author: MAXWELL, J.,

text:
    Kewon EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00028-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.

      Sanford E. Knott, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In the appeal of his conviction of seven counts of aggravated assault, Kewon Evans raises a single challenge. He asserts that, during voir dire, the trial judge improperly secured from potential jury members a commitment to find Evans guilty.

¶ 2. While it is impermissible to ask the jury to pledge a verdict based on a hypothetical question couched in the particular facts of the case, here we find the trial judge did not ask for such a pledge. Instead, he asked questions to ascertain any preconceived notions about what type of evidence the State would have to produce in order to find Evans guilty. Because asking these questions was well within the trial judge’s discretion, we find no reversible error. We affirm Evans’s conviction.

Background

¶ 3. On the night of September 14, 2010, Evans got into a fight outside of Club Platinum in Gunnison, Mississippi. According to two eyewitnesses, Evans began shooting toward the club. The bullets penetrated the club’s walls, hitting seven patrons. An eighth person was injured during the ensuing chaos.

¶ 4. The State charged Evans with eight counts of aggravated assault. After the State rested, the trial judge granted Evans a directed verdict on count eight — the assault count involving the injured victim who had not been shot. The seven remaining counts were submitted to the jury, who found Evans guilty on each count. The trial judge sentenced him to five years’ imprisonment on each count, to be served consecutively, for a total of thirty-five years. Evans timely appealed.

Discussion

¶ 5. In his appeal, Evans makes a single assertion of error. Evans claims he is entitled to a new trial based on questions the trial judge asked during voir dire— questions his trial counsel had not found objectionable. Because the trial judge acted well within his discretion when asking these questions, we find no abuse of discretion, let alone the plain error needed. So we affirm.

I. No Objection During Yoir Dire

¶ 6. During voir dire, the prosecution asked the venire, “If the State does not produce a gun as evidence that was used by an alleged shooter, will you hold that against the State?” Evans made no objection. And four people raised their hands. When the State finished its questions, the trial judge followed up with these four potential jurors. He asked a series of questions culminating in this request: “[Ijrrespective of the explanation, if you’re going to require that [the State] bring a gun into this courtroom before you can vote guilty, raise your hand.”

¶ 7. Again, Evan’s trial counsel made no objection to this line of questioning as being improper. In fact, when discussing whether one of the jurors who raised his hand should be stricken for cause, Evans’s trial attorney joked that he “wish[ed] [the juror] would have been quiet.”

¶8. But Evans’s appellate counsel takes a quite different view, asserting that the trial judge, by asking those questions about the gun, improperly sought a commitment from jurors to vote a certain way. Because no objection was made during trial, this issue is procedurally barred. See Simmons v. State, 805 So.2d 452, 505 (¶ 148) (Miss.2001) (citing Edwards v. State, 737 So.2d 275, 308 (¶ 103) (Miss. 1999)) (holding “failure to object during voir dire barred the issue from being raised on appeal”). So for us to reverse, Evans must show the trial judge’s questions amounted to plain error. See Avery v. State, 119 So.3d 329, 333 (¶ 11) (Miss.Ct. App.2012) (reviewing claim that prosecution improperly secured pledge from jury for plain error); see also Minor v. State, 89 So.3d 710, 715 (¶ 17) (Miss.Ct.App.2012) (discussing plain-error doctrine and its requirements).

II. No Request that the Jury Pledge a Specific Verdict

¶ 9. We find Evans has shown no error at all, let alone an “obvious” error prejudicially affecting the outcome of the trial. See Minor, 89 So.3d at 715 (¶ 17).

¶ 10. A trial judge has “broad discretion in passing on the extent and propriety of questions that are addressed to the venire.” Comer v. State, 744 So.2d 793, 796 (¶ 9) (Miss.Ct.App.1999) (quoting Davis v. State, 684 So.2d 643, 651 (Miss. 1996)). However, this broad discretion is not -without limit. In particular, “[h]ypo-thetical questions couched in the facts of the particular case asking the venire to pledge a specific verdict are impermissible.” Manning v. State, 835 So.2d 94, 97 (¶ 7) (Miss.Ct.App.2002) (citing Harris v. State, 532 So.2d 602, 606, 607 (Miss.1988)); see also URCCC 3.05. But in fulfilling his or her “responsibility to control voir dire,” a trial judge “must take care not to hinder a full exploration of a juror’s predispositions, by hypothetical [question] or otherwise.” Id. (quoting Evans v. State, 725 So.2d 613 (¶ 128) (Miss.1997)). Because “the line between a proper and improper question is not always easily drawn[,] ... the trial judge must be given a considerable amount of discretion.” Id.

¶ 11. So “for there to be per se error, the questions must be a direct request for a promise for a specific verdict.” Simmons, 805 So.2d at 505 (¶ 149); see also Comer, 744 So.2d at 796 (¶ 9) (citation omitted) (“[Wjhere no specific request is made to secure a promise of a guilty verdict[,] reversible error does not occur.”). But here, Evans concedes the trial judge did not cross this clear line by asking venire members to pledge a specific verdict if the State proved a particular set of facts. Thus, we find no plain, clear, or obvious error was committed. See Minor, 89 So.3d at 715 (¶ 17) (holding that reversal under plain-error doctrine requires the trial court to have made an error that is “plain, clear[,] or obvious”).

¶ 12. In fact, no error was committed at all because the trial judge was well within his broad discretion when asking the veni-re about any preconceived notions regarding what evidence was required to convict Evans. Despite acknowledging the fact the judge did not request a commitment of a specific verdict, Evans nevertheless insists the judge’s questions were out-of-bounds because they suggested the jury could find Evans guilty without the State having shown it had retrieved the gun from Evans. But it is clear from the transcript that the purpose of the trial judge’s questions was to fully explore some of the venire members’ expressed predispositions that they would not convict unless the State produced the gun used to shoot the seven victims. And both the Mississippi Supreme Court and this court have found that questions along these lines are well within the trial judge’s discretion. See, e.g., Goff v. State, 14 So.3d 625, 652-54 (¶¶ 110-12) (Miss.2009); Simmons, 805 So.2d at 504-05 (¶¶ 146-49); Manning, 835 So.2d at 96-98 (¶¶5-9); Corner, 744 So.2d at 794-96 (¶¶ 5-9).

¶ 13. For example, in Manning, this court found no abuse of discretion when the trial judge permitted the State to ask the venire if anyone would require eyewitness testimony or scientific evidence to find the defendant guilty of murder. Manning, 835 So.2d at 96-97 (¶ 5). Instead of improperly “securing] a pledge from the jurors that they would return a certain verdict given a certain set of facts,” the State through its questions “was trying to ascertain: (1) whether the jurors could put aside the fact that there were no eyewitnesses to the shooting, and (2) whether they had any preconceived notions that a certain type of scientific evidence should be presented.” Id. at 98 (¶ 9).

¶ 14. Similarly, in Comer, this court found that “merely ask[ing] whether the venire would still be able to consider a guilty verdict even though there was no weapon, fingerprint, DNA, or confession evidence ... was within the permissible range of acceptable questioning.” Corner, 744 So.2d at 796 (¶ 9); see also Goff v. State, 14 So.3d 625, 652-54 (¶¶ 110-12) (Miss.2009) (finding no impropriety in the State asking the jury if they could set aside preconceived notions regarding forensic evidence and convict the defendant of murder even if no DNA evidence was produced).

¶ 15. The only difference between this case and Manning and Comer is that, here, the trial judge, not just the prosecutor, asked if the jury would be able to convict even if no gun was admitted into evidence. Because the judge did not request a specific verdict but instead merely asked whether potential jurors had preconceived notions about what evidence needed to be produced, we find the judge acted within his broad discretion during voir dire.

