author:
ROBERTS, J., MAXWELL, J.,
      JAMES, J.,

text:
    Stephen YARBROUGH a/k/a Steven Yarbrough a/k/a Stephen T. Yarbrough a/k/a Steven Tracy Yarbrough a/k/a Stephen Tracy Yarbrough, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00292-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.

      Jane E. Tucker, Jackson, James W. Craig, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. The Lowndes County Circuit Court denied Stephen Yarbrough’s motion for post-conviction relief (PCR) after an evi-dentiary hearing by finding that he waived any conflict involving his trial attorney Rodney Ray’s simultaneous representation of Deputy Clint Sims, Yarbrough’s alleged victim, and Yarbrough. We find that there was an actual conflict between Ray’s representation of Yarbrough and Deputy Sims, that Yarbrough did not waive that conflict, and that the conflict deprived Yar-brough of effective representation at trial. Therefore, we reverse and render the circuit court’s denial of Yarbrough’s PCR motion, and we remand for a new trial on the merits.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 13, 2006, Deputy Sims and Yarbrough engaged in a struggle resulting in Deputy Sims seeking medical treatment for restricted breathing allegedly caused by Yarbrough choking him. Yarbrough was indicted on one count of aggravated assault of a law-enforcement officer for causing or attempting to cause “serious bodily injury to Clint Sims, a law[-]enforcement officer ..., by a means likely to produce death or serious bodily harm.... ” The indictment was later amended to reflect Yarbrough’s habitual-offender status under Mississippi Code Annotated section 99-19-81 (Supp.2018) and to strike the word “serious.”

¶ 8. Yarbrough had retained Ray for some pending drug charges prior to his altercation with Deputy Sims, and Ray agreed to represent Yarbrough in both cases. Yarbrough’s trial proceeded with the primary evidence being Deputy Sims’s and Yarbrough’s conflicting testimony regarding the incident. They were the only two eyewitnesses to the scuffle, and they both testified at trial. Yarbrough was ultimately found guilty and sentenced, as a habitual offender, to thirty years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 4. Represented by the Office of Indigent Appeals, Yarbrough directly appealed his conviction and sentence, and this Court affirmed both in 2008. See Yarbrough v. State, 996 So.2d 804 (Miss.Ct.App.2008) (mandate issued January 7, 2009). However, claims of an attorney conflict and ineffective assistance were not raised or addressed in his appeal and were not apparent in the appellate record. Yarbrough sought relief from the Mississippi Supreme Court for leave to file a PCR motion, with the primary issues being the attorney conflict and ineffective assistance. Ray represented Deputy Sims in an August 2006 divorce proceeding. Then, in March 2007, Ray also filed a petition for contempt against Deputy Sims’s ex-wife on Deputy Sims’s behalf. Deputy Sims’s ex-wife filed her answer and counterclaim in April 2007. Yarbrough’s trial began on May 15, 2007, and the final order in the contempt action was not entered until later that same year. The supreme court granted Yarbrough’s motion for leave to file a PCR motion on July 28, 2009. The supreme court order also stated that the circuit court “shall hold a hearing” on the PCR motion; the circuit court held hearings on April 27, 2010, and November 23, 2010.

¶5. The facts underlying the conflict were elucidated at the evidentiary hearings. According to Janice Gilliam, Yar-brough’s mother, Ray informed her that he knew Deputy Sims, and he thought he could get Deputy Sims to drop the charges. Gilliam also explained that Ray did not elaborate on his relationship with Deputy Sims until the day of Yarbrough’s trial. Ray’s prior and current representation of Deputy Sims was not disclosed to the circuit court at the time of trial. Gilliam also stated that she was never advised about any problems that could arise with having Ray represent both Yarbrough and Deputy Sims, albeit in unrelated matters. Yarbrough testified at the evidentiary hearing. During his testimony, he stated that he was “shocked” to find out on the day of his trial that Ray represented Deputy Sims, but that he “figured [Ray] was talking about something in the past.” Yarbrough reiterated that at no point from October 2006, when the incident between Deputy Sims and himself occurred, until his trial in May 2007, did Ray inform him that there was a conflict between Ray’s representation of Yarbrough and Deputy Sims, nor did Ray ask Yarbrough to waive any conflict.

¶ 6. Ray also testified at the evidentiary hearing. He admitted that he told Gilliam that it could be beneficial to the case that he knew Deputy Sims. According to his testimony, Ray stated: “I told them that I knew [Deputy Sims], that I had dealt with him in the past, ... that I had helped him in the past, and that I thought I could[,] at some point[,] get him to go to the [district attorney] and work with us.... ” Additionally, Ray explained that he had negotiated a plea deal for Yarbrough where he would serve twenty years total for all of Yarbrough’s pending charges, including the drug charges and the charge of aggravated assault of a law-enforcement officer. On cross-examination, Ray testified that he could not remember whether he informed Yarbrough at the time of trial that he was currently representing Deputy Sims in an unrelated matter, and he could not remember whether he discussed with Yarbrough any possible adverse risks associated with Ray’s representation of Deputy Sims. Ray could not identify any adverse risk to Yarbrough that might arise from his simultaneous representation of Yarbrough, the defendant, and Deputy Sims, the victim. Lastly, Ray explained that he did not subpoena Deputy Sims’s medical records or cross-examine him on his asthmatic condition because it was not part of his trial strategy. At the eviden-tiary hearing, Ray was asked the following on cross-examination: “After you had informed [Yarbrough] and his mother about your representation of [Deputy] Sims, as you viewed it, were there any risks associated with continuing to represent [Yar-brough] while you were representing [Deputy] Sims?” Ray answered: “Absolutely not.... [I]f there would have been any hint of a problem regarding my relationship with [Deputy] Sims and [Yarbrough] to the negative, I would [not] have done it, but it was to the positive.... [I]t had positive effects, that relationship. So no, ... I did [not] see any risks.” Ray further testified: “I crossed [Deputy Sims] like I do anybody else, so I did [not] treat him any differently than I would any police officer, many of whom I know and have helped through the years.”

¶ 7. Following the hearing, the circuit court entered a lengthy order denying Yarbrough’s PCR motion and finding that while there was an apparent, actual conflict, Yarbrough knowingly and intelligently waived any conflict. Yarbrough appeals the circuit court’s denial of his PCR motion. He raises the following four issues on appeal:

I. The [circuit] court erred in finding that Yarbrough waived the conflict[, as t]he conflict was so egregious as to be unwaivable.
II. Alternatively, if the conflict is waivable, Yarbrough could not have knowingly and intelligently waived it inasmuch as his lawyer admitted he knew of no ramifications and, thus, could not have advised Yar-brough of the same.
III. The [circuit] court erred in refusing to grant Yarbrough’s motion to allow him access to Sims[’s] medical records.
IV. [Yarbrough’s t]rial counsel was ineffective in failing to request an instruction and argued that Yar-brough had a right to resist an unlawful arrest or an instruction that would tell the jury that it is not an official duty to effect an unlawful arrest.

STANDARD OF REVIEW

¶ 8. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

ANALYSIS

¶ 9. Yarbrough asserts that the circuit court erred in denying his PCR motion after finding that he waived any conflict of Ray representing Deputy Sims in an unrelated matter at the same time Ray was defending Yarbrough for assaulting Deputy Sims. We must conclude that the circuit court’s finding of a waiver was clearly erroneous. We find that there was an actual conflict and that Yarbrough did not knowingly or intelligently waive that conflict; therefore we reverse and render the circuit court’s denial of Yarbrough’s PCR motion and remand for a new trial.

¶ 10. Both the United States and Mississippi Constitutions provide that an accused has the right to assistance of counsel. See U.S. Const, amend. VI, Miss. Const, art. 3, § 26. “[A]dept representation encompasses two broad principles: minimum competence and loyal assistance.” Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990) (emphasis added and citation omitted). Additionally, the constitutional guarantee of due process of law pursuant to the Fifth Amendment of the United States Constitution requires undivided loyalty of defense counsel, and “[u]nder our system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks.” Littlejohn v. State, 593 So.2d 20, 22-23 (Miss.1992). Simply, “[t]he Sixth Amendment right to counsel encompasses a right to effective assistance from an attorney who is conflict-free.” McCaleb v. State, 743 So.2d 409, 411 (¶ 9) (Miss.Ct.App.1999) (citing Sykes v. State, 624 So.2d 500, 503 (Miss.1993)).

