text:
    Ethel WILLIAMS et al. v. Alfred JACKSON.
    2110451.
    Court of Civil Appeals of Alabama.
    Feb. 22, 2013.
    Christmas Y. Green, Selma, for appellants.
    Jerry L. Thornton, Hayneville, for ap-pellee.
   PITTMAN, Judge.

Ethel Williams and seven of her eight surviving siblings appeal from a judgment of the Lowndes Circuit Court entered in favor of their nephew, Alfred Jackson, the son of a deceased sibling. We affirm in part, reverse in part, and remand with instructions.

Factual and Procedural Background

The marriage of Emma Jackson (“Emma”) and Matthew Jackson, Sr. (“Matthew, Sr.”), produced 10 children: Ethel Jackson Williams; John Jackson; Matthew Jackson, Jr.; Willie Jackson; James Jackson; Leon Jackson; Dorothy Jackson Hinson; Clifford Jackson; Horace Jackson; and Annie Belle Jackson. Emma and Matthew, Sr., owned 158 acres of real property in the White Hall community of Lowndes County. In 1968, they conveyed 3.288 acres to their daughter, Annie, who built a house on the .property. In 1978 or 1979, Annie’s house burned, and a new house was constructed. Matthew, Sr., died intestate and Emma went to live with Annie in the new house. Emma died intestate in 2002. Annie died intestate in 2007, survived by one child, Alfred Jackson, the appellee. In July 2008, the Lowndes Probate Court appointed Alfred as the administrator of Annie’s estate.

On June 4, 2009, the nine surviving Jackson siblings filed a complaint seeking declaratory and injunctive relief and naming Alfred, individually and in his capacity as the administrator of Annie’s estate, as the defendant. The complaint alleged that Annie’s house was not located on the property that had been conveyed to her by Emma and Matthew, Sr., in 1968, but on property that had been owned by Emma and Matthew, Sr., during their lifetimes, and, consequently, the siblings asserted, the house was jointly owned by all lineal descendants and heirs at law of Emma and Matthew, Sr. The complaint further alleged that Annie had executed a holographic will that, the siblings asserted, had manifested Annie’s intent that the house was to be used and enjoyed by all the heirs of Emma and Matthew, Sr., as a “family home house.” The siblings sought a declaration that the heirs of Emma and Matthew, Sr., jointly owned the house and an order enjoining Alfred from prohibiting or restricting their access to the house.

On June 24, 2009, the trial court entered an order denying the declaratory and in-junctive relief sought by the Jackson siblings and stating that “[aJll other issues are reserved for future consideration of the court, including those raised in the defendant’s motion to dismiss.” The trial court stated that its order was based on evidence presented at a June 18, 2009, hearing — including a certified copy of a 1968 deed from Emma and Matthew, Sr., to Annie and a survey of the property described in that deed — indicating that there was no dispute that the house was located on property that had been conveyed to Annie by Emma and Matthew, Sr., in 1968. The trial court further stated that, at the hearing, siblings Ethel Williams and John Jackson had “admitted that no verified claim had been filed with the probate court concerning the house and/or any of its contents that [the Jackson siblings] now claim to own.”

The record on appeal as originally certified and transmitted to this court did not contain either a transcript of the June 18, 2009, hearing, or Alfred’s motion to dismiss the siblings’ complaint, or a summary-judgment motion filed later by Alfred, despite the siblings’ having designated the “[ejntire record (less those items set forth in Rule 10(a)[, Ala. R.App. P.]),” to be included in the record on appeal. Pursuant to Rule 10(f), Ala. R.App. P., this court, on its own initiative, directed that the record be supplemented to include Alfred’s two motions.

Alfred’s first motion sought dismissal of the siblings’ claims to personal property in the house based on their failure to have filed any claims against Annie’s estate within the time allowed by § 43-2-350, Ala.Code 1975. The second motion sought a summary judgment on all claims, contending that the claims were barred either by the doctrine of laches, or by the 20-year rule of repose, or by the siblings’ failure to have filed a timely claim against Annie’s estate.

In support of his summary-judgment motion, Alfred attached, among other things, an affidavit from the Lowndes County probate judge, stating that none of the siblings had filed a claim against Annie’s estate. The siblings filed a response in opposition to Alfred’s summary-judgment motion, supported by, among other things, the affidavit of John Jackson and excerpts from the transcript of John Jackson’s testimony at the June 18, 2009, hearing, both tending to show that John Jackson had paid a $6,000 down payment on the Mercedes-Benz automobile that Annie had purchased in 2003. Alfred moved to strike as inadmissible all the evidentiary materials submitted in support of the siblings’ response to the summary-judgment motion.

