author: COBB, Presiding Justice, for the Court.

text:
    Vanessa HAYES, Individually, and On Behalf of all Wrongful Death Beneficiaries of Carlos Miles, Deceased, and Amicia Miles, Deceased; Vanessa Hayes, as Mother and Next Friend of Cartavious Miles, a Minor; Kathleen Hayes, Individually, and on Behalf of all Wrongful Death Beneficiaries of Cashius Hayes, Deceased, and Kiaria Hayes, Deceased; Kashius Lewis, Individually; and Carlos Miles, Individually v. ENTERGY MISSISSIPPI, INC.
    No. 2001-CA-01755.
    Supreme Court of Mississippi.
    April 29, 2004.

      W. Stephens Cox, Charles M. Merkel, Clarksdale, Charles Victor McTeer, Green-ville, attorneys for appellant.

      John H. Dunbar, Oxford, attorney for appellee.
   COBB, Presiding Justice, for the Court.

¶ 1. In this wrongful death case we consider the plaintiffs’ claims that the trial court erred on a number of issues within the course of litigation, including pre-trial and post-trial motions. Plaintiffs Vanessa Hayes, Kathleen Hayes, Kashius Lewis, and Carlos Miles sued Entergy Mississippi, Inc. (Entergy) and Baker Engineering, asserting that both were negligent in repairing a meter and failing to reconnect the ground wire and for failing to inspect the condition of the ground wire. The case was tried in the Coahoma County Circuit Court and ended with a- hung jury. Before the start of the second trial, the plaintiffs settled with Baker Engineering, the company which contracted with Enter-gy to perform meter reading services in the Jonestown area, beginning in August 1995. Following a change of venue to Bolivar County, the second trial began and ended with a jury verdict in favor of En-tergy. Finding no reversible, error, we affirm.

FACTS

¶ 2. On the evening of March 2, 1997, in Jonestown, Mississippi, the home of Mary Hayes burned and tragically four children died. The children had been put to bed in the front room of the small three-room home. Sometime around 8:40 p.m. lightning struck near the Hayes’ home, and within eight minutes the first call reporting the fire was taken.

¶ 3. Kathleen Hayes, the mother of two of the children, testified that she heard a loud noise and when she opened the door to the front room it was full of fire and she could not get to the children. She was joined outside the house.by Kashius Lewis, the father of her children. He, too, was unable to reach them, and he also testified that the fire was confined to the front of the home. Lloyd Lewis, the fire chief, testified that he arrived within minutes and that no flames were outside of the house. He also testified that he believed the fire began in the corner of the house where the electrical meter was located. The fire marshal for the State of Mississippi was called to investigate. He placed the origin of the fire at the meter and panel box and concluded that it was a lightning-induced fire as a result of a power surge coming in on the service line to the home.

DISCUSSION

¶4. In this appeal, the plaintiffs raise fifteen issues bearing on the rulings of the trial court on venue, the admissibility of evidence and testimony, and the refusal of jury instructions. The plaintiffs argue that the trial court erred in denying: their motion for judgment notwithstanding the verdict, the renewed motion for mistrial, the motion to strike defenses for failure to comply with discovery requests, the motion to request subpoenas be issued to the jurors, and the motion to exclude any evidence of Entergy’s service policy. The plaintiffs also contend that the trial court erred in failing to allow testimony of four of the plaintiffs’ witnesses, refusing to allow the plaintiffs to use a 1999 training manual to impeach a witness for the defense, refusing to grant a jury instruction on the duty of care, and failing to grant the plaintiffs adequate time for closing arguments. Finally, the plaintiffs assert that the trial court erred in granting En-tergy’s motion for change of venue, in granting Entergy’s motion to strike testimony of the jurors and in granting Enter-gy’s motion to take judicial notice of the process by which the service policy of an electric provider is approved by the Public Service Commission.

¶ 5. Of the fifteen issues raised, twelve pertain to the trial court’s evidentiary rulings and after a thorough review of the récord we find no abuse of discretion. The remaining three issues are discussed below. Because we affirm the judgment in favor of Entergy, it is not necessary that we address the issues of Entergy’s cross-appeal.

I. Change of venue.

¶ 6. The standard of review for a change of venue is abuse of discretion. The trial judge’s ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case. Donald v. Amoco Prod. Co., 735 So.2d 161, 181 (Miss.1999); Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998) (quoting Beech v. Leaf River Prods., Inc., 691 So.2d 446 (Miss.1997); Miss. State Highway Comm’n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (1961)).

¶ 7. In the instant case, the trial court’s decision to transfer venue was based on substantial media attention during the first trial, including newspaper reports on evidence that was ruled inadmissible and upon a concern of community bias or intimidation of the jurors, in the event the verdict was in favor of Entergy. The plaintiffs suggest that the trial court should have taken corrective measures to ensure the impartiality of the jury, rather than transferring venue. They cite Hudson v. Taleff, 546 So.2d 359 (Miss.1989). However, that case is not applicable to the present circumstances. Hudson did not address the issue of change of venue, but applied instead to make up of the venire in larger counties and challenges during voir dire. Upon careful consideration, the trial court here determined that the evidence supported the change of venue, and the plaintiffs fail to demonstrate an abuse of discretion in that decision. Finding no error, we affirm the trial court decision to change venue.

II. Discovery Responses.

¶ 8. The plaintiffs argue that the trial court should have sanctioned Entergy for its failure to timely produce and comply with 'discovery. Underlying their argument are certain Entergy responses to interrogatories and requests for production of documents. Late in 1997, the plaintiffs served their first set of interrogatories and request for production of documents. In this first request, Entergy was asked to produce “any and all manuals or instruction material provided to meter readers or service men which in any way describe the purpose of grounding and their duties and obligations with respect to inspecting for grounding of homes serviced by the Defendant.” Entergy responded that there were no such manuals or instruction materials.

¶ 9. Two years after the first interrogatories and request for production, the plaintiffs propounded their fourth set of requests for production of documents and specifically asked that Entergy produce a copy of the training disk for meter readers. Entergy eventually produced the CD ROM, but only after the court entered an agreed protective order. On August 28, 2001, Entergy served supplemental responses to the discovery requests, reporting that there were additional documents, CD ROMs' and videos subject to discovery. The additional materials indicated that there was also an “old meter reader manual” that had been utilized prior to 1999, and that Entergy subsequently refused to produce. On September 13, 2001, the court ordered Entergy to produce the old manual and ordered that it make available an employee, Ed Smith, to give testimony regarding the manual. The plaintiffs subsequently filed a motion to strike Enter-gy’s defenses, alleging what they characterized as discovery abuses, and asked the trial court to enter a judgment of liability in their favor. The motion was denied.

¶ 10. Entergy maintains that, when first served with interrogatories, its response to No. 14 was not in violation of any discovery rules. Entergy contends that the request was so specific as to exclude the “old manual” and further that because Entergy did not have meter readers at the time of the accident that the “old manual” was not responsive to the request. Subsequently, a box of documents was turned over to Entergy by a Baker Engineering employee. It was at this time that Entergy discovered the additional documents, CD ROMs and the training video that were the subject of their supplemental responses.

¶ 11. It is undisputed that the trial court has discretion over discovery matters, and its ruling will be reversed only where there has been an abuse of discretion. Cole v. Buckner, 819 So.2d 527, 530 (Miss.2002) (citing Harkins v. Paschall, 348 So.2d 1019, 1022 (Miss. 1977)). Likewise, the standard of review on the issue of sanctions for alleged discovery violations is “whether the trial court abused its discretion in its decision.” Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990). If there is no intent or willful neglect by the violating party, “the court is not justified in imposing sanctions.” Harkins, 348 So.2d at 1022. There is nothing in the record before this Court to indicate that Entergy acted with intent or was willfully negligent in supplementing its discovery responses. Furthermore, the plaintiffs fail to show that they were prejudiced by Entergy’s supplementation. Finding no abuse of discretion by the trial court, we affirm its rulings on discovery issues.

III. Alleged jury misconduct.

¶ 12. After the verdict was read, the jury was polled, revealing that the verdict was 10-2 in favor of Entergy. After the jury was dismissed, three jurors approached Charles Victor McTeer, an attorney for the plaintiffs, and attempted to talk with him. McTeer directed the jurors to the court and requested that the court conduct a hearing with regard to the purpose of the jurors approaching him. McTeer further requested that the hearing take place before the judge entered the judgment. The judge entered the final judgment and then heard from the three jurors, who asserted that they were pressured into making a decision by other members of the jury who had grown impatient with the deliberation process.

