author: THOMPSON, Judge.

text:
    S.W. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES. (In the matter of K.T. and M.T., minor children).
    2010727.
    Court of Civil Appeals of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Dec. 13, 2002.
    Certiorari Denied Feb. 28, 2003 Alabama Supreme Court 1020495.
    Jennifer L. Atwell, Dothan, for appellant.

      William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellant.
   THOMPSON, Judge.

On January 3, 2002, the Houston County Department of Human Resources (hereinafter “DHR”) filed a petition seeking to terminate the parental rights of S.W. (“the mother”) and S.T., the alleged father, to M.T. and K.T. (“the children”). On April 2, 2002, the trial court held a hearing and received ore tenus evidence. On April 4, 2002, the trial court entered an order terminating the mother’s parental rights. The mother appealed.

At the time of the hearing, the mother was 20 years old, M.T. was 23 months old, and K.T. was 8 months old. DHR had assumed custody of each of the children on the days after their births. The record indicates that DHR had been involved with the mother since 1991 and that the mother had been in DHR’s custody from 1991 to 1998. The record indicates that the mother had had behavioral problems as a teenager and that DHR attempted on 24 occasions to place the mother in a foster home, but that all of those placements were unsuccessful.

The mother and S.T. never married. The mother’s relationship with S.T. involved a great deal of physical violence. The record contains hospital reports prepared by doctors and nurses following the mother’s hospital visits, as well as court reports prepared by DHR social workers throughout DHR’s involvement with the family. Although the mother indicated to both DHR and hospital employees that S.T. had physically abused her in the past, the first documentation regarding that violence occurred on February 9, 2000, when the mother was hospitalized after she was assaulted by S.T. The hospital record from that date indicates that the mother reported that S.T. had kicked her repeatedly in the face, head, and abdomen and had sexually assaulted her. At the time of the February 9, 2000, assault, the mother was more than six months pregnant with M.T.

The mother was readmitted to the hospital on February 18, 2000, and she was diagnosed with vaginal bleeding. S.T. visited the mother at the hospital on February 20, 2000; following S.T.’s visit, the mother suffered a nosebleed. The mother initially denied that she was assaulted by S.T. during the visit, but eventually admitted that during his February 20, 2000, visit, S.T. struck her in the nose.

The mother testified that on March 26, 2000, S.T. assaulted her and stuck a telephone antenna up one of her nostrils. When questioned by the court regarding that particular incident, the mother stated that the assault occurred when S.T. became angry with her while she was talking on the telephone. On April 3, 2000, the mother delivered M.T. by cesarean section. The record indicates that S.T. also assaulted the mother on April 6, 2000, three days after M.T.’s birth. The record indicates that the mother contacted DHR following the April 6, 2000, attack and that DHR placed the mother in a “protection-from-abuse” shelter that night. The record indicates that the mother left the shelter the following day. According to the record, the mother resumed her relationship with S.T., and the domestic violence continued.

DHR provided counseling services for the mother, but the mother stopped attending her counseling sessions in May 2001; the record indicates that when the mother stopped attending her counseling sessions, the counselor began attending some of the mother’s meetings with DHR. The record contains the notes from the mother’s counseling sessions and the DHR meetings. Those notes indicate that the mother consistently recognized that her relationship with S.T. jeopardized her relationship with her children, but that she continued to maintain a relationship with him. The record also contains the counsel- or’s September 20, 2001, notes from the last DHR meeting he attended with the mother. The notes indicate that the mother continued to maintain contact with S.T.

Sarah Shinz, a social worker for DHR, testified that she worked on the case involving the mother and the children. Shinz testified that S.T. had physically abused the mother throughout the time DHR had been involved with the family. According to Shinz, the mother had also been violent toward S.T., and the mother had informed her that she had stabbed S.T. on two occasions. Shinz testified that numerous warrants had been issued for both S.T. and the mother for the physical harm each had inflicted on the other.

M.T. was born on April 3, 2000, and taken into custody by DHR on April 4, 2000. Shinz testified that DHR developed several safety plans, the goal of which was to reunite the mother with M.T., but that the mother failed to comply with those plans. Shinz testified that DHR had difficulty formulating a safety plan for the mother because the mother refused to acknowledge that a safety risk existed. Shinz stated that the first safety plan required the mother to sever her relationship with S.T., not to allow S.T. access to her home, and to contact the police if S.T. came to her home and tried to harm her in any way. According to Shinz, DHR employees consistently stressed to the mother that S.T. could not be in the mother’s home when the children were present for visitation. The record indicates that S.T. was discovered in the mother’s house during her first in-home visit with M.T.

K.T. was born on July 5, 2001. Shinz testified that S.T. was incarcerated the day K.T. was born, and that DHR had “great hopes” that the mother would be able to parent K.T. safely because of S.T.’s incarceration. The record indicates that although the trial court awarded DHR legal custody of K.T. the day after her birth, the court allowed the mother to have physical custody of K.T. The record indicates that the mother agreed to notify DHR when she learned of S.T.’s release from prison. Shinz testified that she observed S.T. near the mother’s home on August 20, 2001, and that she learned that on August 18, 2001, S.T. had been released on bond. The mother admitted that she was aware that S.T. was out of prison and that she had allowed him to stay in the home with her and K.T. DHR assumed physical custody of K.T. and placed K.T. in foster care.

Shinz testified that the mother had never tested positive for drugs. Shinz testified that the mother’s home was generally neat and clean and that when the mother had physical custody of K.T., she had an adequate supply of diapers and formula in her home. Shinz stated that the mother had completed parenting classes provided through DHR. Shinz testified that DHR provided individual counseling for the mother, but that the mother refused to attend the individual counseling sessions after May 2001. According to Shinz, the mother readily accepted tangible services offered by DHR and she received extensive services from the Family Service Center. Shinz testified that the mother received job training from Project Hope and from Family Builders and that the mother worked for a brief period at the local food bank. Shinz stated that even with the services and programs DHR offered to her, the mother was unable to maintain steady employment. The record indicates that DHR also provided the mother transportation to school, to day care, to Individualized Service Plan meetings, and to job interviews; that it assisted the mother in obtaining Medicaid; and that it made numerous referrals for the mother to the House of Ruth. The record indicates that the mother entered the House of Ruth on two occasions, but that on both occasions she stayed for only a brief period. The record indicates that the mother was also placed in Heritage House.

Shinz testified that the mother had informed her that since KT.’s birth in July 2001, she had been pregnant by S.T. on three other occasions. Shinz testified that at the time of the April 2, 2002, hearing the mother had several charges pending against her, but had not yet gone to court on those charges; the record does not indicates the nature of those charges. Shinz stated that the mother had never paid child support for the children.

Shinz testified that the mother continued to maintain a relationship with S.T. throughout DHR’s involvement in the case. Shinz testified that in her opinion, the mother was not capable of properly caring for the children. Shinz testified that the mother had poor judgment; that she refused to make the changes necessary to enable her to care for her children, including ending her relationship with S.T.; that she refused to attend counseling; that she could not maintain employment; and that she had not been completely candid with DHR.

Shinz testified that there were no relative placement resources for the mother. Shinz testified that A.A., S.T.’s mother, and M.B., S.T.’s aunt, came to DHR in March 2002, and that M.B. expressed an interest in being a relative placement for the children. Shinz stated that M.B. provided DHR with her telephone number and the name of her employer. According to Shinz, she attempted to call the telephone number, but the number had been disconnected. Shinz testified that she telephoned M.B.’s employer and left a message for M.B. to contact her. Shinz testified that she also contacted A.A. and asked A.A. to have M.B. contact her. Shinz stated that she was unable to contact M.B. and that M.B. did not return her telephone calls. Shinz testified that during a conversation with A.A., A.A. informed her that if M.B. was given custody of the children, M.B. would allow S.T. to have contact with them. Shinz testified that at the time of the hearing, no person had filed a petition seeking to be a relative-placement resource for the children.