Based upon the portions of the trial court’s June 24, 2009, order that are quoted and emphasized above, and based upon excerpts from the transcript of the June 18, 2009, hearing that were submitted in support of and in opposition to Alfred’s summary-judgment motion, it is clear that the parties litigated matters other than the location of Annie’s house at the June 18, 2009, hearing. Specifically, it appears that the following issues were tried by the consent of the parties at that hearing: whether the siblings had any equitable interest in Annie’s house based on their having contributed money, labor, and materials for the reconstruction of Annie’s house after the fire in the late 1970s; whether any of the furniture, furnishings, and household goods in Annie’s house had belonged to Emma and Matthew, Sr., during their lifetimes or to any of the surviving Jackson siblings; whether John Jackson had any interest in the Mercedes-Benz automobile that Annie owned at the time of her death by virtue of his allegedly having made a down payment on the purchase price of the vehicle and his having cosigned Annie’s promissory note to First Lowndes Bank in connection with the purchase of the vehicle; whether Ethel Williams had any interest in the Mercedes-Benz automobile by virtue of her having made, after Annie’s death, the monthly payments on Annie’s loan indebtedness to First Lowndes Bank; and whether Ethel Williams had any interest in Annie’s house by virtue of her having paid the utility bills and ad valorem taxes after Annie’s death.

Before the trial court ruled on the additional matters in dispute, the parties requested that the case be referred to mediation. The trial court ordered the parties to mediation on May 25, 2010. On August 10, 2010, the parties agreed to settle all issues except those relating to the Mercedes-Benz automobile as follows:

“1. Alfred Jackson will convey the home-house property [on] Freedom Road[ ] to the Jackson heirs for the total sum of $150,000 and the assumption of the mortgage, which is approximately $30,500. The $150,000 will be paid as follows: $100,000 within 30 days of this date and $50,000 within 90 days of today’s date. Possession of the property will be delivered and deed conveyed upon full payment and assumption of mortgage, but not sooner than 30 days from today’s date. If full payment is made within 30 days, Alfred Jackson shall have 10 days to deliver a deed and vacate the premises.
“2. The parties agree that the contents of the house will be divided as follows:
“Alfred Jackson will have possession of all property identified as owned by his mother.
“The Jackson [siblings] will have all of the property identified as owned by their mother, father, and Matthew Jackson, Jr., and other siblings. The parties agree to deal in good faith in identifying the property. The parties agree that representatives will meet within 7 to 10 days at the home to attempt to resolve any disputes as to the furniture in the house.
“Alfred Jackson agrees that the portrait of Emma is to be displayed in a place agreeable to the parties. Ownership will be in all of the Jackson heirs, including Alfred Jackson.
“The issues as to the automobile are not decided in this agreement. No property will be removed from [the] house other than Alfred Jackson’s belongings, pending ownership being identified.”

In December 2010, the Jackson siblings filed a motion alleging that Alfred had breached the mediation agreement and requesting that the trial court enforce that agreement.

The trial court conducted a final hearing on September 7, 2011, during which the parties agreed that the only remaining issues were (1) the ownership of the personal property in Annie’s house and whether Alfred had breached the mediation agreement with respect to that property and (2) whether anyone other than Alfred had an interest in the Mercedes-Benz automobile.

On November 28, 2011, the trial court entered a judgment that stated, in pertinent part:

“1. The issue of the location and ownership of Annie’s house and the surrounding curtilage ... is moot. The mediator reported to the court that the [Jackson siblings] agreed to purchase that property from [Alfred] during the mediation held in this matter and the parties have advised the court that the sale of Annie’s house was completed during calendar year 2010.
“2. Annie’s 2001 Mercedes-Benz car is the property of Aired Jackson and it is free from any claim or lien that has been made or could have been made by any one or all of the [Jackson siblings] ....
“3. The items of furniture and other items of household goods and personal property removed from the subject residence located [on] Freedom Road by Alfred Jackson belong to Alfred Jackson and said items are not subject to any claim or lien that has been or could have been made by any one or all of the [Jackson siblings]. The items of furniture and other items of household goods and personal property that were not removed from the subject residence by Alfred Jackson do not belong to Alfred Jackson and he is divested of any interest therein in favor of the [Jackson siblings] as their interest may appear.
“4. The individual claims made by Ethel Williams and/or John Jackson in the form of the filings and/or testimony submitted in these proceedings seeking the return of money allegedly paid for or on behalf of Annie Jackson and/or Alfred Jackson in the form of car payments, down payments, loans, ad valorem taxes, and the like, must fail because they are not supported by sufficient credible and/or admissible evidence. The repayment relief requested by John Jackson and Ethel Williams in these proceedings is hereby denied. All other relief requested in the individual claims made by Ethel Williams and/or John Jackson is hereby denied, separately and severally.
“It is further Ordered, Adjudged and Decreed that all relief not specially granted herein is denied.”

