author: HOUSTON, Justice.

text:
    Ex parte PERFECTION SIDING, INC. and Ex parte Dennis Hall and Russ Lewis. (In re Chris Sealy v. Perfection Siding, Inc., et al.)
    1021363 and 1021369.
    Supreme Court of Alabama.
    Nov. 7, 2003.

      Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville, for petitioner Perfection Siding, Inc.
    David A. Hughes of Watson, deGraffen-ried, Hardin & Tyra, LLP, Tuscaloosa, for petitioners Dennis Hall and Russ Lewis.
    Robert F. Prince and R. Matt Glover of Prince Patterson Law Firm, P.C., Tuscaloosa, for respondent.
    Charles H. Clark, Jr., and Michelle K. Pieroni of Huie, Fernambucq & Stewart, LLP, Birmingham, for amicus curiae Alabama Home Builders Self Insurers Fund, in support of the petitioner, Perfection Siding, Inc.
    Gregory C. Cook and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for amicus curiae Alabama Council of Associated Workers’ Compensation Self-Insurers’ Funds, in support of the petitioner, Perfection Siding, Inc.
   HOUSTON, Justice.

Perfection Siding, Inc. (“Perfection”), and Dennis Hall and Russ Lewis (hereinafter collectively referred to as “the petitioners”) petition for a writ of mandamus directing the Hale Circuit Court to transfer the underlying action to the Tuscaloosa Circuit Court and to dismiss one of the claims. We deny the petitions.

I. Facts and Procedural History

Chris Sealy filed a complaint in the Hale Circuit Court, seeking damages for injuries he sustained in a fall from the roof of a building in Tuscaloosa County. Sealy alleges that he sustained his injuries while he was an employee of Perfection, which, at the time of Sealy’s fall, was performing subcontracting work for Bill Lunsford Construction, Inc. Sealy sued Perfection and Lunsford Construction, as well as Hall and Lewis (Sealy’s supervisors at Perfection), seeking damages based on negligence and negligent hiring or contracting. Sealy also sought damages from the petitioners for intentionally failing to provide a safe workplace, and Sealy sought workers’ compensation benefits from Perfection.

The defendants moved to transfer the case to Tuscaloosa County, either because venue in Hale County was improper or, in the alternative, because the doctrine of forum non conveniens mandated a transfer to Tuscaloosa County. The trial court denied the motions; the petitioners now petition for a writ of mandamus ordering the trial judge to transfer the case and to dismiss the claim against Perfection alleging intentional failure to provide a safe workplace.

II. Standard of Review

“ ‘The question of proper venue for an action is determined at the commencement of the action.’ ” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002)(quoting Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001)). If venue is improper at the outset, then upon motion of the defendant, the court must transfer the case to a court where venue is proper. Ex parte Pike Fabrication, 859 So.2d at 1091 . If the defendant’s motion is denied, then the defendant is entitled to seek review of this decision by petitioning for a writ of mandamus. Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000).

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue. Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002). Also, in considering such a mandamus petition, this Court is limited to those facts that were before the trial court. Ex parte Pike Fabrication, 859 So.2d at 1091.

III. Analysis

A. Venue

Section 6-3-7('a), AJa.Code 1975, provides the following rules concerning venue in an action against a corporation:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or- omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business at the time of the accrual of the cause of action.”

The petitioners are all residents of Tuscaloosa County. Sealy- is a resident of Hale County. It is undisputed that a substantial part of the events giving rise to the claim occurred in Tuscaloosa County, which is also where the principal office of Perfection is located. Therefore, Tuscaloosa County is a proper venue under both subsections (a)(1) and (2). Because Sealy resided in- Hale County when the cause of action arose, venue would be proper in Hale County under § 6-3-7(a)(3) if Perfection “does business by agent” in Hale County.

A critical distinction exists between corporate defendants currently doing business in a county (the test applied by subsection (a)(3)) and those that formerly did business in the county (the test applied only when venue is proper in no other county). As this Court has said, “isolated transactions in the past are inconclusive in determining venue.” Ex parte Pike Fabrication, 859 So.2d at 1093 (emphasis added). Here we are concerned only with whether Perfection can fairly be said to be conducting business currently in Hale County.

In addition, our holdings make clear that a corporation “does business” under the statute if, “ ‘ “with some regularity, it performs there some of the business functions for which it was created.” ’ ” Ex parte Pike Fabrication, 859 So.2d at 1093 (quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, 619 So.2d 1356, 1358 (Ala.1993)). We have found pretransaction inquiries within a county to be an insufficient basis for placing venue there, Ex parte Pike Fabrication, 859 So.2d at 1093, because business inquiries are essentially an “exercise of corporate powers incidental to ... corporate business functions.” Ex parte Scott Bridge Co., 834 So.2d at 81. However, regularly performing the work for which the company exists is the exercise of its business functions, and would therefore fall within the ambit of “doing business” within a county. Id. at 82.

Of the approximately 1,000 jobs Perfection performs annually, only two or three were located in Hale County in the year Sealy sustained his injuries. However, the trial judge could have determined that Perfection was doing business in Hale County in the present, not the past, primarily because Perfection’s work there was performed within the same calendar year as Sealy sustained his injuries. Whether Sealy was assigned to work those particular jobs, however, is not relevant for purposes of determining venue. What is relevant is that the petitioners were carrying out their essential business function — contract siding jobs — within Hale County.

Proper resolution of this case hinges on whether Perfection does business with any “regularity” sufficient to justify venue in Hale County. Perfection states that its only connection to Hale County is the performance of two or three jobs in that county in the year of Sealy’s injuries, all for a long-time customer who is from Tuscaloosa County. The petitioners compare this case to Ex parte SouthTrust Bank, supra. In that case, SouthTrust lent money to the plaintiffs son, a college student in Tuscaloosa. The plaintiff was a resident of Montgomery who cosigned on his son’s loan and subsequently sued SouthTrust in Montgomery. This Court issued a writ of mandamus ordering the case transferred to Tuscaloosa County, because the only connections SouthTrust had to Montgomery were its activities related to this loan and another loan made to a state legislator who represented Tuscaloosa but had a home in Montgomery. Ex parte South-Trust Bank, 619 So.2d at 1359.

Both Ex parte SouthTrust Bank and the present case concern customers located in one county whose business transactions cross county lines. Moreover, SouthTrust Bank involved an action by the very plaintiff providing much of the bank’s connection to Montgomery County, yet this Court determined that that connection was still too tenuous to make venue proper in Montgomery County. However, in South-Trust Bank, there was merely “contact” with Montgomery County, not physical presence or the performance of services within the county. 619 So.2d at 1359-60. We find it meaningful that Perfection actually performed services in Hale County.

Under our standard of review, we simply cannot hold that the trial court exceeded its discretion in denying the motion to transfer the case to Tuscaloosa County. Thus we deny the petition insofar as it requests us to order the trial court to transfer the case to Tuscaloosa County on the basis that venue in Hale County is improper. Because of our resolution of this issue, we need not discuss whether venue in Hale County is also proper as to Lunsford Construction.

However, this conclusion does not end our inquiry. The petitioners alternatively move for a change of venue to Tuscaloosa County based upon the doctrine of forum non conveniens. Section 6-3-21.1(a), Ala.Code 1975, states, in pertinent part:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

When venue is appropriate in more than one county, the plaintiffs choice of venue is generally given great deference. Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala.1994). However, where the defendant presents evidence indicating that the chosen venue will be inconvenient for him, the trial court has the discretion to transfer the case to a more convenient forum. The purpose of the doctrine of forum non conveniens is to “prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995); Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991). The burden of proof in seeking a transfer under this doctrine rests squarely on the shoulders of the defendant. Ex parte New England Mut. Life Ins. Co., 663 So.2d at 956. The defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiffs right to choose the forum; that is, the defendant must suggest transfer to a county that is “significantly more convenient” than the county in which the action was filed. Id.

While we certainly agree with Perfection that it is inconvenient to litigate in Hale County as opposed to Tuscaloosa County, we do not find Tuscaloosa County to be “significantly more convenient” than Hale County. Hale County and Tuscaloosa County adjoin one another, unlike the situation in Ex parte New England Mutual, where the trial court transferred the action from Barbour County to Montgomery County. Moreover, Sealy is a resident of Hale County and claims that he intends to call as witnesses Hale County residents who are former employees of Perfection. Perfection’s place of business in Tuscaloosa County .is approximately 20 minutes from the Hale County courthouse in Greensboro. This does not appear to be a situation where the petitioners will be inconvenienced simply by crossing the county line. Therefore, this case is not one that warrants a transfer under the doctrine of forum non conveniens.

B. Intentional Failure to Provide a Safe Workplace

Count two in Sealy’s complaint alleges that the petitioners failed to provide him with a safé workplace. Since Sealy filed his complaint, this Court has decided Ex parte Progress Rail Services Corp., 869 So.2d 459 (Ala.2003), which, according to Sealy’s attorney, makes Sealy’s claim difficult to maintain. Sealy’s attorney wrote a letter to the trial court stating that “plaintiff, Sealy, does not object to Count 2 of the complaint being dismissed with prejudice.”

The trial court has not dismissed that count of the complaint despite the letter from Sealy’s attorney. The petitioners ask us to review this failure to dismiss the count. However, the petitioners and Sealy are free to sign a stipulation of dismissal under Rule 41(a)(1)(h), Ala. R. Civ. P., a method procedurally more proper than seeking the extraordinary remedy of a writ of mandamus. Therefore, we decline to issue the writ as to the trial court’s failure to dismiss the claim alleging intentional failure to provide a safe workplace.

