author: PER CURIAM.

text:
    SOUTHERN STATES POLICE BENEVOLENT ASSOCIATION, INC., et al. v. Governor Robert H. BENTLEY et al. Southern States Police Benevolent Association, Inc., et al. v. Governor Robert H. Bentley et al.
    1150265
    1150360
    Supreme Court of Alabama.
    Sept. 23, 2016

      J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellants.
    Dorman Walker, David R. Boyd, and John Naramore of Balch & Bingham LLP, Montgomery; and Leura Canary, JoClau-dia Moore, and Jared Morris, Retirement Systems of Alabama, Montgomery, for ap-pellees.
   PER CURIAM.

Southern States Police Benevolent Association, Inc. (“the SSPBA”), and three members of the SSPBA—Scott Kendall, Christopher Carver, and Patrick McCul-loch, all of whom are employed as police officers by the City of Auburn (hereinafter referred to collectively as “the Auburn police officers” or collectively with the SSPBA as “the police plaintiffs”)—sued Governor Robert H. Bentley and the other members of the Board of Control of the Employees’ Retirement System of Alabama (“the ERS”) (Governor Bentley and the other members of the Board of Control of the ERS are hereinafter referred to as “the ERSA”); David Bronner, the chief executive officer and secretary-treasurer of the Retirement Systems of Alabama (“the RSA”) and the ERS;. and Thomas :L. White, Jr., the State comptroller (hereinafter referred to collectively as “the State defendants”),' in their representative capacities, in the Montgomery Circuit Court seeking injunctive relief and a judgment. declaring that participants in the pension plan the ERSA operates could make retirement contributions—and therefore receive increased retirement benefits—based upon their “earnable compensation,” which term, the police plaintiffs argue, rightly includes payments received for overtime worked. The trial court entered a summary judgment in favor of the State defendants, and the police plaintiffs appeal. We affirm.

I.

The ERSA operates a defined-benefit pension plan (“the ERS plan”) established by the State of Alabama in 1945 to provide “retirement allowances and other benefits ... for employees of the State of Alabama.” § 36-27-2, Ala. Code 1975. Participation in the ERS plan is mandatory for covered employees if they work at least 20 hours per week in a nontemporary position. These “members” must contribute a percentage of their “earnable compensation” to the ERS plan each pay period, and, upon retirement, they will receive monthly pension payments, the amount of which depends upon the number of years of “creditable service” completed by the member and upon the member’s “average final compensation.” See § 36-27-1, Ala. Code 1975 (defining the terms “member,” “earnable compensation,” “creditable service,” and “average final compensation”). The entity employing the member also makes a separate contribution to the ERS plan each pay period on behalf of the member. Although participation in the ERS plan is mandatory for most members beginning from the date they start employment, a member does not become entitled to receive retirement benefits until he or she has accumulated 10 years of creditable service. Upon doing so, the member is said to be “vested,” and he or she is thereafter eligible to begin receiving retirement benefits when he or she retires after (1) accumulating 25 or 30 years of creditable service (depending upon the rules of the employing entity) or (2) reaching 60 years of age.

Section 36-27-1(14), Ala. Code 1975, defines “earnable compensation” as “[t]he full rate of compensation that would be payable to an employee if he or she worked the full normal work-time.” In 1975, the State police requested that overtime payments be included in the calculation of their officers’ earnable compensation, and, in November 1975, the ERSA acceded to that request and adopted a policy whereby overtime payments were included in the earnable compensation of those members. Thereafter, in May 1978, the ERSA implemented a policy whereby overtime payments and subsistence allowances were included in earnable compensation for all members of the ERS plan. Accordingly, members made retirement contributions on those payments and allowances. When the Auburn police officers started their employment with the City of Auburn, they each began making retirement contributions based upon earnable compensation as defined by that policy, that is, they made contributions on both their base salary and on all overtime payments received.

Sometime in early 2011, White, the State comptroller, and Jackie Graham, the director of the State Personnel Department and a member of the Board of Control of the ERS, requested an advisory opinion from the Alabama Attorney General clarifying whether overtime payments and subsistence allowances were properly considered “earnable compensation” under § 36-27-1(14). On August 22, 2011, the attorney general issued an opinion answering both inquiries in the negative. With regard to overtime payments, the attorney general specifically stated:

“The [ERS], as set forth in § 36-27-1, et seq., [Ala. Code 1975], provides a defined-benefit plan for certain employees of the State of Alabama whose salary is paid by a state warrant. ... Specifically, [Ala. Code 1975,] § 36-27-24(b)[,] provides that ‘each employer shall cause to be deducted from the salary of each member on each and every payroll of such employer for each and every payroll period [a percentage] of his earnable compensation.’ ... (emphasis added). ‘“Earnable compensation’ is defined as ‘[t]he full rate of compensation that would be payable to an employee if he or she worked the full normal work-time. In cases where compensation- includes maintenance, the Board of Control shall fix the value of that part of the compensation not paid in money.’ Ala. Code [1975,] § 36-27-1(14) (2001) [ (emphasis added) ].
“The statutory provisions governing the [RSA] do not allow for contributions on extraordinary payments. See Mitchell v. Employees’ Retirement Sys. of Ala., 642 So.2d 480, 481 (Ala.1994) (disallowing retirement calculations on sick and annual leave payments). State law clearly provides that deductions for retirement shall be made from an employee’s salary. By definition, ‘overtime’ is not ‘salary.’
U
“Pursuant to state law,' the salary of each employee is based upon a semimonthly rate, regardless of the number of hours in the semi-monthly pay period. For example, during a calendar year, the semi-monthly pay period contains 72, 80, 88, and 96 work hours depending on the work days contained within each semi-monthly time period. Regardless, however, of the number of hours within the semi-monthly time period, an employee’s salary remains constant.
“Additionally, Rule 670-X-11-.01 and .04 of the Rules of the State Personnel Board establish uniform regulations for all employees under the State Merit System and requires the number of hours to be uniform for all employees whose positions are allocated to the same class, unless specifically provided otherwise by action of the Board. A ‘regular work week’ is described as a 40-hour work week. (A 40-hour week shall be used for the purpose of calculating the pay of employees paid on a semimonthly basis.) Ala. Admin. Code [Personnel Board] r. 670-X-11-.01 and -.04 (eff. June 26, 2006). The State Personnel Board Rules, not in conflict with the laws of Alabama, have the force and effect of law. See Ala. Code [1975,] § 36-26-9 (2001). With respect to. state law enforcement officers, section 36-21-4 of .the Code specifically provides that a normal work week is a 40-hour week. Ala. Code [1975,] § 36-21-4 (2001).
“Therefore, based upon the foregoing, only the salary an individual is normally entitled to receive on a semi-monthly basis is ‘earnable compensation’ as that term is used in § 36-27-1(14). Overtime payments are not salary as that term is used in § 36-27-24(b), and may not be used . for retirement calculation purposes.”

Ala. Op. Att’y Gen. No. 2011,-090 (August 22,2011). For similar, reasons, the attorney general also concluded that subsistence allowances ■ were not “earnable compensation” for retirement purposes. Id.

In accordance with the' attorney general’s opinion, White stopped collecting from state employees retirement contributions. attributable to overtime payments or subsistence allowances, effective September 1, 2011. The RSA informed other entities participating in the ERS plan to do likewise, and the City of Auburn complied with that directive, stopping the collection of retirement contributions attributable to overtime payments received by the Auburn police officers as of that same date. On February 6, 2012, the police plaintiffs initiated this action, challenging the ERSA’s decision to exclude overtime payments from a member’s earnable compensation and arguing that the State defendants had a contractual obligation to continue calculating members’ .earnable compensation in. the same manner the ERSA had for, approximately 36 years. Before the trial court could rule, however, the legislature passed, a bill amending the definition of “earnable compensation” in § 36-27-1(14), effective May . 9, 2012. Specifically, a subsection b was added, which read as follows:

“b. The term earnable compensation for retirement purposes shall not include subsistence payments that are made to an employee and shall include overtime payments that are made to an employee; however, earnable compensation shall not exceed 120 percent of any employee’s annual base compensation as certified by the employer.”

Following the amendment of § 36-27-1(14), the State defendants adjusted their policies to comply with the amended statute, and the ERSA has since accepted retirement contributions attributable to overtime payments received by a member only to the extent that the member’s earnable compensation does not exceed 120% of his or her “annual base compensation,” which the ERSA interprets to mean base salary. In response to this legislative action, the police plaintiffs amended their complaint to challenge the ERSA’s application of amended § 36-27-1(14), arguing that the Auburn police officers’ “annual base compensation” should include pay received for mandatory overtime worked, not just base salary.

Thereafter, this case proceeded through the pretrial process, during which time it was consolidated with three other cases challenging the State defendants’ actions taken in response to both the August 2011 attorney general’s opinion and amended § 36-27-K14). In May 2014, the police plaintiffs and the State defendants filed summary-judgment motions that, by agreement, addressed the rights of only those members who were vested in the ERS plan when the treatment of overtime payments changed in September 2011. After the requisite responses, replies, and supplements were filed, and after two hearings at which the arguments raised by the parties were considered, the trial court on October 30, 2015, entered a summary judgment in favor of the State defendants, holding' that they were entitled to the State immunity provided by Art. I, § 14, Ala. Const. 1901, and that the police plaintiffs’ claims were accordingly barred.

