from Etowah Circuit Court (CV-10-900283)
the third in a series of appeals arising from an action
brought by Lillie Billingsley ("the employee") in
the Etowah Circuit Court seeking an award of benefits under
the Alabama Workers' Compensation Act, § 25-5-1 et
seq., Ala. Code 1975 ("the Act"), from her
employer, the City of Gadsden ("the employer"),
stemming from a work-related August 2008 automobile
collision. See Billingsley v. City of Gadsden, 189
So.3d 738 (Ala.Civ.App. 2015) ("Billingsley
I"), and City of Gadsden v. Billingsley,
[Ms. 2170873, December 21, 2018] __So. 3d__ (Ala.Civ.App.
2018) ("Billingsley II").
briefly summarize the pertinent procedural history, in
Billingsley I this court affirmed the trial
court's judgment to the extent that that court had
concluded that the employee had suffered a compensable injury
under the Act only to her left shoulder, but this court
reversed that judgment to the extent that the trial court had
awarded benefits under the Act based upon a 25% physical
impairment to that shoulder (i.e., not a scheduled
member under the Act), and we remanded the cause with
instructions to the trial court "to determine the
extent, if any, to which the employee's left-shoulder
injury ha[d] affected her ability to earn income and to award
the employee benefits in accordance with that
determination." Billingsley I, 189 So.3d at
the limited nature of this court's remand instructions,
the trial court, after nearly three years had elapsed since
our decision in Billingsley I, entered a judgment in
May 2018 purporting to find the employee 100% disabled as a
result of injuries to "'her left shoulder, neck,
[and] lower back' and ... 'psychological problems
caused by the August 11, 2008, ' collision."
Billingsley II, __So. 3d__ at . After the employer
appealed from that judgment, this court reversed, directing
the trial court, "based upon the existing record in the
case, ... to make findings of fact and state conclusions of
law, in conformity with Ala. Code 1975, § 25-5-88, and
our mandate in the first appeal, regarding the employee's
loss of ability to earn, if any, that has resulted solely
from her left-shoulder injury." Id. at __.
remand from this court, the trial court held a status
conference at which counsel for the parties appeared. It
appears from the record that, at that conference, counsel for
the employee acknowledged in open court that the employee had
died in January 2019 from causes unrelated to her
work-related accident in 2008, and counsel for the employee
subsequently filed a "suggestion of death" on
February 27, 2019, confirming the fact of the employee's
death in January 2019. The employer moved to dismiss the
employee's claim on the basis that her right to receive
benefits under the Act had terminated upon her death, and the
trial court, treating the motion as having alternatively
sought a summary judgment, granted that motion and entered a
judgment in favor of the employer on March 18, 2019. Counsel
for the employee then filed a postjudgment motion requesting
that the trial court specify whether the March 18, 2019,
judgment was a judgment of dismissal or a summary judgment,
after which the trial court entered an order denying the
postjudgment motion but specifying that the action had been
dismissed with prejudice because, in that court's view,
"a workers' compensation claim cannot survive the
death of an employee unless it is a claim for death benefits
related to the employment, " citing Ex parte
Thompson Tractor Co., 227 So.3d 1234 (Ala.Civ.App.
2017). Counsel for the employee filed, on April 30, 2019, a
notice of appeal from the judgment in the employer's
favor naming the employee as the sole appellant.
appellate brief, counsel for the employee asserts that the
trial court's judgment is contrary to the terms of the
Act and amounts to an unconstitutional abridgement of the
right of access to the courts under Section 13 of the Alabama
Constitution of 1901. Counsel for the employer contends that
the trial court's judgment is consistent with Ex
parte Thompson Tractor and that any claim that a
surviving spouse or dependents of the employee might bring is
separate and distinct from the claim brought by the employee.
We do not reach the merits of those arguments, however,
because we lack appellate jurisdiction.
McRae v. Johnson, 845 So.2d 784 (Ala. 2002), an
attorney who had appeared in a civil action on behalf of a
party who had died in November 2000 filed, ostensibly on
behalf of that deceased party, a notice of appeal in January
2002 from an order vacating a judgment previously entered in
that action. That appeal was dismissed ex mero motu
by our supreme court as a nullity on the basis that "the
appellant was deceased when the notice of appeal was
filed" and thus that the notice had "fail[ed] to
invoke the appellate jurisdiction of [that court]."
McRae, 845 So.2d at 785. Our supreme court reasoned
in that case that, generally speaking, "'"an
attorney's authority to act on behalf of a client ceases
on the death of that client, "'" id.
(quoting Estate of Jones v. State Farm Mut. Auto. Ins.
Co., 829 So.2d 170, 171 (Ala.Civ.App. 2002), quoting in
turn Brown v. Wheeler, 437 So.2d 521, 523 (Ala.
1983) (overruled on other grounds by Hayes v. Brookwood
Hosp., 572 So.2d 1251 (Ala. 1990))), and opined that the
filing of a notice of appeal by a deceased person was
"'not just "a mere irregularity, but a complete
and radical defect."'" McRae, 845
So.2d at 785 (quoting Brantley v. Fallston Gen. Hosp.,
Inc., 333 Md. 507, 511, 636 A.2d 444, 446 (1994),
quoting in turn Owings v. Owings, 3 G. & J. 1, 4
as was true in McRae, counsel for the employee may
not properly question the correctness of the trial
court's judgment of dismissal that was entered after the
death of the employee, which death terminated counsel's
authority to act on behalf of the employee. See Estate of
Bell v. Bell, 598 So.2d 917, 918 (Ala.Civ.App. 1991).
Thus, the notice of appeal filed by counsel for the employee
on April 30, 2019, is a nullity and will not support
appellate review of the trial court's judgment of
dismissal. McRae, 845 So.2d at 785.
appeal is dismissed.