Opinion
No. ED 81980
October 21, 2003
Appeal from the Circuit Court of the City of St. Louis, Honorable Booker T. Shaw.
Russell F. Watters, Michael B. Maguire, T. Michael Ward, Brown James, P.C., St. Louis, MO, for Appellant.
John A. Lally, James E. Rhodes, Rhodes Lally, L.L.C., St. Louis, MO, for Respondent.
Appellant, The Kiesel Company ("Kiesel"), appeals the judgment of the Circuit Court of the City of St. Louis granting respondents, Janice Godefroid, et al. ("Godefroid"), a new trial because of juror nondisclosure. We affirm.
On September 30, 1999, as Raymond Godefroid was riding a bicycle near the intersection of Vandeventer and Shaw in the City of St. Louis, he was involved in a fatal accident with a tank wagon truck driven by Garland Seavey, an employee of Kiesel. Subsequently, Mr. Godefroid's wife and four children brought a wrongful death action against Kiesel. On July 12, 2002, following a five-day jury trial, the jury returned a 10-2 verdict in favor of Kiesel and found that both Kiesel and Mr. Godefroid were 0% at fault.
On August 8, 2002, Godefroid filed a motion for new trial on the basis of any or all of the following grounds: juror nondisclosure, prejudicial testimony of Lorraine Pat Kiesel, misstatement of law by defense counsel, and verdict against the weight of the evidence.
The juror nondisclosures at issue here are evidenced by the litigation abstracts attached to Godefroid's motion for a new trial and concern seven jurors, all of whom signed the jury's verdict in favor of Kiesel. The seven jurors failed to disclose their involvement in the following lawsuits: (1) Juror John Ingram was involved in a property damage lawsuit filed in 1993 against a corporation; (2) Juror Angela Martin filed two rent/possession lawsuits in 2001 and was a defendant in a rent and possession suit in 1988(3) Juror Sylvia Scales was sued in 1993 by the City of St. Louis in a tax collection action and in 1992, she was sued in a rent and possession action; (4) Juror Carrie Purdy was sued in 1992 over a promissory note for $667.33, was sued by Western Gateway Properties, Ltd. in 1988 on a landlord tenant matter, and in 1989 by Missouri State Credit Union on a breach of contract claim; (5) Juror Christina Winterbauer was sued by St. Mary's Health Center in 1994 regarding a personal debt; (6) Juror Michael Marvaso was sued by the City of St. Louis in two tax collection lawsuits; one in 1995 and one in 1998; and (7) Juror Brenda Davis was sued by Capital One Bank in 2001 in a suit on account.
On October 16, 2002, the trial court granted Godefroid's motion for new trial without specifying the grounds upon which it based its grant. This order was not denominated a "judgment" or a "decree." On October 21, 2002, Kiesel filed a notice of appeal of the trial court's grant of a new trial. Godefroid filed a motion to amend the trial court's grant of a new trial on October 29, 2002, asking the trial court to specify the grounds upon which said motion for new trial was granted in compliance with Rule 78.03. On November 5, 2002, Kiesel filed suggestions in opposition to Godefroid's motion to amend the order granting new trial. Also on November 5, 2002, Godefroid filed with this court a motion to remand the case to the trial court so that it could specify the grounds for granting a new trial.
All rule references are to Missouri Supreme Court Rules 2002, unless otherwise indicated.
The trial court amended its prior order granting a new trial on November 6, 2002, specifying that the new trial was granted on the ground of juror nondisclosure. This order was denominated a "judgment." On November 26, 2002, this court denied Godefroid's motion to remand.
In its first point on appeal, Kiesel argues the trial court erred in amending its order granting Godefroid's motion for a new trial to show that a new trial was granted on the ground of juror nondisclosure. First, Kiesel argues the amended writing is void for lack of jurisdiction because Kiesel filed their notice of appeal on October 21, 2002, which divested the trial court of jurisdiction to exercise any judicial function. Second, Kiesel argues the trial court granted Godefroid's motion for new trial more than thirty days after entry of the jury's verdict, which also divested the trial court of jurisdiction over the case.
This point raises questions of law that we review de novo, rather than for mere abuse of discretion, because the questions concern whether the trial court had jurisdiction to grant a new trial. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo.App.E.D. 2001). If the trial court no longer had jurisdiction to grant the new trial, its judgment is void.Id. at 176. If a judgment is void, we have jurisdiction only to determine the invalidity of the judgment and to dismiss the appeal. Id.
