author: PER CURIAM. MOORE, Judge,

text:
    CVS/CAREMARK CORPORATION v. Gloria WASHINGTON.
    2110185.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2013.

      Scott M. Roberts and Amanda L. Mink of Roberts & Associates, P.C., Birmingham, for appellant.
    Stevan K. Goozée, Birmingham, for ap-pellee.
   PER CURIAM.

CVS/Caremark Corporation (“CVS”) appeals from a judgment awarding Gloria Washington permanent-total-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). We affirm.

Washington was employed as a packer and shipper in CVS’s mail-order-pharmacy warehouse from 2002 to 2010. In February 2008, Washington injured her right shoulder when she fell over a pallet jack in the CVS warehouse. Following shoulder surgery and a period of rehabilitation, Washington returned to work in September 2008 with light-duty restrictions and accommodations. She continued to experience pain in her shoulder and neck, however; typically, she either left work early or missed work altogether two or three days each week. In August 2009, Washington filed a complaint seeking benefits under the Act for a permanent total disability.

In April 2010, Washington’s physician changed her work restrictions from light duty to “sedentary work only, with no pushing or pulling over zero pounds with the right arm, no reaching above the shoulder level on the right side, and no repetitive motion with the right arm.” In July 2010, Washington informed her supervisor that she was going to have to quit work because she could not lift anything and she was in constant pain. Washington’s supervisor informed her that the warehouse was scheduled to close in October 2010 and encouraged her to stay until that time so that she could receive severance pay. Washington worked until October 29, 2010, when the CVS mail-order-pharmacy warehouse closed.

The case was tried in July 2011, based primarily on the parties’ stipulations, Washington’s medical records, and the deposition testimony of vocational experts for both parties. Washington was the sole live witness. Her vocational expert, John M. Long, Jr., stated that, if Washington’s pain were controlled so that she could work according to her functional capacity evaluation (“FCE”), she would have a vocational disability of 55 to 60 percent. However, with pain at the level Washington reported, Long opined that Washington was completely unable to work. Russ Gurley, the vocational expert retained by CVS, stated: “Based on the ability to work full-time at the levels recommended by the FCE and by [her treating physicians], considering Ms. Washington’s demonstrated ability to perform light duty work for two years after her shoulder surgery, and considering loss of access to jobs and wage loss, Ms. Washington has a vocational disability rating of 40 to 50 percent.”

At the time at trial, Washington was 54 years old. She has an llth-grade education but does not have a general equivalency diploma. She testified that she had been employed by HealthTex, a manufacturer of children’s clothing, for 25 years. After the HealthTex plant closed in 2001, Washington drew unemployment-compensation benefits for a year and then went to work for CVS. After the CVS warehouse closed in 2010, Washington neither worked nor sought work because, she said, the pain in her neck and shoulder prevented her from working. She stated that the pain also prevented her from doing her household chores and that she “sit[s] at home, watching TV mostly.”

Washington acknowledged that she had applied for and had been receiving unemployment-compensation benefits of $288 per week since October 2010, when the CVS warehouse closed, and that she had also applied for Social Security disability benefits. Counsel for CVS, without objection, cross-examined Washington at length about the inconsistency between her application for and receipt of unemployment-compensation benefits and her claim that she was permanently and totally disabled. Washington stated that, in order to continue to receive unemployment-compensation benefits, she completes a weekly on-line recertification of her eligibility for the benefits by answering questions on a computer form provided by the Department of Industrial Relations (“DIR”). Initially, Washington testified that she had responded to the DIR questions regarding whether she was “mentally and physically able to work” and “available for and seeking work in Alabama” by answering “no,” because, she said, she was neither able to work, nor available for work, nor seeking work. She maintained that, despite such answers, she had “continued to receive benefits anyway.” During further cross-examination, however, the following occurred:

“Q. [By counsel for CVS]: In order to receive unemployment-compensation benefits, you must be able to work. Are you able to work?
“A. [By Washington]: No.
“Q. Have you told the State of Alabama you’re not able to work?
“A. No.
“Q. As far as they know, you are able to work?
“A. Yes.”

Washington also testified that she had applied for Social Security disability benefits and that her application was pending. Counsel for CVS questioned her further:

“Q. And when you applied for Social Security disability benefits, are you claiming that you are unable to work?
“A. Yes, sir, I’m unable.
“Q. So you understand you’re telling the State of Alabama that you’re able to work, and you’re telling the federal government you’re unable to work. Is that your understanding?
“A. Yes.
“Q. And you’re going to continue to make a claim for Social Security disability after today?
“A. I’m not — I can’t work.
“Q. Okay. And you’re going to continue to receive unemployment compensation . from the State of Alabama as long as you can?
“A. Yes.”

In a supplemental posttrial brief, CVS argued that Washington’s application for and receipt of unemployment-compensation benefits was inconsistent with her permanent-total-disability claim and that her permanent-total-disability claim was, therefore, barred by the doctrine of judicial estoppel. On August 19, 2011, the trial court rendered and entered a judgment containing the following conclusions of law:

“The court finds that [Washington] is permanently and totally disabled from gainful employment as a result of the subject on-the-job-injury. The court notes that [Washington] applied for and received unemployment benefits following her employment with CVS. While the court certainly does not condone her actions in that regard, the Court finds that Washington’s claim for permanent and total disability is supported by substantial evidence. The court further notes that there is no provision under Alabama’s Workers’ Compensation Act that prohibits a plaintiff from pursuing workers’ compensation benefits if [she has] applied for and received unemployment compensation. Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978).”

CVS filed a timely postjudgment motion, (a) asserting judicial estoppel as an affirmative defense (which defense, CVS insisted, had been presented and litigated at trial), (b) complaining that the trial court had made no findings or conclusions responsive to the judicial-estoppel issue, and (c) attempting to distinguish Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978), the decision upon which the trial court had relied in holding that Washington’s receipt of unemployment-compensation benefits did not prohibit her from being awarded permanent-total-disability benefits under the Act.

Washington moved to strike the judicial-estoppel defense, arguing that CVS had waived that defense by failing to assert it in its answer or other responsive pleading. Following a hearing at which the parties’ counsel presented oral argument, the trial court rendered and entered an order denying CVS’s postjudgment motion and granting Washington’s motion to strike the affirmative defense of judicial estoppel. The trial court addressed the judicial-estoppel issue as follows:

“The court specifically addressed the evidence regarding the unemployment benefits received by [Washington] in its order, noting that while the court did not condone [Washington’s] conduct in that regard, such evidence was only one piece of evidence considering [Washington’s] claim for disability. The court noted further that there was other competent and substantial evidence supporting [Washington’s] claim of permanent and total disability, most of which was undisputed.
“From a judicial-estoppel perspective, while it is true that [Washington] represented to the state for a period of time that she was, in effect, willing and able to do some type of work in order to receive those [unemployment-compensation] benefits, the court again notes that there was other substantial, competent, and mostly undisputed evidence that supports her claim for permanent and total disability when all the evidence is viewed and weighed in its totality.
“The court also considered [Washington’s] objection/motion to strike affirmative defense of judicial estoppel. Affirmative defenses are required to be specially [pleaded] in an answer or other responsive pleading. Rule 8(c), Ala. R. Civ. P. However, Rule 15(b), Ala. R. Civ. P., allows for such amendments to conform with the pleadings. In this case, defense counsel claims that they did not plead the affirmative defense of judicial estoppel in their answer or a responsive pleading because they were unaware that [Washington] had applied for and received unemployment benefits for a period of time following her job ending with [CVS], until she testified in that regard at trial. The court takes judicial notice of the fact that when an employee makes a claim for such benefits, the employer is immediately notified of the claim by the state in order for the employer to object to the claim. Therefore, [CVS] should have had prior knowledge of the claim long before trial that would have triggered a duty to amend the answer to plead this affirmative defense.
“[C]ounsel [for CVS] further argues that they made a request for supplementation of [Washington’s] discovery in February 2011, which should have caused [Washington], through counsel, to inform [CVS] of the unemployment claim. However, a review of the request reveals that [CVS] was requesting documents in [Washington’s] possession evidencing application and supporting documents and materials submitted to or received from the Alabama [Director of Industrial Relations] supporting final determinations of benefits to [Washington], to which she responded: ‘[Washington] is not in possession of any such documents.’ There is no reason not to believe that this was an accurate and truthful response as [Washington] testified that she did all applications, etc. ‘online.’
“For the reasons addressed above concerning the evidence of application for and receipt of unemployment benefits, the court properly considered the evidence in the light it should have been — one piece of the totality of the evidence concerning [Washington’s] claim for permanent and total disability.
“Having considered the oral and written arguments of counsel, it is hereby ordered, adjudged, and decreed that [CVS’s] motion to alter, amend, or vacate is hereby denied. [Washington’s] objection/motion to strike affirmative defense of judicial estoppel is hereby sustained/granted.”

