Winn-Dixie Montgomery, LLC v. Purser

• Decision Date: 04 April 2014
• Docket Number: 2120701.
• Citation: 154 So.3d 1025
• Parties: WINN–DIXIE MONTGOMERY, LLC v. Richard PURSER.
• Court: Alabama Court of Civil Appeals

154 So.3d 1025

WINN–DIXIE MONTGOMERY, LLC

v.Richard PURSER.

2120701.

Court of Civil Appeals of Alabama.

April 4, 2014.

John R. Bradwell of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellant.

J. Keith Carder of Carder Law Firm LLC, Birmingham, for appellee.

On Application for Rehearing

THOMPSON, Presiding Judge.

The memorandum affirmance of October 25, 2013, is withdrawn, and the following is substituted therefor.

On June 5, 2012, Richard Purser filed in the Jefferson Circuit Court (“the trial court”) an action seeking workers' compensation benefits from his employer, Winn–Dixie Montgomery, LLC (“Winn–Dixie”), for an injury he claimed he suffered during the course of his employment. Winn–Dixie answered and denied liability.

In October 2012, Purser filed a motion seeking a hearing on the issue of the compensability of his claimed injury. In that motion, Purser alleged that Winn–Dixie had refused to pay him temporary-disability benefits and had refused to pay his medical expenses. The trial court granted that motion and scheduled a hearing for December 13, 2012.

The trial court conducted an ore tenus hearing on December 13, 2012, at which, according to the trial court's order, Purser testified. In addition, during that ore tenus hearing, the trial court admitted a number of exhibits into evidence. The transcript of the December 13, 2012, hearing is not contained in the record on appeal.

On January 10, 2013, the trial court entered an order in which it found, among other things, that Purser's injury arose out of and in the course of his employment, that Winn–Dixie was responsible for the payment of reasonable and necessary medical treatment for Purser's injury, and that Purser was entitled to temporary-total-disability benefits. See Belcher–Robinson Foundry, LLC v. Narr, 42 So.3d 774, 776 (Ala.Civ.App.2010) (holding that there existed a final judgment when the trial court's order determined “that the employee's accident arose out of and in the course of his employment, that the employer was responsible for the employee's medical treatment, and that the employer was responsible for payment of temporary-total-disability benefits”). Winn–Dixie filed a postjudgment motion that was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Winn–Dixie timely appealed.

Winn–Dixie asserts three main issues on appeal, one of which contains numerous subparts. Winn–Dixie contends that the medical exhibits that Purser submitted to the trial court were not properly authenticated, that Purser failed to prove legal and medical causation, and that the trial court erred in awarding Purser temporary-total-disability benefits. However, as is explained below, either this court is unable to consider those arguments or the arguments do not provide a legal basis on which to reverse the trial court's judgment.

The record on appeal contains no transcript of the ore tenus hearing. Winn–Dixie has represented to this court that the ore tenus hearing was not transcribed. Neither party has submitted a Rule 10(d), Ala. R.App. P., statement of the evidence to this court. See Rule 10(d), Ala. R.App. P. (“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection.”).

“ ‘ “ ‘This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.’ The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal.” ' White v. Riley Constr., Inc., 745 So.2d 877, 879 (Ala.Civ.App.1999) (quoting Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala.1997) ); see also Martin v. Martin, 656 So.2d 846, 848 (Ala.Civ.App.1995) (‘An error asserted on appeal must be affirmatively demonstrated by the record, and if the record does not disclose the facts upon which the asserted error is based, such error may not be considered on appeal.’).”

Kimbrough v. Kimbrough, 963 So.2d 662, 665–66 (Ala.Civ.App.2007).

In this case, the trial court received ore tenus evidence that is not contained in the record on appeal. Accordingly, this court must assume that the evidence that is not contained in the record on appeal is sufficient to support the trial court's order. Elliott v. Bud's Truck & Auto Repair, 656 So.2d 837, 838 (Ala.Civ.App.1995) (“Where the trial court hears oral testimony, and that testimony is not in the record on appeal, either in a transcript or summarized in a Rule 10(d) statement, it is conclusively presumed that the testimony is sufficient to support affirmance.”). Thus, because of the lack of a transcript of the ore tenus hearing before the trial court, this court is unable to determine whether the multiple arguments Winn–Dixie asserts on appeal concerning the admissibility of certain evidence were presented to the trial court and, if so, whether Winn–Dixie timely objected to the admission of that evidence. Ex parte Coulliette, 857 So.2d 793, 794–95 (Ala.2003) (explaining the necessity of a timely objection to put the trial court on notice of any error to be corrected); Elliott v. Bud's Truck & Auto Repair, 656 So.2d at 838 (“Th[ese] issue[s], and others, simply cannot be addressed by this court, because of the inadequacy of the record.”).

