author: PARKER, Justice. COBB, Chief Justice

text:
    Ex parte DOLGENCORP, INC. (In re Dolgencorp, Inc. v. Barbara Ann Gibson).
    1060428.
    Supreme Court of Alabama.
    Oct. 31, 2008.

      Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for petitioner.
    Joseph C. McCorquodale of McCorquo-dale & McCorquodale, Jackson, for respondent.
    Craig A. Alexander of Rumberger, Kirk & Caldwell, P.A., Birmingham; and Helen Johnson Alford of Alford, Clausen & McDonald, LLC, Mobile, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.
    Leila H. Watson of Cory, Watson Crow-der & DeGaris, P.C., Birmingham; and Patrick J. Ballard of Ballard Law Office, Birmingham, for amicus curiae Alabama Association for Justice, in support of the respondent.
   PARKER, Justice.

We granted certiorari in this workers’ compensation case to review an alleged conflict between the no-opinion affirmance of the trial court’s judgment by the Court of Civil Appeals and that court’s earlier decisions regarding the appropriate application of § 25-5-57(b), Ala.Code 1975, a portion of the Workers’ Compensation Act, § 25-5-1 et seq., Ala Code 1975. Section 25-5-57(b) provides:

“(b) Computation of compensation; determination of average weekly earnings. Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6)[] of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings.”

We conclude that a conflict does exist, and we reverse the judgment of the Court of Civil Appeals and remand the case to that court for resolution.

Facts

Barbara Ann Gibson began work for Dollar General, a retail discount store owned by Dolgencorp, Inc. (“Dolgen”), as an hourly wage employee on or about December 2,1998. She continued to work for Dolgen for 38 weeks until she suffered a work-related injury on July 28, 1999. She had become store manager in June 1999, and her salary was increased to $425 per week. After her injury, Gibson resigned. Her earnings for the 33 weeks that she worked totaled $8,715.88. This amount divided by 33 weeks results in average weekly earnings of $264.12.

Gibson sued Dolgen in the Clarke Circuit Court in a dispute over the extent of her disability and the amount of her average weekly earnings, which would determine the amount of any disability payments. The extent of Gibson’s disability is not at issue on appeal, but Dolgen challenges the trial court’s finding that Gibson’s average weekly earnings were $425. The trial court, apparently relying heavily on the fact that Dolgen reported Gibson’s salary as $425 per week when it filed the “Employer’s First Report of Injury,” used that amount as the basis for computing Gibson’s benefits.

The trial court’s order, dated December 13, 2005, reads, in pertinent part, as follows:

“This cause came before the Court on the 27th day of June, 2005, upon the pleadings, the evidence ore tenus adduced at trial,[] and the arguments of counsel. Upon consideration of the same, the Court finds as follows:
“The parties are in dispute regarding two material issues:
“1. The calculation of [Gibson’s] average weekly earnings. Dolgencorp, Inc. contends that the second method of [Ala.] Code [1975,] § 25-5-57(b) should be used to calculate [Gibson’s] average weekly earnings, which would result in the amount of $264.12. [Gibson] contends that the third method of [Ala.] Code [1975,] § 25-5-57(b) should be used to calculate her average weekly earnings, which would result in the amount of $425.00. Four Hundred and Twenty-five dollars ($425.00) is also the average weekly wage self-reported by Dolgencorp, Inc. to the State of Alabama in Employer’s First Report of Injury. This issue was briefed extensively by the parties, evidence was submitted on the issue, and counsel for both parties argued the issue.
“Findings and Conclusions
“Upon consideration of the medical evidence, the vocational evidence, and the other evidence ore tenus, including the Court’s observations of Barbara Ann Gibson, the Court has arrived at the following findings of fact and conclusions of law:
“1. That calculating Barbara Ann Gibson’s average weekly earnings using the second method of [Ala.] Code [1975,] § 25-5-57(b) would not obtain a just and fair result for both parties.
“2. That it is impracticable to compute the average weekly earnings in this case using the second method of [Ala.] Code [1975,] § 25-5-57(b).
“3. That calculating [Gibson’s] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) is practicable in obtaining a result that is just and fair to both parties.
“4. That the overwhelming evidence in support of the calculation of [Gibson’s] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) obtains a result of $425.00 per week.
“5. That the result of $425.00 per week calculating [Gibson’s] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) is equal to the average weekly wage self-reported by Dolgencorp, Inc. to the State of Alabama in Employer’s First Report of Injury.”

Dolgen appealed to the Court of Civil Appeals, challenging only the trial court’s finding of average weekly earnings of $425, arguing that the trial court should have calculated Gibson’s benefit based on average weekly earnings of $264.12 under the statute, and not on average weekly earnings of $425. The Court of Civil Appeals affirmed the trial court’s judgment, without an opinion, on October 20, 2006, citing only Henderson v. Johnson, 632 So.2d 488, 490 (Ala.Civ.App.1993), presumably that portion of Henderson that states that “when it is impracticable to apply the formulas for determining average weekly wage so as to arrive at a just and fair result to both parties, it is left to the sound judgment and judicial discretion of the trial court.” Dolgencorp, Inc. v. Gibson (No. 2050335, Oct. 20, 2006), 3 So.3d 296 (Ala.Civ.App.2006) (table). Dolgen sought cer-tiorari review of the Court of Civil Appeals’ decision, arguing that it conflicts with several decisions of this Court and of the Court of Civil Appeals. This Court granted Dolgen’s petition.

Dolgen argues that in Collins v. Westmoreland, 600 So.2d 253, 255 (Ala.Civ.App.1991), the Court of Civil Appeals construed § 25-5-57(b), Ala.Code 1975, to mean that where the duration of employment is less than 52 weeks, the second method in the statute for determining average weekly earnings should be used. Dolgen argues that the Court of Civil Appeals’ decision to affirm the judgment of the trial court here conflicts with that earlier opinion. Gibson argues that the trial court was within its discretion to determine her average weekly earnings as it did, because, Gibson asserts, the statute is not mandatory when the employee, as here, did not work in the employment for 52 weeks preceding the injury. Gibson also argues that Dolgen’s insertion of $425 as the average weekly salary on the Employer’s First Report of Injury is an admission against interest that supports the trial court’s finding even where other evidence might support a contrary finding. Gibson’s brief at 27.

Standard of review

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The standard of review in the Court of Civil Appeals was as follows:

“[An appellate court] will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “an appellate court’s review of the proof and consideration of other legal issues in a workers’ compensation case shall be without a presumption of correctness.” Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002) (citing § 25-5 — 81(e)(1), Ala.Code 1975). Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003).

As previously noted, no ore tenus evidence was presented to the trial court regarding this issue. Our review, therefore, is de novo, requiring no deference to the trial court as would be the case under the ore tenus rule.

Analysis

“The Legislature enacted the schedule in the Workers’ Compensation Act with a primary purpose of minimizing costly and time-consuming litigation over work-related injuries.” Ex parte Addison Fabricators, Inc., 989 So.2d 498, 502-03 (Ala.2007).

“The Workers’ Compensation Law was adopted in deference to a widespread belief and demand that compensation should be awarded to workers injured and disabled temporarily or permanently in the course of the employment, even though sometimes the accident might occur under such circumstances as would not permit a recovery in an ordinary action at law. The underlying thought was that such a system of compensation would be in the interest of the general welfare by preventing a worker from being deprived of means of support as the result of an injury received in the course of employment. The statute is the expression of what was regarded by the Legislature as a wise public policy concerning injured employees.”

