author: LEE, P.J.,

text:
    Gwendolyn Jenkins SIMPSON, Appellant v. Julie Tillman WATSON and Tillman Furniture Company, Appellees.
    No. 2008-CP-01449-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.

      Gwendolyn Jenkins Simpson, Appellant, pro se.
    Toby Justin Gammill, Whitney Warner Gladden, Jackson, attorneys for appellees.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In December 2004, while shopping with her mother and sister at Tillman Furniture Company in Magee, Mississippi, Gwendolyn Jenkins Simpson sat down on a broken chair, which collapsed beneath her. A store manager, Carolyn Lagasse, took her to Magee Family Medical Clinic. Simpson complained of pain and requested a CT scan. The results of the scan showed cervical and lumbar strain. La-gasse paid for all medical bills incurred on the day of the incident. Simpson later sought treatment at another hospital, which also diagnosed her with cervical and lumbar strain.

¶ 2. According to Simpson, Lagasse told her that she was aware that the chair was broken. Lagasse told Simpson that a customer had returned the chair because it was broken, and the chair had been on the showroom floor for two to three days. She apologized to Simpson and stated that she did not know why the chair was still sitting on the showroom floor.

¶ 3. Simpson filed a pro se complaint in the Circuit Court of Copiah County against Tillman Furniture and Julie Tillman Watson, manager of Tillman Furniture, (collectively referred to as Tillman) alleging negligence and seeking recovery for physical and emotional damages, medical bills, lost donations to religious organizations, pain and suffering, and punitive damages. Tillman moved for summary judgment, arguing that Simpson had failed to show that the health problems she suffered were related to the incident at Tillman Furniture. A hearing was held, and the trial court granted Tillman’s motion for summary judgment. Simpson was not present at the hearing. Simpson now appeals, asserting that the trial court erred in granting Tillman’s motion for summary judgment. Finding no error, we affirm the entry of summary judgment.

STANDARD OF REVIEW

¶ 4. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547(¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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.” M.R.C.P. 56(c). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 5. Simpson argues that summary judgment was not appropriate because she was denied the opportunity to put on all her proof before summary judgment was entered. We start by noting that Simpson has represented herself throughout this matter. The supreme court has held that “[p]ro se parties should be held to the same rules of procedure and substantive law as represented parties” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). “However, we will not discard a meritorious complaint simply because it is inartfully drafted.” Davis-Everett v. Dale, 926 So.2d 279, 281(¶ 5) (Miss.Ct.App.2006).

¶ 6. Tillman moved for summary judgment on July 3, 2008. A hearing date of July 21, 2008, was set by the trial court, and the parties were properly noticed. The jury trial was scheduled to begin on July 22, 2008. Simpson contends that she was unable to attend the pretrial hearing because of a family emergency. Simpson attempted to contact the court clerk to let her know that she would be running late. Simpson states in her brief that the person who answered the phone told her that the court was running behind and that her message would be given to the trial judge’s assistant. Since she was not present, the trial court ruled on the summary judgment motion based on the written submissions of the parties.

¶ 7. In order to prove a claim of negligence, Simpson was required to show the following: (1) a duty owed to her by Tillman, (2) a breach of that duty, (3) a causal connection between Tillman’s conduct and her alleged injuries, and (4) damages. Spoo v. T.L. Wallace Constr. Co., 858 So.2d 199, 202(¶11) (Miss.Ct.App.2003).

¶ 8. Simpson alleges that she suffers from progressive paralysis, lack of mobility, constant pain, and an increased risk of suffering from strokes and heart attacks as a result of the chair collapsing underneath her. However, Simpson has put on no proof that any of the medical problems from which she is suffering are the result of the incident at Tillman Furniture. Prior to the incident, Simpson suffered from a number of medical conditions, including congestive heart failure, enlarged heart, pseudotumor cerebri, degenerative disc disease in her knees and spine, and osteoarthritis. She had also suffered previous heart attacks and strokes and had prior injuries due to falls and accidents. Her physician, Dr. Terry Smith, stated the following in a referral letter dated March 27, 2002:

[Simpson] says that she was hospitalized July, 2001 and underwent a difficult [lumbar puncture] and says that on the 3rd attempt she had pain in her back and legs, which has continued until now. She has had two MRI scans, and has been told that they have changed. She basically hurts all over. She hurts in the lower back and all down her legs, not one part more than another. She says that she spends most of her time in bed. She has tried medications and a heating pad. She reports decreased mobility. ...

Simpson suffered from back pain for several years prior to sitting on the broken chair. She has put on no proof to show a causal connection between her current medial condition and the incident at Tillman Furniture. Therefore, we find that Simpson has failed to meet her burden of proof for a claim of negligence sufficient to overcome summary judgment.

