author: THOMPSON, Judge. CRAWLEY, Judge,

text:
    ALABAMA DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION v. ALABAMA STATE PERSONNEL DEPARTMENT and Vincent L. Parker.
    2020036.
    Court of Civil Appeals of Alabama.
    May 2, 2003.
    William H. Pryor, Jr., atty. gen., and Rebecca J. Luck, asst. atty. gen., Department of Mental Health and Mental Retardation, for appellant.
    Jason Lee Manasco, Montgomery, for appellees.
   THOMPSON, Judge.

On February 7, 2001, the Alabama Department of Mental Health and Mental Retardation (“the Department”) terminated Vincent L. Parker’s employment based on a complaint of physical abuse filed by a mentally retarded adult patient at the Albert P. Brewer Developmental Center (“the Center”). On February 12, 2001, Parker appealed his employment termination to the Personnel Board of the State of Alabama (“the Board”) pursuant to the Merit System Act, § 36-26-1 et seq., Ala. Code 1975; the Board held a hearing on April 26, 2001. On June 20,. 2001, the Board determined that the Department’s decision to dismiss Parker was not supported by the evidence, and it ordered that Parker be reinstated with full back pay and benefits.

On July 24, 2001, Parker filed a petition for a writ of mandamus in the Montgomery Circuit Court seeking an order directing the Center to reinstate him to his former position. The Montgomery Circuit Court determined that the Department had reinstated Parker to an equivalent position at the Center and had paid Parker the total amount of back pay awarded by the Board. Therefore, the Montgomery Circuit Court dismissed Parker’s petition as moot.

The Department, on July 25, 2001, appealed the Board’s decision to the Mobile Circuit Court. On appeal to the Mobile Circuit Court, the Department, among other things, argued that it was entitled to a setoff in the amount of back pay it owed Parker based on income Parker had earned from other employment during the period he was terminated. Parker responded that he was “unaware of any authority, statutory or otherwise, that would entitle the Department to a setoff [of his] back pay.” Each party moved for a summary judgment on the issue of the setoff. On September 25, 2002, the Mobile Circuit Court granted Parker’s motion for a summary judgment because, it concluded, the argument for a setoff of back pay “had not found recognition among the appellate courts of this state.”

The sole issue raised by the Department on appeal to this court is whether Alabama law allows the Department to claim a setoff from an award of back pay for wages an employee earns from other sources during the period of the employee’s termination. It should be noted at the outset that the Department acknowledges that there is not a statute either in the Administrative Procedure Act or in the Merit System Act and there is no regulation pertaining to the Department of Mental Health that authorizes the trial court to order restitution or a setoff of an award of back pay.

The Department relies on Wyatt v. Bronner, 500 F.Supp. 817 (M.D.Ala.1980), as authority for its proposition that the trial court can reduce an award of back pay by the employee’s earnings during the period of termination. In Wyatt, the Alabama Building Commission terminated the employment of four employees. The question on appeal was to what extent the employees were entitled to reinstatement with back pay. The Wyatt opinion focuses on the classifications of the employees and the constitutional rights associated with various pre- and post-termination hearings in determining when wrongfully discharged employees are entitled to an award of back pay. Twice in the opinion the federal court states that if back pay should be awarded, then it should be awarded “less any earnings which are in mitigation.” Wyatt v. Bronner, 500 F.Supp. at 823.

The federal court in Wyatt does not cite any statute, caselaw, or other prece-dential authority to support its statement regarding the mitigation of an award of back pay. Decisions of federal district courts, though persuasive, are not binding authority on our state appellate courts. Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 n. 2 (Ala.1991)(citing Ballew v. State, 292 Ala. 460, 296 So.2d 206 (1974)). Therefore, while the Wyatt opinion can be cited as persuasive authority, it does not control the outcome of this case.

The Department also cites decisions that concern other areas of the law as persuasive authority. In Heatherly v. Benton, 479 So.2d 1285 (Ala.Civ.App.1985), this court held that the Alabama Department of Public Relations could hold an employee responsible for the repayment of overpaid benefits if the Department of Public Relations was unable to deduct the payments from the award of back pay. The Heath-erly decision was based on interpretations of statutory authority. Heatherly is thus distinguishable from the present appeal because in this case we have no statutory authority to guide us.

The Department cites Title VII of the Civil Rights Act of 1964 as additional persuasive authority. The Department correctly states that employees who have been dismissed for discriminatory reasons in violation of Title VII are to minimize their damages by seeking alternative employment, based on the authority of 42 U.S.C.A. § 2000e-5(g). Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498 (D.C.Fla.1987). The Department also cites Schulz v. Hickok Manufacturing Co., 358 F.Supp. 1208 (D.C.Ga.1973), which held that a 56-year-old district sales manager who was discharged because of his age was entitled to reinstatement to his former position and to back pay, offset by unemployment benefits and severance pay based on § 7(b) of the Age Discrimination in Employment Act, 29 U.S.C.A. § 626(b). However, in each of those cases the setoff or restitution deducted from the award of back pay was authorized by a federal or state statute.

Both the parties and the trial court agree that there is no state statute or caselaw authorizing the trial court to impose a setoff of the award of back pay to Parker. We do not choose to impose judicially such a setoff under the facts of this case.

AFFIRMED.

YATES, P.J., concurs.

CRAWLEY, PITTMAN, and MURDOCK, JJ., concur in the result.

CRAWLEY, Judge,

concurring in the result.

The main opinion affirms a trial court’s denial of a setoff of a back-pay award for a reinstated public employee because no state statute requires such a setoff. I agree with the result, but not because there is no statutory authority that requires a dismissed employee to mitigate his damages.

Even in the absence of a statute requiring a dismissed employee to mitigate his or her damages, a setoff would be ordered in this case if Alabama followed the majority rule on the subject. Instead, we follow a minority view and the result is required because of precedent from our supreme court — precedent that admittedly departs from the majority rule that a wrongfully discharged public employee has a duty to exercise due diligence to mitigate damages while pursuing remedies against the employer.

In City of Mobile v. Mitchell, 294 Ala. 474, 318 So.2d 708 (1975), the Alabama Supreme Court held that a municipal civil servant who was wrongfully dismissed from his employment was entitled to full back pay without any deduction for the compensation he had earned from other employment before his reinstatement. In so holding, the court recognized the following:

“Admittedly, we follow a minority view.... The majority rule with respect to municipal employees is different. A substantial majority of the courts which have considered the question now before us conclude that a wrongfully suspended (or wrongfully discharged) municipal employee due back pay upon reinstatement must deduct other compensation earned during the period for which back pay is due. See cases collected in 4 McQuillin, Municipal Corporations, § 12.186 (3d Ed., 1968); Annot., 150 A.L.R. 100 (1944). The majority rule apparently is based on a differentiation between municipal officers and municipal employees: a public official or officer is entitled to full pay whether, working or not, as an incident of office whereas a public employee’s right to pay is more akin to the right to pay of one under a contract of employment. 4 McQuillin, § 174b. In the latter instance the majority would require the employee to mitigate damages by deducting from an award of back pay such earnings as were realized from other pursuits while wrongfully suspended or wrongfully discharged from his municipal employment.
“That rationale is untenable. Both classes of public servants hold their positions by virtue of law....
“[The employee] was wrongfully prevented from working, he is entitled to his salary; since that salary is fixed by authority of law it may not be diminished. We therefore hold that where a Classified Service municipal employee is wrongfully prevented from working, he or she is entitled to recover full back pay without any deduction of other compensation earned.”

294 Ala. at 476-77, 318 So.2d at 709-10.

The historical distinction between those officers and employees who hold their positions by virtue of law and those who hold theh1 positions by virtue of contract apparently stems from ancient principles of real-property law. See, e.g., Sinicropi v. Bennett, 92 A.D.2d 309, 460 N.Y.S.2d 809 (1983) (citing, for example, 2 Pollock and Maitland, History of English Law (2d ed. 1899) and 3 Kent’s Commentaries (4th ed. 1840)). In the absence of some reason other than the fact that a civil servant’s employment rights spring from statute and not from contract, I see no reason why public employees should be treated differently from other employees in the matter of mitigation of damages, and I urge our supreme court to reexamine this issue.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    EDMONDS INDUSTRIAL COATINGS, INC. v. Roger Dale LOLLEY.

    2011166.
    Court of Civil Appeals of Alabama.
    May 2, 2003.

      Joel A. Williams of Sadler Sullivan, P.C., Birmingham, for appellant.
    William L. Utsey of Utsey & Utsey, Butler, for appellee.

