author: LYONS, Justice. BOLIN, Justice

text:
    Ex parte Thomas W. SINGLETON. (In re D & E Investments, L.L.C., d/b/a Kiva Dunes v. Thomas W. Singleton).
    1061730.
    Supreme Court of Alabama.
    July 25, 2008.

      Richard E. Browning, Mobile, for petitioner.
    Ian D. Rosenthal and Joseph D. Stutz of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for respondent.
   LYONS, Justice.

D & E Investments, L.L.C., d/b/a Kiva Dunes (“Kiva Dunes”), appealed to the Court of Civil Appeals from a judgment of the trial court awarding permanent-total-disability benefits to Thomas W. Singleton pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. The Court of Civil Appeals concluded that Kiva Dunes did not receive proper notice of Singleton’s alleged work-related injury, and it reversed the judgment and remanded the case. D & E Invs., L.L.C. v. Singleton, 6 So.3d 506 (Ala.Civ.App.2007). Singleton petitioned this Court for a writ of certiorari, alleging that the Court of Civil Appeals’ decision conflicts with prior decisions of this Court and the Court of Civil Appeals condemning reversal of a trial court’s judgment in a workers’ compensation case if the trial court’s findings are supported by substantial evidence. We reverse and remand.

I. Factual Background and Procedural History

The Court of Civil Appeals stated the ease as follows:

“Singleton sued his employer, Kiva Dunes, seeking to recover workers’ compensation benefits. Singleton’s complaint alleged that he had injured his back in a workplace accident on November 8, 2003. Following a trial, the trial court entered a judgment finding that Singleton had provided proper notice of his alleged work-related injury and awarding Singleton permanent-total-disability benefits. In its judgment, the trial court made the following pertinent factual findings:
“ ‘2. [Singleton] worked as an owner/operator of one or more convenience stores between 1986 and December of 2000. Following his selling his convenience stores in 2000, he next worked for ... Kiva Dunes, from October 30, 2002[,] until the time of his date of injury on November 8, 2003.
“ ‘3. While employed at Kiva Dunes, [Singleton] worked as a golf cart attendant. He testified that his job duties included the cleaning and preparation of the golf carts for use by the members of the Kiva Dunes golf club. This also included preparation of [the golf carts] after [each use] for the next person’s use, including emptying out any trash from the golf carts .... [Singleton] also testified that at the end of each day after cleaning all of the golf carts and preparing them for the next day’s use, it was part of his specified duties to take all the trash that had been emptied into a 55-gallon trash can, bring that over to a nearby [D]umpster-type trash container, and to empty that 55-gallon can into the trash bin. It was while he was in the performance of his duties emptying that 55-gallon trash can on the evening of November 8, 2003[,] that [Singleton] testified that he hurt his back.
“ ‘4. ... [Singleton] further testified that he came back to work the following day[, November 9, 2003,] and worked his regular shift.
“ ‘5. ... [Singleton] testified that he telephoned the office [on November 10, 2003,] to talk to his supervisor, Mark Stillings ....
“ ‘6. [Singleton] specifically testified that he told Mr. Stillings that he would not be able to come to work the following Friday, November 14, 2003, which was his next scheduled day to work. In particular, [Singleton] testified that he informed Mr. Stillings that the reason he would not be able to come to work that following Friday was that he had injured his back lifting the trash can.
“ ‘7. Mark Stillings also testified at trial. It is the court’s interpretation of his testimony that, although he does not recall [Singleton’s] reporting to him that [Singleton] stated that he injured his back emptying the garbage can, neither was [Stillings] able to specifically deny that [Singleton] had told him that. In short, it appeared more that Mr. Stillings’[s] testimony was simply that he did not remember that he had been told by Mr. Singleton of the injury while emptying the trash. ...
“ ‘9. Mark Stillings testified at trial that he was fully aware that one of the specific duties which [Singleton] was required to perform at Kiva Dunes was the emptying of the 55-gallon trash container at the end of the day. The court hereby finds that when [Singleton] reported to Mr. Still-ings that he had hurt his back while emptying the trash can, this constituted sufficient notice to [Kiva Dunes] that this was an injury which occurred within the line and scope of his employment. Under the authority of Russell Coal Company v. Williams, 550 So.2d 1007 (Ala.Civ.App.1989), the court finds that this constituted notice which was sufficient as to “put a reasonable man on inquiry that the injury is work-related.”
“ ‘17. ...
“ ‘(b) [Singleton] provided adequate notice to his supervisor, Mr. Mark Stillings, on the morning of November 10, 2003[,] when he repoi’ted to Mr. Stillings that he injured his back while emptying the trash can.’
“Singleton’s deposition testimony, taken on August 23, 2004, was admitted into evidence at trial. In his deposition testimony, Singleton testified that he told his supervisor, Mark Stillings, on November 10, 2003, that he had injured his back while ‘emptying the trash can.’ The record on appeal also contains a transcript of an April 16, 2004, conversation between Singleton and Kiva Dunes’ workers’ compensation insurance adjuster. In that conversation, Singleton stated that he had told Stillings on November 10, 2003, that he had injured his back while ‘emptying the trash can.’ At trial, however, Singleton testified that he had told Stillings on November 10 that he had injured his back while ‘emptying the trash can at work Saturday night.’
“Singleton did not return to work at Kiva Dunes following his telephone conversation with Stillings on November 10, 2003. Singleton subsequently received treatment for his back injury through his employer-provided health insurer. The record indicates that Singleton made an initial claim for workers’ compensation benefits on April 1, 2004.”

6 So.3d at 507-09. The Court of Civil Appeals concluded “that Kiva Dunes was not given proper notice of Singleton’s alleged work-related injury within the 90-day period prescribed by § 25-5-78, Ala.Code 1975,” and it reversed the trial court’s judgment awarding Singleton workers’ compensation benefits. 6 So.3d at 511.

II. Standard of Review

“ ‘On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.’ Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The Court of Civil Appeals, in turn, is bound by Ala.Code 1975, § 25-5-[81](e), which provides that legal issues are to be reviewed de novo and requires that the judgment of the trial court be affirmed if its factual findings are supported by substantial evidence.” Ex parte Fort James Operating Co., 895 So.2d 294, 296 (Ala.2004).

III. Analysis

Singleton argues that the trial court’s conclusion that he provided adequate notice of a work-related injury to his supervisor was a factual finding that should not be disturbed on appeal and that, by reviewing that finding, the Court of Civil Appeals substituted its judgment for that of the trial court. Kiva Dunes argues that the only factual determination the trial court had to make was exactly what information Singleton reported to his supervisor. Kiva Dunes then argues that whether that information constituted sufficient notice under the Workers’ Compensation Act is a purely legal issue.

In his special concurrence to the Court of Civil Appeals’ opinion, Judge Moore discussed the trial court’s resolution of the conflicting testimony offered by Singleton:

“At trial, the parties disputed the exact wording [Singleton] used to notify [Kiva Dunes] of his back injury. On direct examination, [Singleton] testified that during a telephone conversation with his supervisor on the Monday morning following his injury, [Singleton] told the supervisor that he had injured his back while ‘emptying the trash can at work Saturday night.’ [Kiva Dunes] objected to that testimony on the ground that it conflicted with [Singleton’s] pretrial statement to a workers’ compensation insurance claims adjuster and [Singleton’s] deposition testimony, in which [Singleton] had consistently stated that he merely said he had hurt his back ‘emptying the trash can.’ The trial court overruled that objection, but it indicated that it would consider the inconsistency when weighing the evidence and determining the content of the telephone conversation. After reviewing all the evidence, the trial court made a specific determination that [Singleton] had merely stated in the telephone conversation that he had injured his back ‘while emptying the trash can.’ ”

D & E Investments, 6 So.3d at 512 (Moore, J., concurring specially). Singleton does not challenge the trial court’s factual determination, favorable to Kiva Dunes, that Singleton told his supervisor only that he had hurt his back “emptying the trash can.” Therefore, the issue presented by this case is whether the notice Singleton provided was sufficient.

In Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala.1998), this Court noted that § 25-5-78, Ala.Code 1975, “requires that an employer be given written notice of a job-related injury so that the employer can ‘make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims.’ ” (Quoting Russell Coal Co. v. Williams, 550 So.2d 1007, 1012 (Ala.Civ.App.1989).) The Court then recognized that “written notice is not required if the employer had actual knowledge that the employee was injured in the scope of his or her employment.” 726 So.2d at 602. Continuing, the Court stated:

“The employer must have actual knowledge that the employee’s injury was connected to the employee’s work activities. [Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App.1994).] ‘The fact that an employer is aware that an employee [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.’ Russell [Coal Co. v. Williams], 550 So.2d [1007,] 1012 [ (Ala.Civ.App.1989) ].”

