                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2015-IA-00999-SCT

ROBERTS COMPANY, INC. f/k/a R & M FOODS,
INC.

v.

MARCUS MOORE


DATE OF JUDGMENT:                           06/08/2015
TRIAL JUDGE:                                HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS:                      JAMES W. NOBLES, JR.
                                            DENNIS C. SWEET, III
                                            A. LA’VERNE EDNEY
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    A. LA’VERNE EDNEY
                                            FREDERICK N. SALVO, III
                                            ADAM H. GATES
                                            JESSICA Z. BARGER
                                            SHELLEY J. WHITE
ATTORNEYS FOR APPELLEE:                     CRYSTAL WISE MARTIN
                                            JAMES W. NOBLES, JR.
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                REVERSED AND RENDERED - 03/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.    In this slip-and-fall case, the jury returned a verdict in the defendant’s favor, and the

trial court entered judgment in accordance with that verdict. Plaintiff Marcus Moore filed

a post-trial motion arguing, among other things, that one of the jurors was a convicted felon

and therefore, statutorily disqualified. The trial judge agreed and granted Moore a new trial.
This Court granted the defendant’s petition for an interlocutory appeal, and we reverse the

trial court’s order granting a new trial, we render judgment here reinstating the trial court’s

judment entered in accordance with the jury verdict.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In 1989, Marcus Moore slipped and fell in a grocery store owned by the defendant,

Roberts Company, Inc. (“RCI”). Moore was three years old at the time, and he allegedly

struck his head when he fell. After he reached the age of majority, Moore filed suit against

RCI, claiming that RCI was negligent in allowing the floor to be slick. Moore also alleged

that the fall had caused “marked and significant traumatic and permanent injuries to his

brain,” leaving him with “permanent and profound deficits” in several areas.

¶3.    Following a ten-day trial, the jury found in RCI’s favor. Although all twelve jurors

found that RCI had been negligent, nine jurors found that RCI’s negligence was not a

proximate cause of Moore’s injuries. The trial judge entered a final judgment on the jury’s

verdict, rendering judgment in favor of RCI and dismissing all of Moore’s claims with

prejudice.

¶4.    Following the jury’s verdict but before entry of final judgment, Moore’s mother

(Mary) sent a letter to Moore’s attorneys purportedly firing them.1 She then filed a pro se

notice of appeal. A few days later, Moore’s attorneys filed the post-trial motion at issue in



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       Between the time that Moore filed his complaint and trial began, his mother had been
appointed conservator “of the Estate and of the person of Marcus Moore,” after the
chancellor found that “because of his [drug] addiction, Marcus Moore is unable to manage
his own estate and take care of himself and it is necessary and in the best interest of Marcus
Moore that a Conservator be appointed . . . .”

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this appeal, asking for judgment notwithstanding the verdict or in the alternative, a new trial.

Then, a month after the post-trial motion was filed, a Hinds County chancellor entered an

order removing Mary as conservator “for failure to uphold the duties set forth in [the order

appointing her].” The chancellor also prohibited Mary from filing anything on Moore’s

behalf, found that she was “not authorized” to file the notice of appeal nor to fire Moore’s

attorneys, and that Moore’s attorneys were authorized to “fully prosecute” his interests in the

case. The chancellor appointed chancery clerk Eddie Jean Carr as Moore’s conservator

going forward.2

¶5.    In Moore’s post-trial motion, he argued that “Juror Foreperson John L. Turner [was]

a convicted felon.” Citing Mississippi Code Section 13-5-1 and Fleming v. State, 687 So.

2d 146 (Miss. 1997), Moore argued that Turner “clearly was not a qualified juror and as a

result the verdict of the jury must be reversed.” RCI countered that the trial court had lost

jurisdiction to decide the post-trial motion once Mary filed her notice of appeal. RCI also

argued that Section 13-5-1 says specifically that a juror’s lack of qualification “shall not . .

. vitiate an indictment or verdict.”