      . Roger Dale Lolley died while this appeal was pending. A suggestion of death has been filed in this court, but no substitution of party has been made. The death of a party to an appeal does not abate the appeal. Rule 43, Ala. R.App. P.; Walker v. Bailey, 686 So.2d 304, 305 n. 1 (Ala.Civ.App.1996).

   CRAWLEY, Judge.

Edmonds Industrial Coatings, Inc. (“the company”), appeals from a judgment awarding Roger Dale Lolley (“the worker”) workers’ compensation benefits. We dismiss the appeal.

The facts are not pertinent to our decision except that the worker claimed that he was allergic to paint fumes to which he was exposed in connection with his work and the date of the last exposure to those fumes was a matter of controversy. The company filed a third-party complaint against three insurance companies that had, at various times during the worker’s employment, provided workers’ compensation insurance to the company. Although the trial court entered a judgment awarding the worker benefits, the record reflects that the trial court did not decide which of the three insurance companies would be liable for the payment of those benefits for the company.

An appeal ordinarily lies only from the entry of a final judgment. Ala. Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253. Accordingly, because the judgment does not resolve all issues or determine the right and liabilities of all of the parties and because the record does not contain a Rule 54(b) certification, the judgment is not final and will not support an appeal.

APPEAL DISMISSED.

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


text:
    Russell Joe APPLEGATE v. Phyllis Jean APPLEGATE.
    2011144.
    Court of Civil Appeals of Alabama.
    May 9, 2003.
    Byrd R. Latham and Claire Tinney Jones of Patton, Latham, Legge & Cole, Athens, for appellant.
    James D. Moffatt, Athens, for appellee.
   CRAWLEY, Judge.

Russell Joe Applegate (“the husband”) and Phyllis Jean Applegate (“the wife”) were married in 1985. In September 2001, the wife sued for a divorce, left the marital residence, and returned to her home state of Kansas. Before leaving, the wife withdrew approximately $13,500 from the parties’ joint account. She also took with her a large part of the parties’ household items, including furniture, cookware, silverware, and dishes from the marital residence; she took some items to Kansas and stored others in a storage facility in Alabama.

After a trial, the trial court awarded the wife all the moneys in her possession, one-half of the proceeds from the ordered sale of the marital residence, her 1989 Lincoln Town Car automobile, one-half of the family photographs, and all the household items the wife took with her or placed in storage when she left the marital residence. The judgment awarded the husband the moneys in his possession, one-half the proceeds of the ordered sale of the marital residence, his 1999 Nissan Pathfinder sport utility vehicle, his 2002 Honda Gold Wing motorcycle, one-half of the family photographs, and any personal property in his possession.

The trial court also awarded the wife 23% of the husband’s retirement benefits. The husband is employed at United States Army Missile Command; he had been employed there for approximately 11 years before the parties married. His retirement benefit is calculated based upon his highest salary for the three consecutive years prior to retirement. The record reveals that the husband’s estimated monthly retirement benefit, had he retired effective December 31, 2002, would be $4,670. The provision of the judgment awarding the retirement benefits to the wife reads, in pertinent part:

“8. RETIREMENT INTEREST: The [wife] is hereby awarded a twenty-three (23%) percent interest in the retirement of the [husband] as of June 10, 2002. ... [T]he court hereby directs that twenty-three (23%) percent of the gross amount of retirement paid to the [husband] shall be paid by the [husband] directly to the [wife] on a monthly basis the first month the [husband] begins drawing his retirement.”

The husband appeals. He argues that the division of property was inequitable and that the trial court erred by awarding the wife 23% of his retirement. We reverse the trial court’s judgment.

The husband argues that the trial court’s award of retirement benefits is impermissible under Ala.Code 1975, § 30-2-51(b), because the wife did not present evidence as to the present value of retirement benefits subject to division, because the award includes benefits earned prior to the marriage of the parties, and because the award fixes the time for determining the amount of benefits as the date of the judgment and not the date of the filing of the complaint for divorce. Section 30-2-51(b) states:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-eov-ered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

(Emphasis added.)

The wife failed to prove the amount of and the present value of the benefits she was entitled to under the statute. The only evidence of record as to the amount of the husband’s retirement was a document indicating his estimated monthly annuity if he retired on December 31, 2002. As we have recently held, the failure to present the necessary evidence of the present valuation of retirement benefits and the portion of those benefits acquired prior to the marriage prevents the trial court from exercising its the discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002). We also note that the award of benefits in this case also appears to violate the provision against awarding a spouse any portion of retirement benefits earned prior to the marriage, § 30-2-51(b)(2); the provision requiring an award of the present value of those benefits, § 30 — 2—51(b); and, quite possibly, the provision requiring that the award of retirement benefits not exceed 50% of the amount of benefits that may be considered for division, § 30-2-51(b)(1), (3). Accordingly, we reverse that portion of the judgment awarding the wife retirement benefits, and we remand the cause for the trial court to amend its judgment so as not to award the wife any portion of the husband’s retirement benefits. See McAlpine, 865 So.2d at 439-41.

Because we must reverse the award of retirement benefits, we do not at this time address whether the trial court’s property division is inequitable. On remand, the trial court may, on the basis of the reversal of its award of retirement benefits, reconsider its property division. Id.; see also DuBois v. DuBois, 714 So.2d 308, 311 (Ala.Civ.App.1998).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.


author: PITTMAN, Judge.

text:
    Vicki PORTIS v. ALABAMA STATE TENURE COMMISSION.
    2020060.
    Court of Civil Appeals of Alabama.
    May 9, 2003.
    Vicki Portis, pro se.
   PITTMAN, Judge.

In August 2001, acting pursuant to § 16-24-38, Ala.Code 1975, Vicki Portis petitioned for a writ of mandamus in the Montgomery Circuit Court, seeking judicial review of an order of the Alabama State Tenure Commission. That civil action was assigned to Judge Johnny Hard-wick. In February 2002, Portis filed a motion seeking Judge Hardwick’s recusal; her motion was granted in March 2002, and an order was issued assigning Judge Sarah M. Greenhaw to hear the case. On April 23, 2002, Portis filed a notice of appeal to the Alabama Supreme Court from the March 2002 orders of the trial court; that case was transferred to this court (case no. 2010794). Because the order of recusal and the order assigning Judge Greenhaw from which Portis had appealed were not final judgments from which an appeal could properly have been taken (see § 12-22-2, Ala.Code 1975), this court, on July 16, 2002, dismissed the appeal. Portis v. Alabama State Tenure Comm’n, (No. 2010794, Jul. 16, 2002) - So.2d - (Ala.Civ.App.2002) (table).

On July 30, 2002, the final day of the 14-day period within which a party may seek rehearing of a decision of this court (see Rule 40(c), Ala. R.App. P.), Portis filed a motion that, among other things, sought reconsideration of this court’s dismissal of her appeal in case no. 2010794. That motion was treated by this court as an application for rehearing; it was overruled on September 3, 2002. This court issued a certificate of judgment on September 23, 2002, finally concluding case no. 2010794. However, before those appellate proceedings had concluded, the Montgomery Circuit Court, on August 8, 2002, purported to enter a judgment denying Portis’s mandamus petition on its merits. Portis filed a notice of appeal from that purported judgment, and the Alabama Supreme Court has transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

It is well settled that “[o]nee an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.” Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982). On August 8, 2002, Judge Greenhaw was without jurisdiction to adjudicate the merits of Portis’s action; on that date, the issue of the appropriateness of her hearing the case remained pending before this court in case no. 2010794, in which this court had yet to issue its certificate of judgment. See Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala.Civ.App.2001) (citing Ex parte Tiongson, 765 So.2d 643 (Ala.2000)). Accordingly, we conclude that the trial court’s purported judgment of August 8, 2002, from which Portis has attempted to appeal, is void and will not support an appeal. See Veteto, 792 So.2d at 1119. The appeal is therefore dismissed and the trial court is instructed to vacate its August 8, 2002, judgment. See State Dep’t of Revenue v. Zegarelli, 676 So.2d 354, 356 (Ala.Civ.App.1996). The trial court should refrain from deciding the merits of Portis’s mandamus petition until this court’s certificate of judgment, finally concluding this appeal, has been issued.

APPEAL DISMISSED.

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

      . Because we concluded that the appeal was due to be dismissed on that basis, we did not reach the issue of whether Portis was aggrieved by those orders so as to have standing to appeal.

