Tompkins v. Wal-Mart Assocs., Inc.

• Citation: 336 So.3d 195
• Decision Date: 09 April 2021
• Docket Number: 2200051
• Parties: Jessie TOMPKINS v. WAL-MART ASSOCIATES, INC.
• Court: Alabama Court of Civil Appeals

336 So.3d 195

Jessie TOMPKINS

v.WAL-MART ASSOCIATES, INC.

2200051

Court of Civil Appeals of Alabama.

April 9, 2021

Jessie Tompkins, appellant, pro se.

Michael J. Cohan of Webster, Henry, Bradwell, Cohan, Speagle & DeShazo, P.C., Montgomery, for appellee,

PER CURIAM.

In February 2018, Jessie Tompkins, an assistant store manager employed by Wal-Mart Associates, Inc. ("Wal-Mart"), initiated, through an attorney (Cathy B. Donohoe), a civil action in the Montgomery Circuit Court seeking an award of benefits under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq. ("the Act"). In his complaint, Tompkins asserted that, while working within the line and scope of his employment, he had sustained two injurious events: one on October 5, 2014, in the form of a gunshot wound to his right shoulder and a torn meniscus in his knee

,¹ and another on May 10, 2016, in the form of a reinjury of his knee. Although claims under the Act are generally required to be filed "within two years" of the accident giving rise to the claimed work injury, see Ala. Code 1975, § 25-5-80, and the October 5, 2014, injuries asserted in Tompkins's complaint occurred more than two years before the complaint was filed, Tompkins's complaint asserted that he had "receiv[ed] ... [c]ompensation benefits" under the Act "through January 2017" and that the two-year period was thereby "tolled." See

id. (providing that, when "payments of compensation" have been made, "the period of limitation shall not begin to run until the time of making the last payment").

Wal-Mart filed a motion to dismiss, asserting that it had been misnamed in the complaint and that the statute of limitations in the Act "ha[d] expired as to any claims arising out of an accident of October 5, 2014." After a hearing had been set on that motion, Donohoe, acting on Tompkins's behalf, immediately amended the complaint to correct the misnomer and filed a response to the motion to dismiss in which she stated that "[t]he statute [of limitations] is tolled because [Tompkins] drew ... compensation checks until January of 2017." Wal-Mart then filed an "additional submission" supporting its motion to dismiss in which it asserted that, although the complaint had apparently been timely filed as to the May 10, 2016, injury, only one "compensation payment" for temporary-total-disability benefits "for the period of June 15, 2016 to July 5, 2016" had been paid to Tompkins, which payment occurred "after the second alleged accident and, in Wal-Mart's view, "clearly related" to a knee surgery Tompkins had undergone on June 20, 2016, rather than the October 5, 2014, accident. Wal-Mart thus contended in its "additional submission" that the two-year period specified in the applicable statute of limitations had, as to the claimed October 5, 2014, injuries, expired on October 5, 2016, because, Wal-Mart said, "[t]here [had been] no payment of compensation for that accident that would have" tolled the time for bringing an action as to those injuries, and it sought dismissal of any claims pertaining to "any injury of October 5, 2014." After that filing, Donohoe, acting on behalf of Tompkins, filed a response stating that "[t]here is no objection to dismissing the first ... claim date of 10/5/2014," which, the response said, "appears to only remain a medical case."

Counsel for Wal-Mart then submitted a proposed order, which the circuit court then executed and entered as its order on March 27, 2018, dismissing Tompkins's claims as to any injuries occurring on October 5, 2014, but denying Wal-Mart's motion to dismiss as to claims as to any May 10, 2016, injury. Notably, the circuit court did not direct the entry of a final judgment as to its March 27, 2018, order. Thus, pursuant to Rule 54(b), Ala. R. Civ. P., that order remained "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

In December 2018, the circuit court set the case for a trial to be held on March 28, 2019. However, on January 4, 2019, the circuit court ordered the case to mediation that was to be held within 60 days of the entry of that order. See Ala. Code 1975, § 6-6-20(b)(3) (indicating that "the trial court may, on its own motion, order mediation"). It does not appear, however, that that contemplated mediation ever took place because Donohoe, acting on behalf of Tompkins, filed a motion on February 20, 2019, stating that the parties had reached a settlement and requesting what was termed a "walk-through settlement hearing" to be held on February 26, 2019, to obtain judicial approval thereof. See generally Ala. Code 1975, § 25-5-56 (requiring judicial approval of settlements "for an amount less than the amounts and benefits stipulated in" the Act). The circuit court then set the matter for a settlement conference in open court to be held on February 26, 2019.

