author:
THOMPSON, Judge.
     MURDOCK, Judge, YATES, Presiding Judge,

text:
    Ruth LANTHRIP v. WAL-MART STORES, INC.
    2000276.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1020118.

      Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellant.
    Thomas L. Oliver II and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

Ruth Lanthrip sued her employer, Wal-Mart Stores, Inc., seeking to recover workers’ compensation benefits for an on-the-job injury to her left foot. After conducting an ore tenus hearing, the trial court, on July 31, 2000, entered a judgment in which it, among other things, found that Lan-thrip had suffered no loss of earning capacity and determined that Lanthrip had suffered a 2% permanent partial disability to the body as a whole. Lanthrip filed a postjudgment motion; the trial court denied that motion. Lanthrip appealed.

The Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975, provides that this court may not reverse a trial court’s findings of fact if those findings are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. “[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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts “in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996).

The trial court’s judgment sets forth the relevant facts of this case as follows:

“[Lanthrip] is a 42-year-old female who was injured on the job while working for Wal-Mart on September 19, 1997. She was treated initially by the Coosa Valley Baptist Emergency Room and then released. Although [Lanthrip] complains that her pain worsened throughout the year following the accident, she managed to work 35 hours a week as a bus driver for Talladega County and 20 hours a week as a security guard for Security Engineers, all in addition to working full-time at Wal-Mart. At every job, she was able to perform all of the duties she had prior to the injury except she was unable to patrol the lake on foot, but [Security Engineers] allowed her to patrol in her vehicle.
“Dr. Alan Sather diagnosed the Plaintiff with Morton’s neuroma on August 19, 1998, and took her off work at Wal-Mart until October 17, 1998. [Lanthrip] ultimately did not return to work at Wal-Mart even though she was released to return to light duty on October 17[, 1998]. She continued to work 55 hours a week for her other two employers during this time, however. [Lanthrip] then chose Dr. Victoria Masear from a panel of four physicians; Dr. Masear performed surgery on her foot on November 20, 1998. Dr. Masear subsequently excused [Lanthrip] from all of her jobs until December 7, 1998, when she was allowed to return to work with a 100% sitting restriction. She immediately began working her other two jobs, but chose not to return to work at Wal-Mart until January 6, 1999. She began working for Wal-Mart as a switchboard operator and is currently employed full-time as a door greeter, both of which fall within her [work] restrictions.
“On May 13, 1999, Dr. Masear placed [Lanthrip] at maximum medical improvement and assigned a physical/medical impairment rating of 8% to the left foot, 6% to the left lower extremity, and 2% to the body as a whole. [Lanthrip] currently wears orthotics in her athletic shoes along with support stockings. She is able to drive her personal automobile without problems, but is unable to perform certain physical activities such as hiking and dirt biking. [Lan-thrip] manages her pain with over-the-counter pain medications.
“[Lanthrip] testified that she is able to perform her current job at Wal-Mart because it is within her restrictions. Although she appears to be a very hard worker, she was able to return to work there earning more money than she received prior to her injury, thus establishing the presumption that she suffered no loss of earning capacity. [Lanthrip] failed to present substantial evidence to rebut this presumption. This court finds that she has suffered no loss of earning capacity and awards permanent partial disability benefits based on her medical impairment rating alone.”

At the hearing on this matter, Lanthrip testified that she had recently stopped working for Security Engineers; she asserted that, because of her injury, she was unable to perform the requirements of that job. Lanthrip also testified that after her injury, she worked fewer hours at Wal-Mart than she had before her injury. However, Lanthrip testified that, because her hourly wage at Wal-Mart was higher after her injury than it was before the injury, her post-injury earnings at Wal-Mart were as much or more than her pre-injury earnings at Wal-Mart. In its judgment, the trial court determined that Lan-thrip had suffered a permanent partial disability, but it also determined that because Lanthrip had returned to work at Wal-Mart at a wage higher than her preinjury wage at Wal-Mart, it could not, pursuant to § 25 — 5—57(a)(3), Ala.Code 1975, consider evidence of vocational disability.

When an injured worker returns to work at a higher wage than he or she earned before his or her injury, the determination of any permanent partial disability benefits to which the worker is entitled is governed by § 25-5-57(a)(3)i., Ala.Code 1975. That section provides, in part:

“If, on or after the date of maximum medical improvement, ... 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.”

In interpreting § 25-5-57(a)(3)i., this court has stated:

“Under the Workers’ Compensation Act, compensation due an employee for an injury to a nonscheduled member is governed by § 25-5-57(a)(3)g., Ala.Code 1975. According to that section, a permanent, partial disability is compensable according to the claimant’s loss of earning capacity.
“ ‘For a permanent partial injury, the measure of workmen’s compensation is loss of earning capacity. If an employee’s post-injury wages are the same or higher than his pre-injury wages, a presumption arises that no loss of earning capacity has occurred. The presumption may be rebutted by evidence which demonstrates incapacity or which explains why the higher wages are an unreliable basis for determining the employee’s earning capacity.’
“Johnson v. Alabama Power Co., 670 So.2d 39, 41-42 (Ala.Civ.App.1993) (citations omitted); see, e.g., Bolding v. Fluorocarbon Co., Reeves Rubber Div., 660 So.2d 1308, 1310 (Ala.Civ.App.1995) (holding that claimant’s loss of earning ability is the determining factor); and Smither v. International Paper Co., 540 So.2d 760, 762 (Ala.Civ.App.1989) (stating that the amount of compensation due an employee is governed by § 25-5-57(a)(3)g. and that loss of earning ability is the determining factor).”

Discovery Zone v. Waters, 753 So.2d 515, 517 (Ala.Civ.App.1999).

Thus, if the injured worker receives higher earnings after returning to work than the worker received before the injury, there is a presumption that the worker’s earning capacity is greater than his or her earning capacity before the injury. Marley Erectors, Inc. v. Rice, 585 So.2d 1379 (Ala.Civ.App.1991). That presumption may be rebutted by evidence of the worker’s inability to work or by evidence indicating that the worker’s postin-jury earnings are not a reliable indicator of the worker’s true earning capacity. In this case, the trial court specifically found that Lanthrip had failed to present evidence indicating that her postinjury earnings were an unreliable indicator of her earning capacity.

On appeal, Lanthrip argues that § 25-5-57(a)(3)i., Ala.Code 1975, required the trial court, in determining whether she had suffered a loss of earning capacity, to consider her wages from all sources of employment she maintained before and after her on-the-job injury. In her brief on appeal, Lanthrip contends that because she left her job with Security Engineers, her total postinjury earnings are now lower than her total preinjury earnings. However, as the trial court noted in its judgment, nothing in § 25-5-57(a)(3)i., Ala.Code 1975, requires that a trial court consider the earnings from employments other than the one in which the worker was injured in determining whether the worker suffered a loss of earning capacity.

Further, Lanthrip acknowledges that under another subsection of § 25-5-57, Ala.Code 1975, which governs the determination of her “average weekly earnings” for the purpose of calculating the amount of workers’ compensation benefits due, the trial court could consider only the wages Lanthrip earned from Wal-Mart. § 25-5-57(b), Ala.Code 1975. That section provides that “[a]verage weekly earnings shall be based on the wages, as defined in Section 25-5-l(6)[, Ala.Code 1975,] of the injured employee in the employment in which he or she was working at the time of the injury .... ” (Emphasis added.) Our supreme court rejected an argument that § 25-5-57(b) required that an injured worker’s wages from a second job be in-eluded in determining her average weekly wage for the purpose of calculating the workers’ compensation benefits for which her primary employer was liable. Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999). The court concluded: “The plain meaning of the various pertinent provisions of the Workers’ Compensation Act is that the injured employee’s ‘average weekly wage’ is calculated by using the wages earned from the employer that directed the injured employee at the time of the injury.” Ex parte Fryfogle, 742 So.2d at 1261.

It would be inconsistent to conclude that wages from other employers may not be considered in calculating a worker’s average weekly earnings under § 25-5-57(b), Ala. Code 1975, but that those same wages from other employers may be used in determining whether the worker has suffered a loss of earning capacity under § 25-5-57(a)(3)i., Ala.Code 1975.

Subsections of a statute are to be construed in para materia in order to determine their meanings and intents. McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378 (Ala.1986).

In American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996), overruled on other grounds, Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), this court affirmed the trial court’s judgment, which was based on its consideration of evidence pertaining to the injured worker’s vocational disability. In that case, the injured worker returned to work at a higher hourly wage. The injured worker also operated a lawn-care business from which he earned more money than he could earn by working overtime for the employer. However, the injured worker presented evidence indicating that he was not physically capable of performing the work required for overtime with the employer, and that, because he could not work overtime, his average weekly earnings had declined. In affirming the trial court’s decision to consider vocational evidence, this court disregarded the income the injured worker received from his lawn-care business and determined that his postinjury earnings were lower than his preinjury earnings. American Cast Iron Pipe Co. v. Uptain, supra.

In Discovery Zone v. Waters, supra, during the course of his treatment for a back injury, the injured worker, Waters, lost his job with the employer. Waters then obtained employment at a higher salary with a different employer. This court concluded that because Waters’s postinju-ry earnings were higher than his preinjury earnings, he had suffered no loss of earning capacity. Discovery Zone v. Waters, supra. Lanthrip argues that this court should construe Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999), as holding that earnings from all sources of employment should be included in determining whether a worker has suffered a loss of earning capacity. However, the facts of Discovery Zone v. Waters are distinguishable from the facts of this case. Also, nothing in the language of Discovery Zone v. Waters indicates that this court intended to provide such a broad construction of § 25-5-57(a)(3)i., Ala.Code 1975.