¶ 11. We conclude the supreme court’s 2011 decision in Kiker v. State, 55 So.3d 1060 (Miss.2011), controls the outcome of this case. Julius Wesley Kiker was convicted of the murder of his wife. Kiker, 55 So.3d at 1062 (¶ 1). Bobby Crawford, a jailhouse informant, testified at Kiker’s trial that Kiker told him that he had intentionally shot his wife; this testimony contradicted Kiker’s testimony of an accidental shooting. Id. at 1063 (¶¶ 3-4). At trial, Kiker was represented by two attorneys, one of -whom was also representing Crawford in an unrelated case. Id. at 1064 (¶ 6). Kiker testified at his PCR hearing that he did not know that one of his attorneys was also representing Crawford until Crawford announced it during cross-examination, and he would have not waived the conflict of interest. Id. at (¶ 9). The supreme court stated in Kiker that “[w]hen the accused is represented by an attorney with an actual conflict of interest, the accused has received ineffective assistance of counsel as a matter of law, and ‘reversal is automatic irrespective of a showing of prejudice unless the accused knowingly and intelligently waived his constitutional right to conflict free representation.’ ” Id. at 1066 (¶ 16) (quoting Armstrong v. State, 573 So.2d 1329, 1335 (Miss.1990)). The supreme court noted that other jurisdictions “have rightly held that when a defense attorney contemporaneously represents a prosecution witness, there is a per se, actual conflict of interest.” Id. at 1067 (¶ 19). See, e.g., People v. Stewart, 126 A.D.2d 943, 511 N.Y.S.2d 715, 717 (N.Y.App.Div.1987) (where a lawyer represents the defendant’s father in an unrelated civil case and father testifies against the defendant, prejudice is presumed). The supreme court ultimately reversed and remanded Kiker’s case because Kiker did not knowingly and intelligently waive the actual conflict of interest. Kiker, 55 So.3d at 1068 (¶ 23). Similarly, in the present case, we are presented with an actual conflict that was not knowingly and intelligently waived; thus, our disposition must too be to reverse and remand.

¶ 12. Ray represented Deputy Sims in divorce proceedings that were finalized in August 2006. Several months later, in October 2006, the altercation between Deputy Sims and Yarbrough occurred. Prior to October 2006, Yarbrough retained Ray to represent him on unrelated drug charges, and after the altercation, Ray agreed to also represent Yarbrough on the charge of aggravated assault of a law-enforcement officer. In March 2007, just two months before Yarbrough’s trial for the aggravated assault of Deputy Sims, Ray filed a petition for contempt against Deputy Sims’s ex-wife on Deputy Sims’s behalf. Deputy Sims’s ex-wife filed her answer and counterclaim in April 2007. Yar-brough’s trial began on May 15, 2007, and the final order in Deputy Sims’s contempt action was not entered until June 2007. Thus, Ray’s representation of Yarbrough overlapped with his representation of Deputy Sims. This overlap results in an actual conflict of interest.

¶ 13. Yarbrough cites to several examples in the record to show how he was actually prejudiced by the conflict. Yar-brough claims that Ray’s failure to request Deputy Sims’s medical records or cross-examine Deputy Sims on his asthmatic condition and whether his asthmatic condition could have been the real reason for his inability to breathe following the incident demonstrate the conflict. Yarbrough also cites to instances at the trial where it might appear that Ray bolsters Deputy Sims’s credibility. For example, Yar-brough claims that the following statements made throughout trial are indicative of prejudice arising from the conflict: Ray referred to Deputy Sims as a “fine officer” during voir dire; Ray stated, “I know you to be a good officer. I know that. I [have] dealt with you for years[,]” during his cross-examination of Deputy Sims; Ray stated in closing arguments that Deputy Sims “is a truthful guy ... [He] is a good guy. He is a good officer.” Yar-brough also claims he was prejudiced by Ray’s failure to submit a jury instruction on his right to resist an unlawful arrest by Deputy Sims. However, because we find an actual conflict, Yarbrough does not have to prove, and we do not have to determine, whether there was any prejudice. It is to be presumed.

¶ 14. A finding of an actual conflict is not the end of the analysis because a knowing and intelligent waiver of that conflict can cure the issue. See Littlejohn v. State, 593 So.2d 20, 25 (Miss.1992). The United States Supreme Court has stated that “courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that [appellate courts] do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (internal citations omitted). Therefore, a waiver must be made with “full awareness of the conflict’s potential ramifications.” Kiker, 55 So.3d at 1068 (¶ 22). See also Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”)

¶ 15. While it is undisputed that Ray informed Yarbrough that he knew Deputy Sims and their relationship could be advantageous, there was no evidence that Yarbrough was informed of any possible risks that could result from Ray’s representation of both Deputy Sims and Yar-brough. Additionally, Yarbrough testified that he was not aware that Ray was presently representing Deputy Sims, and Ray testified that he did not know if he told Yarbrough of his present representation of Deputy Sims. Ray did not inform the circuit court of his representation of both Yarbrough and Deputy Sims; thus, the circuit court was unaware of the conflict and could not have properly inquired as to whether Yarbrough wished to make an informed decision of waiving the conflict. Without the knowledge of the present attorney-client relationship between Ray and Deputy Sims, as well as the risks associated with that relationship, Yarbrough could not have knowingly and intelligently waived the conflict of interest. We find that the circuit court was clearly erroneous in its finding that Yarbrough gave a knowing and intelligent waiver.

¶ 16. Therefore, we find that Ray’s representation of Yarbrough and Deputy Sims was an actual conflict that was not knowingly and intelligently waived by Yar-brough. We reverse and render the circuit court’s denial of Yarbrough’s PCR motion. We remand this case to the circuit court for a new trial.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., BARNES AND FAIR, JJ. JAMES, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION.

MAXWELL, J.,

specially concurring:

¶ 18. I agree with the majority that our supreme court has recently signaled that simultaneous representation of a State’s witness, even in an unrelated domestic matter, creates a per se actual — and presumptively prejudicial — conflict of interest. Kiker v. State, 55 So.3d 1060, 1067 (¶ 19) (Miss.2011) (citing People v. Thomas, 131 Ill.2d 104, 137 Ill.Dec. 1, 545 N.E.2d 654 (1989); Commonwealth v. Hodge, 386 Mass. 165, 434 N.E.2d 1246 (1982); People v. Stewart, 126 A.D.2d 943, 511 N.Y.S.2d 715 (N.Y.App.Div.1987)). This is apparently so even in cases like this one where there is no objective evidence of prejudice.

¶ 19. But while I find reversal is proper, it is not lost on me that this case— particularly from a criminal defense lawyer’s perspective — is a prime example of the old saw that “no good deed goes unpunished.” With that said, I emphasize that, after review, I have found nothing— other than a bit of subjective Monday morning quarterbacking by Yarbrough’s PCR counsel and the majority — to show that defense counsel’s representation of Yarbrough was in any way inadequate, as far as his actual defense of the case goes. Indeed the evidence is otherwise.

¶ 20. What the record shows is that Yarbrough’s attorney, who was representing Yarbrough for free I might add, negotiated a capped plea deal, calling for a guilty plea to an assault charge, and dismissing three pending cocaine charges. This agreement limited Yarbrough’s sentencing exposure to twenty years, far less than the over two hundred years he faced without this attorney’s help. And even after Yarbrough rejected this favorable deal, the pro bono defense attorney zealously represented him at trial, with the jury indicating at one point it was deadlocked, before continuing its deliberations and ultimately convicting Yarbrough of aggravated assault on a law enforcement officer.

¶ 21. Still, even though there is not the slightest objective hint that Yarbrough’s attorney pulled any punches, I agree with the majority that we must reverse. Under Kiker, the admitted lack of warning to Yarbrough about the potential downside of dual representation (even if none is perceived by the defense attorney) requires we find a per se actual conflict of interest that Yarbrough had not knowingly and intelligently waived. Kiker, 55 So.3d at 1067 (¶ 19). And this is seemingly so even though the attorney had disclosed to Yar-brough that the officer was one of his clients, and there is no actual objective showing of prejudice.