¶ 13. The plaintiffs argue that a post-trial investigation was warranted to determine whether there was jury misconduct. Entergy maintains that under Miss. R. Evid. 606(b) the jurors’ testimony is not competent because it concerned the jurors’ mental processes and emotions and as such should be excluded. Miss. R. Evid. 606(b) states “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other jury’s mind or emotions as influencing him to assent or dissent from the verdict ... or concerning his mental processes in connection therewith ...”

¶ 14. In Gladney v. Clarksdale Beverage Co., 625 So.2d 407 (Miss.1993), this Court held that in the absence of a threshold showing of external influences, an inquiry into the juror verdict is not required. Based on the proffered testimony of Jurors 1, 3, and 12, it is clear that there was no external influence upon the jury. When polled each of the three jurors voted for the verdict. Therefore, there were not sufficient grounds to warrant any investigation of the jury. Each juror was given the opportunity, when polled, to express any dissatisfaction with the verdict and the opportunity to vote without any jury deliberation room pressure. Therefore, the trial court was correct in refusing to allow further investigation of alleged jury misconduct.

CONCLUSION

¶ 15. We hold that the trial court did not abuse its discretion in its evidentiary rulings and in granting a change of venue. Likewise, we find no abuse of discretion or prejudice to the plaintiffs in the trial court’s decision to allow supplementation of discovery and to refuse to sanction En-tergy. Lastly, we find that the plaintiffs failed to make an adequate showing that an investigation of jury misconduct was warranted. Therefore, we affirm the trial court’s judgment.

¶ 16. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ„ CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.


source: Caselaw Access Project

author: BRIDGES, J., for the court.

license: Public Domain

text:
    George R. ROGERS a/k/a George E. Rogers, Appellant, v. Riccardo RAUSA, Appellee.
    No. 2001-CA-01760-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.
    Rehearing Denied Oct. 21, 2003.
    Certiorari Denied April 29, 2004.

      Michael Verdier Cory, Lanny R. Pace, Jackson, for appellant.
    William Joseph Kerley, John G. Clark, Jackson, for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J., for the court.

¶ 1. Riccardo Rausa filed a complaint against George Rogers, on September 4, 1998, alleging that he suffered permanent injuries and damages and future medical bills as a result of a motor vehicle collision which occurred on May 21, 1997. The case was tried before a jury in the Hinds County Circuit Court on the issue of damages only. The jury returned a verdict in favor Rausa in the amount of $100,000. It is from that judgment that Rogers now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING DR. WILLIAM KNIGHT TO TESTIFY CONCERNING FUTURE MEDICAL BILLS.

III. WHETHER THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE PLAINTIFF’S ALLEGED FUTURE MEDICAL DAMAGES WHEN THEY WERE NOT INCLUDED IN THE PRETRIAL ORDER.

IV. WHETHER DR. KNIGHT’S TESTIMONY WAS UNRELIABLE AND SHOULD BE DISREGARDED.

FACTS

¶ 2. Neither of the briefs submitted in this case contained a statement of facts. However, this appeal arises from an automobile collision between the parties. On the first day of trial, the parties stipulated to the defendant’s admission of liability and only the issue of damages was submitted to the jury for resolution.

ANALYSIS

I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 3. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Wal-Mart Stores, Inc., v. Frierson, 818 So.2d 1135, 1143(¶ 16) (Miss.2002). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id.

¶ 4. After the collision, Rausa went to his family physician. He was then referred to a specialist, Dr. William Knight, a board certified physiatrist. Dr. Knight stated that Rausa’s MRI scan revealed a disc bulge in the L4-5 disc protruding in a backwards direction. On May 12, 2000, Dr. Knight did another MRI which showed a slight shift to the left of the disc bulge. At trial, Dr. Knight testified that the conditions for which he treated Rausa were caused by the auto collision and it was Dr. Knight’s opinion that Rausa’s position of being twisted, looking back at the vehicle that struck the right rear of his automobile was consistent with his medical findings.

¶ 5. Dr. Knight also testified that, as to future medical expenses, Rausa would probably require injection therapy from one to four times a year, physical therapy for one to two weeks a year, and medications for the remainder of his life. Dr. Knight clarified on redirect that there was no evidence that anything other than the motor vehicle collision caused Rausa’s back problems.

¶ 6. Rausa also testified at trial and stated that when he had exacerbations they would last a day to a week before he returned to his pre-exacerbation condition. He stated that his normal condition on an everyday basis included constant tightness in his back and sometimes throbbing pain.

¶ 7. At the time of the trial, Rausa had incurred past medical expenses in the amount of $8,356.59 and lost wages of $2,400 according to the medical bill summary which was admitted into evidence. The most conservative estimate of future medical expenses would be slightly over $1,000 a year for 44.3 years. In the record there was testimony, not only concerning permanent injuries, physical pain and suffering, but also emotional distress, future disability, and loss of enjoyment of life.

¶ 8. It is clear from the record that there was sufficient evidence to support the jury’s verdict; therefore, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING DR. WILLIAM KNIGHT TO TESTIFY CONCERNING FUTURE MEDICAL BILLS.

¶ 9. Rogers argues that until one week before trial he was defending a claim for approximately $8,000 in past medical expenses and by mid-day on the Friday before trial, he was instead defending claims for past and future medical expenses in excess of $100,000 without any reasonable opportunity to respond.

¶ 10. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss. 2002). In the case of Peterson v. Ladner, the plaintiff designated a medical expert to testify that the plaintiff suffered from a permanent injury which would render him unable to return to his previous occupation. Peterson v. Ladner, 785 So.2d 290, 295(1118) (Miss.Ct.App.2000). In that ease, we discussed whether or not the plaintiff put the defendant on fair notice of the disputed testimony of the physician and held that where there is no inconsistent testimony and as long as the defendant has notice of the subject matter, then fair notice was given. Id at (¶ 24). Aso in the Peterson case, this Court cited the case of Illinois Central R.R. Co. v. Gandy, 750 So.2d 527, 532 (Miss.1999), where the Mississippi Supreme Court held that as long as the opposing party had adequate notice of the expert witness and the subject of his opinion testimony, the trial court does not have to grant a motion for continuance. Id. at (¶ 23).

¶ 11. Rogers was first given notice that Rausa had a permanent injury and was going to require medical treatment for the remainder of his life before a lawsuit was ever filed in a letter sent to Rogers’s insurance carrier dated August 20, 1998. A copy of this letter was even attached to Rausa’s response to Rogers’s motion for a continuance. The letter advised Rogers that Rausa was released with permanent restrictions in his work capacity, that he had a 5% whole person permanent impairment rating, that Rausa would need to be seen on a yearly basis for re-evaluation for monitoring of medication and for refills, and that his future medical could be in excess of $20,000.

¶ 12. In addition, Rogers was given medical authorization from Rausa to obtain all medical records directly from Rausa’s healthcare providers, and in particular Dr. Knight. Rausa even wrote to each provider advising them to cooperate with Rogers’s counsel in obtaining the necessary records. Rausa provided Rogers with the opportunity to take medical depositions of any of Rausa’s healthcare providers; however, this opportunity was declined by Rogers.

¶ 13. Rausa continued to provide Rogers with additional medical records of Dr. Knight and his office, Gulf States Rehabilitation Associates. Rogers subpoenaed the records from Gulf States Rehabilitation Associates, which included the records of Drs. Knight, Oliveros, and Katz.

¶ 14. As is evident from the aforementioned facts in evidence, Rogers should have been aware that the subject of future medicals would be an issue throughout this litigation. The evidence shows that through the pre-suit letter to the insurance carrier, the complaint, in discovery answers, and in the medical records obtained, Rogers should have been aware that notice was given as to future medicals. We find that Rogers chose to disregard and/or ignore that he has been on notice of Rausa’s claim for future medicals.

III. WHETHER THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE PLAINTIFF’S ALLEGED FUTURE MEDICAL DAMAGES WHEN THEY WERE NOT INCLUDED IN THE PRETRIAL ORDER.

¶ 15. Rogers asserts that since the pretrial order did not specifically identify the type of medical bills that were being sought, i.e., past or future, then Rausa should be barred from presenting evidence of future medical losses.

¶ 16. “If a claim or issue is omitted from the [pre-trial] order, it is waived, even if it appeared in the complaint.” Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998).