Nothing in the Workers’ Compensation Act or our caselaw provides or indicates that earnings from multiple employers should be considered in determining whether an injured worker has suffered a loss of earning capacity under § 25-5-57(a)(3)i., Ala.Code 1975. That subsection must be construed together with other provisions of the Workers’ Compensation Act, one of which provides that only the earnings derived from the employment in which the worker was injured are to be considered in determining a workers’ average weekly earnings. See § 25-5-57(b), Ala.Code 1975; Ex parte Fryfogle, supra. We conclude that the trial court correctly considered only Lanthrip’s earnings from Wal-Mart, the employer for whom she was working at the time of her on-the-job injury, in determining that Lanthrip had not suffered a loss of earning capacity. Therefore, we affirm.

AFFIRMED.

CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring in the result.

This case presents a question of statutory construction as to which our Legislature has provided little guidance: whether an injured employee’s return to work in the same employment in which she was injured, when her postinjury wages from that employment are equal to or greater than the preinjury wages she earned from that employment, triggers the provisions of § 25 — 5—57(a)(3)i., Ala.Code 1975, even if the employee’s total postinjury wages are less than her total preinjury wages because she is unable to return to work for all of the employers for which she worked at the time of her injury. One can envision various policy concerns that would lend support to both the employer’s position and the employee’s position on this question. However, because this court is not a policy-making body, we are left in this case to reach a conclusion based on what little evidence of legislative intent can, with the aid of one decision by our Supreme Court on a related issue, be discerned from the statutory language and scheme of the Workers’ Compensation Act.

Upon my initial review of this case, it appeared to me that a holding in favor of the employer in regard to the question presented would be at odds with this court’s opinion in Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999) (holding in favor of an employer based on § 25-5-57(a)(3)i., where an employee’s postinjury earnings in a job other than the job in which the employee was injured were higher than his preinjury earnings). Yet, in order to hold for the employee, it appeared that this court would have to reject the analysis implicit in American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996) (declining to extend the benefit of § 25-5-57(a)(3)i. to an employer, apparently concluding that the employee’s ability to “return” to an employment other than that in which he was injured was not relevant for purposes of § 25-5-57(a)(3)i.). Upon further review of the question presented, I conclude that the employer should prevail in the present case.

Section 25-5-57(a)(3)g., Ala.Code 1975, provides that, except as otherwise “enumerated” in § 25-5-57(a)(3), compensation is to be a percentage of the difference between “the average weekly earnings of the worker at the time of the injury” and “the average weekly earnings he or she is able to earn” after the injury. Obviously, in order for such a formula to make sense, it must contemplate a comparison of like things. Clearly, therefore, when an employee holds more than one job at the time of a work-related injury, the formula was not intended to require a comparison of the employee’s postinjury earning capacity from all of the jobs in which the employee continues to work, on the one hand, with his or her preinjury earnings from only the one job in which the injury occurred, on the other hand. Nor can a meaningful computation be made based upon a comparison of an employee’s postinjury earning capacity from only the one job in which the employee was injured, with the employee’s total preinjury earnings from all of the jobs he or she held before the injury occurred. Logically, we must compute either the difference in the employee’s pre-injury earnings from the one job in which the employee was injured and his or her postinjury earning capacity in that same job, or we must compute the difference in the total preinjury earnings from all of the jobs held by the employee prior to the injury with the employee’s total postinjury earning capacity from all of those same jobs.

Neither of the above approaches is necessarily dictated by the Legislature’s references in § 25-5-57(a)(3)g. to “average weekly earnings.” Likewise, the provision in the first sentence of § 25-5-57(b), Ala. Code 1975, for compensation to be computed “on the basis of average weekly earnings” could be consistent with either approach. We are provided guidance, however, by our Supreme Court’s interpretation of the next sentence in § 25-5-57(b), which states that “[ajverage weekly earnings shall be based on the wages ... of the injured employee in the employment in ivhich he or she was working at the time of the injury.” (Emphasis added.) As the majority opinion correctly notes, uncertainty over the meaning of the emphasized clause was resolved by our Supreme Court in Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999), when it held that this clause referred only to the particular employment in which the injury occurred, not all of the “employments” in which the employee was working at the time of the injury. Accordingly, I conclude that, in a case in which an employee returns to work in the particular job in which he or she was injured and earns wages in that job equal to or greater than those he or she earned in that job prior to the injury, it would be inconsistent with the method of calculating compensation benefits described in § 25-5-57(a)(3)g., as dictated by § 25-5-57(b) and the Supreme Court’s interpretation of that provision in Fryfogle, not to apply § 25-5-57(a)(3)i.’s return-to-work provision when the employee’s total post-injury wages are less than his or her total preinjury wages because the employee is unable to return to work at all of the jobs he or she held at the time of injury.

With respect to this court’s decision in Discovery Zone v. Waters, it appears from a closer examination of that case that, in fact, after his injury, the employee in that case did return for a period of time to the same employment in which he was injured. See 753 So.2d at 516-17. I therefore believe that the result in Discovery Zone can be reconciled with the result reached in the present case.

Citing Discovery Zone and Perneo Aeroplex, Inc. v. Moore, 775 So.2d 215 (Ala.Civ.App.1999), the employee in the present case also argues that her postinjury wages from the one job in which she was injured are not a reliable indicator of her postinju-ry earning capacity. Her brief to this court offers little discussion on this issue. Moreover, notwithstanding this court’s analysis in Discovery Zone and Perneo, I question whether such an argument, even if supported by the facts in a given case, can be made after the adoption of § 25-5-57(a)(3)i.

Prior to 1992, the Workmen’s Compensation Act merely provided that, in all cases not otherwise enumerated in § 25-5-57(a), an employee’s permanent partial disability was a function of the difference in the employee’s actual earnings before the injury and his or her capacity to earn after recovering from the injury. This court adopted a presumption that postin-jury earning capacity corresponded to actual postinjury earnings — whether equal to, greater than, or less than pre-injury earnings — but allowed this presumption to be rebutted by evidence indicating that the employee’s postinjury earnings were not a reliable indicator of his or her post-injury earning capacity. See Brown v. Champion Int’l Corp., 693 So.2d 24 (Ala.Civ.App.1996); Jim Walter Resources, Inc. v. Hall, 516 So.2d 690 (Ala.Civ.App.1987) (citing 2 A. Larson, The Law of Workmen’s Compensation § 57.21(d) (1987)). This approach helped prevent employers from simply paying full wages to an employee until the statute of limitations expired on the employee’s claim for permanent disability benefits. The Legislature, however, evidently perceived this judicial approach as providing significant compensation in many cases to undeserving employees, i.e., those who had lost little or no wages due to a work-related injury.

The legislative solution adopted in 1992 was a compromise that limited the amount of benefits available to employees who return to work making wages equal to or higher than those they made before their injury. With the adoption of § 25-5-57(a)(3)i., such employees are entitled to benefits based only on their degree of physical impairment; evidence of vocational impairment may not be introduced. To protect the employee, however, the statute allows a right of action beyond the general statute of limitations if the employee is subsequently terminated under certain circumstances. In reading § 25-5-57(a)(3)i., I see a straightforward rule that is not couched in terms of a presumption such as that which was employed by the courts prior to that statute’s adoption; nor do I see any language allowing an employee to rebut any such presumption.

While it is true that the Workers’ Compensation Act is to be construed so as to effect its beneficent purposes, we may not give the Act a construction not fairly and reasonably supported by its language. Ex parte Beaver Valley Corp., 477 So.2d 408 (Ala.1985).

Based on the foregoing, I concur in the result reached by the majority opinion.

YATES, Presiding Judge,

dissenting.

Because I believe that Lanthrip suffered a loss of earning capacity, I must respectfully dissent from the main opinion.

At the time of her injury, Lanthrip was working three jobs: she worked as a deli stocker at Wal-Mart, as a school bus driver, and as a security guard at Raytheon for Security Engineers. Following surgery on her left foot, Lanthrip returned to work at all three jobs. However, she was forced to leave her security-guard position because the injury to her foot prevented her from fulfilling the requirements of that job.

Lanthrip’s post-injury work at Wal-Mart was in a different position than her pre-injury job — one that required the performance of duties that were within her permanent restrictions. At the time of her injury, and when she initially returned to work at Wal-Mart, Lanthrip earned $6.00 per hour. At the time of trial, Lanr thrip was working as a greeter at Wal-Mart earning $8.30 per hour. Although Lanthrip was unable because of her injury to work as many hours each week at Wal-Mart as she did before her injury, because she received a higher hourly wage, her earnings from Wal-Mart after she reached maximum medical improvement were greater than her earnings from Wal-Mart before her injury.

After her injury, Lanthrip also returned to work as a school bus driver at her pre-injury hours and hourly wage. The evidence tended to indicate, however, that because Lanthrip ultimately was unable to continue her employment as a security guard, her total earnings from all her jobs at the time of trial were less than her total earnings from all her jobs before her injury.

Lanthrip argues that, although only her wages at Wal-Mart could properly be considered in determining the “average weekly wage” upon which Wal-Mart must base its workers’ compensation payments to her (see § 25-5-57(b), Ala.Code 1975), all of her employment should be considered in determining whether she suffered a loss of earning capacity. The trial court rejected this argument. Because Lanthrip’s post-injury earnings at Wal-Mart, alone, were equal to or greater than her earnings at Wal-Mart before her injury, the trial court concluded that Lanthrip met the “return-to-work” provisions of § 25-5-57(a)(3)i., and was presumed to have no loss of earning capacity.