PETITIONS DENIED.

SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., concurs in the result.

      . A third petition for a writ of mandamus, case no. 1021862, was consolidated with these two petitions. The parties in that case have informed this Court that the trial court has entered 'an order dismissing the claim against Construction Claims Management, Inc., the petitioner in case no. 1021862. This Court is today dismissing that petition as moot by a separate order.

        . The lack of specificity as to the nature of the expected testimony in Sealy's reference to the necessity for calling witnesses who reside in Hale County is problematic. In .Ex parte Wiginton, 743 So.2d 1071, 1076 (Ala.1999), we discussed the necessity for "a showing on the general nature of the witnesses’s testimony” but declined to reverse a transfer order where an objection challenging specificity was not raised below. The petitioners here stress the importance of their witnesses and describe the universe of witnesses as "all known persons” who witnessed the accident but do not attack the generality of Sealy’s statement regarding the necessity for calling the witnesses who reside in Hale County.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    ELIZABETH HOMES, L.L.C. v. Roy G. GANTT and Patty R. Gantt.
    1021661.
    Supreme Court of Alabama.
    Nov. 7, 2003.

      Mark D. Ryan, Bay Minette, for appellant.
    Submitted on appellant’s brief only. '
   STUART, Justice.

Elizabeth Homes, L.L.C., appeals from the trial court’s denial of its motion to compel arbitration. We reverse and remand.

Background

Elizabeth Homes, an Alabama limited liability company, is in the business of constructing single-family, semicustom residential structures. Customers of Elizabeth Homes select a design from the house plans available; according to Elizabeth Homes, the customers are then allowed .to modify those plans to meet their individual needs and tastes.

Roy G. Gantt and Patty R. Gantt are residents of Elmore County. On or about March 7, 2001, they contracted with Elizabeth Homes for the construction of an “Ambassadore” style house on property the Gantts owned in Wetumpka. The Gantts agreed to pay Elizabeth Homes $76,500 for the construction of the house. The Gantts entered into a purchase agreement with Elizabeth Homes; that agreement contained the following language:

“Company and Purchaser acknowledge that this agreement necessarily, involves interstate commerce by virtue of the materials and components contained in the dwelling and each of the undersigned hereby agrees to arbitrate any and all disputes arising under this agreement and to be bound by the decision of the arbitrator which shall be conducted pursuant to the Construction Industry Rules of the American Arbitration Association.”

Elizabeth Homes provided a one-year warranty on its construction.

Elizabeth Homes completed the Gantts’ house in December 2001. In June 2002, the Gantts notified Elizabeth Homes of numerous defects and deficiencies in the house. The Gantts allege that Elizabeth Homes failed to repair the defects properly and that many of the defects cannot be repaired.

On January 16, 2003, the Gantts sued Elizabeth Homes, James D. Flanagan, and Carl Smith in the Elmore Circuit Court, alleging breach of warranty, negligence and/or wantonness, fraudulent misrepresentation, breach of contract, breach of an implied warranty of habitability, unjust enrichment, and breach of implied duties, of good faith and fair dealing.

Elizabeth Homes filed a motion seeking to enforce the Gantts’ agreement to arbitrate “any and all disputes arising under” the purchase agreement. In support of that motion, Elizabeth Homes submitted a copy of the Gantts’ purchase agreement, the affidavit of Earnest Dean, the president of Greenville Cash & Carry, Inc., and the affidavit of James D. Flanagan.

Dean testified as follows in his affidavit:

“Elizabeth Homes purchases the majority of its building supplies from Greenville Cash & Carry, Inc. Subsequent to entering into a home-building contract with its clients, an agent of Elizabeth Homes faxes an order for the specific building supplies necessary to complete each contract to my store. Upon receipt of said order, a Buyer employed by Greenville Cash & Carry, Inc. arranges with the necessary suppliers to deliver the specified materials to Greenville Cash & Carry, Inc., solely for purchase and use by Elizabeth Homes. These materials are specially ordered for Elizabeth Homes and, thus, do not become part of Greenville Cash & Carry, Inc.’s general inventory.”

In his affidavit, Dean also identified the components ordered by Greenville Cash & Carry from out-of-state suppliers for Elizabeth Homes; those components include flooring, decking, and plasterboard. Other components Dean ordered from out-of-state suppliers specifically for the Gantts’ house included roofing materials, windows, exterior insulation, shutters, lumber, and metals.

Flanagan, the managing member of Elizabeth Homes, testified in his affidavit that the total expenses, including all materials and labor, incurred by Elizabeth Homes for constructing the Gantts’ house was $61,443.76. According to Flanagan, the materials obtained by Greenville Cash & Carry from out-of-state sources represented 15% of that total expense. Flanagan also testified that the total expense for materials, excluding labor, used in the Gantts’ house was $29,485.65. According to Flanagan, the materials obtained by Greenville Cash & Carry from out-of-state sources totaled 31% of that amount.

The Gantts opposed the motion to compel arbitration, arguing that, under Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), their transaction with Elizabeth Homes did not involve interstate commerce.

On May 27, 2003, the trial court denied Elizabeth Homes’ motion. Elizabeth Homes appeals pursuant to Rule 4(d), Ala. R.App. P.

Standard of Review

“This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. ‘[Ajfter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).

Analysis

On June 2, 2003, the United States Supreme Court in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 2040, 156 L.Ed.2d 46 (2003), rejected the test set out in Sisters of the Visitation. The Alafabco Court stated:

“We have interpreted the term ‘involving commerce’ in the FAA [Federal Arbitration Act] as the functional equivalent of the more familiar term ‘affecting commerce’ — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Allied-Bruce Terminix Cos. [v. Dobson], 513 U.S. [265], at 273-274 [(1995)]. Because the statute provides for the ‘enforcement of arbitration agreements within the full reach of the Commerce Clause,’ Perry v. Thomas, 482 U.S. 483, 490 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’ — that is, ‘within the flow of interstate commerce,’ Allied-Bruce Terminix Cos., supra, at 273 (internal quotation marks, citation, and emphasis omitted).
“The Supreme Court of Alabama was therefore misguided in its search for evidence that a ‘portion of the restructured debt was actually attributable to interstate transactions’ or that the loans ‘originated out-of-state’ or that ‘the restructured debt was inseparable from any out-of-state projects.’ [Alafabco v. Citizens Bank, 872 So.2d 798, 805 (Ala.2002)]. Such evidence might be required if the FAA were restricted to transactions actually ‘ “in commerce,” ’ Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-196 (1974), but as we have explained, that is not the limit of the FAA’s reach.
“Nor is application of the FAA defeated because the individual debt-restructuring transactions, taken alone, did not have a ‘substantial effect on interstate commerce.’ [872 So.2d at 803.] Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948). See also Perez v. United States, 402 U.S. 146, 154 (1971); Wickard v. Filburn, 317 U.S. 111, 127-128 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U.S. 183, 196-197, n. 27 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-38 (1937).”

Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040.

Thus, in light of Alafabco, we no longer apply the “substantial impact on interstate commerce” test adopted in Sisters of the Visitation, supra. As the United States Supreme Court stated, the Federal Arbitration Act is triggered even in “ ‘individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ ” Alafabco, 539 U.S. at 56, 123 S.Ct. at 2040. Therefore, “[a] ‘party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract involves a transaction affecting interstate commerce.’ ” Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001) (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)).

In this case, Elizabeth Homes established the existence of an agreement calling for arbitration. Elizabeth Homes also established that the transaction at issue — the construction and sale of the Gantts’ house — -involved interstate commerce. The Gantts have not produced sufficient evidence to refute this showing.

We therefore reverse the order of the trial court denying arbitration, and we remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, and HARWOOD, JJ., concur.

      . James D. Flanagan is the managing member of Elizabeth Homes, L.L.C. He is identified in the complaint as "Jimmy Flanagan”; he is identified in the record as "James D: Flanagan, Jr.”

      . The complaint identifies Carl Smith as a domestic corporation doing business in El-more County. However, Elizabeth Homes identifies Carl Smith as the office manager for Elizabeth Homes. (Elizabeth Homes’ brief at p. 4.)

      . The trial court's order was initially dated February 27, 2003. The trial court subsequently corrected this date to May 27, 2003.

      . The Gantts’ only argument to the trial court was that the transaction did not meet the interstate-commerce requirement. They did not file a brief with this Court.


author: BROWN, Justice.

text:
    Anthony HARRELSON v. R.J., individually and as mother and next friend of J.B.
    1012233.
    Supreme Court of Alabama.
    Nov. 7, 2003.

      James C. Powell of James W. May & Associates, P.C., Foley, for appellant.
    Richard D.C. Nix of Nix & Nix, Evergreen, for appellee.
   BROWN, Justice.

Anthony Harrelson appeals from the Co-necuh Circuit Court’s judgment, entered on a' jury verdict, in favor of R. J., individually and as mother and next friend of J.B. We affirm.

Facts and Procedural History

The evidence at trial revealed the following facts. On Sunday, March 14, 1999, R.J. allowed her 15-year-old daughter, J.B., to spend the night with J.B.’s 15-year-old friend, M.B., after the two had returned from a weekend ROTC meet. At that time, M.B. lived with her mother and with' her stepfather, Anthony Harrelson. The girls spent the afternoon at home with Anthony while M.B.’s mother was at work. After M.B.’s mother came home, M.B. and J.B. asked M.B.’s mother and Anthony if they could have a wine cooler that was in the refrigerator. M.B.’s mother and Anthony said no, and the girls did not ask about it again.