¶ 17. The pre-trial order stated that as a result of the collision, Rausa suffered injuries and damages including medical bills, lost wages, pain and suffering, loss of enjoyment of life, permanent injury, and other damages. Just because the pre-trial order specifically acknowledged that Rau-sa suffered from a permanent injury and suffered other damages, certainly those damages were not limited to only those that had been incurred prior to the date of the lawsuit. There is absolutely no indication that the medical bills did not include past, present, and/or future medical bills. For the reasons given in the foregoing discussion, this Court finds that Rogers was aware of any future medicals. Therefore, we find that the pre-trial order did not limit Rausa to seek only those items of damages which had been incurred as of the date of the trial. This issue is also without merit.

IV. WHETHER DR. KNIGHT’S TESTIMONY WAS UNRELIABLE AND SHOULD BE DISREGARDED.

¶ 18. From the briefs submitted, it is not clear whether the appellant’s argument concerns the relevance of the doctor’s testimony or his expert qualifications. Regardless of which issue was intended, the standard of review remains abuse of discretion. “Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion.” Crawford v. State, 754 So.2d 1211, 1215(¶ 7) (Miss.2000). “Unless his or her judicial discretion is abused, this Court will not reverse his or her ruling. The qualifications of an expert in fields of scientific knowledge is left to the sound discretion of the trial judge.” Id.

¶ 19. However, it should be noted that this Court sits to review alleged errors committed at the trial level and not to adjudicate the merits of claims not previously presented to the trial court for resolution. Denson v. State, 746 So.2d 927, 932(¶ 17) (Miss.Ct.App.1999). At trial, Rogers never objected to any of the testimony given by Dr. Knight on the basis that his opinions were unreliable or lacked scientific or factual basis. Additionally, Rogers did not claim in his motion for JNOV or new trial that Dr. Knight’s testimony and opinions were erroneously admitted because they were unreliable or lacked scientific or factual basis. Because Rogers failed to preserve the issue at the trial court level, we find that he is procedurally barred from raising the issue on appeal.

¶ 20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: CHANDLER, J., for the Court.

text:
    Margie Nell FERRO, Appellant v. Robert Charles FERRO, Appellee.
    No. 2002-CA-01774-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied April 13, 2004.

      Joseph R. Meadows, Gulfport, attorney for appellant.
    Dean Holleman, Gulfport, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. This is an appeal from a judgment of divorce entered in the Chancery Court of Hancock County, Mississippi dissolving the marriage of Margie Ferro and Charles Ferro. Margie Ferro has appealed the following issues:

(1) WHETHER THE TRIAL COURT ERRED IN GRANTING THE AP-PELLEE A DIVORCE ON THE GROUNDS OF CRUEL AND INHUMAN TREATMENT.
(2) WHETHER THE TRIAL COURT ERRED IN EQUITABLY DIVIDING THE ASSETS OF THE PARTIES.
(3) WHETHER THE TRIAL COURT ERRED IN ITS AWARD OF REHABILITATIVE ALIMONY AFTER MAKING AN EQUITABLE DIVISION OF THE MARITAL ASSETS.
(4) WHETHER THE TRIAL COURT ERRED IN DENYING BOTH THE APPELLANT AND APPELLEE ATTORNEYS’ FEES AFTER MAKING AN EQUITABLE DIVISION OF THE MARITAL ASSETS.

¶ 2. Finding no error, we affirm the ruling of the trial court.

FACTS

¶ 3. Robert Charles Ferro and Margie Nell Ferro were married on August 12, 1992, in Greenwood, Mississippi. Robert was an air traffic controller for the Federal Aviation Agency working at the Greenwood/Leflore Airport. He was also in the Air National Guard with twenty-two years of service. Prior to his marriage to Margie, Robert had obtained a federal license to sell guns and was operating a business known as the Cop Shop. Each weekend, Robert would travel to gun shows and set up booths to sell various types of guns and accessories. Margie began assisting Robert with the gun shows shortly before their marriage. Margie worked at an insurance company as an agent and secretary.

¶ 4. Both Robert and Margie had previously been married and each brought separate non-marital property into the marriage. Margie owned a three bedroom home located in Sidon, Mississippi and a three bedroom trader in Gore Springs, Mississippi. She also owned forty acres of land in Holmes County. Robert had an inventory of guns and gun accessories valued at five thousand dollars. In December 1993, Robert retired from the Air National Guard. Robert’s marriage to Margie covered fifteen months of that service. In 1994, Robert retired from the Federal Aviation Agency. The parties were married for twenty-two months of that service.

¶ 5. Following his retirement from the FAA and the Air Guard, Robert continued to participate in gun shows and Margie would assist him. In 1995, Robert and Margie moved to Hancock County, where they lived together until their first separation in January of 2000. Robert’s mother lived with the couple most of the time while they lived in Hancock County. She contributed money to the household and loaned them approximately eleven thousand dollars to build a shop. In 1998, Margie and Robert’s mother had a disagreement and Robert moved his mother to Florida.

116. Margie had three sons from a previous marriage. In 1999, Margie’s thirty-six year old son, Eugene Moss, moved into the marital home. Eugene had been charged with grand larceny in Michigan and decided to move to Mississippi. Robert agreed to let Eugene move into their home in order “to get himself squared away.” Two months later Eugene moved to Canada but returned shortly thereafter and resumed living with the couple.

¶ 7. Robert asserts that he had no say or control as to whether Eugene continued to live at the marital home. According to Robert, Eugene did not actively seek employment and spent most of the days drinking alcohol. Margie refused to make Eugene leave the home. She provided Eugene with money for daily expenditures out of the joint funds of the couple. On January 1, 2000, Robert and Margie had an argument. The next day, Eugene attacked Robert and physically assaulted him. The altercation occurred when Robert returned home from church and found Eugene in his work shop drunk. Eugene accused Robert of hitting his mother and immediately began attacking him.

¶ 8. Robert called the Hancock County Sheriffs Department and had Eugene arrested. Robert filed criminal charges against Eugene. Robert told Margie that Eugene had to move out of the house, but she refused to force Eugene to move. Margie told Robert that she would file criminal charges against him if he did not drop the charges against her son, Eugene. Robert refused and Margie immediately filed charges against Robert for simple assault.

¶ 9. Robert filed a complaint for divorce on January 5, 2000, and a temporary hearing was held January 28, 2000. At the hearing, Robert agreed to give Eugene eleven hundred dollars for a rental apartment if he would move out of the home. Margie also allowed Eugene to use a 1985 Chevrolet truck.

¶ 10. Eugene pled guilty to simple assault. Robert was subsequently found not guilty on the simple assault charge Margie filed against him.

¶ 11. Robert and Margie decided to try to make the marriage work so Robert moved back into the marital home. Yet, in August 2000, Eugene moved back into the marital home over Robert’s objections and notwithstanding the history of violence between the two. Margie told Robert the living arrangement was only temporary. Eugene made use of the household’s contents and used Robert’s tools and work shop never returning tools to their proper place. The marital problems continued to mount, and the couple sought counseling to no avail. Robert’s blood pressure began to escalate after Eugene moved into the home. Robert had never suffered from high blood pressure in the past. Robert said he felt intimidated in his own home and received no understanding or consideration from Margie. She always took Eugene’s side in all the disagreements, and she refused to make Eugene move out of the marital abode.

¶ 12. Due to the tension in the marriage caused by Eugene, Robert proceeded with the divorce. Three days prior to the chancery court’s entering its temporary order on November 15, 2001, Eugene wrecked and totaled one of the parties’ cars that was uninsured. Eugene received serious injuries in the car wreck. He continued to live in the marital home with Margie caring for him. Eugene had no medical insurance, and Margie insisted that Eugene continue to live with her until his disability benefits were approved.

¶ 13. After a three day trial, the chancery court entered an order granting Robert a divorce on the ground of habitual cruel and inhuman treatment. The court divided the parties’ assets, and awarded Margie rehabilitative alimony for a period of a year.

STANDARD OF REVIEW

¶ 14. This Court reviews the facts of a divorce decree in the light most favorable to the appellee. Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000). In domestic relations matters, this Court will not reverse the findings of a chancellor unless the findings are manifestly wrong, clearly erroneous, or if the chancellor applied an incorrect legal standard. Henderson v. Henderson, 757 So.2d 285, 289-90 (¶ 19) (Miss.2000). We may reverse a chancellor’s findings of fact only where there is no “substantial, credible evidence in the record” to justify the findings. Id.

LAW AND ANALYSIS

1. WHETHER THE TRIAL COURT ERRED IN GRANTING THE AP-PELLEE A DIVORCE ON THE GROUNDS OF CRUEL AND INHUMAN TREATMENT.

¶ 15. Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance. Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993); Gardner v. Gardner, 618 So.2d 108, 113-14 (Miss.1993). A preponderance of the evidence, rather than clear and convincing evidence may be used to grant á divorce on the ground of habitual cruel and inhuman treatment. Smith v. Smith, 614 So.2d 394, 396 (Miss.1993). A subjective standard is used to determine the effect of the conduct on the offended spouse as, opposed to a normative standard. Morris v. Morris, 783 So.2d 681, 688 (¶ 22) (Miss.2001).

