H.A.S. ELECTRICAL CONTRACTORS, INC.
HEMPHILL CONSTRUCTION COMPANY, INC.
OF JUDGMENT: 03/24/2015
COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER JUDGE
ATTORNEY FOR APPELLANT: JIM L. DAVIS, III
ATTORNEYS FOR APPELLEE: DAVID BONDS ELLIS DANNY ALTON DRAKE
RANDOLPH, PRESIDING JUSTICE
This case returns after remand to the trial court, which was
instructed to complete a Batson
analysis.,  The trial court has provided a certified
result of that proceeding. The trial court ruled that H.A.S.
Electrical Contractors, Inc. (HAS) failed to meet its burden
of proving purposeful discrimination.
We have reviewed the entire record of all proceedings and
affirm the trial court judgment. HAS failed to prove (1)
purposeful discrimination in the jury selection process, or
(2) that the trial court's ruling was clearly erroneous,
or (3) that the trial court's ruling was against the
overwhelming weight of the evidence. See Booker v.
State, 5 So.3d 356, 357-58 (Miss. 2008). Accordingly, we
affirm the jury's verdict, the trial court's denial
of HAS's motion for new trial, and the trial court's
post-judgment award of attorney's fees to
FACTS AND PROCEDURAL HISTORY
Hemphill was the general contractor on a project in Waveland,
Mississippi, to rebuild a state park after Hurricane Katrina.
Hemphill entered a subcontract with H.A.S. Electrical
Contractors, Inc. (HAS) - one of many entered into between
these companies, both before and after the event complained
of - to perform the electrical work. According to HAS,
Hemphill did not pay HAS all it was owed under the
subcontract. HAS sued Hemphill for breach of contract,
quantum meruit, and conversion. After Hemphill had
paid HAS $2, 498, 000, HAS claimed an additional $570,
678.71 was due, plus attorney's fees, costs,
and punitive damages. Hemphill countersued for breach of
contract, seeking $23, 677.04 in damages.
After a three-day trial, the jury found in favor of Hemphill
on both HAS's claims and Hemphill's counterclaim.
However, the jury declined to award Hemphill monetary
damages. The subcontract entitled the "prevailing
party" to reasonable attorney's fees and expenses.
Hemphill filed a post-trial motion for attorney's fees.
Hemphill sought $105, 506.72 - $101, 787.71 of which was
expended to defend against HAS's claims. Hemphill
attached detailed spreadsheets listing the time its attorneys
spent on the case and their hourly rates. The trial court
entered judgment for $90, 000 in attorney's fees, an
amount the trial court believed was spent in defense of
HAS filed a motion for new trial or, in the alternative, a
motion for judgment notwithstanding the verdict (JNOV). HAS
argued that the trial court erred (1) in allowing Hemphill to
use two of its peremptory strikes to exclude two African
Americans from the jury, arguing neither pretext nor
purposeful discrimination,  and (2) in not finding the
unilateral attorney's-fees provision of the contract to
be unconscionable. The trial court denied HAS's motion
for new trial and alternative motion for JNOV.
In its briefs, HAS complains of the attorney's-fees award
and argues that the trial court mishandled the
Batson hearing when HAS challenged Hemphill's
use of peremptory strikes on Juror 7 and Juror 13,
both African-American males.
Dual standards of review apply in today's case. In
reviewing a claim for a Batson violation, we follow
the standard set by the United States Supreme Court, which
states that "[o]n appeal, a trial court's ruling on
the issue of discriminatory intent must be sustained unless
it is clearly erroneous." Snyder v. Louisiana,
552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175
(2008) (citations omitted). We will not overrule a trial
court on a Batson ruling unless the record indicates
that the ruling was clearly erroneous or against the
overwhelming weight of the evidence. Booker, 5 So.3d
at 357-58. We "afford  great deference to the trial
court's finding of whether a peremptory challange was
race neutral . . . because finding that a striking party
engaged in discrimination is largely a factual finding."
H.A.S. I, 2016 WL 3091754, at *3. A trial
court's decision to award attorney's fees is subject
to the abuse-of-discretion standard of review. See
Wyssbrod v. Wittjen, 798 So.2d 352, 357 (Miss. 2001);
Terex Corp. v. Ingalls Shipbuilding, Inc., 671 So.2d
1316, 1324 (Miss. 1996).