The police plaintiffs thereafter moved the trial court to reconsider its judgment or, in the alternative, to enter a final judgment as to the claims of non-vested members so that the police plaintiffs could pursue an immediate appeal. Before the trial court ruled on that motion, however, the police plaintiffs filed a notice of appeal to this Court (appeal no. 1150265). On December 15, 2015, this Court remanded the cause to the trial court as being from a nonfinal judgment because the claims of non-vested members remained pending, and, on December 29, 2015, the trial court entered an order holding that the State defendants were entitled to a summary judgment on those claims as well. On January 6, 2016, the police plaintiffs, out of an abundance of caution, filed another notice of appeal to this Court (appeal no. 1150360), and we consolidated the two appeals for the purpose of writing one opinion.

II.

The police plaintiffs seek review of the summary judgment entered in favor of the State defendants on the basis of their alleged immunity. Specifically, the police plaintiffs argue that State immunity does not apply and that a judgment as a matter of law should, in fact, be entered in their favor because, they allege, the State defendants have misinterpreted § 36-27-1(14) and have violated the contractual rights of the members of the ERS plan, which rights, they argue, are protected by Art. I, § 22, Ala. Const. 1901, (1) by changing the ERSA’s longtime policy following the issuance of the August 2011 attorney general’s opinion and preventing members from making any further retirement contributions based on overtime payments and (2) by changing the ERSA’s policy again after the legislature amended § 36-27-1(14) and allowing members to make retirement contributions attributable only to some overtime payments. These issues—State immunity and constitutional and statutory interpretation—are all issues of law and are accordingly reviewed de novo by this Court. See, e.g., Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004) (“We review questions of statutory construction and interpretation de novo .... ”), and Ex parte Franklin Cty. Dep’t of Human Res., 674 So.2d 1277, 1280 (Ala.1996) (Cook, J., concurring specially) (“Alabama recognizes absolute immunity, commonly presented with regard to State agencies or public employees, granted under Art. I, § 14, Alabama Constitution of 1901, and qualified immunity, commonly referred to as discretionary-function immunity [i.e., State-agent immunity]. This Court has held that the question of immunity is a question of law for the courts to decide.”).

III.

This Court generally considers State-immunity arguments before considering other issues that might be raised on appeal because resolution of an immunity claim may obviate the need to address other issues. See, e.g., Alabama State Univ. v. Danley, 212 So.3d 112, 121 (Ala.2016) (‘We first address [the appellants’] arguments that they are entitled to immunity from the judgment because, if that issue is decided in their favor, the other issues they raise are moot.”). In this case, the State defendants are all State officials sued in their representative capacities; accordingly, unless one of the “exceptions” to State immunity applies, they are entitled to the immunity from suit granted the State by § 14 of the Alabama Constitution, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” See Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003) (holding that the State, its agencies, and State officials sued in their representative capacities may claim the State immunity provided by § 14).

This Court, however, has held that certain actions against State officials being sued in their representative capacity are not barred by § 14. Those actions include: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought under the Declaratory Judgments Act, § 6-6-220 et seq., Ala. Code 1975, seeking construction of a statute and its application in a given situation; (5) valid inverse-condemnation actions; and (6) actions seeking in-junctive relief where it is alleged that State officials have acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. Ex parte Hampton, 189 So.3d 14, 17-18 (Ala.2015). The police plaintiffs argue that then-action falls within the second, fourth, and/or sixth of these categories and that the trial court accordingly erred by concluding that the action was barred by § 14. Essentially, they argue that the State defendants have misinterpreted the terms “earnable compensation” and “annual base compensation” in § 36-27-1(14) and have applied that mistaken interpretation in an unconstitutional manner, and they now ask this Court to interpret the statute properly and to instruct the State defendants to act in accordance with that definition.

To the extent the police plaintiffs have requested a declaratory judgment interpreting § 36-27-1(14), that claim appears to fall within the fourth category of actions not barred by § 14. Whether the State defendants have applied § 36-27-1(14) in a manner that effectively renders it unconstitutional or have otherwise misinterpreted it so as to bring this action within the second and sixth of those categories as well can only be determined once we have set forth the proper interpretation of § 36-27-1(14), which we do in the context of the request for a declaratory judgment. We accordingly begin by examining § 36-27-1(14) and the State defendants’ interpretation and application of that statute before the legislature amended it in 2012, after which we consider the State defendants’ interpretation of § 36-27-1(14) subsequent to the legislature’s amendment of the statute.

Section 36-27-1(14) provides that “earnable compensation” is “[t]he full rate of compensation that would be payable to an employee if he or she worked the full normal work-time.” The August 2011 attorney general’s opinion, quoted supra, concluded that “only the salary an individual is normally entitled. to receive on a semi-monthly basis is earnable compensation.” We find the analysis leading to that conclusion to be sound, and we adopt the rationale in the attorney general’s opinion. An employee’s designated salary necessarily compensates him or her for his or her “full normal work-time.” Any work performed in excess of that “full normal work-time” is, by definition, overtime. Any such overtime is compensated with additional payments' that are not part of the employee’s salary, and those additional overtime payments cannot be considered “earnable compensation” inasmuch as the payments are compensation for work performed beyond the “full normal work-time”—otherwise no additional payment would be due. Thus, when the State defendants stopped allowing members to make retirement contributions on overtime payments following the issuance bf the attorney general’s opinion in August 2011, they were not acting pursuant to a mistaken interpretation of § 36-27-1(14). To the contrary, it was the first time in approximately’36 years that § 36-27-1(14) was being interpreted and applied correctly. ,

We further note that the State defendants’ -application of § 36-27-1(14) in compliance with the attorney general’s opinion is not.unconstitutional. The police plaintiffs emphasize that Officers Kendall and McCulloch were vested members in the ERS plan at the time of the September 2011 policy change, and the police plaintiffs accordingly argue that those officers and other similarly situated members held certain contractual rights at that time— including the right to continue making retirement contributions on overtime payments—by virtue of their vested status. Therefore, the police plaintiffs argue, the actions of the State defendants preventing Officers Kendall and McCulloch from continuing,to, make those retirement contributions interferes with their contractual right to do so in violation of § 22, Ala. Const. 1901, which provides “[t]hat no ex post facto law, nor any law, impairing the obligations of contracts ... shall be passed by the legislature.”

In support of their argument, the police plaintiffs urge this Court to adopt what they term “the Tennessee rule,” which the Supreme Court of Tennessee adopted in Blackwell v. Quarterly County Court of Shelby County, 622 S.W.2d 535 (Tenn.1981), when it .considered whether a county pension system could legally change the manner in which an employee’s final average compensation was calculated, even if the new formula might result in a reduced pension for certain vested employees. In concluding that such a change was not lawful, the Blackwell court recognized that, “[a]t some point after an employee has performed services or has paid into a pension and retirement plan, he acquires fixed and immutable rights in the system.” 622 S.W.2d at 540. Accordingly, the Blackwell court concluded that vested employees had a right to continue having their final average compensation computed under the previous formula, stating “[w]e do not believe that this right should be or that it could validly be taken from them without their consent, even though they continued to be employed by the county and to accrue benefits in the future.” 622 S.W.2d at 543. See also Roberts v. Tennessee Consol. Ret. Sys., 622 S.W.2d 544, 545 (Tenn.1981) (applying the Tennessee rule and concluding that' the government'may modify a public pension plan when modification is reasonably required to 'keep the plan fiscally sound even if those changes have an adverse impact on members of the plan; however, no such modification can adversely affect a vested member).

The police plaintiffs also cite cases from this Court in which we recognized that participants in a public pension plan have at least some contractually vested rights. For example, in Smith v. City of Dothan, 279 Ala. 571, 188 So.2d 532 (1966), the appellant voluntarily chose to participate in a municipal pension plan to which he contributed five percent of his salary. Subsequent to his becoming vested in the plan and reaching retirement eligibility, the legislature amended the plan to limit contributions to the first $4,800 of salary. When he subsequently retired, he sued the municipality, seeking the increased benefit he would have been entitled to if the cap had not been placed on his contributions and offering to pay the contributions he had been prevented from making previously. In ruling in the appellant’s favor, the Smith Court stated:

“A controlling question presented for our decision is whether under the agreed facts of this case appellant acquired a vested right of contract to pension benefits provided by. law in effect at the time the [act amending the pension plan] was passed and approved. In other words, are. appellant’s rights to a retirement or pension determinable, under [the act creating the pension plan], free of the amendment impressed by . [the subsequent act]?
“The Constitution of the United States, § 10, Article 1, provides that no state shall pass any law impairing the obligations, of contracts, while our Alabama Constitution, Article 1, § 22, provides: ‘That no ex post facto law, nor any law, impairing the obligations of contracts ... shall be passed by the legislature.’
“It is settled law that § 22, Article 1 of the Constitution of 1901 does not simply inhibit the State from impairing the obligations of contracts between individuals, but applies with like force and effect to contracts made by the State or with one of its agencies when authorized by law. ...
“It is our opinion in the instant case, under the agreed statement of facts, that appellant, upon reaching eligibility for retirement in 1959, acquired a vested right to the benefits provided by [the act creating the pension plan] free of the amendatory effect of [the subsequent act].
“Appellant voluntarily identified his employment tenure with the pension or retirement plan created by [the act creating the pension plan]. Although he was not actually paid the deductible sums which constituted his contribution to the retirement fund, his voluntary identification with this program created by [the act creating the pension plan] had the legal effect of his having received his full salary and returning a part to the City to meet his share of the contribution to the retirement fund. The deducted sum belonged to him and was withheld through his agency and agreement; it retained the attribute of appellant’s private property until paid into the benefit fund. [The subsequent amendment] as applied to appellant in the instant case impaired appellant’s contract with the City in violation of the constitutional provisions, supra.
“We pretermit any pronouncement as to the effect of these constitutional provisions . where the employee has not reached eligibility for retirement. That situation.does not obtain in the present case and is not before us.” .

