documentation or he would be terminated. Another letter was sent to Employee in 03/09 requesting documentation. He was discharged on 03/13/09.

Employee sought unemployment compensation benefits. Hyundai did not appear at administrative hearing and Employee was awarded benefits. The hearing officer determined that Employee’s violation of attendance policy was not “misconduct” that would disqualify benefits.

Employee sued Hyundai for workers’ compensation benefits and retaliatory discharge. Hyundai filed a motion for summary judgment on the retaliatory discharge claim and the Court granted the motion.

Employee appealed.

The Court stated that the ruling of the administrative hearing officer was not a determination that the reason for his discharge was not valid under Hyundai’s policies and that Hyundai’s “proffered reasons were not legitimate or pretextual,…” or that Hyundai terminated his “employment for the sold reason that he had filed a workers’ compensation claim.” The Employee did not offer any evidence of a prima facie case of retaliatory discharge.

Judgment affirmed.

Employee worked to ATI. His duties required that he work close to a chemical reactor. On 12/08/11, another employee noticed a foul smell and tried to locate a leak around the reactor system. A third employee found Employee lying face up on the floor 15 to 20 feet away. He died without regaining consciousness. According to the autopsy, the Employee died from “complications from hydrogen sulfide toxicity.” His widow filed a for workers’ compensation benefits action. She provided that the bag used in the mixing process had 50 times the amount of sulfur usually used causing both of the other employees to complain of a headache and one to complain of a burning sensation in his throat. ATI’s expert stated that the Employee’s physical findings were consistent with any number of causes of death other than chemical exposure. The Court determined that Employee’s accidental exposure to hydrogen sulfate gas “caused or contributed to his death.” ATI appealed.

The Appeals Court stated that it was undisputed that the Employee was exposed to hydrogen sulfide and that both ATI’s expert and the medical examiner agreed that the Employee exhibited finding consistent with death due to exposure. The Court further stated that ATI did not present substantial evidence that Employee did not die from exposure.

Affirmed.

Question of whether claim was estopped due to previous payment of unemployment compensation benefits

Employee worked for White Tiger and injured his left knee in 02/07 and right shoulder in 03/08. He filed suit for workers compensation benefits. White Tiger answered the affirmative defense of estoppel. Employee amended complaint stating that he also injured his right shoulder in 03/09. There was no answer to the amended complaint. The Court awarded permanent-total disability benefits for his injuries.

White Tiger appealed.

Employee argued that White Tiger waived the estoppel argument because of its failure to answer the amended complaint. White Tiger argued that it did not waive the defense because it was tried by implied consent of the parties.

For judicial estoppel to apply, a party must how that (1) a party’s later position is “clearly inconsistent” with its earlier position; (2) that the party must have been successful in the prior proceeding and (3) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Ala. Code 1975 § 25-4-77(a)(3) states: a recipient of unemployment compensation benefits must be “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” The Employee’s statements that if able, he would try to find a job and that he was willing and able to perform some work is not inconsistent with his claim to be permanently and totally disabled for workers’ compensation action.

Affirmed.

An Alabama football fan, who was captured on video allegedly rubbing his genitals in the face of an unconscious man after a game in Louisiana, could be required to register as a sex offender when he returns to Alabama. 

Issues: Venue

Plaintiff Whited was involved in a two vehicle accident in Jefferson County in 2008 and filed suit against Wright Brothers and others in 2010 in Walker County. Wright Brothers moved to transfer the matter to Jefferson County. In his complaint, Plaintiff alleged that he was a resident of Blount County, however, Plaintiff responded to the Motion to Transfer stating that he was actually a resident of Walker County, not Blount County. That Plaintiff did reside in Walker County appeared to be undisputed. Plaintiff also stated in his response that Wright Brothers regularly did business in Walker County. Plaintiff did not allege that any of the co-defendants did business in Walker County. Wright Brothers responded by filing an affidavit indicating that it no longer conducted business in Walker County. Following a hearing at which it was alleged that a non-party affiliate of Wright Brothers, WCRP, had its principal location in Walker County, Wright Brothers submitted affidavits stating that WCRP was a separate corporate entity and that in any event, WCRP ceased operations in 1999. The trial court denied Wright Brothers' Motion to Transfer in a one-word Order and the defendants filed a petition for mandamus. Subsequent to the Petition, the trial court entered a detailed "corrected" Order setting forth findings of fact, analysis and conclusions of law. On mandamus, the parties agreed that Whited was a resident of Walker County, and that venue was proper in that county if White Brothers did business by agent in Walker County. The Court first found that there was no authority to find that venue was proper in a county in which a separate, but affiliated company (WCRP) had its principal place of business, and that - in any event - Whited presented no evidence to rebut the material submitted showing that WCRP ceased operation in 1999. The Court found further that Whited submitted no evidence to rebut Wright Brothers evidence that it did not do business by agent in Walker County. Thus, transfer to Jefferson County, the county in which the accident took place, was required. The Court did not consider the trial court's "corrected" Order detailing the reasons for denying the Motion to Transfer finding that to do so would allow the Defendant to be "sandbagged".

