author: SEE, Justice.

text:
    Ex parte Robert Keyon WIMES. (In re Robert Keyon Wimes v. State of Alabama).
    1070785.
    Supreme Court of Alabama.
    Jan. 16, 2009.

      David K. Hogg of Hogg, North & Brook, LLC, Dothan, for petitioner.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.
   SEE, Justice.

Robert Keyon Wimes was convicted of first-degree robbery and was sentenced to 22 years’ imprisonment. The Court of Criminal Appeals affirmed that conviction in an unpublished memorandum, Wimes v. State (No. CR-06-1424, January 25, 2008), — So.3d - (Ala.Crim.App.2008) (table), and Wimes petitioned this Court for certiorari review. We granted his petition to determine whether the Court of Criminal Appeals’ decision conflicted with Ex parte Appleton, 828 So.2d 894 (Ala.2001). After reviewing the parties’ arguments and the record, we quash the writ.

Facts and Procedural History

On November 24, 2005, Curtis Pannell’s wife dropped him off outside the bakery where he worked. As Pannell was walking around the building to the entrance, two young men approached him and demanded his wallet. Pannell refused to give it to them. One of the men had a gun and hit Pannell on the head with it. Pannell retreated into the building, and the two men ran away.

Pannell’s supervisor immediately telephoned the police. When the police arrived, Pannell gave them a description of the two men. According to Officer Jonathan Whaley, who took Pannell’s statement, Pannell stated that the two men were tall and dark-skinned, that one of them was wearing a light-colored shirt and dark shorts, and that the other was wearing a black hooded jacket and blue sweatpants. Another officer, Officer Derek Womack, who was the first to respond to the call, testified that Pannell told him the dii’ection in which the young men had run.

A short time after Pannell gave his statement, and within about a half hour of the actual robbery, an officer drove Pan-nell to a house where, Pannell stated, he was shown three men, one at a time,' and was asked to identify which two had been involved in the robbery. Pannell identified the two taller men, saying that the third man was too short to have been one of the robbers. The police officer testified that Pannell identified the man who he said had hit him with the gun and that he identified him by the clothes he was wearing. One of the two men Pannell identified was Wimes.

At trial, Pannell identified Wimes as one of his attackers. Wimes objected to this in-court identification because, Wimes argued, the pretrial identification at the house was unnecessarily and impermissi-bly suggestive. The trial court overruled Wimes’s objection. On cross-examination, Pannell testified that it was dark where he was mugged. He further testified that he could not recall the size of the gun with which he had been hit, even though he had previously told defense counsel that it was a large gun and, apparently, had told police that it was small. Pannell further testified on cross-examination that he had described the young men to the police as tall dark-skinned individuals and that, on the night of the robbery, he had identified the two men by their height and their clothing.

Wimes was convicted of first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975, was sentenced to 22 years’ imprisonment, and was ordered to pay a $5,000 fine and a $500 assessment to the Alabama Crime Victims Compensation Fund.

Wimes appealed, arguing that the trial court had exceeded its discretion by allowing Pannell’s in-court identification because, Wimes argued, it was based on an impermissibly suggestive pretrial identification. The Court of Criminal Appeals affirmed the trial court’s judgment, stating in its unpublished memorandum that, under the totality of the circumstances, the pretrial identification was not impermissi-bly suggestive and the likelihood of mis-identification was low. We granted Wimes’s petition to address a possible conflict between the Court of Criminal Appeals’ decision in this case and this Court’s decision in Ex parte Appleton, supra.

Analysis

Wimes argues that the Court of Criminal Appeals’ affirmance of the trial court’s judgment conflicts with Ex parte Appleton because, he says, “the identification procedure involving Wimes was unnecessarily suggestive.” Wimes’s brief at 18. In Ex parte Appleton, Vincent Flores was robbed by two men while he was using a pay telephone. Both robbers were masked, and one of them held a gun to Flores’s head. The robbery lasted five to seven minutes. In describing the robbers to the police, about 15 minutes after the robbery, Flores said:

“ ‘They both had three-quarter length black leather coats with hoods on. The tall guy had a black ski mask on. He had gloves, it looked like gray, olive-type kind. Black trousers. Black boots. And held an automatic weapon, which I believe was a 45. I say it was a 45. I can distinguish the difference between a 45 and a nine mill. Nine mill is smaller, so I told the guy it was a 45, and even described it was blue nickel with a brown handle.’ ”

828 So.2d at 897 (emphasis omitted).

About the same time Flores was reporting the robbery to the police, other officers were responding to a loitering complaint. When the officers pulled the police vehicle into the area that was the subject of the loitering complaint, Appleton and another man were standing on the street. When the pair saw the police car, they started to run. The officers chased them, and, when they caught Appleton, they found in the pocket of his jacket a nine-millimeter Beretta handgun. The officers also found in Appleton’s possession a black ski mask and a black glove.

When the officers arrived at the police station with Appleton, Sgt. Kenneth Youngblood telephoned Flores and asked him to come to the station because they had a suspect in custody. About 15 minutes after he had reported the robbery, Flores returned to the police station to, in his own words, “ ‘actually identify the guy.’ ” 828 So.2d at 897. Youngblood showed Flores the jacket, mask, glove, and a gun, which Flores testified was a .45-caliber pistol, and asked Flores if the items looked familiar. Flores told Young-blood that they looked like the clothes the men who had robbed him were wearing and the pistol the men had used. Flores also told Youngblood that because the men who robbed him were masked, he could not identify his assailants by their faces but that he would be able to identify them by their voices. Youngblood took Flores into a room where Appleton was sitting and asked Appleton to state his name and address. From Appleton’s voice, Flores identified Appleton as the man who had held the gun to his head during the robbery.

At trial, the defense argued that the manner in which the pretrial identification was conducted — showing Appleton by himself for the purposes of identification, i.e., a one-man showup — was unnecessarily and impermissibly suggestive. The trial court disagreed and denied Appleton’s motion to suppress Flores’s pretrial identification. The Court of Criminal Appeals affirmed the trial court’s judgment, and we granted Appleton’s petition for certiorari review. After reviewing the record, we agreed with Appleton and concluded that “[sjeveral characteristics of the identification procedure used in this case render it ‘unnecessarily or impermissibly suggestive.’” Ex parte Appleton, 828 So.2d at 902.

This Court stated:

“ ‘The United States Supreme Court has long recognized that the practice of showing a suspect singly for the purposes of identification “has been widely condemned” as being unnecessarily suggestive and conducive to irreparable mistaken identifications that constitute a denial of due process. Manson v. Brathwaite, 432 U.S. 98, 104, 97 S.Ct. 2243, 2248, 53 L.Ed.2d 140, 147 (1977) (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967)).’ ”

828 So.2d at 899 (quoting Ex parte Frazier, 729 So.2d 253, 254-55 (Ala.1998) (emphasis omitted)). This Court continued: “ ‘In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable.’ ” Ex parte Appleton, 828 So.2d at 900 (quoting Brazell v. State, 369 So.2d 25, 28 (Ala.Crim.App.1978)). Determining the reliability of a witness’s identification involves a two-pronged test:

“ ‘ “The first question is whether the initial identification procedure was ‘unnecessarily’ ... or ‘impermissibly’ ... suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘impermissibly’ suggestive was so ‘conducive to irreparable mistaken identification’ ... or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidenti-fication’ ... that allowing the witness to make an in-court identification would be a denial of due process.” United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.1970).’

“Brazell v. State, 369 So.2d [25] at 28-29 [ (Ala.Crim.App.1978) ].... In evaluating the likelihood of misidentification, the court must consider the following factors:

“ ‘(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.’ ”

Ex parte Appleton, 828 So.2d at 900 (quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (emphasis omitted)).

Addressing the first prong of the Brazell test, this Court in Ex parte Appleton stated that the following facts demonstrated that the identification procedure used in that case was unnecessarily or impermissi-bly suggestive: Flores’s statement that he went to the police department to identify the robber, Youngblood’s conduct in showing Flores the clothes and asking if they looked familiar, the fact that Youngblood showed Flores only Appleton as a possible suspect and asked only Appleton to speak in Flores’s presence, and, finally, the lack of necessity or emergency justifying the one-man showup. Id.

As to the second prong, this Court stated:

“The record before us contains too much evidence of [a substantial likelihood of irreparable misidentification] for us to approve the use of Flores’s identification of Appleton. First, Flores admitted in his testimony that assumptions based on Sergeant Youngblood’s conduct affected [his] identification of Appleton. Second, Appleton’s accouterments, actually seized from him by the police, did not match Flores’s pre-showup description. The clothes and boots seized differed in color from those described by Flores before the showup. Even more significantly, while the police seized a nine-millimeter black Beretta pistol from Appleton, Flores, who prided himself on his ability to distinguish between a nine-millimeter pistol and a .45-caliber pistol, had told police that the weapon held by the robber who matched Appleton’s stature was ‘a .45, ... blue nickel with a brown handle.’ These inconsistencies tend to prove a misidentification.”

828 So.2d at 903. This Court concluded that the unnecessarily suggestive showup was “‘conducive to irreparable mistaken identification! ]’” and that, therefore, it “ ‘constitute^] a denial of [Appleton’s] due process’ rights.” Ex parte Appleton, 828 So.2d at 903 (alterations in original).

