Andersen v. Osmon

• Decision Date: 27 March 2007
• Docket Number: No. WD 66577.,WD 66577.
• Citation: 217 S.W.3d 375
• Parties: Martin ANDERSEN, Respondent, v. Anita OSMON and William Osmon, Appellants.
• Court: Missouri Court of Appeals

217 S.W.3d 375

Martin ANDERSEN, Respondent, v. Anita OSMON and William Osmon, Appellants.

No. WD 66577.

Missouri Court of Appeals, Western District.

March 27, 2007.

Appeal from the Circuit Court of Harrison County, Thomas R. Alley, Judge.

William S. Lewis, Trenton, MO, for appellants.

John L. Young, Princeton, MO, for respondent.

Before THOMAS H. NEWTON, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

On November 17, 2003, a motor vehicle operated by Anita E. Osmon collided with a tractor driven by Martin Andersen on Route B in Harrison County, Missouri. Mr. Andersen subsequently filed a petition for personal injury and property damage against Ms. Osmon. William Osmon, Ms. Osmon's husband, was granted leave to intervene, and Anita E. Osmon and William Osmon, husband and wife, asserted a counterclaim against Mr. Andersen for property damage. The case was tried to a jury on October 24 and 25, 2005. The jury returned a unanimous verdict in favor of the Osmons in the amount of $7,000, assessing one-hundred percent fault to Mr. Andersen and zero fault to Ms. Osmon. Judgment was entered accordingly. Thereafter, Mr. Andersen filed a motion for new trial, and on January 30, 2006, the trial court entered an order granting Mr. Andersen's motion for new trial. The Osmons ("Appellants") bring this appeal.

The motion for new trial filed by Mr. Andersen ("Respondent") alleged, among other things, that the trial court erred in failing to strike venirepersons Jesse Elder (Juror No. 4) and Jennifer Whisler (Juror No. 15) because "both indicated friendship with the Defendants, either socially, family or employment" and "[b]oth expressed difficulty in being impartial and fair." During argument on the motion, Appellant's counsel argued that Ms. Elder "nodded her head, which did not pick up on the record, which I made note on the record, though, raising the question that she would have a problem being partial—being fair and impartial on the jury panel." Counsel further argued that "after the trial, and there's no affidavit other than my own word, I saw I believe it was Ms. Elder discussing the case on this end of the courthouse with Ms. Osmon, or at least they were there discussing, and I think they even hugged."

In its judgment granting the new trial, the court stated its reasons for doing so:

At trial the court denied plaintiff's request to strike venirepersons Jesse Elder and Jennifer Whisler as the record did not reflect that either potential juror verbally, or otherwise, indicated that they could not be fair and impartial.

* * * * * *

However, plaintiff's attorney indicated, during oral arguments on the Motion for New Trial, that the jurors "nodded" affirmatively that they could not be fair and impartial and that one of the jurors "hugged" the defendant in the hallway after the verdict was rendered.

This court did not observe the purported nods, but notes were being taken which limited the ability to observe the venire panel at all times. Nor, did the court observe purported "hugging" in the hallway after the verdict. However, this court has always known attorney for the plaintiff to be truthful with the court and has no reason disbelieve [sic] the assertions.

On this appeal, Appellants claim that the trial court abused its discretion because no evidence was presented to establish misconduct, bias, or prejudice on the part of either of the two jurors sufficient to afford a jurisdictional basis to award a new trial.

We review a trial court's ruling on a motion for new trial for abuse of discretion:

Rule 78.01 permits the trial court to grant a new trial of any issue upon good cause shown. The trial court has wide discretion in ruling on a motion for a new trial and is vested with substantial discretion over matters of fact in ruling on new trial motions. Appellate courts apply a rule of greater liberality in upholding a trial court's action in sustaining a motion for a new trial, than in denying it. Thus, when reviewing the grant of a new trial, this court is to indulge every reasonable inference in favor of the trial court and may not reverse unless there has been a clear abuse of discretion. A trial court has abused its discretion when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.

