Long v. NORRIS & ASSOCIATES, LTD.

• Citation: 538 S.E.2d 5,342 S.C. 561
• Decision Date: 25 September 2000
• Docket Number: No. 3243.,3243.
• Court: South Carolina Court of Appeals
• Parties: Carolyn LONG, Appellant, v. NORRIS & ASSOCIATES, LTD. and Lou Norris, Individually, Respondents.

342 S.C. 561

538 S.E.2d 5

Carolyn LONG, Appellant, v. NORRIS & ASSOCIATES, LTD. and Lou Norris, Individually, Respondents.

No. 3243.

Court of Appeals of South Carolina.

Heard September 11, 2000.

Decided September 25, 2000.

Rehearing Denied November 11, 2000.

Henry Hammer, Howard Hammer, G. Randall McKay, and Arthur Kerr Aiken, all of Hammer, Hammer, Carrigg & Potterfield, of Columbia, for appellant.

James C. Harrison; and Claudia V. Cain LaBarre, both of Columbia, for respondents.

ANDERSON, Judge:

Carolyn Long brought this action against Norris and Associates, Ltd. and Lou Norris, individually, alleging Lou Norris committed assault and battery when he repossessed her car. At trial, Defendant, Lou Norris, moved for a directed verdict. The Circuit Court granted his motion. The jury returned a verdict against Norris and Associates and awarded $9,931.90 to Long. Norris and Associates made a Rule 60(b), SCRCP motion to set aside the judgment. It sought this relief stating a juror failed to honestly respond to the court's voir dire. The Circuit Court agreed. Long appeals both the trial court's issuance of the directed verdict and the order setting aside the judgment. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

In the early morning hours of February 2, 1995, Carolyn Long was stirred from sleep by the blaring of her car alarm. For Long, this was not an unusual event—a cat occasionally triggered the alarm when climbing on the vehicle in a quest for warmth from the engine's radiating heat. As she had done in the past, Long got up to go outside and turn off the alarm. In this circumstance, however, instead of finding the feline, Long encountered a man unknown to her who was taking her automobile. According to Long, the stranger pushed her to the ground and drove her car away.

Long reported the incident to the police that night. The police, in turn; informed Long the car had been repossessed.

Long filed an action against Norris and Associates and Lou Norris, individually, for assault and battery arising out of Lou Norris's repossession of her automobile.¹ Long sought both actual and punitive damages for the physical and emotional damages she claimed to have suffered because of Defendants' actions.

Lou Norris moved at the close of evidence that he "be dropped or dismissed from [the] case as a defendant" because "at all times he was acting within his authority as an employed agent of Norris and Associates" and that Long presented "no evidence ... [Lou Norris] acted outside of his capacity as an agent of [the business]." Over Long's objection, the judge granted the motion.

The case went to the jury against Norris and Associates. The jury returned a verdict in favor of Long for $2,931.90 actual damages and $7,000 punitive damages.

The Circuit Court entered the judgment on May 12, 1998. On June 1, 1998, Norris and Associates moved for relief pursuant to Rule 60(b), SCRCP.

Norris and Associates alleged, despite the Circuit Court's specific voir dire relating to the jury pool's experience with automobile repossession, it had confirmed juror Preston Anderson failed to reveal his vehicle was repossessed in 1996. It submitted Anderson's credit report, which detailed the repossession, as support for its allegation. Norris and Associates investigated Anderson because he seemed to manifest a preference for Long during the trial.

Norris and Associates supplemented its post-trial motion by filing an affidavit of Wayne Alston, manager of Fidelity Financial Services. Fidelity financed the automobile purportedly repossessed from Anderson. Alston averred, inter alia, that:

• Anderson once financed a car through Fidelity;

• Anderson failed to make payments on the car;

• Fidelity furnished Anderson with notice of right to cure before pursuing repossession, yet Anderson did not take steps to rectify the situation; and

• Fidelity repossessed the car on June 24, 1996.

Fidelity secured a $5,079.02 deficiency judgment against Anderson after its sale of his car. Anderson paid $100 toward the judgment. Fidelity charged off the remainder.

Norris and Associates later filed an affidavit signed by Anderson. In this document, Anderson admitted:

• "All of the statements made by Mr. Alston in [Alston's affidavit] regarding my car being repossessed are true and accurate";

• "I was a customer of Fidelity Financial and when I fell behind in my car payments, my automobile was repossessed on June 24, 1996."; and

• "I was selected as a juror because I did not admit that my car had been repossessed."

(Emphasis added).