726 So.2d at 602.

Kiva Dunes insists that the notice provision of the Workers’ Compensation Act, § 25-5-78, requires more information than Singleton provided in order for the notice to be considered legally sufficient. Citing James v. Hornady Truck Line, Inc., 601 So.2d 1059, 1060 (Ala.Civ.App.1992), Kiva Dunes argues that “[e]ven as liberally construed, the [Workers’ Compensation] Act still requires that the notice given by an employee to the employer (either in writing or verbally) state that: (1) an injury occurred in the course of his employment; (2) at a specified time; and (3) at a specified place.” Brief of Kiva Dunes at 20. Kiva Dunes maintains, because Singleton’s notice was insufficient as a matter of law, that it had no actual knowledge of his injury, that he did not provide notice that his injury was work related, and that it had no duty to investigate his alleged injury report. We do not find support for Kiva Dunes’ argument in James, in which the Court of Civil Appeals stated that the notice requirements argued by Kiva Dunes applied to written notice. The Court of Civil Appeals continued:

“Written notice is not required where it is shown that the employer had actual notice of the injury. International Paper Co. [v. Murray, 490 So.2d 1228 (Ala.Civ.App.), remanded on other grounds, 490 So.2d 1230 (Ala.1984) ]. Oral notice is sufficient to give the employer actual notice. International Paper Co. The employer must also be notified that the employee was injured while in the scope of his employment. International Paper Co. ‘If, however, the employer has some information connecting work activity with an injury, it may be put on reasonable notice to investigate further.’ Russell Coal Co. v. Williams, 550 So.2d 1007 (Ala.Civ.App.1989).”

601 So.2d at 1061.

In this proceeding the Court of Civil Appeals correctly embraced the definition of “actual knowledge” in Russell Coal Co., in which the court defined “actual knowledge” as

“ ‘ “knowledge of such information as would put a reasonable man on inquiry. ... Mere knowledge of disability following a traumatic injury is not sufficient, for the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the disability is work-related.” ’ ”

D & E Investments, 6 So.3d at 510 (quoting Russell Coal Co., 550 So.2d at 1012, quoting in turn Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916 (1970)). Nevertheless, even though Mark Stillings, Singleton’s immediate supervisor, testified that he was aware that one of Singleton’s specific duties was to empty all the trash from the golf carts into a large 55-gallon trash can and then to empty that can into a Dumpster at the end of each day, and even though Singleton telephoned Stillings at his home and told Stillings that he had hurt his back “emptying the trash can,” the Court of Civil Appeals concluded that that statement was insufficient to put Still-ings on notice that the injury to Singleton’s back was job related. Specifically, the Court of Civil Appeals stated: “Although Stillings knew that Singleton’s work duties included emptying a trash can, there was nothing in Singleton’s statement that he had ‘injured his back while emptying the trash can’ identifying the ‘trash can’ referred to in the statement as the one at Kiva Dunes.” 6 So.3d at 511.

The Court of Civil Appeals relied on Premdor Corp. v. Jones, 880 So.2d 1148 (Ala.Civ.App.2003), in which that court reversed a judgment of the trial court holding that the employer had received adequate notice of an employee’s work-related injury. In Premdor, the court first described the employer’s challenge to the weight of the evidence indicating that the injury was work related as based on the following:

“Only two doctors ... gave any indication that Jones had told them the injury occurred at work; evidence from the other nine medical-care providers either did not indicate how the injury occurred, indicated that Jones had said she did not know how the injury occurred, or indicated that Jones had recounted that the injury occurred at home when she was mowing the lawn. Jones’s own testimony also seems to indicate that the first time she felt back pain of a significant nature was when she was mowing her mother’s lawn on Saturday May 6, 2000.”

880 So.2d at 1153. The Premdor court then declined to address the weight-of-the-evidence issue on the basis of the merit to the alternative argument that the employer did not receive adequate notice of the alleged injury within the time required by law because the employee stated to the plant manager only the following: “I have hurt my back.” 880 So.2d at 1154. In other words, the employee in Premdor did not give the employer any information as to the cause of her injury that the employer could reasonably associate with the performance of her duties at work.

In this case, certain facts are undisputed, the most significant being the commonality of knowledge as between Singleton and his supervisor that Singleton’s job required him to empty a 55-gallon trash can at the conclusion of each workday and that Singleton telephoned the supervisor from home on a Monday after working the previous Saturday to say that he had hurt his back “while emptying the trash can.” (Emphasis added.) Compare Premdor, in which the employee merely stated: “I have hurt my back.” The trial court here concluded that such information — Singleton’s telling Stillings that Singleton had injured his back “while emptying the trash can” — would put a reasonable person on inquiry that the injury was work related. Although there was a conflict in the evidence as to whether Singleton had added the phrase “at work” when he testified at trial, the trial court’s finding, based on ore tenus evidence, as to the content of the conversation that formed the basis of its conclusion favorable to Singleton on the sufficiency-of-the-notice issue did not include the phrase “at work.” The Court of Civil Appeals found this information insufficient as a matter of law to put a reasonable person on inquiry that the injury was work related and therefore reversed the trial court’s judgment.

If the facts are undisputed, and yet from the same facts reasonable persons could draw different conclusions as to the sufficiency-of-the-notice issue, then we will not substitute our judgment for that of the trial court. See, e.g., Burlington Northern R.R. v. Whitt, 575 So.2d 1011, 1021 (Ala.1990) (“Only when the facts are such that all reasonable men must reach the same conclusion can contributory negligence be found as a matter of law.”); see also Rast Constr., Inc. v. Peters, 689 So.2d 781, 786 (Ala.1996) (Kennedy, J., dissenting) (“Only if all reasonable persons would reach the same conclusion would [the status of an employee] be a question of law. Quillen v. Quillen, 388 So.2d 985 (Ala.1980).”). Here the trial court’s finding as to the sufficiency of Singleton’s notice is, at the least, one that a reasonable person could make. Therefore, we reverse the judgment of the Court of Civil Appeals.

To be sure, it is possible that the injury could have been sustained while Singleton was emptying a trash can at home, but the supervisor’s knowledge that Singleton’s duties included lifting a 55-gallon trash can supports the trial court’s conclusion that the information available to Stillings should have provoked the inquiry of a reasonable supervisor as to whether Singleton meant a trash can at his house or the trash can at work. Singleton’s reference to “the” trash can, not “a” trash can or “my” trash can, should have raised a question in Stillings’s mind as to whether Singleton was referring to the only trash can with which they were both familiar, the 55-gallon trash can, instead of a trash can at Singleton’s house with which there is no evidence that Stillings was familiar. The trial court found that the information provided by Singleton, under the circumstances of this case, should have provoked inquiry by Stillings that would have established the job-related status of Singleton’s injury. We therefore do not have a record consistent only with an employer’s awareness that an employee merely has pain or suffers from a medical problem, as was the case in Premdor. If that were the case, that awareness would not, by itself, suffice to provoke such inquiry. Russell Coal Co., 550 So.2d at 1012. Under the circumstances of this case, however, a reasonable supervisor, if he or she had any question as to whether “the trash can” referred to any trash can other than the one to be emptied as part of Singleton’s job duties, should have made the inquiry of Singleton as to which trash can, thereby removing all doubt.

The record in this case provides the necessary support for the trial court’s finding that Singleton’s telephone call to his supervisor, in which he stated that he had injured his back “while emptying the trash can,” coupled with the supervisor’s knowledge that one of Singleton’s duties was to empty the 55-gallon trash can at the end of the day, constituted adequate notice that would “put a reasonable person on inquiry” as to whether the injury was work related. The Court of Civil Appeals erred in reversing the trial court’s judgment on the basis of the Court of Civil Appeals’ conclusion that Singleton did not give adequate notice to Kiva Dunes of his work-related injury.

IV. Conclusion

We reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

SEE and BOLIN, JJ., dissent.

BOLIN, Justice

(dissenting).

I respectfully dissent. I agree with that portion of Judge Moore’s special concurrence (joined by Judge Thomas) in D & E Investments, L.L.C. v. Singleton, 6 So.3d 506, 514-15 (Ala.Civ.App.2007), where he writes, concerning oral notice of and an employer’s knowledge of the work-related nature of an employee’s injury, as follows:

“After [Beatrice Foods Co. v.] Clemons, [54 Ala.App. 150, 306 So.2d 18 (1975),] oral notice by an employee to an employer has been treated as being synonymous with ‘knowledge’ if it sufficiently imparts to the employer information indicating that the employee received an injury in the course of his employment, thus enabling the employer to investi- . gate further to determine the specifics of the injury and to protect its interests. See, e.g., Ex parte Slimp, 660 So.2d 994 (Ala.1995).
“After finding that [Singleton] had merely stated that he had hurt his back while ‘emptying the trash can,’ the trial court concluded that that information, when coupled with [Stillings’s] knowledge that [Singleton] regularly emptied a large trash can at the end of his shift, was sufficient to place a duty on [Kiva Dunes] to investigate further to determine if, in fact, [Singleton] was reporting a work-related injury. In reaching that conclusion, the trial court misapplied the law. Oral notice is not sufficient if it merely relates that the employee is in pain or has a medical problem, see, e.g., Premdor Corp. v. Jones, 880 So.2d 1148 (Ala.Civ.App.2003); Fort James Operating Co. v. Crump, 947 So.2d 1053, 1067-68 (Ala.Civ.App.2005), or if the employee reports an injury that could just as easily be non-work related. See Thomas v. Gold Kist, Inc., 628 So.2d 864 (Ala.Civ.App.1993). Rather, in oral-notice cases, like other ‘knowledge’ eases, the employee has the burden of notifying the employer that his injury is work related. Williams, supra. The employer’s duty to investigate relates only to the details of the accident after the employee has provided the employer with information that the injury is work related. The employer has no duty to make the threshold determination of whether the employee is reporting a work-related injury.
“By requiring [Kiva Dunes] to question [Singleton] further to determine if [Singleton] was, in fact, reporting that he had injured himself emptying the trash can at work as opposed to emptying his own trash can at home, the trial court erroneously relieved [Singleton] of his primary duty to notify [Kiva Dunes] that his injury was work related and placed the burden on [Kiva Dunes] to establish, through investigation, whether the injury was work related. Following the reasoning of the trial court’s judgment, any time an employee reports an injury that could be work related, which is practically any type of orthopedic or neurological injury, the employer would have a duty to interrogate the employee to determine if, in fact, the employee is referring to an occupational injury.”