Wimes argues further that the facts in Ex parte Frazier and Brazell also are analogous to the case before us. In Ex parte Frazier, Kristie Richardson testified that as she was returning to a nightclub from a parking lot, she saw a dark-colored car, possibly red, enter the parking lot. Richardson testified that there were three black men in the car and that there was a fan in the backseat. She could not describe the passengers but said that she got a good look at the driver. Richardson also testified that she was unsure about the color of the car because she “ ‘had only got a glimpse of it.’ ” 729 So.2d at 255. While Richardson was in the nightclub, her friend, Kimberly Howard, and Richardson’s boyfriend, Jerry Lamar Metcalf, were robbed at gunpoint in the parking lot by two passengers who got out of an “older, reddish-colored car.” 729 So.2d at 255. Neither Howard nor Metcalf saw the driver of the car. After the robbers left, Howard ran into the nightclub, screaming that she had been robbed.

Richardson immediately left the club to check on Metcalf. Richardson testified that as she left the nightclub, she saw the same car she had seen earlier; it was leaving the parking lot. Fifteen minutes after the robbery, a police officer interviewed Howard, Metcalf, and Richardson. Richardson testified that she told the officer that the car she had seen was “dark-colored, and possibly was red, and that there was a fan inside the vehicle”; however, “nothing to that effect was reflected in the deputy’s incident report.” 729 So.2d at 256. She also testified that she had told the officer that the driver was a tall black male in his 30s, who weighed approximately 160 pounds, but this information was also missing from the report.

Roger Dale Frazier was arrested a few hours after the robbery. Frazier stated that he had been driving his mother’s red 1967 Chevrolet Impala automobile earlier in the evening. During a search of the Impala, officers found a .32-caliber revolver and a fan. No one else was with Frazier at the time of his arrest. Howard, Metcalf, and Richardson went to the police station to give further statements regarding the robbery. When they arrived at the station, the sheriffs investigator showed them Frazier’s mother’s red Impala, which had just been impounded. A fan was visible in the backseat. Howard and Richardson identified the Impala as being the car used in the robbery. Approximately three to four hours after the robbery, the sheriffs investigator took Richardson to view Frazier through a two-way mirror. Frazier was handcuffed and seated alone in a small room at the police department. The investigator asked Richardson if Frazier was the one she had seen driving the vehicle into the parking lot of the nightclub. Richardson stated that he was the man. Frazier was convicted of one count of first-degree robbery and one count of second-degree robbery. The Court of Criminal Appeals affirmed those convictions.

This Court granted Frazier’s petition for certiorari review. After concluding that the one-man showup had been unnecessarily suggestive, this Court weighed the Neil v. Biggers factors to determine whether there was a substantial likelihood of mis-identifieation. This Court stated:

“[Tjhis Court’s analysis of the Neil v. Biggers[, 409 U.S. 188 (1972),] factors leads to these conclusions:

“(1) While Richardson did have an opportunity to view the driver of the robbers’ vehicle, that opportunity was a fleeting one;
“(2) While Richardson noticed the robbers’ car as it approached her in the parking,lot of the nightclub, she did not give particular attention to the vehicle or its occupants until after it had passed from her sight, and her attention may have been diverted because she and Metcalf were attempting to console Howard;
“(3) Evidence in the record regarding Richardson’s describing the driver of the vehicle before she saw Frazier in the one-man showup at the sheriffs department is scant and uncorroborated. Moreover, if Richardson’s description of the driver as being a black male, fairly tall, in his 30s, and weighing about 160 pounds, is accepted at face value, it is nonetheless a highly generic description and not a precise depiction of Frazier’s actual appearance at the time of his arrest;
“(4) Although Richardson did not state a particular reason for her certainty, she did testify that she was sure that Frazier was the man she saw driving the robbers’ vehicle just before Howard and Metcalf were robbed; and
“(5) Although Richardson did not identify Frazier as the driver of the robbers’ car immediately after Howard and Metcalf were robbed, she did identify him within a reasonably short time thereafter.”

729 So.2d at 259. This Court then held that there was a substantial likelihood of irreparable misidentifieation, and it reversed the Court of Criminal Appeals’ judgment upholding the in-court identification.

In Brazell, on which this Court relied in Ex parte Appleton, two men robbed at gunpoint a service station and convenience store operated by Mr. and Mrs. Lige McQueen. Pam Brooks, who was then 10 years old, was in the store during the robbery. Approximately nine hours after the robbery, the McQueens and Brooks went to the police station to view two suspects. Brooks testified that the police had told her that

“ ‘they had seen two men hitchhiking that looked like the two men that we had described ..., and they said they thought it was probably the men, so they took them to police headquarters, and that night, they called us to come up there.’ ”

369 So.2d at 27. The McQueens both testified that the police told them that they had two suspects for them to view but that the police did not say that they thought the suspects were the men who had robbed the service station. Each witness viewed each suspect separately, through a two-way mirror. Brazell was one of the men viewed by the witnesses. Each witness identified him as one of the robbers.

Brooks testified that one of the robbers was wearing a green shirt and that that was the most unusual thing about that robber. Brazell was wearing a green shirt during the showup. Mrs. McQueen also testified that the shirt stood out in her mind. Brazell was convicted of robbery and was sentenced to 10 years’ imprisonment. He appealed the conviction to the Court of Criminal Appeals. After noting the two-pronged test for determining the reliability of a pretrial identification, the Court of Criminal Appeals stated:

“It is mere sophistry to argue that the showup was not unnecessarily suggestive. A showup by its inherent nature is suggestive because the witness is given no other choices. However[,] it is permitted where conducted promptly after the commission of a crime or demanded by necessity, emergency or exigent circumstances. No justification for the use of the showup can be advanced in this case. Under the particular circumstances facing us, the showup was held at an unusual hour in light of the facts that the robbery had occurred nine hours earlier and that a lineup was held at 1:00 P.M. the following afternoon. Also, the fact that the appellant wore a green shirt in the showup constituted an additional element of suggestiveness in the identification procedure.”

369 So.2d at 29. Thus, the Court of Criminal Appeals concluded, the “totality of the circumstances ... ereate[d] an unduly suggestive identification procedure.” 369 So.2d at 29.

We turn now to the case at hand. Wimes first argues that the Court of Criminal Appeals’ affirmance, upholding Pan-nell’s in-eourt identification, conflicts with Ex parte Appleton because, he says, the out-of-court-identification procedure in this case was “unnecessarily suggestive.” Wimes’s brief at 18. In Ex parte Appleton, this Court noted:

“‘The danger inherent in a one-man showup, where a witness is shown a single suspect and asked, “Is that the man?” is twofold. First, a one-man showup conveys a clear message that “the police suspect this man.” Second, a one-man showup does not give the witness a choice of identifying another person as being the perpetrator of the crime charged. Consequently, when a one-man showup is used to identify the perpetrator of a crime, the reliability of the witness’s identification is not put to an objective test, such as a live or photographic lineup, in which a single suspect must be chosen from a group of persons possessing similar physical characteristics.’ ”

828 So.2d at 899-900 (quoting Ex parte Frazier, 729 So.2d at 254-55 (citations omitted) (emphasis omitted)).

The State argues that the out-of-court-identification procedure was not impermis-sibly suggestive because (1) Pannell was shown three suspects, not just one, and (2) Pannell was shown the suspects individually and was “required to decide each suspect one at a time based upon his own recollection of who was involved in the robbery.” State’s brief at 14.

The showup in this case did involve three men, not just one; however, we cannot agree that Pannell’s identification was “ ‘put to an objective test.’ ” Ex parte Appleton, 828 So.2d at 900 (quoting Ex parte Frazier, 729 So.2d at 255). Pannell testified that he was attacked by two tall men. Only two of the three suspects presented at the showup matched that description. Therefore, we cannot say that Pannell’s identification was “‘put to an objective test ... in which a single suspect must be chosen from a group of persons possessing similar physical characteristics.’ ” Ex parte Appleton, 828 So.2d at 900 (quoting Ex parte Frazier, 729 So.2d at 255). Instead, we conclude that the identification procedure was unnecessarily or impermissibly suggestive.

The second prong of the Brazell test requires us to address whether the “ ‘procedure found to have been “unnecessarily” or “impermissibly” suggestive was so “conducive to irreparable mistaken identification” ... or had such a tendency “to give rise to a very substantial likelihood of irreparable misidentification” ... that allowing the witness to make an in-court identification would be a denial of due process.’ ” Brazell, 369 So.2d at 28-29 (quoting United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.1970)). We evaluate the likelihood of mis-identification under the five factors set forth in Neil v. Biggers:

“[1] [T]he opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.”

409 U.S. at 199-200, 93 S.Ct. 375 (emphasis omitted).

Wimes argues that, as in Ex pmte Appleton, the application of the Neil v. Biggers factors to the facts of this case demonstrates a substantial likelihood of irreparable misidentifieation. Specifically, as to those five factors, he argues (1) that it was dark at the time and place of the robbery and that Panned’s encounter with the robbers was brief; (2) that Panned was distracted by his injury and “was more concerned about his life than with viewing the suspects,” Wimes’s brief at 15, and that his degree of attention was therefore not great; (3) that there were inconsistencies in Pannell’s description of the robbers (namely that Officer Whaley and Officer Womack testified that Panned had described to them the clothing the robbers were wearing but that Panned testified at the hearing that he could not remember what kind of clothes he told the police the robbers were wearing, and that the police report indicated that Panned told the podce that the gun used by the robbers was small, but Panned admitted at the hearing that he had told defense counsel during a pretrial interview that the gun was large); (4) that Panned testified that he was certain that Wimes had been involved in the robbery but, Wimes argues, Pannell’s identification was based “solely upon the height of and the clothing worn by the suspects,” Wimes’s brief at 17; and (5) that only 20-30 minutes elapsed between the robbery and the showup.

The State argues in response that the facts of this case, particularly as they relate to the Neil v. Biggers factors, are distinguishable from those in Ex parte Appleton, Ex parte Frazier, and Brazell. The State argues that the area in which the robbery occurred was wed lighted, that Panned interacted with the robbers face-to-face, and that he testified that he was able to give the police a “good description” of the robbers. The State also argues that Panned was attentive during the robbery and that any distractions came after he had had the opportunity to view the robbers face-to-face.