When an injury to an employee covered under the Workers’ Compensation Act results in permanent-partial disability, § 25-5-57(a)(3)a., Ala.Code 1975, provides, in part, that the employee’s compensation under the Act shall be based upon “the extent of the disability.” When the injury is not to a scheduled member under § 25-5-57(a)(3)a., compensation is further governed by § 25-5-57(a)(3)g., which provides, in pertinent part, that

“compensation shall be 66 2/3 percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition, subject to the same maximum weekly compensation as stated in Section 25-5-68.”

As this court held in Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999):

“According to [§ 25-5-57(a)(3)g., Ala. Code 1975], a permanent, partial disability is compensable according to the claimant’s loss of earning capacity.
“ ‘For a permanent partial injury, the measure of workmen’s compensation is loss of earning capacity. If an employee’s post-injury wages are the same or higher than his pre-injury wages, a presumption arises that no loss of earning capacity has occurred. The presumption may be rebutted by evidence which demonstrates incapacity or which explains why the higher wages are an unreliable basis for determining the employee’s earning capacity.’
“Johnson v. Alabama Power Co., 670 So.2d 39, 41-42 (Ala.Civ.App.1993) (citations omitted); see, e.g., Bolding v. Fluorocarbon Co., Reeves Rubber Div., 660 So.2d 1308, 1310 (Ala.Civ.App.1995) (holding that claimant’s loss of earning ability is the determining factor); and Smither v. International Paper Co., 540 So.2d 760, 762 (Ala.Civ.App.1989) (stating that the amount of compensation due an employee is governed by § 25-5-57(a)(3)g. and that loss of earning ability is the determining factor).
“Section 25-5-57(a)(3)i., Ala.Code 1975, governs the award of permanent partial-disability benefits when a claimant returns to work at a wage higher than the wage he was earning at the time of his injury. That section provides in pertinent part that if
“ ‘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.’
“ § 25 — 5—57(a)(3)i.”

753 So.2d at 517.

The strictures of § 25-5-57(a)(3)i. apply when an injured worker returns to work at a wage equal to or greater than his or her pre-injury wage. No reference is made in § 25-5-57(a)(3)i. to a return to work in the same employment in which the worker was injured. Thus, in Discovery Zone, this court applied the above presumption of no loss of earning capacity when the employee returned to work for a different employer than that for which he was working at the time of his injury, because he earned higher wages than he had earned before his injury. 753 So.2d 515.

In fairness and logic, if returning to work in a different employment (indeed, with a different employer) than that in which the employee was injured is to be considered for purposes of determining whether the return-to-work requirement of § 25-5-57(a)(3)i. is satisfied, it stands to reason that the inability to return to work in a different employment than that in which the employee was injured (but at which the employee actually was employed at the time of the injury) must be considered for the same purpose. In this case, because she was unable to return to one of the three employers with whom she was working at the time of her injury, Lan-thrip’s total earnings after her injury were less than her total earnings before the injury. Therefore, § 25-5-57(a)(3)i. and the presumption that an employee has suffered no loss of earning capacity when her post-injury wages are the same or higher than her pre-injury wages, are not applicable.

The employer notes that the calculation of average weekly wages under the Workers’ Compensation Act is based upon wages earned in the employment in which the employee was injured, and that this court ought to apply this same standard to the term “wage” in § 25-5-57(a)(3)i. The statutes governing these two determinations are different, however. The calculation of the average weekly wage is governed by § 25-5-57(b), which specifically provides for a calculation based on the “wages ... of the injured employee in the employment in which he or she was working at the time of the injury.” See Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999). In contrast, the restrictions of § 25-5-57(a)(3)i. apply merely when an injured worker returns to work under the specified conditions. The latter statute does not, by its terms, limit itself to a return by an employee to “the employment in which [the injured employee] was working at the time of the injury.”

The employer also argues that, because a second job taken by the employee in American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996), was not considered by this court for purposes of calculating the employee’s wages under § 25-5-57(a)(3)i., the employee’s inability in the present case to perform a “second job” should not be considered for that purpose. There is a tension between the holding in Uptain and the more recent holding of this court in Discovery Zone. I note that the Uptain court did not expressly analyze the proper manner in which § 25 — 5—57(a)(3)i. should be construed. I believe that the analysis set forth above is the better-reasoned approach to the issue presented; therefore, I must respectfully dissent.

      . This case was originally assigned to another judge on this court. This case was reassigned to Judge Thompson on July 29, 2002.

      . Furthermore, the employee's job with Discovery Zone (the employment in which he was injured) was simply eliminated by the employer some time after the employee returned to that job, and the job that the employee then took with the City of Homewood merely took the place of the Discovery Zone job. 753 So.2d at 516. It appears from this court's discussion that the City of Homewood job was equally or more demanding on the employee than the job in which the employee was injured; there was no indication in Discovery Zone, as there was in American Cast Iron Pipe Co. v. Uptain, that the employee failed to earn equal or higher post-injury wages from the same employment in which he was injured because he was unable to do so. Compare Discovery Zone, 753 So.2d at 517-18, with Uptain, 680 So.2d at 379-80. See also 1 Terry A. Moore, Alabama Workers’ Compensation § 13:52 (1998).

      . When she initially returned to work at Wal-Mart following her injury, Lanthrip's limitation was that she was required to sit 100 percent of the time; eventually, this was changed to require her to sit 80 percent of the time.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    S.D.C. v. N.L.
    2010746.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Rehearing Denied May 16, 2003.
    Charles G. Spradling, Jr., Alabama Legal Services, P.C., Anniston, for appellant.
    Peggy P. Miller of Caldwell & Miller, Anniston, for appellee.
   MURDOCK, Judge.

On March 21, 2001, N.L. filed a complaint in the Calhoun Circuit Court, Juvenile Division, seeking an order declaring him to be the “legal and biological father” of C.B.C. (“the minor child”). N.L. requested, among other things, that the court enter an order directing that DNA testing be performed on him, the minor child, and the minor child’s mother (S.D.C.); that he be awarded the temporary care, custody, and control of the minor child pending a final hearing; that he be awarded the care, custody, and control of the minor child upon a final hearing, subject to visitation by the mother; and that the mother be ordered to pay child support in accordance with the Child Support Guidelines of Rule 32, Ala. R. Jud. Admin.

On May 16, 2001, the mother filed an answer to N.L.’s complaint and counterclaimed for custody of the minor child, child support, and attorney fees in the event N.L. was determined to be the biological father of the minor child.

Following an ore tenus proceeding on November 6, 2001, the trial court entered a judgment on November 20, 2001, that, among other things, declared N.L. to be the father of the minor child; awarded the parties joint custody, with N.L. having the “primary placement” of the minor child subject to secondary placement with the mother; and ordered the mother to pay child support in accordance with Rule 32.

On December 4, 2001, N.L. filed a motion asking, among other things, that the court alter, amend, or vacate the portion of its judgment relating to the mother’s visitation. On December 14, 2001, the mother filed a motion to alter, amend, or vacate the trial court’s November 20, 2001, judgment or, in the alternative, for the trial court to make a finding of fact upon which that judgment was based. Thereafter, on December 18, 2001, the mother filed a response to N.L.’s motion to immediately suspend her visitation and to N.L.’s motion to alter, amend, or vacate. The mother also moved the court to set aside the December 4, 2001, order suspending her visitation. On March 13, 2002, the trial court entered an order purporting to deny the parties’ postjudgment motions; the mother filed a notice of appeal on April 24, 2002.

Although neither party has questioned this court’s jurisdiction, we first consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

Section 26-17-20, Ala.Code 1975, governs appeals from final judgments in paternity actions. That Code section provides, in pertinent part:

“(a) ... Appeals shall be taken from the juvenile or the family court division of either the district or circuit court to the circuit court for a trial de novo.... Written notice of appeal shall be filed with the clerk of the circuit court within 14 days of the date of the order appealed from or the denial of a post trial motion.
“(b) Appeals may be taken from the juvenile or family court division of the district or circuit court directly to the Court of Civil Appeals if there is an adequate record or stipulation of the facts by the parties.... Written notice of appeals in appeals brought pursuant to this subsection shall be filed within 14 days of the entry of the judgment or order appealed from.”

Thus, in an action to determine paternity, a notice of appeal, whether to an appellate court or to a circuit court for a trial de novo, must be filed within 14 days of the entry of the judgment or order at issue.

Rule 1(B), Ala. R. Juv. P., provides that “[a]ll post-judgment motions ... must be filed within 14 days after entry of judgment and shall not remain pending for more than 14 days.” The trial court entered its final judgment on November 20, 2001. N.L. filed a timely postjudgment motion on December 4, 2001. The mother filed her postjudgment motion on December 14, 2001, beyond the 14 days allowed by Rule 1(B). The trial court entered an order on March 13, 2002, in which, among other things, it purported to act upon the parties’ postjudgment motions. However, any action upon the parties’ postjudgment motions by the trial court on March 13, 2002, was a nullity because the trial court had no jurisdiction to act on the mother’s untimely postjudgment motion, see Pitts v. Means, 571 So.2d 1138, 1139 (Ala.Civ.App.1990), and N.L.’s postjudgment motion had already been denied by operation of law on December 18, 2001, see Potter v. State Dep’t of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986). The mother had 14 days from December 18, 2001, to file her notice of appeal.

