ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael L. Hanley Matthew J. Jankowski
Daniel J. Paul Smith, Maley & Douglas
Vernon J. Petri & Associates Indianapolis, Indiana
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
BRIAN S. TINCHER, )
Plaintiff-Appellant, )
)
v. ) 49S05-0011-CV-00719
)
BRIAN S. DAVIDSON, )
Defendant-Appellee. )
)
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester, Judge
Cause No. 49D01-9502-CT-0190
________________________________________________
On Petition To Transfer
February 19, 2002
DICKSON, Justice
In this comparative fault case, the trial court declared a mistrial
due to repeated calculation inconsistencies in the verdict forms returned
by the jury. The plaintiff appealed, alleging that the trial court erred
by failing to enter judgment on the jury's general verdict and by declaring
a mistrial. The Court of Appeals affirmed, Tincher v. Davidson, 731 N.E.2d
485 (Ind. Ct. App. 2000), and we granted transfer, 741 N.E.2d 1259 (Ind.
2000) (table).
When the jury was sent to deliberate in this case, the trial court
provided it with alternative general verdict forms A and B, Form A finding
for the plaintiff and Form B finding for the defendant. In addition, the
jury was given a "General Comparative Fault Verdict Form" (hereinafter
"calculation form"), which explained the comparative fault calculation
method and guided the calculation by providing blanks for the percentage of
fault of each party, the amount of total damages found, and the
multiplication of the total damages times the defendant's fault to
determine the plaintiff's recovery.
The jury twice attempted to return a final verdict. The jury first
returned Verdict Form A finding for the plaintiff and against the defendant
and assessing the plaintiff's damages in the sum of "ONE HUNDRED FIFTY
THOUSAND dollars, ($150,000)," Record at 221, along with the completed
calculation form indicating the defendant's fault percentage to be "100 %,"
the plaintiff's fault percentage to be "0 %," the plaintiff's total damages
to be "$1500.00," and the calculation showing total damages of "$1500"
times the fault charged to the defendant of "100 %," resulting in the
plaintiff's recovery of "$150000," id. at 219-20. The trial court[1] noted
the inconsistency, conferred with counsel, and then informed the jury as
follows:
There was some inconsistency in the verdict forms and it's difficult
to determine what the jury intended. We're going to give you new
verdict forms, ask that you go back, read the forms, and reconsider,
and that's what we're going to ask you to do. And so we will give you
new verdict forms and ask you to go ahead and [read] through the
verdict forms. After re-reading them, decide what the verdict was
intended to be, and how it was arrived at. That's the only
communication I can have with you.
Record at 792-93. After further deliberations, the jury again returned a
general verdict of $150,000 but revised its calculation form to indicate
the plaintiff's total damages of $75,000, times the 100% fault allocated to
the defendant, resulted in a plaintiff's recovery of $150,000. The judge,
finding that the numbers on the jury calculation form "don't work," granted
the defendant's motion for a mistrial. Record at 799-800.
We first observe that this and similar jury difficulties present
difficult challenges for trial courts, particularly when the jury is not
deadlocked but has reached a unanimous resolution. Here, when the first
verdict was returned, the trial court, after consulting with counsel, chose
to direct further deliberations and told the jury that its verdict and
calculation form were inconsistent and that it should re-read and complete
a new set of verdict and calculation forms. The court apparently believed
that it was limited either to this communication, or to declare a mistrial
and discharge of the jury. To the contrary, we would encourage trial
courts to employ other and creative approaches to assist and enable juries
to resolve difficulties. Justice O'Connor makes the point clearly:
As we approach the 21st century, however, we need to make sure we do
not remain so wedded to practices hailing from the 20th, or the 18th,
or the 13th, that we make it difficult for juries to do their job
well. It is my hope that everyone concerned with the proper
functioning of our justice system will take this issue seriously, to
think hard about ways in which juries can be made to work better, and
not to fear change simply because it is different.
