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2006 OK CIV APP 60
137 P.3d 693
Case Number: 101193
Decided: 05/09/2006
Mandate Issued: 06/01/2006

LISA THOMPSON and RICK THOMPSON, Plaintiffs/Appellees,
JEFF KRANTZ and POWERS RADIOLOGY, INC., an Oklahoma corporation, Defendants/Appellants.




Jesse J. Worten, III, David B. King, John M. Keefer, BREWER, WORTEN, ROBINETT, Bartlesville, Oklahoma, for Appellees
Marthanda J. Beckworth, Galen L. Brittingham, ATKINSON, HASKINS, NELLIS, HOLEMAN, BRITTINGHAM, GLADD & CARWILE, Tulsa, Oklahoma, for Appellants


¶1 This appeal arises from proceedings that followed the trial court's entry of judgment on a jury verdict in favor of defendants. The judgment was filed May 27, 2003. Plaintiffs first filed a motion for new trial on May 28, 2003, alleging, among other things, misconduct by a juror in doing internet research about matters related to the case. After questioning the juror about her internet research, the trial court denied this motion on August 22, 2003. Plaintiffs then sought relief from the denial of the motion for new trial by filing both an appeal on September 9, 2003, and a motion to vacate on September 19, 2003. Plaintiffs also filed a motion to disqualify the trial judge on September 19, 2003. Three days later, before ruling on the motion to disqualify, the trial court granted the motion to vacate the denial of the motion for new trial. Thereafter, the trial court questioned other jurors to determine whether any other jurors were aware of the juror's internet research about matters related to the case. After questioning the jurors, the trial court granted the motion for new trial, and defendants brought this appeal.

¶2 On appeal, defendants argue that the trial court erred in granting the new trial, because (1) the appeal that plaintiffs filed prior to the motion to vacate ousted the trial court of jurisdiction as provided in Goldman v. Goldman,


¶3 In the Goldman case, the Oklahoma Supreme Court reaffirmed "the general rule" that "a district court's exercise of judicial power with respect to issues that are tendered for review [by a pending appeal] is void[,] if it occurs before mandate has been transmitted to revest the trial court with subject matter jurisdiction." Goldman, ¶ 2, 883 P.2d at 166. "[E]xceptions to this rule are enumerated in Rule 1.31, Rules on Perfecting a Civil Appeal, Ch. 15, App. 2 (1994)." Id. at n.2, 888 P.2d at 166.

¶4 Rule 1.31(a) provided, in pertinent part, that "the trial court does retain jurisdiction in the case after a petition in error has been filed . . . (3) To decide motions for new trial . . . or a motion or petition for relief on grounds provided by

¶5 Prior to the Goldman case, the Oklahoma Supreme Court had expressly recognized that § 1031.1 allowed a trial court to reconsider a judgment despite a pending appeal of the same judgment. In the case of James Energy Co. v. HCG Energy Corp.,

¶6 Defendants have acknowledged § 1031.1, but suggest that it is limited to a judgment on the merits and "does not contemplate multiple thirty day periods after each and every order entered by the trial court." While motions for new trial appear to be limited to judgments on the merits (i.e. "reexamination . . . after a verdict by a jury, the approval of the report of a referee, or a decision by the court,"

¶7 In addition, prior to the enactment of § 1031.1, Oklahoma law recognized that a trial court's decision concerning a motion for new trial could be reconsidered by a motion to vacate filed within the same term of court as the decision on the motion for new trial was entered. Phillips Petroleum Co. v. Davis,

¶8 In the case at hand, we hold the trial court's order of August 22, 2003, denying plaintiffs' motion for new trial is the type of judgment that the trial court could properly reconsider and vacate under § 1031.1. We also hold the trial court could properly decide the motion to vacate even though plaintiffs had also appealed the denial of their motion for new trial.


¶9 Defendants point out that the trial judge ruled on plaintiffs' motion to vacate before ruling on plaintiffs' motion to disqualify the trial judge. Defendants contended the trial court "exceeded its jurisdiction" in doing so. Defendants note that the Oklahoma Supreme Court has said "[a] challenge to an assigned judge for want of impartiality presents an issue of constitutional dimension which must be resolved and the ruling memorialized of record after a meaningful evidentiary hearing." Clark,

¶10 If that pronouncement were all that the Oklahoma Supreme Court had said on this subject, this directive might be entitled to the literal force that defendants contend it should be given. However, the Supreme Court also observed that "[w]ant of a record ruling upon this critical issue subjects the moving party to a trial before a judge whose challenged impartiality goes untested." Id. (emphasis in bold added). The Supreme Court further stated that "[t]he challenger is hence entitled to a new trial [in such cases]." Id. (emphasis in bold added).