Following the denial of their postjudgment motion on January 4, 2012, the Jackson siblings filed a timely notice of appeal on February 3, 2012. The appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

The trial court conducted several hearings in this case and had the opportunity, on more than one occasion, to observe the demeanor and credibility of the witnesses.

“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review provides:
“ ‘ “[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’ ”

Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000), quoting in turn Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). “[I]n the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

Discussion

I.

The Jackson siblings argue that the trial court erred in determining that the Mercedes-Benz automobile was “the property of Alfred Jackson and it is free from any claim or lien that has been made or could have been made by any one or all of the [Jackson siblings].” They argue that they established through documentary and testimonial evidence that, on October 15, 2003, Annie’s brother, John Jackson, had loaned Annie $6,000 for a down payment on the automobile; that, during her lifetime, Annie had acknowledged her obligation to repay the loan; and that John Jackson is entitled to be reimbursed. They also argue that they established that, after Annie’s death, Annie’s sister, Ethel Williams, had made the monthly payments on Annie’s installment loan for the automobile and that she is entitled to be reimbursed.

Leaving aside the fact that the trial court could reasonably have determined that the proof of John Jackson’s allegedly having loaned $6,000 to Annie for the purchase of the vehicle, and of Ethel Williams’s having made, from her own funds, the monthly payments on the loan indebtedness associated with that vehicle, was insufficient, the trial court’s judgment as to this issue is due to be affirmed on the ground that neither John Jackson nor Ethel Williams filed a claim against Annie’s estate pursuant to the nonclaims statute, § 43-2-350, supra. That statute provides, in pertinent part:

“(b) All claims against the estate of a decedent, ... whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in section 43-2-61 [, Ala.Code 1975,] must be allowed 30 days after notice within which to present the claim, and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Presentation must be made by filing a verified claim or -verified statement thereof in the office of the judge of probate of the county in which the letters are granted.”

II.

At the September 7, 2011, hearing, the Jackson siblings presented evidence indicating that, when they received possession of the house, they discovered that Alfred had taken personal property that did not belong to him and that the house was a “mess.” They introduced photographs that purported to document the condition of the house after Alfred left.

The siblings first argue that the trial court’s implicit determination — that Alfred had not breached the mediation agreement with respect to the personal property in Annie’s house — is not supported by the evidence. They maintain that the evidence demonstrated that Alfred violated the following provisions of the agreement:

“The parties agree to deal in good faith in identifying the property. The parties agree that representatives will meet within 7 to 10 days at the home to attempt to resolve any disputes as to the furniture in the house.
"... No property will be removed from [the] house other than [Alfred’s] belongings, pending ownership being identified.”

The siblings contend that Alfred’s lack of “good faith in identifying the personal property” in the house was demonstrated by his refusal to meet with them or their representatives within 7 to 10 days of the signing of the mediation agreement to resolve any disputes as to the ownership of the property. Alfred asserts that he offered to meet with the siblings within the stated time but that no meeting ever took place.

At the September 7, 2011, hearing, the parties’ respective counsel argued the issue, but there was no testimonial evidence regarding the reason that a post-mediation meeting to resolve disputes as to the contents of the house never occurred. Instead, the trial court heard testimonial evidence indicating that, before mediation, several representatives of the Jackson siblings, along with the siblings’ counsel, had toured and inspected the house, after which Ethel Williams and her daughter had developed a room-by-room written inventory of the contents of the house. The trial court was presented with documentary evidence indicating (a) that on September 27, 2010 (approximately seven weeks after the mediation agreement was signed), the siblings’ counsel had written a letter to Alfred’s counsel, stating that Alfred could have “all things in the second bedroom on the left where he slept” and (b) that, no later than December 29, 2010, Alfred’s counsel had provided the siblings’ counsel with a copy of the written inventory that had previously been developed by Ethel Williams and her daughter, upon which copy Alfred had marked the items on the inventory with either an “A” — indicating that the property was his or had been Annie’s, and, therefore, was a part of Annie’s estate, and would be taken “away” from the house — or with an “S,” indicating that the property would “stay” with the house.