Rule 81.05(a)(2) states:
If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following: (A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or (B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later."
A motion for new trial is an authorized after-trial motion because Rule 78 expressly provides for it. Puisis v. Puisis, 90 S.W.3d 169, 172 (Mo.App.E.D. 2002). Rule 81.05 allows for the extension of the trial court's control over a judgment from thirty days to ninety days after a timely, authorized after-trial motion is filed. Id. Accordingly, during these ninety days, a trial court retains the same power of control over the original judgment as under the original thirty days provided by Rule 75.01. Id. However, we note that this ninety-day extension can be curtailed if all after-trial motions have been ruled. Rule 81.05(a)(2)(B). When a judgment is entered, the filing of an effective notice of appeal will ordinarily cut off the trial court's jurisdiction to exercise any judicial function in the case and will vest jurisdiction in the appellate court. State ex rel. Harper v. Goeke, 12 S.W.3d 717, 720 (Mo.App.E.D. 1999) quoting Jordan v. City of Kansas City, 972 S.W.2d 319, 323 (Mo.App.W.D. 1998). The trial court's jurisdiction is then limited to ministerial functions provided by statute or rules of procedure, and essentially, it no longer has an active case pending on its docket.Goeke, 12 S.W.3d at 720.
The question before us is at what point did the trial court's judgment become final and appealable. Rule 74.01(a) provides that "[a] judgment is entered when a writing signed by the judge and denominated 'judgment' or 'decree' is filed." Rule 74.01(a) clarifies what constitutes a judgment.City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo.banc 1997). The rule does not diminish or expand jurisdiction, the right to appeal, or any other substantive right. Id. The rule attempts to assist litigants and appellate courts by clearly establishing when the trial court's orders and rulings are meant to be final and appealable. Id.
Section 512.020 RSMo 2000 states:
All statutory references are to RSMo 2000 unless otherwise indicated.
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or order refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case. Section 512.020 (emphasis added).
Section 512.020 indicates the general rule, that an appeal can be brought only in cases involving final judgments. Brooks v. Brooks, 98 S.W.3d 530, 531 (Mo.banc 2003). However, Section 512.020 also includes several exceptions where an appeal can be brought in the absence of a final judgment. Id. quoting Section 512.020. Included among these exceptions is the possibility of appealing from "any order granting a new trial." Section 512.020.
In this case, on October 16, 2002, the trial court granted the motion for new trial by filing a decision denominated an "order." While this ruling by the trial court does not satisfy the general rule of section 512.020, it clearly qualifies as an "order granting a new trial."
In Brooks, our Supreme Court further interpreted the interplay between the exceptions in Section 512.020 and the requirements of Rule 74.01(a). In doing so, it held even though the order at issue was a "special appealable order" under Section 512.020, it was still necessary to denominate the order as a "judgment or decree." Brooks, 98 S.W.3d at 532. As a result, the judgment in that case became final for purposes of appeal when the order was denominated a judgment, thus satisfying Rule 74.01(a). Id.
Similarly, in this case, the trial court's October 16, 2002 order was denominated an "order." Then on November 6, 2002, which was within ninety days of the August 8, 2002 motion for new trial, the trial judge entered an order that was denominated a "judgment," making the judgment final for purposes of appeal. As a result, Kiesel's notice of appeal is "considered as filed immediately after the time the judgment becomes final for the purpose of appeal." Rule 81.05(b).
Therefore, the trial court acted within its jurisdiction when it amended its grant of the new trial to specify the grounds upon which it based its decision. Point denied.
In its second point on appeal, Kiesel argues the trial court erred in granting Godefroid's motion for new trial because the trial court's order of October 16, 2002 did not identify the basis for its ruling.
Having decided that the trial court's final judgment was entered November 6, 2002, and further noting that this judgment specified the grounds upon which it was based, we find this point is without merit. Point denied.
In its third point, Kiesel argues, in the alternative, the trial court erred and abused its discretion in granting Godefroid a new trial because Godefroid failed to present any admissible evidence that any member of the jury intentionally failed to disclose information that was clearly requested during the voir dire.