¶11 If a trial judge enters a ruling without disposing of a motion to disqualify, the party aggrieved by such a ruling is the party seeking the disqualification. It is that party's constitutional right that is affected and that party who is entitled to seek a remedy. The limitation upon the trial court proceeding in the face of an unresolved motion to disqualify is a procedural safeguard, not a jurisdictional bar.

¶12 As plaintiffs point out in their brief on appeal, "the judgment of a court rendered by a disqualified judge is not void [for want of jurisdiction] but voidable error, and the right [of a party] to disqualify the judge is a personal privilege [i.e. procedural safeguard] that may be waived." Pierce v. Pierce,


¶13 Defendants also contend the trial court erred in granting plaintiffs' motion for new trial by allowing individual jurors to impeach the jury verdict. Defendants alternatively contend that even if the trial court properly allowed testimony from certain jurors about one juror's internet research, the evidence concerning this research did not show misconduct that would justify granting a new trial.

¶14 While Oklahoma law does not allow for evidentiary hearings to generally inquire about juror conduct and deliberations, it does allow inquiry into "whether extraneous prejudicial information was improperly brought to the jury's attention." By statute, "a juror may testify on [this] question."

¶15 Defendants cite case law from both Oklahoma and other jurisdictions to support their contention that internet research by a juror does not constitute misconduct. We decline to consider the case law from other jurisdictions on this issue, because Oklahoma law provides clear principles and adequate guidance for deciding this issue.

¶16 The Oklahoma Supreme Court has consistently upheld the grant of a new trial where jurors have considered information from sources other than the testimony and exhibits admitted at trial. Negrate v. Gunter,

¶17 In the case at hand, Juror Fisher admitted that she did internet research concerning the procedure for a myelogram, medications taken by plaintiff Lisa Thompson, and to help her understand what all the medical experts were saying. As a nurse, Juror Fisher indicated she had nursing care plans concerning the care of a patient with spinal cord injury and that she referred to those plans. Juror Fisher indicated she did not think she communicated any information to other jurors about Ms. Thompson's medications, or information from her nursing care plans. She did discuss some information about the risks of a myelogram as it related to the consent form signed by Ms. Thompson. Juror Fisher acknowledged that she found a case on the internet that was similar to plaintiffs' case, but stated she did not communicate that finding to other jurors. Juror Fisher admitted she used the information she had researched in her own deliberation process.

¶18 Three jurors testified that Juror Fisher made a statement that she had found a case on the internet similar to plaintiffs' case. Two jurors related the statement was made in response to another juror's observation that plaintiffs' case was the only case where myelogram dye had been mistakenly injected into the conus of the spinal cord. These jurors were not sure how many other jurors heard Juror Fisher's statement. The juror whose observation allegedly evoked Juror Fisher's statement testified that Juror Fisher mentioned finding a similar case from internet research at the start of deliberations and that it was made to the jurors as a whole.

¶19 While there is a conflict in the evidence about the dissemination of Juror Fisher's internet research, it is undisputed that she did such research and she considered it in her deliberations. In addition, there is no doubt that one of the findings of Juror Fisher's out-of-court research had a direct bearing upon a key issue in plaintiffs' theory and proof of negligence.

¶20 It has long been recognized that "[w]here a motion for new trial is filed assigning as one of the grounds therefor misconduct of a juror and at a hearing on said motion, at which evidence is introduced, questions of fact are raised as to whether the juror was guilty of such misconduct, the finding of the trial court on such question of fact will not be disturbed [on appeal] where there is evidence reasonably supporting such finding." Harris v. Boggess,

¶21 "It is the duty of the trial court to safeguard the rights of litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred." Negrate, 1955 OK

118, ¶ 0,

¶22 In the case under review, defendants have not shown beyond all reasonable doubt that the trial court materially and manifestly erred on a pure and unmixed question of law, or acted arbitrarily or capriciously. Indeed, the trial court showed appropriate concern for and properly inquired into a juror's consideration of matters bearing on an issue to be determined that did not come through the critical eye of the trial judge and the evidentiary filter of trial.

¶23 We hold the trial judge did not err or abuse his discretion in granting plaintiffs' motion for new trial. Accordingly, the order granting the new trial is AFFIRMED.

RAPP, V.C.J., and GABBARD, P.J., concur.


1 Now found at 12 O.S.2001, ch. 15, app. 1.