Opinion
No. WD 63735, consolidated with WD 63771
November 1, 2005.
Appeal from the Circuit Court of Jackson County, The Honorable K. Preston Dean, II, Judge.
Before Victor C. Howard, P.J., James M. Smart, Jr., and Thomas H. Newton, JJ.
Walton Construction, Inc., appeals a jury verdict and award of damages in favor of MGM Masonry, Inc. Walton contends, inter alia, that it was reversible error for the court to refuse to poll the jury after verdicts on the parties' respective claims, and that it was prejudiced thereby because the verdicts were inconsistent. MGM appeals the trial court's denial of its post-trial motion for attorneys' fees and interest. We reverse and remand for a new trial.
Background
This case arises from a dispute over a construction contract entered into between Walton Construction Company, Inc. and MGM Masonry, Inc. In July 1999, Walton was hired as the general contractor for construction of a new Home Depot store in Kansas City. The project was to be constructed primarily of concrete masonry blocks. Walton subcontracted with MGM to perform the masonry work on the project. The original contract price for MGM's work was $1,257,800, to be paid in periodic installments. MGM began work on the project on August 2, 1999. The contract included various "completion dates" for different aspects of the work MGM was to perform. According to Walton, MGM failed to satisfactorily meet the contract completion dates. Beginning in October, Walton began claiming that MGM was failing to perform under the contract, and began withholding amounts due MGM under the contract. Ultimately, Walton withheld the sum of $242,384.
Walton filed a breach of contract lawsuit against MGM. The petition alleged that MGM's failure to perform according to the contract caused Walton to incur costs and expenses. Walton also alleged that MGM failed to protect and indemnify it from liens or claims from its suppliers, as required by the contract. Walton sought indemnification for over $90,000 in unpaid invoices from the material supplier. Walton also sought reimbursement for costs, expenses, and attorneys' fees, pursuant to the contract.
MGM brought a counterclaim against Walton, alleging that Walton had first breached the contract by failing to properly manage the project and by failing to make timely payments due it under the contract. MGM sought damages in excess of $350,000, consisting of the unpaid contract balance plus additional damages MGM claimed as a result of Walton's other breaches.
Proceedings at Trial
The case proceeded to trial before a jury in September 2003. Walton's position at trial was that MGM had breached the contract by failing to timely perform its work under the contract. Walton presented evidence that this failure caused it to incur additional costs and expenses in order to finish the project on time. Walton also presented evidence that it had satisfied $70,000 in supplier invoices and sought reimbursement from MGM for that.
MGM sought to prove at trial that Walton had breached the contract by withholding $242,384 in payments due under the contract and by mismanaging the project, which caused $92,898 in additional damages to MGM.
MGM presented evidence that Walton mismanaged the project by, inter alia, failing to properly coordinate the work at the construction site, allowing conflicts and interference with MGM's work, and inconsistently redirecting MGM's work. MGM claimed that Walton did not have sufficient footings available at the start of the project for MGM to install the material. MGM asserted that its delay in getting the colored blocks delivered was due in part to Walton's failure to provide MGM timely written confirmation of the contract, and in part to the contract's requirement that MGM use Midwest Block Brick as the supplier. MGM presented evidence of other failures by Walton, which need not be detailed here.
At the instruction conference, the parties proposed one set of instructions for Walton's claim against MGM and a separate set of instructions for MGM's counterclaim against Walton. The jury was given two separate verdict forms: Verdict A on Walton's claim against MGM, and Verdict B on MGM's counterclaim. Instruction 5 informed the jury: " Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it." (Emphasis added.)
The claims were submitted to the jury with the following pertinent instructions. On Walton's claim, the verdict director (which directed resolution on Verdict A) directed the jury:
Your verdict must be for plaintiff Walton Construction Company, Inc. [ ] if you believe:
First, Walton and defendant MGM Masonry, Inc. [ ] entered into an agreement whereby Walton and MGM agreed to perform their respective duties and obligations as described in subcontract documents for the Home Depot project, and
Second, Walton performed its agreement, and
Third, MGM failed to perform its agreement, and
Fourth, Walton was thereby damaged.
