City of Picayune, A Mississippi Municipal Corporation v. Landry Lewis Germany Architects, P.A., f/k/a Landry and Lewis Architects, P.A.

• Court: Mississippi Supreme Court
• Decided: March 14, 2024
• Docket: 2022-CA-00909-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2022-CA-00909-SCT

CITY OF PICAYUNE, A MISSISSIPPI MUNICIPAL CORPORATION

v.

LANDRY LEWIS GERMANY ARCHITECTS, P.A., f/k/a LANDRY AND LEWIS ARCHITECTS, P.A.

DATE OF JUDGMENT: 08/11/2022 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO TRIAL COURT ATTORNEYS: JAMES K. DUKES JAMES GRADY WYLY, III W. EDWARD HATTEN, JR. THOMAS LYNN CARPENTER, JR. SHANNON LADNER OZERDEN LAUREN REEDER McCRORY KATIE RYAN VAN CAMP NATHAN RYNE HAND MARA MICHELE LESIEUR JOFFE EDWARD C. TAYLOR PHILLIP LLOYD LONDEREE COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: EDWARD C. TAYLOR KATIE RYAN VAN CAMP ATTORNEY FOR APPELLEE: PHILLIP LLOYD LONDEREE NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND RENDERED - 03/14/2024 MOTION FOR REHEARING FILED:

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶1. At issue in this appeal is a $210,000 judgment under the tort claims act against the City of Picayune based on the City’s alleged negligence in failing to volunteer information

about a juror during voir dire in a civil trial to which the City was a party. We conclude that

Landry Lewis Germany Architects, P.A., failed to show the City negligently breached a duty

owed to it. We therefore reverse and render the award of damages.

FACTS

¶2. The City of Picayune filed suit against Landry Lewis, alleging defects in an addition

to the Picayune City Hall. The suit went to trial, and one of the veniremen was Lorenzo

Breland, the son of Larry Breland, a Picayune city councilman. The City’s representative

informed the City’s counsel of Breland’s relationship but otherwise took no action. Breland

was ultimately seated on the jury. During closing arguments after five days of trial, an

unidentified spectator informed a court clerk of Breland’s relationship with the City by way

of his father. The clerk then told the trial judge, who dismissed Breland as a juror. One juror

had already been dismissed, and there were no alternates available, which led the trial court

to offer the option of a mistrial or proceeding with eleven jurors. Landry Lewis elected for

the mistrial.

¶3. The trial court subsequently entered an order for various individuals, including the

City’s representative and juror Breland to show cause why they should not be held in

contempt. Criminal contempt proceedings were referred to another circuit judge, who found

no contempt by anyone associated with the trial. In finding no contempt criminal contempt,

the second judge observed:

The primary thrust of the Court, statements and questions during the voir dire pertaining to relationships included, I quote, “There’s no getting around that

2 a lot of you might have communicated with the City of Picayune. That’s not the question I’m about to ask you. The question I’m going to ask you is, in consideration of any relationship you might have to the City, can you both be fair to both sides? Furthermore, is there anybody in here”—as I continue reading, “that has a relationship with the City of Picayune that is such that they cannot be fair.” Now, if that clause was not there, we might be different, but we are there. That is a direct quote from the voir dire transcript[.]

¶4. After the mistrial, the City voluntarily dismissed its claims against Landry Lewis with

prejudice, but that did not end the litigation. Landry Lewis moved to amend its answer to

assert counterclaims against the City and various individuals present the trial or involved in

it. Ultimately, the circuit court permitted Landry Lewis to proceed on a counterclaim for

negligence against the City based upon its failure to inform the trial court of juror Breland’s

familial relationship. The counterclaim was brought to a bench trial under the Mississippi

Tort Claims Act, and the trial court awarded Landry Lewis $210,000 in damages. The City

has appealed from that judgment.

DISCUSSION

¶5. The issue presented by this appeal is straightforward: did the City of Picayune owe

a duty of care in tort to Landry Lewis that was breached by its failure to go around its lawyer

and directly inform the trial court that the potential juror, Lorenzo Breland, was the son of

a Picayune city councilman? We conclude that it did not, and this holding resolves all the

issues presented by this appeal. We therefore reverse and render the award of damages for

negligence.

¶6. The material facts are largely undisputed: Lorenzo Breland was the son of Larry

Breland, a Picayune city councilman. Councilman Breland was subpoenaed as a witness in

3 the underlying lawsuit, but he ultimately did not testify. There was no evidence juror Breland

had any discussions with his father about the details of the case nor any extraneous

knowledge or personal interest in the outcome. He filled out a juror information card but left

many parts of it blank, including the names of his parents. After the trial court became aware

of the identity of juror Breland’s father, juror Breland was called to chambers and averred

that he did not speak up at voir dire because he had understood the questions directed to the

panel to have asked whether he could be fair and impartial, not whether he had a familiar

relationship per se. Breland said he “did raise it” (presumably referring to his hand) until the

trial judge “said . . . would it actually affect your decision making?” This was borne out by

the transcript of the trial, which was examined by a second circuit judge, who found no

contempt by anyone involved. On adverse examination at the second trial, however, Breland

did admit he would be more likely to believe his father than a stranger. It was also pointed

out that Breland had falsely indicated on his juror information card that he had never been

a defendant, plaintiff, or witness in a civil case; Breland had been the plaintiff in a personal

injury lawsuit in Louisiana filed in 2015.

¶7. Jim Luke, then the city manager,1 attended the first trial as a representative of the City.