¶ 9. As previously stated, the party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The party opposing the summary judgment motion is not required to be present at the hearing. See Lott v. Purvis, 2 So.3d 789, 792(¶14) (Miss.Ct.App.2009) (affirming entry of summary judgment by the trial court notwithstanding Lott’s failure to appear at the hearing on the motion). However, Simpson was required to produce evidence such as affidavits or medical records sufficient to present a genuine issue of material fact for a trial on negligence. Since she failed to present any evidence showing a causal connection between the incident at Tillman Furniture and her injuries, we find that Simpson failed to present a genuine issue of material fact for trial. Therefore, we find that Simpson’s arguments are without merit, and we affirm the judgment of the trial court granting summary judgment in favor of Tillman.

¶ 10. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


source: Caselaw Access Project

license: Public Domain

text:
    MANHATTAN NURSING & REHABILITATION CENTER, LLC, Bobbie Blackard and Laura Clark, Appellants v. Louise WILLIAMS, Appellee.
    No. 2008-CA-00925-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.

      Rebecca Adelman, Hardin Chase Pittman, attorneys for appellants.
    John F. Hawkins, Walter Andrew Neely, Bay St. Louis, attorneys for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 31, 2007, Louise Williams filed suit on behalf of her mother, Willie Mae Henderson, in the Circuit Court of Hinds County, alleging negligence and breach of contract against Manhattan Nursing and Rehabilitation Center (Manhattan). On March 30, 2007, Manhattan filed a motion to compel arbitration or, in the alternative, motion to dismiss. In this motion, Manhattan also moved to dismiss Williams’s complaint and certain parties. Manhattan also requested permission to conduct discovery related to arbitration.

¶ 2. Williams noticed a hearing on the motion to compel arbitration, but counsel for Manhattan was not available due to a previously scheduled matter. Manhattan filed a notice cancelling the hearing and stated that it would work with Williams to “reschedule to the earliest mutually agreeable date.” On August 22, 2007, without holding a hearing, the trial court entered an order finding that Manhattan had waived its right to compel arbitration.

¶ 3. Manhattan now appeals, asserting the following issues: (1) the trial court erred in denying its motion to compel arbitration, and (2) in the alternative, Williams is estopped from challenging the arbitration agreement because it is part of the contract under which she is suing for breach. Finding that the trial court erred in holding that Manhattan waived its right to compel arbitration, we reverse and remand this case for further proceedings consistent with this opinion.

FACTS

¶ 4. Mary Still, Henderson’s daughter, signed a healthcare services contract to admit Henderson to Manhattan. Henderson had Alzheimer’s disease and was incapable of making decisions on her own. While in Manhattan’s care, Henderson suffered a broken arm, which went untreated, and decubitus ulcers, one of which resulted in the amputation of her leg.

STANDARD OF REVIEW

¶ 5. The standard of review for a denial of a motion to compel arbitration is de novo. United Credit Corp. v. Hubbard, 905 So.2d 1176, 1177(¶ 7) (Miss.2004).

DISCUSSION

I. MOTION TO COMPEL ARBITRATION

¶ 6. In its order denying Manhattan’s motion to compel arbitration, the trial court relied on the then-recently-decided case of Century 21 Maselle and Associates, Inc. v. Smith, 965 So.2d 1031 (Miss.2007). In Century 21, Century 21 and Cindy Smith (collectively, Century 21) filed an answer to Tony and Linda Smith’s (the Smiths) complaint and requested a jury trial. Id. at 1034(¶ 4). As its first affirmative defense in its answer, Century 21 asserted that the complaint should be dismissed and that the arbitration clause in the contract between the parties should be enforced. Id. That same day, Century 21 propounded interrogatories and requests for production of documents, for which responses were never received. Id. The motion to compel arbitration was noticed for a hearing sixty-one days after the suit was filed and twenty days after the answer was filed. Id. The trial court found that the defendants had waived their right to compel arbitration by requesting a jury trial and propounding discovery. Id. at (¶ 5). On appeal, the supreme court reversed, finding that although Century 21’s acts in initiating discovery were “precipitously close to satisfying the waiver exception,” the waiver exception was not met because the Smiths “offered no evidentiary basis for the lower court to find detriment or prejudice either by incurred legal expense or procedural delay....” Id. at 1038(¶ 12).