Singleton began working at D & E Investments, L.L.C., d/b/a Kiva Dunes, as a golf-cart attendant on October 80, 2002. Before working for Kiva Dunes, Singleton owned and operated 5 convenience stores and eventually had up to 27 employees before he retired from that business in January 2001.

Singleton testified at trial that he injured his lower back on Saturday, November 8, 2003, while emptying a 55-gallon trash can at Kiva Dunes golf course. Singleton worked the rest of that day, as well as the next day, Sunday, November 9, 2003, and never reported his injury to anyone. As part of his usual work schedule Singleton was off on Monday, November 10, 2003, through Thursday, November 13, 2003. Singleton testified in his August 23, 2004, deposition that when he “got up on the 10th [of November, 2003], [his] back was really bothering [him] a lot” so he telephoned his supervisor, Mark Stillings, from home and

“told Mark that [he] couldn’t work. That coming Friday was [his] scheduled day .... And [he] call[ed] him to tell him that [he] wasn’t going to work that Friday because [he] had hurt [his] back.”

During that telephone call from his house, Singleton stated:

“I told him I hurt my back and he asked me how, and I told him emptying the trash can.”

Singleton’s deposition was admitted into evidence at trial and the statement as to how he injured his back was identical to Singleton’s statement provided on April 16, 2004, before this action was filed. In that statement, Singleton said:

“That Monday Morning, with [sic] the Monday of the 10th, when I woke up that morning it was hurting down the front of my leg. So, I waited until about 8:30 you know to make sure that Mr. Stillings would be at work at that time and I called him at that time and told him that I had hurt my back emptying the trash can and that I was going to see my doctor as soon as I could and I definitely would not be at work my next scheduled day, which was Friday. He said okay, let me know how it’s going.”

The transcript of this statement was also admitted into evidence at trial.

At trial, however, Singleton attempted to change his stray, and he testified that he told Stillings that he had hurt his back “emptying the trash can at work Saturday night.” Singleton acknowledged the discrepancy with his previous testimony, and he admitted that he had twice before testified that he told Stillings that he had simply hurt his back “emptying the trash can.” On this disputed factual issue as to what Singleton actually said to Stillings, the trial court found that Singleton had stated merely that he had hurt his back “emptying the trash can.” The trial court’s finding reflects that the trial court did not accept Singleton’s trial testimony that he told Stillings he was injured “at work” or “on Saturday night.” This factual determination is not at issue.

Singleton ultimately testified at trial as follows:

“I would think [Kiva Dunes] would know that’s what I meant.
“I thought they knew what I was talking about.”

Kiva Dunes did not, however, understand Singleton to be complaining of an on-the-job injury. Stillings testified at trial that Singleton said nothing during this conversation to indicate that his back problem was work related in any way:

“Q. If [Singleton] would have said I hurt my back Saturday afternoon emptying the trash can at Kiva Dunes, would you remember that?
“A. I would remember that.
“Q. And if he would have said that, what would you have done?
“A. I would have immediately treated it as a workers’ compensation claim and filed a first report of injury.
“Q. Do you remember Mr. Singleton saying anything to you during the course of that conversation to indicate that this was a work-related claim in any way?
“A. No, sir.
“Q. And is what you’ve been telling us here basically your general recollection of kind of the theme of the conversation for lack of a better term; is that a fair statement?
“A. My remembrance of the phone call was that the problem he was having was somewhat general in nature, his back was bothering him. There was nothing that I can remember in that conversation that led me to believe that it was incident specific or work related in any shape or form.
“Q. That’s kind of a conclusory statement that you’re drawing saying that looking back now at that conversation there was nothing in it that triggered you to think this was a comp, claim and we’re treating it as such, right?
“A. That’s correct.
“Q. You knew what Mr. Singleton’s job duties were and what his responsibilities were in the performance of his job, correct?
“A. Yes, sir.
“Q. And you knew that emptying the trash can at the end of the day after he cleaned out the golf carts and got them ready for the next day’s use was one of his responsibilities?
“A. Yes, sir.
“Q. If he had told you that I injured my back emptying the trash can, is that not something that you understood his job which would have triggered you to think, you know, let me ask you a few more questions and see if this is something that happened at work?
“A. There was nothing that I remember him telling me that would have led me to believe that it was work-related in any way.”

Stillings testified further that in the context of Singleton’s telephone call to Still-ings on November 10, 2003, he simply could not have connected Singleton’s statement that he had hurt his back “emptying the trash can” with a work-related accident:

“A. With that statement being made, I don’t think that I could have put the two together. The fact that T’ve hurt my back emptying the trash can,’ he was calling me from home, I could not have tied those two together.
“Q. So that would not have prompted you to ask any more questions that had been stated?
“A. No, sir.”

After the November 10, 2003, telephone conversation, Singleton sought medical treatment from a doctor he had chosen. Singleton filed a claim for his treatment with his private health insurance, and his private health insurer paid for his medical treatment, with Singleton personally paying a co-payment for each visit to his doctor.

While Singleton was off work because of his injury, he periodically telephoned Still-ings to provide him with updates and progress reports of his treatment. During those calls over several months, Singleton never requested that Kiva Dunes pay for his medical treatment or that it provide any workers’ compensation payments or benefits. Singleton testified: “I didn’t ask them. I thought that was their ball game to do that.”

On March 31, 2004, the human resources department of Kiva Dunes informed Singleton of his option under its Family Medical Leave Policy to apply for Kiva Dunes’ Consolidated Omnibus Budget Reconciliation Act (hereinafter “COBRA”) health-insurance plan in order to continue his private health insurance. Singleton came to Kiva Dunes’ office and completed a COBRA application on March 31, 2004, but again failed to tell anyone at Kiva Dunes that his back injury was work related. Singleton stated:

“Q. And up until, I guess April of 2004, you hadn’t made any claim or said anything to anyone at Kiva Dunes about receiving benefits under workers’ comp.; is that right?
“A. Right.
“Q. And can you tell me why you didn’t seek those benefits?
“A. I had reported the injury to them and I thought it would be their responsibility to take care of it.”

Although Singleton had indeed reported that he had been injured, he never reported that the injury occurred at work. On April 1, 2004, the very next day after Singleton completed the COBRA application, Kiva Dunes first learned of Singleton’s claim for workers’ compensation benefits through a telephone call from his attorney. Kiva Dunes completed a “First Report of Injury” that same day.

In its August 18, 2006, order the trial court found as follows, in pertinent part, with regard to whether Singleton had provided Kiva Dunes with notice that he had suffered a work-related injury:

“5. The following day, Monday, November 10, 2003, [Singleton] testified that he telephoned the office at about 8:30 to 9:00 in the morning to talk to his supervisor, Mark Stillings, who was the director of golf at Kiva Dunes golf course.
“6. [Singleton] specifically testified that he told Mr. Stillings that he would not be able to come to work the following Friday, November 14, 2003, which was his next scheduled day to work. In particular, [Singleton] testified that he informed Mr. Stillings that the reason he would not be able to come to work that following Friday was that he had injured his back lifting the trash can.”

The trial court, however, did not find that Kiva Dunes had “actual knowledge” of the alleged workplace injury. Instead, the trial court concluded that Singleton’s statement that he had hurt his back “emptying the trash can” was “sufficient notice” of an injury in the line and scope of his employment and/or sufficient notice to “put a reasonable man on inquiry”:

“9. Mark Stillings testified at trial that he was fully aware that one of the specific duties which [Singleton] was required to perform at Kiva Dunes was the emptying of the 55-gallon trash container at the end of the day. The Court hereby finds that when [Singleton] reported to Mr. Stillings that he had hurt his back while emptying the trash can, this constituted sufficient notice to [Kiva Dunes] that this was an injury ivhich occurred within the line and scope of his employment. Under the authority of Russell Coal Company v. Williams, 550 So.2d 1007 (Ala.Civ.App.1989), the court finds that this constituted notice which was sufficient as to ‘put a reasonable man on inquiry that the injury [was] work-related.’

