Hendrix v. Docusort, Inc., 69281

• Decision Date: 24 September 1993
• Docket Number: No. 69281,69281
• Parties: Gwen D. HENDRIX, Appellant, v. DOCUSORT, INC., Appellee.
• Court: Kansas Court of Appeals

Page 62

860 P.2d 62

18 Kan.App.2d 806

Gwen D. HENDRIX, Appellant, v. DOCUSORT, INC., Appellee.

No. 69281.

Court of Appeals of Kansas.

Sept. 24, 1993.

Syllabus by the Court

1. When a civil jury renders a nonunanimous verdict, any 10 jurors voting together on any question may render a valid verdict.

2. Grounds for a new trial must generally be based on objections properly made and preserved at trial.

Laurence M. Jarvis of Lawrence M. Jarvis, Chartered, Kansas City, for appellant.

Leonard R. Frischer of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellee.

Before PIERRON, P.J., BRAZIL, J., and JAMES J. SMITH, District Judge, assigned.

PIERRON, Judge:

This case arises out of a personal injury case tried to a jury. The jury returned a general verdict made up of four questions. The jury returned a 10 to 2 verdict for the plaintiff on three of the four questions. However, the majority was not composed of the same jurors on each question. The plaintiff appeals, arguing the same 10 jurors must vote in the majority on each question. We affirm.

At the close of trial, the jury was instructed to render a verdict by giving its responses to four questions. The jury was instructed that at least 10 jurors had to agree to the answer to each question. The jury returned the verdict form as follows:

"We, the jury, present the following answers to the questions submitted by the court:

"1. Do you find any of the parties to be at fault? Answer yes or no: Yes

"Proceed to question two only if you found any party to be at fault.

"2. Considering all of the fault at one hundred percent, what percentage of the total fault is attributable to:

                Gwendolyn Hendrix      (0% to 100%)    45  %
                                                     ----
                Docusort, Inc
                [Derrick T. Williams]  (0% to 100%)    55  %
                                                     ----
                                                      100  %
                                                     ----
                

"Proceed to the remaining questions only if you found the fault of the party seeking damages to be less than 50% of the total fault.

"3. Without considering the percentage of fault found in question two, what damages do you find were sustained by Gwendolyn Hendrix?

                A.  Noneconomic loss to date  $ 0
                                              -----------------------
                B.  Future noneconomic loss   $ 0
                                              -----------------------
                C.  Medical expenses to date  $ 0
                                              -----------------------
                D.  Future medical expenses   $ 0
                                              -----------------------
                E.  Economic loss to date     $1730.36--Truck damages
                                              -----------------------
                         TOTAL DAMAGES        $1730.36
                                              -----------------------
                

"4. Our finding of monetary damages for noneconomic loss stated in paragraphs 3A and 3B includes $0 for pain and suffering.

"Number of jurors in agreement upon the answers given to the questions submitted:

Twelve jurors ----

Eleven jurors ----

Ten jurors X

----

Ralph P. Gregory

----------------

Presiding Juror" The plaintiff's attorney asked that the jury be polled. Nine jurors responded that it was their verdict. Three responded negatively. The court then asked the foreman if he needed to return to the jury room to clear up the confusion, as the form indicated 10 jurors had agreed to the verdict. Plaintiff's counsel moved for a mistrial. The motion was denied.

The jury retired and later sent a note to the judge, who then called the jury back to the courtroom. The note revealed that 10 jurors agreed on question two, apportionment of fault, and 10 agreed on question three, regarding the amount of damages to be awarded. However, the majorities were not composed of the same people. An unknown majority of 10 also agreed on question four. Question one, negligence, was not addressed in the note. The court accepted the verdict and entered judgment for plaintiff.

The plaintiff again moved for a mistrial, and again the motion was denied. The plaintiff filed a motion for a new trial which was also denied.

The defendant prepared a journal entry reflecting the facts set out above, and the court entered judgment for the plaintiff. The plaintiff now appeals.

The first issue is whether the trial court erred by accepting a verdict where it is alleged that less than 10 jurors found negligence.

This particular issue was not raised when the jury returned its verdict, nor was it raised in the plaintiff's motion for a new trial. In fact, in the motion for a new trial, the plaintiff states 12 people agreed on the issue of negligence. Further, the plaintiff did not dispute this issue at the conference to settle the journal entry.

