Mark Spiece, Respondent, v. Melody Garland, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Mark Spiece, Respondent, v. Melody Garland, Appellant. Case Number: WD64357 Handdown Date: 11/15/2005 Appeal From: Circuit Court of Jackson County, Hon. Marco A. Roldan Counsel for Appellant: Richard F. Modin and Theodore A. Kardis Counsel for Respondent: Andrew J. Gelbach and John E. Turner Opinion Summary: Melody Garland appeals from the circuit court's order granting a new trial to Mark Spiece on personal injury claims. REVERSED AND REMANDED. Division Three holds: The circuit court's order is presumptively erroneous, pursuant to Rule 84.05(c), because it failed to specify reasons for granting the new trial. Also, Spiece failed to meet his burden of showing non- discretionary grounds for the new trial based on juror misconduct. The new trial order is reversed and the cause remanded for reinstatement of the jury verdict awarding Spiece $75,000 in damages. Citation: Opinion Author: Lisa White Hardwick, Judge Opinion Vote: REVERSED AND REMANDED. Hardwick, P.J., Breckenridge and Spinden, JJ., concur. Opinion: Melody Garland appeals from the circuit court's order granting a new trial based on juror misconduct. We reverse and remand.

Procedural History A jury awarded Mark Spiece $75,000 for injuries he sustained in a vehicular accident with Melody Garland. After judgment was entered, Spiece filed a Motion for New Trial alleging that one of the jurors had failed to truthfully respond to voir dire questions regarding her involvement in prior lawsuits. On June 28, 2004, the circuit court entered an "Order" granting the motion for new trial, without stating any reason for its decision. Two days later, Garland appealed the order granting a new trial.(FN1) On July 2, 2004, the circuit court entered a "Judgment/Order" explaining that the new trial motion was granted based on the "misconduct of Juror 3, Martha Teodori, who failed to disclose prior civil litigation after the question was specifically asked during voir dire." Point on Appeal The sole issue on appeal is whether the circuit court erred in granting the motion for new trial. Garland contends the order must be reversed because Spiece has not met his burden of showing non-discretionary grounds for the new trial, as required by Rule 84.05(c)-(d). (FN2) Garland further argues there was no good cause for a new trial because the record does not support a finding that Juror No. 3 engaged in misconduct by failing to disclose information requested during voir dire. Garland seeks reinstatement of the jury verdict and the judgment awarding Spiece $75,000 in damages. The applicable standard of review depends upon whether this appeal properly arises from the "Order" granting the new trial or the "Judgment" explaining the reasons for the new trial. Garland contends Section 512.020, (FN3) grants express authority to appeal "any order granting a new trial." If the order is appealable in this case, Rule 84.05(c) creates a presumption that the motion for new trial was erroneously granted because the circuit court failed to specify grounds for its decision. Garland, therefore, argues Spiece must overcome the presumption on appeal, by affirmatively demonstrating an adequate, non-discretionary ground for a new trial. Bishop v. Carper, 81 S.W.3d 616, 619 (Mo.App. 2002); Rule 84.05(c) and (d). Spiece argues that the original order could not be appealed because it was not denominated as a judgment or decree, as required by Rule 74.01 and discussed in Brooks v. Brooks, 98 S.W.3d 530, 532 (Mo. banc 2003) (although a special order may be appealable by statute, "to perfect the appeal, it is still necessary to denominate the order as a 'judgment or decree'"). Spiece contends the grant of a new trial was not appealable until the circuit court entered the "Judgment/Order" explaining the reasons for its decision. Given the court's explanation of grounds, Spiece argues the decision to grant a new trial cannot be reversed on appeal unless the circuit court clearly abused its discretion. See Lowdermilk v. Vescovo Bldg. & Realty Co., 91 S.W.3d 617, 625 (Mo.App. 2002).

