This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-95-2514

Joyce Ellen Peterson,
Appellant,

vs.

Kim Alan Garrett, et al.,
Respondents.

Filed July 23, 1996
Affirmed
Crippen, Judge

St. Louis County District Court
File No. C193600227

Tyrone P. Bujold, Mullen J. Dowdal, Robins, Kaplan, Miller & Ciresi, 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for Appellant)

A. Blake MacDonald, MacDonald & Downs, 200 Alworth Building, Duluth, MN 55802 (for Appellant)

Thomas R. Thibodeau, Jerome D. Feriancek, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, Duluth, MN 55802 (for Respondents)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Dissatisfied with her recovery in a personal injury action, appellant Joyce Peterson contends she is entitled to a new trial based on her use of a peremptory objection on a juror who might have been excused for cause if the facts known to the juror and respondents' counsel would have been fully disclosed during voir dire. We affirm.

FACTS

Before voir dire, appellant moved in limine to prohibit mention of a prior publicized incident that involved allegations of fault by her husband. The trial court granted the motion. One prospective juror was an attorney who had represented a person seeking a money judgment against appellant's husband in connection with the prior publicized incident. Relevant portions of the voir dire of the attorney are as follows:

Counsel for respondents, the driver and owner of a vehicle involved in a collision with appellant: Okay. Is there anything that you can think of which would make it fair -- or difficult for you to be fair or impartial to the parties in this case, the party only being -- the only Plaintiff here is Joyce Peterson and, on the other hand, you have Halvor Lines and Kim Garrett?

Attorney venireperson: Anything that I think would make it difficult for me to be --

Respondents' counsel: Fair to both sides, keeping in mind that the Plaintiff here is Joyce Peterson only and the other party -- parties are Kim Garrett and Halvor Lines, Inc.

Attorney: Um, I don't think I would have any difficulty being fair and impartial. I do know a bit about this case.

Respondents' counsel: Okay. All right. Is there anything about the case that you know of that would make you prejudge it in any way?

Attorney: I don't believe so. I -- what I know is -- is very peripheral.

Respondents' counsel: Okay. Would you follow your obligation to be a fair and impartial juror in this case as you are sworn by the Court to do?

Attorney: Yes.

In response to a later question, the attorney venireperson indicated that he knew appellant's husband and his brother, who was also involved in the publicized incident. Respondents' counsel then asked: "But the fact that they may be witnesses will not cause you to favor one side over the other, I take it?" The attorney venire member responded, "No."

One of appellant's lawyers then began examining the attorney venireperson.

Appellant's counsel: [Y]ou, as a lawyer, may have some familiarity with some peripheral aspects of this case. Is that a fair enough description of how you happen to know [appellant's] name?

Attorney: No.

Appellant's counsel: Oh. There are other -- but you do recognize the [appellant or her husband's] name?

Attorney: [Appellant's husband's name].

Appellant's Counsel: [Appellant's husband's name]. Is it in connection with some involvement that one of your partners may have had in some legal matters?

Attorney: No.

Appellant's counsel: Oh.

Attorney: Myself, personally.

Appellant's Counsel: Yourself, personally. All right.

Subsequently, appellant exercised a peremptory challenge to excuse the attorney from the jury that decided her case.

On the second day of trial, in a "chance encounter" with the excused attorney venireperson, one of appellant's lawyers learned that the attorney had represented a client seeking a recovery from appellant's husband in connection with the prior publicized incident and had received some documentation regarding appellant's husband's testimony in an earlier trial of this present litigation. During an in-chambers meeting, appellant's counsel maintained that this information should have been offered to the trial court by respondents' counsel or the attorney venireperson; appellant's counsel did not seek a mistrial.

Appellant's counsel then requested that the court examine "whether there were any communications between [the attorney venireperson] and his fellow jurors during the process of jury selection that might in some way have tainted them." The court asked the excused attorney, who was present at the in-chambers hearing, whether he communicated "with any of the other jury panel at all in regard to this matter?" The attorney responded that he had made two comments, including one comment to a bailiff expressing surprise that he had been listed on the panel for plaintiff's case because he had some knowledge of the case and one comment to a juror that it was unlikely that he would be on the jury because he was an attorney and because he knew something about the case.

