Frank Simmons v. Lawrence Davis, Jr., Individually and as Father and Next of Kin of Jasmine Davis, a Minor

Annotate this Case
ca04-931

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

FRANK SIMMONS

APPELLANT

V.

LAWRENCE DAVIS, JR., Individually and as Father and Next of Kin of JASMINE DAVIS, A MINOR

APPELLEES

CA04-931

April 13, 2005

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT

[NO. CIV2001-15]

HON. L. T. SIMES, II

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

This is an appeal from the denial of a motion for new trial based on allegations of juror misconduct. The suit arose out of an automobile accident. After an unfavorable verdict, appellant, defendant below, moved for a new trial, asserting that several jurors had intentionally failed to give truthful answers to questions regarding their representation by counsel for the parties and involvement in any prior lawsuits involving automobile accidents "or anything of that nature." In support of his motion, appellant presented an affidavit from a private investigator showing that several of the jurors had in fact been involved in litigation before and had been represented by counsel for appellee. The motion was denied without a hearing. On appeal, appellant argues that the trial court erred in denying his motion for a new trial and in failing to conduct a hearing on that motion. We find no error, and we affirm.

We first address appellant's argument that the trial court erred in failing to grant his motion for a new trial on the basis of allegations of juror misconduct. Arkansas Code

Annotated ยง 16-31-107 (1987) provides that no verdict shall be void or voidable because any juror shall fail to possess the necessary qualifications unless the juror knowingly answers falsely or knowingly fails to respond to any question on voir dire relating to the qualifications propounded by the court or counsel in any cause. To obtain a new trial on the grounds of juror misconduct, a party must first demonstrate that a juror failed to honestly answer a question or deliberately concealed a matter during voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

Prejudice is not presumed when a new trial is requested because of juror misconduct. Instead, the moving party must show that the party's rights have been materially affected by demonstrating that a reasonable possibility of prejudice has resulted from the misconduct. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Trial courts are vested with great discretion in acting on motions for a new trial, and, in a case in which a new trial is requested on the ground of juror misconduct, we will not reverse the trial court's denial unless there is a manifest abuse of that discretion. Id.

Here, evidence was submitted to the court to show that three of the jurors were parties to a class action suit arising out of a truck explosion, and that appellee's trial counsel was one of the attorneys representing the class. However, there was also evidence that the class action involved some six thousand plaintiffs, that appellee's trial counsel was only marginally involved and had little client contact, and that appellee's trial counsel did not recognize any of the jurors as plaintiffs in the class action. We think that the trial court could properly have found, on this evidence, that appellant failed to show that these jurors were aware of the participation of appellee's attorney in the class action or deliberately concealed their involvement in the class action. See Koch v. Northport Health Services, ___ Ark. ___,___ S.W.3d ___ (March 24, 2005). There was also evidence that a third juror, Gail Carruth, previously had been a party to a lawsuit involving a debt. Insomuch as appellant's question regarding prior lawsuits was directed to automobile accidents "or anything of that nature," her negative answer was not dishonest, and a juror is not required to bring to the court's attention information that the juror does not realize might bear upon her credibility as a juror. Id. We hold that the trial court did not abuse its discretion in denying a new trial.

Appellant also argues that the trial court erred in not ordering a hearing on the motion for a new trial. We do not agree. First, pursuant to Ark. R. Civ. P. 59(c), the grounds for a new trial must be supported by affidavits and may be controverted in the same manner; there is therefore no need for a hearing in every case. Second, the trial court in the present case did not expressly deny the motion; instead, it was deemed denied by the passage of thirty days without having been either granted or denied, a method of resolving a new trial motion permitted by Ark. R. Civ. P. 59(b). Third, despite appellant's assertions that he requested a hearing on the new trial motion, we find nothing in the record to show that he in fact did so. Unless a hearing is requested by counsel or ordered by the court, a hearing will be deemed waived and the court may act upon the matter without further notice after the time for reply has expired. Ark. R. Civ. P. 78(c).

Affirmed.

Robbins and Neal, JJ., agree.