¶ 16. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF SEVEN COUNTS OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR EACH COUNT, TO BE SERVED CONSECUTIVELY, FOR A TOTAL OF THIRTY-FIVE YEARS, AND TO MAKE FULL RESTITUTION TO EACH VICTIM, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The judge's full line of questions was as follows:
      ... I don’t know what the facts are. But do you understand that sometimes, ... if someone uses a gun to commit a crime, I mean they can dispose of the gun. They may throw it in a garbage can, they may throw it in the Mississippi River, they may throw it wherever, and it never gets found. Now in that situation, the State is not going to have a gun because they could not find it. Under those circumstances — like I say, I don't know what the circumstances are here — but are you telling me that even though they couldn’t find a gun you would require that they bring a gun into the courtroom before you could find him guilty? Is that what you’re telling me? ... [Irrespective of the explanation, if you’re going to require that they bring a gun into this courtroom before you can vote guilty, raise your hand. Now don’t be embarrassed just because I’m talking about it now. If you’re going to require it, let me know.

      . As support, Evans cites Mickell v. State, 735 So.2d 1031 (Miss. 1999), an opinion that does not confront hypothetical questions asked during voir dire. Instead, Mickell dealt with the jury asking the judge, during their deliberations, whether they could convict the defendant of armed robbery even though the State never recovered the gun. Id. at 1033 (¶ 5).
      Because the jury had also been instructed on the lesser-included offense of robbery, the Mississippi Supreme Court found that "[t]he fact that the jury asked the question at all indicates that there may well have been jurors who had concluded that the State’s failure to recover a weapon was sufficient to raise a reasonable doubt that the crime of armed robbery had been committed.” Id. at 1034 (¶ 13). Thus, the "pronouncement by the trial court,” over the defendant's objection, "that such evidence was not essential to a conviction for armed robbery could easily have undermined a legitimate analysis of the strength of the State’s proof.” Id.

      Here, we do not have empaneled jurors in the midst of deliberation being instructed by a judge on how to view the already presented evidence in response to a note about the fact the State had presented no arms in an armed-robbery case. Instead, we have potential jurors being questioned about their preconceived notion that a certain piece of evidence — the gun used to shoot the seven victims — is essential to convict, when admission of this physical evidence is not a necessary element of the charged crimes. So Mic-kell does not support a finding of plain error here.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Billy J. FIELDS, Appellant/Cross-Appellee v. CITY OF CLARKSDALE, Mississippi, Appellee/Cross-Appellant.
    No. 2011-CA-01013-COA.
    Court of Appeals of Mississippi.
    Feb. 18, 2014.

      Derek D. Hopson, Clarksdale, David Neil McCarty, attorneys for appellant.
    Curtis D. Boschert, attorney for appel-lee.
    Before IRVING, P.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. The continuing saga of Captain Billy J. Fields’s termination in 2007 from the City of Clarksdale Fire Department for alleged insubordination is again before this Court. And the merit of the controversy has yet to be finally decided. Fields appeals and asks this Court to remand the case to the Coahoma County Circuit Court solely for a determination of his entitlement to back pay or damages. The City of Clarksdale (“City”) filed a cross-appeal seeking remand to the circuit court for a hearing on the merits because a transcript of the hearing before the civil service commission (“Commission”) had been filed and was ready for review. We conclude that this case, in its entirety, should be remanded to the circuit court for a hearing on the merits, including a determination of back pay and damages if Fields was wrongfully terminated.

FACTS AND PROCEDURAL HISTORY

¶ 2. The procedural history in this case is long and winding. The battle over a transcript that is the subject of this appeal began in 2007 when the Commission informed Fields of the cost of preparing the record for his appeal of his termination to the circuit court. Fields v. City of Clarksdale, 27 So.Bd 464, 466 (¶ 5) (Miss.Ct.App. 2010). On October 18, 2007, Fields filed a motion requesting the City pay the costs of having the transcript prepared. Id. The circuit court dismissed Fields’s appeal with prejudice after it found that he did not timely seek the court’s assistance in securing the transcript. Id. Fields appealed this dismissal. We reversed and remanded the case, finding that Fields was entitled to notice of the deficiency of his appeal, i.e., no transcript, and an opportunity to correct the deficiency. Id. at 468 (¶ 11). Fields again moved to have the City bear the cost of the transcript. The circuit court granted that motion on February 26, 2010.

¶ 8. The circuit court entered an order on February 26, 2010, compelling the City to pay the cost of preparing the transcript and to produce it within thirty days. Just prior to that order, the Commission wrote a letter to the court reporter requesting the transcript. The Commission then sent two more letters, one in April and one in May, requesting the transcript once again. After the court reporter did not produce the transcript, Fields filed a motion for contempt on September 8, 2010. The Commission then filed a one hundred and fifty-five page record on October 18, 2010; however, the transcript was not included, as it had not been prepared. The City also submitted a memo to the circuit court requesting that Fields be required to show specific prejudice by the missing transcript since the remainder of the record had been filed. It submitted that Mississippi Rule of Appellate Procedure 10(c) was applicable because there was no transcript available. The City also filed a formal complaint against the court reporter with the Mississippi Board of Certified Court Reporters for her failure to produce the transcript.

¶4. The circuit court entered another order on October 21, 2010, addressing Fields’s motion for contempt. In its order, the circuit court stated that the City had a duty to pay for the transcript and the Commission had the burden to produce the transcript. Further, the Commission had twenty-one days to produce the transcript or Fields would “be reinstated to his previous position and [the circuit court would] address the issue of damages, if necessary, at a subsequent hearing.” The Commission then filed a motion asking the circuit court to use its subpoena power to compel the court reporter to produce the transcript, and also requesting a stay of the October 21, 2010 order. The City filed a motion joining the Commission’s motion to stay and asked the circuit court to not reinstate Fields even if the transcript was not filed. The City additionally sought relief under Mississippi Rule of Appellate Procedure 10(c) or (d).

¶ 5. Without ruling on the City’s or the Commission’s motions, the circuit court entered an order on November 15, 2010, reinstating Fields to his former position because the transcript was not filed within twenty-one days. As a result, Fields was reinstated to his previous position “with the same rank, pay, rights!,] and privileges.” The order, prepared by Fields’s attorney and signed by Judge Kenneth Thomas, had several sentences on the last page blacked out. According to Fields’s brief, the blacked-out language set a hearing on damages and back pay for November 18, 2010. The record also shows a separate order entered the same day granting the City’s ore tenus motion to continue the hearing on damages and back pay from November 18, 2010, “until further notice.”

¶ 6. After numerous attempts by the Commission and the City to have the court reporter produce the transcript, including lodging a formal complaint with the Board of Certified Court Reporters, the court reporter finally produced the transcript, and it was promptly filed on January 5, 2011. The following day, the City filed its motion to vacate the November 15, 2010 order reinstating Fields and to have the circuit court hear the appeal on the merits. Judge Thomas retired at the end of 2010, and a new circuit judge, Judge Johnnie E. Walls Jr., replaced him. Judge Walls reviewed the City’s motion, and he entered an order on May 30, 2011, that refused to vacate the order reinstating Fields because the Commission was given “more than ample time in which to have the transcript prepared and protect [Fields’s] rights with a full and complete judicial review.” Fields requested Judge Walls review the issue of back pay and damages left unaddressed in the November order. However, he refused.

¶ 7. It is from this final order denying all parties relief that both parties appeal. Fields filed his notice of appeal on June 24, 2011; the City filed its notice of cross-appeal on July 8, 2011. Fields appeals the circuit court’s refusal to address the issue of damages in its May 2011 order. The City raises three issues for review:

I. Whether the circuit court had authority to direct the [City] to pay the costs of the transcript and record for Fields’s appeal in its February 26, 2010 order.
II. Whether the circuit court erred when it reinstated Fields without using its authority to ensure that a record was produced so that it could properly review the [Commission’s] order terminating Fields for insubordination.
III.Whether the circuit court should have granted the [City’s] motion to vacate ... after the court reporter completed the transcript and the Commission filed it with the circuit court.