The mother testified that she did not have a problem and that she was a good parent. The mother testified that, at the time of the hearing, she was unemployed, but that she was actively seeking employment. According to the mother, her only source of income was from hairstyling, but she did not have a cosmetology license. The mother’s employment history is sporadic. The mother stated that she was studying at home to take her GED exam. The mother testified that she did not consume alcoholic beverages or take illegal drugs. The mother admitted that she had not continued counseling, stating that she did not feel like talking during her counseling sessions. The mother testified that if DHR currently requested her to do so, she would resume counseling sessions.

The mother admitted that S.T. had assaulted her, but the mother testified that S.T. had not physically assaulted her since May or June 2001, just before KT.’s birth. The mother testified that she had not spoken with S.T. in the five months preceding the hearing in this matter and that she and S.T. were no longer involved in a relationship. According to the mother, at the time of the hearing S.T. was in a relationship with someone else. The mother also testified that she had last seen S.T. the previous Thursday during a visit with the children. The mother testified that she was six months pregnant at the time of the hearing and that S.T. was the father of the child. The mother testified that S.T. had never done anything to indicate to her that he would harm the children.

On appeal, the mother asserts that the trial court erred in terminating her parental rights. Following an ore ten-us proceeding, the trial court’s determination of the factual issues is presumed correct and will not be disturbed on appeal absent a showing of palpable error. F.L.L. v. State Dep’t of Human Res., 612 So.2d 501 (Ala.Civ.App.1992). This court has consistently held:

“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419 (Ala.Civ.App.1994).
“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26 — 18—7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

With the exception of the month during which the mother had custody of K.T., both K.T. and M.T. have been in DHR’s custody or in foster care since the day after their births. The record indicates that DHR consistently warned the mother that her relationship with S.T. placed her relationship with her children at risk. Further, although the mother continually acknowledged this risk, she refused to terminate her relationship with S.T. The mother testified that at the time of the hearing in this matter she was again pregnant with S.T.’s child. The mother has received extensive job training, but fails to maintain consistent employment. The mother also refused to continue her counseling sessions. The record indicates that the mother was consistently unwilling or unable to comply with the agreements she entered into with DHR and to make the changes necessary to enable her to care and provide for her children. In addition, the record indicates that DHR was unable to find a suitable relative-resource placement for the children. The trial court found that the mother was unwilling and unable to provide for the children’s needs and that there were no viable alternatives to the termination of the mother’s parental rights. Given the evidence in the record on appeal this court cannot say that the trial court’s termination of the mother’s parental rights was plainly or palpably wrong. SeeA.R.E. v. E.S.W., supra,

AFFIRMED.

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

      . The record indicates that, at the time of the hearing in this matter, the paternity of the children had not been established. The trial court’s order states that it terminates the parental rights of the "natural parents and all other interested parties.” Only the mother appealed. Thus, for purposes of this opinion, this court will address the facts only as they relate to the mother and the children.

      . The record indicates that S.T. was hiding in a back room of the house; that the mother informed the DHR case worker that S.T. was in the house; and that the DHR case worker "called” him out of hiding.

      . The record indicates that during the month that the mother had physical custody of K.T., DHR provided transportation to enable the mother to take K.T. to day care, to attend school, and to retrieve K.T. from day care after completing her classes.

      . The record indicates that the House of Ruth is a protection-from-abuse shelter.

      . The record indicates that Heritage House is a protection-from-abuse shelter.

      . The mother did not state and the record does not indicate the result of those pregnancies.


source: Caselaw Access Project

license: Public Domain

text:
    Dr. Earnest DAVIS v. J.F. DRAKE STATE TECHNICAL COLLEGE and Dr. Helen McAlpine, in her official capacity as president of J.F. Drake State Technical College.
    2010720.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.
    Certiorari Denied Feb. 21, 2003 Alabama Supreme Court 1020356.

      Frederick L. Fohrell and Robert C. Lockwood of Wilraer & Lee, P.A., Huntsville; and Gregory B. Stein of Stein & Brewster, Mobile, for appellant.
    J.R. Brooks and Jeffrey T. Kelly of La-nier Ford Shaver & Payne, P.C., Huntsville, for appellees.
   On Application for Rehearing

THOMPSON, Judge.

The opinion of September 20, 2002, is withdrawn and the following is substituted therefor.

Dr. Earnest Davis filed a complaint against J.F. Drake State Technical College (hereinafter “Drake State”) and Dr. Helen McAlpine, in her official capacity as president of Drake State. In his complaint, Davis sought declaratory and injunctive relief and alleged a claim of breach of contract related to Drake State’s termination of his employment. Davis contended that he had attained nonprobationary status under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (hereinafter “the FDA”), and that he was entitled to notice and a hearing under the FDA. Drake State and McAlpine (hereinafter together referred to as “the defendants”) answered and denied liability. The defendants moved for a summary judgment on all of Davis’s claims against them. Davis moved for a partial summary judgment. On February 15, 2002, the trial court entered a summary judgment in favor of the defendants. Davis filed a postjudgment motion; the trial court denied the motion. Davis appealed, and the supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The record indicates that in early 1998, Dr. Johnnie Harris, a former president of Drake State, hired Davis to fill the position of “business manager” for Drake State. Davis began working for Drake State on February 2, 1998; he worked from that date until August 31, 1998, without a written employment contract. On July 15, 1998, Davis’s job performance was evaluated in writing; the record does not contain that evaluation, nor does it indicate who performed the evaluation.

Davis entered into a written employment contract with Drake State for the period September 1, 1998, through August 31, 1999. Davis later entered into two additional written employment contracts for the periods September 1, 1999, through August 31, 2000, and September 1, 2000, through August 31, 2001.

Dr. Helen T. McAlpine became the president of Drake State on November 3, 2000. On January 18, 2001, McAlpine sent Davis a letter that stated:

“This is to notify you that your employment with J.F. Drake State Technical College will not be continued beyond the end of your current contract. Thus, your contract will not be renewed, and your official last day of employment at J.F. Drake State Technical College will be August 31, 2001. Please let me know if you have any questions about this matter.”

On July 9,. 2001, attorneys for Davis wrote a letter to McAlpine in which they contended that, as of February 2, 2001, Davis had attained nonprobationary status under the FDA. The attorneys asserted that if Drake State wanted to terminate Davis’s employment, Davis was entitled to notice and a hearing under the FDA. Legal counsel for Drake State responded by letter, stating that Davis had not attained nonprobationary status because Drake State had notified Davis of the termination of his contract before he had been employed at Drake State for the three years required to attain nonprobationary status under the FDA. See § 36-26-101(a), Ala. Code 1975. In the trial court, Drake State moved for a summary judgment, arguing that Davis had not attained nonprobation-ary status and, therefore, that he was not entitled to notice and a hearing under the FDA before it could terminate his employment. The trial court granted Drake State’s motion for a summary judgment.

On appeal, Davis once again argues that he attained nonprobationary status under the FDA, and, therefore, that Drake State could not terminate his employment without affording him notice and a hearing. The parties agree that Davis is an “employee” as that term is defined in the FDA. See § 36-26-100, Ala.Code 1975. The conditions regarding the probationary period applicable to employees covered under the FDA is set forth as follows:

“(a) All employees as defined in Section 36-26-100 shall be deemed employed on a probationary status for a period not to exceed three years from the date of his or her initial employment, or a lesser period which may be fixed by the employing authority.
“(b) During said probationary period, the employing authority shall cause the employee’s performance to be evaluated.
“(c) At any time during the employee’s probationary period, the employing authority may remove an employee by furnishing said employee written notification at least 15 days prior to the effective day of termination.”

§ 36-26-101, Ala.Code 1975.

Thus, an employee attains non-probationary status for the purposes of the FDA if the employee works for the employer for three years. Under the FDA, a nonprobationary employee “has a property interest in continued employment and may not be terminated except for cause.” Hardy v. Birmingham Bd. of Educ., 601 So.2d 87, 92 (Ala.Civ.App.1991), overruled on other grounds, 601 So.2d 93 (Ala.1992). However, a probationary employee, one who has not worked for the employer for at least three years, has no property interest in his or her employment and may be terminated at will on 15 days’ notice. Gainous v. Tibbets, 672 So.2d 800 (Ala.Civ.App.1995).