The rule regarding motions for new trial is codified at K.S.A. 60-259. This rule does not address the question of whether the grounds for a new trial must be preserved at the trial level in order to raise those grounds in challenging the denial of a motion for a new trial on appeal. However, applying this rule would be consistent with appellate jurisprudence. See Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991); Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 671, 809 P.2d 1216 (1991).

The appropriate rule is that grounds for a new trial must be based on objections properly made and preserved at trial. If this is not done, they generally cannot be considered on appeal.

Further, the law in Kansas is clear that a jury verdict may only be reformed with the assent of the jury before it is discharged. K.S.A.1992 Supp. 60-248(g); Cornejo v. Probst, 6 Kan.App.2d 529, 541, 630 P.2d 1202, rev. denied, 230 Kan. 817 (1981). The time to clear up questions about the verdict was at trial.

Additionally, the verdict form states 10 jurors agreed with the verdict. As the note from the foreman indicated, it may not have been the same 10 on any particular question, but it was 10. The argument by counsel for the plaintiff that only nine agreed on the verdict simply ignores contrary evidence.

The next issue is whether the trial court erred by accepting 10 to 2 verdicts on three questions, when the same 10 jurors did not necessarily comprise the majority on each question.

K.S.A. 1992 Supp. 60-248(g) states:

"Whenever the jury consists of 12 members, the agreement of 10 jurors shall be sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict shall be by agreement of all the jurors. The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is their verdict. If less than the required number of jurors agree, the jury must be sent out again. If agreement of the required number is expressed, and no party requires the jurors to be polled individually, the verdict is complete, and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged."

The plaintiff argues this statute must be interpreted to require that the same 10 jurors must agree on each question comprising the verdict in order for the verdict to be valid. The defendant argues any coalition of 10 jurors answering a question is sufficient to render a valid verdict. This question has not been considered in Kansas. The statute provides no assistance in answering the question. However, other states have considered this issue and have reached different conclusions. Two different rules have developed, the "same juror" rule and the "any majority" rule.

The Same Juror Rule

Some states have held that the same 10 jurors must form the majority on each question in order for a verdict to be valid. These states reach this conclusion based on the belief that to hold otherwise would allow inconsistent voting. These states also adopt the theory that a jury verdict is a "non-fragmentable totality.... a whole and separate entity ... represent[ing] one ultimate finding on the basis of several issues." Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash. & Lee L.Rev. 360, 363-64 (1970). Some have theorized that the same juror rule is an attempt to hold onto the common-law rule requiring complete unanimity in a verdict, even though the rule has been changed by constitutional and statutory law. 27 Wash. & Lee L.Rev. at 362-63.

The rationale supporting the same juror rule was set out by the Ohio Supreme Court in O'Connell v. Chesapeake & Ohio R.R. Co., 58 Ohio St.3d 226, 569 N.E.2d 889 (1991). Summarized, the Ohio court adopted this position because it believed "the determination of causal negligence on the part of one party to be a precondition to apportioning comparative fault to that party." 58 Ohio St.3d at 235, 569 N.E.2d 889. Finally, the court refused to accept the argument that following the same juror rule would lead to an increase in hung juries and mistrials.

Other states which have adopted the same juror rule have done so based on the rationale set out in O'Connell. See Klanseck v. Anderson Sales & Service, Inc., 136 Mich.App. 75, 84, 356 N.W.2d 275 (1984) (same juror rule applies to liability and damages issue; same five of six jurors must agree on all issues encompassed in verdict), aff'd, 426 Mich. 78, 393 N.W.2d 356 (1986); Schultz v. Monterey, 232 Or. 421, 424, 375 P.2d 829 (1962) (same juror rule applied); Clark v. Strain, 212 Or. 357, 364-66, 319 P.2d 940 (1958); Veberes v. Knappton Corporation, 92 Or.App. 378, 381, 759 P.2d 279 (same juror rule applies to questions that are interdependent), rev. denied, 307 Or. 78, 763 P.2d 732 (1988); Zintek v. Perchik, 163 Wis.2d 439, 465-67, 471 N.W.2d 522 (Ct.App.) (same jurors must agree on all questions necessary to support judgment against the defendant), rev. denied, 164 Wis.2d 1xxi, 477 N.W.2d 286 (S.Ct.1991); McCauley v. International Trading Co., 268 Wis. 62,...