text:
    Diane Helen ALLEN v. Mark James ALLEN.
    2110405.
    Court of Civil Appeals of Alabama.
    May 25, 2012.
    Tim W. Milam, Tuscumbia, for appellant.
   THOMAS, Judge.

This is the third time these parties have been before this court concerning their divorce judgment. In 2009, we dismissed the appeal because two outstanding contempt motions had not been addressed by the trial court. See Allen v. Allen (No.2971113, Aug. 11, 2009), 58 So.3d 855 (Ala.Civ.App.2009) (table). In 2010, we affirmed the aspects of the judgment divorcing the parties on the ground of incompatibility and dividing the marital property. See Allen v. Allen, 53 So.3d 960, 964-65 (Ala.Civ.App.2010) (“Allen II”). However, we reversed the aspects of the judgment regarding the amount of alimony and the denial of attorney fees, and we remanded the cause to the trial court for it to award Diane Helen Allen (“the wife”) an equitable amount of alimony and reasonable attorney fees. 53 So.3d at 965-66.

Following the issuance of the opinion of this court in Allen II, the trial court scheduled a status conference for June 21, 2010, which was subsequently reset for January 19, 2011, and reset again for January 18, 2011. The wife filed a contempt motion on January 18, 2011, averring that Mark James Allen (“the husband”) had, among other things, failed to pay her any alimony and failed to pay the mortgage payment on the marital residence. The husband filed a motion to dismiss the contempt motion on February 8, 2011.

The wife filed a “Motion for Final Decree of Divorce Pursuant to Instructions from the Alabama Court of Civil Appeals” on April 13, 2011. It appears from that motion that a hearing had been held on January 19, 2011. The trial court issued an order on September 14, 2011, scheduling a status conference for the pending motions on October 25, 2011. The trial court also entered an amended final judgment of divorce on September 14, 2011. The amended final judgment increased the amount of periodic alimony awarded to the wife from $600 to $1,200 per month and also ordered the husband to pay the wife attorney fees in the amount of $2,000.

The trial court then rescheduled the status conference for the pending motions for October 12, 2011, and again for November 14, 2011. The wife filed a motion to alter, amend, or vacate the amended judgment on September 27, 2011, specifically asking the trial court to address the alimony she alleged the husband owed. The husband filed a motion to alter, amend, or vacate or, in the alternative, for a new trial on October 14, 2011. The wife then filed a motion for final order concerning the alleged alimony arrearage on January 20, 2012. The parties’ postjudgment motions were denied by operation of law. Rule 59.1, Ala. R. Civ. P; see Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1204 (Ala.2009) (“[A] postjudgment motion not otherwise ruled upon is denied as a matter of law on the 90th day after the motion is filed.... ”). The wife then filed a timely appeal with this court.

We will first address whether we have jurisdiction over the appeal from the judgment. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (stating that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu”). The wife filed a contempt motion and the husband filed a motion to dismiss the contempt motion. The trial court, however, failed to rule on either party’s motion.

The trial court’s failure to rule on the pending motions renders the judgment nonfinal. Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). The judgment is not final because the judgment fails to completely adjudicate all issues between the parties. See Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008). Subject to a few exceptions not relevant here, an appeal ordinarily lies only from a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). Therefore, we dismiss the wife’s appeal.

The wife’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    BELLA INVESTMENTS, INC. v. MULTI FAMILY SERVICES, INC.
    2110120.
    Court of Civil Appeals of Alabama.
    May 25, 2012.

      T. Blake Liveoak of Liveoak & Boyles, LLC, Birmingham, for appellant.
    Kile T. Turner and W.M. Bains Fleming III of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.
   THOMAS, Judge.

Bella Investments, Inc. (“Bella”), appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of Multi Family Services, Inc. (“MFS”), on Bella’s claims against MFS. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

This is the second time these parties have been before this court. See Bella Invs., Inc. v. Multi Family Servs., Inc., 80 So.3d 921 (Ala.Civ.App.2011). We set forth the pertinent background and procedural history of this case in Bella, which we quote below, and we use the terms defined therein as defined terms in this opinion:

“In June 2003, Bella entered into a contract with MFS for MFS to serve as the general contractor for the construction of a hotel in Gardendale. The contract between the parties included a warranty provision, warranting MFS’s . work for one year from the issuance of the certificate of occupancy. MFS, in turn, contracted with various other entities, including David & Company Architects, Inc. (‘David & Company), to serve as the architects for the project and Danny Hawkins d/b/a Danny Hawkins Floor Covering (‘Hawkins’) to serve as a subcontractor to install tile flooring in the hotel.
“The building inspector for the City of Gardendale inspected the hotel on April 5, 2006, and, that same day, issued a certificate of occupancy for the hotel. At the time that the certificate of occupancy was issued, several issues, including cracking in some of the floor tiles, remained outstanding and had been listed ón a punch list of items for MFS to remedy. Bella also made requests under the warranty provision of the contract for MFS to repair cracked floor tiles in the hotel. According to Bella, problems with cracking floor tiles continued and MFS failed to remedy the issue.
“On August 4, 2008, Bella sued MFS, C. Boyd Edgerton, in his individual capacity, David & Company, and various fictitiously named defendants in the Marshall Circuit Court. In its complaint, Bella asserted claims of negligence/wantonness, negligent hiring and supervision, suppression, and breach of contract. Bella also asserted that MFS’s subcontractors were liable to Bella because Bella was a third-party beneficiary to the contracts between MFS and the subcontractors. Bella then moved the Marshall Circuit Court to transfer the action to the Jefferson Circuit Court; MFS and Edgerton joined Bella’s motion to transfer the action. On September, 30, 2008, the Marshall Circuit Court transferred the action to the Jefferson Circuit Court....
“On November 3, 2008, Bella amended its complaint, reasserting its claims and substituting Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools for some of the fictitiously named defendants. MFS answered Bella’s complaint, denying all its material allegations and asserting certain affirmative defenses, including the statute of limitations. MFS also asserted a counterclaim against Bella, alleging that Bella had breached its contract with MFS by failing to pay MFS the full amount owed under the contract. In addition, MFS asserted a third-party complaint against Suresh Parmar and Bharti Parmar, in their individual capacities, alleging that the Par-mars had executed a note in favor of MFS, which they had not paid. On May 5, 2010, Bella filed a second amended complaint, reasserting its claims and substituting Hawkins for one of the fictitiously named defendants.
“On June 14, 2010, MFS moved the trial court for a summary judgment on all Bella’s claims against it. MFS asserted three bases in support of its summary-judgment motion: (1) that all Bella’s claims were barred by the applicable statute of limitations, as provided in § 6-5-221, Ala.Code 1975; (2) that Bella did not provide MFS with notice of its claims, in contravention of the contract between the parties; and (3) that there was no genuine issue of material fact concerning Bella’s suppression claim. MFS also submitted evidence in support of its summary-judgment motion. Bella filed a brief in opposition to MFS’s summary-judgment motion and submitted evidence in support of its brief in opposition.
“On September 23, 2010, the trial court entered a summary judgment in favor of MFS on all Bella’s claims against it. In its order, the trial court stated that it had determined, among other things, that Bella’s claims were barred by the statute of limitations. The summary-judgment order also stated that ‘[t]his order shall not affect [Bella’s] claims against Defendants David & Company ... and [Hawkins],’ the only other defendants still remaining in the action.... Bella filed a purported post-judgment motion requesting that the trial court alter, amend, or vacate its summary-judgment order, which the trial court denied. Bella subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.”