ANALYSIS

¶8. First, Fields argues that the circuit court erred in refusing to address whether he was entitled to back pay and damages as a result of his termination. We find that the issues raised by the City in its cross-appeal are dispositive; therefore, addressing the issue of damages is unnecessary. The City’s cross-appeal involves the circuit court’s denial of a motion to vacate and refusal to reopen the case for a hearing on the merits after a transcript had been filed.

¶ 9. Judge Thomas’s November order reinstated Fields due to the Commission’s failure to secure and file the transcript. An order entered the same day postponed a hearing on damages and back pay to a later date; however, a hearing on damages and back pay was never rescheduled or held. Because this November order did not resolve the issue of damages, it cannot be considered a final judgment from which an appeal would lie. Instead, Judge Walls’s May order denying both parties relief is the final judgment for appeal, as it reaffirmed Fields’s reinstatement and specifically found that the circuit court would not address Fields’s entitlement to back pay or damages. No issues were left to resolve; thus, Judge Walls’s May order is the final judgment that we review on appeal. We find the standard of review of this matter is abuse of discretion and manifest error.

I. COST OF TRANSCRIPT

¶ 10. The City first argues that the circuit court erred in ordering it to pay the costs of preparing the transcript. We agree. Uniform Rule of Circuit and County Court 5.01 provides the following: “Except for cases appealed directly from justice court or municipal court, all cases appealed to circuit court shall be on the record and not a trial de novo. Direct appeals from justice court and municipal court shall be by trial de novo.” Uniform Rule of Circuit and County Court 5.02 outlines the duty to make the record as follows:

In appeals on the record!,] it is the duty of the lower court or lower authority (which includes, but is not limited to, state and local administrative agencies and governing authorities of any political subdivision of the state) to make and preserve a record of the proceedings sufficient for the court to review. Such record may be made with or without the assistance of a court reporter. The time and manner for the perfecting of appeals from lower authorities shall be as provided by statute.

(Emphasis added). Mississippi Code Annotated section 21-31-71 (Rev.2007) provides, in pertinent part: “The [Commission] shall ... make, certify!,] and file such transcript with [the circuit court].” Implicit in that language is that the Commission should bear the initial cost of preparing the transcript. We cannot find support for the circuit court’s decision to order the City as the appellee to bear the costs of preparing the transcript. However, should the City prevail on the merits of Fields’s appeal, then the costs of appeal, including transcription costs, may ultimately be assessed by the circuit court against Fields.

II. MOTION TO VACATE

¶ 11. The City’s final issues involve the circuit court’s reinstatement of Fields based on the Commission’s failure to file the hearing transcript with the circuit court, and the circuit court’s subsequent denial of the City’s motion to vacate Fields’s reinstatement and to have a hearing once the transcript was completed and filed. We address both issues in this section, and we find that the circuit court abused its discretion and manifestly erred in refusing to review the appeal on the merits once the hearing transcript was filed with the circuit court.

¶ 12. Fields was reinstated solely as a result of the court reporter’s failure to provide a transcript to the Commission to be filed with the circuit court, and his reinstatement was not based on the merits of his case. Pursuant to section 21-31-71,-the burden to produce and file the record, including the transcript falls squarely on the Commission. The record shows that both the Commission and the City repeatedly attempted to contact the court reporter to pay for and secure the transcript, but for reasons beyond their control, the court reporter refused. Additionally, the Commission and the City sought the circuit court’s help in compelling the court reporter to provide the transcript. However, the circuit court failed to offer its assistance and power to compel production of the transcript, and did not address these motions before it reinstated Fields. Neither the City nor the Commission has the power to compel the court reporter to provide a transcript, and requests to have the circuit court compel the court reporter to provide the transcript went unanswered. Uniform Rule of Circuit and County Court 5.05 states: “The court, on its own motion or on application of any party, may compel the compilation and transmission of the record of proceedings.” (Emphasis added). The circuit court had the authority, within its inherent power and at the request of the Commission and City, to compel the court reporter to complete the transcript when it became clear that the transcript could not be secured through other avenues. The circuit court failed to respond to the Commission’s and the City’s requests and did not exercise its power to compel under Rule 5.05. There appears to be no other legal recourse available for the City or the Commission to obtain the transcript. In Jackson Police Department v. Lawrence, 562 So.2d 84, 87 (Miss.1990), the Mississippi Supreme Court noted that the Commission functioned “as a neutral ‘officer’ of the judiciary....” The burden was statutorily placed on the Commission, as a neutral officer of the judiciary, to produce the transcript, and not on the City. It follows that the Commission’s failure to produce a transcript, through no fault of its own, should not punish the “City.” Without any compulsion from the circuit court, the court reporter finally prepared the transcript, and the transcript was promptly filed with the circuit court. Still the circuit court refused to hear the appeal on the merits.

¶ 13. We find that the circuit court’s refusal to hear the case on the merits once a transcript was filed was an abuse of discretion and was manifestly erroneous; we reverse the circuit court’s judgment and remand this case for the circuit court to allow Fields to pursue his appeal in accordance with Mississippi Code Annotated section 21-31-71 and Rule 5.03.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . This court reporter’s license was revoked by the • Board of Certified Court Reporters in 2009.

      . The scope of an appeal from an administrative agency, such as the Commission, is generally governed by Uniform Rule of Circuit and County Court 5.03, which states that the appellate court reviews the administrative agency's decision to determine if the decision "1. [w]as supported by substantial evidence; or 2.[w]as arbitrary or capricious; or 3.[w]as beyond the power of the lower authority to make; or 4.[v]iolated some statutory or constitutional right of the complaining party.” Further, Mississippi Code Annotated section 21-31-71 (Rev.2007) provides that the scope of review of the Commission’s decision regarding termination of a city employee is limited to examination of the record to determine whether there exists credible evidence substantiating the city’s action, and on that basis the court determines whether the decision was in good faith for cause. Beasley v. City of Gulfport, 724 So.2d 883, 885 (¶ 12) (Miss. 1998). While the present case does involve an appeal from an administrative agency, we are not reviewing a decision from the administrative agency; therefore, Rule 5.03 and section 21-31-71 are not the applicable standards of review in the present appeal.

      . Additionally, "Rule 5.05 of the Uniform Rules of Circuit and County Court ... places a duty on the appellant to see that the record is filed with the proper court within thirty days of filing the notice of appeal.” Zurich Am. Ins. Co. of Ill. v. Beasley Contracting Co., 779 So.2d 1132, 1135 (¶ 13) (Miss.Ct.App. 2000). We note that while the record shows that Fields did request that the circuit court compel the Commission to file the transcript, he took no steps to ask the circuit court to compel the court reporter to produce the record. He simply rested on his request that the Commission provide the transcript and did nothing more to facilitate the production of the transcript and, ultimately, a full review of his appeal.


author: BARNES, J.,

text:
    ICE PLANT, INC., Appellant v. Tavaris GRACE, Appellee.
    No. 2012-CA-01150-COA.
    Court of Appeals of Mississippi.
    March 4, 2014.

