text:
    Ex parte Vince MELTON. (In re State of Alabama v. Vincent Lee Melton).
    1010787.
    Supreme Court of Alabama.
    June 7, 2002.

      Vince Melton, pro se.
    Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for respondent.
   HARWOOD, Justice.

Vince Melton petitions this Court for a writ of mandamus directing the trial court to grant his request to proceed in forma pauperis on a Rule 32, Ala. R.Crim. P., petition for postconviction relief. The petition is denied.

Melton was convicted of attempted murder on October 27, 1987; on December 4, 1987, the trial court sentenced him to 20 years’ imprisonment. The Court of Criminal Appeals affirmed Melton’s conviction in an unpublished memorandum. Melton v. State, 531 So.2d 69 (Ala.Crim.App.l988)(ta-ble). Melton subsequently filed two Rule 32 petitions — on June 11, 1997, and November 20, 2000 — that were denied by the trial court; those denials were affirmed by the Court of Criminal Appeals. Melton v. State, (No. CR-96-1935) 725 So.2d 1090 (Ala.Crim.App.1997)(table); Melton v. State, (No. CR-00-0772, March 23, 2001) 821 So.2d 1045 (Ala.Crim.App.2001)(table).

On October 15, 2001, Melton filed a third Rule 32 petition. Melton asserts in his petition for a writ of mandamus that his Rule 32 petition was “accompanied with an [sic] motion for order granting Leave to Proceed In Forma Pauperis supported with an [sic] Rule 32(IFP) Declaration Form.” Attached to Melton’s petition for a writ of a mandamus is the first page of an in forma pauperis declaration. The declaration is stamped as “denied” by the trial court on November 15, 2001. Also appearing on the page is a “note” from Melton that states: “This is all that was forwarded to me by the Court to be used as Evidence.” Melton filed a petition for a writ of mandamus with the Court of Criminal Appeals; that court denied the petition by an order issued on January 9, 2002, citing Ex parte Eckles, 736 So.2d 595 (Ala.1999). On January 15, 2002, Melton filed a petition for a writ of mandamus in this Court. See Rule 21(e), Ala. RApp. P.

Melton argues that the trial court’s denial of his request to proceed in forma pauperis is contrary to this Court’s holding in Ex parte Hurth, 764 So.2d 1272 (Ala.2000). The standard of review applicable to a petition for a writ of mandamus is settled.

“A writ of mandamus is an extraordinary remedy, and it 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). Further, this Court has stated that “ ‘[Mjandamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition.’ ” Ex parte Beavers, 779 So.2d 1223, 1224 (Ala.2000)(quoting Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997)).

Also attached to Melton’s petition for a writ of mandamus is a copy of the Court of Criminal Appeals’ order denying the petition for a writ of mandamus that he had filed with that court. Rule 21(a), Ala. R.App. P., states, in pertinent part:

“The petition [for a writ of mandamus] shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on; and copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.”

(Emphasis added.) In its answer to Melton’s petition, the State argues that Melton has failed to establish a clear legal right to the relief he seeks because he failed to attach supporting documents to his petition, i.e., a complete in forma pauperis declaration and a certificate executed by an authorized official that reflects his prison-account balance. See Ex parte Empire Fire & Marine Ins. Co., supra. In reply, Melton argues that this Court’s holding in Ex parte Hurth, supra, is sufficient to establish that he has a clear legal right to the vacation of the trial court’s denial of his request to proceed in forma pauperis.

In Ex parte Hurth, this Court observed:
“The docket fee for the filing of a petition for post-conviction relief is $140.00. See Ala.Code 1975, § 12-19-71(3); Rule 32.6(a), Ala. R.Crim. P. ‘To impose any financial consideration between an indigent prisoner and the exercise of his right to sue for his liberty is to deny that prisoner equal protection of the laws.’ Hoppins v. State, 451 So.2d 363, 364 (Ala.Crim.App.1982)(citing Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)). ‘While habe-as corpus may, of course, be found to be a civil action for procedural purposes, it does not follow that its availability in testing the State’s right to detain an indigent prisoner may be subject to the payment of a filing fee.’ Smith, 365 U.S. at 712, 81 S.Ct. 895, 6 L.Ed.2d 39. (Citation omitted.) ‘[I]n order to prevent “effectively foreclosed access” [to the courts], indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees.’ Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).”

764 So.2d at 1274.

However, after a review of Hurth and other cases that have relied on it, we note that in those cases it was necessary for either this Court or the Court of Criminal Appeals to determine that the petitioner was indeed indigent before issuing the writ of mandamus to the trial court. See Ex parte Dozier, 827 So.2d 774 (Ala.2002); Ex parte Pritchett, 832 So.2d 100 (Ala.Crim.App.2002); Ex parte Ferrell, 819 So.2d 83 (Ala.CrimApp.2001). Therefore, it is necessary that this Court be presented with some documentation showing the petitioner’s prison-account balance, certified by the appropriate prison official. No such documentation is attached to Melton’s petition. He has therefore failed to show that the trial court abused its discretion in denying his in forma pauperis request or that he has a clear legal right to the relief he seeks. Ex parte Empire Fire & Marine Ins. Co., supra. Accordingly, the petition for writ of mandamus is due to be denied.

PETITION DENIED.

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


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte Bobby W. LITTLE. (In re Bobby W. Little v. Fred Lawton III). Ex parte Bobby Little. (In re Bobby Little v. Cindy L. Lewis). Ex parte Bobby Wayne Little. (In re Bobby Wayne Little v. Ted Hooks).
    1010797 through 1010799.
    Supreme Court of Alabama.
    June 7, 2002.

      Bobby W. Little, pro se.
    Fred Lawton III of Lawton & Associates, Anniston.
    Bill Pryor, atty. gen., and Fred F. Bell, asst. atty. gen., for Ted Hooks.
   STUART, Justice.

Bobby Wayne Little filed three similar petitions for the writ of mandamus, all of which involve identical legal issues. The petitions seek an order directing Judge Richard Joel Laird to vacate his orders denying Little’s affidavits of substantial hardship and directing Judge Laird to re-cuse himself in each of the cases. Little seeks, by the filing of the affidavits in each case, to be declared indigent and to have the prepayment of court costs waived. We grant the petitions in part and deny them in part.

Little, a State prison inmate, filed three separate civil actions in the Calhoun Circuit Court. The actions were filed against Fred Lawton III, Cindy L. Lewis, and Ted Hooks, respectively. Each action was accompanied by a signed and notarized Unified Judicial System Form C-10, “Affidavit of Substantial Hardship and Order.” According to Little, each affidavit noted his approximate income of $5.00 a month from gifts. Only the reverse side of the affidavit of substantial hardship forms were submitted to this Court as exhibits. The trial judge executed the order of the court portion of the form in each case; that order portion reads, in pertinent part: “IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT AS FOLLOWS: [box checked indicating that] Affiant is not indigent and request is DENIED.” The words “Affiant is not indigent and” were stricken through. Little filed a motion to reconsider in each case; the motions were denied. He filed a petition for a writ of mandamus with this Court in each case. This Court ordered answers and briefs in each case and consolidated the cases for the purpose of writing one opinion.

Mandamus is “proper to compel a court to perform ministerial duties and to entertain jurisdiction,” State v. Cannon, 369 So.2d 32, 33 (Ala.1979); it is also the proper method by which to review whether recusal is required. Ex parte Melof 553 So.2d 554 (Ala.1989).

We have often stated the standard for issuing a writ of mandamus:

“A writ of mandamus is an extraordinary remedy, and it ‘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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).

We first address the issue of the judge’s denial of Little’s request for indi-gency status as reflected on the order included in the form. Little points out that Judge Laird not only denied his request for indigency status but also struck through the following language on the form: “Affiant is not indigent.” In his response, Judge Laird acknowledges that he denied the petitioner’s affidavit of substantial hardship and further denies that his action in doing so was improper. He asserts that it was within his discretion to deny the application, but he offers no reason for the denial or any explanation for striking through the words “affiant is not indigent” that appear on the order portion of the form.