Although Tompkins was represented by counsel, he filed, on February 25, 2019, a "Motion to the Court and Notice of Fraud" in which he purported to assert that the circuit court had been "misinformed" about the statute-of-limitations issue, that Wal-Mart had made payments to him under the Act through March 2018, and that Wal-Mart had refused to provide him with a "panel of four" physicians to evaluate his health (see generally Ala. Code 1975, § 25-5-77(a) (setting forth procedure whereby employee, if he or she is dissatisfied with employer's chosen treating physician "and if further treatment is required," shall be entitled to select a replacement physician from a list of four physicians supplied by the employer)); he also filed an affidavit in which he indicated that he had not agreed to any settlements regarding his claims. The circuit court entered an order on February 26, 2019, setting a new trial date of April 29, 2019, and, on March 27, 2019, it granted a motion that Donohoe had filed seeking withdrawal from representation of Tompkins.

On April 4, 2019, another attorney, William K. Abell, appeared in the case as counsel for Tompkins, and Abell filed a motion to continue the scheduled trial to a later date, which was granted; the circuit court granted a further continuance on the parties’ joint motion in June 2019. In July 2019, Abell, on behalf of Tompkins, filed a motion to amend the complaint to state a claim relating to a back injury that, "combined with previous conditions," it was alleged, had rendered Tompkins permanently and totally disabled. The circuit court granted that motion to amend.

However, on August 7, 2019, Tompkins, despite Abell's having appeared as counsel on his behalf, filed a document purporting to state objections to the amendment of the complaint and purporting to seek reinstatement of the claims in the original complaint pertaining to the alleged October 5, 2014, injuries. Abell then filed, on August 8, 2019, a motion seeking to withdraw from his representation of Tompkins, but Abell also requested in that motion a "hearing relative to all pending matters" then before the circuit court.² Although the circuit court had summarily allowed Donohoe to withdraw, that court did not immediately act on Abell's motion to withdraw but, instead, set the case for a hearing on pending motions. Wal-Mart filed a response to the August 7, 2019, filing by Tompkins in which Wal-Mart contended, notwithstanding the provisions of Rule 54(b), Ala. R. Civ. P., that the March 27, 2018, order dismissing the claims pertaining to the alleged October 5, 2014, injuries was final and could not be revived under Rule 60(b), Ala. R. Civ. P. In contrast, Abell filed a response positing, among other things, not only that Tompkins had given express consent for the complaint to be amended to assert a back-injury claim, but also that the March 27, 2018, order had been erroneous under Jackson v. Delphi Automotive Systems, 42 So. 3d 1264 (Ala. Civ. App. 2010), because, Abell said, Tompkins had been allowed to work at light-duty tasks after his 2014 injuries.

The scheduled hearing on "all pending matters" was continued from its original setting on several occasions at the request of Wal-Mart, at the request of Abell, and on the circuit court's own motion. Meanwhile, Tompkins, again without regard to his represented status, continued to file motions in the case, such as an August 29, 2019, motion "to compel production of documents" from Wal-Mart and third parties, a November 14, 2019, motion seeking a finding of contempt against Wal-Mart, and a November 14, 2019, motion seeking "emergency medical treatment." For all that we can perceive of the events in the underlying case, none of those motions appears to have been acted on by the circuit court, or even to have been treated by that court as properly before it.³ In addition, Tompkins filed a notice of appeal on January 6, 2020, asserting that the circuit court had, via "operation of law," denied the August 29, 2019, "motion to compel production of documents." This court dismissed Tompkins's appeal⁴ on the basis that it had not been taken from a final judgment (see Ala. Code 1975, § 12-22-2 ); this court's certificate of judgment was issued on March 16, 2020.

After the case had returned to the circuit court, and Wal-Mart had filed responses to the motions filed by Tompkins on August 29, 2019, and November 14, 2019, Tompkins filed additional documents in the case despite the circuit court's not having relieved Abell of his representation of Tompkins. Those documents included a "motion to show cause" seeking substantially the same relief as in previous filings and a purported amendment to the complaint to add additional claims against Wal-Mart, as well as claims against Donohoe, Abell, and Richard Franklin Mathews, Jr., a third attorney who had apparently been employed by Tompkins before the action was commenced in February 2018. On July 9, 2020, Wal-Mart filed a response to the new "motion to show cause" generally denying that any relief was due to be...