Later that night, M.B.’s mother and Anthony went to a nightclub to celebrate Anthony’s birthday, leaving M.B. and J.B. alone in the house. The girls spent the evening watching television, talking on the telephone, and using the computer. Eventually, they went to sleep in M.B.’s bed, which was positioned under the window in her bedroom. M.B. testified that she always locked her bedroom door before going to sleep at night, and that when she and J.B. went to sleep, her bedroom door was locked.

In the early morning hours of March 15, 1999, M.B. and J.B. were awakened when Anthony tapped on M.B.’s bedroom window. Anthony told M.B. that he and her mother were locked out of the house. Apparently, MJB.’s mother was very intoxicated and had become ill in the car on the way home. M.B. got up and unlocked one of the doors for Anthony and her mother. When M.B. opened the door, her mother walked into the house and fell on the floor; eventually, she got up and went to bed. M.B’s mother testified that, after she went to bed, she did not awaken for the rest of the night.

M.B. went back to her bedroom, locked the door, and she and J.B. fell asleep. A short time later, the girls were awakened again when Anthony tapped on the window. M.B. opened the window, and Anthony began talking with them. At some point during the conversation, Anthony asked M.B. and J.B. if they wanted the wine cooler that was still in the refrigerator. Anthony gave them the wine cooler through the window and M.B. and J.B. drank it. J.B. testified that while Anthony was talking to her through the window, she could tell that he had been drinking because she could smell alcohol and because he was talking and acting differently than he normally did. She said that Anthony told her that she was “hot,” and she believed that he was flirting with her. M.B. testified that she did not know what to think about Anthony’s demeanor toward J.B., but that the conversation made her uncomfortable. During the course of the conversation with Anthony, M.B. and J.B. each left the bedroom to go to the bathroom. J.B. was the last one to come back into the bedroom, and she did not lock the door.

After the girls finished the wine cooler, they passed the empty bottle back through the window to Anthony, who threw it into a nearby field. Anthony left to feed his pet wolves, and the girls closed the window and went back to sleep. J.B. testified that she was awakened a short while later by Anthony, who was standing over her and touching her. J.B. testified that Anthony got on top of her and held her breasts and kissed her thigh. J.B. testified that she was too shocked and too scared to scream and that she did not know what to do. She said that she tried to pretend that she was asleep and that she rolled over closer to M.B., hoping that Anthony would leave. She said that Anthony then touched her, inserted his fingers into her vagina, and made obscene requests of her. M.B. testified that she awoke when she heard Anthony making the obscene requests of J.B. M.B. then jumped out of bed, pretending that she thought that it was time to get up for school. M.B. said that she could see Anthony’s figure in her room and that she heard the sound of papers crinkling on the floor near her bed as he left the room.

After Anthony left, J.B. and M.B. both got out of bed. When J.B. told M.B. what Anthony had done, both girls started crying. They did not sleep for the rest of the night. The next day at school, J.B. told one of her teachers what had happened. The teacher insisted that J.B. inform the principal and assistant principal; she did so and the principal and assistant principal then contacted the Department of Human Resources (“DHR”). DHR interviewed J.B., M.B., M.B.’s mother, Anthony Har-relson, and R.J.

The State brought criminal charges against Anthony Harrelson. He was tried and convicted of sexual abuse in the second degree, a violation of § 13A-6-67, Ala. Code 1975, and a Class A misdemeanor. It is unclear from the record what, if any, sentence Anthony received as a result of the misdemeanor conviction.

On April 7, 1999, R.J., individually and as mother and next Mend of J.B., sued the Harrelsons. In her complaint, R.J. alleged assault and battery and the intentional infliction of emotional distress, i.e., the tort of outrage, against Anthony, negligence against M.B.’s mother, and loss of services of a child against Anthony and M.B.’s mother. The case was tried before a jury. At the close of the evidence, the trial court entered a judgment as a matter of law in favor of both defendants as to R.J.’s claim for loss of services of a child and in favor of M.B.’s mother as to R.J.’s negligence claim. M.B.’s mother was then dismissed from the action.

The assault-and-battery and tort-of-outrage claims were then submitted to the jury. The jury returned a verdict in favor of R.J. on both counts. The jury awarded R.J. $5,000 compensatory damages and $25,000 punitive damages on the assault- and-battery claim. The jury awarded R.J. $10,000 compensatory damages and $50,000 punitive damages on the tort-of-outrage claim. Anthony now appeals.

Discussion

I.

Anthony argues that the trial court erred in denying his motion at the close of the evidence for a judgment as a matter of law (“JML”) as to R.J.’s claim alleging the tort of outrage because, according to Anthony, R.J. failed to produce sufficient evidence to demonstrate that J.B. actually suffered severe emotional distress. Our standard of review for a motion for a JML is well settled:

“ ‘We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is “indistinguishable from the standard by which we review a summary judgment.” ’ Alabama Power Co. v. Aldridge, 854 So.2d 554, 560 (Ala.2002) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). ‘We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination.’ Id. (citing City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002)). ‘[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.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 837 (Ala.2003). Thus, in reviewing the evidence in this case, we construe most favorably to R.J. the facts and any reasonable inferences the jury could have drawn.

This Court, in 1980, recognized the tort of intentional infliction of emotional distress, or the tort of outrage, and defined the parameters for such an action:

“[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable, person could be expected to endure it. Any recovery ■must be reasonable and justified under
the circumstances, liability ensuing only when the conduct is extreme. Comment, Restatement [ (Second) of Torts ], supra, at 78 [ (1948) ]. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Comment (d), Restatement, supra at 72.”

American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). Furthermore, this Court explained:

“It should also be noted that this tort does not recognize recovery for ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ Comment, Restatement, supra, at 73. The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress.”

American Road Serv. Co., 394 So.2d at 364-65.

Thus, in order to prevail on her tort-of-outrage claim, R.J. was required to present substantial evidence indicating that Anthony’s conduct “(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.” Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041, 1043 (Ala.1993). On appeal, however, Anthony disputes only the third element of R. J.’s tort-of-outrage claim against him. Specifically, Anthony contends that because J.B. was able to complete high school and to join the military after the assault, she has failed to demonstrate that she suffered severe emotional distress as a result of Anthony’s actions. Despite Anthony’s contentions, however, R.J. has presented substantial evidence from which a jury could find that J.B. suffered severe emotional distress as a result of Anthony’s conduct.

First, R.J., J.B.’s mother, testified that before the assault, J.B. did not easily show her emotions; in fact, R.J. described J.B. as “tough.” However, according to R.J., after the assault J.B. became much more emotional, and she now cries much more often. Furthermore, R.J. said that she has noticed a change in J.B.’s demeanor around men. R.J. testified that J.B. now has more anger and “rebellion” toward men than R.J. had ever noticed J.B. exhibiting before the assault. R.J. further testified that she believes that J.B. now has problems trusting men.

J.B. likewise testified that after Anthony assaulted her, she became much more emotional and that she cries much more than she did before the assault. She testified that, for some time after the assault, which occurred around March 14 and 15, she would become hysterical around the 14th and 15th of each month. J.B. testified that she has been traumatized by the assault and that she has become a much more fearful person than she was before. She testified that although she has been to see “shrinks and stuff,” visits with mental health experts only made her feel worse. J.B. also testified that since the assault she has had nightmares.

In an attempt to show J.B.’s emotional state, R.J. introduced into evidence poetry written by J.B. J.B. testified that, although only three of the poems were introduced at trial, she had a box full of them at home. The three poems introduced at trial were written shortly after J.B. was assaulted. In the first poem, entitled “Help,” J.B. expresses feelings of guilt (“Someone help me see that I’ve done no wrong”) and indicates that she wants to die (“If any can hear my cry tell me the solution is not to die”). Furthermore, she clearly expresses feelings of hurt, pain, and anger toward Anthony (“I need to know how long I will hurt, ... I will continue to be in pain ....”; “help me tell that SOB to go straight to hell!”).

The second poem was written after J.B. had had a nightmare about seeing Anthony again. In that poem, J.B. wrote that she saw Anthony being taken to jail but that he then taunted her from his cell. The third poem again expresses J.B.’s fear while she was being assaulted, how she had tried not to let Anthony touch her, and her feelings of guilt at what had happened (“Don’t tell yourself ‘it’s all my fault’ be-, cause it’s not. You tried to keep your legs closed tight it’s all you could do, your [sic] too scared to put up a fight.”).

Thus, through J.B.’s testimony, J.B.’s poems expressing her feelings after the assault, and R.J.’s own testimony about J.B.’s behavior, R.J. produced evidence indicating that J.B. experienced severe emotional distress. Reviewing the evidence in a light most favorable to R.J., we conclude that she has produced evidence of such weight and quality that fair-minded persons in the impartial exercise of judgment could reasonably infer that J.B. had suffered emotional distress so severe that no reasonable person could be expected to endure it. Furthermore, other than his conclusory assertions that J.B. did not suffer severe emotional distress, Anthony provides no further facts or law to indicate that the trial court erred in denying his motion for a JML. Therefore, we affirm the trial court as to this issue.

II.

Anthony’s second argument is that the trial court erred in denying his motion to alter, amend, or vacate its judgment on the ground that the punitive damages were excessive. Specifically, Anthony alleges that the punitive-damages awards for the assault-and-battery and tort-of-outrage claims should be remitted because, he alleges, the ratio of the punitive damages to the compensatory damages is excessive, the punitive damages awarded will “result in [his] complete financial devastation,” he has been criminally sanctioned for his actions, and because of “the effect of other civil actions” on his case.