279 Ala. at 574-76, 188 So.2d at 534-86. Similarly, in Snow v. Abernathy, 831 So.2d 626, 631 (Ala.1976), this Court held that an employee of the City of Tuscaloosa who had voluntarily elected to become a member of the ERS plan after its inception had a. contractual right to designate a beneficiary .upon his death that was not abrogated by subsequent legislation dictating that a member’s surviving spouse was automatically the member’s beneficiary, stating:

“It is voluntary participation at the election of the employee that precipitates vesting of contractual rights of that employee in the pension or retirement plan. In this case [the employee] made the voluntary election by executing a written instrument expressly assenting to membership in the [ERS plan]. This is not to say that such is the only method of expressing assent.
“Though management (or the legislature) may reserve the right to revise or amend the plan, vested rights of the employee may not be impaired and will be safeguarded. Weesner v. Electric Power Board of Chattanooga, 48 Tenn.App. 178, 344 S.W.2d 766 (1961).
“A basic determining factor to a resolution of the question of whether [the employee] acquired vested contractual rights in the statutory retirement plan here under consideration is contribution or noncontribution to the fund. [The employee]' contributed^] therefore weight is added to the soundly reasoned conclusion that the relationship between him and' the system was contractual in nature. His rights vested thereby and cannot be abrogated-by legislation although legislation to improve the system is constitutionally permissible. State ex rel. O’Donald v. City of Jacksonville Beach, [142 So.2d 349 (Fla.Dist.Ct.App.1962)]; Bardens v. Board of Trustees, of Judges Retirement System, 22 Ill.2d 56, 174 N.E.2d 168 [ (1961) ]; Clarke v. Ireland, 122 Mont. 191, 199 P.2d 965 [ (1948) ]; Ball v. Board of Trustees of Teachers’ Retirement Fund, 71 N.J.L. 64, 58 A. 111 [ (1904) ].
“[The employee’s] contractually vested right was to receive all benefits ‘contracted’ for and included the power to designate his beneficiary. That right was provided by Act No. 515, Acts of Ala., 1945 [which established the ERS plan]; the basis of the contractual agreement at the time of [the employee’s] election to participate. By electing, expressly or by assent, to participate in such plan employees acquire vested rights of contract to the benefits provided therein upon acceptance of the plan. Those rights may not be impaired by subsequent legislation.”

Finally, the police plaintiffs also cite Board of Trustees of Policemen’s & Firemen’s Retirement Fund of Gadsden v. Cary, 373 So.2d 841, 842 (Ala.1979), in which this Court recognized that, although the Smith and Snow Courts had emphasized that the appellants in those cases had voluntarily decided to join their respective pension plans, participants in mandatory pension plans could also acquire vested contractual rights:

“The issue before this Court is whether persons subject to a compulsory pension system secure vested contractual rights immune from legislative change or an expectancy created by law subject to change or revocation by the enacting authority.
“Decisions of this Court have embraced the voluntary/mandatory dichotomy with respect to the vesting of pension rights in the context of public employment. It is clear that under voluntary retirement plans, certain rights vest and these rights cannot be abrogated. Snow v. Abernathy, 331 So.2d 626 (Ala.1976); Smith v. City of Dothan, 279 Ala. 571, 188 So.2d 532 (1966); City of Birmingham v. Penuel, 242 Ala. 167, 5 So.2d 723 (1942).
“This Court has never held, however, that a mandatory retirement plan for public employees precludes the vesting of certain rights in situations where the employee has fulfilled all of the prerequisites necessary to receive retirement benefits. We analogize this situation to a unilateral contract, where the promisee has completely performed all of the obligations and all conditions precedent so that the promisor has an unqualified duty to pay those obligations. We are of the opinion that subsequent legislative alteration is barred by Art. 1, § 22 of the Alabama Constitution of 1901.”

The Cary Court did hold, however, that those contractual rights vested only when the employee had completed the years of service required so as to be eligible to retire, stating:

“With respect to those employees who had not yet become eligible for retirement, we are constrained to hold that their interests had not matured into an unqualified right to receive the benefits set out in the statutory plan. We view the completion of twenty years’ service as a condition precedent to the vesting of an absolute right to receive these benefits. Therefore, absent this vesting, the compensatory scheme, including the retirement plan, was subject to legislative modification.”

373 So.2d at 843.

Thus, there is authority from this Court indicating that public employees participating in a pension plan may, at some point, acquire some vested contractual rights that cannot be taken away without their consent. Nevertheless, the State defendants argue that the cases cited by the police plaintiffs are distinguishable and do not establish that the change in the way the State defendants interpreted “eamable compensation” following the August 2011 attorney general’s opinion is unconstitutional. The State defendants emphasize that the cases cited by the police plaintiffs were all decided before 1985, when the Supreme Court of the United States, in National R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry., 470 U.S. 451, 465-70, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985), developed the current standard for reviewing contract claims asserted against the government. Under this standard, a statute will not be construed to contractually bind the government unless the statute evinces the legislature’s unmistakable intent to do so. In Taylor v. City of Gadsden, 767 F.3d 1124 (11th Cir.2014), the United States Court of Appeals for the Eleventh Circuit applied this standard when considering an action initiated by certain firefighter-employees of the City of Gadsden—who were members of the ERS plan—challenging Gadsden’s decision to raise their contribution rate by 2.5%. In rejecting this challenge, the Taylor court stated:

“Despite ample discovery, no party has produced the written agreement between the firefighter-employees and the City, nor is there much evidence about what the terms of such a writing might contain. We look instead to the statutory provisions that govern the ERS. When engaging in such a review, we must ‘proceed cautiously both in identifying a contract within the language of a regulatory statute and in defining the contours of any contractual obligation.’ Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 466, 105 S.Ct. 1441, 1452, 84 L.Ed.2d 432 (1985). That is because ‘the principal function of the legislature is not to make contracts, but to make laws that establish the policy of the state’; after all, ‘[pjolicies, unlike contracts, are inherently subject to revision and repeal.’ Id. at 466, 105 S.Ct. at 1451. Unless the legislature evinces an ‘unmistakable’ intent to be contractually bound, United States v. Winstar, 518 U.S. 839, 860, 116 S.Ct. 2432, 2448, 135 L.Ed.2d 964 (1996) (plurality opinion), we presume ‘that statutory enactments do not create contractual obligations,’ McGrath v. R.I. Retirement Bd., 88 F.3d 12, 19 (1st Cir.1996); see also Winstar, 518 U.S. at 921, 116 S.Ct. at 2477 (Scalia, J., concurring) (‘Governments do not ordinarily agree to curtail their sovereign or legislative powers, and contracts must be interpreted in a commonsense way against that background understanding.’).
“Here, the ERS—a public pension plan—can be fairly characterized as ‘part of the compensation package that [the City] dangle[s] to attract and retain qualified employees.’ See McGrath, 88 F.3d at 17. Pensions are thus ‘regarded as a species of unilateral contracts.’ Id.; see Bd. of Trs. of the Policemen’s & Firemen’s Ret. Fund v. Cary, 373 So.2d 841, 842 (Ala.1979) (per curiam) (‘We analogize [a public pension program] to a unilateral contract....’). That is, ‘the promise of a pension constitutes an offer which, upon performance of the required service by the employee[,] becomes a binding obligation.’ McGrath, 88 F.3d at 17 (alteration in original) (quoting Hoefel v. Atlas Tack Corp., 581 F.2d 1, 4 (1st Cir.1978)).
“The Alabama Supreme Court has made clear that once employees ‘have served and retired, the benefits to which they are entitled' may not be reduced subsequent to their retirement absent an express reservation of a right to amend at any time.’ Cary, 373 So.2d at 842. In the State of Alabama, then, contractual rights to retirement benefits accrue when .employees have fulfilled their end of the bargain. For firefighters, this means performing ten years of creditable service and upon their reaching the age of retirement, or, alternatively, performing twenty-five years of creditable service, regardless of their age. See Ala. Code [1975,] § 36-27-16(a)(1). Until that time, however, employees’. interests in the retirement plan are ‘subject to legislative modification.’ Cary, 373 So.2d at 843.
“Plaintiffs argue that • Gadsden firefighters who have complied with the statutory requirements possess a ‘vested’ right to a 6% employee contribution rate. This argument relies on the assumption that there exists an implied promise not to’ raise the employee contribution rate once a firefighter becomes eligible for retirement benefits. We can find neither hide nor hair of such a promise.
“To begin, nothing in the text of Alabama Code [1975,] § 36—27[,] suggests that the employee contribution rate is immune from change, even after' an employee’s retirement benefits have vested. Employee contribution rates, moreover, were, amended several times , before plaintiffs joined the ERS. And it is well established that ‘the pervasiveness of .., prior regulation in [an] area suggests that[,] absent some affirmative indication to the contrary,’ the most recent modification will not necessarily be the last. Nat’l R.R. Passenger Corp., 470 U.S. at 469, 105 S.Ct. at 1453. Indeed, by our count, the contribution rate for various classes of ERS participants has been amended at least six times over the course of several decades. ... When deciding whether to join the ERS, the former [Policemen’s and Firemen’s Retirement Fund of the City of Gadsden] members were on notice of these prior increases, including an increase only one year before, which applied specifically to firefighters. Plaintiffs also had access to the 2002 ERS employee handbook when choosing whether to accept Gadsden’s offer to change the terms of their pension. This handbook explicitly stated that the ‘member contribution rate is .determined by statute and subject to change by the Alabama Legislature.’ ... Taken together, this evidence indicates that whateyer contractual terms preside over the employment relationship between the City and its firefighters, a promise to refrain from raising contribution rates is not one of. them.
“Plaintiffs challenge this conclusion by pointing to Alabama Supreme Court precedent holding that pension benefits, once vested, cannot be reduced by subsequent legislation. ... Their reliance on this line of precedent is misplaced. Nothing in the reasoning of these cases suggests that every pension provision is rendered immutable once an employee becomes eligible to retire. To the contrary, the Alabama Supreme Court has selectively extended such protection only to benefits promised by the employer for which the employee has satisfied all the conditions precedent. See, e.g., Cary, 373 So.2d at 842 (‘[W]here the promisee has completely performed all' of the obligations and all conditions precedent ... the promisor has an unqualified, duty to pay those obligations.’); Snow v. Abernathy, 331 So.2d 626, 631 (Ala.1976) (‘Snow’s contractually vested right was to receive all benefits “contracted” for .... By electing, expressly or by assent, to participate in such plan employees acquire vested rights of contract to the benefits provided therein upon acceptance of the plan.’); Smith v. City of Dothan, 279 Ala. 571, 576,188 So.2d 532, 536 (Ala.1966) (per curiam) (‘[U]pon reaching eligibility for retirement ... [the employee] acquired a vested right to the benefits provided by [the pension program] free of the amendatory effect of [subsequent legislation].’).”