¶ 16. Margie allowed her thirty-six year old adult son to live in the marital abode for extended periods. She insisted that Eugene continue to live with her in the marital home over the objections of Robert. Eugene has made use of the couple’s household contents, automobiles and Robert’s work shop. Eugene has even gone so far as to physically attack and injure Robert in his own home. Eugene pled guilty to the assault charge stemming from the attack. Margie responded to the attack by filing charges against Robert, of which he was found not guilty at trial.

¶ 17. Robert ' provided Eugene with money to get a rental apartment of his own in an effort to resume his marriage with Margie without Eugene’s interference. Undaunted, Eugene moved back into the marital home two months later. Robert continued to object to Eugene’s presence in the marital home but Margie refused to make Eugene move.

¶ 18. Eugene wrecked and totally destroyed one the parties’ automobiles. Margie continued to refuse to force Eugene to leave the marital home. There was testimony by Ronald and Brenda Deb-bell, Mends of the couple, of the deteriorated marital relationship. There was testimony that Margie was quick-tempered and often made accusatory remarks to Robert. Neither Ronald nor Brenda observed Robert mistreating Margie verbally or physically.

¶ 19. This Court is of the opinion that Robert should not have to endure the presence of Margie’s thirty-six year old son in the marital home. Eugene’s presence has placed Robert in reasonable apprehension of life, limb and health. Margie’s disregard for Robert’s safety and well being is nothing short of brutal. Margie’s conduct in persisting that Eugene continue living in the marital abode was so offending to the marital relationship and well-being of Robert that he was left no choice but to dissolve the marriage. Although Eugene was the person who inflicted physical injury on Robert, the conduct of Margie destroyed the sanctity of the marital relationship when she refused to make Eugene leave the marital home. The evidence is sufficient to find that Robert met his burden of proof necessary to establish grounds for a divorce based on habitual cruel and inhuman treatment. The chancellor did not abuse his discretion in granting the divorce. This assignment of error is without merit.

(2) WHETHER THE TRIAL COURT ERRED IN EQUITABLY DIVIDING ’ THE ASSETS OF THE PARTIES.

¶ 20. An appellate court’s scope of review in domestic relations eases is limited, and an appellate court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Johnson v. Johnson, 823 So.2d 1156, 1159(¶ 7) (Miss.2002) (citing Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). Furthermore, the chancellor’s findings of fact will not be reversed if there is any substantial credible evidence which supports them. Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss. 1986).

¶ 21. Margie contends that the lower court correctly classified the Cop Shop as a marital asset but committed error in setting the value of the business at fifty-thousand dollars. Additionally, Margie argues that the trial court committed error in its holding which allowed her to occupy the home for a period of six months after which time she was assessed rent at the rate of eight hundred dollars a month to be applied against her interest in the home. Margie further argues that the trial court erred in the division of the couple’s motor homes.

¶ 22. The Ferguson guidelines are eight considerations that the Mississippi Supreme Court adopted for chancery courts to use when they equitably divide marital property. Those guidelines include:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage, and
e. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets;
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise;
3. The market value and the emotional value of the assets subject to distribution;
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity, and
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 23. The law of this state requires equitable, not equal, distribution of the marital estate. Peterson v. Peterson, 797 So.2d 876, 880 (¶ 17) (Miss.2001). Equitable division is the fair determination of the division of marital property based on both spouses’ contributions during the marriage. Traxler v. Traxler, 730 So.2d 1098, 1102 (¶ 21) (Miss.1998).

¶ 24. The trial court concluded that the value of the Cop Shop was fifty thousand dollars and made an equitable distribution of the value by awarding Margie one-third of the value and Robert two-thirds. Robert and Margie had full time jobs at the time of the marriage. Prior to the marriage, Robert had acquired a license to sell guns and was operating a business known as the Cop Shop. Robert valued the assets of the Cop Shop at five thousand dollars. During the marriage, both Robert and Margie worked at gun shows. Margie asserted that she was fired from her job at the insurance company because she left work early on Fridays to set up for gun shows.

¶ 25. After the parties’ final separation in May 2001, Robert sold the Cop Shop inventory for twenty-five thousand dollars although there was a temporary court order prohibiting the sale of any marital assets. Margie sold a gold coin collection for four thousand one hundred dollars in spite of the temporary court order restraining the dissipation of marital assets. Margie alleged the value of the Cop Shop to be two hundred thousand dollars but provided no documentation to support the assertion.

¶ 26. After analyzing the Ferguson factors, the chancellor rejected both of the parties’ valuations of the Cop Shop. The chancellor estimated the Cop Shop to be worth fifty thousand dollars and awarded Margie a one-third interest which was approximately seventeen thousand dollars. It should also be noted that Margie owns non-marital real property with improvements valued at fifty-eight thousand dollars. The chancellor’s recitation of facts after the discussion of the Ferguson factors was sufficient. This court cannot say the chancellor abused his discretion, was manifestly wrong, was clearly erroneous or applied an erroneous legal standard.

¶ 27. Margie argues the trial court’s order regarding the sale of the parties’ homestead is unworkable. The trial court ruled that Margie could occupy the home for six months and then be assessed rent at the rate of eight hundred dollars per month against her interest. Margie complains that the homestead needs repairs in order to enhance the marketability of the home.

¶ 28. The value of the homestead was set at one hundred fifty-two thousand dollars. There was no mortgage against the property. The trial court ordered the proceeds from the sell of the home to be split and that both parties would do everything to protect the investment. Robert was required by the court to pay all of the utilities during this initial six month period. If Robert chose to move into the homestead when Margie vacated the home then he would be charged the same rental payment that was to be paid by Margie. The chancellor did not abuse his discretion regarding the use, occupancy and sale of the parties’ homestead.

¶ 29. Margie also argues the trial court erred in awarding Robert the 1973 motor home. The 1977 motor home that was awarded to Margie needed repairs. The court noted that the 1973 motor home was the one Robert used as his home during the periods of separation from Margie. The trial court did not abuse its discretion in awarding Robert the 1973 motor home.

(3) WHETHER THE TRIAL COURT ERRED IN ITS AWARD OF REHABILITATIVE ALIMONY AFTER MAKING AN EQUITABLE DIVISION OF THE MARITAL ASSETS.

¶ 30. We now turn to the issue of whether the chancellor erred in his award of rehabilitative alimony to Margie. A limited standard of review is used to evaluate a chancellor’s decision. “The chancellor’s decision on alimony will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error.” Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992) (citing McNally v. McNally, 516 So.2d 499, 501 (Miss.1987)). Additionally, all awards to a spouse must be considered together when deciding whether they are equitable and fair. Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995) (citing Ferguson, 639 So.2d at 929).

¶ 31. The guidelines to be used in determining whether alimony is appropriate in a particular case were established in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). They are: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed just and equitable. Armstrong, 618 So.2d at 1280.

¶ 32. While the chancellor did not consider all of the Armstrong factors, his decision on alimony cannot be said to be against the overwhelming weight of the evidence. Unlike property division, an on-the-record analysis of the Armstrong factors is not required. Thompson v. Thompson, 816 So.2d 417, 420(¶ 9) (Miss.Ct.App. 2002).

¶ 33. Margie asserts that the award of rehabilitative alimony for a year in the amount of five hundred dollars per month is error. She argues that she has numerous physical ailments. Robert’s income is derived from his FAA and National Guard retirements. He also has a note receivable from the sale of the Cop Shop. Robert has a monthly gross income of three thousand seven hundred fifty four dollars. However, three thousand one hundred fifty-four of this amount is derived from his retirement of which the court has awarded Margie a portion. Aside from his retirement, Robert has six hundred dollars of income a month. Robert’s monthly expenses include rent, alimony, car payment and health insurance for Margie.

¶ 34. Margie is fifty-nine years of age. She has skills as an insurance agent and computer operator. The evidence produced at trial did not support any medical disability that would inhibit her from gainful employment. Furthermore, many of the expenses claimed are a result of supporting a household of two persons, Margie and her thirty-six year old son, Eugene.

¶ 35. The Ferro homestead was appraised at one hundred fifty-two thousand dollars and had no mortgage. Margie’s equitable share from the sale of the homestead would be seventy-six thousand dollars which does not include the value of her other real property and the forty acres of land in Holmes County that she owns. Margie is to receive approximately seventeen thousand dollars for her marital interest in the Cop Shop. The trial court also granted Margie twenty thousand dollars in proceeds from the sale of a boat and twenty thousand in cash as her share of the individual retirement accounts.

