author: SEE, Justice. MURDOCK, Justice

text:
    Ex parte Roger Tavares MALONE, Jr. (In re Roger Tavares Malone, Jr. v. State of Alabama).
    1061424.
    Supreme Court of Alabama.
    Dec. 19, 2008.

      David S. Luker of David S. Luker, PC & Associates, Birmingham, for petitioner.
    Troy King, atty. gen., and Stephanie N. Morman and John J. Davis, asst, attys. gen., for respondent.
   SEE, Justice.

Robert Tavares Malone, Jr., seeks a reversal of the decision of the Court of Criminal Appeals affirming, by unpublished memorandum, his conviction in the Jefferson Circuit Court for manslaughter. Malone v. State (No. CR-05-1806, May 18, 2007), 9 So.3d 578 (Ala.Crim.App.2007) (table). We affirm.

Facts and Procedural History

On the night of December 30, 2004, Malone got into an argument with Searcy Owens at a pool hall in Ensley. The argument escalated. Owens hit Malone with at least one pool cue and then grabbed Malone. Malone pulled a gun from his pocket and shot Owens five times in the abdomen; Owens later died from his wounds. Malone was indicted and tried for murder.

At the conclusion of the testimony of the first witness, the trial court informed the State and Malone that it intended to allow jurors to question the witnesses directly. Malone objected, but the trial court overruled Malone’s objection. The trial court subsequently issued instructions to the jurors:

“All right, ladies and gentlemen, I will allow you to ask the witness a question. If you have a burning question in your mind as a result of the testimony, if the question is improper then I can’t let you ask the question. If you ask a question, you receive the answer. You simply receive it.
“In other words, it would be improper to say, T believe you or I don’t believe you,’ that sort of thing, okay? Okay.”

Malone’s brief at 4-5. Thereafter, as each witness finished testifying, the trial court asked the jurors if they wanted to ask that witness any questions. The jurors asked their questions directly, without first submitting them to the trial court. Jurors asked a total of eight questions of five witnesses. Malone did not object to any specific question, but he objected generally to the trial court’s soliciting questions from the jurors. Malone himself testified. At the conclusion of his testimony there were no juror questions, and Malone rested his case. The trial court then excused the jury for the evening. After the jury had left the courtroom, the bailiff informed the judge that one of the jurors had a question for Malone. Malone renewed his earlier objection, and the trial court again overruled it. The judge brought the jury back into the courtroom and allowed the juror to ask Malone a question.

The jury convicted Malone of the lesser-included offense of manslaughter, and the trial court sentenced Malone to 20 years’ imprisonment. The Court of Criminal Appeals affirmed Malone’s conviction in an unpublished memorandum. Malone v. State (No. CR-05-1806, May 18, 2007), 9 So.3d 578 (Ala.Crim.App.2007) (table). This Court granted certiorari review to address, as a question of first impression, whether a trial court has discretion to invite the jury to ask questions of witnesses in a criminal trial.

Issue

The first issue Malone presents is whether the trial court exceeded its discretion by soliciting jurors to question witnesses directly during a criminal trial. The second issue is whether the trial court exceeded its discretion by allowing a juror to question Malone after he and the State had rested their cases.

Standard of Review

Malone objected to the trial court’s practice of soliciting juror questions of witnesses; he did not, however, object to the content or form of any specific question. Trial judges are vested with broad discretion in determining courtroom procedure “as long as the exercise of that discretion does not result in the denial of the defendant’s basic constitutional right.” Hyde v. State, 778 So.2d 199, 236 (Ala.Crim.App.1998); see also Ephraim v. State, 627 So.2d 1102, 1105 (Ala.Crim.App.1993).

“ ‘A court exceeds its discretion when its ruling is based on an erroneous conclusion of law or when it has acted arbitrarily without employing conscientious judgment, has exceeded the bounds of reason in view of all circumstances, or has so far ignored recognized principles of law or practice as to cause substantial injustice. Hale v. Larry Latham Auctioneers, Inc., 607 So.2d 154, 155 (Ala.1992); Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 13 (Ala.1979).’ ”

Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 705 (Ala.2008) (quoting Ed wards v. Allied Home Mortgage Capital Corp., 962 So.2d 194, 213 (Ala.2007)).

Analysis

I.

Malone first argues that the trial court exceeded its discretion by “actively soliciting questions from the jurors at the conclusion of each witnesses’ [sic] testimony.” Malone’s brief at 19. Malone concedes that there would be times when it would be proper for a court to allow occasional questions by the jurors. We granted certiorari review, however, to determine whether a trial court may actively solicit questions from jurors, which is a material question of first impression before this Court.

Prather v. Nashville Bridge, 286 Ala. 3, 236 So.2d 322 (1970), is the only published case from an Alabama court that has presented the question whether jurors may directly question witnesses. This Court did not, however, reach the merits of that question in Prather because the issue was not properly preserved for appeal.

A substantial number of state courts in other jurisdictions have considered the issue whether jurors may question witnesses. They have overwhelmingly held that the practice is not error per se. Moreover, “every [federal] circuit to consider the practice has permitted it, holding that the decision to allow juror questioning rests within the discretion of the trial judge.” United States v. Richardson, 233 F.3d 1285, 1289 (11th Cir.2000). “Allowing jurors to ask witnesses questions is ‘neither radical nor a recent innovation.’ State v. Doleszny, 176 Vt. 203, [211,] 844 A.2d 773, [780] (2004). It is a practice with ‘deeply entrenched’ roots in the common law. United States v. Bush, 47 F.3d 511, 515 (2nd Cir.1995).” Medina v. People, 114 P.3d 845, 851 (Colo.2005). “American courts have long sanctioned the practice.” United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995).

The jury’s role in a trial is to “ ‘ “assure a fair and equitable resolution of factual issues.” ’ ” Richardson, 233 F.3d at 1289 (quoting Standard Oil Co. of California v. Arizona, 738 F.2d 1021, 1031 (9th Cir.1984), quoting in turn Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973)). Allowing jurors to question witnesses can “serve to advance the search for truth by alleviating uncertainties in the jurors’ minds, clearing up confusion, or alerting the attorneys to points that bear further elaboration.” United States v. Sutton, 970 F.2d 1001, 1005 n. 3 (1st Cir.1992). Juror questioning can also lead to “more attentive jurors and thereby leads to a more informed verdict.” Richardson, 233 F.3d at 1290 (citing Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials: A Field Experiment with Jury Notetaking and, Question Asking, 12 Law and Hum. Behav. 231, 233-34 (1988)). Proper communication is necessary for a jury to correctly fulfill its fact-finding duty and “there is reason to believe that permitting receivers of information, e.g., jurors, to ask questions enhances not only their ability to understand what is being communicated, but results in their putting forth more effort to listen and to understand because they know they may ask questions.” Yeager v. Greene, 502 A.2d 980, 999-1000 (D.C.1985).

Against this consensus, a few states, including Mississippi and Georgia, have forbidden the practice in criminal trials. As reasons for rejecting the practice, those courts cite the jurors’ lack of familiarity with the rules of evidence, the risk of counsel’s offending jurors by objecting to their questions, a loss of juror objectivity, the potential creation of antagonism between a juror and a witness, and the potential of disruption to courtroom decorum. Wharton v. State, 734 So.2d 985 (Miss. 1998).

One of the concerns expressed by those jurisdictions that do not allow juror questioning is that allowing jurors to directly question witnesses will “redefine[] their role and transform[ ] them from ‘fair and impartial’ to active participants in the trial.” Wharton,, 734 So.2d at 988. The Nebraska Supreme Court was concerned that allowing jurors to ask questions would result in “a change in [the jury] system whereby jurors become advocates and possible antagonists of the witnesses.” State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377, 380 (1991). Even courts that allow jurors to ask questions of witnesses note that “[i]t is difficult for jurors to be both active participants in the adversarial process, embroiled in the questioning of witnesses, and detached observers, passing on the credibility of the witnesses and the plausibility of the facts presented.” Bush, 47 F.3d at 515. In order to guard against this possibility, most courts that allow juror questioning of witnesses require certain safeguards, such as the submission of written questions for review by the trial judge and an opportunity for counsel to object to the question out of the presence of the jury. See Richardson, 233 F.3d at 1290-91; Bush, 47 F.3d at 511; and Sutton, 970 F.2d at 1005-06.

We agree with the majority position that allowing jurors to question witnesses is not error per se on the part of the trial court. For the same reasons the aforementioned jurisdictions have upheld the practice, we hold that it is within the discretion of the trial court to allow jurors to question a witness.

Malone argues that the trial court here erred when it went beyond merely allowing jurors to ask questions of the witnesses and actively solicited questions from the jurors. In United States v. Ajmal, 67 F.3d 12, 15 (2d Cir.1995), the United States Court of Appeals for the Second Circuit held that the trial court exceeded its discretion by allowing extensive juror questioning as a matter of course and by inviting questions at the end of each witness’s testimony. That court stated that the trial court’s decision to invite and allow extensive juror questioning was not “necessitated by the factual intricacies of [that case].” Ajmal, 67 F.3d at 14. It also noted that it considered the practice of juror questioning an allowable but disfavored practice.