      . Because we dismiss the appeal on procedural grounds, we do not address the merits of the contentions raised in Portis's mandamus petition (which appears neither in the record in this case nor in the record in case no. 2010794, of which we have taken judicial notice in this appeal, see Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966)).


text:
    ACCESS CAPITAL, INC. v. UPTOWN, INC.
    2020300.
    Court of Civil Appeals of Alabama.
    May 9, 2003.
    Adrian D. Johnson of Parnell & Crum, P.A., Montgomery, for appellant.
   PITTMAN, Judge.

This appeal arises from the dismissal of an action brought in the Baldwin Circuit Court by Access Capital, Inc., as the as-signee of John Michaels (who had been doing business as “Kasada”), seeking to recover from Uptown, Inc., the sum of $13,500.54 (plus interest and costs) allegedly due on an open account and alternatively on an account stated. Attached to Access Capital’s complaint were copies of four invoices Michaels had issued to Uptown for various articles of clothing delivered during August and September; each invoice indicated that the invoice had been sold to Access Capital and that payment of the invoice should be made to Access Capital. Pursuant to subsections (6) and (7) of Rule 12(b), Ala. R. Civ. P., Uptown filed a motion to dismiss, alleging that the complaint failed to state a claim upon which relief could be granted and that Access Capital had improperly failed to join two necessary parties (i.e., Michaels and Karen Sadaka, who is presumably a principal of Kasada) that it contended should have been joined under Rule 19, Ala. R. Civ. P.

On November 20, 2002, the trial court granted the motion to dismiss. Although the trial court’s judgment of dismissal initially stated that counsel for Access Capital had failed to appear at a hearing on the motion to dismiss, it later amended its judgment in response to a motion filed by Access Capital to specifically state that its dismissal was based upon Rules 12 and 19, Ala. R. Civ. P., i.e., its conclusions that the complaint failed to state a valid claim and that Access Capital had failed to join a necessary party.

On appeal from the judgment of dismissal, Access Capital contends that the trial court erred in dismissing the action. Access Capital argues that the dismissal is not defensible on either stated basis. Having received no brief from Uptown, we now consider the merits of Access Capital’s arguments.

As to the trial court’s conclusion that the complaint failed to state a valid claim, we note that the applicable standard of review militates strongly in favor of reversal:

“On review of a judgment of dismissal [for failure to state a claim], the judgment is not entitled to a presumption of correctness. The appropriate standard of review is whether the plaintiff could prove any set of circumstances that would entitle the plaintiff to relief. In reviewing a dismissal, [an appellate court] does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. A dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Green v. Nemish, 652 So.2d 243, 244 (Ala. 1994) (citations omitted).

In this case, the trial court erred in concluding that Access Capital could not possibly prevail on its claims. The complaint states, in language substantially parallel to that contained in Forms 5 and 6 appearing in Appendix I to the Alabama Rules of Civil Procedure, that Uptown owes Access Capital $13,500.54 on an open account or, alternatively, on an account stated; those forms “are sufficient under the rules [of Civil Procedure] and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” Rule 84, Ala. R. Civ. P. Moreover, four specific invoices issued by Michaels to Uptown and sold to Access Capital were appended to the complaint; pursuant to Rule 10(c), Ala. R. Civ. P., those invoices constitute a part of the complaint and tend to support Access Capital’s allegations that it is owed the sums it seeks. Because it does not appear beyond doubt from the face of the complaint that Access Capital can prove no set of facts in support of its claim that would entitle the plaintiff to relief, we must conclude that the trial court erred in reaching a contrary conclusion.

Similarly, we conclude that the trial court erred in dismissing the action for failure to join a party required to be joined under Rule 19, Ala. R. Civ. P. That rule requires joinder of persons as parties if (1) complete relief cannot be accorded without those persons among the parties already participating in an action, or (2) those persons claim an interest relating to the subject of an action and are so situated that disposition of the action in their absence may impair or impede protection of that interest or leave a current party in the action subject to a substantial risk of incurring multiple or inconsistent obligations. In this case, however, the invoices attached as exhibits to Access Capital’s complaint indicate that Access Capital is the assignee of rights to payment from Uptown that Michaels would otherwise have retained as a virtue of having supplied goods to Uptown and that Access Capital is, therefore, the sole interested party plaintiff; indeed, the invoices note that payment of moneys to parties other than Access Capital “does not constitute payment of [those invoices].”

Professors Wright, Miller, and Kane note in their discussion of the federal rule analogous to Rule 19 that “[a]n assignor of rights and liabilities under a contract generally is not needed for a just adjudication of a suit brought by the as-signee.” 7 Charles A. Wright et al., Federal Practice & Procedure § 1613 (3d ed. 2001) (citing, among other authorities, Hallman v. Safeway Stores, Inc., 368 F.2d 400 (5th Cir.1966) (assignor of contract to purchase real estate who had no interest in outcome of assignee’s suit for specific performance of contract was not a necessary party to suit)). Although Uptown may or may not have a basis for asserting claims against Michaels and/or Sadaka, claims that might be litigated more conveniently as third-party claims in the present action, the potential existence of such claims does not make Michaels or Sadaka “necessary” parties under Rule 19. See Byczek v. Boelter Cos., 230 F.Supp.2d 843, 845 (N.D.Ill.2002).

Based upon the foregoing facts and authorities, the judgment dismissing Access Capital’s claims with prejudice is due to be reversed, and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Because that motion, which invoked Rule 60(b), Ala. R. Civ. P., as a basis for relief, was filed before the appeal was taken, leave from this court to file the motion was not required. Harville v. Harville, 568 So.2d 1239, 1241 (Ala.Civ.App.1990).

      . We note, however, that two documents attached to Access Capital's brief labeled "Exhibit A” and "Exhibit D” do not appear in the record. We have not considered these exhibits in deciding the appeal, as "[t]he record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief." Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000).

      . "Federal authorities are persuasive when interpreting the Alabama Rules of Civil Procedure.” Rowan v. First Bank of Boaz, 476 So.2d 44, 46 (Ala.1985).


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

text:
    BUCO BUILDING CONSTRUCTORS, INC. v. Luther MYRICK.
    2011237.
    Court of Civil Appeals of Alabama.
    May 9, 2003.

      Anthony N. Fox and Freddie N. Harrington, Jr., of Clark & Scott, P.C., Birmingham, for appellant.
    David H. Marsh, Susan J. Silvernail, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

This appeal concerns an employer’s responsibility to provide medical benefits to an employee after the employee has received a payment from the proceeds of a settlement of a separate action brought by the employee against a third-party tortfea-sor.

In July 2002 Luther Myrick (“the employee”) filed an “emergency motion” requesting that the Jefferson Circuit Court issue an order directing Buco Building Constructors, Inc. (“the employer”), to “pay benefits which are reasonable and necessary” for his present and future medical care. An exhibit to that motion indicated that the parties had entered into a consent judgment in June 1999 with respect to a workers’-compensation action filed by the employee against the employer in 1997; under that consent judgment, the employer remained responsible for future medical expenses incurred by the employee. A second exhibit to the employee’s motion indicated that in September 2001, a separate third-party tort action brought by the employee against A & S Building Systems and NCI Building Systems had been dismissed pursuant to a settlement agreement, as the result of which the employee was paid $600,000. The employee’s motion was also supported by correspondence sent by the employee’s counsel to counsel for the employer and by an affidavit of the employee’s counsel. The employer filed a response opposing the employee’s motion; its response was supported by an affidavit of its counsel. The employee then filed a motion to hold the employer in contempt. The trial court entered a judgment denying the employee’s contempt motion, finding that “there was a genuine misunderstanding between the parties,” but granted the employee’s motion to require payment of future medical expenses on the basis that “[t]he Alabama Worker[s’] Compensation Act is remedial in nature and should be liberally construed to effectuate the intended beneficial purposes.” The employer then appealed to this court.

There is no indication in the record that the trial court held a hearing on the employee’s motions or that it considered any evidentiary materials other than written documents submitted by the parties. Under these circumstances, this court sits in judgment on the evidence and our review of the trial court’s judgment is de novo. See, e.g., Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980).

The record reveals the following pertinent facts. The employee sued to obtain workers’-compensation benefits from the employer based upon a workplace injury to his back that he suffered in September 1997. Although the parties disputed the extent of the employee’s disability resulting from that injury, the parties, in June 1999, agreed to a consent judgment on the employee’s workers’-compensation claim. Under that judgment, the employee received a lump sum of $56,000 (less an attorney fee of 15%) as compensation for his injury, while the employer was to “remain responsible for all future medical benefits to which the [employee] is entitled under” the Workers’ Compensation Act.