(Emphasis added.) The trial court then determined that “[Singleton] provided, and [Kiva Dunes] received, sufficient notice of that injury on November 10, 2003, when [Singleton] reported to his supervisor, Mr. Mark Stillings, that he had injured his back while emptying the trash can.”

On appeal, the Court of Civil Appeals, however, reversed the judgment of the trial court and held that Singleton’s statement that he was “emptying the trash can” did not constitute legally sufficient notice:

“Singleton’s statement ... did not indicate that the alleged injury was work related. Given the trial court’s specific determination of the content of Singleton’s statement, that statement did not provide notice of a connection between Singleton’s back injury and his employment. Although Stillings knew that Singleton’s work duties included emptying a trash can, there was nothing in Singleton’s statement that he had ‘injured his back while emptying the trash can’ identifying the ‘trash can’ referred to in the statement at the one at Kiva Dunes.”

D & E Investments, L.L.C., 6 So.3d at 511.

In reversing the trial court’s judgment, the Court of Civil Appeals relied on Premdor Corp. v. Jones, 880 So.2d 1148 (Ala.Civ.App.2003), stating:

“In Premdor ... this court reversed a trial court’s judgment awarding an employee workers’ compensation benefits because, this court concluded, the employee had not given her employer proper notice of her injury. In that case, the employee, Renelda Jones, worked as a buggy loader for her employer, Premdor Corporation. 880 So.2d at 1149. As a buggy loader, Jones loaded pieces of wood used in the manufacturing of doors into carts and pushed the carts to another work station. Id. Jones argued that she had given Premdor oral notice of her alleged work-related injury within 90 days of its occurrence. Id. at 1154. This court stated:
“ ‘Jones testified that she first informed Premdor of her injury when, approximately an hour after she had allegedly sustained the injury, she informed plant manager Larry Cagle that her back was hurting. Responding to questions from her attorney, Jones testified that she told Cagle: “I just said, on the day of the injury, I told him, I said, ‘I did something to my back,’ I said, ‘because it hurts,’ and he said, ‘well, you know, because everyone complains about such things.’ I thought it would go away.” Jones again related the substance of the conversation when questioned by Premdor’s attorney: “Well, I was hurting and kind of sweating, and he asked me kind of what was wrong, and I said, ‘Well, I did something to my back because I’m hurting,’ and that was the end of the conversation.” Jones also testified that on ... the day after she had returned to work following the initial injury, she informed her supervisor Kenny Price that she had injured her back. Specifically, Jones testified: “I said, ‘Kenny, I have hurt my back.’ ... I left and told him I had to get something done.”
“ ‘While Jones’s statements to Ca-gle, and later to Price, informed the Premdor agents that Jones had injured her back, those statements did not advise whether the injury occurred while Jones was performing her work duties. “The fact that an employer is aware that an employee has pain or [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.” Russell Coal Co. [v. Williams], 550 So.2d [1007] at 1012 [ (Ala.Civ.App.1989) ]. The employer must be notified that the employee was injured in the course of her employment. E.g., Ex parte Brown & Root, Inc., 726 So.2d 601 [ (Ala.1998) ]; Russell Coal Co., 550 So.2d 1007; Bethea v. Bruno’s, Inc., 741 So.2d [1090] at 1092 [(Ala.Civ.App.1999)]. By failing to inform Premdor that she injured her back while at work, Jones failed to comply with the notice requirement of the Workers’ Compensation Act.’
880 So.2d at 1154-55.
“In this case, the trial court found that Singleton had told his supervisor Stillings in a telephone conversation that he had ‘injured his back while emptying the trash can.’ The trial court found that, because Stillings knew that Singleton’s work duties included emptying a 55-gallon trash can, Singleton’s statement to Stillings provided proper notice of Singleton’s injury. However, Singleton’s statement, like Jones’s statement in Premdor, did not indicate that the alleged injury was work related. Given the trial court’s specific determination of the content of Singleton’s statement, that statement did not provide notice of a connection between Singleton’s back injury and his employment. Although Stillings knew that Singleton’s work duties included emptying a trash can, there was nothing in Singleton’s statement that he had ‘injured his back while emptying the trash can’ identifying the ‘trash can’ referred to in the statement as the one at Kiva Dunes.”

D & E Investments, 6 So.3d at 510-11.

Although notice may be deemed sufficient if the employer has such knowledge as would put a reasonable man on inquiry that the injury is work related, the employer, nevertheless, must have some knowledge connecting the injury to work-related activities. Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala.1998); Ex parte Slimp, 660 So.2d 994 (Ala.1995). Singleton is correct in that findings of fact in a workers’ compensation case based on ore tenus evidence are presumed correct on appeal and that the trial court is in the best position to determine the credibility of the evidence. Tallassee Super Foods v. Hepburn, 819 So.2d 63 (Ala.Civ.App.2001). However, in this case there is no evidence indicating that Singleton’s supervisor had actual knowledge connecting Singleton’s injury to work-related activities.

As shown above, Singleton was an employee at Kiva Dunes for less than 13 months when he was injured. Before this employment, he had owned and operated 5 convenience stores and had 27 employees. He was injured on the evening of November 8, 2003, a Saturday night, and at that time he gave no notice to his employer. He worked the next day, a Sunday, and still gave no notice of his injury to his employer. He telephoned the following day on Monday from his home, on a day that was not a workday for him, and stated that he had hurt his back emptying the trash can. Although his supervisor knew that one of his duties at work was to empty a trash can, it is also reasonable to assume that he had a trash can or cans at his house, as do most people. It is also reasonable to assume that he occasionally emptied his trash cans at his house, as do most people. The trial court found that all Singleton told his employer, other than that he would not be able to be at work on his next scheduled workday four days later, was that he had hurt his back emptying the trash can. Though Singleton was a former employer himself, he neither mentioned nor requested compensation benefits, which would certainly have put Kiva Dunes on notice that the injury was work related. He used his health-insurance coverage to cover his medical expenses, even paying his own co-payment, rather than requesting that Kiva Dunes workers’ compensation carrier pay these charges. A request to Kiva Dunes to pay his medical expenses would certainly have put Kiva Dunes on notice. During the numerous conversations he had with his supervisor while off work from his injury, Singleton never mentioned the trash can again, never referred to having been injured while at work, and never inquired about any workers’ compensation benefits of any kind or character. Other than the “trash can” conversation of November 10, 2003, no other communication, oral or written, ever alluded to or mentioned any work-related nature of his injury to his employer for the next four and one-half months, until the day after Singleton completed a COBRA application when his counsel telephoned Kiva Dunes.

The employee has the burden of proving that the employer had notice or knowledge of the alleged work-related injury. Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App.1994). In this proceeding, especially given the trial court’s finding on the disputed evidence as to what Singleton stated to his employer on the only occasion, among numerous opportunities, that he gave a reason for his back pain, the employer was not given sufficient knowledge to connect the injury to any work-related activities.

SEE, J., concurs.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    D & E INVESTMENTS, L.L.C., d/b/a Kiva Dunes v. Thomas W. SINGLETON.
    2051014.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.
    Ian D. Rosenthal and Joseph D. Stutz of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appellant.
    Richard E. Browning, Mobile, for appel-lee.
   BRYAN, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Singleton, 6 So.3d 515 (Ala.2008). The sole issue raised on appeal by D & E Investments, L.L.C., d/b/a Kiva Dunes (“Kiva Dunes”), was whether Thomas W. Singleton provided proper notice of his workplace accident to Kiva Dunes. In our prior judgment, this court reversed the trial court’s judgment finding that Singleton had provided proper notice to Kiva Dunes. D & E Invs., L.L.C. v. Singleton, 6 So.3d 506 (Ala.Civ.App.2007). Because the supreme court has concluded that the trial court did not err in finding that proper notice had been given to Kiva Dunes, and because the issue of notice was the only issue raised on appeal, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


author: MOORE, Judge. MOORE, Judge.

text:
    Scott Christopher HOBBS v. Dorarena Kay HEISEY.
    2070085.
    Court of Civil Appeals of Alabama.
    July 3, 2008.
    Opinion Overruling Rehearing Aug. 29, 2008.
    Certiorari Denied Oct. 10, 2008 Alabama Supreme Court 1071684.

      Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellant.
    William P. Burgess, Jr., Huntsville, for appellee.
   MOORE, Judge.

Scott Christopher Hobbs (“the father”) appeals from the denial of his motion filed pursuant to Rule 60(b), Ala. R. Civ. P. We affirm.