In contrast, the Supreme Court of Utah, in a case in which the trial judge invited jurors to ask questions at the end of each witness’s testimony, held:

“The fact that the trial court granted the jurors permission to ask questions of witnesses without any special request from them for this privilege does not, in our opinion, in and of itself constitute error. The determining factors as to whether error has been committed is the type of questions asked and allowed to be answered. If the questions asked are not germane to the issues involved or are such as would be clearly improper and therefore prejudicial to the rights of the defendants to a fair and impartial trial, the court’s allowing them to be answered would be error.”

State v. Anderson, 108 Utah 130, 133, 158 P.2d 127, 128 (1945).

We agree with the Utah Supreme Court that soliciting questions from jurors is not error per se, but that whether the trial court has exceeded its discretion in so doing is determined by the type of questions the trial judge allows and whether those questions are prejudicial to the defendant’s rights. However, we also agree with the Second Circuit Court of Appeals that the practice should be disfavored and that a trial court should not promote or encourage the practice because it risks “altering the role of the jury from neutral fact-finder to inquisitor and advocate.” Ajmal, 67 F.3d at 15.

For the reasons set forth above, we hold that it is within the discretion of the trial court to solicit from jurors questions for the witnesses. We stress, however, that there are dangers inherent in the process. The trial judge in soliciting such questions should, therefore, adopt practices that protect the rights of the accused.

This Court will not reverse a trial court’s judgment unless, “after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” Rule 45, Ala. R.App. P. Here, the questions asked by the jurors were few in number, factual in nature, and did not solicit improper testimony. Moreover, Malone did not object in the trial court to any specific question, nor does he now argue that any specific question posed by a juror affected his substantial rights. Therefore, it does not appear that Malone’s substantial rights were affected by the trial court’s decision to allow the witnesses to be questioned by the jurors or to solicit those questions from the jurors. Accordingly, we conclude that the trial court did not err in soliciting the jurors to ask questions of the witnesses.

II.

Malone also argues that the trial court exceeded its discretion by allowing a juror to ask Malone a question after Malone and the State had rested their cases. At trial, however, Malone did not object to the timing of this juror question. Malone merely renewed his earlier objection to jurors’ asking questions. As the Court of Criminal Appeals noted in its unpublished memorandum:

“ ‘To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained.’ Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App.2005). The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any error. See, e.g., Ex parte Coulliette, 857 So.2d 793 (Ala.2003).”

Because Malone did not raise before the trial court the issue of allowing a question to be asked after the parties had rested their cases, the trial court did not have an opportunity to correct its error, and Malone did not properly preserve the issue for appeal. We, therefore, affirm the judgment of the Court of Criminal Appeals on this ground as well.

Conclusion

Because we hold that the trial court’s soliciting the jurors to question the witnesses did not affect Malone’s substantial rights and because Malone has not demonstrated any other ground on which the Court of Criminal Appeals’ decision should be reversed, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., dissents.

COBB, C.J., recuses herself.

MURDOCK, Justice

(dissenting).

The main opinion recognizes that the practice of soliciting questions from jurors “should be disfavored and that a trial court should not promote or encourage the practice because it risks ‘altering the role of the jury from neutral fact-finder to inquisitor and advocate.’ ” 12 So.3d at 66 (quoting United States v. Ajmal, 67 F.3d 12, 15 (2d Cir.1995)). The stated risk recognized by the United States Court of Appeals for the Second Circuit in Ajmal weighs sufficiently heavy in my mind to compel me to conclude that the practice of actively soliciting juror questions should be deemed error as a general rule and that it should be allowed only where there are extraordinary or compelling circumstances.

Numerous courts that have considered the practice of actively soliciting juror questions for witnesses have determined that the disadvantages of the practice outweigh the potential advantages. As the Minnesota Supreme Court explained in State v. Costello, 646 N.W.2d 204, 213 (Minn.2002), “maintaining the neutral role of jurors in an adversarial system outweighs whatever enhancement to the truthfinding function that juror questioning allows.” Even among courts that have decided to consider the propriety of juror questioning of witnesses on a case-by-case basis, there is almost universally a recognition that “[allowing jurors to pose questions during a criminal trial is a procedure fraught with perils.” See, e.g., United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir.1992). As the Sutton court aptly put it, “[ijn most cases, the game will not be worth the candle.” Sutton, 970 F.2d at 1005 (emphasis added).

In Steele v. Atlanta Maternal-Fetal Medicine, P.C., 271 Ga.App. 622, 610 S.E.2d 546 (2005), the court explained:

“In this case, the procedures implemented by the trial court modified the traditional roles of the jury, the trial judge, and the lawyers. These procedures encouraged the jury to take an active, inquisitorial role, made the trial judge to some extent the jury’s mouthpiece in pursuing its own version of the facts, and correspondingly reduced counsels’ control over the presentation of the evidence. Clearly these changes have an effect on the traditional adversary system. Although the trial court cited many sources in support of its opinion that the nationwide trend is to allow juries to discuss the evidence before final deliberations and to submit questions for witnesses, we are not persuaded that Georgia has embraced that trend.”

271 Ga.App. at 629, 610 S.E.2d at 552-53 (footnotes omitted). See also State v. Wil liamson, 247 Ga. 685, 279 S.E.2d 203 (1981); Wharton v. State, 734 So.2d 985 (Miss.1998); and State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991). The court in Brown v. State, 122 S.W.3d 794, 797-98 (Tex.Crim.App.2003), stated:

“[T]he judge is a neutral arbiter between the advocates; he is the instructor in the law to the jury, but he is not involved in the fray. The advocates have the task of producing the evidence, arguing its significance, and pointing out the logical inferences that flow from that evidence. The jurors, meanwhile, are primarily passive listeners who are supposed to remain open-minded until the evidence is completed and the judge has given them the black-letter law in his written charge. ‘The adversary theory ... maintains that the devotion of the participants, judge, juror and advocate, each to a single function, leads to the fairest and most efficient resolution of the dispute.’

(One footnote omitted.)

In an effort to ameliorate some of the concerns raised by allowing trial courts actively to solicit juror questioning of witnesses, the main opinion identifies a number of recommended safeguards. 12 So.3d at 66 n. 5. The fact that these are only “recommended” safeguards concerns me. Moreover, even if these safeguards were mandatory, they do not go to the core risk associated with allowing trial courts to actively solicit juror questions.

A special concurrence written by the Chief Judge of the United States Court of Appeals for the Eighth Circuit and joined by one of the other two panel members in the case of United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989), discusses the risks that exist in actively soliciting juror questions, even if safeguards of the nature described in note 5 of the main opinion were mandatory:

“Some would respond to the concerns about juror questions by suggesting that the court could require the questions to be submitted in writing, and the court could then hear and rule on objections outside of the jury’s presence. Apart from concerns about the disruption this procedure might cause, the practice of juror questioning raises an even more basic problem than matters of procedure: The fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury as a neutral factfinder in the adversary process. Those who doubt the value of the adversary system or who question its continuance will not object to distortion of the jury’s role. However, as long as we adhere to an adversary system of justice, the neutrality and objectivity of the juror must be sacrosanct.”

(Some emphasis original; some added; footnote omitted.) The author went on to say:

“Allowing juror questions disrupts neutrality, because even a seemingly innocuous response to a seemingly innocuous juror question can sway the jury’s appraisal of the credibility of the witness, the party, and the case. The fact-finder who openly engages in rebuttal or cross-examination, even by means of a neutral question, joins sides prematurely and potentially closes off its receptiveness to further suggestions of a different outcome for the case. While nothing can assure the jury will remain open-minded to the end, keeping the jury out of the advocacy process increases the probability.”

Johnson, 892 F.2d at 713 (emphasis added). Other courts have expressed similar concerns. See, e.g., United States v. Cassiere, 4 F.3d 1006, 1018 (1st Cir.1993) (“[T]he practice should be reserved for exceptional situations, and should not become routine, even in complex cases.”).

In Aymal, supra, the United States Court of Appeals for the Second Circuit concluded that, even with safeguards similar to those recommended by the main opinion, the practice of actively soliciting juror questions for witnesses should be reserved for “extraordinary circumstances”:

“At trial, over the objection of Ajmal’s attorney, the district court allowed extensive juror questioning of witnesses. While conceding that the decision to allow or disallow juror questioning of witnesses lies within the district court’s discretion, see United States v. Witt, 215 F.2d 580, 584 (2d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954), Ajmal asserts that the district court abused its discretion by allowing such questioning as a matter of course. We agree.
“In our recent discussion of juror questioning of witnesses, we made clear the danger inherent in such a practice. See [United States v. ]Bush, 47 F.3d [511,] 515-16 [(2d Cir.1995)]. When acting as inquisitors, jurors can find themselves removed from their appropriate role as neutral fact-finders. See id. at 515; United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, C.J., concurring). If allowed to formulate questions throughout the trial, jurors may prematurely evaluate the evidence and adopt a particular position as to the weight of that evidence before considering all the facts. See id. at 714 (‘The factfinder must remain neutral until it is time to make its findings.’); DeBenedetto [ v. Goodyear Tire & Rubber Co.], 754 F.2d [512,] 517 [(4th Cir. 1985) ]. ‘The practice also delays the pace of trial, creates a certain awkwardness for lawyers wishing to object to juror-inspired questions, and runs a risk of undermining litigation strategies.’ [United States v. ]Sutton, 970 F.2d [1001,] 1005 [(1st Cir.1992)]; see also Bush, 47 F.3d at 515. Moreover, juror questioning is particularly troublesome when it is directed at the defendant himself in a criminal trial. See Sutton, 970 F.2d at 1006 n. 6; [United States v. ]Lewin, 900 F.2d [145,] 147 [ (8th Cir. 1990)]. In such circumstances, premature deliberation and expressed skepticism by jurors can be highly prejudicial.
“The case at hand does not present sufficiently ‘extraordinary or compelling circumstances’ as to justify juror questioning of witnesses. Bush, 47 F.3d at 516 (‘Balancing the risk that a juror’s question may be prejudicial against the benefit of issue-clarification will almost always lead trial courts to disallow juror questioning, in the absence of extraordinary or compelling circumstances.’). The district court’s decision to invite juror questioning was not necessitated by the factual intricacies of this banal drug conspiracy, nor was it prompted by the urging of the jurors themselves. Rather, the district court, as a matter of course, established at the outset of the trial that jurors would be allowed to question witnesses. Indeed, the district court encouraged juror questioning throughout the trial by asking the jurors at the end of each witness’s testimony if they had any queries to pose. Not surprisingly, the jurors took extensive advantage of this opportunity to question witnesses, including Ajmal himself. Such questioning tainted the trial process by promoting premature deliberation, allowing jurors to express positions through non-fact-clarifying questions, and altering the role of the jury from neutral fact-finder to inquisitor and advocate. Accordingly, the district court’s solicitation of juror questioning absent a showing of extraordinary circumstances was an abuse of discretion.
“The government urges us to sustain the district court’s actions because it incorporated prophylactic procedures to lessen the potential prejudice caused by juror questioning of witnesses. Specifically, the district court only accepted questions in writing and posed from the bench only those questions which it viewed to comport with the Federal Rules of Evidence. Although the district court substantially complied with the procedures this Court advocated in Bush, 47 F.3d at 516 (juror questions should be 1) in writing; 2) reviewed by counsel in camera; and 3) put to the witness by the court), such measures alone cannot purge the harm caused by the extensive juror questioning in the case at hand. Regardless of the procedures adopted by the district court to vet juror questions, there must be ample justification for adopting the disfavored practice in the first instance. To hold otherwise would sanction juror questioning of witnesses in any circumstance, so long as appropriate prophylactic measures are adopted. We cannot accept such a proposition.”

Ajmal, 67 F.3d at 14-15 (emphasis added).

In this case, the objection registered by defense counsel at trial expressed common-sense concerns in a straightforward manner:

“I object, in that I think though there may arise an occasion where a juror may pose a question to the Court that the Court will allow the juror to ask that question to a witness, as a general rule I would say that that is a policy that is fraught with all kind of dangers.
“First, it takes away the opportunity for either the State of [sic] the defendant to have a prosecution strategy. And there may be questions that we intentionally don’t ask jurors [sic] for a particular reason, and to allow the jury to have an opportunity to ask a question takes away that opportunity of the lawyer to have any kind of a trial strategy.
“To allow the jurors to do that puts the jury in a position of looking for facts and more than just making a ruling on the evidence before them, but let them have an opportunity to seek evidence. And I think allowing the jury to expand their role to where they’re seeking evidence is outside the scope of what a jury should do. Though I don’t disagree that there may be an occasion a juror may say, ‘Excuse me, Judge. I’d like to ask something.’ And I think in those cases that — depending on the question it may be appropriate.”

Malone’s brief, pp. 23-24. Defense counsel then distinguished the practice of allowing an occasional juror-initiated question from the practice used in the present case of “solicit[ing] a jury, if they have questions, as [the trial court did] after every witness in this case, and asked them and there’s been a long pause if they didn’t have a question so [the trial court’s] basically encouraging them to ask questions.” Id. at 24.

Malone’s argument to this Court also contains straightforward reasons for not allowing the active solicitation of juror questions:

“The jurors are meant to be impartial observers, and to be the finders of fact — facts as presented to them by the prosecution and the defendant. They do not have the role of being investigators or advocates. They only judge on the facts and evidence presented to them. It is the role of the State to present evidence and prove [its] case beyond a reasonable doubt. By soliciting questions from the jurors, [the trial judge puts jurors] in the shoes of the prosecution, or the defense ....
“The actively soliciting of questions from the jury leads the jury to believe that their role is something more than neutral and impartial fact finders, and triers of the evidence as presented to them by the State and the defendant. [Malone] would also argue that the trial court advising the jury at the beginning of the trial that they will be allowed to ask questions puts both defense and state attorneys at a disadvantage. This practice is likely to require the attorney to change their trial strategy, or even their theory of defense, thereby causing prejudice to the defendant, and ultimately change the outcome of the trial.”

Malone’s brief, pp. 25-26.

Based on the foregoing, I respectfully dissent.

      . See, e.g., Landt v. State, 87 P.3d 73 (Alaska Ct.App.2004); State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (Ariz.Ct.App.1983); Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974); People v. McAlister, 167 Cal.App.3d 633, 213 Cal.Rptr. 271 (1985); Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991); Bradford v. State, 722 So.2d 858 (Fla.Dist.Ct.App.1998); Carter v. State, 250 Ind. 13, 234 N.E.2d 650 (1968); Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550 (Iowa 1980); State v. Culkin, 97 Haw. 206, 35 P.3d 233 (2001); State v. Hays, 256 Kan. 48, 883 P.2d 1093 (1994); Transit Auth. of River City v. Montgomery, 836 S.W.2d 413 (Ky. 1992); Commonwealth v. Urena, 417 Mass. 692, 632 N.E.2d 1200 (1994); People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972); Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993); State v. Graves, 274 Mont. 264, 907 P.2d 963 (1995); State v. Jumpp, 261 N.J.Super. 514, 619 A.2d 602 (1993); State v. Howard, 320 N.C. 718, 360 S.E.2d 790 (1987); State v. Fisher, 99 Ohio St.3d 127, 789 N.E.2d 222 (2003); Cohee v. State, 942 P.2d 211 (Okla.Crim.App.1997); State v. Anderson, 108 Utah 130, 158 P.2d 127 (1945); State v. Doleszny, 176 Vt. 203, 844 A.2d 773 (2004); and Williams v. Commonwealth, 24 Va.App. 577, 484 S.E.2d 153 (1997).

      . See, e.g. United States v. Collins, 226 F.3d 457, 461 (6th Cir.2000); United States v. Hernandez, 176 F.3d 719, 724 (3d Cir. 1999); United States v. Feinberg, 89 F.3d 333, 336 (7th Cir. 1996); United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995); United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir.1993); United States v. Groene, 998 F.2d 604, 606 (8th Cir.1993); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986); and United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir. 1979).

      . Georgia, Minnesota, Mississippi, Nebraska, and Texas have rejected the practice of juror questioning in criminal trials. State v. Williamson, 247 Ga. 685, 279 S.E.2d 203 (1981); State v. Costello, 646 N.W.2d 204 (Minn. 2002); Wharton v. State, 734 So.2d 985 (Miss. 1998); State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991); and Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App.1992). Malone also references Ohio and Colorado cases; however, neither of those states prohibits juror questioning. Malone cites Ohio v. Gilden, 144 Ohio App.3d 69, 759 N.E.2d 468 (2001); however, in Ohio v. Fisher, 99 Ohio St.3d 127, 135, 789 N.E.2d 222, 230 (2003), the Ohio Supreme Court overruled that decision and held that “the practice of allowing jurors to question witnesses is not error — constitutional or otherwise.” Malone also cites two Colorado cases; People v. Merklin, 80 P.3d 921 (Colo.Ct.App.2003), and Medina v. People, 114 P.3d 845 (Colo.2005). In both of those cases, the courts held that allowing juror questions was not structural error. Malone cites the Supreme Court of Colorado's discussion in Medina of reasons other courts have rejected the practice of juror questioning; however, the Colorado Supreme Court goes on to reject those reasons and to hold that allowing juror questions does not "violate a defendant's constitutional rights to a fair trial and an impartial jury.” Medina, 114 P.3d at 857. Currently, both Ohio and Colorado are among the states that do not prohibit juror questioning.

      . The dissent would have us hold that solicitation of juror questions for witnesses is error as a general rule, except in extraordinary or compelling circumstances, and, in support of this argument, the dissent cites United States v. Ajmal, supra. We note that other federal courts have not followed Ajmal. See United States v. Feinberg, 89 F.3d 333, 336 (7th Cir. 1996) (holding that juror questions were not prejudicial per se where "[Hollowing each witness’s testimony, [the trial court judge] turned to the jury and inquired whether they had any questions for the witness” and on 10 occasions jurors asked questions). This case is closer to the limited questioning present in Feinberg than to the "extensive” questioning allowed in Ajmal. Moreover, as was the case in Feinberg, Malone has not shown that he suffered any prejudice from the limited number of juror questions allowed in this case.
      Justice Murdock, in his dissent, cites in support of his argument also the decisions of the state courts of Georgia, Minnesota, Mississippi, Nebraska, and Texas. However, those courts have not established a general rule disallowing juror questions only when those questions are solicited by the trial court; rather, they have established a rule disallowing all juror questions, whether or not they were solicited. In disallowing all juror questions, those states are in the decided minority. See supra note 1.