The record does not indicate that, before the September 7, 2011, hearing, the siblings ever communicated their disagreement with Alfred’s designations on the inventory. At the hearing, however, Ethel Williams’s daughter (who is also named “Ethel Williams” and who participated in making the inventory) testified that, with very few exceptions, everything in the house should have stayed with the house. She specified various items (such as a door, a lamp, and area rugs) that, she said, she knew had been purchased for Annie by relatives and concluded that most of the furnishings in the house belonged to someone other than Annie. On cross-examination of Ethel Williams’s daughter, the following occurred:

“Q. [By Alfred’s counsel:] So it’s your testimony that virtually everything in that house, virtually every item in that house belonged to somebody other than Annie?
“A. Yes.
“Q. But you’ve got no proof to back it up, no receipts, no stores, nothing to back it up?
“A. Not in my possession, I don’t have it.
“Q. Okay. So the answer is no. So all this really is just your opinion?
“A. Yes, it is.”

The trial court was authorized to conclude that the personal property in the house where Annie had lived since 1978 or 1979, and that Alfred, her only child, had designated by the letter “A” on the inventory, “belonged” to Annie and that, even if some items had been “purchased for Annie” by family members, those items were gifts. See Charles C. Marvel, Annot., Unexplained, Gratuitous Transfer of Property from One Relative to Another as Raising Presumption of Gift, 94 A.L.R.3d 608 (1979).

Based on the documentary and testimonial evidence presented at the September 7, 2011, hearing, the trial court could reasonably have determined that Alfred had not breached the mediation agreement but, rather, that he had, in good faith, identified “his belongings” by designating with the letter “A” on the inventory those items that had belonged to his mother during her lifetime and now belonged to him as her sole heir.

The trial court could also reasonably have determined that, with two exceptions, Alfred had removed only the items designated on the inventory with the letter “A” from the house. The Jackson siblings presented testimonial and photographic evidence indicating that, when they received possession of the house, a heater that had been connected to a gas line in a fireplace opening and a bathtub faucet (both of which Alfred had designated with the letter “S” on the inventory) were missing.

We, therefore, affirm the trial court’s judgment in all respects except paragraph three. As to that paragraph alone, we reverse the judgment, and we remand the cause with instructions that the trial court amend paragraph three of its judgment to read as follows:

“3. With the exception of the gas heater and the bathtub faucet, the items of furniture and other‘items of household goods and personal property removed from the subject residence [on] Freedom Road by Alfred Jackson belong to Alfred Jackson and said items are not subject to any claim or lien that has been or could have been made by any one or all of the [Jackson siblings]. Alfred Jackson is directed to return the heater and the bath fixture or to reimburse the siblings for the value thereof within 30 days.”

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . Dorothy Jackson Hinson later filed an affidavit stating that she had not authorized her name to be included as a plaintiff and that she was not a party in the action.

      . In its final judgment, the trial court stated:
      “A fair reading of the various pleadings, motions, etc., filed by the [Jackson siblings] and the court's observations during the various hearings held in this matter, shows that the [Jackson siblings] initially asked the court to determine the ownership interests of the [Jackson siblings] in the home located at [on] Freedom Road in the Town of Whitehall, Alabama ('Annie’s house'). In subsequent filings, the [Jackson siblings] asked the court to determine, in essence, the identity and ownership interest in various items of personal property that allegedly belonged to [Emma and Matthew, Sr.,] when they died; the ownership of Annie's 2001 Mercedes-Benz C240 automobile ... ('Annie's car’); and the validity of certain claims of John Jackson and Ethel Williams involving Annie’s house, Annie’s car, and her estate. It is well settled law that parties may agree to try their case upon a theory or theories of their choosing and their agreements will be binding on them, Reese Funeral Home v. Kennedy Electric Co., 370 So.2d 1030 (Ala.Civ.App.1979). [Alfred] filed numerous motions, objections, briefs, and responses in the case. A fair reading of the various documents filed by [Alfred] and the court’s observations during the various hearings held in this matter show that [Alfred] agreed to the trial of the issues set out herein.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ex parte Russell THREADGILL. (In re Russell Threadgill v. East, Inc.).
    2120016.
    Court of Civil Appeals of Alabama.
    March 1, 2013.

      J. Myron Smith, Prattville, for petitioner.
    Brian Mosholder of Carpenter, Ingram & Mosholder, LLP, Auburn, for respondent.
   MOORE, Judge.