Based upon the information before this Court, we conclude that Little has established a clear legal right to the order sought, that is, to have the order denying him indigency status vacated, that the respondent had a duty to perform, and that he refused to do so. Little has also demonstrated the lack of another adequate remedy, and he has properly invoked the jurisdiction of this Court. We issue a writ of mandamus in each case directing Judge Laird to vacate his order denying Little indigency status.

Little also seeks an order directing Judge Laird to recuse himself in each case. As grounds for this request he argues that Judge Laird’s denying him indigency status without citing grounds for the denial demonstrates bias against Little. Little also alleges that the status of each individual defendant serves as a basis for imputing bias or partiality on the part of the trial judge: according to the petitions, Fred Lawton III is a practicing attorney in Calhoun County; Ted Hooks is the circuit clerk of Calhoun County; and Cindy L. Lewis is apparently Little’s former wife. Little also states that the sheriff of Calhoun County is a defendant, although nothing in the materials before this Court indicates that the sheriff has been named as a party. Judge Laird denies that he has done anything that should require his recusal.

Canon 3.C. of the Alabama Canons of Judicial Ethics governs the disqualification of a judge. The pertinent portion of that rule provides:

“(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;
“(c) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
“(d) He or his spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person:
“(i) Is named a party to the proceeding, or an officer, director, or trustee of a party;
“(ii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
“(iii) Is to the judge’s knowledge likely to be a material witness in the proceeding.”

Little has failed to establish actual personal bias or prejudice on the part of Judge Laird; he has further failed to demonstrate that Judge Laird’s impartiality might reasonably be questioned. We will not presume bias or prejudice. Hartman v. Board of Trustees of the Univ. of Alabama, 436 So.2d 837 (Ala.1983).

This Court in Ex parte Melof, 553 So.2d 554, 557 (Ala.1989), observed that “a mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge.” The Court further stated:

“The burden is on the party seeking recusal to present evidence establishing the existence of bias or prejudice.... ‘ “[T]he law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.” ’ Any disqualifying prejudice or bias as to a party must be of a personal nature and must stem from an extrajudicial source.”

553 So.2d at 557 (citations omitted). Little has failed to meet his burden with respect to Judge Laird’s recusal. The evidence before this Court consists of allegations and suppositions unsupported by substantial fact. The denial of Little’s applications for indigency status and the fact that two of the individual defendants had positions in the court system — a lawyer and the circuit clerk — without more, does not indicate bias or prejudice on the part of Judge Laird. Therefore, we deny Little’s request for an order directing Judge Laird to recuse himself in each of these cases.

Because we have decided that Judge Laird is not required to recuse himself in these cases we must further address the matter of the affidavits of substantial hardship. While we have determined that the orders denying Little indigency status are due to be vacated, we do not find that Little has demonstrated an absolute right to indigency status. Little has filed only the second page of each affidavit of substantial hardship form with this Court. The orders denying Little indigency status must be vacated, and Judge Laird must reconsider Little’s applications. In the event Judge Laird finds it appropriate to deny Little indigency status he shall state the reason therefor in writing and notify Little. If the reason is that Little is not indigent, checking the appropriate box on the order portion of the affidavit of substantial hardship and order forms shall be sufficient. Only if this Court is advised of the reason for denial of indigency status can this Court adequately perform our responsibility of reviewing the denial.

PETITIONS GRANTED IN PART AND DENIED IN PART; WRITS ISSUED.

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


author: HOUSTON, Justice. LYONS, Justice JOHNSTONE, Justice

text:
    Ex parte J. Brooke JOHNSTON, Jr. (In re J. Brooke Johnston, Jr. v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, et al.)
    1011003.
    Supreme Court of Alabama.
    June 7, 2002.
    Ralph D. Cook and John W. Haley of Hare, Wynn, Newell & Newton, L.L.P., Birmingham; and Frank C. Galloway III and John Q. Somerville of Galloway & Somerville, L.L.C., Birmingham, for petitioner.
    Stephen E. Whitehead and E. Britton Monroe of Lloyd, Gray & Whitehead, P.C., Birmingham, for respondents.
   HOUSTON, Justice.

PETITION DENIED. NO OPINION.

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

LYONS and JOHNSTONE, JJ., concur specially.

LYONS, Justice

(concurring specially).

I concur in denying the petition for a writ of mandamus. I write specially to explain why I find the issuance of the writ of mandamus to be inappropriate, under the circumstances of this case, to compel a continuance of a hearing on a motion for a summary judgment in order to permit discovery.

J. Brooke Johnston, Jr., was insured under an officers-and-directors-liability insurance policy issued by National Union Fire Insurance Company, pursuant to his employment with Caremark RX, Inc. (formerly known as MedPartners, Inc.) (“Caremark”). In early 1998, Caremark and its officers, directors, and employees were sued in class actions alleging securities fraud and in shareholder-derivative actions alleging wrongdoing and omissions by the directors, officers, and employees of Caremark. Johnston was not named as a defendant in any of those actions. Later in 1998, while those actions were pending, Caremark filed a declaratory-judgment action against Johnston and other former executives, seeking as to Johnston a declaration that it did not owe him severance benefits pursuant to an employment agreement between Johnston and Caremark. Caremark amended its complaint to also seek compensatory and punitive damages from Johnston for alleged wrongdoings it said he committed during his employment with Caremark. When the securities-fraud and shareholder-derivative actions were settled in 1999, Johnston was released from liability, except as to any causes of action that had accrued to Med-Partners, the predecessor to Caremark, against, among others, Johnston.

Johnston then sued Caremark, National Union, and AIG Technical Services, Inc. (“AIG”), and alleged in his complaint that a memorandum of understanding entered into as a part of the settlement of the securities-fraud and shareholder-derivative actions obligated National Union and AIG to procure on behalf of Johnston “the general release of all claims that were brought or could have been brought by any entity or party in any of the cases that comprised the 1998 litigation [the securities-fraud and shareholder-derivative actions].” By failing to procure such releases, Johnston says, Caremark, National Union, and AIG exposed him to the pending claims against him by Caremark. Johnston also alleges that National Union and AIG conspired with Caremark, resulting in their denying coverage for any damages Caremark might be awarded as a result of its complaint against him. Johnston sued National Union and AIG under breach-of-contract and bad-faith theories; he sued Caremark under a civil-conspiracy theory. Johnston also alleges that National Union, AIG, and Caremark negligently or intentionally failed to settle claims that could have been brought against Johnston arising from the securities-fraud and shareholder-derivative actions and breach of fiduciary duty.

National Union and AIG seek to have this action dismissed based upon “(1) release; (2) co-insured exclusion; and (3) statute of limitations.” In their reply brief to this Court, National Union and AIG state that their motion to dismiss has been converted to a motion for a summary judgment, a conclusion as to which the record is in conflict. National Union and AIG contend in their reply brief that they are entitled to a judgment based upon (1) Johnston’s failure to produce substantial evidence to support any claim against AIG; (2) Johnston’s failure to produce substantial evidence of any duty on the part of National Union to obtain a release for Johnston from claims of Caremark; (3) the co-insured-lawsuit exclusion in National Union’s officers-and-directors-liability insurance policy; (4) the statute of limitations for tort claims; and (5) Johnston’s release of all claims against National Union. National Union and AIG submitted matters beyond the complaint in support of their motion to dismiss.