The State argues that, unlike the witness in Ex parte Appleton, Panned accurately described the two suspects in the showup. The police report indicated that Panned had described the robbers as tad black males and had stated that one was wearing a light-colored shirt and dark shorts and the other was wearing a black hooded jacket and blue sweatpants. Panned also told the officers the direction in which the robbers had fled. Panned’s description matched exactly the two suspects he then identified as being involved in the robbery, and those suspects had been ap--prehended in an area in the direction in which Panned had indicated that the robbers had fled.

The State further argues that “Wimes attempts to create ... discrepancies in this case by questioning Panned’s inability to describe the gun as ‘large or small’ when the police notes allegedly indicated that it was a ‘small’ gun.” State’s brief at 24. However, the State argues:

“Panned did not appear to have as much knowledge regarding guns as did the victim in Appleton, [and] his descriptions of the kind and size of guns was much less certain and did not lead to any definite inconsistencies as in Appleton. Wimes’s efforts to portray Panned’s identification as inaccurate are more focused on the lack of detail in the record.”

State’s brief at 25.

The State argues that Panned was very certain regarding his identification of Wimes as one of the robbers. Panned testified that he was “good at seeing things” and that he was able to distinguish Wimes as the robber who did not have a gun during both the pretrial and the in-court identifications. The State further argues that Wimes acknowledges that Pannell was certain in his identification but then attacks the basis for that certainty, arguing that Pannell’s identification was based almost completely on the height of the suspects. Pannell’s testimony, the State argues, was that he remembered both the robbers’ heights and their clothes, and his description of the clothes “not only proved sufficiently detailed and accurate, but was the main factor in Officer Wom-ack’s making contact with the suspects.” State’s brief at 27. Finally, the State argued that only 20-30 minutes passed between the robbery and the showup, which, the State argues, provided “less likelihood that the suspects would change clothes or appearance or that Pannell’s memory would fade.” State’s brief at 28.

The State would distinguish the circumstances of this case from those in Ex parte Appleton, Ex parte Frazier, and Brazell, arguing that this case is more analogous to O’Dell v. State, 482 So.2d 1341 (Ala.Crim.App.1985), Dunning v. State, 659 So.2d 995 (Ala.Crim.App.1994), and Gavin v. State, 891 So.2d 907 (Ala.Crim.App.2003), in all of which the Court of Criminal Appeals concluded that the one-man showup was not so suggestive as to create a substantial risk of irreparable misidentification. In ODell, the victim testified that she heard a noise in her kitchen about 1:00 a.m. When she went to find the source of the noise, she saw a man standing and looking in her broken kitchen door. She screamed and the man ran away, but not before she had had several seconds in which to observe his face and upper body. She telephoned the police and gave a description of the suspect. At around 4:00 a.m., the police returned to the victim’s house with O’Dell, who matched the victim’s description. The victim identified O’Dell as the man who had tried to enter her apartment. O’Dell was convicted of attempted burglary.

O’Dell argued, on appeal that, under the Neil v. Biggers factors, the pretrial-identification procedure was improper. The Court of Criminal Appeals disagreed, noting: “It is apparent from the testimony of Ms. Dreaden [the victim] that she had ample opportunity to view the appellant and was ‘positive’ that he was the person who had committed the crime.” 482 So.2d at 1345. The Court of Criminal Appeals further noted that the victim’s testimony indicated that there was a bright light on in the kitchen when she saw the perpetrator, as well as lights on outside the kitchen door and that she “ ‘got a full look at [the appellant’s] face.’ ” 482 So.2d at 1346. The Court of Criminal Appeals concluded:

“Under the facts presented by Ms. Dreaden’s testimony, all five of the [Neil v. ]Biggers factors were established. That is, Ms. Dreaden testified that she had the opportunity to observe the appellant at the time of the crime; that she was alert and observed the appellant; that she was subsequently able to describe the appellant; and that she was certain of the identity of the appellant when the police brought him to her later that evening. After considering these factors, we conclude, as this court in Glass v. State, 424 So.2d 687, 690 (Ala.Crim.App.1982), concluded, that the identification of the appellant as the person who had committed the crime was ‘highly reliable.’ In the present case, the pretrial confrontation was not so impermissibly suggestive that it created a ‘substantial risk of misidentification,’ and thus the identification was proper.”

482 So.2d at 1346-47 (quoting Jackson v. State, 414 So.2d 1014, 1018 (Ala.Crim.App.1982)).

In Dunning, Odessa Jones was at home with her four children when she heard someone coming through her front door. As she entered her living room, she saw two men with guns coming in the front door. Another man with a gun came in the back door. One of the men, whom Jones later identified as Dunning, began shouting at Jones, asking her for money he said her brother owed him. Jones was unable to find the money in the house and suggested that it might be in her brother’s car. Dunning went out to the car to look for the money, taking Jones’s 12-year-old daughter Valencia with him. Jones and the other children stayed in one of the bedrooms. After about 20 minutes, Jones left the bedroom to look for Valencia. In the meantime, Dunning had left, and Valencia had gone to a neighbor’s house to telephone the police. Dunning was apprehended by a police officer who was en route to Jones’s house. The officer took Dunning to Jones’s house, and Jones identified Dunning as one of the robbers.

Dunning was convicted of robbery in the first degree and was sentenced to 25 years’ imprisonment. He appealed his conviction, arguing, among other things, that Jones’s identification of him was the result of a suggestive one-man showup. The Court of Criminal Appeals stated:

“Here, Officer Barnwell observed the appellant running from the general area of Jones’s house immediately after receiving the call regarding a burglary in process. Odessa Jones had ample time to observe the appellant while he was in her house. Officer Barnwell brought the appellant to Jones’s house and she identified the appellant as one of the robbers within minutes of the robbery. ... The victim’s identification was reliable and the circumstances surrounding the identification were not impermissibly suggestive.”

Dunning, 659 So.2d at 998.

In Gavin, Dewayne Meeks testified that he and his cousin, Keith Edmund Gavin, drove to Chattanooga, Tennessee, for Gavin to meet a certain woman. When the woman did not appear at the agreed location in Chattanooga, Meeks and Gavin drove to Centre, Alabama, to find her. Meeks testified that while he and Gavin were stopped at an intersection in downtown Centre, Gavin got out of the car and approached a van that was parked nearby. Meeks testified that he saw Gavin fire two shots at the driver of the van. Meeks testified that he fled as soon as he saw Gavin shoot the driver and that Gavin got in the van and followed him. Meeks testified that he did not stop until he got to Chattanooga.

Investigator Danny Smith of the district attorney’s office testified that he heard the report of the shooting over the radio. As he proceeded toward Centre, he saw a van matching the description of the van involved in the shooting. He followed the van and contacted law enforcement on his radio. Smith testified that after he put on his emergency lights, the van stopped in the middle of the road, and the driver got out, turned, and fired a shot at him. Smith testified that the driver then ran in front of the van, turned and fired another shot at him, and ran into the woods. Smith described the driver of the van as “black, ... wearing a maroon or wine-colored shirt, blue jeans, and some type of toboggan or other type of cap.” 891 So.2d at 929. The police eventually caught Gavin, and Smith went to the jail so that “he could ‘look at the suspect that they had in custody to make sure that they, in fact, had the right person.’ ” 891 So.2d at 958. Smith positively identified Gavin as the person who had been driving the van and who had shot at him.

Gavin was convicted of capital murder for killing the driver of the van. On appeal, he argued, among other things, that the one-man showup in which Smith identified him was impermissibly suggestive. The Court of Criminal Appeals disagreed, noting that Smith’s testimony indicated that his identification of Gavin was “not based on any preconceived notion that the person the police had in custody was, in fact, the person who had shot at him, but rather, was a precautionary measure to ensure that the right man was in custody.” 891 So.2d at 960. The Court of Criminal Appeals went on to say that “even assuming that the showup was unnecessarily and impermissibly suggestive,” it concluded that “the likelihood of mis-iclentification was low.” 891 So.2d at 961. The Court of Criminal Appeals based this conclusion on the following analysis of the Neil v. Biggers factors: (1) that Smith had ample opportunity and sufficient light by which to view Gavin and that Gavin had shot at him; (2) that Smith’s degree of attention was very high, particularly considering his training as a law-enforcement officer; (8) that Smith’s description of Gavin was detailed and accurate; (4) that Smith testified that he was positive in both his pretrial identification and his in-trial identification of Gavin as the man who was driving the van and who had fired the gun at him; and (5) that.a little over three hours had passed between the crime and the identification. 891 So.2d at 961-62. The Court of Criminal Appeals then concluded that “[u]nder the circumstances, ... the trial court did not err in allowing Investigator Smith’s identification testimony.” 891 So.2d at 962.

Although we acknowledge that there are factual differences between this case and each of the other cases cited by Wimes and by the State, we agree with the State that the facts of this case make it more analogous to O’Dell, Dunning, and Gavin than to Ex parte Appleton, Ex parte Frazier, and Brazell. We further agree that under the totality of the circumstances presented in this case, there was not such a substantial likelihood of irreparable misidentification as to deprive Wimes of due process. See Ex parte Appleton, 828 So.2d at 900.

