Sapp v. Morrison Brothers Co.

• Decision Date: 19 May 2009
• Docket Number: No. WD 68928.,WD 68928.
• Citation: 295 S.W.3d 470
• Parties: Patricia SAPP, Sheila Bennett, Christine Phillips and Arcie Sapp, Jr., Appellants, v. MORRISON BROTHERS COMPANY and Eckelberry Service Co., Respondents.
• Court: Missouri Court of Appeals

295 S.W.3d 470

Patricia SAPP, Sheila Bennett, Christine Phillips and Arcie Sapp, Jr., Appellants, v. MORRISON BROTHERS COMPANY and Eckelberry Service Co., Respondents.

No. WD 68928.

Missouri Court of Appeals, Western District.

May 19, 2009.

As Modified June 23, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2009.

Application for Transfer Denied November 17, 2009.

J. Kent Emison, Lexington, and David L. Steelman, Rolla, for appellants.

Susan Ford Robertson, Columbia, for respondent.

Before VICTOR C. HOWARD, P.J., and JOSEPH M. ELLIS and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

In this wrongful-death case, Plaintiffs-Appellants, the survivors of Arcie Sapp ("the Sapps"), appeal from the trial court's denial of their motion for new trial following a jury verdict in favor of Defendant-Respondent Morrison Brothers Company. The Sapps argue that they are entitled to a new trial because of: (1) a juror's misconduct in intentionally withholding information during voir dire; (2) the trial court's refusal to give a limiting instruction concerning evidence of Arcie Sapp's employer's conduct; and (3) the trial court's failure to strike a juror for cause based upon alleged bias or prejudice. For the reasons which follow, we affirm.

Factual Background

On January 7, 2005, Arcie Sapp, an employee of MFA Oil, Inc., was severely burned when unleaded gasoline ignited while he was pumping fuel into a bulk storage tank at an MFA facility. Mr. Sapp died of his injuries twelve days later.

The Sapps brought this wrongful death suit against various defendants, including Morrison Brothers, for the death of Arcie Sapp. As relevant here, the Sapps claimed that the accident was caused by the malfunctioning of the storage tank's emergency vent, and another combination vent/alarm. Morrison Brothers manufactured both the emergency vent and the combination vent/alarm that the Sapps alleged had failed.

The case was tried before a jury in the Circuit Court of Jackson County from May 14 through June 1, 2007. The Sapps' claims against Morrison Brothers were submitted on multiple theories, including strict liability and negligence claims for defective design and failure to warn with respect to both the vent/overfill alarm and the emergency vent. The jury returned a defense verdict. The trial court entered judgment on the verdict, and subsequently denied the Sapps' Motion for New Trial. This appeal follows.¹

Analysis

I. Juror Non-Disclosure Claim

In their first Point Relied On, the Sapps argue that the trial court erred in denying their motion for a new trial because a juror we will refer to as "E.B." failed to disclose information about prior litigation in which she had been involved.

A.

In reviewing the denial of a motion for new trial based on a claim of juror nondisclosure, "[t]he threshold determination of the clarity of a question [asked during voir dire] is reviewed de novo." McBurney v. Cameron, 248 S.W.3d 36, 42 (Mo.App. W.D.2008) (en banc). "It is only after it is objectively determined that the question was reasonably clear in context that we consider, under an abuse of discretion standard, whether the trial court abused its discretion in deciding whether a nondisclosure was intentional." Id.

B.

The jury non-disclosure issue in this case arises in a somewhat novel context. During voir dire questioning, counsel for Morrison Brothers (not the Sapps) asked prospective jurors the following:

[A]re there any jurors who have brought a suit for personal injury or damages against someone else or a company, or anybody in your family that's done so? Now, let me qualify that.

We don't want to know about divorce. We don't want to know about small claims court or property-type disputes. The question is: Anybody in the jury box or your immediate family or a very close friend that you would have talked to about that, have you instituted a lawsuit for personal injury or damages?

E.B. did not respond. Counsel for Morrison Brothers then asked:

Has anyone participated in court as a witness, not necessarily as a witness in court? Let me start with the jury box. Any of you ever been in the witness box?—which is over there. I don't mean literally in that seat, I mean in any courtroom in a witness box. Anybody?

Again, E.B. did not respond.

On the last day of the three-week trial, counsel for the Sapps discovered, through an internet search, a case caption apparently containing E.B.'s name, and brought the issue to the trial court's attention. Following a conference with counsel, the trial court questioned E.B. in chambers:

THE COURT: Something has come up that I wanted to talk to you about. You're not in trouble or anything like that.