This is the second time these parties have been before this court. See Hobbs v. Heisey, 979 So.2d 821 (Ala.Civ.App.2007) (“Hobbs I ”). In Hobbs I, we set forth the relevant procedural history as follows:

“On June 16, 2000, the father and [Dorarena Kay Heisey,] the mother[,] were divorced by the Madison Circuit Court Pursuant to that judgment, the father and the mother were awarded joint legal and physical custody of then-minor child. On March 19, 2002, the court entered a judgment modifying the divorce judgment; under the 2002 judgment, the parents retained joint legal and physical custody of the child. On October 12, 2005, the mother filed a petition requesting that she be awarded primary physical custody of the child, that the court incorporate the ‘Standard Parenting Clauses routinely utilized by ... the [c]ourt,’ that she be awarded child support, and that she be awarded her fees and expenses.
“On November 21, 2005, the father filed his answer to the petition; he also filed a counterclaim in which he requested that, if the court were to determine that a change in custody was warranted, he be awarded primary physical custody of the child and child support. Further, the father requested that the court hold the mother in contempt for her alleged failure to comply with the prior orders of the court and that he be awarded an attorney fee. The mother answered the counterclaim on November 29, 2005.
“On January 19, 2006, the mother filed an amendment to her petition requesting that the court hold the father in contempt. After an ore tenus hearing, the court entered a judgment on March 22, 2006. The judgment provided that the parties would continue to share legal and physical custody of the child. The judgment further provided:
“ ‘This Court’s decision should not be interpreted by anyone that the ... father’s actions in disciplining the child in the past are considered to be appropriate. In fact, such conduct and actions by the father in the future, if proven, will result in appropriate action by the Court by way of sanctions and modifications as necessary.’
“The court ordered each party to pay their own attorney fees and denied both motions for contempt.
“On April 12, 2006, the father filed a motion to alter or amend the March 22, 2006, judgment, requesting that it clarify what forms of discipline it deemed unacceptable. On April 20, 2006, the mother responded to the father’s April 12, 2006, motion; she also filed a motion for a new trial or, in the alternative, to alter or amend the March 22, 2006, judgment. In her motion, she requested that the trial court award her primary physical custody of the child, incorporate the ‘standard parenting clauses’ used in the Madison Circuit Court, award her an attorney fee, and hold the father in contempt.
“On June 28, 2006, the trial court withdrew its March 22, 2006, judgment and entered an amended judgment awarding primary physical custody of the child to the mother, incorporating the ‘standard parenting clauses,’ awarding child support to the mother, finding the father in contempt, and awarding the mother an attorney fee.
“On July 27, 2006, the father filed a motion to alter or amend the June 28, 2006, judgment. He requested that the court order that the parties share legal and physical custody of the child, that the court vacate its finding of contempt and its award of an attorney fee to the mother, and that the court find the mother in contempt and award him an attorney fee. The mother responded to the father’s July 27, 2006, motion on September 12, 2006.
“On September 29, 2006, the court held a hearing on the father’s July 27, 2006, motion and, on October 26, 2006, 91 days after the postjudgment motion had been filed, the court purported to grant the father’s motion and to enter an amended judgment. On December 1, 2006, the father filed his notice of appeal; on December 7, 2006, the mother cross-appealed.”

979 So.2d at 822-23.

On appeal and cross-appeal, this court noted that, “because the October 26, 2006, judgment was entered after the 90-day period to rule on a postjudgment motion had expired, that judgment is void and will not support an appeal.” Hobbs I, 979 So.2d at 823. Therefore, in Hobbs I, which was released on August 17, 2007, we dismissed the appeal and the cross-appeal. Id.

Thereafter, on August 24, 2007, the father filed a motion for relief from the June 2006 judgment, pursuant to Rule 60(b)(5) and (6), Ala. R. Civ. P. That motion was denied on September 12, 2007.

On appeal, the father argues that the trial court exceeded its discretion in denying his Rule 60(b) motion. He argues that he is entitled to relief from the June 2006 amended judgment pursuant to Rule 60(b)(6) because, he says, the trial court entered the June 2006 amended judgment without taking additional evidence and because the trial court intended to vacate that judgment but failed to do so within the 90-day period provided by Rule 59.1, Ala. R. Civ. P.

“When considering Rule 60(b) motions, trial courts ‘attempt to balance the desire to remedy injustice against the need for finality of judgments.’ Raine v. First Western Bank, 362 So.2d 846, 848 (Ala.1978). ‘Whether to grant or deny relief under Rule 60(b)(6) is within the discretion of the trial judge, and the trial judge’s ruling on that question will not be reversed except for an abuse of that discretion.’ Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 283 (Ala.1998).

“‘The “catch all” provision of clause (6) of Rule 60(b) allows a trial court to grant relief from a judgment for “any other reason justifying relief.” Barnett v. Ivey, 559 So.2d 1082, 1084 (Ala.1990). “ ‘Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.’ ” Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984) (quoting Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)). Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5) .... Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has stated that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as seeking relief under clause (6).’
“[R.E. Grills, Inc. v. Davison,] 641 So.2d [225] at 229 [ (Ala.1994) ].
“Although grounds for relief under Rule 60(b)(1) generally cannot be used to provide relief under Rule 60(b)(6), our supreme court has recognized an exception when, in the interest of justice, ‘aggravating circumstances may allow a trial court to treat what would otherwise be a Rule 60(b)(1) motion as a Rule 60(b)(6) motion.’ Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 284 (Ala.1998). See also R.E. Grills, Inc. v. Davison, supra; Ex parie Oden, 617 So.2d 1020 (Ala.1992); Giles v. Giles, 404 So.2d 649 (Ala.1981).
“In Giles, the court quoted the following from 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2864 (1973):
“ ‘ “A quite typical kind of case is that in which a party comes in more than a year [four months] after judgment to assert that he is the victim of some blunder by his counsel. Claims of this kind seem to fit readily enough within such grounds as mistake, inadvertence, and excusable neglect, all stated in clause (1) [of Rule 60(b) ], and courts frequently have so reasoned and held that clause (6) was inapplicable. But if the court is persuaded that the interests of justice so require, it is likely to find aggravating circumstances sufficient to permit it to say that the case is properly within clause (6).” ’
404 So.2d at 651. Our supreme court, however, has generally limited the ‘aggravating circumstances’ exception to
“ ‘ “circumstances where the dismissal was the result of mistake, inadvertence, or neglect of counsel and where, despite all diligence exercised to protect his own interests, the client was unable to reasonably protect his interests because he ivas misled about the status or conduct of his case by his counsel.”
“Ex parte Wal-Mart Stores, Inc., 725 So.2d at 284 (quoting R.E. Grills, Inc. v. Davison, 641 So.2d at 230) (emphasis added). See also R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751, 758 n. 3 (Ala.1998); Ex parte Oden, 617 So.2d at 1027. According to the court, the aggravating circumstances exception
“ ‘applies to an extraordinary circumstance not contemplated by Rule 60(b)(1), for the purpose of protecting the public, vindicating the judicial process, and promoting the public’s confidence in the legal system.’
“R.E. Grills, Inc. v. Davison, 641 So.2d at 230; Ex parte Oden, 617 So.2d at 1027.”

Ex parte Spriggs Enters., 879 So.2d 587, 590-91 (Ala.Civ.App.2003).

Further, Rule 60(b) cannot be used as a substitute for an appeal of a final judgment. See E.S.R. v. Madison County Dep’t of Human Res., [Ms. 2060800, March 28, 2008] — So.3d -, - (Ala.Civ.App.2008).

Initially, we note that the circumstances presented in this case are appropriately addressed by Rule 60(b)(1), which provides for relief from a judgment due to “mistake, inadvertence, surprise, or excusable neglect.” The father mistakenly failed to recognize that the trial court’s October 2006 judgment purporting to amend the June 28, 2006, amended judgment had been entered after the 90-day period had elapsed. Instead of appealing from the June 2006 judgment, the father mistakenly appealed from the void October 2006 judgment, raising issues relating to the void October 2006 judgment. Motions filed pursuant to Rule 60(b)(1) must be filed within four months of the entry of the judgment; accordingly, the father was precluded from relying on that subsection.

The father argues that the facts of this case present sufficient aggravating circumstances to warrant the grant of his motion pursuant to subsection (6) of Rule 60(b). We disagree. These circumstances simply do not rise to the level of “an extraordinary circumstance not contemplated by Rule 60(b)(1)” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 230 (Ala.1994); see also Watson v. Watson, 696 So.2d 1071 (Ala.Civ.App.1997) (plurality opinion) (reversing the trial court’s grant of a party’s Rule 60(b)(6) motion based on similar circumstances). Finally, we note that the father cannot use Rule 60(b) as a substitute for an appeal of the June 2006 judgment. See E.S.R. v. Madison County Dep’t of Human Res., — So.3d at -.

Based on the foregoing, we affirm the trial court’s denial of the father’s motion filed pursuant to Rule 60(b)(5) and (6).

The mother’s request for the award of an attorney fee on appeal is denied.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

On Application for Rehearing

MOORE, Judge.