Soon after the original motion to dismiss was filed, Johnston objected to the conversion of the motion to dismiss to a motion for a summary judgment and, through an affidavit of counsel, asserted the necessity for discovery pursuant to Rule 56(f), Ala. R. Civ. P. In that affidavit, Johnston described the following areas of needed discovery: the settlement of the securities-fraud and shareholder-derivative actions; the circumstances surrounding Johnston’s exclusion from the scope of the 1999 settlement by National Union and AIG; policies covering officers, directors, and employees of Caremark from 1997 to the present; defense and potential indemnification of Caremark and its employees, officers, and directors since 1995; the handling and denial of Johnston’s claim for a defense pursuant to the offieers-and-directors-liability insurance policy; and communications between Caremark, National Union, and AIG.

The trial court refused to continue the hearing so that discovery could be conducted. The trial court stated that it would accept any written materials from Johnston submitted in opposition to the motion by a specified deadline. I conclude that at that time the motion to dismiss had been converted to a motion for a summary judgment. Johnston thereafter filed a supplemental affidavit of counsel pursuant to Rule 56(f), reiterating the need for discovery.

Johnston then filed in this Court a petition for a writ of mandamus directing the trial court to allow initial discovery regarding his claims, to continue the date National Union and AIG’s motion for a summary judgment would be considered to have been submitted, and to allow Johnston a hearing in response to the motion for a summary judgment after discovery was completed. This Court, on preliminary review of the petition, stayed proceedings in the trial court and ordered answers and briefs.

Johnston has not furnished us with any case in which this Court has issued a writ of mandamus compelling the trial court to continue proceedings on a motion for a summary judgment to permit discovery based upon the filing of a motion for a continuance pursuant to Rule 56(f). Neither has our independent research furnished such authority.

When a trial court’s analysis of the issues leads it to conclude that a summary judgment is appropriate without the need for discovery, based upon a legal theory consistent with the absence of any need for further discovery, it does not abuse its discretion in denying the continuance sought pursuant to Rule 56(f) and in disposing of the motion for a summary judgment. See Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458, 468 (Ala.1997) (“ ‘However, when no such crucial evidence would be supplied by the production or by the answers to the interrogatories, it is not error for the trial court to grant summary judgment with discovery pending.’ ” (quoting Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988))).

The difficulty comes in determining upon what basis this Court should find an abuse of discretion when the party seeking discovery in opposing a motion for a summary judgment seeks interlocutory review by mandamus. If the issue is presented to us on appeal from a final summary judgment entered over the opposing party’s objection citing the need for additional discovery, we can review the merits of the summary judgment and, if we are satisfied that the trial court erred as a matter of law in entering the summary judgment, we will reverse for further proceedings on the motion for a summary judgment after discovery. See, e.g., Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769, 772 (Ala.1994) (“Clearly, the discovery we have discussed was ‘crucial’ to the Parrs’ attempts to show what Goodyear had disposed of at the landfill and in what amounts. Accordingly, we hold that the trial court erred in entering the summary judgment before the crucial materials were produced.”). In the posture of an appeal from a final judgment, we can decide whether the trial court’s conclusion that the evidence sought through discovery was immaterial was erroneous as a matter of law.

On interlocutory review by a petition for a writ of mandamus, however, we should search only for a colorable legal theory to justify disposition without discovery. If such a theory is presented, we should find no abuse of discretion and deny the petition. At this stage of the proceeding, a denial of the petition for a writ of mandamus seeking a continuance pursuant to Rule 56(f) should not be understood as an endorsement of the trial court’s analysis of the underlying legal issue. We leave the party opposing the motion with its remedy of appeal where the appellate court can-consider de novo the validity of the legal theory relied upon by the trial court in determining that the discovery was not crucial to the nonmovant’s opposition.

Applying this standard to this case, I find that there is a colorable legal theory to justify the trial court’s denial of the motion pursuant to Rule 56(f) in only two of the five bases advanced by National Union and AIG in support of their motion. Specifically, there is a colorable legal theory to support the refusal of discovery based upon the assertion by National Union and AIG of the exclusion of claims by co-insureds and upon Johnston’s purported release of National Union. Of course, the ultimate validity of these legal theories and the propriety of the summary judgment based thereon, should the trial court ultimately so rule, would be reviewable de novo on any appeal by Johnston from the final judgment.

JOHNSTONE, J., concurs.

JOHNSTONE, Justice

(concurring specially).

I join Justice Lyons’s special writing. I add some observations of my own.

The trial court may or may not grant a summary judgment. We cannot predict.

If it does grant a summary judgment for the defendant-movant on a particular claim by the plaintiff-nonmovant, we will be able to discern from the record whether the defendant-movant’s motion and supporting materials even shifted to the plaintiff-non-movant the burden of opposing the motion. If the defendant-movant’s motion and materials are insufficient to have shifted the burden, then that summary judgment will be invalid. See Ex parte Atmore Cmty. Hosp., 719 So.2d 1190 (Ala.1998), Hill v. Toyota Motor Corp., 585 So.2d 19 (Ala.1991), and Schoen v. Gulledge, 481 So.2d 1094 (Ala.1985). If the defendant-mov-ant’s motion and materials are sufficient to have shifted the burden to the plaintiff-nonmovant, and if the plaintiff-nonmovant has properly preserved his right to discovery on the issue or issues crucial to that summary judgment, then the refusal of the trial court to allow discovery on those issues will invalidate the summary judgment. Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769 (Ala.1994), and Reeves v. Porter, 521 So.2d 963 (Ala.1988).


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    DRUMMOND COMPANY, INC. v. Kenneth C. PATE.
    2000212.
    Court of Civil Appeals of Alabama.
    July 13, 2001.
    William Anthony Davis III and Blake D. Andrews of Starnes & Atchison, L.L.P., Birmingham, for appellant.
    James C. King and Robert O. Bryan of King & Warren, Jasper, for appellee.
   THOMPSON, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App.P.; § 25-5-81(e)(2), Ala.Code 1975; Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968); Pemco Aeroplex, Inc. v. Moore, 775 So.2d 215 (Ala.Civ.App.1999); and Brown v. Champion Int’l Corp., 693 So.2d 24 (Ala.Civ.App.1996).

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

PITTMAN and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

The plaintiff in this case, Pate, is covered by the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. In March 1996, Pate suffered an injury to his knee, a portion of a scheduled member under § 25-5-57(a)(3), Ala.Code 1975, i.e., his leg. See Smith v. Michelin N. Am., Inc., 785 So.2d 1155 (Ala.Civ.App.2000). Unless Pate falls within the exception to scheduled-member recovery articulated in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), his recovery is prescribed by § 25-5-57(a)(3)a. and/or § 25-5-57(a)(3)d.

In Bell, our Supreme Court stated:
“[Although 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 Workmen’s Compensation Law to the amount allowed under the schedule for injury to the one member.”

282 Ala. at 646, 213 So.2d at 811.

In the present case, the trial court’s judgment contains no express statement as to whether the plaintiff proved facts that satisfy the Bell standard. Nonetheless, assuming the trial court made the requisite findings, I have carefully reviewed the record and find no substantial evidence that the effect of Pate’s injury “extends to other parts of the body” or produces a “greater or more prolonged incapacity than that which naturally results from” the partial loss of use of a leg. See E.C. Corp. v. Kent, 618 So.2d 1357 (Ala.Civ.App.1992) (finding no legal evidence that the knee injury in that case met the Bell standard, and noting that “a knee injury which causes a partial [loss of] use of a leg comes within the provisions of a scheduled injury”).

Accordingly, I must respectfully dissent.

PITTMAN, J., concurs.