¶ 7. The supreme court has held that the right to compel arbitration is waived “when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1278(¶ 28) (Miss.2003) (quoting Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999)). A “waiver of arbitration is not a favored finding, and there is a presumption against it.” MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 179(¶ 39) (Miss.2006) (quoting Russell v. Performance Toyota, Inc., 826 So.2d 719, 724(¶ 16) (Miss.2002)). Waiver is defined as the “active participation or substantial invocation of the litigation process which results in detriment or prejudice to the other party, or engaging in conduct inconsistent with timely enforcing the arbitration agreement....” Century 21, 965 So.2d at 1036(¶ 8). “However, parties claiming waiver must offer sufficient evidence at a hearing to overcome the presumption in favor of arbitration.” Id. at 1036-37(¶ 8). In Century 21, the supreme court reiterated that “[pjarties seeking to enforce arbitration are to file a ‘Motion to Compel Arbitration and to Stay Proceedings Pending Arbitration’ immediately upon discovery that the controversy or suit is subject to an arbitration agreement.” Id. at 1038(¶ 10).

118. The first document filed by Manhattan was the motion to compel arbitration or, in the alternative, motion to dismiss. Williams responded to Manhattan’s motion and attached the affidavits of Williams and Still. Approximately a month later, Williams set the motion for a hearing. After learning that the hearing had been set, Manhattan filed a notice cancelling the hearing and requested to take the depositions of Williams and Still concerning their affidavit testimony. No hearing was held on the arbitration issue. Before learning that the trial court had entered an order holding that Manhattan had waived its right to compel arbitration, Manhattan filed a motion for permission to take discovery that would be limited to the enforceability of the arbitration agreement. The trial court entered a second order, again finding that Manhattan had waived its right to compel arbitration.

¶ 9. Although Manhattan failed to file a motion to stay the proceedings pending arbitration, we cannot find that it waived its right to compel arbitration. Manhattan did not delay in pursuing its right to compel arbitration, and it did not actively participate in litigation by serving discovery, moving for summary judgment, or entering into a scheduling order. Manhattan sought to depose Williams and Still, but the purpose of the depositions was limited to matters related to the arbitration agreement. Regardless, the depositions were never scheduled or taken. In addition, Williams has failed to offer any evidence of detriment or prejudice caused by any delay Manhattan may have caused. See IJniv. Nursing Assocs., 842 So.2d at 1278(¶ 28) (quoting Subway Equip., 169 F.3d at 326) (“Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.”).

¶ 10. In its order denying the motion to compel arbitration, the trial court found as follows:

[Although the defendants filed the herein Motion to Compel Arbitration, they have failed to promptly schedule and notice a hearing on the motion. The Court further finds that [the] plaintiff duly noticed the [defendants’ motion so this matter could move forward. The defendants indicated they were not available for the hearing. Therefore, the Court chose to rule on this matter without a hearing. After a review of this matter, the Court finds that the defendants’ conduct is inconsistent with timely enforcing the arbitration agreement.

The trial court made no findings regarding whether Manhattan’s failure to schedule a hearing caused detriment or prejudice to Williams. On appeal, Williams argues that she suffered prejudice because she was forced to take “potentially binding positions on numerous matters not relating to arbitration, creating the potential for inconsistent rulings between a court of law and an arbitral forum.”

¶ 11. According to the United States Fifth Circuit Court of Appeals, “[prejudice ... refers to the inherent unfairness-in terms of delay, expense, or damage to a party’s legal position-that occurs when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue.” Id. at 1278(¶ 30) (quoting Subway Equip., 169 F.3d at 327). The burden was on Williams, the party claiming waiver, to “offer sufficient evidence at a hearing to overcome the presumption in favor of arbitration.” Century 21, 965 So.2d at 1036-37(¶ 8). No evidence of any delay or expense was shown by Williams. Williams also does not show any damage to her legal position as the only action taken by Williams after Manhattan filed its notice to compel arbitration was her filing of the notice of hearing.

¶ 12. We find that Manhattan did not substantially participate in litigation of the case and did not cause an undue delay or prejudice to Williams. Therefore, the decision of the trial court finding that Manhattan waived its right to compel arbitration is reversed, and the case is remanded with directions for the court to hold a hearing on the motion to compel arbitration. We direct the trial court to hold the hearing in an expeditious manner as to prevent any further delay in these proceedings.

II. ESTOPPEL

¶ 13. Manhattan argues that because Williams alleged breach of contract in her complaint, she should be equitably es-topped from challenging the arbitration clause as it is a part of the contract that she disputes. The trial court did not address the issue of estoppel; therefore, we find that this issue is not properly before this Court. Glover v. Jackson State Univ., 968 So.2d 1267, 1272(¶ 11) (Miss.2007). Regardless, in her brief to this Coui’t, Williams withdraws the breach of contract claim and states that she only intends to pursue the negligence claim against Manhattan. Therefore, we find no need to address this argument.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: PARKER, Justice.

text:
    ACE TITLE LOAN, INC. v. James Michael CRUMP and Denise Littleton, as bankruptcy trustee.
    1050246.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.
    Jarrod J. White of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Mobile; and W. Bradford Kittrell of Lyons, Kitt-rell, Rowan & Horn, L.L.C., Mobile, for appellees.
   PARKER, Justice.

