Holy Cross v. Orkin Exterminating Co.

• Decision Date: 24 August 2009
• Docket Number: No. 26706.,26706.
• Citation: 384 S.C. 441,682 S.E.2d 489
• Court: South Carolina Supreme Court
• Parties: The VESTRY AND CHURCH WARDENS OF the CHURCH OF the HOLY CROSS, a South Carolina Corporation, Respondent, v. ORKIN EXTERMINATING COMPANY, INC., Petitioner.

682 S.E.2d 489

384 S.C. 441

The VESTRY AND CHURCH WARDENS OF the CHURCH OF the HOLY CROSS, a South Carolina Corporation, Respondent, v. ORKIN EXTERMINATING COMPANY, INC., Petitioner.

No. 26706.

Supreme Court of South Carolina.

Heard February 3, 2009.

Decided August 24, 2009.

Ernest A. Finney, Jr., of The Finney Law Firm, of Sumter, J. Rutledge Young, III, of Duffy & Young, of Charleston, Kenneth R. Young, of Young, Reiter, Keffer & Donnald, of Sumter, and LeeAnn Jones, of Powell Goldstein, of Atlanta, for Petitioner.

Thomas S. Tisdale, Jr., and David J. Parrish, both of Nexsen Pruet, of Charleston, for Respondent.

Chief Justice TOAL.

In this case, Respondents the Vestry and Church Wardens of the of the Church of the Holy Cross ("Holy Cross") filed suit against Petitioner Orkin Exterminating Company ("Orkin") for breach of contract. The case was tried, and the jury returned a verdict for Orkin. Shortly thereafter, the trial judge informed the parties that there were allegations of juror misconduct. Holy Cross moved for a new trial. After examining the jurors, the trial judge denied the motion. The court of appeals reversed and remanded the case for a new trial. See The Vestry & Church Wardens of the Church of the Holy Cross v. Orkin Exterminating Company, Inc., 373 S.C. 200, 644 S.E.2d 735 (Ct.App. 2007). We granted Orkin's petition for a writ of certiorari to review the court of appeals' decision.

FACTUAL/PROCEDURAL BACKGROUND

The Church of the Holy Cross is located in Sumter and listed on the National Historic Register as a National Historic Landmark. In 1976, Holy Cross contracted with Orkin to annually treat and inspect the church for termites. Holy Cross discovered termite damage in 2000 and brought this suit for breach of contract.

A jury trial was conducted in August 2005. Per his usual instructions, the trial judge instructed the jurors before swearing them in that they should not discuss the case among themselves or with any other person, and that they should not undertake any investigation into the facts or law not presented to them during the course of the trial. At the end of a two-week trial, the jury returned a verdict in favor of Orkin.

Three days later, the trial judge sent a letter to all parties to inform them of a possible case of juror misconduct. The judge explained that he was contacted the morning after the trial by alternate juror Sherry Babb. Babb informed him that juror Vicki Abrams had allegedly violated his instructions in the following instances: (1) early in the trial, Abrams questioned aloud the instructions not to talk about the case and made comments to other jurors in spite of these instructions; (2) she stated that "the historic people" "have money" and that Holy Cross was trying to get someone else to "pay their bills" when everyone knows that "old buildings fall down"; (3) she stated that she did not know why she had to hear both sides of the case and that she had discussed the case with her mother, who confirmed that "historic people" have money and should "clean up their own mess"; (4) she said she had talked to a painter who told her that termite damage can cause building walls to collapse; (5) she said that Holy Cross should tear down the church and bring in a double wide; and (6) on the day of deliberation, Abrams told jurors that she had prayed with her minister about the case, and that she had driven to Holy Cross over the weekend and that it looked fine to her. Babb also informed the judge that the jurors admonished Abrams for violating his instructions and that the jurors paid little attention to Abrams' comments.

Holy Cross filed a motion for new trial. The trial judge summoned the jurors to appear at the courthouse on September 7, 2005, for sworn examinations. The trial judge found that Babb's allegations were "in large measure . . . corroborated by" the jurors' testimony. One juror's testimony indicated that Abrams had commented that her minister had told her that "the church should take care of the church," and that "churches need to stick together." However, none of the jurors indicated that their final deliberations were affected by Abrams' misconduct.

On November 10, 2005, the judge held a hearing on the issue of whether Abrams should be held in contempt of court. Abrams's court-appointed attorney denied that she had committed any premeditated wrongdoing. Nevertheless, the judge found Abrams to be in contempt of court.

