June 22 2010
DA 09-0632
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 138
DEREK STEBNER and STEBNER REAL
ESTATE, INC., a Washington corporation,
Plaintiffs and Appellants,
v.
ASSOCIATED MATERIALS, INC. (AMI) d/b/a ALSIDE,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 05-571
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Perry J. Schneider; Milodragovich, Dale, Steinbrenner & Nygren; Missoula,
Montana
For Appellee:
Paul Sharkey and Mitch Vap; Phillips Law Firm; Missoula, Montana
Submitted on Briefs: May 12, 2010
Decided: June 22, 2010
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 A jury in the Fourth Judicial District Court, Missoula County, found that Associated
Materials, Inc. (Alside) did not breach its warranty to Derek Stebner and Stebner Real Estate,
Inc. (Stebner). After the trial, Stebner filed a motion for a new trial, pursuant to M. R. Civ.
P. 59, claiming juror misconduct. The District Court denied Stebner’s motion.
¶2 The sole issue Stebner raises on appeal is whether the District Court erred in
concluding that the alleged jurors’ misconduct did not warrant a new trial.
BACKGROUND
¶3 Stebner, the owner of Riverside Apartment Complex, brought a breach of warranty
action against Alside. Stebner had made a claim for replacement of the apartment complex’s
steel siding under the Limited Warranty. Alside denied his claim because, according to
Alside, the damage to the siding was not covered under the warranty.
¶4 A jury trial was held from September 15, 2009, to September 18, 2009. After hearing
the evidence, the jury began deliberations at approximately 4:00 p.m. on September 17.
Before any deliberations, five jurors voted in favor of Alside, six voted in favor of Stebner,
with one abstention. After about an hour of deliberations, the jurors voted six in favor of
Stebner and six in favor of Alside. The jury was excused at 5:00 p.m. to allow one juror to
pick up a child.
¶5 The jury reconvened at 8:30 a.m. the next day. Within five minutes, they voted
eleven to one in favor of Alside and delivered the verdict accordingly. After the verdict,
Stebner learned from a juror that some of the jurors were allegedly talking about the case
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outside of the jury room and that one juror had researched the definition of “preponderance”
on the internet.
¶6 Stebner filed a motion for a new trial, arguing that a new trial was warranted to avoid
manifest injustice due to juror misconduct. Stebner attached the affidavit of Juror Christine
Strukel to his motion, in which Juror Strukel testified she heard three jurors discussing the
case as they were walking outside of the courthouse. She said the jurors stopped discussing
the case when they saw she was listening to the conversation. Juror Strukel also testified in
her affidavit that “[d]uring the course of deliberations, the jury used an outside resource to
help determine the definition of the term ‘preponderance.’”
¶7 Alside attached three juror affidavits to their response brief. In the first affidavit,
Juror Laurie Schneider testified that “[a]fter we took our vote, I commented that I thought
the verdict was correct based on my understanding of ‘preponderance.’ I previously looked
up the word ‘preponderance’ on the internet. My understanding of ‘preponderance’ matched
the jury instruction that was submitted to us.” She also testified that she based her decision
on the evidence presented at trial and that she voted in favor of Alside because the evidence
submitted during the trial did not support a verdict in favor of Stebner.
¶8 The other two jurors testified in their affidavits that Juror Schneider made her
comment about her research on “preponderance” after they voted in favor of Alside and her
comment had no effect on their decision. They also testified that they based their decision
on the evidence presented at trial and they voted in favor of Alside because the evidence
submitted during the trial did not support a verdict in favor of Stebner.
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¶9 The District Court denied Stebner’s motion, stating simply that it did so “under the
reasoning of [Erickson v. Perrett, 175 Mont. 87, 572 P.2d 518 (1977)], which requires [that]
the alleged jury misconduct must affect a material matter that is in dispute and must
prejudice the complaining party sufficiently enough to render the jury’s verdict manifestly
unjust to warrant the granting of a new trial.”
¶10 Stebner appeals, reiterating his argument that the only remedy to cure the juror
misconduct and to “uphold the sanctity of the judicial process” is to reverse the District
Court and order a new trial.
STANDARD OF REVIEW
¶11 Our standard of review of a district court’s denial of a motion for a new trial depends
on the basis of the motion. Fish v. Harris, 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238.