      . The trial court does state: "The injuries suffered by the plaintiff are continuing and causing him to experience severe, extreme and disabling pain.” The trial court’s order does not state that the injury extends beyond Pate's leg and, after reviewing the record, I find no substantial evidence that it does. Furthermore, while there is ample evidence that Pate continues to have substantial problems with his left knee, I find no evidence in the record that the pain he experiences is continuous or extreme.
      Representative of the testimony given by Pate, who has continued to work full-time (including overtime) since approximately two months after the accident, are the following exchanges:
      "Q. Could you tell the judge a little bit about some of those problems you were having [at the time you went back to work at the Drummond Company following your injury]?
      "A. Well, if I had to really — the days I had to exert myself, my knee swelled. I’d have — it would be inflamed. It would be red looking, and a lot of pain-.
      "Q. And you are working now, aren't you?
      "A. Yes, sir.
      "Q. Are you still having any of those problems today?
      "A. Yes.
      "Q. Same type thing?
      "A. Same type thing.
      "Q. If you’re on your feet long, does that pose any problem to you?
      "A. Some, yes. Just about anything I do bothers my knee to a certain extent. Some more than others.
      "Q.... You’re not taking medication every day for your knee?
      "A. No, not every day. What I'm saying is, days that I have to really exert on my knee and do a lot of walking or whatever, and I come home and it's swelled up and hurting and you can't go to sleep, I take some.
      "Q. That doesn’t occur on a day-to-day basis?
      "A. No, not every day.”


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

text:
    Ex parte DRUMMOND COMPANY, Inc. (In re Drummond Company, Inc. v. Kenneth C. Pate).
    1001929.
    Supreme Court of Alabama.
    May 31, 2002.
    William Anthony Davis III and Blake D. Andrews of Starnes & Atchison, L.L.P., Birmingham, for petitioner.
    James C. King and Robert O. Bryan of King, Harrison & Bryan, Jasper, for respondent.
    Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for amicus curiae Alabama Self-Insurers Association.
   SEE, Justice.

This is a workers’ compensation case. Drummond Company, Inc. (“Drummond”), petitioned for the writ of certiorari to review the Court of Civil Appeals’ judgment affirming the trial court’s award of workers’ compensation benefits based on its finding that Kenneth C. Pate was 50% permanently and partially disabled as a result of an on-the-job accident. We granted Drummond’s petition; we reverse and remand.

Pate worked for Drummond as a belt patrolman monitoring coal as it left the mine on coal-carrying belts. Pate was also responsible for fixing any belts that stopped or malfunctioned. On March 7, 1996, Pate injured his left knee while he was climbing a hill to restart one of the belts. For approximately the next 10 days, Pate continued to work. Pate was then referred to Dr. Erich Wouters, an orthopedic surgeon. Dr. Wouters took X rays of Pate’s knee. The X rays revealed arthritis in Pate’s knee, beneath the patella. Dr. Wouters performed arthroscopic surgery on the knee; the surgery revealed a partial tear of the meniscus.

On July 11, 1996, Dr. Wouters allowed Pate to return to work without any restrictions or limitations. Over the next several months, Pate returned to Dr. Wouters, complaining of intermittent swelling in his left knee. In December 1996, Dr. Wout-ers again examined Pate, and he concluded that any swelling in Pate’s left knee was the result of arthritis. Dr. Wouters changed Pate’s anti-inflammatory medication and suggested he wear a neoprene sleeve over the knee. On August 14, 1997, Dr. Wouters again examined Pate, who was complaining of stiffness and weakness in his left knee. Dr. Wouters continued to attribute the stiffness and weakness to arthritis. Based on his examinations of Pate, Dr. Wouters assigned Pate an impairment rating of 1% to the whole body.

On August 11, 1997, Pate filed a workers’ compensation action against Drum-mond; he sought benefits based on the injury to his left knee that had occurred in March 1996. On June 19, 2000, the trial court found that Pate was 50% permanently and partially disabled as a result of his injury. On July 17, 2000, Drummond moved for a new trial. The trial court held a hearing on that motion, but it never ruled on the motion. The motion was, therefore, denied by operation of law on October 15, 2000. See Rule 59.1, Ala. R. Civ. P. The Court of Civil Appeals affirmed the trial court’s judgment. Drummond Co. v. Pate, 837 So.2d 829 (Ala.Civ.App.2001).

Section 25-5-81(e), Ala.Code 1975, sets forth the applicable standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

See also Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000). The trial court’s findings of fact “ ‘on disputed evidence in a workers’ compensation case are conclusive.’ ” Ex parte Golden Poultry, 772 So.2d at 1176 (quoting Ex parte Ellenburg, 627 So.2d 398, 399 (Ala.1993)).

Although Drummond states that it presents two issues for this Court’s review, it essentially presents one issue: whether the Court of Civil Appeals erred in affirming the trial court’s judgment holding that Pate was entitled to benefits outside the compensation schedule found in § 25-5-57, Ala.Code 1975.

Section 25 — 5—57(a)(3), Ala.Code 1975, provides, in part:

“a. Amount and Duration of Compensation. For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 66 2/3 percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“16. For the loss of a leg, 200 weeks.”

Section 25-5-57(a)(3)d., provides:

“d. Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.”

In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), this Court established an exception that removes certain injuries from the workers’ compensation schedule. This Court held in Bell:

“[Although 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. See also E.C. Corp. v. Kent, 618 So.2d 1357, 1358 (Ala.Civ.App.1992); A.M.R. Servs. v. Butler, 697 So.2d 472, 474 (Ala.Civ.App.1997); Wolfe v. Dunlop Tire Corp., 660 So.2d 1345, 1348 (Ala.Civ.App.1995).

In light of Bell, this Court asked the parties in this case to respond to the following questions:

“1. Are this Court and the Court of Civil Appeals consistently and correctly applying the Bell test?
“2. Should the test in Bell determine whether an injury is scheduled or unscheduled?
“3. Is Pate’s injury scheduled or unscheduled?”

In Bell, this Court cited as authority for its analysis 2 Arthur Larson, Workmen’s Compensation Law § 58.20, pp. 44-45:

“ ‘The great majority of modern decisions agree that, 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. A common example of this kind of decision is that in which an amputation of a leg causes pain shooting into the rest of the body, general debility, stiffening of the hip socket, or other extended effects resulting in greater interference with ability to work than would be expected from a simple and uncomplicated loss of the leg.’ ”

Bell, 282 Ala. at 645, 213 So.2d at 810-11. Although it appears that the language used by.this Court in Bell in stating the test was actually from a note in the American Law Reports, it was the intention of this Court in adopting in Bell the exception to the workers’ compensation schedule to address those instances where the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate. Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member. However, the Court of Civil Appeals has substantially expanded the Bell test to include, as effects that will take the injury outside the schedule: (1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities. It also appears that the Court of Civil Appeals has considered the worker’s ability to find future employment as a factor in deciding whether an injury to a scheduled member should be compensated outside the schedule. See Russell Corp. v. Wurtz, 625 So.2d 810 (Ala.Civ.App.1993); Whitehead Forest Prods., Inc. v. Huggins, 579 So.2d 657 (Ala.Civ.App.1991); and Smith v. Capps, 414 So.2d 102 (Ala.Civ.App.1982).

We renew our commitment to the policy that underlay the Bell test and that is recognized in the current edition of 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001):

“The great majority of modern decisions agree that, 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.”

(Footnote omitted.) This language remains unchanged from the edition of the Larson treatise on which this Court relied in Bell. Because of the confusion that has developed surrounding the Bell test, we today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled; therefore, we overrule Bell insofar as it established a different test, and we further overrule those cases listed in notes 5 through 8 insofar as they expanded the Bell test.

This Court’s 1969 decision in Leach Manufacturing Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (Ala.1969), is consistent with the policy expressed today and expressed in Larson’s treatise:

“Where scheduled benefits are provided for compensation for loss of a member!,] they are not dependent on actual wage loss....
“... [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.”