The mother’s notice of appeal filed on April 24, 2002, was filed well beyond the 14 days from the date of the entry of the judgment or order appealed from as required by Ala.Code 1975, § 26-17-20(b). Rule 2(a)(1), Ala. RApp. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” This court is without jurisdiction; therefore, this appeal is due to be dismissed. Asam v. City of Tuscaloosa, 585 So.2d 60 (Ala.Civ.App.1991).

The appellee’s request for the award of an attorney fee on appeal is denied.

APPEAL DISMISSED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

      . The motion also requested an immediate suspension of the mother’s visitation with the minor child. The trial court granted this request, in effect staying the visitation portion of its judgment pending further court action.

      . In its March 13 order the trial court also stated that it was lifting its suspension of the mother's visitation rights.


author: PER CURIAM.

text:
    Peggy FOLEY v. Jerry FOLEY.
    2010311.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.

      Roianne Houlton Conner, Montgomery, for appellant.
    John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   PER CURIAM.

In 1999, after 28 years of marriage, Jerry Foley (“the husband”) sued Peggy Foley (“the wife”) for a divorce, alleging incompatibility, and requesting an equitable division of the marital property. The husband and the wife married in 1971 and have no minor children. The wife answered the complaint; she also counterclaimed for a divorce, alleging incompatibility. She requested an equitable division of marital property and periodic alimony.

Following the presentation of ore tenus evidence, the trial court divorced the parties, divided the marital property and debts, and awarded the wife $1,200 monthly periodic alimony. Each party filed a postjudgment motion; the trial court granted part of the husband’s motion and amended the periodic alimony award to the wife to $960 per month, and it denied the wife’s motion.

The wife appeals. She argues that the trial court’s award of periodic alimony was insufficient and its division of marital property and debts inequitable. The division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996), citing Montgomery v. Montgomery, 519 So.2d 525, 526 (Ala.Civ.App.1987).

The purposes of periodic alimony are to support a former dependent spouse and to maintain the status the party receiving the alimony enjoyed during the marriage. O’Neal, supra. When dividing marital .property, the trial court should consider several factors, including the earning abilities of the parties, their future prospects, them ages and health, their conduct, the duration of the marriage, and the source, value, and type of the property. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

The record indicates that the husband, who is 50 years old, is in good health and earns about $50,000 per year at BellSouth, where he has worked since 1973 — two years after the parties’ marriage. At the time he filed for a divorce, the husband had a vested interest in the following retirement accounts in the following amounts: BellSouth Defined Benefit Pension Plan — $144,679.20; BellSouth Savings and Security Plan (401k) — $86,255.58; BellSouth Employee Stock Ownership Plan (PAYSOP) — $16,247.21; and Bell-South Stock Purchase/Investment Plan (ESIP) — $1,802.22. He is also eligible for Social Security benefits upon his attaining age 65.

The wife never graduated from high school, and she had not been regularly employed for 25 years. The wife testified that she has no job skills or training and that she does not qualify for Social Security retirement benefits. The wife testified that the husband has had several extramarital affairs during the course of the marriage and that he physically and verbally abused her throughout the marriage. He routinely called her “stupid,” “ignorant,” and “worthless.” She related several specific incidents of physical abuse, including one that occurred in 1996, when he beat her so severely that he perforated her eardrum and caused a concussion. She also testified that in June 1999, while they were visiting their hunting property, the husband threatened to beat “the h_out of [her].” When she reached for her pistol in self-defense, he grabbed it from her, and injured her thumb.

Dr. Harold Wayne Cox testified that he began treating the wife in 1992. He stated that he had treated her for injuries related to spousal abuse. He testified that the wife suffers from severe anxiety and depression. He also stated that because of her emotional problems and her permanent thumb injury she is unable to work. The wife testified that she needed at least $2,000 per month in alimony to support herself.

The trial court awarded the wife $960 in monthly periodic alimony, one-half of the husband’s BellSouth Savings and Security Plan, and none of the husband’s remaining retirement plans which are valued at over $150,000 and would provide the husband an income of $1,700 monthly beginning at age 65. The trial court also named her as beneficiary on a $50,000 life insurance policy to be maintained by the husband, and awarded her an automobile, various personal property and furnishings, and one-half of the proceeds from the sale of three parcels of real property, including the marital residence.

The wife’s primary contention with the divorce judgment is the trial court’s failure to award her any interest in the husband’s BellSouth Defined Benefit Pension Plan, the Stock Ownership Plan, or the Stock Purchase/Investment Plan. Of all the husband’s retirement accounts, which total approximately $250,000, the trial court awarded the wife just over $46,000-a portion of only one of the husband’s retirement accounts.

In Henderson v. Henderson, 800 So.2d 595, 599 (Ala.Civ.App.2000), this court held that it was “inequitable to deny the wife a portion of the husband’s retirement benefits after 34 years of marriage.” In that case the wife had not worked outside the home in 10 years and did not have a retirement plan of her own. The facts in this case are quite similar.

The wife also argues that the periodic alimony award is insufficient. The record further reflects that the trial court initially awarded the wife $1,200 per month in periodic alimony but reduced that award to $960 per month in response to a post-judgment motion filed by the husband.

After thoroughly reviewing the record in light of the factors enumerated in Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996), we conclude that the trial court abused its discretion in its property division and its award of periodic alimony. The parties were married for 28 years, during which time the husband accumulated a substantial pension for the common benefit of the parties. The wife has not worked outside the home, does not have a high school education, has no prospects of future employment, and has no pension plan of her own. Furthermore, to achieve the well-established purposes of awarding alimony as discussed in O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996), the trial court must fairly apportion the marital assets in conjunction with an equitable award of alimony. We reverse the judgment of the trial court as to the award of periodic alimony and the division of the retirement accounts and remand the cause for the entry of an equitable order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, J., dissents.


author: HOUSTON, Justice.

text:
    Ex parte Jerry FOLEY. (In re Peggy Foley v. Jerry Foley).
    1020114.
    Supreme Court of Alabama.
    April 11, 2003.

      John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for petitioner.
    Roianne Houlton Conner, Montgomery, for respondent.
   HOUSTON, Justice.

In 1999, after 28 years of marriage, Jerry Foley (“the husband”) and Peggy Foley (“the wife”) were divorced by the Montgomery Circuit Court, and a portion of the marital property was divided in accordance with an agreement entered into by the parties. Following the presentation of ore tenus evidence, the trial court divided the marital property that was not included in the agreement and the debts of the marriage and awarded the wife $960 in monthly periodic alimony.

The wife appealed, arguing that the trial court’s award of periodic alimony was insufficient and that its division of the marital property and debts was inequitable. Specifically, the wife complained of the trial court’s failure to award her any portion of several of the husband’s retirement accounts. The Court of Civil Appeals reversed the trial court’s judgment as to the award of periodic alimony and the division of the retirement accounts, finding that the trial court had exceeded its discretion in its division of the retirement accounts and its award of periodic alimony. Foley v. Foley, 864 So.2d 1091 (Ala.Civ.App.2002).

We find that the trial court’s award of periodic alimony and property division was not plainly or palpably wrong. Therefore, we reverse the judgment of the Court of Civil Appeals.

I. Facts

The record indicates that only the most basic facts were undisputed. The husband and wife married in 1971; they have no minor children. The husband, who is 50 years old and in good health, earns about $50,000 per year at BellSouth Telecommunications, Inc. The husband has worked at BellSouth since 1973 and he has a vested interest in several retirement accounts there: BellSouth Defined Benefit Pension Plan — $144,679.20; BellSouth Savings and Security Plan (401k) — $86,255.58; Bell-South Employee Stock Ownership Plan (PAYSOP) — $16,247.21; and BellSouth Stock Purchase/Investment Plan (ESIP)— $1,802.22. He is also eligible for Social Security benefits upon attaining age 65.

The wife never graduated from high school, and she was not regularly employed during the marriage. The evidence was disputed as to the wife’s health and future earnings potential. At the ore ten-us hearing, the wife testified that she has no job skills or training, that she has not worked since the divorce except for a few hours, and that she does not qualify for Social Security retirement benefits. Dr. Harold Wayne Cox, M.D., testified that the wife suffers from severe anxiety and depression. He also stated that because of her emotional problems and an injury to her thumb she is disabled and unable to work.

The husband presented evidence showing that the wife would be able to draw from his Social Security benefits when she reached the age of 65 or immediately if she is disabled. He also presented employment records showing that the wife had worked for several weeks during the year 2000, earning $2,349.36. Upon cross-examination, Dr. Cox admitted that he had not performed any type of psychological or psychiatric testing to aid him in his diagnosis that the wife suffered from anxiety and depression. Dr. Cox further admitted that he had not engaged in any type of vocational testing to determine the wife’s degree of disability or whether she was employable.

The evidence pertaining to the parties’ conduct during and after the marriage was also disputed. The wife testified that the husband had had an extramarital affair during the marriage and that he had abused her verbally and physically throughout the marriage. She testified that, in 1996, he beat her so severely that he perforated her eardrum and caused a concussion. The wife also testified that in June 1999, after she had allegedly reached for a pistol in self-defense, the husband grabbed the pistol from her, causing severe ligament damage to the wife’s thumb on her right hand.

The husband denied all allegations of adultery and abuse. He and another witness testified that the incident in which the wife injured her thumb occurred when the husband grabbed the gun from his wife, after she held it to his head during an unprovoked altercation between the husband and the wife on their hunting property. The husband also testified as to another incident where he believed the wife had tried to kill him by firing her rifle at him from long range. The wife denied this allegation.