767 F.3d at 1133-35. See also American Fed’n of Teachers v. State, 167 N.H. 294, 304, 111 A.3d 63, 72 (2015) (applying National R.R. Passenger Corp. analysis and .concluding that there was nothing in the relevant New Hampshire pension statute that would “demonstrate an unmistakable intent by the legislature to bind itself against prospectively changing the definition of ‘earnable compensation’” in that statute).

Having reviewed the relevant statutes governing the ERS plan, we .conclude that there is nothing within those statutes that would indicate that the legislature intended to contractually bind itself to any definition of “earnable compensation” that would include overtime payments. Most notably, until May 2012 the definition of “earnable compensation” in § 36t27-1(14) made no mention of overtime payments and, as explained supra and in the August 2011 attorney general’s opinion, the language used in fact indicates that overtime payments were not “earnable compensation.”

The omission of any discussion of overtime payments from § 36-27-1(14) until the amendment to that statute in 2012 also distinguishes this case from the other cases relied upon by the police plaintiffs. In Smith, Snow, and Cary, and Blackwell and Roberts, the- Alabama and Tennessee state legislatures, respectively, had enacted statutes implementing specific pension rules and, some years later, passed new acts amending those same rules. Thus, had those cases arisen post-National R.R. Passenger Corp., the plaintiffs would have at least been able to point-to the earlier pre-amendment statutes as some- evidence of the legislatures’ previous intent. However, with regard to the September 2011 change in the way overtime payments were treated by the ERSA, the police plaintiffs cannot identify any statute that was amended to their detriment; rather, they object only to a change in an administrative interpretation of a statute. In Boswell v. Abex Corp., 294 Ala. 334, 336, 317 So.2d 317, 319 (1975), this Court stated:

“The correct rule is that an administrative interpretation of the governmental department for a number .of years is entitled to favorable consideration by the courts; but this rule of construction is to be laid aside where it séems reasonably certain that the administrator’s interpretation has been erroneous and that a different construction is required by the language of the statute. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824 [ (1949) ]; Drennen Motor Co. v. State, 279 Ala. 383, 185 So.2d 405 [ (1966) ]; East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala.App. 584, 233 So.2d 751 [ (1970) ].
“Taxpayers have no vested right to rely upon an erroneous, interpretation of the statute exempting them from taxation, and under Section 100 of the Constitution of Alabama of 1901, the taxing authority has no .discretion in a matter of this kind. The reason for this rule is that in the assessment and collection of taxes, the State is acting in its governmental capacity, and it cannot be es-topped with reference to the enforcement of taxes, even when the taxpayer was advised that it was not responsible for a tax.”

See also Faust v. Metropolitan Government of Nashville, 206 S.W.3d 475, 493 (Tenn.Ct.App.2006) (“Parties cannot gain vested rights in an erroneous interpretation by an administrati[ve] agency of a legislative act”). Thus, not only does the language of pre-amendment § 36-27-1(14) defeat any suggestion that the legislature intended to bind the State to a definition of “earnable compensation” that included overtime payments, but the ERSA’s longtime erroneous interpretation of § 36-27-1(14) also fails to bind the State in any respect.

Finally, we note that § 22 bars the legislature from enacting “any law” impairing the obligations of contracts. As noted in the preceding paragraph, however, to the extent the police plaintiffs are challenging ERSA’s September 2011 policy change, they are challenging the way the State defendants interpret § 36-27-1(14)—not a “law” amending § 36-27-1(14). This distinction effectively renders § 22 inapplicable. As the United States Court of Appeals for the Eleventh Circuit explained in Taylor: “Lost in the fog of litigation, this undisputed point bears emphasis: the [pension change] stems from a resolution by the City of Gadsden in 2011 .... And the City of Gadsden’s decision ... did not involve an ordinance or a similar act bearing the imprimatur of the State’s legislative authority.” 767 F.3d at 1132 (footnote omitted). Accordingly, the Taylor court concluded, “the plaintiffs [had] no basis upon which to launch a Contract Clause challenge in the first instance.” Id. at 1133. See also New Orleans Waterworks Co. v. Louisiana Sugar-Refining Co., 125 U.S. 18, 30, 8 S.Ct. 741, 31 L.Ed. 607 (1888) (“In order to come within the provision of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the state. The prohibition is aimed at the legislative power of the state, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals.” (emphasis added)).

For all these reasons, the police plaintiffs’ argument that the State defendants’ interpretation of pre-amendment § 36-27-1(14) following the issuance of the August 2011 attorney general’s opinion violates § 22 of the Alabama Constitution for allegedly infringing upon their contractual rights is without merit. The State defendants properly applied § 36-27-1(14) when changing the ERSA policy regarding overtime payments following the issuance of the August 2011 attorney general’s opinion, and the State defendants were entitled to a judgment in their favor on the claims asserted by the police plaintiffs in this regard.

•IV.

The police plaintiffs also argue that the State defendants’ interpretation of § 36-27-1(14) subsequent to the legislature’s 2012 amendment of the statute is mistaken, and they accordingly ask this Court to declare the meaning of the term “annual base compensation” in the amended statute, which term, they argue, should include overtime payments received for overtime work the Auburn police officers are required to perform. Section 36-27-1(14) as amended continues to define “earnable compensation” as “[t]he full rate of compensation that would be payable to an employee if he or she worked the full normal work-time,” but it also specifically provides that, for Tier I members, earna-ble compensation “shall include overtime payments that are made to a member; however, earnable compensation shall not exceed 120 percent of any members’ annual base compensation as certified by the employer.” The police plaintiffs argue that they are regularly required to work more than 40 hours per week and that they face disciplinary action if they refuse to do so. Accordingly, they argue, their “annual base compensation” should include those overtime payments they receive for this required overtime. They further note that several other states have considered similar cases and have held that police officers and other public employees are entitled to receive pension benefits based on overtime routinely worked as a normal part of their duties. See, e.g., Palyok v. Borough of West Mifflin, 526 Pa. 324, 328, 586 A.2d 366, 368 (1991) (holding that police officer was entitled to retirement benefits based on total compensation received, including overtime pay, inasmuch as the work he performed in exchange for the overtime pay was the same as the work he performed in exchange for his basic salary); Vogt v. City of New Orleans, 208 So.2d 420, 422 (La.Ct.App.1968) (holding that municipality was required to allow retirement contributions on eight hours of weekly “overtime” police officers were regularly scheduled to work); and Smith v. Lowell, 334 Mass. 516, 519, 136 N.E.2d 186, 188 (1956) (holding that “[t]he plaintiffs retirement allowance should be calculated from his actual compensation if regularly fixed and paid,” even if some of that compensation was denominated “overtime”).

Regardless, however, of decisions of other courts interpreting the statutes and rules governing the public pension plans in their respective states, we are bound by the language of the statute's governing the ERS plan. The only statute relevant to the police plaintiffs’ argument on this point is § 36-27-1(14), and we cannot agree with their argument that the term “annual base compensation” in that statute is ambiguous or vague and should be read to include overtime payments for overtime they are required to work. As discussed above, before its amendment in 2012, § 36-27-1(14) did not specifically address overtime payments, and the ERSA accordingly applied its own interpretation of the statute in determining whether overtime payments should be included within earnable compensation. The 2012 amendment, however, clarified that earnable compensation “shall include overtime payments that are made to an employee; however, earnable compensation shall not exceed 120 percent of any employee’s annual base compensation as certified by the employer.” We must give these words their plain and ordinary meaning, and, reading the statute as a whole as we are required to do, State Superintendent of Education v. Alabama Education Ass’n, 144 So.3d 265, 272-73 (Ala.2013), we conclude that, in amending. § 36-27-1(14), the legislature intended to allow only limited overtime payments to be included within a member’s fearnable compensation. Including overtime payments for mandatory overtime within a member’s “annual base compensation” would frustrate that-intent because it would effectively give the established limit no field of operation; that is, if overtime payments are included within a member’s “annual base compensation,” the 120 percent limit would never be reached, and there would effectively be no limit. Had the legislature intended to create some- distinction between mandatory overtime and voluntary overtime it could have done so; howevér, it did not, ■ instead speaking only of “overtime”' generally. This Court must accordingly refrain from creating such a distinction of our own accord. See, e.g., Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986) (“It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so.”).