1 Terry A. Moore, Alabama Workers’ Compensation § 2:3 (1998) (footnote omitted).

“[The Workers’ Compensation Act] has as its beneficial and humanitarian purpose to afford to injured workers and their dependents a means of maintenance during periods of disability where that disability arose from the hazards of the employment. A primary purpose of workers’ compensation is to financially aid the employee and his or her dependents for earnings lost by the employee’s injury. The [Alabama Workers’] Compensation Act has thus been construed to have as its one overriding purpose the protection of injured workers from the devastating effect of personal injuries arising out of and in the course of employment.”

Id. at § 2:5 (footnotes omitted)(emphasis added).

As expressed above, one purpose of the Workers’ Compensation Act is to provide the injured worker a means of maintenance during periods of disability, by providing compensation based on his or her average weekly earnings for the prior 52 weeks, or for the number of weeks the employee worked in his or her employment, if less than 52 weeks. The methodology used in providing this maintenance level of compensation is a major consideration in this case.

Dolgen argues that § 25-5-57(b) requires that where the duration of employment was less than 52 weeks, the second method in the statute for determining average weekly earnings should be used. That portion of the statute reads as follows:

“Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.”

§ 25-5-57(b), Ala.Code 1975. Dolgen argues that the Court of Civil Appeals’ decision conflicts with its earlier opinion, Collins, supra, which, Dolgen says, clarified the statutory requirement and requires the trial court to use the second method unless it determines that that method will not produce a fair and just result. Collins states, in pertinent part:

“It has been held that the second method of dividing the employee’s earnings by the number of weeks and parts of weeks employed is not mandatory but that it allows the trial court to determine if its use will provide just and fair results. However, this is not an optional method and should be used unless the trial court determines a valid reason that its use will not produce fair and just results.”

Collins, 600 So.2d at 255 (emphasis added). “Unless the court determines that for some valid reason the use of such method [dividing the earnings by the number of weeks] will not produce just and fair results, the method is not merely optional and should be used.” Odell v. Myers, 52 Ala.App. 558, 563, 295 So.2d 413, 416 (1974) (citing Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958)). Dolgen argues that “the trial court failed to make any factual finding of any valid reason why the use of the statutory method would produce substantial unfairness or unjust results to the parties.” Petition at 6 (emphasis in original). See § 25-5-88, Ala.Code 1975 (noting that “judgment shall be entered ... and shall contain a statement of the law and facts and conclusions as determined by said judge”). In Brunson Milling, a case analogous to this one, this Court determined:

“Appellee was employed by appellant for only 24 weekly pay periods prior to his accident and is therefore not within such mandatory provision, but this case is brought within that portion of the same subdivision which reads:
“ ‘Where the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.’
“The method of computing compensation provided in this subdivision is not mandatory, but gives the trial court the right to determine if said method will produce just and fair results to both parties. Garrison v. Woodward Iron Co., 210 Ala. 45, 97 So. 64, 65 [ (1923) ]; H.C. Price Co. v. Lee, [249 Ala. 230, 30 So.2d 579 (1947) ]; Deaton Truck Line v. Acker, 261 Ala. 468, 476, 74 So.2d 717 [(1954)].
“While some discretion is allowed the court under this subsection, the method therein established is not merely optional, but should be used unless substantial unfairness or injustice will result. We find no indication of an intention of the legislature to extend to the trial court the power whereby the court, after computing the compensation as prescribed in said section, can then adjust for a raise in pay received by the injured employee on the last week of his employment next preceding his injury, as was done by the court in the case before us. We conclude that the court exceeded its discretionary power in the way compensation was computed. We think the computation should be made in accordance with the principles herein-above stated.”

267 Ala. at 399, 103 So.2d at 317 (emphasis added). Here, the trial court determined to use the third method to determine Gibson’s average weekly earnings, but, as shown by the “findings and conclusions” section of its order, it presents no facts or reasoning in support of that determination. Both the statute and the applicable case-law require a finding by the trial court that a “just and fair” result requires deviation from the second method, which “is not an optional method and should be used unless the trial court determines a valid reason that its use will not produce fair and just results.” Collins, 600 So.2d at 255.

Gibson argues that because she did not work for Dolgen for 52 weeks preceding her injury the use of the statutory formula is not mandatory. In her brief in the trial court and again in her brief to this Court, Gibson argues that the first method in § 25-5-57(b) for calculating the average weekly earnings applies only to employees who were in their employment for 52 weeks before the injury and is thus inapplicable to her case. Gibson’s brief at 12. We agree.

Gibson then argues that the use of the second method would not obtain a just and fair result for both parties, that it would be impracticable to calculate her earnings using the second method, and that calculating the earnings using the third method is practicable in obtaining a result that is just and fair to the parties. Gibson’s brief at 13. As authority, Gibson cites only the trial court’s decision that forms the basis for our review. The record, the trial court’s order, and Gibson’s brief, however, present no caselaw or reasoning in support of the claim that the use of the second method is impracticable, or of the claim that a calculation using the second method would not obtain a result that is just and fair to both parties. Gibson merely quotes this Court’s statement that the Workers’ Compensation Act, being remedial in nature, should be liberally construed in favor of the employee when reasonable doubts exist. See Ex parte Byrom, 895 So.2d 942, 946 (Ala.2004); Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968). Gibson’s brief at 13. She has presented no argument or evidence, however, that such reasonable doubts exist.

It is true that,

“in determining legislative intent from the language used in a statute, we may not add or detract from that language and ‘[w]hen [that] language is clear, there is no room for judicial construction.’ Water Works & Sewer Bd. of Selma, 833 So.2d at 607. See also, e.g., Alabama Indus. Bank v. State ex rel. Avinger, 286 Ala. 59, 62, 237 So.2d 108, 111 (1970) (“When [statutory] language is plain, it should be considered to mean exactly what it says.’).”

Limestone County Water & Sewer Auth. v. City of Athens, 896 So.2d 531, 537 (Ala.Civ.App.2004). Section 25-5-57(b) provides for a liberal construction of its terms by requiring the use of the second method of calculation only where a result just and fair to both parties will thereby be obtained. This statutory provision leaves it for the “ ‘sound judgment and judicial discretion of the trial court’ ” to determine those instances where the statutory formula cannot be applied to determine the average weekly wage. See Ex parte Fryfogle, 742 So.2d 1258, 1261 (Ala.1999) (quoting Aluminum Workers Int’l v. Champion, 45 Ala.App. 570, 574, 233 So.2d 511, 514 (1970)).

The proper exercise of judicial discretion, however, is “ ‘ “the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances.” ’ Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 321-22 (Ala.2003) (Houston, J., dissenting and quoting Black’s Law Dictionary 467 (6th ed.1990)).” Ex parte Wilson, 984 So.2d 1161, 1175 (Ala.2007) (Cobb, C.J., dissenting). The statute itself provides guidance regarding the method to be used in the event the less-than-52week employment period is too short or too casual in nature to obtain a just and fair result using the second method. The third method the trial court elected to use here provides for the use of the “average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed in the same work by the same employer .... ” § 25-5-57(b).