Sandra Day O'Connor, Juries: They May Be Broken, But We Can Fix Them, Fed.
Law., June 1997, at 25.
Trial courts are required to respond to jury inquiries "as to any
point of law arising in the case." Ind.Code § 34-36-1-6. In addition, our
new Indiana Jury Rule 28 urges that trial judges facilitate and assist
jurors in the deliberative process, in order to avoid mistrials.[2] Under
appropriate circumstances, and with advance consultation with the parties
and an opportunity to voice objections, a trial court may, for example,
directly seek further information or clarification from the jury regarding
its concerns, may directly answer the jury's question (either with or
without directing the jury to reread the other instructions), may allow
counsel to briefly address the jury's question in short supplemental
arguments to the jury, or may employ other approaches or a combination
thereof.
The plaintiff contends that the mathematical discrepancy is of no
effect as the general verdict controls. Noting that special verdicts and
jury interrogatories have long been abolished by Indiana Trial Rule 49, the
plaintiff argues that information outside the general verdict cannot be
used to impeach the verdict and that the extraneous information should be
disregarded leaving a consistent judgment.[3] The defendant urges that the
trial court's discretionary grant of a mistrial was proper because the
persistent differences between the jury's general verdict and its
computation form constituted an inconsistent verdict that amounted to a
logical absurdity.
We acknowledge a facial tension between Trial Rule 49 and the
Comparative Fault Act. The rule unequivocally declares: "Special verdicts
and interrogatories to the jury are abolished." T.R. 49. This rule
reflects our profound respect for the right to trial by jury and the
collective judgment of each jury. As Judge Kirsch noted, "By abolishing
such special verdicts and interrogatories, the Court placed its faith in
juries to reach correct decisions." Bob Schwartz Ford, Inc. v. Dunham, 631
N.E.2d 953, 958 (Ind. Ct. App. 1994)(Kirsch, J., concurring). Furthermore,
we have repeatedly stated that "we will not attempt to interpret the
thought process of the jury in arriving at its verdict." Mitchell v.
State, 726 N.E.2d 1228, 1239 (Ind. 2000); see also Jones v. State, 689
N.E.2d 722, 724 (Ind. 1997); Hoskins v. State, 563 N.E.2d 571, 577 (Ind.
1990); Hicks v. State, 426 N.E.2d 411, 414 (Ind. 1990). With the adoption
of Trial Rule 49 over thirty years ago, we curtailed the practice of asking
juries to disclose the basis for their verdicts.
In contrast to the rule's prohibition of special verdicts and jury
interrogatories, however, the Comparative Fault Act states:
The court shall furnish to the jury forms of verdicts that require
only the disclosure of:
(1) the percentage of fault charged against each party and
nonparty; and
(2) the amount of the verdict against each defendant.
If the evidence in the action is sufficient to support the charging of
fault to a nonparty, the form of verdict also shall require a
disclosure of the name of the nonparty and the percentage of fault
charged to the nonparty.
Ind.Code § 34-51-2-11.
The plaintiff argues that when legislative enactments regarding court
procedure are incompatible with the Indiana Trial Rules promulgated by this
Court, the latter controls. See State ex rel. Crawford v. Delaware Cir.
Ct., 655 N.E.2d 499, 500 (Ind. 1995). Whenever possible, however, we
prefer to construe statutory provisions in such a manner as to permit their
application consistent with our procedural rules.
In State Highway Dep't v. Snyder, 594 N.E.2d 783 (Ind. 1992), we
addressed the apparent tension between Rule 49 and the Act, holding that
the "several verdict forms" required under the Comparative Fault Act were
"an attempt by the legislature to prescribe a procedure by which the jury
might be guided through the process of determining fault and assessing
damages," but that "we will not consider such verdict forms to be special
verdicts or interrogatories." Id. at 786. Notwithstanding the jury
computation finding the plaintiff Snyder more than fifty per cent at fault
with respect to his Comparative Fault Act claim against defendant Parker,
we rejected the State's claim of inconsistency as to the general verdict
for Snyder in his common law contributory negligence claim against the
State.[4] By thus construing the statutorily required jury calculation
"verdict forms" as a guide to the procedure for determining a verdict,
rather than a special verdict or jury interrogatory, we avoided a conflict
between the statute and the rule.