CVS timely appealed, arguing that the trial court erred in striking its judicial-estoppel defense and insisting that Washington’s claim for permanent-total-disability benefits was barred by the doctrine of judicial estoppel and, in the alternative, arguing that the trial court’s permanent-total-disability determination is not supported by substantial evidence.

Standard of Review

Our review of this case is governed by the Act, which states, in pertinent part: “In reviewing the standard of proof ... and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala.Code 1975, § 25 — 5—81(e)(1). See also Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996). “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2). Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 268 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975).

Discussion

Judicial Estoppel

“ ‘The doctrine of judicial estoppel “applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.” ’ ” Ex parte First Alabama Bank, 883 So.2d 1236, 1241 (Ala.2003) (quoting Jinright v. Paulk, 758 So.2d 553, 555 (Ala.2000), quoting in turn Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992), quoting in turn Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)).

In White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 911 (Ala.Civ.App.2012), a majority of this court indicated its willingness to apply the doctrine of judicial estoppel in an appropriate workers’ compensation case. We noted, however, that one who receives unemployment-compensation benefits and later claims to be permanently and totally disabled for the same period has not necessarily asserted inconsistent positions. Citing Professor Larson’s treatise, we explained:

“Professors Arthur Larson and Lex K. Larson have discussed whether a claim that one is willing and able to work is totally inconsistent with a subsequent claim that one is permanently and totally disabled for the same period:
“ ‘Several cases have appeared in which workers have applied for and received unemployment benefits on the strength of their representation that they were physically available for work, and later have applied for worker’s compensation benefits on the theory that they were totally disabled during the same period. At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in worker’s compensation is remembered, involving ... the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons.
“‘Thus, the injured claimant may honestly represent to the [unemployment-benefits] office that he or she is able to do some work, and with equal honesty tell the [trial court in a workers’ compensation case] later that he or she was totally disabled during the same period since, despite being capable of doing some kinds of work, no one would offer a job because of the claimant’s physical handicaps. Whether such a double recovery of benefits should be tolerated in view of the desirability of treating all segments of the social insurance pattern as a coordinated whole is another question; the point here is that the courts do not feel it to be their duty to rule out an otherwise proved case of disability because of this type of representation in an unemployment insurance application.’
“4 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 84.05 (2006) (footnote omitted).”

88 So.3d at 912. In Clemons, this court held that the claimant was not precluded by the doctrine of judicial estoppel from seeking benefits under the Act for a permanent total disability after having asserted to DIR that he was able to work during the same period. We reached that conclusion because the claimant, Clemons,

“testified that he ‘felt like [he] was able to work’ at the time he received unemployment-compensation benefits. Clemons testified that he has tried to find work but has been unable to find any work that he can do. Clemons further testified that, if he could find a job, he would give it his ‘best shot.’ ”

88 So.3d at 912.

In contrast to Clemons, Washington testified that she was not able to work, that she was not available for work, and that she had not sought work after the CVS warehouse closed. The trial court’s contrary finding — that Washington had represented to DIR “that she was, in effect, willing and able to do some type of work in order to receive [unemployment-compensation] benefits” — has no support in the evidence. Washington admitted at trial that she had misrepresented to DIR her ability to work, her availability for work, and her having sought work. Thus, the rationale in Clemons would appear to mandate the conclusion that Washington is judicially estopped, by her representations to DIR, from receiving permanent-total-disability benefits under the Act. We do not reach that conclusion, however, because we are convinced that CVS waived the judicial-estoppel defense by failing to assert it in its answer or another responsive pleading.

Judicial estoppel is an affirmative defense, Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 57 (Ala.2007), and “failure to plead the defense typically constitutes a waiver,” White Tiger Graphics, Inc. v. Clemons, 88 So.3d at 910. CVS argues that it did not waive the affirmative defense of judicial estoppel because the issue was tried by the consent of the parties. Rule 15(b), Ala. R. Civ. P., provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

“The decision whether the issue has been tried by express or implied consent is a matter within the trial court’s discretion and will not be reversed except upon a showing [that the trial court acted outside the limits of its discretion]. But [if] the court determines that the issue has been litigated with the consent of the parties, it has no discretion to deny the motion to amend.”

6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1493 at 46-47 (2010).

“[I]mplied consent of the parties can be inferred from an opposing party’s failure to object to introduction of evidence raising the disputed issue initially.” International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1213 (Ala.1992) (emphasis added). An opposing party’s failure to object to the introduction of evidence raising an unpleaded claim or defense permits, but does not require, the inference that the opposing party has impliedly consented to litigate the disputed issue. That is so because evidence that supports an un-pleaded claim or defense often overlaps with evidence that supports a pleaded claim or defense, see, e.g., United States ex rel. Modern Elec., Inc. v. Ideal Elec. Sec. Co., 81 F.3d 240 (D.C.Cir.1996) (evidence related to unpleaded claim of quasi-contractual unjust enrichment was also relevant to pleaded claim of quantum meruit based on contract implied in fact). Therefore, consent should not be inferred from the failure to object “absent a clear indication that the party who introduced the evidence was attempting to raise a new issue,” International Harvester Credit Corp. v. East Coast Truck and R.V. Sales, Inc., 547 F.2d 888, 890 (5th Cir.1977), and that the relevance of the evidence to the new issue was reasonably apparent to the opposing party whose failure to object can be deemed to indicate an intent to litigate the new issue, see Nicholls v. Tufenkian Import/Export Ventures, Inc., 367 F.Supp.2d 514 (S.D.N.Y.2005) (although defendant in copyright-infringement action did not assert the affirmative defense of independent creation in his responsive pleading, the issue was tried by the consent of the parties because evidence was introduced at trial without objection and both parties understood that the defense was at issue). The rule in such cases has been explained as follows:

“[W]hen the evidence that is claimed to show that an issue was tried by consent is relevant to an issue already in the case, as well as to the one that is the subject matter of the amendment, and there was no indication at trial that the party who introduced the evidence was seeking to raise a new issue, the pleadings will not be deemed amended under Rule 15(b)(2)[, Fed.R.Civ.P.] The reasoning behind this view is sound since if evidence is introduced to support basic issues that already have been pleaded, the opposing party may not be conscious of its relevance to issues not raised by the pleadings unless that fact is made clear.”