284 Ala. at 214, 224 So.2d at 246-47.

We now address whether the trial court erred in compensating Pate’s injury outside the schedule set out in § 25-5-57. We hold that the trial court erred in awarding workers’ compensation benefits based on its finding that Pate was 50% permanently and partially disabled as a result of an on-the-job injury. It did not have before it substantial evidence indicating that Pate’s injury should have been compensated outside the schedule. See § 25 — 5—81(e), Ala.Code 1975. Pate testified that his knee occasionally swelled, but that the swelling did not occur on a daily basis. Pate testified that he took ibuprofen or naprosyn when his knee swelled, but that he did not take anything stronger for the pain. Moreover, Dr. Wouters assigned Pate an impairment rating of 1% to the whole body, based on the fact that Pate had no loss of range of motion in his knee. Following his surgery in 1996, Pate returned to work as a belt patrolman, and he continued to work at that position until he was laid off in May 1997. Pate says that his knee continues to swell and that he is unable to participate in normal activities. Pate also states that he has to elevate his knee at night to reduce the swelling. Thus, Pate argues, “[t]he simple fact that he has to elevate his knee and take precautions for the swelling meets the criteria set out in the caselaw of the State of Alabama.” Pate’s brief at 16.

The occasional swelling in Pate’s knee does not qualify, under the Larson test, as an injury that extends to other parts of the body and produces a greater incapacity than would otherwise result from his injury. The injury and pain Pate suffers are similar to those suffered by the plaintiffs in Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App.1995), and Whitehead v. International Paper Co., 610 So.2d 400 (Ala.Civ.App.1992). In Wolfe, the Court of Civil Appeals affirmed the judgment of the trial court, which held that the plaintiff had failed to present evidence sufficient to remove his injury from the scheduled provisions of the workers’ compensation act. The plaintiff, Kevin Wolfe, had injured his knee when he stepped from a platform. 660 So.2d at 1347. Wolfe testified that the injury to his knee had “affected other parts of his body and that it had limited his ability to perform certain physical tasks.” Id. Wolfe stated that he experienced a “dull throb at the end of the day.” Id. Nevertheless, Wolfe testified, he could lift and carry 50 pound bags of feed, and Wolfe’s doctor testified that Wolfe had not been treated for any condition other than the knee injury. 660 So.2d at 1347-48.

In Whitehead, the Court of Civil Appeals affirmed the judgment of the trial court, which held that the plaintiff, Florine Whitehead, had failed to present evidence indicating that her knee injury should be removed from the provisions of § 25-5-57. 610 So.2d at 401. Whitehead had injured her knee while she was working for International Paper. She testified that the pain of her knee injury caused her to be distracted from daily activities. 610 So.2d at 402. Whitehead also testified that she was restricted to light-duty activities. Id.

Like the plaintiffs in Wolfe and Whitehead, Pate failed to present to the trial court substantial evidence indicating that “the effects of the loss of the member extend to other parts of the body and interfere with their efficiency.” 4 Larson, Workers’ Compensation Law § 87.02. Pate has not presented any evidence, substantial or otherwise, indicating that his knee injury extended to any other part of his body. The fact that Pate suffers occasional swelling, pain, and discomfort in his knee is not evidence tending to show that the injury has extended to other parts of his body.

We conclude, therefore, that the trial court erred in holding that Pate’s injury was such that it fell outside the compensation schedule set out in § 25-5-57. Thus, we reverse the trial court’s judgment and remand the cause.

REVERSED AND REMANDED.

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

MOORE, C.J., and WOODALL, J., concur in the result.

JOHNSTONE, J., dissents.

MOORE, Chief Justice

(concurring in the result).

I agree with the majority’s conclusion that Pate’s injury does not qualify for unscheduled benefits under Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), or any other test that has been used by this Court to review workers’ compensation awards for disabilities. I must respectfully disagree, however, with the rationale used by the Court to reach that result.

The portions of the Workers’ Compensation Act at issue in this case are §§ 25-5-57(a)(3)a. and 25-5-57(a)(3)d. Section 25-5-57(a)(3)a., in essence, states that compensation for permanent partial disability for losses included in the schedule, will be 66 2/3 percent of the worker’s average weekly earnings, for the number of weeks set out in the schedule for each qualifying member. Section 25-5-57(a)(3)d. states: “The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein.” (Emphasis added.)

As is apparent from reading § 25-5-57(a)(3)d. in particular and § 25-5-57 as a whole, no provision is made in the statute for compensation outside of the schedule for injuries to scheduled members. It follows that the allowance for benefits outside of the schedule, first permitted in Bell, is an exception this Court carved out for those instances where it felt that “the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate.” 837 So.2d at 834.

Such an exception, while no doubt well-intended, was created by the Court in direct contravention to the language of the statute, which explicitly states that the scheduled benefits shall be the only compensation for qualifying injuries. The Court has only as much discretion as a statute allows; the Legislature created workers’ compensation, and if it had wanted an exception to scheduled benefits for permanent partial disabilities, it could have provided for one. Thus, in creating the Bell exception, this Court stepped beyond its authority. No matter how many cases our courts have decided based upon the exception since its inception, the courts cannot change the law on this matter, so long as the Legislature leaves the statute unaltered.

The majority argues that the Legislature’s readoption of the Code section at issue ratified the Bell decision. However, the reality may be just the opposite. It could be argued that the subsequent reenactment of a Code section is an explicit rejection of the Court’s erroneous ruling. By not incorporating into the reenactment the court’s ruling that went beyond the scope of the statute, the Legislature has de facto rejected it. In any event, the argument is tantamount to saying that two wrongs make a right: the Court’s misinterpretation in Bell plus the Legislature’s failure to correct that decision equals good law. I cannot ascribe to such a skewed equation.

Instead of recognizing its mistake, the majority has chosen to correct the wayward progeny of Bell by replacing it with a new test. While the new test may clarify what the Court intended to do in Bell, in effect it merely replaces one illegitimate formula with another. Cases on this subject strayed from the purported intentions of the Bell Court for the same reason the Court created the Bell test in the first place: a perceived unfairness in the statutory scheme. The Court perceived the language of § 25-5-57(a)(3)d. as being too harsh, and it attempted to “correct” it by conjuring up the Bell test. In the same way, courts have evaluated various on-the-job injuries and perceived the schedule to provide inadequate compensation for the pain suffered by the victim and consequently manipulated the Bell test to take those injuries off the schedule. There is no reason to believe that the lower courts will not do the same thing with the new test, when the standardless benchmark of “unfairness” is the underlying basis for the exception.

The proper benchmark for this Court and the lower courts ought to be the statute itself, rather than exceptions of our own creation that we can expand or contract on a whim. Pate’s injury falls under the schedule, which means he is entitled to scheduled benefits — nothing more. While that result or the law on which it is based may seem harsh or unfair, this Court is not the branch of government that possesses the authority to correct that perceived injustice. Accordingly, I cannot abide by the new test created by the Court to deal with compensation of permanent partial disability injuries.

JOHNSTONE, Justice

(dissenting).

The very text of § 25-5-57(a)(3), Ala. Code 1975, reveals that the schedule in § 25-5-57(a)(3)a. applies only to “the loss of’ or “loss of use of’ the member. The schedule does not purport to govern the compensation due for permanent partial disability resulting from chronic pain or other complications of injuries to the members specified in the schedule.

Because some losses of members and losses of use of members are not attended by chronic pain or other complications, we cannot assume that the Legislature intended for the schedule to govern disability resulting from chronic pain or other complications. “The workmen’s compensation laws are remedial in nature and are to be liberally construed and applied in order to effect their beneficent purposes.” Hilyard Drilling Co. v. Janes, 462 So.2d 942, 943 (Ala.Civ.App.1985). “Alabama’s [workers’] compensation laws should be liberally construed in favor of the employee in order to advance and effectuate their beneficent purposes.” Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1123 (Ala.1992).

