H.A.S. Elec. Contractors, Inc. v. Hemphill Constr. Co.

• Decision Date: 02 June 2016
• Docket Number: No. 2015–CA–00596–SCT.,2015–CA–00596–SCT.
• Citation: 232 So.3d 117
• Parties: H.A.S. ELECTRICAL CONTRACTORS, INC. v. HEMPHILL CONSTRUCTION COMPANY, INC.
• Court: Mississippi Supreme Court

232 So.3d 117

H.A.S. ELECTRICAL CONTRACTORS, INC.

v.HEMPHILL CONSTRUCTION COMPANY, INC.

No. 2015–CA–00596–SCT.

Supreme Court of Mississippi.

June 2, 2016.

On Remand Oct. 12, 2017.

Rehearing Denied January 11, 2018.

Jim L. Davis, III, attorney for appellant.

David Bonds Ellis, Danny Alton Drake, Jackson, attorneys for appellee.

EN BANC.

MAXWELL, Justice, for the Court:

¶ 1. During jury selection, plaintiff H.A.S. Electrical Contractors (HAS) challenged defendant Hemphill Construction Company's use of two peremptory strikes. HAS argued Hemphill's strikes were racially discriminatory.

¶ 2. HAS's race-based objections triggered a three-step Batson¹ analysis. But the record shows the trial court failed to follow the Batson criteria when analyzing the challenged strike of Juror 7. We remand this case to the trial court for a limited Batson hearing for Juror 7. On remand, the court should determine if HAS can meet its burden to prove purposeful discrimination in Hemphill's exercise of that peremptory strike—i.e., was Hemphill's stated reason for the strike (age) merely pretext for discrimination.

¶ 3. We retain jurisdiction of this case pending the outcome of that hearing.

Once the results are certified, we will review the trial court's Batson determination for Juror 7 and address HAS's remaining issues on appeal.

Procedural Background

I. Suit and Countersuit

¶ 4. This is a breach-of-contract case involving a subcontract for electrical work for a state park in Waveland, Mississippi. Subcontractor HAS Electrical Contractors, Inc., sued contractor Hemphill Construction Company, Inc., for breach of contract, quantum meruit, and conversion. HAS requested $570,678.71 in compensatory damages, plus attorney's fees, costs, and punitive damages. Hemphill countersued, seeking $23,677.04 in damages. Hemphill also asked for attorney's fees and expenses under the subcontract.

II. Jury Selection

¶ 5. The dispute went to a jury trial. The trial court gave both HAS and Hemphill four peremptory strikes to use in selecting the twelve-member jury.² HAS used two of its strikes without objection. The twelve venire members HAS had accepted were then tendered to Hemphill. Hemphill accepted Jurors 1–3 and 5–6, all white females.³ Hemphill then used a strike on Juror 7, Don R. Taylor, a black male. HAS interjected, "Judge, we'll just point out that is the first black we have reached on the panel." The court then asked, "Anything further?"

HAS: Judge, we—I guess we would go ahead and ask for a race neutral reason because it is the first black we have reached on panel at this time of the venire.

Court: Well, I don't see how in the world you can have a pattern after one strike, but I will, as I believe the cases say, that I should ask you for a race neutral reason for Number 7, Taylor.

Hemphill: Your Honor, we—my reason, race neutral or otherwise, was age. We just thought he was—we would prefer not to have an older jury panel.

Court: Any response?

HAS: They had accepted Number 2, who is 68 years old, and Number 5[who] was 62 years old, but they were both white.

Court: All right. Well, I believe that there's not a pattern. That's the first person—that's the first black that's been presented. I don't believe that there's any pattern possible. The older venire, whether there's one or two, or three, I don't believe that's a good reason so I'm going to—I'm going to recognize the strike.

¶ 6. Hemphill then accepted Jurors 8, a black female, and Juror 9, a black male. Hemphill also accepted Jurors 11 and 12, both white females.⁴ Hemphill then struck Juror 13, Rodney Calhoun, a black male.

¶ 7. Once again, HAS objected:

HAS: He's only used two strikes and they've both been on blacks, your Honor. And we've only reached four blacks at this time and he has struck 50 percent of them.

...

Court: All right.... I'll hear from you on your Batson.

HAS: Judge, of course, he has now struck Mr. Calhoun. The blacks that we have reached on jury venire, Number 7, Don Taylor; Number 8, Kadreanna Johnson; Number 9, Mr. Anderson, and; Number 13, Mr. Calhoun. Today, he has only used two strikes at the time we were at Juror Number 13, and both of them were on black males, and there has only been four blacks reached on the venire at this time and he has struck 50 percent of them.

Court: All right. I will note for the record that Juror Number 7, that was D1, is a black male; Juror Number 8, that was accepted, is a black female; Juror Number 9, that was accepted, is a black male, and; Juror Number 13 is a black male. So, to my count, there have been four blacks tendered. He's exercised strikes on two and accepted two. I don't believe that that is a pattern showing discrimination, but I'm going to ask for a race neutral reason relative to Juror Number 13.