¶6.    After a hearing, the trial judge found that

       The plaintiff filed the herein motion for Judgment Notwithstanding the Verdict
       setting forth a number of grounds supporting his motion. The Court, after
       reviewing this matter, finds that the issue with respect to Juror Foreperson



       2
         RCI presents an argument on appeal about the timing of the notice of appeal and the
post-trial motion. But, although it argued various issues in the trial court regarding the
validity of Mary’s removal as conservator and her purported firing of Moore’s counsel, it
does not appear to raise any further argument about those specific issues on appeal. Also,
the appeal filed by Mary since has been dismissed voluntarily.

                                               3
       John L. Turner has merit. The issue before the court is whether Juror Turner’s
       failure to reveal he was a convicted felon disqualified him as a juror.
       ...
       The Mississippi Supreme Court reversed and remanded a criminal conviction
       in Fleming v. State, 687 So. 2d 146 (Miss. 1997) [,] on the grounds that one
       of the jurors failed to reveal that he was a convicted felon. Moreover,
       Mississippi Code Annotated Section 13-5-l, in relevant part, states in order to
       be a competent juror, the person must not have been convicted of an infamous
       crime.
       ...
       John Turner was not merely a juror in this matter. He was the Jury Foreperson.
       Obviously, the jury foreperson has a great responsibility in presiding over
       deliberations and making sure the verdict tendered to the court is in the proper
       form. No one knows what took place in the jury room other than the jurors. As
       noted in Fleming, prejudice is presumed. The plaintiff had no opportunity to
       challenge Juror Turner’s convicted felon status. Therefore, the court finds
       there is indeed prejudice to the plaintiff. Accordingly, the parties shall be given
       another opportunity to relitigate the herein controversy.

The trial judge noted that RCI had “no role” in the prejudice and that it was a “mere

bystander.” And the judge also noted that if the verdict had been for Moore, he also would

have ordered a new trial. Finding no merit to Moore’s other arguments, the trial judge denied

his motion for judgment notwithstanding the verdict but granted his motion for new trial.

¶7.    Roberts filed a petition for interlocutory appeal, which this Court granted. Roberts

now presents three issues, which we restate for clarity:

       1. Is the trial judge’s order granting a new trial void for lack of jurisdiction
       because an appeal from the final judgment was pending in this Court when it
       was entered?

       2. Did the trial court effectively read the mandatory language out of Section
       13-5-1 and ignore the Legislature’s intent to preserve jury verdicts by
       presuming prejudice in this case, without any evidence that a juror’s felony
       conviction actually affected the fairness of the trial?

       3. Is the application of such a presumption of prejudice fair in civil cases that,
       unlike criminal cases, do not require unanimous juries?

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                                         ANALYSIS

¶8.    This Court applies an abuse-of-discretion standard when reviewing a trial judge’s

grant of a motion for new trial. Ballard Realty Co., Inc. v. Ohazurike, 97 So. 3d 52, 58

(Miss. 2012). But questions of statutory interpretation are questions of law which this Court

reviews de novo. Page v. Univ. of S. Miss., 878 So. 2d 1003, 1004-05 (Miss. 2004).

       1.     The trial court had jurisdiction to rule on Moore’s post-trial motion.

¶9.    RCI argues first that “[a]t the time it granted [Moore’s] new trial motion, the trial

court no longer had jurisdiction over the case because an appeal already was pending.” We

disagree.

¶10.   Mississippi Rule of Appellate Procedure 4(d) states, in pertinent part:

       A notice of appeal filed after announcement or entry of the judgment but
       before disposition of any of the above motions [including a Rule 59 motion for
       new trial] is ineffective to appeal from the judgment or order, or part thereof,
       specified in the notice of appeal, until the entry of the order disposing of the
       last such motion outstanding.

Miss. R. App. P. 4(d) (emphasis added). RCI acknowledges Rule 4(d), stating that “[o]f

course, if [Moore’s] notice of appeal had been filed before the trial court disposed of pending

post-trial motions, the notice of appeal would not have ripened into an effective appeal until

the post-trial motions were decided.”