      Michael Andrew Rueff, Toby Justin Gammill, Jackson, attorneys for appellant.
    John T. Kitchens, Brandon, Joe N. Tatum, Taurean Buchanan, attorneys for ap-pellee.
   BARNES, J.,

for the Court:

¶ 1. Tavaris Grace was granted a $350,000 default judgment against Ice Plant Inc., and its employee, Allan Walker, for injuries sustained in a vehicle accident. Ice Plant and Walker moved to set aside the default judgment. Finding that Walker did not receive proper service of process, the trial court granted Walker’s motion. However, the default judgment was upheld against Ice Plant, which now appeals. Finding no abuse of discretion in the trial court’s decision to deny Ice Plant’s motion, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 9, 2010, Grace and Walker were involved in a motor-vehicle accident on Highway 49 in Rankin County, Mississippi. Walker was driving an eighteen-wheeler truck owned by Ice Plant. Grace filed suit in the Rankin County Circuit Court against Walker and Ice Plant, alleging negligence. A summons and complaint were served on Phillip Maples, Ice Plant’s owner and registered agent for service of process. Maples was also served with process for Walker.

¶ 3. After neither defendant answered the complaint, Grace was granted a default judgment. A bench trial on damages was held, and the trial court entered its final judgment, on November 22, 2011, awarding Grace $350,000. Ice Plant and Walker subsequently filed a “Motion to Set Aside Default Judgment” on December 22, 2011, “pursuant to Rule 55(c) and Rule 60(b) of the Mississippi Rules of Civil Procedure.” After a hearing, the trial court entered an order on May 29, 2012, finding that service of process on Walker was insufficient since Maples was not an agent authorized by Walker to accept service of process. Therefore, the trial judge concluded that “the default judgment and final judgment as they relate to Allan Walker must be set aside.” See Turner v. Deutsche Bank Natl Trust Co., 65 So.3d 336, 338 (¶8) (Miss.Ct.App.2011) (“If service of process [is] deficient, the default judgment entered against [the defendant] is void and must be set aside.”). However, as to Ice Plant, the trial court denied its motion to set aside the judgment, and Ice Plant filed its notice of appeal on June 27, 2012.

¶ 4. On appeal, Ice Plant argues that “the trial court abused its discretion in failing to set aside the default judgment[,]” and committed error in failing to hold a hearing on damages. Upon review, we find no abuse of discretion in the trial court’s denial of the motion. Furthermore, since the transcript of the hearing on damages was included in the (supplemental) record, Ice Plant’s argument on this issue is moot. Accordingly, we affirm the trial court’s judgment.

STANDARD OF REVIEW

¶ 5. As a preliminary matter, we note that this Court has jurisdiction to consider the appeal, despite the fact that the trial court action is still pending against Walker. While Mississippi Rule of Civil Procedure 54(b) states a court’s order that “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties” is interlocutory without the entry of a Rule 54(b) certification, this case involved a default judgment that was final as to all parties. Had a Rule 59 or Rule 60 motion been filed by Ice Plant within ten days after the judgment, the finality of the judgment would have been stayed, and a Rule 54(b) certification would have been required before this Court could acquire jurisdiction, since the order would not have been final as to all parties. See M.R.C.P. 54(b). However, Ice Plant filed its motion to set aside the judgment under Rule 60(b) more than ten days after the entry of the judgment. As the Mississippi Supreme Court has recently observed, unlike a motion filed under Rule 59, a Rule 60 motion “do[es] not toll the time for appeal or the enforceability of a judgment.” Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp., 124 So.3d 643, 645 (¶ 9) (Miss.2013) (citing Bruce v. Bruce, 587 So.2d 898, 903 (Miss. 1991)). “Rule 60(b) motions ... proceed on the assumption that the trial court has entered a valid and enforceable judgment which has become final.” Sweet Valley, 124 So.3d at 646 (¶ 9) (quoting Bruce, 587 So.2d at 904) (emphasis added). “[A]n order denying a motion under Rule 60(b) is final and appealable.” Overbey v. Murray, 569 So.2d 303, 305 (Miss.1990). Therefore, the fact that the case is still pending against Walker in the trial court does not deprive this Court of jurisdiction over Ice Plant’s appeal.

¶ 6. Appeals from a Rule 60 motion are reviewed for abuse of discretion. Tyler v. Auto. Fin. Co., 113 So.3d 1236, 1239 (¶9) (Miss.2013) (citing Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988)). “Rule 60(b) is for extraordinary circumstances, for matters collateral to the meritsf.]” Bruce, 587 So.2d at 903. Therefore, “a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this [C]ourt’s review to whether reconsideration was properly denied under Rule 60(b).” Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236 (¶8) (Miss.Ct.App. 2013). “This [C]ourt has no jurisdiction to consider the merits of the underlying judgment.” Id.; see also Bruce, 587 So.2d at 903 (“An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” (citation omitted)).

ANALYSIS

I. Whether the trial court erred in denying Ice Plant’s motion to set aside the default judgment.

¶ 7. Ice Plant asserts that the trial judge should have granted its motion to set aside the default judgment, as it was not aware of the action filed by Grace until the final default judgment was entered on November 22, 2011. Ice Plant also claims that its insurance carrier, QBE, was in negotiations with Grace, but was never informed of the pending action.

¶ 8. “When a party fails to answer [a complaint], and a trial court enters a default judgment, the circumstances that allow that default judgment to be set aside are clear.” Olive v. Malouf, 94 So.3d 1254, 1257 (¶ 8) (Miss.Ct.App.2012). A trial court may set aside a default judgment under Rule 60(b) “[f]or good cause shown.” M.R.C.P. 55(c). Generally, “the extraordinary relief provided for by Rule 60(b) will be granted only upon an adequate showing of exceptional circumstances, and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.” Tyler, 113 So.3d at 1241 (¶ 18) (quoting Accredited Sur., 535 So.2d at 58).

“To determine whether to grant relief according to Rule 60(b), we apply a three-pronged balancing test.” Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (¶ 10) (Miss.2009). That test mandates weighing the following factors: (1) the nature and legitimacy of a defendant’s reasons for default (i.e., whether a defendant has good cause for default), (2) whether the defendant has a color-able defense to the merits of the claim, and (3) the nature and extent of prejudice that a plaintiff would suffer if default is set aside. Id.

Olive, 94 So.3d at 1257 (¶8). The trial judge in the present case properly considered the three prongs of the balancing test regarding whether to grant relief under Rule 60 and found nothing to warrant setting aside the judgment against Ice Plant.

¶ 9. Ice Plant said that its failure to answer the complaint was not due to negligence; it was simply a mistake, and its insurance carrier, QBE, failed to get the summons and complaint. The record shows that Ice Plant’s president was properly served with process. However, as Ice Plant explains in its brief: “[T]hrough some unknown mistake, that documentation never made it to the necessary person, which led to a delay in QBE assigning counsel to defend Ice Plant and Allen Walker, and a delay in responding to the suit.” But as the trial judge noted, even though Ice Plant forwarded the summons and complaint to its insurance carrier, albeit “to the wrong person,” Ice Plant subsequently failed to take any further action until the default judgment was entered “5 to 6 months later.” Ice Plant neglected to follow up with QBE regarding the pending action. Thus, we agree that Ice Plant did not provide a legitimate reason, or “good cause,” for its failure answer Grace’s complaint.

¶ 10. The trial court found that the second prong favored Ice Plant “only by the slimmest of margins.” Ice Plant said that it had a “meritorious defense” to Grace’s claims, but it provided no affidavit from Walker regarding the accident. Ice Plant merely provided a copy of the un-sworn police report and a conclusory affidavit from Ice Plant’s general manager, which stated that Walker was a trained and qualified driver and unlikely to operate the truck in “a manner which involved an unreasonable risk of physical harm to himself or others.”