On September 30, 2010, Russell Thread-gill (“the employee”) filed a civil action against East, Inc. (“the employer”), in the Dallas Circuit Court (“the trial court”), seeking benefits under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975. In his complaint, the employee alleged, among other things, that he had injured his lumbar spine, left leg, right arm, and right shoulder due to an accident arising out of and in the course of his employment on April 20, 2010, and that he had injured his right shoulder and left ankle due to a second accident arising out of and in the course of his employment on April 26, 2010. After the employer filed an answer generally denying the. allegations set forth in the employee’s complaint, the trial court set the matter for a hearing as to the com-pensability of the various injuries. On January 25, 2012, the trial court entered an order fully favorable to the employee. The employer moved the trial court to alter, amend, or vacate its order, which the trial court eventually did on July 19, 2012, finding that the employer was liable only for the lumbar injury sustained by the employee in the April 20, 2010, accident and not for any claimed injuries allegedly resulting from the April 26, 2010, accident.

The employee filed a notice of appeal from the July 19, 2012, order. Because that order did not address all the benefits to which the employee claimed he was entitled on account of his April 20, 2010, lumbar injury, the order was not a final judgment that would support an appeal. See SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009). In Ex parte Cowabunga, Inc., 67 So.3d 136 (Ala.Civ.App.2011), a majority of this court ruled that this court may elect to treat an appeal that is erroneously filed following the entry of a nonfinal judgment in a workers’ compensation case as a petition for a writ of mandamus if a later appeal would be an inadequate remedy. In this case, unless this court considers the issues raised by the employee at this time by way of a petition for a writ of mandamus, the employee would be entitled to appeal only after a final determination of the controversy regarding the employee’s permanent disability and any other benefits due the employee for his April 20, 2010, lumbar injury, which determination will occur only at an indefinite point in the future. In the meantime, if the trial court erred, the employee would have had to forego medical treatment for the injuries caused by the April 26, 2010, accident, as well as any additional compensation due for those injuries. Because one of the foremost purposes of the Act is to assure that injured employees receive benefits at the time of their injuries and disabilities, when those benefits are needed most, see Ex parte Puritan Baking Co., 208 Ala. 373, 94 So. 347 (1922), a later appeal would not satisfactorily protect the interests of the employee in this case. Thus, we have elected to treat the employee’s appeal as a petition for a writ of mandamus.

The employee essentially argues that the trial court improperly denied his claim that was based on his April 26, 2010, accident. In that claim, the employee contended that he had fallen at work while convalescing from his April 20, 2010, back injury, thereby injuring his left ankle and right shoulder. At trial, the employee asserted that he had also injured his neck and right arm in that fall. In its July 19, 2012, order, the trial court found that the employee had rolled his ankle as he was exiting the back door of his workshop. The trial court further determined that the employment did not cause the employee to roll his ankle. Thus, the trial court decided that the employee could not recover compensation or other benefits for injuries to his left ankle, neck, right arm, and right shoulder.

Substantial evidence supports the factual findings of the trial court regarding the circumstances of the April 26, 2010, accident. See § 25-5-81 (e)(2), Ala.Code 1975 (“In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”). The employee testified that, -as he was walking out the back door of his workshop, his foot slipped and he rolled his ankle, which caused him to fall onto his right elbow. Some testimony from the wife of the employee indicated that the employee had fallen before. The employee admitted that he had not stepped on any slippery substance before falling. From that evidence, as well as the photographs of the scene where the fall occurred, the trial court reasonably could have determined that the employment conditions did not legally cause the fall but that the employee fell after taking an awkward step. See Ex parte Patton, 77 So.3d 591 (Ala.2011) (holding that worker who experiences fall at work must prove legal causation and may not establish liability by showing fall would not have occurred where and when it did but for the employment).

The employee presented substantial evidence indicating that he fell due to weakness in his leg emanating from his April 20, 2010, back injury. The employee testified that he had felt numbness and tingling down his left leg into his left foot just before the accident, implying that he fell when he lost full control and movement of his left foot due to those symptoms. Cf. Erwin v. Harris, 474 So.2d 1125 (Ala.Civ.App.1985) (injuries from fall at home caused by weakness in leg from work-related injury held to be compensable as direct and natural consequence of original, compensable injury). However, the employer presented medical records disputing that the employee had experienced such symptoms before the fall. The trial court, as the finder of fact, was charged with resolving that dispute in the evidence as to the cause of the employee’s fall. See Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). This court may not reweigh the evidence. Ex parte Caldwell, 104 So.3d 901, 905 (Ala.2012). Our standard of review “does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding.” Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (citing Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998)).