Ace Title Loan, Inc. (“Ace”), appeals from a judgment of the Mobile Circuit Court awarding the plaintiffs, James Michael Crump and Crump’s bankruptcy trustee, Denise Littleton (hereinafter referred to collectively as “Crump”), $50,000 in compensatory damages and $25,000 in punitive damages. The judgment was based on an arbitration award on James’s assault-and-battery claim against Ace based on the action of Ace’s repossession agents. Ace challenges the arbitrator’s findings and the award, asserting that the arbitrator ignored Ace’s valid defense of judicial estoppel and that he violated procedure by improperly recognizing that both the bankruptcy trustee and James could be plaintiffs.

Background, and Procedural Posture

On November 19, 2002, two agents of Ace appeared at James’s residence to repossess from James’s yard the collateral for a loan James had negotiated with Ace. During the course of the repossession, the agents allegedly assaulted James. According to James’s complaint, the attack “involved physical beating, cuts and bruises, pain and suffering, embarrassment, and humiliation, with the beating occurring in full view of [James’s] young daughter.” It is undisputed that James was in default on the loan and that the repossession was proper, but James claims that the repossession was improperly executed.

On March 19, 2004, James sued Ace and its agents, seeking compensatory damages, punitive damages, and costs. Ace answered, denying liability and stating that the action should be stayed and that James should be ordered to submit the dispute to binding arbitration pursuant to the “pawn agreement,” the contract under which the action arises. Ace followed its answer on May 6, 2004, with a motion to stay and to submit the dispute to arbitration. James opposed the motion, and Ace filed its response on May 27, 2004, again arguing that the dispute should be submitted to binding arbitration. On February 4, 2005, the trial court issued its order compelling James to arbitrate the dispute. The arbitrator ruled in favor of Crump, and Ace now appeals from the judgment of the trial court adopting the arbitrator’s report and award.

In the Arbitration

The arbitration was held on September 29, 2005. The arbitration, and hence this appeal, was complicated by the fact that after the assault but before James filed the legal action based on the assault, James filed a petition in bankruptcy under Chapter 7 of the Bankruptcy Code. He failed to list as a contingent or unsecured claim in his bankruptcy petition the potential recovery in this action, and he did not report the existence of his claim until Ace moved the arbitrator for a summary judgment based on the doctrine of judicial estoppel, arguing that James’s failure to mention the claim in his bankruptcy proceeding, which had been finalized, precluded his pursuing the claim. James then proceeded to reopen his bankruptcy proceeding on June 15, 2004, and Littleton, the bankruptcy trustee, was added to the arbitration proceeding as a plaintiff. Crump’s brief, at 1-2.

The “Arbitration Judgment and Award,” dated October 6, 2005, awarded Crump $50,000 in compensatory damages and $25,000 in punitive damages. The trial court entered its final judgment on October 21, 2005, adopting the arbitrator’s award and incorporating it into its order. Ace filed its notice of appeal on November 15, 2005.

On Appeal

Ace appeals the trial court’s order incorporating the arbitrator’s judgment, arguing that the arbitrator’s award is flawed because (1) its defense of judicial estoppel was improperly denied; (2) the bankruptcy trustee, a party over whom, Ace says, the arbitrator lacked personal jurisdiction, was impermissibly added as a party to the arbitration proceeding; (8) James was im-permissibly retained as a party once the trustee was added as a plaintiff; and (4) the arbitrator failed to limit the award to the amount of the claims of the unsecured creditors in James’s bankruptcy proceeding.

Crump answers, alleging that Ace’s appeal should be dismissed as untimely filed and arguing that the arbitrator was correct on each issue raised on appeal. For the reasons presented below we pretermit discussion of the issues presented and remand the cause for further proceedings in the trial court.

Standard of Review

Our standard of review for an appeal from a trial court’s order confirming an arbitration award is as follows:

“‘“Where parties, as in this case, have agreed that disputes should go to arbitration, the role of the courts in reviewing the arbitration award is limited. Transit Casualty Co. v. Trenwick Reinsurance Co., 659 F.Supp. 1346 (S.D.N.Y.1987), affirmed, 841 F.2d 1117 (2d Cir.1988); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d [Cir.] 1967). On motions to confirm or to vacate an award, it is not the function of courts to agree or disagree with the reasoning of the arbitrators. Application of States Marine Corp. of Delaware, 127 F.Supp. 943 (S.D.N.Y.1954). Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. Saxis Steamship Co. A court cannot set aside the arbitration award just because it disagrees with it; a policy allowing it to do so would undermine the federal policy of encouraging the settlement of disputes by arbitration. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Virgin Islands Nursing Association’s Bargaining Unit v. Schneider, 668 F.2d 221 (3d Cir.1981). An award should be vacated only where the party attacking the award clearly establishes one of the grounds specified [in 9 U.S.C. § 10]. Catz American Co. v. Pearl Grange Fruit Exchange, Inc., 292 F.Supp. 549 (S.D.N.Y.1968).” ’

“R.P. Industries, Inc. v. S & M Equipment Co., 896 So.2d [460,] 464 [Ala.(2004)] (quoting Maxus, Inc. v. Sciacca, 598 So.2d 1376, 1380-81 (Ala.1992)). The standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1289 (11th Cir.2002).”