First, like the witnesses in ODell, Dunning, and Gavin, Pannell viewed his assailants face-to-face. Although he testified that it was dark at the time of the robbery, he stated that it was not so dark that he could not “pick out facial features.” Pan-nell also testified that he was able to give the police a good description of the robbers. The police report indicates that Pannell described one of the robbers as wearing a black hooded jacket and blue sweatpants. Thus, it appears that the area in which the robbery occurred was sufficiently lighted so that Pannell could distinguish between those two similar colors. Similarly, Smith, the officer in Gavin, testified that it was dark and raining at the time that Gavin shot at him but that the light from the car’s headlights was sufficient to enable Smith to tell law enforcement that Gavin was wearing jeans and to describe the specific color of Gavin’s shirt.

Second, like the victims in O’Dell and Dunning and the officer in Gavin, Pannell was attentive during the robbery. He testified: “I’m pretty good at seeing things, especially things in front of me, especially this land of a situation that happened like this here. ... I did give a good description of them.” Wimes argues that Pannell was distracted by his injury, but, as the State notes, Pannell’s injury did not occur until after he had seen and spoken with the robbers face-to-face.

Third, unlike the victim’s description in Ex parie Appleton, Pannell’s description of his assailants was accurate. Wimes argues that, as in Ex parte Appleton, there was an inconsistency in Pannell’s description of the gun. However, Pannell, unlike the victim in Ex paite Appleton, did not profess to be able to distinguish between types of guns or testify with certainty as to the size or type of the gun. Moreover, none of suspects shown to Pannell for identification was found with a weapon. Therefore, unlike the identification made in Ex parte Appleton, in which the victim used a gun to identify his attacker, these alleged inconsistencies are irrelevant. We conclude, as did the Court of Criminal Appeals in Gavin, that this inconsistency does not “undermine [Pannell’s] otherwise accurate description of [Wimes].” See Ex parte Gavin, 891 So.2d at 961.

Fourth, Wimes, like the witnesses in O’Dell, Dunning, and Gavin, was cei’tain of his identifications — both pretrial and in-court. He testified with certainty that Wimes was one of the robbers and, moreover, that Wimes was the robber who was not carrying a gun. Although Pannell’s testimony on cross-examination indicated that much of his identification was related to the height of his assailants, he did state that he identified his assailants based on their clothes as well. When asked whether “there [was] any question in [his] mind when [he] saw [Wimes] that he was one of the persons that robbed [him],” Pannell responded: “There was no question in mind.”

Finally, only 20-80 minutes passed between the time of the robbery and Pan-nell’s identification of Wimes as one of the robbers.

In light of these facts, we hold that, under the totality of the circumstances, the identification in this case, like those in O’Dell, Dunning, and Gavin, was sufficiently reliable and that the identification procedure did not violate Wimes’s due-process rights. We further conclude that Ex parte Appleton is distinguishable on that ground and that there is therefore no conflict between Ex parte Appleton and the decision of the Court of Criminal Appeals in this case. We, therefore, quash the writ of certiorari.

Conclusion

Pannell’s pretrial identification of Wimes was not so “ ‘ “ ‘conducive to irreparable mistaken identification’ ... or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidentification’ ... that allowing the witness to make an in-court identification would be a denial of due process.” ’ ” Ex parte Appleton, 828 So.2d at 900 (quoting Brazell v. State, 369 So.2d at 28-29, quoting in turn United States ex rel. Phipps v. Follette, 428 F.2d at 914-15). Therefore, we quash the writ in this case.

WRIT QUASHED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

WOODALL, J., dissents.

      . Section 13A-8-41 provides, in pertinent part, that "[a] person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he: (1) is armed with a deadly weapon or dangerous instrument.”
      Section 13A-8-43, Ala.Code 1975, provides, in pertinent part:

        "A person commits robbery in the third degree if in the course of committing a theft he:
      "(1) Uses force against the person of the owner or any person present with the intent to overcome his physical resistance or physical power of resistance; or
      "(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

      . The Court of Criminal Appeals did not address the second prong of the Brazell test. It concluded that the record did not contain enough evidence of the Neil v. Biggers factors to enable the court to determine whether the in-court identification was based on the suggestive pretrial-identification procedures or on an independent basis. Therefore, the Court of Criminal Appeals “remandfed] the conviction of the appellant to the trial court for a hearing to determine whether the in-court identifications had an independent basis or source.” 369 So.2d at 30.

      . The Slate argues that Wimes did not address this prong in his brief. Although Wimes does not address this prong separately, he does state that the identification procedure was unnecessarily suggestive. Wimes’s brief at 18. Wimes also provides some discussion of this prong in his discussion of this Court’s decision in Ex parte Appleton, Wimes’s brief at 9, and the Court of Criminal Appeals' decision in Brazell. Wimes's brief at 13-14.

      . O'Dell was also convicted of two counts of burglary in the third degree and theft of prop-crty in the second degree with regard to property taken from other locations.

      . The Court of Criminal Appeals noted a discrepancy in Smith's description of the gun Gavin fired at him. Smith stated “that based on the 'thickness' of the gun as he saw it, he believed, but ‘wasn’t sure,’ that Gavin had a revolver, when, in fact, the weapon found was a .40 caliber semiautomatic pistol.” 891 So.2d at 961 (citation to record omitted). Nevertheless, the Court of Criminal Appeals concluded: “[W]e do not believe this discrepancy undermines Investigator Smith’s otherwise accurate description.” 891 So.2d at 961.


source: Caselaw Access Project

author: MOORE, Judge. MOORE, Judge.

license: Public Domain

text:
    Robert Dale LANDERS v. LOWE’S HOME CENTERS, INC.
    2060308.
    Court of Civil Appeals of Alabama.
    Aug. 31, 2007.
    Opinion Overruling Rehearing Nov. 2, 2007.
    Certiorari Denied Feb. 13, 2009 Alabama Supreme Court 1070276.

      Robert H. McKenzie, Florence, for appellant.
    Claude E. Hundley III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   MOORE, Judge.

Robert Dale Landers (“the employee”) appeals from a judgment of the Madison Circuit Court entered on October 11, 2006, awarding him permanent-partial-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). We affirm.

The Issues

The employee contends that the trial court ignored undisputed evidence indicating that he was permanently and totally disabled and that the trial court erred in calculating the compensation due him.

Standard of Review

The standard of review of workers’ compensation judgments is established by Ala. Code 1975, § 25-5-81 (e), which provides:

“(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.”

It is the province of the trial court to weigh the evidence for the purpose of resolving conflicts therein and making findings of fact. See Ala.Code 1975, § 25-5-81(a) & (c). On appeal, a trial court’s findings of fact based on conflicting evidence are conclusive on this court if they are supported by substantial evidence. Edwards v. Jesse Stutts, hie., 655 So.2d 1012 (Ala.Civ.App.1995). “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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)); see also Ala.Code 1975, § 12-21-12(d).

The Evidence

The evidence reflected the following. On March 2, 2004, the employee received an injury to his right shoulder while lifting an 80-pound bag of concrete in the course of his employment with Lowe’s Home Centers, Inc. (“the employer”). At the time of this accident arising out of his employment, the employee was earning an average weekly wage of $861.53. The employer paid the employee 45 weeks of temporary-total-disability benefits at a rate of $455.91 per week. The employee reached maximum medical improvement on March 29, 2005. Dr. Keith Anderson assigned the plaintiff a 9% permanent-medical-impairment rating to the right upper extremity, which translated into a 5% permanent medical impairment to the body as a whole.

At the time of the accident, the employee was 65 years old. He has a Bachelor of Science degree from Samford University in social science, and he has attended various college courses in other areas since he graduated from college, including courses in sales, marketing, and home building. Before being hired by the employer, the employee sold computers and automobiles, taught school for one year, worked as an insurance claims adjuster, acted as a licensed general contractor, managed an automobile dealership, worked as a professional fundraiser, and owned and operated his own business. The employee retired between 1989 and 1992. After remarrying, however, the employee resumed working, at various times, as a salesman, a physician recruiter, a manager of a medical facility, and as an owner/operator of his own consulting business.

On November 1, 2000, the employee went to work for the employer as a sales specialist in the employer’s cabinet department. During the next four years, the employee worked for the employer as the millwork department manager and as a sales specialist in the commercial sales department.

When the employee arrived at the employer’s store on March 2, 2004, he found several bags of concrete blocking an aisle. While attempting to move one of the bags, the bag slipped from the employee’s grasp and he jerked his arm. The employee heard a pop in his right shoulder and felt an immediate pain in that area. The employee informed his employer of the injury, and the employer arranged for the employee to immediately visit a physician, Dr. Susan Lynn, who injected the injured shoulder with cortisone and restricted the employee from working.

The employee returned to work with no restrictions after a few days off. The employee worked as a commercial sales specialist for the next few months. His duties included meeting with contractors at job sites to receive material and product orders. The employee would fill those orders and sometimes actually physically deliver the ordered material and products. The employee testified that he had experienced right-shoulder pain while working but that he had rested the shoulder and recuperated on the weekends. About four or five months after the injury, however, the employee’s injured shoulder began to hurt even while the employee was sleeping, so he requested further medical treatment. The employer returned the employee to the care of Dr. Lynn, who referred the employee to Dr. John Young, an orthopedic surgeon, following the receipt of the results of a magnetic resonance imaging (“MRI”) scan.

The employee continued to work as a commercial sales specialist while seeing Dr. Lynn and Dr. Young. On November 2, 2004, Dr. Young, who had diagnosed a torn rotator cuff and a partially torn bicep tendon, performed surgery that did not resolve the employee’s shoulder complaints. The doctor took the employee off work following the surgery while the employee participated in physical therapy. Dr. Young informed the employee that his rotator-cuff tear could not be cured. Dr. Young eventually referred the employee to Dr. Anderson, a physiatrist, who had the employee undergo a physical-capacities evaluation. On March 29, 2005, the employee reached maximum medical improvement. On April 13, 2005, Dr. Young released the employee to return to work with restrictions of no lifting more than five pounds with the right arm, no overhead use of the right arm, and no pushing or pulling or repetitive gripping and grasping with the right upper extremity. Those restrictions differed from the restrictions assigned by Dr. Anderson, which basically placed the employee in the medium to heavy category of the labor market; Dr. Young explained his disagreement, and Dr. Anderson deferred to Dr. Young.

