text:
    MILLER AND MILLER CONSTRUCTION COMPANY, INC. v. Gary Wayne MADEWELL.
    2020090.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      David M. Wilson of Wilson & Berryhill, P.C., Birmingham, for appellant.
    J. Barton Warren, Huntsville, for appel-lee.
   PITTMAN, Judge.

This is the fourth appeal arising out of a dispute between an employee, Gary Wayne Madewell, and his employer, Miller and Miller Construction Company, Inc., concerning the employer’s claim to subrogation as to funds recovered by the employee pursuant to a $400,000 settlement of a separate third-party tort action. For a more thorough description of the pertinent procedural history leading to the judgment of the Madison Circuit Court currently under review, we refer the reader to the opinions issued by this court and the Alabama Supreme Court in the three previous appeals. Miller & Miller Constr. Co. v. Madewell, 736 So.2d 1098 (Ala.Civ.App.1998) (per Yates, J., with two judges concurring in the result), rev’d, Ex parte Miller & Miller Constr. Co., 736 So.2d 1104 (Ala.1999) (“Miller I”); Miller & Miller Constr. Co. v. Madewell, 766 So.2d 855 (Ala.Civ.App.2000) (“Miller II ”); and Miller & Miller Constr. Co. v. Madewell, 829 So.2d 778 (Ala.Civ.App.2002) (“Miller III”) (per Pittman, J., with one judge concurring and two judges concurring in the result).

Procedural Abstract

We first briefly summarize the status of this protracted litigation. It has been authoritatively decided by the Alabama Supreme Court that the employer is entitled to be subrogated to that portion of the employee’s third-party recovery that is properly attributable to compensation for both the past and future medical expenses the employer has paid or would be legally required to pay to the employee. Miller I, 736 So.2d at 1105. The employer’s workers’ compensation insurer has undisputedly received reimbursement of $11,924.67 representing past medical expenses. However, the parties continue to dispute the extent to which the employer is entitled to a credit tor future medical benefits. Most recently, in Miller III, this court reversed a judgment that had been entered by the trial court pursuant to our direction in Miller II that the trial court determine the employer’s subrogation rights without regard to whether the employee was “made whole” by the $400,000 settlement he recovered from Kaydon Corporation, an alleged third-party tortfeasor. Although the trial court made certain determinations regarding the components and the value of the employee’s third-party claim, that court did not allow any credit to the employer for payment of medical expenses in the future. We concluded in Miller III that the trial court erred in finding that no portion of the employee’s settlement should be attributed to future medical expenses and in denying the employer’s subrogation claim on that basis; we reversed that judgment and mandated on remand that the trial court, in the words of the main opinion, “reconsider the evidence in the record regarding future medical expenses and apportion a part of the settlement as future medical expenses.” 829 So.2d at 781.

On remand from this court after Miller III, the trial court entered a new judgment on September 26, 2002. That judgment awarded the employer a net future-medical-expenses credit of $3,932.82, a figure that appears to have been obtained through a relatively complex mathematical formula that took into account a number of intermediate findings of fact and conclusions of law that the employer has challenged on appeal. Extrapolating from the trial court’s statement that the employee recovered “only 16% of his actual compensatory damages,” the employer suggests, and the employee does not dispute, that the formula used by the trial court in attempting to discern that portion of the employee’s third-party recovery that is properly attributable to compensation for both the past and future medical expenses the employer has paid or would be legally required to pay to the employee consisted of four steps:

1. The trial court first determined the net third-party recovery that the employee actually received from Kaydon by subtracting (a) the amount previously paid to the employer ($11,924.67) for past medical expenses, and (b) the employee’s total amount of attorney fees and expenses ($138,737.68) from the gross recovery from the third-party settlement ($400,000), resulting in a net third-party recovery of $249,337.65.

2. The trial court divided the net third-party recovery by what it determined to be the employee’s potential third-party damages, $1,581,283.80 — i.e., what the trial court determined the employee could have recovered as damages had the action against Kaydon gone to trial — to obtain the recovery fraction of 16% stated in the judgment. Among those potential damages, according to the trial court, were (a) future lost wages in the amount of $172,493.78; (b) “past” physical pain and suffering in the amount of $250,000; (c) “past” mental anguish in the amount of $250,000; (d) a “permanent injury” item in the amount of $250,000; (e) “future” pain and suffering and mental anguish in the amount of $621,920; and (f) $36,870.12 representing future medical expenses as calculated under paragraph 3 of this procedural abstract.

3. The trial court determined the employee’s gross future-medical-expense credit by multiplying the 16% recovery fraction by the employer’s future medical expenses, which it found to be $36,870.12; that medical-expense figure was obtained by multiplying (a) the amount of medical expenses the trial court found the employee to have incurred during 1997 ($2,048.34) by (b) the number of years (18) that the trial court found the employee could expect to live. The trial court computed the employer’s gross future-medical-expense credit as amounting to $5,899.22.

4.The trial court then imposed an immediate one-third lump-sum attorney fee (i.e., $1,966.40) on that gross future-medical-expense credit, leaving a net future-medical-expense credit of $3,932.82; the trial court ruled that once the employee had incurred future medical expenses equal to that amount as a result of his work-related injury, the employer would resume paying all reasonable and necessary medical expenses resulting from that injury.

Contentions and Standard of Review

On appeal from the trial court’s most recent judgment, the employer, in its brief, does not take issue with the general formula employed by the court, and it concedes that the trial court was empowered to determine the elements of the employee’s past and future damages in order to ascertain the proper amount of the employer’s credit against the employee’s future medical expenses. Rather, the employer challenges a number of values used in the trial court’s calculations used to arrive at the $3,932.82 net future-medical-expense credit set forth in paragraph 4 of our procedural abstract. Specifically, the employer claims that the trial court erred not only in making its determination as to the employee’s future medical expenses, but also in making its determinations regarding the value of the employee’s potential third-party damages and its treatment of the attorney fees and expenses incurred by the employee in the third-party action. We note that the determination of what portion of an employee’s recovery from a third-party tortfeasor is attributable to the employee’s past or future medical expenses involves a mixed question of law and fact. Skilstaf, Inc. v. Williams, [Ms. 2001172, Sept. 20, 2002] — So.2d -, - (Ala.Civ.App.2002).

Legal Analysis

We turn first to the trial court’s determination of the amount of the employee’s future medical expenses as outlined in paragraph 3 of the procedural abstract. As we have discussed, the trial court, in determining that the employee’s future medical expenses would be $36,870.12, utilized what it found to be the employee’s actual medical expenses from 1997 ($2,048.34) and multiplied that figure by 18, a figure representing the trial court’s determination of the employee’s life expectancy. We agree with the employer that the trial court erred in making that determination.

First, as the employer notes, the trial court found in its August 1999 judgment (after Miller I had been decided but before Miller II was decided) that the employee’s life expectancy was 34.7 years “[a]ccording to the mortality tables.” In its judgment on remand from Miller III, the trial court purported to redetermine, based upon evidence previously adduced, that the employee’s life expectancy was actually 18 years “[d]ue to the serious nature and extent of [his] injuries.” The trial court was not, however, free to redetermine the employee’s life expectancy because that issue was definitively resolved by the trial court’s previous judgment that the employee’s life expectancy was 34.7 years, a determination from which neither party sought appellate relief in Miller II. We have held in this very case that such unreviewed findings bind the parties and the trial court in later proceedings. See Miller II, 766 So.2d at 856 (noting that the employee was bound by a provision of original September 1997 judgment finding that he had suffered a 56% loss of earning capacity and holding that on remand the trial court “should exclude any testimony regarding the employee’s [then] current vocational or physical condition”).

Moreover, we agree with the employer that the trial court, in utilizing the employee’s 1997 medical expenses as its benchmark for calculating the employee’s future medical expenses, did not afford proper consideration to the testimony and exhibits adduced by the parties during the August 1999 hearing, a hearing held after the Supreme Court, in Miller I, had instructed the trial court to “conduct a hearing to determine, using equitable principles applicable to subrogation rights, which part of [the employee’s] settlement is attributable to medical expenses.” 736 So.2d at 1105 (footnote omitted). With regard to the evidence presented during the August 1999 hearing concerning the employee’s future medical expenses, the main opinion in Miller III noted:

“Karen Crockett, a registered nurse and the owner of a private rehabilitation facility, performed a medical-needs analysis for the employee. Her analysis indicates that the employee will have a $1,200 to $2,500 annual expense for doctor visits. Dr. Lynn Boyer, a neurologist who is treating the employee, submitted an analysis that the employee will be taking several prescription medications on a long-term basis including pain medication, antidepressants, anti-seizure medication, and other medication for various medical problems resulting from his work-related head injuries. The record indicates that the cost for these medications could exceed $5,000 per year.”