Applying Snyder, the Court of Appeals in Buckland v. Reed, 629 N.E.2d
1241 (Ind. Ct. App. 1994), reviewed jury comparative fault instruction
sheets that were inconsistent with its general verdict and held that the
jury's general verdict "may not be impeached by the calculation sheet."
Id. at 1244. Four years after Buckland, the legislature amended the
Comparative Fault Act to equip trial courts to assist juries in resolving
inconsistencies between a jury's verdict and its determination of total
damages and the percentage of fault:
[W]henever a jury returns verdicts in which the ultimate amounts
awarded are inconsistent with its determinations of total damages and
percentages of fault, the trial court shall:
(1) inform the jury of such inconsistencies;
(2) order the jury to resume deliberations to correct the
inconsistencies; and
(3) instruct the jury that the jury is at liberty to change any
portion or portions of the verdicts to correct the
inconsistencies.
Ind.Code § 34-51-2-13. While trial courts must at least take these steps
in the event of such inconsistencies, this statute does not supersede and
limit the available alternatives. As discussed above, trial courts should
facilitate and assist jurors in the deliberative process in order to avoid
mistrials.
Declaration of a mistrial is generally within the discretion of the
trial court. Ward v. St. Mary Medical Center of Gary, 658 N.E.2d 893, 895
(Ind. 1995); see also Steele v. State, 672 N.E.2d 1348, 1350 (Ind. 1996).
When it is apparent to the trial court that a jury cannot agree upon a
verdict after ample time for deliberation, there exists good cause to
discharge the jury. Menifee v. State, 512 N.E.2d 142, 143 (Ind. 1987);
State v. Larimore, 173 Ind. 452, 453, 90 N.E. 898, 899 (1910); see also
Ind.Code § 34-36-1-7(4). The Law indulges every reasonable presumption in
favor of the legality of jury verdicts, and corrective action should only
be taken when the verdict or verdicts are "inconsistent because [of] a
logical or legal impossibility." Indianapolis Newspapers, Inc. v. Fields,
259 N.E.2d 651, 668 (Ind. 1970). Moreover, mistrial is "an extreme remedy
invoked only when no other measure can rectify the perilous situation."
Kavanaugh v. State, 695 N.E.2d 629, 632 (Ind. Ct. App. 1998).
In the present case, the jury first returned a general verdict
accompanied by the calculation form that was internally inconsistent. The
trial court then generally informed the jury that there was an
inconsistency, directed it to reconsider, and provided it with new
calculation and verdict forms to guide and record its determination. There
was no objection to this instruction and it was in substantial compliance
with Indiana Code § 34-51-2-13. After further deliberations, the jury
returned a new general verdict in the same amount, $150,000.00, as its
first general verdict. This second verdict was accompanied with a new
calculation form that contained a mathematical calculation error but, like
its first calculation form, reported that the jury determined that the
defendant was 100% at fault and that the "Plaintiff's recovery" was to be
$150,000.00. To the extent that there was any residual inconsistency
between the second general verdict and its accompanying calculation form,
we hold that trial court may have, but was not required, to make further
attempts pursuant to Indiana Code § 34-51-2-13, or otherwise, to assist the
jury in achieving complete consistency. The general verdict expressed the
jurors' unanimous intent to award a judgment of $150,000.00 to the
plaintiff.
The verdict itself was not internally inconsistent, illogical, or
impossible. In accordance with Snyder and Buckland, the general verdict
should not have been impeached by the calculation form. We conclude that
the trial court erred in declaring a mistrial.
We remand this case to vacate the order granting a mistrial and to
enter judgment on the jury's general verdict for the plaintiff in the
amount of $150,000.00.
