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Lawler and Cole CPAs, LLC v. Cole

Alabama Court of Civil Appeals

July 13, 2018

Lawler and Cole CPAs, LLC, and Alabama Retail Association d/b/a Alabama Retail Comp
v.
Donald Cole

          Appeal from Marion Circuit Court (CV-16-900118)

          MOORE, Judge.

         Lawler and Cole CPAs, LLC ("the employer"), and Alabama Retail Association d/b/a Alabama Retail Comp ("Alabama Retail") appeal from a judgment of the Marion Circuit Court ("the trial court") awarding workers' compensation benefits to Donald Cole ("Cole"), the surviving spouse of Linda Cole, who is deceased, under the Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq. We affirm the trial court's judgment.

         Procedural History

         On October 5, 2016, Cole[1] filed a complaint against the employer and Alabama Retail, [2] asserting, among other things, that Linda Cole ("the employee") had been employed by the employer, that the employee died while at her place of employment, that the employer maintained with Alabama Retail a workers' compensation and employer's liability-insurance policy, and that the employer and Alabama Retail had failed or refused to pay to Cole any workers' compensation benefits as a result of the employee's death. The complaint sought an award of workers' compensation benefits on behalf of Cole, the employee's surviving spouse and next of kin. The employer and Alabama Retail filed separate answers, each denying certain of Cole's claims and asserting a number of defenses.

         On July 25, 2017, Cole filed a motion for a summary judgment, along with evidentiary submissions in support thereof. On September 25, 2017, the employer and Alabama Retail filed a joint motion for a summary judgment, along with evidentiary submissions in support thereof. The trial court entered an order on October 6, 2017, determining that the death of the employee "was a compensable accident under [the Act] because it arose out of her employment." On October 26, 2017, the trial court entered a summary judgment in favor of Cole and denied the summary-judgment motion filed by the employer and Alabama Retail. This appeal follows.

         Facts

         The parties on appeal agree that the facts regarding the circumstances of the death of the employee are undisputed. On February 20, 2016, the employee was on the employment premises performing her duties for the employer as an accountant when Jimmy Dale Cooper entered the premises for the express purpose of assaulting the employee and shot and killed the employee.

         Cooper had been a long-time client of the employee, who had handled Cooper's individual and business taxes since at least the 1980s. At some point, Cooper's business underwent a sales-tax audit resulting in liability for unpaid sales taxes. Subsequently, the Alabama Department of Industrial Relations ("the Department") audited Cooper's business. During that audit, Cooper refused to comply with the lawful requests of the Department. The employee informed Cooper that she would not be able to provide him accounting services if he would not comply with the law; in response, Cooper had said he would find another accountant. In 2007 or 2008, Cooper collected copies of his paperwork and requested a final bill from the employer. The employee told Cooper that they were friends, that she did not want any hard feelings between them, and that Cooper did not owe anything to the employer. The audit apparently continued thereafter, ultimately resulting in fines and penalties being imposed against Cooper or his business for failing to properly classify certain workers as employees and for failing to pay appropriate withholding taxes.

         The record contains no evidence indicating that the employee and Cooper had any further interaction. Approximately two years before the employee was killed, April Cagle, the employee's daughter who also worked for the employer as an accountant, had talked with Cooper over the telephone about an unrelated matter and Cooper had not mentioned his tax problems. About a year before the employee's death, Donny Miller, Cooper's former business partner, warned Johnny Mack Lawler, the employee's business partner, that Cooper was upset with the employee and blamed her for his tax problems. In reference to Cooper, Miller told Lawler: "Y'all need to be careful."

         On February 10, 2016, Cooper went to the office of a Hamilton attorney, Scott Hunt. Cooper held Hunt at gunpoint to coerce Hunt into telephoning Miller and requesting, under false pretenses, that he come down to Hunt's office. Hunt later informed Cagle that, while waiting for Miller to arrive at his office, Cooper had told Hunt "in detail everything that he was going to do and to whom and why" and that "the reason that [Cooper] was [going] after [the employee] was because he blamed her for his tax problems in the past." When Miller arrived at Hunt's office, Cooper appeared from a hiding place and shot Miller. Cooper then attempted to shoot Hunt, but his gun jammed. Cooper then apparently went to the office of the person who was performing his accounting services at that time with the intent to kill that accountant, but he was unable to gain access to that office.

         Cooper thereafter entered the offices of the employer, gave a false name to the receptionist, and indicated that he wanted to see the employee for tax-accounting purposes. The employee was working on a client's income-tax return at the time. As the employee's client was leaving the employee's office, Cooper walked down the hall from the reception area into the employee's office. Once Cooper was in the employee's office, the employee attempted to contact the receptionist, and, shortly afterward, the employee left her office and started down the hall. Cagle heard Cooper say to the employee: "You have f***** my taxes up for the last time," and she heard the employee respond to Cooper, saying: "Jimmy, please don't do this" and "I will help you, we will do what we can to fix ... this mess, but I will help you." Cooper then shot the employee three times, resulting in the employee's death.

         Both Cagle and Lawler testified in their depositions that they did not know of any other reason that Cooper would have had any personal ill will against the employee and that the employee had not had any interaction with Cooper between the end of the employer's services regarding his taxes in 2007 or 2008 and his return to the employer's offices in February 2016, when he shot the employee. Cagle testified that, approximately six months before the shootings, Cooper had ...


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