¶ 36. In compliance with our standard of review, we hold that the chancellor’s findings of fact were not against the overwhelming weight of the evidence. The chancellor clearly examined the income tax returns and financial declarations of the parties. The findings of fact address the Armstrong factors, indicating that the chancellor took them into consideration in determining whether and how much alimony Margie should receive. The chancellor considered Margie’s need for financial security as well as her earning capacity. We therefore affirm the chancellor’s holding with regard to alimony.

(4) WHETHER THE TRIAL COURT ERRED IN DENYING BOTH THE APPELLANT AND APPELLEE ATTORNEYS FEES AFTER MAKING AN EQUITABLE DIVISION OF THE MARITAL ASSETS.

¶ 37. Margie and Robert argue the chancellor abused his discretion in denying them attorney’s fees. An award of attorney’s fees is generally left to the discretion of the chancellor. Gray v. Pearson, 797 So.2d 387 (¶ 34) (Miss.Ct.App. 2001). In assessing the appropriateness of an award, the chancellor should consider the relative financial ability of the parties. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). Furthermore, the chancellor’s findings on the issue of attorney’s fees will not be disturbed unless manifestly wrong. Cumberland v. Cumberland, 564 So.2d 839, 844 (Miss.1990).

¶ 38. The chancellor noted that neither Robert nor Margie had money to pay their attorney’s fees. However, the trial court found each party had sufficient assets from which to pay their respective fees. Therefore, the chancellor did not abuse his discretion in denying attorney’s fees.

¶ 39. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.


author: LEE, J.,

text:
    Curtis CURRY, Appellant, v. Elizabeth C. WALLS, Johnnie E. Walls and Walls Law Firm, Appellees.
    No. 2003-CP-00485-COA.
    Court of Appeals of Mississippi.
    April 20, 2004.
    Curtis Curry, Appellant, pro se.
    Johnnie E. Walls, Greenville, attorney for appellee.
    Before McMILLIN, C.J., LEE and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On January 26, 1994, Curtis Curry filed a complaint in the Circuit Court of Coahoma County against Johnnie E. Walls and Elizabeth C. Walls for fraud and embezzlement. Curry later amended the complaint on March 16, 1994, to include the claim of conversion. On July 3, 1996, Curry filed a motion for trial setting and, on December 2, 1996, filed a motion for a copy of the record. The court clerk filed a motion to dismiss for failure to prosecute on November 3, 1997. The trial judge dismissed the case without prejudice on December 4,1997.

¶ 2. On February 7, 1998, Curry filed a petition for writ of mandamus or for an order to show cause with the supreme court, which was denied on March 30, 1998. The supreme court dismissed the petition for writ of mandamus on May 11, 2000. Curry filed a motion for reconsideration on March 12, 2002, and on December 27, 2002, a motion to amend the motion for reconsideration. The circuit court denied Curry’s motions on February 6, 2003. Curry now appeals to this Court asserting that the trial court abused its discretion in sustaining the clerk’s motion to dismiss the case for want of prosecution; and that the motion for reconsideration should have been granted because the initial order dismissing the case was void.

DISCUSSION OF ISSUES

¶ 3. According to the supreme court in Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990), “[t]he power to dismiss for failure to prosecute is inherent in any court of law or equity, being a means necessary to the orderly expedition of justice and the court’s control of its own docket.” Furthermore, we will not disturb a trial court’s finding on appeal unless it is manifestly wrong. Id. Curry contends that his letter requesting a copy of the court file dated December 2, 1996, was sufficient to constitute an action of record. Curry also argues that the clerk misfiled his motion of December 1,1997, seeking an extension of time and, as a result, the judgment should be set aside. However, there is no record of the motion in the clerk’s papers. The only copy of the motion was attached by Curry to his petition for writ of mandamus, both of which were stamped as filed on February 7,1998.

¶ 4. Mississippi Rule of Civil Procedure 41(d) states in part the following:

.... In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.

¶ 5. The clerk’s motion to dismiss stated that Curry was given written notice of the filing and that he had thirty days to take action of record. The trial court’s order dismissing Curry’s case on December 4, 1997, stated that “no action of record has been taken during the preceding twelve months, nor any application made to the Court and good cause shown why this case should not be dismissed.”

¶ 6. Furthermore, the trial court stated, in its order dated February 6, 2003, that Curry ultimately wanted his case reconsidered and set for trial. However, the trial court found that Curry’s motion for reconsideration was void as untimely filed. According to Mississippi Rule of Civil Procedure 59(e) a motion for reconsideration is treated as a motion to amend judgment and must be filed within ten days from the entry of judgment sought to be amended. Curry’s case was dismissed in December 1997 and his motion for reconsideration was filed over four years later on March 12, 2002.

¶ 7. The trial court further stated that:
Even if the Motion for Reconsideration were timely filed, the case was properly dismissed for failure to prosecute. In denying and dismissing the Petition for Writ of Mandamus, the Supreme Court of Mississippi found that this Court had the authority and discretion to control its own docket. Plaintiffs letter filed December 2, 1996 requesting a copy of the court file did not constitute an “action of record” within the meaning of Rule 41(d) of the Mississippi Rules of Civil Procedure and did not “hasten the suit to judgment.” See Wilson v. Freeland, 773 So.2d 305 (¶¶ 13, 14) (Miss. 2000).

The trial court also found that the motion should still be denied if it were considered a motion for relief from judgment under Mississippi Rule of Civil Procedure Rule 60, as none of the grounds for a Rule 60 motion were present. The grounds for relief include clerical mistakes; fraud, misrepresentation, or other misconduct of an adverse party; accident or mistake; newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); the judgment is void; the judgment has been satisfied, released, or discharged, or a pri- or judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or any other reason justifying relief from the judgment.

¶ 8. We cannot find that the trial court was manifestly wrong in dismissing Curry’s case for want of prosecution; thus, we affirm.

¶ 9. THE JUDGMENT OF THE COA-HOMA COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.


text:
    Lucille HARBIN, Appellant v. CHASE MANHATTAN BANK, as Trustee, Appellee.
    No. 2002-CP-02033-COA.
    Court of Appeals of Mississippi.
    April 20, 2004.

      Lucille Harbin, Appellant, pro se.
    Gregory Moreau Johnston, Jackson, Lem G. Adams, Bradley P. Jones, Brandon, attorneys for appellee.
    Before McMILLIN, C.J., LEE and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On December 26, 1998, Lucille Harbin executed a deed of trust in favor of the Money Store on her house located at 808 Campbell Street in Winona, Mississippi. The deed was in the amount of $28,000 and was signed by Harbin before a notary public. The deed was recorded in the land records of the Chancery Clerk of Montgomery County shortly thereafter. On August 27, 2001, the deed of trust was assigned to Chase Manhattan Bank by the Money Store and recorded in the land records of Montgomery County. Lem Adams, III, was designated as trustee by Chase Manhattan.

¶ 2. In April 2002, Harbin became delinquent in her payments and Adams, as trustee for Chase Manhattan, initiated foreclosure proceedings against Harbin. On May 3, 2002, the property in question was offered for sale and Chase Manhattan, with a bid of $19,500, was the highest bidder. Adams executed a trustee’s deed conveying the property to Chase Manhattan. On July 8, 2002, the Montgomery County Justice Court rendered a judgment in favor of Chase Manhattan, which Harbin later appealed to the Circuit Court of Montgomery County. After a hearing on November 18, 2002, the trial court entered a judgment in favor of Chase Manhattan, finding it to be the rightful owner of the property in question.

¶ 3. Harbin then wrote a letter to the supreme court, which was treated as a notice of appeal. After a number of extensions were obtained by Harbin, Chase Manhattan filed motions to dismiss and for sanctions on August 25, 2003. Harbin then filed a letter which was entitled “motion for a hearing.” By order dated September 19, 2003, the supreme court accepted Harbin’s letter as her brief, but denied her motion for a hearing and denied Chase Manhattan’s motions to dismiss and for sanctions. The case was assigned to this Court by the supreme court.

¶ 4. Harbin’s issues on appeal are as follows: she was deprived of her right to a fair hearing, she never signed the deed of trust, the court lacked jurisdiction, the deed was fraudulently acquired, the justice court judge was not competent to hear the case, and a mistake was made in the contract.