Issues: Will Contest, Undue Influence, Conversion, Litigation Costs

In 1992, Elizabeth McGee, the mother of the litigants in this action, executed a will which divided her estate unequally. Jack McGee ("Jack"), who received less than his brother Willis McGee ("Willis"), filed an action contesting the will. There was no dispute that Wills was not present when his mother's will was executed, nor was there evidence that Willis played any role in the discussions leading up to the execution of the 1992 will. Willis did place the will in Mrs. McGee's safe deposit box at some point prior to her death. Jack's complaint alleged undue influence, that the offered will perpetrated a fraud on the Court, and conversion of numerous items of Jack's personal property. The property alleged to have been converted fell into three categories: items given to Jack by Mrs. McGee, items given to Jack by others, and items purchased by Jack and stored at his mother's house. The trial court entered summary judgment on all counts except the undue influence count. Following presentation of Jack's evidence on that count, the trial court entered judgment as a matter of law in favor of Willis. The trial court then denied Willis' motion for payment of costs and fees. On appeal, the Supreme Court first affirmed the JML on the undue influence claim. The Court stated that the elements of such as claim are: 1) a confidential relationship; 2) a dominant or controlling influence in that relationship; and 3) undue activity by the dominant party in procuring the execution of the will. Without discussing the first two elements, the Court found that there was no evidence to support the third element - undue activity by Willis. According to the Court, the fact that Willis placed a copy of the executed will in Mrs. McGee's safe deposit box evidenced only post-execution activity by Willis, which did not support an allegation of undue influence in the execution of the will. With regard to the fraud claim, the Court understood Jack's theory to be that Mrs. McGee stated to her best friend that in 1996 she executed another will which treated "Jack and Willis fairly" and that at that time Willis admitted the same thing to his then mother-in-law. Jack relied on Ala. Code § 43-8-5 which provides that the statute of limitations for filing a will contest may be tolled when the facts upon which a contest could be filed were concealed by fraud. The Court held that this tolling provision did not create a substantive claim. The Court then found that, there was insufficient evidence to allow a claim based on an allegation that Willis destroyed a subsequent will - where there was no concrete evidence that a subsequent will actually existed - to go to a jury. On the conversion claim, the trial court had concluded that because the property remained in Mrs. McGee's possession until her death, no delivery occurred, and thus the claim failed. The Supreme Court reversed the trial court's decision on this count as to the property allegedly given to Jack by individuals other than Mrs. McGee and property he allegedly purchased himself and was storing at his mother's house. According to the Court, Willis only presented evidence of failure to take possession with regard to property allegedly given to Jack by Mrs. McGee. Finally, the Court reversed the trial court's denial of costs and fees to Willis, finding that Jack presented "no credible evidence in support of any ground on which Jack challenged Mrs. McGee's will."

Issues: Venue, Accrual of Workers' Compensation Claim

In January 2006, Plaintiff Heathcoe was injured in Mississippi while working for Billy Barnes Enterprises ("Barnes"). Barnes acknowledged that Heathcoe's claim was compensable and paid for medical treatment and temporary total disability until Heathcoe reached maximum medical improvement in 2009. Heathcoe sued Barnes in Washington County in January 2007 seeking benefits for permanent total disability benefits. Barnes answered, alleging that venue was not proper in Washington County because Heathcoe did not reside there, and Barnes did not do business by agent there. Barnes then moved to transfer the matter to Monroe County, where Barnes' principal office was located. Barnes submitted an affidavit from its workers compensation carrier stating that Heathcoe contacted the company in November 2006 to inform it that she had moved to Tallapoosa County. Heathcoe submitted an affidavit stating that the move to Tallapoosa was temporary only. Her affidavit also included statements supporting her assertion that Barnes conducted business in Washington County. Barnes argued that suit was not proper in Washington County because Heathcoe did not reside in that county "at the time of the accrual of the cause of action" as required under Ala. Code § 6-3-7(a)(3). According to Barnes, because they were paying Heathcoe until 2009, she had no dispute with the company until that time and thus her cause of action did not accrue until after she had moved to Tallapoosa County. The trial court denied Barnes' Motion to Transfer and the Court of Civil Appeals affirmed. The Appellate Court held that under the workers' compensation statutes and case law, Heathcoe's cause of action accrued in January 2006 when her injury occurred and not, as Barnes argued, when the dispute regarding payment of benefits later arose (2009). Because there was no evidence to rebut Heathcoe's affidavit stating that she resided in Washington County at that time, and that Barnes conducted business in that County by agent, transfer was not required.

Issues: Judicial Estoppel, Receipt of Unemployment Compensation on Workers' Compensation Claim.

Clemons sued White Tiger, a printing business, seeking workers' compensation benefits. Clemons alleged that he injured his left knee and right shoulder in work-related accidents. Clemons' employment was terminated in late 2009 and subsequently received unemployment benefits from the State Department of Industrial Relations. Following a trial on the workers' compensation claim, the trial court awarded Clemons permanent total disability benefits. On appeal, White Tiger argued that Clemons was judicially estopped from claiming that he was disabled because in order to receive unemployment compensation he had to be "physically and mentally able to perform work of a character which he is qualified to perform by past experience or training." The Court of Civil appeals held that receipt of unemployment compensation did not bar a worker from claiming total disability. According to the Court, "Clemons' assertion to D IR that he was willing and able to perform some work that he was qualified to do is not totally inconsistent with his claim to be permanently and totally disabled for workers' compensation purposes."