Davis acknowledges that he received notice of the termination of his employment before the expiration of his three-year probationary period. He contends, however, that because he worked for Drake State from February 2, 1998, through August 31, 2001, he actually attained nonprobationary status because he had been employed for a greater length of time than the three years required to attain nonprobationary status. See § 36-26-101(a), Ala.Code 1975.

In Saulsberry v. Wilcox County Board of Education, 641 So.2d 283 (Ala.Civ.App.1993), this court considered a case with facts similar to those presented in this case. In Saulsberry, Saulsberry was employed as a maintenance cosupervisor by the Wilcox County Board of Education (“the Board”). Before the expiration of Saulsberry’s three-year probationary period, the Board notified Saulsberry of its intent to terminate his employment. However, the effective date of that termination was 25 days after the expiration of Sauls-berry’s three-year probationary period. The trial court rejected Saulsberry’s argument that because he worked for 25 days past the third anniversary of his employment with the Board, he automatically became a nonprobationary employee who could be terminated only if the Board followed the notice and hearing requirements set forth in the FDA. This court affirmed the trial court’s judgment, stating:

“Our adoption of Saulsberry’s interpretation of the [FDA] would result in a requirement that the effective day of termination of employment of a probationary employee must occur before the third anniversary of his or her employment.
“In addressing this interpretation, the trial court’s order stated:
“ ‘There is no dispute that [Sauls-berry] was covered by the [FDA] nor is there any dispute that the [Board] terminated his employment and sent him notice of that termination prior to the expiration of three years. [Sauls-berry] claims, because he was allowed to work for a longer period than three years, he became a non-probationary employee and could only have been terminated for cause as set forth in section 36 — 26—102[, Ala.Code 1975]. Giving a literal interpretation to section 36-26-102, the Court finds that [Saulsberry’s] employment was terminated while he was a probationary employee and thus his employment was properly terminated without giving cause. The language clearly says “at any time during the employee’s probationary period” he may be removed upon written notification. It also says he must be given at least fifteen (15) days’ notice prior to the effective date of termination. Under this provision [Saulsberry] could have been terminated at any time through June 5, 1989 [ (the day before the third anniversary of Saulsberry’s June 6, 1986, date of initial employment with the Board) ]. However, if he had been terminated on June 5, 1989, he would have been entitled to work until June 20, 1989, because the notification must come at least 15 days’ prior to the effective date. Since the [Board] gave [Saulsberry] notice prior to the expiration of his probationary period his employment was properly terminated and the fact that the [Board] allowed [Saulsberry] to work for a longer period than 15 days after the date of the notice of termination does not make him a non-probationary employee.’
“The requirement sought to be imposed by Saulsberry’s interpretation is not reasonable, nor is it consistent with the principles of statutory construction and the prior opinions of this court and our Supreme Court when construing the [FDA]. The overall purpose of the [FDA] ‘is to provide non-teacher employees a fair and swift resolution of proposed employment terminations.’ Bolton v. Board of School Commissioners of Mobile County, 514 So.2d 820, 824 (Ala.1987). Further, the [FDA] should be liberally construed to effectuate its purpose. See Bolton, supra. We cannot, however, add provisions to the [FDA] which the legislature chose not to include.”

641 So.2d at 285-86.

Davis urges this court to overrule Sauls-berry, supra. However, we have considered the holding in that case, and we continue to agree with our original analysis. “If the legislature had intended that the effective day of employment termination must occur before the third anniversary of one’s employment, it would have so stated.” Saulsberry, 641 So.2d at 286. Given the authority of Saulsberry, we must conclude that Davis has failed to demonstrate that the trial court erred in entering a summary judgment for Drake State on his claim that he had attained nonprobationary status and that he was therefore entitled to notice and a hearing under the FDA.

Davis also argues that, even assuming that he was a probationary employee, he was entitled to notice and a hearing under Drake State’s own policy manual. We note that Davis raised this issue for the first time — and then only briefly — in his reply brief to Drake State’s opposition to his motion for a partial summary judgment. Only a portion of Drake State’s policy manual is contained in the record on appeal. That portion of the policy manual sets forth a provision substantially similar to the State Board of Education’s Revised Hearing Procedure Policy No. 619.01. The policy manual provides, in pertinent part:

“If a probationary employee under contract is terminated within the period of a contract, the employee is entitled to be given cause and the opportunity for a hearing under these hearing procedures adopted by the State Board of Education .... ”

(Emphasis added.)

McAlpine testified that the above-quoted portion of the policy manual means that if the probationary employee receives notice of his termination before the expiration of his three-year probationary period but is allowed to complete his employment under his written employment contract, he is not actually terminated “within the period” of the contract. Thus, under that interpretation, a probationary employee is not entitled to notice and a hearing under Drake State’s policy unless that probationary employee receives notice of his termination and is required to leave his employment before the expiration of his contract. McAlpine testified that, under the Drake State Policy, a probationary employee who receives notice of his termination but is allowed to complete his employment contract would not be entitled to notice and a hearing.

McAlpine based her interpretation of the policy manual on Chancellor Fred Gai-nous’s interpretation of the policy manual, which is set forth in a memorandum contained in the manual. As Chancellor, Dr. Gainous has the authority to “[ijnterpret the rules and regulations of the [State Board of Education] concerning the junior colleges and trade schools.” § 16-60-111.5(2), Ala.Code 1975. Dr. Gainous’s memorandum, entitled “Employees’ Probationary Interpretation,” provides:

“Pursuant to my authority as Chancellor under Section 16-60-111.5 of the Code of Alabama (1975), as amended, I am issuing to you an official interpretation of State Board of Education Policy Number 619.01 Revised Hearing Procedure. Section 1.12 of the policy defines an employee of a community, junior or technical college to be any full-time employee on Salary Schedules B, C, D, or E. Section 8.1 of the policy addresses the probationary period of employment for such employees. At 3.11, it defines the probationary period as three years from the date of initial employment. It states at 3.13:
“ ‘With respect to any full-time employee under contract, at any time during such employee’s probationary period, the employing authority may remove an employee by furnishing said employee written notification at lest fifteen (15) calendar days prior to the effective date of termination.’
“The policy language cited above clearly states that an employee covered by this policy may be terminated at any time during the probationary period upon written notification. It further clearly states that the employee must be given at least fifteen (15) days’ notice prior to the effective date of termination. So long as the non-renewal or termination notice is rendered within the probationary period, the termination can be without cause. Termination without cause means that the employee is not entitled to be given a reason for the termination or a due process hearing.
“Thus, without cause, any college employee covered by this policy and who is under a contract for a third year can be notified any time at least fifteen (15) days prior to the end of the employee’s third year’s contract that the contract will not be renewed and that employment will cease as of the end of the business day on the final date of the contract. Further, without cause, any college employee covered by this policy and who is under an open-ended letter of appointment can be notified at any time within the three-year probationary period (even the next-to-the-last day of the three-year probationary period) that employment will be discontinued fifteen (15) days (or more, if desired by the president) from the date of the notice of termination. Even if the fifteen-day notice period causes the employment to go beyond the three-year probationary] period, the employment can still be terminated without cause, so long as the written notice is served within the probationary period.”

We conclude that Dr. Gainous’s interpretation of the policy with regard to the issue presented in this case is consistent with both the language of the policy and with the holding of Saulsberry v. Wilcox County Board of Education, supra. Further, courts must give deference to an agency’s interpretation of its own rules and regulations if that interpretation is reasonable and not plainly erroneous. Ex parte Board of School Comm’rs of Mobile County, 824 So.2d 759, 761 (Ala.2001). We cannot say that Davis has established that Drake State’s interpretation and application of its own policy governing the termination of probationary employees was plainly erroneous or that he was entitled, under that policy, to notice and a due-process hearing.

We also note that in his brief on appeal, as well as in his reply brief to Drake State’s opposition to his summary-judgment motion submitted to the trial court, Davis made a one-sentence statement to the effect that “there is no question” that the Due Process Clause of the United States Constitution required that Drake State afford him notice and a hearing. Our supreme court has held that an argument was raised for the first time on appeal and therefore not reviewable where the appellant had made only a one-sentence assertion before the trial court on the same issue it sought to raise in the appellate court. TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238 (Ala.1999); Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991). Davis’s one-sentence due-process “argument” before the trial court cannot be said to have raised the issue before that court, and this court may not consider it for the first time on appeal. TFT, Inc. v. Warning Sys., Inc., supra; Knight v. Alabama Power Co., supra. See also Abbott v. Hurst, 643 So.2d 589 (Ala.1994); Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).