Wright et al., § 1493 at 34-40 (emphasis added; footnotes omitted). In the present case, evidence concerning the unpleaded defense of judicial estoppel was also relevant to CVS’s answer generally denying Washington’s claim. CVS did not mention judicial estoppel at trial, and its cross-examination of Washington did not clearly signal an intent to raise the unpleaded defense. More importantly, the present case was tried in 2011, before this court’s decision in Clemons indicated that a majority of the court was willing to apply the doctrine of judicial estoppel, in an appropriate case, to preclude a workers’ compensation claimant from receiving permanent-total-disability benefits because he or she had received unemployment-compensation benefits for the same period. When the present case was tried, the applicable law—Florence Enameling Co. v. Jones, 361 So.2d 564, 567 (Ala.Civ.App.1978) (stating that “there is no provision in the workmen’s compensation law ... disqualifying an employee from receiving workmen’s compensation benefits if he is also receiving unemployment compensation”); and Richardson Homes Corp. v. Shelton, 336 So.2d 1367, 1370 (Ala.Civ.App.1976) (stating that the receipt of unemployment-compensation benefits “does not preclude an award of workmen’s compensation [benefits]”), overruled on other grounds by Ex parte Drummond Co., 837 So.2d 831 (Ala.2002) — would not likely have alerted Washington to the fact that the new evidence was relevant to the unpleaded defense of judicial estoppel.

The trial court struck the affirmative defense of judicial estoppel, concluding that it had been waived, and, thereby, implicitly finding that it had not been tried by the consent of the parties. Despite the fact that the trial court did not employ the analytical framework we have used to decide the waiver issue, its ultimate conclusion was correct. “[An appellate court] can affirm a trial court’s judgment for any reason, even one not contemplated by the trial court. See Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 88 (Ala.2004) (‘This Court can affirm a trial court’s judgment for any reason, but only if the record on appeal evidences the fact that is the basis for the affirmance.’ (citing Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000))).” Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234, 240 n. 6 (Ala.2006).

The Disability Determination

“Permanent total disability” is defined to include “any physical injury ... resulting from an accident, which injury ... permanently and totally incapacitates the employee from working at and being retrained for gainful employment.” Ala. Code 1975, § 25-5-57(a)(4)d. “Total disability does not mean absolute helplessness; rather, it means that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.” Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005).

At the time of trial, Washington was 54 years old and had worked for 33 years. She completed the 11th grade and does not have a general equivalency diploma. CVS’s vocational expert testified that, based upon her FCE alone, Washington’s vocational disability is in the range of 40 to 50 percent; Washington’s vocational expert testified that, based upon her FCE alone, Washington’s vocational disability is in the range of 55 to 60 percent. Washington testified that, because of the pain in her neck and shoulder, she could not perform any type of work, and her vocational expert opined that, considering Washington’s reported level of pain, she was completely unable to work.

The trial court, noting that it had had “the opportunity to observe the demeanor, tone, facial expressions, and movements of Washington in court,” found Washington’s testimony to be “credible with regard to her injury,” and it concluded that she was permanently and totally disabled from gainful employment as a result of her work-related injury.

‘“[0]ur review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope 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; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).’ ”

White Tiger Graphics, Inc. v. Clemons, 88 So.3d at 913 (quoting Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission)).

The trial court’s finding of permanent total disability is supported by substantial evidence, and its judgment is due to be affirmed.

AFFIRMED.

PITTMAN and THOMAS, JJ., concur.

MOORE, J., concurs in the rationale in part and concurs in the result, with writing, which DONALDSON, J., joins.

THOMPSON, P.J., concurs in the result, without writing.

MOORE, Judge,

concurring in the rational in part and concurring in the result.

I agree with the main opinion that the evidence supports a finding that Gloria Washington (“the employee”) is permanently and totally disabled for workers’ compensation purposes. I also agree that the defense of judicial estoppel does not apply, but for reasons different from those stated in the main opinion.

I find no need to decide whether CVS/Caremark Corporation (“the employer”) properly raised the affirmative defense of judicial estoppel because I believe that defense does not apply in the present context. As I stated in my special writing in White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 915-16 (Ala.Civ.App.2012) (Moore, J., concurring in the rationale in part and concurring in the result), this court decided over 35 years ago in Richardson Homes Corp. v. Shelton, 336 So.2d 1367, 1370 (Ala.Civ.App.1976), overruled on other grounds by Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), and in Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978), “that the receipt of unemployment compensation does not prohibit the receipt of workmen’s compensation benefits.” 361 So.2d at 567. The court reasoned that, although the legislature had included a provision in the Unemployment Compensation Act, § 25-4-1 et seq., Ala.Code 1975, regarding the effect of a workers’ compensation claim on an unemployment-compensation claim, the legislature had not included any “provision in the workmen’s compensation law ... disqualifying an employee from receiving workmen’s compensation benefits if he is also receiving unemployment compensation.” Id. In other words, this court determined that the receipt of unemployment-compensation benefits would not preclude the receipt of workers’ compensation benefits unless the legislature explicitly provided for such a defense.

Since those decisions were issued, the legislature, the body who created the workers’ compensation remedy, has not amended Alabama’s workers’ compensation laws to supersede those decisions, even in the 1990’s when it completely revised the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, generally to add and strengthen defenses for employers, see, e.g., Act No. 92-537, Ala. Acts 1992.

“Overruling [Richardson Homes Corp. v. Shelton, 336 So.2d 1367, 1370 (Ala.Civ.App.1976), and Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978),] in the face of this legislative history would violate the rule that ‘[t]he Legislature, when it enacts legislation, is presumed to have knowledge of existing law and of the judicial construction of existing statutes.’ Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 814 (Ala.2003). See also Ex parte Drummond Co., 837 So.2d 831, 835 n. 9 (Ala.2002) (‘In 1968, this Court adopted the Bell[ v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] test. The Legislature has had more than 30 years to overrule or modify that decision; it has chosen not to do so. Moreover, in those 30 years, the Legislature has amended the Workers’ Compensation Act. “ ‘[W]hen the legislature readopts a code section, or incorporates it into a subsequent Code, prior decisions of this court permeate the statute, and it is presumed that the legislature deliberately adopted the statute with knowledge of this court’s interpretation thereof.’ ” ’ (quoting Jones v. Conradi, 673 So.2d 389, 392 (Ala.1995), quoting in turn Edgehill Corp. v. Hutchens, 282 Ala. 492, 495-96, 213 So.2d 225, 227-28 (1968))); Ex parte HealthSouth Corp., 851 So.2d 33, 41-42 (Ala.2002) (‘Presumably, when the Legislature reenacts or amends a statute without altering language that has been judicially interpreted, it adopts a particular judicial construction.’). Had the Legislature disagreed with the interpretation of [the Act] given by this Court in [Shelton and Jones ] it could have easily amended [the Act] in 1992, 1993, 1995, or 1996 when it changed, added, or repealed no less than 90 other sections of the Workers’ Compensation Act. The Legislature has acquiesced in the holding of [Shelton and Jones ] and to overrule th[ose] case[s] now would be to disregard the doctrine of stare decisis.”

Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237, 240-41 (Ala.2005).

I do not condone the employee’s behavior in misrepresenting to the state her ability to work, which behavior may well have been criminal in nature. See § 25-4-145(a)(1), Ala.Code 1975 (making it a crime to “willfully make[] a false statement or representation or ... willfully fail[ ] to disclose a material fact to obtain or increase any benefit or payment under this chapter”). However, I believe that the law as stated in Jones and Shelton authorized the Jefferson Circuit Court (“the trial court”) to reach its determination that the employee should receive permanent-total-disability benefits despite the fact that she had misrepresented to the state that she could work solely in order to obtain unemployment-compensation benefits. Any offense committed against the state’s judicial or administrative systems by this result should not be redressed through the withholding of workers’ compensation benefits pursuant to the doctrine of judicial estop-pel, at least until our legislature decides otherwise, but, rather, through the mechanisms that are already in place, which our legislature has expressly endorsed. See Shelton, 336 So.2d at 1370 (holding that any injustice occurring due to employee’s receipt of unemployment-compensation benefits should be corrected by Alabama Department of Industrial Relations, not court awarding workers’ compensation benefits); see also Clemons, 88 So.3d at 916 (Moore, J., concurring in the rationale in part and concurring in the result) (“Unless and until the legislature acts, this court is powerless to create or rely on a judicial or equitable remedy on the subject.”).