The husband also alleged that the wife had been cohabitating with another man since the divorce. The husband presented the wife’s electric-utility bill, which had dropped from $104 in March to $15 in April as proof that she was not living in the marital home during the month of April. The wife denied that she was living with another man. She stated that she had spent only a few nights at the man’s house and that they were not intimate. The husband also testified that after their separation the wife had drawn over $1,500 on a joint line of credit and in cash advances on a credit card without his permission and had filed false insurance claims on property subsequently awarded to him in the divorce. The husband further testified that he believed that the wife had intentionally destroyed or concealed certain property that was awarded to him, including his high-school class ring, a gold watch, and an antique table.

The trial court awarded the wife $960 in monthly periodic alimony, and one-half of the husband’s BellSouth 401(k) plan. The trial court also ordered that the husband name her as beneficiary on a $50,000 life insurance policy to be maintained by the husband and awarded her an automobile, various personal property and furnishings, and one-half of the proceeds from the sale of three parcels of real property, including the marital residence.

II. Standard of Review

The standard of review an appellate court applies in reviewing a trial court’s award of alimony and division of property is well established:

“ 'A trial court’s determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Moreover, issues of alimony and property division must be considered together, and the trial court’s judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id.’
“Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996)....
“ ‘The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This Court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).’
“Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala.Civ.App.1997).”

Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000); see also Ala.Code 1975, § 30-2-51(a) (“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse.... ”).

III. Analysis

“ ‘ “[P]roperty divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App.1995)).

“When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage.”

Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996).

The Court of Civil Appeals has previously stated the purpose of a periodic-alimony award:

“The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.”

O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996). However, as stated above, such an award is within the trial court’s discretion.

The Court of Civil Appeals noted that the wife’s primary contention was that she was awarded only $46,000 of the husband’s combined retirement accounts — which totaled about $250,000. That court found that award to be inequitable and further found that the $960 periodic alimony award was insufficient. The Court of Civil Appeals held:

“After thoroughly reviewing the record in light of the factors enumerated in Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996), we conclude that the trial court abused its discretion in its property division and its award of periodic alimony. The parties were married for 28 years, during which time the husband accumulated a substantial pension for the common benefit of the parties. The wife has not worked outside the home, does not have a high school education, has no prospects of future employment, and has no pension plan of her own. Furthermore, to achieve the well-established purposes of awarding alimony as discussed in O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996), the trial court must fairly apportion the marital assets in conjunction with an equitable award of alimony. We reverse the judgment of the trial court as to the award of periodic alimony and the division of the retirement accounts and remand the cause for the entry of an equitable order consistent with this opinion.”

Foley, 864 So.2d at 1098-94.

In concluding that the trial court had exceeded its discretion, the Court of Civil Appeals apparently adopted the facts as presented by the wife and appeared to place great weight upon the wife’s allegations of the husband’s abuse and adultery:

“The wife testified that the husband has had several extramarital affairs during the course of the marriage and that he physically and verbally abused her throughout the marriage. ' He routinely called her ‘stupid,’ ‘ignorant,’ and ‘worthless.’ She related several specific incidents of physical abuse, including one that occurred in 1996, when he beat her so severely that he perforated her eardrum and caused a concussion. She also testified that in June 1999, while they were visiting their hunting property, the husband threatened to beat ‘the h— out of [her].’ When she reached for her pistol in self-defense, he grabbed it from her, and injured her thumb.
“Dr. Harold Wayne Cox testified that he began treating the wife in 1992. He stated that he had treated her for injuries related to spousal abuse. He testified that the wife suffers from severe anxiety and depression. He also stated that because of her emotional problems and her permanent .thumb injury she is unable to work. The wife testified that she needed at least $2,000 per month in alimony to support herself.”

Foley, 864 So.2d at 1093. The opinion of the Court of Civil Appeals does not mention that- the evidence of the husband’s abuse and adultery and the wife’s disability and need was hotly disputed before the trial court. Nor does the opinion mention any of the alleged misconduct of the wife.

The Court of Civil Appeals and this Court are “ ‘authorized to disturb the trial court’s decision only if it is unsupported by the evidence and, therefore, is unjust and palpably wrong.’ ” Durbin, 818 So.2d at 409 (quoting Grimsley v. Grimsley, 545 So.2d 75, 76 (Ala.Civ.App.1989)).

“ ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ ”

Ex parte H.H., 830 So.2d 21, 25 (Ala.2002) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). Furthermore, an appellate court may not substitute its judgment for that of the trial court. Durbin, 818 So.2d at 409. To do so would be to reweigh the evidence, which Alabama law does not allow. Ex parte H.H., 830 So.2d at 25-26.

We conclude that the trial court did not exceed the limits of its discretion in its award of alimony or its division of property. The trial court awarded the wife a substantial portion of the marital property and $960 in monthly periodic alimony. Based on our review of the record, we cannot say that this judgment was plainly or palpably wrong.

Furthermore, the Court of Civil Appeals, in finding that the trial court’s award of alimony and property was inequitable, appeared to place great weight on the disputed allegations of the husband’s abuse, without acknowledging testimony to the contrary. Likewise, the Court of Civil Appeals acknowledged only the wife’s evidence pertaining to her inability to work and support herself. In doing so, the Court of Civil Appeals impermissibly reweighed the evidence. See Ex parte H.H., 830 So.2d at 25-26.

TV. Conclusion

After reviewing the record, we conclude that the trial court’s award of alimony and its division of property was not plainly or palpably wrong. Therefore, we reverse the judgment of the Court of Civil Appeals, and remand the case for the Court of Civil Appeals to reinstate the judgment of the trial court.

REVERSED AND REMANDED WITH DIRECTIONS.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., dissents.


text:
    Peggy FOLEY v. Jerry FOLEY.
    2010311.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Roianne Houlton Conner, Montgomery, for appellant
    John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court has been reversed and the case remanded by the Supreme Court of Alabama. See Ex parte Foley, 864 So.2d 1094 (Ala.2003). In compliance with the Alabama Supreme Court’s opinion, the judgment of the trial court is affirmed in its entirety.

AFFIRMED.

All the judges concur.


author:
MURDOCK, Judge.
      PITTMAN, Judge,

text:
    Vivian Lucille BROWN v. WAL-MART STORES, INC.
    2000925.
    Court of Civil Appeals of Alabama.
    Nov. 1, 2002.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1020278.

      Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellant.
    Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellee.
   MURDOCK, Judge.

In this case, an employee challenges the validity of a “utilization review” conducted on behalf of her employer under our Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”). The trial court rejected that challenge. We affirm.

The record reveals the following: On November 7, 1992, Vivian Lucille Brown suffered an injury to her left arm and left shoulder while working for her employer, Wal-Mart Stores, Inc. In May 1994, Brown filed an action seeking workers’ compensation benefits from Wal-Mart. In January 1996, the parties entered into a settlement agreement relating to Brown’s injury and filed the settlement agreement with the trial court for its approval. The settlement agreement provided, in pertinent part:

“The parties have made it known to the Court that they have reached an agreement to settle this claim, subject to the approval of the Court, for the sum of $30,000.00 as a full and complete settlement of any and all claims for [workers’] compensation benefits under the [Workers’] Compensation Act of Alabama, including temporary total disability, permanent partial or permanent total disability benefits, with the defendant remaining liable to the plaintiff for medical benefits as required by the [Workers’] Compensation Act of Alabama which was in effect at the time of said accident.”

(Emphasis added.) The trial court entered a judgment adopting the settlement agreement “as the Court’s Order in this case.” After the judgment was entered, Brown continued to experience chronic pain related to her injury, and Wal-Mart continued to provide medical benefits to her — primarily by paying for various pain medications.

In August 1999, Dr. Jeff Pirofsky, Brown’s authorized treating physician, referred Brown to Dr. Sandra Durham for pain management treatment. Dr. Durham prescribed various narcotic pain medications to treat Brown’s chronic pain. Wal-Mart became concerned about the long term use of potentially addictive narcotic pain medications and submitted Dr. Durham’s proposed treatment plan for utilization review. In May 2000, Dr. Robert Ross, a utilization-review panel physician, opined that “it is not appropriate to treat chronic pain (which is not caused by cancer or terminal illness) with narcotics.” Based on Dr. Ross’s opinion, Wal-Mart stopped paying for the narcotic pain medications. When Wal-Mart stopped paying, Brown stopped taking the narcotic pain medications because, she says, she cannot afford to pay for them.

In November 2000, Brown filed a motion seeking to have Wal-Mart held in contempt, alleging that Wal-Mart had improperly denied authorization for payment of the medications prescribed Dr. Durham. At a hearing on her motion, Brown withdrew her request to hold Wal-Mart in contempt and proceeded on what the trial court characterized as a “motion requesting the trial court to compel Wal-Mart to authorize and pay for medical treatment.” The trial court denied that motion based on Brown’s failure to exhaust the procedures or remedies available under the employer’s utilization-review procedures; the trial court entered a judgment accordingly. Brown appeals from that judgment.