Bella, 80 So.3d at 922-24 (footnotes omitted).

In Bella, we dismissed Bella’s appeal as having been taken from a nonfinal judgment because several claims against other defendants as well as MFS’s counterclaim and third-party claims were still pending in the trial court and the trial court had failed to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Id. at 924.

After this court issued a certificate of judgment in Bella, on October 13, 2011, MFS filed a motion to dismiss its counterclaim against Bella and its third-party claims against Suresh Parmar and Bharti Parmar without prejudice. Additionally, on October 13, 2011, Bella filed a stipulation of dismissal with the trial court, noting that it stipulated to the dismissal of all its claims against David & Company and Hawkins. That same day the trial court entered an order dismissing MFS’s counterclaim and third-party claims and Bella’s claims against David & Company and Hawkins. On October 28, 2011, Bella filed a timely notice of appeal; its appeal was transferred by the supreme court to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Issues

On appeal, Bella argues that the trial court erred in entering a summary judgment in favor of MFS because, it says: the trial court failed to view the evidence in the light most favorable to Bella, the non-movant; MFS failed to meet its burden of establishing that there was no genuine issue of material fact regarding Bella’s claims associated with defects unrelated to the cracked tile flooring; MFS should have been estopped from asserting the affirmative defense of the statute of limitations as to Bella’s claim regarding the cracked tile flooring; and the trial court erred in determining that Bella’s claims regarding defects unrelated to the cracked tile flooring had accrued on the date the certificate of occupancy was issued.

Standard of Review

‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving pai'ty must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of im-pai’tial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994).”

Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 283 (Ala.2005).

Discussion

A primary issue on appeal is whether, when the record is reviewed in the light most favorable to Bella, the nonmovant, Bella’s claims are time-barred. The parties agree that Ala.Code 1975, §§ 6-5-220 through 6-5-225, govern Bella’s claims against MFS in this action. At the times pertinent to this appeal, § 6-5-221 (a) provided:

“(a) All civil actions in tort, contract, or otherwise against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration, or observation of any construction of any improvement on or to real property, or against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and constructed in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
“(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improvement, or any defect or deficiency in the construction of any such improvement; or
“(ii) Damage to real or personal property caused by any such defect or deficiency; or
“(iii) Injury to or wrongful death of a person caused by any such defect or deficiency;
“shall be commenced within two years next after a cause of action accrues or arises, and not thereafter. Notwithstanding the foregoing, no relief can be granted on any cause of action which accrues or would have accrued more than thirteen years after the substantial completion of construction of the improvement on or to the real property, and any right of action which accrues or would have accrued more than thirteen years thereafter is barred, except where prior to the expiration of such thirteen-year period, the architect, engineer, or builder had actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the architect, engineer, or builder contracted to perform such service.”

(Emphasis added.) Pursuant to § 6-5-220(e), a cause of action “accrues or arises”

“when property is damaged as a proximate result of a defect or deficiency in design, planning, testing, supervision, administration, or observation of construction of an improvement by an architect or engineer or in the construction of an improvement on or to real estate, constructed, performed, or managed by a builder; or where the damage or injury either is latent or by its nature is not discoverable in the exercise of reasonable diligence at the time of its occurrence, the claim for relief shall be deemed to arise or accrue at the time the damage or injury is or in the exercise of reasonable diligence should have been first discovered, whichever is earlier. The cause of action accrues or arises whether or not the full amount of damages is apparent at the time of the first injury or damage, and cannot be extended as a continuous wrong.”

Thus, in reviewing the trial court’s summary judgment in favor of MFS on all Bella’s claims, we must review each individual claim under the statute of limitations provided in § 6-5-221(a), and we must determine when each claim accrued pursuant to § 6-5-220(e).

As noted above, Bella asserted numerous claims against MFS: negligent installation and construction; negligent hiring, supervision, and training; suppression; breach of contract; wantonness; and claims for relief as a third-party beneficiary. In its complaint and amended complaints, Bella alleged that MFS had been negligent in constructing the hotel and asserted the following defects as the basis of the negligent-construction count of its lawsuit: “floors and walls buckling causing doors to bind; widespread cracking of tile throughout the building; improper installation of the fiber cement siding; and improper grading of the project site.”

Negligence Claim Regarding the Cracked Tile Flooring

We will first address whether the statute of limitations in § 6-5-221 (a) applied so as to bar Bella’s negligence claim regarding the “widespread cracking of tile throughout the building.” In its motion for a summary judgment, MFS asserted that Bella’s claim regarding the cracked tile flooring was time-barred because it was undisputed that Bella was aware of the cracked tile flooring in April 2006 but Bella had failed to filed suit until August 4, 2008, more than two years after the cause of action had accrued. In support of its summary-judgment motion, MFS attached the deposition testimony of one of Bella’s principals stating that she was aware of the cracked tile flooring at the time the hotel opened in April 2006. Therefore, because the record indicates that Bella’s negligence claim regarding the cracked tile flooring accrued in April 2006 and that Bella failed to file suit within two years of the date the claim accrued, we conclude that the trial court did not err in entering a summary judgment on this claim. See §§ 6-5-220 and 6-5-221(a).

Bella next argues that its claim regarding the cracked tile flooring did not accrue in April 2006 because, it says, its claims assert negligent repairs to the tile flooring, and, thus, Bella asserts, the claims accrued on the date that the repairs were made and not the date that the initial damage was first noticed. We reject this contention and find it to be unsupported by the record and applicable law.

In its order denying Bella’s post-judgment motion, the trial court rejected Bella’s argument that the repairs to the cracked tile flooring gave rise to separate and distinct claims, such that a cause of action for negligent repair accrued on the date of the repairs instead of in April 2006, when Bella undisputedly became aware of the initial deficiencies in the tile flooring. In rejecting this argument, the trial court stated:

“In its motion, Bella argues that its claims for negligent repair are not precluded by the statute of limitations. However, Bella’s negligent repair claims are associated with the damage ... observed in April 2006. Therefore, because the Complaint was not filed until August 2008, all of Bella’s claims are barred by the two year statute of limitations.”

We agree with the trial court’s reasoning.

As noted above, MFS attached to its summary-judgment motion evidence indicating that Bella was aware of the cracked tile flooring in April 2006 and that, pursuant to § 6-5-220(e), “[t]he cause of action accrues or arises whether or not the full amount of damages is apparent at the time of the first injury or damage, and cannot be extended as a continuous wrong.” Thus, MFS made a sufficient showing that it was entitled to a judgment as a matter of law on Bella’s claim regarding the cracked tile flooring because Bella’s claim regarding the tile flooring was time-barred, which shifted the burden to Bella to rebut MFS’s prima facie showing by substantial evidence. See Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). Bella failed to present any evidence, let alone substantial evidence, that MFS had been negligent in its attempts to repair the cracked tile flooring or that its cause of action regarding the tile-flooring defects did not arise in April 2006. Instead, Bella presented evidence in the form of Hawkins’s verified answer indicating that the underlying reason for the continuing problems with widespread cracking in the tile flooring throughout the hotel was the improper concrete foundation upon which the tile flooring had been laid before April 2006; Bella also attached evidence indicating that MFS had failed to remedy the tile-flooring issues it had noticed in April 2006. Thus, based on our review of the record, the trial court’s summary judgment in favor of MFS on Bella’s claim regarding the cracked tile flooring is due to be affirmed.