On February 22, 2006, the judge issued an order denying Holy Cross's motion for new trial. The judge found that Holy Cross failed to "demonstrate prejudice affecting the impartiality of the verdict," and that "[t]he statements and actions by Ms. Abrams were not of a kind to impermissibly influence the jury or effect the verdict." The judge noted that there was nothing Abrams could have learned from driving to the church that was not already apparent from photographs in evidence. Likewise, the judge found that the statement made by the painter was consistent with statements made by Holy Cross's witnesses and therefore did not unduly prejudice Abrams's deliberation. Finally, the judge found that there was no evidence that Abrams's comments shaped the final deliberations or improperly influenced the other jurors, in light of the testimony indicating that the jurors admonished Abrams, "laughed off" her comments, and generally paid her little attention. The judge concluded that, "having conducted an extensive individual voir dire of each juror and having viewed the conduct of the offending juror, this Court has found no indication that the jury's unanimous verdict was compromised, and [Holy Cross] has not made the showing of any prejudice by clear and convincing evidence, as required by the applicable case law." Holy Cross appealed to the court of appeals.

In a split decision, the court of appeals reversed, holding that the trial judge erred in focusing his analysis on the eleven other jurors and in failing to adequately consider the question of whether Abrams's own conduct, which revealed her to be "unconcerned about granting [Holy Cross] the fair and impartial trial to which it was entitled," deprived Holy Cross of its right to a fair trial. In the opinion of the majority, under the circumstances of this case, "where at least one of [Abrams' acts of misconduct] was deemed so egregious by the trial judge that he punished [her] for criminal contempt, the failure of the trial judge to grant a new trial based upon those acts of misconduct amounts to an abuse of discretion." 373 S.C. at 206, 644 S.E.2d at 739. The dissent concluded that the trial judge conducted the appropriate procedure upon being presented with an allegation of misconduct, and did not err in denying Holy Cross's motion for new trial. We granted a writ of certiorari to review the court of appeals' decision. The following questions are presented for our review:

I. Did the court of appeals apply an incorrect standard of law regarding jury misconduct?

II. Did the court of appeals err in finding that the trial judge abused his discretion in denying Holy Cross's motion for new trial?

STANDARD OF REVIEW

The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000). The trial court is in the best position to determine the credibility of the jurors; therefore, this Court grants broad deference on this issue. State v. Council, 335 S.C. 1, 12, 515 S.E.2d 508, 514 (1999).

LAW/ANALYSIS

Orkin alleges that the court of appeals applied an incorrect standard of law regarding jury misconduct and erred in finding that the trial judge abused his discretion in denying Holy Cross's motion for new trial. We agree on both counts.

Under South Carolina law, litigants are guaranteed the right to an impartial jury. See S.C.Code Ann. § 14-7-1050 (2008) ("in all civil cases any party shall have the right to demand a panel of twenty competent and impartial jurors from which to strike a jury."). If a potential juror has an interest in the lawsuit such that she is "not indifferent in the cause," the juror shall be deemed incompetent to serve on the jury. See S.C.Code Ann. § 14-7-1020 (2008).

Misconduct that does not affect the jury's impartiality will not undermine a verdict. Harris, 340 S.C. at 63, 530 S.E.2d at 627. In determining whether outside influences have affected the jury, relevant factors include: (1) the number of jurors exposed, (2) the weight of the evidence properly before the jury, and (3) the likelihood that curative measures were effective in reducing the prejudice. Id. (citing Kelly, 331 S.C. at 141-42, 502 S.E.2d at 104). The trial court has broad discretion in assessing allegations of juror misconduct, and should declare a mistrial only when absolutely necessary. Council, 335 S.C. at 12, 515 S.E.2d at 514. Instead, the trial court should exhaust other methods to cure possible prejudice before aborting a trial. Kelly, 331 S.C. at 141-42, 502 S.E.2d at 104. In order to receive a mistrial, the moving party must show error and resulting prejudice. Id.

I. Standard of Law in Cases of Juror Misconduct

Orkin first argues that the court of appeals applied the wrong standard of law by applying a general standard of "fundamental fairness" rather than the more specific standard of actual prejudice.¹ Although considerations of "fundamental fairness" are relevant to analyses of jury misconduct, we agree that the court of appeals failed to grant due deference to the trial judge's factual finding that Holy Cross did not suffer actual prejudice.

This Court has, in the past, used the language of "fundamental fairness" to describe the constitutional implications of juror misconduct. See Shumpert v. State, 378 S.C. 62, 661 S.E.2d 369 (2008) (holding that juror testimony involving...