      . The federal courts and the courts of many states follow guidelines for juror questioning of witnesses of the following general form. First, the trial court should instruct the jury, before hearing any witness testimony, that jurors will be permitted to submit questions for the purpose of clarifying the witness’s testimony. See United States v. Collins, 226 F.3d 457, 463 (2000); Sutton, 970 F.2d at 1006. Second, proposed questions from jurors should be submitted to the judge in writing. See Bush, 47 F.3d at 516; Sutton, 970 F.2d at 1005-06. Third, the judge should review the questions and confer with the attorneys, outside the presence of the jury, regarding any objections to the proposed questions. This allows die attorneys to object to questions without fear of alienating or antagonizing the jurors. See Richardson, 233 F.3d at 1291. It also protects against witnesses’ answering improper questions before the court can intervene. Finally, the judge, not die juror, should "pose the questions to the witness in a neutral manner.” Richardson, 233 F.3d at 1290.

      . I do not take issue with the various cases cited by the main opinion in which courts have allowed questions from jurors on an occasional, ad hoc basis. My concern is with the more specific issue of the active solicitation by the trial judge of jurors to engage in the questioning of witnesses, especially when the practice is announced by the trial court in advance.

      "5 See Morrison v. State, 845 S.W.2d 882, 885 (Tex.Crim.App.1992). This strict division of labor has been explained as necessary because maintaining juror impartiality [is] fundamental to adversarial integrity’ .... Id. at 887.”

      . The main opinion comments on my citation to cases from Georgia, Minnesota, Mississippi, Nebraska, and Texas, stating that the courts in these states have not recognized the same rule I would recognize, i.e., a general prohibition of the active solicitation of juror questions, with exceptions available for extraordinary or compelling circumstances. 12 So.3d at 65 n. 4. This is true. Indeed, the courts in these states have taken the even more restrictive approach of disallowing all juror questions. Accordingly, I cite these cases for their articulation of the gravity of the risks associated with allowing juror questions — and only for this purpose. Such use of these cases is appropriate in that, like the courts in these states, I view the articulated risks as weighing more heavily in the balance we must strike today than does the main opinion.
      The main opinion also notes that "[i]n disallowing all juror questions, those states are in the decided minority.” 12 So.3d at 65 n. 4. The fact that a complete disallowance of juror questions may be a decidedly minority view, however, is inapposite to the merits of my view. It is not clear how many states would at least impose a rule of the nature I recommend.
      I also note the main opinion’s statement that state courts have “overwhelmingly” held that the practice of allowing juror questions is not error per se. 12 So.3d at 63. Again, I emphasize that I do not take the position that any questioning of witnesses by jurors is error or that juror questioning is error per se. My point of departure from the main opinion concerns only the active solicitation by the trial judge of questions from the jurors. It is my position that such a practice, as a general rule, should be treated as error, and that juror questioning should be allowed only when safeguards of the nature described in the main opinion are used and, even then, only in extraordinary or compelling circumstances.


source: Caselaw Access Project

author: MOORE, Judge. BRYAN, Judge,

license: Public Domain

text:
    Timothy A. PAYNE and Frances L. Payne v. SHELBY COUNTY COMMISSION and Shelby County Planning Commission.
    2070545.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2008.

      Jason B. Tingle of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellants.
    George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville; and Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Colum-biana, for appellees.
   MOORE, Judge.

Timothy A. Payne and Frances L. Payne appeal from a summary judgment in favor of the Shelby County Commission and the Shelby County Planning Commission. We affirm.

Procedural History

On June 6, 2006, the Paynes sued B & CC, LLC; Rick Burch; Burch Properties, LLC; the Shelby County Commission; and the Shelby County Planning Commission. Against the County Commission and the Planning Commission, the Paynes alleged claims of misrepresentation; suppression; deceit; promissory fraud; breach of contract; and negligence and/or wantonness. Those claims arose out of a conditional rezoning resolution adopted by the Planning Commission in 2001 concerning property located adjacent to the Paynes’ property and the County Commission’s and the Planning Commission’s efforts, or lack thereof, to enforce that rezoning resolution.

The County Commission and the Planning Commission filed a joint motion for a summary judgment. On January 4, 2008, the trial court granted that motion in favor of both defendants. The trial court certified that order for interlocutory review, pursuant to Rule 54(b), Ala. R. Civ.App. The Paynes appealed, asserting that the trial court had erred in entering the summary judgment in favor of the County Commission and the Planning Commission.

Factual History

In 2001, the unidentified owner of a 9.5-acre tract of land located in an unincorporated area of Shelby County filed a request with the Planning Commission to rezone the land from an “E-2 Single Family Estate” to an “O-l Office and Institutional District.” The Planning Commission considered the rezoning request at an October 1, 2001, meeting. Several property owners from Havenwood Park, a subdivision located adjacent to the 9.5-acre tract, opposed the request. The Paynes’ home was located in Havenwood Park, and they were among the property owners opposed to the rezoning request. However, the Planning Commission adopted a resolution rezoning the 9.5-acre tract as requested, subject to the following conditions:

“That the Development Review Committee shall ensure that there will be a minimum 50' setback adjacent to all residential property, undisturbed if possible; architectural character of any improvements will be limited to 2 stories in height with steeply pitched roofs and an exterior design reflecting residential character; the maximum footprint of any structure on the property shall not exceed 5,000 square feet; a detailed erosion control and storm water runoff plan shall be provided; light fixtures shall not exceed 20' in height and shall not spill over onto adjoining properties; a detailed traffic study including traffic counts, potential and proposed improvements on Valleydale Road shall be provided by the applicant.
“... [T]hat following review by the Development Review Committee, the site plan will be scheduled to go to the Planning Commission for final approval.”

The 9.5-acre tract sat idle until 2005, when Rick Burch and his company, Burch Properties, LLC (hereinafter referred to collectively as “Burch”), filed a site plan for approval with the Shelby County Department of Development Services (“the Department”). The site plan was assigned for review to Michelle O’Neal, who was employed with the Department. On March 29, 2005, O’Neal notified Burch that his site plan was deficient and could not be approved until he addressed several identified areas. Because of the deficiencies in Burch’s proposed site plan, it was not placed on the Planning Commission’s May 2005 agenda. Burch asked the Planning Commission to continue the matter to the June 2005 meeting.

Around the same time that Burch submitted his site plan to the Department, he began clearing and grading the 9.5-acre tract. Beginning in March 2005, the Department began receiving complaints regarding Burch’s clearing efforts and regarding the runoff of water and sediment from the undeveloped tract. The Paynes were among those complaining to the Department. Rick Burch met with the Paynes and other homeowners in the subdivision to discuss their complaints and to discuss his plans for the 9.5-acre tract of land.

According to Timothy Payne, in July 2005 Burch agreed to build an earthen berm on the 9.5-acre tract in order to block the homeowners’ view of Burch’s office development. Timothy asserted that this plan was made known to O’Neal and that she made suggestions to Timothy and Burch as to how the berm could be addressed in Burch’s site plan. Timothy sent a letter to Burch setting forth the terms of their “agreement” as to this berm. Timothy also copied O’Neal with that letter. However, Burch and Timothy did not execute a written agreement regarding the berm.

Burch submitted his revised site plan to the Department, and the matter was placed on the agenda for the September 2005 Planning Commission meeting. Timothy objected to any consideration of Burch’s site plan because, he asserted, Burch had disturbed the buffer zone between the area to be developed and the subdivision; Burch had not constructed the berm, as purportedly agreed; and Burch had not addressed or remedied the runoff of water and sediment from his property onto the Paynes’ property. The Department did not recommend approval of the site plan, and, according to a September 19, 2005, resolution of the Planning Commission, the application was “tabled” “until the applicant can provide an acceptable landscaping plan, grading plan and demonstrate resolution of the repairs of the buffer that has been virtually eliminated.”

In February 2006, Burch submitted his plans to repair the buffer zone. Although Timothy continued to argue that the site plan did not adequately comply with the 2001 conditional resolution, the Planning Commission voted to place Burch’s site-plan application on the agenda for the March 2006 Planning Commission meeting.

At the Planning Commission’s March 2006 meeting, Timothy appeared and opposed Burch’s revised site plan. However, the Planning Commission voted unanimously to approve Burch’s site plan, subject to certain conditions. Among other things, the Planning Commission required (1) that “the berm and the entire northern property boundary must be planted as shown on the landscape plan and inspected by [the Department] staff before building permits will be released” and (2) that “permanent or temporary soil stabilization must be applied to disturbed areas within seven (7) days on areas that will remain unfinished for more than thirty (30) calendar days.”

The Paynes filed this action in June 2006, asserting that the County Commission and the Planning Commission were liable for negligence and/or wantonness; misrepresentation; suppression; deceit; promissory fraud; and breach of contract. Before O’Neal’s March 7, 2007, deposition, and, thus, before the County Commission and the Planning Commission filed their April 24, 2008, appellee’s brief, Burch had constructed the berm and had planted trees and shrubs on it. He had not, however, complied with the other conditions imposed on him by the Planning Commission. As a result, the Department had not issued any building permits to Burch before the County Commission and the Planning Commission filed their brief to this court.