The term “too short” is not defined in the statute, but the Court of Civil Appeals has analyzed several sets of circumstances in that regard and has upheld the use of the third method in several cases. Dolgen discusses these decisions as follows:

“When the statute speaks of employment being so short or casual in nature that it is impracticable to use the statutorily preferred method, it really means short and casual such that an alternate means of determining the average weekly wage must be made, and the cases where an alternate method has been used and approved demonstrate why. See, for example: Henderson v. Johnson, 632 So.2d 488 (Ala.Civ.App.1993) (worker employed just 7 weeks before injury); Shields v. GTI Corp., 607 So.2d 253 (Ala.Civ.App.1992), cert. denied, 622 So.2d 939 (Ala.1993) ([worker] employed only 2 days before injury); Stevison v. Qualified Personnel, Inc., 571 So.2d 1178 (Ala.Civ.App.1990) ([worker] employed less than one week before injury); C.E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So.2d 83 (1952) ([worker] employed ‘about 3 days’ before injury).”

Dolgen’s brief at 11-12.

Dolgen directs our attention to Meinhardt v. SAAD’S Healthcare Servs., Inc., 952 So.2d 368 (Ala.Civ.App.2006), a case in which the Court of Civil Appeals discussed what length of employment is sufficient to justify using the second method. In Mein-hardt, the employee, Meinhardt, had been employed for 35 weeks before the injury. The Court of Civil Appeals decided as follows:

“The calculation method ... dividing the earnings by the number of weeks of employment, is appropriate given the length of Meinhardt’s employment. Although § 25-5-57(b) goes on to address circumstances in which the ‘shortness of time’ during which the employee has been employed or ‘the casual nature or terms of the employment’ makes it ‘impracticable’ to compute the average weekly earnings, the • circumstances of this case do not support a deviation from the [second] calculation method .... Meinhardt’s 35-week period of employment was not so short, nor so casual in nature, as to make it ‘impracticable’ to compute her average weekly earnings in accordance with the [second method]. The record reveals that Meinhardt chose to work fewer hours on average than other employees during the 35-week period. It is both ‘just and fair’ to calculate Meinhardt’s average weekly wage based on the amount of time she worked. Therefore, we reverse the judgment of the trial court on this issue.”

952 So.2d at 378.

Gibson argues that Meinhardt did not alter the rule affording the trial court discretion to calculate the average weekly earnings using the third method “when it finds, based on substantial evidence, that use of the second method would be unjust, unfair, or impracticable.” Gibson’s brief at 21-22. Gibson overlooks the statutory preference for the second method expressed in the requirement that deviation from that method requires a finding that the result produced using that method would not be just and fair to both parties. No such finding was explicitly stated in the trial court’s decision.

Gibson goes on to argue that Meinhardt is clearly distinguishable because, unlike Gibson, Meinhardt had not experienced a major increase in earnings, Meinhardt had chosen to work fewer hours on average than other employees during the 35-week period, and the calculation of Meinhardt’s average earnings using the second statutory method would be just and fair. Gibson does not elaborate on the alleged significance that should be attached to her promotion to a steady weekly salary, when it “is clear from the plain language of the statute that the average weekly wage is to be determined retrospectively.” W.W. Dyar & Sons, Inc. v. Cochran, 693 So.2d 527, 529 (Ala.Civ.App.1997). Further, it would appear that Gibson, too, worked irregular hours, working less than 40 hours in 16 of the weeks she worked prior to her promotion. There is no evidence presented as to whether the shorter hours were her choice or Dolgen’s choice, but Gibson did not argue before the trial court that a portion of her employment was casual. Gibson worked for 33 weeks before her injury and Meinhardt worked 35 weeks. The periods are comparable, and they contrast sharply with the cases cited above that justified deviation from the second method in cases in which the duration of employment ranged from two days to seven weeks.

Contrary to Gibson’s stated position that the statutory methods are not mandatory, the statute does use the mandatory word “shall” when it provides for the method of calculating average weekly wages for employees who were not in their employment for 52 weeks before their injury. It says: “Where the employment ... extended over ... less than 52 weeks, the method of dividing the earnings during that period by the number of weeks ... during which the employee earned wages shall be followed ....” § 25 — 5—57(b), Ala. Code 1975 (emphasis added). Gibson apparently posits that the wording that follows — “provided results just and fair to both parties will thereby be obtained”— renders the second method optional because of her unsupported assertion that in her case the method would not obtain just and fair results for both parties. We disagree. Short of a demonstration that the results would not be just and fair to both parties, the second method is to be used. “Unless the court determines that for some valid reason the use of such method will not produce just and fair results, the method is not merely optional and should be used.” Odell, 52 Ala.App. at 563, 295 So.2d at 416. We hold that if the trial court finds that such a reason exists, it should be presented as justification for the departure from the second method for calculating average weekly earnings for employees with less than 52 weeks’ tenure. Here the trial court presented no reason or reasoning, and the Court of Civil Appeals erred in deferring to the trial court where no deference was warranted under the applicable standard of review.

Our search of the record reveals no finding of fact on the part of the trial court that would require deference on the part of an appellate court, nor do we find in the trial court’s order any evidence indicating that the court found a valid reason that the use of the second method to determine Gibson’s average weekly earnings would not produce a just and fair result. Because such a reason is required by Collins and by the statute, we hold that the Court of Civil Appeals erred in affirming the trial court’s order, which did not meet the requirements that the Court of Civil Appeals presented in Collins.

Gibson raises several other issues that bear consideration, and because we will not reverse the trial court’s judgment if that judgment is based on a finding of fact that is supported by substantial evidence, we have reviewed all aspects of the record in search of such evidence.

Gibson appears to argue that, if the second method is used to calculate her average weekly earnings, the court should consider only her period of employment from the time of her promotion to the time of her injury, stating that her

“lower irregular wages prior to her promotion cannot reasonably be said to provide a ‘just and fair’ basis for calculation of her average weekly earnings. Under such circumstances, therefore, calculation of the employee’s average weekly earnings pursuant to the second method would have been impracticable, unjust, and unfair, and the trial court was well within its discretion in so finding.”

Gibson’s brief at 11. Not only does this argument confuse the standards of the second and third methods of calculating average weekly earnings, but Gibson has provided no factual or legal foundation to support her argument that the wages earned for 24 of the 33 weeks she was employed by Dolgen should not be considered in calculating her average weekly earnings under the statute. Furthermore, the method Gibson insists should be used requires that the “shortness of the time during which the employee has been in the employ of his or her employer ” must make it impracticable to use the other methods, not the shortness of time in a particular position.

We note that the statutory scheme may result in differences between a new hire to a position versus an employee promoted to that position. The third method of calculating average weekly earnings under the statute provides that the average weekly earnings of a newly hired manager injured after a few days on the job would be calculated by using the wages of a surrogate who had worked in the same grade and performed the same work for the same employer for 52 weeks, while the average weekly earnings of a similarly injured newly promoted manager would be calculated by including her earnings in the her lesser-paid position under the second method. Such dissimilarities were the subject of oral argument, but we find no reasoned resolution of the apparent disparity within the confines of the statute. The legislature alone has the authority to correct the statute to alleviate the possibility of any such divergent results.

