Beyrer v. The Mule, LLC, 118075

• Court: Supreme Court of Oklahoma
• Writing for the Court: EDMONDSON, J.
• Parties: OMEGA BEYRER, Personal Representative of the ESTATE OF FRANCIS CHARLENE JOHNSON, Plaintiff/Appellant, v. THE MULE, LLC, Defendant/Appellee.
• Decision Date: 28 September 2021
• Docket Number: 118075

2021 OK 45

OMEGA BEYRER, Personal Representative of the ESTATE OF FRANCIS CHARLENE JOHNSON, Plaintiff/Appellant,
v.
THE MULE, LLC, Defendant/Appellee.

No. 118075

Supreme Court of Oklahoma

September 28, 2021

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED IN PART; OPINION OF THE COURT OF CIVIL APPEALS WITHDRAWN FROM PUBLICATION; ORDER OF THE DISTRICT COURT DENYING MOTION FOR NEW TRIAL AFFIRMED; ORDER OF DISTRICT COURT GRANTING COSTS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS

David Bernstein, Bernstein Law Firm, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Brad Miller, Weston H. White, Jami Rhoades Antonisse, Miller & Johnson, PLLC, Oklahoma City, Oklahoma, for Defendant/Appellee.

EDMONDSON, J.

¶ 0 Plaintiff filed an action based upon premises liability, and a jury verdict for defendant was followed by an order granting costs. Plaintiff filed a motion for new trial alleging juror misconduct during voir dire. The motion for new trial was denied by the Honorable Aletia Haynes Timmons, District Judge, District Court for Oklahoma County. Plaintiff appealed the order denying the motion for new trial and the order granting costs. The Court of Civil Appeals, Division I, reversed the order denying a new trial, and reversed the order granting costs. The Oklahoma Supreme Court previously granted the defendant's petition for certiorari seeking review of the Court of Civil Appeals' opinion on the issue of juror misconduct and plaintiff's motion for new trial. We hold: When a trial court adjudicates a motion for new trial based upon a juror's silence during voir dire concerning the juror's litigation history, the trial court may examine the nature of the juror's prior litigation to determine if it is material to the action then before the trial court. We also hold a juror's conduct did not rise to conduct affecting materially the substantial rights of the party when the juror failed to state on voir dire in a premises liability controversy his status as a named defendant in a motor vehicle case fourteen years earlier when (1) he was a minor, (2) he did not talk to a lawyer or participate in the prior action in any manner, and (3) the record shows both the prior action was settled shortly after filing and no economic detriment suffered by the juror/defendant as a result of the litigation. We further hold: The portion of the opinion by the Court of Civil Appeals which reversed the District Court's order adjudicating costs is not disturbed on certiorari review, and this reversal of costs is incorporated into the appellate mandate.

¶1 The question presented is whether a District Court may examine the circumstances of a juror's prior litigation history for the purpose of determining whether the juror's failure to disclose this history during voir dire did not affect materially the substantial rights of a party. We answer in the affirmative. Plaintiff filed a motion for new trial based upon a juror's silence to two questions relating to prior litigation history which the voir dire panel was asked by defendant. Plaintiff argues the juror's silence denied her an opportunity to make an informed challenge to the juror and that she is entitled to a new trial. We conclude a trial court's adjudication of a motion for new trial may include an examination of the circumstances of the juror's litigation history when the motion is based upon a prospective juror's failure to disclose litigation history during voir dire. We affirm the District Court's denial of plaintiff's motion for new trial.

¶2 Francis Johnson and her sister, Omega Beyrer, visited a restaurant where Johnson fell and suffered a fractured hip. Johnson brought an action based upon premises liability against The Mule LLC (Restaurant) in the District Court of Oklahoma County and a jury trial was held in February 2019. The jury returned a verdict determining Johnson was 74% negligent and Restaurant 24% negligent, and awarded no damages to Johnson. Johnson filed a motion for new trial.

¶3 Johnson's motion for new trial asserted the jury foreman, D. K., had failed during voir dire to disclose his prior involvement as a defendant in an Oklahoma County tort action in 2005. D. K. was named with his father as defendants in a 2005 action which alleged D. K. used his father's automobile which resulted in an automobile collision. The collision and 2005 action occurred when D. K. was a minor. In 2019 at the time of Johnson's trial, D. K. was married, he had two minor children, and he was employed as the human resource director for a school.