DISCUSSION OF ISSUES

¶ 5. When a trial judge sits without a jury, our standard of review requires that we regard his findings with the same deference as those made by a chancellor. Par Industries, Inc. v. Target Container Co., 708 So.2d 44(¶ 4) (Miss.1998). Furthermore, this Court will not disturb a trial judge’s factual determinations where there is substantial evidence in the record to support those findings. Id. “This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Ezell v. Williams, 724 So.2d 396(¶ 4) (Miss.1998).

¶ 6. First, we note that almost every issue Harbin raises in her brief was not raised before the trial court. It is well-settled that an issue not raised before the lower court and only raised for the first time on appeal is deemed waived and procedurally barred. Mississippi Dept. of Transp. v. Trosclair, 851 So.2d 408(¶ 19) (Miss.Ct.App.2003). As the only issue raised at the trial level concerned a mistake in the description of property on the deed of trust, we decline to address the other issues. Regardless of this bar, however, we do find that Harbin has failed to produce any evidence in the record or otherwise to support her contentions that she was deprived of a right to a fair trial; she never signed the deed of trust; the trial judge did not have jurisdiction over the matter; there was a fraudulent acquisition of the deed; and the justice court judge was incompetent to hear the matter. We are not persuaded by mere assertions which are unsupported by the record.

¶ 7. At the November 18, 2002, hearing, the trial judge stated that he had discussed the matter and the issues with Harbin and Chase Manhattan’s attorney in his chambers prior to the hearing. The trial judge stated Harbin’s contention that the deed was erroneous was a matter for the chancery court. The trial judge further stated that the only issue he could decide was whether there was a valid foreclosure sale. After finding that the foreclosure sale was valid, the trial judge addressed Harbin, asking her if she understood his ruling. Harbin responded affirmatively. The trial judge found the sale of the property to be valid “unless that sale is set aside by some other court, that being Chancery Court.” We find that there was substantial evidence for the trial judge to find that the foreclosure sale was valid. Furthermore, Harbin had the chance to respond on the record, but she chose not to. We fail to find error in the trial judge’s ruling; thus, we affirm.

¶ 8. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: MOORE, Chief Justice.

text:
    Jerry E. FLANNIGAN and Charlotte Flannigan, as guardians of Jenna Erin-Lea Flannigan and personal representatives of the estate of Jeffrey Earl Flannigan, deceased v. Lynn JORDAN.
    1012355.
    Supreme Court of Alabama.
    July 3, 2003.
    Robert E. Sasser, Joel Connally, and R. Brian Tipton of Sasser, Littleton & Stid-ham, P.C., Montgomery, for appellants.
    J. Cole Portis and Kendall C. Dunson of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   MOORE, Chief Justice.

' Jerry E. and Charlotte Flannigan filed a petition for permission to appeal the Montgomery Circuit Court’s denial of their motion to dismiss an appeal to that court from the Montgomery Probate Court. This Court granted the petition to address one legal issue: Whether in a case involving the removal by the probate court of an administrator from a decedent’s estate, the seven-day appeal period of § 12-22-21(3), Ala.Code 1975, can be tolled by a “motion for reconsideration” filed after the seven days have expired. We reverse the judgment of the trial court and remand the case for that court to dismiss Jordan’s appeal.

Facts

On November 9, 2001, Jeffrey Flannigan was killed on the job while working as a high-voltage electrician in Mississippi. On that same day, the appellants, Jeffrey’s parents, Jerry and Charlotte Flannigan (“the Flannigans”), were appointed guardians of Jeffrey’s only daughter, Erin-Lea Flannigan, by the Circuit Court of Escam-bia County, Florida, where the Flannigans and Erin-Lea reside. On November 10, 2001, Lynn Jordan petitioned to be appointed as administratrix of Jeffrey’s estate on the basis that she was Jeffrey’s common-law wife at the time of his death. The Montgomery County Probate Court granted letters of administration to Jordan on November 19, 2001. On November 30, 2001, Jordan filed a civil action on Jeffrey’s behalf in Mississippi against Jeffrey’s employer seeking damages for Jeffrey’s death.

On February 1, 2002, the Flannigans, as guardians of Erin-Lea Flannigan and as personal representatives of Jeffrey’s estate, petitioned the Montgomery County Probate Court for the removal of Jordan as administratrix of Jeffrey’s estate, asserting three separate grounds for her removal. On May 14, 2002, the Montgomery County Probate Court held a hearing and heard testimony on the Flannigans’ petition. On May 30, 2002, without specifying the grounds, the Probate Court of Montgomery County granted that petition and removed Jordan as administratrix of Jeffrey’s estate. On June 12, 2002, Jordan filed a “motion for reconsideration or, in the alternative, motion for clarification” of the probate court’s order, seeking to learn which of the three grounds argued by the Flannigans was the basis for the order removing her as administratrix. The probate court denied that motion on June 17, 2002, and Jordan appealed to the Montgomery Circuit Court on June 21, 2002.

The Flannigans filed a motion in the Montgomery Circuit Court to dismiss Jordan’s appeal as untimely because it was not filed within seven days of the date of the probate court’s order removing Jordan as administratrix, i.e., May 30, 2002, see § 12-22-21(3), thus depriving the Montgomery Circuit Court of subject-matter jurisdiction over the appeal. After a hearing on that motion on September 11, 2002, the Montgomery Circuit Court denied the Flannigans’ motion and certified its order for an interlocutory appeal under Rule 5, Ala.R.App.P. This Court granted the Flan-nigans’ petition for permission to appeal on October 11, 2002.

Standard of Review

We will review the issue of subject-matter jurisdiction even when the issue was not raised in the lower court because “[t]he question of jurisdiction is always fundamental.” Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984).

“[I]f there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent. Rinehart, etc. v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503[ (Ala.1961)]. Absence of jurisdiction over the subject matter ends all inquiry, and the matter may be raised on appeal.”

Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967). See also Talton Telecomm. Corp. v. Coleman, 665 So.2d 914, 916-18 (Ala.1995). We are also not limited to any specific matters within the pleadings but may review the entire record certified to this Court on appeal. Mobile & Gulf R.R., 455 So.2d at 832.

Analysis

The Flannigans state three bases for their argument that the circuit court lacked subject-matter jurisdiction of Jordan’s purported appeal of her removal as administratrix. First, they argue that Jordan did not appeal the probate court’s order removing her as administratrix; she appealed from the order denying her “motion for reconsideration or, in the alternative, motion for clarification.” Second, they argue that Jordan’s appeal was untimely in light of § 12-22-21(3), Ala.Code 1975, because she filed it with the circuit court on June 21, 2002, well beyond seven days after the entry on May 30, 2002, of the probate court’s order removing her as administratrix. Third, they argue that Jordan’s “motion for reconsideration or, in the alternative, motion for clarification,” filed on June 12, 2002, was not a motion filed pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment and therefore did not toll the seven-day appeal period of § 12-22-21(3). Because of our rationale in resolving the issue presented, we need not address the question whether Jordan’s “motion to reconsider” was in fact a Rule 59(e) motion. Nor need we answer the question whether Jordan in fact appealed from the May 30 order removing her as administratrix or from the June 17 order denying her “motion to reconsider.”

Jordan claims that the Alabama Rules of Civil Procedure apply to her appeal and that she had 30 days from the entry of the probate court’s order removing her as ad-ministratrix within which to file her “motion for reconsideration or, in the alternative, motion for clarification.” She argues that her motion was in substance a Rule 59(e), Ala. R. Civ. P., motion that must be filed within 30 days of the judgment and that her filing of that motion suspended the time for filing an appeal to the circuit court, making that appeal timely. However, neither of these arguments makes any difference whatsoever in this case. Even if we agreed with her arguments that the Alabama Rules of Civil Procedure applied and that her motion was a Rule 59(e) motion, it is logically impossible for her motion to have tolled a limitations period that had already passed when the motion was filed.

The Alabama Legislature has established the time in which a removed admin-istratrix may appeal her removal by the probate court:

“Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified. Appeals to the Supreme Court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:
“(3) Upon any decree, judgment or order removing an executor or administrator, in which case the appeal must be taken within seven days after such decree, judgment or order.”

§ 12-22-21(3), Ala.Code 1975.

An appeal is not a vested right but rests on statutory grounds. Greystone Close v. Fidelity & Guar. Ins. Co., 664 So.2d 900, 902 (Ala.1995); Echols v. Star Loan Co., 290 Ala. 76, 79, 274 So.2d 51, 53 (1973), citing Stone v. Lewin, 8 Ala. 395 (1845); Burgess v. State Dep’t of Indus. Relations, 637 So.2d 1366, 1368 (Ala.Civ. App.1994) (“It is well settled that an appeal is not a matter of vested right but is by the grace of statute and must be perfected pursuant to the time and manner prescribed in the controlling statute.”). A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute. Spina v. Causey, 403 So.2d 199, 201 (Ala.1981); Dodd v. Carnes, 207 Ala. 367, 92 So. 428 (1922); Ex parte Thrailkill, 543 So.2d 1201, 1202 (Ala.Civ.App.1989).