¶ 22. Obviously, the defense attorney, who the circuit court found had capably represented Yarbrough, was without the guidance of the supreme court’s holding in Kilter, which was decided four years after Yarbrough’s trial. Yet we are still bound to apply Kilter’s dictates and find a per se actual conflict of interest arose — even in the face of the incredible irony that it was the very relationship between the defense attorney and officer that Yarbrough originally saw as a potential benefit when choosing this particular defense attorney to represent him.

GRIFFIS, P.J., BARNES AND FAIR, JJ., JOIN THIS OPINION.

JAMES, J.,

concurring in result only:

¶23. I concur with the majority opinion in the result. However, I would find that the dispositive issue is whether the trial court erred in finding that Yar-brough waived the conflict of interest. The majority opinion, along with the trial court, concluded that an actual conflict existed. The trial court found that Yar-brough waived the conflict. The majority opinion ultimately concluded that Yar-brough did not waive the conflict. I am of the opinion that Yarbrough waived the conflict; however, it was not knowingly and intelligently made, and thus the waiver was not valid or effective. Also, Yar-brough maintains that the conflict in this case is so egregious that the conflict cannot be waived.

¶ 24. “Defendants may waive their right to conflict-free counsel.” Dupuis v. State, 972 So.2d 7, 8 (¶ 7) (Miss.Ct.App.2007). Such waivers “must be knowingly and intelligently made.” Littlejohn v. State, 593 So.2d 20, 25 (Miss.1992) (citation omitted). In Armstrong v. State, 573 So.2d 1329, 1335 (Miss.1990), the Supreme Court of Mississippi reversed a petition for post-conviction relief because there was an actual conflict and no record of a knowing and intelligent waiver. There must be a record of the waiver. Also, it should be noted that Yarbrough is raising this issue for the first time in the petition for post-conviction relief. He did not raise this issue on direct appeal. See Yarbrough v. State, 996 So.2d 804, 805 (Miss.Ct.App.2008).

¶ 25. It does not appear from the record that Yarbrough advised his second attorney to pursue the matter on direct appeal. Yarbrough was represented by Attorney Rodney Ray at trial, Attorney Benjamin Súber in the direct appeal, and Attorneys Jane E. Tucker and James W. Craig in the present PCR action. Mississippi Rule of Appellate Procedure 22(b), which relates to PCR actions on direct appeal, states in part: “Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.” Yarbrough may have been presented with a second waiver issue, but he was granted permission to file this PCR action by the Mississippi Supreme Court and this matter is not before this Court.

¶ 26. ' At trial, neither Ray nor Yar-brough informed the trial court of the conflict. The judge should elicit a narrative statement that shows that the defendant has knowingly and intelligently made the decision to waive the conflict. Kiker v. State, 55 So.3d 1060, 1066 (¶ 15) (Miss.2011). Other cases have held that assent will satisfy the requirement of knowing and intelligent consent. Dupuis v. State, 972 So.2d 7, 9 (¶ 8) (Miss.Ct.App.2007).

¶ 27. Despite this rule, the trial court was unable to fulfill its obligation because Yarbrough did not address the court to object to Ray’s representation. The trial court was unaware of the actual conflict of interest. Yarbrough learned of the conflict the day of trial, but did not address it in open court. It should be noted that it appears from the record that Ray was never compensated for his services. However, Yarbrough is still entitled to due process under the law.

¶ 28. The Supreme Court of Mississippi has held that when an attorney who has an actual conflict represents a defendant: “[t]he accused has received ineffective assistance of counsel as a matter of law, and reversal is automatic, irrespective of a showing of prejudice unless the accused knowingly and intelligently waived his constitutional right to conflict-free representation.” Kiker 55 So.3d at 1066 (¶ 16). Further, the standard established in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), does not apply. Id. Therefore, because the first issue is dispositive and reversal is automatic, it is not necessary to address the other three issues on appeal.

¶ 29. Yarbrough’s trial counsel had an actual conflict; however, Yarbrough’s waiver was not valid or effective because it was not knowingly and intelligently made since there was no on-the-record finding of a waiver. I agree with the majority that the judgment of the trial court should be reversed and rendered, and that the judgment of conviction should be reversed and a new trial ordered.

      . We provide a limited recitation of the underlying facts for the purpose of this appeal; however, a more thorough recitation can be found in this Court’s opinion of Yarbrough v. State, 996 So.2d 804 (Miss.Ct.App.2008).

      . In addition to the amendment reflecting his habitual-offender status, the amended indictment charged Yarbrough with causing or attempting to cause “bodily injury to Clint Sims, a law[-]enforcement officer ... by a means likely to produce death or serious bodily harm....”

      . Mississippi Rule of Professional Conduct 1.7(b) provides:
      A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person ... unless the lawyer reasonably believes:
      (1) the representation will not be adversely affected; and
      (2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

      . The Supreme Court further explained:
      The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake— is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. .While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.

        Johnson, 304 U.S. at 465, 58 S.Ct. 1019.

      . "Waiver of counsel" is defined as "[a] criminal defendant’s intentional relinquishment of the right to legal representation.” Black’s Law Dictionary 1712 (9th ed.2009). To be valid, a waiver of counsel must be made voluntarily, knowingly, and intelligently. Id.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Rebecca B. McDONALD, as administrator of the estate of Jeremy Wayne McDonald, deceased v. KUBOTA MANUFACTURING OF AMERICA CORPORATION et al.
    1111513.
    Supreme Court of Alabama.
    Aug. 16, 2013.

      Jeffrey C. Kirby and William T. Johnson III of Kirby Johnson, P.C., Homewood; and Amy Hayes Naylor of Naylor & Collins, P.C., Clanton, for appellant.
    James B. Carlson, Edgar M. Elliott IV, Deborah Alley Smith, and Abbott Marie Jones of Christian & Small LLP, Birmingham, for appellees.
   STUART, Justice.

Rebecca B. McDonald (“McDonald”), as administrator of the estate of Jeremy Wayne McDonald (“Jeremy”), her deceased son, sued Kubota Manufacturing of America Corporation (“KMA”), Kubota Corporation (“KC”), and Kubota Tractor Corporation (“KTC”) (these defendants are hereinafter referred to collectively as “the Kubota defendants”), asserting various claims after her son died as a result of injuries sustained when a Kubota ZD18 zero-turn lawnmower (“the ZD18 mower”) he was operating rolled over, pinning him underneath it. Following a three-week trial, the jury returned a verdict in favor of the Kubota defendants, and the trial court entered a judgment on that verdict. McDonald’s subsequent motion for a new trial was denied by the trial court, and McDonald now appeals, arguing that she is entitled to a new trial based on juror misconduct and errors the trial court made when instructing the jury. We affirm.

I.

On June 19, 2009, Jeremy, a laborer for the Town of Thorsby, began working at approximately 5:00 a.m., spraying for mosquitoes for approximately two hours before returning to the public-works shop at approximately 7:00 a.m. for further instructions from his supervisor, Terry Jackson. Jackson instructed him to finish mowing the lawn at the fire department and then to mow the grass at the girls’ softball field. Jackson was initially with Jeremy at the fire department, but he left at approximately 8:15 a.m. to travel to another location where a worker was having equipment problems. When Jackson left, Jeremy had the ZD18 mower he was using loaded onto a trailer and was preparing to leave for the softball field, which is approximately two blocks away.

At trial, Jackson testified that there was a heavy dew on the grass that morning and that he instructed Jeremy to mow the flat softball field before mowing the areas surrounding the field in order to allow the surrounding areas, which bordered sloping areas that had to be mowed either with push mowers or using power trimmers, additional time to dry. However, it appears that Jeremy first began mowing one of the areas surrounding the field. Although there were no witnesses to the accident, Jeremy apparently lost control of the ZD18 mower when he got too close to a slope, causing the ZD18 mower to lose traction and start sliding down the slope before hitting a small ditch or hole, where the 1,170-pound ZD18 mower rolled over on top of Jeremy, pinning him to the ground. At approximately 9:30 a.m., Jackson was returning to the area and was traveling past the softball field when a neighbor waved him down and told him a lawnmower was overturned near the field. Jackson and the neighbor then went to the lawnmower and discovered Jeremy underneath it; however, by that time Jeremy was deceased.