Davis’s last argument is that Drake State could not terminate his employment because, he argues, it had failed to evaluate his employment, and its failure to evaluate him constituted a breach of his employment contract. The FDA provides that during an employee’s probationary period, “the employing authority shall cause the employee’s performance to be evaluated.” § 36-26-101(b), Ala.Code 1975. McAlpine presented evidence indicating that she had addressed some concerns about Davis’s work performance in several memoranda addressed to Davis. For the purposes of this opinion, we find it unnecessary to decide whether those memoran-da constitute the evaluations contemplated by § 36-26-101(b), because in making his argument on this issue, Davis concedes that he received at least one written evaluation during his employment at Drake State. Nothing in the FDA requires that a probationary employee be evaluated more than once during the probationary period. Davis contends, asserting several policy arguments, that this court should require that an employer subject to the FDA conduct more than one evaluation during an employee’s probationary period. However, it is the function of the Legislature, not this court, to modify the FDA if it so chooses. See Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 203 (Ala.2001) (“the function of this Court is ‘ “to say what the law is, not what it should be.” ’ ” (citations omitted)).

Further, in support of his argument that under its own policies, Drake State was required to evaluate him annually, Davis quotes a portion of Drake State’s faculty and staff handbook. With regard to the evaluation of faculty and staff, the handbook states:

“The President is responsible for the development and implementation of an evaluation system whereby all instructors and other employees at the institution are evaluated at least annually. Individual written evaluation records are maintained for all employees.”

In arguing that the above-quoted language constitutes a contract requiring Drake State to perform annual evaluations of its faculty and staff, Davis cites only Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala.1985).

In Belcher, two nontenured teachers contended that the county board of education had failed to evaluate them as required by the evaluation policy it had adopted. In that case, the board had adopted a specific written policy governing the evaluations of teachers. 474 So.2d at 1066. The teachers asserted breach-of-contract claims based on the board’s failure to follow its evaluation policy. The trial court dismissed the teachers’ breach-of-contract claims, concluding that the teachers had failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. Our supreme court reversed the dismissal of the teachers’ breach-of-contract claims, holding that “the Board of Education did not legally have to follow any particular evaluation policy absent its own self-imposed procedures. Having adopted a policy, however, the Board is bound to follow it.” Belcher, 474 So.2d at 1068.

The “adoption of policies and procedures known to and relied upon by an employee may, under appropriate facts, give rise to implied contractual terms of employment.” McCord-Baugh v. Birmingham City Bd. of Educ., [Ms. 2991398, Feb. 15, 2002] — So.2d-,-(Ala. Civ.App.2002) (citing Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987); Kohen v. Board of School Comm’rs of Mobile County, 510 So.2d 216 (Ala.1987); and Belcher v. Jefferson County Bd. of Educ., supra). Davis contends that in this case, as in Belcher, Drake State “adopted an evaluation policy” that would create an obligation on the part of Drake State to perform annual evaluations of his work performance. However, after careful consideration, we must agree with Drake State’s argument that the handbook language requiring McAlpine, as the president of Drake State, to develop and implement an evaluation process merely defined one of the McAlpine’s duties as the president of Drake State. That handbook language does not set forth the specifics by which any such evaluation process would be conducted. We cannot agree that the above-quoted language from the faculty and staff handbook constitutes evidence indicating that Drake State had formulated and adopted its own policies and procedures for the evaluation of its faculty and staff. See Belcher, 474 So.2d at 1068. Therefore, Davis has not established the existence of any policy that required his work performance to be evaluated on an annual basis as a prerequisite for Drake State’s authority to terminate his employment as a probationary employee.

OPINION OF SEPTEMBER 20, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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


author: YATES, Presiding Judge.

text:
    DRUMMOND COMPANY, INC. v. Jerry R. KEY.
    2010528.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.
    Certiorari Denied Feb. 21, 2008 Alabama Supreme Court 1020410.

      William Anthony Davis III and Blake D. Andrews of Starnes & Atchison, L.L.P., Birmingham, for appellant.
    Henry C. Wiley, Jr., of King, Harrison & Bryan, Jasper, for appellee.
   YATES, Presiding Judge.

These parties have previously been before this court. See Drummond Co. v. Key, 819 So.2d 57 (Ala.Civ.App.2001) (“Drummond I ”).

Jerry R. Key sued his employer, Drum-mond Company, Inc., on November 21, 1995, seeking to recover workers’ compensation benefits for injuries he sustained to his back in March 1994 and to his right knee in June 1995, as the result of accidents that occurred during the course of his employment with Drummond. Following an ore tenus proceeding, the trial court, on November 1, 2000, entered an order finding that Key had suffered injuries to his back and knee during the course of his employment with Drummond and had sustained a permanent partial disability of 35% as a result of his injuries. The trial court awarded benefits accordingly.

Drummond appealed the trial court’s judgment to this court, arguing, among other things, that the trial court had erred in faffing to treat Key’s knee injury as an injury to a scheduled member. This court stated: “[We] cannot discern from the trial court’s order whether it treated the knee injury as an injury to a scheduled member or whether it concluded that the knee injury fell outside the scope of the scheduled member provisions pursuant to Bell [v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968)].” Drummond I, 819 So.2d at 58. This court reversed the trial court’s judgment and remanded the case for the trial court to make a finding as to whether the injury to Key’s knee falls outside the scheduled member provision of § 25-5-57(a)(3)a., Ala.Code 1975. Id.

On remand, the trial court amended its judgment and found that Key’s knee injury extended beyond the knee itself, aggravating his spine and back causing new and additional pain and limitation to his back. The trial court again found that the back injury and the knee injury combined to render Key 35% permanently and partially disabled. Drummond appeals.

This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25-5-81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

Key was 55 years old at the time of the trial. He has a bachelor of science degree in chemistry and biology from the University of North Alabama and a master’s degree in secondary education and administration, also from the University of North Alabama. He was employed as a teacher and coach from 1969 until 1975.

Key was employed by Alabama ByProducts Corporation as a coal miner in 1975 and promoted to a management position in 1978. Key was employed by Drummond as a supervisor at its Shoal Creek mine at the time of the injuries. The parties stipulated that Key earned $1,069.77 per week. Key testified that in March 1994 he was walking down a steep incline in the Shoal Creek mine; the incline was wet and muddy and he slipped and fell. He began experiencing pain in his lower back and eventually sought treatment from Dr. Robert Q. Craddock, a neurosurgeon.

Key was first seen by Dr. Craddock on April 12, 1994, complaining of severe back and right leg pain with numbness in his right foot. Dr. Craddock performed tests and diagnosed Key with a herniated disc at the L4-L5 level on the right side. Dr. Craddock performed surgery on Key on April 21, 1994, to repair the herniated disc. Dr. Craddock determined that Key had reached maximum medical improvement on June 28, 1994, and he released him to return to his full and usual duties with Drummond. Dr. Craddock testified that he did not assign Key any restrictions or limitations and did not prescribe him any pain medication. He stated that Key had no real complaints at that time and that he was normal neurologically. Dr. Craddock assigned Key a permanent partial physical impairment rating of 10% because of the injury and subsequent surgery.

Key returned to his normal duties as a supervisor with Drummond, earning the same salary as he did before he sustained the back injury. Key testified that in June 1995 he was again walking down a steep incline in the Shoal Creek mine that was wet and muddy. .He stated that as he was walking he slipped and fell and twisted his right knee. Key testified that he experienced immediate pain in his knee. He sought treatment for his knee injury from Dr. Erich W. Wouters on June 9, 1995. Dr. Wouters noted that Key had tenderness, swelling, and a limited range of motion in his knee. Dr. Wouters ultimately performed arthroscopic surgery on Key’s knee on July 6, 1995. Dr. Wouters testified that Key had primarily arthritic problems with his knee as well as several pieces of loose cartilage in the knee and that the surgery was, in effect, a “kind of tune up, ... cleaning out the arthritic damage.” Dr. Wouters determined that on July 28, 1995, Key had reached maximum medical improvement and returned him to work at full duties with no limitations or restrictions. Dr. Wouters noted at the time that Key had a painless range of motion in the knee with no complaints. Dr. Wouters assigned Key a 0% permanent partial physical impairment rating. Key has not returned to Dr. Wouters for further treatment of the knee.