Batson requires a three-step analysis. See
H.A.S. I, 2016 WL 3091754, at *3. This three-step
process is to prevent peremptory strikes from being used in a
racially discriminatory manner. Pitchford v. State,
45 So.3d 216, 224 (Miss. 2010) (citing Batson, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).
First, the party objecting to the peremptory strike of a
potential juror must make a prima facie showing that race was
the criterion for the strike. Second, upon such a showing,
the burden shifts to the State to articulate a race-neutral
reason for excluding that particular juror. Finally, after a
race-neutral explanation has been offered by the prosecution,
the trial court must determine whether the objecting party
has met its burden to prove that there has been purposeful
discrimination in the exercise of the peremptory strike,
i.e., that the reason given was a pretext for discrimination.
Pitchford, 45 So.3d at 224. This Court consistently
has held that:
[t]he Batson doctrine is not concerned with racial,
gender, or ethnic balance on petit juries, and it does not
hold that a party is entitled to a jury composed of or
including members of [a] cognizable group. Rather, it is
concerned exclusively with discriminatory intent on
the part of the lawyer against whose use of his peremptory
strikes the objection is interposed.
Strickland v. State, 980 So.2d 908, 915 (Miss. 2008)
(quoting Ryals v. State, 794 So.2d 161, 164 (Miss.
2001)) (emphasis added).
"Unless a discriminatory intent is inherent in the . . .
explanation, the reason offered will be deemed race
neutral." Randall v. State, 716 So.2d 584, 588
(Miss. 1998). This process does not demand an explanation
that is persuasive, or even plausible - "any reason
which is not facially violative of equal protection will
suffice." Id. "[R]ace neutral explanations
must be viewed in the light most favorable to the trial
court's findings." Walker v.
State, 815 So.2d 1209, 1215 (Miss. 2002). It is
well-established for Batson determinations that:
[a] reversal will only occur if the factual findings of the
trial judge appear to be "clearly erroneous or against
the overwhelming weight of the evidence." Tanner [v.
State], 764 So.2d 385, 393 (Miss. 2000). . . . "On
appellate review, the trial court's determinations under
Batson . . . are accorded great deference because
they are based, in a large part, on credibility."
Coleman v. State, 697 So.2d 777, 785 (Miss. 1997). .
. . The term "great deference" has been defined in
the Batson context as meaning an insulation from
appellate reversal any trial findings which are not clearly
erroneous. Lockett v. State, 517 So.2d [1346, ] 1349
Booker v. State, 5 So.3d 356, 357-58 (Miss. 2008)
(quoting Smith v. State, 835 So.2d 927, 940 (Miss.
2002)). This standard conforms to the United States Supreme
Court's ruling in Snyder, 552 U.S. at 477, which
held that "[o]n appeal, a trial court's ruling on
the issue of discriminatory intent must be sustained unless
it is clearly erroneous." See also Hernandez
v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114
L.Ed.2d 395 (1991) (quoting Wainwright v. Witt, 469
U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985))
("[d]eference to trial court findings on the issue of
discriminatory intent makes particular sense in this context
because . . . evaluation of the prosecutor's state of
mind based on demeanor and credibility lies 'peculiarly
within a trial judge's province.'"). In
Hernandez, the United States Supreme Court added
that "in the absence of exceptional circumstances, we
would defer to [the trial court]." Hernandez,
500 U.S. at 366, 111 S.Ct. 1859.
At the beginning of voir dire, the trial court introduced
HAS's client, Harry Schepens, to the venire. Well before
the Batson issue arose, Hemphill's attorney
asked the venire:
Mr. Schepens (HAS's founder and star-witness) has had
some medical issues. I don't know if they're going to
impact this trial, but I am concerned about sympathy. . . . I
want to know that you can just listen to the testimony and
not let any medical issues cloud your judgment. I want to
know that you can be fair and impartial and listen just to
sixty-seven-year-old prospective juror (Juror No. 28)
conceded that Schepens's condition would cause her
not to be fair and impartial. Additionally, the panel was
informed that this was a construction case involving "a
subcontractor-contractor dispute." ¶11. A review of
the first hearing transcript revealed to Judge Emfinger that
he "got . . . off kilter" by Davis's (HAS's
attorney's) asking for an immediate race-neutral reason,
contrary to the trial court's customary practice. In the
remand analysis, the trial court clarified his own words. The
trial court recognized that, not only had it failed to follow
its normal, procedural analysis of Batson pursuant
to Rule 4.05 of the Uniform Rules of Circuit and Chancery
Court Practice, but it had mistakenly said a
"pattern" had not been proven, rather than stating
HAS had failed to show a prima facie case of purposeful
discrimination. Although, a pattern is not an essential
element to establish a prima facie showing of purposeful
discrimination, it is an element which can be used.