SHEPARD, C.J. and BOEHM, J., concur. SULLIVAN, J., concurs in result
with separate opinion in which RUCKER, J., concurs.
Attorneys for Appellant
Michael L. Hanley
Daniel J. Paul
Vernon J. Petri & Associates
Indianapolis, IN
Attorney for Appellee
Matthew J. Jankowski
Smith, Maley & Douglas
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
BRIAN S. TINCHER,
Appellant (Defendant below),
v.
BRIAN S. DAVIDSON,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S05-0011-CV-00719
)
)
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester, Judge
Cause No. 49D01-9502-CT-0190
ON PETITION TO TRANSFER
SULLIVAN, Justice, concurring in result.
I agree that the jury’s general verdict here should not have been
impeached by the calculation form and, as such, judgment should be entered
for the plaintiff in the amount of $150,000.
I write to express my opposition to the majority’s “urg[ing]” trial
court judges “to facilitate and assist jurors in the deliberative process,
in order to avoid mistrials.” I do not think it proper, advisable, or
(perhaps) constitutional for judges to “facilitate and assist” in jury
deliberations absent the consent of the parties.
I acknowledge that the majority’s view reflects the spirit of our new
Jury Rule 28. As the majority’s opinion reflects, Jury Rule 28 (adopted
over Justice Rucker’s and my dissent and over the contrary unanimous
recommendation of our Supreme Court Committee on Rules of Practice and
Procedure) is grounded in a goal of improved efficiency – a desire to avoid
mistrials. Certainly we should strive for improved efficiency. But I
believe that the prejudice to the parties and our system of trial by jury
of allowing – indeed “urg[ing]” – judges “to facilitate and assist” in jury
deliberations outweighs any benefits of improved efficiency in this regard.
RUCKER, J., concurs.
-----------------------
[1] The Court of Appeals noted in its decision:
The following events occurred toward the close of this trial:
while Judge Jester presided over the majority of the two-day
trial, he took ill shortly before closing arguments, and Master
Commissioner S.K. Reid was appointed to preside over the
remainder of the trial. Commissioner Reid instructed the jury
and answered the questions they submitted during their
deliberation, but was required to leave the proceedings
temporarily. Master Commissioner Ted Robinette was appointed to
receive the first jury verdict in Commissioner Reid's absence;
Commissioner Robinette returned the jury for reconsideration and
further deliberations after receiving the first inconsistent
verdict. Commissioner Reid returned during these deliberations,
addressed the jury's questions, received the second inconsistent
verdict, and ultimately discharged the jury and declared a
mistrial. Judge Jester presided over the hearing on the motion
to correct error.
Tincher, 731 N.E.2d at 486 n.2.
[2] The Indiana Jury Rules were adopted December 21, 2001, to be
effective January 1, 2003. We see no reason, however, to postpone
utilization of its discretionary reforms. Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its
deliberations, the court may, but only in the presence of counsel,
and, in a criminal case the parties, inquire of the jurors to
determine whether and how the court and counsel can assist them in
their deliberative process. After receiving the jurors’ response, if
any, the court, after consultation with counsel, may direct that
further proceedings occur as appropriate.
This provision was one of the products of a four-year effort involving
public hearings, written recommendations, public comment, and revisions,
conducted by the members of the Citizens Commission on the Future of
Indiana's Courts, by the judges who serve on the Judicial Administration
Committee of the Judicial Conference, and by the Supreme Court Committee on
Rules of Practice and Procedure. The Citizens Commission and the Judicial
Administration Committee favored the adopted rule and the Rules Committee
opposed it.
[3] Both times the general verdict stated, "We, the jury, find for the
plaintiff, Brian S. Tincher, and against the defendant and assess the
plaintiff's damages in the sum of ONE HUNDRED FIFTY THOUSAND dollars,
($150,000)." Record at 257, 261.
[4] The Comparative Fault Act does not apply to tort claims against
governmental entities. Ind.Code § 34-51-2-2.