We apply a de novo standard to punitive-damages awards. See National Ins. Ass’n v. Sockwell, 829 So.2d 111, 185 (Ala.2002)(citing Acceptance Ins. Co. v. Brown, 832 So.2d 1 (Ala.2001)(citing in turn Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001))). Thus, the trial court’s findings as to the alleged ex-cessiveness of the punitive-damages awards carries no presumption of correctness. In BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the United States Supreme Court set out the .following “guideposts” for courts to follow in evaluating whether an award of punitive damages is excessive: 1) the degree of reprehensibility of the conduct, 2) the ratio of the punitive damages to compensatory damages, and- 3) sanctions for comparable misconduct.

First, it is undisputed that Anthony’s conduct was extremely reprehensible. “Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of the reprehensibility of the defendant’s conduct.” BMW, 517 U.S. at 575, 116 S.Ct. 1589 (footnote omitted). In this case, J.B., a 15-year-old, was staying- in Anthony’s house as a guest of Anthony’s 15-year-old stepdaughter. While J.B. was in Anthony’s home, Anthony, a married adult, gave J.B. alcohol and flirted with her. While J.B. was asleep in his stepdaughter’s bedroom, Anthony intentionally entered an area of the house he was not allowed to enter. He then approached J.B. while she was asleep next to his stepdaughter and molested her while making obscene requests of her. Anthony’s conduct was criminal in nature. Anthony’s assault on J.B. has affected her emotionally and has affected her relationships with others. The degree of reprehensibility of Anthony’s conduct factors in favor of no mitigation of the punitive-damages awards against him.

Second, the punitive damages in this case were five times the relatively low compensatory-damages award. Although Anthony argues that a 5:1 ratio is excessive when considered in conjunction with the other factors, he cites no legal authority to support that argument. This Court has refused to apply a rigid formula to or set an upper limit on the ratio of punitive damages to compensatory damages awarded by juries. See Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala.2001). In upholding, after remittitur, an award of $300,000 in compensatory damages and $2,000,000 in punitive damages, we stated, “The guaranty of due process does not require that this Court apply a mathematical formula to determine whether a punitive-damages award is excessive; therefore, a remittitur generally is not justified solely on the basis of a high ratio.” Orkin, 832 So.2d at 40 (citing Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 979 (Ala.1998)). Thus, a high ratio alone is generally not a basis for a remittitur.

Furthermore, Anthony must provide some legal basis for his allegation that the 5:1 ratio in this case is excessive. In State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 410, 123 S.Ct. 1513, 1524, 155 L.Ed.2d 585 (2003), the United States Supreme Court discussed ratios, noting that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution .... ” Although the 5:1 ratio in this case is not particularly high, the United States Supreme Court has noted that a greater ratio is permissible where “ ‘a particularly egregious act has resulted in only a small amount of economic damages.’ ” Id. (quoting BMW, 517 U.S. at 582, 116 S.Ct. 1589). Thus, the 5:1 ratio of the punitive-damages award to the compensatory-damages award in this particular case does not violate due process as guaranteed in the Fourteenth Amendment. Anthony’s bare assertions that the 5:1 ratio in this case is excessive, standing alone, do not factor in favor of a remittitur.

Finally, Anthony’s behavior is punishable by criminal statutes in the State of Alabama. Anthony’s conduct could have been prosecuted as assault, which is prohibited by §§ 13A-6-20 through -22, Ala. Code 1975, and is punishable by imprisonment and the imposition of fines. Anthony was convicted of sexual abuse in the second degree, a violation of § 13A-6-67, Ala. Code 1975. Although Anthony incurred “fines and court costs” that approximated $2,000, it is unclear from the record what part of that sum consisted of court costs and attorney fees and what part of the sum actually represented the criminal sanction. Furthermore, although sexual abuse in the second degree is punishable by imprisonment, it is unclear from the record what, if any, sentence Anthony received as a result of the misdemeanor conviction. Additionally, the trial court judge who presided over this civil action also presided over the criminal case against Anthony, and the record indicates that the judge took into account the damages awarded against Anthony in sentencing him in the criminal case. Thus, Anthony has not demonstrated that this factor weighs favorably in support of a remittitur of the punitive-damages awards.

In summary, Anthony has not demonstrated that he is entitled to a remittitur on the basis of the BMW factors. He does not dispute that his conduct in this case was reprehensible, he has not demonstrated that the ratio of punitive damages to compensatory damages is excessive, and the record is unclear as to what criminal sanctions he may have received.,

In Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), this Court set out the following seven factors for determining whether a jury’s award of punitive damages is excessive: 1) Whether the punitive-damages award bears a reasonable relationship to the actual harm or the harm likely caused, 2) the reprehensibility of the defendant’s conduct, 3) whether the defendant profited from the wrongful conduct, 4) the financial position of the defendant, 5) the costs of litigation, 6) criminal sanctions imposed, and 7) whether other civil actions have been brought against the same defendant for the same conduct. Because some of the factors do not apply to this case and because some of the factors are merely repetitive of the discussion of the BMW guidelines above, we address only the factors Anthony challenges in his appellate brief.

First, Anthony alleges that he is not in a financial position to pay the punitive-damages awards. The total punitive damages awarded on the assault-and-battery claim and the tort-of-outrage claim is $75,000. The record shows that Anthony’s federal income tax return for 2001 reported that he earned approximately $61,000 in gross income for that year. Furthermore, Anthony and M.B.’s mother own property in Conecuh County that was appraised for the purpose of property taxes in 2001 at approximately $150,000. Additionally, Anthony testified that someone had offered him $150,000 for the property, but that he turned the offer down because he wanted at least $200,000 for it. • Thus, the record simply does not support Anthony’s allegations that the punitive-damages awards against him “will result in complete financial devastation for which there can be no relief.”

Next, Anthony argues that the criminal sanctions against him should mitigate in favor of a remittitur., This issue was discussed extensively above; there is no need to repeat the discussion here.

Finally, Anthony argues that “the effect of other civil actions” should be considered in this case. We note, however, that there are no other civil actions in this case. Anthony seems to argue that, because R.J. was successful in bringing two separate claims against him — the assault-and-battery claim and the tort-of-outrage claim— the punitive-damages awards should.be remitted. Anthony’s legal argument as to this issue is unclear, and he has failed to cite any legal authority to support his assertions. Because it is not the function of this Court to create and research legal arguments for the parties, there is no need to address this issue further.

In summary, Anthony has failed to demonstrate that thp factors enumerated by this Court in Green Oil weigh in favor of a remittitur of the punitive-damages awards against him.

Conclusion

R.J. produced substantial evidence from which a jury could determine that J.B. suffered severe emotional distress as a result of Anthony’s conduct. Furthermore, Anthony has failed to demonstrate that, the guideposts set , out by . the United States Supreme Court in BMW and the factors set out by this Court in Green Oil weigh in favor of a mitigation of the punitive damages awarded against him. Anthony has failed to demonstrate any error by the trial court, and he fails to support many of his arguments with any legal authority. Therefore, we affirm the trial court’s judgment in favor of R. J.

AFFIRMED.

HOUSTON, SEE, HARWOOD, and STUART, JJ., concur.

      . In addition to testifying that she always slept with her bedroom door locked, M.B. and her mother testified that Anthony "was not allowed” in the back area of the house where M.B.'s bedroom was located. M.B. and her mother gave conflicting explanations for this rule.

      . At a hearing concerning his financial status, Anthony testified that he had incurred "fines and court costs” from his criminal trial and that these fines and court costs were “close to $2,000.”

      . Anthony styled his motion as a "motion for a directed verdict.” Rule 50, Ala. R. Civ. P., has been amended to rename the "motion for a directed verdict” a “motion for a judgment as a matter of law.” See Lyons v. Walker Reg’l Med. Ctr., 868 So.2d 1071, 1076 n. 1 (Ala.2003).


author: SEE, Justice.

text:
    Ex parte SEARS, ROEBUCK and CO. et al. (In re Sonya Salter v. Sears, Roebuck and Co. et al.).
    1020251.
    Supreme Court of Alabama.
    Nov. 14, 2003.
    Glenn E. Ireland, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioners.
    Michael Guy Holton, Pike Road, for respondent.
   SEE, Justice.

Sears, Roebuck and Co. and its employees Debbie McCariey, Frank Blankenship, and Larry Collins (hereinafter collectively “Sears”), the defendants in a civil action pending in the Jefferson Circuit Court, petition this Court for a writ of mandamus directing the trial court to vacate its order sanctioning Sears for violating the trial court’s discovery order. We deny Sears’s petition.

I.

The underlying dispute in this case involves a workplace injury a Sears employee, Sonya Salter, suffered on December 1, 2000. On October 3, 2001, Salter sued Sears, alleging fraud, concealment, misrepresentation, intentional infliction of emotional distress, and suppression arising from the injury to her right foot. Sears denied Salter’s claims and moved for a summary judgment.

On February 1, 2002, the trial court entered a scheduling order that provided that all discovery in Salter’s action was to be completed by March 31, 2002. On March 23, 2002, Salter- served' Sears with interrogatories and requests for the production of documents. On April 26, 2002, Sears responded to Salter’s discovery requests, objecting to the production of certain documents. Salter moved to compel Sears to produce the documents.