Following his release from Dr. Wouters, Key returned to his normal duties at Drummond as a supervisor, earning the same salary he earned before the knee injury. Key was terminated from his employment with Drummond on August 15, 1995, for reasons unrelated to his work-related injuries.

Approximately two weeks after being terminated by Drummond, Key was employed by a Wal-Mart store in its automotive department earning approximately $6.00 per hour. During the application process, Key represented that he could lift, move objects, bend, twist, squat, and reach to work above the shoulders and below the waist with no limitations. Key worked at Wal-Mart for approximately eight months.

Key was next employed by Gold Kist Hatchery on June 10, 1996, earning approximately $6.35 per hour. During the application process, Key represented that he had no restrictions or problems with regard to his back, knees, and legs; bending; climbing; sitting; squatting; standing; or walking. Key further represented that he had no condition requiring work restrictions or special assignments. While employed at Gold Kist, Key worked in the position of “transfer operator.” His job duties required him to lift over 100 trays of eggs per day; each tray weighed 25 to 30 pounds. The range of the lifting motion was from the waist and above and required some bending and stooping. Key was employed with Gold Kist for approximately two years.

In August 1996, while he was employed with Gold Kist and one year after being terminated by Drummond, Key returned to Dr. Craddock complaining of neck, back, and leg pain. Diagnostic testing revealed a small herniated disc at the L3-L4 level. Dr. Craddock determined that this was a “new” injury and treated Key conservatively with cortisone epidural injections. Dr. Craddock testified that at that time he imposed on Key a 30-pound lifting restriction and restrictions from repetitive bending or stooping because of the new disc injury.

Key was next employed by the Alabama Thrift Store in June 1998. During the application process, Key passed a physical examination and was cleared to work without restrictions. He was employed as a loading dock supervisor, production supervisor, and assistant store manager. He earned approximately $560 biweekly. Key voluntarily left his employment with the thrift store in October 1999 to become a minister. He testified that he earned $375 per week as a minister.

Key testified that after he returned to work at Drummond following the back surgery in 1994, he could perform his job duties but that he “had to be careful.” He stated that he noticed that his back was weaker and that he could not “do the walking like [he] used to.” He also stated that his legs were “weaker.” Key testified that he had lost some strength in his right leg after the knee surgery in 1995. He stated that he experiences pain in the leg when he puts stress and pressure on it, and that he has trouble walking or climbing inclines and steps.

Key testified that he experiences pain in his back everyday and that he takes pain medication. He stated that he experiences problems getting in and out of his vehicle and that he cannot ride in a vehicle for more than 45 minutes at a time. He testified that he has limited stooping and squatting ability. Key stated that before the injuries he would play golf and fish but that after the injuries he does so less frequently because of the pain. He further stated that he is limited in the amount of yard work that he is able to do. When asked why he did not return to teaching, Key stated that he considered it, but that it would take him one year to become recertified to teach and that he decided not to because of the expense involved. He further testified that he could not return to heavy physical work.

On cross-examination, Key testified that after his back surgery in 1994, he was “verbally told” by Dr. Craddock that he had a lifting restriction of 15 to 20 pounds. He stated that Dr. Wouters returned him to work after the knee surgery with no restrictions.

Drummond argues on appeal that the trial court erred in determining that Key’s injuries had resulted in a 35% permanent partial disability, because, it says, Key returned to his employment after each injury and earned the same salary; therefore, it argues, he suffered no loss of earning capacity. It is the duty of the trial court to review all of the evidence, including its own observations, in determining the extent of the disability. M.C. Dixon Lumber Co. v. Phillips, 642 So.2d 477 (Ala.Civ.App.1994). The determination regarding the extent of disability is a matter within the discretion of the trial court and will not be disturbed on appeal if the evidence supports that determination. Id.

Section 25-5-57(a)(3)i., Ala.Code 1975, governs the award of permanent partial disability benefits when an employee returns to work at a wage equal to or greater than the wage he was earning at the time of the injury. Section 25-5-57(a)(3)i., Ala.Code 1975, provides in part:

“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.”

The measure of compensation for a permanent partial disability is loss of earning capacity. Brown v. Champion Int’l Corp., 693 So.2d 24 (Ala.Civ.App.1996). When an employee’s postinjury wages are the same or higher than his preinjury wages, a presumption arises that no loss of earning capacity has occurred. Id. This court has stated:

“ ‘ “[T]he presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. Unreliability of post-injury earnings may be due to a number of things; increase in general wage levels since the time of the accident; claimant’s own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.” ’
“Jim Walter Resources, Inc. v. Hall, 516 So.2d 690, 691 (Ala.Civ.App.l987)(quot-ing 2 A. Larson, The Law of Workmen’s Compensation § 57.21(d)(1987)).”

Brown, 693 So.2d at 27.

After carefully reviewing the record, we conclude that the trial court abused its discretion in determining that Key had suffered a 35% permanent partial disability as a result of his work-related injuries. After Key’s back surgery in 1994, he returned to his normal duties with Drum-mond, earning the same wage he earned before his injury. Although Key stated that Dr. Craddock “verbally told” him that he had a lifting restriction of 15 to 20 pounds, Dr. Craddock testified that he returned Key to work at full duty with no limitations or restrictions and that he prescribed no pain medication. Dr. Craddock stated that on the day he released Key to return to work, Key had no complaints and was normal neurologically. Dr. Craddock did assign Key a medical impairment rating of 10%. Key did not return to Dr. Craddock with any further complaints regarding his back that were related to the 1994 injury and surgery. Key was able to perform all the duties required of his job when he returned to his employment at Drummond. He stated only that his back and legs were weaker; that he could not do the same amount of walking; and that he had to be careful while working.

After Key’s knee injury and surgery in 1995, he again returned to his normal duties at Drummond earning the same wage he earned before his injury. Dr. Wouters released Key to full duty with no limitations or restrictions and assigned him a 0% impairment rating. The knee injury and surgery did not prevent Key from performing his job duties; however, he did state that he had lost some leg strength after the surgery; that he experiences pain when he puts stress on the knee; and that he has trouble climbing inclines and stairs. He did not return to Dr. Wouters with complaints regarding his knee.

After Key was terminated from his employment with Drummond he was able to obtain other employment within a matter of weeks. His wages earned from this and subsequent jobs were significantly less than the wage earned at Drummond; however, nothing in the record indicates that Key’s reduction in earnings was caused by the work-related injuries suffered while he was employed at Drummond. In fact, Key represented on different occasions that he could work without any limitations or restrictions regarding his knee and back and that he was not limited with regard to lifting, bending, stooping, twisting, and squatting. Accordingly, we conclude that the trial court’s determination that Key had suffered a 35% permanent partial disability is not supported by the evidence.

Drummond also argues that the trial court abused its discretion in treating the knee injury as an injury to the body as a whole rather than as an injury to a scheduled member. Our supreme court, in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), set forth the test for determining when an injury should be treated as an injury to the body as a whole rather than as an injury to a scheduled member. Recently, our supreme court, in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), overruled Bell and its progeny, and restated the test for determining whether an injury to a scheduled member should be treated as an injury to the body as a whole. In overruling Bell, our supreme court stated:

“[T]he Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member. However, the Court of Civil Appeals has substantially expanded the Bell test to include, as effects that will take the injury outside the schedule: (1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities. It also appears that the Court of Civil Appeals has considered the worker’s ability to find future employment as a factor in deciding whether an injury to a scheduled member should be compensated outside the schedule.”

Ex parte Drummond, 837 So.2d at 834 (footnotes omitted). The supreme court restated the test for determining whether an injury to a scheduled member should be treated as unscheduled as follows: “ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.”’ 837 So.2d, at 833, quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001).