Section 12-22-21(3), supra, states that from “any decree, judgment or order removing an executor or administrator ... the appeal must be taken within seven days.” The probate court issued its order on May 30, 2002; Jordan had until June 6, 2002, to file an appeal with the circuit court. Jordan did not file her motion or her notice of appeal until after June 6, 2002. Therefore, Jordan’s appeal was untimely.

The meaning of the word “toll” with respect to the running of a time period is to “stop the running of; to abate.” Black’s Law Dictionary 1495 (7th ed.1999). Logically, one cannot toll a limitations period that has already expired, and we are unaware of any authority or principle governing the tolling of a statutory period of limitations that would allow a party to file a postjudgment motion after the last day of the limitations period has passed. See Coosa Marble Co. v. Whetstone, 294 Ala. 408, 410-11, 318 So.2d 271, 273 (1975); Hicks v. Cornelius, 446 So.2d 647, 649 (Ala.Civ.App.1984); Crowder v. Zoning Bd. of Adjustment, 409 So.2d 837, 838 (Ala.Civ.App.1981). Even if the Alabama Rules of Civil Procedure applied to an appeal of this kind, those rules would have limited application and Jordan still would have had to file her notice of appeal before the seven-day period had expired.

The trial court compared Jordan’s motion to a § 12-13-11, Ala.Code 1975, motion, which allows a motion for a new trial in the probate court. But Jordan did not ask for a new trial in her motion, and she never characterized the motion as anything other than a Rule 59(e) motion to alter, amend, or vacate the judgment of the probate court. In its order denying the Flannigans’ motion to dismiss, the Montgomery Circuit Court stated that Jordan’s motion for reconsideration was in substance a Rule 59(e) motion filed within 30 days of the probate court’s judgment; therefore, the court reasoned, the motion tolled the running of the seven-day limitations period for appealing such an order. The circuit court erred in determining that Jordan’s motion was a motion for a new trial and in determining that a motion, whether for a new trial or not, could toll a limitations period that had already passed.

Conclusion

The trial court erred in determining that a motion filed after the expiration of the limitations period for filing an appeal can toll the running of that limitations period. Jordan’s motion was filed after the seven-day limitations period of § 12-22-21(3), Ala.Code 1975, had expired. Therefore, Jordan’s notice of appeal was untimely, and the trial court lacks subject-matter jurisdiction to review the case. We reverse the interlocutory order denying the Flannigans’ motion to dismiss the appeal and remand the case for the trial court to dismiss the appeal in accordance with this opinion.

REVERSED AND REMANDED.

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

WOODALL, J., concurs in the result.

      . A Florida court had appointed the Flanni-gans as personal representatives of Jeffrey's estate.


author: LYONS, Justice.

text:
    William PETTY-FITZMAURICE v. William STEEN.
    1020560.
    Supreme Court of Alabama.
    July 11, 2003.
    Peter S. Fruin and Catherine W. Main of Maynard, Cooper & Gale, P.C., Montgomery, for appellant.
    Deborah Alley Smith of Christian & Small, LLP, Birmingham; Lee Brown of Brown, Sawicki & Mitchell, LLP, Dallas, Texas; and Stephen W. Drinkard of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   LYONS, Justice.

William Petty-Fitzmauriee appeals the trial court’s denial of his renewed motion for a judgment as a matter of law, or, in the alternative, for a new trial or a remit-tur. We reverse and remand for a new trial.

Facts and Procedural History

On August 28, 2000, William Steen, while operating a Sea-Doo personal watercraft on Lake Jordan, was struck by another Sea-Doo personal watercraft operated by Petty-Fitzmaurice. The impact of Petty-Fitzmaurice’s personal watercraft severed Steen’s right leg below the knee. On June 11, 2001, Steen sued Petty-Fitz-maurice on the grounds that he negligently or wantonly operated the personal watercraft that struck Steen; and Bombardier, Inc., and Bombardier Motor Corporation of America, the manufacturers of the Sea-Doo personal watercrafts; and Yamaha of Sylacauga, Inc., the seller of the personal watercrafts, on the grounds that they violated the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”) and that they were negligent in designing, testing, distributing, selling, and failing to recall the personal watercrafts in question, and in failing to provide adequate warnings.

This action was tried on October 28-30, 2002, and on November 4-7, 2002. Yamaha of Sylacauga, Inc., was dismissed from the action the first day of the trial, as was Steen’s wantonness claim against Petty-Fitzmaurice. On November 6, 2002, Bombardier, Inc., and Bombardier Motor Corporation of America entered into a pro tanto settlement agreement with Steen. Consequently, Petty-Fitzmaurice was the only remaining defendant when the case was submitted to the jury. On November 8, 2002, the jury returned a verdict in favor of Steen and awarded him $3,430,000. The trial court entered a judgment in favor of Steen and reduced the damages award to $2,680,000, based on the pro tanto settlement agreement between Steen and Bombardier, Inc., and Bombardier Motor Corporation of America.

Petty-Fitzmaurice’s counsel states that during its deliberations the jury had one or more questions for the trial court, which the trial court answered outside counsel’s presence. Counsel contends that he learned of the alleged communications during a conversation with Steen’s counsel, which occurred approximately 7 to 10 days after the judgment was entered by the trial court. Petty-Fitzmaurice’s counsel states that he subsequently attempted to contact various members of the jury to determine whether the alleged communications between the jury and the trial court occurred. According to counsel’s affidavit, he had a telephone conversation with a juror who told him that “the jury did ask the [trial] court at least one question[, which] was asked orally in the jury room and was answered by the [trial] court without leaving the jury room, without placing the response on the record, and without attempting to contact [Petty-Fitzmaurice’s counsel].” Counsel’s affidavit also states that Steen’s counsel and the aforementioned juror told him that “at least one question related to whether the jury needed to apportion fault between [Petty-Fitzmaurice] and Bombardier, a settling defendant.” Petty-Fitzmaurice’s counsel asserts that Steen’s attorney told him that the trial court told the jury that it “ ‘did not need to worry about that, that he would apportion damages between the two defendants.’ ” Counsel further states in his affidavit that the juror with whom he spoke recalled that the trial court said that “ ‘he would reduce the jury’s award by the amount of the settlement entered into by Bombardier.’ ”

After learning about the alleged communications between the jury and the trial court during the jury’s deliberations, Petty-Fitzmaurice filed a renewed motion for a judgment as a matter of law, and alternatively, for a new trial or a remittur. Petty-Fitzmaurice attached the affidavit of his counsel to his motion. Petty-Fitzmau-rice requested, in the event the trial court denied his motion for a new trial, that the trial court conduct an evidentiary hearing in which the trial court and all jurors would provide testimony as to what questions the jury asked the trial court during its deliberations and how the questions were answered by the trial court. The trial court denied Petty-Fitzmaurice’s motion without a hearing. On December 20, 2000, Petty-Fitzmaurice filed a motion asking the trial court to reconsider its denial of the motion for a new trial, reiterating his arguments concerning the alleged communications between the jury and the trial court, and again requesting an evidentiary hearing on the matter. The trial court denied the motion without a hearing and without controverting any of the assertions in the affidavit as to its conduct. Petty-Fitzmaurice appealed.

Standard of Review

In discussing the standard of review in an appeal from a judgment based on a jury verdict where the trial court has denied a motion for a new trial, this Court has stated:

“ ‘Jury verdicts are presumed correct, and this presumption is strengthened by the trial court’s denial of a motion for a new trial. Therefore, a judgment based on a jury verdict will not be reversed unless it is “plainly and palpably” wrong.’ ”

Tanksley v. Alabama Gas Corp., 568 So.2d 731, 734 (Ala.1990) (quoting Davis v. Ulin, 545 So.2d 14, 15 (Ala.1989)).

Analysis

Petty-Fitzmaurice argues that the trial court’s communication with the jury, during its deliberations and without notifying Petty-Fitzmaurice’s counsel, amounts to a “significant and new instruction to the jury,” in violation of Alabama law. Petty-Fitzmaurice points us to Matthews v. Liberty Mutual Insurance Co., 286 Ala. 598, 243 So.2d 703 (1971), in support of his contention that the trial court’s alleged communications with the jury warrant a new trial.