The employer raises several legal issues, all of which are predicated on the effect of a factual finding that the employee had fallen as a result of symptoms resulting from his prior back injury. We do not consider those issues because substantial evidence supports the trial court’s finding that the fall was not a direct and natural consequence of the employee’s earlier back injury. Similarly, we reject the employee’s argument that the employer was required to plead lack of employment causation as an affirmative defense. West Fraser, Inc. v. Caldwell, 104 So.3d 889, 894 n. 6. (Ala.Civ.App.2012) (“lack of causation is not an affirmative defense to a workers’ compensation claim”), rev’d on other grounds, Ex parte Caldwell, supra.

Finally, the employee maintains that the trial court erred in attributing his right-shoulder injury to the April 26, 2010, fall. A medical record placed into evidence showed that the employee had complained of right-shoulder pain on April 23, 2010. In that record, the employee informed the physicians that his April 20, 2010, accident had caused those symptoms. The employee later complained of increasing pain in his right shoulder following the April 26, 2010, fall. In the July 19, 2012, order, the trial court denied benefits for the right-shoulder injury because the employee had not proven that the April 26, 2010, fall had arisen out of his employment. However, the record contains no evidence indicating that the April 26, 2010, fall caused a new injury to the employee’s right shoulder. Assuming that the April 20, 2010, accident originally injured the employee’s right shoulder, a reinjury or aggravation of that injury would itself be compensable if it was brought on by the employee’s engaging in an activity that is customary in light of his condition, even if that activity did not directly arise out of the employment. Ex parte Pike Cnty. Comm’n, 740 So.2d 1080 (Ala.1999) (holding that employee who aggravated back injury by lifting baby at home was entitled to compensation for herniated disk discovered after aggravation). Thus, the trial court erred in denying benefits for the employee’s right-shoulder injury solely on the ground that the April 26, 2010, fall did not arise out of the employee’s employment.

Based on the foregoing, we deny the petition for a writ of mandamus except as it pertains to the employee’s right-shoulder injury. In that regard, we grant the petition and issue the writ, directing the trial court to vacate that portion of its July 19, 2012, order denying benefits for the employee’s right-shoulder injury on the ground that the employee did not prove that the April 26, 2010, fall arose out of his employment. We do not hold that the trial court must find that the April 20, 2010, accident caused the right-shoulder injury; we merely hold that the trial court erred in finding that the failure of the employee to prove that the April 26, 2010, fall arose out of his employment necessarily rendered the right-shoulder injury noneom-pensable.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ„ concur.

      . The order indicated that the employee had not yet reached maximum medical improvement on account of his April 20, 2010, lumbar injury. Thus, the trial court could not assess permanent-disability benefits at the time it entered the July 19, 2012, order. See Ex parte Phenix Rental Ctr., 873 So.2d 226 (Ala.2003) (holding that a trial court cannot award any permanent-disability compensation until after employee has reached maximum medical improvement). The trial court tentatively set the case for an October 29, 2012, trial on the issue of what permanent-disability benefits the employee might be entitled to for the lumbar injury.

      . The employee complains that the trial court originally found in its January 2012 order that the employee’s prior leg weakness had caused his fall but that it later changed its factual finding without having received new evidence. However, a trial court may reconsider its factual findings any time before entering a final judgment and may change those findings without considering new evidence. See Lawrence v. Lawrence, 117 So.3d 723 (Ala.Civ.App.2013).


author: THOMPSON, Presiding Judge.

text:
    Howard ROSS v. WELLS FARGO BANK, N.A.
    2111182.
    Court of Civil Appeals of Alabama.
    March 1, 2013.

      Patrick A. Jones, Huntsville, for appellant.
    Barre C. Dumas and Kent D. McPhail of Dumas & McPhail, LLC, Mobile, for ap-pellee.
   THOMPSON, Presiding Judge.

Howard Ross appeals from a summary judgment entered by the Madison Circuit Court (“the trial court”) in favor of Wells Fargo Bank, N.A. We reverse.

Wells Fargo initiated the proceedings below in March 2008 by filing a “complaint for declaratory judgment, redemption and ejectment” against Ross and a number of other defendants, seeking as to certain real property, among other things, to quiet title and to establish its redemption rights and its right to immediate possession. Ross filed an answer pro se.

In July 2008, Wells Fargo filed a motion for a summary judgment with a supporting brief, an affidavit, and documentation that, among other things, traced Wells Fargo’s title to the property.

