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Lloyd Noland Hospital v. Durham1/7/2005
sists that Ala. R. Civ. P. 47(b) prohibited the substitution of C.W. for the absent juror. Rule 47(b) provides, in pertinent part:
"The regular jury and the alternates will be impaneled. Jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties shall be discharged. Just prior to the time the jury retires to consider its verdict, the court shall supply any vacancies from the list furnished by the clerk, beginning with the last name stricken, then next to last and so on until the regular number of jurors has been reached. Other alternate jurors impaneled but not used shall be discharged."
(Emphasis added.) The Hospital argues that "while Rule 47 allows for the substitution of alternate jurors for jurors who become unable to perform their duties before the jury retires to deliberate, it makes no similar provision for the utilization of alternate jurors after the jury begins its deliberations." (Hospital's brief, at 27.) Thus, it insists, " he substitution of an alternate juror for a regular juror on the third day of deliberations is contrary to the express dictates of Rule 47." (Hospital's brief, at 28.)
Durham, however, correctly points out that the Hospital first apprised the trial court of the alleged prohibition to the substitution in Rule 47(b) in its motion for a new trial. Consequently, she argues, the Hospital waived its objection to the substitution. We agree in part.
"It is well established that this Court will not 'reverse a trial court's judgment based on arguments not presented to .'" Avis Rent A Car Systems, Inc. v. Heilman, 876 So. 2d 1111, 1124 (Ala. 2003) (quoting Brown v. Wal-Mart Stores, Inc., 864 So. 2d 1100, 1104 (Ala. Civ. App. 2002)). See also Pate v. Rollison Logging Equip., Inc., 628 So. 2d 337, 343 n. 2 (Ala. 1993) (the trial court will not be placed in error on the basis of issues never presented to it); Smith v. Equifax Servs., Inc., 537 So. 2d 463 (Ala. 1988). "When the grounds for an objection are stated, this impliedly waives all other grounds for the objection to the evidence; and the objecting party cannot predicate error upon the ground not stated in the trial court, but raised for the first time on appeal." Nichols v. Southeast Prop. Mgmt., Inc., 576 So. 2d 660, 662 (Ala. 1991) (citations omitted).
Moreover, a ground offered in support of an objection to a procedural defect in the trial, asserted for the first time in a motion for a new trial, presents nothing for review. Ex parte Eaton, 675 So. 2d 1300 (Ala. 1996). " party cannot allow a trial to be conducted, and then, on a motion for a new trial, raise arguments that should have been presented during trial." 675 So. 2d at 1301. Rush v. Eason Plumbing & Elec. Contractors, Inc., 361 So. 2d 516, 518 (Ala. 1978) ("A motion for a new trial cannot replace a timely objection or exception which could, and should, properly be made during the trial."). Thus, the Hospital cannot rely on Rule 47(b) as a ground for a new trial.
Therefore, we agree that the trial court's denial of the Hospital's motion for a mistrial cannot be deemed erroneous on the basis of Rule 47(b). The Hospital argued other grounds to the trial judge, however, and is entitled to rely on them as bases for urging that the judge erred in overruling its motion for a mistrial, assuming that it has properly argued them before this Court. Any grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered. Bagley v. Mazda Motor Corp., 864 So. 2d 301 (Ala. 2003); Lee v. YES of Russellville, Inc., 858 So. 2d 250 (Ala. 2003); and Crutcher v. Wendy's of North Alabama, Inc., 857 So. 2
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