In her brief, Gibson characterizes the issue as whether the trial court exceeded its discretion in calculating the average weekly earnings as it did. This is a question that the Court of Civil Appeals may have considered. We note, however, that “[a] judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.” Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 12 (Ala.1979) (citing Premium Serv. Corp. v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir.1975)). Based on the guidance provided in Collins, on the Meinhardt decision, on the wording of the statute, and on the dearth of evidence presented at trial, it appears that the trial court exceeded its discretion.

Gibson argues that the fact that she was making $425 per week at the time she was injured, as documented by the Employer’s First Report of Injury filed by Dolgen, provides justification for using the third method to calculate her average weekly earnings. Gibson’s brief at 24. She uses Dolgen’s entry in the Employer’s First Report of Injury as evidence of an average weekly salary of $425. That entry was made in a section of the form that asked if the injured employee had returned to work (yes), if so, the date (8/24/1999), at what wage ($425), at what occupation (store manager), length of time in the employment (9 months), length of time in present job (9 months), average weekly wage ($425), and whether the employee received full pay for day of injury (yes). No evidence was presented to indicate the period for which the “average weekly wage” was sought on the form. Gibson’s average weekly wage at the time of her injury was $425, and that amount had been her average weekly wage since she was promoted. It is incorrect to say that $425 was the average weekly wage for the period of her total employment when the overwhelming evidence presented to the trial court in the form of payroll records shows otherwise. Gibson argues that the entry on the Employer’s First Report of Injury should justify the decision of the trial court under the authority of Garden City Heading Co. v. Thomas, 225 Ala. 273, 142 So. 534 (1932), a case that has been cited one time — in 1955. In Garden City Heading Co., this Court affirmed the judgment of the trial court, stating:

“[Wjhile the time sheets and earnings as set out upon the trial may have shown that the plaintiff had not earned as much as $15 per week for the year preceding the injury, yet the manager of the defendant, Kinser, reported to the ‘Workmen’s Compensation Commission’ that the average weekly earnings of the plaintiff for the past 52 weeks was $15 a week, and this was a fact or inference to support the finding of the trial court.”

225 Ala. at 273, 142 So. at 534. In Garden City Heading Co. the manager testified to the $15 salary as being paid for the preceding 52 weeks, and the trial court accepted his testimony over the written records. However, at the time Garden City Heading Co. was decided, the statute did not define the term “average weekly earnings” as the current statute does. See § 7550(g), Ala.Code 1923. The current statute defines average weekly earnings by reference to § 25-5-1(6), which provides that “average weekly earnings [shall be] based on those earnings subject to federal income taxation and reportable on the Federal W-2 tax form .... ” This would mean a retrospective focus on actual earnings, rather than an annualized projection of most recent earnings. Because the statute requires the use of the income reportable on the federal W-2 tax form, use of the information provided on the employer’s First Report of Injury is not an option.

Conclusion

The Court of Civil Appeals affirmed the trial court’s judgment on the basis that the determination of Gibson’s average weekly earnings should be left to the trial court’s sound judgment and judicial discretion. However, the exercise of judicial discretion is based on facts and guided by law or what is just and proper under the circumstances. In 1869, Justice Peters of this Court discussed judicial discretion, saying:

“In further illustration of what judicial discretion ought to be, but not unfre-quently is not, I add an extract from an opinion, in a case of national importance, by one of our country’s greatest men, and ablest and purest judges. Chief Justice Marshall says: ‘Courts are mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion; a discretion to be exercised in discerning the course prescribed by law; and when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.’ — Osborn v. United States Bank, [22 U.S.] 9 Wheat. 738, [766] [ (1824) ].”

Ex parte Chase, 43 Ala. 303, 311 (1869). Here, the statute provides the course prescribed by law, giving effect to the will of the legislature. It requires that in circumstances such as those presented in this case the second method of calculating average weekly earnings should be used, provided that the results will be just and fair to both parties. Deviation from the second method in favor of the third method requires the documentation of a reasoned and valid finding that the second method would not provide a result that is just and fair to both parties. No such finding was provided in this case; consequently, the decision of the Court of Civil Appeals must be reversed and the matter remanded for reconsideration in accordance with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur in the result.

COBB, C.J., dissents.

MURDOCK, J., recuses himself.

COBB, Chief Justice

(dissenting).

Section 25-5-57(b), Ala.Code 1975, provides, in pertinent part: “Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby by obtained.” (Emphasis added.) Given that Barbara Ann Gibson became a salaried employee upon her promotion to a managerial position approximately two months before she sustained her work-related injury, I cannot agree with the main opinion that computing Gibson’s average weekly wage based on the entire sum of compensation she received while employed at the Dollar General store provides a result that is just and fair to both parties. I believe the Court of Civil Appeals was correct in affirming the trial court’s judgment. I therefore respectfully dissent.

      . Section 25-5-1(6) defines "wages or weekly wages” as follows: "The terms shall in all cases be construed to mean 'average weekly earnings,' based on those earnings subject to federal income taxation and reportable on the Federal W-2 tax form ...."

      . We note that the period from December 2, 1998, the date of Gibson's hire, and July 28, 1999, the date of her injury, spans 34 weeks; however, because no one disputes the use of the 33-week period, we will use 33 as the number of weeks Gibson worked for Dolgen.

      . Although the record contains significant discussion regarding the extent of Gibson's disability, no argument or discussion regarding the average weekly wage was presented to the trial court orally. Beyond opening statements that the average weekly wage was an issue, there was only one statement on that subject. It was made after both sides had rested, when Gibson’s attorney gave the court and Dolgen's attorney a brief, stating that the brief was "in regard to the average weekly wage on which we have a dispute.”


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    DOLGENCORP, INC. v. Barbara Ann GIBSON.
    2050335.
    Court of Civil Appeals of Alabama.
    Jan. 23, 2009.
    Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for appellant.
    Joseph C. McCorquodale III of McCor-quodale & McCorquodale, Jackson, for ap-pellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

This court, on October 20, 2006, affirmed the trial court’s judgment, without opinion. 3 So.3d 296 (Ala.Civ.App.2006) (table). The Supreme Court of Alabama has reversed this court’s judgment and remanded the cause. Ex parte Dolgencorp, Inc., 13 So.3d 888 (Ala.2008). 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.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


author: SEE, Justice.

text:
    Steven GREENE et al. v. JEFFERSON COUNTY COMMISSION and the General Retirement System for Employees of Jefferson County.
    1070300.
    Supreme Court of Alabama.
    Nov. 14, 2008.
    Rehearing Denied Jan. 16, 2009.

      William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellants.
    James L. Priester and Grace R. Murphy of Maynard, Cooper & Gale, P.C., Birmingham; and Jeffrey M. Sewell, asst, county atty., Birmingham, for appellees.
   SEE, Justice.

Steven Greene, Mark Persall, Larry Owen, Charles Horton, James Phillips, and Cassie Bell, on behalf of themselves and all others similarly situated, appeal from a summary judgment in favor of the Jefferson County Commission and the General Retirement System for Employees of Jefferson County. We affirm.

Facts and Procedural History

The General Retirement System for Employees of Jefferson County (“the retirement system”) was created in 1965 by the enactment of Act No. 497, Ala. Acts 1965. The retirement system requires that each employee-member contribute six percent of his or her regular gross salary to the retirement system. Employee-members are credited with one year of paid service for each year they are employed by Jefferson County and contribute their six percent to the retirement system. In return for an employee-member’s six-percent contribution to the retirement system, Jefferson County contributes six percent in matching funds. However, in order to ensure that the retirement system remains actuarially sound, the retirement system invests the contributed funds to compensate for the difference between the total contributions and the actual pension payouts.

