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Gwin v. City of Humansville

Court of Appeals of Missouri, Southern District, Second Division

June 19, 2017

BLAKE GWIN, by and through his next friend, C.D. Gwin, Appellant,
v.
CITY OF HUMANSVILLE, MISSOURI, LEONARD WALBURN, RHONDA ROGERS and JOHN HENRY, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY Honorable James A. Hackett, Judge

          DANIEL E. SCOTT, J.

         Blake Gwin, age 4, visited a friend's home in Humansville. The boys were playing outside when a free-standing chimney, left from a fire four years earlier, collapsed and crushed them. Blake survived. He sued the city and several city officials, [1] lost at jury trial, and now appeals, charging juror misconduct and instructional error. We affirm the judgment, providing further background below as we address Gwin's three points.

         Point I - Intentional Juror Nondisclosure

         Background

         Sheila Day received, completed, and returned a juror questionnaire in the fall of 2015, answering #10 (hereafter "Question #10") as follows:

         Some five months later, Ms. Day was picked for the jury in this case, served as foreperson, and joined in the verdicts denying Gwin's claims.

         After trial, Gwin's counsel learned that Juror Day had a LLC under which she offered holistic health and wellness coaching services, and that she voiced negative views on social media about vaccinations, the pharmaceutical industry, and some aspects of traditional medical practice. Gwin's new-trial motion claimed intentional juror nondisclosure because Juror Day had not listed her coaching services on the jury questionnaire.

         After a hearing at which Juror Day testified, and without making specific fact findings, the trial court denied relief. Point I challenges this ruling and renews the charge that Juror Day intentionally refused to disclose her self-employment as a health and wellness coach when she answered Question #io.[2]

         Legal Principles

         "This Court will not disturb the trial court's ruling on a motion for a new trial based on juror nondisclosure unless the trial court abused its discretion, " which means the ruling was so clearly illogical, arbitrary, unreasonable, and ill-considered as to shock the sense of justice. Johnson v. McCullough, 306 S.W.3d 551, 555 (Mo. banc 2010). Typically, we would first consider whether Question #10 was sufficiently clear, and if so, then whether Juror Day's nondisclosure was intentional, which in turn determines whether we presume prejudice or Gwin must prove it. Id. at 557; Shields v. Freightliner of Joplin, 334 S.W.3d 685, 691-92 (Mo.App. 2011). Yet it is simpler here to bypass the first step (question clarity) and go straight to the second (intent).

         Analysis

         Because the court made no specific findings in denying the new-trial motion on this issue, we must deem all facts as having been found in accordance with the result, including that Juror Day's nondisclosure was neither intentional nor sufficiently prejudicial to warrant a new trial.[3] We find no abuse of discretion because the record supports both findings.

         Juror Day, the lone witness at the new-trial hearing, testified without contradiction that she didn't mean to deceive anyone. When she completed the juror questionnaire, she was working and earning money only as a CMH paramedic, which she listed. She had no wellness clients and no income as a ...


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