On MGM's counterclaim, the verdict director (which directed resolution on Verdict B) instructed the jury:
Your verdict must be for defendant MGM Masonry, Inc. [ ] if you believe:
First, MGM and plaintiff Walton Construction Company, Inc. [ ] entered into an agreement whereby MGM and Walton agreed to perform their respective duties and obligations as described in the subcontract documents for the Home Depot project, and
Second, MGM substantially performed its agreement, or was prevented from performing its agreement, and
Third, Walton failed to perform its agreement, and
Fourth, MGM was thereby damaged.
The jury found in favor of MGM on Walton's breach of contract claim (Verdict A). The jury also found in favor of MGM and against Walton on MGM's counterclaim (Verdict B), and assessed damages at "$242,384, plus interest, plus $12,030." Both verdict forms were signed by nine jurors. Juror James, the foreman, had signed verdict B in favor of MGM, but did not sign verdict A. Juror Shockley had signed verdict A, but not verdict B. The judge read the verdicts in open court within the hearing of the jury. He noted that verdict A was signed by nine jurors and stated that it appeared to be in proper form. He made the same statement with regard to verdict B.
Counsel for Walton requested that the jury be polled. The court refused, believing that the right to poll juries was applicable only in criminal cases. The judge then discharged the jury. After the jury was discharged, the judge, the attorneys, and the parties became aware that the two verdicts were not signed by the same nine jurors.
Walton moved for judgment notwithstanding the verdict or alternatively for new trial. The court denied the motion, concluding that the verdicts were not inconsistent, and that nothing would have been gained by polling the jury.
The judgment did not include an amount for interest or for attorneys' fees as MGM had requested under section 431.180. MGM filed a post-trial Motion to Amend Judgment to Include Interest and Attorney Fees. The trial court also denied that motion.
Judgment was entered in favor of MGM in the total amount of $254,414, with no award of attorney's fees or interest. Both parties appeal. The appeals have been consolidated.
Denial of Right to Poll
Walton argues on appeal that the court should have awarded it a new trial because the verdicts were inconsistent. Walton also argues that it had an absolute right to poll the jury and that the court erred in denying it that right. Because these assertions are interrelated, we will consider them together.
Each party has the right to poll the jury. Poulson v. Collier, 18 Mo. App. 583 (Mo.App. 1885). The procedural right to poll a jury has a purpose — and the right to poll is properly invoked whenever a party has a concern, even if based only on a hunch, that one or more jurors may not have actually intended or desired to vote as the verdict form indicates. The trial court's belief that there existed no authority to poll the jury in a civil case is not particularly unusual, given the fact that there is no statute or court rule addressing the polling of civil juries. However, the right to poll a civil jury has long existed in Missouri. See St. Louis County v. Pennington, 830 S.W.2d 553, 555 (Mo.App. 1992). Walton argues that it was reversible error for the court to refuse to poll the jury, with or without a showing of prejudice. Walton contends that a showing of prejudice should not be required, despite the apparent holding to that effect in Pennington, 830 S.W.2d at 555-56. Walton also argues, however, that even if prejudice is required for reversal, such prejudice is present here. Had the jury been polled, Walton says, it would have either demonstrated the inherent inconsistencies in the verdicts or it would have revealed that one or more of the jurors did not intend the result reached. MGM disagrees, saying there was no need for a poll because there was no inconsistency.
Juror Signatures
Three-fourths or more of a jury in a civil case must agree on the verdict, unless the parties agree otherwise. Mo. Const. art. I, § 22(a); § 494.490, RSMo 2000. All verdicts shall be signed by each juror who agrees to the verdict. § 494.490. The Missouri Approved Instructions also make clear this requirement. See MAI No. 2.04. Here, in verdict A, nine jurors professed to find in favor of MGM on Walton's claim. In verdict B, nine jurors also indicated a finding in favor of MGM. There is no facial inconsistency here. However, only eight of the jurors were the same on both verdicts. Juror Shockley signed verdict A, while juror James did not. Juror Shockley did not sign verdict B, while juror James did.