At some point during the 1970s, approximately 238 Jefferson County sheriffs deputies voluntarily ceased participating in the retirement system and withdrew their contributions, with interest. Those employees who opted out of the retirement system had their years of paid service reduced to zero, although they continued to receive one year of unpaid service for each year they continued to work for Jefferson County.

In June 2003, the legislature passed Act No. 2003-343, Ala. Acts 2003 (hereinafter “the Act”), allowing Jefferson County employees who had opted out of the retirement system to opt back in and to receive credit for prior periods of unpaid service rendered to Jefferson County, the Jefferson County sheriffs department, or any municipality in Jefferson County “or other jurisdiction.” The Act also allowed Jefferson County employee-members who did not opt out and who were contributing to the retirement system to convert prior periods of unpaid service to paid service. In order to convert unpaid prior service to paid service, an employee-member must contribute six percent of his or her current annual salary for each year the employee-member wishes to convert. The Act then requires Jefferson County to contribute six percent in matching funds and any further contributions that are necessary to ensure that the retirement system remains actu-arially sound.

Subsequent to the passage of the Act, two groups of Jefferson County employees filed separate class-action lawsuits to enforce the provisions of the Act. Sheriff Deputy Jimmy Black brought one of the class-action lawsuits against the pension board of the retirement system on behalf of other deputies who had opted out of the retirement system and who were seeking to enforce the provisions of the Act and to rejoin the retirement system. A second subclass in the first class-action lawsuit consisted of employees who had sought a hearing before a special master when Jefferson County did not allow the employees to convert unpaid service to paid service under the Act. Employee-members who had not opted out of the retirement system brought a separate lawsuit seeking to invalidate the Act. The lawsuits were eventually consolidated, and both Jefferson County and the retirement system were named as defendants (the consolidated actions are hereinafter referred to as “the Black litigation”).

Judge Jerry Fielding was specially assigned to preside over the Black litigation in the Jefferson Circuit Court. Judge Fielding found that the Act was not unconstitutional on the grounds asserted, and he ordered Jefferson County and the retirement system to implement the provisions of the Act allowing nonparticipating employees to opt back into the retirement system. None of the defendants appealed Judge Fielding’s decision.

In response to Judge Fielding’s order requiring Jefferson County to implement the provisions of the Act, the County passed Resolution JUN-7-2006-683 (“the resolution”). The resolution provides that eligible employees of Jefferson County who convert unpaid service to paid service under the Act forfeit any claim to retirement benefits under both the Jefferson County Retiree Health Insurance Plan and the Jefferson County Sick Leave Retirement Conversion Program. Jefferson County defended the resolution as a necessary measure to preserve the economic stability of the County. The actuary for Jefferson County estimated that if all eligible employees availed themselves of the provisions of the Act, Jefferson County’s obligation to contribute matching funds and to compensate for investment earnings that would have been realized if the employees had been making ongoing contributions to the retirement system would cost the County $64 million. The resolution also stated that one of its express purposes is to allow Jefferson County to “fulfill its statutory financial obligations.”

On June 19, 2006, the plaintiffs in the Black litigation moved for supplemental relief in the form of a preliminary injunction enjoining Jefferson County from enforcing the provisions of the resolution. The Jefferson County Commission, the pension board of the retirement system, and the retirement system challenged the motion, arguing, among other things, that the plaintiffs had failed to post an injunction bond. The plaintiffs responded by requesting that the trial court consolidate the hearing on the preliminary injunction with the trial on the permanent injunction.

Judge Fielding denied the plaintiffs’ motion for supplemental relief, finding that there was no justiciable issue in the motion because the court could not enjoin the enforcement of the resolution. He held that to do so would violate Article III, § 43, Alabama Constitution 1901. Judge Fielding also found that “the issues presented in the plaintiffs’ challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging [the Act].” The plaintiffs in the Black litigation did not appeal Judge Fielding’s denial of the motion for supplemental relief.

On November 21, 2006, Judge Fielding certified his judgment in the Black litigation as final pursuant to Rule 54(b), Ala. R. Civ. P. The judgment specifically states that “[t]his Final Judgment entered under Ala. R. Civ. P. 54 together with the previous orders entered by this Court in these matters disposes of all claims for relief made by any party.” Neither side to the dispute in the Black litigation appealed Judge Fielding’s judgment.

On May 18, 2007, Steven Greene, Mark Persall, Larry Owen, Charles Horton, James Phillips, and Cassie Bell, on behalf of themselves and all others similarly situated (hereinafter “the Greene parties”), sued the Jefferson County Commission and the retirement system (collectively “the County”) in the Jefferson Circuit Court. The Greene parties sought a judgment declaring that the Jefferson County Commission, by passing the resolution, “retaliated [against] and/or administered unequal treatment” to Jefferson County employees who sought to convert unpaid service to paid service under the Act. The Greene parties also sought a permanent injunction to prevent the County from enforcing the resolution, as well as other equitable relief to eliminate the effects of the resolution. The County moved for a summary judgment, arguing (1) that the Greene parties’ claims are barred by the doctrines of res judicata and collateral es-toppel; (2) that Art. Ill, § 43, Ala. Const. 1901, prevents the trial court from hearing the Greene parties’ challenge to the resolution; (3) that Alabama law does not recognize an equal-protection challenge; and (4) that the Greene parties’ claims are due to be dismissed because the Greene parties did not present their claims to the Jefferson County Commission before commencing their action and, thereby, violated § 6-5-20 et seq., Ala.Code 1975.

Judge Vance of the Jefferson Circuit Court entered a summary judgment in favor of the County. His order states, in its entirety:

“For the reasons stated therein, the defendants’ motion for summary judgment is due to be GRANTED. Neither the named class representative nor any member of the putative class may maintain the claims raised in the complaint.”

Twenty-two days later in a postjudgment motion, the Greene parties moved Judge Vance to recuse himself because, the Greene parties argued, Judge Vance and counsel for the County had violated § 12-24-2, Ala.Code 1975, by failing to notify the Greene parties that counsel for the County had contributed more than $2,000 to Judge Vance’s election campaign. The Greene parties also moved the trial court for a new trial or, in the alternative, to alter, amend, or vacate the judgment or for relief from judgment. Judge Vance denied the Greene parties’ recusal motion and also denied the Greene parties’ motion for a new trial and other postjudgment relief. The Greene parties now appeal.

Standard of Review
‘We review the trial court’s grant or denial of a summary judgment motion de novo.’ Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present ‘substantial evidence’ of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993). ‘The trial court’s ruling on a question of law carries no presumption of correctness, and this Court reviews de novo the trial court’s conclusion as to the appropriate legal standard to be applied.’ Dunlap v. Regions Fin. Corp., 983 So.2d 374, 377 (Ala.2007) (citing Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).”

McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008).