On May 10, 2002, the trial court denied Sears’s summary-judgment motion and granted Salter’s motion to compel. On May 17, Sears moved the trial court to certify its denial of Sears’s summary-judgment motion for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P. On May 20, Salter moved pursuant to Rule 37, Ala. R. Civ. P., to enforce the trial court’s discovery order, and on May 24, Sears moved for a protective order. On May 31, the trial court certified its denial of Sears’s summary-judgment motion for an interlocutory appeal, stayed the proceedings in the case except for discovery, denied Sears’s motion for a protective order, and ordered Sears to provide Salter with the requested discovery within 10 days.

Sears sought permission for an interlocutory appeal of the denial of its summary-judgment motion with this Court (case no. 1011723), but did not provide Salter with any of the requested documents pursuant to the trial court’s discovery order. On June 19, 2002, Salter again moved to compel production of the documents. On June 26, the trial court entered an order explaining that it did not stay discovery in its May 31, 2002, order. The trial court ordered Sears to provide Salter the requested discovery by July 1, 2002, and warned that it would sanction Sears by striking its pleadings if Sears failed to comply with the order.

On July 1, 2002, Sears filed with this Court an earlier petition for a writ of mandamus seeking protection from the discovery order (case no. 1011860). Sears also moved the trial court for a stay of discovery while its mandamus petition was pending. On July 19, 2002, this Court denied Sears’s petition for permission to take an interlocutory appeal, finding that the trial court’s certification failed to include a statement of the controlling issue of law, and it also denied Sears’s mandamus petition.

On July 25, 2002, Sears moved the trial court to amend its May 31 order to include a proper statement of the controlling issue of law, and to recertify its order for an interlocutory appeal. On August 26, the trial court denied Sears’s motion to.recer-tify its order. The trial court also struck Sears’s “pleadings as they relate to the fraud claims of [Salter]” as a sanction, because Sears had failed to comply with the July 1, 2002, discovery deadline.

Sears moved the trial court to reconsider the sanction it had imposed for Sears’s violation of its discovery order. The trial court conducted a hearing on the issue. On October 1, 2002, the trial court denied Sears’s motion to reconsider the discovery sanction. Sears now petitions this Court for a writ of mandamus ordering the trial court to vacate its order striking Sears’s pleadings as to Salter’s fraud claims.

II.

“This Court has on many occasions held that the trial courts have very broad discretion regarding discovery matters under Rule 26, [Ala.] R. Civ. P.” Hunt v. Window,, 604 So.2d 395, 397 (Ala.1992). Rule 37(b), Ala. R. Civ. P., also provides that a trial court may impose sanctions on a party for failure to comply with the court’s discovery orders. Sears does not dispute that it failed to comply with the trial court’s June 26, 2002, discovery order. The trial court acted within its discretion to impose sanctions; the only question before us is whether the sanction imposed is appropriate.

This Court last considered what constitutes an appropriate sanction for a discovery violation in Ex parte Seaman Timber Co., 850 So.2d 246 (Ala.2002). At that time, this Court stated:

“[T]he trial court in a discovery-abuse case must impose a sanction proportionate to and compensatory of the particular discovery abuse committed. Outright dismissal of the action is appropriate where the refusal to allow discovery is willful. A lesser sanction is appropriate where the conduct is not willful or the party accused of not complying with discovery was acting in good faith.”

850 So.2d at 258. As a sanction in this case, the trial court struck “[Sears’s] pleadings as they relate to the fraud claims of [Salter].” It is not immediately clear what the trial court intended the term “pleadings” to encompass.

In Sears’s answer to Salter’s complaint, Sears denied the material allegations Salter had made, while also asserting numerous affirmative defenses. Striking Sears’s denial would in effect mean that Sears conceded that all of Salter’s allegations of fraud are true, with the only remaining issue related to fraud being the amount of damages. Such a result would be overly harsh in light of the fact that Salter has suffered no legally cognizable prejudice as a result of Sears’s actions. Accordingly, it does not appear that the trial court intended its August 26 order to be construed that broadly. More likely, the trial court intended its order to strike one or more of Sears’s affirmative defenses, a sanction more appropriate and “proportionate to and compensatory of the particular discovery abuse committed.”

III.

Because Sears failed to comply with the trial court’s June 26, 2002, order to provide Salter with the requested discovery by July 1, the trial court judge was well within his discretion to sanction Sears for discovery abuse. Accordingly, we deny Sears’s petition for the writ of mandamus. However, the trial court’s August 26, 2002, order outlining the sanction is unclear; therefore, we leave it to the trial court to clarify what aspect of the “pleadings” it intended to strike.

PETITION DENIED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., concurs in the result.

      . Sears objected to the following requests by Salter:
      “Any and all reports ... made in the last 5 (five) years to the State of Alabama Department of Industrial Relations involving any and all injuries on Defendant Sears[’s] premises whether an injury to an employee or to any invitee.”
      “Any and all reports of the last 7 (seven) years to Defendant Searsjs] Workers’ Compensation Insurance carrier of any and all accidents or injuries with respect to Defendant Sears employees at the Sears Century Plaza location or other such location of Defendant Sears in the metropolitan Birmingham, Alabama vicinity.”


text:
    WAL-MART STORES, INC. v. Peter Gregory HEPP.
    1012237.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    See also 797 So.2d 475.

      Glenn E. Ireland and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Robert W. Lee and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellee.
   BROWN, Justice.

Wal-Mart Stores, Inc., petitioned this Court pursuant to Rule 5, Ala. R.App. P., for permission to appeal from the trial court’s denial of its motion for a summary judgment in this retaliatory-discharge case. We granted the petition, and we reverse and remand.

Facts and Procedural History

Peter Gregory Hepp was employed at a Wal-Mart discount department store as a manager in the “tire and lube express” service center. In November 1996, Hepp injured his back while on the job. He underwent back surgery and in November 1997 filed an action against Wal-Mart seeking workers’ compensation benefits. On June 8, 1998, the trial court approved a settlement agreement between Wal-Mart and Hepp.

Also on June 8, 1998, Randy Baggett, a district manager for Wal-Mart, received a report that Hepp had been dispensing freon without charging a fee for the service. Baggett investigated the claim, and learned that Hepp had dispensed freon into his personal vehicle and a vehicle belonging to an acquaintance. Hepp had not charged for the service and had not prepared service orders for the vehicles; Wal-Mart required that a service order be prepared for each vehicle brought in for servicing. On June 10, 1998, Hepp was terminated for violating the following policies: “(1) performing work (i.e. dispensing freon) at the Riverchase [tire and lube express service center], which ... was not allowed, (2) failing to write up a service report on a vehicle for which he provided service!,] and (3) performing service on a personal vehicle.”

Hepp filed for unemployment-compensation benefits with the Department of Industrial Relations (“DIR”) on June 28, 1998. On July 21, 1998, DIR denied Hepp benefits. Hepp appealed the denial to the appeals tribunal, as provided by Ala.Code 1975, § 25-4-91 and § 25-4-92, alleging that he was terminated because he had filed a workers’ compensation claim against Wal-Mart, which had recently been settled.

A hearing was held on Hepp’s appeal. Both Hepp and a representative from Wal-Mart participated in the hearing. On August 14,1998, the appeals referee determined that Hepp had been discharged for “misconduct connected with his work,” pursuant to Ala.Code 1975, § 25-4-78(3)(e), because Hepp had violated Wal-Mart’s policy. The referee then held that Hepp was disqualified from receiving full benefits and was entitled to only reduced benefits under that Code section. Hepp did not appeal this decision.

After Hepp’s hearing before the referee, but before the referee issued his decision, Hepp filed a complaint in the Shelby Circuit Court, seeking to reopen his 1997 workers’ compensation case to consider vocational disability. He Mter amended his complaint to allege that Wal-Mart had discharged him in retaliation for his filing a workers’ compensation action, in violation of Ala.Code 1975, § 25-5-11.1. Wal-Mart moved for a summary judgment on the retaliatory-discharge claim, arguing that Hepp is barred by the doctrine of collateral estoppel from relitigating the reason underlying his termination, which, Wal-Mart argued, the appeals referee had already determined was “misconduct connected with his work.” The trial court denied Wal-Mart’s motion, but certified its order for an interlocutory appeal under Rule 5, Ala. R.App. P.

Standard of Review

“This Court reviews de novo a trial court’s denial of a summary judgment. See Young v. La Quinta Inns, Inc., 682 So.2d 402, 403 (Ala.1996) (citing Hightower & Co. v. United States Fid. & Guar. Co., 527 So.2d 698 (Ala.1988)). Where, as in this case, the defendant moves for a: summary judgment based on an affirmative defense, this Court applies the following standard of review:
“ When there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law, summary judgment is proper. If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate. Rule 56(c), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).’
“Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986).”

Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999).

Discussion

Hepp’s retaliatory-discharge action is governed by Ala.Code 1975, § 25-5-11.1. That Code section provides, in pertinent part, that “[n]o employee shall be terminated by an employer solely because the employee has instituted dr maintained any action against the employer to recover workers’ compensation benefits.... ”

“ ‘In order to establish a prima facie case of retaliatory discharge [under § 25-5-11.1], -the plaintiff must present substantial evidence that he was terminated solely for seeking workers’ eom-
pensation benefits.’ Kent Corp. v. Hale, 699 So.2d 954, 958 (Ala.1997); see also Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988). Where a defendant makes a motion for summary judgment and properly supports the motion with evidence of a legitimate reason for terminating the plaintiff, the plaintiff must present substantial evidence not only establishing a prima facie case but also showing that the defendant’s stated reason for termination was a pretext. See Rickard v. Shoals Dis-trib., Inc., 645 So.2d 1378, 1382 (Ala. 1994).”