Damon Pursell Constr. Co. v. Mo. Highway & Transp. Comm'n, 192 S.W.3d 461, 469 (Mo.App. W.D.2006) (internal citations and quotations omitted). The qualifications of jurors are "questions of fact and matters affecting the determination of issues of fact," so they fall within the trial court's wide discretion regarding motions for new trial. Holtgrave v. Hoffman, 716 S.W.2d 332, 334 (Mo.App. E.D.1986) (internal quotation omitted). The Court of Appeals has no right to go beyond what is clearly expressed in an order granting a new trial and must accept the order at face value. Simpkins v. Ryder Freight Sys., Inc., 909 S.W.2d 683, 686-87 (Mo.App. W.D.1995). "Rule 78.03 requires the trial court to specify the ground or grounds for granting a new trial" in the order. Id. at 686. "The trial court's order is the only repository for the court's grounds, thoughts, or reasons for sustaining a motion for new trial." Id. at 686-87.

Respondent's Motion for New Trial contains twelve separate allegations of error by the trial court, but the court's order is based solely on the first paragraph, which addresses juror qualifications. "When a trial court grants a new trial on a specified basis, that ruling constitutes an overruling of all other grounds asserted by the movant in its motion for a new trial." Id. Thus, the court's ruling based solely on juror qualifications constitutes an overruling of the other eleven grounds specified in the Motion.

"On appeal from an order granting a new trial for a specific reason the burden is on appellant to show that the court erred in sustaining the motion upon the ground specified.... Respondent, in defending the action of the court in sustaining the motion, is not confined solely to the ground specified by the court, ... but may show that notwithstanding the motion is not sustainable on the ground specified, there are other grounds alleged in the motion for new trial under which the motion should have been sustained."

Coffer v. Paris, 550 S.W.2d 915, 917 (Mo. App. W.D.1977) (quoting Overton v. Tesson, 355 S.W.2d 909, 913 (Mo.1962)) (emphasis omitted). The respondent has the burden to show if other grounds in the motion are sufficient to grant a new trial. Kuzuf v. Gebhardt, 602 S.W.2d 446, 451 (Mo. banc 1980). Although Respondent asserts that the trial court could have granted the new trial on any of the other eleven grounds alleged, he does not provide any support and, therefore, fails to sustain his burden. Thus, our review is limited to the grounds specified in the order granting a new trial.

Appellants first argue the procedural issue that the trial court did not have jurisdiction to grant a new trial based on the grounds it did because neither of Respondent's claimed reasons for bias is stated in the Motion for New Trial. We need not address the issue because, as discussed infra, even assuming the motion was sufficient to raise the issue, the court erred in granting the new trial.

Next, Appellants argue generally that there was no evidence to support the trial court's decision to grant a new trial based on the existence of juror bias and that the trial court improperly relied solely on Respondent's attorney's unsubstantiated assertions.

Respondent alleged that Jurors Elder and Whisler each indicated during voir dire that they had a friendship with Appellants and that they "expressed difficulty in being impartial and fair." There is no elaboration in the Motion itself as to how this "difficulty" was "expressed." Respondent asserted generally that he was prejudiced by the trial court's error of not striking Jurors Elder and Whisler because Appellants were from Harrison County and Respondent was from another state.

Appellants argue that there was no evidence sufficient to show prejudice on the part of either of the challenged jurors. Prejudice is not shown where there is "no claim or suggestion from the record that any of the jurors selected was prejudiced to the extent that he or she should have been removed for cause." Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172, 178 (Mo. banc 1993).

As to Juror Whisler (No. 15), Respondent asserted only that she expressed difficulty in being fair and impartial as a result of her "friendship" with Appellants. As to Juror Elder (No. 4), Respondent argued that she affirmatively nodded her head during voir dire indicating that she would be biased by her "friendship" with Appellants, and that he witnessed Juror Elder and Ms. Osmon engaged in conversation after the trial and thought that he recalled them hugging.

The qualifications of a juror are based on the entire voir dire examination, not on any single response. Ham v. State, 7 S.W.3d 433, 441-42 (Mo.App. W.D.1999). "A venireperson is not absolutely disqualified because she is personally or professionally acquainted with a party." Sheffler v. Arana, 950 S.W.2d 259, 266 (Mo.App. W.D.1997). "The critical question . . . is whether the challenged venireperson indicated unequivocally her ability to evaluate the evidence fairly and impartially." Id. If the trial court is convinced that a juror can be fair and impartial after consideration of the entire voir dire examination, then the court is not required to disqualify a juror merely because a certain response, when considered alone, raises the bare possibility of prejudice. Ham, 7 S.W.3d at 441-42.

Although Respondent does not expressly make the argument, it appears that his contention is that Jurors Elder and Whisler's responses regarding...