Hereford v. D.R. Horton, Inc., 13 So.3d 375, 378 (Ala.2009).

Necessity of Challenge in the Circuit Count

A challenge to an arbitration award is a prerequisite to an appeal. As we said in Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008):

“The judgment entered by the circuit clerk on the arbitrator’s award pursuant to § 6-6-15[, Ala.Code 1975,] is a conditional one; it does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award. A party seeking review of an arbitration award is required to file a motion to vacate during this period — while the judgment entered by the circuit clerk remains conditional — in order to preserve its ability to later prosecute that appeal to an appellate court once the judgment becomes final. This is so not only because § 6-6-15 contemplates a party’s first seeking relief from an award in the circuit court, but also because ‘[a]ny grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered.’ Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 165 (Ala.2005).”

999 So.2d at 467.

Here, the record bears no evidence that such a motion was filed. A similar situation existed when Horton Homes was decided. Horton Homes, relying on this Court’s decision in H & S Homes, L.L.C. v. McDonald, 910 So.2d 79 (Ala.2004), holding that a Rule 59(e), Ala. R. Civ. P., motion to vacate the award was not required before an arbitration award could be appealed, did not challenge the arbitration award in the circuit court, but timely filed its notice of appeal. In considering this failure in Horton Homes, this Court reviewed and then overruled McDonald, noting that a judgment on an arbitrator’s award does not become a final appealable judgment “until the circuit court has had an opportunity to consider a motion to vacate.” 999 So.2d at 467. We then held:

“Because the failure ... to file a motion to vacate the award with the circuit court was presumably in reliance on McDonald, it would hardly be just to deny relief in their appeals on that basis. For that reason, we now reverse the final judgment resulting from the passage of 10 days from the circuit clerk’s entry of a conditional judgment, leaving in place the conditional judgment, and remand the cause for [the appellants] to file motions to vacate the award with the circuit court within 30 days of the date of this opinion. If, within the following 90 days, the circuit court denies those motions or otherwise allows the conditional judgment entered by the circuit clerk to become final by default, [the appellants] may engage in further appellate proceedings that permit us to review the circuit court’s action with new briefs and a record that includes grounds asserted in any subsequently filed motions to vacate.”

999 So.2d at 468-469. Here, because Horton Homes was decided after Ace had filed its notice of appeal, the same reliance on McDonald may have influenced Ace’s decision to appeal without filing a motion in the circuit court to vacate the judgment. Consequently, it would be unjust to deny Ace’s appeal on that basis, and we, therefore, reverse the circuit court’s judgment and remand the case to afford Ace the opportunity to present its motion to vacate the judgment in the circuit court.

REVERSED AND REMANDED.

COBB, C.J., and SEE, WOODALL, and SMITH, JJ., concur.

      . The bankruptcy trustee was added as a plaintiff during the arbitration proceeding. See infra.

      . Although Ace's summary-judgment motion was denied, Ace makes no argument in its brief on appeal regarding that denial. Accordingly, for reasons presented infra, that issue is not before this Court.

      . Rules 71B and 71C, Ala. R. Civ. P., were adopted, Rule 4(e), Ala. R.App. P., was adopted, and Rule 4(a)(1), Ala. R.App. P., was amended, all effective February 1, 2009, in response to Horton Homes, to clarify the procedure for taking an appeal from an arbitrator's award.


author: PER CURIAM.

text:
    Marcus Lynn WHITSON v. CITY OF HOOVER.
    1071468.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      Bret M. Gray of Stephen B. Griffin & Associates, Hoover, for appellant.
    Mark S. Boardman and Philip F. Hutcheson of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellee.
   PER CURIAM.

Marcus Lynn Whitson appeals from a judgment of the Shelby Circuit Court denying his motion for a change of venue to Jefferson County and dismissing his age-discrimination claim against the City of Hoover (“the City”), made pursuant to the Alabama Age Discrimination in Employment Act, § 25-1-20 et seq., Ala.Code 1975. We reverse as to the dismissal of the age-discrimination claim and affirm the circuit court’s refusal to order a change of venue.