Next, we address Bella’s contention that, even applying the applicable statute of limitations set out in § 6-5-221, its claims regarding the cracked tile flooring and numerous other negligent-construction claims regarding other alleged defects were timely filed. Specifically, it argues that the trial court erred in determining that its negligent-construction claims were barred by the two-year statute of limitations because, it says, the evidence it submitted in opposition to MFS’s motion for a summary judgment, as well as the exhibits to the motion for a summary judgment, establish that MFS issued Bella a one-year warranty on the work it performed, which did not expire until April 2007 — a year after the April 5, 2006, certificate of occupancy was issued. Thus, Bella argues, its negligent-construction claims were timely filed because it initiated the lawsuit within two years of the expiration of the warranty. However, Bella fails to cite any relevant authority as to this issue; instead, it relies only on general propositions of law regarding motions for a summary judgment. Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain “citations to ... cases, statutes, [and] other authorities.” “ ‘[A]n appellant’s citations to general propositions of law not specifically applicable to the issues presented by the appeal do not meet the requirements of Rule 28, Ala. R.App. P.’” Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 449 (Ala.2006) (quoting BankAmerica Hous. Servs. v. Lee, 833 So.2d 609, 621 (Ala.2002)). Accordingly, we decline to consider this argument on appeal.

Negligence Claims Regarding Deficiencies Other Than the Cracked Tile Flooring

Next, Bella argues that its negligent-construction claims based on the defects other than the cracked tile flooring, specifically its claims regarding the floors and walls buckling and causing doors to bind, improper installation of the fiber cement siding, and improper grading of the project site, are not barred by the statute of limitations. In asserting this argument, Bella contends that MFS failed to establish that those claims accrued on the same date as its negligence claim regarding the cracked tile flooring or on what date, if any, those claims accrued because, it says, those defects are latent defects that it did not discover until July 2008. In an attempt to bolster its claim, Bella relies on Dickinson v. Land Developers Construction Co., 882 So.2d 291 (Ala.2003).

Initially, we address Bella’s specific argument that the trial court erred in entering a summary judgment in favor of MFS on its negligent-construction claim regarding the improper installation of the fiber cement siding based on the statute of limitations because, it contends, the siding contained latent defects that were discovered only months before Bella filed its complaint. Thus, it argues, its claim regarding the siding was timely filed pursuant to §§ 6-5-221(a) and 6-5-220.

The trial court explicitly rejected the argument that the alleged deficiencies in the siding were latent defects or that Bella’s claims were analogous to those in Dickinson. In its order denying Bella’s postjudgment motion, the trial court stated:

“Bella argues that the alleged defects in the siding of the [hotel] are analogous to those defects alleged in Dickinson. In Dickinson, the Alabama Supreme Court held that a plaintiffs claims for latent defects related to underground rotten wood and soil fill problems presented a jury question as to whether there discovery fell outside the statute of limitations. Dickinson at 299-300. A latent defect is defined as ‘[a] hidden or concealed defect,’ ‘[o]ne which could not be discovered by reasonable and customary inspection.’ Collier v. Duprel, 480 So.2d 1196, 1199 (Ala., 1985) (citing Black’s Law Dictionary (5th ed.1979)). . In the matter presently before this Court, the defective siding is not a hidden or concealed defect. It is visible to anyone who may walk by the building. Additionally, Bella has presented no evidence which shows that the defect could not have been discovered by a reasonable and customary inspection. Therefore, the present case is distinguishable from Dickinson and does not carve out an exception to Alabama Code § 6-5-221.”

However, we cannot agree with the trial court’s determination regarding Bella’s claim that the imperfections in the siding were not concealed defects.

As noted above, this court reviews a trial court’s summary judgment de novo, and we must view the evidence in the light most favorable to the nonmovant, Bella. See Robinson v. Alabama Cent. Credit Union, 964 So.2d 1225, 1228 (Ala.2007). In this case, the record, taken in the light most favorable to Bella, indicates that there is a genuine issue of material fact as to whether the alleged defects with the siding were latent defects. Specifically, Bella presented evidence indicating that E-services, Inc., had evaluated the hotel and had noticed several deficiencies in the installation of the siding in 2008. In addition, Bella presented evidence indicating that later testing on August 5, 2010, revealed further damage after the siding and the moisture barrier were removed. Further, we cannot conclude that the alleged defective-siding issues were clearly visible to a passerby because the building inspector did not indicate any deficiencies in the siding when he issued the certificate of occupancy for the hotel in April 2006. Thus, we reverse the trial court’s summary judgment in favor of MFS on Bella’s negligent-construction claim regarding the improper installation of the fiber cement siding.

Next, we consider Bella’s argument that its remaining claims alleging negligent construction were timely filed because, it contends, the record does not indicate on what date those claims accrued. We agree.

It is well established that a party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law” in order to shift the burden to the nonmovant to present substantial evidence rebutting its prima facie showing. Rule 56(c)(3), Ala. R. Civ. P.; see Lee, 592 So.2d at 1038. In this case, in its summary-judgment motion, MFS argued that all Bella’s negligent-construction claims arose in April 2006, when the hotel was issued its certificate of occupancy; additionally, MFS attached numerous exhibits to provide evi-dentiary support for its summary-judgment motion. Our review of the record indicates that MFS failed to establish a prima facie case that any of Bella’s negligent-construction claims, except the claim regarding cracked tile flooring, which was addressed above, accrued in April 2006. Specifically, the portions of the depositions attached to the summary-judgment motion state only that Bella’s principals were aware of the cracked tile flooring in April 2006. Moreover, the “punch lists” and electronic-mail messages attached to Bella’s opposition to the motion for a summary judgment tend to indicate that Bella became aware of the other alleged defects after April 2006 and within two years of when Bella filed this action. Therefore, we must conclude that the trial court erred in entering a summary judgment in favor of MFS on those claims because MFS failed to make a prima facie showing that those claims were time-barred and, thus, that it was entitled to a judgment as a matter of law.

Accordingly, after reviewing the record in this case, we conclude that the trial court erred in determining that Bella’s negligent-construction claims for alleged defects, other than the cracked tile flooring, were barred by the statute of limitations provided in § 6-5-221. Our review of the evidence indicates that the evidence, viewed in the light most favorable to Bella, establishes that there is a genuine issue of material fact as to when the claims regarding the buckling floors and walls, improper installation of the fiber cement siding, and improper grading of the project site accrued. Therefore, the trial court’s summary judgment as to those claims is reversed, and the cause is remanded to the trial court for proceedings consistent with this opinion on those claims.

Breach-of-Contract Claim

Bella appears to argue that the trial court erred in entering a summary judgment in favor of MFS on its breach-of-contract claim. Essentially, it appears that Bella is attempting to argue that MFS failed to present evidence sufficient to establish a prima facie case that it was entitled to a judgment as a matter of law on the breach-of-contract claim because, it says, MFS did not produce evidence indicating that Bella failed to comply with the condition precedent or that the “AIA General Conditions of the Contract for Construction” were applicable to the AIA form construction contract at issue in this action. This argument is misguided and without merit.