That said, even if judicial estoppel was a viable defense, it is apparent that the trial court did not exceed its discretion in concluding that the defense had not been tried by the implied consent of the parties such that the pleadings should be amended to include the defense under Rule 15(b), Ala. R. Civ. P.

When an allegedly injured worker states in an application for unemployment-compensation benefits that he or she is physically able to work, that admission may be used against the worker as proof that no disabling injury has occurred. See Guster v. Goodyear Tire & Rubber Co., 611 So.2d 370, 371 (Ala.Civ.App.1992) (evidence that worker indicated in application for unemployment-compensation benefits that he was ready, willing, and able to accept employment if it was offered to him, among other evidence, supported finding that worker had not sustained a compensable injury). Such an admission constitutes a statement inconsistent with a claim of disability that may be used by a trial court as evidence undermining the credibility of the worker. See Patterson v. Liz Claiborne, Inc., 872 So.2d 181, 187 (Ala.Civ.App.2003) (Per Thompson, J., with one judge concurring specially and one judge concurring in the result) (where trial court found “implausible” the worker’s explanation for inconsistent statements made in application for unemployment-compensation benefits, trial court was authorized to reject worker’s testimony in its entirety as to cause of her back injury). A statement made by a worker in an application for unemployment-compensation benefits is an extrajudicial admission, which, as explained by our supreme court in Liberty National Life Insurance Co. v. Daugherty, 840 So.2d 152, 161 (Ala.2002) (quoting 9 John Henry Wigmore, Evidence in Trials at Common Law § 2588 at 821-22 (Chadbourn rev. ed.1981)), “ ‘is merely an item of evidence, available against the party on the same theory on which a self-contradiction is available against a witness.... [T]he [quasi-admission] is not conclusive....”’ That statement “is in the nature of an admission on the part of the plaintiff which bore heavily against him in weighing the conflict in the evidence,” Bell v. Tennessee Coal, Iron & R.R. Co., 247 Ala. 394, 396, 24 So.2d 443, 444 (1946) (discussing the effect of statements made by an injured worker in a claim for nonoccupational injury and sickness insurance benefits), but which does not have the effect of estopping the worker from asserting his or her claim for workers’ compensation benefits. Id.

During the trial, the employer introduced evidence regarding statements the employee had made to the Alabama Department of Industrial Relations in her application for unemployment-compensation benefits to the effect that she was able to work. The trial court expressly treated the admissions made by the employee that she was able to work as extrajudicial admissions to be weighed along with the other evidence in determining the extent of the employee’s disability and credibility and not as evidence of judicial estoppel, a defense that had not been expressly pleaded by the employer before-the trial.

Rule 15(b), Ala. R. Civ. P., requires a trial court to amend the pleadings to conform to the evidence if the parties expressly or impliedly consented to such an amendment by litigating an unpleaded claim or defense. See Aman v. Gilley, 55 So.3d 248, 251 (Ala.Civ.App.2010). However, “a determination ‘as to whether [an] issue has been tried by express or implied consent under Rule 15(b)[, Ala. R. Civ. P.,] is a matter for the trial court’s sound discretion, which will not be altered on appeal absent an abuse [of that discretion].’ ” International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1214 (Ala.1992) (quoting McCollum v. Reeves, 521 So.2d 13, 16 (Ala.1987)). If evidence supports a pleaded defense, a trial court can determine that the introduction of that evidence does not inject any new, unplead-ed issues into the case for the purposes of Rule 15(b). See McCollum v. Reeves, 521 So.2d at 17; and Foy v. Foy, 447 So.2d 158, 162-63 (Ala.1984). In this case, the trial court reasonably could have found that the employee, by answering questions that were highly relevant to the employer’s answer generally denying her claim that she was unable to work, did not impliedly consent to try the unpleaded defense of judicial estoppel of which she had had no prior notice.

DONALDSON, J., concurs.

      . On October 1, 2012, the Alabama Department of Industrial Relations merged with the Alabama Department of Labor. The combined departments are now known as the Alabama Department of Labor.

      . Section 25-4-77, Ala.Code 1975, provides, in pertinent part:
      "(a) An unemployed individual shall be eligible to receive [unemployment-compensation] benefits with respect to any week in a benefit year which begins on or after January 1, 1989, only if the director finds that:

      "(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work

      "(5) He has made a reasonable and active effort to secure work...."

      (Emphasis added.)

      . In White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 911 (Ala.Civ.App.2012), this court noted that "[j]udicial estoppel may apply to statements previously made in both judicial proceedings and quasi-judicial proceedings” such as contested administrative cases.

      . We note that Rule 15(b), Ala. R. Civ. P., is similar in substance to Rule 15(b)(2), Fed. R.Civ.P. Thus, we find this treatise addressing the federal counteipart to our Rule 15(b) useful in our analysis of this issue.

      . McCollum v. Reeves, 521 So.2d 13, 17 (Ala.1987), is often cited in this context See International Rehab. Assocs., Inc. v. Adams, 613 So.2d at 1214; Watkins v. Central Contracting, Inc., 603 So.2d 899, 901 (Ala.1992). In McCollum, however, the plaintiff objected to the defendant’s attempt to elicit evidence concerning an unpleaded claim seeking an easement for ingress and egress, stating: " ‘We’re not really getting into access.... Not from the pleadings [seeking a judicial determination of a boundary line].' ” 521 So.2d at 17. For that reason alone, and irrespective of any overlap in the evidence concerning the pleaded and unpleaded claims, there was no trial of the unpleaded claim by consent. See Wright et al., § 1493 at 33-34.

      . See note 4, supra.

      . Section 25-4-78(9), Ala.Code 1975, with certain provisos, currently precludes an employee from recovering unemployment-compensation benefits for "any week with respect to which, or a part of which, he [or she] has received or is seeking compensation for temporary disability under any workers' compensation law.” That statute was in effect when this court decided Shelton and was expressly described in Jones as “a provision in the unemployment compensation law disqualifying a person from receiving unemployment compensation if he is receiving workmen’s compensation benefits.” 361 So.2d at 567.


source: Caselaw Access Project

author: WINDOM, Presiding Judge. BURKE, Judge,

license: Public Domain

text:
    C.L.H. v. STATE of Alabama.
    CR-11-1053.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 8, 2013.

      H. McGriff Belser III, Decatur, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

C.L.H. appeals the juvenile court’s order adjudicating her delinquent based on a charge of second-degree burglary, see § 13A-7-6, Ala.Code 1975, and her sentence to participate in the Alabama Department of Youth Service’s High Intensive Training Program, which was suspended pending her completion of probation. For the reasons that follow, this Court reverses the juvenile court’s judgment and remands the cause for further proceedings.

The State presented uncontested evidence establishing that on December 5, 2011, Maria Reed and Molina Williams’s apartment on 8th Street in Decatur was burglarized. The record established that while Reed was asleep in the apartment, burglars entered the apartment and stole a television, an Xbox gaming system, and a blanket.

The State presented evidence that C.L.H. drove H.S., J.H., A.R., and P.T. in her Honda automobile to the apartment on 8th Street in Decatur where Reed and Williams lived. J.H. knocked on the door, but Reed, who was asleep, did not answer. H.S., J.H., A.R., and P.T. then entered the apartment and stole a television and an Xbox. J.H. and H.S. wrapped the television in a blanket and took the television and the Xbox to the Honda. J.H., H.S., and C.L.H. left the apartment in the Honda. The record is conflicting as to whether P.T. and A.R. left on foot or in the Honda with the others.