The standard of review we apply to the grant of a motion for new trial differs from the standard we apply to a denial of a motion for new trial, in that we are more liberal in affirming the grant of a new trial than the denial of a new trial. Lowdermilk v. Vescovo Building and Realty Co., Inc., 91 S.W.3d 617, 625 (Mo.App.E.D. 2002). If the trial court grants a new trial, we allow all reasonable inferences supporting such a ruling, and we will not reverse unless there has been a clear abuse of discretion. Id. We will find an abuse of discretion where the trial court's ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. If reasonable people can differ about the propriety of the trial court's ruling, the trial court did not abuse its discretion. Id. When a new trial has been granted, the party seeking the new trial must have been prejudiced by the error. Id.
In ruling on a motion for new trial based on juror misconduct, the trial court's findings are given great weight and will not be disturbed on appeal unless there exists an abuse of discretion. Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 288 (Mo.App.E.D. 2002). Courts should not overturn a jury verdict lightly. Id.
Initially, we note that the litigation abstracts supplied by Godefroid in support of their allegations of juror nondisclosure were sufficient proof of the jurors' involvement in previous litigation. Section 490.130 RSMo 2002 states,
. . . [r]ecords of proceedings of any court of this state contained within any statewide court automated record-keeping system established by the supreme court shall be received as evidence of the acts or proceedings in any court of this state without further certification of the clerk, provided that the location from which such records are obtained is disclosed to the opposing party. (Section 490.130).
Godefroid's use of the litigation abstracts as proof is in compliance with this statute.
Kiesel also argues that Godefroid failed to bring the alleged juror nondisclosures to the court's attention until after the jury returned a verdict in Kiesel's favor. In support of this point, Kiesel relies on two cases, Moore, 87 S.W.3d 279 and Doyle v. Kennedy Heating and Serv., Inc., 33 S.W.3d 199 (Mo.App.E.D. 2000), both of which concern the nondisclosures of only one juror.
In Doyle, before granting a new trial, we noted that granting a motion for new trial in situations where nondisclosures are asserted only after the jury returns a verdict is not favored, especially when the lawyers could have brought forth their allegations prior to jury deliberation, so that the jurors involved could have been replaced with alternates.Doyle, 33 S.W.3d at 201. The principle of judicial economy is compromised when lawyers wait until after trial to allege that jurors intentionally failed to disclose material information. Id. However, we also noted inDoyle that the record does not reveal the lawyers were aware of the jury foreperson's nondisclosure prior to the jury's deliberation. Id. at 202 n. 1.
Similarly, in this case, Godefroid had no reason to suspect juror misconduct until the return of the jury's verdict following the five-day trial. During oral argument, it was revealed that the jury took a mere forty-five minutes to deliberate and return its verdict, which is an unusually short time when one considers the amount of evidence presented in a five-day trial.
In Moore, we cited to the language in Doyle concerning bringing forward allegations of juror misconduct prior to deliberation. Moore, 87 S.W.3d at 292. However, our judgment denying the motion for new trial based on juror misconduct was not based on this finding. Our judgment was based on the fact that the voir dire questions were unclear and even if they were clear, that no intentional or unintentional nondisclosure occurred. Id. Therefore, Moore is also distinguishable from the instant case.
In determining whether there was juror nondisclosure, the trial court first determines whether the questions asked during voir dire were clear. Keltner v. K Mart Corp., 42 S.W.3d 716, 723 (Mo.App.E.D. 2001). In reviewing the trial court's findings on this matter, we are called on to determine the clarity of language and, as such, our review of this question is de novo. Id. After making this initial determination, the trial court must next decide whether the nondisclosure was intentional or unintentional. A nondisclosure is intentional: (1) where there is no reasonable inability to understand the information requested from the prospective juror by the question asked and (2) where it happens that the prospective juror does in fact remember the experience or such experience was of such significance that his supposed forgetfulness is unreasonable. Williams By Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo.banc 1987). It is up to the sound discretion of the trial court to determine whether a nondislosure is intentional or unintentional. Id.
Unintentional nondisclosure may or may not demand a new trial. Id. at 37. It is well settled that an unintentional failure to disclose information not connected with the case or bearing on the prospective juror's ability to fairly evaluate the evidence does not necessarily show prejudice on the part of the juror. Id. Thus, if nondisclosure is found to be both unintentional and reasonable, the relevant inquiry becomes whether, under the circumstances, the juror's participation on the jury did or may have influenced the verdict so as to prejudice the party seeking a new trial. Id. The trial court's finding with regard to prejudice is given deference and will be overturned on appeal only for abuse of discretion. Williams, 736 S.W.2d at 37.