The employee tried to work within the restrictions as the manager of the employer’s plumbing department, but at times he would act outside the restrictions in order to meet his customer’s needs when no one else was around. The employee requested an accommodation, so the employer returned him to working as a commercial sales specialist, which was less physically demanding.

On May 6, 2005, the employer referred the employee to another orthopedic surgeon, Dr. John Murphy, for a second opinion as requested by the employee. The employee, who is right-hand dominant, complained that using his right arm at work caused numbness and led him to try to use his left arm and hand more, even though he could not write with his left hand. Dr. Murphy had treated the employee’s father for many years and had also performed surgery on the employee in the past. Dr. Murphy diagnosed an absent rotator cuff that exposed the employee to increased arthritis and a condition known as cuff tear arthopathy. Dr. Murphy recommended that the employee limit the use of his right shoulder and took the employee off work indefinitely on June 2, 2005.

The employee took the off-work slip to the employer’s human resources manager, who assured the employee that the employer would accommodate the employee’s physical and work restrictions. However, the employee never filled out the “reasonable accommodation” form provided by the employer, according to the employer’s human resources manager. The human resources manager testified at trial that the employer could have easily accommodated the employee’s restrictions, including those established by Dr. Murphy; however, the employer never offered the employee any accommodations.

The employee testified that despite numerous conversations with the employer’s representatives, the employer never offered him any work within his restrictions. Instead, the employer placed him on a leave of absence effective May 28, 2005. This leave of absence lasted 12 weeks, during which the employee received a reduced salary. After the 12 weeks elapsed, the employee began drawing workers’ compensation benefits at a rate of $455.91 per week. The employee testified that a manager of the employer informed him on February 15, 2006, that he was no longer employed by the employer. Actually, the human resources manager testified that he had informed the employee that his health-insurance benefits had been terminated in February 2006 because of the health insurer’s rules. The human resources manager testified that the employer still considered the employee to be on leave. The employer had filled the employee’s position, but it was willing to return the employee to work in a similar position. The employee was still receiving temporary-total-disability benefits as of the time of the trial because he had not worked for the employer since June 2005.

The employee testified that the shoulder injury still affected him at the time of the trial. The employee stated that he awakes around 4:00 a.m. because of pain from his shoulder although he takes Ultram ER, a narcotic pain medication, each night when he goes to sleep around 9:30 to 10:30 p.m. He experiences pain every day, but the pain is not constantly agonizing pain that affects his ability to concentrate, it is more of a dull, aching pain with occasional episodes of “breakout” pain that requires medication. The employee testified that the surgery only worsened his pain. Once he awakens, the employee performs shoulder exercises prescribed by his therapist. He then performs routine yard work or sits around the house. He still tries to use his left arm and hand to perform the ordinary activities of daily living. The employee lives off his workers’ compensation benefits and his Social Security retirement benefits, which he started drawing at age 65.

The employee testified that he could still work for the employer so long as he did not have to use his right arm and his doctors approved of the job. Dr. Young testified via deposition that he did not have any problem with the employee’s working so long as he did not lift more than five pounds with his right arm. Dr. Anderson testified via deposition that the employee could work so long as the physical demands of the job did not exceed the restrictions set out in the physical-capacities evaluation. Dr. Murphy testified via deposition that the employee could work in a sedentary position so long as he did not have to use his right arm. The employee admitted that many of his past jobs fell within those restrictions and that he could physically perform those jobs, though he later testified that he did not feel he could perform those jobs due to a combination of his age and his disability. The employee also testified that he could return to work for the employer in a job that fit his medical restrictions, but the employer had not offered him any accommodations since June 2005.

Based on the above evidence, along with the depositions of the physicians and the reports of two vocational experts, the trial court entered a judgment in May 2006 finding, among other things, that the employee was entitled to permanent-partial-disability benefits based on a 75% loss of earning capacity. The employee filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial; in response to that motion, the trial court ordered a new trial. In the second trial, the trial court accepted all the evidence presented in the first trial and heard the live testimony of the two vocational experts, Thomas Elliot and Mytrice Carr, and a private investigator.

Elliot, the employee’s vocational expert, testified that although the employee was very intelligent, he could no longer perform any of the jobs he had held in the preceding 15 years, including those he had performed for the employer, because Dr. Young and Dr. Murphy basically restricted the employee from using his right arm for work activities and all of his previous jobs required greater use of the right upper extremity. In addition, in Elliot’s opinion, the employee suffered pain that would affect his ability to concentrate on job tasks and his advanced age limited his employment opportunities because of employer bias. Based on the employee’s age, work history, work restrictions, and ongoing, significant pain, Elliot opined that the employee was 100% disabled from a vocational standpoint. Elliot felt that the employee would basically have the slightest chance of finding work and that he could not perform any gainful employment, eight hours a day, five days a week. Elliot noted the employee’s college degree and his past teaching certification, but he stated that because the employee had lost his certification and had not worked in the social science field in many years, those achievements would not assist him in locating a job. Elliot testified that even if the employee could find a sedentary job that accommodated his restrictions, the employee could not expect to earn more than $5.75 per hour, far less than the employee’s average weekly earnings at the time of his injury.

On cross-examination, Elliot admitted that if the employee had been actually employed since June 2005, then that would adversely affect his opinions. As it turns out, the employee had begun working as a demonstrator at a grocery store on August 1, 2006, and had worked there for four and one half weeks, earning $7.00 per hour on an average 20-hour week. The employee quit because of the prolonged walking required for the job, which he described as temporary anyway. The employee then went to work for a building-supply company as a sales person for two days, earning $7.00 per hour, to help out the owner. The employee testified that he had applied for 25 other jobs without success.

Carr, the employer’s vocational expert, testified that the employee exhibited a superior intelligence based on her testing. Carr opined that the employee had worked primarily in light jobs involving use of the lower extremities during the past 15 years. After reviewing the employee’s medical restrictions, Carr obtained four job listings for sales and management positions for the employee through the State Employment Office. The employee’s attorney informed Carr that the employee had interviewed for those jobs, telling the potential employers that his doctors would not allow him to use his right arm, and that he had not been hired because of the potential employers’ inability to accommodate that restriction. Carr opined, that the employee’s age and experience were vocational benefits that would be attractive to employers seeking a stable employee who could draw on his logic and experience to solve problems. She considered the employee to have an excellent chance of finding a job within one of the fields covered by his past work experience. Carr maintained that the employee’s disability did not affect his primary vocational assets — his intelligence, his interpersonal skills, and his salesmanship. She opined that the employee had sustained only a 34% loss of employability because of his disability and that he could expect to earn between $713 and $998 per week.

Following the second trial, the trial court amended its original judgment to reflect that the employer had paid the employee 45 weeks of temporary-total-disability benefits and had paid the employee $6,062.68 in short-term disability benefits between June 10, 2005, and September 2, 2005. The trial court also summarized the evidence presented at the second trial. The trial court found that the employee had sustained a 75% permanent loss of earning capacity. The trial court further found that the employer had underpaid the employee during the first 6 weeks of his period of temporary total disability but that it had overpaid him 39 weeks of temporary-total-disability benefits and $6,062.68 in short-term disability benefits. The trial court granted the employer a credit for those overpayments against the compensation awarded. In calculating the credit, the trial court determined that the employee was entitled to $220 per week in permanent-partial-disability benefits dating from March 29, 2005. The trial court divided $6,062.68 by $220 to find that the short-term disability benefits equaled 27.55 weeks of permanent-partial-disability benefits at $220 per week. The trial court reduced the payment period for permanent-partial-disability benefits from 300 weeks to 228 weeks to account for the 45 weeks of temporary-total-disability benefits paid and the 27 weeks of short-term disability benefits paid. The trial court then determined that the employee had been overpaid $8,822.37 as a result of his having received temporary-total-disability benefits at a rate of $455.91 per week during the permanent-partial-disability period when he should have received $220 per week. The trial court ordered that the employer could suspend payment for 47 additional weeks in order to recoup this overpayment “plus an additional seven (7) weeks to recovery [sic] attorney’s fees.”

The employee filed a timely post-judgment motion that the trial court denied on December 15, 2006. The employee filed a timely notice of appeal to this court on January 5, 2007.

The Permanent-Total-Disability Issue

The employee initially argues that the trial court erred in failing to award him permanent-total-disability benefits. The employee asserts: (1) that he introduced competent evidence that should have reasonably satisfied the trial court that he was permanently and totally disabled; (2) that the trial court’s finding that the employee was not permanently and totally disabled was not supported by a preponderance of the evidence or substantial evidence; and (3) that the trial court’s findings are manifestly contrary to the weight of the evidence and that a fair-minded person in the exercise of impartial judgment would have come to a contrary conclusion.

We cannot address many of the employee’s arguments because of our limited standard of review. The determination of the extent of the employee’s disability is a discretionary function of the trial court. Dolgencorp, Inc. v. Hudson, 924 So.2d 727 (Ala.Civ.App.2005). It is not within the province of an appellate court to determine or establish the percentage of disability of an injured employee. Hill v. Stevens & Co., 360 So.2d 1035 (Ala.Civ.App.1978). Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995). Thus, if substantial evidence supports a finding that the employee has sustained only a 75% permanent loss of earning capacity, this court may not reverse a judgment based on that finding even if the great weight of the evidence indicates that the employee has sustained a permanent total disability. See, e.g., Bradley v. Nelson, 507 So.2d 958 (Ala.Civ.App.1987); and Smith v. O’Neal Steel, Inc., 571 So.2d 1148 (Ala.Civ.App.1990).