¶11.   But RCI does not acknowledge the comments to Rule 4(d), which extend the rule to

the situation presented in Moore’s case:

       Rules 4(d) and 4(e) now provide that a notice of appeal filed before the
       disposition of a specified post trial motion will become effective upon
       disposition of the motion. A notice filed before the filing of one of the specified
       motions or after the filing of a motion but before its disposition is, in effect,

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       suspended until the motion’s disposition, whereupon the previously filed
       notice effectively places jurisdiction in the Supreme Court.

Miss. R. App. P. 4(d) cmt. (emphasis added). The advisory committee notes explain that

Rules 4(d) and 4(e) and the related comments were amended in 1998 to “provide that a notice

of appeal filed before disposition of specified post trial motions becomes effective on

disposition thereof . . . .” The plain language of Rule 4(d) and the comments establish that

Mary’s notice of appeal was “suspended” until the trial judge ruled on Moore’s post-trial

motion, regardless of whether the motion actually was pending at the time she filed. As such,

the trial judge did not lose jurisdiction to rule on it.

¶12.   Tellingly, all of the cases cited by RCI to support its assertion that the trial court lost

jurisdiction were decided before 1998. And the one post-1998 case RCI cites is easily

distinguishable. In McNeil v. Hester, 753 So. 2d 1057 (Miss. 2000), this Court held only that

the chancery court was without jurisdiction to close an estate and discharge the executors

once a notice of appeal had been filed. Id. at 1075-76. There was no discussion of Rule 59

motions whatsoever, and McNeil simply cannot be read to support RCI’s position that the

trial court here was without jurisdiction to rule on Moore’s Rule 59 motion, especially in

light of Rule 4’s clear language. We find this issue to be without merit.

       2.      The trial judge erred in his interpretation of Section 13-5-1 and caselaw.

¶13.   RCI argues next that “the new trial order is inconsistent with legislative intent to

preserve jury verdicts.” Specifically, RCI argues that

       the order requiring a second trial in this case achieves the result expressly
       instructed against in Mississippi Code Annotated Section 13-5-1, the statute
       setting forth the criteria to serve as a juror. That statute states plainly and


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       unambiguously that the lack of qualification “on the part of one or more jurors
       shall not . . . vitiate an indictment or verdict.” The trial court improperly
       ignored this language and rendered an entire sentence in the statute a nullity
       when it concluded . . . that the jury’s verdict must be set aside[.]

(Emphasis in original.) We agree.

¶14.   Mississippi Code Section 13-5-1 establishes the qualifications for jurors and states,

in pertinent part:

       Every citizen not under the age of twenty-one years, who is either a qualified
       elector, or a resident freeholder of the county for more than one year, is able
       to read and write, and has not been convicted of an infamous crime,[3] or the
       unlawful sale of intoxicating liquors within a period of five years and who is
       not a common gambler or habitual drunkard, is a competent juror. No person
       who is or has been within twelve months the overseer of a public road or road
       contractor shall, however, be competent to serve as a grand juror. The lack of
       any such qualifications on the part of one or more jurors shall not, however,
       vitiate an indictment or verdict. Moreover, no talesman or tales juror shall be
       qualified who has served as such talesman or tales juror in the last preceding
       two years, and no juror shall serve on any jury who has served as such for the
       last preceding two years. No juror shall serve who has a case of his own
       pending in that court, provided there are sufficient qualified jurors in the
       district, and for trial at that term.

Miss. Code Ann. § 13-5-1 (Rev. 2012) (emphasis added). Although the trial judge

referenced Section 13-5-1 in his order granting a new trial, he did not discuss the “vitiate”

language at all. Rather, he relied on this Court’s opinion in Fleming v. State, 687 So. 2d 146

(Miss. 1997), where this Court reversed and remanded a criminal conviction after the parties

discovered that one of the jurors was a convicted felon, presuming prejudice. Id. at 147.




       3
        The parties argued extensively below about the nature of Turner’s actual crime and
his conviction. For purposes of this appeal, though, RCI conceded that Turner was not a
qualified juror.

                                              7
While Fleming, at first blush, might appear to be inconsistent with our holding today, it is

not.

