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H.A.S. Electrical Contractors, Inc. v. Hemphill Construction Company, Inc.

Supreme Court of Mississippi

October 12, 2017

H.A.S. ELECTRICAL CONTRACTORS, INC.
v.
HEMPHILL CONSTRUCTION COMPANY, INC.

          DATE OF JUDGMENT: 03/24/2015

         RANKIN COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER JUDGE

          ATTORNEY FOR APPELLANT: JIM L. DAVIS, III

          ATTORNEYS FOR APPELLEE: DAVID BONDS ELLIS DANNY ALTON DRAKE

         EN BANC.

          RANDOLPH, PRESIDING JUSTICE

         ¶1. This case returns after remand to the trial court, which was instructed to complete a Batson[1] analysis.[2], [3] 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.

         ¶2. 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 Hemphill.[4]

         BACKGROUND FACTS AND PROCEDURAL HISTORY

         ¶3. 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[5] was due, plus attorney's fees, costs, and punitive damages. Hemphill countersued for breach of contract, seeking $23, 677.04 in damages.

         ¶4. 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's claim.

         ¶5. 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, [6] 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.

         ¶6. 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, [7] both African-American males.

         STANDARD OF REVIEW

         ¶7. 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).

         ANALYSIS

         I. Batson

         ¶8. 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).

         ¶9. "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 (Miss. 1987).

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.

         ¶10. 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 that testimony.

         One sixty-seven-year-old prospective juror (Juror No. 28) conceded that Schepens's condition[8] 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.

         ¶12. 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.[9] [10]

         ¶13. On remand, Judge Emfinger readily recognized his mistake, recounting his reaction to HAS's attorney's statement:

. . . Mr. Davis responded, "Judge, we'll just point out that that's the first black we've reached on the panel.
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 stricken.
. . .
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 tendered."
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. . . .

         ¶14. 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 ...


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