Shiver v. Butler County Bd. of Educ.

• Decision Date: 15 December 2000
• Parties: Eustice Myrl SHIVER v. BUTLER COUNTY BOARD OF EDUCATION et al.
• Court: Alabama Court of Civil Appeals

797 So.2d 1086

Eustice Myrl SHIVER v. BUTLER COUNTY BOARD OF EDUCATION et al.

2991088.

Court of Civil Appeals of Alabama.

December 15, 2000.

Certiorari Denied May 11, 2001.

James H. Anderson and William F. Patty of Beers, Anderson, Jackson, Nelson, Hughes & Patty, P.C., Montgomery; and Gregory B. Stein of Stein & Brewster, Mobile, for appellant.

Lewis S. Hamilton of Powell & Hamilton, Greenville, for appellee Butler County Board of Education.

David R. Boyd and Beth Moscarelli of Balch & Bingham, L.L.P., Montgomery, for amicus curiae Alabama Association of School Boards, in support of the appellee Butler County Board of Education.

Alabama Supreme Court 1000595.

MONROE, Judge.

On March 12, 1997, Eustice Myrl Shiver filed a declaratory-judgment action against the Butler County Board of Education, the individual members of the Board, and the superintendent of education for Butler County Schools (the Board, its members, and the superintendent are hereinafter collectively referred to as "the Board").¹ Shiver sought a judgment declaring that he had the right to certain state-mandated salary increases for public education employees, and he asked for an order enforcing that right. After conducting a hearing, the trial court rendered a judgment in favor of the Board, denying all relief requested by Shiver. The trial court also noted that portions of Shiver's claims were barred by § 6-2-38(m), Ala.Code 1975. Shiver appeals.

The record indicates the following facts Shiver retired from the United States Army as a lieutenant colonel in 1990. Since 1991, he has been employed by the Board as a full-time instructor for the Junior Reserve Officer Training Corps ("JROTC"). Although the JROTC program is certified as an Army-sanctioned program, Shiver's employer is the Board, and his supervisor is the principal of Greenville High School. The Board retains the right to fire Shiver from his position as a JROTC instructor. Shiver received tenure for his JROTC position in the 1994-95 school year, and he is certified by the Alabama State Department of Education to teach JROTC programs.

The Army sets a minimum salary for JROTC instructors, which is equal to the difference between active-duty pay and allowances for their rank and their current retirement pay. 10 U.S.C. § 2031 (1998); 32 C.F.R. § 111.7 (1999). The Army reimburses the Board for half of this minimum amount paid to Shiver. Id. The minimum amount fluctuates according to federal increases in Shiver's retirement pay and in the applicable active-duty pay. The Board may choose to pay Shiver more than this minimum amount, but the amount reimbursed by the Army will not be more than half the minimum amount. 32 C.F.R. § 111.7. Despite this split funding, Shiver receives only one paycheck for his services as a JROTC instructor; that check comes from the Board. Shiver's retirement pay is paid separately by the Army.

In 1993, 1994, and 1996, the State of Alabama passed mandatory-pay-raise acts that Shiver contends applied to him. See 1993 Ala. Acts, Act No. 93-646; 1994 Ala. Acts, Act No. 94-474; and 1996 Ala. Acts, Act No. 96-758 (codified at §§ 16-22-10 to -12, Ala.Code 1975). With each Act, the Board applied the raise only to the portion of Shiver's salary that is not reimbursed by the Army. On appeal, Shiver argues that the trial court erred in holding that he was not entitled to have the percentage called for in each Act applied to his total salary, rather than only to that portion of his salary that is not reimbursed by the Army. Additionally, Shiver argues that the trial court erred in holding the applicable statute of limitations to be § 6-2-38(m), Ala.Code 1975, rather than § 6-2-33(3).