¶ 11. As to the third prong, Ice Plant argues that Grace did not provide any proof “to a reasonable degree of medical certainty” that he requires surgery. Thus, it claims Grace would suffer no prejudice as a result of setting aside the judgment. In its order addressing the motion to set aside the default judgment, the trial court noted that Grace “has severe injuries, is in need of surgery that he cannot afford and has been without a resolution of this lawsuit for months as a result of Ice Plant’s failure to answer in a timely fashion.” Consequently, the trial court found that Grace “would suffer prejudice if the default judgment is set aside.” The supreme court has held that if “the period of delay caused by the defendant’s default” leaves the injured plaintiff “without a resolution to his claim for that period of time,” this “constitutes prejudice.” Rogillio, 10 So.3d at 472 (¶ 23) (citation omitted). “[T]he plaintiff ‘may have been subject to prejudice from the granting of the motion in the sense that [he] would have been put to trial some months following the date when [he] would have originally been able to obtain a trial setting had the defendant responded promptly.’ ” Id. (quoting H & W Transfer & Cartage Sen. Inc. v. Griffin, 511 So.2d 895, 899 (Miss.1987)). When the trial court granted the default judgment, it had already been a year since the accident. Accordingly, we find no abuse of discretion in the trial court’s finding that Grace would suffer prejudice from setting aside the default judgment.

¶ 12. Ice Plant also argues that since the judgment against Walker was set aside, the default judgment against it should be set aside. As Ice Plant notes in its appellant’s brief:

As of today, there has been no adjudication that Allan Walker was negligent.
[S]etting aside the default [judgment] against Allan Walker left an open question as to whether Mr. Walker was negligent, and whether his negligence proximately caused [Grace’s] injuries. Since the claims against Ice Plant are intimately tied to, and depend on, a finding that Allan Walker was negligent, it is an injustice to hold Ice Plant accountable for [Grace’s] damages while these issues of liability against Allan Walker are still outstanding.

(Emphasis added). Nevertheless, as Grace argues, under the doctrine of re-spondeat superior, he may recover damages from Ice Plant, without Walker’s being a party to the action. As this Court recently held: “Under the doctrine of re-spondeat superior, the employer and employee are jointly and severally liable for injury caused by the employee’s negligence.” Sykes v. Home Health Care Affiliates, Inc., 125 So.3d 107, 109 (¶ 7) (Miss.Ct.App.2013) (citing Capital Transp. Co. v. McDuff, 319 So.2d 658, 661 (Miss.1975)). The plaintiff “may sue either the employer or the employee, or both.” Id. (citation omitted).

American Jurisprudence states the general rule as to necessary parties: “The right of an injured party to sue the employer is a direct or primary right because the claim is distinct and separate from the claim against the employee; therefore, the employee is not a necessary party to an action against an employer.” Am.Jur.2d Employment Relationship § 400 (2004). In fact, there have been suits based upon re-spondeat superior in which the negligent employee was never made a party.

Sykes, 125 So.3d at 109 (¶ 7). Ice Plant does not deny Walker was acting as an employee when the accident occurred. Therefore, Ice Plant may be held liable for Walker’s alleged negligent actions regard-

less of whether Walker is a party on appeal.

¶ 13. After reviewing the evidence and arguments presented by Ice Plant, we find the trial judge’s decision to deny Ice Plant’s motion was not an abuse of discretion.

II. Whether the transcript of the damages hearing was required to support the default judgment.

¶ 14. Although not addressed in its motion to set aside the default judgment, Ice Plant argues on appeal that there was no transcript of the damages hearing to support the default judgment. “An on-the-record hearing must be held prior to the entry of [a] default judgment under which unliquidated damages are requested.” Woodkrest Custom Homes Inc. v. Cooper, 108 So.Sd 460, 468 (¶ 8) (Miss. Ct.App.2013) (quoting Capital One Servs. v. Rawls, 904 So.2d 1010, 1018 (¶ 26) (Miss. 2004)). As already noted, appellate review of the denial of the Rule 60(b) motion does not require that we address the merits of the underlying judgment. Regardless, as this Court has been provided the transcript of the November 22, 2011 hearing on damages, we find Ice Plant’s argument is moot.

¶ 15. We do observe that the award of damages does appear excessive in light of the testimony and evidence. In addition to the listed medical expenses, vehicle-damage costs, and wage losses, the trial judge awarded Grace $287,493.29 for physical pain and suffering, but never explained his reasoning for the award. At the hearing on proof of damages, Grace provided a mere four pages of testimony regarding his injuries, only stating he still had pain in his back and that it had affected his ability to participate in extracurricular activities with his children, and occasionally required him to go on “light duty” at work “some days.”

¶ 16. Yet Ice Plant did not contest the amount of damages recovered by Grace in its motion to set aside the default judgment. “Failure to object to an issue below operates as a waiver of the ability to assert the issue as error on appeal.” Davis-Everett v. Dale, 926 So.2d 279, 282 (¶ 5) (Miss.Ct.App.2006) (citing Foley v. State, 914 So.2d 677, 689 (¶26) (Miss.2005)). The comments to Rule 55 of the Mississippi Rules of Civil Procedure provide that “[i]f [the defendant] wishes an opportunity to challenge plaintiffs right to recover, his only recourse is to show good cause for setting aside the default under Rule 55(c) and, failing that, to contest the amount of recovery.” (Emphasis added). Ice Plant did not contest the amount of recovery in the trial court below and cannot do so for the first time on appeal. Consequently, Ice Plant’s failure to object to the amount of damages bars the issue from appellate review.

¶ 17. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., ISHEE, CARLTON, MAXWELL and FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., NOT PARTICIPATING.

      . In the meantime, Walker filed an answer to the original complaint on June 21, 2012. Grace then filed a motion to stay proceedings against Walker pending the appeal by Ice Plant on July 18, 2012. An agreed order was entered, staying proceedings against Walker on September 14, 2012, but this order is not part of the official record on appeal.

      . Compare M.R.A.P. 4(d) (Timely filing of a Rule 59 motion or a motion for relief under Rule 60 within ten days after the entry of judgment tolls the time for filing a notice of appeal.) ■with M.R.C.P. 59(e) (motion to alter or amend judgment must be filed within ten days of entry of judgment).


author: MOORE, Judge. PITTMAN, Judge, MOORE, Judge,

text:
    NORANDAL U.S.A., INC. v. Welton GRABEN.
    2080679.
    Court of Civil Appeals of Alabama.
    March 12, 2010.

      Claude E. Hundley III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellant.
    George Allen Moore of Johnston, Moore & Thompson, Huntsville, for appellee.
   MOORE, Judge.

This is the second time these parties have been before this court. In Norandal U.S.A., Inc. v. Graben, 18 So.3d 405, 416 (Ala.Civ.App.2009), this court reversed a judgment of the Jackson Circuit Court ordering Norandal U.S.A., Inc. (“the employer”), to pay Welton “Sonny” Graben (“the employee”) permanent-total-disability benefits pursuant to Ala.Code 1975, § 25-5-57(a)(4)d., a part of the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq., on account of a July 10, 1997, right-knee injury. This court held that, in deciding whether the employee’s right-knee injury “ ‘ “extended] to other parts of the [employee’s] body and interfere^] with their efficiency,” ’ ” see Ex parte Drummond Co., 837 So.2d 831, 834 (Ala.2002), so as to fall outside “the schedule,” Ala.Code 1975, § 25-5-57(a)(3)a., the trial court had erred in considering injuries to the employee’s hip, lower back, and right shoulder, which injuries had been conclusively determined to have been caused by a noncompensable April 3, 2004, fall. 18 So.Sd at 410-11. This court further overruled Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005) (plurality opinion authored by Murdock, J., with Crawley, P.J., concurring, and Thompson, Pittman, and Bryan, JJ., concurring in the result), aff'd, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007), which the trial court had relied upon in determining that the pain the employee experiences from the right-knee injury justified treating the injury as an injury to the body as a whole. 18 So.3d at 416. The court adopted a new “pain exception” to the schedule based on the supreme court’s language in footnote 11 in Ex parte Drummond and remanded the case for the trial court to consider whether the pain from the right-knee injury “totally, or virtually totally, physically disable[s]” the employee. Id.