To establish that C.L.H. was involved in the burglary, the State presented uncontested evidence that C.L.H. was in a relationship with H.S. and that she drove a Honda automobile. The State also offered an out-of-court statement given by A.R. to police. The circuit court admitted the statement over an objection by C.L.H. on the ground that admission of the statement would violate the Confrontation Clause. In his statement, A.R. said:

“ ‘My name is [A.R.], I’m 19 years old and I live at 1016 6th Avenue, Southwest. I met up with [H.S.], [J.H.] and [H.S.]’s girlfriend. She is a white girl. They were in a gray Honda. We went riding and we picked [P.T.] up from his apartment at the Willows. After that we went to the apartments on 8th Street, Southwest by 2nd Avenue. [J.H.] said he knew an apartment we could break into. We went to the front door and walked in. Me, [H.S.], [J.H.] went in the apartment. Inside the apartment they took a TV and an Xbox from the living room. They wrapped them up in a blanket and we went out the back door. Me and [P.T.] walked off. [H.S.], his girlfriend and [J.H.] all left in the Honda with the TV and Xbox. They were supposed to sell it and split the money with us. Me and [P.T.] got stopped down the street. We were running to [T.A.] ’s house. I know it was wrong to go in and take that girl’s stuff.’ ”

(R. 56-57.) In addition, the State offered, over C.L.H.’s hearsay objection, a recording of a telephone call Brenda Dawson made to 911 during the burglary in which she informed a 911 operator that her granddaughter said that C.L.H. was one of the people participating in the burglary. Finally, the State offered text messages sent from C.L.H.’s cellular telephone that stated, in part, “Cuh betta not tell on me.” (R. 71.)

After the State rested, C.L.H. testified that she did not participate in the burglary. C.L.H. stated that she drove J.H., P.T., and H.S. to an apartment on 8th Street. According to C.L.H., J.H. got out of the car and went to an apartment. He knocked on the door, but no one answered. C.L.H. testified that only J.H. got out of the car, and that nothing had been stolen from the apartment at that point. She said that after no one answered the door, J.H. returned to the car and she drove all the men to 2nd Avenue. After dropping off the men on 2nd Avenue, she went to the Health Department. C.L.H. denied that any of the men burglarized the apartment while she was with them. She also denied that she sent the text message stating, “Cuh betta not tell on me.” (R. 71.) According to C.L.H., other people had access to her cellular telephone.

After reviewing all the evidence, the juvenile court adjudicated C.L.H. delinquent based on a charge of second-degree burglary under § 13A-7-6, Ala.Code 1975.

On appeal, C.L.H. argues that the State improperly used the statement of A.R., who did not testify, to establish her guilt. Specifically, C.L.H. argues that the State’s admission of evidence consisting of her accomplice’s out-of-court confessions to law enforcement violated her right to confront the witnesses against her. See U.S. Const. Amend. VI. This Court agrees.

“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, “the Sixth Amendment [prohibits the admission of] testimonial hearsay [statements offered to prove the truth of the matter asserted], ... and interrogations by law enforcement officers fall squarely within that class.” Crawford, 541 U.S. at 53 (2004); see also id. at 59 n. 9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (explaining that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”)). Accordingly,

“It is well settled that[, when offered for the truth of the matter asserted,] a nontestifying codefendant’s statement to police implicating the accused in the crime is inadmissible against the accused; it does not fall within any recognized exception to the hearsay rule and ... its introduction violates the accused’s confrontation rights. See Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); R.L.B. v. State, 647 So.2d 803 (Ala.Crim.App.1994); Ephraim v. State, 627 So.2d 1102 (Ala.Crim.App.1993).”

Jackson v. State, 791 So.2d 979, 1024 (Ala.Crim.App.2000). See also Lilly v. Virginia, 527 U.S. 116, 139, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (holding that the admission of an accomplice’s out-of-court confession violated the petitioner’s Confrontation Clause rights); Hillard v. State, 53 So.3d 165, 169 (Ala.Crim.App.2010) (holding that a codefendant’s statement to police was inadmissible hearsay under Rule 802, Ala. R. Evid.).

Here, A.R., one of C.L.H.’s accomplices, did not testify at trial. Rather, the State offered A.R.’s out-of-court statement to police. A.R.’s statement established that H.S.’s girlfriend was present when the burglary was planned and that H.S.’s girlfriend participated in the burglary by driving the men to the apartment in her Honda. The State offered evidence establishing that C.L.H. is H.S.’s girlfriend and that she drives a Honda. Accordingly, the introduction of A.R.’s “statement to police implicating [C.L.H.] in the crime ... violate[d] [her] confrontation rights.” Jackson, 791 So.2d at 1024.

Further, this Court holds that the erroneous admission of A.R.’s statement to police was not harmless beyond a reasonable doubt. See Rule 45, Ala.R.App. P.; Ward v. State, 105 So.3d 449, 459 (Ala.Crim.App.2012) (recognizing that, under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), before a constitutional error can be deemed harmless, the appellate court must be able to declare that the error was harmless beyond a reasonable doubt). Other than A.R.’s statement, the only evidence the State presented tending to connect C.L.H. to the burglary was the 911 recording and the text message. As stated above, Dawson was recorded informing a 911 operator that her granddaughter had said that C.L.H. was one of the people participating in the burglary. Although the 911 recording may be sufficient to connect C.L.H. to the burglary, the 911 recording does not establish an overwhelming case of guilt. See Laney v. State, 643 So.2d 1024, 1025-26 (Ala.Crim.App.1994) (“‘The hearsay rule is based upon the idea that out-of-court statements are to be excluded because they are unreliable and untrustworthy.’ C. Gamble, McElroy’s Alabama Evidence § 242.01(1) (4th ed.1991).”). Further, the text message stating, “Cuh betta not tell on me,” did not, without more, establish that C.L.H. was involved in the burglary. (R. 71.) Rather, without context, the text message could have referred to a number of things unrelated to the burglary.

In sum, the State’s admission of A.R.’s out-of-court confession to police violated C.L.H.’s Sixth Amendment right to confront the witnesses against her. Further, “[wjithout [A.R.’s] statement, the residual evidence did not make for an ‘ironclad’ ... case against [C.L.H.].” Ward, 105 So.3d at 449 (quoting Ex parte Greathouse, 624 So.2d 208, 211 (Ala.1993)). Therefore, the erroneous admission of A.R.’s statement was not harmless beyond a reasonable doubt.

Accordingly, the judgment of the juvenile court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

WELCH and KELLUM, JJ., concur.

BURKE, J., dissents. JOINER, J., joins in dissent.

BURKE, Judge,

dissenting.

Although I agree with the majority’s determination that A.R.’s statement was introduced into evidence in violation of C.L.H.’s right of confrontation, I nonetheless believe that this error was harmless in this case. A.R.’s statement was important in that it stated that C.L.H. was involved; however, the 911 recording that was admitted as a present sense impression exception to the hearsay rule, Rule 803(1), Ala.R.Evid., also included a statement by a witness as to C.L.H.’s involvement. In the recording, three witnesses who watched the perpetrators carry away the stolen property described the subjects as three men and a white girl. They stated that the burglars were running with the property, including a television that was covered, and escaped to a grey Honda vehicle. By her own admission, C.L.H. was driving the others in her “blond” Honda just before the burglary. (R. 86.) The girl on the 911 call identified C.L.H. by name and provided her high school. Dawson, the girl’s grandmother repeats the girl’s identification of C.L.H. In A.R.’s statement, he names the participants, including C.L.H., whom he describes as a white girl who was H.S.’s girlfriend. He further states that they stole a television and an Xbox and covered them in blankets.

Confrontation Clause errors are subject to the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

“ . The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. Those factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” ’
“[Delaware v.] Van Arsdall, 475 U.S. [673] at 684, 106 S.Ct. [1431] at 1438 [(1986) ].”