According to O’Neal, enforcement actions against Burch were “an ongoing matter” and the Department had several options available to it. O’Neal testified that, in its efforts to enforce the rezoning resolution, the Planning Commission had continued its consideration of Burch’s site plan, had “tabled” its consideration of Burch’s site plan, had required additional plantings from him, and had declined to issue building permits to him. Another option available to the Planning Commission was to rescind the rezoning resolution. O’Neal was aware that the Shelby County zoning regulations authorized the Planning Commission to fine persons who violated those regulations; however, she had not been involved in any cases where that power had been exercised.

Standard of Review

“Our standard of review for a summary judgment is as follows:

“ ‘We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the non-movant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant.” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (AJa.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

Analysis

The Paynes assert that the County Commission and the Planning Commission are subject to tort liability for falsely representing that the conditions placed on the conditional rezoning resolution would be met; for suppressing the fact that they had no power to ensure that the conditions placed on the 9.5-acre tract would be met; for falsely promising that the residential character of the Paynes’ property would be preserved through the placement of restrictions on the manner in which the 9.5-acre tract could be developed; and for negligently or wantonly failing to enforce the rezoning resolution at issue in this case. The Paynes also assert that they, along with the County Commission and the Planning Commission, were parties to a contract in which Burch agreed to build an earthen berm to restore the buffer zone between the 9.5-acre tract and the residential subdivision.

The Paynes’ Tort Claims

In contrast to the state, which is entitled to immunity under the Alabama Constitution of 1901, § 14, counties and municipalities are generally chargeable with the negligence of their employees acting within the line and scope of their employment. Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982). The courts have acknowledged the difficulty inherent in determining county and municipality tort liability and have repeatedly stated that such liability must be determined on a case-by-case basis. See Rich, 410 So.2d at 387.

However,
“before liability for negligence can be imposed upon a governmental entity, there must first be a breach of a legal duty owed by that entity. Shearer v. Town of Gulf Shores, 454 So.2d 978 (Ala. 1984). In determining whether a claim is valid, the initial focus is upon the nature of the duty. Rich v. City of Mobile, 410 So.2d 385 (Ala.1982). There must be either an underlying common law duty or a statutory duty of care with respect to the alleged tortious conduct.”

Hilliard v. City of Huntsville, 585 So.2d 889, 890 (Ala.1991).

Thus, in order to determine whether the trial court properly entered a summary judgment in favor of the County Commission and the Planning Commission on the Paynes’ tort claims, we must determine whether they owed a common-law or statutory duty of care to the Paynes. The determination of whether a duty exists is a question of law for the court to decide. Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 837 (Ala.2003); and Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala. 1983).

The County Commission and the Planning Commission assert, among other things, that they owed no duty to the Paynes because they were entitled to “substantive immunity” in connection with the adoption of the conditional rezoning resolution and their decisions as to how best to enforce that resolution against Burch. The “substantive immunity” rule is a narrow exception to the general rule that a municipality or a county is chargeable with the negligence of its employees or agents performed in the line and scope of their duty. Rich v. City of Mobile, 410 So.2d at 387. This exception is based on

“public policy considerations ... [that] override the general rule and prevent the imposition of a legal duty, the breach of which imposes liability, in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide such public services.”

Id. The court in Rich stated that “the substantive immunity rule ... must be given operative effect only in the context of those public service activities of governmental entities ... so laden with the public interest as to outweigh the incidental duty to the individual citizens.” 410 So.2d at 387-88. Thus, we must determine whether a county’s exercise of its zoning power is a public-service activity so laden with the public interest as to outweigh any incidental duty that activity might create to an individual citizen.

As recognized in Pollard v. Unus Properties, LLC, 902 So.2d 18 (Ala.2004), “ ‘[t]he authority for zoning laws is found within the bounds of the police power, asserted for the public welfare’ ” and zoning restrictions must “ ‘bear some substantial relation to the public health, safety, morals, or general welfare, or as otherwise elsewhere expressed, the “public convenience or the general prosperity.” ’ ” 902 So.2d at 23, 24 (quoting Leary v. Adams, 226 Ala. 472, 474, 147 So. 391, 392 (1933)). See also COME v. Chancy, 289 Ala. 555, 563, 269 So.2d 88, 96 (1972) (“[Z]oning ordinances must be enacted with the general welfare of the entire community in mind.”).

Further, in § 11-3A-2, Ala.Code 1975, the legislature granted the county commission of each county of this state the authority to “provide for its property and affairs; and for the public welfare, health, and safety of the citizens throughout the unincorporated areas of the county by exercising certain powers for the protection of the county and public property under its control.” Pursuant to this authority, the Shelby County Planning Commission was created and granted the authority to zone, with the approval of the Shelby County Commission, “all areas of the county outside the boundaries of municipal corporations.” Ala. Acts 1982, Act No. 82-693, § 3.

Based on the foregoing, it cannot be disputed that zoning powers are a public-service activity and may not be exercised for the benefit of individual landowners to the exclusion of the interests and well-being of all citizens of a county or municipality. Thus, the exercise of the zoning powers granted to a governmental body is a public-service activity to be exercised for the benefit of the governmental entity and for the well-being of the governed.

Additionally, simply because an individual citizen benefits from a governmental body’s exercise of its power does not mean that such power was exercised for that citizen’s benefit. For example, in Hilliard v. City of Huntsville, supra, our supreme court held that the City of Huntsville was entitled to substantive immunity with respect to Hilliard’s claims of negligent or wanton inspection of wiring at an apartment complex. The court stated:

“The city, like most municipalities, elects to perform electrical inspections as a benefit to itself and to the general public. While individuals receive a benefit from these inspections, that benefit is merely incidental to the benefit derived by the citizens in general. Although an individual driver benefits by the state’s testing and licensing of drivers of motor vehicles, the state in so testing and licensing drivers does not guarantee to individual drivers that all licensed drivers are safe drivers.”

Hilliard, 585 So.2d at 891. As recognized in Hilliard, supra, any benefit received by the Paynes as a result of the County Commission’s and the Planning Commission’s exercise of their zoning power was merely incidental to the benefit derived by the citizens of Shelby County in general.

In this case, because the County Commission and the Planning Commission exercised the power to zone for the benefit of the county and its citizens and because the County Commission and the Planning Commission could not have validly imposed conditions on the 9.5-acre tract only for the benefit of the residents of Haven-wood Park subdivision, we conclude that the adoption of the conditional rezoning resolution did not create a duty owed by the County Commission or the Planning Commission to the Paynes over and above that owed to the general public.

Additionally, the Paynes have not cited, and we have not located, any Alabama cases in which the zoning or conditional rezoning of property was held to create a specific duty owed by a governmental entity to an individual landowner. Although the Paynes rely on City of Mobile v. Sullivan, 667 So.2d 122 (Ala.Civ.App.1995), and Kennedy v. City of Montgomery, 423 So.2d 187 (Ala.1982), in support of their argument, those cases are factually and legally distinguishable.

In Sullivan, it was not the governmental act of adopting or enforcing a zoning ordinance that gave rise to a tort claim against the City of Mobile; in Sullivan, the negligent act that gave rise to a tort claim against the city was a city employee’s assurance that the property at issue was zoned in a particular manner and that the property’s current zoning was suitable for the plaintiffs intended purposes. 667 So.2d at 126-27. Because the plaintiff then relied on those assurances to his detriment, the court concluded that the plaintiff had stated a viable tort claim against the City of Mobile. Id. at 127.

In Kennedy, the court held that a municipality was not immune from the plaintiffs’ tort claims in which the plaintiffs had alleged that the municipality had failed to provide adequate drainage to prevent the plaintiffs’ basement from flooding. As noted in Sullivan, such a failure is one of those fact situations in which a municipality or a county has been held liable to its citizens for negligence. See Sullivan, 667 So.2d at 126-27 (“There is a long line of cases holding counties and municipalities generally liable for failing to properly maintain or operate their sewer and drainage systems, streets, public ways, or buildings.”)- There are no such cases, however, recognizing liability for a county’s or a municipality’s negligence in exercising or failing to exercise its power to zone.

In this case, the Planning Commission exercised the legislative power granted to it by adopting the conditional rezoning resolution applicable to the 9.5-acre tract. Although in doing so the Planning Commission considered the interests of the Ha-venwood Park subdivision residents, the Planning Commission’s act of adopting the rezoning resolution was a public-service activity exercised for the well-being of all Shelby County residents under its jurisdiction, not one exercised solely for the benefit of the Havenwood Park subdivision residents or solely for the benefit of the Paynes. Because we conclude that the adoption of the rezoning resolution created no duty to any individual citizen, we conclude that the public duty to be served by the exercise of that power clearly outweighed any incidental duty owed to the Paynes. Accordingly, we conclude that the County Commission and the Planning Commission are entitled to substantive immunity for actions taken in connection with the exercise of their zoning power. See Rich, supra; and Hilliard, supra.

The acts taken by the County Commission and the Planning Commission to enforce the conditional rezoning resolution at issue in this case are also protected by substantive immunity. A governmental entity’s decision regarding how a zoning ordinance should be enforced is as much a legislative matter as is the enactment of a zoning ordinance. See § 11-52-76, Ala. Code 1976 (“The legislative body of [the] municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced and from time to time amended, supplemented or changed.” (emphasis added)).