In its motion for a summary judgment, MFS argued that it was entitled to judgment as a matter of law on Bella’s breach-of-contract claim because the AIA form contract between the parties required that Bella refer claims regarding the construction to the architect for a decision and because, pursuant to the contract, the architect’s decision was a condition precedent to initiating litigation and Bella had failed to refer its claims to the architect. Further, MFS attached the AIA form contract entered into between the parties and the “AIA General Conditions of the Contract for Construction” as exhibits to its motion for a summary judgment.

In its order granting MFS’s motion for a summary judgment, the trial court stated:

“Although the statute of limitations set forth in Ala.Code § 6-5-221 is applicable to ‘all civil actions in tort, contract or otherwise,’ the Court will specifically address Plaintiffs breach of contract claims.
“Plaintiff and MFS entered into an contract for construction on June 3, 2005. (See Def s Mot. Summ. J Ex. A.) The contract between Plaintiff and MFS was a standard AIA A101-1997 form contract which adopted the AIA Document A201-1997, General Conditions of the Contract for Construction. (See Def s Mot. Summ. J Ex. A.) The General Conditions specifically state that submission of a Claim to the architect is a condition precedent to litigation. The General Conditions define a ‘claim’ as a ‘dispute ... between the Owner and Contractor arising out of or relating to the Contract.’ (Def.’s Mot. Summ. J Ex. G § 4.3.1.) Section 4.3.1 continues, ‘claims must be initiated by written notice.’ Id.
“Section 4.4 of the General Conditions states:
“ ‘Claims ... shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due.... ’
“(Def’s Mot. Summ. J Ex. G § 4.4.1.)
“Final payment was due for the [hotel] project in December 2007. (Defs Mot. Summ, J Ex. E at 55). Plaintiff, however, has failed to produce substantial evidence that, prior to final payment being due, it submitted a written claim to the architect in accordance with the provisions of the General Conditions. This Court finds that Plaintiffs failure to meet this condition precedent entitles MFS to summary judgment on Plaintiffs breach of contract claims.”

(Emphasis added.)

We agree with the trial court’s summary judgment in favor of MFS on Bella’s breach-of-contract claim. MFS presented prima facie evidence indicating that it was entitled to a judgment as a matter of law on the breach-of-contract claim, thus shifting the burden to Bella to present substantial evidence of a genuine issue of material fact regarding the breach-of-contract claim. See Lee, 592 So.2d at 1038. However, Bella failed to present any evidence indicating that it had either filed a claim with the architect or that the provisions of the general conditions were inapplicable to the AIA form construction contract entered into between the parties; instead, it merely argued before the trial court, and argues on appeal, that MFS should have provided that evidence. Bella’s argument is inherently flawed because it was the party responsible for producing such evidence, if such evidence existed. Therefore, we affirm the trial court’s summary judgment in favor of MFS on Bella’s breach-of-contract claim.

Suppression Claim

Next, we address Bella’s argument that the trial court erred in entering a summary judgment in favor of MFS on its suppression claim because, it says, it submitted evidence indicating that MFS was aware of the improper concrete subfloor-ing, which caused the widespread cracking of the tiles.

"The elements of a cause of action for fraudulent suppression are: (1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.” Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996). The complaint alleged that MFS had continually misrepresented that it would correct the cracked tile flooring and other “punch list” items and suppressed the true facts regarding the deficiencies in the construction of the hotel. Bella further alleged that it had been induced to its detriment, by the misrepresentations and the suppression of facts regarding the deficiencies, to delay filing suit in order to allow MFS opportunities to correct the problems.

The trial court concluded that Bella’s suppression claim was also time-barred pursuant to § 6-5-221 (a) and that Bella had “not offered any evidence that its alleged damages were the result of any suppression or fraud by MFS.” We disagree.

In this case, Bella presented evidence indicating that MFS was aware of deficiencies in the concrete slab upon which the tiles were laid and that those deficiencies had the potential to cause problems in the future. Further, Bella presented evidence indicating that had it been aware of the issues it would have timely filed suit. Specifically, Bella presented the affidavit of Suresh Parmar, one of Bella’s principals, which stated that “that if [MFS] would have been truthful regarding its ability to repair all the punch list items, including the tile floors and the findings of its inspection, I would have immediately initiated litigation.” Additionally, Hawkins’s verified answer indicates that he had notified MFS’s project manager that the improper usage of light-weight concrete in the guest bathrooms was causing cracking and would cause further issues once the tile was laid and that there were widespread cracks throughout the concrete slab in the lobby and break-room areas. Therefore, because we conclude that there are genuine issues of material fact regarding Bella’s suppression claim, we reverse the summary judgment in favor of MFS on this claim and remand the cause to the trial court for further proceedings on this claim.

Estoppel Claim

Finally, Bella argues that the trial court erred in failing to find that MFS was estopped from asserting the affirmative defense that Bella’s claims were barred by the applicable statute of limitations. Specifically, Bella contends that the trial court erred in not finding that MFS was es-topped from asserting the statute of limitations because, it says, MFS concealed construction defects and had agreed to correct all the defects, such as the cracked tile flooring, listed on the “punch list,” which had induced Bella not to file a lawsuit.

In its order denying Bella’s post-judgment motion, the trial court explicitly rejected Bella’s argument that equitable estoppel applied, stating:

“Furthermore, estoppel principles do not apply. See City of Birmingham v. Cochrane Roofing & Metal Co., Inc., 547 So.2d 1159, 1167 (Ala.1989). It is certainly true in this state that ‘if a defendant represents that a lawsuit is unnecessary because he intends to take care of the problem he is likewise estopped from raising the statute of limitations as a defense.’ Id. However, there is no evidence that the actions of MFS in this case could be construed as a promise to make repairs in return for a promise by Bella not to sue. Id.”

We agree with the trial court that the record does not indicate that estoppel principles were applicable to this action. Bella asserts that because the evidence contained in the record indicates that MFS had been working with Bella to correct the items listed on the “punch list” for at least a year after the hotel had been issued its certificate of occupancy and because the flooring subcontractor, Hawkins, had notified MFS that there were defects in the concrete upon which the tile was laid, MFS should be estopped from being able to assert a statute-of-limitations defense. In asserting its argument on appeal, Bella relies on Mason v. County of Mobile, 410 So.2d 19 (Ala.1982), Ex Parte Youngblood, 413 So.2d 1146 (Ala.1981), Arkel Land Co. v. Cagle, 445 So.2d 858 (Ala.1983), and Parker v. Ward, 224 Ala. 80, 139 So. 215 (1932). However, in City of Birmingham v. Cochrane Roofing & Metal Co., 547 So.2d 1159 (Ala.1989), which the trial court noted in its order, our supreme court limited the principles of equitable estoppel set forth in the cases Bella cites in a factual situation strikingly similar to the current case.