829 So.2d at 781.

Despite our reliance upon the above-described evidence in reversing the trial court’s March 2001 judgment denying a future-medical-expense credit to the employer, the trial court’s most recent judgment flatly states that Dr. Boyer’s deposition transcript contains “no figure requested or assigned for the cost of future medical care”; moreover, the trial court purports to find Crockett’s medical-expense testimony “speculative” and “unreliable” because certain tests, procedures, and physician consultations have not been ordered by a physician or undertaken by the employer. Although we recognize the discretionary role afforded trial courts in crediting or discrediting testimony, the trial court in this case effectively ignored not only the testimony' of Crockett and Dr. Boyer that was central to our reversal in Miller III but also the testimony of the employee himself indicating that he had undergone treatment and a number of the procedures that those medical witnesses had identified as reasonable and necessary with respect to the employee’s future care. Specifically, evidence indicated that those reasonable and necessary treatments and procedures included seeing Dr. Boyer every four to six months, undergoing blood tests on each visit to Dr. Boyer, undergoing electroencephalogram (“EEG”) tests approximately every other visit, and having reported to hospital emergency rooms three times in the year preceding entry of the judgment reviewed in Miller II. In light of that evidence, coupled with the trial court’s error in redetermining the employee’s life expectancy, we readily conclude that the trial court erred in calculating the employee’s future medical expenses (a figure used in paragraph 2(f) and 8 of the procedural abstract, supra).

The employer next contends that the trial court erred in determining several components of the employee’s potential third-party damages outlined in paragraph 2 of the procedural abstract. The employer does not challenge the trial court’s inclusion of the $250,000 figure representing physical pain and suffering (paragraph 2(b)), the' $250,000 figure representing mental anguish (paragraph 2(c)), and the $250,000 figure representing “permanent injury” (paragraph 2(d)) in calculating the potential third-party damages — similar figures appear in the trial court’s March 2001 judgment reviewed in Miller III. However, the employer, noting that the trial court’s March 2001 judgment did not expressly refer to future pain and suffering or future mental anguish, contends that the trial court could not properly assess, on remand after Miller III, an additional $621,920 specifically for “future” pain and suffering and mental anguish (i.e., the figure specified in paragraph 2(e) of the procedural abstract). The employer contends that “the trial court has made this determination in order to artificially inflate the value of [the employee’s] third party claim” in order to “severely reduce the employer’s credit.” Regardless of whether the employer has correctly or incorrectly imputed ulterior motives to the trial court, the trial court’s assessment of an additional $621,920 in “future” damages for pain, suffering, and mental anguish in its judgment on remand from this court after Miller III was decided was procedurally improper.

In its March 2001 judgment that was reviewed in Miller III, the trial court (1) determined that the employee had “presented substantial evidence showing damages for physical pain and suffering” and “set[] compensation for th[at] element of damage[s] at $250,000.00”; (2) determined that the employee had “presented substantial evidence showing damages for mental anguish” and “set[] compensation for mental anguish in the amount of $250,000.00”; and (3) determined that the employee had “presented substantial evidence of permanent injury” and “set[] damages for permanent injuries in the amount of $250,000.00.” Those determinations as to the employee’s damages regarding his claimed physical pain and suffering and his mental anguish did not differentiate between “past” and “future” damages. Rather, those determinations indicate an intent to adjudicate all of the damages the employee would have been entitled to receive from Kaydon as to those elements had the third-party action been prosecuted to a judgment. Those determinations, like the trial court’s life-expectancy determination, were not appealed by any party in Miller III and were left undisturbed by our narrow mandate that the trial court “reconsider the evidence in the record regarding future medical expenses and apportion a part of the settlement as future medical expenses.” 829 So.2d at 781. The trial court therefore erred in reexamining, after Miller III was decided, its previous determinations with respect to the employee’s mental-anguish and pain-and-suffering damages.

However, for the same reason that we conclude that the trial court erred in reexamining its mental-anguish and pain- and-suffering determinations, we conclude that the trial court did not err in carrying forward into its September 2002 judgment its earlier determination of the employee’s lost wages (i.e., the $172,493.78 figure identified in paragraph 2(a) of the procedural abstract). In its March 2001 judgment on remand from Miller II, the trial court expressly relied upon the testimony of Patsy Bramlett, a vocational expert, in determining that, based upon a 56% vocational disability, the employee had suffered a loss of future wages, after reduction to present value, of $172,493.78. While the employer takes issue with the trial court’s calculation of the present value of the employee’s lost wages, that matter was definitively settled by the trial court in its March 2001 judgment. Had the trial court utilized a different figure in its calculations in its September 2002 judgment, it would have gone beyond our mandate in Miller III to reconsider the record evidence regarding future medical expenses and to apportion a part of the settlement as representing future medical expenses.

The employer also contends that the trial court’s method of determining the employee’s net third-party recovery, as described in paragraph 1 of the procedural abstract, was erroneous. The employer contends that the employee’s net third-party recovery should include, rather than exclude, the employee’s attorney fees and expenses. The employer contends that allowing the employee to offset his “collection costs” improperly prevents its subrogation interest from attaching to the entirety of the settlement obtained by the employee.

Again, we must agree with the employer. In 1981, we held that an employer’s right of reimbursement with respect to benefits paid to an employee for an injury that is compensable under our workers’ compensation laws extends to the entire amount of any judgment or settlement paid by a third-party tortfeasor. Fitch v. Insurance Co. of North America, 408 So.2d 1017 (Ala.Civ.App.1981). In Fitch, we held that the total amount of attorney fees expended by an employee in obtaining a third-party recovery should not be deducted from the settlement proceeds ultimately obtained but, instead, that the employer in that case was responsible for a pro rata share of those attorney fees (and permissible expenses) based upon the following formula:

(where “X” represents the employer’s pro rata share). That formula was later employed by our Supreme Court in Maryland Casualty Co. v. Tiffin, 537 So.2d 469, 474 (Ala.1988). While the employee contends that Fitch should not apply to an employer’s medical expenditures on behalf of an employee, we recently held to the contrary in Consolidated Construction Co. v. Quinlan, 832 So.2d 648 (Ala.Civ.App.2002).

Wfiiile we agree with the trial court that the employer is responsible for a share of the attorney fees and expenses reasonably incurred by the employee in obtaining the $400,000 settlement in the third-party action against Kaydon, Alabama law does not allow for those fees and expenses to be deducted in toto from the pool of funds to which the employer’s credit for its medical expenditures on behalf of the employee can attach. The trial court, in deducting attorney fees and expenses as described in paragraph 1 of the procedural abstract and then assessing a lump-sum attorney fee directly against the employer’s net future-medical-expense credit as described in paragraph 4 of the procedural abstract, has in effect awarded a double recovery to the employee with respect to those fees and expenses. Although collection costs are to be considered in determining the employer’s credit, the trial court erred in directly reducing the employee’s recovery by the amount of the attorney fees and expenses incurred in the third-party action as described in paragraph 1 of the procedural abstract.

Mandate

The trial court’s September 2002 judgment made the basis of this appeal is erroneous and must be reversed. The judgment we today reverse is, notably, the trial court’s fourth erroneous judgment in this case. With the expectation that a fifth reversal will not be necessary, but with the realization that the trial court has utilized a formula upon which the parties have, at a fundamental level, accepted, we issue the following instructions to guide the trial court on remand:

1. The trial court should first consider the employee’s net third-party recovery from Kaydon, which is properly determined in this case by subtracting the amount paid to the employer ($11,924.67) for past medical expenses out of the gross recovery from Kaydon ($400,000); that leaves a net third-party recovery of $388,075.40. Mathematically expressed, the employee’s net third-party recovery will be

Gross third-party recovery 400,000.00

- Past medical expenses - 11,924.60

Net third-party recovery 388,075.40

2. The trial court should then divide that net third-party recovery in this case by the proper amount of the employee’s potential third-party damages, which should be determined with reference to the following figures taken from the trial court’s March 2001 judgment: (a) $172,493.78 for lost wages, (b) $250,000 for pain and suffering, (c) $250,000 for mental anguish, and (d) $250,000 for “permanent injury.” The trial court may not enlarge or reduce those amounts by adding figures for “future” pain and suffering or mental anguish, as it did in the formula it formerly employed (see paragraph 2(e) of our procedural abstract, supra), but it should add the amount of the employee’s future medical expenses, as properly calculated in paragraph 3 of this mandate, to the March 2001 damages elements listed in this paragraph. After dividing the net third-party recovery by the potential third-party damages, the trial court will obtain a recovery fraction that should well exceed the 16% recovery fraction it previously calculated. Mathematically, the formula for determining the recovery fraction will be:

3. After calculating the recovery fraction, the trial court should determine the employer’s gross future-medical-expense credft by multiplying the recovery fraction by the employee’s future medical expenses related to his work-related injury (i.e., the annual amount of the employee’s medical expenses multiplied by his life expectancy). In determining those future medical expenses, the trial court is to utilize the employee’s life expectancy as determined by that court in its August 1999 judgment, i.e., 34.7 years. On remand, the trial court is also to more accurately determine the annual amount of expenses that the employee will incur from the date' of the Kaydon settlement until his death by giving proper weight to the evidence adduced at the August 23, 1999, hearing concerning the procedures actually undergone by, and the medications actually prescribed to, the employee as of that date. However, evidence adduced by the parties after August 23,1999, pertaining to actual or anticipated expenditures is outside the scope of our mandates in Miller II and Miller III and should not be considered. Mathematically expressed, the formula for determining the gross future-medical-expense credit will be:

(Recovery fraction) x (annual med. exp. x 34.7)

4.After determining the gross future-medical-expense credit identified in paragraph 3 of this mandate, the trial court should reduce that credit by the employer’s pro rata share of the attorney fees and costs reasonably incurred in the employee’s third-party action to obtain the employer’s net future-medical-expense credit. The pro rata share is obtained by applying the formula set forth in Fitch and adopted in Tiffin, i.e., the employer’s pro rata share will bear the same proportion to the total fees and litigation expenses reasonably incurred by the employee ($138,737.68) that the gross future-medical-expense credit obtained by following paragraph 3 of this mandate bears to the total $400,000 settlement obtained from Kaydon. We note that that pro rata share may easily be obtained through “cross-multiplication” of the known components of the proportion adopted in Fitch, a process that is mathematically expressed in the following formula:

Once the trial court has followed the numbered steps indicated in our mandate, that court should then add the $11,924.67 that the employee has already repaid the employer’s workers’ compensation insurance carrier with respect to his past medical expenses to the net future-medical-expense credit and thereby obtain the proper aggregate amount of the employer’s credit as to all medical expenses arising from the employee’s work-related injury in 1994, both those incurred before the Kay-don settlement and those incurred (and to be incurred) after that settlement. The trial court should then declare that the employer shall be responsible for payment of the employee’s reasonable and necessary medical expenses related to his work-related injury only after the total of those expenses accrues to an extent that that aggregate amount is exceeded. In other words, if the total of the employee’s reasonable and necessary medical expenses arising since his 1994 injury should ultimately equal or exceed the amount of the future-medical-expense credit plus the employer’s “past-medical-expense credit” of $11,924.67, the employer shall be responsible for paying for all reasonable and necessary medical treatment that is rendered on or after that point for the employee’s work-related injury.

Conclusion

We reverse the trial court’s judgment and remand the cause for further proceedings in accordance with our mandate.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

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

      . Judge Murdock, in an opinion joined by Judge Crawley, concurred in the result in Miller III, expressing his view that a determination regarding what amount of recovery from a third-party tortfeasor is properly deemed attributable to an employee’s medical expenses is "a mixed question of law and fact.” 829 So.2d at 781. We note that that view has since been endorsed by a majority of this court. See Skilstaf, Inc. v. Williams, [Ms. 2001172, Sept. 20, 2002] — So.2d -(Ala.Civ.App.2002).

      . We note that the credit afforded by § 25-5-11(a) with respect to medical and vocational benefits “expended by the employer on behalf of the employee” applies equally to expenditures before and after a third-party recovery. See Ex parte BE & K Constr. Co., 728 So.2d 621 (Ala.1998). Because no issue has been raised in this appeal by either party concerning the propriety of subtracting the direct payment of past medical expenses to the employer from the employee’s $400,000 recovery in determining the employee’s net third-party recovery, we do not address whether a trial court must, or should, always make a similar allowance where an employer has received payment for past medical expenses directly from an employee's third-party recovery while future-medical-expense credits remain to be determined.

      . We thus need not reach the employer's alternative contention that the trial court's latest life-expectancy determination is unsupported by medical or other evidence that would contradict the standard mortality tables so as to warrant departure from them.

      . As stated in note 2, neither party has raised any issue with respect to the propriety, under Ex parte BE & K Construction Co., 728 So.2d 621 (Ala.1998), of excluding past medical expenses from (i) the employee’s net third-party recovery, and (ii) the employee's potential third-party damages discussed in paragraph 2 of our mandate.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    GOODYEAR TIRE & RUBBER COMPANY v. Cecil LATTA.
    2011158.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      Howard B. Warren and Jason E. Knowles of Turnbach & Warren, P.C., Gadsden, for appellant.
    Leslie R. Barineau, Birmingham, for ap-pellee.
   MURDOCK, Judge.

Goodyear Tire & Rubber Company (“Goodyear”) appeals from a judgment of the Etowah Circuit Court finding that Cecil Latta, a former Goodyear employee, had suffered a 20% permanent partial disability as a result of work-related hearing loss and awarding Latta 300 weeks of workers’ compensation benefits on the basis of the injury. We affirm in part, reverse in part, and remand.

Latta began working for Goodyear in July 1968. He worked in various capacities, spending the last 10 years of his employment with Goodyear working on the mill line at a Goodyear plant. The mills use 300 to 500 horsepower engines and break down rubber into smaller components; the machines run continuously for eight-hour shifts. It is undisputed that Latta worked in high noise areas during his entire employment at Goodyear, though no testimony was provided at trial as to the specific decibel level of the machines that produced the noise.

Goodyear began testing employees’ hearing annually in approximately 1984. In the early to mid-1980s, Goodyear began requiring employees to wear hearing protection such as earplugs and earmuffs. Latta testified that his hearing loss became obvious to him in the mid- to late 1980s. Employees of Goodyear testified on Latta’s behalf that he always wore the required hearing protection; it is undisputed that Latta wore hearing protection at Goodyear for at least 10 years before he retired from Goodyear effective July 1, 1999.

Latta testified that he decided to retire from Goodyear because he could no longer hear trucks passing by his work station, which he felt produced a dangerous situation. Latta testified that his last day of exposure to loud noise was his last day of work, June 30,1999.

After retiring from Goodyear, Latta took a job working part-time as a courier for a bank. In early 2001, Goodyear purchased hearing aides for Latta to help him in the performance of his work duties in his part-time employment.

Latta first visited Dr. Dennis Pappas of the Pappas Ear Clinic on October 12, 2000. Dr. Pappas diagnosed Latta with sensorin-eural hearing loss, which is permanent hearing loss. Latta was also seen by clinical audiologist Lynn Carmichael at the Pappas Clinic on several occasions in 2001. Both Dr. Pappas and Carmichael testified that Latta has sustained a combined 22% hearing loss in both ears. Dr. Pappas estimated that 60% of the hearing loss in the right ear was noise-induced and that 40% of the hearing loss in the left ear was noise-induced. Carmichael testified that a “significant portion” of the hearing loss sustained by Latta is not noise-induced, but she could not identify what else may have caused it.

Latta was also evaluated by Joseph Miller, a vocational-rehabilitation specialist, on May 15, 2000. Based on Miller’s evaluation of Latta and his review of records from Dr. Robin Auerbach, an audiologist who periodically evaluated Latta starting in 1996, Miller estimated Latta’s vocational loss due to the hearing loss to be 51.1%. Latta testified that even with his hearing aides he has a difficult time in his daily life. It is undisputed that Latta does not claim that he suffered any injury, other than his hearing loss, as a result of his employment at Goodyear.

Latta filed suit against Goodyear on December 27,1999, seeking workers’ compensation benefits for hearing loss he claims he sustained during his employment at Goodyear as a result of being exposed to high noise levels. After receiving evidence ore tenus on November 5, 2001, the trial court entered its judgment on May 6, 2002, awarding Latta workers’ compensation benefits for binaural hearing loss and assigning Latta a 20% permanent partial disability. The trial court awarded Latta a net total of $13,245.37 in accrued benefits and $90.10 per week for 140 weeks in future net benefits. On May 13, 2002, Goodyear filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. On June 5, 2002, Goodyear supplemented its postjudgment motion by bringing to the trial court’s attention our Supreme Court’s decision in Ex 'parte Drummond Co., 837 So.2d 831 (Ala. 2002), which was decided on May 31, 2002, and concerned when benefits are permitted to be awarded outside the compensation schedule found in § 25-5-57, Ala.Code 1975. Goodyear’s postjudgment motion was deemed denied by operation of law on August 12, 2002, 90 days after the entry of the final judgment. See Rule 59.1, Ala. R. Civ. P. The trial court entered an order on August 20, 2002, purportedly denying Goodyear’s postjudgment motion. Goodyear appeals.

This case is governed by the 1992 Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975.

“[The 1992 Workers’ Compensation] 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).”

Drummond Co. v. Higginbotham, 851 So.2d 523, 525 (Ala.Civ.App.2002).