In this case, substantial evidence supports the trial court’s determination that the employee sustained only a permanent partial disability. The record discloses that the employee was not restricted from completely using his right upper extremity but that he retained some of the use of his right arm for sedentary purposes, as the trial court found. The employee had no other restrictions resulting from his right-shoulder injury. The employer’s human resources manager testified that the employer could accommodate the employee’s medical restrictions and that the employer wanted the employee to return to work. The employer’s vocational expert indicated that the employee retained many attractive employment skills and identified job opportunities for the employee in his relevant labor market, opining that the employee sustained only a 34% loss of employability. The employee actually worked for a substantial period of time for the employer after his shoulder surgery and also obtained two different jobs after the first trial, all of which indicates that he was employable. Although it was undisputed that the employee had sustained a serious right-shoulder injury resulting in pain and a permanent physical disability that affected his ability to earn wages, substantial evidence indicated that this injury, even when coupled with the employee’s advanced age, did not completely eliminate the employee’s ability to find and be retrained for other gainful employment. See Ala.Code 1975, § 25-5-57(a)(4)d. (defining permanent total disability to include “any physical injury ... resulting from an accident, which ... permanently and totally incapacitates the employee from working at and being retrained for gainful employment”). Because substantial evidence supported the trial court’s disability finding, it is of no import that contrary evidence may be more credible and more probative, as the employee contends.

The employee correctly points out that in making its determination of the percentage of disability, a trial court is required to consider all the evidence and may not ignore undisputed evidence. See Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998); Easterly v. Beaulieu of America, Inc., 717 So.2d 406 (Ala.Civ.App.1998). However, the employee fails to prove how those general principles apply to this case. In its original judgment, the trial court stated that it found “simply no competent evidence in this matter that establishes that [the employee] incurred an injury that would result in permanent total disability to him, taking into consideration his extensive work history and educational background.” The original judgment also did not set out in detail the testimony of the employee or his vocational expert. However, the trial court subsequently amended its order to completely summarize the testimony of the employee’s vocational expert, which evidence indicated that the employee was permanently and totally disabled. The court obviously considered that evidence and found it unpersuasive in light of the countervailing evidence, including evidence of the employee’s work history and educational achievement.

The employee also asserts that the trial court erred in relying exclusively on the fact that the employee worked at two jobs for what the employee contends was an insubstantial amount of time and an insubstantial amount of wages following the first trial. We need not address that argument because it is based on a false premise. The original judgment and the amended judgment reflect that the trial court considered all the evidence presented at both trials and did not focus exclusively on the employee’s job history following the first trial. The trial court indicated that it considered the employee’s posttrial employment as merely some evidence indicating that the employee could obtain and perform work, which is one of the factors affecting the extent of the employee’s loss of earning capacity. See Wilde v. Taco Bell Corp., 531 So.2d 918 (Ala.Civ.App.1988); and Ellenburg v. Jim Walter Res., Inc., 680 So.2d 282 (Ala.Civ.App.1996). Nothing in the trial court’s final judgment indicates that it presumed the employee was disqualified from receiving permanent-total-disability benefits on account of the employee’s posttrial employment.

It appears that the employee is actually arguing that the trial court had no choice but to enter a permanent-total-disability award because the employee has not established a consistent and substantial earning record since he separated from the employer. However, under Alabama law, loss of earning capacity is not measured by comparing pre- and post-injury earnings. Southeastern Commercial Printing Corp. v. Sallas, 575 So.2d 1151 (Ala.Civ.App.1991). No Alabama case has ever held that the mere fact that the employee has earned less or no wages following an accident compels a finding of loss of earning capacity commensurate with the postinjury wages. See generally DeHart v. Ideal Basic Indus., Inc., 527 So.2d 136 (Ala.Civ.App.1988) (although employee earned 84% less after injury, trial court did not err in awarding 15% permanent-partial-disability benefits). The standard is not the employee’s actual earnings, but the employee’s actual earning ability. Ragland Brick Co. v. Campbell, 409 So.2d 443 (Ala.Civ.App.1982). In this case, the trial court had before it ample evidence other than evidence of the employee’s actual postinjury earnings that demonstrated that the employee retained a substantial ability to earn wages. Accordingly, we affirm that portion of the judgment awarding the employee permanent-partial-disability benefits based on a 75% loss of earning capacity.

The Calculation-of-Benefits Issue

The employee argues that the trial court made several errors in calculating the benefits due him. The employee first argues that the trial court incorrectly calculated the underpayment for the first six weeks of temporary-total-disability benefits. The employee asserts that the employer paid the employee $455.91 per week when it should have paid the employee $574.38 per week. However, the parties stipulated at trial that the employee should have been paid $518.92 during this period. The employee has presented no reason why this stipulation should not be binding on appeal. See Bowers v. Cotton Bayou Condos., 699 So.2d 166 (Ala.Civ.App.1997). Consequently, we find no error in the trial court’s conclusion that the employee was underpaid only $378.12.

We also find that, contrary to the employee’s contention, the trial court did include this underpayment in its final determination. The final judgment indicates that the trial court applied this underpayment to the employer’s credit for overpaying the employee during the permanent-partial-disability period. The total overpayment was $9,200.49, but the trial court reduced this overpayment to $8,822.37 to account for the $378.12 underpayment.

The employee next argues that the trial court erroneously credited the employer for the short-term disability benefits it had paid the employee. Again, we disagree. Alabama Code 1975, § 25-5-57(c)(1), grants an employer a credit for the amount of sick-pay benefits paid to an employee. The amount in this case was stipulated to be $6,062.68. The trial court elected to credit this amount by dividing the total by $220, the amount of weekly permanent-partial-disability benefits due. See Ala.Code 1975, § 25-5-68(a). This calculation yielded 27.55 weeks of credit, which the trial court actually rounded down to 27 weeks. If anything, the trial court’s calculation benefited the employee.

The employee finally argues that the trial court erred in failing to state the starting date for the payment of the employee’s benefits. However, the judgment clearly provides that the employer is to commence payment to the employee once all weekly credits have been satisfied. The employee has not cited any statute or case that requires the trial court to specifically state the commencement date in its order; hence, we will not place the trial court in error on this ground. See Fox v. Murrell, 622 So.2d 386 (Ala.Civ.App.1993).

Having concluded that the trial court did not commit any error in its calculation of benefits, we affirm that portion of the judgment.

AFFIRMED.

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

THOMPSON, P.J., concurs in the result, without writing.

On Application for Reheating

MOORE, Judge.

On application for rehearing, Robert Dale Landers (“the employee”) earnestly argues that this court misapprehended the issues on appeal concerning the trial court’s permanent-partial-disability finding. The employee asserts that the question before this court was not the sufficiency of the evidence supporting the 75% permanent-partial-disability award but was the manner in which the trial court carried out its duty in making its findings of fact. The employee contends that the trial court obviously ignored much of the evidence, including evidence that the employee characterizes as undisputed evidence, because, the employee says, the trial court omitted any reference to that evidence in its written findings of fact. The employee further argues that this court improperly cured the trial court’s error by considering all the evidence, including the evidence the trial court allegedly overlooked, and reweighing the evidence to determine if substantial evidence supported the 75% permanent-partial-disability finding. The employee basically requests this court to reverse the trial court’s judgment based on the trial court’s alleged failure to issue proper findings of fact, without considering whether the trial court’s ultimate finding of fact that the employee sustained a 75% permanent partial disability was supported by substantial evidence.

Alabama Code 1975, § 25-5-88, provides that a final judgment in a workers’ compensation case “shall contain a statement of the law and facts and conclusions as determined by [the circuit court judge deciding the case].” The term “facts” as found in § 25-5-88 refers to those facts essential to the judgment that the trial court has concluded were proven by a preponderance of the evidence. See Ala. Code 1975, § 25-5-81(c); Greek v. Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458 (1922); and Addison Fabricators, Inc. v. Davis, 892 So.2d 440 (Ala.Civ.App.2004). In Bryant v. Central Foundry Co., 217 Ala. 332, 333, 116 So. 345, 345 (1928), our supreme court, in discussing a predecessor statute to § 25-5-88, stated:

“The statute contemplates, not a recital of the evidence, with its conflicting lights and tendencies, but a determination by the trial judge of the facts established by the evidence, responsive to the issues presented ....”

This court has also indicated that “[t]he trial court is not required by § 25-5-88 to comment on every item of evidence, each word of testimony, and every line of every deposition offered in evidence.” Werner Co. v. Williams, 871 So.2d 845, 852-53 (Ala.Civ.App.2003). See also Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 793-94 (Ala.Civ.App.2002) (“Although § 25-5-88, Ala.Code 1975, requires a ‘statement of the law and facts and conclusions determined by [the trial] judge,’ we are unpersuaded that the Code section compels the detailed findings [the company] would have the trial court make.”). This court has also noted that simply because a trial court does not specifically mention portions of the evidence contained in the record does not mean that the court did not consider that evidence. R.L. Carnes Logging Contractors, Inc. v. Whitsett, 844 So.2d 1248, 1254 (Ala.Civ.App.2002).

In this case, the trial court explicitly stated in its written findings of fact that it had considered all the evidence, even summarizing much of the medical and vocational testimony the employee asserts was not considered. However, even if the trial court did not state that it had considered all the evidence, it is obvious that it considered the evidence favorable to the employee when it ruled on the employee’s two postjudgment motions that highlighted the portions of the evidence the employee deemed significant. The trial court even granted the employee a new trial based on his evidentiary arguments. Based on the procedure followed in this case, we conclude that the trial court more than adequately performed its statutory duty to consider all the evidence supporting the employee’s position, even though the trial court did not recite that testimony at length in its judgments.