Analysis

The Greene parties provide several reasons why, they contend, the trial court erred in entering a summary judgment in favor the County. First, the Greene parties argue that the County failed to carry its summary-judgment burden because, they say, the County failed to include a narrative summary of undisputed facts as required by Rule 56(c)(1), Ala. R. Civ. P. Second, the Greene parties argue that the doctrine of res judicata does not apply in this case because, they argue, the Black litigation involved different parties and issues. The Greene parties further argue that even if the doctrine of res judicata applies in this case, the County should be judicially estopped from asserting that defense because, they say, the County’s position in the Black litigation is inconsistent with the position it asserts in this action. Finally, the Greene parties argue that this case does not implicate a separation-of-powers issue under § 43, Ala. Const.1901, because the resolution was not a valid exercise of the County’s legislative power.

A. The County’s Summary-Judgment Burden

A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). The Greene parties argue that the burden never shifted to them to present substantial evidence creating a genuine issue of material fact because, the Greene parties say, the County did not include a narrative summary of undisputed facts with its summary-judgment motion as required by Rule 56(c)(1), Ala. R. Civ.

However, the County argues that it did support its summary-judgment motion with a narrative summary of the undisputed facts. The County’s brief in support of its summary-judgment motion contains a statement of facts with references to materials that are attached to the brief as exhibits. Those exhibits include the stipulations regarding class certification of the plaintiffs in the Black litigation, the Black plaintiffs’ motion for supplemental relief, Judge Fielding’s order denying the Black plaintiffs’ motion for supplemental relief, Judge Fielding’s final judgment, and a memorandum sent by the County to all Jefferson County employees regarding conversion of unpaid service to paid service under the terms of the resolution. The County contends that the statement of facts contained in its brief and the references to the attached exhibits satisfy the requirement of Rule 56(c) that a motion for a summary judgment include a narrative summary of undisputed facts. We agree.

In Cashion v. Torbert, 881 So.2d 408 (Ala.2003), this Court addressed a similar situation. In Cashion, Torbert moved for a summary judgment based upon the affirmative defense of res judicata. The summary-judgment motion provided “a detailed history relevant to the defense of res judicata, attaching numerous supporting affidavits.” Cashion, 881 So.2d at 420. The supporting documents attached by Torbert included copies of “Cashion’s report of insolvency filed in the probate court; her brief filed in support of that report”; and a copy of the trial judge’s order on final settlement. Cashion, 881 So.2d at 420. This Court held that Tor-bert’s “motion was adequately supported and adequately presented the undisputed issues of fact material to the defense of res judicata.” Cashion, 881 So.2d at 420.

In this case, as in Cashion, the County included with its motion a statement of facts relevant to the defense of res judicata and attached to its brief in support of the motion copies of relevant documents that provide the basis for the County’s assertion that this claim is barred by the doctrine of res judicata. In the narrative statement, the County refers to, and attaches a copy of, the motion for supplemental relief in the Black litigation, Judge Fielding’s order denying that motion, and stipulations regarding class certifications in the Black litigation. These documents form the basis for the County’s argument that the Greene parties’ claims are barred by the doctrine of res judicata and are cited by the County in its statement of facts in its summary-judgment motion. The County, like Torbert in Cashion, did provide “a detailed history relevant to the defense of res judicata, attaching numerous supporting affidavits.” Cushion, 881 So.2d at 420. Therefore, we conclude that the County sufficiently complied with Rule 56(c)(1), Ala. R. Civ. P., insofar as that rule requires that a narrative summary of the undisputed facts be included with a summary-judgment motion.

B. The Doctrine of Res Judicata

The Greene parties contend that the doctrine of res judicata does not apply to bar their action because, they argue, the judgment in the Black litigation was not a final judgment on the merits and the Black litigation and this action are different causes of action involving different issues. The County contends that Judge Fielding’s denial of the motion for supplemental relief in the Black litigation and his final order incorporating all of his previous orders in that litigation satisfies the elements of res judicata.

The elements of res judicata are “ ‘(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.’ ” Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala.2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998)).

1. Judgment on the Merits

First, we agree with the County that Judge Fielding’s denial of the motion for supplemental relief in the Black litigation is a prior judgment on the merits. In his order denying the plaintiffs’ motion for supplemental relief, Judge Fielding stated:

“The Jefferson County Commission has been vested with the responsibility for maintaining a balanced budget for the County and funding and overseeing vital public services for the citizens of the County. In adopting the Resolution, the Commission did not abuse [its] vested discretion, and did not engage in fraud. This Court’s inquiry must end there, as the authority to determine the amount of appropriations necessary for the performance of government function is a legislative power, not a judicial power. In re R.B.J., 675 So.2d 457, 458 (Ala.Civ.App.1996). This Court would infringe upon the boundaries between our State’s branches of government delineated in Sec. 43 of the Alabama Constitution if it were to enjoin this Resolution. This Court also find[s] that the issues presented in Plaintiffs challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs’ Motion for Supplemental Relief.”

Judge Fielding denied the motion for supplemental relief, finding that the resolution was a discretionary legislative act by the Jefferson County Commission that implicated the Commission’s obligation to enact and maintain a balanced budget. Judge Fielding found that an injunction preventing the enforcement of the resolution would violate the separation-of-powers doctrine enshrined in § 43 of the Alabama Constitution. This was a judgment on the merits.

On November 21, 2006, Judge Fielding entered his final order, which incorporated all previous orders entered by the trial court, including the order denying the motion for supplemental relief. Under Rule 4(a)(1), Ala. R.App. P., the plaintiffs in the Black litigation had 42 days from the date of the entry of that final judgment to appeal the denial of their motion for supplemental relief. The plaintiffs did not appeal. Therefore, that judgment became final for res judicata purposes after the time for filing an appeal had elapsed. See Omega Leasing Corp. v. Movie Gallery, Inc., 859 So.2d 421, 424 n. 1 (Ala.2003) (summarizing Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992), as “stating that ‘a judgment is not final for the purposes of res judicata ... when it is being appealed or when the time limits fixed for perfecting the appeal have not expired’ ”).

The Greene parties contend, however, that Judge Fielding’s statement— that “the issues presented in Plaintiffs challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs’ Motion for Supplemental Relief.” — makes it impossible for the order to be a final judgment on the merits. The Greene parties argue that this is so because, they argue, there can be no final judgment from a dispute that contains no justiciable issues. However, the Greene parties do not cite any authority to support this argument. “ ‘ “Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.” ’ ” McCutchen Co., 988 So.2d at 1004 (quoting Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986), quoting in turn Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)).

The Greene parties also argue that Judge Fielding’s denial of the motion for supplemental relief in the Black litigation was not a final judgment on the merits because, they say, in denying that motion Judge Fielding denied the plaintiffs’ motion for a preliminary injunction. The Greene parties cite EB Investments, L.L.C. v. Atlantis Development, Inc., 930 So.2d 502, 510 (Ala.2005), in which this Court stated that the trial court’s ruling on a motion for a preliminary injunction is not a prior judgment for res judicata purposes because it is “neither a final judgment nor was it rendered on the merits” of the claims involved in the action.

The County, however, responds that in denying the motion for supplemental relief, Judge Fielding was actually denying a request for a permanent injunction rather than a request for a preliminary injunction. The County points out that the plaintiffs in the Black litigation sought to convert their motion for a preliminary injunction into a motion for a permanent injunction because they failed to post a preliminary-injunction bond as required by Rule 65(c), Ala. R. Civ. P.