I. Facts and Procedural History

On September 23, 2004, Whitson, who was then employed by the City, suffered an on-the-job injury to his right arm and shoulder. On May 17, 2007, Whitson initiated an action in the Shelby Circuit Court seeking benefits for his injury pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Approximately two weeks later, the City terminated Whitson’s employment, stating that there were no light-duty positions available that Whitson could fill.

Whitson and the City thereafter negotiated a settlement to resolve Whitson’s worker’s compensation claim, and, on July 10, 2007, the trial court entered an order approving the settlement. That order stated in pertinent part:

“2. [Whitson] shall have and recover from the [City] the lump sum of $71,972.92 representing all claims for past, present, and future compensation and vocational rehabilitation benefits arising out of [Whitson’s] injury or injuries.
“3. Medical benefits shall remain open subject to the provisions of Alabama Code [1975,] § 2[5]-5-77.
“4. The [City] and its insurance carrier are hereby released and discharged from all claims for past, present, or future compensation and vocational rehabilitation benefits, whether based on [Whitson’s] vocational disability, physical impairments, or otherwise. Accordingly, [Whitson] shall not be entitled to any additional benefits in the future, with the exception of future medical benefits as set out above, regarding [Whitson’s] on-the-job injuries. This settlement shall preclude [Whitson] from re-petitioning the court for a determination of his loss of earning capacity based upon vocational disability in accordance with the Workers’ Compensation Act as amended in May 1992.”

This settlement effectively terminated Whitson’s claim, although it remained open insofar as Whitson required further medical care for his injury.

On November 7, 2007, Whitson filed a new action against the City in the Jefferson Circuit Court alleging that the City had terminated his employment because of his age, in violation of the Alabama Age Discrimination in Employment Act, and because he had filed a claim for worker’s compensation benefits, in violation of the retaliatory-discharge statute, § 25-5-11.1, Ala.Code 1975. On December 18, 2007, the City, which is located in both Jefferson County and Shelby County, moved the Jefferson Circuit Court to transfer the case to the Shelby Circuit Court based on that court’s previous handling of Whitson’s worker’s compensation claim. The Jefferson Circuit Court granted that motion and transferred the case to the Shelby Circuit Court on December 19, 2007.

On March 20, 2008, the City moved for the dismissal of Whitson’s complaint, arguing that Whitson had already been compensated for his injury and termination pursuant to the Workers’ Compensation Act and that he could not, therefore, assert additional claims under that Act or seek additional remedies outside that Act. Whit-son filed a response opposing the City’s motion in regard to his age-discrimination claim; however, he agreed to drop his retaliatory-discharge claim. He then argued that, without the retaliatory-discharge claim, venue for his case was proper in Jefferson County; accordingly, he moved the Shelby Circuit Court to transfer the case back to the Jefferson Circuit Court. On June 12, 2008, the Shelby Circuit Court denied Whitson’s motion to transfer the case and granted the City’s motion to dismiss the age-discrimination claim, the only remaining claim. Whitson then filed this appeal.

II. Issues

Two issues are presented in this appeal: (1) whether Whitson can maintain an action alleging his employment was unlawfully terminated based on his age after he was already compensated for his loss of future earnings when he settled his worker’s condensation claim, and (2) whether the Shelby Circuit Court erred by denying his motion to transfer this action back to the Jefferson Circuit Court after he agreed to the dismissal of his retaliatory-discharge claim.

III. Analysis

A. Dismissal of Whitson’s Age-Discrimination Claim

The Shelby Circuit Court dismissed Whitson’s age-discrimination claim on the basis that the remedies provided by the Workers’ Compensation Act are exclusive of other remedies. In support of its order, the court cited Baptist Memorial Hospital v. Gosa, 686 So.2d 1147 (Ala.1996), and Kelley v. Dupree, 376 So.2d 1371 (Ala.1979), and stated as follows:

“Specifically in, regard to on the job injuries, Alabama caselaw is clear that when an employee elects to be compensated under the Alabama Workers’ Compensation Act, then such employee shall be precluded from all other lights and remedies. Kelley v. Dupree, 376 So.2d 1371 (Ala.1979); Baptist Memorial Hospital v. Gosa, 686 So.2d 1147 (Ala.1996).”

(Emphasis added.)

In Gosa, the more recent of the two cases cited by the circuit court, however, the plaintiffs sought to recover from their employer additional damages, under common-law causes of action, for the same on-the-job, physical injuries for which they had already recovered workers’ compensation benefits. 686 So.2d at 1148. This Court properly rejected this effort, citing 8 25-5-53, Ala.Code 1975, which provides, in part:

“The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death, of the employer’s employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment.”