Goodyear first argues that the trial court should have denied Latta’s claim for benefits based on the two-year statute of limitations for such injuries. Hearing loss caused by noise on the job is considered an “occupational disease” pursuant to § 25-5-110(1), Ala.Code 1975. The applicable statute of limitations provides that a claim for workers’ compensation benefits based on an occupational disease is barred unless brought within two years from the date of the injury. See § 25-5-117(a), Ala.Code 1975. “For the purposes of occupational diseases ... ‘the date of the injury’ shall mean the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease.” § 25 — 5—117(b), Ala.Code 1975. This court has held that for an employee to be exposed to the hazards of harmful noise, the “occupational noise [must be] sufficient both in intensity and duration to have the potential to cause damage to the employee’s hearing.” Dueitt v. Scott Paper Co., 695 So.2d 40, 44 (Ala.Civ.App.1996).

Goodyear contends that because Latta was aware of his hearing loss at least by the late 1980s and because he wore ear protection consistently for at least the last 10 years of his employment with Goodyear, his “last exposure to the hazards of the disease” was more than two years before he filed suit in December 1999. In support of its position, Goodyear relies on three cases: Singleterry v. ABC Rail Prods. Corp., 716 So.2d 1241 (Ala.Civ.App. 1998); Scott Paper Co. v. Morris, 708 So.2d 185 (Ala.Civ.App.1997); and Dueitt v. Scott Paper Co., supra.

In Singleterry, this court affirmed the trial court’s entry of a summary judgment in favor of the employer in a suit for workers’ compensation benefits brought by a retired employee based on hearing loss. The employee worked for the employer from 1970 to 1995. The employer made the wearing of earplugs mandatory starting in the mid-1980s. From that point forward, the employee wore ear protection when he was subjected to high noise levels. The employee testified that he became aware in the mid-1980s that he had suffered hearing loss. This court determined that the employee’s claim was barred by the two-year statute of limitations, noting that the employee had first become aware of his hearing loss in the mid-1980s and that evidence in support of the employer’s motion demonstrated that the employee’s earplugs were sufficient to block harmful noise. Goodyear contends that Singleter-ry is analogous to this case and that it dictates that Latta’s claim is barred by the statute of limitations.

However, there exists a significant difference between the facts of Singleterry and the facts of this case. In Singleterry, there was specific testimony about the effect of earplugs in reducing the noise levels to which employees who wore them were exposed. This court noted in Sin-gleterry that the employer presented affidavit testimony from an occupational-safety expert who “stated that [the employer’s] hearing conservation program complied with OSHA [Occupational Safety and Health Administration] regulations on occupational noise exposure. He also stated that the earplugs provided by [the employer] were state-of-the-art devices that had noise reduction ratings shown to be sufficient to protect against any potentially harmful noise exposure.” 716 So.2d at 1241. In addition, the employer also presented the deposition testimony of the doctor who treated the employee after the employee retired; that doctor testified that, “assuming that [the employee] had been wearing earplugs since the mid-1980s, it was highly unlikely that the noise at ABC caused his hearing loss.” Id. The Singleterry court emphasized those points in affirming the trial court’s entry of the summary judgment in favor of the employer based on the statute of limitations.

In contrast, there is no such specific testimony regarding the effect of hearing protection in this case. In deposition testimony, Carmichael was asked what kind of ameliorative effect she expected hearing protection to have in reducing the potential for hearing loss. Carmichael responded:

“It would depend on the actual device. There’s a noise reduction rating, NRR, and different plugs have different noise reduction rating[s]. Usually, it’s about 17 to 20 decibels [and] it should reduce the sound by that level, that’s if they are worn on a regular basis and put in properly and any of those sort of things.”

There is no other evidence in this case regarding the effect of hearing protection. No one testified as to the noise-reduction rating of the specific earplugs worn by Latta, whether the hearing protection complied with Occupational Safety and Health Administration (“OSHA”) regulations, or whether Latta would have sustained hearing loss at the Goodyear plant at which he worked if the hearing protection was worn on a consistent basis. As was also true in Higginbotham, discussed in more detail, infra, “[t]he evidence presented in Singleterry, indicating that the employee had not been exposed to harmful occupational noise was much more definitive than the evidence presented in this case.” 851 So.2d at 530.

In Dueitt, this court again affirmed a trial court’s judgment in favor of the employer on a workers’ compensation claim based on hearing loss because of the two-year statute of limitations. The employee had worked for the employer from 1961 to 1993 at a paper mill. The employee testified that he began using hearing protection in the early 1970s but that there had been some instances where he had forgotten to use it or had removed it to carry on conversations. The employee also testified that he first became aware that he had sustained hearing loss in the mid-1970s. Goodyear contends that the facts of Dueitt are sufficiently similar to the facts of the present case to warrant a reversal of the trial court. We disagree.

In Dueitt, by the employee’s own admission, he was not constantly exposed to loud noise areas in his workplace. This court found that the evidence showed that “ ‘[the employee] ha[d] not been exposed to a hazard from occupational noise for many years,’ ” and it emphasized that “ ‘an employee must be exposed to noise which is loud enough, for a long enough period of time, before he is exposed to any hazard from occupational noise.’ ” 695 So.2d at 43.

In the present case, unlike in Dueitt, Latta testified that he worked in high noise areas his entire career, testimony that was corroborated by the testimony of fellow employees and was not disputed by Goodyear. In other words, there was substantial evidence that Latta had been exposed to occupational noise that was “sufficient both in intensity and duration to have the potential to cause damage to [his] hearing.” Id. at 44.

This difference is also what distinguishes this case from Morris, where the employee worked for Scott Paper Company from 1961 to 1994. In Morris, the employer began requiring employees to wear hearing protection in the 1970s, and the employee used the hearing protection consistently and regularly after that time. However, starting in 1986, the employee began working in a control room in a new portion of the mill and “spent 80% of his work day inside the control room, where he was not exposed to high levels of noise.” 708 So.2d at 186. Because of this fact, likening the case to Dueitt, this court ruled that the employee had “not brought [his suit] within two years of his last exposure to the ‘hazards of the disease.’ ” Id. at 187. Again, in this case there was evidence from which the trial court could reasonably infer that Latta was exposed to loud noise up to the day of his retirement; Moms, therefore, does not provide support for a reversal in this case.

A much closer parallel to the facts in this case is found in Higginbotham, supra. In Higginbotham, the employee worked in coal mines for Drummond Company, Inc., from 1978 to 1996 and was exposed throughout the course of his employment to “ ‘extremely loud noises from belts, conveyors, and diesel equipment.’ ” 851 So.2d at 528. The employee began wearing hearing protection consistently in 1989 or 1990 at the latest, and he testified that he used hearing protection “ ‘pretty much off and on the whole time [he] worked at the mines.’ ” Id. at 529. A doctor testified that the employee’s hearing loss was consistent with exposure to chronic loud noise exposure. The doctor also testified that the hearing protection “should have protected [the employee] from the harmful effects of the noise and that he believed the hearing protection worn by [the employee] was approved by [OSHA].” Id. at 529-80. This court ruled that such evidence concerning the effect of hearing protection was not definitive enough to demonstrate that the employee’s last exposure to the “hazards of the disease” had been outside the two-year limitations period. This court affirmed the trial court’s award of workers’ compensation benefits to the employee.

In the present case, as in Higginbotham, there was chronically loud noise in the employee’s workplace throughout the period of his employment. Also as in Higginbotham, the evidence pertaining to the use of hearing protection was not of such a nature that the trial court could not reasonably infer that the employee was exposed to harmful noise throughout the period of his employment. As we did in Higginbotham, we therefore affirm the trial court’s determination that Latta brought his suit within two years of the date of his injury and that his claim is not barred by the statute of limitations.

Goodyear’s second argument is that, even if the trial court did not err in awarding some benefits in this case, it erred in awarding Latta benefits for 300 weeks, rather than for the scheduled 163 weeks, because the injury was not accompanied by any other physical disability. Hearing loss is a scheduled injury under the Workers’ Compensation Act, which provides that compensation of 66 2/3% of an employee’s average weekly earnings shall be paid during a period of 163 weeks for the complete and permanent loss of hearing in both ears. See § 25-5-57(a)(3)a.18., Ala. Code 1975. The trial court in this ease departed from the schedule and awarded Latta benefits of 20% of his average weekly earnings for 300 weeks, apparently basing its award on the provisions of § 25-5-57(a)(3)g., Ala.Code 1975.

In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), our Supreme Court created an exception to scheduled injuries:

“[A]lthough the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under the [Workers’] Compensation Law to the amount allowed under the schedule for injury to the one member.”

282 Ala. at 646, 213 So.2d at 811. However, as the Supreme Court observed in Ex parte Drummond Co., the Bell exception was expanded over the years to include several effects of an injury that take it outside of the schedule, including: “(1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities.” Drummond, 837 So.2d at 834 (footnotes omitted). The Court noted further that, over the years, the Court of Civil Appeals also had “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.” Id.