In Matthews, this Court considered whether the trial court erred when it communicated with the jury during deliberations and outside the presence of the parties and counsel. This Court recognized the general rule that a trial court may not instruct the jury, outside the presence of counsel and during deliberations, without making a reasonable effort to notify counsel unless circumstances existed that made notifying counsel unreasonable. This Court noted that they were “quite certain” that the trial judge in Matthews “intended no harm in entering the jury room and communicating with the jury out of the presence of the parties and counsel.” Matthews, 286 Ala. at 605, 243 So.2d at 710. Despite the trial court’s harmless motive, this Court held:

“ ‘[Wjhen it is established that the court, without some overruling necessity therefor,’ communicates with the jury in the jury room, in the absence of the parties and their counsel, ‘and without reasonable notice to them and opportunity to be present,’ we should treat such communications as ‘conclusively prejudicial’ being a deprivation of the constitutional right to a fair trial to which every party litigant is entitled.”

286 Ala. at 605, 243 So.2d at 710 (quoting Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 204, 19 So. 540, 550 (1896)). Consequently, this Court determined that a new trial was necessary to remove the “prejudicial effect of the entry into the jury room by the trial judge.” Matthews, 286 Ala. at 605, 243 So.2d at 710.

We agree that if the trial court answered a question propounded by the jury, outside of counsel’s presence, as Petty-Fitzmaurice alleges, those communications were improper. Communications between a trial court and a jury that are off the record and where counsel is not present have the potential to unduly influence a jury’s verdict. Edwards v. Seaboard Coast Line R.R., 384 So.2d 96 (Ala.1980). In addition, such communications adversely affect the public’s confidence in the judicial system. As this Court stated in Edwards:

“ ‘Whether or not injury or injustice has resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the court to prevent such occurrences, that public confidence in the jury system may be preserved.’ ”

384 So.2d at 104 (quoting Matthews, 286 Ala. at 603, 243 So.2d at 708, quoting in turn Daniels v. Bloomquist, 258 Iowa 301, 306-07, 138 N.W.2d 868, 872 (1965)).

However, our inquiry does not end with the determination that the trial court erred in denying Petty-Fitzmaurice’s motion for a new trial if, in fact, the trial court made the alleged communications with the jury during its deliberations. Steen argues in his brief to this Court that Petty-Fitzmaurice, in his postjudgment motions, presented “no competent legal evidence ... to support the assertion that the trial court responded to any question from the jury as alleged.” Steen points out that the only evidence offered in support of Petty-Fitzmaurice’s motions was the affidavit of his counsel, which acknowledges that counsel did not witness the alleged communications and that he does not have personal knowledge that the alleged communications occurred. Consequently, Steen contends, counsel’s affidavit is inadmissible hearsay evidence. See Williams v. Dan River Mills, Inc., 286 Ala. 703, 708, 246 So.2d 431, 435 (1971) (where the trial court held an affidavit inadmissible where “the affiant had no personal knowledge of the matters to which he deposed”).

Steen relies upon Jefferson County v. Kellum, 630 So.2d 426, 427-28 (Ala.1993), for the proposition that “ ‘hearsay evidence is not admissible in support of a motion for new trial ... [and that] [affidavits in support of a motion for a new trial should be based on the knowledge of the affiant and not on hearsay.’ ” (Quoting 66 C.J.S. New Trial § 172 (1970).) Steen also asserts in his brief to this Court that Petty-Fitzmau-rice could have presented affidavits of the jurors as evidence “that the trial court provided [an] additional instruction to the jury, if that did, in fact, occur.” See Whitten v. Allstate Ins. Co., 447 So.2d 655, 657 (Ala.1984) (stating that a juror’s affidavit is admissible to prove extraneous influence on the jury). Steen argues that because Petty-Fitzmaurice did not present any competent evidence to support his allegations that the trial judge improperly communicated with the jury, we cannot hold that the trial court erred in denying Petty-Fitzmaurice’s motions.

Petty-Fitzmaurice argues, in his reply brief, that his counsel’s affidavit is not hearsay. Petty-Fitzmaurice contends that Steen’s counsel told his counsel of the alleged communications. Therefore, he argues, the statements in his counsel’s affidavit are admissions by a party opponent under Rule 801(d)(2), Ala. R. Evid. Petty-Fitzmaurice also argues that even if his counsel’s affidavit is hearsay, it would be admissible because Steen did not object to the affidavit when Petty-Fitzmaurice submitted it to the trial court with his post-judgment motions. Petty-Fitzmaurice contends that Steen cannot object to the affidavit of his counsel for the first time on appeal. See Neal v. Neal, 856 So.2d 766 (Ala.2002); American Fire & Cas. Co. v. Archie, 409 So.2d 854, 857 (Ala.Civ.App. 1981).

We pretermit a discussion of whether the affidavit of Petty-Fitzmaurice’s counsel constitutes hearsay, because even if it is, Steen waived his argument that the affidavit is inadmissible by failing to object when the affidavit was presented to the trial court. This Court has held that a party cannot argue on appeal that an affidavit contains inadmissible hearsay when the party did not object to the affidavit when it was submitted to the trial court. Rickard v. Shoals Distrib., Inc., 645 So.2d 1378, 1381 n. 2 (Ala.1994) (stating, in the context of a summary judgment, that Rick-ard did not object to the affidavit on the grounds of hearsay before the trial court, “so the objection is now waived and cannot be raised on appeal”). This Court also noted the importance of objecting to an affidavit on the basis that the affidavit contains hearsay in Jefferson County v. Kellum, the case Steen relies upon for its holding that affidavits in support of a motion for a new trial should be based on the knowledge of the affiant. 630 So.2d at 428.

In Kellum, this Court reviewed an order granting a new trial and considered whether, based on allegations of juror misconduct, the trial court properly granted Kellum’s motion for a new trial. Kellum attached an.affidavit to his brief filed in this Court in support of his claim of juror misconduct; however, Kellum had not previously filed the affidavit in the trial court. This Court reversed the trial court’s order granting a new trial and held that “no competent legal evidence of juror misconduct appeared] in the record.” Kellum, 630 So.2d at 427. This Court, after refusing to consider an affidavit submitted for the first time on appeal, noted “that even if the affidavit had been properly presented to the trial court, it would have been excluded upon the County’s objection; the affidavit is hearsay and does not fall within any recognized exception to the hearsay rule.” Kellum, 630 So.2d at 427 (emphasis added). See also Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954), reviewing a trial court’s order granting a new trial in light of an affidavit of counsel containing hearsay as to what the jury considered during deliberations. The Court stated:

“It is urged that the court erred in considering the affidavit of Mr. Johnston, attorney for defendant, to which reference has been made. This is on two grounds: (1) that it is hearsay evidence and (2) it is in respect to the deliberations of the jury. We think it is subject to both contentions. It was hearsay.”

260 Ala. at 492, 71 So.2d at 288. However, before it made the foregoing holding, the Court in Harrison noted:

“The judgment of the [trial] court recited the fact that defendant ‘offered in evidence an ex parte affidavit pertaining to a statement made by a juror, after original trial, pertaining to the testimony that, as he understood it, was considered by the jury in its deliberations in reaching a verdict for the plaintiff, and that objection was made to the affidavit.”

260 Ala. at 491, 71 So.2d at 286 (emphasis added). Without a predicate objection, an affidavit containing hearsay, and we assume that for purposes of this discussion no hearsay objection was made, is competent evidence in support of a motion for a new trial.

The record does not reflect any objection by Steen to the affidavit of Petty-Fitzmaurice’s counsel when it was submitted to the trial court with Petty-Fitz-maurice’s motion for a new trial and his subsequent motion to reconsider. Consequently, Steen cannot, for the first time on appeal, ask us to disregard the contents of counsel’s affidavit. The affidavit of Petty-Fitzmaurice’s counsel clearly states that the trial judge, during jury deliberations and outside the presence of Petty-Fitzmaurice and his counsel, answered at least one of the jury’s questions dealing with apportionment of fault between Petty-Fitzmaurice and the settling defendants. This communication violates the general rule that a “judge may not, in the absence of counsel, further instruct the jury, after [its] retirement, without making a reasonable effort to notify counsel or without some special circumstances or excuse being shown which reasonably prevented notice.” Matthews, 286 Ala. at 604, 243 So.2d at 708. Under settled precedent, such communication is “ ‘conclusively prejudicial.’ ” Matthews, 286 Ala. at 605, 243 So.2d at 710.

The trial court’s order denying Petty-Fitzmaurice’s motion for a new trial is reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.