In Cochrane, our supreme court rejected the plaintiff’s argument that the defendants should have been estopped from asserting the statute-of-limitations defense because the defendants, by cooperating in attempting to repair the roof, induced the plaintiffs not to file a lawsuit. Id. at 1167-68. In reaching its conclusion limiting the equitable-estoppel principles, our supreme court stated:

“Finally, if these equitable principles were taken to their limits they could yield ridiculous results that would, in effect, negate the statute of limitations. For instance, in the construction industry it is conceivable that an owner and an architect could continue some form of working relationship for ten or more years after a building was certified to be complete. If estoppel prevented the assertion of the statute of limitations as a defense, then-the owner could file suit many years after the contract was completed, claiming that he was unsatisfied with the initial design or construction, but that he had been ‘induced’ not to file suit during the years that the architect was either consulting with him or making repairs. Clearly, estoppel was not meant to defeat the statute of limitations defense in every case where a defendant attempts to remedy problems that might otherwise lead to a lawsuit.”

Id.

Like in Cochrane, it is undisputed that Bella was aware of the cracked tile flooring from the time the hotel was issued its certificate of occupancy on April 5, 2006. Further, Bella was well aware of its right to sue MFS, and the parties agree that a two-year statute of limitations, pursuant to § 6-5-221, applies to Bella’s claims. Thus, Bella was aware of the tile-flooring defects from April 2006, and, although MFS had attempted to repair the defects for an entire year after they had been discovered without remedying the issue, Bella continued to wait a total of two years and four months from the date it was aware of the defects to file a lawsuit. We conclude that Bella could not have reasonably relied upon MFS’s continuous repair work, which never corrected, even temporarily, the defects, as a reason for failing to file suit within the applicable limitations period; therefore, we conclude that the trial court did not err in determining that the doctrine of equitable estoppel was inapplicable to Bella’s claim regarding the cracked tile flooring.

Conclusion

Accordingly, we affirm the trial court’s summary judgment in favor of MFS on Bella’s wantonness claim, third-party-beneficiary claim, negligent-hiring, -supervision, and -training claim, breach-of-contract claim, and negligent-construction claim regarding the widespread cracking of tile flooring. We reverse the trial court’s summary judgment in favor of MFS on Bella’s suppression claim and its negligent-construction claim regarding the defects other than the claim concerning the cracked tile flooring, and we remand the cause to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

BRYAN, J., concurs in the result, without writing.

      . Effective September 1, 2011, § 6-5-221(a) was amended to shorten the 13-year period to a 7-year period. See Act No. 2011-519, Ala. Acts 2011.

      . On appeal, Bella fails to argue that the trial court erred in entering a summary judgment on its wantonness, negligent-hiring, -supervision, and -training, and third-party beneficiary claims. Accordingly, we will not consider those claims on appeal, and the summary judgment in favor of MFS on those claims is affirmed. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.”).

      . Specifically, Bella repeatedly notes that an electronic-mail message from MFS’s principal sent on April 27, 2007, which was submitted as an exhibit in opposition to MFS's summary-judgment motion, stated that MFS's "intentions have always been, and still are to honor [its] obligations and remedy each and every warranty item on your hotel.”


author: BURKE, Judge.

text:
    Darryl David THOMPSON v. STATE of Alabama
    CR-10-0714.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied Jan. 27, 2012.
    Certiorari Denied June 15, 2012 Alabama Supreme Court 1110567.

      Nathan Randall Hunt, Florence, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   BURKE, Judge.

Darryl David Thompson appeals his conviction for manslaughter, see § 13A-6-3, Ala.Code 1975, and his resulting sentence of 15 years in prison. We affirm.

In September 2009, Thompson was indicted for murder. On August 3, 2010, Thompson filed a motion to suppress recorded statements that he made to law-enforcement officers shortly after midnight on February 17, 2009. Thompson argued that he was in custody when he made the statements and that the officers continued to interrogate him after he had asserted his right to counsel. On December 1, 2010, the State filed a response to Thompson’s motion to suppress, arguing that, during the questioning that occurred on February 17, 2009, Thompson was not in custody and did not invoke his right to counsel. After conducting a hearing, the trial court denied Thompson’s motion to suppress on December 7, 2010.

At trial, the State’s evidence indicated the following. On February 16, 2009, at approximately 10:00 p.m., Melissa Garrett suffered a fatal gunshot wound to the neck while at her house. Thompson and Garrett’s 12-year-old daughter were at the house when the incident occurred.

Thompson had been staying with Garrett for about a week before her death, and he and Garrett had been drinking and using drugs during that time. On the day of Garrett’s death, she and Thompson had been drinking and using drugs at her house all day. The daughter, who had been staying with a friend for about a week, arrived at her mother’s house at approximately 6:00 p.m. on the day of the incident. When she arrived home, she went to her bedroom.

Later that evening, her daughter went into Garrett’s bathroom, and she could hear Garrett and Thompson arguing in the living room. The daughter then returned to her room, where she could hear the argument escalating. The daughter then confronted Garrett and Thompson and told them that “they needed to keep it down or someone would call the cops.” (R. 315-16.) She then retrieved dirty clothes from her room and took them into the laundry room so that she could wash them.

While in the laundry room, the daughter could clearly hear Garrett and Thompson arguing. The daughter testified that she heard Garrett say that Thompson had broken her phone. The daughter also heard Garrett tell Thompson to give her gun back to her. According to the daughter, Thompson responded: “So what, you are going to shoot me now?” (R. 820.) Then Garrett replied: “How am I supposed to shoot you? You have my gun.” (R. 320.) A short time after that exchange, the daughter heard the gun fire. After the gunshot, the daughter “froze,” and one or two minutes of complete silence passed before Thompson came to the laundry room and told her that he needed to use her phone because, he said, Garrett had shot herself. (R. 321.) The daughter ran into the living room and saw Garrett lying on the couch. The daughter wanted to call emergency 911, but Thompson instructed her to call Kathy, a family friend, first because “there were drugs everywhere.” (R. 325.) After calling Kathy, the daughter called 911. After she spoke briefly with the 911 operator, the operator asked to speak to Thompson. Shortly thereafter, Kathy, law-enforcement officers, and emergency-medical personnel arrived at the house.

After the law-enforcement officers and emergency-medical personnel arrived at Garrett’s house, Thompson was asked to go outside so that the emergency personnel could do their jobs. Thompson initially complied with the request to go outside, but he repeatedly tried to reenter the house. Because Thompson repeatedly tried to reenter the house, law-enforcement officers placed him in the back of a patrol car and did not allow him to get out of the car; however, he was not handcuffed or placed under arrest.

After being in the back of the patrol car for approximately one hour, Thompson was taken to the police department and interviewed by Travis Clemons, the chief investigator for the Lauderdale County Sheriffs Office. That interview was recorded and presented at trial. Thompson objected to the admission of the interview at trial. As he did in his motion to suppress, Thompson argued that he was in custody and that the officers continued to interrogate him after he had asserted his right to counsel.

At the beginning of the interview, Thompson stated: “Okay. I have nothing to hide. I’m not, I’m not wrong (unintelligible) nothing. You know what I’m saying? I guess I got to call an attorney if I needed one, right? Is this the time now when I need to?” Investigator Clemons responded: “No, I’ll let you know right here in just a second.” Thompson replied: “Okay, no problem.” After obtaining some biographical information from Thompson and before asking him any questions concerning Garrett’s death, Investigator Clemons read Thompson his Miranda warnings. Thompson orally acknowledged that he understood his rights, and he signed a form that listed those rights and that stated that he understood and waived those rights, including his right to an attorney. Investigator Clemons also informed Thompson that he was not under arrest. At one point during the interview, Thompson asked to telephone his mother so that he could let her know what was happening, and he stated that “if she thinks I need an attorney, she will call an attorney.” Thompson was immediately allowed to call his mother, and he told her that “I don’t know if, uh, I need a lawyer or not.” After the telephone conversation with his mother ended, the interview resumed and nothing else was said about an attorney. After the interview ended, Thompson was allowed to leave.