Even if the trial court’s findings could be considered incomplete, “we note that a reversal is not required. Instead, we merely conduct the same review as we would of more specific factual findings to determine whether the ultimate finding made by the trial court is supported by substantial evidence.” Werner Co. v. Williams, 871 So.2d at 853. “If the trial court’s findings are meager or omis-sive, this court may look to the record to determine if the trial court’s judgment should be upheld.” McCutcheon v. Champion Int’l Corp., 623 So.2d 742, 743 (Ala.Civ.App.1993). In this case, the “ultimate finding of fact” was the 75% permanent-partial-disability finding. By reviewing all the evidence to determine whether that ultimate finding was supported by substantial evidence, this court did not assume the role of the fact-finder but merely carried out its duty of appellate review.

The employee also argues that this court misconstrued his argument relating to the employee’s postinjury employment. The employee maintains that he did not assert the position that “the trial court had no choice but to enter a permanent-total-disability award because the employee has not established a consistent and substantial earning record since he separated from the employer,” as we stated in our opinion on original submission. 14 So.3d at 153. The employee states that he merely argued that the trial court erred in failing to conclude that such employment did not constitute “suitable gainful employment.”

By the employee’s analysis, if the jobs the employee held after the first trial were not “suitable,” i.e., compatible with the employee’s preinjury occupation, age, education, and aptitude, or were not “gainful,” i.e., employment similar in remuneration to that earned prior to the injury, see Ex parte Beaver Valley Corp., 477 So.2d 408, 412 (Ala.1985), then the trial court should have noted that fact and determined that the employee was permanently and totally disabled because he “ ‘is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist.’ ” See Brunson Milling Co. v. Grimes, 267 Ala. 395, 400, 103 So.2d 315, 318 (1958) (quoting Lee v. Minneapolis Street Ry., 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950)).

The employee misapprehends the law. In determining whether an employee is permanently and totally disabled, the trial court does not simply determine whether the employee has, in fact, obtained and performed suitable gainful employment following the injury; rather, it determines whether the employee is capable of obtaining and performing suitable employment. See Ala.Code 1975, § 25-5-57(a)(4)d. (defining permanent total disability as “any physical injury ... resulting from an accident, which injury ... permanently and totally incapacitates the employee from working at and being retrained for gainful employment”). Following a work-related injury, an employee may be employed in employment that is not suitable or gainful, as defined above, yet still retain the capacity for suitable gainful employment. See, e.g., Ellenburg v. Jim Walter Res., Inc., 680 So.2d 282 (Ala.Civ.App.1996) (rejecting argument that employee was permanently and totally disabled simply because he was capable of earning only $280 per week after work-related injury when he averaged earning $700 per week before the injury). Evidence of actual employment may be accepted as one factor relating to the employee’s ability to secure and perform suitable gainful employment, but it does not conclusively establish the extent of the employee’s earning capacity. See Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591 (1945). Hence, the trial court did not, as the employee contends, have to determine whether the employee was actually engaged in suitable gainful employment when he worked for the grocery store or the building-supply company after his injury.

In considering an employee’s claim for permanent-total-disability benefits, the trial court must determine whether the employee is capable returning to his former job and, if not, whether the employee is capable of securing and performing other suitable gainful employment. See Red Mountain Constr. Co. v. Neely, 627 So.2d 931 (Ala.Civ.App.1993). In this case, the trial court heard testimony from the employer’s human-resources manager that the employer had jobs available for the employee that would accommodate the employee’s restrictions. The trial court also heard testimony from the employer’s vocational expert that the employee was eligible for a variety of jobs that would enable him to earn $713 to $998 per week. The employee himself testified at one point on cross-examination that he could return to work in some of his former occupations without violating his restrictions. After considering that evidence, along with the other'relevant evidence, the trial court determined that the employee had not totally lost the ability to obtain and perform suitable gainful employment. Its finding that the employee was not permanently and totally disabled is supported by substantial evidence. Therefore, we find no error in the trial court’s treatment of the employee’s postinjury employment.

Because we conclude that the trial court did not commit reversible error in failing to make more specific findings of fact or in failing to ascertain whether the employee subsequently obtained suitable gainful employment and because we conclude that this court properly reviewed the record to determine if the 75% permanent-partial-disability rating was supported by substantial evidence, we overrule the application for rehearing.

APPLICATION OVERRULED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . We note that the degree of the loss of vocational use of the employee's right upper extremity was subject to some dispute among the medical doctors and even some internal contradictions by individual doctors. The employee contends the trial court unduly weighed Dr. Anderson’s opinion; however, the trial court actually based its conclusion on Dr. Young's original restrictions, which basically coincided with the restrictions set out by Dr. Murphy. The trial court did not err in resolving this conflict by concluding that the employee still retained some use of his right arm, because that finding was supported by substantial evidence.

      . Actually, the employee was only underpaid by $378.06 ($518.92-$455.91 = $63.01 x 6 = $378.06). However, since this mathematical error favors the employee, we find no ground for reversal.


author: PER CURIAM. BRYAN, Judge,

text:
    MADISON COUNTY BOARD OF EDUCATION v. Laura WILSON.
    2050222.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.
    Cynthia K. Thompson of Johnston, Moore, Maples & Thompson, Huntsville, for appellant.
    Stan McDonald, Huntsville; Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for appellee.
    David R. Boyd, Dorman Walker, and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the appellant.
    Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile, for amicus curiae Alabama Education Association, in support of the appellee.
   On Rehearing Ex Mero Motu,

PER CURIAM.

On April 22, 2008, this court issued an order placing this case on rehearing ex mero motu. We are now withdrawing that order.

ORDER OF APRIL 22, 2008, WITHDRAWN.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

In this case, this court previously granted an appeal from a hearing officer’s decision, pursuant to § 16-24-10(b), Ala. Code 1975, a part of the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975 (“the Act”). Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153 (Ala.Civ.App.2006). In pertinent part, § 16-24-10(b) provides that “[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” Because this court found the hearing officer’s order to be arbitrary and capricious, we “reverse[d] the hearing officer’s decision and re-mandfed] the cause for the parties to conduct another hearing consistent with the provisions of the Teacher Tenure Act.” Wilson, 984 So.2d at 1160. Our supreme court subsequently affirmed this court’s judgment, stating:

“The hearing officer’s application of standards of ‘just cause for termination’ from collective-bargaining cases to Wilson’s case resulted in a decision that was arbitrary and capricious. Therefore, the Court of Civil Appeals correctly reversed his decision and remanded the case for a new hearing. We affirm its judgment. The new hearing shall be conducted pursuant to the provisions of the [Teacher Tenure] Act.”

Ex parte Wilson, 984 So.2d 1161, 1171 (Ala.2007). Neither our judgment nor the judgment of the supreme court specified whether a new hearing officer was to be selected upon remand.

On March 26, 2008, Wilson filed in this court a “motion for clarification of order.” In that filing, Wilson requested that this court clarify whether a new hearing officer should be selected to conduct the hearing upon remand.

“The cardinal rule in statutory construction is to give effect to the legislative intent as clearly expressed in the statute or as may be inferred from the language used as well as from the reason for the act.” Ex parte Berry hill, 801 So.2d 7, 11 (Ala.2001) (emphasis omitted). I note that the legislature, in amending the Act in 2004, intended “to streamline the contest and appeal processes for teachers.” Title to Act No. 2004-566, Ala. Acts 2004. Remanding the case for a new hearing before the original hearing officer would be consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention. Further, § 16-24-10(b) permits this court to remand the case for “another hearing,” but that section does not mention “another hearing officer.” Accordingly, I interpret that portion of the Act calling for “another hearing” as requiring remand to the original hearing officer for a new hearing.

Because I would place the appeal on rehearing ex mero motu in order to clarify this court’s intention that the original hearing officer should conduct the hearing on remand, I respectfully dissent.

       Note from the reporter of decisions: On March 26, 2008, Laura Wilson filed a motion for clarification of the Court of Civil Appeals' remand order, in an opinion released on August 11, 2006, published at 984 So.2d 1153. On April 22, 2008, the Court of Civil Appeals, which had issued its certificate of judgment on January 2, 2008, following the Alabama Supreme Court’s affirmance of its judgment, 984 So.2d 1161, recalled that certificate and placed the case on rehearing ex mero motu.


author: PER CURIAM. SMITH, Justice COBB, Chief Justice MURDOCK, Justice

text:
    Ex parte Laura WILSON. (In re Madison County Board of Education v. Laura Wilson).
    1071683.
    Supreme Court of Alabama.
    Jan. 16, 2009.
    Annary A. Cheatham of Cheatham & Associates, PLLC, Huntsville; Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sam Heldman of The Gardner Firm, Washington, D.C., for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

WRIT DENIED. NO OPINION.

SEE, LYONS, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

SMITH, J., concurs specially.

COBB, C.J., and MURDOCK, J., dissent.

SMITH, Justice

(concurring specially).

I concur to deny the petition. The underlying facts of this case are explained in the earlier decision of the Court of Civil Appeals, Madison County Board of Education v. Wilson, 984 So.2d 1153 (Ala.Civ.App.2006), and this Court’s opinion affirming that court’s judgment, Ex parte Wilson, 984 So.2d 1161 (Ala.2007). The current procedural posture of this case is explained in part in Chief Justice Cobb’s dissent.

Chief Justice Cobb, in her dissenting opinion, asserts that the petitioner, Laura Wilson, “has sought redress in every reasonable manner in seeking an answer to the question whether a new hearing officer is required on remand.” 14 So.3d at 160. However, instead of filing a “motion for clarification,” Wilson could have sought mandamus relief directing that a hearing be commenced before the original hearing officer after the Madison County Board of Education refused to proceed if the matter was not heard before a new hearing officer.