(Emphasis added.) The same was true in Kelley, the other case cited in the circuit court’s order. 376 So.2d at 1372. The decision in Kelley likewise was based upon § 25-5-53.

We also take note of § 25-5-52, Ala. Code 1975, which provides:

“Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

(Emphasis added.)

As indicated by the statutory passages emphasized above, and indeed the passage from the circuit court’s judgment itself, which is also emphasized above, the exclusivity of the remedies provided by the Workers’ Compensation Act does apply “in regard to on-the-job injuries.” Here, however, Whitson seeks to recover outside the Workers’ Compensation Act, not for his on-the-job physical injuries, but for injuries suffered by virtue of a completely different cause of action with a completely different gravamen, namely wrongful termination of employment (in this case based on alleged age discrimination). The principle that the Workers’ Compensation Act provides the exclusive remedies for on-the-job physical injuries, as provided in §§ 25-5-52 and -53 and cases applying those statutes, is thus inapposite to the issue in this case.

The circuit court also stated:

“Mr. Whitson elected to be compensated under the Alabama Workers’ Compensation Act and reached a settlement with the City of Hoover for $ 71,972.92 based on a negotiated 62% vocational disability rating, which was approved by this Court on July 10, 2007, well after the date of his termination. Section 25-5-57(a)(3)(i), Ala.Code 1975, provides that vocational disability can only be considered when the employee has not returned to work at a wage equal to or greater than the employee’s pre-injury wage. The logical result of this code section is that when a vocational disability rating is used as the basis for a settlement, then the employee is being compensated for either a reduction in wages and/or termination.”

We disagree with the circuit court’s reasoning. Section 25 — 5—57(a)(3)(i), Ala.Code 1975, provides:

“If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

The purpose of § 25 — 5—57(a)(3)(i) is simply to set parameters on the amount of worker’s compensation benefits an employee may receive in the event the employee returns to work earning a wage equal to or greater than the wage the employee earned before his or her accident. It is true that a settlement that provides the employee payments reflective of his or her degree of vocational disability, rather than his or her physical-disability rating, arguably suggests (but in and of itself does not dispositively establish) that the employer and employee based the settlement on a mutual understanding that the employee had not returned to work, at least not at a wage equal to or greater than his or her pre-injury wage. Nonetheless, and regardless of whether an employee recovers damages (either at trial or in a settlement) for his or her on-the-job physical injuries based on not having returned to work following the occurrence of those injuries, we see nothing in § 25-5-57 that forecloses a separate claim of wrongful termination, whether for an alleged retaliatory discharge as expressly allowed under § 25-5-11.1 or for an allegedly discrimination-based discharge under a federal statute or, as here, an applicable state statute.

We would have a different case if the settlement agreement itself, i.e., by its own terms, indicated an agreement between the parties that served to foreclose any subsequent further claims of the nature asserted here. It does not. Paragraph 2 of the settlement agreement, as incorporated in the order of the Shelby Circuit Court, begins with a provision that clearly indicates that the moneys paid to Whitson represented amounts the parties agreed were due Whitson under the Workers’ Compensation Act as benefits to which Whitson was entitled as a result of his on-the-job physical injury: “[Whitson] shall have and recover from the employer the lump sum of $71,972.92, representing all claims for past, present, and future compensation and vocational rehabilitation benefits arising out of [Whitson’s] injury or injuries.” (Emphasis added.) The terms of art used in this passage indicate that the payment of a “lump sum” is being made solely for the purpose of compensating Whitson for loss of “compensation ... benefits” and “vocational rehabilitation benefits” to which Whitson would otherwise be entitled under the Workers’ Compensation Act. Moreover, this passage explicitly states that the lump-sum payment of $71,972.92 is being made for all claims that would “arise out of [Whitson’s] injury or injuries.” This last phrase clearly indicates that the purpose of the payment was to compensate Whitson for the physical injury he suffered in the course of his employment, not at all the same gravamen that exists in his lawsuit alleging age discrimination in the termination of his employment.

Consistent with this understanding of the purpose of the aforesaid lump-sum payment, the next paragraph in the settlement agreement (paragraph 3 of the Shelby Circuit Court’s order) states that “[mjedical benefits shall remain open subject to the provisions of Ala.Code [1975,] § 25-5-77.” Again, the use of a term such as “medical benefits” and, indeed, the explicit citation to the applicable section of the Workers’ Compensation Act governing “medical benefits” make it clear that the purpose of the agreement is to address Whitson’s claims under that Act.

Nothing in paragraph 4, the next paragraph in the parties’ agreement, is inconsistent with the foregoing. In fact, to the contrary, the first sentence of paragraph 4 states:

“The [City] and its insurance carrier are hereby released and discharged from all claims for past, present, or future compensation and vocational rehabilitation benefits, whether based on [Whitson’s] vocational disability, physical impairments, or otherwise.”

