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

June 22 2010
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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 StebnerRealEstate,

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 ofthe 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 fromSeptember 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 ofthe jury roomand 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 ofJuror Christine

Strukel to his motion, in which Juror Strukel testified she heard three jurors discussing the

case asthey 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 Ourstandard ofreview 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 ofthe district court because it isin 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.

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 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 contendsthat 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 ofthe term“preponderance,” and

because Juror Schneider’s internet definition matched the court’s jury instruction.

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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 DistrictCourt

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) allowsthe court to grant a new trial on “all or part ofthe 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 ofthe 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 onthe

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, 964P.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 extraneousinfluence; 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 fromthe court’sjury instruction in thatit

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’stestimony. 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’ actionsin Allers andBrockie;

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 jurorstestified 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 extraneousjuror discussions. Without

passing judgment on the truthfulness ofJuror Strukel’stestimony regarding jurorsdiscussing

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, evidenceof

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 thisissue is an emerging and increasing problemthat

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 instructionsto the juryif

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