in Re Whataburger Restaurants Lp
429 S.W.3d 597
| Tex. | 2014Background
- Acuna sued Whataburger for injuries from a fight outside its El Paso restaurant; case went to jury.
- Voir dire included a written questionnaire asking if prospective jurors had “ever been a party to a lawsuit.” Four of 75 disclosed prior defendant status; one of those (Villalva) served on the jury.
- Jury returned a 10–2 verdict for Whataburger; trial court entered a take‑nothing judgment for Whataburger.
- After investigating jurors, Acuna moved for a new trial alleging juror Georgina Chavez failed to disclose she had been a defendant in two collection suits and a bankruptcy; Chavez testified the omissions were honest mistakes.
- Trial court found the nondisclosure material and that probable injury resulted, granted a new trial; Whataburger sought mandamus relief to reinstate the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juror nondisclosure warrants new trial | Chavez failed to disclose prior defendant status; this was juror misconduct justifying a new trial | Even if Chavez erred, Acuna failed to prove the nondisclosure probably caused injury | Trial court could find misconduct but abused discretion by granting new trial because no evidence of probable injury |
| Whether nondisclosure was material per se | Nondisclosure of prior lawsuits is material to juror impartiality | Prior defendant status is not a legal disqualification and not per se material here | Not per se material absent legal disqualification; court did not decide materiality because probable injury lacking |
| Sufficiency of counsel’s testimony about strikes | Acuna’s attorney testified he would have questioned/struck Chavez if disclosure had been made | Such testimony is speculative without evidentiary support; counsel’s actual conduct undermines claim | Attorney’s hypothetical testimony is conclusory and insufficient to show probable injury |
| Whether pattern of strikes supports probable injury | Chavez’s nondisclosure differed from others and affected verdict | Four jurors disclosed similar defendant status; Acuna did not question or strike them, undermining claim | Pattern of record (no strikes/questions for other jurors) supports conclusion that probable injury not shown |
Key Cases Cited
- In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (mandamus review of new‑trial reasons; standard for abuse of discretion)
- Golden Eagle Archery v. Jackson, 24 S.W.3d 362 (Tex. 2000) (elements required to warrant new trial for juror misconduct)
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (probable injury standard: verdict likely would have been same absent misconduct)
- In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (new‑trial reason must be legally appropriate and specific to facts)
- In re Ethyl Corp., 975 S.W.2d 606 (Tex. 1998) (unsupported attorney speculation entitled to no consideration)
- Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (damages based on speculative hypothetical are not competent evidence)
- Szczepanik v. First S. Trust Co., 883 S.W.2d 648 (Tex. 1994) (future income projections without foundation are speculative)
- Burton v. R.E. Hable Co., 852 S.W.2d 745 (Tex. App.—Tyler 1993, no pet.) (erroneous answer that causes disqualification is per se material)
- Mrs. Baird's Bread Co. v. Hearn, 300 S.W.2d 646 (Tex. 1957) (probable injury analysis in juror misconduct context)
- Fountain v. Ferguson, 441 S.W.2d 506 (Tex. 1969) (probable injury required for new trial on juror misconduct)
- Pharo v. Chambers County, 922 S.W.2d 945 (Tex. 1996) (misconduct and causation are factual questions)
- Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705 (Tex. 1989) (materiality evaluated in context of the record)