In Heinen v. Healthline Management, Inc., 982 S.W.2d 244, 248 (Mo.banc 1988), defendant originally alleged the eight jurors intentionally concealed lawsuits. However, there was no evidence that four were involved in suits, and it was conceded during voir dire that the fifth juror did not know about her earlier lawsuit. Id. A sixth juror was found not to have any knowledge of two previous suits and regarding a third suit, the court refused to find unintentional juror nondisclosure that amounted to prejudice based on an adult abuse order entered against the juror, holding that it was reasonable for the juror to believe that counsel did not seek disclosure of domestic litigation, which includes adult abuse actions. Id. at 249. Of particular importance to this finding was plaintiffs' counsel's question whether anyone on the panel had been sued, which contained the qualification that, "'if it's something to do with divorces or child custody, I don't even want to hear about that.'"Id. The Court found that the seventh juror reasonably concluded that counsel was satisfied with the extent of disclosure and that no further disclosure was requested. Id. With regard to the eighth juror, the Court found that plaintiffs' and defense counsel's method of questioning consistently narrowed the focus of the examination. Heinen, 982 S.W.2d at 250. The Court noted when a lawyer consistently narrows the focus of his inquiry, it is not surprising that the responses reflect this focus. Id. As a result, the Court reversed the earlier grant of a motion for new trial. Id.
In Williams, 736 S.W.2d at 38, a case involving the nondisclosures of three jurors, the Supreme Court granted a new trial because the trial court abused its discretion. The Court found that one of the three jurors intentionally concealed his involvement in a previous personal injury claim. Id.
During voir dire, Godefroid's counsel began the line of questioning concerning previous litigation by asking, "[h]ave any of you made a claim against a trucking company as a result of a personal injury you might have received?" In response, only one venireperson volunteered information about a workers' compensation claim. However, Mr. Watters, one of Kiesel's attorneys, later continued and expanded this line of questioning by asking, "[h]as anyone filed any personal injury lawsuits on your behalf other than the people we already talked to, on your behalf or on a family member's behalf where you sued someone as a result of an injury." In response, two venirepersons mentioned auto accidents in which they were involved, one mentioned a suit against a restaurant for food poisoning, and another mentioned a workers' compensation claim.
Mr. Watters then expanded the inquiry even further by asking, "[a]nyone else with lawsuits that we haven't talked to? How about been sued? Anyone been sued other than a domestic — I don't want to get involved in divorces or family relation matters, but anyone been sued by somebody?" In response, one juror volunteered information about litigation involving a securities company. Also, Venireperson Marvaso said, "I don't know if this would count or not," and then he proceeded to tell the court about an auto accident in which he was involved with an uninsured motorist. Mr. Watters replied, "[y]ou never got served with any papers?" Venireperson Marvaso responded, "No, nothing like that." Mr. Watters replied, "That counts. Thank you." Then two other venirepersons mentioned legal matters: one involving damage to her parked van for which she had to sue and the other involving a suit by an insurance company against her.
Even with this continuing expansion of the questions regarding previous litigation, seven jurors still failed to disclose previous involvement in the numerous cases noted in the facts above. Unlike Heinen, this case involved a gradual broadening of the subject matter of the questions concerning previous involvement in litigation. Further, it involves the nondisclosures of seven jurors, instead of just three jurors who were actually involved in Heinen. In Williams, there were also only three jurors involved in the nondisclosures, but a new trial was granted on the basis of only one juror's intentional concealment.
Members of the venire have an obligation to answer all questions asked during voir dire fully and truthfully so that their qualifications may be determined and challenges may be intelligently exercised. Keltner, 42 S.W.3d at 721. We find that this continual expansion of the subject matter of the questions concerning previous involvement in litigation was sufficiently clear to trigger the duty of the seven jurors in question to disclose their previous involvement in lawsuits.
Because seven jurors failed to disclose the numerous suits in which they were involved, and the determination of whether a nondisclosure is intentional or unintentional is left to the sound discretion of the trial court, we find the trial court did not abuse its discretion in granting a new trial. Point denied.
Based on the foregoing, we affirm.
Mary R. Russell, J. and Paul J. Simon, Sr. J. concur.