When the basis of a motion for a new trial is alleged jury misconduct, this Court will not
disturb a district court’s decision absent a manifest abuse of discretion. Id. A manifest abuse
of discretion is one that is obvious, evident, or unmistakable. Shammel v. Canyon
Resources, Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912. “We will give
considerable weight to the determination of the district court because it is in the best position
to observe the jurors and determine the potential for prejudice when allegations of jury or
bailiff misconduct are raised, and the district court will have significant latitude when ruling
on these matters.” Allers v. Riley, 273 Mont. 1, 4, 901 P.2d 600, 602 (1995).
DISCUSSION
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¶12 Did the District Court err in concluding that the jurors’ misconduct did not warrant a
new trial?
¶13 Stebner contends that M. R. Civ. P. 59(a), (g), and § 25-11-102(2), MCA, allow a
district court to grant a new trial for juror misconduct to prevent manifest injustice.1 He
claims that because Juror Schneider used outside resources during the course of
deliberations, he did not receive a fair trial. According to Stebner, the evidence proving he
was prejudiced are the allegations in Juror Strukel’s affidavit and that six jurors voted in
favor of him on the first day of deliberations and then, the next morning, voted eleven to one
in favor of Alside “without further deliberation other than a report on the Juror’s independent
research.” Stebner contends that this evidence proves he was prejudiced by the juror’s
internet research and the jurors’ discussions outside the courthouse. Stebner argues that the
District Court manifestly abused its discretion when it denied his motion for a new trial.
¶14 Alside contends that because internal influences of a jury cannot be used to impeach a
jury verdict under M. R. Evid. 606(b), Juror Schneider’s comment regarding her internet
research cannot be considered. Alside argues that the information was internal, as opposed
to external, because no hardcopy was brought into the jury room, because Juror Schneider
based her comments on her own subjective understanding of the term “preponderance,” and
because Juror Schneider’s internet definition matched the court’s jury instruction.
1
Stebner extensively discusses Rule 59(g), motion to alter or amend a judgment, and the supporting
precedent in his briefs in the District Court and this Court. However, his motion in the District Court
was for a new trial, which is governed by Rule 59(a), and not a motion to amend the judgment. We
therefore decline to address Stebner’s arguments regarding Rule 59(g).
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Alternatively, Alside argues that Stebner has failed to show he was prejudiced by both
instances of the alleged juror misconduct.
¶15 M. R. Civ. P. 59(a) allows the court to grant a new trial on “all or part of the issues for
any of the reasons provided by the statutes of the state of Montana.” Section 25-11-102(2),
MCA, provides that a new trial may be granted for misconduct of the jury. Not every act of
jury misconduct mandates a new trial. The alleged jury misconduct must affect a material
matter that is in dispute and must prejudice the complaining party sufficiently enough to
render the jury’s verdict manifestly unjust. Erickson, 175 Mont. at 91, 572 P.2d at 520.
¶16 Juror misconduct may be proven by the affidavit of any one of the jurors. Section 25-
11-102(2), MCA. M. R. Evid. 606(b) governs the use of juror testimony and affidavits to
inquire into the validity of a jury verdict and generally prohibits juror affidavits from being
used if they concern any matter or statement made during deliberations. In other words,
juror affidavits may not be used to impeach the verdict based upon internal influences on the
jury. Harry v. Elderkin, 196 Mont. 1, 8, 637 P.2d 809, 813 (1981). “Jurors are expected to
bring to the courtroom their own knowledge and experience to aid in their resolution of the
case.” State v. Kelman, 276 Mont. 253, 262, 915 P.2d 854, 860 (1996). Some examples of
internal influences are: a juror commenting to the other jurors about one of the plaintiff’s
witnesses, McGillen v Plum Creek Timber Co., 1998 MT 193, ¶ 16, 290 Mont. 264, 964 P.2d
18; a juror’s comment that she knew the defendant owned a strip bar with a bad reputation,
Kelman, 276 Mont. at 261, 915 P.2d at 859; and a juror’s report to the other jurors about
observations he made while on a lunch break, Williams Feed, Inc. v. Dept. of Transp., 2007
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MT 79, ¶ 25, 336 Mont. 493, 155 P.3d 1228, overruled on other grounds, Giambra v.
Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134. In all of these cases, we held that the
influence on the jury was internal, thus, the juror’s affidavit could not be used to impeach the
jury verdict. Williams Feed, ¶ 30; McGillen, ¶ 22; Kelman, 276 Mont. at 262-63, 915 P.2d at
860.