The ZD18 mower Jeremy was using at the time of the accident was designed in Japan by KC, manufactured by KMA at its Georgia plant, and distributed in the United States by KTC, a California-based corporation. At the time the ZD18 mower was first brought to market in 2001, it did not include any type of seatbelt or rollover protection system (“ROPS”) to prevent the possibility of injury to its operator in a roll-over accident. However, in January 2002, after learning of a fatal roll-over accident that occurred in the summer of 2001, KTC introduced the Kubota ZD18F mower, which was virtually identical to the ZD18 mower with the addition of a built-in ROPS and a seatbelt. KTC also undertook a campaign to notify all Kubota dealers and ZD18 mower owners that a ROPS- and seatbelt-retrofit kit was available for purchase to provide protection to the operator in case the ZD18 mower rolled over during use.

The ZD18 mower in the instant case was purchased by the Town of Thorsby in May 2002 from Clanton Tractor & Equipment, Inc. (“CTE”); it did not come retrofitted with the ROPS and seatbelt kit. A KTC representative testified that service bulletins and other communications regarding the ROPS- and seatbelt-retrofit kits for ZD18s were sent to CTE both through email and United States mail in February, March, and April 2002, and again annually at least through 2009; however, CTE’s president could not recall ever receiving the information. The Town of Thorsby took the ZD18 to CTE for maintenance at least annually after its purchase but was never advised that a ROPS- and seatbelt-retrofit kit was available.

On June 7, 2010, McDonald sued KMA and CTE, asserting claims of breach of warranty, defective design under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”), negligence, and wantonness. KC and KTC were subsequently added as defendants. On February 22, 2012, McDonald entered into a pro tanto settlement with CTE, and CTE was dismissed from the case. On March 6, 2012, the case against the Kubota defendants proceeded to trial. Following the close of McDonald’s case, the trial court granted the Kubota defendants’ motion for a judgment as a matter of law on McDonald’s breach-of-warranty claim. The remaining claims were thereafter submitted to the jury, and, on March 22, 2012, the jury returned a verdict in favor of the Kubota defendants on all counts; the trial court thereafter entered judgment on that verdict in favor of the Kubota defendants. On May 4, 2012, McDonald moved for a new trial, alleging, among other things, that a juror had failed to give truthful responses during voir dire and that the trial court had failed to properly charge the jury. The Kubota defendants opposed the motion, and, following a hearing, the trial court denied the motion on July 15, 2012. On August 21, 2012, McDonald filed her notice of appeal.

II.

McDonald argues that the trial court erred by denying her motion for a new trial. In McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993), this Court stated:

“[T]he ruling on a motion for new trial is within the discretion of the trial court and ... the trial court’s decision carries a strong presumption of correctness. Gold Kist, Inc. v. Tedder, 580 So.2d 1321, 1322 (Ala.1991). The decision of the trial court should not be disturbed on appeal unless the record plainly and palpably shows that the trial court erred and that some legal right has been abused.”

Thus, we review the decision of the trial court to determine whether it exceeded its discretion in denying McDonald’s motion for a new trial.

III.

McDonald’s first argument is that the trial court exceeded its discretion in denying her motion for a new trial based on juror misconduct because, McDonald alleges, juror J.L. failed to disclose during voir dire (1) that he knew a material witness — Jackson—and (2) that he had a contract to provide certain landscaping services to the City of Calera. In Union Mortgage Co. v. Barlow, 595 So.2d 1335 (Ala.1992), this Court considered another party’s claim that it was entitled to a new trial on the basis of similar allegations that jurors failed to respond truthfully to questions during voir dire. We stated then:

“Parties involved in litigation are entitled to true and honest answers from prospective jurors in order to help them exercise their discretion in the use of peremptory strikes and, when jurors fail to answer questions correctly, the parties are denied the exercise of that right. Martin v. Mansell, 357 So.2d 964 (Ala.1978). The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970). Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial. Wallace v. Campbell, 475 So.2d 521 (Ala.1985).
“The determination of whether the complaining party was prejudiced by a juror’s failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Freeman, supra. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: ‘temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.’ Freeman, 286 Ala. at 167, 238 So.2d at 336.”

595 So.2d at 1342-43. Applying these principles from Barlow to the facts of the instant case, it is apparent that the trial court did not exceed its discretion by failing to grant McDonald a new trial on the basis of juror misconduct.

With regard to McDonald’s assertion that J.L. failed to disclose that he knew the witness Terry Jackson, there is no evidence indicating that J.L., in fact, knew Terry Jackson. McDonald’s asserted factual basis for this claim is that Terry Jackson’s brother, Ricky Jackson, is married to J.L.’s niece and that J.L. was struck from a jury venire in a 1995 criminal case because the defendant was Ricky Jackson’s sister. However, none of this establishes that J.L. knew the witness Terry Jackson, though he apparently knew two other Jackson siblings. In fact, when he was questioned about it after the trial, J.L. stated that he did not know Terry Jackson, did not recognize him when he testified at the trial, and did not know that he was the brother of his niece’s husband Ricky Jackson. Accordingly, we cannot say that the trial court exceeded its discretion in failing to grant McDonald a new trial on this basis.

McDonald next argues that she was entitled to a new trial because J.L. failed to disclose that he had a contract to perform grass and brush-cutting services for the City of Calera. McDonald states that this information was material because of the similarities between the work J.L. performed for Calera and the work Jeremy was doing at the time of the accident that caused his death. McDonald further asserts that if this information had been known, she would have either sought to strike J.L. for cause or used a peremptory challenge to excuse him from the venire. The Kubota defendants argue that J.L. answered the questions presented him during voir dire truthfully and did not withhold any information about his business activities; rather, they argue, if McDonald did not adduce any information during voir dire that she now deems relevant, she should have asked more specific questions.

At the outset of the voir dire proceedings, potential jurors were asked to stand and to state their name, their spouse’s name, and the type of work they and their spouse do. Individual responses were not placed in the record; however, a subsequent exchange indicates that J.L. stated at that time that he was retired from working in the timber industry. When the venire was asked if anybody had a “business relationship with any Kubota entity,” J.L. responded affirmatively, and the following exchange took place with McDonald’s counsel:

“Q. Yes, sir. Your name?
“A. [J.L.]
“Q. [J.L.], what is your business relationship with Kubota?
“A. I have financed two tractors with them currently.
“Q. [J.L.], you have Kubota tractors?
“A. Yes, sir.
“Q. Would you tell me, are they agricultural tractors for work on your farm or around your house?
“A. That’s correct.
“Q. [J.L.], I believe you were in the timber business?
“A. That’s correct.
“Q. In the timber business, would you briefly tell me what you did in the timber business?
“A. I was a wood supplier for the paper mill and the state.
“Q. Were you familiar, [J.L.], with skidders and loggers and loaders as you worked in the timber industry?
“A. Yes, sir.
“Q. [J.L.], let me ask you this: On your Kubota tractors, do you know about what age those tractors are?
“A. One of them is like three years old, and the other is less than a year old.
“Q. [J.L.], I ask you this question: Do your tractors that you own and that you use and that you work with, do they have a roll-over protective structure over your head?
“A. Yes, they do.
“Q. And do they have a seat belt for you to use?
“A. Yes, they do.
“Q. [J.L.], do you use those safety equipment pieces?
“A. Sometimes.
“Q. When you feel that it is necessary?
“A. That’s correct.
“Q. At least, [J.L.] you have the opportunity to use them if you choose?
“A. That’s correct.
“Q. Thank you very much.”