Section 25-5-293(k), Ala.Code 1975, was added to the Act by amendment in 1992, see Act No. 92-537, 1992 Ala. Acts § 40(k). It allows an employer to conduct “medical-necessity determinations” and “utilization review[s],” but only if the employer adopts and follows procedures for doing so that are consistent with state regulations contemplated by the Act. See generally, Ala.Code 1975, § 25-5-1(19) (defining “utilization review”). Section 25-5-293(k) provides, in pertinent part:

“Notwithstanding any other provision of this section to the contrary, it is the intent of this section that any and all utilization review ... [and] medical necessity determinations, ... which relate to the services of physicians ... shall only be conducted under and in accordance with policies, guidelines, or regulations which have been jointly approved by the Workers’ Compensation Medical Services Board and the director [of the Department of Industrial Relations] under the provisions of Section 25-5-312, as and when such policies, guidelines, criteria, and regulations are adopted in a final and effective form pursuant to the Alabama Administrative Procedure
Act.... If such above referenced pending policies, guidelines, criteria, or regulations have not become effective in a final form pursuant to the Administrative Procedure Act ... then until such time as they are finally adopted ... utilization review, [and] medical necessity determinations ... [shall be conducted] in a manner that is consistent with similar practices of a majority of commercial insurance companies authorized to issue policies of health insurance in this state.”

(Emphasis added.)

In accordance with § 25-5-293(k), the director of the Department of Industrial Relations promulgated rules and regulations relating to utilization review, bill screening, medical-necessity determinations, and audits, see Ala. Admin. Code, r. 480-5-5-.01 et seq. (“the regulations”), which became effective September 16, 1996. The regulations contemplate a process of potentially five steps that now must serve as the predicate for any decision by an employer to deny payment for a medical treatment prescribed by an authorized physician. See § 25-5-293(k) (providing that medical-necessity determinations “shall only” be conducted in accordance with the regulations “as and when such ... regulations are adopted in a final and effective form pursuant to the Alabama Administrative Procedure Act”). The first four steps of this process constitute what is known as a “utilization review.”

On appeal, Brown first argues that the application to this case of a utilization-review procedure adopted by her employer pursuant to regulations adopted after her injury occurred amounts to an impermissible retroactive application of the regulations. Specifically, Brown argues that, because the regulations became effective in 1996, after her 1992 injury, neither those regulations nor any procedures adopted pursuant to those regulations can properly be applied to medical treatments prescribed for her injury.

It is undisputed that Wal-Mart adopted medical-necessity and utilization-review procedures consistent with the regulations, and that it followed those procedures in denying payment for the disputed medical treatment. While it is true that Brown’s injury occurred before the effective date of the regulations, the treatment at issue was first recommended by Brown’s physician— and therefore first became an issue — in 2000. At that time, Wal-Mart was operating under utilization-review procedures it had previously adopted in accordance with regulations that, by then, had been in effect for approximately four years. We therefore reject Brown’s first argument; the regulations were not applied retroactively in this case.

Brown next contends that the utilization-review regulations are a nullity because, she says, they are not in harmony with an employee’s rights under § 25-5-77(a), Ala.Code 1975, regarding medical treatment. Section 25-5-77(a) ends as follows:

“In addition to the compensation provided in this article and Article 4 of this chapter, the employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention ... [and] medicine ... as the result of an accident arising out of and in the course of employment.... All cases of dispute as to the necessity and value of the services shall be determined by the tribunal having jitrisdiction of the claim of the injured employee for compensation.”

(Emphasis added.) Brown argues that the utilization-review regulations allow an unauthorized nontreating physician to alter the course of an employee’s medical treatment prescribed by an authorized treating physician, and thus, she argues, they provide an avenue for an employer to dictate the course of an employee’s medical treatment, contrary to § 25-5-77(a), Ala.Code 1975. Citing State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426 (1953), and Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977 (1935), Brown argues that, because the regulations yield a result contrary to § 25-5-77(a)’s provision for disputes over the necessity of medical services to be resolved by a court of law, the regulations should be considered invalid.

Brown’s argument is apparently premised on the notion that, after the adoption of § 25-5-293(k) in 1992 and the subsequent promulgation of the regulations, an employee must exhaust any utilization-review procedures adopted by his or her employer before the employee may resort to a court to vindicate his or her right to a given medical treatment. If this premise was valid, there would at least be a tension between the regulations, on the one hand, and § 25-5-77(a) and the employee’s right to seek judicial relief thereunder, on the other hand. In Ex parte Southeast Alabama Medical Center, however, we held that an employee need not exhaust an employer-adopted utilization-review procedure before resorting to the circuit court to vindicate his or her right to reasonably necessary medical treatment. 835 So.2d at 1054-55. In the present case, therefore, Brown’s argument is without merit; we see no conflict between the regulations and § 25-5-77(a).

Lastly, Brown contends that the regulations violate several constitutional provisions, including §§ 1, 13, 22, and 95 of the Alabama Constitution and the Equal Protection Clause of the 14th Amendment to the United States Constitution. Brown’s constitutional claims are based on the faulty premises that the regulations alter an employee’s right to seek judicial relief under the last sentence of § 25-5-77(a) quoted above and that the regulations were applied retroactively to a medical treatment prescribed for her 1992 injury. If those premises are not accepted as true, there is no substance to her contentions. Because we conclude that the regulations do not alter an employee’s right under § 25-5-77(a) in the manner presumed by Brown and that the application of the 1996 regulations to a medical treatment prescribed in 2000 is not a retroactive application of the regulations, we decline ■ to address Brown’s constitutional claims further.

We realize that our ruling today affirms a trial court’s judgment requiring an employee to exhaust an employer-provided utilization-review procedure before being able to seek a judicial determination that the medical treatment at issue is, in fact, reasonable and necessary, and that such a result is contrary to our holding in Ex parte Southeast Alabama Medical Center. The employee in this case, however, did not argue either to the trial court or to this court, as did the employee in Ex parte Southeast Alabama Medical Center, that the doctrine of exhaustion of administrative remedies does not apply to such utilization-review procedures. To the contrary, as already discussed, Brown’s arguments both to the trial court and to this court were actually premised on the notion that the exhaustion doctrine does apply to utilization-review procedures. We will not reverse a trial court’s judgment based on arguments not presented to the trial court or based on arguments not made to this court. See, e.g., Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988); Boshell v. Keith, 418 So.2d 89 (Ala.1982).

The employee in this case argues simply that the regulations are invalid. They are not. We therefore find no basis in this appeal upon which to reverse the trial court.

AFFIRMED.

CRAWLEY, J., concurs.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur in the result.

PITTMAN, Judge,

concurring in the result.

In Ex parte Southeast Alabama Medical Center, 835 So.2d 1042 (Ala.Civ.App.2002), this court held that an employee need not exhaust an employer-adopted utilization-review procedure before filing a complaint in the circuit court. Judge Thompson’s well-reasoned dissent in that case concluded that the utilization-review procedures authorized by § 25-5-293 are an administrative prerequisite to obtaining a determination of the dispute in the trial court pursuant to § 25-5-77(a) in those cases in which an employer has implemented such utilization-review procedures. Thus, based on my concurrence with Judge Thompson’s dissent in Ex parte Southeast Alabama Medical Center, I would affirm the trial court’s judgment in this case as well. Therefore, I concur only in the result.

      . Section 55 of Act No. 92-537 provided that "[t]his act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.” Act No. 92-537 was approved by the Governor on May 19, 1992.

      . We recently stated in Ex parte Southeast Alabama Medical Center, 835 So.2d 1042 (Ala.Civ.App.2002), that "§ 25-5-293(k) would have permitted employers to engage in medical necessity [determinations] even if the Director of the Department of Industrial Relations had never acted to promulgate any regulations under § 25-5-293(k),” because "the statute provides that, before adoption of formal regulations, employers could have made such determinations so long as they did so 'in a manner that [was] consistent with similar practices of a majority of commercial insurance companies.' "

      . For a more detailed review of the regulations and the medical-necessity and utilization-review procedures provided for in those regulations, see Ex parte Southeast Alabama Medical Center, 835 So.2d 1042 (Ala.Civ.App.2002).

      . Moreover, Brown's argument is based on a faulty premise, namely, that if the regulations were not applicable to her injury, Wal-Mart could not have refused to pay for a treatment recommended by an employer-authorized physician. As we explained in detail in Ex parte Southeast Alabama Medical Center, even before adoption of Ala.Code 1975, § 25-5-293(k), and the regulations promulgated pursuant thereto, employers had a right to refuse to pay for treatments that were not "reasonably necessary," and any resulting dispute between the employer and the employee would be determined by a court of law. 835 So.2d at 1046-47.


author: PITTMAN, Judge.

text:
    John H. LARY, Jr. v. VALIANT INSURANCE COMPANY.
    2010775.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.
    Rehearing Denied Jan. 10, 2003.

      John H. Lary, Jr., pro se.
    Ruth Ann Hall of Spurrier, Rice, Wood & Hall, Huntsville, for appellee.
   PITTMAN, Judge.

This appeal is from the trial court’s judgment in a case involving the total loss of two automobiles from flood damage.

On January 18, 2000, John Lary, acting pro se, sued Valiant Insurance Company alleging breach of contract and bad-faith failure to pay an insurance claim. Lary alleged that Valiant had failed to fix his two flood-damaged vehicles, that the vehicles should have been considered total losses, and that Lary should have been compensated for the total loss of the vehicles. Valiant filed an answer denying the allegations. On November 20, 2000, Valiant filed a motion seeking a summary judgment as to Lary’s bad-faith claim. The trial court, receiving no response from Lary, granted Valiant’s motion and entered a partial summary judgment for Valiant.