During the interview, Thompson described how he was sitting upright immediately to Garrett’s left on the couch as they argued and as she waived the gun around in her right hand. Thompson stated that he knew that Garrett had chambered a round in the gun. Thompson stated that he grabbed Garrett’s arm in an effort to take the gun away from her, but she pulled away from him and the gun immediately fíred a bullet into her neck. During the interview, Thompson demonstrated the relative positions of Garrett and himself while they were on the couch, and he demonstrated how she pulled away from him and shot herself.

At trial, Investigator Clemons testified that he examined the couch from Garrett’s house, and he determined that the bullet that fatally wounded Garrett traveled through the right armrest of the couch and into the back, bottom-right portion of the couch, where it was found. Investigator Clemons further testified that the trajectory of the bullet was wholly inconsistent with Thompson’s description of how Garrett was shot. Also, Investigator Clemons found a broken necklace and a broken cell phone near the couch.

Valerie Green, the forensic pathologist who performed the autopsy on Garrett, testified that Garrett died from a gunshot wound to the right side of her neck. Green determined that the gunshot wound occurred from a very close range and that the gun was held at an angle to Garrett’s neck at the time the gun was fired. The entrance wound was just below Garrett’s right ear and slightly behind the ear. Green testified that, based on the soot deposition on Garrett’s skin from the gunshot and the searing and tearing of Garrett’s skin, the gun had to be actually placed against Garrett’s skin and held at a particular angle when it was fired. The exit wound was at the back-bottom portion of Garrett’s scalp. According to the autopsy report, the direction of the gunshot wound was right to left, front to back, and upward.

Green also testified that Garrett had pattern bruising and abrasions on her arms and hands. Garrett also had bruises and abrasions around her cheek and eye. Green described the bruising as “fresh.” Green testified that there was also a laceration on Garrett’s lip. Green further testified that those injuries were not related to the gunshot wound and that those injuries were consistent with a recent physical altercation.

Based on her autopsy findings, Green determined that Garrett’s death was a homicide. Green determined that Garrett’s death could not have occurred in the way Thompson described.

At the close of the State’s case, Thompson made a motion for a judgment of acquittal, arguing that the State had not presented a prima facie case of murder. The trial court denied that motion.

Thompson testified in his own defense at trial. Thompson testified concerning Garrett’s depression at the time of her death. In June 2008, Garrett was terminated from her employment as a Licensed Practical Nurse (“LPN”) at a convalescent center because she reported to work under the influence of alcohol. Because of that incident, in December 2008, Garrett entered into a consent order with the Alabama Board of Nursing that placed her LPN license on probation for 12 months. Thompson, who had known Garrett for about seven years, testified that after Garrett was terminated from her employment and placed on probation, she was more depressed and her drug use increased.

Thompson testified that, on the day of Garrett’s death, he and Garrett had been drinking alcohol and smoking cocaine. At some point Garrett passed out, and she woke up later that evening. According to Thompson, after Garrett woke up, she wanted to go to Florence to buy more drugs. Thompson testified that he and Garrett argued because he told her that he did not want to go to Florence. According to Thompson, Garrett responded to his refusal to go to Florence by stating: “Okay, give me my gun.” (R. 729.) Thompson testified that the gun was on the coffee table in front of the couch. Thompson knew that the gun was loaded. Thompson further testified that Garrett picked up the gun and began waiving it around in her right hand. Thompson admitted to making the statement: “So you are going to shoot me now?” However, Thompson denied that Garrett said: “How am I supposed to shoot you? You have my gun.” Instead, Thompson testified that Garrett said: “I’m fixing to end it. I’m fixing to end this.” (R. 735.)

Thompson testified that, during the argument, he was sitting in the middle of the couch and Garrett was sitting on the right side of the couch. Thompson stated that he and Garrett were sitting in an upright position on the front of the couch. According to Thompson, he tried to take the gun away from Garrett by grabbing her right arm; however, she pulled away from him and, as she did, she fell back and shot herself in the neck. Thompson denied shooting the gun or having it in his hand. Thompson also denied having had a physical altercation with Garrett, and he denied causing the laceration on Garrett’s lip or the bruises and abrasions that were on her arms and face.

At the close of all the evidence, Thompson renewed his motion for a judgment of acquittal, arguing that the State had not presented a prima facie case of murder. The trial court denied that motion.

Before deliberations, the trial court instructed the jury on murder and on the lesser-included offenses of manslaughter and criminally negligent homicide. On December 9, 2010, the jury found Thompson guilty of manslaughter. On February 16, 2011, the trial court sentenced Thompson to 15 years in prison. On February 22, 2011, Thompson filed a motion for a new trial, arguing that the jury’s verdict was against the great weight of the evidence. On March 25, 2011, the trial court denied Thompson’s motion for a new trial. Thompson appealed to this Court.

On appeal, Thompson first alleges that the trial court erred by denying his motion to suppress the recorded statements he made to law-enforcement officers during his interview on February 17, 2009. Thompson alleges that he was in custody when he made the statements and that the officers continued to interrogate him after he had unequivocally asserted his right to counsel. Thompson alleges that he unequivocally invoked his right to counsel at the beginning of the interview when he stated: “Okay. I have nothing to hide. I’m not, I’m not wrong (unintelligible) nothing. You know what I’m saying? I guess I got to call an attorney if I needed one, right? Is this the time now when I need to?” That statement was made before Thompson waived his Miranda rights. As our Supreme Court has stated:

“The Fifth Amendment to the United States Constitution provides that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ U.S. Const. Amend. V. In Miranda, the United States Supreme Court held that the right against self-incrimination ‘is fully applicable during a period of custodial interrogation.’ 384 U.S. at 460. The Supreme Court in Miranda further held that ‘the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.... ’ 384 U.S. at 469. Before a custodial interrogation, a suspect must be informed of these rights, now commonly referred to as Miranda rights. 384 U.S. at 444 (‘Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’). The Supreme Court in Miranda recognized that ‘the defendant may waive effectuation of these rights, provided that the waiver is made voluntarily, knowingly, and intelligently.’ Id.”

Ex parte Landrum, 57 So.3d 77, 81 (Ala.2010).

During a custodial interrogation, if the suspect unequivocally requests counsel at any time before or after the suspect waives his Miranda rights, “the interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 474. If the suspect makes an equivocal reference to an attorney after waiving his Miranda rights, the interrogating officer has no obligation to stop questioning the suspect and the officer is not required to ask questions to clarify whether the suspect actually wants an attorney. Davis v. United States, 512 U.S. 452, 459-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). However, if a suspect makes an equivocal reference to an attorney before waiving his Miranda rights, the interrogating officer is required to ask questions to clarify the reference until the suspect either clearly invokes his right to counsel or waives it. See State v. Collins, 937 So.2d 86, 93 (Ala.Crim.App.2005) (holding that “[bjeeause [the defendant] did not waive her Miranda rights before she asked the questions about obtaining a lawyer, the ambiguity of her questions required the interrogating officer to ask follow-up questions to clarify the ambiguity”).