The Supreme Court in Ex parte Drummond reined in the expanded Bell exception and adopted the following language as the test for determining whether an injury to a scheduled member should be treated as unscheduled: “ ‘if 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 834 (quoting 4 Lex K. Larson, Larson’s Workers’ compensation Law § 87.02 (2001)). The Court also quoted with approval the rule stated in Leach Manufacturing Co. v. Puckett, 284 Ala. 209, 214, 224 So.2d 242, 246-47 (1969):

“ ‘[W]here there is an injury resulting in the loss of a member, or the loss of the use of a member, so as to invoke payment of compensation as provided [by the Workers’ Compensation Act], and where this is not accompanied by other physical disability (of the body), the payment of the specified sum is intended to fully compensate the injured employee for the injury sustained.’ ”

Ex parte Drummond, 837 So.2d at 835. In the context of a workers’ compensation claim based on hearing loss, “the compensation provided by application of the schedule is the worker’s exclusive remedy, unless the worker has demonstrated that his hearing loss has 1 “extended] to other parts of [his] body and interfere[d] with their efficiency.” ’ ” Drummond Co. v. Myers, 868 So.2d 468, 471 (Ala.Civ.App.2003) (quoting Ex parte Drummond, 837 So.2d at 833). Latta admitted at trial that he does not claim that his hearing loss has affected any other part of his body. Thus, under the rule of Ex parte Drummond, there are no grounds for compensating Latta’s hearing loss outside the provisions of § 25-5-57 for loss of use of a member. See §§ 25-5-57(a)(3)a. and d.

Latta counters this conclusion by contending that the Supreme Court did not intend for Ex parte Drummond to be applied retroactively. Latta points out that the trial court in the present case entered its judgment on May 6, 2002, while Ex parte Drummond was not decided by our Supreme Court until May 31, 2002. Thus, argues Latta, the trial court simply applied the law as it had been interpreted before the time it entered its judgment, awarding Latta benefits outside of the schedule due to vocational loss as a result of his disability.

In support of his position, Latta cites language from Chief Justice Hooper’s special writing in McCullar v. Universal Underwriters Life Insurance Co., 687 So.2d 156 (Ala.1996):

“This Court has, from the 1800’s until today, repeatedly held that a statutory construction that departs from a previous construction should be applied prospectively only. See Burke v. State, 385 So.2d 648, 652 (Ala.1980). The rule of prospectivity has been applied without exception when rules governing contractual or property rights that have become vested in reliance upon a settled construction are later overturned.”

687 So.2d at 184 (Hooper, C.J., concurring in part and dissenting in part). The main opinion authored by Justice Cook in McCullar, however, contains a different view:

“Although circumstances occasionally dictate that judicial decisions should be applied prospectively, James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991), retroactive application of judgments is ‘overwhelmingly the norm[al]’ practice. Id. at 535, 111 S.Ct. at 2443. Retroactivity ‘is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it.’ Id. at 535-36, 111 S.Ct. at 2443.”

687 So.2d at 165 (Almon and Shores, JJ., concur). Neither of those opinions is binding precedent. See Reynolds Metals Co. v. State Dep’t of Indus. Relations, 192 So.2d 419, 423 n. 5 (Ala.Civ.App.2000) (“[T]he main opinion in McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala.1996) ... is not binding precedent, having been concurred in by only three justices of the Alabama Supreme Court.”).

In any event, it is not necessary for this court to decide in the present case whether Ex parte Drummond ought to be applied retroactively in the strictest sense. The present case had not been appealed when the Supreme Court’s decision in Ex parte Drummond was issued; in fact, Goodyear filed a supplement to its post-judgment motion on June 5, 2002, to bring the May 31, 2002, decision in Ex parte Drummond to the trial court’s attention. The trial court nonetheless denied the motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, and Goodyear appealed to this court, again pointing to the holding in Ex parte Drummond. Based on this procedural history (and consistent with the declaratory theory of law acknowledged in the main opinion in McCullar), we are clear to the conclusion that the rule stated in Ex parte Drum-mond is properly applied in this case. See also Myers, 868 So.2d at 471 (applying the rule of Ex parte Drummond to a case appealed before Ex parte Drummond was decided).

In the alternative, Latta argues that Ex parte Drummond is distinguishable from the present case because Ex parte Drum-mond concerned a knee injury, not a hearing-loss injury. However, the language in Ex parte Drummond regarding when an injury may be compensated outside of the schedule is general in nature and is not specific to a particular kind of on-the-job injury. Moreover, as noted, this court has applied Ex parte Drummond in a hearing-loss case, Myers, supra. Thus, Latta’s argument attempting to distinguish Ex parte Drummond from the present case is without merit. Because it is undisputed that Latta’s hearing-loss injury does not affect any other part of his body, it was impermissible for the trial court to award him benefits outside the provision of § 25-5-57 pertaining to loss of use of scheduled members.

Based on the foregoing, we affirm that part of the trial court’s judgment refusing to dismiss Latta’s action based on the two-year statute of limitations. However, we reverse the trial court’s award of benefits and remand the case to the trial court. Although Latta’s loss of hearing is not “complete” in either ear as contemplated by § 25-5-57(a)(3)a.18., Latta’s award is limited under § 25-5-57(a)(3)d. to a period of 163 weeks. On remand, the trial court is instructed make findings of fact based on the existing record and to enter a judgment consistent with these statutory provisions. See also Dowdell v. Vermont American Corp., 808 So.2d 36 (Ala.Civ.App.2001).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: BASCHAB, Judge.

text:
    Demetrius Antone McNISH, Doris McNish, and Rosalyn McNish v. STATE.
    CR-98-0654.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 2000.
    Rehearing Applications Denied (as to Demetrius Antone McNish and Rosalyn McNish) March 17, 2000.
    Certiorari Denied Oct. 5, 2001 (as to Demetrius McNish) Alabama Supreme Court 1991269.

      Charles Daniel Bryant, Brundidge; Brandon Coots, Troy; and James N. Thomas, Troy, for appellants.
    William H. Pryor, Jr., atty. gen.; and Stephanie N. Morman and Sandra J. Stewart, asst, attys. gen., for appellee.
   BASCHAB, Judge.

Demetrius McNish was convicted of 13 counts of first-degree theft of property, violations of § 13A-8-3, Ala.Code 1975 (cases CC-97-247, CC-97-249, CC-97-251, CC-97-253, CC-97-257, CC-97-259, CC-97-261, CC-97-263, CC-97-265, CC-97-267, CC-97-289, CC-97-291, and CC-97-293); 13 counts of conspiracy to commit first-degree theft of property, violations of §§ 13A-4-3 and 13A-8-3, Ala.Code 1975 (cases CC-97-246, CC-97-248, CC-97-250, CC-97-252, CC-97-256, CC-97-258, CC-97-260, CC-97-262, CC-97-264, CC-97-266, CC-97-288, CC-97-290, and CC-97-292); and one count of second-degree theft of property, a violation of § 13A-8-4, Ala. Code 1975 (case CC-97-255). The trial court sentenced him to serve ten years in prison on each of the first-degree theft convictions and five years in prison on each of the conspiracy convictions and the second-degree theft conviction.

Doris McNish was convicted of seven counts of first-degree theft of property, violations of § 13A-8-3, Ala.Code 1975 (cases CC-97-269, CC-97-271, CC-97-273, CC-97-275, CC-97-277, CC-97-279, and CC-97-281); and seven counts of conspiracy to commit first-degree theft of property, violations of §§ 13A-4-3 and 13A-8-3, Ala.Code 1975 (cases CC-97-268, CC-97-270, CC-97-272, CC-97-274, CC-97-276, CC-97-278, and CC-97-280). The trial court sentenced her to serve five years in prison for each of her convictions.

Rosalyn McNish was convicted of two counts of first-degree theft of property, violations of § 13A-8-3, Ala.Code 1975 (cases CC-97-283 and CC-97-285); and two counts of conspiracy to commit first-degree theft of property, violations of §§ 13A-4-3 and 13A-8-3, Ala.Code 1975 (cases CC-97-282 and CC-97-284). The trial court sentenced her to serve five years in prison for each conviction.

In June 1995, Willie Joe Brown, a resident of Pike County, Alabama, won $14,000,000 in the Florida lottery. Shortly thereafter, Demetrius telephoned Mr. Brown’s home and talked to Stephanie Brown, Mr. Brown’s wife. Demetrius told her that he represented “a lot” of lottery winners all over the county and that he thought he could help Mr. Brown manage his winnings to earn more money. Mrs. Brown spoke to Demetrius on the telephone on several occasions. On one occasion, he told her that he would be in the area where they lived and asked if he could come to their home. The Browns agreed, and Demetrius went to their house on June 25, 1995. Demetrius told the Browns that he was a consultant, and he gave them his business card. He also showed them newspaper clippings from when he had run for public office. Mr. Brown testified that he and Demetrius discussed a business venture by which Mr. Brown would give Demetrius money to purchase discounted civil judgments. Mr. Brown agreed to the venture and arranged for Mrs. Brown to meet Demetrius the following morning to set up a $50,000 account for Demetrius and his business, Executive Services. When Mrs. Brown arrived at the First Alabama Bank in Troy, Alabama, the following morning, Demetrius was there with his sister, Rosalyn. After Mrs. Brown had written the $50,000 check to Executive Services, Demetrius explained that Executive Services did not have an account at that bank, but his sister did. Therefore, he wanted to deposit the money into Rosalyn’s savings account and later transfer the money to Executive Services’ account. Mrs. Brown added Rosalyn as a payee, and Demetrius deposited the check. On that same day, $27,122.60 was withdrawn from Rosalyn’s account. The defense introduced a receipt for a $27,122.60 certified check dated June 26, 1995, that was made payable to the Social Security Administration. “Executive Services” and “R. McNish” appeared on the remitter line of the receipt. Mr. Brown testified that he owed $27,122.60 to the Social Security Administration for the overpayment of Social Security benefits and that he had discussed this debt with Demetrius.