Valiant had previously invoked an appraisal clause in the insurance policy purchased by Lary, which allowed the parties to submit to an umpire any disagreement about the amount of loss covered by the policy. The parties did so, and on January 2, 2002, Valiant filed a “motion to enforce settlement and/or appraisal clause provisions.” Lary responded by filing a motion for a summary judgment. The matter was then submitted to the trial court upon the stipulations and briefs of the parties. The trial court entered its judgment on February 7, 2002, awarding Lary the value determined by the umpire on both vehicles, minus the policy deductible, and awarding Valiant title to and possession of the vehicles. Lary appealed to the Alabama Supreme Court. Pursuant to § 12-3-10, Ala. Code 1975, the supreme court transferred this case to this court.

I.

Lary contends that the trial court erred by entering a summary judgment for Valiant on his bad-faith claim.

“A party moving for summary judgment has the burden of clearly showing that there is an absence of a genuine issue as to any material fact and that the moving party must be entitled to the summary judgment as a matter of law. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981). Once a motion for summary judgment has been made and supported as required by Rule 56, Alabama Rules of Civil Procedure, the motion is to be granted unless the adverse party makes an evidentiary or factual showing that there is a genuine issue of fact for trial. Butler, swpra.”

Denniston & Co. v. Jackson, 468 So.2d 170, 174 (Ala.Civ.App.1985). In the instant case the exhibits, affidavits, and pleadings establish that Valiant had not committed the tort of bad-faith refusal to pay a claim. The record clearly indicates that Lary filed no response to Valiant’s motion for a partial summary judgment.

“Once a prima facie showing is made that there is no [genuine] issue,of material fact, it then becomes the burden of the opposing party to produce evidence to the contrary. Holliyan v. Gayle, 404 So.2d 31 (Ala.1981). An opposing party may not rest upon the mere allegations or denials of the pleadings. Butler [v. Michigan Mut. Ins. Co., 402 So.2d 949 (Ala.1981) ]. When no evidence is offered to contradict, or the opposing party fails to respond to a motion for summary judgment, the trial court has no alternative but to consider the evidence presented by the moving party as un-contradicted; and, if warranted by such evidence, summary judgment may be entered against the nonmoving party. Butler v. Michigan Mut. Ins. Co., supra.”

Denniston, 468 So.2d at 174.

Valiant filed its motion for a summary judgment, outlining the elements of the tort of bad-faith failure to pay an insurance claim. In order to set forth a claim for bad faith, an insured must show (1) an intentional refusal by the insurer to pay the claim, (2) coupled with the absence of any reasonably legitimate or arguable reason for that refusal and (3) the insurer’s actual knowledge of the absence of an arguable or debatable reason for denying the claim. Chavers v. National Sec. Fire & Cas. Co., 405 So.2d 1 (Ala.1981). As a result, the courts have stated that the insured must show more than mere nonpayment and prove a bad-faith nonpayment, that is, the insured is required to show that there was a nonpayment and that there was no reasonable ground for dispute under the policy. National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179 (Ala.1982).

The evidence before the trial court showed that Valiant did not refuse to pay a claim filed by Lary. Valiant paid the repair claims presented by Lary for both vehicles damaged by the flood. This alone negates the first element of bad faith. Lary, in his complaint, alleged Valiant was guilty of bad faith because, Lary alleged, Valiant paid for repairs on the vehicles knowing that the vehicles could not be repaired and that they were damaged beyond their market value. The evidence before the trial court showed that Valiant had both vehicles repaired, and that, after one of the vehicles exhibited additional problems, Valiant had it appraised. The appraiser reported the vehicle was a total loss, given the cost of the additional repairs. Valiant paid the costs of the repairs to both vehicles, and when the additional repairs to the second vehicle placed it in the category of a total loss, Valiant offered to pay the loss. The only remaining dispute between the parties was the actual cash value of the vehicles. Based on the evidence before the trial court, the summary judgment on the bad-faith claim was proper. We therefore affirm the partial summary judgment for Valiant.

II.

Lary’s remaining issues on appeal are concerned with the judgment of the trial court regarding his breach-of-contract claims. The trial court took the pleadings and submissions of the parties on the undisputed evidence and rendered a judgment. Nothing in the record indicates that the trial court heard any evidence; in fact, the trial court denied a request for oral argument.

“Normally, a trial court’s judgment is accorded great weight where that court hears evidence ore tenus. Copeland v. Richardson, 551 So.2d 353 (Ala.1989); Cale v. City of Bessemer, 393 So.2d 959 (Ala.1980). However, as in this case, when a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts. Home Indemnity Co. v. Reed Equipment Co., 381 So.2d 45 (Ala.1980). Furthermore, where the trial court sits without a jury and hears evidence in the form of stipulations, briefs, and writings of the parties, then an appellate court will sit in judgment on the evidence. Hacker v. Carlisle, 388 So.2d 947 (Ala.1980). See, also, Ex parte British Steel Corp., 426 So.2d 409 (Ala.1982).”

Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). In the instant case, the trial court decided this case without a jury and based upon written submissions; therefore, this Court sits in judgment on the evidence.

Lary’s first contention is that the trial court erred when it ordered Lary to transfer title of the damaged vehicles to Valiant. In his submissions to the trial court, the only argument made by Lary is that § 32-8-87, Ala.Code 1975, allows either Valiant or him to forward the titles on a car declared a total loss to the Department of Revenue; therefore, he argues, Valiant has no automatic right to the vehicles and their titles. Section 32-8-87(b) reads, in pertinent part, as follows:

“(b) When the frame or engine is removed from a motor vehicle and not immediately replaced by another frame or engine, or when an insurance company has paid money or made other monetary settlement as compensation for a total loss of any motor vehicle, the motor vehicle shall be considered to be salvage. The owner of every motor vehicle in which total loss or salvage has occurred shall, within 72 hours after the total loss or salvage occurs, make application for a salvage certificate of title and forward to the department the certificate of origin or certificate of title to the motor vehicle, whereupon the department shall process the certificate of origin or certificate of title in a manner prescribed by law or regulation. An insurance company which pays money or makes other monetary settlement as compensation for total loss of a motor vehicle shall at the time of payment or monetary settlement obtain the vehicle’s certificate of origin or certificate of title and, as soon as practicable after receiving them, shall forward them along with their application for a salvage certificate, to the department for processing.”

Valiant, on the other hand, argues that the statute mandates that Valiant acquire the vehicles and the titles to those vehicles so it can forward those titles to the Department of Revenue.

The statute clearly says any insurance company that pays money or compensation for the total loss of a vehicle must acquire the title to the vehicle. However, the statute does not address whether the insurer has a right to possession of the actual vehicles. More importantly, § 32-8-87(b), which is a part of the Alabama Uniform Certificate of Title and Anti Theft Act, § 32-8-1 et seq., Ala.Code 1975 (“the Act”), is not concerned with right of possession of salvage vehicles, but instead with tracing title and deterring theft, hence the title of the Act.

Having nothing more than that argument before it, the trial court ordered Lary to forward the titles to the vehicles to Valiant, who would pay the amount adjudged by the umpire to be the actual cash value of the vehicles. Alabama law has generally held that if a vehicle is considered a total loss, that is, if it was so damaged as not to be reasonably repairable, the measure of damages is the reasonable market value before the accident, less its salvage value, if any, after the accident. See, Shackleford v. Brumley, 437 So.2d 1044, 1047 (Ala.Civ.App.1983); Smith v. Springsteen, 385 So.2d 56, 60 (Ala.Civ.App.1980); Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955). Our review of the record shows that the trial court’s damages award mirrors the umpire’s findings. The umpire’s findings were based on the appraisal done for Lary, and in that appraisal, a separate amount ($1,000 per vehicle) was listed as salvage value. The trial court awarded Lary the reasonable market value of the cars with no deduction for salvage value. Therefore, Lary could not retain the vehicles or he would be unjustly enriched. The trial court did not err by ordering Lary to surrender the vehicles to Valiant.

Lary next contends that the trial court erred when it failed to award him prejudgment interest on his judgment. In his summary-judgment motion, he simply asks for prejudgment interest. On appeal, Lary argues that § 8-8-8, Ala.Code 1975, allows for prejudgment interest, and cites our case of Auto-Owners Insurance Co. v. Culpepper, 426 So.2d 435 (Ala.Civ.App.1983). In Auto-Owners, we noted that “[i]n an action for damages to a plaintiffs automobile, [§ 8-8-8, Ala.Code 1975,] allows interest on the damages.” 426 So.2d at 438. In Auto-Owners, however, we also noted that certain requirements must be met:

“ ‘(1) The amount due must be certain; (2) the time when it is due must be certain; (3) the amount due and time of payment must be known to the debtor.’ Roe v. Baggett Transportation Co., 326 F.2d 298, 301 (5th Cir.1963), quoting Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789 (1922).”

426 So.2d at 439. Lary made no argument nor did he present any evidence concerning these requirements for prejudgment interest under § 8-8-8, Ala.Code 1975; therefore, the trial court did not err in failing to award Lary prejudgment interest.

Lary contends on appeal that the trial court erred when it failed to award him loss-of-use damages on his two vehicles. He argues that the insurance policy he purchased from Valiant specifically contains a provision for payment for the loss-of-use of a covered automobile. He submitted the insurance policy as an attachment to his summary-judgment motion. Valiant contends that, under Alabama law, an insured may not recover loss-of-use damages to a vehicle that is ultimately declared a total loss. Valiant is correct. Our supreme court has previously held that “[rjecovery cannot be had for both total loss of an automobile and loss of use of the same vehicle.” Fuller v. Martin, 41 Ala.App. 160, 164, 125 So.2d 4, 7 (1960)(citing Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955)). Therefore, the trial court did not err in refusing to award Lary loss-of-use damages on his two vehicles.