In the present case, Thompson’s reference to an attorney was made before he waived his Miranda rights. Thus, any of Thompson’s statements made subsequent to the reference to an attorney must be suppressed if (1) the reference was an unequivocal invocation of his right to counsel or (2) he made an equivocal reference to counsel but Investigator Clemons did not ask questions to clarify the reference before obtaining Thompson’s signature on the Miranda waiver form and asking him questions concerning Garrett’s death.

In determining whether a suspect’s statement was an unequivocal invocation of his right to counsel, we are guided by the following principles:

“ ‘The applicability of the “ ‘rigid’ prophylactic rule” of Edwards[ v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981)] requires courts to “determine whether the accused actually invoked his right to counsel.” Smith v. Illinois, [469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984)] (emphasis added), quoting Fare v. Michael C., 442 U.S. 707, 719 [99 S.Ct. 2560, 2569, 61 L.Ed.2d 197] (1979). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. See Connecticut v. Barrett, supra, 479 U.S. [523], at 529 [107 S.Ct. [828] at 832 (1987) ]. Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” McNeil v. Wisconsin, 501 U.S. [171] at 178 [111 S.Ct. [2204] at 2209 (1991)].
“ ‘... As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Smith v. Illinois, 469 U.S., at 97-98 [105 S.Ct., at 494] (brackets and internal quotation marks omitted). Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476, 114 S.Ct., at 2364 (Souter, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ ”

Ex parte Cothren, 705 So.2d 861, 864 (Ala.1997) (quoting Davis, 512 U.S. at 458-59).

Furthermore, a suspect’s reference to an attorney is equivocal if “ ‘a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.’ ” Cothren, 705 So.2d at 864 (quoting Davis, 512 U.S. at 459). “[T]he proper standard to be used in resolving this issue is an objective one — whether a police officer in the field reasonably could have concluded from the circumstances that a suspect was not absolutely refusing to talk without the assistance of an attorney.” Cothren, 705 So.2d at 866-67.

Equivocal has been defined as:

“ ‘ “Having different significations equally appropriate or plausible; capable of double interpretation; ambiguous,” 5 Oxford English Dictionary 359 (2d ed., J.A. Simpson & E.S.C. Weiner, eds., 1989); and as: “Having two or more significations; capable of more than one interpretation; of doubtful meaning; ambiguous,” Webster’s Third International Unabridged Dictionary 769 (1986).’ ”

Cothren, 705 So.2d at 866 (quoting Coleman v. Singletary, 30 F.3d 1420, 1425 (11th Cir.1994)).

In the present case, Thompson stated: “I guess I got to call an attorney if I needed one, right? Is this the time now when I need to?” First, that statement is clearly making an inquiry and is not positively declaring anything. Second, Thompson stated, “I guess I got to call an attorney....” Thompson’s use of the word “guess” could have reasonably led Investigator Clemons to conclude that Thompson was not certain whether he wished to answer questions without the presence of an attorney. See Cothren, 705 So.2d at 866 (holding that the phrase “I think I want to talk to an attorney” was not an unequivocal request for an attorney because the “use of the word ‘think’ could have led [the interrogating officer] to conclude that [the suspect] was not certain as to what he should do”). Finally, Thompson stated, “I guess I got to call an attorney if I needed one.... ” Thompson’s use of the phrase “if I needed one” lacks any indication of an absolute present desire to consult with an attorney. Instead, that phrase indicates that Thompson might desire counsel if he determines that he needs counsel. See Henry v. State, 265 Ga. 732, 735-36, 462 S.E.2d 737, 743 (1995) (holding that the suspect’s statement “ T might need one. If I need one,’ was at best an ambiguous and equivocal statement regarding his desire to assert his right to counsel”). Based on the objective standard set forth in Davis and Cothren, a reasonable officer in Investigator Clemons’s position would have understood only that Thompson might desire to invoke his right to counsel if he deemed that he needed counsel. Investigator Clemons could not have reasonably concluded from the circumstances that Thompson was absolutely refusing to talk without the assistance of an attorney. Therefore, Thompson’s reference to an attorney was, at best, an equivocal assertion regarding his right to counsel.

Considering that Thompson’s pre-waiver reference to an attorney was, at best, an equivocal assertion regarding his right to counsel, the second half of our inquiry is whether Investigator Clemons fulfilled his duty to ask questions to clarify Thompson’s reference to an attorney before obtaining his signature on the Miranda waiver form and asking him questions concerning Garrett’s death.

Initially, we note that Thompson does not specifically argue that, to the extent his reference to an attorney was equivocal, Investigator Clemons did not fulfill his duty to further clarify the meaning of the reference before proceeding with the interrogation. Thompson contends only that he “made a clear and unequivocal request for counsel.” (Thompson’s brief, at 25-26.) Therefore, this issue is not properly presented to this Court for review. See Rule 28(a)(10), Ala. R.App. P. (providing that the brief of an appellant shall contain “an argument containing the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on”); see also Woods v. Federated Mut. Ins. Co., 31 So.3d 701 (Ala.Civ.App.2009) (holding that “[fit is not the duty of the appellate court to make arguments for the parties, nor is it the appellate court’s duty to conduct the parties’ legal research”).

In any event, we conclude that Investigator Clemons fulfilled his duty to clarify the meaning of Thompson’s statement before proceeding with the interrogation. Before Investigator Clemons obtained Thompson’s signature on the Miranda waiver form or asked him any questions concerning Garrett’s death, the following colloquy occurred:

“Clemons: But before I ask you any questions, (unintelligible) there, I’m going to go ahead and read you your Miranda rights, I understand, they’ve already been read to you?
“Thompson: They’ve already done that. Yes, sir, they sure have.
“Clemons: Well, I’m going to read them to you again then.
“Thompson: Okay, not a problem. Not a problem.
“Clemons: Before we ask you any questions, you must understand your rights. Your rights are as follows: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You understand that, right?
“Thompson: Yes, sir. Yes, sir.
“Clemons: Okay. You have the right to talk to a lawyer and to have him present with you while you are being questioned. Do you understand that?
“Thompson: Yes, sir. I sure do.
“Clemons: If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You understand that?
“Thompson: Yes. Yes, sir.
“Clemons: You can decide at any time to exercise these rights and not answer any questions or make any statements. You understand that?
“Thompson: Yes, sir.
“Clemons: Okay. Alright, I have, read or have had these rights read to. me of my rights. I understand what my rights are. I am willing to make a statement and answer any questions. I do not want a lawyer present at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Do you understand that?
“Thompson: I understand that. Can I ask a question?
“Clemons: Sure can.
“Thompson: Um, what are you charging me with?
“Clemons: I’m not. You’re not under arrest.
“Thompson: Okay. I’m just, I mean this is all formality. I understand that right there, but I mean I have nothing to hide. I mean, I’m just here to let you know what happened and that’s it. You know, I mean, you know.
“Clemons: Okay. If you understand that and you’re willing to talk to us, just sign this right there.
“Thompson: Sure. I don’t have a problem with this, sir.”