On remand, the trial court entered a revised judgment in which it determined that the employee’s right-knee injury should be compensated outside the schedule for two reasons. First, the trial court concluded that the right-knee injury had altered the gait of the employee, thereby causing symptoms in his hip and low back. Second, the trial court determined that the pain from the right-knee injury totally, or virtually totally, physically disables the employee. The employer timely appealed.

On appeal, the employer is again arguing that the trial court erred in awarding the employee disability benefits outside the schedule.

The Alteredr-Gait Theory

Alabama law has long recognized that an injury to the leg of a worker that alters the manner in which the worker walks and thereby produces pain or other symptoms in the hip or back of the worker constitutes an injury to the body as a whole. See, e.g., Henderson v. Johnson, 49 Ala. App. 191, 269 So.2d 905 (1972); Warrior Stone & Contracting Co. v. De Foor, 241 Ala. 227, 2 So.2d 430 (1941). In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), our supreme court succinctly explained the reason such injuries should not be compensated within the schedule as a loss, or a loss of use, of the leg:

“[Although the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, ... then the employee is not limited in his recovery ... to the amount allowed under the schedule for injury to the one member.”

282 Ala. at 646, 213 So.2d at 811. In Ex parte Drummond, supra, our supreme court restated that portion of the Bell test when it held that “ ‘if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” 837 So.2d at 834 (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)).

In Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App.2007) (“Jackson I”), this court interpreted Ex paHe Drum-mond as altering the Bell test to require that a worker prove that the effects of an injury to a scheduled member cause or contribute to a permanent physical injury to other parts of the worker’s body in order to receive unscheduled disability benefits. This court issued Jackson I on May 4, 2007. On November 16, 2007, the supreme court granted Jackson’s petition for a writ of certiorari, reversed this court’s judgment, and held that the test adopted in Ex parte Drummond does not require proof of permanent physical injury to other parts of the body. Ex parte Jackson, 997 So.2d 1038 (Ala.2008). On remand, this court, on May 2, 2008, affirmed the judgment awarding permanent-total-disability benefits to Jackson based on the altered-gait theory asserted by Jackson. Boise Cascade Corp. v. Jackson, 997 So.2d 1042 (Ala.Civ.App.2008) (“Jackson II ”).

The trial court entered its original judgment in this case in June 2007, between the date this court issued its opinion in Jackson I and the date the supreme court issued its opinion in Ex parte Jackson. In the June 2007 judgment, the trial court determined that only the 2004 fall had caused the employee’s hip and back pain. In Graben, supra, this court noted that some evidence in the record indicated that the employee’s altered gait had caused or contributed to the employee’s hip and back pain, while other evidence linked those symptoms to the April 2004 fall. We concluded that the trial court had resolved the conflicting evidence on the source of the hip and back problems by attributing them to the 2004 fall. 18 So.3d at 410-11. This court further held that, because the employee had not filed a cross-appeal, under the law-of-the-case doctrine, we were bound by the trial court’s finding that the 2004 fall had caused the employee’s hip and back pain. 18 So.3d at 410. Accordingly, this court held that the award of unscheduled benefits could not be affirmed on the basis of the evidence supporting an altered-gait theory. 18 So.3d at 413.

On remand, although this court had directed the trial court to determine solely whether the pain in the employee’s right knee totally, or virtually totally, disables the employee, 18 So.3d at 416, see Travis v. Travis, 875 So.2d 1212, 1214 (Ala.Civ. App.2003) (“[0]n remand, ‘ “the trial court’s duty is to comply with the appellate mandate ‘according to its true intent and meaning, as determined by the directions given by the reviewing court.’ ” ’ ” (quoting Ex parte Jones, 774 So.2d 607, 608 (Ala. Civ.App.2000), quoting in turn Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983), quoting in turn Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983))), the trial court revised its findings of fact to support an award of unscheduled benefits under the altered-gait theory. In its revised judgment, the trial court reasoned that it had not addressed the effect of the employee’s altered gait on his hip and back in the original judgment because, at that time, it was bound by the opinion in Jackson I, which required additional evidence indicating that the altered gait had caused a permanent physical injury to those areas of the employee’s body. The trial court stated that if Ex parte Jackson and Jackson II had been available for its review in June 2007, it would have considered the effects of the employee’s altered gait on his hip and back. Based on the legal standard set out in those latter opinions, the trial court stated that it

“now specifically finds that while the employee injured his right shoulder and back as a result of the fall of April 3, 2004, he also has suffered an altered gait because of the right knee injury and that has caused or contributed to cause his lower back and hip problems.”

The trial court also found that the effects of the employee’s right-knee injury interfere with the normal functioning of the employee’s hip and low back. The trial court then concluded that the employee would be entitled to unscheduled disability benefits pursuant to the altered-gait theory.

The trial court’s reasoning contradicts this court’s analysis in Graben. In Gra-ben, this court concluded that the trial court had already addressed the source of the employee’s hip and low-back problems and had ascribed those problems to the 2004 fall. 18 So.3d at 410-11. The employee argues that our discussion on that point was dicta; however, that discussion was essential to our decision that the original judgment could not be affirmed on the altered-gait theory despite the trial court’s failure to rely on that theory in its original judgment. 18 So.3d at 413.

Under the “law of the case” doctrine, ‘“[t]he issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.’” Travis v. Travis, 875 So.2d at 1214 (quoting Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001)). “[W]hatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). The law-of-the-case doctrine “will not permit the trial court to reverse itself.” Quimby v. Memorial Parks, Inc., 835 So.2d 134, 135 (Ala.2002). The doctrine also prevents a trial court from entering, on remand, a judgment that would “ ‘render meaningless the decision of the [appellate court] in the first appeal.’ ” Alfa Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 684 So.2d 1295, 1302 (Ala.1996). In this case, the facts on which the trial court based its original judgment did not change, only its assessment of those facts changed.

Although we recognize that an intervening change in the law may warrant deviation from the law-of-the-case doctrine, see Ex parte Discount Foods, Inc., 789 So.2d 842, 846 n. 4 (Ala.2001), the change generally must be such that the original decision is now clearly erroneous due to reliance on the old law. See 18B Wright et al., Federal Practice & Procedure: Jurisdiction 2d § 4478 n. 59 (2002). In this case, on remand, the trial court indicated that it did not apply the altered-gait theory in its original judgment because of the holding in Jackson I; however, the trial court was required to set out all of its factual findings and conclusions of law relevant to the issues litigated by the parties in its original judgment. See Ala. Code 1975, § 25-5-88. Nowhere in that judgment did the trial court indicate that it had declined to award the employee unscheduled benefits based on the altered-gait theory due to this court’s decision in Jackson I. Rather, as we concluded in Graben, the judgment reveals only that the trial court did not apply the altered-gait theory because it determined, as a matter of fact, that the employee’s hip and low-back problems resulted solely from the 2004 fall.

Moreover, the changes to the law made in Ex parte Jackson and Jackson II do not affect the correctness of that factual finding. Although the employee had already developed an antalgic gait before April 3, 2004, a great deal of the medical and other evidence indicates that the employee did not complain of hip problems until after the 2004 fall and that his severe back pain and associated symptoms did not begin until after that fall. Substantial evidence continues to support the factual determination that the 2004 fall caused the employee’s hip and back problems. The changes in the law announced in Ex parte Jackson and Jackson II do not in any manner render the original factual findings clearly erroneous.

Based on the foregoing reasoning, we reverse that portion of the trial court’s judgment on remand purporting to award the employee permanent-total-disability benefits based on the altered-gait theory.