The Browns gave Demetrius 14 checks in addition to the initial $50,000 check. The total amount of those checks was $218,400. Either Mr. Brown or Mrs. Brown identified their signature on each check. Both testified that the date, payee, amount, and memorandum lines were blank when they gave those checks to Demetrius. Two of the checks were payable to Rosalyn McNish, and the signature “Rosalyn McNish” appeared on the back of the check. Seven of the checks were made out to Doris McNish, Demetrius’ and Rosalyn’s mother, and the signature “Doris McNish” appeared on the back of the checks. Four of the checks were payable to Demetrius McNish, and the final check was payable to “Cash.” The signature “Demetrius McNish” appeared on the back of these checks. One of the checks was dated May 20, 1995. However, Mrs. Brown testified that neither she nor her husband had a checking account before he won the lottery in June 1995.

The memorandum lines on two of the checks contained language indicating that the money was a loan. However, Mr. Brown denied that he had agreed to loan Demetrius money to use for personal and business expenses. Rather, he testified that the money from the checks was to be used solely for purchasing judgments. Mr. Brown testified that he never received any judgments from Demetrius and that Demetrius did not give him any proceeds from any judgments. He testified that he did receive two $1,000 cashier’s checks from Demetrius, but he did not know what the money was for. Mr. Brown also received two checks from Demetrius that were written on Rosalyn’s checking account and contained the signature “Rosalyn McNish.” Both checks contained notations on the memorandum line that they were loan payments and both were returned for nonsufficient funds. Mr. Brown also received two checks that were written on the account of Cecilia A. Primm and contained the notation “loan payment” on the memorandum lines. However, Mr. Brown testified that he did not know Cecilia Primm and he had not loaned her any money. Both checks were returned because the account was closed. There was also testimony that Demetrius assisted the Browns in paying off existing bills and was involved in the purchase of their new home and automobile insurance. However, the extent of Demetrius’ involvement in these transactions was not clear.

Mr. Brown telephoned Demetrius when did not receive any money from him. He testified that he called Demetrius three or four times and left messages on Demetrius’ voice mail. He also gave Demetrius the telephone number for his beeper, which had a toll-free telephone number and voice mail. Nevertheless, Demetrius never returned his telephone calls. Mr. Br,own then went to Mobile to find Demetrius’ office. He found the address where Demetrius had told him the business was located, but there was no such business there. Instead, he found a building attached to a hotel or a motel, but none of the McNishes worked there. Mr. Brown also went to Prichard to look for Demetrius. While there, he talked with Doris and told her that Demetrius was going to get into trouble over the checks. According to Brown, he was talking about the checks written on Rosalyn’s account that had been returned for nonsufficient funds.

Mrs. Brown testified that, although her husband told her something about Demetrius using the money to buy judgments, she was not familiar with the terms of the agreement between him and Demetrius. Mrs. Brown also testified that she accompanied Demetrius to the bank on several occasions and gave him checks as her husband directed.

I.

Rosalyn argues that her trial counsel rendered ineffective assistance. (Issue I in Rosalyn’s brief to this court.) To prevail on an ineffective-assistance-of-counsel claim, an appellant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced her. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 663 So.2d 1028, 1032 (Ala.Cr.App.1995). In her motion for a new trial, Rosalyn merely alleged that her trial counsel rendered ineffective assistance because the trial court denied her motion for a continuance. She did not point to any specific instances that she alleged constituted deficient performance, nor did she show how more time to prepare would have affected her attorney’s performance. Thus, Rosalyn has not satisfied her burden of proof under Strickland, and is not entitled to relief on this claim.

II.

Rosalyn also argues that the trial court erred when it did not grant a mistrial due to Mrs. Brown’s contact with a member of the jury. (Issue II in Rosalyn’s brief to this court.) After a recess in the trial, Demetrius’ attorney moved for a mistrial because Mrs. Brown had had contact with a juror during the recess. However, Rosalyn did not join in Demetrius’ objection, and “[njothing in the record indicates that the judge made a practice of treating an objection by one of the three defendants’ counsel as being made by all three defendants.” T.R.D. v. State, 673 So.2d 838, 844 (Ala.Cr.App.1995). Accordingly, she did not preserve this issue for our review.

III.

Rosalyn further argues that the trial court erred in admitting the cancelled checks into evidence because the State allegedly did not establish a proper predicate and chain of custody for those checks. (Issue IV in Rosalyn’s brief to this court.) At trial, Doris’ attorney objected to the admission of the checks on improper predicate and chain-of-custody grounds. However, Rosalyn did not join in this objection. Therefore, she did not preserve this issue for our review. See T.R.D., supra.

IV.

Next, Rosalyn argues that the trial court improperly instructed the jury on a defendant’s right not to testify. (Issue VI in Rosalyn’s brief to this court.) “No party may assign as error the court’s ... giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.” Rule 21.3, Ala. R.Crim. P.; see also McCollum v. State, 678 So.2d 1210 (Ala.Cr.App.1995). Rosalyn did not object to the trial court’s instruction on a defendant’s right not to testify. Rather, she stated that she was satisfied with the trial court’s instructions. Therefore, this issue is not properly before this court.

V.

Demetrius and Rosalyn argue that there was a fatal variance between the allegations contained in the theft indictments and the evidence presented at trial. (Issue I in Demetrius’ brief to this court and Issue V in Rosalyn’s brief to this court.) This issue is not properly before this court. After the trial court instructed the jury, Doris amended her motion for a judgment of acquittal to include as a ground the allegation that a material variance existed. Neither Demetrius nor Rosalyn joined in this objection. Therefore, they did not properly preserve this issue for our review. See Biles v. State, 715 So.2d 878 (Ala.Cr.App.1997) (holding that issues relating to a variance between the allegations contained in an indictment and the proof presented at trial must first be raised in the trial court); T.R.D., supra.

VI.

Demetrius argues that the trial court erred in instructing the jury on both first-degree theft and conspiracy because the conspiracy charges arose from the same facts or course of conduct as the first-degree theft charges. (Issue II in Demetrius’ brief to this court.) To the extent that Demetrius is arguing that the trial court improperly instructed the jury, he did not preserve this issue for our review. At trial, Demetrius did not object to the trial court’s instructions. Therefore, he did not properly preserve this issue for our review. See Rule 21.3, Ala. R.Crim. P.; McCollum, supra. To the extent that Demetrius is arguing that he was improperly convicted of both first-degree theft and conspiracy, this issue is not properly before this court. During the charge conference, Demetrius’ counsel stated, “I believe he can be found guilty of conspiracy and theft.” (R. 339.) “ ‘A party cannot assume inconsistent positions in the trial and appellate courts and, as a general rule, will not be permitted to allege an error in the trial court proceedings which was invited by him or was a natural consequence of his own actions.’ ” Miller v. State, 668 So.2d 912, 916 (Ala.Cr.App.1995) (quoting Hammers v. State, 661 So.2d 788 (Ala.Cr.App.1994)). Because Demetrius attempts to assert a position that is not consistent with his position at trial, this issue is not properly before this court.

VII.

Demetrius also argues that, even though the trial court ordered that he serve the sentences for the conspiracy convictions concurrently with his sentences for the corresponding theft convictions, his sentences for both conspiracy and first-degree theft amount to multiple punishments for the same offense. (Issue IV in Demetrius’ brief to this court.) However, Demetrius’ argument is based on the assertion that, under the facts of this case, he could not be convicted of both theft and conspiracy. As we noted in Part VI of this opinion, this position is not consistent with his position at trial. See Miller, supra. Therefore, this issue is not properly before this court.

VIII.

Demetrius further argues that he should not have been convicted of multiple counts of conspiracy and theft because the evidence, at most, supported only one conviction for conspiracy and one conviction for theft. (Issues III and V in Demetrius’ brief to this court.) However, he did not raise this issue before the trial court. Accordingly, he did not properly preserve it for our review. See Harris v. State, 563 So.2d 9, 10-11 (Ala.Cr.App.1989) (holding that the appellant waived a claim that his multiple convictions for child pornography arising from the same course of conduct violated double jeopardy principles).