The Apparent Inconsistency
Shockley could have believed Walton did not prove its case, and could also have believed MGM did not prove its case. Therefore, we see no inconsistency in Shockley's respective votes. Juror James, on the other hand, who did not sign verdict A, is presumed to have believed that Walton proved its claim of breach against MGM; and yet, by signing verdict B, James agreed that MGM proved its claim of breach against Walton. This would appear to be inconsistent. In order to find in favor of Walton on its claim, he had to believe Walton did not breach the contract, while to find in favor of MGM on the counterclaim, he had to believe Walton did breach the contract. Hence, the apparent logical inconsistency exists with juror James. It cannot be said categorically that nine jurors (as opposed to merely eight) agreed with verdict B. It is not clear that nine jurors actually agreed both that Walton breached the contract and that MGM did not. Three-fourths of a jury in a civil case must agree on a verdict, unless the parties agree otherwise. MO. CONST. art. I, § 22(a); § 494.490. All verdicts shall be signed by each juror who agrees to the verdict. § 494.490.
"In any case upon the appearance of any uncertainty or contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt. . . ." State v. Thompson, 85 S.W.3d 635, 639 (Mo. banc 2002). An apparent inconsistency occurred in State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 954 (Mo.App. 1998). There the jury returned verdicts for plaintiffs against two defendants. Nine jurors signed the form indicating that each of the two defendants were liable, but only seven of the signatures applicable to the two defendants were the same. Id. at 954-55. Nine jurors also signed the form indicating their desire to award damages to the plaintiffs, but only seven of the signatures were the same as to the liability of both defendants and the awarding of damages. Id. at 955. The trial court accepted the verdicts. Id. Ultimately, this court held that the jury verdict was invalid, holding that it was necessary that the same nine jurors must agree on both liability and damages as to each defendant. Id. at 957.
In Boyer, the same nine had to agree on both liability and damages. In this case, logically, nine or more jurors had to agree both that Walton did breach the contract and that MGM did not. MGM argues that this case is different because nine jurors signed in favor of MGM on each of the separate claims. That is correct. However, we are not required to be oblivious to the signatures. It is by comparing the signatures on the two verdicts that the inconsistency emerges, just as the inconsistency emerged in Boyer when the signatures were compared. Here we have one case, with one contract, with a claim and a counterclaim clearly intertwined, and the same jury. It is not a matter of different contracts, or of claims tried to different juries at different times. We have one jury that reached results involving an apparently illogical inconsistency between claim and counterclaim.
MGM makes no argument, in an attempt to retain its verdict against Walton, that the inconsistency in signatures can be accounted for on the basis of different opinions about damages. Also, it is very clear from the record that there was no dispute at all about the fact of damage as to each claim.
If there had been a jury poll, juror James might have stated that he agreed with verdict A also, but did not sign verdict A in the jury room because, after seeing that there were nine others who signed, and knowing that nine was sufficient for a verdict, he simply forgot about the specific instruction that all who agree with a verdict must sign. If that is what happened, and if such explanation had emerged pursuant to a poll of the jury, the court and the parties could have seen that the apparent inconsistency was not in fact an inconsistency because there were in fact nine votes for verdict B. That shows, of course, the significance of Walton's request to poll the jury. To the extent there was an apparent inconsistency, it could have been clarified at any time before the jury was discharged. "The trial court can resolve inconsistencies or ambiguities by returning the jury to further deliberations or by polling the jury." State v. Thompson, 85 S.W.3d 635, 639 (Mo. banc 2002).
Because all who agree must sign, the proper way to poll the jury is to ask each juror about his or her vote, not merely the ones who signed the verdict form.
Because we do not know the real reason for the apparent inconsistency, there is substantial doubt about the validity of the verdict. The failure to poll the jury eliminated the court's ability to address the apparent inconsistency. Thus, we conclude that the failure to poll the jury in this case leaves us with a verdict of doubtful legitimacy. We need not determine whether we agree with Walton's argument that a failure to poll the jury upon request is per se reversible error in a civil case. In this case, because it is reasonable to believe that a jury poll would have addressed the apparent inconsistency, and because the court did have authority to poll the jury, we believe we must reverse the judgment and remand the case.
We reverse the judgment and remand the case for a new trial. As for the other contentions of error raised by the parties, to the extent that any of them may recur on retrial, we refer the parties to the briefs filed on appeal.
Newton and Howard, JJ., concur.