Even governing only the simple loss of njembers and loss of use of members, the schedule obviously exhausts the capacity of the Legislature to anticipate combinations and permutations of variables. The schedule already reads like a price list at a cannibal’s meat market: “For the loss of an eye and a foot, 300 weeks.... For the loss of one arm and the other hand, 400 weeks ....,” etc.

The refusal of the Legislature over the years to overrule the Court of Civil Appeals and this Court in the treatment of disability resulting from chronic pain or other complications in scheduled members manifests an understanding by the Legislature that any effort to govern compensation for such disability by a schedule would introduce too many variables for a schedule to accommodate. Obviously the Legislature has made a considered decision to acquiesce in the judicial developments.

Because chronic pain, swelling, and other complications do result in “other permanent partial disabilities not above enumerated,” § 12-5-57(a)(3)g., they should be compensated as nonscheduled disabilities in accordance with § 25-5-57(a)(3)g. Trial judges are usually good at detecting malingering and stalwart in denying compensation for it. Trial judges are fully capable of deciding accurately whether real complications are diminishing a worker’s wages or earning power.

As the main opinion acknowledges, the decisions of the Court of Civil Appeals have evolved so that the jurisprudence of that court now allows compensation for disability resulting from chronic complications of injuries to members identified in the schedule, irrespective of whether the complications extend to a specifically identifiable part of the body not included in the schedule. This evolution seems consistent with the text and intent of the statute, as I have discussed, and consistent with Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), as well.

The rule in Bell reads:

“[AJlthough 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 Workmen’s Compensation Law to the amount allowed under the schedule for injury to the one member.”

282 Ala. at 646, 213 So.2d at 811 (emphasis added). This language can be construed reasonably to include all disability resulting from chronic complications of the injury to the member, as distinguished from simple loss of the member or loss of use of the member. Indeed, in Bell, every aspect of the injury except for the physical pain and mental anguish it caused was confined to the member, the leg itself:

“ ‘[H]is knee would swell, particularly at night, and would be so painful that he could not sleep.... His nervous system was affected, as evidenced by his emotional breakdown during the hearing; ... he would suffer pain at times from periods extending from two hours to a day or two; the 15 pound brace absorbed plaintiffs energy, but the energy loss was of less importance than the pain he would suffer without the brace; when he was not working he kept his leg elevated to prevent swelling; he had lost his stability.’ ”

282 Ala. at 644, 213 So.2d at 810 (quoting the findings of the trial court) (emphasis added). Yet the trial court, approved and affirmed by the Supreme Court, recited and found:

“ ‘Plaintiff was examined in open court, and the Court observed him, saw the extent of his injuries, the slowness and difficulty with which he moved, and the condition of his leg and body. The Court finds that plaintiffs injury is far more extensive than a leg injury.’ ”

282 Ala. at 645, 213 So.2d at 811. The award and affirmance of unscheduled benefits to the Bell plaintiff can be deduced only to be an implicit holding that disability from chronic pain or other complications of an injury otherwise localized to a member identified in the schedule is compensa-ble outside the schedule.

In the case now before us, the plaintiffs chronic complications are the same as those of the Bell plaintiff — pain and swelling in the knee. I respectfully submit that the statute, the cases from the Court of Civil Appeals, and Bell, all require the same judgment on appellate review of this case as in Bell — an affirmance of the award off the schedule. We should not overrule Bell or the precedents developed by the Court of Civil Appeals and should not limit to the schedule compensation for disability from chronic pain or other complications of an injury otherwise localized to a member identified in the schedule.

      . In its brief to this Court, Drummond states that Pate’s family physician referred him to Dr. Wouters; however, Pate states that Dr. William A. Birdsong, the company doctor, referred him to Dr. Wouters.

      . On July 26, 1996, Pate saw Dr. Gary Russell, Dr. Wouters’s partner, who administered a steroid injection. It appears from Dr. Wouters's testimony that Dr. Wouters treated Pate on all subsequent visits.

      .In his complaint, Pate also alleged that he contracted occupational pneumoconiosis while working for Drummond. However, Pate dismissed this claim before trial, and Pate's claim for benefits based on his knee injury was the only claim before the trial court.

      . 156 A.L.R. 1344 stated, at the time Bell was decided:
      'The rule, however, is well established that where an employee has received a specific injury which spreads 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, the employee is not limited to a recovery of the special allowance provided for in case of injury to a specific member or members, but may recover under the provisions of the act for compensation in case of disability.' ”

        Bell, 282 Ala. at 645, 213 So.2d at 811.

      . A.M.R. Servs. v. Butler, 697 So.2d 472 (Ala.Civ.App.1997); Gold Kist, Inc. v. Casey, 495 So.2d 1129 (Ala.Civ.App.1986); Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.1979); and Richardson Homes Corp. v. Shelton, 336 So.2d 1367 (Ala.Civ.App.1976).

      . Checkers Drive-In Restaurant v. Brock, 603 So.2d 1066 (Ala.Civ.App.1992).

      . American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996).

      . U.S. Steel v. Nelson, 634 So.2d 134 (Ala.Civ.App.1993); Smith v. Capps, 414 So.2d 102 (Ala.Civ.App.1982); Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (1973).

      . It is true, as Chief Justice Moore notes in his special writing, that "no provision is made in the statute for compensation outside of the schedule for injuries to scheduled members.” Ex parte Drummond. Co., 837 So.2d at 837 (Moore, C.J., concurring in the result). Were we writing this opinion on a clean slate, we might well decide it differently from the way we do today; however, we are not writing on a clean slate. In 1968, this Court adopted the Bell test. The Legislature has had more than 30 years to overrule or modify that decision; it has chosen not to do so. Moreover, in those 30 years, the Legislature has amended the Workers’ Compensation Act. " ‘[W]hen the legislature readopts a code section, or incorporates it into a subsequent Code, prior decisions of this court permeate the statute, and it is presumed that the legislature deliberately adopted the statute with knowledge of this court’s interpretation thereof.’ ” Jones v. Conradi, 673 So.2d 389, 392 (Ala.1995) (quoting Edgehill Corp. v. Hutchens, 282 Ala. 492, 495-96, 213 So.2d 225, 227-28 (1968)).

      . Bell, relying on the A.L.R. note, added to the Larson language a second basis for departing from the workers’ compensation schedule: "or the injury causes an abnormal and unusual incapacity with respect to the member.” 282 Ala. at 646, 213 So.2d at 811. It is unclear what conditions this second prong of the Bell test was intended to cover. We note that this Court has not applied this second prong and that where the Court of Civil Appeals has purported to have applied it, that court has actually gone well beyond the language of the test and considered other characteristics of the claimant. See Smith v. Capps, 414 So.2d 102, 104 (Ala.Civ.App.1982) ("[Ujnder the evidence as to Capps’ lack of education, his retardation and work history and present lack of capabilities, the trial court could have legitimately concluded that the injury caused an abnormal and unusual incapacity, the second alternative contained in the [Bell] rule.”); U.S. Steel v. Nelson, 634 So.2d 134, 137 (Ala.Civ.App.1993) (“Considering Nelson's age, work history, education, and his lack of present ability, the trial court had ample evidence before it to determine that the amputation [of Nelson’s thumb] caused such abnormal and unusual incapacities with his body as a whole that it significantly affected Nelson’s ability to earn and to be employed.”); American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378, 379 (Ala.Civ.App.1996) ("Because there is evidence to support a finding that Uptain suffered an injury that 'affects the other parts of the body’ and that the injury caused 'an abnormal and unusual incapacity,’ the trial court was not required to base Uptain’s recovery on the schedule set out in § 25-5-57(a)(3)a.”). This additional language appears to add nothing but ambiguity to the thoughtful language of Larson’s treatise; therefore, we decline to consider the so-called second prong of the Bell test a part of the test that we adopt today.