Subsequently, counsel for McDonald questioned other members of the venire who also indicated that they had some sort of relationship with a Kubota entity, including S.P., whose dad used a Kubota tractor in his lawn-care company; D.S., who was retired from Bush Hog, Inc., and who had worked with Kubota lawn mowers in that capacity; C.M., who owned a Kubota tractor and had financed a Kubota utility vehicle; and C.S., whose husband was a diesel mechanic and worked on Kubota equipment in that capacity. After questioning all those who had initially responded affirmatively when asked if they had any relationship with a Kubota entity, McDonald’s attorney stated:

“Q. [D.S.], you answered some questions. I understand you have been in the business involving tractors, of course, attached to implements?
“A. [D.S.:] Yes, sir.
“Q. Anyone else in the business such as that of [D.S.], where you would have contact with a tractor or a mower or implement like that on a daily basis, or very frequent basis?
“(No response.)
“Q. I want to make sure. Have I talked to everyone here that does have a Kubota product?”

One additional member of the venire then identified himself as owning a Kubota tractor. After questioning him, counsel for McDonald asked one more time: “Anyone else here work with tractors or equipment? I think I’ve got everybody’s name.” No additional responses were elicited, and counsel moved on to other topics.

At the hearing on McDonald’s motion for a new trial, J.L. was called to testify, and he stated that he worked part-time approximately 15 hours a week under a contract with the City of Calera pulling a mower with his tractor. He further stated that, although he had been awarded the contract in the weeks before the trial, he did not begin working under the contract until after the trial and that he had previously done some similar work for Calera on a noncontract, as needed, basis. He also stated that he had never performed similar work for any other municipality and that he had not intentionally withheld any information during voir dire.

Based on this record, the trial court would have been justified in concluding that J.L. was honest and forthcoming during voir dire. Notably, J.L. was the first member of the venire to identify himself as owning Kubota equipment, and he thereafter answered all of counsel’s questions concerning the type of Kubota equipment he owned, i.e., agricultural tractors. Counsel did not specifically ask him if he ever used his Kubota tractors for commercial purposes. Moreover, counsel’s later question to the venire as a whole, asking if “anyone else ” was in a business involving frequent contact with a tractor or mower did not clearly call for a response from J.L. because he had already identified himself as owning Kubota tractors. In Davis v. State, 51 Ala.App. 200, 283 So.2d 650 (Ala.Crim.App.1973), the Court of Criminal Appeals reviewed a trial court’s decision denying a motion for a new trial because a juror allegedly had failed to disclose that his father worked in law enforcement. After reviewing the record, the court affirmed the trial court’s judgment, stating:

“It should be noted that the precise question asked by defense counsel was whether any juror or the spouse of any juror had been engaged in law enforcement. No question was asked concerning the juror’s parents.
“Certainly appellant was entitled on voir dire to examine the venire in regard to a parent’s affiliation with law enforcement; however, the record before us shows no such inquiry. Veniremen cannot be expected to reveal information not elicited by the litigants.”

51 Ala.App. at 202, 283 So.2d at 652 (final emphasis added). See also Boudreaux v. Pettaway, 108 So.3d 486, 495 (Ala.2012) (“Given the phrasing of the voir dire questions posed by defense counsel, the absence of any demonstration of willfulness on the part of allegedly untruthful jurors, the lack of materiality of the alleged undisclosed matters, and the limited scope of our review, we are unable to hold that the trial court exceeded its discretion in concluding both that the cause of the failures to respond was misunderstanding of the questions posed and that no probable prejudice resulted.”); and Pearson v. State, 343 So.2d 538, 542 (Ala.Crim.App.1977) (“A failure to answer a question on voir dire furnishes no basis for complaint, if the question as applied to a particular juror does not clearly call for an express response.”). The trial court’s denial of McDonald’s motion for a new trial on juror-misconduct grounds is supported by the record, and McDonald is not entitled to relief on this argument.

IV.

McDonald also argues that she is entitled to a new trial based on the trial court’s failure to give the jury certain instructions she requested, while giving the jury instructions requested by the Kubota defendants, which McDonald argues were not supported by the evidence. Specifically, the trial court rejected McDonald’s proposed jury instructions concerning combined and concurring negligence and gave instructions proposed by the Kubota defendants regarding their affirmative defense of assumption of the risk, while rejecting McDonald’s proposed instructions on that issue. The Kubota defendants argue not only that the trial court correctly instructed the jury, but also that McDonald waived any arguments to the contrary by failing to make sufficiently specific objections at trial.

We first consider whether McDonald’s arguments that the jury was improperly charged are properly before us. In Henriksen v. Roth, 12 So.3d 652, 660-61 (Ala.2008), we considered a similar argument:

“The Roth defendants contend that Henriksen failed to properly object to the trial court’s rulings regarding the giving and receiving of requested jury charges and, thus, that she did not preserve these issues for appeal. Rule 51, Ala. R. Civ. P., provides, in part:
“ ‘No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection.’
“(Emphasis added.) The Roth defendants contend that Henriksen failed to state the grounds of her objections with regard to the requested jury charges.
“During the pre-charge conference, Henriksen’s counsel apparently made specific objections to the trial court’s refusal to read Henriksen’s requested jury charge on lack of consent and the trial court’s giving of the Roth defendants’ instruction on emergency medical treatment. The pre-charge conference was not, however, on the record. During the trial, Henriksen’s counsel objected as follows:
‘“THE COURT: .... Exceptions from [Henriksen]?
“ ‘MR. FILLINGIM: Two, Your Hon- or, The reading of [the Roth defendants’] jury charge number 17 on emergency.
“ ‘THE COURT: Yeah, yeah. I note your exception.
“ ‘MR. FILLINGIM: And the failure to read [Henriksen’s] jury charge 33 on lack of consent.
“‘THE COURT: Okay. As we discussed, probably off the record, I — I note your exception. I’ve already articulated my reason for not giving the absence of consent. I think that it’s virtually subsumed in this case by the lack of consent charge I gave. I think it really would be confusing and unnecessary, but I note your exception.’

“In McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859-60 (Ala.1988), this Court stated:

“ ‘To be timely, an objection to the trial court’s oral charge must be made at the close of the court’s initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error — in other words, an exception designating only the subject treated by the court in its oral charge is insufficient.... Although Rule 51 [, Ala. R. Civ. P.,] does not contemplate that the objecting party, in order to preserve for appellate review an erroneous instruction, deliver a discourse on the applicable law of the case, he must adequately state specific grounds for his objection ....
“ ‘Because the only objection raised by [the appellant] to the trial court’s jury instructions, both oral and written, referred to earlier objections made during the pre-charge conference, and because the record is devoid of any specific objection to the charge regarding punitive damages, the only issue raised on appeal, there is nothing for this Court to review. Rule 51, Ala. R. Civ. P., expressly requires that a party state the grounds for his objection; the failure to do so prevents appellate review of the alleged error.’

“(Citations omitted.) Furthermore, ‘[i]n order to comply with the policy behind Rule 51, a party should leave nothing at large in objecting to the court’s oral charge. The objection must be definite.’ Coleman v. Taber, 572 So.2d 399, 402 (Ala.1990).

“Henriksen did not provide specific objections on the record regarding the requested jury charges. Concerning the charge on emergency medical treatment, there is nothing in the trial transcript elucidating why Henriksen objected to the charge. Accordingly, the objection was not specific enough to preserve any alleged error for review on appeal.”

Thus, in Henriksen, we held that counsel’s objection to “[t]he reading of the Roth defendants’ jury charge number 17 on emergency” was not “specific enough to preserve any alleged error for review on appeal.” 12 So.3d at 660-61.

In the instant case, 'the trial court charged the jury and then asked whether “the plaintiff [was] satisfied with the court’s instructions.” Counsel for McDonald replied: “Your Honor, the plaintiff takes exception to the court not giving the plaintiffs charge number 43, number 44, number 45, number 47, 48, 49, 50, 51, 52, 53, and 54. Otherwise, we’re satisfied.” McDonald argues that the spirit of Rule 51, Ala. R. Civ. P., was complied with by her objection, inasmuch as she had previously stated specific objections regarding the jury instructions in the charge conference conducted by the trial court before the jury instructions were given. Accordingly, she argues, “there is no real disagreement that the trial court was presented with [her] reasons and arguments.” (McDonald’s brief, p. 58 n. 19.) The Kubo-ta defendants emphasize that the charge conference was not transcribed and was not made a part of the record.