Smitherman, 743 So.2d at 446.

Wal-Mart argues that the doctrine of collateral estoppel bars Hepp from arguing in this case that he was terminated for some reason other than “misconduct connected with his work,” which was the reason the referee had determined Hepp was terminated. Thus, Wal-Mart argues, Hepp cannot establish a prima facie case of retaliatory discharge. We agree.

“The doctrine of collateral estoppel applies when:

“ ‘(1) there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be estopped were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be estopped were necessary to the administrative decision.’ ”

Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 68 (Ala.1990) (quoting Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985)). Wal-Mart argues that all five elements are met in this case.

We note that this case is virtually indistinguishable from Smitherman, supra. In Smitherman, an employee, Smitherman, alleged that she had developed carpal tunnel syndrome during the course of her employment with Wal-Mart. After surgery to alleviate the carpal tunnel syndrome, Smitherman returned to work and subsequently injured her shoulder. Four days after injuring her shoulder, Smither-man was terminated for making a profane and derogatory remark about a district manager. Smitherman, 743 So.2d at 443.

Following her termination, Smitherman applied for unemployment compensation. However, she was partially disqualified from receiving unemployment compensation, under Ala.Code 1975, § 25-4-78(3)(e), because she had been terminated for misconduct. Smitherman, 743 So.2d at 444. An appeals referee affirmed the decision partially disqualifying her from benefits. Smitherman did not appeal to the circuit court, and the referee’s decision became final. Id.

Before any ruling on her unemployment-compensation claim became final, Smither-man filed a retaliatory-discharge action against Wal-Mart in the circuit court, under Ala.Code 1975, § 25-5-11.1. Wal-Mart later moved for a summary judgment, arguing that Smitherman was collaterally es-topped from asserting a retaliatory-discharge claim. The trial court denied the motion for a summary judgment, and this Court accepted an interlocutory appeal under Rule 5, Ala. R.App. P. Smitherman, 743 So.2d at 444.

This Court held that all of the elements of collateral estoppel were met in Smither-man’s case: the parties were the same, and both the unemployment-compensation-benefits case and the retaliatory-discharge action required litigation of one common issue — namely, the reason underlying Smitherman’s discharge. Smitherman had an adequate opportunity to litigate this issue in the proceeding before the appeals referee, and she knew in that proceeding that Wal-Mart was claiming that she had been terminated for misconduct. Additionally, the appeals referee made clear in his final decision that the reason for Smitherman’s termination was actually determined, and that such a determination was necessary in the unemployment-compensation case. Therefore, we held that Smitherman was collaterally estopped from relitigating in her retaliatory-discharge action the reason for her discharge. Smitherman, 743 So.2d at 448. For this reason, Wal-Mart was entitled to a summary judgment on Smitherman’s retaliatory-discharge claim.

Under the rationale of Smither-man, Hepp’s retaliatory-discharge claim is likewise barred by the doctrine of collateral estoppel. First, there is no dispute that the parties are identical. Second, the issue whether Hepp was terminated for misconduct was the issue litigated and decided in his unemployment-compensation-benefits case before the appeals referee. As we noted in Smitherman, the employee has the burden in an unemployment-compensation case of proving that he is entitled to benefits:

“Under Alabama’s Unemployment Compensation Act, a claimant has the burden of proving that he or she is eligible to receive benefits under Ala.Code 1975, § 25^1-77, and that he or she is not disqualified from receiving benefits by § 25-4-78. See Davenport v. State Dep’t of Indus. Relations, 692 So.2d 851, 852 (Ala.Civ.App.1997). ‘ “The claimant assumes the risk of nonpersuasion.”’ State Dep’t of Indus. Relations v. Downey, 380 So.2d 906, 908 (Ala.Civ.App.1980) (quoting Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 145, 36 So.2d 496, 497 (1948)). To be eligible under § 25-4-77(a), a claimant must (1) file a claim for each week’s benefits; (2) register for work at, and thereafter continue to report at, the state employment office; and (3) .be able to work and be available for work. • Under § 25-4-78(3)c., a claimant is partially, disqualified from receiving unemployment-compensation benefits if he or she was discharged for misconduct committed in connection with work.”

Smitherman, 743 So.2d at 445.

The appeals referee’s decision in Hepp’s case states, in part:

“Section 25-4-78(3)(c) ... provides that an individual shall be disqualified for total or partial unemployment if he was discharged from his most recent bona fide work for misconduct committed in connection with such work.... Employer’s [sic] may also expect that employees will diligently oversee the employer’s equipment assigned to them. The testimony presented at this hearing indicates that the claimant displayed disregard for those standards of behavior, committing what would be considered misconduct connected with his work. Since the testimony shows that the claimant’s employment wets terminated as a result of misconduct he would be subject to a disqualification under this section

(Emphasis added.) This decision makes clear that the referee determined that Wal-Mart terminated Hepp’s employment because of misconduct on Hepp’s part.

In Hepp’s retaliatory-discharge action, he must, under Ala.Code 1975, § 25-5-11.1, prove that Wal-Mart’s proffered reason for terminating his employment, i.e., misconduct connected with his work, was not the true reason for his termination. The very issue whether Hepp had been terminated because of misconduct, however, was at issue in the unemployment-compensation proceeding. Thus, there is an identity to at least one issue in the two proceedings. ■ ■

Hepp, however, claims that there is no identity of the issues in this case because, he argues, the referee’s determination that he was terminated because of misconduct did not involve a finding as to Wal-Mart’s “motive” behind his termination. Specifically, Hepp claims that he is estopped from litigating only the issue whether his act of violating company policy constituted misconduct. He is not, he maintains, precluded from litigating whether Wal-Mart’s stated reason for terminating his employment was a pretext for terminating him because he filed a workers’ compensation claim. In other words, Hepp claims that while Wal-Mart’s “reason” for terminating him has been decided, its “motivation” has not.

In making this argument Hepp is attempting to make a distinction without a difference. The issue decided by the appeals referee was whether Hepp was terminated either for misconduct or for some other reason (for example, retaliation for filing a workers’ compensation claim, the reason Hepp argued at the hearing he had been fired). The referee determined that the former was the case — that Hepp had been discharged by Wal-Mart because of his misconduct. Moreover, the referee, in finding that Hepp had been discharged because of misconduct, necessarily rejected Hepp’s claim that he was terminated in retaliation for filing the workers’ compensation action. See Smitherman, 743 So.2d at 447 (holding that it is the employee’s burden in an unemployment-compensation proceeding to refute the employer’s proffered reason for termination by demonstrating that the employer’s reason was a pretext).

Furthermore, the hearing before the appeals referee offered Hepp an adequate opportunity to litigate this issue.

“The Unemployment Compensation Act requires that the appeals tribunal ‘afford[] the parties reasonable opportunity for [a] fair hearing.’ Ala.Code 1975, § 25-4-93. The procedure for conducting the hearing is prescribed by regulations of the Department of Industrial Relations. See § 25-4-92(b); see generally Ala. Admin. Code r. 480-1-4-.04 to -.06. Those regulations provide for a hearing at which the parties are afforded the opportunity to present evidence and testimony of witnesses given under oath. See Ala. Admin. Code r. 480-1-4-.04. A party may be represented by an attorney. See r. 480-1-4-.05. The parties are also afforded the opportunity to request that the hearing officer issue subpoenas to compel the attendance of witnesses or the production of documents or other things. See r. 480-1-4-.06.”

Smitherman, 743 So.2d at 446.

The record in this case demonstrates that the appeals referee held a hearing on Hepp’s claim. The notice of hearing indicated that whether Hepp was discharged for misconduct was going to be at issue at the hearing. Moreover, the record contains what Hepp asserts is a transcript of the hearing. This transcript indicates that both Hepp and a Wal-Mart representative were present at the hearing, and although neither was represented by counsel, both parties were given the opportunity to present testimony and evidence. Although Hepp acknowledged that he committed the acts Wal-Mart alleges were misconduct, Hepp claimed that he failed to complete the service orders because he was sick at the time and was on strong medication. He also repeated his argument that he believed Wal-Mart terminated- him because he had settled the workers’ compensation claim, and he had the opportunity to present evidence to substantiate this claim. The record thus indicates that Hepp had an adequate opportunity to litigate the issue whether he was terminated because of misconduct or because he had filed an action seeking workers’ compensation benefits.

Finally, it is clear from the referee’s decision that the issue we determine Hepp is estopped from relitigating — whether Hepp was fired for misconduct — was both actually litigated and necessary for the referee’s decision. Because all five elements of collateral estoppel are met, Hepp is estopped from relitigating in his retaliatory-discharge action the reason for his discharge. See generally Smitherman, supra; Rigby v. Marshall, 134 F.Supp.2d 1259 (M.D.Ala.2000) (holding that a decision by an unemployment-compensation referee that an employee was terminated for misconduct under § 25-4-78(3)(c) collaterally estopped the employee from filing a 42 U.S.C.A. § 1983 action alleging retaliatory discharge); Smith v. Alabama Aviation & Tech. College, 683 So.2d 426 (Ala. Civ.App.1995) (holding that an employee was barred by the doctrine of collateral estoppel from filing a 42 U.S.C.A. § 1983 action alleging he was terminated in retaliation for exercising his right to free speech after an employee-review panel held that the employee was fired for failing to perform his duties satisfactorily).