The police plaintiffs have' identified' no' ambiguity or vagueness in § 36-27-1(14). When the legislature amended § 36-27-1(14) in 2012 to include overtime payments within the meaning of earnable compensation, it explicitly provided .that earnable compensation could not exceed 120 percent of annual base compensation, thus evinciiig an intent to allow only limited amounts of overtime to be counted for retirement purposes. The State defendants’ interpretation and application of § 36-27-1(14) subsequent to its 2012 amendment is consistent with the language of the statute and gives effect to the legislature’s intent.

V.

The police plaintiffs sued the State defendants seeking a declaratory judgment and injunctive relief requiring the ERS to allow its members to make retirement contributions based upon their “earnable compensation,” which term, the police plaintiffs argue, should include all payments received for mandatory overtime worked. However, because “earnable compensation” is defined in § 36-27-1(14) as that compensation received for -working “the full normal work-time,” we agree with the State defendants that, before the amendment of § 36-27-1(14) in 2012, earnable compensation did not properly include overtime payments—regardless of .the past practice of the ERSA.. Moreover, although the 2012 ■ amendment to § 36-27-1(14) allows overtime payments to be included within earnable compensation to a limited extent—-so long as earnable compensation does not exceed 120 percent of annual base compensation—we find no support in. the language of the statute for the police plaintiffs’ argument that the legislature intended to differentiate between mandatory overtime and voluntary overtime and to make mandatory overtime part of a member’s, annual base, compensation and thus not subject to the 120 percent limit. In sum, the Státe defendants have properly interpreted § 36-27-1(14) after its 2012 amendment. For these reasons, the summary judgment entered in favor of the State defendants is hereby affirmed.

1160265—AFFIRMED.

1150360—AFFIRMED.

, Stuart, Bolin, Parker, Shaw, and Wise, JJ., concur. .

      . The RSA administers the ERS, the Teachers’ Retirement System of Alabama, and the Judicial Retirement Fund of Alabama.

      . Some county, municipal, and quasi-public entities have elected to have their employees participate in the ERS plan.

      . Members who began their employment in a position requiring them to enroll in the ERS plan (or any other RSA-administered plan) ' before January 1, 2013, are considered "Tier I” members, while members that began their employment on or after January 1, 2013, are considered "Tier II" members. The contribution rates, calculation of benefits, and certain other aspects of the ERS plan are different for the two tiers; however, because the instant action involves only Tier I members, all general discussion of the ERS plan in this opinion relates to Tier I. Benefits and minimum retirement ages are also different for members who are State police officers; however, the Auburn police officers are municipal police officers—not State police officers—and this opinion accordingly does not address those aspects of the ERS plan that are unique to State police officers.

      .A vested member who is forced to retire early as a result of a permanent disability is entitled to disability-retirement benefits calculated in the same manner as standard retirement benefits; thus, in this opinion, reference to “retirement benefits” should be generally understood to also include disability-retirement benefits.

      . Section 36-21-2, Ala. Code 1975, provides that certain State law-enforcement officers shall receive a subsistence -allowance each day they work that is not subject to any state or federal taxes. That amount is currently set at $12.

      . Pursuant to § 36-27-1(15); Ala, Code 1975, the only compensation that can be included when calculating a member’s average final compensation upon retirement is that compensation upon which the member .made contributions; thus, preventing members from making contributions on overtime payments effectively excludes that pay from being considered when the members' retirement benefits are calculated as well. However, because contributions were made on overtime payments received before September 2011, those overtime payments are still included- when calculating a member's average final compensation, notwithstanding the subsequent change in policy regarding the treatment of overtime payments.

      . The State defendants argue to this Court that the SSPBA has no standing to join the Auburn police officers in this action. The police plaintiffs, however, cite Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 783 So.2d 792, 795 (Ala.2000), for the principle that an association has standing to sue on behalf of its members when it seeks relief that will inure to the benefit of those members. We agree thatthe SSPBA has standing under the test adopted by this Court in Bama Budweiser and reject the State defendants’ argument challenging the SSPBA's participation in this case. Moreover, it is undisputed that the Auburn police officers -have standing; thus,, this action would proceed with or without the SSPBA. See City of Tuscaloosa v. Alabama Retail Association, 466 So.2d 103, 107 (Ala.1985) (rejectin¿ appellant’s challenge to trade association’s standing to participate in case and affirming judgment entered by the trial court where it was undisputed that co-plaintiffs, who were members of the trade association, had standing).

      .A subsequent amendment to § 36-27-1(14), ' effective January 1, 2013, limited the provision capping a member’s earnable compensation at 120% of his or her annual base compensation to Tier I members, while capping the earnable compensation of Tier II members at 125% of their annual base compensation.

      . The plaintiffs in those other cases eventually agreed to the dismissal of their cases, thus allowing the legality of the State defendants’ actions to be resolved in the context of this ‘ case. ‘

      . Officers Kendall and McCulloch were vested members in September 2011; Officer Carver was not.

      . What the police plaintiffs refer to as "the Tennessee rule” is referred to by the Supreme Court of Tennessee in Blackwell as "the Pennsylvania rule,” because the rule appears to have its origin in Harvey v. Retirement Board of Allegheny County, 392 Pa. 421, 431, 141 A.2d 197, 203 (1958) (stating that "[a]n employee who has complied with all conditions necessary to receive a retirement allowance 'cannot be affected adversely by subsequent legislation which changes the terms of the retirement contract”).

      . This Court has recognized that the state contracts clause in § 22 of the Alabama Constitution has the same purpose as the federal contracts clause in Article I, § 10 of the United States Constitution, and courts have generally applied the same analysis to claims asserting violátions of either clause. Opinion of the Justices No. 333, 598 So.2d 1362, 1365 (Ala.1992). See also Storer Cable Commc'ns v. City of Montgomery, 806 F.Supp. 1518, 1551 (M.D.Ala.1992) (noting that "[a]lthough the case law interpreting [§ 22] is extremely scarce, it seems reasonably clear that the Supreme Court of Alabama gives the clause much the same meaning as the federal courts have given the national clause”).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    K.S.B. v. M.C.B.
    2150681
    Court of Civil Appeals of Alabama.
    Sept. 16, 2016

      Clinton G. Eubanks, Centre, for appellant.
    Chad A. Hopper of Buttram, Hawkins & Hopper, LLC, Centre, for appellee.
   MOORE, Judge.

KS.B. (“the father”) appeals- from a judgment entered by the Cherokee Juvenile Court (“the juvenile court”), terminating his parental rights to B.K.J. (“the child”), whose date of birth is October 31, 2013. We affirm the juvenile court’s judgment.

Procedural History

On November 13, 2015, M.C.B. (“the mother”) filed a petition to terminate the parental rights of the father to the child. The mother alleged, in pertinent part:

“3. The parents were divorced by Order of the Circuit Court of Cherokee County, Alabama, on September 4, 2014. The mother was granted full custody of the child, and the father was granted visitation.
“4. The father has not visited with the child at all since the divorce. In fact, the father last saw the child in April 2014.
“5. The father has been unable and unwilling to act as a parent for the minor child.
“6. The conduct or condition of the father renders him unable to properly care for the child and said conduct or condition is unlikely to change in the foreseeable future.
“7. The father suffers from emotional illness, mental illness, mental' deficiency and/or excessive use of alcohol or controlled substances to such a duration or nature as to render said parent unable to care for the needs of the child.”

After a trial on May 4, 2016, the juvenile court entered a judgment on May 11, 2016, finding that the allegations in the petition had been proven and terminating the father’s parental rights to the child.. On May 12, 2016, the father filed his notice of appeal.

In the present case, the evidence indicated that the parties were divorced by a judgment of the Cherokee Circuit Court on September 14, 2014. The divorce judgment, which incorporated an agreement of the parties, provided that the father would exercise visitation with the child as agreed upon by the parties. It is undisputed that, at the time of the May 2016 trial, the father had not seen the child in approximately two years. The mother testified that the last time the father had seen the child was in April 2014, and the father testified that the last time he had seen the child was in August 2014. The mother also testified that the father had not asked to visit the child; the father, on the other hand, claimed that he had asked to visit the child numerous times and that his requests had been denied. He claimed that he had not' contacted an attorney to enforce his visitation rights because he had been afraid of being arrested on outstanding criminal charges.

The father testified that he had been employed for some period since December 2015 but that he had paid no support for the benefit of the child. The mother testified that the father had abused synthetic marijuana during their marriage and that, the last time the father had visited the child, he had appeared to be under the influence of that drug, specifically, stumbling and slurring his speech. The evidence indicated that the father had been in and out of jail during the two years preceding the trial, and, at the time of the trial, the father was incarcerated. The father testified that he had been incarcerated on two occasions for possession of drugs and on two additional occasions for having failed to comply with drug-court orders. He testified that he had not used drugs since August 2015, but he had only been out of jail for six months between August 2015 and the time of the trial.

Standard of Review .