These are essentially the same facts as in Henriksen, in which we noted that, during the off-the-record charge conference, “Henriksen’s counsel apparently made specific objections to the trial court’s refusal to read Henriksen’s requested jury charge on lack of consent and the trial court’s giving of the Roth defendants’ instruction on emergency medical treatment.” 12 So.3d at 660. However, notwithstanding the fact that specific arguments were apparently made at the charge conference, the Court held that the nonspecific objection made following the jury charge was insufficient to preserve the issue for appellate review. 12 So.3d at 661. In this case, we have no reason to doubt McDonald’s assertion that she made specific arguments outlining her objections to the jury instructions at the charge conference; however, arguments made at a charge conference do not preserve a subsequent challenge to a jury instruction on appeal. Rather, an objection “must be made at the close of the court’s initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error.... ” McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859 (Ala.1988). The objection made by McDonald at the close of the trial court’s instructions to the jury was not specific and accordingly fails to meet the requirements of Rule 51, Ala. R. Civ. P., for preserving any alleged error in jury instructions for appellate review. See also Burnett v. Martin, 405 So.2d 23, 27 (Ala.1981) (holding that an exception to “the charge[s] having to do with contributory negligence — Charges Two, Three, and Four” was insufficient to preserve issue for appeal). Because the alleged error was not preserved for review, we need not consider the merits of McDonald’s argument that the jury was not given proper instructions.

V.

Following a three-week trial, the jury returned a verdict in favor of the Kubota defendants on the AEMLD, negligence, and wantonness claims asserted against them by McDonald following her son Jeremy’s death in an accident involving a Ku-bota ZD18 mower. The trial court entered judgment accordingly and denied McDonald’s subsequent motion seeking a new trial on grounds of juror misconduct and the giving of improper jury instructions. For the reasons stated above, the trial court did not exceed its discretion in denying that motion for a new trial; its judgment is hereby affirmed.

AFFIRMED.

MOORE, C.J., and PARKER and WISE, JJ., concur.

SHAW, J., concurs in the result.

      . We note that the last name "Jackson” is hardly unique. See, e.g., Peaceable Planet, Inc. v. Ty, Inc., 362 F.3d 986, 991 (7th Cir.2004) ("[Niles] is not a common name, like 'Smith' or ‘Jackson.’ ").

      . We further note that the Kubota defendants in fact moved to strike J.L. from the venire for cause at the close of voir dire based on J.L.'s admission that he was a long-time friend of Jeremy's grandfather and that it might accordingly be "difficult” to return a verdict for the Kubota defendants because of that relationship. In opposing that motion, counsel for McDonald emphasized that J.L. "was not equivocal in his final answer,” indicating that he would be fair and impartial should he be selected for the jury.

      . We further note that the objection in the present case was even less specific than the objection in Henriksen that we held to be insufficient inasmuch as, in Henriksen, at least the general topic of the charge objected to was identified (emergency), while the objections in this case identified only the numbers of the charges being challenged.


author: MAIN, Justice. BOLIN, Justice

text:
    Ex parte David R. WILSON, M.D. (In re Kenneth Bryant and Sally Foley, Coadministrators Ad Litem of the Estate of Kenneth Luke Bryant, deceased v. Baptist Health Centers, Inc., et al.).
    1120879.
    Supreme Court of Alabama.
    Aug. 23, 2013.
    Michael L. Bell and Stephen J. Rowe of Lightfoot Franklin & White LLC, Birmingham, for petitioner.

      S. Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for respondents.
   MAIN, Justice.

PETITION DENIED; NO OPINION.

MOORE, C.J., and MURDOCK and BRYAN, JJ., concur.

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

I continue to adhere to the tenets expressed in my special concurrance in Golden Gate National Senior Care, LLC v. Roser, 94 So.3d 365 (Ala.2012), regarding the inability of an administrator ad litem to initiate a wrongful-death action when the question of the capacity of the administrator ad litem to bring such an action is properly and timely presented to the trial court. Here, the petitioner is requesting mandamus relief based on a motion to dismiss directed to the plaintiffs’ second amended complaint; therefore, any right to relief based on the affirmative defense of lack of capacity has been waived.


author: PITTMAN, Judge.

text:
    Fred GRIFFITH v. G.A.K.E., INC.
    2110316.
    Court of Civil Appeals of Alabama.
    Oct. 26, 2012.
    Rehearing Denied Dec. 21, 2012.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120391.
    Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    Graham R. Pulvere and Mark E. Tindal of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

Fred Griffith appealed from a judgment awarding G.A.K.E., Inc., damages for breach of a commercial-lease agreement and a guaranty agreement, an attorney fee, and court costs. The appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975. We dismiss the appeal as having been untimely filed.

In 2001, G.A.K.E. entered into a 10-year commercial-lease agreement with Crown Motors, Inc. (“Crown”). Griffith, a 50% shareholder of Crown and its president, personally guaranteed Crown’s obligations under the lease and agreed to “indemnify and hold [G.A.K.E.] harmless from any and all losses, of every kind and character, including reasonable costs and attorneys fees, suffered by [G.A.K.E.] as the result of any default by [Crown] under said lease for a period of eighteen months following default by [Crown] or until the premises are re-let by [G.A.K.E.], whichever shall first occur.”

In 2008, Griffith sold his Crown stock to Forrest Frost. In connection with the stock-purchase agreement, Frost agreed to negotiate with G.A.K.E. for the release of Griffith from the guaranty agreement and, failing that, to indemnify Griffith for any liability arising under the commercial-lease or guaranty agreements. In 2009, Crown defaulted on the lease agreement by failing to pay rent, and G.A.K.E. sued Griffith, alleging breach of the commercial-lease and guaranty agreements. Griffith answered and filed third-party claims against Frost. Frost asserted various defenses and counterclaims against Griffith.

On June 27, 2011, the circuit court entered a summary judgment in favor of G.A.K.E and awarded it $113,367.27. That sum represented (a) past-due rent, late penalties, and interest of $96,066.91, (b) an attorney fee of $15,742, and (c) court costs of $1,558.36. The circuit court directed the entry of a final judgment as to G.A.K.E.’s claims against Griffith, pursuant to Rule 54(b), Ala. R. Civ. P.

On July 22, 2011, Griffith filed a post-judgment motion, reasserting the substantive arguments he had made in opposition to G.A.K.E.’s summary-judgment motion and objecting to the attorney-fee award on the grounds that it was unreasonable and that it had been entered without providing him an opportunity to object. Following oral argument on Griffith’s postjudgment motion, the circuit court, on September 1, 2011, entered an order allowing G.A.K.E 10 days to submit proof in support of its attorney-fee request and allowing Griffith 11 days “to dispute the reasonableness of [that request] by notifying th[e] court and/or requesting a hearing on the issue.” In its September 1, 2011, order, the circuit court denied “[a]ll other portions of [Griffith’s postjudgment] motion.”

G.A.K.E. submitted additional proof in support of its attorney-fee request, seeking to increase its total award to $115,735.74 to include fees incurred after the entry of the June 27, 2011, judgment in defending Griffith’s postjudgment motion. On October 4, 2011, the circuit court rendered and entered the following judgment:

“It is hereby ORDERED, ADJUDGED and DECREED that summary judgment is granted in favor of Plaintiff G.A.K.E. and against Defendant Fred Griffith in the amount of $ 115,735.74; and further that there being no justifiable reason for delay, the Court hereby expressly directs the entry of final judgment in favor of G.A.K.E in accordance with Ala. R. Civ. P. 54(b).”

Griffith filed a notice of appeal 42 days later, on November 15, 2011, raising the substantive issues he had argued in the circuit-court proceedings but raising no issues concerning the attorney-fee award.

G.A.K.E. moved this court to dismiss Griffith’s appeal, contending that September 1, 2011, rather than October 4, 2011, was the date that triggered the running of the 42-day period in which Griffith was required to file his notice of appeal as to the merits because, it says, on September 1, 2011, the circuit court denied Griffith’s postjudgment motion in all substantive respects and expressly reserved jurisdiction to determine the appropriate attorney-fee award at a later date. Citing Rule 4(a)(5), Ala. RApp. P., Griffith argues that the 42-day period to appeal did not commence until October 4, 2011, when the attorney-fee aspect of his postjudgment motion was finally disposed.