We do not consider the statute-of-limitations issue, because it was not properly preserved for appeal. Generally, a reviewing court cannot consider arguments made for the first time on appeal. Rule 4(a)(3), Ala. R.App. P.; CSX Transp., Inc. v. Day, 613 So.2d 883, 884 (Ala.1993). Rather, our review is restricted to the evidence and the arguments considered by the trial court. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Even if a particular issue is raised at the trial level, an appellate court may review that issue only on the theory on which it was tried and on which the judgment was rendered. See Boyd v. Sellers, 431 So.2d 1294, 1296 (Ala.Civ.App.1983). Our Supreme Court stated in Head v. Triangle Constr. Co., 274 Ala. 519, 522, 150 So.2d 389, 392 (1963):

"The general rule is that the appellate court will review only questions that are raised by the record. This rule is premised on the doctrine that the trial court should first have the opportunity to rule on all points. The duty of an appellate court is to review the action of the lower court to ascertain whether or not error was committed; it is not to entertain any issue whatsoever that parties wish to raise. All reviewable matters stem solely from the record. Hamilton Motor Co. v. Cooner, [254 Ala. 422, 47 So.2d 270 (1950)]; Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 [(1960) ]; McElhaney v. Singleton, 270 Ala. 162, 117 So.2d 375 [(1960)]; State v. Moore, 269 Ala. 20, 110 So.2d 635 [(1959)]. And it has been stated by this court that it would review a case only on the same theory that was presented to the trial court. Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So.2d 695 [(1960)]."

Additionally, the last sentence of Rule 4(a)(3), Ala. R.App. P., provides that "[a]ny error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the [Alabama Rules of Civil Procedure]." In explaining this sentence, the Committee Comments on the adoption of Rule 4 state:

"The rule does not ... extend the right to raise for the first time on appeal new matter not presented to the trial court or upon which the trial court had no opportunity to pass.

"The requirement retains the practice that matters raised on appeal must have been presented to the trial court at some stage. Thus matters which can only be raised by post-trial motion must be so asserted. The provision is intended to avoid the necessity of repeated assertions of the same point below. Once ruled on by the trial court in some form, the point is preserved for review on appeal."

After thoroughly reviewing the record, we conclude that Shiver has presented his theory regarding § 6-2-33(3) for the first time on appeal. In its answer to Shiver's declaratory-judgment complaint, the Board alleged that Shiver's claims were barred by the applicable statute of limitations. The parties made no further mention of this issue in the pleadings. However, at the hearing on Shiver's claims, the possible applicability of the two-year statute of limitations in § 6-2-38(m) was mentioned a number of times both by counsel for the Board and by the trial judge. While Shiver's counsel never admitted the applicability of § 6-2-38(m), at no time did he directly deny its applicability or assert a counterargument regarding the 10-year statute of limitations in § 6-2-33(3).² The trial court held that § 6-2-38(m) was the applicable statute of limitations and that some of Shiver's claims were, thus, barred. Shiver filed no postjudgment motions.

The first mention of § 6-2-33(3) is found in Shiver's brief on appeal. Therefore, while the statute-of-limitations issue was before the trial court, Shiver made no argument against the Board's position on that issue. Furthermore, Shiver's theory regarding § 6-2-33(3) was not presented to the trial court, so the trial court had no opportunity to consider this theory and to rule upon it. Consequently, we cannot consider the question whether the court should have applied § 6-2-33(3). We must affirm that portion of the trial court's judgment based on its application of the statute of limitations found at § 6-2-38(m). Applying that statute, the court held that Shiver's claims for back pay based on the 1993 and 1994 pay-raise acts are barred. Therefore, we will consider only his claim for back pay based on the 1996 pay-raise act.

In determining the meaning of a statute, we must look to the plain meaning of the words as written by the Legislature. Our Supreme Court has said:

"`"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."'

Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997)."

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998). (Some citations omitted.)

The 1996 pay-raise act, Act No. 96-758, is codified at § 16-22-12, Ala.Code 1975. That Code section states, at § 16-22-12(a)(1):

"(1) CERTIFICATED PERSONNEL (K-12). For the fiscal year beginning October 1, 1996, and each year thereafter, each cell on the state salary matrix contained in the annual budget act for the public schools shall be increased by four percent (4%) in addition

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