(251) 299-0101

ADDITIONAL EVIDENCE ON REMAND - EX PARTE G.A. WEST & COMPANY

In Ex parte G.A. West & Company, [Ms. 2100507, Jun. 24, 2011] __ So. 3d __ (Ala. Civ. App. 2011), the Alabama Court of Civil Appeals addressed whether the trial court could receive additional evidence after remand regarding proof of the plaintiff's average weekly earnings when the appellate court had previously rejected the trial court's calculation and remanded the case so that the correct calculation could be made. The Court concluded "that it is necessary for the trial court to receive additional evidence to properly determine [the plaintiff's] weekly earnings." The Court explained that the trial court had originally made a its calculation of the plaintiff's average weekly earnings by using "a combination of the wages paid to [the plaintiff] for the two days which he worked and the testimony. . .documenting the wages he would have earned but for the injury." The court rejected that approach in a previous appellate opinion, but recognized that the only "remaining evidence that may be used to determine [the plaintiff's] average weekly earnings consists of a document indicating the earnings of an unnamed iron worker," which "may not accurately reflect the work that [the plaintiff] performed and would have performed." Because prior precedent only provided the trial court authority to reopen a case for additional evidence after remand when it is "expressly directed to do so" by an appellate court, and because the Court of Civil Appeals did not do so in its original opinion, the Court "acknowledge[d] the usefulness of permitting the submission of additional evidence on remand in this case." Therefore, the Court expressly authorized the trial court to receive additional evidence on remand.

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