Upon receipt of the remand order, Judge Emfinger reviewed the
transcript of the first hearing and, without objection,
attached a copy of the jury list with his notes and jury
information cards as exhibits to this record. 
On remand, Judge Emfinger readily recognized his mistake,
recounting his reaction to HAS's attorney's
. . . Mr. Davis responded, "Judge, we'll just point
out that that's the first black we've reached on the
Now, at that point in time none of these attorneys in this
case, I've never been in a jury trial with any of these
attorneys, I did not know -- so they didn't know what
process the court may use in considering Batson
challenges and what process may be in place to designate
who's white, who's black, who's male, who's
female. So when Mr. Davis said that, I assumed that he was
making a record that this was a black juror that had been
. . .
But that's why when he made that statement, "Judge,
we'll just point out that that is the first black
we've reached on the panel, " when I said
"anything further, " I really didn't expect
there to be anything further. That's just what I always
say when something comes up.
But, in any event, Mr. Davis at that point said, "Judge,
we -- I guess we would go ahead and ask for a race neutral
reason because it's the first black we've reached on
the panel at this time of the venire."
Now, at that point, I think I made my first mistake. Under
the Uniform Rules of Circuit and County Court Practice, Rule
4.05, Jury Selection Process, 4.05(b) says that
"constitutional challenges to the use of preemptory
challenges shall be made at the time each panel is
Now I've always done that and that's the way that
it's always been done in my presence when I was both a
practicing attorney and since I've been on the bench and
I don't know why at this point I allowed Mr. Davis to go
forward with his Batson challenge.
You can look on down to -- on page 53, and lines 19 through
24, when Mr. Davis again wanted to raise a Batson
challenge. On line 23, I said, "I'm going to let you
make that objection at the end, " meaning when whole
panel had been tendered again.
I consider that when Mr. Davis had tendered 12 people to the
defense that that was the proper time for the defense to
raise any Batson or reverse Batson
challenges that it might wish to use. After the defense then
had gone through all 12 of the panel of the jurors that were
tendered to them, then that would have been the appropriate
time for Mr. Davis to have raised any Batson
challenges. However, I allowed him to go forward here so I
think that's part of what got us off kilter there was I
allowed that challenge to proceed prior to the time it really
should have at the conclusion or after the defense had
considered all 12 jurors that had been tendered to them.
Now next I say, "Well, I don't see how in the world
you can have a pattern after one strike, but I will, as I
believe the cases say, I should ask you for a race neutral
reason for Number 7, Taylor." Now my thought process is,
at that point in time, I was finding that Mr. Davis had not
made a prima facie showing of racial discrimination.
I used the word pattern. I used the word pattern because in
all the cases I've ever dealt with and I've ever
seen, prima facie cases have been based upon there being a
pattern in the number of strikes, all the strikes being used
against black jurors or a disproportionate number being made
against black jurors as opposed to white jurors.
But there was nothing in this case as it existed, nothing
during the voir dire or nothing that was said that existed
outside of the fact that this was the first black juror that
was presented and it was the first black juror that was
stricken by the defense as Dl. But while I used the word
pattern, I was finding that there was not -- that the defense
-- excuse me, that Mr. Davis had not made a prima facie
showing of racial discrimination.
Now what happened next was the process that I believe I was
required by a prior Mississippi Supreme Court rulings to
make. I had always, both as a practicing attorney and since
I've been on the bench, the practice has been that even
if you found that there was not a race -- a prima facie
showing of racial discrimination the court would always go
forward and make a record for appellate purposes and require
or ask that a race neutral reason be given. That's how
we've always done it in this district and how I've
always seen it done; so that if I was incorrect in finding
that the plaintiff had not made a prima facie showing of
racial discrimination, that the record would be complete for
the Supreme Court to consider. . . .
When Davis raised Batson regarding Juror 7, Judge
Emfinger states that he assumed Davis was merely noting for
purposes of the record that Juror 7 was an African American.
Although Judge Emfinger stated "Anything further?"
he did not expect a reply. At that point, Davis made a
premature demand for a race-neutral reason. Judge Emfinger
accommodated Davis's request, which HAS claims was error.
Judge Emfinger offers that this accommodation was contrary to
his practice as an attorney and as a trial judge. Judge
Emfinger acknowledged that he failed to follow Rule 4.05 of
the Uniform Rules of Circuit and County Court Practice, which
reads that "[c]onstitutional challenges to the use of