On application for rehearing, Scott Christopher Hobbs (“the father”) argues that this court should have held that, although his Rule 60(b)(6), Ala. R. Civ. P., motion was based on grounds more appropriately addressed under Rule 60(b)(1), his motion was due to be granted due to “exceptional circumstances.” See Ex parte Birmingham Airport Auth., 678 So.2d 757 (Ala.1996). The father contends that he could not have filed a Rule 60(b)(1) motion in the trial court within the four-month deadline set out in Rule 60(b) because both he and Dorarena Kay Heisey (“the mother”) had divested that court of jurisdiction by filing notices of appeal during that period. Thus, he argues, his only avenue of relief was under Rule 60(b)(6). We reject that argument.

Had the father filed a Rule 60(b)(1) motion before the appeals had been filed, the trial court would have had jurisdiction to rule on that motion. Harville v. Harville, 568 So.2d 1239, 1241 (Ala.Civ.App.1990). Further, even after the notices of appeal had been filed, the father could have sought leave from this court to file a Rule 60(b)(1) motion. Id. Had this court granted leave, the motion would have been deemed filed in the trial court on the date the motion to leave was filed with this court. Rule 60(b), Ala. R. Civ. P. In either case, the father could have timely filed his Rule 60(b)(1) motion; therefore, there are no exceptional circumstances that would justify treating his motion as a Rule 60(b)(6) motion.

Further, in the father’s brief in support of his application for rehearing, he states that “this Court has recognized that he should have been afforded relief from the judgment, albeit under Rule 60(b)(1).” We note that we did not so hold. Instead, this court merely recognized that the father’s motion would have been more appropriately characterized as a Rule 60(b)(1) motion for relief from judgment. We expressed no opinion as to whether the father would have ultimately prevailed if he had filed a timely motion pursuant to that subsection.

For the foregoing reasons, we overrule the application for rehearing.

APPLICATION OVERRULED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . On appeal, the father does not argue the grounds set forth in Rule 60(b)(5).


author: THOMAS, Judge.

text:
    Constance J. SMITH v. Gregory L. SMITH, Jr., and Flowerwood Nursery, Inc.
    2070335.
    Court of Civil Appeals of Alabama.
    Aug. 1, 2008.
    Certiorari Denied Oct. 10, 2008 Alabama Supreme Court 1071574.

      See also 892 So.2d 384.

      David A. Simon of Wills & Simon, Bay Minette, for appellant.
    Daniel G. Blackburn and Mark H. Ta-upeka of Blackburn & Conner, P.C., Bay Minette, for appellees.
   THOMAS, Judge.

Constance J. Smith (“the former wife”) appeals from a judgment imposing a resulting trust in favor of Flowerwood Nursery, Inc. (“Flowerwood”), on property in which she claims an interest. We affirm.

The former wife and Gregory L. Smith (“the former husband”) were divorced in 2001. This is the second time they have been before this court. For an understanding of the facts and procedural history underlying this appeal, we quote from this court’s decision in Smith v. Smith, 892 So.2d 384 (Ala.Civ.App.2003) (hereinafter referred to as “Smith I ”):

“The trial court incorporated into the divorce judgment an agreement the parties had reached as the result of mediation. After providing for the division of the parties’ retirement accounts, the division of certain real property, the allocation of various items of personal property, and the husband’s payments to the wife of alimony in gross, the agreement recites, in paragraph 9:
“ ‘Each party shall keep any other account and any other property presently in their individual names with Wife disclaiming any and all interest she may have in any interest in which Husband owns in any business or other property including, but not limited to, Flowerwood Nursery of Alabama, Flowerwood Nursery of Georgia, Flowerwood Liners, PDSI, Summit Landscaping, Inc. and Flowerwood Management.’
“The agreement requires the parties to ‘execute all necessary documents to carry out the provisions of their agreement.’
“After the divorce, the husband sought to have the wife execute a quitclaim deed transferring to him her interest in a 19-acre parcel of real property located in Baldwin County and used in connection with the operation of the husband’s business, Flowerwood Nursery. The wife refused to execute a quitclaim deed; instead, she filed suit in Baldwin Circuit Court seeking a sale for division of the 19-acre parcel.
“In July 2003, the husband filed an action seeking a judgment declaring that he had been awarded the 19-acre parcel by virtue of paragraph 9 of the agreement incorporated into the divorce judgment; he also filed a motion to enforce the divorce judgment, seeking to compel the wife to execute a quitclaim deed to the property. The wife answered, alleging that she still had an interest in the 19-acre parcel that she had not relinquished by agreeing to paragraph 9 of the agreement. Following a hearing, the trial court held that, pursuant to paragraph 9 of the agreement, the husband had been awarded the disputed property; the court ordered the wife to execute, within 30 days of the entry of its judgment, the necessary deed to convey title to the husband. The wife appeals.
“Apparently, the trial court concluded that paragraph 9 of the agreement incorporated into the divorce judgment was ambiguous because it held a hearing and received parol or extrinsic evidence concerning the parties’ intent with regard to the ownership of the 19-acre parcel. The record contains a deed, dated August 17, 1988, and recorded on August 22, 1988, conveying the disputed property from Charles W. Barnhill and Virginia P. Barnhill, husband and wife, to the husband and the wife, as joint tenants with the right of survivorship. The record also contains an unrecorded instrument dated August 18, 1988, and signed by the husband and wife, which reads as follows:
“ ‘Deed Correction
“ ‘WHEREAS the Flowerwood Nursery paid a sum of $69,000 to Barnhill for a parcel of land ..., and said land was incorrectly titled in the name of Gregory L. Smith, Jr., and Connie J. Smith, and
“ ‘WHEREAS it is intended that the land be used by Flowerwood Nursery in its growing operations, and
“ ‘WHEREAS it is not intended that the Smiths benefit from or dispose of said property without proper compensation to Flowerwood,
“ ‘NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS that Gregory L. Smith, Jr., and Connie J. Smith, for and in consideration of the sum of Ten Dollars ($10.00), agree that for a period of Ninety-Nine years they shall sell said parcel to NONE OTHER THAN Flowerwood Nursery, Inc., a corporation of Alabama, and shall sell said parcel at a price of Ten Dollars ($10.00). In the event of their deaths, said property will automatically be transferred as if sold as described above.
“‘IT IS FURTHER AGREED that Gregory L. Smith, Jr. and Connie J. Smith shall not use said property without paying Flowerwood Nursery a rate of thirty five hundred dollars per acre for the amount used by them, and agree further that at this time true and correct deeding shall be executed and recorded, reflecting a correct ownership of, and payment for, said parcel.
“ 7s/ Gregory L. Smith Jr.
“ ‘/s/ Connie J. Smith’
“The husband testified that Flower-wood Nursery is a corporation owned by his family; that in 1988 he was the corporate secretary; and that he is now the president and general manager. He presented evidence that Flowerwood Nursery had paid for the 19-acre parcel in 1988; that it had listed the property as a capital asset on its books since that time; that it had made numerous improvements to the property; and that the property was essential to its business operations. The husband testified that the August 17, 1988, deed from the Barnhills was the result of a tax-free exchange. He explained that naming the wife and him as grantees in the deed was a ‘mistake’ and that, therefore, he had typed a document that he called a ‘Deed Correction’ the following day, August 18, 1988. The husband acknowledged that the ‘Deed Correction’ did not purport to transfer title to the property to Flowerwood Nursery and that the parties never executed another deed conveying the property to Flowerwood Nursery. The husband conceded that his argument that the wife had no interest in the property was based solely on paragraph 9 of the agreement incorporated into the divorce judgment. The wife testified that she did not read the deed correction instrument before she signed it on August 18, 1988, but, she said, she signed it because the husband had asked her to do so. The wife stated that the husband had told her that the purpose of the deed correction document ‘was to protect the nursery from lawsuits, and that was good enough tor [her].’ ”

Smith I, 892 So.2d at 385-87.

In Smith /, a majority of this court held that paragraph 9 of the divorce judgment was not ambiguous and that

“at the time of the divorce, the wife was a joint tenant with the husband in the 19-acre parcel; that paragraph 9 did not operate to disclaim her interest in that property; and that the wife retains her interest in the 19-acre parcel.”

892 So.2d at 389. After this court issued its opinion in Smith I, the former husband filed a petition for a writ of certiorari with the Alabama Supreme Court. That court initially granted the petition, but, on May 28, 2004, it quashed the writ.

On September 7, 2004, Flowerwood filed a complaint in intervention in the former wife’s 2002 Baldwin Circuit Court action in which she had requested an accounting and a sale for division of the 19-aere parcel. Flowerwood’s complaint alleged that it had supplied the purchase money for the Smiths’ 1988 purchase of the 19-acre parcel, that it had thereafter listed the property as a capital asset on its books, that it had made substantial capital improvements to the property, and that the property was essential to its nursery operations. Accordingly, Flowerwood requested the following alternative relief: that the court construe the parties’ August 18, 1988, deed-correction instrument as a real-estate purchase contract and order the property to be sold to Flowerwood pursuant to the terms of that instrument, or that the court construe the deed-correction instrument as an equitable mortgage, or that the court impose a constructive trust on the 19-acre parcel in favor of Flowerwood. On January 24, 2006, Flowerwood amended its complaint to request that the court impose a resulting trust in its favor.