The Circuit Court set aside the judgment on the ground of Anderson's disqualification as a juror.

Long moved to alter or amend the trial court's order. Accompanying her motion was a second affidavit by Anderson. In that statement, characterized by Long as "explanatory," Anderson declared he had mechanical problems with the car and discussed these difficulties with the dealer and the finance company when "[f]inally we reached an agreement whereby I voluntarily turned the car in to the finance company. The car was not repossessed by any repossession company." Anderson professed he did not know "why [he] did not hear or understand the question" but he "could be fair and impartial to both the Plaintiff and Defendant[s] in this case...." The Circuit Court denied Long's motion.

Long appeals: (1) the order setting aside the verdict, and (2) the judge's decision to dismiss Lou Norris as a party.

ISSUES

I. Did the Circuit Court properly grant Norris and Associates' motion for relief from judgment on the ground of juror disqualification?

II. Did the Circuit Court err in dismissing Lou Norris individually from the action?

STANDARD OF REVIEW

I. Granting of a New Trial Due to Juror Failure to Honestly Respond to Voir Dire

The granting of a new trial based on a juror's failure to honestly respond to the court's voir dire remains within the sound discretion of the trial court. Morris v. Jensen, 309 S.C. 153, 420 S.E.2d 710 (Ct.App.1992). A circuit judge's decision to issue such an order will not be reversed absent an abuse of discretion. Id.

II. Directed Verdict

In ruling on a motion for directed verdict, the court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999); Collins v. Bisson Moving & Storage, Inc., 332 S.C. 290, 504 S.E.2d 347 (Ct.App.1998); see also Weir v. Citicorp Nat'l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993)

(an appellate court must apply the same standard when reviewing the trial judge's decision on such motions).

When the evidence yields only one inference, a directed verdict in favor of the moving party is proper. Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 514 S.E.2d 126 (1999). If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Mullinax v. J.M. Brown Amusement Co., Inc., 333 S.C. 89, 508 S.E.2d 848 (1998).

In ruling on a directed verdict motion, the trial court is concerned only with the existence or nonexistence of evidence. Jones v. General Elec. Co., 331 S.C. 351, 503 S.E.2d 173 (Ct.App.1998). The trial court can only be reversed when there is no evidence to support the ruling below. Swinton Creek Nursery, 334 S.C. at 477, 514 S.E.2d at 130.

When reviewing the grant of a directed verdict, the appellate court should not ignore facts unfavorable to the opposing party. Collins, 332 S.C. at 296,504 S.E.2d at 350. Rather, it must determine whether a verdict for the opposing party would be reasonably possible under the facts as liberally construed in the opposing party's favor. Jones, 331 S.C. at 356,503 S.E.2d at 176; see also First State Sav. & Loan v. Phelps, 299 S.C. 441, 385 S.E.2d 821 (1989)

(in reviewing the granting of a directed verdict, the court should determine the elements of the action alleged and whether any evidence existed on each element).

LAW/ANALYSIS

I. Relief from Judgment Based on Juror Disqualification

Long asserts the Circuit Court erred in granting the motion for relief from judgment based on juror disqualification. We disagree.

A. Counsel's Right to Truthful Answers From Jurors During Voir Dire

The leading case in South Carolina on this issue is State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982). Gulledge edifies:

Necessarily, it is expected and required that jurors in their answers shall be completely truthful and that they shall disclose, upon a general question, any matters which might tend to disqualify them from sitting on the case for any reason. It therefore becomes imperative that the answers be truthful and complete. False or misleading answers may result in the seating of a juror who might have been discharged by the Court, challenged for cause by counsel or stricken through the exercise of peremptory challenge.

Id. at 371, 287 S.E.2d at 490 (quoting Photostat Corp. v. Ball, 338 F.2d 783, 786 (10th Cir.1964)).

Norris and Associates requested the Circuit Court make the following query during voir dire: "Are any of you in the business of repossessing automobiles or have any of you had an automobile that was repossessed?" (Emphasis added). Two potential jurors responded in the affirmative to the court's question. The court subsequently dismissed both people.² Anderson, however, remained silent. Because Anderson had an automobile repossessed in the past, he improperly allowed the Circuit Court to impanel him.

B. Standard for Relief

In Gray v. Bryant, 298 S.C. 285, 379 S.E.2d 894 (1989), the Supreme Court recited the requirements for a new trial based upon the disqualification of a juror. Specifically, a party must demonstrate:

(1) the fact of disqualification;

(2) the grounds for disqualification were unknown prior to verdict; and

(3) the moving party was not negligent in failing to learn of the disqualification

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