After the workers’-compensation action had been resolved, the employee brought an action against A & S Building Systems and NCI Building Systems in which he alleged that those parties were responsible for his workplace injury. After that third-party action had been initiated, counsel for the employee entered into settlement negotiations with counsel for the employer regarding the employer’s potential subro-gation claim against any proceeds obtained by the employee as a result of that third-party action; at that time, the employer and/or its insurance carrier had expended $102,030 toward providing medical benefits to the employee under the Workers’ Compensation Act. According to the affidavit filed by the employee’s counsel, he told counsel for the employer that settlement of the third-party action would be possible only if the employee’s future medical benefits would remain open (i.e., only if the employer remained responsible for the employee’s future medical expenses arising from the injury). The affidavits submitted by counsel for both parties indicate that the parties’ attorneys agreed in August 2001 that $51,015 (ie., half of the employer’s expenditures) would be paid to the employer from any proceeds obtained by the employee through settlement of the third-party action. A letter dated August 17, 2001, sent by counsel for the employee to the employer’s counsel contains the following pertinent statements:

“This will confirm our telephone conversation of August 16, 2001, during which we reached an agreement regarding the outstanding subrogation in this ease. Specifically, we have agreed to reimburse AIG Claims Services [the employer’s workers’-compensation insurance carrier] 50% of the amounts expended in worker[s’] compensation benefits and medical benefits paid to date. It is my understanding that the total benefits paid are $102,030.00. Therefore, one-half of this amount equals $51,015.00.
“This will also confirm that all future medicals under the Alabama Workers’] Compensation Act shall remain open and the workers’] compensation carrier will remain obligated to pay future claims under the Act.
“As per your instructions, I will have a check made payable to AIG Claims Services and sent to your office as soon as I receive the settlement proceeds in connection with the third party case.”

The affidavit of the employer’s counsel indicates that counsel for the employee, while negotiating a settlement of the third-party action with the defendants in that action, inquired about a potential reduction of the employer’s subrogation lien upon proceeds that might be recovered by the employee from the third parties. According to that affidavit, the employer advised the employee’s attorneys that it would not compromise its lien or subrogation interests, and that the parties had reached no agreements concerning the employer’s right to subrogation as to future medical benefits. However, on September 28, 2001, after the parties to the third-party action had settled that action and the employee had been paid, counsel for the employee sent a check for $51,015 to counsel for the employer accompanied by a letter stating that that check represented “full and final payment of the amount owed by [the employee] to AIG Claims Services in connection with his workers’ compensation lien.” Nevertheless, counsel for the employer advised AIG Claims Services that it “had a right to subrogate against future medical benefits the sum of $48,985.00, and that after that amount of medical bills was incurred by the [employee, AIG Claims Services] would be required to provide and pay for future medical benefits” to the employee.

In January 2002, the employee reported to an orthopedic medical clinic and complained of bilateral arm and leg pain; the employee’s physician prescribed a magnetic-resonance-imaging scan of the employee’s cervical and lumbar spine and nerve conduction studies on both legs. However, when the medical provider telephoned the employer’s insurance carrier regarding payment for the medical services rendered to the employee, the carrier’s representative refused to make further medical payments until the employee had paid $48,985 out of his own pocket.

The employer contends that the trial court should not have required it to provide medical benefits to the employee without obtaining further payments as to its subrogation claim. The employer correctly argues that under Ala.Code 1975, § 25-5-ll(a), as amended in 1992, an employer and/or an employer’s workers’-compensation insurance carrier has a right to subrogation with respect to employee recoveries against third parties to the extent of the cost of “medical and vocational benefits expended by the employer on behalf of the employee,” a right that has been construed by our Supreme Court to extend to “future medical benefits that have not been paid, but which the law requires the employer to pay.” Ex parte BE & K Constr. Co., 728 So.2d 621, 623 (Ala.1998). Thus, as a general rule, when an injured employee recovers damages from a third-party tortfeasor for an injury covered under the Workers’ Compensation Act and for which an employer has expended sums for providing medical or vocational benefits to the employee, the employer is to resume paying such medical expenses only “[w]hen the portion of the third-party recovery that is attributable to medical expenses is exhausted.” Ex parte Miller & Miller Constr. Co., 736 So.2d 1104, 1105 (Ala.1999); accord, Skilstaf, Inc. v. Williams, [Ms. 2001172, Sept. 20, 2002] — So.2d-(Ala.Civ.App.2002). Thus, the trial court erred in interpreting the Workers’ Compensation Act as preventing the employer from claiming an interest in the employee’s third-party recovery beyond the $51,015 previously reimbursed.

The employee contends that Ex parte BE & K does not apply here because, he says, the employer has not requested a court with “proper jurisdiction” to attribute any of the third-party recovery as payments for future medical expenses. According to the employee, only the federal district court in which his third-party action was filed would have the authority to determine the amount, if any, of the proceeds properly allocated to the employee’s future medical expenses. We acknowledge that the Supreme Court in Ex parte BE & K stated that “it is in the capable hands of the trial judges presiding over the third-party actions to determine to them satisfaction the amount of each award in a third-party action to be attributed to the employee’s medical (or vocational) expenses.” 728 So.2d at 624.

However, in Ex parte Miller & Miller Construction Co., supra, the Supreme Court directed the trial court in which an employee’s workers’-compensation action had been pending to “conduct a hearing to determine, using equitable principles applicable to subrogation rights, which part of [that employee’s] settlement is attributable to medical expenses” and should “enter an order allowing [the employer] to be subro-gated to that portion of [the employee’s] third-party recovery that is attributable to the future medical expenses [the employer] would be legally required to pay.” 736 So.2d at 1105 (footnote omitted). Similarly, in Skilstaf, we remanded a cause for the trial court having jurisdiction over an employee’s workers’-compensation action “to reapportion [a] settlement” of a third-party claim that had been settled under terms that expressly included no allocation for future medical or vocational benefits. — So.2d at-.

Thus, where trial courts in which third-party claims have been brought make no determination concerning the proper allocation of settlement proceeds with respect to future medical expenses, or erroneously determine that no portion of a third-party recovery is allocable to such expenses, it devolves upon courts hearing employees’ workers’-compensation claims, in the first instance, to rectify such errors or omissions by “fairly apportion[ing]” third-party recoveries so as to equitably determine what portions thereof are “attributable to medical (and vocational) expenses, both past and future.” Ex parte BE & K, 728 So.2d at 624. We therefore conclude that the employer’s subrogation rights are not foreclosed by its nonpartici-pation in the third-party action.

The employee also argues that the trial court’s judgment directing the employer to provide future medical benefits without further subrogation payments from the employee’s third-party recovery is consistent with the proper application of the doctrine of accord and satisfaction, citing Ex parte Meztista, 845 So.2d 795 (Ala. 2001). Although that doctrine was not invoked in the trial court, the issue of its applicability has been fully briefed by the parties, and it is well settled that a correct judgment may be affirmed, even on a basis not asserted in the trial court. See, e.g., Progressive Specialty Ins. Co. v. Ham-monds, 551 So.2d 333, 337 (Ala.1989).

An employee’s obligation to satisfy an employer’s subrogation interest may be extinguished by application of the doctrine of accord and satisfaction, which has been codified by our legislature. Section 8-1-20, Ala.Code 1975, defines “accord” as a party’s agreement to accept something different from, or less than, what that party claims or to which that party is entitled “in extinction of an obligation.” Likewise, § 8-1-22 defines “satisfaction” as the acceptance of the consideration of accord and states that that acceptance extinguishes the underlying obligation.

The legal principles underlying the doctrine of accord and satisfaction are not new to Alabama law, nor are they generally complex. For example, in Ex parte Meztista, supra, the Alabama Supreme Court considered the effect of a partner’s negotiation of a check drawn on a partnership account and bearing the legend “final payment/payment in full” upon that partner’s right to subsequently assert claims against the partnership and the other partner that arose out of the conduct of the partnership. Applying principles of accord and satisfaction to the facts presented, the Supreme Court concluded that when the partner who received the check “endorsed and deposited the check, she agreed to the condition upon which it was offered” and that she was “estopped to deny that agreement.” 845 So.2d at 798.