On March 30, 2005, the former wife answered Flowerwood’s complaint in intervention, seeking reasonable rents and an accounting and alleging that Flowerwood was guilty of conversion and conspiracy. On June 6, 2007, the circuit court conducted a bench trial. The former husband testified that he and the former wife had obtained the disputed 19-acre parcel by deed from Charles W. Barnhill and Virginia P. Barnhill on August 17, 1988. He said that the transaction was a tax-free exchange, pursuant to 26 U.S.C. § 1031, whereby he and the former wife received the 19-acre parcel in exchange for convenience-store property on Dauphin Island Parkway plus $70,129.50. The former husband stated that he had put up $1,000 of that sum as earnest money and that the balance had come from a money-market account owned by Flowerwood. He introduced a personal check for $1,000 drawn on an account in his name only and a cashier’s check for $69,129.50 from the Flowerwood account. He also introduced the Flowerwood general ledger containing a journal entry for August 17, 1988, showing a debt receivable from the former husband for $69,129.50. The former husband explained that he had intended the grantee named in the deed to the 19-acre parcel to be Flowerwood, but, he said, the title company had informed him that, because the transaction was a § 1031 exchange, the grantees had to be the former wife and him. Accordingly, he said, he had drafted the deed-correction instrument the day after the closing in order to protect Flower-wood. The former husband stated that, at the end of the 1988 tax year, the Flower-wood ledgers were changed to reflect that the 19-acre parcel was a Flowerwood capital asset.

The former husband testified that, after acquiring the 19-acre parcel, Flowerwood began to make improvements to the property, beginning with the construction of a large pond to provide water for irrigation of the plants grown on Flowerwood properties. He said that the former wife knew of the improvements and made no objection. The former husband estimated that Flowerwood had spent $561,824.09 on improvements, including the construction of a pond; the digging of wells and the installation of pumping devices; the creation of an underground piping and irrigation system; the construction of a shade house, a guard house, and a potting house; the installation of a pot-cleaning machine and a hopper; and the creation of growing beds.

The former wife acknowledged that she had read and voluntarily signed the deed-correction instrument because the former husband had told her that the document was to “protect Flowerwood.” She explained that, during her marriage to the former husband, what had benefited Flow-erwood had benefited her. She also acknowledged that, despite the fact that legal title to the 19-acre parcel was held in the names of the former husband and her, she had not objected to Flowerwood’s use or improvement of the property. Finally, she agreed that Flowerwood had paid the Barnhills $69,129.50 for the property.

On June 27, 2007, the circuit court entered a judgment containing the following findings of fact and conclusions of law:

“1. On August 17, 1988, [the former wife] and [the former husband] were conveyed the record title to certain real property in Baldwin County, Alabama, more particularly described as follows:
“ ‘The South Half of the Northeast Quarter of the Southeast Quarter of Section 3, Township 5 South, Range 3 East, Baldwin County, Alabama.’
“Said lands are hereinafter referred to as ‘the Property.’
“2. The trial testimony was without dispute that the funds for the purchase of the Property were supplied by and for the use and benefit of Intervenor Flow-erwood Nursery, Inc., and not as a gift or loan to [the former wife] and [the former husband]. Title was taken in the names of [the former wife] and [the former husband] in accommodation to the grantors of the Property who were seeking a tax-free exchange. From the date of conveyance, [Flowerwood] has used the property for its benefit and has made substantial improvements thereon.
“3. [The former wife] and [the former husband] held the property in recognition of, and not adverse to, [Flower-wood] at least until them divorce in [2001], The Court specifically finds from the evidence that [the former wife] and [the former husband] periodically and continually recognized [Flower-wood’s] interest in the Property by having actual knowledge of improvements constructed thereon without objection or complaint. [Flowerwood’s] claims are therefore not barred by the ten-year statute of limitations in actions for the recovery of land.
“4. Where one pays for the purchase of real property conveyed to another, there is a presumption that the latter holds the property for the benefit of the former. [Flowerwood] has proven that it is entitled to the beneficial interest of the property, and [the former wife] has failed to rebut the presumption.
“5. Based on the foregoing, the Court imposes a resulting trust on the Property held by [the former wife] and [the former husband], as trustees for the benefit of [Flowerwood], divests all of [the former wife’s] and [the former husband’s] interests in the Property and grants title to the property in fee simple absolute to Intervenor Flowerwood Nursery, Inc.
“6. Having ruled in favor of [Flower-wood] on its resulting trust claim, all other claims by all parties are dismissed.”

The former wife appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, the former wife argues that the circuit court erred (1) by imposing a resulting trust in favor of Flowerwood when, she says, Flowerwood’s claim was barred by the statutory limitations period; (2) by striking her jury demand; and (3) by imposing a resulting trust as to the entire property when, she says, Flowerwood did not pay the entire purchase price.

I.

In Woodard v. Funderburk, 846 So.2d 363 (Ala.Civ.App.2002), this court discussed the principles underlying the imposition of a resulting trust:

“ ‘A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest in the property.’
“5 William F. Fratcher & Austin W. Scott, The Law of Trusts, § 404.1 at 6 (4th ed.1989). A purchase-money resulting trust is implied in law when one person pays for the purchase of land and title is taken in the name of another. See, e.g., Lauderdale v. Peace Baptist Church, 246 Ala. 178, 180, 19 So.2d 538, 539 (1944). See generally George G. Bogert and George T. Bogert, The Law of Trusts and Trustees § 454 (rev.2d ed.1991); Fratcher & Scott, The Law of Trusts, § 440.
“ ‘The principle has its foundation in the natural presumption that one who supplies the purchase money intends the purchase to be for his own benefit and not for another, and when the conveyance is taken in the name of another the presumption usually arises that the grantee is holding the land in trust for the purchaser.’
“Rodgers v. Thornton, 254 Ala. 66, 68, 46 So.2d 809, 810 (1950).
“ ‘This resulting trust depends for its existence on the actual intent of the creator, expressed in acts other than writing or the spoken word. The conduct of the payor with reference to the price and deed lead the court to infer an intent to have a trust for himself. The theory of enforcement is that of carrying out the intent of the settlor, just as truly as if he had reduced his trust to writing and inserted it in the deed. Resulting trusts are “intent enforcing” just as much as are the usual express trusts. They bear little or no relationship to constructive trusts, which do not arise out of intent but depend for their existence on the wrongful conduct of the defendant which induces a court to adjudge him a trustee.’
“Bogert, § 454 at 249.”

Woodard v. Funderburk, 846 So.2d at 368.

The statute of limitations for seeking the imposition of a resulting trust in land is 10 years. Haavik v. Farnell, 264 Ala. 326, 87 So.2d 629 (1956); Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212 (1955); and Knowles v. Canant, 255 Ala. 331, 51 So.2d 355 (1951). “ ‘When a trust is imposed by law, as in the case of a resulting trust, the statute begins to run in favor of the holder of the legal title against the equitable owner at the time of the conveyance, if there is no recognition of the [beneficiary’s] rights; if his rights are recognized, then at the timp when the holder of the legal title begins to hold adversely.” ’ Haney v. Legg, 129 Ala. 619, 627, 30 So. 34, 36 (1901) (enforcing a trust after more than 35 years) (quoting 2 Perry, Trusts § 865 (5th ed. 1899)). The statutory limitations period does not begin to run upon an action to establish a resulting trust so long as there is a recognition of the trust by the trustee. Henslee v. Merritt, supra; Sykes v. Sykes, 262 Ala. 277, 78 So.2d 273 (1954); and Jacksonville Public Serv. Corp. v. Profile Cotton Mills, 236 Ala. 4, 180 So. 583 (1938).

Flowerwood’s complaint in intervention was filed on September 7, 2004— 16 years after the August 17, 1988, deed from the Barnhills to the Smiths. Nevertheless, we hold that the circuit court did not err in concluding that Flowerwood’s claims were not barred by the 10-year statute of limitations. The former wife’s testimony at trial demonstrates that, from the time she signed the deed-correction instrument in 1988 until she and the former husband were divorced in 2001, she recognized and acknowledged Flower-wood’s superior right to and ownership of the 19-acre parcel and asserted no hostile claim to the property. See Haney v. Legg, 129 Ala. at 626, 30 So. at 36 (stating that “no hostile claim was asserted by the husband, but a distinct and unqualified admission by him of [his wife’s] superior right and ownership. Manifestly, on this state of facts, the statute of limitations which is founded upon an adverse, hostile claim of ownership, is no defense.”).

II.

The former wife argues that the circuit court erred by striking her jury demand. A trial court “should exercise its discretion liberally in favor of granting a jury trial in the absence of strong and compelling reasons to the contrary.” Fuino v. Morrow, 427 So.2d 710, 712 (Ala.Civ.App.1983). The standard of review applicable to a trial court’s striking a party’s jury demand is whether the court’s action clearly exceeded the limits of its discretion. See Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 669 (Ala.1981).