      . This case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation; therefore, we decline to address that situation here.


author: THOMPSON, Judge.

text:
    DRUMMOND COMPANY, INC. v. Kenneth C. PATE.
    2000212.
    Court of Civil Appeals of Alabama.
    July 19, 2002.
    William Anthony Davis III and Blake D. Andrews of Starnes & Atchison, L.L.P., Birmingham, for appellant.
    James C. King and Robert O. Bryan of King & Warren, Jasper, for appellee.
   After Remand from the Supreme Court

THOMPSON, Judge.

This court, on July 13, 2001, affirmed the trial court’s judgment, without an opinion. 837 So.2d 829 (Ala.Civ.App.2001). The Supreme Court of Alabama has reversed this court’s judgment and remanded the cause. Ex parte Drummond Co., 837 So.2d 831 (Ala.2002). In' compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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


author: PITTMAN, Judge. CRAWLEY, Judge,

text:
    Esther Y. MORRISON v. Kenneth R. MORRISON.
    2000177.
    Court of Civil Appeals of Alabama.
    Dec. 28, 2001.
    Rehearing Denied March 8, 2002.

      G. John Durward, Jr., of Durward & Cromer, Birmingham, for appellant.
    Judith S. Crittenden and LaTresia Lewis Kinnell of Crittenden Martin, Birmingham, for appellee.
   PITTMAN, Judge.

This appeal questions whether the trial court erred in incorporating two agreements for the division of property into a final judgment of divorce. One party classifies the documents regarding the property and financial division of the parties as “settlement agreements.” The other party attempts to distinguish those documents, classifying them, instead, as documents to settle a pending lawsuit. We will simply refer to them hereinafter as “settlement agreements.”

Esther Y. Morrison (hereinafter “the wife”) and Kenneth R. Morrison (hereinafter “the husband”) were married in 1971 and separated on or about February 28, 1999, after a 28-year marriage. The wife testified that after the parties had separated, she and the husband prepared two separate lists; those lists included, in part, a division of property and payments to be made by the husband during their separation. She stated that she typed the handwritten documents and that the parties signed them on August 4, 1999. These documents were not prepared by an attorney, although the wife stated that she was being represented by an attorney in the divorce proceeding.

In one of these documents entitled “Esther’s — Property and Financial Settlement,” and signed by both the wife and the husband, the following provisions were made:

“35. [The husband] will pay [the wife] $500.00 per month from 9/1/99 through 8/1/2000.
“36. [The husband] will pay [the wife]’s health insurance for 1 year after divorce is granted unless she gets job related insurance which occurs earlier.
“37. [The husband] will pay Liberty National cancer policy during [the] separation period.
“39. [The husband] will pay premiums on [the wife]’s life insurance through [the] separation period.
“42. [The husband] will pay $500.00 per month child support until [the minor child] reaches 19 [years of age] or starts college, [whichever] comes first, plus $25.00 per week spending money.”

(Defendant’s exhibit 3.) In addition to the preceding provisions, the settlement agreements included provisions giving the wife a house valued at $150,000, furniture, collectible items, holiday decorations, her diamond jewelry collection, and an automobile. (Defendant’s exhibit 3.) Provisions in the other document awarded the husband the couple’s $450,000 home (which had an equity of $300,000); furniture; checking, money, and financial accounts worth approximately $250,000; his baseball-card collection; his collection of seven numbered Daniel Moore athletic prints and other athletic-themed prints; and his collection of elephant figurines appropriately referred to as “The Herd.” (Defendant’s exhibit 2.)

The record also indicates that according to the Child Support Obligation Income Statement/Affidavit (Form CS-41), the husband earned an average monthly salary of $6,185.55 during his last four years of employment. However, the wife testified at a hearing that at the time the parties entered into the settlement agreements, the husband was not employed, and she did not know when he was last employed. The record also indicates that according to the wife’s Form CS-41, she earned an average monthly salary of $416 for six months in 1999. She testified at the hearing that she was employed when she signed the settlement agreements, but she explained that since that time she has undergone neck surgery and, as of the time of trial, was employed only part-time doing domestic work at a rate of approximately $50 per week. The wife stated that as of the time of trial she suffered from pain and numbness in her arm, fingers, and leg, and that she remained under the care of a physician.

The record contains a draft of a “legal separation agreement” prepared on August 27, 1999, by the wife’s attorney. That document included a provision that stated:

“4. [The husband] shall pay to the [wife] as support and maintenance or in the event a divorce is granted, [periodic] alimony in the amount of $500 per month beginning on September 1, 1999, and payable on the first day of each month thereafter until the [wife] remarries, dies, or the [husband] dies. Said [periodic] alimony to continue through August 1, 2000, and thereafter the sum of $_ per month as support and maintenance or periodical alimony in the event a [judgment] of divorce is granted until the [wife] remarries, dies, or the [husband] dies. Said alimony shall not constitute income to the [wife] nor a deduction to the [husband] for income tax purposes.”

A subsequent “agreement” prepared by the wife’s attorney in March 2000 contained a provision that the wife would receive periodic alimony in the amount of “$1,000 per month beginning on the first day of the month after the granting of the final decree in this cause” and one-half of the husband’s retirement and investment accounts.

The husband testified that he went to the attorney’s office to discuss the agreement and that his notations are contained on the agreement. Based on these subsequent drafts prepared after August 4, 1999, and the discovery and negotiations that continued during the pendency of the case, this court concludes that the August 4 settlement agreements were not intended to constitute a final settlement regarding all terms of the divorce. We further conclude that the trial court was not bound by these documents in awarding the wife periodic alimony or in fashioning a more equitable property settlement. We must reverse the judgment and remand the case, for the trial court to enter an order consistent with the factors established in Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). See also Courtright v. Courtright, 757 So.2d 453 (Ala.Civ.App.2000) (holding that an award of $500 per month periodic alimony to the wife and 80% of the parties’ marital assets to the husband was not equitable).

Furthermore, the wife contends that the trial court erred in determining that either the settlement agreements or the final judgment of divorce complies with the child-support guidelines. In Ullrich v. Ullrich, 736 So.2d 639 (Ala.Civ.App.1999),, the father argued that the trial court erred in ordering the mother to pay $400 per month in child support when, he alleged, the trial court did not comply with the mandates of Rule 32, Ala. R. Jud. Admin. In that case this court stated:

“Application of the Rule 32 child-support guidelines is mandatory in child-support actions filed on or after October 9, 1989. State ex rel. Dep’t of Human Resources v. Hogg, 689 So.2d 131 (Ala.Civ.App.1996). In Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994), this court issued the following directive:
“ ‘We hold, therefore, that the word “shah” in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement/Affidavit Form.... We further hold that stipulated cases, i.e., where the parties have agreed upon a child support amount in compliance with the guidelines, are the only exceptions to the requirement of filing a child support guideline form and income affidavit forms.’
“Compliance with Rule 32(E) is mandatory, even though the trial court found that application of the guidelines would be unjust or inequitable. Id. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Hogg, supra. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings in compliance with Rule 32, Ala. R. Jud. Admin. Id.
“The record indicates that both parties completed and filed a Form CS-41 ‘Child Support Obligation Income Statement/Affidavit’ with the court. However, the record does not contain a properly completed Form CS-42 ‘Child Support Guidelines Form’ for either party. Further, the trial court did not complete a CS-42 Child Support Guidelines Form.... We conclude that Rule 32(E) has not been complied with. This court cannot discern how the trial court determined the support obligation of $400 per month in this case. That portion of the judgment regarding the mother’s current child-support obligation is reversed and the case is remanded for the trial court to file a completed and signed CS412 Child Support Guidelines Form indicating the proper support obligation. See State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App.1995). If the court determines that application of the guidelines is manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, it must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. Hogg, supra.

