Fielder v. Gittings

• Decision Date: 29 June 2010
• Docket Number: No. WD 70212.,WD 70212.
• Parties: Ryan A. FIELDER, Respondent, v. Robert E. GITTINGS, Appellant.
• Court: Missouri Court of Appeals

311 S.W.3d 280

Ryan A. FIELDER, Respondent, v. Robert E. GITTINGS, Appellant.

No. WD 70212.

Missouri Court of Appeals, Western District.

February 23, 2010.

Application for Transfer to Supreme Court Denied March 30, 2010.

Application for Transfer Denied June 29, 2010.

COPYRIGHT MATERIAL OMITTED

William A. Mallory, Overland Park, KS, for appellant.

Douglas F. Noland, Liberty, MO, for respondent.

Before LISA`WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.

JAMES M. SMART, JR., Judge.

Robert Gittings appeals the judgment of the Clay County Circuit Court granting a new trial on Ryan Fielder's petition claiming automobile negligence. He claims the trial court erred in granting a new trial on the basis of juror non-disclosure. The judgment is affirmed.

Facts

Ryan Fielder filed a petition in February 2007 alleging that he was injured by Robert Gittings' negligent operation of a vehicle. After a trial, the jury returned a verdict in favor of Fielder and against Gittings. The jury awarded Fielder damages in the amount of $40,000. Fielder filed a motion for a new trial premised on intentional juror non-disclosure during voir dire. The trial court granted Fielder's motion for a new trial.

Gittings appeals.

Analysis

The parties have a right to a fair and impartial jury composed of twelve qualified jurors. Nadolski v. Ahmed, 142 S.W.3d 755, 764 (Mo.App.2004). "Among other things, this means that the jurors who hear the case should be unbiased individuals whose experiences, even innocently and reasonably undisclosed, will not prejudice the case." Id. "During voir dire examination, each prospective juror therefore has a duty to fully, fairly and truthfully answer each question asked so that determinations may be made about each juror's qualifications and counsel may make informed challenges." Id. "When a juror fails to heed her duty by withholding material information and that failure results in bias and prejudice to the moving party, a new trial is warranted." Id.

Clear Question

In determining whether to grant a new trial for juror nondisclosure, the court first must determine whether a nondisclosure occurred at all. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001). Nondisclosure can occur only after a clear question is asked during voir dire. Brines By Harlan v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). An unequivocal question triggers a venireperson's duty to disclose. Id. Silence to an unequivocal question establishes juror nondisclosure if the information is known to the juror. Id.; Heinen v. Healthline Mgmt., Inc., 982 S.W.2d 244, 248 (Mo. banc 1998). "This is an objective inquiry that looks to whether the appellant can show that there exists no reasonable inability to comprehend the information solicited by the question." McBurney v. Cameron, 248 S.W.3d 36, 42 (Mo.App. 2008). In other words, if a person could reasonably be confused, the question is not sufficiently clear to warrant further inquiry into the alleged nondisclosure. See id. The threshold determination of the clarity of a question is reviewed de novo. Id. The reasonable interpretation of the question depends on the context of the question as well as the wording of the question. Id. at 44.

Fielder's motion for a new trial was predicated on the failure of jurors Sherman, Wilson, and Rude to disclose their involvement in collection and landlord/tenant actions. With respect to juror Sherman, Fielder cited two suits in which juror Sherman was involved: (1) a breach of contract claim brought by a credit card company and (2) a suit on account brought by a real estate lending company. Both suits resulted in default judgments against juror Sherman. With respect to juror Rude, Fielder cited three suits in which juror Rude was involved: (1) a petition on account; (2) a breach of contract claim brought by a credit card company; and (3) a petition for delinquent Missouri individual income tax. All three suits were brought in Associate Circuit Court and resulted in default judgments against juror Rude. With respect to juror Wilson, Fielder cited four suits in which juror Wilson was involved: (1) a petition on account brought by a credit card company; (2) a rent and possession action filed against juror Wilson that was dismissed once but later re-filed; and (3) an unlawful detainer action filed against juror Wilson. All claims resulted in default judgments.

In his first point, Gittings claims that any alleged non-disclosure by the three jurors of collection and landlord/tenant actions was the direct and sole result of Fielder's failure to ask a clear and concise voir dire question about prior litigation experience. He states that the context of Fielder's questions focused solely on personal injury litigation experience.

The following relevant questioning occurred during voir dire:

Fielder's counsel: As the Judge has indicated to you, this is a civil case. It's not a criminal case. It's a civil case. We're going to be here to ask for money to make up for the harm that Ryan has suffered as a result of what we believe the evidence will be what the defendant has done here. I've got kind of a number of questions I want to ask you. To start off, is there anybody here, either themselves or their family members, who has ever filed a lawsuit much the same as Ryan has in this case here? Either you or a family member ever filed a lawsuit?

