Dubose Constr. Co. v. Dubose Constr. Co.
| Decision Date | 16 March 2012 |
| Docket Number | 1110239. |
| Citation | 92 So.3d 49 |
| Parties | Ex parte DuBOSE CONSTRUCTION COMPANY, L.L.C. (In re James Simmons v. DuBose Construction Company, L.L.C.). |
| Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
John R. Bradwell of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for petitioner.
James Simmons, pro se.
William C. Thompson, presiding judge, and Craig S. Pittman, Tommy E. Bryan, Terry Willingham Thomas, and Terry A. Moore, judges, Alabama Court of Civil Appeals as respondents.
DuBose Construction Company, L.L.C., petitions this Court for a writ of mandamus directing the Court of Civil Appeals to vacate its order issued on November 8, 2011, directing the Montgomery Circuit Court to issue a ruling on the remand ordered in DuBose Construction Co. v. Simmons, 989 So.2d 1140 (Ala.Civ.App.2008), within 28 days. We deny the petition.
On February 14, 2005, James Simmons, an employee of DuBose Construction, sustained a medial meniscus tear in his right knee when he slipped and fell in a hole while working at a construction site. On April 18, 2005, Simmons underwent surgery to repair the tear; however, because of persistent pain and swelling, a second surgery was required on January 9, 2006. Simmons returned to work at DuBose Construction on March 1, 2006, but subsequently resigned on May 24, 2006, stating that the injury to his knee had affected other parts of his body and that he could no longer perform physical labor.
On August 23, 2005, Simmons sued DuBose Construction in the Montgomery Circuit Court seeking workers' compensation benefits for his knee injury. Following a proceeding at which the trial court heard ore tenus evidence, the trial court entered a judgment on March 13, 2007, finding that Simmons had suffered a permanent partial disability to the body as a whole and a 15% permanent partial loss of his ability to earn and awarding benefits accordingly. DuBose Construction subsequently appealed that judgment to the Court of Civil Appeals, arguing that the trial court had erred in awarding Simmons benefits based on a loss of earning capacity because, DuBose Construction argued, Simmons was limited to receiving the lesser benefits allowed for the loss of use of a leg set forth in the compensation schedule in § 25–5–57(a), Ala.Code 1975.
In its opinion, the Court of Civil Appeals recognized that the general proposition advocated by DuBose Construction was correct—that compensation for injuries resulting in the loss of use of a member of the body should be awarded in accordance with the schedule set forth in § 25–5–57(a)—but also noted that this Court had established an exception to that rule in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), later modified in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), “allowing an unscheduled award for an injury of such severity that it impacts the claimant's entire body.” Ex parte Addison Fabricators, Inc., 989 So.2d 498, 503 (Ala.2007). The Court of Civil Appeals ultimately concluded that it was unable to determine whether that exception should apply to Simmons, however, because “[t]he trial court did not make findings concerning whether Simmons's injury entitled him to compensation outside the schedule.” 989 So.2d at 1143. The court further explained that it was required to remand the cause to the trial court for that court to make specific findings concerning the extent of Simmons's injury, stating:
“In Wal–Mart Stores, Inc. v. Gardner, 885 So.2d 168 (Ala.Civ.App.2003), this court reversed the judgment of a trial court awarding the employee workers' compensation benefits without specifically setting forth its reason for awarding benefits outside the schedule, stating:
“
“885 So.2d at 172. Similarly, in Addison Fabricators, Inc. v. Davis, 892 So.2d 440 (Ala.Civ.App.2004), this court, relying on our decision in Wal–Mart, supra, reversed the judgment of the trial court based on its failure to make a determination as to the applicability of § 25–5–57(a)(3)a. and d. In so holding, this court concluded that the ‘ “[t]he trial judge should make a finding of every fact necessary to sustain the judgment of the court.” ’ 892 So.2d at 443 (quoting United Tel. & Tel. Co. v. Culiver, 271 Ala. 568, 570, 126 So.2d 119, 120–21 (1961)).
“Given the trial court's failure to make findings concerning whether Simmons's injury entitled him to workers' compensation benefits outside the schedule, we must reverse the judgment of the trial court and remand the cause for the trial court to enter a judgment consistent with this opinion.”
DuBose Construction, 989 So.2d at 1143.
The case thus returned to the trial court where, on June 17, 2008, approximately four months after the release of the Court of Civil Appeals' opinion, the trial court entered an order dismissing the case. The order stated in its entirety: Three days later, on June 20, 2008, Simmons moved the trial court to set aside its order of dismissal, arguing that “the Court of Civil Appeals, in its opinion, reversed and remanded the above case for the trial court ‘to make findings whether Simmons's injury entitled him to workers' compensation benefits outside the schedule.’ ” Simmons's motion was considered by the trial court at a hearing on August 25, 2008, at which the trial court had the following exchange with the attorneys for Simmons and DuBose Construction:
However, it appears that no written order setting aside the order dismissing the case was ever prepared, and, in any event, an order of dismissal was never entered into the record. Pursuant to Rule 59.1, Ala. R. Civ. P., Simmons's motion to set aside the June 17, 2008, order of dismissal was accordingly denied by operation of law on September 18, 2008.1 See Ex parte Chamblee, 899 So.2d 244, 248 (Ala.2004) ( ).
On November 12, 2009, Simmons filed a motion in the Court of Civil Appeals seeking to compel the trial court to enter a judgment consistent with the Court of Civil Appeals' ruling in DuBose Construction. In that motion, Simmons asserted that the trial court had held hearings on this case on June 4, 2009, and on October 7, 2009; however, Simmons asserted that at that last hearing the trial court had indicated that the case was closed because it had never entered an order in writing reinstating the case. Simmons nevertheless argued that the trial court could not have summarily dismissed the case without entering the order directed by the Court of Civil Appeals in DuBose Construction. On December 8, 2009, the Court of Civil Appeals denied Simmons's motion without stating its rationale.
Undaunted, Simmons, on October 18, 2010, moved the trial court to schedule a status conference. DuBose Construction thereafter filed a response and moved the trial court to sanction Simmons. In Simmons's November 18, 2010, reply to that response, he conceded that his arguments were untimely if Rule 59.1 applied to his case, but he argued that the trial court's June 17, 2008, order of dismissal was void because it was outside the scope of the remand order issued by the Court of Civil Appeals in DuBose Construction. The materials submitted to this Court contain no evidence indicating that the trial court took any action on these pleadings, and, on October 3, 2011, Simmons petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to finally enter an order setting forth the findings of fact the Court of Civil Appeals had held were absent from the trial court's initial judgment, and he argued that the trial court's June 17, 2008, order dismissing the case was void because it did not comply with the Court of Civil Appeals' directions on remand. The Court of Civil Appeals ordered DuBose Construction to file an answer to Simmons's petition, which it subsequently did, along with a motion to dismiss the petition and a request for damages for a “frivolous appeal” under Rule 38, Ala. R.App. P. On November 8, 2011, the Court of Civil Appeals entered an order granting Simmons's petition, denying DuBose Construction's request for damages, and directing the trial court...
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