¶15.   In Fleming, a juror failed to disclose his felony conviction when asked in voir dire.

Id. at 147–48. This Court reversed, not because the juror was not qualified under Section 13-

5-1, but rather because the Court found the defendant had been denied a constitutional right

to a fair and impartial jury. Nothing in Fleming suggests that every violation of Section 13-

5-1 will rise to the level of a constitutional violation.

¶16.   Here, Moore persuaded the trial judge he was entitled to a new trial because a juror

was not qualified to serve under Section 13-5-1. Because he made no claim and presented

no proof of a constitutional violation, the circuit judge’s reliance on Fleming was error.

¶17.   As for cases that discuss statutorily disqualified jurors along with Section 13-5-1, we

note two. First, in Brown v. State, 529 So. 2d 537 (Miss. 1988), this Court addressed a

situation in which a juror had a case pending in the same court in which she was serving

(which Section 13-5-1 prohibits). Id. at 538-39. This Court briefly noted Section 13-5-1’s

“vitiate” language in its discussion, with the entirety of that analysis as follows:

       We note that after the initial definition of who is competent to serve the statute
       provides that the lack of such qualifications will not vitiate a verdict. The
       statute then goes on to unequivocally prohibit service of any juror who has a
       case pending in that court.

Id. at 540. So, while the Brown Court did hold that the motion for a new trial should have

been granted, we find that Brown’s holding is not applicable here, because the facts are

distinguishable. In Brown, the disqualification at issue was that the juror had a case pending

in the same court. As a matter of fact, the juror’s case was scheduled for the following

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Monday following Brown’s trial. Id. at 538. That disqualification comes after the “vitiate”

language in the statute. But here, the “crime” disqualification language comes before the

“vitiate” language in the statute. Thus, Brown does not mandate, or even support, the trial

judge’s ruling here.

¶18.   Second, in Wright v. State, 805 So. 2d 577 (Miss. Ct. App. 2001), the Court of

Appeals addressed “[w]hether the trial court erred in failing to grant a new trial when it was

discovered by the judge, post-trial, that a juror was living in Memphis, Tennessee at the time

he was selected to serve on the jury[.]” Id. at 579. After noting this Court’s decision in

Brown, the Court of Appeals reasoned that

       On the other hand, in cases such as Wright’s, where some other qualification
       [besides having a case pending in the same court] is in question, the statute
       itself provides that “[t]he lack of any such qualifications on the part of one or
       more jurors shall not, however, vitiate an indictment or verdict.”

Id. at 580. Thus, the Court of Appeals concluded that a new trial was not warranted. Id.

¶19.   In sum, the statute that establishes jury qualifications says unequivocally that the “lack

of any such qualifications on the part of one or more jurors shall not, however, vitiate an

indictment or verdict.” Miss. Code Ann. § 13-5-1 (Rev. 2012). The statute controls the

outcome here. While the Fleming Court did mandate a new trial where a juror was a

convicted felon, it addressed the defendant’s constitutional right to a fair and impartial jury

under the facts of that case. It did not analyze section 13-5-1’s “vitiate” language and relied

on precedent that was irrelevant to the issue at hand. To the extent that Fleming stands for

the proposition that a violation of the first section of Section 13-5-1 requires an automatic

reversal or invokes a presumption of prejudice, it is hereby overruled. Further, the Brown

                                               9
Court reached its result after engaging in statutory analysis that is inapplicable here. As such,

this Court reverses the trial judge and reinstates the jury verdict.

       3.     RCI’s “Prejudice” Arguments

¶20.   Because we find the second issue dispositive, we do not discuss the remainder of

RCI’s arguments.

                                       CONCLUSION

¶21.   While Juror Turner was statutorily disqualified to serve as a juror under Section 13-5-

1, his lack of qualification “shall not” vitiate the verdict rendered here. We therefore reverse

the trial court’s order granting a new trial, and we render judgment here reinstating the trial

court’s judgment entered in accordance with the jury verdict.

¶22.   REVERSED AND RENDERED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.




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