Because Hepp is collaterally estopped from relitigating, in his retaliatory-discharge action, the reason for his termination, Wal-Mart has shown that it is entitled to a judgment as a matter of law, and a summary judgment in its favor is proper. We therefore reverse the trial court’s denial of Wal-Mart’s motion for a summary judgment, and remand this cause for the trial court to enter a judgment in favor of Wal-Mart on Hepp’s retaliatory-discharge claim.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . The trial court later granted Hepp’s petition and found that Hepp had suffered a 50 percent loss of earning capacity as a result of his on-the-job back injury. Wal-Mart appealed this decision to the Court of Civil Appeals, which affirmed the trial court's judgment. Wal-Mart Stores, Inc. v. Hepp, 797 So.2d 475 (Ala.Civ.App.2000); this Court denied certio-rari review, 797 So.2d 478 (Ala.2001).

      . In fact, Hepp claims that he produced substantial evidence indicating that Wal-Mart's true motive in terminating him was retaliation for his filing a workers' compensation action.


author: CRAWLEY, Judge.

text:
    The PITTSBURG & MIDWAY COAL MINING COMPANY v. Barbara RUBLEY, individually, and Crystal Rubley, by and through Barbara Rubley, her guardian and next friend.
    2001039.
    Court of Civil Appeals of Alabama.
    June 7, 2002.

      • John W. Hargrove and T. Matthew Miller of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant.
    Garvé W. Ivey, Jr., and Barry A. Rags-dale of Ivey & Ragsdale, Birmingham, for appellees.
   CRAWLEY, Judge.

In June 2000, Barbara Rubley, in her individual, capacity and as guardian and next friend of Crystal Rubley, a minor child, sued the Pittsburg & Midway Coal Mining Company (“the company”) in the Walker Circuit Court, seeking benefits under the Alabama Workers’ Compensation Act (“the Act”). In that complaint, Barbara Rubley and Crystal Rubley alleged that on July 22, 1999, Albert Franklin Rubley (“the worker”), who was Barbara Ruble/s husband and Crystal Rubley’s father, suffered a brain injury arising out of and in the course of his employment by the company and had died as a result of that injury. On the company’s motion, the case was transferred to the Tuscaloosa Circuit Court, and the company filed an answer denying that the worker had been injured in a workplace accident. After an ore tenus proceeding, the trial court, on June 5, 2001, entered a judgment in favor, of Barbara Rubley and Crystal Rubley and awarded them compensation pursuant to § 25-5-60, Ala.Code 1975, a portion of the Act. The company filed a notice of appeal on July 12, 2001.

The standard of review in a workers’ compensation case was stated by our supreme court in Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996):

“[W]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘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.’ ”

680 So.2d at 268-69 (quoting West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “an appellate court’s review of the proof and [its] consideration of other legal issues in a workers’ compensation case shall be without a presumption of correctness.” Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002) (citing Ala. Code 1975, § 25-5-81(e)(l)).

The record reveals the following pertinent facts. The worker, who was 53 years old at the time of his death, worked as a coal miner on the company’s middle work shift (i.e., approximately 2:00 p.m. to 10:00 p.m.). Among the worker’s duties were maintaining and operating a conveyor belt in a lower pocket of an underground coal mine. To access his workplace, the worker would be lowered by an elevator into an upper mine pocket and then would have to descend approximately 8 flights of stairs, each containing about 10 steps composed of grated steel. Likewise, to leave his workplace, the worker would climb the steps to exit the lower pocket and take the elevator out of the upper pocket.

Before July 22, 1999, the worker had suffered only one injury at his workplace, a knee injury in 1997 from which the worker had recovered sufficiently so as to resume work. However, the worker was not in perfect health. The record reveals that the worker was afflicted' with diabetes mel-litus, which required his blood sugar to be monitored to ensure that it was an appropriate level. The worker also had a history of hypertension, gout, headaches, backaches, and neckaches, as well as impaired liver, functioning arising from abuse of alcohol. However, these conditions did not prevent the worker from regularly performing his work duties.

At some point during a family vacation that lasted until July 17, 1999, the worker suffered a fall while on a swimming excursion to a former strip-mining pit. During that vacation, the worker chose to stop his alcohol intake; before that time, the worker typically had drunk either a “six-pack” of beer or a pint of rum each day. Although the worker was scheduled to return to work on Monday, July 19, 1999, he took that Monday off from work because of back pain and neck stiffness, but he returned to work on the following day. In addition, the worker consulted a chiropractor on July 21, 1999, regarding neck and back pain, although he worked his full shift that day.

While at home on the morning of July 22, 1999, a Thursday, the worker’s blood sugar dropped to a level between 30 and 49, a level that is considered below normal; the worker complained of dizziness, and he exhibited some - confusion. The worker’s adult son, who worked as an emergency-room nurse, testified that the worker “should have [gone] to the hospital [to] be checked out,”- but the worker’s dizziness abated after he ingested glucose and a carbonated beverage. The worker then consumed a regular lunchtime meal and went to work.

Upon arrival at the mine, the worker spoke with Johnny Willis, a worker in the upper mine pocket; the worker commented that he was experiencing neck pain, but otherwise did not relate anything that Willis considered unusual. However, just after beginning his work shift, the worker sat down on a bench next to Leland Blanton, a mine examiner who had known the worker for years; the worker did not speak for between 5 and 10 minutes, prompting Blanton to ask Willis whether anything was wrong.

After descending to his work station, where he worked alone, the worker communicated by an internal intercom, or “mine phone,” with Willis on two occasions during his shift, at approximately 5:30 p.m. (when the worker requested the temporary removal of an electrical circuit breaker) and 9:25 p.m. (when Willis asked the worker to add water to a conveyor transfer belt to reduce friction). Willis reported that the worker typically had left his work station by 9:25 p.m., although Willis opined that the worker had seemed normal based on their interaction over the mine phone.

Two coworkers who actually saw the worker at his work station in the lower mine pocket during his shift testified that the worker may not have been feeling well. A roving worker named Earl Wayne Holmes testified that he had talked with the worker at 4:30 p.m. and had seen him again at 7:00 p.m.; Holmes opined that the worker had “looked like he was a little bit pale.” Wayne Kimbrell, who worked at the worker’s work station on the night shift, testified 'that he had relieved the worker at his work station at 9:50'p.m., which was somewhat unusual because by that time on most workdays, the worker typically had ascended the steps and had temporarily relieved the “top man.” Kim-brell testified that he had encountered the worker sitting on a bench looking “pale ... like he had been up a long time.” When the worker struggled to rise from the bench, Kimbrell asked if the worker was all right; the worker replied that he was.

After Kimbrell had turned away for two or three minutes to perform certain work duties, the worker began to climb the stairs leading out of the lower pocket of the mine. However, when Kimbrell returned, he noticed that the worker was having difficulty climbing the stairs, forcefully holding the handrail. Kimbrell followed the worker part of the way up the stairs, again asking if the worker was all right; the worker again said that he was all right, adding “[Ijt’s probably my sugar.”

Kimbrell followed the worker up the stairs until he came within four flights of the upper pocket, from which the elevator for the surface embarked. Kimbrell then contacted Clarence Butler, who was working in the upper pocket; Kimbrell informed Butler that the worker was on his way up the stairs and requested that Butler notify him if the worker did not arrive soon. The worker then completed his ascent, and Butler called to the worker; the worker acknowledged Butler by turning towards Butler and waving his hand, and he then walked about 20 feet towards the elevator, at which time he left Butler’s sight.

The worker typically arrived at his home at 11:00 p.m. after leaving work; however, on July 22, 1999, he did not do so. At approximately 11:15 p.m., Willy Winston; another mine worker, telephoned the worker’s home to ascertain whether the worker had reached home, but was told that the worker had not yet come home. The worker’s son traveled to the mine and found another of the worker’s coworkers, Phil (“Buck”) Buchanan. The two of them found the worker in the mine’s ground-level bathhouse. The worker was found in a stall, talking to himself, half-dressed and with wet hair; the worker was disoriented and recognized neither Buchanan (whom he called by the nickname of another coworker) nor his own son. The worker’s son administered glucose paste to the worker under the belief that the worker was suffering a diabetic reaction but that did not alleviate the worker’s condition.

The worker was then taken by a company automobile to a hospital emergency room in Northport, where he was diagnosed with bilateral subarachnoid hemorrhages after a CT scan revealed bleeding in the area of his brain. He was then transported by an ambulance to a Bessemer hospital, where he was admitted at 8:30 a.m. on July 23, 1999, and subsequently underwent treatment by Dr. Evan Zeiger, a board-certified neurosurgeon. However, the worker’s condition worsened, and he died on July 31, 1999. Dr. Zeiger testified that the most likely ultimate cause of the worker’s death was a traumatic brain injury caused by a fall that occurred within 12 hours of the worker’s admission to the Bessemer hospital on the morning of July 23, although he considered the proposition that the worker could have lost consciousness and fallen because of a liver condition, alcohol withdrawal, and/or from use of the prescription medicine sildenafil citrate (“Viagra”).