Hemphill: He showed his employer as Labor Ready. There's a number of issues here about, in this case, about part-time and temporary employees and we think that would—he would have a bias toward the Plaintiff in this matter.

Court: What says the Plaintiff?

HAS: One second, your Honor. We wouldn't accept that as a race neutral reason, your Honor.

Court: You said you do?

HAS: Do not. Would not.

Court: All right. I do. I'm going to uphold the strike on that.

¶ 8. Neither side used any more peremptory strikes. Jurors 14–17, two white females and two white males, completed the jury panel. And Jurors 18 and 19, both white males, were selected as alternates.

III. Verdict and Award

¶ 9. At the end of trial, the jury found in Hemphill's favor on both HAS's claims and Hemphill's counterclaim. While the jury awarded Hemphill no money damages, the trial court awarded Hemphill $90,000 in attorneys fees and expenses. The trial judge based the award on "prevailing party" language in the subcontract.

Issues on Appeal

¶ 10. On appeal, HAS argues for a new trial, insisting the trial judge failed to conduct a proper Batson hearing during jury selection. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). HAS claims the trial court failed to complete the required three-step Batson analysis because it did not consider if Hemphill's stated race-neutral reason was persuasive. Instead, it argues the court wrongly dismissed HAS's Batson challenges for "failure" to establish a pattern of discrimination.

¶ 11. Alternatively, HAS requests we vacate the award of attorneys fees. HAS suggests Hemphill was not the "prevailing party" because the jury awarded Hemphill no money damages.

Discussion

¶ 12. At this juncture, we address the Batson issue only. While we find no Batson error connected to Juror 13, we do agree with HAS that the trial court failed to conduct a proper Batson hearing for Juror 7. And we remand for the limited purpose of holding such a hearing.

I. Batson 's Three–Part Analysis

¶ 13. The privilege to use peremptory strikes "is subject to the commands of the Equal Protection Clause." Batson, 476 U.S. at 89, 106 S.Ct. at 1719, 90 L.Ed.2d 69. The Equal Protection Clause prohibits using peremptory strikes to engage in racial discrimination. Id. While Batson addressed a prosecutor's use of peremptory strikes in a criminal case, the same prohibition applies when selecting juries in civil cases. E.g., Burnett v. Fulton, 854 So.2d 1010, 1013–14 (Miss.2003) (applying Batson to medical-malpractice case).

¶ 14. To safeguard against racial discrimination in jury selection, the United States Supreme Court in Batson established a three-step process. Pitchford v. State, 45 So.3d 216, 224 (Miss.2010) (citing Batson, 476 U.S. 79, 106 S.Ct. 1712 ). First, the party objecting to the use of a peremptory strike has the burden to make a prima facie case that race was the criterion for the strike. Second, if the objecting party makes such a showing, the burden shifts to the striking party to state a race-neutral reason for the strike.⁵ Third, after the striking party offers its race-neutral explanation, the court must determine if the objecting party met its burden to prove purposeful discrimination in the exercise of the peremptory strike—that the stated reason for the strike was merely a pretext for discrimination. Id.

¶ 15. On appeal, we "afford[ ] great deference to the trial court's findings of whether a peremptory challenge was race neutral ... because finding that a striking party engaged in discrimination is largely a factual finding." Berry v. State, 802 So.2d 1033, 1038 (Miss.2001) (citations omitted). But to reach that finding, the trial judge must conduct a proper Batson analysis. E.g., Hardison v. State, 94 So.3d 1092, 1099 (Miss.2012) (reversing jury verdict because trial court failed to proceed to step three of Batson analysis after being offered a race-neutral reason for the strike).

¶ 16. Normally, we would begin our review with step one and ask if HAS established a prima facie case that race was the reason for both strikes. But this court follows the United States Supreme Court's procedure in Hernandez v. New York, 500 U.S. 352, 355–59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Pruitt v. State, 986 So.2d 940, 943–44 (Miss.2008). Under Hernandez, "once reasons are offered by the proponent [of the strike], the issue of whether a prima facie case of discrimination has been developed is moot." Hughes v. State, 735 So.2d 238, 250 (Miss.1999) (citing Hernandez, 500 U.S. at 359, 111 S.Ct. 1859 ). And we shift our focus to step two. Berry v. State, 802 So.2d 1033, 1037 (Miss.2001).

¶ 17. Here, though the trial court did not buy HAS's discrimination-based objections to striking Juror 7 and Juror 13, the court still required Hemphill to articulate a race-neutral reason for both strikes. So the issue of whether HAS met its burden to establish a prima facie case is moot. We begin our review with step two.

II. Juror 7

¶ 18. All step two required was that Hemphill state a race-neutral reason for the strike. Hardison, 94 So.3d at 1099–1100. Hemphill claimed it struck Juror 7, Taylor, because of his age—an accepted race-neutral reason. Id. at 1099 ; see also Stewart v....