It came to my attention that there was a personal injury lawsuit filed in the year 1992 by somebody named [E.B.], and I didn't know if it's the same [E.B.]—it might not be. But have you ever filed any kind of a lawsuit for personal injuries?

JUROR [E.B.]: No, not that I know of.

MR. SULLIVAN: That solves that.

JUROR [E.B.]: I have never filed a lawsuit. I have never—

THE COURT: Have you ever had a property damage claim for your car where your insurance company might have filed what's called a subrogation action for the damage to the car or they paid for repairing your car and then sued somebody else?

JUROR [E.B.]: Not that I know of.

THE COURT: Mr. Emison, do you want to ask any follow-up questions?

MR. EMISON: No.

THE COURT: Mr. Sullivan?

MR. SULLIVAN: No.

After the defense verdict, the Sapps argued that they were entitled to a new trial because E.B. had failed to disclose that, in 1992, she had filed a lawsuit in associate circuit court for property damage arising out of an automobile collision. In support of their motion the Sapps submitted the court file in the property damage case, E.B.'s deposition in that lawsuit, and an affidavit signed by E.B.

Although—as we discuss below—neither the voir dire questioning nor the trial court's in-chambers follow-up clearly called for E.B. to disclose information concerning a property-damage suit she had filed in her own name, or testimony she had given outside a courtroom, in her affidavit E.B. stated:

4. During the jury selection process, I understood that certain questions were asked by the attorneys seeking information about prior lawsuits for damages in which prospective jurors were involved, including the lawsuit for damages in which I was involved....

5. During the jury selection process, I understood that certain questions were asked by the attorneys seeking information about instances in which a prospective juror had given sworn testimony as a witness either in court or out of court, including the testimony I gave [in the prior lawsuit]....

6. In addition to questions during the jury selection process, I was also questioned by Judge Manners concerning my involvement in prior lawsuits. At that time, I understood that Judge Manners was seeking information about prior lawsuits in which I was involved, including the lawsuit in which I was involved....

7. I confirm that I was the plaintiff and gave sworn testimony as a witness in the [prior] lawsuit....

Neither party called E.B. as a witness during the hearing on the Sapps' new-trial motion.

The trial court rejected the Sapps' jury nondisclosure argument in a detailed order. The court first found that the questions asked during voir dire, and during the court's in-chambers follow-up, did not unequivocally call for E.B.'s disclosure of a property-damage lawsuit she filed in her own name, or her testimony in an out-of-court deposition:

Although the original question asked about jurors who brought a suit for damages—which would, presumably[,] include property damages to an automobile—Morrison Brothers' counsel narrowed the scope of this question by saying: "We don't want to know about ... property-type disputes." This [statement] could have referred to a property damage case—like the one [E.B.] filed in 1992—but it might also have referred to a property dispute in a probate or partition action (among others). In other words, it was capable of more than one construction and was, therefore, unclear, Ewing [v. Singleton, 83 S.W.3d 617, 622 (Mo.App. W.D.2002)]. Since the question was ambiguous, this Court is unable to conclude that "a lay person would reasonably conclude that the undisclosed information was solicited by the question." Ibid. at 621.

The same thing seems to be true of the second question, pertaining to being a witness. The initial question asked by Morrison Brothers' counsel was contradictory: "Has anyone participated in court as a witness, not necessarily as a witness in court?" What does that mean? Counsel clarified the question, slightly, by adding: "I mean in any courtroom in a witness box." Viewed in context, the gist of that question seemed to be that counsel only wanted to know if any venireperson has testified in court.... The question asked by defense counsel did not unequivocally compel [E.B.] to disclose her experience as a deponent.

The circuit court reached the same conclusion concerning its own in-chambers questioning, which was limited to either "a personal injury lawsuit," or "a subrogation suit filed by [E.B.'s] insurance company."

Based on this analysis, the trial court concluded that it was required to reject the Sapps' juror misconduct claim, "because the essential prerequisite of a clear question is not satisfied." Although the court acknowledged that it "was unable to form any opinions about [E.B.'s] credibility since it could not observe her demeanor," the court nevertheless went on to find E.B.'s nondisclosure intentional:

[T]he plain language of her affidavit convinces this Court that [E.B.] recalled her 1992 suit both during voir dire and during her examination in chambers. The questions asked, as she understood them, called for her to reveal information about the 1992 suit. Despite that knowledge, she remained mute. The ineluctable conclusion is that...