A juvenile court’s judgment terminating a parent’s parental rights must be supported by clear and convincing evidence, which is “‘“[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.”’” C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621, 627 (Ala.Civ.App.2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4)).

“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a ease in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala.Civ.App.2006) ].
“To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, ‘the judge must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala.2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011).

Discussion

On appeal, the father argues that there was not clear and convincing evidence of grounds to terminate his parental rights.

Section 12-15-319, Ala. Code 1975, provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future,' it may terminate the parental rights of the parent[ ]. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(1) That the parent[] ha[s] abandoned the child, provided that in these cases, proof shall1 not be required' of reasonable efforts to prevent removal or reunite the child with the parent[ ].
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(9) Failure by the parent!'] to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(11) Failure by the parent! ] to maintain consistent contact or communication with the child.
“(b) A rebuttable- presumption that the parent[ ] [is] unable or unwilling to act as [a] parent[] exists in any case .where the parent[] ha[s] abandoned a child and this abandonment continues for a period of four months next preceding the filing of the petition..Nothing in this subsection is intended to prevent the filing of a petition in an abandonment case prior to the end of the four-month period.”

See B.H. v. M.F.J., 197 So.3d 997, 1000-02 (Ala.Civ.App.2015).

Abandonment is defined as:

“A voluntary and intentional relinquishment of the custody of a child py a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”

Ala. Code 1975, § 12-15-301(1).

Based on the evidence indicating that the father had failed to visit the child in the approximately two years preceding the trial, the juvenile court could have concluded that the father had abandoned the child, see § 12-15-301(1), that that abandonment had continued for at least four months preceding the filing' of the petition to terminate the father’s parental rights, see § 12—15—319(b), so as to establish a presumption that the father was “unable or unwilling to act as [a] parent! ],” id, and that the father had' failed to rebut that presumption. Although the father testified that the mother had thwarted his attempts to visit the child, the juvenile court, as the trier of fact, could have believed the mother’s testimony and disbelieved the father’s testimony on that point. C.O., 206 So.3d at 626-27. We also note that the same evidence regarding the father’s failure to visit also established that the father had failed to maintain consistent communication with the child. See § 12-15-319(a)(ll).

The father also argues that the juvenile court exceeded its discretion in finding that the father had failed to support the child despite having had the ability to do so, that the father has a mental illness or deficiency, and that the father was, using controlled substances at the time of the trial. See § 12-15~319(a)(2) & (9). We note, however, that the juvenile court did not find that the father has a mental illness or deficiency and that he was using controlled substances. Instead, the juvenile court found that the allegations of the mother’s petition had been proven—those .allegations stated that “the father suffers from emotional illness, mental illness, mental deficiency and/or. excessive use of alcohol or controlled substances [of] such a duration or nature as to render [the father] unable to care for the needs of the child.” (Emphasis added.) Furthermore, with regard to those implicit findings, we note that, even if there was insufficient evidence presented to support those findings, any error was harmless in light of the “remainder of the evidence supporting termination of the [father’s] parental rights,” specifically, the evidence of abandonment and lack of consistent communication with the child. B.H., 197 So.3d at 1002.

The father also argues.that the juvenile .court erred in terminating his parental rights because, he says, there existed a viable alternative to termination of his parental rights. We note, however, that “the [father], by abandoning., [his]. child, ‘lost any due-process rights that would have required, the juvenile court to explore other alternatives before terminating [his] parental rights.’ ” L.L. v. J.W., 195 So.3d 269, 274 (Ala.Civ.App.2015) (quoting C.C. v. L.J., 176 So.3d 208, 216 (Ala.Civ.App.2015)). Therefore, we reject the father’s argument on this point.

Conclusion

Based on the foregoing, we affirm the juvenile court’s judgment,

' AFFIRMED.

Pittman, Thomas, and Donaldson, JJ., concur.

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


author: PITTMAN, Judge.

text:
    EX PARTE Dr. Barbara JOHNSON (In re: V.C.R. v. B.C.)
    2150835
    Court of Civil Appeals of Alabama.
    Sept. 9, 2016

      Glen David King, Auburn, for petitioner.
    Submitted on mandamus petition only.
   PITTMAN, Judge.

Dr. Barbara Johnson, a clinical psychologist, has petitioned this court for a writ of mandamus directing the Shelby Circuit Court to vacate an order denying Johnson’s motion to quash a subpoena calling for Johnson to produce records relating to Johnson’s evaluation and treatment of T.C., a minor child (“the child”), and to enter an order quashing the subpoena. We grant the petition and issue the writ.

After Johnson filed her petition, this court invited the respondents to file answers, but they declined that invitation. Thus, we will take the averments in Johnson’s petition as true. See Ex parte Turner, 840 So.2d 132, 134 (Ala.2002).

V.C.R. (“the former wife”) and B.C. (“the former husband”) are the parents of the child and were divorced approximately five years ago. The details of the custody arrangement that was implemented when the parties divorced are not clear from the materials before us, but it appears that, in October 2015, the former wife filed a mandamus petition requesting a modification of custody. Johnson suggests in her petition that there have been allegations of child abuse or neglect levied against the former husband.

The former husband issued a third-party subpoena to Johnson, who has provided psychotherapy for the child since August 2013, directing Johnson to provide copies of records relating to Johnson’s treatment of the child. Johnson filed a motion to quash the subpoena, asserting the psychotherapist-patient privilege on behalf of the child. The trial court denied Johnson’s motion and directed her to produce the records.

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). Although appellate courts typically will not review discovery orders by way of a mandamus petition, an exception applies when a privilege has been disregarded. Ex parte T.O., 898 So.2d 706, 710 (Ala.2004).

Our legislature has adopted the following psychotherapist-patient privilege:

“[TJhe confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”

Ala. Code 1975, § 34-26-2. The Alabama Rules of Evidence also recognize such a privilege. See Rule 503, Ala. R. Evid.

Although Johnson has discussed the child’s condition with the former wife and the former husband, she avers that the child, not the former wife or the former husband, is her patient. Thus, the privilege belongs to the child and only he may waive it. T.O., 898 So.2d at 711. Johnson avers in her petition that the child has not waived the privilege.

Rule 503(d)(5), Ala. R. Evid., recognizes an exception to the psychotherapist-patient privilege in child-custody cases:

“There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.”

As Johnson points out, Rule 503(d)(5) expressly provides that the exception in custody cases applies only when “the mental state of a party is clearly an issue.” (Emphasis added.) This court’s precedent indicates that a child is not considered to be a party to a custody-modification action. Jones v. McCoy, 150 So.3d 1074, 1081 (Ala.Civ.App.2013). The Advisory Committee’s Notes to Rule 503 also suggest that the exception is intended to apply when the mental state of the person seeking custody, not the mental state of the child who is the subject of the custody dispute, is at issue:

“It is arguable that any person seeking custody has thereby placed his or her mental or emotional condition at issue. Accordingly, this rule continues Alabama’s preexisting, judicially created, exception to the psychotherapist-patient privilege. See Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986) (holding that the psychologist-patient privilege yields when the mental state of a party to a custody case is clearly in controversy); Matter of Von Goyt, 461 So.2d 821 (Ala.Civ.App.1984) (psychologist-patient privilege inapplicable to protect medical records of litigant in child custody case),”

In noting that the rationale for the exception is based on the idea that the person seeking custody has placed his or her own mental state at issue, the Advisory Committee’s Notes also tend to refute any suggestion that the child’s records should be disclosed because they may be relevant to the mental state of the former wife or the former husband, i.e., the parties to the custody action.. . In any event, the former wife and the former husband declined to submit. answers to Johnson’s mandamus petition, and it has not been demonstrated that the child’s psychotherapy records would shed light on the mental state of either of them.

We agree- with Johnson that the trial court improperly denied Johnson’s motion to quash the former husband’s subpoena calling for the production of the child’s psychotherapy records. Thus, we grant Johnson’s petition and issue the writ of mandamus,

PETITION GRANTED; WRIT ISSUED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      . Although it appears that the subpoena also referenced the treatment records of a second child, Johnson does not address that particular child in her petition.

      . Johnson is entitled to assert the privilege on behalf of the child. See Ex parte Western Mental Health Ctr., 884 So.2d 835, 841 n. 4 (Ala.2003) ("[T]he psychologist may assert the psychotherapist-patient privilege on behalf of the patient.”).

      . Although language in Mitchell v. Mitchell, 830 So.2d 755 (Ala.Civ.App.2002), could be read to suggest that the exception recognized by Rule 503(d)(5) might call for the disclosure of a child’s psychotherapy records when the child’s mental state is at issue in a custody case, that language is not necessary to the holding in. Mitchell and is, therefore, dicta.

      . We also note that there has been no argument that other concerns, separate and,apart from the above-discussed exception to the psychotherapist-patient privilege, such as constitutional Considerations, outweigh the child’s right to maintain the privilege. See generally Ex parte Rudder, 507 So.2d 411 (Ala.1987) (discussing the competing .interests of the psychiatrist-patient privilege and allowing liberal discovery in civil matters).


author: MOORE, Judge. ■

text:
    Jerry K. McCULLOUGH v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    2150459
    Court of Civil Appeals of Alabama.
    Sept. 9, 2016
    Jerry K. McCullough, Athens, for appellant.
    De Martenson and Michelle K. Piero,ni of Huie, Fernambucq & Stewart LLP, Montgomery, for appellee.
   MOORE, Judge. ■

Jerry K. McCullough appeals from a summary judgment entered by thé Limestone Circuit Court (“the trial court”) in favor of Allstate Property and Casualty Insurance Company (“Allstate”). We dismiss the appeal as having been taken from a nonfinal judgment.