Dr. Wouters described the surgery he performed on Key’s knee as a “tune-up,” and he returned Key to work at full duty with no limitations or restrictions. The evidence indicates that Key was able to perform his duties at Drummond and at his subsequent places of employment without complaint and without seeking further treatment from Dr. Wouters for his knee. Key testified that he experiences pain when he places stress on his knee and that he has trouble climbing steps and inclines. This, however, is insufficient to take the knee outside of the schedule and treat it as an injury to the body as a whole under Ex parte Drummond Co. Accordingly, we conclude that the trial court erred in determining that Key’s knee injury was an injury to the body as a whole rather than as an injury to a schedule member.

The judgment of the trial court is reversed and the case is remanded for the court to enter an order consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . Alabama By-Products was later purchased by Drummond.


author: CRAWLEY, Judge.

text:
    BOARD OF CONTROL OF THE EMPLOYEES’ RETIREMENT SYSTEM OF ALABAMA v. James Lamar HADDEN.
    2010259.
    Court of Civil Appeals of Alabama.
    Dec. 6, 2002.
    Certiorari Denied Feb. 28, 2003 Alabama Supreme Court 1020494.

      William T. Stephens and William F. Kelley, Jr., gen. counsel, Retirement Systems of Alabama, for appellant.
    Ernest H. Hornsby of Farmer, Price, Hornsby & Weatherford, L.L.P., Dothan; and Cathey E. Berardi of Hebson, Liddon & Slate, Birmingham, for appellee.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued September 13, 2002, is withdrawn, and the following is substituted therefor.

James Lamar Hadden served as sheriff of Houston County from January 1983 to January 1995. As sheriff, Hadden was not entitled to participate in the Employees’ Retirement System of Alabama (“ERS”); instead, he made payments to the county’s supernumerary plan. See Ala.Code 1975, § 36-22-61. Houston County has since begun participating in ERS. Before he was sheriff, Hadden was an agent of the Alabama Alcoholic Beverage Control Board (“ABC”) from November 1961 to April 1982. During that time, Hadden made contributions to the ERS. When he retired from that position in 1982, Hadden began to draw retirement benefits from the ERS. Hadden had also previously served as a deputy sheriff for three years and nine months; during this time, Hadden did not make contributions to the ERS.

In January 1995, Hadden requested appointment as a supernumerary sheriff pursuant to Ala.Code 1975, § 36-22-60, et seq., which permits a sheriff having 12 years of experience as a sheriff and a total of 16 years of law-enforcement experience to be appointed as a supernumerary sheriff and participate in the supernumerary plan. Hadden had served 12 years as sheriff, as required by the statute. He also had three years and nine months of credit as a deputy sheriff. However, to qualify for supernumerary status, Hadden had to purchase prior service credit from his service as an ABC agent; that service credit had been used to calculate his ERS retirement benefit.

When Hadden retired from his position as an ABC agent, he drew retirement benefits from the ERS. After he was elected as sheriff, he continued, for a time, to draw retirement benefits. In May 1985, the board of control of ERS (the board and ERS are referred to hereinafter collectively as “ERS”) suspended Hadden’s benefits on the basis that he was elected to the sheriffs office. Hadden requested the ERS to reconsider the suspension of benefits, and the ERS reinstated Hadden’s benefits on the basis of an administrative exception to Ala.Code 1975, § 36-27-16(e)(1), which required the suspension of retirement benefits if a retiree returned to active service.

In 1994, the Alabama Supreme Court decided Ex parte Employees’ Retirement System of Alabama, 644 So.2d 943 (Ala.1994), which involved the issue whether the ERS could suspend the retirement benefits of a retired state trooper who desired to become an investigator for a municipal police department. The retiree “would not have acquired any additional retirement benefits” by virtue of his employment. Ex parte Employees’ Ret. Sys. of Alabama, 644 So.2d at 945. The court considered the meaning of “restored to active service” and concluded that it encompassed employment by any employer that participates in the ERS, even if the retiree would not accrue additional retirement benefits by virtue of the employment. Id. In doing so, the court disapproved of the ERS’s administrative regulation permitting the payment of retirement benefits to elected officials on the basis that such individuals were not considered to have returned to active service. Id. at 947. The administrative regulation, the court concluded, was an unlawful attempt to legislate. Id.

After the court decided Ex parte Employees’ Retirement System of Alabama, ERS and the elected officials directly affected by the abrogation of the administrative regulation sought the aid of the Legislature, and the administrative rule, in large part, found embodiment in Ala.Code 1975, § 36-27-8.2. Section 36-27-8.2(b), as originally enacted in 1995, read as follows:

“(b) Any person who has retired from the Employees’ Retirement System may serve for compensation in an elected public office with the state, a county, or an incorporated municipality if the public office is not covered by the Employees’ Retirement System.”

Because some elected officials chose, after the Supreme Court’s decision in Ex parte Employees’ Retirement System of Alabama, either to serve without pay or to have their retirement benefits suspended, the Legislature enacted a provision allowing repayment of those moneys. See Ala. Code 1975, 36-27-8.2(e). That section, as enacted in 1995, read as follows:

“(e) Any person retired from the Employees’ Retirement System who is receiving a retirement allowance or optional benefit and who, in order to continue receiving his or her retirement allowance or optional benefit, waived his or her salary as an elected official pursuant to Section 36-6-10, on or after October 24, 1994, and continued service in the elected office without compensation, may apply for and shall be reimbursed the total amount of the waived compensation and his or her salary shall be restored to the level of his or her salary prior to the waiver. Any person retired from the Employees’ Retirement System who is receiving a retirement allowance or optional benefit and who, in order to continue receiving compensation for services as an elected or appointed official of the state, a county, or an incorporated municipality, suspended his or her retirement allowance or optional benefit on or after October 24, 1994, may apply for and shall be reimbursed the total amount of the suspended retirement allowance or optional benefit.”

§ 36-27-8.2(e).

By the time § 36-27-8.2 took effect in June 1995, Hadden had retired from his position as sheriff and had been appointed supernumerary sheriff. In April 1995, ERS suspended Hadden’s benefits because he was now serving as an appointed official. Based on ERS’s interpretation of the statutes establishing the office of supernumerary sheriff and of § 36-27-8.2, Hadden did not qualify for the payment of retirement benefits as an elected official and he had been restored to active service as an appointed official.

Hadden sued ERS in October 1999, arguing that his retirement benefits had been unlawfully suspended. Hadden argued that he was entitled, pursuant to § 36-27-8.2(e) (now § 36-27-8.2(d)), to have his retirement benefits restored because (1) he had been receiving retirement benefits since July 1985, (2) his retirement benefits were suspended after October 24, 1994, and (3) he had been receiving compensation for his services as an “appointed official of the state.”

In response, ERS argued that Hadden’s retirement benefits had been properly suspended because Ala.Code 1975, § 36-27-16(e)(1) (now § 36-27-16(e)), required the suspension of the retirement benefits of a retiree “restored to active service.” ERS pointed out that while § 36-27-8.2(b) allows elected officials to receive retirement benefits while serving in an elective office, the statute did not provide such an exception for appointed officials. The provisions of § 36-27~8.2(e) (now § 36-27-8.2(d)), according to ERS, did not apply to Hadden because he was not currently receiving retirement benefits based on his restoration to active service. ERS also explained that the purpose of subsection (e) was to repay retirement benefits suspended during the period after Ex parte Employees’ Retirement System of Alabama was decided to the effective date of the statute. In addition, ERS argued that the supernumerary sheriff statute required Hadden to elect coverage under either the supernumerary plan or another retirement plan such as ERS. See Ala.Code 1975, § 36-22-64.

The trial court heard arguments and received several exhibits. In its judgment, the trial court found that ERS had paid Hadden’s retirement benefits while Had-den served as sheriff and concluded that ERS was estopped from suspending Had-den’s retirement benefits on the basis of his appointment as a supernumerary sheriff. The court stated that it could “[fjind no rational basis for [ERS] to previously rule that [Hadden could] draw his state retirement benefits and his sheriffs salary, but now deny him his state retirement benefits because he is drawing his supernumerary sheriffs pay.” The court also concluded that § 36-27-8.2(e) applied to Hadden; thus, ERS was required to repay to Hadden his suspended retirement benefits.