The Pain Exception

As explained above, in Bell v. Driskill, supra, our supreme court stated the rule that injuries to scheduled members affecting other unscheduled parts of the body fall outside the schedule. Based on that test, when the injury causes pain wholly within the scheduled member, the schedule remains the exclusive remedy. However, the Bell court further declared that the schedule would not apply when “the injury causes an abnormal and unusual incapacity with respect to the member.” 282 Ala. at 646, 213 So.2d at 811. Based on that so-called “second prong” of the Bell test, see Ex parte Drummond, 887 So.2d at 834 n. 10, this court issued numerous opinions affirming unscheduled compensation awards on the basis of lingering and disabling pain isolated to a scheduled member. See, e.g., Gold Kist, Inc. v. Casey, 495 So.2d 1129 (Ala.Civ.App.1986); and Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.1979).

In Ex parte Drummond, our supreme court determined that this court had unduly expanded the intended reach of the Bell test by, among other things, deviating from the schedule on the basis of pain contained entirely within a scheduled member. 837 So.2d at 834-35. The Drummond court abolished the second prong of the Bell test, 837 So.2d at 834 n. 10., overruled our caselaw relying on isolated pain as a ground for avoiding the schedule, 837 So.2d at 834-35, and restated the test for distinguishing scheduled injuries from unscheduled injuries, as set out above.

Although the body of the opinion in Ex parte Drummond appeared to clarify that pain contained wholly within a scheduled member would no longer take an injury outside the schedule, in footnote 11 the Drummond court stated:

“This case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation; therefore, we decline to address that situation here.”

837 So.2d at 836 n. 11. Footnote 11 expressly recognizes that, in some “situation,” pain may cause a disability to the body as a whole although emanating solely from a scheduled member. The language in the footnote further implies that such a “situation” occurs when pain isolated to a scheduled member is “totally, or virtually totally, debilitating” to the worker. Hence, in Graben, supra, this court adopted that language as the test for determining when pain isolated to a scheduled member transforms that impairment into an unscheduled injury. 18 So.3d at 416.

This court phrased the test as requiring proof of total, or virtually total, physical disability because Ex parte Drummond holds that an injury to a scheduled member may not be treated as unscheduled based on evidence of the vocational disability arising therefrom. 837 So.2d at 834 n. 8. In Advantage Sales of Alabama, Inc. v. Clemons, 36 So.3d 517 (Ala.Civ.App.2008), this court held that a trial court must first determine whether an impairment meets the Ex parte Drummond test for treatment as an unscheduled injury before considering evidence of vocational disability. Moreover, to prove a total vocational disability, a covered worker does not have to prove entire physical disability. See Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); Mead Paper Co. v. Brizendine, 575 So.2d 571 (Ala.Civ.App.1990). Accordingly, the Drummond court obviously did not intend that the schedule could be circumvented on the basis that the employee has sustained a total, or virtually total, vocational disability. See Ex parte Baggett, 1 So.3d 1021, 1021-22 (Ala.2008) (Murdock, J., concurring specially) (pointing out that using evidence of a total vocational disability in order to circumvent the schedule would “effectively unwind” the holding in Ex parte Drum-mond). Rather, the Drummond court had to be referring in footnote 11 to physical disability.

Ex parte Drummond further instructs this court that the pain exception should be construed strictly. As this court has previously recognized, the Drummond court intended “a reining in ... of the manner of computing benefits where the only impairment claimed is to a scheduled member.” Ex parte Fort James Operating Co., 905 So.2d 836, 844 (Ala.Civ.App. 2004). Ex parte Drummond created a “more stringent test” for circumventing the legislated remedy. Alabama Workmen’s Comp. Self-Insurers Guar. Ass’n, Inc. v. Wilson, 993 So.2d 451, 453 (Ala.Civ. App.2006). Accordingly, any judicially created exception to the schedule must be applied narrowly. See Ex parte Addison Fabricators, Inc., 989 So.2d 498 (Ala.2007). The pain exception should not be applied so that it swallows the rule of exclusivity and returns the law to its pre-Ex parte Drummond state in which the schedule almost never controlled the compensation due for an impairment to a listed member. See 1 T. Moore, Alabama Workers’ Compensation § 14:16 (Supp. 2009). Just recognizing a pain exception to the schedule injects uncertainty into an area purposefully intended to be certain, see Ex parte Addison Fabricators, Inc., 989 So.2d at 504 (recognizing that the legislature instituted the schedule to minimize controversy and to assure speedy payment of benefits); the test should not be applied in such a manner as to add to that uncertainty and to lead to the type of litigation the legislature specifically intended to avoid when it created the schedule. See id. In keeping with Ex parte Drummond and the legislative intent behind the schedule, the test is not satisfied by evidence that the worker experiences “abnormal,” constant, and severe pain even when not using the affected member, see Johnson, 984 So.2d at 1144-45; rather, it requires competent proof that whatever pain the worker experiences completely, or almost completely, physically debilitates the worker.

In determining whether the evidence satisfies this exceedingly high standard, a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of pain in the scheduled member, including its own observations. See generally Nance v. Nance, 640 So.2d 953 (Ala.Civ.App.1994). That evidence would include the worker’s own subjective complaints, even if those complaints are unsupported by or contradict the medical evidence. See generally Unexcelled Mfg. Corp. v. Ragland, 52 Ala. App. 57, 289 So.2d 626 (Civ.1974). Although Justice Parker advocated in his writings concurring specially in Ex parte Masterbrand Cabinets, Inc., 984 So.2d at 1151, and in Ex parte Jackson, 997 So.2d at 1042, that workers should be required to provide objective evidence that disabling pain exists in order to prove that type of pain contemplated by footnote 11 in Ex parte Drummond, a majority of the supreme court did not adopt that position. Hence, this court rejects the employer’s contention that the law should require a worker’s subjective complaints of pain to be supported by objective evidence. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991) (requiring Social Security disability claimants to support subjective complaints of pain with “(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain”).

In this case, the record, when viewed in a light most favorable to the findings of the trial court, see Ex parte Southern Energy Homes, 873 So.2d 1116, 1122 (Ala.2003), contains substantial evidence showing that the employee had experienced virtually unremitting pain in his right knee since he injured his knee on July 10, 1997. That pain did not prevent the employee from performing strenuous manual labor for the next four years until the plant where the employee worked closed; however, the pain had worsened to the point that, at the time of trial in May 2007, the employee was suffering constant throbbing, sometimes sharp, right-knee pain on a scale of 7 out of 10, which pain would increase in reaction to wet and cold weather conditions and with any attempt to engage in physical activities. Due to that pain, the employee has been restricted from lifting greater than 20 pounds occasionally and greater than 10 pounds frequently, running, bending at the knee, crawling, squatting, stooping, climbing ladders, and sitting, standing, or walking for prolonged periods of time. The pain also disturbs his sleep. The employee remains able to walk, but the pain in his right knee slows and alters his natural gait and affects his balance. To obtain some relief from his pain, the employee limits his physical activities, takes the medications Mobic and “Neopectin,” and lays down two to three hours per day.

However, the record contains no evidence to support the trial court’s findings that the employee needs assistance dressing himself, bathing, and preparing meals, and that the employee cannot shop for groceries. The employee himself testified that he dresses himself, although more slowly than he once did, and that he helps his wife shop for groceries. The employee presented no evidence as to his bathing and meal preparation. The record also does not contain any evidence supporting the trial court’s finding that the employee spends the majority of time in bed or in a recliner on bad days when his pain is at its greatest.

Although the right-knee pain significantly reduces the ability of the employee to physically function, it does not virtually totally physically disable him, as the trial court found. The pain does not completely, or almost completely, prevent the employee from using his upper extremities, lifting light objects, driving, walking, climbing the stairs leading into his home, sitting, standing, occasionally fishing, or traveling. The employee testified that he regularly spends his days observing his sons’ farming activities, meeting and eating lunch with an old friend, and taking care of his three grandchildren. Despite his right-knee pain, the employee retains significant ability to perform physical activities.