Approximately six months later, in December 2008, Wells Fargo filed a motion for a temporary restraining order seeking to prevent Ross and another defendant from leasing or selling the property. Following a hearing on that motion, the trial court entered an order on February 19, 2009, that, among other things, denied Wells Fargo’s request for a temporary restraining order. In that order, the trial court determined, in part:

“This action was filed by [Wells Fargo] seeking a bill to quiet title and ejectment of [Ross and other defendants] from a parcel of land, located in Madison County, Alabama, more particularly described as, to wit:
“Lot 5, Block O, according to the map of survey of the Subdivision of Concord Place, as recorded in the Office of the Judge of Probate of Madison County, Alabama, in Plat Book 5, Page 39 ....
“[Wells Fargo] traces its title back to Sequita and Marcus Young, who allegedly purchased the said parcel on September 24, 2004, and financed said purchase with a mortgage given to Argent Mortgage Company, LLC.
“On December 29, 200k, Argent Mortgage Company allegedly executed an assignment of its mortgage interest in the above described real property to Ameri-quest Mortgage Company, which assignment was allegedly recorded on September 7, 2006. However, [Wells Fargo’s] said exhibit describes a different parcel of property and names a different mortgagor, namely, Donald Williams and wife Mia M. Williams and a parcel description set out in Exhibit A to the said assignment, to wit:
“ ‘Lot 16 Block 2 according to the map of survey of Holly Acres. Sixth Addition, Huntsville, Alabama as recorded in Plat Book 6, Page U5, in the Office of the Judge of Probate of Madison County, Alabama. ’
“On September 28, 2004, [Wells Fargo] alleges Ameriquest Mortgage Company executed an assignment of the said mortgage to the above described parcel to “Wells Fargo Bank, NA, as Trustee.’ The said assignment was allegedly recorded on September 7, 2006.
“The said document references Sequi-ta Young and her husband Marcus Young as mortgagors and sets forth in an Exhibit ‘A’ to the assignment the proper legal description of the said parcel.
“The balance of [Wells Fargo’s] allegations describe and provide exhibits documenting Defendant Howard Ross’s purchase of the said parcel at auction from the Tax Collector of Madison County Alabama on May 12, 2006.
“[Wells Fargo] alleges that the last holders of the warranty deed to the said parcel, Sequita Young and Marcus Young, defaulted under the terms of the mortgage allegedly assigned to it, which precipitated the foreclosure procedure which resulted in the issuance of a foreclosure deed to [Wells Fargo] on June 29, 2006, which said deed was recorded in the Office of the Probate Judge of Madison County on September 7, 2006.
“[Wells Fargo] claims superior title and the immediate right to possession of the said parcel as to Defendant Ross and all Defendants who hold, will hold or who have held possession under Defendant Ross’s claim to title and possession which arises from his purchase of the said parcel for delinquent real estate taxes.
“Defendant Ross asserts to the Court that the amount paid into Court by [Wells Fargo] as redemption for the property is not an adequate sum under the redemption statues of the State of Alabama. Defendant Ross also alleges that [Wells Fargo] has in other ways
failed to comply with the statutory method for redeeming real property, and thus there is a genuine dispute with regard to which party holds superior title and the right of immediate possession of the said parcel of real property.
“Given the current state of the title to said parcel of real property, the Court, upon preliminary consideration of [Wells Fargo’s] motion finds that whether [Wells Fargo] succeeds on the merits of its claim is not at all clear at this point in the proceedings and that due to this fact, does not find that all of the necessary prerequisites to the issuance of an injunction lie at this time.
“The foregoing matters and authority having been considered by the Court, the following is hereby ORDERED:
“[Wells Fargo’s] motion for preliminary injunctive relief is hereby DENIED....”

(Emphasis added; footnotes omitted.)

In October 2011, Wells Fargo again filed a motion for a summary judgment with a supporting brief and documentation. In February 2012, Wells Fargo filed a supporting affidavit and documentation. In both instances, Wells Fargo failed to correct the title-documentation problem noted in the February 19, 2009, order; it continued to submit copies of the erroneous mortgage assignment not associated with the property at issue in this case.

In December 2011, Ross, represented by legal counsel, filed what he referred to as an “answer” to Wells Fargo’s summary-judgment motion, along with a supporting affidavit and documentation. In March 2012, Ross filed a second “answer” to Wells Fargo’s summary-judgment motion, along with supporting affidavits and documentation; that supporting material in-eluded, among other things, a copy of the February 19, 2009, order. In his second “answer,” Ross requested, among other things, that the trial court “deny [Wells Fargo’s summary-judgment] motion due to the failure of [Wells Fargo] to provide uncontroverted material facts that make a showing of [its] title and redemption from tax sale of the property in question that supports [its] request for possession.” Ross also maintained that “[Wells Fargo] has not made a prima facie showing that it is vested with a title that gives it a right to recover possession of the property. [Ross] has provided substantial evidence that his right to possess the property has not been terminated.”

