Ashcroft v. TAD Resources Intern.

• Citation: 972 S.W.2d 502
• Decision Date: 12 May 1998
• Docket Number: No. WD,WD
• Parties: Norman ASHCROFT, et al., Appellants, v. TAD RESOURCES INTERNATIONAL, Respondent. 53833.
• Court: Court of Appeal of Missouri (US)

Page 502

972 S.W.2d 502

Norman ASHCROFT, et al., Appellants, v. TAD RESOURCES INTERNATIONAL, Respondent.

No. WD 53833.

Missouri Court of Appeals,

Western District.

May 12, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 30, 1998.

Application for Transfer Denied Aug. 25, 1998.

Michael W. Manners, Independence, for Appellants.

Pamela J. Taylor, Independence, for Respondent.

Before EDWIN H. SMITH, P.J., and SMART and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

Norman Ashcroft, Doug Faulkner, Brent Sauer and Howard Tumbleson appeal the circuit court's judgment denying their motion for a new trial following a jury verdict awarding each of them compensatory damages, but no punitive damages, in their suit for fraud against TAD Resources International (TAD), respondent. In their sole point on appeal, the appellants claim that the trial court erred in overruling their motion for a new trial because they were not allowed to fairly qualify the jury in that their trial counsel should have been permitted to ask the venire about their attitudes toward awarding punitive damages, but was prevented from doing so, which resulted in prejudice to them.

We reverse and remand.

Facts

On August 2, 1993, Norman Ashcroft, Doug Faulkner, Dave Haskins, Eric Martin, Howard Tumbleson, Zack Marquardt and Brent Sauer filed a petition for damages against TAD Technical Services Corporation ¹ alleging that TAD fraudulently misrepresented that they could become skilled in computer-aided drafting by taking a drafting technology course at its school. On January 21, 1995, Eric Martin dismissed his claim without prejudice.

On October 21, 1996, the case proceeded to trial. In the course of jury selection, counsel for the appellants, Michael Manners, inquired as to the venirepersons' attitudes about awarding a substantial amount of money should they find TAD liable. In response to the question, one venireperson, Lana Cramer, indicated that she would have a problem in awarding someone more than out-of-pocket expenses. Following up on venireperson Cramer's answer, Mr. Manners then attempted to inquire as to the panel members' attitudes toward awarding punitive damages, using the language of MAI 10.01 [1990 Revision], ² by asking:

... [i]t may very well be that during the course of the trial the judge instructs you that if you believe the conduct of TAD Technical Institute was outrageous and showed conscious disregard for the rights ...

Counsel for the respondent, Steve Burmeister, interrupted the inquiry at that point and objected on the basis that such a line of questioning was inappropriate in a bifurcated trial pursuant to § 510.263 ³. The court stated that it would allow the plaintiffs to further question Ms. Cramer on the issue of punitive damages individually during lunch. However, the court made it clear that it would not allow Mr. Manners to inquire about the attitudes of the rest of the panel towards punitive damages. Mr. Manners then inquired as to what venirepersons would have a problem awarding damages other than out-of-pocket expenses, to which six venirepersons indicated that they might have a problem. The court then indicated that court would be recessed for lunch.

During the lunch break, the court allowed Mr. Manners to individually question venireperson Cramer about her attitudes toward punitive damages using the language from MAI 10.01. She was the only venireperson who was questioned as to punitive damages. After lunch, Mr. Manners did not attempt to revisit the issue of punitive damages with the rest of the panel. After voir dire was completed, Mr. Manners moved to strike for cause the six venirepersons who indicated a reluctance to award damages in excess of out-of-pocket expenses. The court struck all six jurors for cause.

On October 25, 1996, the case was submitted to the jury. The court instructed, inter alia, the jury that should they find in favor of the plaintiffs, they should award them "such sum as you believe will fairly and justly compensate said [appellant] for any damages you believe he sustained...." The court also instructed the jury that, if they believed the defendant's conduct was outrageous due to evil motive or reckless indifference to the rights of others, they had the option of finding the respondent liable for punitive damages.

On October 25, 1996, the jury returned its verdicts which found in favor of each plaintiff on the issue of liability for fraud. The jury assessed compensatory damages for each plaintiff, but found no liability for punitive damages as to any plaintiff. On January 14, 1997, the court entered judgment on the jury's verdicts. On February 11, 1997, the appellants filed a motion for a new trial, which was overruled on February 18, 1997.

This appeal follows.