In their response to the County’s motion opposing the motion for supplemental relief, the plaintiffs in the Black litigation stated that their motion for supplemental relief was “due to be granted in the form of a permanent injunction.” Thus, we agree with the County that the plaintiffs in the Black litigation sought a permanent injunction and that when Judge Fielding denied the motion for supplemental relief he denied a motion for a permanent injunction. The denial of a motion for a permanent injunction can be a final judgment for res judicata purposes. See 43A C.J.S. Injunctions § 356 (2004) (“[A]n interlocutory judgment granting or refusing an injunction may be res judicata with respect to the right to a permanent injunction, where the judgment on the application for a preliminary injunction was based solely on a question of law, or where the proof at the trial is substantially the same as it was at the interlocutory hearing.”). Therefore, Judge Fielding’s denial of the motion for supplemental relief was a final judgment on the merits for res judicata purposes.

2. Court of Competent Jurisdiction

Neither side disputes that Judge Fielding’s denial of the motion for supplemental relief .and his final judgment in the Black litigation was a decision rendered by a court of competent jurisdiction. See AAA Mobile Home Movers, Inc. v. Holmes, 607 So.2d 236, 238 (Ala.Civ.App.1992) (“Clearly, the Jefferson County Circuit Court, which entered the summary judgment denying the appellant’s claims, was a court of competent jurisdiction.”).

S. Substantial Identity of Parties

The parties in the Black litigation are substantially identical to the parties involved in this dispute. Our caselaw requires that “there is a substantial identity of parties in the two actions.” Ex parte Ford Motor Credit Co., 772 So.2d 437, 440 (Ala.2000). Substantial identity requires that the “ ‘ “parties be identical, sometimes referred to as the mutuality of estoppel requirement.” ’ ” Stewart v. Brinley, 902 So.2d 1, 10 (Ala.2004) (quoting McMillian v. Johnson, 878 F.Supp. 1473, 1520 (M.D.Ala.1995)). “ ‘An exception is made to this requirement for parties in privity with a party to the prior action.’ ” Stewart, 902 So.2d at 10 (quoting McMillian, 878 F.Supp. at 1520) (emphasis omitted). A party is deemed to be in privity with a party to a prior action when there is “ ‘ “an identity of interest in the subject matter of litigation.” ’ ” Stewart, 902 So.2d at 11 (quoting Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988), quoting in turn Issue Preclusion in Alabama, 32 Ala. L.Rev. 500, 521 (1981)).

The County argues that the Greene parties were all class members of one of the subclasses in the Black litigation. In fact, Jim Phillips, one of the Greene parties involved in this dispute, acted as a class representative in the Black litigation for the subclass that filed the motion challenging the validity of the resolution. The remaining Greene parties who were not members of that particular subclass share that same interest in the subject matter of the dispute, namely, invalidating the resolution.

This Court has stated: “ ‘ “ ‘A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.’ ” ’ ” Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1203 (Ala.2002) (quoting Green v. Wedowee Hosp., 584 So.2d 1309, 1315 (1991), quoting other cases). In the Black litigation, the subclass of Jefferson County deputies and the subclass of Jefferson County employees had an identical interest in seeking the invalidation of the resolution because, under the terms of the resolution, members of both subclasses would have been required to forfeit certain discretionary benefits in order to opt back into the retirement system. Therefore, the third element of res judicata is met in this case because the parties in this case are substantially identical to the parties involved in the Black litigation.

k- Same Cause of Action

The fourth and final element of res judicata — that the same cause of action be presented in both actions — is also met in this case. “ ‘Res judicata applies not only to the exact legal theories advanced in the prior case, but to all legal theories and claims arising out of the same nucleus of operative facts.’ ” Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala.2000) (quoting Wesch v. Folsom, 6 F.3d 1465, 1471 (11th Cir.1993)). Two causes of action are the same for res judicata purposes “ ‘when the same evidence is applicable in both actions.’ ” Old Republic Ins. Co., 790 So.2d at 928 (quoting Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988)).

In this case, the Greene parties seek a judgment declaring that the sole purpose of the resolution is to punish Jefferson County employees who convert unpaid service to paid service under the Act and a permanent injunction to prevent the County from enforcing the resolution. The plaintiffs in the Black litigation who filed the motion for supplemental relief likewise sought to enjoin the County from enforcing the resolution. Because the claims in this litigation and those in the Black litigation both seek to prevent the County from enforcing the resolution, the claims in the two cases arise out of the same nucleus of operative facts. Additionally, the Greene parties, in seeking to prevent the County from enforcing the resolution, rely on the same evidence and advance many of the same arguments raised in the plaintiffs’ motion for supplemental relief in the Black litigation.

The Greene parties insist that this cause of action is not the same as the cause of action in the Black litigation because, they say, Judge Fielding recognized that there was no justiciable dispute before him when he denied the motion for supplemental relief. To support this argument, the Greene parties point to the following language in Judge Fielding’s denial of the motion for supplemental relief: “This Court also find[s] that the issues presented in Plaintiffs challenge to the Resolution are completely separate and involve different facts, issues, and theories than the previous action challenging Act 03-343. Thus, the Court finds that there is no justiciable issue involved in the Plaintiffs’ Motion for Supplemental Relief.” The Greene parties argue that “a claim that is not properly before an earlier court could [not] preclude the claim being properly presented in a subsequent action.” Greene parties’ brief at 34-35. However, as we noted previously, this was an alternative holding. Judge Fielding based his denial of the motion for supplemental relief on the fact that the granting of injunc-tive relief would violate the separation-of-powers doctrine as established in § 43 of the Alabama Constitution. Therefore, we agree that the final element of res judicata is met because this cause of action is the same cause of action raised in the motion for supplemental relief in the Black litigation.

The County has demonstrated that there was a prior final judgment on the merits in the Black litigation, that that judgment was rendered by a court of competent jurisdiction, that the parties in the Black litigation and this action are substantially identical, and that the cause of action was the same in both disputes. Thus, the four elements of res judicata are met, and the claims raised by the Greene parties are barred.

C. Judicial Estoppel

The Greene parties argue that even if the doctrine of res judicata would apply to prevent them from raising their claims, the County should be judicially es-topped from raising the doctrine of res judicata as an affirmative defense. For judicial estoppel to apply,

“ ‘(1) “a party’s later position must be ‘clearly inconsistent’ with its earlier position”; (2) the party must have been successful in the prior proceeding so that “judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or second court was misled’ ” (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” [New Hampshire v. Maine,] 532 U.S. [742,] at 750-51, 121 S.Ct. 1808 [ (2001) ]. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.’ ”

Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 60-61 (Ala.2007) (quoting Ex parte First Alabama Bank, 883 So.2d 1236, 1244-45 (Ala.2003), citing in turn New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)).

The County raised three arguments in response to the motion for supplemental relief filed by the plaintiffs in the Black litigation. One of the arguments was that § 43 of the Alabama Constitution deprived the court of jurisdiction to entertain the plaintiffs’ motion absent a showing of fraud or abuse of discretion by the County. The second argument was that the trial court had no basis for hearing the motion, because the subject matter of the resolution — the Jefferson County Retiree Health Insurance Plan and the Jefferson County Sick Leave Retirement Conversion Program — were unrelated to the question of the validity of the Act. The Greene parties argue that the first element of judicial estoppel is met here because, they say, the County has asserted inconsistent positions by successfully arguing “to the court in the Black Litigation that the issue of the Resolution’s validity was not even before the court. But, in the instant case [the County] argue[s] the issue was before the Black court and was decided in [the County’s] favor.” Greene parties’ brief at 36.