VENIREMAN THERLING: Yes.

Fielder's counsel: Tell me about that, sir.

VENIREMAN THERLING: My aunt three or four years ago got hit in a parking lot and filed a lawsuit on it and settled it.

Fielder's counsel: That was your aunt, is that correct?

VENIREMAN THERLING: Yes.

Fielder's counsel: She was injured?

VENIREMAN THERLING: Yes.

Fielder's counsel: Anything about that, one way or another, that causes you to lean one way or another on this case here?

VENIREMAN THERLING: Other than her being my aunt, no.

Fielder's counsel: Thank you very much, Mr. Therling. Anyone else in the jury box here? Mrs. Carnes.

VENIREMAN CARNES: Thirteen years ago, we lost a baby through a procedure being done so we took the doctor to court and we got it settled.

Fielder's counsel: I'm very sorry to hear that. Anyone else? Yes, sir, Mr. Vanderford.

VENIREMAN VANDERFORD: It's been about 20 years ago. Somebody keyed my wife's car at the bank where she worked and there was a class action. The employees went together and pressed charges.

Fielder's counsel: So that involved like a credit card or a bank card?

VENIREMAN VANDERFORD: No, they had a key and keyed the cars at the bank.

Fielder's counsel: Okay.

VENIREMAN VANDERFORD: Seven or eight cars were involved.

Fielder's counsel: So that was just damage to the cars?

VENIREMAN VANDERFORD: Yes.

Fielder's counsel: Anyone else in this area?

There is no response from the jury panel.

Fielder's counsel: How about back in the first row here? Mr. Stubbs?

VENIREMAN STUBBS: Correct. I guess it was about 7 years ago. My wife and daughter were involved in an accident where a drunk driver crossed the road and hit their vehicle. We had to file suit against them.

Fielder's counsel: Was that case—I'm sorry to hear that as well. Were they hurt bad in the case?

VENIREMAN STUBBS: Yeah, broken ribs and ankle and things like that that took quite a while to heal.

Fielder's counsel: Was the case settled?

VENIREMAN STUBBS: Yeah, it settled without trial.

Fielder's counsel: How do you kind of feel about all that now after the case is over with in terms of the legal system and what you had to go through?

VENIREMAN STUBBS: I guess it worked the way it was supposed to. We settled with the insurance company for the other party. I'm not sure whether the amount was fair or not, but that's what we settled on.

Fielder's counsel: And how long ago was that, Mr. Stubbs?

VENIREMAN STUBBS: I think that was seven years ago.

Fielder's counsel: And that was your wife and daughter?

VENIREMAN STUBBS: Correct.

Fielder's counsel: Thank you very much, sir. We've got a few more hands here. Mr. Hughes?

VENIREMAN HUGHES: Hughes, yes. I personally have not filed a suit, but my insurance company did on my behalf basically to recoup their costs on an accident that was someone else's fault, but I didn't benefit from that.

Fielder's counsel: It probably involved property damage?

VENIREMAN HUGHES: Yes.

Fielder's counsel: Anybody injured in that?

VENIREMAN HUGHES: No.

Fielder's counsel: Thank you very much. Did you have to go to court on that, Mr. Hughes?

VENIREMAN HUGHES: Yes, it did go to trial.

Fielder's counsel: Thank you very much.

VENIREMAN BUCK: Hi, my name is Debbie Buck. I was hit from behind 8 years ago. It shattered my left hand and cracked my right knee drum. We went to court. It was not a good experience.

Fielder's counsel: Did you have a trial?

VENIREMAN BUCK: Uh-huh.

Fielder's counsel: Was it up here in Clay County?

VENIREMAN BUCK: Yeah, it was right here in this room actually.

Fielder's counsel: And how long ago was that, ma'am?

VENIREMAN BUCK: Five years ago.

Fielder's counsel: Were you the driver of the other car or were you a passenger?

VENIREMAN BUCK: I was driving, and I was hit from behind.

Fielder's counsel: You were hit from behind?

VENIREMAN BUCK: Uh-huh.

Fielder's counsel: Thank you, ma'am. You said that it wasn't a pleasant experience. Anything more that you'd care to tell us about that process that you kind of feel one way or another—this is a new case with new facts.

VENIREMAN BUCK: I have to tell the truth so I'll tell the truth. I was not pleased with how it turned out. It took almost two years to rebuild my hand. By the time the insurance company got their share and the lawyers got their share, I had $1,200, and I still can't make a fist and my knee still goes out sometimes. It was a real bad experience.

Fielder's counsel: I'm sorry about your injury.

VENIREMAN BUCK: Thanks.

Fielder's counsel: Anyone else? Mr. McMullin.

VENIREMAN McMULLIN: Twenty years ago, a one-car injury accident involving my wife, her sister and

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