During the in-chambers meeting, respondents' counsel acknowledged that he knew the attorney venireperson was involved in some respect in the publicized incident, but that he assumed during jury selection that the attorney had been working on the case as an assistant for a senior partner and that their pretrial contacts about appellant's case consisted of a discussion about the economic state of one of appellant's assets and a general conversation about appellant and her husband's finances. In addition, respondents' counsel stated that the attorney venireperson made available some documents after appellant's husband's case was settled and noted that during voir dire:

I didn't want to have anything stated so that [the attorney venireperson] would inadvertently say something about it [the publicized incident], because I had not talked with him before he was impaneled as a juror and I did not know that he would be called on this panel. And the fact that he was there was something -- since he was under oath, I knew that he was going to be telling the truth and that if he responded that he didn't think he could be fair, it's just the same as any other juror, in my opinion, and that's the way I took it.

Respondents' counsel also asserted that appellant's co-counsel, a Duluth attorney, and appellant's husband, both of whom were present at the trial during jury selection, knew of [the attorney venireperson's] involvement in the prior publicized incident. But appellant's co-counsel denied any knowledge, and appellant alleges there is no evidence that her husband knew of the attorney's involvement in the litigation surrounding the publicized incident. The trial court noted that appellant's co-counsel and appellant's husband were "obviously aware" of any previous connection of the attorney and the publicized incident.

At the end of trial, appellant's counsel moved to make the juror with whom the attorney venireperson spoke the alternate juror in place of the previously designated alternate juror. The trial court denied this motion. In its post-trial order memorandum, the trial court stated that "this was not the time to change the ruling" as to the identity of the alternate juror, an identity "previously agreed upon" by all parties. Further noting, A[p]laintiff's counsel could have struck [the alternate juror] but chose not to.@

After trial, appellant moved the trial court for an order granting her judgment notwithstanding the verdict or in the alternative, a new trial. The trial court denied appellant's motions, explaining that (1) respondents' counsel performed as he was bound to, (2) the voir dire and prejury selection discussion caused no taint of the jury itself, and (3) the appellant knew, or should have known, of the attorney venireperson's previous involvement in the prior publicized incident. Appellant now appeals from that order, requesting that this court grant her a new trial. Although appellant recovered a monetary judgment under the verdict, the amount of the recovery was less than the amount determined in a prior trial of the same case. [1]

D E C I S I O N

A trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. Foster v. Bergstrom, 515 N.W.2d 581, 588 (Minn. App. 1994) (citing Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981)). Appellant contends she is entitled to a new trial because respondents' counsel and the attorney venireperson had an obligation to disclose more information during jury selection. We observe initially that this is not the same situation as in Alholm v. Wilt, where a trial court=s failure to follow a rule of civil procedure deprived a party of a peremptory challenge and the right to know the composition of the jury prior to the presentation of evidence. 394 N.W.2d 488, 494 (Minn. 1986). Here there was no subversion of a rule of law, but the question of whether appellant lost a right because of the conduct of respondents' counsel and an attorney venire member. The examination of that claim required the trial court to consider prejudice, and we will defer to the trial court's judgment in the absence of an abuse of discretion. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).

We find little substantive support for appellant's claim. There are no precedents on prospective juror misconduct that support appellant's argument. Moreover, the Minnesota Supreme Court has held that attorney misconduct is not determinative if no prejudice resulted. It is important in this case that the attorney venireperson did not serve on the jury. See Moose v. Vesey, 225 Minn. 64, 68, 29 N.W.2d 649, 652 (1947) ("the question is not whether [the attorney's] conduct was improper, but whether, assuming (without deciding) that it was, plaintiff was prejudiced thereby"). We refrain from deciding substantive rights because we conclude the trial court properly found no prejudice here.

Appellant contends that she was prejudiced by the loss of a peremptory challenge, but we find no evidence to sustain that argument. First, appellant shows no occasion where she asked for an additional peremptory challenge, accepted a juror with reluctance, or identified, even in hindsight, a juror whom she wished to strike. Second, unlike Alholm, where the court controlled the issue, here the appellant's rights respecting the potential problem juror were not taken from her control. Appellant was alerted to the attorney venireperson's familiarity with the case by respondents' counsel but did not adequately follow up on it, even though there was ample opportunity to do so.

We also find no abuse of discretion concerning the trial court's rejection of appellant's motion to switch a juror with the predesignated alternate juror on the ground that the juror was tainted by two brief and nonspecific comments made to her by the attorney venireperson before trial. See Moose, 225 Minn. at 69, 29 N.W.2d at 653 (the decision to grant a mistrial for reasons of juror incompetency is within the trial court's discretion).

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]At the first trial, where appellant's husband also appeared as a plaintiff on a loss of consortium claim, the trial court directed a verdict in favor of the appellant and her husband on the issue of liability and the jury returned a special verdict form itemizing various kinds of damages. On its own post-trial motion, the trial court granted a new trial on the issue of damages.