Shortly thereafter, also in March 2012, Wells Fargo, represented by different legal counsel, filed what it referred to as a “reply” to Ross’s “answer”; that “reply,” among other things, added an argument that Ross’s challenge to its certifícate of redemption was not timely. Ross filed an “answer” to “the new issue raised by [Wells Fargo].”

The trial court conducted a hearing on Wells Fargo’s summary-judgment motion on May 24, 2012, and entered a summary judgment in favor of Wells Fargo on June 27, 2012; in that judgment, the trial court determined:

“This cause came before the Court for hearing on [Wells Fargo’s] Motion for Summary Judgment on May 24, 2012, both parties having appeared. Based upon the pleadings and all matters submitted in support of and in opposition to said motion, the Court is of the opinion that there is no genuine issue as to any material fact, and [Wells Fargo] is entitled to judgment as a matter of law. Accordingly, judgment is entered in favor of [Wells Fargo] and against Defendant.
“IT IS further ORDERED, ADJUDGED AND DECREED that [Wells Fargo] is entitled to immediate possession of the real estate described in the Complaint ..., for which a writ of possession shall immediately be issued in accordance with Alabama law.
“Upon the filing of a Writ of Execution by [Wells Fargo], the sheriff is hereby directed to remove, set out and evict the Defendant(s) from the property referenced above.
“Neither [Ross and the other] Defendants) nor any of their agents shall dispose of or alter the property described above, and if [Ross and] the [other] Defendant(s) or their agents do dispose of or alter the property they maybe subject to punishment for contempt of Court.
“The Defendant, Howard Ross[,] nor other Defendants!,] have further right to possession of the property.
“All rights, title and interest in and to the property ... are vested in [Wells Fargo].
“Further, no additional monetary amount is owed to Defendant, Howard Ross, or to any of his agents or assigns, including insurance payments and preservation improvements. The property has been redeemed as per the Certificate of Redemption filed as Exhibit ‘F’ with the Motion for Summary Judgment in this action. As such, said redemption of the subject property is complete.”

Ross timely filed a postjudgment motion maintaining that “[Wells Fargo] did not have proper title to the property in question and never completed the process of redemption from tax sale that would have entitled it to a judgment for redemption.” The trial court denied Ross’s post-judgment motion on July 29, 2012. Ross timely appealed to our supreme court, and the supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Regarding the standard of review of a summary judgment, this court has stated:

“ ‘We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).’ ”

Barrett v. Lee Brass Co., 883 So.2d 227, 228 (Ala.Civ.App.2003) (quoting Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002)).

The dispositive issue on appeal, in essence, is whether there exists a genuine issue of material fact regarding Wells Fargo’s title to the property and whether it had the power to foreclose and sell the property when it initiated the foreclosure proceedings. Ross contends that Wells Fargo failed to make a prima facie case as to this issue and that, therefore, the summary judgment is due to be reversed. We agree.

In its brief to this court, Wells Fargo concedes that it never corrected the title-documentation error noted in the February 19, 2009, order and, thus, that its own evidence (i.e., the erroneous mortgage assignment not associated with the property) demonstrates that there is a genuine issue of material fact regarding Wells Fargo’s title to the property and whether it had the power to foreclose and sell the property when it initiated the foreclosure proceedings. Wells Fargo concedes that this judgment should be reversed and the cause remanded for what it maintains is further development of the record, citing Byrd v. MorEquity, Inc., 94 So.3d 378 (Ala.Civ.App.2012) (plurality opinion) (reversing the trial court’s summary judgment where a genuine dispute existed as to the purported mortgage assignee’s lack of authority to initiate the foreclosure proceedings). We conclude that the parties are correct and that Wells Fargo failed to make a prima facie case that it was the assignee of the mortgage and had the authority to initiate the foreclosure proceedings and to sell the property at issue.

Based on the foregoing, and in light of the existence of the genuine issue of material fact regarding Wells Fargo’s title and whether it had the authority to initiate the foreclosure proceedings through which it currently claims title and the right of possession to the property, the summary judgment entered by the trial court in favor of Wells Fargo is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMAS, MOORE, and DONALDSON, JJ., concur.

PITTMAN, J., recuses himself.

      . During the proceedings below, certain defendants were dismissed without prejudice. Wells Fargo also amended its complaint several times and added certain other defendants. Ultimately, default judgments were entered against most of the other defendants, and the summary judgment disposed of the issues involving the other remaining defendants.

      . We note that, while this case was pending for more than four years at the trial-court level, the case was assigned to at least three different trial judges.

      . Because we reverse the judgment on this threshold issue, we pretermit a discussion of the other issues raised on appeal.