Procedural History

McCullough filed a complaint against Allstate in the trial court on August 17, 2015, seeking equitable relief and damages for breach of contract, bad faith, violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., fraud, defamation, harassment, and invasion of privacy. Allstate filed a timely answer, asserting multiple affirmative defenses, including waiver, estoppel, accord, and satisfaction, and release. On November 4, 2015, Allstate moved for a summary judgment, asserting that all of McCullough’s claims arose out of the same matters that had been the basis of a previous federal lawsuit that McCullough had initiated against Allstate and that had been dismissed pursuant to a settlement agreement. On November 19, 2015, McCullough filed a response to Allstate’s summary-judgment motion and a motion for a partial summary judgment.

On November 30, 2015, McCullough filed an addendum to his response, to Allstate’s summary-judgment motion and to his motion for a partial summary judgment. On December 8, 2015, Allstate filed a reply to McCullough’s response to Allstate’s summary-judgment motion.

On December 14, 2015, McCullough filed a motion requesting that the trial court enter a judgment declaring the nature and purpose of the funds that Allstate had paid to McCullough to settle the federal lawsuit. On December 18, 2015, Allstate responded to McCullough’s motion for a declaratory judgment. On December 21, 2015, McCullough filed an amendment to his motion for a partial summary judgment.

After the trial court heard oral argument, the trial court entered a judgment on February 24, 2016, stating: “[Allstate’s] MOTION FOR SUMMARY JUDGMENT is hereby GRANTED.” On February 25, 2016, McCullough filed his notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction, and our supreme court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6)..

Discussion-

We must initially determine whether the summary judgment entered in this case is a final judgment that will support an appeal.

“An appeal will not lie from a nonfinal judgment. Robinson v. Computer Servi-centers, Inc., 360 So.2d 299, 302 (Ala.1978). ‘A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.’ Wilson v. Wilson, 736 So.2d 633; 634 (Ala.Civ.App.1999). The absence of a- final judgment is a jurisdictional defect that' cannot, be waived by the parties.”

Baugus v. City of Florence, 968 So.2d 529, 531 (Ala.2007).

In Baugus, the plaintiffs amended their complaint after the defendant had filed a motion for a summary judgment. Id. This court noted that, although the defendant had moved to strike the amendment to the complaint, it had not answered the amended complaint or amended its motion for a summary judgment to include the additional claims asserted in the amended complaint. Id. The trial court did not rule on the motion to strike, but it granted the defendant’s motion for a summary judgment. Id. The supreme court held that, because the defendant had not moved for a summary judgment on the additional claims asserted in the amended complaint, those claims remained pending after the trial court entered the summary judgment. Therefore, the supreme court concluded that the judgment was a nonfinal judgment.

Similarly, in the present case, after Allstate filed its motion for a summary judgment, McCullough filed a motion for a declaratory judgment, which we interpret as being an amendment to his complaint. See Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 971 (Ala.1994) (“This Court has always looked to substance over form.”). Although Allstate filed a motion asking the trial court to deny McCullough’s declaratory-judgment motion, it did not amend its summary-judgment motion to include that claim. Therefore, when the trial court granted Allstate’s motion for a summary judgment, it did not dispose of McCullough’s claim for a declaratory judgment, and, thus, that claim remains pending. We therefore conclude that the summary judgment from which McCullough appeals is a nonfinal judgment. Because a nonfinal judgment will not support an appeal, we dismiss the appeal. Baugus, 968 So.2d at 531.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


text:
    Tracy PAGE v. SOUTHERN CARE, INC.
    2150451
    Court of Civil Appeals of Alabama.
    Sept. 16, 2016

      W. Whitney Seals of Pate & Cochran, L.L.P., Birmingham, for appellant.
    Joseph H. Driver, Bricker S. Daughtry, and Michael C. Guarino of Carr Allison, Birmingham, for appellee.
   MOORE, Judge.

This appeal arises out of a dispute as to the amount of mileage expenses to which Tracy Page (“the employee”) is entitled for the years 2014 and 2015 under a 2008 judgment that approved a settlement between the employee and Southern Care, Inc. (“the employer”), pursuant to Ala. Code 1975, § 25-5-56, a part of the Alabama Workers’ Compensation Act (“the Act”), Ala. Code 1975, § 25-5-1 et seq. The Etowah Circuit Court (“the trial court”) awarded the employee only $560.51 of the $7,921.80 the employee claimed. We affirm the trial court’s judgment.

Background

The employee and the employer entered into a settlement agreement on December 10, 2008, which was approved by the trial court. In that settlement agreement, the parties memorialized that the employee claimed injuries to her neck and lower back resulting from work-related accidents occurring on February 14, 2005, and June 14, 2005, respectively. The employer agreed to pay the employee $75,566.67 to settle her claim for workers’ compensation benefits. The settlement agreement further provided: “Employer will remain liable for all future medical benefits as required by the Workers’ Compensation Act of Alabama which was in effect at the time of said accident.”

On December 11, 2015, the employee filed a “motion to compel payment of mileage,” which she later supplemented, in which the employee claimed, through supporting exhibits, that the employer had refused to pay her mileage expenses for travel to and from her physician’s and pharmacist’s offices in 2014 and 2015. After the employer filed a responsive memorandum opposing the motion, the trial court heard oral argument and entered an order on January 19, 2016, awarding the employee $560.51 on her mileage-expense-reimbursement claim. In support of its order, the trial court entered findings of fact, the pertinent portions of which provide as follows:

“[The employee’s] current authorized treating physician, Dr. Robert Lansden, is located in Hoover, Alabama. Dr. Lans-den was [the. employee’s] authorized treating physician for the relevant time period in 2014 and 2015; During the relevant time period in 2014 and 2015, [the employee] had her prescriptions filled at- a pharmacy in Hokes Bluff, Alabama. [The employee’s] current home address and her home address during the relevant time period in 2014 and 2015 is in Gadsden, Alabama. [The employee’s] home address is approximately 86.5 miles away from her treating physician in Hoover, Alabama, and approximately 7.5 miles away from her pharmacy in Hokes Bluff, Alabama.
“[The employee] is not currently employed by [the employer] and was not employed by [the employer] during the relevant time period in 2014 or 2015. [The employee] is a nurse who currently works for a third-party at various locations outside of Alabama on a contract or temporary basis. During the relevant time period for which [the employee] has requested mileage reimbursement, [the employee] worked as a nurse in West Palm Beach, Florida, and Valdosta, Georgia. While [the employee] was required to travel to West Palm' Beach, Florida, and Valdosta, Georgia, for work in 2014 and 2015, she returned home to Gadsden, Alabama, each weekend.
“According to [the employee’s] request for mileage reimbursement, which was submitted as an exhibit to her Motion to' Compel, her work location in West Palm Beach, Florida, was located approximately 744 miles from her treating physician in Hoover, Alabama, and 744 miles from her pharmacy in Hokes Bluff, Alabama. Her ■ work location - in Valdosta, Georgia, was located approximately 760 miles from her treating physician in Hoover, Alabama, and approximately 680 miles.from her pharmacy in Hokes Bluff, Alabama. [The employee] did not request an alternative, treating physician or alternative pharmacy during the relevant time period for which she requests mileage reimbursement.
“Between September 4, 2014, and August 18, 2015, [the employee] traveled a total of 13,912 miles between her work locations in West Palm Beach, Florida, and Valdosta,. Georgia, and her treating physician in Hoover, Alabama, and pharmacy in Hokes Bluff, Alabama. Her total mileage for 2014 was 5,208 miles, and her total mileage for-2015 was 8,704 miles.”

The trial court also entered conclusions of law as follows:

“Section 25-5-77(a) of the Alabama Code [1975] provides, ‘the employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches,' artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment.’ ... Subsection (f) of the same [C]ode section theh provides [that] ‘[t]he employer shall pay mileage costs to and from medical and rehabilitation providers at the same rate as provided by law for official state travel.’ Ala. Code [1975,] § 25-5-77[ (f) ].
“The Alabama Supreme' Court and Alabama Court of Civil Appeals have repeatedly held [that] ‘future medical expenses arising from the claimant’s'injury, which are shown to be reasonable and necessary and obtained with authorization of the employer, are’’to be' paid by the employer.’ Robbins Tire & Rubber Co. v. Byrd, 659 So.2d, 672, 674 (Ala.Civ.App.1995) (citing Jones v. Pick-ens County Health Care, :589 So.2d 754, 756 (Ala.Civ.App.1991)); see also Marley Erectors, Inc. v. Rice, 620 So.2d 31, 33-34 (Ala.Civ.App.1993); Ex parte Ameri-cold Compressors Co., 684 So.2d 140, 143 (Ala.1996); Fort James Operating Co. v. Thompson, 871 So.2d 44, 48 (Ala.Civ.App.2002). It reasonably follows that mileage reimbursement requests for traveling to and from these medical providers must also be ‘reasonable’ and ‘necessary.’ See Davis Plumbing Co. v. Burns, 967 So.2d 94, 102 (Ala.Civ.App.2007) (Moore, [J.,3 concurring [in the result]). As explained by Judge Terry Moore in a[n] opinion [concurring in the result] in Davis Plumbing, ‘[a]n employee may not choose a pharmacy beyond a reasonable distance from his home simply to obtain additional mileage expenses .... When the workers’ compensation law grants the employee discretion, such as the choice to refuse medical treatment or suitable employment, this court has always held that the employee must exercise that discretion within the bounds of reason.’ 967 So.2d at 102 (Moore, [J.,] concurring [in the result]) (citing Baptist Mem’l Hosp. v. Gaylor, 646 So.2d 93 (Ala.Civ.App.1994); Kiracofe v. BE & K Constr. Co., 695 So.2d 62 (Aa.Civ.App.1997)).
' “The Court accepts the facts asserted in [the employee’s] Motion to Compel wherein [the employee] states she incurred round-trip mileage traveling from West Palm Beach, Florida, and Valdos-ta, Georgia, to her treating physician in Hoover, Aabama, and her pharmacy in Hokes Bluff, Aabama, as true. However, the Court concludes [the employee’s] request for round-trip mileage reimbursements from her work locations in West Palm Beach, [Florida,] and Valdos-ta, Georgia, to her treating physician in Hoover, Aabama, and her pharmacy in Hokes Bluff, Aabama, are neither reasonable nor necessary.
“[The employee] was not employed-with [the employer] during the time period for which she has requested mileage reimbursement. Instead, during the time period for which she requests mileage reimbursement, [the employee] voluntarily contracted with a third-party to be employed in West Palm Beach, Florida, and Valdosta, Georgia. Athough [the employee] was required to travel out of state for work, at no point during the relevant time period did she request an alternative treating physician or alternative pharmacy. Moreover, [the employee’s] job as- a traveling nurse allowed her to return home to Gadsden, Aabama, each weekend, and [the employee] did, in fact, return home to Gadsden, Aa-bama, each weekend, irrespective of whether she had an appointment with her treating physician or needed to fill a prescription. Because [the employee] was home each we'ekend, sometimes as long-as Thursday through Sunday, it is neither reasonable nor necessary for her to receive round-trip mileage reimbursement from [the employer] for traveling to her treating physician or' pharmacy from West Palm Beach, Florida, or Val-dosta, Georgia. . .
“[The employee] is, however, entitled to round-trip mileage reimbursement for the miles incurred in traveling from her home in Gadsden, Aabama, to her treating physician in Hoover, Aabama, and her pharmacy in Hokes Bluff, Aabama. [The employee’s] total round-trip mileage from her home in Gadsden, Aa-bama, to her treating physician and pharmacy in 2014 is 391 miles. The applicable mileage reimbursement rate for 2014 is $0.56. Therefore, [the employee] is entitled to mileage reimbursement for 2014 totaling $218.96. [The employee’s] total round-trip mileage from her home in Gadsden,- Aabama, to her treating physician-and pharmacy in 2015 is 594 miles. The applicable mileage reimbursement rate for 2015 is $0,575. Therefore, [the employee] is entitled to mileage re-imburseraent for 2015 totaling $341.55. The total mileage reimbursement to which she is entitled for 2014 and 2015 is $560.51.”

The trial court entered a judgment for the employee in the amount of $560.51 and denied all other claims for relief.

On February 16, 2016, the employee filed a “second motion to compel payment of mileage” in which she sought to introduce her affidavit as evidence to support her claim. The trial court denied the motion on February 17,' 2016. The employee timely appealed on February 24, 2016.

Discussion

. The employee first argues that the trial court erred in construing Ala. Code 1975, § 25-5-77. The construction of a statute contained in the Act involves a question of law that this court reviews de novo without a presumption of correctness. See Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003); Ala. Code 1975, § 25-5-81(a)(1).

Section 25—5—77(f) provides: “The employer shall pay mileage costs to and from medical and rehabilitation providers at the same rate as provided by law for official state travel.” The employee points out that § 25—5—77(f) does not expressly define mileage costs as those incurred in traveling to and from the home of an employee to his or her medical and rehabilitation providers. The employee also points out that the legislature did not include the words “reasonable” and “necessary” to modify the term “mileage costs.” Accordingly, the employee maintains that the trial court impermissibly engrafted language into § 25—5—77(f) that unduly limits the mileage expenses recoverable under the Act. The employee contends that the plain language of the statute should be enforced so that it includes mileage costs to and from the employee’s authorized providers to and from wherever the employee initiates her travel.

Section 25—5—77(f) explicitly provides that an employer shall pay mileage costs “to and from medical and rehabilitation providers”; however, § 25—5—77(f) omits any reference as to where travel “to” a provider commences or where travel “from” a provider ends. Because the statute is uncertain on those points, we must construe the statute to determine its meaning. See Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985).

The polestar of statutory construction is legislative intent. Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996). In § 1 of Act No. 92-537, Ala. Acts 1992, adopting the Act, the legislature clarified its intent in amending the former Alabama Workmen’s Compensation Act, Ala. Code 1975, former § 25-5-1 et seq., stating:

“It is the finding and expressed intent of the Legislature that the existence of a fair and affordable workers’ compensation system within the State of Alabama materially contributes to the economic growth and prosperity of the state and all its citizens. It is the further finding of the Legislature that the provision of quality medical services to employees injured in the workplace at a reasonable and fair cost to employers is an important part of a workers’ compensation system.”

(Emphasis added.) The legislature specifically expressed that employers should be responsible for only the “reasonable and fair cost” of medical services. Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1050 n. 9 (Ala.Civ.App.2002). Mileage costs are authorized by § 25-5-77(f), a part of the medical-benefits statute, and are treated by the Alabama Department of Labor as a form of medical expenses. See Ala. Admin. Code (Dep’t of Labor), Rule 480-5-5-.36. Thus, we conclude that the legislature intended that only “reasonable and fair” mileage costs should be recoverable, which would include a requirement that the travel be “reasonably necessary,” as is the case for all other reimbursable medical expenses. See Ala. Code 1975, § 25-5-77(a). In reaching that conclusion, we are mindful that individual statutes enacted as part of a comprehensive law should be construed in light of the evident purposes of the entire act. Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (Civ.App.1970).

The employee next argues that the trial court erred in determining that her travel to and from Valdosta, Georgia, and to and from West Palm Beach, Florida, was not reasonably necessary. That argument attacks the sufficiency of the evidence to support the trial court’s factual findings. Ordinarily, under Ala. Code 1975, § 25-5-81(a)(2), factual findings must be supported by “substantial evidence,” i.e., “’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)). In this case, the parties waived their right to an eviden-tiary hearing, see Total Fire Prot., Inc. v. Jean, 160 So.3d 795, 799 n.2 (Ala.Civ.App.2014) (holding that employee waived right to have controversy over continuation of medical coverage under workers’ compensation settlement decided by evidentiary hearing when employee failed to object to trial court’s use of postjudgment-motion practice to decide controversy), and the trial court decided the case based solely on arguments of counsel, the parties’ motions and briefs, and the exhibits attached thereto, which revealed no dispute as to the material facts. Accordingly, we review the order of the trial court without a presumption of correctness to determine if the trial court misapplied the law to the facts. See Board of Control of the Employees’ Ret. Sys. of Alabama v. Hadden, 854 So.2d 1165, 1169 (Ala.Civ.App.2002); see also Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991) (“[A] trial court’s ‘findings of fact’ that are, in reality, an application of the law to the facts, or that are, stated differently, legal conclusions, do not come within the purview of the ‘presumption of correctness’ standard.”); Matthew’s Masonry Co. v. Aldridge, 25 So.3d 464 (Ala.Civ.App.2009) (application of law to undisputed facts is reviewed de novo without presumption of correctness).

The undisputed evidence in the record shows that the employer initially selected providers a reasonable distance from the Gadsden home of the employee. The employee subsequently undertook employment that necessitated her traveling to and from Valdosta, Georgia, and West Palm Beach, Florida. The employee did not request a change in her providers to accommodate her new work locations but elected to continue using the physician and pharmacy near her Gadsden home. The employee traveled to and from Gadsden regularly as part of her business travel for her new employer, regardless of whether she had an appointment with her authorized treating physician or whether she needed to fill a prescription.

We agree with the employee that, being satisfied with her care, she has a right to continue to use her authorized providers. But we also agree with the trial court that the law limits the employee to mileage expenses only for reasonably necessary travel. Nothing in- the record suggests that the employee could not have scheduled her physician and pharmacy visits to take place while she was in Gadsden. Under the facts of this case, it is unreasonable to require the employer to incur the costs of the employee’s work-related travel. That travel is not reasonably necessary for the employee to obtain her authorized medical care.

The trial court determined that the employee should receive mileage-expense reimbursement only, for the travel between her home in Gadsden and her providers, which the employer stipulated would be reasonable. Section 25-5-77(c) provides, in pertinent part, that “[t]he cost, where rehabilitation requires residence at or near a facility or institution away from the employee’s customary residence, shall include reasonable charges for the employee’s necessary board, lodging, and travel.” Although the legislature did not specify that mileage costs to and from medical and pharmaceutical providers should, in all cases, be measured from the employee’s “customary residence,” under the undisputed facts in this case, the employer should be responsible only for the mileage costs to and from' the employee’s Gadsden home because no other travel can be considered reasonably necessary.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . On appeal, the employee challenges some of the trial court’s factual findings based on an affidavit she submitted to the trial court following the entry of its order. However, the trial court excluded the affidavit when it denied the employee’s second “motion to compel” and did not consider the affidavit when making its findings. Hence, we cannot consider the contents of the affidavit. See Cowen v. M.S. Enters., Inc., 642 So.2d 453, 454 (Ala.1994) (noting that an appellate court “is limited to a review of the record alone, that is, it can consider only the evidence that was before the trial court when it made its ruling”).