Just as we have located no Alabama case holding that a governmental entity may be held liable in tort for its actions in adopting a zoning ordinance, we have located no Alabama case holding that a governmental entity may be held liable in tort for its failure to enforce local ordinances against third parties. We have, however, found numerous cases refusing to impose liability against a governmental entity for its failure to enforce ordinances and statutes. For example, in Shearer v. Town of Gulf Shores, 454 So.2d 978, 979 (Ala.1984), our supreme court held that a state statute making it unlawful for a probate judge or a city clerk to issue a privilege license unless the applicant was in possession of a valid health permit was aimed at protecting the public health. As a result, the court concluded that the town owed no duty to an individual applicant for a privilege license to ascertain whether that applicant had a valid health permit before issuing the privilege license; the court also concluded that the town’s failure to do so did not give rise to a claim of negligence by the individual licensee when the licensee was later shut down for his violation of the statute.

In Davenport v. Neely, 7 F.Supp.2d 1219, 1231 (M.D.Ala.1998), a vehicle dealership sued, among others, the Montgomery County Commission alleging negligence in connection with its failure to properly enforce regulations applicable to the owner of adjoining property, on which a tire-recycling facility had been operated in violation of certain environmental regulations. The United States District Court, in dismissing the claims against the Montgomery County Commission, stated that, “[e]ven assuming that the Commission has a ‘duty1 to ‘regulate and enforce requirements,’ Defendants have failed to cite any authority allowing for a cause of action against a governmental agency for failing to enforce regulations against private parties.” 7 F.Supp.2d at 1231. See also Davis v. City Council of Montgomery, 51 Ala. 139, 149 (1874) (holding that the city was not liable in tort for its failure to enforce an ordinance in which it was granted the authority to abate a nuisance).

Courts in other jurisdictions have also reached this same result. In Trianon Park Condominium Ass’n v. City of Hialeah, 468 So.2d 912, 914-15 (Fla.1985), the Florida Supreme Court stated:

“We hold that there has never been a common law duty to individual citizens for the enforcement of police power functions. Further, we find that no statutory duty for the benefit of individual citizens was created by the citys adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code.”

See also Maciejko v. Lunenburg Fire Dist. No. 2, 171 Vt. 542, 758 A.2d 811 (2000) (recognizing that plaintiffs had no cause of action against a city fire district arising out of its failure to enforce its ordinances); Geimer v. Chicago Park Dist., 272 Ill. App.3d 629, 630, 650 N.E.2d 585, 590, 208 Ill.Dec. 891, 896 (1995) (recognizing common-law rule that municipalities are not liable in tort and owe no duty to individual members of the general public for failure to enforce local laws and ordinances); Scheurman v. Department of Transp., 434 Mich. 619, 635, 456 N.W.2d 66, 73 (1990) (recognizing that governmental agencies are not liable for the failure to investigate or enforce ordinance violations); and Berger v. City of University City, 676 S.W.2d 39, 42 (Mo.Ct.App.1984) (recognizing that a city is not liable for failing to enforce its ordinances). If a governmental entity’s failure to investigate or to enforce its own ordinance does not give rise to a tort action, a governmental entity’s decision among various enforcement options as to how best to enforce a zoning ordinance likewise does not give rise to a tort action.

Based on the foregoing, we conclude that the County Commission and the Planning Commission were entitled to substantive immunity as to the exercise of their zoning powers. Therefore, the County Commission and the Planning Commission owed no duty to the Paynes as a result of the adoption of the conditional rezoning resolution or as a result of the County Commission’s and Planning Commission’s decisions as to how best to enforce that resolution against Burch. Without establishing that the County Commission or the Planning Commission owed them a duty, the Paynes were not entitled to maintain their claims of negligence, suppression, and deceit against the County Commission or the Planning Commission.

Additionally, the Paynes’ claims of misrepresentation and promissory fraud fail as a matter of law. As discussed above, the Planning Commission is entitled to substantive immunity for its role in adopting the conditional zoning ordinance. See, e.g., Rich v. City of Mobile, 410 So.2d at 387; and Hilliard v. City of Huntsville, 585 So.2d at 891. Additionally, a govern mental entity is not subject to tort liability for its failure to enforce local ordinances. See, e.g., Shearer v. Town of Gulf Shores, 454 So.2d at 979; and Davenport v. Neely, 7 F.Supp.2d at 1231. Thus, the Paynes cannot claim that they reasonably relied upon the language of the conditional zoning ordinance to ensure that certain action would be taken by the County Commission or the Planning Commission; the Paynes likewise cannot recover in tort for the alleged failure of the County Commission or the Planning Commission to take enforcement action against Burch. Because reasonable reliance and damages are essential elements of the Paynes’ misrepresentation and promissory-fraud claims, we affirm the summary judgment as to those claims.

We also note that the Paynes failed to argue their wantonness claim on appeal. “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982). Therefore, we affirm the summary judgment as to the Paynes’ claim of wantonness.

For the above-stated reasons, all of the Paynes’ tort claims fail as a matter of law. We, therefore, affirm the summary judgment entered in favor of the County Commission and the Planning Commission as to the Paynes’ claims of negligence, wantonness, misrepresentation, suppression, deceit, and promissory fraud.

Breach-of-Contract Claim

The Paynes assert that the County Commission and the Planning Commission were parties to a contract pursuant to which Burch agreed to construct an earthen berm on the 9.5-acre tract. The Paynes also assert that the County Commission and the Planning Commission are liable to them for Burch’s breach of that agreement and that, as a result, the trial court erred in entering a summary judgment on that claim.

“The elements of a breaeh-of-con-tract claim are ‘ “(1) the existence of a valid contract binding the parties in the action, (2) [the plaintiffs] own performance under that contract, (3) the defendant’s nonperformance, and (4) damages.” ’ Childersburg Bancorporation, Inc. v. Peoples State Bank of Commerce, 962 So.2d 248, 253 (Ala.Civ.App.2006) (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995)).”

Mahoney v. Loma Alta Prop. Owners Ass’n, 4 So.3d 1130, 1133 (Ala.Civ.App.2008).

We find no evidence of a valid contract binding the County Commission or the Planning Commission to any agreement involving Burch or the Paynes. To the extent Burch agreed to create an earthen berm, he did not bind the County Commission or the Planning Commission to such an agreement. Additionally, any site plans submitted by Burch to the County Commission or the Planning Commission in which Burch agreed to build an earthen berm did not create a contractual duty on the part of the County Commission or the Planning Commission to the Paynes. As a result, we conclude that the Paynes failed to produce substantial evidence of all the essential elements of their breach-of-contract claim, and we therefore affirm the summary judgment entered on that claim by the trial court.

Conclusion

Because the County Commission and the Planning Commission owed no duty specifically to the Paynes, the Paynes could not maintain their tort claims. Additionally, because there is no evidence of a valid contract binding the County Commission or the Planning Commission to any agreement involving the Paynes, the Paynes could not maintain their breach-of-contract' claim. The trial court properly entered a summary judgment in favor of the County Commission and the Planning Commission.

AFFIRMED.

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

BRYAN, J., concurs in part and concurs in the result.

BRYAN, Judge,

concurring in part and concurring in the result.

I concur in the result reached by the main opinion with regard to the tort claims. In all other respects, I concur.

      . In their notice of appeal, the Paynes also named as an appellee “Shelby County Development Services.” Because Shelby County Development Services had not been a party before the trial court, that entity was stricken as an appellee.

      . The record indicates that the written resolution may not have accurately captured the entire text of the conditional resolution. However, any omissions from the written resolution are not relevant to the dispute before this court ’ and, thus, we need not address them.

      .According to the deposition testimony of Michelle O’Neal, an employee of the Department, the Department of Development Services is a department of Shelby County government "responsible for administering the subdivision and zoning regulations for the county” "[a]s well as inspections, building inspections and building permit approvals." The Department of Development Services answers to the Planning Commission. According to O’Neal, a “ ‘site plan’ contains the detailed engineering for the development of the site as well as the site layout of the buildings, maneuvering parking areas, and landscape plans.” O'Neal also stated that a “general site development plan” is “the general concept plan which shows the approximate location of buildings and maneuvering areas of parking spaces."

      . According to O’Neal, tabling an action was a more drastic and more severe measure than merely continuing it. She explained that "[t]o continue a case does not require any additional action from the applicant. When the planning commission tables a case, they are tabling it waiting on additional plans from the applicant. It is tabled indefinitely until they meet those requirements.”

      . The court in Rich stated:
      "We readily acknowledge both the difficulty and the risk of error of any attempt to articulate the rule with that degree of definiteness which is easily applicable to varying factual situations. But this phenomenon is no stranger to the Rule of Law generally. We believe the wiser course is to allow the rule to evolve through the judicial process of trial and review on a case by case basis."

        Rich, 410 So.2d at 387. Since Rich, this court has again acknowledged the difficulty in attempting to set forth a clear test regarding the general rule of municipal and county immunity. See City of Mobile v. Sullivan, 667 So.2d 122 (Ala.Civ.App. 1995). Despite this difficulty, the court in Sullivan recognized that
      "[glenerally, a municipality is not liable for negligent or deficient electrical, plumbing, or other inspections, or for failure to provide adequate police protection. There is a long line of cases[, however,] holding counties and municipalities generally liable for failing to properly maintain or operate their sewer and drainage systems, streets, public ways, or buildings.”