“When legal and equitable claims are presented in one action, the trial court must resolve the equitable claims in a way that does not impinge on a party’s right to a jury trial as to the legal claims. Purely legal claims, as well as factual issues common to the legal and equitable claims, must be determined by a jury; the remaining issues are then to be decided by the trial court.”

Wootten v. Ivey, 877 So.2d 585, 589 (Ala.2003) (citations omitted).

On May 24, 2002, the former wife filed a complaint for an accounting and a sale for division of the property, and she demanded a struck jury. A complaint for an accounting states a claim for equitable relief, see Boyett’s, Inc. v. Gross, 276 Ala. 452, 459, 163 So.2d 610, 617 (1964); Martin Stamping & Stove Co. v. Manley, 260 Ala. 112, 121, 69 So.2d 671, 679 (1953), for which a trial by jury is not available, see Wootten v. Ivey, 877 So.2d at 588. Similarly, a complaint seeking a sale for division of real property that presents no issue as to the plaintiffs title and does not allege that the defendant is denying the plaintiffs title and claiming title in himself seeks only equitable relief. See Brown v. Bateh, 331 So.2d 671, 676 (Ala.1976) (stating that “[wjhere land cannot be partitioned equitably, an equity court has jurisdiction to sell it for division among the joint owners or tenants in common”); Ex parte Nixon, 239 Ala. 306, 195 So. 228 (1940). The former wife’s complaint alleged that she and the former husband were tenants in common of the property and that “the property ... [could] not be equitably partitioned or divided in kind between the tenants in common without a sale thereof.” Because the former wife’s complaint presented no issue with respect to title and did not aver that the former husband was denying her title, the former wife’s sale-for-division claim was equitable and she was not entitled to a trial by jury.

On July 16, 2002, however, the former husband answered the former wife’s complaint and denied her interest in the property, thereby placing the question of title to the property at issue. The former husband could have demanded a jury trial. See Ex parte Clark, 643 So.2d 977, 978 (Ala.1994) (stating that “[a] defendant in an action for partition of real estate or for the sale of real estate for a division of the proceeds, who denies the plaintiffs title or sets up an adverse claim, is entitled to a jury trial on demand, if the demand complies with Rule 38(b), Ala. R. Civ. P.; Ala. Code 1975, § 6-8-1”); Freeney v. Stallworth, 344 So.2d 752, 753-54 (Ala.1977). The former husband, however, did not demand a jury trial. At that point, with the question of title having been put at issue, the former wife could have demanded a jury trial if she had filed her demand within 30 days of being served with the former husband’s answer, but she did not, and she thereby waived her right to a trial by jury pursuant to Rule 38(d), Ala. R. Civ. P. See Ex parte Clark, 643 So.2d at 978 (stating that “[i]n the context of an action seeking a sale for division, Rule 38(b) requires that the party make the jury demand within 30 days after the service of the last pleading pertaining to the issues on which the jury trial is demanded”).

On September 7, 2004, Flowerwood filed a complaint in intervention seeking purely equitable relief; Flowerwood did not demand a jury trial. On March 24, 2005, the former husband filed a motion to strike the former wife’s jury demand. On March 30, 2005, more than six months after the service of the complaint in intervention, the former wife answered Flower-wood’s complaint in intervention, counterclaimed seeking an accounting and alleging conversion and conspiracy, and demanded a jury trial. On April 28, 2005, Flowerwood joined the former husband’s motion to strike the former wife’s jury demand. On October 20, 2005, the circuit court granted the motion to strike the former wife’s jury demand.

Although the former wife’s counterclaim alleging conversion and conspiracy would appear to have stated “new legal issues,” thereby entitling her to a trial by jury on those issues, see Ex parte Twintech Indus., Inc., 558 So.2d 923, 925 (Ala.1990), the conversion and conspiracy claims were actually derivative of and dependent upon the former wife’s having title to the property, an issue upon which the former wife had already waived her right to a trial by jury by failing to demand a jury trial in response to the former husband’s answer to her complaint seeking a sale for division. Cf. Curry v. Pyramid Life Ins. Co., 271 F.2d 1 (8th Cir.1959), (holding that the failure to demand a jury trial in an answer will lead to a waiver of the right to a jury trial and that a subsequent counterclaim on the same issue will not revive the right to a jury trial already waived as to that issue).

With respect to conversion, the former ■wife’s counterclaim alleged the following:

“1. [Flowerwood] has taken possession of the real property made the basis of this cause and has exercised dominion and control to the exclusion of the [former wife],
“2. [Flowerwood] has used the said real property to make money for its business enterprise by removing water therefrom and appropriating such water, which is the personal property of the [former wife], to its own use and benefit to the exclusion of the right of the [former wife],
“3. [The former wife] has received nothing from [Flowerwood] as compensation for the taking of her personal property and has therefore suffered damage.”

The foregoing allegations are dependent upon the former wife’s having title to the disputed property, a question put in issue by the former husband’s answer to the former wife’s complaint seeking a sale for division of the property and a question upon which the former wife had already waived her right to a jury trial.

With respect to conspiracy, the former wife’s counterclaim alleged the following:

“1. [Flowerwood] and the [former husband] have conspired by unlawful, oppressive and/or immoral means to deprive the [former wife] of the rightful and lawful benefit of her real and personal property; and
“2. [Flowerwood] and the [former husband] have conspired to cause [Flow-erwood] to make claims against the [former wife] in an effort to avoid and/or otherwise change the effects of the rulings of the Alabama Court of Civil Appeals and the Supreme Court of Alabama, which both held [the former wife] to be the lawful title owner of a one-half undivided interest in and to the real property that is the basis of this cause of action; and
“3. [Flowerwood] and the [former husband] have conspired to cause [Flowerwood] to make claims against the [former wife] in an effort to avoid and/or otherwise change the effects of the rulings of the Alabama Court of Civil Appeals and the Supreme Court of Alabama, which both held that the ‘Correction Deed’ relied upon by [Flower-wood] in making these claims, was a nullity, was void and in no way effective in transfer of any interest in the real property made the basis of this cause; and
“4. [The former wife] has been damage[d] by the acts in conspiracy by and between [Flowerwood] and the [former husband].”

The former wife’s conspiracy allegations are also dependent upon her having title to the disputed property, an issue upon which the former wife waived her right to a trial by jury by failing to demand a jury trial within 30 days of being served with the husband’s answer to her complaint seeking a sale for division of the property. In addition, the former wife’s allegations regarding the import of this court’s decision in Smith I are factually and legally incorrect. In Smith I, this court held that paragraph 9 of the Smiths’ divorce judgment disclaimed only any legal interest the wife had in the disputed property; this court did not purport to decide equitable interests in the property because that issue was not before us. In addition, in Smith I this court did not hold that the deed-correction instrument was “a nullity” or “void” for all purposes. Instead, we held that the instrument “[did] not meet the requirements for a valid conveyance in Alabama,” and that, as an instrument of conveyance, it was void. Smith I, 892 So.2d at 388 (emphasis added). The question whether the deed-correction instrument was relevant for some other purpose, such as whether it is illustrative of the parties’ intent with respect to the purchase of the 19-acre parcel, was not before us in Smith I.

We conclude that the circuit court did not exceed the limits of its discretion in striking the fox-mer wife’s jury demand.

III.

The former wife maintains that the circuit coui’t erred by imposing a resulting ti'ust in favor of Flowerwood as to the entire property when the evidence indicated that Flowei*wood did not pay the entire purchase price. She claims that, because the former husband contributed $1,000 of the total purchase price of $70,129.50 for the property, she and the former husband still own 1.426% of the property.

“[I]t is not indispensable that the whole of the purchase money should have been paid out of the funds of complainant. Any portion of money of the other used in the pui’chase of property raises a resulting trust in favor of the owner of moneys used to the extent of the sum so used.”

Jacksonville Public Serv. Corp. v. Profile Cotton Mills, 236 Ala. at 9, 180 So. at 587 (emphasis added).

The former wife’s argument that she should receive part of the former husband’s proportionate share of the purchase price of the property seems to ignore the undisputed evidence indicating that the former husband’s $1,000 earnest-money check was drawn on his individual account and not on a joint account with the former wife. Nevertheless, the former wife cites Mayo v. Gortney, 468 So.2d 147, 149 (Ala.1985), for the proposition that when a husband pays the purchase price for land and takes title in the name of his wife, the law presumes that the husband intends to make a gift to the wife. The circuit court, however, clearly found that, if that presumption existed, it had been rebutted; the court determined that “the funds for the purchase of the propei'ty were supplied ... for the use and benefit of [Flower-wood] and, not as a gift or loan to [the former wife ].” (Emphasis added.) We hold that the former wife has no proportionate interest in the 19-acre parcel.

The judgment of the Baldwin Circuit Coui't is affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

PITTMAN, J., recuses himself.