what occurred in her interviews with the jurors. Even though the affidavit may be literally accurate, the trial court could have viewed Davis's affidavit as misleading. The focus of the trial court's concern, as shown by its questions and statements at the hearing, was whether Davis had directly questioned any of the jurors about the Koon Kreek Klub testimony without them raising the issue first. By narrowing her affidavit testimony to address only whether she questioned jurors about their deliberations, Davis avoided admitting she had been engaged in the broader conduct about which the court was concerned.
Davis contends that she attempted to inform the trial court about her discussions with Perkins during the hearing on the motion for new trial but the court cut her off before sheon the ground that they had been sued in the wrong capacity. Rupe requested leave to amend her pleadings to sue the defendants in the correct capacity.
At the hearing on Rupe's request, the defendants vigorously argued they would be unduly prejudiced by the late amendment, and Davis testified in support of this argument. She stated that the defense had pursued a strategy throughout the trial that they had been sued in the wrong capacity and a late amendment would vitiate this strategy. The trial court stated that it thought the defendants had not asserted a lack of capacity defense until thirty days before trial when they filed their first amended answer, counterclaim, and verified denial. The court indicated it was concerned the defendants had been "laying behind the