The County contends that its positions were not inconsistent because, it says, it merely presented several alternative arguments to support the denial of the motion for supplemental relief. The County argues that its “current position in this proceeding that Judge Fielding issued a final judgment on the merits that § 43 [of the Alabama Constitution] bars review of the Resolution is clearly not inconsistent with their prior position that argued for this exact result.” County’s brief at 89.

We agree with the County. Judge Fielding found that the resolution was a valid exercise of Jefferson County’s legislative power and that, in enacting the resolution, Jefferson County did not engage in fraud or abuse its discretion. The County argued for this result in the Black litigation and has maintained this position throughout this action as well. Judge Fielding’s second conclusion — that the challenge to the resolution involved different facts, issues, and theories then the challenge of the Act — was an alternative holding that was based upon the County’s alternative argument that the challenge to the resolution was not at issue in the Black litigation. The County raised alternative arguments in seeking the denial of the motion for supplemental relief in the Black litigation; however, the County has consistently maintained in both actions the position that judicial review of the resolution would violate separation-of-powers principles. The doctrine of judicial estoppel “ ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.’ ” Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)). See also Astor Chauffeured Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1548 (7th Cir.1990) (stating that in the context of judicial es-toppel “[t]he offense is not taking inconsistent positions so much as it is tvinning, twice, on the basis of incompatible positions”). Because the County’s positions appear to be consistent throughout both the Black litigation and these proceedings, we conclude that the County is not judicially estopped from raising the affirmative defense of res judicata.

Conclusion

We hold that the County’s summary-judgment motion was properly supported with a narrative summary of undisputed facts and that the County was entitled to summary judgment on the basis of res judicata. We also hold that the County was not judicially estopped from raising the affirmative defense of res judicata. Therefore, we affirm the trial court’s judgment.

AFFIRMED.

COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

      . Act No. 497 provides: "Except as herein otherwise provided, every person becoming an employee of [Jefferson] County subsequent to the effective date of this Act and occupying a position subject to the civil service system applicable to the County shall become a member of the system on the date he enters the service of the County.”

      . The pension an employee-member receives from the retirement system is tied to the number of years of "paid service” the employee-member has accumulated. This is the number of years the employee-member was employed by Jefferson County and paid into the retirement system. The years an employee works for Jefferson County but does not make contributions into the retirement system are referred to as "unpaid service."

      . Section 2, subsection (a), of the Act provides that "[Conversion of unpaid prior service to paid service shall be limited to 20 years."

      . Jefferson County enacted the Sick Leave Retirement Conversion Program in 1993. This program allows employees of Jefferson County to conserve their paid sick-leave benefits. A retiring employee with at least 15 years of employment with Jefferson County who has opted to save his or her sick-leave time is eligible to receive a credit whereby the retiring employee uses the accumulated sick-leave time to remain on the Jefferson County payroll as an off-duty employee until the employee’s actual retirement date.

      . Section 43 provides: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

      . Each of these individuals was a member of one of the several plaintiff subclasses in the Black litigation.

      . Section 6-5-20(a), Ala.Code 1975, provides:
      "An action must not be commenced against a county until the claim has been presented to the county commission, disallowed or reduced by the commission and the reduction refused by the claimant.”

      . Section 12-24-2, Ala.Code 1975, provides, in pertinent part:
      "If the action is assigned to ... a circuit judge who has received more than two thousand dollars ($2,000) based on the information set out in any one certifícate of disclosure, then, within 14 days after all parties have filed a certificate of disclosure, any party who has filed a certificate of disclosure setting out an amount including all amounts contributed by any person or entity designated in subsection (b), below the limit applicable to the justice or judge, or an amount above the applicable limit but less than that of any opposing party, shall file a written notice requiring recusal of the justice or judge or else such party shall be deemed to have waived such right to a recusal. Under no circumstances shall a justice or judge solicit a waiver or participate in the action in any way when the justice or judge knows that the contributions of a party or its attorney exceed the applicable limit and there has been no waiver of recusal.”

      . In addition to the arguments addressed below, the Greene parties also argue that Judge Vance was required to recuse himself from this case pursuant to § 12-24-2(c), Ala.Code 1975. The Greene parties are precluded from seeking Judge Vance's recusal on this ground, however, because they raised this issue for the first time in their posttrial motion. Alabama courts have held: "If a party has knowledge of a judge or master's partiality and that information may support a recusal, the party may not lie in wait and raise the issue of recusal after learning the outcome of the proceeding.” Adams v. Board of Trs. of Univ. of South Alabama, 676 So.2d 1326, 1328 (Ala.Civ.App.1996). Campaign contributions are a matter of public record; therefore, the Greene parties are deemed to have constructive knowledge of the alleged violation of §§ 12-24-1 and -2. See Ex parte Kenneth D. McLeod Family Ltd. P’ship XV, 725 So.2d 271, 273 (Ala. 1998) (denying the plaintiff's motion for a new trial because the defendant's campaign contribution "along with all other contributions received by the trial judge in her campaign, was a matter of public record,” and therefore the plaintiff was "on notice that grounds for a recusal motion might exist”). See also Brackin v. Trimmier Law Firm, 897 So.2d 207, 233-34 (Ala.2004) (Brown, J., statement of nonrecusal) (noting that "the fact that it is questionable whether §§ 12-24-1 and -2, Ala.Code 1975, which have not yet obtained ‘preclearance' from the United States Justice Department under the Voting Rights Act of 1965, are even enforceable has been well documented by this Court”).

      . Rule 56(c)(1), Ala. R. Civ. P., provides that a motion for a summary judgment
      "shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority.”

      . The County also argues that the Greene parties have not preserved for appellate review the issue of its failure to provide a narrative summary of the undisputed facts with its summary-judgment motion because, the County says, the Greene parties did not raise this argument in the trial court. In support of this argument, the County cites Copeland v. Samford University, 686 So.2d 190 (Ala.1996). In Copeland, this Court held that the Cope-lands did not preserve for appellate review the argument that Samford University's summary-judgment motion did not include a narrative summary of undisputed facts because they "made no objection on this basis at any time before the court ruled on the motion for summary judgment.” 686 So.2d at 196. Our decision in Horn v. Fadal Machining Centers, LLC, 972 So.2d 63 (Ala.2007), however, calls into question whether this aspect of our holding in Copeland remains good law. We need not decide this question because we conclude that the County did include such a narrative summary.

      . Rule 4(a)(1), Ala. R.App. P., provides, in relevant part:

        "Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from .... ”

      . Rule 65(c), Ala. R. Civ. P., provides, in relevant part:
      "No ... preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.”

      . The Greene parties have also failed to comply with Rule 28(a)(10), Ala. R.App. P., because they have failed to include in their brief any mention of relevant facts or legal authority that could controvert the conclusion that the substantial-identity-of-the-parties requirement is satisfied in this case. "Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

      . The County’s third argument, that jurisdiction was not proper in the Bessemer Division of the Jefferson Circuit Court, is not at issue in the Greene parties' judicial-estoppel argument.

      . Because we have determined that this action is barred by the doctrine of res judicata, we need not address the § 43 issue.