In that' colloquy, Investigator Clemons made perfectly clear that Thompson could have an attorney present while he was being questioned and that, if he desired an attorney but could not afford to hire one, one would be appointed to represent him before any questioning occurred. Investigator Clemons specifically asked Thompson if he understood those rights, and Thompson unequivocally stated that he understood those rights. Investigator Clemons also gave Thompson the opportunity to ask any questions that he desired to ask before he signed the waiver form. Investigator Clemons’s statements precisely answered Thompson’s earlier inquiry regarding when he could obtain counsel.

In order to clarify whether Thompson fully understood his rights concerning counsel, Investigator Clemons specifically asked Thompson whether he understood the statements concerning those rights and Thompson stated that he understood. Also, Thompson did not ask any more questions concerning those rights when he was given the opportunity to ask questions. Therefore, we conclude that, before Investigator Clemons obtained Thompson’s signature on the Miranda waiver form or asked him any questions concerning Garrett’s death, Investigator Clemons fulfilled his duty to clarify any ambiguity that resulted from Thompson’s earlier equivocal reference to an attorney. Thus, we hold that Thompson knowingly and intelligently waived his Miranda rights and that the trial court did not err in denying his motion to suppress.

Next, Thompson alleges that the trial court erred in denying his motion for a new trial because, he says, the jury’s verdict was against the great weight of the evidence. Thompson does not argue that the State failed to prove a prima facie case of manslaughter against him.

Under § 13A-6-8, Ala.Code 1975, a person commits the crime of manslaughter if “he recklessly causes the death of another person.” Section 13A-2-2, Ala.Code 1975, provides, in relevant part: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Initially, we note:

“ ‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, “viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.”
“ ‘In contrast, “the ‘weight of the evidence’ refers to a ‘determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. “ ‘The credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” ’ ”

Seaton v. State, 645 So.2d 341, 342-43 (Ala.Crim.App.1994), quoting Johnson v. State, 555 So.2d 818, 819-20 (Ala.Crim.App.1989) (citations omitted).

“Once a prima facie case has been submitted to the jury, this Court will not upset the jury’s verdict except in extreme situations in which it is clear from the record that the evidence against the accused was so lacking as to make the verdict wrong and unjust. Deutcsh v. State, 610 So.2d 1212, 1234-35 (Ala.Cr.App.1992). This Court will not substitute itself for the jury in determining the weight and probative force of the evidence. Benton v. State, 536 So.2d 162,165 (Ala.Cr.App.1988).”

May v. State, 710 So.2d 1362, 1372 (Ala.Crim.App.1997).

“Furthermore, on appeal, there is a presumption in favor of the correctness of the jury verdict. Saffold v. State, 494 So.2d 164 (Ala.Cr.App.1986). Although that presumption of correctness is strong, it may be overcome in a limited category of cases where the verdict is found to be palpably wrong or contrary to the great weight of the evidence. Bell v. State, 461 So.2d 855, 865 (Ala.Cr.App.1984).”

Henderson v. State, 584 So.2d 841, 851 (Ala.Crim.App.1988).

In the present case, the jury’s verdict finding Thompson guilty of manslaughter was not palpably wrong or contrary to the great weight of the evidence. It is undisputed that Garrett died from a gunshot wound to her neck and that Thompson had physical contact with her very close to the time that she was shot. Thompson also admitted that he knew that the gun was loaded. Thompson testified that Garrett shot herself. However, the State presented evidence indicating that Thompson’s version of the events was impossible and that a physical altercation occurred between Thompson and Garrett near the time of her death. This case does not present a situation where it is clear from the record that the evidence against Thompson was so lacking as to make the jury’s verdict wrong and unjust. The credibility of the witnesses and the weight and probative force of their testimony was for the jury to determine. We hold that the jury’s verdict was not against the great weight of the evidence; thus, the trial court did not err in denying Thompson’s motion for a new trial.

Finally, Thompson argues that the trial court erred by denying his motion for a judgment of acquittal because, he says, “[t]he State of Alabama failed to prove a prima facie case of murder in that it provided no evidence, direct or circumstantial, that the defendant intentionally caused the death of the alleged victim, Melissa Garrett.” (Thompson’s brief, at 31.) However, Thompson was not convicted of murder.

This Court addressed this same issue in Davenport v. State, 968 So.2d 27 (Ala.Crim.App.2005), stating:

“The appellant further argues that the trial court erroneously denied her motions for a judgment of acquittal at the close of the State’s case and at the close of all of the evidence because the evidence did not support a conviction for murder. However, she was not convicted of murder. Rather, she was convicted of the lesser included offense of manslaughter.
“ ‘ “Only the count upon which appellant was found guilty is subject to appellate review.” DeFries v. State, 597 So.2d 742, 744 (Ala.Crim.App.1992) (quoting Hammond v. State, 354 So.2d 280, 284 (Ala.Crim.App.), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978)).’
“Snell v. State, 677 So.2d 786, 791 (Ala.Crim.App.1995). Therefore, the appellant’s argument is moot.”

968 So.2d at 32.

Likewise, in the present case, Thompson was convicted of manslaughter, not murder. Because Thompson was not found guilty of murder, that charge is not subject to appellate review. Therefore, Thompson’s argument is moot.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

WELCH, P.J., and WINDOM, KELLUM, and JOINER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Before Investigator Clemons read Thompson his Miranda warnings, Thompson acknowledged that someone had read those warnings to him at some point before the interview. However, Investigator Clemons stated that he wanted to read the warnings to Thompson again, and he did so.


author: PER CURIAM.

text:
    Chadwick BANKS, Appellant, v. STATE of Florida, Appellee.
    No. SC11-2232.
    Supreme Court of Florida.
    May 31, 2012.
    Rehearing Denied Sept. 7, 2012.
    Terri L. Backhus of Backhus and Iza-kowitz, P.A., Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


author: BENTON, C.J.

text:
    UNIFIRST CORPORATION, Appellant, v. CITY OF JACKSONVILLE, TAX COLLECTOR’S OFFICE, a Florida municipal corporation, Appellee.
    No. 1D09-0820.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied March 25, 2012.
    Kevin S. Sanders, Jacksonville, for Appellant.
    Richard A. Mullaney, General Counsel, and Carol Mirando, Assistant General Counsel, Jacksonville, for Appellee.
   ON MOTION FOR REVIEW OF AWARD OF ATTORNEY’S FEES AND COSTS

BENTON, C.J.

Appellant’s motion for review of award of attorney’s fees and costs is granted in part. The circuit court shall reduce the award against Kevin S. Sanders by any amount attributable to any litigation other than the proceedings in this court that eventuated in the denial of the motion for rehearing (filed on December 15, 2009) by order entered March 25, 2010.

In the absence of even a motion for attorney’s fees in the supreme court, there is no basis for an award of attorney’s fees incurred in proceedings in the supreme court. See Milanick v. Osborne, 6 So.3d 729, 731 (Fla. 5th DCA 2009) (holding Osborne not entitled to attorney’s fees incurred defending against Milanick’s attempt to obtain discretionary review of the Fifth District’s opinion in the supreme court where Osborne “did not request an award of fees incurred with respect to the supreme court proceedings”); Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998) (holding motion for attorney’s fees was necessary predicate).

HAWKES and THOMAS, JJ., concur.