In this case, the August 17, 2001, letter of the employee’s counsel states that the parties had reached an agreement “regarding the outstanding subrogation” whereunder the employee would pay the employer $51,015. When a check for $51,015 was forwarded to counsel for the employer, the letter accompanying the check stated that that check represented full and final payment of the amount owed “in connection with [the] workers’-eompen-sation lien.” However, the check sent by the employee and negotiated by the employer’s earlier does not appear in the record, which distinguishes this case from Meztista (in which the existence of the legend “final paymeni/payment in full” on the check itself was held to constitute an accord and satisfaction).

Moreover, while the affidavit of the employee’s counsel states that he “would never have agreed to pay $51,015.00 to the employer without having assurances that [the employee]’s future medical bills would be covered and that the amount would completely satisfy any subrogation claim by the employer” (emphasis added), the affidavit submitted by the employer’s counsel indicates that there was no meeting of the minds on the latter point. Instead, counsel for the employer affirmed that he had advised the employee’s attorneys that the employer “would not compromise its lien or subrogation interest” and stated that “no conversations” took place between the parties “where the issue of the employer’s waiving its right to sub-rogate against future medical benefits [were] discussed.”

Although the affidavits of both counsel indicate that the employee’s counsel insisted (and the employer’s counsel agreed) that future medical benefits should remain “open,” i.e., that the employer should remain responsible for paying for the employee’s medical expenses, that agreement is not the same as a knowing and voluntary waiver of the employer’s right to seek subrogation as to such future medical payments (which right would ripen only upon the expenditure of sums on behalf of the employee’s medical care). Indeed, in refusing to sanction the employer for contempt, the trial court’s judgment expressly concluded that “there was a genuine misunderstanding between the parties,” which indicates a lack of a true “meeting of the minds” as to the issue of subrogation for future medical benefits left open by the parties.

After reviewing the record and sitting in judgment upon the documentary evidence presented by the parties, as the applicable standard of review mandates, we conclude that the employee failed to demonstrate that the employer agreed to accept $51,015 as full payment “in extinction of’ the employee’s legal obligation to reimburse the employer for its future medical payments on his behalf. Therefore, the trial court erred in directing the employer to pay the employee’s future medical expenses arising from his workplace injury “without further subrogation payments.” As a result, we reverse the trial court’s judgment and remand the cause for the trial court to “conduct a hearing to determine, using equitable principles applicable to subrogation rights, which part of [the third-party] settlement is attributable to [future] medical expenses.” Ex parte Miller & Miller Constr. Co., 736 So.2d at 1105 (footnote omitted). We further note that “[w]hen the portion of the third-party recovery that is attributable to medical expenses is exhausted, [the employer] will then be required to resume payment of medical expenses.” Ex parte Miller & Miller Constr. Co., 736 So.2d at 1105 (emphasis added).

REVERSED AND REMANDED.

CRAWLEY, J., concurs.

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

MURDOCK, J., dissents.

YATES, Presiding Judge,

concurring in the result.

I concur in the result reached by the main opinion; however, I write to note my hesitancy in deciding the issue relating to the doctrine of accord and satisfaction without the trial court’s having first decided the issue.

MURDOCK, Judge,

dissenting.

Unlike the record in Skilstaf, Inc. v. Williams, [Ms. 2001172, Sept. 20, 2002] -— So.2d-(Ala.Civ.App.2002), the record in the present case does indicate an equitable defense to the employer’s right to subrogation for medical expenses. See Skilstaf, — So.2d at ■ — - (Murdock, J., concurring in part and concurring in the result in part). Based on the record presented in this case and applicable law, I must conclude that, as to the proceeds of the particular third-party lawsuit at issue, there was an accord and satisfaction as to the employer’s subrogation rights and the employer should be estopped from asserting subrogation rights as to medical expenses beyond the amount of $51,015. See Ex parte BE & K Constr. Co., 728 So.2d 621 (Ala.1998) (holding that the availability of subrogation as to medical expenses is controlled by equitable principles of subro-gation).

I therefore must respectfully dissent.

      . According to the affidavit of the employer’s counsel, the amount of the settlement was initially represented to have been $200,000; however, the actual amount of that settlement was $600,000.

      . The check does not appear in the record.

      . As we noted in Skilstaf, "apportionment is not purely a question of fact solely dependent upon the intention of the settling parties," but is instead "a mixed question of law and fact.” -So.2d at-■.


author:
PER CURIAM.
      SHAW, Judge,

text:
    Ex parte Vaughn Steel FOWLER. (In re State of Alabama v. Vaughn Steel Fowler).
    CR-00-2513.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2001.
    Rehearing Denied Feb. 1, 2002.

      Cindy W. Powell, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for respondent.
   PER CURIAM.

The appellant, Vaughn Steel Fowler, filed this petition for a writ of mandamus directing Judge Robert Earl Witters to grant his motion to recuse himself from hearing Fowler’s de novo appeal in the circuit court. Fowler was convicted in the district court for public intoxication, resisting arrest, menacing, and assault. He was sentenced to concurrent terms of 60 days in jail for each offense and was fined $100 and assessed court costs in each case. Fowler gave notice that he was appealing de novo to the Circuit Court for Baldwin County. At a pretrial conference Judge Wilters informed Fowler that if convicted in the circuit court he would receive a greater sentence than the sentence he had received in district court. Based on that statement, Fowler moved that Judge Wil-ters recuse himself. Judge Wilters denied the motion; this petition followed. This petition was filed on August 31, 2001; Fowler’s trial was set for September 5, 2001. We stayed all action in the circuit court pending the outcome of this petition.

“A writ of mandamus is the appropriate vehicle by which to review a trial court’s ruling on a motion for recusal.” Ex parte Knotts, 716 So.2d 262, 263 (Ala. Crim.App.1998).

Fowler argues that Judge Wilters improperly denied his motion to recuse because, he says, there was “an appearance of impropriety” based on Judge Wil-ters’s statement. The State responded, arguing that “Fowler has not demonstrated that a reasonable person would conclude that Judge Wilters is personally biased against Fowler[;] he has failed to establish that Judge Wilters has a legal obligation to recuse himself from presiding over Fowler’s appeal.” (State’s answer, p. 6-7; emphasis added.) The State does not dispute that Judge Wilters made this statement. In fact, the State has attached a copy of an affidavit executed by Judge Wilters. The affidavit states that Judge Wilters told Fowler that he would receive a greater sentence if he was convicted in the circuit court and that so informing a defendant was his policy.

Canon 3.C.(1), Alabama Canons of Judicial Ethics, governs when a judge is required to recuse himself or herself from hearing a case. The Canon states, in part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law[ ] or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

(Emphasis added.) The Canons of Judicial Ethics have the force and effect of law. Balogun v. Balogun, 516 So.2d 606 (Ala. 1987). Subsections (a) through (d) in Canon 3.C.(1) of the Canons of Judicial Ethics are examples of situations where a trial court’s impartiality might reasonably be questioned. The list does not purport to be inclusive. As subdivision (1) states, “including but not limited to instances where.... ”

The United States Code includes a statute similar to Canon 3.C.(1), which defines when a judge must recuse from a case. See 28 U.S.C. § 455. This section reads, in part, as follows:

“(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
“(b) He shall also disqualify himself in the following circumstances:
“(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evi-dentiary facts concerning the proceeding;
“(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it....”

Interpreting this statute, the United States Supreme Court stated the following:

“Subsection (a), the provision at issue here, was an entirely new ‘catchall’ recu-sal provision, covering both ‘interest or relationship’ and ‘bias or prejudice’ grounds, see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) — but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’ ”

Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

In Ex parte Duncan, 638 So.2d 1332 (Ala.), cert, denied, 513 U.S. 1007, 115 S.Ct. 528, 130 L.Ed.2d 432 (1994), the Alabama Supreme Court, interpreting Canon 3.C., Alabama Canons of Judicial Ethics, stated that the question is not whether “the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality — whether there is an appearance of impropriety.” The Supreme Court declined to issue a writ of mandamus because there was no evidence that the trial court was “personally biased” against Duncan. The situation presented here is different from the situation presented in Duncan, because it does not involve Canon 3.C.(l)(a) — a personal bias — -but rather Canon 3.C.(1> — a situation where the trial court’s impartiality might reasonably be questioned.