Demetrius also argues that the trial court erred in charging the jury on 14 counts of theft. However, because he did not object to the trial court’s instructions, he did not preserve this issue for our review. See Rule 21.3, Ala. R.Crim. P.; McCollum, supra.

IX.

Rosalyn finally argues that the trial court erred in denying her motions for a judgment of acquittal because the State allegedly did not present sufficient evidence to support her convictions. (Issue II in Rosalyn’s brief to this court.) However, she did not properly preserve this issue for our review. At the close of the State’s evidence, Rosalyn moved for a judgment of acquittal on the grounds that the State had not proved its case beyond a reasonable doubt and that the State had not proved venue. Rosalyn merely renewed her motion for a judgment of acquittal at the close of all of the evidence.

“The issue of the sufficiency of the evidence is preserved for review by a defendant’s motion for a judgment of acquittal that is entered at the end of the state’s case, at the close of the evidence, see A.R.Cr.P. 20.2(a), or after the verdict is entered, see A.R.Cr.P. 20.3. The motion must state the ground that the state failed to prove a prima facie case. See, e.g., Ex parte Maxwell, 439 So.2d 715 (Ala.1983). A defendant may also challenge the sufficiency of the evidence when moving for a new trial under A.R.Cr.P. 24.1 or when moving for an arrest of judgment under A.R.Cr.P. 24.2. A.R.Cr.P. 20.3(c); see Pearson, 601 So.2d at 1123-24; Prather v. City of Hoover, 585 So.2d 257, 258 n. 1 (Ala.Cr.App.1991).”

Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Cr.App.1993) (emphasis added). Because Rosalyn did not allege in her motions for a judgment of acquittal that the State did not prove a prima facie case of theft and conspiracy, the motions did “not squarely present to the trial court the issue of the sufficiency of the evidence; consequently, [they were] insufficient to preserve the issue for appellate review.” Johnson v. State, 500 So.2d 69, 72 (Ala.Cr.App.1986) (quoting Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979)). Furthermore, Rosalyn did not specifically challenge the sufficiency of the evidence in her motion for a new trial. See Johnson, supra. Therefore, she did not properly preserve this issue for our review.

X.

Demetrius finally argues that the evidence was not sufficient to support his theft convictions. (Issue VI in Demetrius’ brief to this court.) Specifically, he argues that the State did not prove that he intended to deprive the Browns of their property and that, at the time he entered into the agreement with Mr. Brown, he did not intend to perform as promised. When reviewing the sufficiency of the evidence, we must view the evidence in a light most favorable to the State and determine whether there was evidence from which the jury, by fair inference, could conclude that the appellant was guilty beyond a reasonable doubt. See Hale v. State, 654 So.2d 83 (Ala.Cr.App.1994).

Section 13A-8-3(a), Ala.Code 1975, defines first-degree theft of property as the “theft of property which exceeds $1,000.00 in value.” Section 13A-8-4(a), Ala.Code 1975, defines second-degree theft of property as “[t]he theft of property which exceeds $250.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another.”

“A person commits the crime of theft of property if he:
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”

§ 13A-8-2, Ala.Code 1975.

“ ‘In a theft trial, intent is a question for the jury.’ Seaton v. State, 645 So.2d 341, 343 (Ala.Cr.App.1994). ‘Intent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ McCord v. State, 501 So.2d 520, 528-529 (Ala.Cr.App.1986), quoting Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908).”

French v. State, 687 So.2d 202, 204 (Ala.Cr.App.1995), rev’d on other grounds, 687 So.2d 205 (Ala.1996).

The State presented evidence that Mr. Brown agreed to give the appellant money for the sole purpose of purchasing discounted civil judgments. The Browns signed and gave Demetrius 14 blank checks. The amounts and payees on those checks were subsequently entered and the checks were presented for payment. The amounts of the checks totaled $218,400. Mr. Brown testified that he received only $2,000 from Demetrius. He testified that two other checks Demetrius gave him were returned for nonsufficient funds. Although Mr. Brown made several attempts to contact Demetrius after those checks were returned for nonsufficient funds, Demetrius did not return his telephone calls. When he went to the address Demetrius had given him for the business, that business was not at that address and none of the McNishes worked at that location. Accordingly, the State presented sufficient evidence from which the jury could have concluded that Demetrius intended to deprive the Browns of their property and that he did not intend to comply with the terms of the agreement at the time he entered into the agreement. Furthermore, any evidence of services that Demetrius may have provided to the Browns merely created a conflict in the evidence that also presented a question for the jury to decide. See Bennett v. State, 584 So.2d 869, 871 (Ala.Cr.App.1990) (holding that “[cjonflicting evidence presents a question for the jury, and a verdict rendered on conflicting evidence will not be disturbed on appeal”). Therefore, Demetrius’ argument is without merit.

XI.

Finally, Doris argues that the State did not present sufficient evidence to support her convictions for conspiracy and theft. (Issue IV in Doris’ brief to this court.) Mr. Brown testified that he had met Doris on two occasions and that they just spoke and were friendly. He testified that Doris never made any representations to him. He also testified that Demetrius never discussed Doris working with him. Mrs. Brown testified that she had never met Doris and that she had seen her only once in a limousine with Demetrius when he had come to her house to see Mr. Brown. Mrs. Brown also testified that Doris never made any representations to her. The State presented seven checks that showed Doris McNish as the payee and that were signed “Doris McNish.” However, the State did not present any evidence that Doris ever had any knowledge of the checks or that Doris actually signed the checks. A bank statement for a savings account owned by Doris and Rosalyn reflected deposits with dates and amounts that corresponded to the dates and amounts on some of the checks that the Browns had given Demetrius. However, nothing showed that Doris had any knowledge that the money was being deposited into the account or that she withdrew any of those funds. Therefore, the State did not present sufficient evidence to support Doris’ theft and conspiracy convictions. See Ex parte Stinson, 631 So.2d 831 (Ala.1992); Greer v. State, 563 So.2d 39 (Ala.Cr.App.1990). Accordingly, we must reverse Doris’ convictions and sentences and render a judgment in her favor.

For the foregoing reasons, we affirm the trial court’s judgment as to Demetrius McNish and Rosalyn McNish. However, we reverse the trial court’s judgment as to Doris McNish and render a judgment in her favor.

CONVICTIONS AND SENTENCES OF DEMETRIUS McNISH AND ROSALYN McNISH AFFIRMED; CONVICTIONS AND SENTENCES OF DORIS McNISH REVERSED AND JUDGMENT RENDERED.

LONG, P.J., and McMILLAN, COBB, and FRY, JJ., concur.

      . The trial court ordered him to serve his sentences as follows:
      “Case Nos. CC-97-246 and -247 to run concurrently, Case Nos. CC-97-248 and -249 to run concurrently, Case Nos. CC-97-250 and -251 to run concurrently, Case Nos. CC-97-252 and -253 to run concurrently, Case Nos. CC-97-256 and -257 to run concurrently, Case Nos. CC-97-258 and -259 to run concurrently, Case Nos. CC-97-260 and -261 to run concurrently, Case Nos. CC-97-262 and -263 to run concurrently, Case Nos. CC-97-264 and -265 to run concurrently, Case Nos. CC-97-266 and -267 to run concurrently, Case Nos. CC-97-288 and -289 to run concurrently, Case Nos. CC-97-290 and -291 to run concurrently, and Case Nos. CC-97-292 and -293 to run concurrently, but otherwise consecutively.”
      (C.R.162-63.).

      . The trial court ordered Doris to serve her sentences as follows:
      "Case Nos. CC-97-268 and -269 to run concurrently, Case Nos. CC-97-270 and -271 to run concurrently, Case Nos. CC-97-272 and -273 to run concurrently, Case Nos. CC-97-274 and -275 to run concurrently, Case Nos. CC-97-276 and -277 to run concurrently, Case Nos. CC-97-278 and -279 to run concurrently, and Case Nos. CC-97-280 and -281 to run concurrently, but otherwise consecutively.”
      (C.R.3590.)

      . The trial court ordered her to serve her sentences as follows: “Case Nos. CC-97-282 and -283 to run concurrently and Case Nos. CC-97-284 and -285 to run concurrently, but otherwise consecutively.” (C.R.3321.)

      . None of the appellants were charged with taking the $50,000 from the initial check.

      . Rosalyn also appears to argue that her trial counsel rendered ineffective assistance because the State did not provide timely discovery. However, she did not raise this claim in her motion for a new trial. Therefore, she did not properly preserve this issue for our review. See Marshall v. State, 629 So.2d 766 (Ala.Cr.App.1993).

      . Additionally, Rosalyn appears to argue that the trial court erroneously allowed the jury to separate. Because she did not present this argument to the trial court, she did not preserve it for our review. See McCollum v. State, 678 So.2d 1210 (Ala.Cr.App.1995).