King v. State, 929 So.2d 1032, 1039 (Ala.Crim.App.2005), quoting Hooper v. State, 585 So.2d 142, 146 (Ala.Crim.App.1991).

Here, A.R.’s statement was cumulative and the statement was corroborated on “material points.” Id. Defense counsel’s cross-examination was not otherwise limited and the recording proved C.L.H.’s guilt, such that it should have been presented to the juvenile court as the trier of facts. Therefore, because I believe that the admission of A.R.’s statement was harmless, the juvenile court’s adjudication was proper and I respectfully dissent from the majority’s opinion.

      . Before the conversation via text message was redacted, it read:
      "[C.L.H.:] Wea you at
      "[Unknown:] Home town
      "[Unknown:] Whea herman
      "[Unknown:] I seen today an he was wit
      that girl. The house yall hit
      “[C.L.H.:] Cuh betta not tell on me.”
      The circuit court, however, redacted all portions of the text messages that were not sent by C.L.H.

      . On appeal, C.L.H. does not challenge the admissibility of the 911 recording.

      . C.L.H. did not challenge the recording’s admissibility on appeal.

      . Although the text message was redacted so that it did not connect C.L.H. to this offense, it did indicate some guilt on her part two days following the offense.


author: LABARGA, J. CANADY, J.,

text:
    Aaron DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-2170.
    Supreme Court of Florida.
    June 6, 2013.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Robert Jay Krauss, Chief Assistant Attorney General, and Sara Elizabeth Macks, Assistant Attorney General, Tampa, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011). The district court certified that its decision is in express and direct conflict with the decision of the First District Court of Appeal in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue before us concerns whether the standard jury instruction for the offense of manslaughter by act, as amended in 2008, erroneously stated the required elements of the crime and whether fundamental error occurred when that instruction was given in Daniels’ trial. For the reasons set forth below, we conclude that the 2008 standard instruction for manslaughter by act erroneously required the jury to find that the defendant intended to cause the death of the victim, in contravention to the requirements of section 782.07, Florida Statutes (2009). We further conclude that giving the 2008 standard jury instruction constituted fundamental error in this case. Accordingly, we quash the decision of the Second District in Daniels and approve the decision of the First District in Riesel.

BACKGROUND AND FACTS

The facts of the murder in the instant case were summarized in the district court opinion in Daniels as follows:

On May 4, 2007, after an altercation with one person at a residence, Daniels left, went to his home to retrieve his hand gun, and returned to the residence. Daniels fired one shot with the intent of hitting the man involved in the previous altercation. However, the shot hit a female bystander [Amanda Fanter] in the head, and she died. Daniels was charged with one count of first-degree murder.
During taped interviews with officers, Daniels stated that prior to firing the shot, he saw the victim but was being approached by a group of men, including the man with whom he had previously fought. Daniels assumed the men had guns because he had a gun. Daniels fired the gun once and ran. He stated that he did not aim at the victim and that although he “probably” meant to hit one of the men, he did not mean to Mil anyone.

72 So.3d at 228. The altercation arose out of an incident in which Daniels went to confront the boyfriend of his former girlfriend, the mother of Daniels’ daughter. According to Daniels’ statements to Detective Spoor of the Pinellas County Sheriffs Office, Daniels heard that the boyfriend was negligent in caring for Daniels’ daughter while babysitting her. When Daniels went with several friends to confront the boyfriend, he was met by a group of men with whom he argued. Daniels then left the scene and returned with a gun. During the second visit to the apartment complex, according to Daniels’ statement to Detective Spoor, Daniels approached the apartment building and saw a female yelling to “call down the guys” who, he said, were coming.

Daniels said he assumed the men had a gun, so he “just bust off one and ran off.” He said he did not aim at Fanter but that he shot “[r]eally just to back off — not really back off because I probably did mean to hit one, but I didn’t mean to — you know, I didn’t mean to Mil no one, but — .” Daniels insisted during the interview that he did not point the gun at Fanter and that although he intended to fire at the men, he did not intend to kill the victim.

Nicole Schipper, a friend who had driven Daniels back to the apartment complex, testified that on the way there Daniels displayed a handgun and told her that he had been in an argument earlier with some people and intended to go back and scare somebody. Schipper dropped off Daniels and some other men at the complex and was preparing to leave when she saw Daniels stop and raise his arm. She then heard two shots. Daniels and the other men jumped back in her car and, as they were leaving the scene, Schipper said, Daniels told her, “I hope I didn’t kill her.”

Daniels was charged with first-degree murder and tried by jury commencing on September 15, 2009. At the conclusion of the evidence and closing argument, the trial judge instructed the jury as to first-degree murder, second-degree murder, and manslaughter by act. The instruction given for manslaughter by act was read to the jury in pertinent part as follows:

Manslaughter. Before you can find the defendant guilty of manslaughter, the State must prove the following two elements beyond a reasonable doubt.
Elements. One, Amanda Lynn Fanter is dead; two, Aaron Treves Daniels intentionally caused the death of Amanda Lynn Fanter.
However, the defendant cannot be guilty of manslaughter if the Mlling was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

No objections to the jury instructions for manslaughter were lodged by defense counsel. The jury returned a verdict finding Daniels guilty of second-degree murder, with a special interrogatory verdict finding that Daniels did actually possess and discharge a firearm in the commission of the offense and, as a result, Amanda Fanter died. The trial court entered judgment for second-degree murder and sentenced Daniels to life in prison with a twenty-five year minimum mandatory term under the 10-20-Life statute.

On appeal, Daniels argued that the manslaughter by act jury instruction was erroneous and that the error was fundamental in his case, but the Second District disagreed and affirmed his conviction and sentence in Daniels, 72 So.3d at 232. In so doing, the court concluded that the 2008 manslaughter by act instruction “does not include an erroneous intent-to-kill element” found fundamentally erroneous in State v. Montgomery, 39 So.3d 252 (Fla.2010). Id. at 228. In so holding, the Second District certified that its decision expressly and directly conflicted with the decision of the First District in Riesel in which that court concluded that the 2008 instruction “is not materially different from the instruction held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010), because it, too, erroneously stated that intent to kill was an element of manslaughter.” Riesel, 48 So.3d at 886.

The district court in Daniels relied on the fact that the 2006 standard instruction found to be erroneous in Montgomery was amended in 2008, before issuance of Montgomery, and included the following phrase: “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” The district court in Daniels recognized that “[i]t is undisputed that manslaughter by act does not require proof of intent to kill the victim.” 72 So.3d at 229. However, the district court concluded:

We now hold that the 2008 amended instruction did not erroneously require proof of intent to kill. Any error in the prior instruction was cured by the addition of language clarifying that the requisite intent was that necessary to commit an act. The 2008 amended instruction is materially different from the instruction at issue in Montgomery, and Daniels was not deprived of an accurate manslaughter instruction.

Daniels, 72 So.3d at 230. In so holding, the district court also noted:

[T]he Montgomery court stated that the 2008 amendment “added additional language to clarify that the requisite intent for manslaughter by act is the intent to commit an act that caused the death of the victim[.]” Id. The court went on to summarize that “the relevant intent is the intent to commit an act which caused death,” concluding that the amended language was sufficient to cure any de-feet resulting from the language of element two.

Id. at 230 (quoting Montgomery, 39 So.3d at 257). Thus, the Second District interpreted the reference to the 2008 amendment in our decision in Montgomery as a conclusion that addition of the phrase “only an intent to commit an act which caused death” clarified the overall intent of the manslaughter instruction, thereby rendering it correct. Finally, the Second District in Daniels stated:

Because we conclude that the instruction given at Daniels’ trial did not require the jury to find that Daniels intended to kill the victim, Daniels was not deprived of an accurate manslaughter instruction and the trial court did not fundamentally err in giving the 2008 amended instruction. We certify that this decision conflicts with Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), and its progeny within the First District.

