Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Millette, JJ., and Lacy, S.J. 

THE ROBERT M. SEH COMPANY, INC., 

D/B/A BJ POOL & SPA, ET AL. 

v. Record No. 081392 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

DANIEL O’DONNELL, ET AL. APRIL 17, 2009 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Lon E. Farris, Judge 

The dispositive issue in this appeal is whether the trial 

court abused its discretion by allowing a juror to remain on the 

jury panel when the juror, during the course of the trial, 

expressed concern about his ability to impartially decide the 

case. 

FACTS AND PROCEEDINGS 

The facts in this case are not in dispute. In 2003, Daniel 

and Patricia L. O’Donnell contracted with The Robert M. Seh 

Company, Inc., d/b/a/ B.J. Pool & Spa, to install a Fox brand

swimming pool at the O’Donnells’ residence for $22,895.00. When 

the pool was not completed to the satisfaction of the 

O’Donnells, they filed suit against the company and its 

president and owner, Robert M. Seh (collectively Seh), asserting 

breach of contract, fraud and violations of the Virginia 

Consumer Protection Act, Code §§ 59.1-200 through -207. The 

O’Donnells sought compensatory and punitive damages along with 

statutory enhanced damages and attorney’s fees under the 
Consumer Protection Act, Code §§ 59.1-204 and -206. The 

O’Donnells maintained that Seh failed to install the pool to 

industry standards, and although the contract required the 

installation of a Fox brand pool liner, a Vyn-All brand liner 

was installed despite Seh’s representation that a Fox pool liner 

had been installed. Seh filed a counterclaim for amounts unpaid 

under the contract. 

The jury returned a verdict in favor of the O’Donnells on 

the breach of contract and Consumer Protection Act claims, but 

rejected the fraud claim and Seh’s counterclaim. The jury also 

found that Seh had willfully violated the Consumer Protection 

Act and awarded damages. The trial court entered judgment on 

the jury verdict awarding total damages of $66,507.20 for the 

breach of contract claim and Consumer Protection Act claim, 

$1000 in enhanced statutory damages for the willful violation of 

the Consumer Protection Act and attorneys’ fees of $31,049.55.1

 We awarded Seh an appeal. 

DISCUSSION 

Seh’s first two assignments of error challenge the trial 

court’s denial of Seh’s motion for a mistrial based on its 

finding that juror Howard Dwight Lyons, Jr. was not biased and 

 1 The trial court reduced the damage award for violation of 

the Consumer Protection Act from $1500 to $1000 on the agreement 

of the parties based on the correct application of the statutory 

enhancement provision of the Act, Code § 59.1-206.

2
could remain on the jury panel. We begin by reciting the facts 

relevant to these issues. 

During voir dire, the trial court asked whether any of the 

potential jurors had worked in the swimming pool industry. 

Juror Lyons responded that he had helped his father-in-law who

owned a swimming pool company with summer pool installations. 

No further questions were asked of Lyons and he was seated as a 

juror without objection. 

In opening statements, Seh’s counsel conceded that the 

liner installed in the O’Donnells’ pool was not the agreed-upon 

Fox liner, but another liner, the Vyn-All liner, which counsel 

characterized as superior to the Fox liner. After the first 

witness testified, Lyons contacted the bailiff raising a 

question about his continued ability to be impartial. Out of 

the presence of the rest of the jury, Lyons told the trial court 

that he heard his father-in-law talk about the differences in 

various pool liners. Lyons remembered a statement made by his 

father-in-law that the Vyn-All liner was of inferior quality. 

Based on this conversation, Lyons told the circuit court that he 

was concerned that he had “developed a bias that says [Seh’s 

counsel] doesn’t know what he’s talking about” because counsel’s 

statement regarding the quality of the Vyn-All liner 

contradicted his father-in-law’s statement. 