Under the Alabama Workers’ Compensation Act, “[w]hen ... death is caused to an employee by an accident arising out of and in the course of [the] employment,” and “the actual or lawfully imputed negligence of the employer is the natural and proximate cause” of that death, that worker’s personal representative, on behalf of the worker’s “surviving spouse and next of kin, shall receive compensation by way of damages therefor from the employer,” provided that the worker was not guilty of misconduct. Ala.Code 1975, § 25-5-31 (emphasis added). The necessity of showing negligence, of course, has been eliminated in the great majority of cases by § 25-5-51, Ala.Code 1975, which provides that compensation shall be paid under the Act “in every case of ... death of [an] employee caused by an accident arising out of and in the course of his or her employment, without regard to any question of negligence.” These statutes set forth two necessary elements to recover workers’ compensation benefits based .upon an alleged work-related death: a claimant must demonstrate that the worker died because of an accident that (1) arose out of, and (2) occurred in the course of, his or her employment.

The company contends on appeal that the trial court “guessed” that the worker had suffered an accident and that that purported accident occurred at work. Such an argument "amounts to, in essence, a challenge to the trial court’s conclusion that the worker suffered an accident “in the course of’ his employment.

However, there was substantial evidence before the trial court indicating that on July 22,1999, the worker had suffered a low-blood-sugar episode before reporting for work at the mine; that he exhibited errant behavior during his work shift at the mine that day; that he appeared pale while at work; that he could not leave the lower mine pocket that evening without considerable strain; and that he was found in a disoriented state in the mine’s bathhouse just over two hours after he was last seen by his coworker walking toward an elevator. Moreover, the worker’s son discovered abrasions on the worker’s body after he was admitted to the Bessemer hospital, as well as unusual circular marks on the worker’s head corresponding to the round inserts in the worker’s protective hard hat. The foregoing circumstantial evidence of a traumatic fall, coupled with Dr. Zeiger’s opinion that the worker had suffered a traumatic brain injury from a fall within 12 hours of 8:30 a.m. on July 23, 1999, tends to support a finding that the worker accidentally ’fell while on the company’s premises and thereby suffered an injury “in the course of’ his employment, a term that refers to the time, place, and circumstances under which the accident occurred. See Massey v. United States Steel COrp., 264 Ala. 227, 280, 86 So.2d 375, 378 (1956) (injury to worker arises in the course of employment when it occurs within period of employment at a place where the worker may reasonably be and while the worker is reasonably fulfilling employment duties or engaged in doing something incident to it).

However, it remains to be' considered whether the trial court could properly have concluded that an accident occurred that “arose out of’ the employment of the worker. In order for an injury or a death to be said to “arise out of’ employment, “there must be ‘a causal relationship between the injury and the employment.’ ” Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741, 744 (Ala.Civ.App.2002) (quoting Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313, 314 (Ala.Civ.App.1993)); see also Slimfold Mfg. Co. v. Martin, 417 So.2d 199, 201-02 (Ala.Civ.App.1981) (noting that rational mind must be able to trace resultant injury to a proximate cause set in motion by the employment and not otherwise), cert. quashed, 417 So.2d 203 (Ala.1982). In this case, the trial court could properly have concluded that the worker died because of a workplace fall; however, as we will explain, the mere fact of a workplace fall will not support an award of workers’ compensation benefits under Alabama law.

In Slimfold, supra, the worker fell while engaged in a casual conversation in his employer’s • photocopy room, causing the worker to strike his head on the room’s floor and to suffer a massive right subdural hematoma, which created • intracranial pressure leading to the death of the worker. The evidence concerning the cause of the fall was inconclusive, but the trial court concluded that the worker’s death was compensable although the cause of the fall could not be clearly determined.

Applying the pre-1992 “any-legal-evidence” standard of review to the trial court’s judgment, this court reversed, concluding that the accident had not “arisen out of’ the pertinent employment. We first acknowledged that certain American jurisdictions had allowed workers’ compensation benefit awards based on a liberal “positional-risk” or “but-for” causation standard, but then noted that a substantial minority of courts had instead “require[d] the claimant to establish a definite causal connection between the work and the fall.” 417 So.2d at 201. In concluding that the “definite causal connection” standard prevailed in Alabama, this court derived support, among other sources, from the Alábama Supreme Court’s reliance, in Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954), upon an Illinois Supreme Court case that had stated: “It is not enough that the injured person may bé present at the place of the accident because of his work, unless the injury is the result of some risk of the employment.” F. Becker Asphaltum Roofing Co. v. Industrial Comm’n, 333 Ill. 340, 343, 164 N.E. 668, 670 (1928), quoted in Slimfold, 417 So.2d at 201. We held in Slimfold that because the trial court in that case had found that the cause of the fall was unexplained, that court erred in awarding compensation.

Less than three months ago, in Wal-Mart, this court relied upon Slimfold in reversing a judgment awarding permanent-total-disability benefits under the Act to an cashier who fell and severely injured her hip while attempting to return to her cash register; the cashier testified that she had “just lost [her] balance,” that she did not know what had made her fall, and that she could have fallen at home “just as well.” 830 So.2d at 742. Although the cashier testified that a tile floor at her place of employment was sometimes slippery, she did not testify that she slipped on the floor, and she did not know whether her accident was caused by the floor. 830 So.2d at 746.

While Slimfold and Wal-Mart involved falls that may be labeled “unexplained,” the trial court in this case found that “evidence of a plausible explanation ha[d] been presented,” and determined that the worker most likely suffered a fall as a result of “low blood sugar” or “a seizure caused by withdrawal from alcohol.” As we have stated, there is evidence to support such a finding, which is equivalent to a finding that the worker fell because of an “idiopathic” factor, i.e., a characteristic peculiar to the individual, such as a preexisting physical weakness or disease. See Ex parte Patterson, 561 So.2d 236 (Ala.1990). As one noted commentator has stated, “idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the pri-ma facie showing of personal origin.” 1 Lex K. Larson, Larson’s Workers’ Compensation Law § 9.01[1] (2001); cf. Brownfield v. Revco D.S., Inc., 612 So.2d 1203 (Ala.Civ.App.1992) (summary judgment denying workers’ compensation benefits for an injury arising from a worker’s placement of his head in a part of a motorized lifting device was supported by undisputed evidence that the worker was subject to seizures and had failed to take anti-seizure medications).

In this case, the trial court determined that an “affirmative employment contribution” was present, stating that “[i]n this case, the [worker] had to climb 100 or more stairs to get out of the mine, a condition not encountered by persons not so employed.” Several of the worker’s coworkers gave testimony that would support the existence of the quantity of steps found by the trial court; in addition, one of these coworkers, Holmes, testified that some steps were one-half inch taller than the others, and that the steps would occasionally .become slippery and retain coal residue.

We need not decide, however, whether a fall on the steps leading out of the lower pocket of the mine could properly be deemed to have arisen .out of employment in the mine because of an affirmative employer contribution to such a fall. Although the trial court found that the worker “lost consciousness while climbing the 100 or more stairs leading out of the mine and fell,” substantial evidence does not support a finding that the worker fell on the stairs leading out of the lower pocket. As we have noted, Kimbrell followed the worker until he was four flights from completing his climb to the top of .the stairs out of the lower pocket, and the worker completed his climb to the top and acknowledged Butler’s call to him by turning, waving his hand, and proceeding to the elevator. Neither Kimbrell, who would have witnessed the bulk of the worker’s ascent from the lower pocket, nor Butler, whom Kimbrell asked to look out for the worker’s arrival at the top pocket, testified to having seen the worker fall, nor does their testimony indicate that the worker showed any effects from a possible unwitnessed fall while climbing the steps. Moreover, once the worker reached Butler’s level of the mine, he had completed climbing steps. We must therefore conclude that the trial court’s finding that the worker fell on the stairs leading out of the lower pocket of the mine is unsupported by the evidence.

The lack of substantial evidence indicating that the worker fell while ascending the stairs from the lower pocket to the upper pocket renders the trial court’s award of benefits under the Act erroneous. While the worker may have fallen while walking from the point that he left Butler’s sight in the upper pocket to the elevator, or while walking from the elevator to the bathhouse where the worker was later found incoherent, there is no evidence tending to show that such a fall would have arisen out of the worker’s employment. Stated another way, while a fall while ascending the stairs leading out of the lower pocket could arguably have been the product of an affirmative employer contribution because there was evidence of a potentially hazardous condition on the stairs, there is no evidence that a fall after completing that ascent would have been the product of anything other than factors personal to the worker, such as low blood sugar.

In summary, while we conclude that the trial court correctly determined that the worker suffered an accidental fall in the course of his employment, that court erred in determining that that fall arose out of his employment. We therefore reverse the judgment in favor of Barbara Rubley and Crystal Rubley and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

      . The trial court certified a supplemental record containing a document filed on October 15, 2001, and labeled “Amended Final Judgment,” in which the trial court purported to change the pertinent compensation amounts; ■however, that "amended” judgment restated the trial court’s pertinent factual findings. While there is authority for the proposition that Rule 60(a); Ala. R. Civ. P., allows the correction of errors in calculation at any time after a final judgment is entered (Mickle v. Mickle, 334 So.2d 900 (Ala.1976)), our decision on the merits of the employer’s appeal obviates any need to decide whether the trial court’s “amended” judgment was proper under Rule 60(a) or whether it was instead an improper substantive amendment during the pendency of an appeal. ■

      . While the trial court found that "the [worker] continued to climb stairs until he was out of' the sight of Butler, the record contains no evidence that there were any more steps to climb after reaching the upper pocket of the mine; rather, the evidence shows that access to the upper pocket from the surface was by elevator, as we have discussed.

      . Such a standard "take[s] the. position that the causation requirement is satisfied by the fact that the claimant's employment placed him in the particular place at the particular time when he was injured.” 417 So.2d at 201.