(Emphasis added.) Syntactically, the object of the “release[ ] and discharge! ]” in this sentence is simply “all claims ... for compensation and vocational rehabilitation benefits.” The follow-up clause beginning with “whether” is merely a “conditional clause”; it does not expand the set of claims to which the release applies in the first place but merely confirms that there is no subset of the previously defined set of claims that is exempt from the release.

The second sentence of paragraph 4 reads: “Accordingly, [Whitson] shall not be entitled to any additional benefits in the future, with the exception of future medical benefits as set out above, regarding [Whitson’s] on-the-job-injuries.” The use of the term “accordingly” to begin the sentence signifies that what is about to be said follows naturally or logically from the immediately preceding sentence. Therefore, it is significant (1) that this second sentence goes on to explain that the restriction is against Whitson’s receiving any additional “benefits,” a term of art under the Workers’ Compensation Act, and (2) that the second sentence ends with the qualifying phrase “regarding [Whitson’s] on-the-job injuries,” thus limiting the types of claims being released. Again, Whitson’s on-the-job physical injuries are not at all the same gravamen as that which underlies Whitson’s subsequent claim alleging age discrimination in the termination of his employment.

The final sentence in paragraph 4 states: “This settlement shall preclude [Whitson] from re-petitioning the court for a determination of his loss of earning capacity based upon vocational disability in accordance with the Workers’ Compensation Act as amended in May 1992.” This sentence is corroborative of the construction of the previous provisions of the agreement described above.

Based on the foregoing, it cannot reasonably be concluded that the settlement agreement between the parties expresses any intention by the parties to release any claims other than those arising under the Workers’ Compensation Act. In short, the “compensation and vocational rehabilitation benefits ” for which the City is released and discharged under the agreement do not exhaust the universe of “damages” that Whitson could now be seeking to recover for his termination based on his age. Such “damages” include more than what can fairly be classified as “benefits.” The Alabama Age Discrimination in Employment Act incorporates the remedies available for age discrimination under the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34. Remedies under the federal act, 29 U.S.C. § 626, are designed to make the plaintiff whole and include damages representing full backpay (as opposed to a percentage of backpay designed to be a compensatory “benefit”), fringe benefits, reinstatement, or full front pay for a finite future period (as opposed to a percentage of pay designed to be a compensatory “benefit”), equitable relief, and attorney fees. See Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir.2000). The federal act also provides for liquidated damages (over and above compensatory damages) for “willful” violations. See United States E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1249-50 (11th Cir.1997).

Based on the foregoing, the circuit court’s judgment is due to be reversed insofar as it dismissed Whitson’s age-discrimination claim.

B. Denial of Whitson’s Motion for Change of Venue

Whitson also contends on appeal that the Shelby Circuit Court erred in denying his motion to transfer the case back to Jefferson County. Preliminarily, we note that Whitson does not argue that the Jefferson Circuit Court erred by initially transferring the case to Shelby County. Whitson argues, however, that once he agreed to the dismissal of his retaliatory-discharge claim under the Workers’ Compensation Act, his case should have been transferred back to Jefferson County. He fails, however, to offer any analysis or cite any caselaw that supports his argument; rather, he merely declares that the case should have been transferred back to Jefferson County. The City points out that this Court has held that if a municipality is physically located in two or more counties, venue is appropriate in either county.

“ ‘The burden of proving a duty to transfer [an action] is on the party raising the issue.’ Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994), citing Ex parte Ralston, 519 So.2d 488 (Ala.1987), and Ex parte Finance America Corp., 507 So.2d 458 (Ala.1987).” Ex parte Sawyer, 892 So.2d 919, 921 (Ala.2004). Whitson has failed to show that the Shelby Circuit Court had any duty to transfer the case back to the Jefferson Circuit Court. The only caselaw he cites in the section of his brief making this argument in fact indicates that Shelby County was an appropriate venue for this dispute. See Ex parte City of Haleyville, 827 So.2d 778 (Ala.2002) (stating that a municipality that is physically located in two or more counties may be sued in either of those counties). It is not this Court’s duty to formulate legal arguments or provide authorities in support of an appellant’s position on appeal. Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). We therefore decline to further address Whitson’s assertion that the Shelby Circuit Court exceeded its discretion in not transferring the case back to Jefferson County.

IV. Conclusion

To the extent the circuit court dismissed Whitson’s age-discrimination claim, its judgment is reversed and the cause is remanded to the circuit court for further proceedings. We affirm the judgment insofar as it denied Whitson’s motion to transfer the case back to Jefferson County-

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, WOODALL, SMITH, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., and BOLIN, J., concur in the result.

STUART, J., dissents.