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The circuit court asked Lyons if he understood that he was 

to make his decision based on the evidence in the case and Lyons 

replied in the affirmative. The court then asked counsel if 

they had any questions to ask Lyons. Neither counsel had any 

further questions but Seh’s counsel expressed concern about 

Lyons’ ability to remain unbiased notwithstanding Lyons’ answers 

to the trial court’s questions. According to Seh’s counsel, 

Lyons’ recognition of the prior conversations with his fatherin-law about the liners in issue in this case “indicates a 

predisposition, a very strong predisposition of the fundamental 

issue of this case.” 

The trial court explained that it did not think juror Lyons 

“ha[d] a bias” but asked Seh’s counsel what steps counsel wished 

the court to take. Counsel replied that an alternate juror 

should be brought in. The trial court responded that all 

alternate jurors had been discharged and that counsel’s choice 

was to proceed with a jury panel of six members or seek a 

mistrial. Proceeding with Lyons on the jury panel was not 

acceptable to Seh, nor was a six-member jury panel. The court 

then took the matter under advisement during a lunch break. 

After the break, the trial court again questioned Lyons 

about his conversation with his father-in-law and Lyons’ 

partiality. Lyons explained that his father-in-law said the 

Vyn-All liner was thicker than the Fox liner and as a result was 

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more brittle than the Fox liner. In response to a question from 

the trial court, Lyons also stated that he would use any expert 

information introduced in the case regarding the pool liners as 

the basis for his decision, but could not “erase” from his 

“brain” the information he had about the two liners. 

When questioning by the court and counsel concluded, Seh’s 

counsel again argued that Lyons had expressed an opinion on a 

fundamental key issue in the case and therefore “has a built-in 

prejudice and a bias beyond the normal bias” that a person has 

from life experience and that this bias would prejudice Seh. 

The trial court disagreed, finding that Lyons clearly stated 

that he could put aside the statements of his father-in-law and 

decide the case on the evidence presented. Seh’s motion for 

mistrial was denied.2

 The first two assignments of error assert respectively that 

the trial court erred in refusing to strike juror Lyons for 

cause and in denying the motion for a mistrial. We note that 

the record does not directly support the proposition that the 

trial court refused to strike the juror for cause. The issue 

arose in the course of the trial and the trial court apparently 

 2 The O’Donnells argue that the trial court’s decision was 

also based on its holding that Seh waived any challenge to Lyons 

because it did not question Lyons about his experience with 

swimming pool construction during voir dire. The record does 

not support an alternate holding by the trial court and we do 

not address this argument. 

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would have been willing to replace juror Lyons if an alternative 

juror had been available.3 Nevertheless, the issue is squarely 

presented with regard to the trial court’s denial of the motion 

for mistrial. 

 A trial court’s ruling denying a motion for mistrial will 

be set aside on appellate review only if the ruling constituted 

an abuse of discretion. See Westlake Properties, Inc. v. 

Westlake Pointe Property Owners Assoc., 273 Va. 107, 124, 639 

S.E.2d 257, 267 (2007). We have not previously reviewed the 

relevant factors to be utilized in determining abuse of 

discretion under the circumstances presented in this case. 

However, we have considered other instances in which a challenge 

to the impartiality of a juror arose after voir dire, the 

empanelling of the jury or the commencement of the trial. In 

Haddad v. Commonwealth, 229 Va. 325, 327, 329 S.E.2d 17, 18 

(1985), a juror made the statement to a group of attorneys at 

the lunch break that “his client” was “not going to get off.” 

When the juror’s statements were brought to the attention of the 

trial court, the court asked the juror questions about the 

statement and his ability to give both parties a fair and 

 3 We reject O’Donnell’s charge that Seh did not acquire leave 

of court to challenge Lyons after the jurors had been empanelled 

and therefore this issue is waived. See Code § 8.01-352. The 

trial court considered the challenge to Lyons and therefore 

implicitly granted leave to raise the challenge. See Hill v. 

Berry, 247 Va. 271, 274, 441 S.E.2d 6, 7 (1994). 

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impartial trial. Id. at 328, 329 S.E.2d at 19. The trial court 

concluded that the juror could be fair and impartial and denied 

the defendant’s motion for mistrial. Id. 