736 So.2d at 641.

In the instant case, both the husband and wife filed CS-41 forms that appear to comply with Rule 32(E). However, only the husband filed a CS-42, and that document does not comply with the child-support guidelines. That document states that it was prepared by the husband’s attorney, but each column of information requested reads only “$0.00” or “XXXXXXXXXXXXX.” A notation on the bottom of the form states that “[t]he [husband] shall continue to pay the [wife] $500/mo as per the agreement entered into by the parties on August 4, 1999. Also, the [husbandjs ability to earn income exceeds the uppermost monthly income of the guidelines.” On the CS-43 form, styled “Child Support Guidelines Notice of Compliance,” a box is marked, noting:

“The child support guidelines, as set out in Rule 32, Alabama Rules of Judicial Administration, have not been followed and applied because of the following reasons:
“ ‘[The husband]’s ability to earn exceeds the uppermost monthly income of the guidelines. The [husband] shall continue to pay to the [wife] $500 per month as per the agreement entered into by the parties on August 4, 1999.’ ”

We note that there is a notation that appears on the CSA13, where the wife’s signature normally would have appeared, that indicates that she refused to sign the document. Similar to the notations on the child-support forms, the final judgment of divorce states:

“The [husband] shall pay to the [wife] the sum of Five Hundred and No/100 Dollars ($500.00) per month for the support and maintenance of the minor child of the parties. In addition, [the husband] will pay to the minor child of the parties, [K.M.], the sum of Twenty-five and No/100 Dollars ($25.00) per week for spending money. The parties acknowledge that Rule 32 of the Alabama Rules of Judicial Administration [does] not govern the amount of child support in this matter as the [husband’s] ability to earn exceeds the uppermost monthly income of the guidelines.”

Although we recognize that in certain cases the parties can stipulate the terms of child support, the present case does not appear to be one of those, because the amount allegedly agreed to by the parties in the August 4, 1999, settlement agreements does not appear to be in compliance with the guidelines. See Ullrich, supra, citing Martin. Specifically, the uppermost limit of monthly combined adjusted gross income listed in the appendix to Rule 32 is $10,000. The husband’s CS-41 reflects that his average monthly income during the four years previous to trial was $6,185, for which he, on the basis of his income, alone, could be assessed a child-support obligation of $775 per month. See Appendix to Rule 32 and Rule 32(C)(1). Given the discrepancy between the amount that should be owed under the child-support guidelines and the amount agreed to by the parties in their settlement agreements, we conclude that the trial court erred in determining that the parties’ stipulation as to the amount of child support the husband would owe complies with the amounts set out in Rule 32.

Furthermore, even if the trial court intended to deviate from the guidelines, Rule 32(A)(ii) states that in such cases the trial court must make a written finding on the record that application of the guidelines would be unjust or inappropriate, and further requires that that determination must be based upon evidence presented in court and that the written findings must state the reasons application of the guidelines would be manifestly unjust or inequitable. See Rule 32(A)(ii); see also Ullrich, supra, citing Martin. The notations made by the trial court and appearing on the CS-42 and CS-43 forms, as well as its brief finding of fact noted in the final judgment of divorce, do not demonstrate why the application of the guidelines would be manifestly unjust or inequitable as to the husband. Thus, those forms and statements are deficient and we must reverse the trial court’s judgment and remand this case for proper compliance. See Ullrich, supra, citing Hogg.

Because we reverse the judgment and remand the case on these issues, we decline to entertain the other issues the wife raises on appeal.

The appellant’s request for an attorney fee is granted in the amount of $750.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs in part and dissents in part.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur in the holding as to child support. I dissent, however, from the holding that the parties’ August 4 agreement was not intended to constitute a final settlement agreement. The trial court held a hearing on the validity of the August 4 agreement, after which it determined that the agreement was valid and would be incorporated into the divorce judgment. The court issued the following findings of fact and conclusions of law as to the agreement:

“A. That at the time of the settlement, the [wife] was represented; the [husband was] proceeding pro se.
“B. That this was at least the sixth attorney consulted or retained by [the wife], the [wife] having filed for divorce on three prior occasions.
“C. That the complaint for divorce herein was filed on 8 June 1999, bearing the notation, ‘Hold service on [the husband]; divorce to be granted by agreement.’
“D. That the four-page agreement ... was executed on 4 August 1999.
“E. The agreement was prepared by [the wife].
“F. The parties performed pursuant to the agreement, including dividing furniture and furnishings, purchasing a house mortgage-free for [the wife], and placing a mortgage against property held by [the husband].
“G. That virtually every asset about which [the husband] was examined ore tenus was referenced in the agreement.
“H. It was only after the purchase of the residence for [the wife] that the ‘final paperwork’ was prepared — documents which differ from the agreement of 4 August 1999.
“3. There was no evidence of duress, coercion, misrepresentation, fraud, or anything else which would lead a court to ignore the agreement reached by these parties. In fact, there was evidence to suggest that [the wife] merely used the process to have a mortgage-free residence purchased in her sole name.”

The ore tenus rule requires us to presume that the trial court’s finding — that there was no evidence of “duress, coercion, misrepresentation, fraud, or anything else which would lead a court to ignore the agreement reached by these parties” — was correct. See Gresham v. Gresham, 797 So.2d 1108 (Ala.Civ.App.2001). The court concluded, after hearing all the evidence, that the wife’s entering the settlement agreement stemmed from her desire to obtain a “mortgage-free residence purchased in her sole name.” Thus, the trial court’s findings and conclusions applied a “clean hands” analysis to the wife’s conduct. Cf. Ex parte Parish, 808 So.2d 30, 35 (Ala.2001) (holding that a widow’s “effort to gain a larger share of her husband’s estate, her apparent reason for trying to nullify a settlement that she had agreed to while her husband was alive, violates classic principles of equity [the clean hands doctrine]”).

      . The wife's $150,000 home was fully paid for by a $150,000 mortgage taken out on the couple’s $450,000 home, which was given to the husband in the settlement agreements.

      . Of course, whether the proper child-support obligation is $775 or a different amount will depend on the earning capacities of the parties and the various factors outlined in Rule 32, Ala. R. Jud. Admin.


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

text:
    Ex parte Kenneth R. MORRISON. (In re Esther Y. Morrison v. Kenneth R. Morrison).
    1011227.
    Supreme Court of Alabama.
    June 7, 2002.
    LaTresia L. Kinnell of Crittenden Martin, Birmingham, for petitioner.
    G. John Durward, Jr., of Durward & Cromer, Birminghan, for respondent.
   STUART, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, SEE, BROWN, HARWOOD, and WOODALL, JJ„ concur.

MOORE, C.J., concurs in part and dissents in part.

JOHNSTONE, J., dissents.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I agree with the majority that the petition for certiorari review is due to be denied insofar as the issue of the child-support award is concerned. I must dissent, however, from the majority’s denial of the petition insofar as the issue of the finality of the settlement agreement is concerned. The former husband and wife compiled lists dividing their assets and executed those lists as an agreement, which divided the marital assets; the lists covered nearly every asset the husband was examined about at trial. The parties purposefully waited to execute the agreement until after the mortgage on the house, which was given to the wife pursuant to the agreement, had been paid off. Indeed, the trial court specifically found that the wife had entered into this settlement agreement, which she assisted in devising and writing, in order to have “a mortgage-free residence purchased in her sole name. The trial court also explicitly found that there had been no duress, coercion, fraud, misrepresentation, or the like in the execution of the agreement.

Given the behavior of the parties concerning this agreement and the findings of the trial court, which should be reviewed with the ore terms presumption in their favor, I must conclude that the judgment of the trial court should be affirmed on this issue and that the Court of Civil Appeals erroneously reversed the trial court’s judgment based on its finding on the finality of this settlement agreement. Consequently, the Court should grant the petition and reverse the judgment of the Court of Civil Appeals on this issue.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from our denial of this petition for a writ of certiorari. I join Chief Justice Moore in the dissenting portion of his special writing.