Standard of Review

In reviewing a trial court's denial of a motion for a new trial, we must indulge every reasonable inference favoring the trial court's ruling and not reverse that ruling absent a clear abuse of discretion. Hacker v. Quinn Concrete Co., Inc., 857 S.W.2d 402, 415 (Mo.App.1993). A trial court is afforded broad discretion during voir dire inquiry as to allowing or prohibiting questions of the venire. State ex rel. Missouri Highway and Transp. Com'n v. Buys, 909 S.W.2d 735, 737 (Mo.App.1995). We will not reverse the trial court's rulings made during voir dire, " 'unless they clearly and manifestly indicate an abuse of such discretion.' " Id. (quoting Barnes v. Marshall, 467 S.W.2d 70, 76 (Mo.banc 1971)). "An abuse of discretion is found when a ruling clearly violates the logic of the circumstances or is arbitrary or unreasonable." Rust v. Hammons, 929 S.W.2d 834, 837 (Mo.App.1996) (citations omitted).

I.

In their sole point, the appellants claim that the trial court erred in overruling their motion for a new trial because they were not allowed to fairly qualify the jury in that their trial counsel should have been permitted to ask the venire about their attitudes toward awarding punitive damages, but was prevented from doing so, which resulted in prejudice to them. We agree.

As to punitive damages, Mr. Manners attempted to ask the following question of the venire:

Okay. Let me ask you a little bit about the kind of damages, because it's something that we're going to talk about, and it kind of leads me to the next question I was going to ask anyway. It may very well be that during the course of the trial the judge instructs you that if you believe the conduct of TAD Technical Institute was outrageous and showed conscious disregard for the rights ...

At this point, respondent's trial counsel, Mr. Burmeister, objected on the basis that, because the trial was to be bifurcated in accordance with § 510.263, it would be improper for Mr. Manners to address punitive damages with the venirepanel. The court agreed with Mr. Burmeister and sustained his objection. Following a bench conference, the trial court indicated that, although Mr. Manners could not make a specific inquiry as to any bias or prejudice by the venire against awarding punitive damages, he could inquire as to any bias or prejudice they might have as to the award of damages in excess of out-of-pocket expenses. Thus, we must decide whether, in prohibiting Mr. Manners from specifically inquiring as to bias or prejudice against the award of punitive damages, the trial court abused its discretion.

"Voir dire is intended to provide both parties the opportunity to participate in the selection of a fair and impartial jury." State v. Seddens, 878 S.W.2d 89, 92 (Mo.App.1994). It is well settled that one of the fundamental purposes of voir dire is to "expose juror bias or prejudice which could form the basis of a challenge for cause or be useful in utilizing peremptory challenges." State v. Lacy, 851 S.W.2d 623, 629 (Mo.App.1993). "[Q]uestions on voir dire which are calculated to expose bias or prejudice should be liberally permitted...." Id. As such, inquiries attempting to ascertain whether a potential juror possesses a bias or prejudice which would prevent him from following the law are proper during voir dire. Id. In this respect, questions on voir dire which attempt to ascertain bias or prejudice as to the award of punitive damages, if an issue in the case, are relevant and permissible inquiries. Peth v. Heidbrier, 789 S.W.2d 859, 863 (Mo.App.1990). However, we have found no cases which address the issue of whether voir dire questions as to punitive damages are permissible where the trial is to be bifurcated pursuant to § 510.263, as in the case at bar. As such, this is a case of first impression.

Section 510.263 provides, in pertinent part, that cases involving punitive damages tried to a jury "shall be conducted in a bifurcated trial before the same jury if requested by a party." (Emphasis added.) Thus, although the trial is to be bifurcated, the parties are only presented with one opportunity to question potential jurors. Logically, where, as here, punitive damages are a relevant issue in the case, voir dire questions designed to ascertain bias or prejudice of potential jurors against the award of punitive damages are proper, even if the trial is bifurcated pursuant to § 510.263. To hold otherwise would prevent a party from exercising his right to ascertain any bias or prejudice of potential jurors against the award of punitive damages. In any event, the respondent now concedes on appeal that Mr. Manners had a right to ask the venire whether they held any bias or prejudice as to the award of punitive damages. However, while it concedes this fact, it claims that the trial court still did not err in prohibiting Mr. Manners from inquiring about punitive damages in that the manner in which he attempted to do so was improper in two respects: (1) the discussion of jury instructions, such as MAI 10.01 which instructs the jury under what circumstances they may award punitive damages, is inappropriate during voir dire; and, (2)...