Luke testified that he had known Larry and Lorenzo Breland for many years and that he had

informed the attorney representing the City that juror Breland was the son of Councilman

Breland upon first noticing him in the venire. He and other city employees were surprised

and concerned that Breland was seated on the jury, and Luke again pointed it out to the

1 Jim Luke was later elected mayor of Picayune and held that office at the time the instant proceedings concluded.

4 attorney representing the City after the jury was empaneled; but he considered it to be a

technical matter entrusted to the attorney and took no further action. Luke added that he did

not direct the conduct of the trial and was not privy to all the attorney’s interactions with the

court or opposing counsel. As the city manager, Luke did not have the authority to make

litigation decisions on behalf of the City.

¶8. Councilman Breland testified that he had heard his son was on the jury after it was

seated, but he had been sequestered during the trial due to his potentially being called as a

witness and did not see it himself until the trial was nearly over.

¶9. The trial court found that the City had negligently “failed to alert the Court and

[Landry Lewis] of Lorenzo Breland’s fraud upon the Court.” The court elaborated:

Juror Breland clearly misled the court about his relationship with Councilman Breland, his father, and longstanding relationship with [now-]Mayor Luke. . . . [T]he court finds . . . that both Councilman Breland and his son were voluntary participants in a proceeding during which fraud was committed upon the Court[] and that Juror Breland never sought to be excused from jury duty because of what he knew was his important conflict of interest.

¶10. The trial court awarded damages based on what it found to be Landry Lewis’s losses

resulting from the cost of this first trial and lost revenue caused by reputation damage. The

judgment was founded on what the trial court determined to be actionable negligence. The

court observed that “[p]ublic officials have a duty of reasonable care to avoid the fraud,

waste, and abuse of public funds.” It further noted that this Court has held that “[t]he

standard of care applicable in cases of alleged negligent conduct is whether the party charged

with negligence acted as a reasonable and prudent person would have under the same or

similar circumstances.” Johnson v. Goodson, 267 So. 3d 774, 778-79 (Miss. 2019) (internal

5 quotation marks omitted) (quoting Donald v. Amoco Prod. Co., 735 So. 2d 161, 175 (Miss.

1999)).

¶11. At the outset, we acknowledge the trial judge’s legitimate concern with the appearance

of impropriety resulting from seating a juror who was the son of a Picayune city councilman

and potential witness in the trial. We likewise find no basis to criticize the trial judge’s

decision to grant a mistrial in the original trial. But sitting as an appellate court, we must

observe that the issue of whether juror Breland was disqualified from sitting on the jury is

not as straightforward as has been suggested: “There is no per se rule of disqualification due

to a personal or professional relationship between party and proposed juror.” Taylor v.

Premier Women’s Health, PLLC, 343 So. 3d 1027, 1032 (Miss. 2022) (citing Toyota Motor

Corp. v. McLaurin, 642 So. 2d 351, 358 (Miss. 1994)). “Mere acquaintance or even family

relationships with parties or those related to parties is not sufficient to require that a juror be

excused for cause.” Powers v. State, 371 So. 3d 629, 672 (Miss. 2023) (internal quotation

marks omitted) (quoting Patton v. State, 248 So. 3d 763, 769 (Miss. 2018)).

¶12. We also observe that the fact that the second circuit judge found no criminal contempt

should not preclude a finding by the trial court of negligence or fraud on the court, as

criminal contempt has a higher burden of proof—beyond a reasonable doubt. In re

Shamsiddeen, 358 So. 3d 324, 330 (Miss. 2023).

¶13. At any rate, this Court need not examine the circuit court’s finding that juror Breland

committed a fraud on the court to conclude that there was no basis for finding tort liability

in the City’s allegedly negligent failure to bring his identity to the Court’s attention. Even

6 though Landry Lewis acknowledges that duty is a fundamental question of the appeal and

contends that this case presents a question of first impression, Landry Lewis devotes only

a few pages of its thirty-eight-page brief to arguing a legal duty existed. It cites not a single

case even remotely similar to the one at bar, and its arguments are founded on the vaguest

and most generalized statements of negligence law.

¶14. Today’s case is not so novel as Landry Lewis suggests. Roussel v. Robbins, 688 So.

2d 714, 725 (Miss. 1996), though it dealt with allegations against an attorney, is instructive

in stating explicitly that “[t]here is no such tort as ‘the use of a falsehood to persuade the

court to decide against [a party].’” The rationale for not permitting tort suits for most

litigation-related behavior is that there are other mechanisms for enforcing rules and codes

of conduct in litigation—there are “myriad options, such as sanctions, bar complaints, and

Mississippi’s Litigation Accountability Act . . . available . . . to air . . . grievance[s].”

Henley, Lotterhos & Henley, PLLC v. Bryant, 361 So. 3d 621, 634 (Miss. 2023).

¶15. Tort duties are a question of law for the Court and “generally . . . [are] imposed . . .

as a matter of public policy.” Samson v. Unum Life Ins. Co. of Am., 300 So. 3d 930, 938

n.11 (Miss. 2020) (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 92

(5th ed. 1984)). We decline to create a tort duty under the facts of today’s case.

¶16. Finally, we emphasize that trials and voir dire (though often conducted, in part, by the

Court, as here) are adversarial processes. Breland’s incomplete juror information card was

available to both sides, and the similarity of his name to Councilman Breland’s (Larry and

Lorenzo), his Picayune home address, and other surrounding facts suggest that the proximate

7 cause of Breland’s being seated on the jury was the failure of adversarial testing by Landry

Lewis, not misconduct on the part of the City of Picayune.

CONCLUSION

¶17. A party litigant has no duty in tort to party opposite to personally intervene during a

trial to prevent a fraud on the court by a potential juror. We therefore reverse and render the

award of negligence damages.

¶18. REVERSED AND RENDERED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.