 On appellate review, this Court, characterizing the juror’s 

statements to the attorneys as juror misconduct, adopted the 

following test: the trial judge in the exercise of discretion, 

must determine whether prejudice might result from the remarks 

made, and the proponent of the mistrial motion has the burden to 

establish the probability of prejudice. Id. at 330, 329 S.E.2d 

at 20. The Court concluded that the record showed that the 

juror “probably was impartial no longer” notwithstanding the 

answers given the trial court regarding his ability to maintain 

an open mind on the issues. Id. at 331, 329 S.E.2d at 20. The 

Court found that the “facts developed brought into question the 

fairness of the trial and disclosed circumstances that would 

tend to impair public confidence in trial by jury” and that 

denying the motion for mistrial under these circumstances was an 

abuse of discretion. Id. 

 In contrast, this Court refused to find an abuse of 

discretion in denying a motion for mistrial when, in a second 

degree murder prosecution, a juror failed to respond during voir 

dire to the question whether any juror or any juror’s family 

member had been a victim of a violent crime but, after the jury 

was empanelled and opening statements delivered, revealed that 

7
her husband had been “held up” at gunpoint earlier that year. 

Taylor v. Commonwealth, 256 Va. 214, 505 S.E.2d 378 (1998) 

(adopting the Court of Appeals’ reasoning in Taylor v. 

Commonwealth, 25 Va. App. 12, 14, 486 S.E.2d 108, 109 (1997)). 

The defendant argued that the juror’s failure to answer the 

question prejudiced his ability to exercise his peremptory 

challenges. 25 Va. App. at 17, 486 S.E.2d at 110. 

In that case this Court agreed with the Court of Appeals 

that, although the juror had not responded in a timely manner to 

the question posed on voir dire, nothing in the record showed 

that the juror did not stand indifferent to the cause. 25 Va. 

App. at 18, 486 S.E.2d at 111. Therefore, notwithstanding 

impairment of the defendant’s right to peremptory challenges, 

the juror’s presence on the jury did not affect the essential 

fairness of the trial. Id.

 These cases teach that once a jury has been empanelled and 

the impartiality of a juror is subsequently brought into 

question, it is an abuse of discretion to deny a motion for 

mistrial if the proponent of the motion establishes the 

probability of prejudice such that the fairness of the trial is 

subject to question. Although Haddad and Taylor are criminal 

cases, the standards regarding determinations of juror 

impartiality and probable prejudice are the same for civil and 

criminal cases. See Edlow v. Arnold, 243 Va. 345, 347, 415 

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S.E.2d 436, 437 (1992). Accordingly, we find this standard 

appropriate for application in this case. 

 The record in this case demonstrates that Lyons’ 

understanding of the difference between the two pool liners was 

“the opposite of what [Seh’s] attorney said,” and based on this 

knowledge, Lyons stated that he “developed a bias that says that 

[Seh’s attorney] doesn’t know what he’s talking about.” This 

statement of bias was never retracted nor questioned and 

directly supports the proposition that retaining Lyons on the 

jury panel presented a high probability of prejudice to Seh that 

would bring the fairness of the trial into question. 

Additionally, although in answer to the trial court’s 

questions Lyons stated that he could decide the case on the 

evidence presented, he continued to refer to his belief that the 

Vyn-All liner was more likely to crack and that he could not 

“erase [his] brain.” While the respective quality of the liners 

may not have been the cornerstone of the O’Donnells’ claims, 

that factor could have been part of the basis for a finding of 

liability and the award of damages in the Consumer Protection 

claim. Thus, retaining Lyons on the jury also presented a 

probability of prejudice to Seh in this regard. 

For these reasons, we conclude that the trial court abused 

its discretion in denying Seh’s motion for a mistrial based on 

the lack of impartiality of Lyons. Accordingly, we will reverse 

9
the judgment of the trial court and remand the matter to the 

circuit court for a new trial.4

Reversed and remanded.

 4 In light of this holding, we need not address the remaining 

assignments of error. 

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