ERS appealed the judgment to the Alabama Supreme Court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6). Because the trial court heard no oral testimony and instead decided the issue on arguments of counsel, stipulated exhibits, and post-trial briefs submitted by the parties, no presumption of correctness attaches to the trial court’s judgment. See Whitehead v. Hester, 512 So.2d 1297 (Ala.1987); see also Perdue v. Roberts, 294 Ala. 194, 197, 314 So.2d 280, 282 (1975) (stating that' “the facts being virtually without dispute, we will now proceed to apply the law to the facts”). Based on our review of the law and its application to the facts presented, we reverse the judgment of the trial court.

The trial court based its judgment primarily on the principle of estoppel, essentially holding that because ERS had paid Hadden retirement benefits while he was an elected sheriff, it could not suspend his retirement benefits once he was appointed supernumerary sheriff. However, our supreme court has stated that the principle of “estoppel is to be applied against a governmental entity only with extreme caution or under exceptional circumstances.” State Highway Dep’t v. Headrick Outdoor Adver., Inc., 594 So.2d 1202, 1204 (Ala.1992). “ ‘ “The doctrine of equitable estoppel is not a bar to the correction ... of a mistake of law.” ’ ” Headrick Outdoor Adver., 594 So.2d at 1205 (quoting First Nat’l Bank of Montgomery v. United States, 176 F.Supp. 768, 772 (M.D.Ala.1959) (quoting in turn Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 182, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957))) (emphasis omitted). Our supreme court has stated that a governmental entity cannot be “ ‘estopped by doing that which [it has] no authority to do.’ ” Headrick Outdoor Adver., 594 So.2d at 1205 (quoting Ex parte Fields, 432 So.2d 1290, 1293 (Ala.1983)). The court further explained that the principle of estoppel cannot be utilized to authorize a government entity to do something that it does not have the authority to do. Id.

Indisputably, ERS paid Hadden retirement benefits while he served as an elected official, first pursuant to an administrative regulation, then pursuant to § 36-27-8.2(b). Even though the original payments, made pursuant to an administrative regulation that the Alabama Supreme Court later declared an unlawful attempt to legislate, were “illegal,” ERS could not be estopped from suspending Hadden’s payments based on those prior payments. See Headrick Outdoor Adver., 594 So.2d at 1205. Any payments made to Hadden pursuant to § 36-27-8.2(b) while he was an elected sheriff were properly made and cannot have served as a basis for the application of the principle of estoppel. The trial court’s judgment estops ERS from complying with the law, which is not a permissible use of the doctrine. Id.

The trial court, as an alternative basis for its judgment, concluded that § 36-27-8.2(e) applied to Hadden and that it required ERS to reimburse Hadden for the retirement payments it had suspended between April 1995 and the present. Our reading of the statute compels us to con-elude otherwise. Although the statute does require ERS to reimburse suspended retirement benefits, it requires ERS to repay benefits only to a retiree who is presently receiving retirement benefits, or in other words, a retiree who is presently qualified to receive retirement benefits. Hadden did have his retirement benefits suspended; however, under the current statute, he is not presently receiving benefits, nor is he presently qualified to receive benefits. He has “returned to active service” by being employed by an employer participating in ERS and, pursuant to § 26 — 27—16(e)(1), his benefits were suspended. Hadden is an appointed official, not an elected one, so he does not qualify to continue receiving benefits pursuant to § 36-27-8.2(b). Accordingly, we conclude that § 36-27-8.2(e) does not support the trial court’s judgment awarding Hadden reimbursement of his suspended retirement allowance.

ERS raises other grounds for the reversal of the trial court’s judgment. Because we have determined that the statutes discussed above are dispositive of the issue, we need not address whether Hadden was required to elect between the supernumerary plan or the ERS pursuant to Ala.Code 1975, § 36-22-64, or whether Hadden was entitled to credit in both ERS and the supernumerary plan for the same period of service.

OPINION OF SEPTEMBER 13, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . Effective October 1, 1998, § 36-27-16 was amended and subdivision (e)(1) was redesig-nated subsection (e). The amendment made a few other changes that do not impact its application here.

        . Section 36-27-8.2 was amended effective May 23, 2000, by Act No. 2000-713, Ala. Acts 2000. The amendment made substantial additions to subsection (b).

      .Before its amendment in May 2000 (see note 2), the subsection was designated subsection (e); the 2000 amendment made significant changes to subsection (a) of the statute, deleted subsection (c), and redesignated subsections (d) and (e) as (c) and (d). The language quoted here is now found in § 36-27-8.2(d).

      . The law in Alabama is clear that a supernumerary plan is not a retirement plan. See James v. Thompson, 392 So.2d 1178, 1180 (Ala.1981); see also Johnson v. Board of Control of the Employees’ Ret. Sys. of Alabama, 740 So.2d 999, 1003 (Ala.1999).

      . Section 36-22-64 reads:
      "If any sheriff is eligible for retirement benefits under any other county, state or municipal retirement plan or act, then, in that event, he shall elect the plan or act in which he desires to participate and shall so notify the proper authority within 60 days after he becomes eligible for any payments under this article. It is further provided, however, that such election shall not affect any such person's entitlement to benefits under the provisions of Article 4 of Chapter 21 of this title.”


author: PER CURIAM. COBB, Judge

text:
    Antonio Dejuan SMITH v. STATE of Alabama.
    CR-00-0380.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 2, 2001.
    Certiorari Denied Feb. 14, 2003 Alabama Supreme Court 1010375.
    J. Derek Drennan, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur; COBB, J., concurs in part and dissents in part, with opinion, in which SHAW, J., joins.

COBB, Judge

(concurring in part and dissenting in part).

I concur in affirming the appellant’s conviction; however, I would reverse his sentence and remand the case for resen-tencing in accordance with Judge Shaw’s special writing in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, 846 So.2d at 398. I believe that these sentence enhancements must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to do so is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.


author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Anthony Ray KEITH v. STATE.
    CR-00-0286.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 2, 2001.
    Certiorari Denied Feb. 14, 2003 Alabama Supreme Court 1010373.
    James C. Mclnturff, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB and WISE, JJ„ concur. COBB, J., dissents, with opinion, which SHAW, J., joins.

COBB, Judge,

dissenting.

I dissent based on Judge Shaw’s special writing in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001). As to those points of law on which I disagree with Judge Shaw, see my special writing in Poole, supra. The trial court erred when it permitted the State to amend the indictment, because the amendment charged a different offense. Rule 13.5(a), Ala.R.Crim.P. The judgment in this cause should be reversed, and the trial court should strike the §§ 13A-12-250 and -270 sentence enhancements which were added by the improper amendment. Keith should receive only the 20-year sentence imposed for the lesser-included offense of distribution. Accordingly, I dissent.


author: COBB, Judge. WISE, Judge

text:
    Clarence J. TOLES v. STATE of Alabama.
    CR-00-2607.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.
    Certiorari Denied Feb. 7, 2003 Alabama Supreme Court 1011854.

      Robert M. Beno, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On August 10, 2001, Clarence J. Toles was convicted of reckless manslaughter, a violation of § 13A-6-3(a)(l), Ala.Code 1975. On September 10, 2001, the trial court sentenced Toles, as a habitual felony-offender, to serve 15 years in prison. See § 13A-5-9(a)(2), Ala.Code 1975. The trial court split the sentence, ordered Toles to serve three years, and suspended the remainder of the sentence. This appeal followed.

At trial, Toles presented three witnesses to testify to his good character. After the presentation of all of the evidence, and at the conclusion of the jury charge, Toles’s defense counsel attempted to object to the omission of some of his requested jury charges, in particular requested charges 2 and 3, which read:

“[Requested charge 2:] I charge you that proof of good character may be sufficient to authorize you to find the Defendant not guilty when taken in connection with all of the other testimony. Beavers v. State, 32 Ala.App. 223, 23 So.2d 602 (1945).”
“[Requested charge 3]: I charge you that proof of good character, when taken in connection with all of the evidence in the case, may be sufficient to create a reasonable doubt of guilt of the Defendant. Taylor v. State, 149 Ala. 32, 42 So. 996 (1907).”