        Sullivan, 667 So.2d at 126-27 (citations omitted).

      . The power to conditionally rezone has been expressly recognized as part of the legislative power to zone. See Johnson v. Doss, 500 So.2d 1129 (Ala.Civ.App. 1986).

      . See, e.g., Chrismon v. Guilford County, 322 N.C. 611, 629, 370 S.E.2d 579, 590 (1988) (addressing conditional rezoning ordinances and stating: " ‘[t]hat which makes for the exclusive and preferential benefit of such particular landowner, with no relation to the community as a whole, is not a valid exercise of [the police power])’ " (quoting Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150, 198 A. 225, 233 (1938) (emphasis omitted)); Collard v. Incorporated Village of Flower Hill, 52 N.Y.2d 594, 421 N.E.2d 818, 439 N.Y.S.2d 326 (1981) (holding that conditions placed in a conditional rezoning ordinance must be in the public’s best interest).

      . We note that the court in Sullivan expressly stated the following:
      "It is important to note that the developing law in the area of municipal liability and substantive immunity, when applied to the unique facts in this case, dictates this outcome, and in our struggle to decide these cases on a case-by-case basis, we strictly narrow this holding to this case. Nothing in this opinion should be construed to indicate that this exact result would occur in a similar, but not identical, situation."
      667 So.2d at 127-28.


author: MOORE, Judge.

text:
    Amber L. TIDWELL v. PRITCHETT-MOORE, INC., and Tim Rutledge Amber L. Tidwell v. J.W. Properties, LLC.
    2070966 and 2071100.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2008.

      A1 Tidwell, Hamilton, for appellant.
    C. Peter Bolvig, Birmingham, for appel-lees Pritchett-Moore, Inc., and Tim Rutledge.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellee J.W. Properties, LLC.
   MOORE, Judge.

On August 24, 2007, Amber L. Tidwell filed a two-count complaint against Pritch-ett-Moore, Inc., Tim Rutledge, and J.W. Properties, LLC. J.W. Properties is the owner and lessor of an apartment Tidwell leased beginning August 5, 2005. Pritch-ett-Moore is the leasing agent for J.W. Properties. Rutledge is an employee of Pritchett-Moore. In count one of her complaint, Tidwell sought a judgment against J.W. Properties declaring that the automatic-renewal provision of her lease was invalid. Tidwell also sought $10,000 and costs from Rutledge and Pritchett-Moore for their alleged acts of fraud, coercion, intimidation, and breach of fiduciary duty in causing her to lose the opportunity to lease another apartment. For purposes of this opinion, we will refer to those claims collectively as “Tidwell’s fraud claim.” In count two of her complaint, Tidwell sought to certify a class of all other persons situated similarly to herself with regard to the automatic-renewal provision of the lease.

On January 11, 2008, Pritchett-Moore and' Rutledge moved for a summary judgment as to the enforceability of the automatic-renewal provision of the lease. On January 29, 2008, Tidwell filed her own summary-judgment motion addressed to that issue. On February 28, 2008, the trial court entered a judgment entitled “Order on Validity of Leases.” In that judgment, the trial court declared that the automatic-renewal provision of the lease was enforceable and was not unconscionable and that the lease was “currently valid” between Tidwell and J.W. Properties. The trial court additionally noted that “[a]ny remaining claim(s) can be addressed in further proceedings, unless the parties agree that these findings are dispositive.”

On May 22, 2008, Pritchett-Moore and Rutledge filed a second summary-judgment motion addressed to Tidwell’s fraud claim. The trial court scheduled a hearing on the motion for June 19, 2008. On June 11, 2008, Tidwell filed an amended complaint in which she attempted to add a claim for damages based on the alleged failure of the defendants to properly maintain the leased premises. Tidwell did not seek leave of the court before filing that amended complaint, which was filed after the first trial setting. On June 19, 2008, the trial court entered a summary judgment in favor of Pritchett-Moore and Rutledge on Tidwell’s fraud claim. The trial court made its judgments final as to Pritchett-Moore and Rutledge, pursuant to Rule 54(b), Ala. R. Civ. P. In its order, the trial court noted that “there remains the issue of the ‘amended’ complaint filed by plaintiff on June 11, 2008.”

On July 15, 2008, Pritchett-Moore and Rutledge moved to strike Tidwell’s amended complaint because Tidwell had not sought leave of court to file the amended complaint or made a showing of good cause for the late amendment. See Rule 15(a), Ala. R. Civ. P. On August 1, 2008, the trial court entered an order striking Tidwell’s amended complaint. After striking the amended complaint, the trial court stated that “there are no pending issues before this court, and therefore a final judgment is entered in favor of the Defendants against all claims of the Plaintiff, with costs taxed as paid. This serves as a final order disposing of all claims.”

On July 23, 2008, Tidwell filed a notice of appeal from the trial court’s judgment in favor of Pritchett-Moore and Rutledge as to the enforceability of the automatic-renewal provision and the “fraud” claim. That appeal was assigned case no. 2070966. Tidwell appealed from the August 1, 2008, judgment on August 5, 2008; that appeal was assigned case no. 2071100. This court consolidated those appeals on August 28, 2008.

Factual Background

On July 26, 2005, Tidwell signed a lease agreement with “Pritchett-Moore, as agent” for J.W. Properties. The lease agreement required Tidwell to notify Pritchett-Moore at least 90 days before the expiration of the lease period of her intent to vacate the apartment. The lease agreement also contained an “automatic renewal clause,” which stated, in part:

“AUTOMATIC RENEWAL CLAUSE. IF LESSEE FAILS TO GIVE TIMELY WRITTEN NOTICE AS PROVIDED ABOVE OF LESSEE’S INTENTION TO VACATE THE PREMISES ON THE EXPIRATION DATE OF THIS LEASE, IT IS HEREBY AGREED THAT AT THE EXPIRATION DATE HEREOF, THIS LEASE IS AUTOMATICALLY RENEWED FROM YEAR TO YEAR THEREAFTER AT THE PREVAILING RENTAL RATE IN EFFECT ON THE RENEWAL DATE OF THIS LEASE.”

(Capitalization in original.) Tidwell acknowledged that she had read the lease before she signed it and that Rutledge had pointed out to her the automatic-renewal clause in the agreement. By its terms, the initial lease period ran from August 5, 2005, through August 4, 2006.

Tidwell allowed the lease to automatically renew the first year. Tidwell paid rent as set forth in the written lease, and she agreed that the second lease term was set to expire on August 4, 2007, pursuant to the terms of her written lease agreement. Although Pritchett-Moore had tendered to Tidwell a written lease to correspond to that second lease term, Tidwell had refused to execute that written lease for the second year.

It is undisputed that, on May 4, 2007, Rutledge telephoned Tidwell to tell her that, pursuant to the automatic-renewal clause, her lease would renew for a third year on the following day. According to Tidwell’s deposition testimony, Tidwell told Rutledge that she did not want to stay but that she did not yet have another place to live and that Rutledge had told Tidwell to let him know by the following day whether she was staying or going. Tidwell admitted that she did not notify Rutledge the following day, either orally or in writing, that she wished to vacate the apartment and terminate her lease.

Tidwell alleged that, in July 2007, she notified Rutledge that she wished to vacate the apartment because of her dissatisfaction with the condition of the apartment. Rutledge informed Tidwell that the lease had automatically renewed for a third term, commencing on August 5, 2007, and ending on August 4, 2008. Tidwell filed this action shortly thereafter. However, Tidwell remained in the apartment and she continued to pay rent until the expiration of the third lease term on August 4, 2008.

Analysis

Case No. 2070966

In case no. 2070966, Tidwell appeals from the February 28, 2008, judgment granting Pritchett-Moore and Rutledge’s summary-judgment motion and denying her motion for a summary judgment regarding the validity of the lease. Tidwell also appeals from the June 19, 2008, summary judgment for Pritchett-Moore and Rutledge on the fraud claim.

“Our standard of review for a summary judgment is as follows:
“ ‘We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bock-man v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the non-movant must then present substantial evidence creating a genuine issue of material fact. Id. ‘We review the evidence in a light most favorable to the nonmovant.’ 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

In Alabama, a lease is controlled by general contract principles. Hardin v. Kirkland Enters., Inc., 939 So.2d 40, 44 (Ala.Civ.App.2006). The court will enforce clear and unambiguous contracts pursuant to their terms. See Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003) (when language used in a lease is plain and unambiguous, there is no room for construction of the contract and the court must ascertain from the writing the intention of the parties; the provisions of the writing are conclusive and govern the rights of the parties).

In this case, the automatic-renewal provision of the lease unequivocally required Tidwell to provide notice at least 90 days before the expiration of her lease term of any intent to vacate the premises. If Tidwell failed to comply with that provision, the lease agreement expressly stated that the lease would renew for another one-year term. Tidwell acknowledged that she understood the meaning of the provision when she signed the lease. Because the automatic-renewal provision is clear and unequivocal, we conclude that the provision is unambiguous and enforceable as written. Accordingly, when Tidwell failed to give the required notice, her lease renewed for an additional year. See, e.g., Waldrop v. Siebert, 286 Ala. 106, 108-09, 237 So.2d 493, 495 (1970) (recognizing that the lease at issue in that case “continue[d] in being for successive periods of a year until terminated by either party at his will at the end of any year by giving the previous legal notice”). See also 52 C.J.S. Landlord and Tenant §§ 221-22 (2003) (recognizing that a lease may provide for automatic extensions unless lessee notifies lessor of his or her desire to terminate the lease by a specified date).