III.

Lary contends that the trial court erred when it failed to award him sales tax and labor costs associated with the damage to the vehicles. Valiant did not respond to either of those claims in any of its filings with the trial court. The record shows that Lary specifically pointed out the policy provisions upon which he based his claims. The insurance policy provides that “[i]f we pay for loss in money, our payment will include the applicable sales tax.” Lary submitted that the local car sales tax is 4%. Four percent of the trial court’s judgment amount of $41,005 would be $1,640. Additionally, Lary quoted the provision contained in the declarations page of the insurance policy that allows for $50 per vehicle towing and labor reimbursement for each time the vehicle is disabled. He then attached receipts evidencing those expenses. There being no evidence offered to the contrary by Valiant, Lary is due judgment for those amounts. Accordingly, we remand this case to the trial court to enter an order on that issue consistent with this opinion.

Lary’s last contention is that the trial court erred when it subtracted the $250 per car deductible from his damages award. We agree. Lary submitted by affidavit and argued in his motions that he was forced to pay two separate $250 deductibles in order for the repair shop to release his cars. The evidence and exhibits show that the repair shop even listed on one of its repair invoices “paid $250 M/C Deductible 7/28/99 (signature).” Again, Valiant never contested that evidence as untrue, nor did it present any argument to the trial court as to this issue. We therefore reverse that portion of the trial court’s judgment that deducted $500 from the total amount of the damages award.

IV.

Based on the above, we affirm the trial court’s partial summary judgment for Valiant on the bad-faith claim. Additionally, we affirm the trial court’s judgment insofar as it orders the transfer of title of the subject vehicles from Lary to Valiant. We reverse the trial court’s judgment insofar as it deducted $500 from the judgment against Valiant. Lastly, we remand the case so that the trial court can address the issue of the $1,740 for the sales tax, towing, and labor costs associated with the damage to the vehicles.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.


author: BROWN, Justice.

text:
    Ex parte John H. LARY, Jr. (In re John H. Lary, Jr. v. Valiant Insurance Company).
    1020661.
    Supreme Court of Alabama.
    May 16, 2003.
    John H. Lary, Jr., pro se.
    Submitted on petitioner’s brief only.
    Michael A. Bownes and Ryan A. Donaldson, Montgomery, for amicus curiae Alabama Department of Insurance.
   BROWN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving the Court of Civil Appeals’ articulation in its opinion of the law of recovery of damages for “loss of use.” Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and SEE, HARWOOD, and STUART, JJ., concur.


author: BASCHAB, Judge.

text:
    Michael CLEM v. STATE of Alabama.
    CR-01-1363.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Patricia Granger, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Michael Clem, was convicted of two counts of first-degree sexual abuse, violations of § 13A-6-66(a)(l) and (3), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve concurrent terms of thirty years in prison on each conviction. See § 13A-5-9(c)(l), Ala.Code 1975. The appellant filed a “Motion for Judgment of Acquittal or in the Alternative for a New Trial,” which the trial court summarily denied. This appeal followed.

The State presented evidence that, on April 3, 2000, the victim, L.S., who was eleven years old, spent the night with her aunt, M.T. The appellant, who was a Mend of M.T.’s and whose sister was married to the victim’s mother’s stepbrother, also spent the night at M.T.’s house. The victim testified that she fell asleep that night in the bed with M.T. and the appellant. However, when she woke up around 3:00 a.m., she was in the bed alone with the appellant. The victim testified that the appellant, who was behind her, put his leg over her leg and rubbed his hand between her legs in the area of her vagina and on her “butt.” (R. 45.) The victim testified that the appellant touched her on top of her clothes, that he moved his hand in a back and forth motion, and that he also moved his body against hers in a back and forth motion.

I.

The appellant argues that the trial court erroneously denied his motion in limine. Before the trial began, he made a motion in limine to prevent the State from mentioning his prior felony convictions, and the trial court denied the motion.

“ ‘A party who suffers an adverse ruling on a motion in limine can preserve the ruling for post-judgment and appellate review only by objecting to the introduction of the proffered evidence and assigning specific grounds at the time of trial, unless he or she obtains the express acquiescence of the trial judge that a subsequent objection and assignment of grounds are not necessary.’
“Miles v. State, 650 So.2d 583, 586 (Ala.Cr.App.1994), quoting, Parks v. State, 587 So.2d 1012 (Ala.1991).”

Grimsley v. State, 678 So.2d 1197, 1208 (Ala.Crim.App.1996). The record does not reflect that, when it denied the motion in limine, the trial court agreed that a subsequent objection would not be necessary. Subsequently, defense counsel did not object when the State, during its cross-examination of the appellant, asked him about his prior felony convictions. Therefore, this argument is not properly before this court.

II.

The appellant also argues that the trial court erred when it did not “instruct the jury to disregard improper remarks made by the prosecutor thereby, prejudicing [him].” (Appellant’s brief at p. 11.) However, he did not object when the trial court did not specifically instruct the jury to disregard the comment. Therefore, he did not preserve this issue for our review. See Sotto v. State, 701 So.2d 309 (Ala.Crim.App.1997).

The appellant also argues that the prosecutor’s comments implied that he was guilty, that “he was attracted to little girls,” and that “[n]o instruction from the Judge at that point could have cured the damage that was caused to [him].” (Appellant’s brief at p. 11.) However, at trial, he objected to the prosecutor’s comments only on the ground that how he looked was not relevant and that the prosecutor could not “judge or speculate on what he looked like, looking at these girls.” (R. 194.) “ ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987).” Miller v. State, 602 So.2d 488, 496 (Ala.Crim.App.1992). Because the appellant did not present the specific grounds he raises on appeal to the trial court, they are not properly before this court.

Moreover, the record does not contain a transcript of the closing arguments in their entirety. Rather, it contains only the statement to which the appellant objected and his objection to the statement.

“We review the argument as a whole to determine if any part is prejudicial and violative of the appellant’s rights. ‘It is the appellant’s duty ... to make a correct and complete record on appeal.’ Holder v. State, 584 So.2d 872, 875 (Ala.Cr.App.1991).”

Allen v. State, 611 So.2d 1152, 1155 (Ala.Crim.App.1992). Because the record before us does not contain a copy of the closing arguments in their entirety, we cannot review the prosecutor’s comment in the context of the entire closing arguments. Therefore, we cannot properly review the appellant’s argument.

III.

The appellant further argues that the trial court erroneously denied his “Motion for Order Permitting Discovery of Transcript Exhibits and Other Memoriali-zation of Grand Jury Proceedings and List of Grand Jury Members.” Section 12-16-214, Ala.Code 1975, provides, in pertinent part:

“The Legislature hereby finds, declares and determines that it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate.”

(Emphasis added.)

“The ramifications of disclosing the names of grand jury members are too great to comprehend. It is safe to conclude that the number of indictments would decrease drastically and the function of the grand jury would be greatly hindered if the grand jurors’ names were not secret. The secrecy of the grand jury proceedings is well-grounded in this country’s jurisprudence and has protected the grand jury system.”

State v. Matthews, 724 So.2d 1140, 1142 (Ala.Crim.App.1998). Furthermore, “ ‘a defendant must make a preliminary showing of particularized need before a court can balance this need against the policy favoring grand jury secrecy.’ Arthur v. State, [711] So.2d [1031, 1078 (Ala.Crim.App.1996) ].” Mitchell v. State, 706 So.2d 787, 806 (Ala.Crim.App.1997).

Initially, we question whether the appellant timely presented his request to the trial court because he filed it more than three months after the trial and almost two weeks after the sentencing hearing. Furthermore, in his motion, he did not make any showing of particularized need for discovery of the grand jury proceedings. Therefore, the trial court properly denied his motion.

IV.

Finally, the appellant argues that his sentences violate double jeopardy principles. Specifically, he contends that the trial court should not have imposed a sen-tenee for each first-degree sexual abuse conviction because both convictions arose from the same act. The appellant was convicted of one count of first-degree sexual abuse pursuant to § 13A—6—66(a)(1), Ala.Code 1975, and one count of first-degree sexual abuse pursuant to § 13A-6-66(a)(3), Ala.Code 1975. We addressed a similar situation in King v. State, 574 So.2d 921, 929 (Ala.Crim.App.1990), as follows:

'‘Initially, we must determine whether an individual may be convicted of two counts contained in the same statute. As our Supreme Court stated in Sisson v. State, 528 So.2d 1159 (Ala.1988), ‘[T]he two subsections of a similar statute were merely alternative methods of proving the same crime, and therefore, did not constitute separate offenses.’ According to Sisson, the appellant could not be convicted for ... two counts of sexual abuse.”

In this case, both of the appellant’s convictions were based on testimony that he rubbed the victim between her legs and on her “butt” on the morning of April 4, 2000. (R. 45.) Therefore, he could not properly be convicted of and sentenced for two counts of first-degree sexual abuse. Accordingly, we remand this case to the trial court with instructions that that court set aside one of the appellant’s first-degree sexual abuse convictions and sentences. In its written order setting aside the conviction and sentence, the trial court shall state which specific first-degree sexual abuse conviction and sentence it is setting aside. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a copy of the trial court’s written order.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . Because of our disposition of this issue, we pretermit discussion at this time of the remaining issue the appellant raises in his brief to this court.