(C.R.37-38.) Toles’s defense counsel could not complete his objection because the trial court discontinued the discussion in order to retire the jury.

After the jury had retired, the trial court proceeded to hear defense counsel’s objections. At that point, Toles objected to the trial court’s refusal to charge the jury on his requested instructions 2 and 3:

“[Defense counsel]: Judge, we would take exception to the court not charging the jury on defendant’s requested Charge No. 1, accidental—
“THE COURT: Are those charges you requested?
“[Defense counsel]: Yes.
“THE COURT: Then I’m — I should have told you, that I’m denying those and — but have I misstated something or—
“[Defense counsel]: Oh, no, just these, Your Honor.
“THE COURT: According to — okay. Now, [defense counsel]—
“[Defense counsel]: Judge—
“THE COURT: I’m going to mark these as being filed in open court. And you object to the Court not giving Jury Charge No. 1?
“[Defense counsel]: No. 1 that relates to — if the jury finds—
“THE COURT: Well, it’s — and I’m refusing it. I’m refusing two.
“[Defense counsel]: Two and three on the character?
“THE COURT: And I’m refusing that and your objection is noted and overruled. And I think the rest of them—
“[Defense counsel]: Yeah, those were the — those first three.”

(R. 787-88.)

“ ‘An objection ... should fairly and specifically point out the particular grounds on which an alleged error occurred in order to inform the trial judge of the legal basis of the objection, thereby affording the trial judge an opportunity to reevaluate his or her initial ruling in light of the grounds alleged and to change it, if deemed necessary.’ ”

Covington v. State, 620 So.2d 122, 127 (Ala.Crim.App.1993) (quoting Ex parte Webb, 586 So.2d 954, 957 (Ala.1991)). This principle of appellate procedure certainly applies to alleged errors in charging the jury. See Rule 21.3, Ala. R.Crim. P. However, this Court has consistently reviewed issues, though in the technical sense not preserved by a proper objection at trial, where “[i]t is clear that the trial court understood the basis for the objection.” Covington v. State, 620 So.2d at 127 (citing Ex parte McCall, 594 So.2d 628, 631 (Ala.1991); Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991)); Felder v. State, 593 So.2d 121, 122-23 (Ala.Crim.App.1991); and Marshall v. State, 570 So.2d 832, 834 (Ala.Crim.App.1990).

We find support for the proposition that Toles preserved his jury charge argument in Ex parte Weaver, 763 So.2d 982 (Ala.1999). In Weaver, at the close of the jury charge, but before the jury retired to deliberate, the following exchange took place:

‘“[Defense counsel]: What about on his right to remain silent and not testify and to have that not used against him? You didn’t give any instruction on that.
“‘THE COURT: Well, it is not mandatory to give anything on that. It hasn’t been raised as an issue.
“ ‘[Defense counsel]: Well, he didn’t testify. I don’t think that—
“‘THE COURT: Well, you went through that in voir dire. It is too late now.
“ ‘[Defense counsel]: I don’t think it’s too late. We object to it.
“ ‘THE COURT: Okay. Anything further?
“ ‘[Prosecutor]: The State is satisfied.’
“(R. 326-27.)”

Weaver, 763 So.2d at 984. The State argued on appeal that Weaver’s claim that the trial court erred in refusing to give the requested jury instruction was not preserved for appellate review because, it argued, the objection was not sufficiently specific. The Alabama Supreme Court stated that Weaver “did not make a proper objection to the refusal of the requested charge.” Weaver, 763 So.2d at 986. However, the Alabama Supreme Court, quoting Felder, stated: “ ‘Although the “magic words” were never employed and although defense counsel should have been specific in stating the grounds of his objection, it is apparent that both defense counsel and the trial court understood [the objection to the jury charge].’ ” Weaver, 763 So.2d at 985 (quoting Felder v. State, 593 So.2d 121, 122-23 (Ala.Crim.App.1991)).

The Alabama Supreme Court further noted that, unlike Felder, there had been no charge conference in Weaver’s case, so the requested charges were not discussed prior to the jury charge. In this case, Toles, like Weaver, did not have the benefit of a charge conference and therefore “objected after the court had already given its instructions to the jury.” Weaver, 763 So.2d at 986.

Additionally, in the present case, there is further proof that Toles preserved his jury charge argument because the trial court terminated the discussion with the statement: “I’m refusing [those requested charges] and your objection is noted and overruled.” (R. 788.) (Emphasis added.) The trial court expressed an understanding of the appellant’s objection when it overruled the objection by stating that the objection was “noted.” The trial court also made it clear that no further discussion was necessary, expected, or allowed. Therefore, from the discourse between the trial court and defense counsel, it is clear that the trial court understood the appellant’s objection to its refusal to give the requested charges, and “it would be ‘unreasonable and both realistically and practically indefensible to hold that the appellant waived this issue,’ ” Weaver, 768 So.2d at 986 (quoting Felder, 593 So.2d at 123). Thus, Toles has preserved his arguments regarding requested jury instructions 2 and 3.

“A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case.” Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986). “The trial court’s refusal to give written requested charges does not constitute error when the charges are covered in the trial court’s oral charge, are confusing or misleading, are inapplicable or abstract, or are an incorrect statement of the applicable law.” Stout v. State, 547 So.2d 894, 898-99 (Ala.Crim.App.1988).

A jury instruction similar to requested jury charge 2 has been held to be misleading in Beavers v. State, 32 Ala.App. 223, 23 So.2d 602 (1945). The Court of Appeals had held that the trial court’s refusal to give the following jury instruction amounted to reversible error: “ ‘The court charges the jury that proof of good character, if proved to your reasonable satisfaction, may be sufficient to authorize you to acquit the defendant when taken in connection with all the other testimony.’ ” Beavers, 32 Ala.App. at 224, 23 So.2d 602, 603 (Ala.App.), rev’d, 247 Ala. 181, 23 So.2d 604 (1945). However, the Alabama Supreme Court reversed the Court of Appeals and upheld the trial court’s refusal to give the charge based on the fact that such charges are misleading and tend to confuse the jury. Beavers v. State, 247 Ala. 181, 23 So.2d 604 (1945). We hold similarly in this case. The trial court’s refusal to give that charge was correct.

However, requested jury charge 3 is a correct statement of the law, is not misleading or confusing, and is not covered elsewhere in the trial court’s charge to the jury. Requested jury charge 3 tracks the language of the acceptable instruction in Taylor v. State, 149 Ala. 32, 33, 42 So. 996, 996 (1907), which read, “ ‘The court charges the jury that the defendant may offer proof of his good character, and that such proof, taken in connection with all the evidence in the case, may be sufficient to create a reasonable doubt of the guilt of the defendant.’ ” In Taylor, the Alabama Supreme Court held that the failure to give this jury instruction constituted reversible error. See also Kilpatrick v. State, 37 Ala.App. 165, 166, 66 So.2d 441, 442 (1953) (holding that the failure to give the following jury instruction was revers ible error: “ ‘The Court charges the jury that good character itself may, in connection with all the evidence, generate a reasonable doubt and entitle the defendant to an acquittal, even though without such proof of good character you would convict.’”). Likewise, in this case, the trial court’s failure to give requested jury charge 3 constitutes reversible error.

For the reasons stated above, the judgment of the trial court is hereby reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, PH., and SHAW, J., concur. BASCHAB, J., dissents, without opinion. WISE, J., dissents, with opinion.

WISE, Judge

(dissenting).

I respectfully dissent from the majority opinion reversing the appellant’s conviction based on its conclusion that the trial court’s refusal to give requested jury charge 3 was error. I disagree with the majority’s conclusion that this matter was preserved for appellate review. In my opinion, the appellant’s objection was neither timely nor sufficiently specific to comply with the requirements of Rule 21.3, Ala.R.Crim.P. Because counsel’s objection to the court’s oral charge was not completed and ruled upon until after the jury had already retired to deliberate, the facts of this case are distinguishable from those in Ex parte Weaver, 763 So.2d 982 (Ala.1999), the case relied upon by the majority. Therefore, I must dissent.