Id. at 232.

The First District in Riesel was faced with the same issue presented in this case. Riesel appealed his conviction for second-degree murder and, on appeal, contended that giving the 2008 version of the standard jury instruction for manslaughter by act in his case constituted fundamental error because it erroneously continued to require that the jury find the defendant intentionally caused the death of the victim. The First District agreed that the requirement was erroneous and further that the language added to the instruction in 2008 did not eliminate the separate requirement in the instruction that the jury find the defendant intentionally caused the death of the victim. The First District stated:

The manslaughter instruction in the present case is not materially different from the instruction held to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010), because it, too, erroneously stated that intent to kill was an element of manslaughter. Montgomery, 39 So.3d at 256, 259 (manslaughter by act instruction which provided that the state must prove the defendant “intentionally caused the death of’ the victim resulted in fundamental error because the “instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill” the victim).

Riesel, 48 So.3d at 886 (footnote omitted). Thus, Riesel is in express and direct conflict with the holding of the Second District in Daniels.

ANALYSIS

The conflict issue in this case presents a pure question of law and this Court’s review is therefore de novo. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (“The standard of review for the pure questions of law before us is de novo.”). The question before the Court is whether the manslaughter by act jury instruction, Florida Standard Jury Instruction 7.7, as it was amended in 2008, suffered from the same infirmity as the 2006 jury instruction that this Court found fundamentally flawed in Montgomery. The flaw we identified in the 2006 instruction was the requirement that the jury find the defendant “intentionally caused the death” of the victim even though the manslaughter statute prescribes no such requirement. When the manslaughter jury instruction was amended in 2008, several years before Montgomery was decided, the instruction retained the “intentionally caused the death” language appearing in the first part of the instruction. As noted above, the amendment added in 2008 was as follows:

[W]e modify instruction 7.7 as follows:
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007).

In re Standard Jury Instructions in Criminal Cases—Report No. 2007-10, 997 So.2d at 403 (adding the underlined language to the 2006 instruction).

In instructing Daniels’ jury pursuant to the 2008 instruction, the jury was told that before it could find Daniels guilty of manslaughter, the State must prove that “Aaron Treves Daniels intentionally caused the death of Amanda Lynn Fanter.” Later, in the same instruction, the trial judge also told the jury that “[i]n order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” Daniels now contends, as he did below, that fundamental error occurred in giving this 2008 jury instruction because, just as in Montgomery, the instruction still advised the jurors that to find him guilty of manslaughter, they must find that he “intentionally caused the death” of the victim.

The State counters first that the 2008 instruction was, in fact, a correct statement of the law because even though the jury was given the “intentionally caused the death” language, it was also advised that in order to convict for manslaughter by intentional act, they need not find that Daniels had a premeditated intent, but “only an intent to commit an act which caused death.” The State contends that this sufficiently advises the jury that the only intent required to prove manslaughter by act is the intent to commit the act that ultimately caused the death. The State further contends that a reference to the 2008 instruction in this Court’s decision in Montgomery discloses a conclusion that the 2008 instruction correctly stated the intent required by the manslaughter statute. Finally, the State contends that even if error occurred, it was not fundamental based on the facts of this case. As explained below, we disagree with the State on each of these contentions.

Because our decision in Montgomery is integral to resolution of the certified conflict in this case, that decision will be discussed first. In Montgomery, we recognized that the 2006 version of the standard jury instruction on manslaughter by act required the jury to find that the defendant “intentionally caused the death” of the victim. See Fla. Std. Jury Instr. (Crim.) 7.7 (2006). We also recognized that section 782.07, Florida Statutes (2005), did not require the jury to make such a finding. That statute provided in pertinent part as follows:

782.07. Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.— (1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

§ 782.07(1), Fla. Stat. (2005). The statute was identical when Daniels was tried in 2009. In discussing the requirements of the statute, we explained in Montgomery:

We observe that the statute does not impose a requirement that the defendant intend to kill the victim. Instead, it plainly provides that where one commits an act that results in death, and such an act is not lawfully justified or excusable, it is manslaughter.
Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim. Thus, we conclude that under Florida law, the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.

Montgomery, 39 So.3d at 256. We went on to conclude that giving the erroneous 2006 jury instruction — requiring the jury to find the killing was intentional in order to convict for manslaughter by act — constituted fundamental error because Montgomery was convicted of second-degree murder, one step removed from manslaughter, and because he was entitled to a correct instruction on manslaughter. This Court explained, “[i]f the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.” Id. at 259 (quoting Pena v. State, 901 So.2d 781, 787 (Fla.2005)). We further explained:

The lesser included offense of manslaughter is just one step removed from second-degree murder. Because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena, fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill [the victim].

Montgomery, 39 So.3d at 259 (footnote omitted).

This Court in Montgomery also noted that the 2006 jury instruction made clear that premeditated intent to cause death was not required, but held that portion of the instruction did not alleviate the fundamental error. We explained:

Although the instruction also provided that “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death,” we conclude that this language was insufficient to erode the import of the second element: that the jury must find that the defendant intended to cause the death of the victim.

Montgomery, 39 So.3d at 257. It is the additional phrase added to this passage in 2008 — “only an intent to commit an act which caused death” — which the State now contends saves the 2008 jury instruction from the same infirmity we found in the 2006 instruction in Montgomery. We conclude, however, that the phrase added in 2008 was also insufficient to erode the import of the second, incorrect element contained in the 2008 instruction that continued to require the jury to find that the defendant intentionally caused the death of the victim.

The State also contends that statements made by this Court in Montgomery relating to the 2008 instruction implicitly approved the 2008 amended instruction as a valid statement of law. However, our statement in Montgomery concerning the 2008 amendment to the manslaughter by act jury instruction was not a statement approving that instruction, which was not at issue in the case. Moreover, contemporaneously with the issuance of the Montgomery opinion, we approved an interim amendment to the manslaughter by act instruction in pertinent part as follows:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
Give 2a, 2b, or 2c depending upon allegations and proof.
2. a. (Defendant’s) act(s) intentionally caused the death of (victim).
b. (Defendant) intentionally procured the death of (victim).
c. The death of (victim) was caused by the culpable negligence of (defendant).
Give only if 2{af. alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.
In order to convict of manslaughter by intentional- act, it is not necessary for the State to prove that the defendant had an premeditated intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death. See Hall v. State, (951 -So.2d-91 (Fla. 2d DCA 2007).

In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction 7.7, 41 So.3d 853, 854-55 (Fla.2010) (strik-ethroughs and underlines denote amendments).

After issuance of the Montgomery decision and after issuance of the 2010 interim instruction, we again amended the instruction, in 2011, to further correct the flaw identified in Montgomery. That amendment stated in pertinent part: In re Amendments to Standard Jury Instructions in Criminal Cases—Instruction 7.7, 75 So.3d 210, 211-12 (Fla.2011).

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
Give 2a, 2b, or 2c depending upon allegations and proof.
2. a. (Defendants) intentionally committed an act(s)- or acts that caused the death of (victim).
b. (Defendant) intentionally procured an act that caused the death of (victim).
c. The death of (victim) was caused by the culpable negligence of (defendant).
Give only if 2a alleged and proved, and manslaughter-is-being defined as a lesser included-offense of first degree premeditated murder.
In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.

The 2008 amendment resulting in the phrase, “In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death,” did not neutralize or mitigate the earlier element requiring proof of intent to kill. Because we see that the 2008 amendment essentially rendered the instruction ambiguous, we cannot conclude that the instruction correctly states the elements of proof of manslaughter by act. Thus, we conclude that the jury was not correctly and completely instructed on the elements of the crime of manslaughter by act in Daniels’ case.