We have never had occasion to specifically address whether Canon 3.C.(1) — a situation where the impartiality of a judge might reasonably be questioned — and Canon 3.C.(l)(a) — -a situation where there is a direct personal bias — are separate provisions of Canon 3.C. However, we believe that prior caselaw and the wording of the Canon implies that the two provisions are separate and distinct. See Crowell v. May, 676 So.2d 941 (Ala.Civ.App.1996) (actual bias is not necessary in order to mandate recusal but “only a reasonable appearance of bias or impropriety”). See also Balogun v. Balogun, supra, where the Alabama Supreme Court stated the following about Alabama’s Canons of Judicial Ethics:

“At early common law, and prior to the adoption of the Alabama Canons of Judicial Ethics, mandamus was granted to require a judge to recuse himself only if the judge had a personal or pecuniary interest, Fulton [v. Longshore, 156 Ala. 611, 46 So. 989 (1908) ], or if the judge’s personal rights were at stake. Fulton, 156 Ala. at 614, 46 So.2d at 990, citing Ex parte State Bar Ass’n, [92 Ala. 118, 8 So. 768 (1890) ].
“The adoption of the Canons of Judicial Ethics, which have the force of law, provided a new standard. See Wallace v. Wallace, 352 So.2d 1376 (Ala.Civ.App. 1977).
“Canon 2(A) states:
“A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
“Given the concept of promoting public confidence in the system, Canon 3(C)(1) states that ‘[a] judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned’ by members of the public, a party, or counsel. See Wallace, supra; Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982); affirmed on other grounds, 474 So.2d 91 (Ala.1985).”

516 So.2d at 608-09. See also Ex parte Pnce, 715 So.2d 856 (Ala.Crim.App.1997).

The United States Supreme Court, when interpreting 28 U.S.C. § 455, stated that provisions similar to our Canon 3.C.(1) and Canon 3.C.(l)(a) are separate provisions that are to be evaluated under the facts presented in each case. We agree; we likewise hold that Canon 3.C.(1) and Canon 3.C.(l)(a) through 3.C.(l)(d) are separate and distinct provisions. Thus, a situation where the impartiality of a judge might reasonably be questioned may not always involve direct personal bias on the part of the judge.

In Richardson v. City of Truss-ville, 492 So.2d 625 (Ala.Crim.App.1985), this Court addressed an issue similar to the one presented in this case. Though ultimately agreeing with the State’s argument that there was no error because the trial court had sentenced Richardson to a lesser prison term than the sentence he received in the district court, we stated the following:

“Richardson maintains that the trial court erred to reversal in not granting a motion for mistrial and another motion requesting that the trial judge recuse himself. Both motions are grounded on the trial judge’s statement that he would impose a stiffer sentence upon conviction in the trial de novo than the sentence imposed by the municipal court.
“It is a ‘flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.’ North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). It is no less a violation of due process when a harsher sentence is imposed upon a defendant for having successfully pursued a statutory right of appeal or collateral remedy. Id. To insure the absence of vindictiveness at sentencing, Pearce requires ‘that whenever a judge imposed a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.’ Id. at 725-26, 89 S.Ct. at 2080-81, 23 L.Ed.2d 656.
“However, the danger of vindictive sentencing is not inherent in a two-tiered trial de novo system such as that found in this state so that ‘Pearce does not apply to a sentence after an appeal and a trial de novo in a two-tier system for adjudicating criminal offenses. Col-ten v. Kentucky, 407 U.S. 104, 112-120, 92 S.Ct. 1953, 1958-1962, 32 L.Ed.2d 584 (1972).’ Hardy v. State, 455 So.2d 265, 268 (Ala.Cr.App.1984); Clark v. City of Mobile, 357 So.2d 675, 677-78 (Ala.Cr. App.), cert, denied, 357 So.2d 680 (Ala. 1978); A. Campbell, Law of Sentencing § 42 (1978). Nevertheless, even in such a system, the possibility exists that a ‘defendant might prove actual vindictiveness and thereby establish a due process violation.’ Wasman v. United States, 468 U.S. 559, [567,] 104 S.Ct. 3217, 3222, 82 L.Ed.2d 424 (1984).
“Here, the evidence of vindictiveness on the part of the judge at the trial de novo is clear. The record reflects the following comments prior to the sentencing aspect of the trial:
“ ‘The Court: When I call this docket on these municipalities I said, gentlemen, when I try these cases they’re going to get more than they get below if they’re guilty. You weren’t here when that occurred. He knows and everyone in this courtroom knows when they appeal up here, if you’re going to appeal, then they’re going to get more than they got below if they’re guilty.
“ ‘Mr. Turberville [Defense Counsel]: Could we have that on the record, Your Honor?
“ ‘The Court: Put it on the record. If they’re going to appeal up here and be found guilty I’m going to give more than they got below in most instances.
“ ‘Mr. Turberville: And his honor stated that he had told the lawyers that they were here on the date that the case was first set that if they tried it they would receive more.
“ ‘The Court: If they were found guilty and they tried it, yes, they were going to get more than the lower court.’
“These comments evidence the vindictive attitude condemned in Pearce as constitutionally impermissible. 395 U.S. at 723-25, 89 S.Ct. at 2080, 23 L.Ed.2d 656.”

492 So.2d at 628-29. See also Draime v. State, 523 So.2d 137 (Ala.Crim.App.1988).

In Wright v. State, 628 So.2d 1071 (Ala. Crim.App.1993), the trial judge, when ruling on a motion for a mistrial, stated that if the motion was granted he would sentence Wright to the maximum sentence. The motion for a mistrial was granted, and Wright was retried and convicted. Before his sentence hearing Wright moved that the trial judge recuse himself, based on the judge’s earlier remarks about Wright’s sentence. The trial court denied the motion; Wright appealed. When reviewing this issue we stated:

“Trial judges should refrain from volunteering remarks regarding our sentencing before a finding of guilt has been made and before presentencing considerations are examined. In situations where premature remarks are made, a red flag is raised in regard to potential bias on the part of the judge. In such a case, this Court must closely review the remarks and conduct of the trial judge to ensure that the accused was, in fact, accorded fairness in all stages of his trial.”

Judge Wilters’s remarks show a “vindictive attitude,” see Richardson, and imply that all individuals who seek to appeal their district court convictions to the circuit court will suffer a greater punishment if Judge Wilters is the presiding judge on the case. We believe that Judge Wilters’s comments evidence an appearance of impropriety sufficient to warrant his recusal under Canon 3.C.(1). Judge Wilters abused his discretion in denying the motion to recuse. This petition for a writ of mandamus is due to be, and is hereby, granted.

PETITION GRANTED.

McMILLAN, P.J., and COBB and BASCHAB, JJ„ concur.

SHAW, J., dissents, with opinion, which WISE, J., joins.

SHAW, Judge,

dissenting.

In his answer to the mandamus petition, Judge Wilters has submitted an affidavit to this Court that states in part:

“At a pretrial hearing, I told Vaughn Steel Fowler, ‘If you are found guilty by the Jury, you will receive a greater sentence than you did in District Court.’ And I further stated, ‘This is my policy with all appeals.’
“My statements to Mr. Fowler and to other appellants of District Court or Municipal Court were made when it became apparent to the Court that the Attorneys for Appellants were not telling their clients they could be sentenced to more time if convicted in Circuit Court than what they got in District or Municipal Court. I feel the Defendant/Appellant needs to be informed about all possible sentence ranges.
“In reality, Defendants are sentenced on a case-by-case basis and may or may not receive a greater sentence based on the facts and the recommendation of the prosecutor.
“I know nothing about the facts of Mr. Fowler’s cases and consider Mr. Fowler innocent until he is proven guilty.”

