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Holly v. Huntsville Hospital9/16/2005
yrd v. Lamar, 846 So. 2d 334, 341 (Ala. 2002). However, we note that we disagree with the Hollys' contention. The Hollys' argument that Huntsville Hospital waived its right to assert in its motion for a new trial the failure of the juror to disclose during voir dire the existence of his dispute with Huntsville Hospital is based on Huntsville Hospital's knowledge of that dispute. The Hollys contend in their reply brief that "' here attorney is acting for several clients at the same time and in the same business ... knowledge which the attorney acquires in the transaction may be imputed to all.'" (Quoting 7 Am. Jur. 2d Attorneys at Law ยง 156 (1997)). However, the Hollys concede elsewhere in their reply brief that they "do not contend that [defense] counsel actually knew about [the juror's] hospital bill." We decline to consider whether Dr. Markushewski waived his right to assert the juror's failure to disclose the dispute between the juror and Huntsville Hospital absent a showing that either he or his trial counsel had actual notice of that dispute.
Because Huntsville Hospital's liability is necessarily based on the liability, if any, of Dr. Markushewski, if the doctor is entitled to a new trial, so is Huntsville Hospital. Because we decline to hold that Dr. Markushewski waived his right to assert the juror's failure to disclose the existence of the dispute between the juror and Huntsville Hospital as grounds for a new trial, whether Huntsville Hospital waived its right is irrelevant.
B.
The Hollys argue that the trial court exceeded its discretion in granting the defendants' motion for a new trial based on the juror's failure to respond to the question. They contend that the juror never disputed the fact that he had unpaid debts with Huntsville Hospital, and that therefore the juror's failure to respond to the voir dire question did not amount to a false answer. However, as noted above:
" he initial decision on this issue [whether to grant a new trial based on a juror's silence during voir dire] is within the trial court's sound discretion. ... he trial court's decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous."
Carter, 598 So. 2d at 1354.
The relevant portion of the question propounded to the prospective jurors was: "Have any of you ever had a dispute with Huntsville Hospital about anything, a bill, a statement or anything about it? You had any dispute with them about anything?" Evidence presented in support of the defendants' motion for a new trial tended to show: 1) that the juror had 10 delinquent accounts with Huntsville Hospital, 2) that during a period of 5 years up until the date the trial began, a total of 39 collection letters had been sent to the juror, and 3) that during that same time period, 13 telephone calls had been placed to the juror in an attempt to collect on the unpaid accounts. Based on the record before us, we cannot conclude that the trial court exceeded its discretion when it determined that the juror had a "dispute" with Huntsville Hospital and that therefore the juror should have responded when the question was asked. Cf. Conference America, Inc. v. Telecommunications Coop. Network, Inc., 885 So. 2d 772 (Ala. 2003) (holding that a question, asked during voir dire, whether any juror had been involved in a "contract dispute" encompassed a collection action against a juror and holding that the trial court exceeded its discretion in denying a motion for a new trial based partly on the juror's failure to answer that question). We therefore decline to reverse the trial court's order granting a new trial based
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