We ton next to the question of whether giving the 2008 instruction constituted fundamental error in this case.

Fundamental Error

We have held repeatedly that jury instructions are subject to the contemporaneous objection rule and, “absent an objection at trial, can be raised on appeal only if fundamental error occurred.” Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (quoting State v. Delva, 575 So.2d 643, 644 (Fla.1991)); see also State v. Weaver, 957 So.2d 586, 588 (Fla.2007); Harrell v. State, 894 So.2d 935, 941 (Fla.2005); Reed v. State, 837 So.2d 366, 370 (Fla.2002). The salient purpose of the rule of contemporaneous objection is to place the trial judge on notice that error may have been committed and provide the court with an opportunity to correct the error at that time. See Corona v. State, 64 So.3d 1232, 1242 (Fla.2011) (citing Harrell, 894 So.2d at 940); see also § 924.051(l)(b), Fla. Stat. (2012) (noting that a legal argument or objection is preserved when it is timely raised before and ruled upon by the trial court and is sufficiently precise to fairly apprise the court of the relief sought and the grounds therefor).

We remain mindful that, in the realm of criminal jury instructions, “[i]t is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Delva, 575 So.2d at 644 (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)). However, not all error in jury instruction is fundamental. Garzon, 980 So.2d at 1042. As we explained in Delva

To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown [v. State, 124 So.2d 481, 484 (Fla.1960) ]. In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”

Delva, 575 So.2d at 644-45 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982) (emphasis added)). “In defining the scope of the fundamental error doctrine, we have explained that a fundamental error is one that ‘goes to the foundation of the case or goes to the merits of the cause of action.’ ” Jaimes v. State, 51 So.3d 445, 448 (Fla.2010) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)). Further, we reiterated that appellate courts should employ the doctrine of fundamental error “very guardedly.” Sanford, 237 So.2d at 137.

“Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error.” Garzon, 980 So.2d at 1042 (quoting Stewart, 420 So.2d at 863). Thus, a defective instruction in a criminal case can only constitute fundamental error if the error pertains to a material element that is disputed at trial. Accordingly, where the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs. In Reed, we made clear that “fundamental error is not subject to harmless error review.” 837 So.2d at 369-70.

In the present case, Daniels’ intent in shooting the gun was in dispute. The State charged him with first-degree premeditated murder, and argued in closing that he intended to kill Fanter when he shot the gun, and that this was not a case of manslaughter. In Daniels’ statement to police, which was presented in the testimony of Detective Spoor, and in Daniels’ comments to the State’s witness Nicole Schipper, Daniels insisted he did not aim at anyone and did not intend to kill Fanter when he fired the gun. Schipper testified that Daniels told her he only intended to scare someone with the gun. Thus, the issue of intent to kill was clearly before the jury as a disputed issue. Therefore, Daniels’ intent or lack of intent to cause death was material and pertinent to what the jury had to consider in deciding if he was guilty of first-degree murder, second-degree murder, or manslaughter.

In Montgomery, we similarly focused on the fact that the instruction was “pertinent or material to what the jury must consider in order to convict” and emphasized the defendant’s right to have the jury correctly instructed. See Montgomery, 39 So.3d at 258 (quoting Delva, 575 So.2d at 645). Although in Montgomery we mentioned the jury’s right to exercise its pardon power, our decision was firmly based on the right of a defendant to have the jury correctly instructed on a disputed element that is pertinent or material to what it must consider in order to convict. And because the error in instruction was pertinent or material to what the jury must consider to convict in Montgomery, we found that “fundamental error occurred in [that] case, where Montgomery was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.” Montgomery, 39 So.3d at 258.

The instruction given in Daniels’ case both told the jurors that they must find that Daniels “intentionally caused the death of Amanda Lynn Fanter” and that “it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” Thus, the instruction contains conflicting or, at a minimum, confusing mandates to the jury. In addition, the phrase added in 2008 relates primarily to whether the jury must find premeditated intent and does not clearly relate back to or negate the second element of the instruction, which required proof of Daniels’ intent to cause death.

Because we find that the 2008 jury instruction on manslaughter by act suffers from the same infirmity that this Court found erroneous in Montgomery, and because the record reflects that the issue of whether Daniels intentionally caused Fan-ter’s death was disputed and was pertinent and material to what the jury had to consider in order to reach its verdict as to first-degree murder, second-degree murder, or manslaughter, we hold that the error was fundamental in this case. In reaching the verdict that it did — second-degree murder — the jury necessarily concluded that Daniels had no intent to kill. Because of the continuing requirement in part of the 2008 instruction that the jury find intent to kill in order to convict for manslaughter by act, the jury was left with second-degree murder as the only other non-intentional alternative. Thus, because fundamental error occurred in this case, a new trial is required.

CONCLUSION

Based on the foregoing, we quash the decision of the Second District in Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011), and remand for proceedings consistent with this opinion. We approve the First District’s decision in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010).

It is so ordered.

PARIENTE, LEWIS, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., and QUINCE, J., concur.

CANADY, J.,

dissenting.

I agree that the instruction at issue here was erroneous, but I disagree with the conclusion that the error was fundamental. Here, as in Haygood v. State, 109 So.3d 735 (Fla.2013), and Williams v. State, 123 So.3d 23, 2013 WL 535449 (Fla.2013), there was no evidentiary basis for an instruction on manslaughter by act, and the conclusion that fundamental error occurred is necessarily predicated on the jury pardon doctrine. For the reasons I explained in Haygood, 109 So.3d at 746-52 (Canady, J. dissenting), I would reject the claim of fundamental error and approve the result reached by the Second District Court.

POLSTON, C.J., and QUINCE, J., concur.

      . See Fla. Std. Jury Instr. (Crim.) 7.7 (2008); see also In re Standard Jury Instructions in Criminal Cases—Report No. 2007-10, 997 So.2d 403, 404 (Fla.2008).

      . Some witnesses heard two shots and some heard only one. The victim died from one gunshot wound that severed her carotid artery. The projectile recovered from the body matched Daniels' .357 caliber handgun, which Daniels provided to the deputies. Another man with Daniels also carried a handgun, but it was .22 caliber.

      . Section 775.087(2), Florida Statutes (2007).

      . See In re Standard Jury Instructions in Criminal Cases—Report No. 2007-10, 997 So.2d at 404 (adding the underlined language to the 2006 instruction).

      . Second-degree murder is only one step removed from the crime of manslaughter. We held in Pena that “when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis.” Pena, 901 So.2d at 787.

      . We made clear when we amended the manslaughter by act jury instruction in 2008 that in authorizing the publication and use of the amended standard jury instruction, "we express no opinion on the correctness of this instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction.” In re Standard Jury Instructions in Criminal Cases—Report No. 2007-10, 997 So.2d at 404.

      . For example, the prosecutor argued at various times: "He was looking in the direction where he pulled the trigger. He wasn’t just blindly firing this gun. He wasn’t firing a warning shot in the air. Here's this woman within feet of him, and he’s holding the gun out, looking in the direction of the gun, and he fires.”; "And there is no timeframe for premeditation. It’s not a second. It's not five minutes. It's not two days. It's not three years. It can happen in a matter of milliseconds. Premeditation. It can happen from [the] time when Aaron Daniels lifts up the gun, looks in Amanda Fanter's direction and decides to pull the trigger.”; "He came there to shoot somebody, and when she gets into his face and tells him to leave, that they have children there and to leave the property, and he’s already so angry, I submit to you that he raised that gun and he thought about it for that split second, and he pulled the trigger.”; "If you find first degree murder, this is the only one that makes sense, because it’s clear that he said he busted off a round, and he said he aimed the gun.”; and "He was able to point that gun, and the bullet went exactly where he aimed. This is not manslaughter.”