In Kimbrough v. Kimbrough, supra, because of the inadequacy of the record, this court rejected an argument asserted by the father in that case that he was denied his right to counsel. This court concluded that it was “unable to determine from the limited record before us whether the father requested appointed counsel or whether the father proved that he was indigent. We cannot assume that the trial court erred when error is not apparent from the record.” 963 So.2d at 666.

As in Kimbrough, this court is unable to determine in this case whether Winn–Dixie asserted before the trial court the various arguments pertaining to the admissibility of certain evidence that it includes in its briefs submitted to this court.¹ “ ‘This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.... The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal.’ ” Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala.1997) (quoting Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1993) ), overruled on other grounds, Ex parte Quality Casualty Ins. Co., 962 So.2d 242 (Ala.2006) ; and Kimbrough v. Kimbrough, supra. “The record does not reveal any error, and, thus, we cannot conclude that the trial court committed error.” Kimbrough v. Kimbrough, 963 So.2d at 665–66. See also Drummond Co. v. Lolley, 786 So.2d 509, 511 (Ala.Civ.App.2000) (“[The appellant] has the burden to provide this court with a record containing sufficient evidence to warrant reversal. Gotlieb v. Collat, 567 So.2d 1302 (Ala.1990). The record cannot be changed, altered, or varied on appeal by statements in briefs. Id. ”).

Out of an abundance of caution, we note that we have considered whether some of the arguments Winn–Dixie has asserted on appeal could be said to be legal arguments, therefore making the absence of a transcript of the hearing below immaterial.² Winn–Dixie argues that Purser did not present medical evidence of medical causation.³ It is true that Purser did not present any evidence from a doctor stating that his injury was caused by his job. However, such expert medical evidence was not required for the trial court to determine that Purser had established medical causation. In Chadwick Timber Co. v. Philon, 10 So.3d 1014, 1019–21 (Ala.Civ.App.2007), this court discussed the requirement that a worker claiming workers' compensation benefits present evidence of medical causation. In short, this court held that expert testimony is not required to demonstrate medical causation but that the overall substance of the evidence must establish that the injury was caused by the employment. Evidence indicating merely a possibility that the employment caused the injury is not sufficient. Id. Purser provided evidence to the trial court that Winn–Dixie has failed to include in the record on appeal, and, therefore, this court must presume that the overall substance of that evidence was sufficient to meet the requirements for evidence of medical causation.⁴

Winn–Dixie also contends that the trial court erred in awarding temporary-total-disability benefits; once again, to the extent that Winn–Dixie challenges whether the evidence supports that award, this court is unable to review that issue because of the evidence omitted from the record. As part of its argument on the award of temporary-total-disability benefits, however, Winn–Dixie also argues that the trial court erred in not specifically setting forth the exact amount of the disability payments for which it is responsible. In support of this argument, Winn–Dixie cites only Weaver v. Pilgrim's Pride Corp., 106 So.3d 417, 419–20 (Ala.Civ.App.2012). In that case, this court held that the workers' compensation judgment at issue did not satisfy the requirement that the judgment substantially comply with § 25–5–88, Ala.Code 1975; that section requires that a workers' compensation judgment contain findings of fact and conclusions of law. In Ex parte Curry, 607 So.2d 230, 232 (Ala.1992), our supreme court held that substantial compliance with § 25–5–88 is sufficient and that, in the absence of detailed factual findings, an appellate court may look at the evidence to determine whether the trial court's judgment should be affirmed. In this case, the trial court's order contains a number of factual findings detailing the nature of Purser's injury and the dates on which Purser was out of work and seeking medical treatment after the denial of his workers' compensation claim.⁵ That order also makes factual findings supporting the determination...