I wholeheartedly agree with the majority that it is a flagrant violation of the Fourteenth Amendment for a state trial judge to announce and follow a practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for having-exercised his statutory right of appeal. As this Court noted in Richardson v. City of Trussville, 492 So.2d 625, 629 (Ala.Crim. App.1985):

“Nevertheless, even in such a system [a two-tiered trial de novo system], the possibility exists that a ‘defendant might prove actual vindictiveness and thereby establish a due process violation.’ ”

However, the limited facts before this Court in connection with this mandamus petition do not demonstrate personal bias on the part of Judge Wilters against Fowler. Those facts do, I think, suggest a form of judicial bias, in that Judge Wilters’s remarks could be construed as evidencing a bias against a class of litigants, of which Fowler is a member. I note that the Alabama Supreme Court has held that alleged judicial bias (bias arising from a judicial source) is generally insufficient to require recusal under Canon 3.C.(1), Alabama Canons of Judicial Ethics. See, e.g., Ex parte Duncan, 638 So.2d 1332 (Ala. 1994); Ex parte Large, 501 So.2d 1208 (Ala.1986). I note further that in Richardson, a case squarely on point with the present case, this Court remanded the case for resentencing; it did not order the recusal of the trial judge. Richardson is therefore consistent with Ex parte Duncan, Ex parte Large, and other cases that stand for the general proposition that a trial judge’s statements, although improper when considered within the context of a particular case, are not necessarily grounds for recusal when they do not arise from an extrajudicial source. See also Ex parte Hunt, 642 So.2d 1060 (Ala.1994); Kitchens v. Maye, 623 So.2d 1082 (Ala. 1993); Ex parte Whisenhant, 555 So.2d 235 (AIa.1989); Ex parte Melof 553 So.2d 554 (Ala.1989), abrogated in part by Ex parte Crawford, 686 So.2d 196 (AIa.1996); Medical Arts Clinic, P.C. v. Henry, 484 So.2d 385 (Ala.1986); Ex parte Knotts, 716 So.2d 262 (Ala.Crim.App.1998); Stewart v. State, 730 So.2d 1203 (Ala.Crim.App.1997); Ex parte Bryant, 675 So.2d 552 (Ala.Crim. App.1996); Bush v. State, 695 So.2d 70 (Ala.Crim.App.1995), affid, 695 So.2d 138 (Ala.1997); Beard v. State, 661 So.2d 789 (Ala.Crim.App.1995); Riddle v. State, 669 So.2d 1014 (Ala.Crim.App.1994); Parker v. State, 587 So.2d 1072 (Ala.Crim.App.1991); Wright v. State, 628 So.2d 1071 (Ala.Crim. App.1993); Adkins v. State, 600 So.2d 1054 (Ala.Crixn.App.1990); and Houston v. State, 565 So.2d 277 (Ala.Crim.App.1990).

I recognize that Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), in which the United States Supreme Court construed a federal statute similar to Canon 3.C.(1), is persuasive authority with respect to the proper interpretation of Canon 3.C.(1). However, based upon my reading of Ex parte Duncan, Ex parte Large, and other cases from the Alabama Supreme Court, I am concerned that this Court may have no constitutional authority to construe Canon 3.C.(1) in accordance with Liteky. This Court cannot expressly or implicitly overrule a decision of the Alabama Supreme Court, and I question whether the decisions of that Court can be adequately distinguished so as to open the door for this Court to apply the Liteky construction to Canon 3.C.(1). The rationale that has been applied by the Alabama Supreme Court has not been entirely clear; however, that Court has consistently used restrictive language indicating that bias justifying disqualification under Canon 3.C.(1) must stem from an extrajudicial source and must be pei’sonal in nature. For example, in Ex parte Large, supra, at 1210, the Court, quoting United States v. Grinned, 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), stated: “ ‘The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.’ ” I do note that in Parker, supra, this Court recognized an exception to the extrajudicial-source doctrine when the movant demonstrates “ ‘ “pervasive bias and prejudice.” ’ ” 587 So.2d at 1097, quoting McWhotier v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990). See also Stewart, supra, and Beard, supra, which use the pervasive-bias-and-prejudice language. See Liteky, where the Court noted:

“It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that ‘extrajudicial source’ is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, since it is not the exclusive reason a predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can also deserve to be characterized as ‘bias’ or ‘prejudice’ because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. (That explains what some courts have called the ‘pervasive bias’ exception to the ‘extrajudicial source’ doctrine. See, e.g., Davis v. Board of School Comm’rs of Mobile County, 517 F.2d 1044, 1051 (C.A.5 1975), cert, denied, 425 U.S. 944 (1976).)”

510 U.S. at 551, 114 S.Ct. 1147 (emphasis in original).

I find it unnecessary to second-guess the opinions of the Alabama Supreme Court discussing Canon 3.C.(1); even if I were to apply the construction of Canon 3.C.(1) adopted by the majority or the pervasive-bias-and-prejudice exception to the extrajudicial-source doctrine previously adopted by this Court, I could not agree that a writ of mandamus should issue in this particular case. The Liteky Court summarized its holding as follows:

“For all these reasons, we think that the ‘extrajudicial source’ doctrine, as we have described it, applies to § 455(a). As we have described it, however, there is not much doctrine to the doctrine. The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for ‘bias or prejudice’ recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for ‘bias or prejudice’ recusal since some opinions acquired outside the context of judicial proceedings (for example, the judge’s view of the law acquired in a scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) ‘extrajudicial source’ factor, than of an ‘extrajudicial source’ doctrine, in recusal jurisprudence.
“The facts of the present case do not require us to describe the consequences of that factor in complete detail. It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. [563], at 583 [(1966)]. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22 (1921), a World War I espionage case against German American defendants: ‘One must have a very judicial mind, indeed, not [to be] prejudiced against the German-Amerieans’ because their ‘hearts are reeking with disloyalty.’ Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge’s ordinary efforts at courtroom administration — even a stem and short-tempered judge’s ordinary efforts at courtroom administration — remain immune.”

510 U.S. at 554-56, 114 S.Ct. 1147 (emphasis in first paragraph original; other emphasis added).

Mandamus is an extraordinary remedy that will not lie unless the petitioner can show a clear legal right to relief. Ex parte Army Aviation Ctr. Fed. Credit Union, 477 So.2d 379 (Ala.1985). Judge Wilters states in his affidavit that (for reasons that are not entirely clear to me) he told Fowler that he could expect a greater sentence if convicted, based on his policy of telling all of those who appeal’ before him challenging district or municipal court judgments that they would (not that they might) receive a greater sentence if they were found guilty. Remarks of this kind, standing alone and viewed objectively, would appear to the average person to indicate bias, i.e., vindictiveness on the part of Judge Wilters against those exercising their statutory right to appeal to circuit court — bias so deep-seated that the fairness of any sentence would be subject to question. However, Judge Wilters also states in his affidavit: “In reality, Defendants are sentenced on a case-by-case basis and may or may not receive a greater sentence based on the facts and the recommendation of the prosecutor.” Viewed in the abstract, these remarks, made in response to the mandamus petition, would appear to the average person to indicate impartiality on the part of Judge Wilters in his approach to sentencing in cases tried de novo in his court. On the other hand, when viewed in conjunction with his other remarks, Judge Wilters’s recantation of his remarks concerning his sentencing policy could, as the majority concludes, appear to the average person to be self-serving and lacking in credibility. Nevertheless, the Alabama Supreme Court attaches significance to a trial judge’s reaffirmation of impartiality following comments made during a judicial proceeding causing a party to question the judge’s partiality; that Court has indicated a hesitance to issue a writ of mandamus or to reverse under such circumstances. See Ex parte Large, supra, at 1211 (“Based on the foregoing, this Court cannot find that the petitioners have made a clear- showing that recusal is required in this case. Judge Price unequivocally states that he is not biased against petitioners and that he holds no bias for or against either side in this action.”); see also Hartman v. Board of Trustees of University of Alabama, 436 So.2d 837, 841 (Ala.1983) (“While the trial judge’s remarks to Hartman’s attorney were of an unfortunate and intemperate nature, the record indicates that he recognized that fact, and apologized in open court.”).

There are two fundamental judicial policies reflected in the law of recusal. The general rule of recusal embodied in Canon 3.C.(1) should be applied in such a way as to strike a balance between the policy requiring a judge to hear and decide cases and the policy requiring a judge to be an impartial decision-maker. Judge Wilters has taken an oath to fairly decide the cases before him. By continuing to make remarks such as those he made to Fowler, in essence announcing his intention to follow an across-the-board policy of enhanced sentences in cases of this kind (although, in reality, he may not follow such a policy), Judge Wilters will cast unnecessary doubt over the sentences he imposes. See Richardson, supra; Wright, supra. However, he has clearly stated under oath that he will sentence on a case-by-case basis, with due regard to the facts and the recommendation of the prosecutor. By issuing its writ of mandamus under these circumstances, this Court (I believe unnecessarily) calls into question Judge Wilters’s ability to sit on any criminal case appealed de novo to his court. Considering our stringent mandamus standard of review (clear showing that recusal is required), in conjunction with Judge Wilters’s recantation of his remarks, as well as existing caselaw from this Court and from the Alabama Supreme Court, as noted above, I cannot say, as a matter of law, that Judge Wil-ters’s initial in-court remarks to Fowler concerning his sentencing policy, in and of themselves, mandate his recusal through this Court’s issuance of the writ of mandamus. I hasten to point out, however, that if Fowler is found guilty in circuit court and if Judge Witters were to remain on the case and impose a greater sentence than the one Fowler received in district court, then Fowler would have an adequate remedy by appeal, in which he could challenge his sentence on due process grounds, in accordance with the general principles set out in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 28 L.Ed.2d 656 (1969). See Richardson, supra.