We agree with Garland that the original order granting the new trial was appealable under the express language of Section 512.020. The Brooks rationale (requiring the denomination of a "judgment") applies only to "special orders [entered] after final judgment" and, in light of contrary authority, should not be extended to orders granting new trials. In Duckett v. Troester, 996 S.W.2d 641, 646 (Mo.App. 1999), we held the grant of a new trial is appealable, whether or not it is denominated as a judgment.(FN4) Garland was, therefore, entitled to appeal the June 28, 2004, new trial order. Once the notice of appeal was filed on June 30, 2004, the circuit court lost jurisdiction to enter any further judgments or orders explaining the grounds for granting a new trial. See Rodman v. Schrimpf, 18 S.W.3d 570, 572 (Mo.App. 2000). Because this appeal arises from the original order that did not specify grounds for a new trial, we must presume the decision is erroneous. Rule 84.05(c). Reversal is required unless Spiece can affirmatively demonstrate there was good cause for a new trial based on non-discretionary grounds. Bishop, 81 S.W.3d at 619; Rule 84.05(d). In meeting this burden, Spiece is confined to the errors specified in his motion for new trial and supporting suggestions. Rodman, 18 S.W.3d at 573. Spiece asserts the circuit court had good cause to grant the new trial based solely on the misconduct of Juror No. 3 in intentionally failing to disclose her prior involvement in lawsuits. Spiece raised this error in his motion for new trial, but he has not shown (or even argued) that it was a non-discretionary ground for relief. "Discretionary grounds relate to issues of fact and non-discretionary grounds relate to matters of law." Rodman, 18 S.W.3d at 574. In this case, Spiece's argument that Juror No. 3 engaged in misconduct was entirely based on factual recitations in the Juror's affidavit, which was attached to the new trial motion. The ultimate finding that an intentional non-disclosure occurred was a factual determination subject to the circuit court's discretion. King v. King, 66 S.W.3d 28, 33 (Mo.App. 2001). Because the decision was discretionary, Spiece has failed to meet his burden of demonstrating a non-discretionary ground for the new trial. Spiece has also failed to meet his burden of demonstrating good cause, because the record does not support his allegation that Juror No. 3 engaged in misconduct by failing to truthfully respond to a question about her prior involvement in lawsuits. During voir dire, Garland's counsel made the following inquiry: Is there anybody on the jury who you or a family member has ever been a plaintiff in a lawsuit for personal injury? You or a family member has filed a lawsuit where you are seeking money damages for an injury? Okay. I'm not talking about divorce cases or a landlord/tenant case, or a suit on a contract. Okay? You or a family member filed a lawsuit for personal injury? Anyone up here?

Juror No. 3 did not respond to this question. Following trial, Spiece obtained an affidavit from Juror No. 3, wherein she stated: I failed to disclose that I was involved in a slip and fall accident in which I received a settlement from Safeco Insurance Company. In my slip and fall case, I retained an attorney. I also failed to disclose that I had a car accident. I made a claim for my property damage. Spiece's allegation of non-disclosure is based solely on this statement in the affidavit. We disagree that Juror No. 3 had any obligation to disclose these facts in response to the voir dire question. Courts should not overturn jury verdicts lightly and without good cause, as trials are costly for the parties, jurors, and taxpayers. Keltner v. K-Mart Corp., 42 S.W.3d 716, 722 (Mo.App. 2001); Rule 78.01. Before a new trial is granted on grounds of juror non-disclosure, the court must first determine whether a non-disclosure occurred. Id. The record reflects that the voir dire question was limited to whether members of the jury pool had ever "filed a lawsuit for personal injury." The affidavit of Juror No. 3 does not indicate that she ever filed a lawsuit and, in fact, strongly implies that her personal injury claims were settled without the necessity of formal litigation. The affidavit fails to support Spiece's contention that a non-disclosure occurred. In the absence of any evidence showing juror misconduct, the circuit court did not have good cause for granting a new trial. The order granting a new trial is reversed. (FN5) The cause is remanded to the circuit court for entry of judgment on the jury's verdict. All concur. Footnotes: FN1. We granted Garland's motion to reverse the briefing schedule pursuant to Rule 84.05(c), because the circuit court's original new trial order did not specify grounds for the decision. FN2. All rule citations are to the Missouri Rules of Procedure (2005), unless otherwise noted. Rule 84.05 provides in relevant part: (c) ... When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.... (d) ... If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds. FN3. All statutory references are to Missouri Revised Statutes (2000) unless otherwise noted. FN4. Brooks, 98 S.W.3d at 532, expressly overruled prior cases addressing the appealability of "any special order [entered] after final judgment" under Section 512.020. Duckett addresses the appealability of an "order granting a new trial" under Section 512.020 and, thus, was not addressed or overruled by the narrow holding in Brooks.

FN5. Even if we had applied the abuse of discretion standard of review, as urged by Spiece, reversal would still be required because the record fails to support the circuit court's finding that a non-disclosure occurred. Accordingly, the court abused its discretion in granting a new trial. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.