Additionally, the Court of Civil Appeals’ most recent action in this case merely withdraws an order that placed the case on rehearing ex mero motu. It is unclear how this Court could review such a decision on certiorari review. In any event, the Court of Civil Appeals’ prior decision in this case, which this Court affirmed, remanded the case “for the parties to conduct another hearing consistent with the provisions of the Teacher Tenure Act.” Madison County Bd. of Educ., 984 So.2d at 1160. The parties have not yet conducted such a hearing. I see no reason why our denial of this petition will prevent the fulfillment of that remand order. Therefore, I concur to deny the petition.

COBB, Chief Justice

(dissenting).

Laura Wilson had the misfortune of being one of the first teachers whose termination under the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975, was scrutinized by the appellate courts of Alabama since the Teacher Tenure Act was drastically amended by the legislature in 2004. See Act No. 566, Ala. Acts 2004. In April 2005, the Madison County Board of Education (“the Board”) terminated Wilson’s employment as a tenured physical-education teacher at Buckhorn High School. Pursuant to § 16-24-10 Wilson appealed her termination, and after receiving ore tenus and documentary evidence, the hearing officer ordered that Wilson be returned to her teaching position and that no discipline be imposed. The Board appealed to the Court of Civil Appeals pursuant to § 16-24-10(b), Ala.Code 1975, and the Court of Civil Appeals “reverse[d] the hearing officer’s decision and remanclfed] the cause for the parties to conduct another hearing consistent with the provisions of the Teacher Tenure Act.” Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153, 1160 (Ala.Civ.App.2006). Wilson then petitioned this Court for a writ of certiorari. Wilson’s petition was granted, and this Court affirmed the judgment of the Court of Civil Appeals. See Ex parte Wilson, 984 So.2d 1161 (Ala.2007). I dissented from this Court’s judgment in that matter, and I dissent now.

This case, unfortunately, has become a procedural quagmire. In affirming the judgment of the Court of Civil Appeals, this Court stated: “The new hearing shall be conducted pursuant to the provisions of the new [Teacher Tenure] Act[, § 16-24-1 et seq.].” Ex parte Wilson, 984 So.2d at 1171. Wilson did not sleep on her rights. She attempted to secure the new hearing that this Court ordered. Upon receipt of this Court’s judgment, the hearing officer contacted Wilson and the Board and suggested dates for a new hearing. The Board, however, notified Wilson that, because the matter had been remanded for a new hearing pursuant to the provisions of the Teacher Tenure Act, it was arguing that a new hearing officer must be selected for the new hearing. The Board premised its contention on § 16-24-10(a), Ala.Code 1975, which states that “the hearing officer shall be selected as provided in subsection (b) of Section 16-24-20.” Wilson disagreed and asserted that the matter had been remanded to be heard by the original hearing officer. Because Wilson refused to consent to a new hearing officer, the Board deemed that she had waived her rights to a new hearing and ceased paying her salary. Wilson appealed to the chief administrative law judge of the office of administrative hearings in the office of the Alabama Attorney General pursuant to § 16-24-21, Ala.Code 1975. The administrative law judge determined that he lacked jurisdiction over the dispute and dismissed Wilson’s appeal. On March 25, 2008, Wilson filed a motion for clarification with the Court of Civil Appeals, asking that court to clarify whether a new hearing officer is required on remand. The Court of Civil Appeals placed the case on rehearing ex mero motu on April 22, 2008; however, on August 29, 2008, that court withdrew its order. Wilson now petitions this Court to issue a writ of certiorari to the Cpurt of Civil Appeals or, in the alternative, for a writ of mandamus.

The language used by the Court of Civil Appeals in originally remanding the case and by this Court in affirming the judgment of the Court of Civil Appeals doing so could have led to two reasonable interpretations: the new hearing was to be held before the original hearing officer or the new hearing was to be held before a new hearing officer. It was the responsibility of the Court of Civil Appeals to clai’ify its remand order, even though the posture of this case was complicated, to say the least. This posture, however, was not created by the parties but instead by the Court of Civil Appeals and this Court.

Consequently, I agree wholeheartedly with Judge Bryan in his writing dissenting from the Court of Civil Appeals’ withdrawal of its order placing this case on rehearing ex mero motu. I, too, believe that the Court of Civil Appeals erred when it failed to retain this matter on rehearing ex mero motu to respond to Wilson’s motion for clarification. As Judge Bryan stated:

“ ‘The cardinal rule in statutory construction is to give effect to the legislative intent as clearly expressed in the statute or as may be inferred from the language used as well as from the reason for the act.’ Ex parte BerryhiU, 801 So.2d 7, 11 (Ala.2001) (emphasis omitted). I note that the legislature, in amending the [Teacher Tenure] Act in 2004, intended ‘to streamline the contest and appeal processes for teachers.’ Title to Act No. 2004-566, Ala. Acts 2004. Remanding the case for a new hearing before the original hearing officer would be consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention. Further, § 16-24-10(b) permits this court to remand the case for ‘another hearing,’ but that section does not mention ‘another hearing officer.’ Accordingly, I interpret that portion of the Act calling for ‘another hearing’ as requiring remand to the original hearing officer for a new hearing.
“Because I would place the appeal on rehearing ex mero motu in order to clarify this court’s intention that the original officer should conduct the hearing on remand, I respectfully dissent.”

Madison County Bd. of Educ. v. Wilson, 14 So.3d 157 (Ala.Civ.App.2008) (Bryan, J., dissenting).

Wilson has sought redress in every reasonable manner in seeking an answer to the question whether a new hearing officer is required on remand, and I believe she and the Board are entitled to an answer.

I agree with Justice Smith that the parties have not conducted the “ ‘hearing consistent with the provisions of the Teacher Tenure Act’ ” on remand as ordered by the Court of Civil Appeals. 14 So.Sd at 157 (Smith, J., concurring specially). This is a hearing to which Wilson is entitled, and that right should not be thwarted by the Board’s alternative interpretation of our judgment and the judgment of the Court of Civil Appeals. I believe that Wilson should demand a hearing before the original hearing officer. Should the hearing officer refuse to conduct such a hearing, she should petition the Court of Civil Appeals for a writ of mandamus. If, however, the original hearing officer schedules the hearing and the Board is still of the opinion that a new hearing officer is required, the Board then may petition the Court of Civil Appeals for a writ of mandamus. In either situation, the issue would be squarely before the appellate courts.

However, I remain convinced that the Court of Civil Appeals should have provided the relief Wilson sought. Therefore, I respectfully dissent.

MURDOCK, Justice

(dissenting).

I agree in the main with the dissenting opinion of Chief Justice Cobb. She and Justice Smith disagree, however, over whether, before coming to this Court, Wilson “sought redress in every reasonable manner,” 14 So.3d at 161 (Cobb, C.J., dissenting), in an effort to determine whether a new hearing officer was required on remand. Under the unusual procedural history of this case — and what may be considered a novel and unexpected position on the part of the Madison County Board of Education (“the Board”) in relation to a new legislative enactment — I believe Wilson has done enough.

Although Wilson did not file an application for rehearing seeking clarification of the mandate of this Court’s 2007 decision, I do not fault her for this. Any ambiguity in what appeared to be routine remand language in this Court’s judgment was latent, at best. (It appears that routine language was used both by this Court and by the Court of Civil Appeals without any thought as to the issue now presented.) It is true that, when the dispute arose between Wilson and the Board as to whether the remand in this case required the parties to begin anew the process of selecting a hearing officer for Wilson’s case, Wilson did not file a petition for a writ of mandamus with either the Court of Civil Appeals or this Court. Instead, because this case had been remanded for handling by the hearing officer, Wilson sought a resolution of this dispute from the chief administrative law judge of the office of administrative hearings in the office of the Alabama Attorney General. When that effort did not produce a resolution, she promptly filed a motion for clarification with the Court of Civil Appeals, asking it to clarify whether a new hearing officer was required on remand. When that court refused to do so, she then filed a petition for an extraordinary writ with this Court.

An injustice may be occurring merely because of uncertainty and disagreement by the parties as to what it means for a case to be remanded under the new teacher-tenure law. The teacher’s taking a different view from the Board, and declining to submit hex- case to a new hearing officer, has now resulted in her being fired.

Under the unusual circumstances pre-sentecl, I am not persuaded that we should not treat Wilson’s petition to this court as a timely request for a writ of mandamus, a common-law writ of certiorari, or other extraordinaiy relief, bearing in mind our general superintendence powers, see, e.g., Ex parte Bracken, 263 Ala. 402, 406, 82 So.2d 629, 631 (1955), and authority to interpret and pi’oteet our mandates.

      . The Board terminated its contract with Wilson pursuant to which she also served as the cheerleading coach at Buckhorn High School. Wilson conceded that she possessed no right to contest the cancellation of that contract.

      . As a preliminary observation as to the merits of the issue presented: If we construe the new teacher-tenure law as requiring the selection of a new hearing officer, will we not be forcing new evidentiary hearings in all remanded cases and foreclosing the option of having the original "judge” simply apply the correct law to the evidence with which he or she is already familiar? The latter course obviously is the nature of most remands to “trial court” "judges.” I question the Board's reliance on § 16-24-10(a), Ala.Code 1975, which merely describes the general manner of selecting a hearing officer. Procedures, if not statutes, also are in place for the assignment of cases among the trial judges of any given circuit. That does not mean that when an appellate court remands a case for application of its legal holding to the evidence of record that those procedures are re-implemented as if the case were reaching the trial court for the first time.