“An award of attorney’s fees is an award of costs, not damages,” Davis v. Everett, 443 So.2d 1232, 1238 (Ala.1983), and “[t]he entry of the judgment or order shall not be delayed for the taxing of costs,” Rule 58(c), Ala. R. Civ. P. “[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.” State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988)).

In Budinich, the United States Supreme Court established a bright-line rule that “an unresolved issue of attorney’s fees for the litigation in question does not prevent judgment on the merits from being final,” and it stated that “[cjourts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a ‘final decision’ ... whether or not there remains for adjudication a request for attorney’s fees attributable to the case.” 486 U.S. at 202 and 203. See also Pediatrics by the Bay v. EMD Solutions, Inc., 81 So.3d 381 (Ala.Civ.App.2011), and Edwards v. Edwards, 999 So.2d 939 (Ala.Civ.App.2008).

The circuit court entered a summary judgment on all substantive issues between G.A.K.E. and Griffith and directed the entry of a final judgment pursuant to Rule 54(b) on June 27, 2011. It denied Griffith’s postjudgment motion with respect to the substantive issues on September 1, 2011. Griffith’s 42-day period to appeal— insofar as Griffith sought review of the judgment on the merits — began to run on September 1, 2011. His notice of appeal, filed 75 days later on November 15, 2011, was, therefore, untimely.

Griffith’s notice of appeal was timely with respect to the attorney-fee award made in the circuit court’s October 4, 2011, judgment. See Niezer v. SouthTrust Bank, 887 So.2d 919, 923 (Ala.Civ.App.2004) (stating that “attorney-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case”); Hunt v. NationsCredit Fin. Servs. Corp., 902 So.2d 75, 81 (Ala.Civ.App.2004) (concluding that “Niezer stands for the proposition that an order denying an award of attorney fees that is ancillary to an earlier decision that has completely adjudicated all matters in controversy between the parties is immediately appealable” and that “Niezer is thus consistent with federal precedent, such as Budinich”). Griffith’s appeal, however, presents no issues with respect to the attorney-fee award.

Conclusion

Because Griffith did not file a notice of appeal within 42 days of the September 1, 2011, denial of his postjudgment motion on the merits, the circuit court’s action in granting the parties additional time to address the attorney-fee issue and its rendering and entering an amended judgment on October 4, 2011, with respect to the attorney-fee award did not toll the time for taking an appeal from the judgment on the merits. We therefore grant G.A.K.E.’s motion and dismiss Griffith’s appeal.

APPEAL DISMISSED.

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

      . The circuit court had not adjudicated Griffith's third-party claims against Frost or Frost’s counterclaims against Griffith.

      . Rule 4(a)(5) provides:
      "A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions.”


author: THOMPSON, Presiding Judge.

text:
    Thomas PELL v. Lance TIDWELL and Municipal Utilities Board of Albertville.
    2120313.
    Court of Civil Appeals of Alabama.
    May 10, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120985.

      Rodney L. Ward, Gadsden, for appellant.
    George W. Royer, Jr., and David J. Ca-nupp of Lanier Ford Shaver & Payne P.C., Hunstville, for appellees.
   THOMPSON, Presiding Judge.

Thomas Pell appeals from the summary judgment entered in favor of Lance Tid-well and the Municipal Utilities Board of Albertville (“the board”). Pell filed a civil action against Tidwell, the board, and Donna Rucks alleging negligence in connection with a motor-vehicle accident in which Rucks’s vehicle collided with the vehicle in which Pell was a passenger. Pell asserted that Tidwell, a board employee, had negligently signaled to Rucks that she could proceed and that Rucks had then proceeded across the intersection where the accident occurred without verifying that the way was clear.

In his appellate brief, Pell acknowledges that the facts in this case are not in dispute, and, in fact, he adopts the evidence as set forth in the brief in support of the motion for a summary judgment filed by Tidwell and the board. That evidence tends to show the following:

In his job with the board, Tidwell drove and operated a truck with a lift bucket. He had a commercial driver’s license to operate the truck, and he testified by deposition that he had never been involved in any previous motor-vehicle accidents.

On December 4, 2006, Tidwell was driving his truck northbound on Highway 431 in Albertville. In that area, Highway 431 is a divided four-lane highway with a grass median between the northbound and southbound lanes. In his deposition, Tid-well testified that he pulled into the left-turn lane in anticipation of making a left turn onto Buchanan Road. He stated that he saw a Toyota automobile in the paved portion of the median. Tidwell said that the Toyota appeared to be pointing slightly to the north, and it looked to him as though the driver intended to pull onto Highway 431 to travel north.

Tidwell said that, in entering the left-turn lane, he pulled the truck so far to the left that part of the truck was off the pavement. Because of the way the Toyota was situated in the median, Tidwell said, there was not enough room for him to turn into the median to begin his turn onto Buchanan Road. He said that he saw the driver of the Toyota raise both hands in the air. Because the Toyota was preventing him from making the left turn, Tidwell elected to yield the right-of-way to the Toyota. He said that he looked in the side mirror on the passenger side of the truck to make sure that the lefthand, or inside, northbound lane was clear. He said that, when the lane was clear as far as he could see, he pointed his finger at the inside northbound lane. Tidwell said that, by making that hand signal, he meant that the inside lane was clear so that the Toyota could turn into that lane and travel north.

Rucks, the driver of the Toyota, testified by deposition that she saw Tidwell approach in the truck and recognized that he had the right-of-way to make a left turn. She said that she saw Tidwell signal and relied on his signal to mean that she could “go.” She waved an acknowledgment to Tidwell and started across the northbound lanes; she did not turn into the inside northbound lane as Tidwell had expected. Rucks testified that she did not pause to ensure that all the lanes were clear before she proceeded across the northbound lanes of Highway 431. As Rucks crossed into the outside northbound lane, not the lane Tidwell had motioned for her to enter, her car collided with the car in which Pell was a passenger. Pell’s leg was broken in the accident.

After considering the evidence and the parties’ arguments, the trial court entered a summary judgment in favor of Tidwell and the board on August 20, 2010. Pell’s claims against Rucks remained pending, however. On November 29, 2012, the trial court entered a judgment dismissing the remaining claims against Rucks after she and Pell entered a pro tanto joint stipulation of dismissal. Pell then appealed the judgment in favor of Tidwell and the board to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

We review a summary judgment pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

As mentioned, the parties do not dispute the events that led to the collision between Rucks’s vehicle and the vehicle in which Pell was a passenger. The issue in this case is whether, as a matter of law, Tidwell can be held liable for negligently signaling Rucks to proceed. Tidwell and the board argue that Tidwell had no legal duty to Rucks or Pell when Tidwell motioned for Rucks to proceed. They assert that Tid-well’s “act of courtesy” in motioning Rucks to the inside lane did not impose a duty on Tidwell, and it did not relieve Rucks of what they said was her affirmative, nondel-egable duty to yield the right-of-way to traffic proceeding on the through street, that is, traffic traveling northbound on Highway 431.

Pell, on the other hand, maintains that even though Tidwell was under no affirmative duty to act, once he volunteered to do so, he was then charged with the duty of acting with due care. When Tidwell checked his side mirror and motioned to Rucks, Pell says, he “assumed the duty to act as a reasonable and prudent person.” Therefore, according to Pell, Tidwell is liable for any negligence in connection with signaling to Rucks to proceed.

In their brief on appeal, Tidwell and the board cite Parker v. Birmingham, Electric Co., 254 Ala. 488, 48 So.2d 873 (1950), to support their argument that Tidwell did not owe Rucks a duty of care. In Parker, the plaintiff had been a passenger on a bus operating between Birmingham and Bessemer. After the passenger disembarked, she had to cross a four-lane “super highway.” The passenger could not see around the bus to determine whether it was safe for her to cross. The bus driver signaled to her to cross the highway in front of the bus. The passenger started across the highway, and, as she cleared the bus, she was hit by a car traveling down the highway. The passenger sued the bus line, claiming, among other things, that the bus driver had been negligent in motioning her across the highway. Our supreme court held that the plaintiff could not sustain her action because the bus company was no more responsible than the passenger for the passenger’s safe crossing. Specifically, our supreme court stated:

“It may be added that the signal by the operator that plaintiff might walk in front of the bus in safety does not create a danger not readily observable to the passenger. This [negligence] count did not allege otherwise and it may be assumed that the passenger, as an ordinarily intelligent and prudent person, would have knowledge that the super highway might have traffic on it and that it was dangerous to go across the street without exercising diligence to avoid the danger.”