Based on the strict test we adopted in Graben, the pain in the employee’s right knee does not qualify him for unscheduled disability benefits. We therefore hold that the trial court erred in treating the employee’s impairment to his right leg as an unscheduled injury to his body as a whole. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

PITTMAN and MOORE, JJ., concur specially, with writings.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion, specifically including that portion of the main opinion construing the “pain” exception to recovery under the schedule of members in the Workers’ Compensation Act as being limited to pain that “completely, or almost completely, physically debilitates the worker.” 133 So.3d at 392. That test is consistent with the principles of law set forth in Alabama Workmen’s Comp. Self-Insurers Guar. Ass’n, Inc. v. Wilson, 993 So.2d 451, 453-54 (Ala.Civ.App.2006), which I authored. Moreover, I believe that such a stringent standard is in keeping with the intent of the Act as amended in 1992, when the legislature expressly recognized that the workers’ compensation laws and decisions then prevailing “ha[d] unduly increased cost to employers in the state, driven away jobs, and produced no concomitant benefit.” Act No. 92-537, 1992 Ala. Acts, § 1. In my view, in order to ward off a return of those unwanted effects, the judiciary must remain vigilant to prevent the expansion of liability under the Act in the area of scheduled-member injuries to only those situations in which a genuinely debilitating physical impairment has occurred.

MOORE, Judge,

concurring specially.

Pursuant to statute, decisions of our supreme court govern the holdings and decisions of this court. See Ala.Code 1975, § 12-3-16. Likewise, when the supreme court has not decided a particular question of law that is before this court but has indicated in dicta what it would decide if the question came before it, this court is bound to follow such indication. See United States Steel Corp. v. Wood, 40 Ala.App. 481, 114 So.2d 538 (1958), reversed on other grounds, 269 Ala. 5, 114 So.2d 551 (1959). In this case, the supreme court has not decided that totally or virtually totally debilitating pain isolated to a scheduled member should be compensated outside the schedule listed in Ala.Code 1975, § 25-5-57(a)(3)a.; however, in footnote 11 in Ex parte Drummond Co., 837 So.2d 831, 836 (Ala.2002), the supreme court indicated in dicta that, in an appropriate case, it would so rule. Consequently, this court has no choice but to follow that dicta.

Nevertheless, I find myself confounded by the reasoning of Drummond. On the one hand, the body of the Drummond opinion utterly rejects isolated pain as a basis for deviating from the schedule, 837 So.2d at 834 n. 10, and states a fairly clear test requiring proof that the effects of the injury to the scheduled member extend to and impair other parts of the body. 837 So.2d at 834. On the other hand, footnote 11 in Drummond indicates that totally or virtually totally debilitating pain should be considered sufficient to take an injury outside the schedule even if that pain does not extend to and impair other parts of the body. That footnote seems totally contradictory to the body of the opinion. Moreover, the footnote does not explain why severely debilitating pain should be used as criteria to take an injury outside the schedule. It would seem that if pain itself does not affect the exclusivity of the schedule remedy, the severity of the pain would likewise not affect the remedy.

That is not to say that pain isolated to a scheduled member should be disregarded. Although the schedule is not intended to compensate for pain and suffering itself, see Ex parte American Blakeslee Manufacturing Co., 19 Ala.App. 547, 98 So. 817 (1924), pain that causes a loss of use of a scheduled member is compensable to the extent of the resulting impairment. See Ala.Code 1975, § 25-5-57(a)(3)d. If severely debilitating, pain may even justify a finding that the injured worker has sustained a total loss of use of the affected member. See General Elec. Co. v. Baggett, 34 So.3d 708 (Ala.Civ.App.2009). But it hardly follows that pain isolated to a scheduled member, if severe enough, should be treated as adversely affecting other parts of the body when, in reality, it does not.

In my opinion, using severe pain as a basis for deviating from the schedule totally undermines the legislative purpose of the schedule. By enacting a schedule, the legislature plainly intended to eliminate litigation regarding the benefits due a worker who sustains an injury to a scheduled member. The legislature envisioned that the benefits for injuries to a knee, for example, would be easily calculable and payable by reference solely to the schedule and without resort to administration by the courts. That purpose is thwarted when a totally subjective variable such as pain enters the calculus. That criteria, being almost impossible to demonstrate by objective proof, renders the schedule totally inconclusive and demands administration of the claim by the court system to determine if the nature, duration, and intensity of the pain sufficiently justifies a departure from the schedule. In this case alone, for example, the trial court has twice awarded nonscheduled benefits based on the employee’s complaints of pain in the knee, only to twice have this court reverse that decision. That entire exercise with its associated costs and delays would have been avoided if the schedule remedy was completely respected and severe debilitating pain was not considered an exception to its exclusivity.

I urge the supreme court to revisit the “pain exception” to the schedule and to declare that it does not exist. Until it does, however, as a member of this court, I will continue to acknowledge that, in the very limited circumstances set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of nonscheduled benefits.

      . So phrased, the test differs materially from the test advocated in Masterbrand Cabinets, Inc. v. Johnson. Thus, those cases applying and distinguishing Johnson are no longer applicable or instructive. "The cases decided after Johnson, but before Graben, .... do not provide us with precedential value regarding the decision to award benefits outside the schedule based on debilitating pain” under the Graben test. Wehadkee Yam Mills v. Harris, 31 So.3d 150, 159 (Ala.Civ.App.2009). Hence, we do not consider the employer’s argument in this case that, because the evidence does not satisfy the now-discarded Johnson test, it is necessarily insufficient to meet the Graben test.

      . In addition to his right-knee pain, the employee informed Dr. Shelinder Aggarwal on July 17, 2006, that he continues to suffer pain rated as 7 out of 10 in his right shoulder, lower back, left hip, and left leg due to the injuries received in his noncompensable 2004 fall. At trial, the employee testified that the pain in his right leg was worse than the pain in his left leg.

      . The employee has been using a cane, crutch, or walking stick since 2005, but the employee informed Myrtice Carr, the employer's vocational expert, that he relies on those assistive devices to compensate for a left-foot-drop condition caused by his noncompensable back injury.

      . Mobic is the brand name for meloxicam, a nonsteroidal anti-inflammatory medication. Myrtice Carr, the employer’s vocational expert, testified that she was unable to identify “Neopectin” in medical literature. The employee testified that he also takes gabapentin and Lyrica for nerves and burning in his feet. Those problems are unrelated to the right-knee injury.

      . The employee testified that he lays down two to three hours per day to obtain some relief for pain in both his back and his right knee.

      . In questioning Myrtice Carr, the employer's vocational expert, the employee’s attorney indicated that Carr had erred in documenting that the employee had recently taken a Las Vegas vacation, arguing that the employee had never been to Las Vegas; however, Carr maintained that the employee told her he had gone to Las Vegas, and no witness testified to the contrary.

      . At one time, the employee owned and operated a cattle farm, but he testified that he had given that farm to his sons "several years ago.”


author: MURDOCK, Justice.

text:
    Ex parte Welton GRABEN. (In re Norandal U.S.A., Inc. v. Welton Graben.)
    1090874.
    Supreme Court of Alabama.
    June 21, 2013.
    George Allen Moore of Johnston, Moore & Thompson, Huntsville, for petitioner.
    Claude E. Hundley III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for respondent.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   MURDOCK, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

MOORE, C.J., and STUART, PARKER, SHAW, MAIN, and WISE, JJ., concur.

BOLIN, J., dissents.

BRYAN, J., recuses himself.