Upon the renewal of Tidwell’s lease with Pritchett-Moore, as agent for J.W. Properties, the terms that were applicable to her original lease became applicable to her new lease term. See, e.g., Waldrop, 286 Ala. at 108, 237 So.2d at 495 (indicating that, once automatic-renewal provision of lease took effect, the new lease term was subject to all conditions and covenants of the original written lease). The fact that Tidwell refused to execute a new written lease agreement for subsequent lease years did not modify the terms applicable to her lease or remove any of the contract terms from that lease agreement. Thus, the automatic-renewal provision contained in the original lease and applicable to her first lease term was also applicable to Tid-well’s subsequent lease terms.

Tidwell relies on § 35-9A-162, Ala. Code 1975, as support for her argument that, because she refused to sign a written lease agreement for the second and third lease terms, “her obligation would end at the end of the automatic renewal period in August 2007.” We disagree. Section 35-9A-162 provides, in part:

“(b) If a tenant does not sign and deliver a written rental agreement signed and delivered to the tenant by the landlord, acceptance of possession and payment of rent without reservation gives the rental agreement the same effect as if it had been signed and delivered by the tenant.
“(c) If a rental agreement given effect by the operation of this section provides for a term longer than one year, it is effective for only one year.”

We read this statute to apply only in the absence of an executed written lease. That is not the ease here. Thus, § 35-9A-162 is inapplicable under the facts of this case.

Tidwell argues that the automatic-renewal provision, if interpreted as urged by Pritchett-Moore and Rutledge, would result in a perpetual renewal of the lease, a result disfavored under the law. Tidwell relies on Waldrop v. Siebert, supra, as support for this argument. That case is inapposite.

In Waldrop, supra, the issue was whether an automatic-renewal provision granted a lessee the right to renew the lease at issue in perpetuity regardless of the lessor’s wishes. 286 Ala. at 107, 237 So.2d at 494. The court held that, after the expiration of the original term of years, the automatic-renewal provision at issue did not grant the lessee a perpetual right to renew the lease but granted it only an option to renew the lease year-to-year while also granting the lessor the option to terminate at the end of each yearly lease. 286 Ala. at 108, 237 So.2d at 495.

Here, neither the lessor nor the lessor’s agent attempted to require Tidwell to renew her lease “in perpetuity.” Tidwell had the option at the end of each lease term to terminate or renew her lease. Therefore, the automatic-renewal provision at issue does not purport to grant either party the right to hold the other to the lease in perpetuity.

Tidwell next argues that the lease became a month-to-month tenancy at will because the lease had no specified ending date. Again, we disagree. The first lease term, and each year-to-year renewal thereafter, ended exactly one year later, pursuant to the express terms of the lease agreement. Therefore, the express terms of the lease supplied the necessary ending date. Tidwell’s other arguments in this vein simply misconstrue the law applicable to leases and contracts, and we need not specifically address them other than to state that they lack merit.

Additionally, in the trial court, Tidwell argued that the automatic-renewal provision was unconscionable. However, she fails to raise this issue on appeal. An issue not raised on appeal is deemed waived, and we need not address it. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

Based on the foregoing, we agree with the trial court that the automatic-renewal provision is enforceable as written and that it applied to Tidwell’s subsequent lease years.

Tidwell next argues that the trial court erred in dismissing her “fraud” claim. However, Tidwell concedes that if the court holds the lease and its automatic renewal provision to be valid, then the summary judgment on the fraud claim is due to be affirmed. Moreover, Tidwell has failed to set forth the law applicable to her fraud claim and how that law applies to the facts of this case. Accordingly, Tidwell’s brief fails to comply with Rule 28(a)(10), Ala. R.App. P., and her arguments in this regard are deemed waived. See Slack v. Stream, 988 So.2d 516, 534 (Ala.2008). Tidwell has simply failed to provide the court with any legal basis for reversing the trial court’s judgment on this issue. See Walden v. Hutchinson, 987 So.2d 1109, 1120 (Ala.2007) (when no legal authority is cited or argued, the effect is the saíne as if no argument has been made); and Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (appellant’s three-sentence argument cited only a single case in support of a general proposition of law and offered no discussion of the law as applied to particular facts of this case).

For the foregoing reasons, we affirm the summary judgments entered in favor of Pritchett-Moore and Rutledge on the validity-of-the-lease issue and the fraud claim.

Case No. 2071100

In case no. 2071100, Tidwell appeals from the August 1, 2008, judgment. In that judgment, the trial court, after striking Tidwell’s amended complaint, purported to dismiss all remaining claims and defendants. At that time, all claims against all defendants had been adjudicated except Tidwell’s claim against J.W. Properties for a declaratory judgment and her claim seeking to certify a class. It appears that, on August 1, 2008, the trial court entered a summary judgment in favor of J.W. Properties despite the fact that J.W. Properties had not filed a motion for a summary judgment. However, Tidwell does not argue on appeal that the trial court erred in entering a judgment in favor of J.W. Properties in the absence of a motion for a summary judgment; therefore, that argument is deemed waived. Slack v. Stream, supra; and Walden v. Hutchinson, supra.

Tidwell instead argues that the trial court should not have entered a judgment for J.W. Properties because, she says, J.W. Properties did not sign the lease, thus rendering it invalid. As support for that argument, Tidwell relies on § 8-9-2, Ala.Code 1975, known as the Statute of Frauds. We reject that argument.

First, we note that J.W. Properties acknowledged in a pleading filed with the trial court that it was the owner of the leased premises and that Pritchett-Moore and its employee, Rutledge, were, at all times relevant to Tidwell’s lease, acting as its authorized agents. Thus, J.W. Properties’ admission that Pritchett-Moore was acting as its agent would preclude any subsequent assertion of lack of agency or lack of authorization. Therefore, Tidwell’s claim that the lack of a writing signed by J.W. Properties or its representative could preclude a recovery against J.W. Properties fails to provide any basis for voiding the lease agreement.

Second, in Anselmo Meat Co. v. Riley, 533 So.2d 552 (Ala.1988), the Alabama Supreme Court unequivocally established that the Statute of Frauds did not require the signatures of both the lessor and the lessee on a lease agreement to be enforceable.

“Alabama’s Statute of Frauds, § 8-9-2, requires that leases for a term of longer than one year be in writing and be signed ‘by the party to be charged therewith.’ Section 8-9-2, therefore, while requiring a signed writing, does not require that the signature on a written lease be that of the lessor. Rather, ‘the lease must be signed by the party against whom the lease is sought to be enforced in the particular action, whether lessor or lessee, and whether plaintiff or defendant.’ ...
“Reviewing the facts of this case in the light of the foregoing authorities, we interpret those facts, taken as a whole, to establish the validity (and, concomitantly, the enforceability) of the original written lease agreement, which was signed by the Lessees — the ‘party to be charged’ in the instant action. Therefore, in the language of Heflin v. Milton, [69 Ala. 354 (1881),] if the writing is signed by the party to be charged, he ‘is estopped from denying the execution or validity of the instrument because it is wanting in the signature of the other party.’ Heflin v. Milton, 69 Ala. at 358.”

533 So.2d at 556. Thus, only the signature of the party (or its authorized agent) to be charged with the obligation at issue is required.

In this case, Tidwell, not J.W. Properties, was the “party to be charged.” Hence, even if we were to hold that J.W. Properties or its duly authorized agent did not sign the lease, which we do not hold, we would still conclude that the lease is valid for the purposes of enforcing the automatic-renewal clause. Therefore, the requirements of the Statute of Frauds were met, and we find no error on that issue.

Tidwell finally argues that the trial court erred in refusing to certify a class as to her claim regarding enforceability of the automatic-renewal provision. We note that although Tidwell requested class certification in her complaint, she did not object to the trial court’s entry of a judgment on the merits before consideration of the class-certification issue. As a result, Tidwell failed to appropriately present her argument to the trial court, and she is raising it for the first time on appeal. This court will not address an issue not presented to a trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

Conclusion

In case no. 2070966, we affirm the summary judgments entered in favor of Pritchett-Moore and Rutledge as to the validity of the lease and the fraud claim. In case no. 2071100, we affirm the judgment entered in favor of J.W. Properties.

The motion to deny the appeal as moot, filed by Pritchett-Moore and Rutledge, is denied.

2070966 — AFFIRMED.

2071100 — AFFIRMED.

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

      . In her original complaint, Tidwell named Wilhite Properties as a defendant. J.W. Properties, LLC, filed an answer asserting that there was no such entity as Wilhite Properties and that it was the correct defendant. Accordingly, J.W. Properties was later added as a defendant. In this opinion, we refer to J.W. Properties, rather than Wilhite Properties, as the defendant.

        . Tidwell argues that she also asserted that the lease was abrogated due to the failure of the defendants to maintain her apartment. The trial'court ruled that no such claim was presented in the original complaint. Tidwell argues on appeal that the trial court erred in making that ruling, but she fails to cite any legal authority in support of her argument. That argument is therefore deemed waived. See Rule 28(a)(10), Ala. R.App. P.