      . Based on our decision, we need not address the remaining issues Doris raises on appeal.


author: JOHNSTONE, Justice. MOORE, Chief Justice STUART, Justice

text:
    Ex parte Rosalyn McNISH. (In re Demetrius Antone McNish and Doris McNish and Rosalyn McNish v. State of Alabama).
    1991233.
    Supreme Court of Alabama.
    Feb. 7, 2003.
    Larry C. Moorer, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

The defendant Rosalyn McNish, her brother Demetrius McNish, and their mother Doris McNish were tried together on various theft and conspiracy charges for their alleged involvement in taking money from two residents of Pike County, a married couple who had won fourteen million dollars in a Florida lottery. A jury found Rosalyn guilty of two counts of first-degree theft of property and two counts of conspiracy to commit first-degree theft of property. The trial court sentenced Rosalyn to five years in prison for each conviction and ordered the sentences for the conspiracy convictions to run concurrently with the sentences for the theft convictions.

Rosalyn appealed, and the Court of Criminal Appeals affirmed the judgment of the trial court in a seventeen-page opinion addressing all three defendants’ claims. McNish v. State, 878 So.2d 1189 (Ala.Crim.App.2000). The Court of Criminal Appeals also overruled Rosalyn’s application for rehearing. Rosalyn then petitioned this Court for a writ of certiorari, which we granted to analyze, among other issues, whether Rosalyn preserved for review her challenge to the sufficiency of the evidence to support her convictions.

At the close of the State’s case, Rosalyn said:

“I make a motion for a judgment of acquittal on the grounds that the State has not proven the case beyond a reasonable doubt; and also the prosecution has not proven venue in this case. It did not prove that the alleged offenses took place in Pike County.”

(R. 270-71.) (Emphasis added.) The trial court denied the motion. At the close of all the evidence, Rosalyn filed in open court a written motion for a judgment of acquittal stating, “as grounds for said motion would show unto the court the evidence is insufficient to support a finding of guilt beyond a reasonable doubt to the charged offenses.” (R. 279-80, C.R. 3302.) (Emphasis added.) The trial court again denied the motion.

The Court of Criminal Appeals held that Rosalyn had not preserved for appellate review her challenge to the sufficiency of the evidence to support her convictions. The Court of Criminal Appeals recognized and analyzed the procedural facts of this issue this way:

“At the close of the State’s evidence, Rosalyn moved for a judgment of acquittal on the grounds that the State had not proved its case beyond a reasonable doubt and that the State had not proved venue. Rosalyn merely renewed her motion for a judgment of acquittal at the close of all of the evidence.
“... Because Rosalyn did not allege in her motions for a judgment of acquittal that the State did not prove a prima facie case of theft and conspiracy, the motions did ‘not squarely present to the trial court the issue of the sufficiency of the evidence; consequently, [they were] insufficient to preserve the issue for appellate review.’ Johnson v. State, 500 So.2d 69, 72 (Ala.Cr.App.1986) (quoting Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979)).”

McNish, 878 So.2d at 1196-97. (Emphasis added.)

In Ex parte Hall, 843 So.2d 746 (Ala.2002), this Court addressed a virtually identical preservation issue:

“In his written motion for a judgment of acquittal, Hall stated as one of his grounds that ‘insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt.’ This statement is almost identical to the statement in Hanson [v. City of Trussville, 539 So.2d 1082 (Ala.Crim.App.1988) ], that the city had not ‘proven that [the defendant] is guilty of driving while suspended or revoked through the evidence.’ Thus, although Hall’s statement here, like the statement in Hanson, is not as perfectly phrased as the statement this Court endorsed in Ex parte Maxwell, [439 So.2d 715, 716 (Ala.1983), i.e., ‘the prosecution has failed to make a prima facie case’], it was nevertheless ‘sufficient ... to put the trial court on notice of a defect in the city’s case, and, therefore, sufficient to preserve the issue for review.’ Hanson, 539 So.2d at 1084.”

843 So.2d at 749. Judge Cobb aptly addressed the same issue in her special writing concurring in the result in Thomas v. State, 777 So.2d 317 (Ala.Crim.App.2000):

“The majority concludes that, because the defendant did not intone the mantra, ‘The State has failed to prove a prima facie case,’ the defendant’s motion for a judgment of acquittal was not sufficient to preserve the issue for appellate review. I disagree. I see no appreciable difference between the words, ‘The State has failed to prove a prima facie case,’ and the defense counsel’s words, ‘The evidence is insufficient to convict my client and the State did not prove beyond a reasonable doubt that he is guilty....’ I believe that the motion for a judgment of acquittal set out sufficient grounds to allow the trial court to make an informed decision on the motion. That being the case, the language was sufficient to preserve the issue for appellate review.”

777 So.2d at 318. Thus, Rosalyn has preserved for appellate review her claim that the evidence was insufficient to support her convictions.

Therefore, the Court of Criminal Appeals erred in holding that Rosalyn did not preserve her challenge to the State’s evidence and erred in not addressing the merits of Rosalyn’s claim. We reverse the judgment of the Court of Criminal Appeals affirming Rosalyn’s convictions, and we remand this cause for that court to address the merits of Rosalyn’s claim that the evidence was insufficient to support her convictions.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., concurs specially.

STUART, J., concurs in part and dissents in part as to the rationale and concurs in the result.

MOORE, Chief Justice

(concurring specially).

I agree with the Court’s reversal of the Court of Criminal Appeals’ judgment in this case because McNish’s counsel undoubtedly preserved the issue of the sufficiency of the evidence through both oral and written objections. In the oral objection, made at the close of the State’s case, McNish’s counsel argued that “the State has not proven the case beyond a reasonable doubt....” Likewise, the written motion for a judgment of acquittal, made at the close of all the evidence, contended that “the evidence is insufficient to support a finding of guilt beyond a reasonable doubt.” In my opinion, both of those objections were sufficient to preserve for appellate review the sufficiency-of-the-evidence issue.

The Court of Criminal Appeals seems to be making a distinction between sufficiency of the evidence as related to the State’s prima facie case and sufficiency of the evidence to support a finding of a defendant’s guilt beyond a reasonable doubt. “In proving a prima facie case in a criminal prosecution, all the State has done is fulfill its duty of proving the elements of the offense so that the jury may be allowed to consider the case.” Eldridge v. State, 415 So.2d 1190, 1194 (Ala.Crim.App.1982). If the State fails to prove its prima facie case, then obviously it has not presented enough evidence to support a finding of guilt beyond a reasonable doubt. “Until the State proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence.” Segars v. State, 86 Ala. 59, 60, 5 So. 558 (1889). That the State allegedly had not proven its case beyond a reasonable doubt is exactly the objection McNish’s counsel made both at the close of the State’s case and at the close of all the evidence. The objections were simply a more explicit way of stating that the State had not proven its prima facie case. Therefore, the distinction made by the Court of Criminal Appeals in this case is a false one; McNish properly preserved the issue of the sufficiency of the evidence through her counsel’s objection and her motion for a judgment of acquittal.

STUART, Justice

(concurring in part and dissenting in part as to the rationale and concurring in the result).

I agree with the majority that the judgment of the Court of Criminal Appeals in this case must be reversed and the case remanded for the Court of Criminal Appeals to examine the sufficiency of the evidence to support Rosalyn McNish’s conviction. The issue was preserved by Rosalyn’s motion for a judgment of acquittal made at the dose of all the evidence.

I, however, disagree with any inference in the majority opinion that Rosalyn’s motion for a judgment of acquittal made at the close of the State’s evidence preserved the issue for appellate review. At that time, Rosalyn moved for a judgment of acquittal on the grounds that “the State has not proven the case beyond a reasonable doubt.” This motion did not preserve a challenge to the sufficiency of the evidence. Specifically, this objection did not adequately advise the trial court that it needed to review the sufficiency of the evidence as to each element of the offenses charged to determine if it was necessary for the defense to present evidence in opposition. While I agree with the sentiment that it is not necessary to use the exact terminology “The State has failed to prove a prima facie case,” I cannot agree that the vague and ambiguous statement that “the State has not proven the case beyond a reasonable doubt” is adequate to place the trial court on notice of a challenge to the sufficiency of the evidence as to the charged offenses.

Rosalyn, however, adequately directed the trial court’s attention to the sufficiency of the evidence of the charged offenses at the close of all the evidence, by stating: “[T]he evidence is insufficient to support a finding of guilt beyond a reasonable doubt to the charged offenses.” That objection directed the trial court to consider the offenses charged in the indictment and to determine whether the evidence as to each element of the charged offenses was legally sufficient to support a jury verdict as a matter of law. That objection preserved Rosalyn’s challenge to the sufficiency of the evidence.

“ ‘Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review. ...’
“... The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.”

Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).

While a motion for a judgment of acquittal need not contain the specific phrase “prima facie case,” it does need to adequately direct the trial court’s attention to the evidence to allow an informed decision on the motion.