For these reasons, I would deny the petition; therefore, I respectfully dissent.

      . Section 12-1-12, Ala.Code 1975, provides:
      "No judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered of record or put in writing if the court is not of record.”

      . I note that Liteky has been previously cited by this Court. See Ex parte Knotts, supra, at 267-68. The Alabama Supreme Court has, to my knowledge, never discussed it.

      . "Recant” is defined in Black’s Law Dictionary (7th ed.1999), as "[t]o withdraw or renounce (prior statements or testimony) formally or publicly.” Judge Wilters’s affidavit was filed with this Court and served on Fowler through his counsel in accordance with Rule 25(b), Ala. R.App. P.


author: SEE, Justice. HOUSTON, Justice STUART, Justice

text:
    Ex parte State of Alabama. (In re Ex parte Vaughn Steel FOWLER (In re State of Alabama v. Vaughn Steel Fowler)).
    1010961.
    Supreme Court of Alabama.
    May 2, 2003.
    William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for petitioner.
    Cindy W. Powell, Mobile; and Donald A. Friedlander, Mobile, for respondent.
   SEE, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

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

MOORE, C.J., and HOUSTON and STUART, JJ., dissent.

HOUSTON, Justice

(dissenting).

I adopt Judge Shaw’s dissent to the Court of Criminal Appeals’ opinion as my special writing.

The Court of Criminal Appeals ordered Judge Witters to file an answer to Fowler’s petition for a writ of mandamus. Judge Witters did so by filing an affidavit, which was in the nature of a plea of confession and avoidance. He admitted that he told Fowler what Fowler said he had told him (“If you are found guilty by the jury, you will receive a greater sentence than you did in District Court.”); he explained why he said what he said (“... Attorneys for Appellants were not telling their clients they could be sentenced to more time if convicted in Circuit Court than what they got in District or Municipal Court.... Appellant needs to be informed about all possible sentence ranges.”); he avoided the confession by what he swears he in fact does (“Defendants are sentenced on a case-by-case basis and may or may not receive a greater sentence based on the facts and the recommendation of the prosecutor.”).

If Fowler is found guilty by a jury in the circuit court and if Judge Wilters remains on the case and indeed imposes a greater sentence than Fowler received in the district court, Fowler will have an adequate remedy by appeal.

STUART, Justice

(dissenting).

I respectfully dissent from this Court’s decision to quash the writ.

Vaughn Steel Fowler was convicted in the Baldwin District Court for public intoxication, resisting arrest, menacing, and assault. He was sentenced to 60 days in jail for each conviction; those sentences were to be served concurrently. Fowler appealed to the Baldwin Circuit Court for a trial de novo. At a pretrial conference, the circuit judge, Robert Earl Wilters, told Fowler that if he was convicted in the circuit court the sentence for each conviction would be greater than the sentence that had been imposed in the district court. Alleging that the circuit judge’s statements indicated a bias against him, Fowler moved the circuit judge to recuse himself. Judge Wilters summarily denied the motion.

Fowler petitioned the Court of Criminal Appeals for a writ of mandamus directing the circuit judge to recuse himself. The Court of Criminal Appeals concluded that Judge Wilters’s statements in the pretrial conference exhibited a “vindictive attitude” and granted the petition. Ex parte Fowler, 863 So.2d 1136, 1141 (Ala.Crim.App. 2001).

The State contends that the Court of Criminal Appeals incorrectly answered a material question of first impression with regard to Canon 3.C., Alabama Canons of Judicial Ethics. Specifically, the .State maintains that the Court of Criminal Appeals erred in holding that Canon 3.C.(1) and Canon 3.C.(l)(a) are separate and distinct provisions.

Canon 3.C. provides, in pertinent part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be' questioned, including but not limited to instances where:
“(a) He has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....”

(Emphasis added.)

“Include” is defined in Black’s Law Dictionary 766 (7th ed.1999), as follows:

“To contain as a part of something. The participle including typically indicates a partial list <the plaintiff asserted five tort claims, including slander and libel>. But some drafters use phrases such as including without limitation and including but not limited to — which mean the same thing.”

See also Alligator Enters., Inc. v. General Agent’s Ins. Co., 773 -So.2d 94 (Fla.Dist.Ct. App.2000).

Canon 3.C.(1) addresses a situation where a judge’s impartiality might reasonably be questioned — that is, whether the impartiality involves direct personal bias toward a particular litigant, see Ex parte Duncan, 638 So.2d 1332 (Ala.1994), or a judicial bias toward a group of litigants, see Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)(construing 28 U.S.C. § 455); and McWhorter v. City of Birmingham, 906 F.2d 674 (11th Cir.1990). The plain, ordinary. language of Canon 3.C.(1) indicates that subsections (a) through.(d) create a partial, not all inclusive, list of situations in which a judge may not participate without violating Canon ,3.C.(1). The language is unambiguous; subsections (a) through (d) are not separate and distinct provisions from Canon 3.C.(1), but a partial, not all inclusive, list.

The State further contends that the Court of Criminal Appeals erred in issuing a writ of mandamus because, it says, the Court of Criminal Appeals did not apply the test for recusal set forth by this Court in Ex parte Duncan, supra.

“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: ‘Would a person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?’ Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).”

638 So.2d at 1334. See also Ex parte Bryant, 682 So.2d 39 (Aia.1996).

Canon 3.C.(1) has been revised since this Court set out that test in Ex parte Duncan; however, the application of that test is proper whether the bias by the trial judge is a personal bias against an individual defendant or a judicial bias against a group of defendants. The determination is whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality. Ex parte Duncan, supra; and Ex parte Large, 501 So.2d 1208 (Ala.1986). The test focuses on whether an objective, disinterested observer fully informed of the facts underlying the grounds for recusal would maintain significant doubt that justice would be done if the judge were to continue to preside over the case.

In Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1993), the United States Supreme Court held that allegations of bias are required “to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’ ”

A trial judge’s statements in certain contexts would unconstitutionally deter a defendant from exercising his or her legal right to seek an appeal and would mandate the trial judge’s recusal. The materials presented to us, however, do not contain a transcript of the proceeding. This Court has only the averments of the petitioner and the trial court’s response to review. It is impossible to know the context of the trial court’s statement without a transcript of the pretrial hearing; consequently, Fowler has not presented a complete picture on which an objective evaluation could be conducted.

“ ‘[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’
“Ex parte Horton, 711 So.2d 979 (Ala. 1998) (citations omitted); Ex parte Land, [775 So.2d 847 (Ala.2000)]. ‘A writ of mandamus is not granted unless there is a clear showing of error in the trial court to the injury of the petitioner. Ex parte Slade, 382 So.2d 1127 (Ala.1980).’ Ex parte Southland Bank, 514 So.2d 954 (Ala.1987).”

Ex parte Hutcherson, 847 So.2d 386, 387 (Ala.2002)(emphasis added).

Because Fowler did not establish a clear legal right to the relief requested, I believe that the writ issued by the Court of Criminal Appeals should be vacated.

Moreover, I note that in Richardson v. City of Trussville, 492 So.2d 625 (Ala. Crim.App.1985), a case in which the Court of Criminal Appeals had a transcript of the proceedings and properly concluded that the trial court had clearly exhibited a vindictive attitude, the court did not order recusal as Richardson requested, but re-sentencing. In this case, the Court of Criminal Appeals’ order that the trial judge recuse himself is based on less information than was established in Richardson, which that court held did not mandate recusal.

My dissent should not be interpreted as approving the statements Judge Witters made in the pretrial conference. As the Court of Criminal Appeals stated, “[i]t is a ‘flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant’ ” for his having exercised his right to appeal. 863 So.2d at 1140 (quoting Richardson, 492 So.2d at 628). I do not condone a procedure whereby a trial judge announces such a policy, regardless of whether said policy is followed. I, however, refuse to engage in speculation or rely on incomplete information to establish a trial judge’s bias and to determine whether the judge should recuse himself or herself.

Fowler simply did not meet the stringent requirements for the issuance of a writ of mandamus. Therefore, I dissent.