254 Ala. at 493-94, 48 So.2d at 877-78.

Although Parker is instructive, Alabama appellate courts have not yet considered the question whether a signaling driver is liable for accidents that might occur after he or she signals the driver of another automobile. The jurisdictions that have considered the issue are split. As the Court of Appeals of Ohio noted in an unreported case:

“There are two schools of thought in the United States relating to the liability of a signaling motorist. The minority view, adopted by the ... court [in Duval v. Mears, 77 Ohio App.3d 270, 602 N.E.2d 265 (1991) ], holds that no duty exists for a signaling motorist to exercise caution and prevent accidents. This view rests on the premise that a signal to cross can be interpreted as no more than a yielding of the right of way. Thus, the signaler is not responsible for any accidents that might occur when the crossing motorist enters into a different lane. See Annotation, Motorists Liability for Signaling Other Vehicle or Pedestrian to Proceed, or to Pass Signaling Vehicle (1993), 14 A.L.R. 5th 193, 202, Section 2[a]; see also, e.g., Peka v. Boose (1988), 172 Mich.App. 139, 143, 431 N.W.2d 399, 401; Dawson v. Griffin (1991), 249 Kan. 115, 122-23, 816 P.2d 374, 379, 14 A.L.R. 5th 1000, 1009.
“The majority view, however, is that a signaler may be held liable, under some circumstances, on the principle that one who acts gratuitously assumes a duty of care. Liability rests on the view that sometimes a signal may be interpreted as an indication that the way is clear and it is safe to proceed. See 14 A.L.R. 5th at 202, Section 2[a]; see also, e.g., Cunningham v. Natl. Serv. Industries, Inc. (1985), 174 Ga.App. 832, 331 S.E.2d 899, 904; Massingale v. Sibley (La.App.1984), 449 So.2d 98, 101....
“Even under the majority view, however, it is a necessary condition of the signaler’s liability that his signal communicated the message that the driver could proceed safely across both lanes. Only if the message is reasonably ■viewed as an ‘all clear’ can the signaler be said to have taken upon himself the duty to act cautiously. 14 A.L.R. 5th at 202, Section 2[a]. The nature of the message that a driver’s signal conveyed is usually a question of fact for the trier of fact. Askew v. Zeller (Pa.Super.1987), 361 Pa.Super. 35, 521 A.2d 459, 462.
“It is also necessary, under the majority view, that the turning driver actually relied on the signal as an ‘all-clear’ message. 14 A.L.R. 5th at 202, Section 2[a]. Only with such reliance can any act of negligence in signaling be considered a proximate cause of the plaintiffs injuries. Askew, 521 A.2d at 463.”

Isaacs v. Larkin Elec. Co., (No. 16948, Sept. 4, 1998) (Ohio App.1998) (not reported in Ohio App. or N.E.2d).

In Duval v. Mears, 77 Ohio App.3d 270, 274, 602 N.E.2d 265, 267 (1991), cited in Isaacs, supra, the Ohio appellate court “decline[d] to impose a duty of care to ascertain safe passage on the motioning motorist.” In reaching its decision, the Ohio appellate court relied on the decision of the Ohio Supreme Court in Van Jura v. Row, 175 Ohio St. 41, 191 N.E.2d 536 (1963); quoting the syllabus of the court in Van Jura, the Duval court noted:

“ ‘One who seeks to make a left turn, in the face of traffic coming from the opposite direction, cannot absolve himself from the obligation to proceed with due care by claiming that he depended upon a signal of a motorist going in the opposite direction, who stopped to allow the one making a left turn to pass in front of him.’ ”

77 Ohio App.3d at 273, 602 N.E.2d at 267.

Similarly, in Peka v. Boose, 172 Mich. App. 139, 143, 431 N.W.2d 399, 401 (1988), also cited in Isaacs, supra, the Michigan Court of Appeals held that,

“[sjince all participants herein were motorists driving in ordinary circumstances (i.e., no unusual obstacles or obstructions), defendant Bottger assumed no duty to plaintiff to warn defendant Boose of plaintiffs approaching vehicle. We find as a matter of law that defendant Bottger’s hand motion signified nothing more than permission to cross in front of her car and could not be relied upon as assurance that all was clear ahead.”

In reaching the opposite conclusion, the Indiana Court of Appeals opined that the analysis of the Duval and Peka courts was not “so simple.” Key v. Hamilton, 963 N.E.2d 573, 582 (Ind.Ct.App.2012). The Indiana court reasoned:

“Just because [a signaled driver] had a duty to yield to [an oncoming vehicle] at the intersection does not preclude others, including [the signaling motorist], from also having a duty of care to [the driver of an oncoming vehicle] or any other, motorist on the road at the same time. For example, there can be no doubt that the injured [driver of the oncoming vehicle] owed a duty of care when he entered that intersection. Likewise, had there been a police officer directing traffic at the scene, he would have also owed a duty of care. The point is that more than one person may have a duty of care in a particular situation. Consequently, the question is not whether [the signaling motorist] was taking away [the signaled driver]’s duty toward [the driver of the oncoming vehi-ele] in this situation; rather, the question is whether he had his own individual duty toward [the driver of the oncoming vehicle].”

Id.

In Alabama, by statute, a driver has a duty to obey the Alabama Rules of the Road, § 32-5A-1 et seq., Ala.Code 1975. Specifically, § 32-5A-3 provides that it is unlawful for any person “to do any act forbidden or fail to perform any act required in this chapter.” The Rules of the Road set forth the responsibilities of a driver at an intersection:

“(b) Except when directed to proceed by a police officer every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.”

§ 32-5A-112(b), Ala.Code 1975 (emphasis added). The Rules of the Road also require a driver who is turning left to yield to oncoming traffic:

“The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.”

§ 32-5A-111, Ala.Code 1975.

We agree with the Duval court that a motorist’s hand signal to another motorist to proceed does not absolve the signaled motorist of his or her duty under Alabama law to ensure that it is safe to travel across an intersection and to yield to oncoming traffic. This is especially true when, as in this case, there are no unusual obstacles or obstructions.

Because a driver cannot delegate his or her responsibility for ensuring that it is safe to proceed across an intersection, especially under normal driving conditions, i.e., when there are no unusual obstructions or conditions, we now hold that, as a matter of law, a signaling motorist cannot be held liable for negligence when the signaled driver proceeds across an intersection without independently ensuring that it is safe to do so. In other words, the signaling motorist’s conduct constitutes a courtesy to the signaled motorist, but it does not relieve the signaled motorist of his or her own duty to ensure that it is safe to proceed. A hand signal can easily be misconstrued, and our holding rests on the premise explained in Isaacs, supra, “that a signal to cross can be interpreted as no more than a yielding of the right of way.”

In this case, the undisputed evidence indicates that Tidwell was well within the left-turn lane. Although, admittedly, a truck in a left-turn lane may be more difficult to see around than a car, it certainly does not constitute an unusual obstruction or condition. Rucks admitted that she proceeded across the intersection without verifying that the way was clear of oncoming traffic. Because it was the conduct of Rucks and not Tidwell that was the proximate cause of the accident between Rucks’s vehicle and the vehicle in which Pell was a passenger, Tidwell cannot be liable to Pell for negligence. Accordingly, under the facts of this ease, the trial court properly entered the summary judgment in favor of Tidwell and the board.

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . The August 20, 2010, judgment was not certified as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

      . In his appellate brief, Pell makes no argument regarding the propriety of the summary judgment as to the board. Thus, any arguments Pell could have made are deemed waived. Edosomwan ex rel. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 593 (Ala.Civ.App.2009) (citing Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003)) (stating that issues not raised and argued in brief are waived and affirming a summary judgment insofar as it related to claims about which the appellant had failed to raise an argument on appeal).