¶4 The trial court denied plaintiff's motion for new trial. Restaurant also sought costs from plaintiff. Dr. S. was Johnson's expert witness for the trial. Restaurant paid a $3, 000.00 fee for Dr. S. to appear and testify at trial instead of Johnson's lawyer reading Dr. S.'s deposition to the jury at the trial. After the verdict, Restaurant sought an award for the fee it paid to Dr. S. for the trial appearance. The trial court granted Restaurant's motion for costs which included an amount of $1, 500.00 for one-half of Dr. S.'s fee.

¶5 Johnson died and Beyrer was substituted as the plaintiff. Beyrer appealed the trial court's denial of the motion for a new trial and the trial court's award of $1, 500.00 for one-half of Dr. S.'s fee. The Court of Civil Appeals stated the trial court's denial of the motion for new trial was an abuse of judicial discretion due to the jury foreman's failure to disclose his prior involvement as a defendant in a tort action. The appellate court also determined no Oklahoma statute authorized the $1, 500.00 award to Restaurant.

¶6 The appellate court's opinion reversed the trial court with a remand for a new trial. The three-judge panel had a split vote with one judge concurring, one judge concurring specially, and one judge dissenting. The Court of Civil Appeals released the three writings for publication.

¶7 Restaurant filed a petition for certiorari in this Court, and certiorari was previously granted. The petition for certiorari raised the issue of a juror's failure to disclose information during voir dire. Restaurant's reply on certiorari stated it sought certiorari for two reasons, and both involve a juror disclosing information during voir dire.

I. Certiorari Issues, COCA Opinion Vacated in Part and Withdrawn From Publication

¶8 The issue of costs was adjudicated by the Court of Civil Appeals and no party has sought certiorari to review that issue. We conclude the opinion of the Court of Civil Appeals should not be vacated as to the portion of the appellate opinion adjudicating costs.

¶9 Generally, our review of an issue on certiorari to the Court of Civil Appeals is based upon a party (1) preserving the error in the trial court with a proper trial record, ^[1] (2) seeking appellate review of the issue in the context of an appealable order ^[2] with a supporting appellate record, ^[3] (3) assigning the preserved error on appeal by a petition in error, ^[4] and (4) raising the assigned error in an appellate brief with supporting authority, ^[5] and (5) raising the issue in a petition for certiorari with authority and argument. ^[6] Preserved issues decided by the appellate court and which are later omitted from the petition for certiorari will usually not be considered by this Court during certiorari review. ^[7] There are exceptions to some of these general principles such as when this Court adjudicates (1) briefed issues not previously addressed by the Court of Civil Appeals, ^[8] (2) appellate jurisdictional issues, ^[9] (3) public policy issues, ^[10] and (4) issues outside of the appellate record and briefs but properly before the Court by a different method such as a supervisory writ proceeding consolidated into a single appellate mandate, ^[11] instead of a consolidation for the purpose of one opinion addressing different controversies with their separate trial and appellate records. ^[12] When a party prevails on an issue before the Court of Civil Appeals, then the party may advance arguments on certiorari which support the analysis by the Court of Civil Appeals without filing a petition for certiorari, ^[13] and this is merely application during certiorari review of a well-known appellate procedure. ^[14]

¶10 If an assigned error is adjudicated by the Court of Civil Appeals and the adjudicated error is not challenged on certiorari, then the portion of the opinion by the Court of Civil Appeals adjudicating that issue will usually become a part of the law of the case combined with the adjudication on certiorari. ^[15] In certain circumstances our certiorari review may result in this Court vacating the entire opinion of the Court of Civil Appeals although an appellant failed to raise an issue on certiorari. ^[16] Other types of relief may be appropriate during certiorari review, such as a Hough v. Leonard remand to the Court of Civil Appeals when an issue was not addressed by that court. ^[17]

¶11 The scope of certiorari in the present controversy is similar to our 1995 opinion in Jackson v. Jones. ^[18] In Jackson we stated a portion of the Court of Civil Appeals' opinion adjudicating the issue of trial court costs would stand undisturbed as settled law of the case when no party made a timely certiorari challenge to the appellate adjudication of the costs. ^[19] Our case today also involves an adjudication by the Court of Civil Appeals on the issue of costs awarded by the trial court. The adjudication was not challenged by a petition for certiorari, and we leave undisturbed the portion of the opinion on the issue of costs.

¶12 An opinion of the Court of Civil Appeals released for publication may be withdrawn from publication by the Supreme Court. ^[20] During certiorari review we have withdrawn an opinion by the Court...