¶17 However, a juror affidavit may be used to impeach the verdict if it involves any
matter concerning, inter alia, whether extraneous prejudicial information was improperly
brought to the jury’s attention. M. R. Evid. 606(b). Where extraneous prejudicial
information is brought to the jury’s attention, “juror affidavits can be the basis for
overturning the judgment if either party was thereby deprived of a fair trial.” Harry, 196
Mont. at 8, 637 P.2d at 813. A rebuttable presumption of prejudice exists when jury
misconduct stems from extraneous influence; however, the presumption is not absolute and
the misconduct must show a “natural tendency” to prejudice. Allers, 273 Mont. at 8, 901
P.2d at 605.
¶18 In Allers, a bailiff brought a dictionary into the jury room at a juror’s request. The
dictionary definition of “proximate cause” differed from the court’s jury instruction in that it
did not include the element of foreseeability. Allers, 273 Mont. at 2-3, 901 P.2d at 601. We
said that because “the jury used extraneous materials—two dictionaries—to redefine a
critical element of this negligence case . . . Riley’s substantial rights were compromised
along with his constitutional right to a fair trial.” Allers, 273 Mont. at 8, 901 P.2d at 605.
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¶19 In Brockie v. Omo Constr., 255 Mont. 495, 500, 844 P.2d 61, 61 (1992), the jury
foreperson went to the library and conducted research on a theory of physics in hopes of
clarifying an expert’s testimony. While the foreperson’s affidavit stated he did not mention
his research during deliberations, two other juror affidavits stated that he did mention his
research to the other jurors. Id. We held that the district court abused its discretion when it
denied Brockie’s motion for a new trial because the foreperson’s actions constituted
misconduct that prejudiced Brockie. Id.
¶20 Here, Juror Schneider’s actions are more like the jurors’ actions in Allers and Brockie;
thus, we conclude that her internet research constituted an external influence. Because her
affidavit concerns whether extraneous prejudicial information was improperly brought to a
jury’s attention, we may use her affidavit to determine if the jury’s verdict should be
impeached. See M. R. Evid. 606(b). Keeping in mind the presumption of prejudice that
arises when juror misconduct stems from an external influence, we must now determine
whether Stebner was prejudiced sufficiently enough to render the jury’s verdict manifestly
unjust. See Erickson, 175 Mont. at 91, 572 P.2d at 520.
¶21 We agree with Alside that Stebner was not prejudiced by Juror Schneider’s comment
regarding her research and subsequent understanding of the term “preponderance.” The
comment did not affect the verdict because the jurors had already voted eleven to one in
favor of Alside when the comment was made. Also, two jurors testified that they based their
vote on the evidence, not on Juror Schneider’s comment. Three jurors testified that they
based their vote on the evidence presented at trial. Moreover, no new information was
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presented on the definition of “preponderance.” See Erickson, 175 Mont. at 92, 572 P.2d at
520 (holding no prejudice occurred because no new information was presented on the
material matter in dispute). According to the affidavits, the internet definition matched the
jury instruction. The presumption of prejudice is rebutted by the evidence in the record.
¶22 In addition, Stebner was not prejudiced by the extraneous juror discussions. Without
passing judgment on the truthfulness of Juror Strukel’s testimony regarding jurors discussing
the case outside of the courthouse, we must consider that three other jurors contradicted her
testimony. Nothing in the affidavits show that any juror’s vote was influenced by anything
other than the evidence presented at trial. Stebner fails to show how the jurors’ discussions
prejudiced him. That some jurors changed their minds overnight is not, by itself, evidence of
prejudice.
¶23 The District Court concluded that the alleged juror misconduct did not prejudice
Stebner sufficiently enough to render the jury’s verdict manifestly unjust to warrant the
granting of a new trial, and we give considerable weight to the District Court’s
determination. The District Court did not manifestly abuse its discretion when it denied
Stebner’s motion for a new trial.
¶24 While we hold that Stebner was not prejudiced by the juror conducting internet
research in this case, we recognize that this issue is an emerging and increasing problem that
we need to make every effort to thwart. Therefore, we encourage district courts to include
and emphasize a prohibition on internet research in their cautionary instructions to the jury if
they have not already done so.
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CONCLUSION
¶25 The District Court did not manifestly abuse its discretion when it denied Stebner’s
motion for a new trial.
¶26 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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