*2 McCLUNG, Before LAGARDE and OVARD, JJ.
OPINION ON MOTION FOR REHEARING OVARD, Justice. prior Our opinion dated June withdrawn,
hereby following opin- and the ion is substituted place on its both OKC’s rehearing. and UPG’s motions for Corporation Corporation OKC and OKC Liquidating (OKC) appeal Trust from an judgment, adverse rendered after a UPG, of favor Inc. OKC raises forty-two points appeal, partial- error on ly counterpoints, in ten reiterated which involving: address issues bailiff miscon- duct, contracts, enforceability of sufficien- evidence, cy of the and exclusion admission exhibits, certain objec- and requests tions to ques- and for submitted tions and instructions in the to the jury, prejudgment and the award of inter- est. responds UPG and raises two cross- points appeal. Finding of error no merit any points of OKC’s or error cross-points, affirm judgment trial court. Corporation,
OKC
succeeded
OKC
Trust,
Corporation Liquidating
began
first
sup-
transactions with UPG in 1977. UPG
operation
plied crude oil to OKC for the
refinery
Okmulgee,
OKC’s
at
Oklahoma.
were
transactions
evidenced
certain
agreements,
written
which
one of
is the
subject of
lawsuit.
this
Pursuant
document,
subject
March 1979
of this
lawsuit,
quantities
UPG delivered various
oil,
accepted,
of crude
which
OKC’s
refinery
Okmulgee,
Oklahoma. These
deliveries,
varying quantities,
occurred
decided, pur-
on a monthly basis until OKC
liquidation process,
suant to its
to sell off
refinery-related
subsidiaries
some
its
their
and
stock
assets. Effective Janu-
2, 1981,
(BRI)
ary
Refining,
pur- meaning
“mitigation
damages”
Basin
Inc.
refinery
chased
Okmulgee
mitigate”
employed
OKC’s
“failure
in the
Thereafter,
began
charge.
pre
related
de-
prepared by
assets.
A note was
done
livering
siding juror
oil BRI as
In
crude
for
and shown to the bailiff.
operated
passing
OKC when OKC owned
stead of
the note to the
May
decision,
Okmulgee refinery.
jurors
UPG his
the bailiff told
*3
for which
charge
BRI
any
delivered crude oil to
BRI
of the terms used in the
attempts
pay.
specific legal meaning,
did
After unsuccessful
words
not
a
those
BRI,
approached
charge.
in
to collect from
UPG
OKC would
been defined
the
have
contending
merely
that OKC
payment,
for
The
for
bailiff then stated that
undefined
words,
document to BRI.
the
assigned
jurors
supposed
1979 March
were
to use
the
common,
though
meaning
ordinary,
even
position
everyday
that
OKC
and
BRI,
refinery
assets to
sold
and related
words.
its
right to crude oil
retained the
OKC still
In order to
obtain a new trial
obligation
as the associated
delivery as well
misconduct,
juror
basis of
or bailiff
delivered,
payment for crude oil
because
(1)
complaining party
must show:
that
assigned
the March 1979 document was
occurred; (2)
misconduct
that it
mate
was
Thus,
and not sold to BRI.
UPG maintains
rial;
that,
and
based on the
as a
record
that,
assign-
pursuant
general
to the
law of
whole,
in
probably
the misconduct
resulted
ments,
pay-
secondarily
liable for
OKC
complainant. Redinger
harm to the
v. Liv
ment for the crude oil deliveries
since
Inc.,
(Tex.1985);
419
ing,
pay
pay,
BRI
to
OKC must now
was unable
Dosher,
(Tex.
Flores v.
to
It
for the crude oil delivered
BRI.
1981);
Corp. Weatherby
Baker Marine
it
its refin-
position
OKC’s
that when
sold
Co.,
Engineering
assets,
ery
completely
divest-
and related
1986, writ);
App. Corpus Christi
Tex.
—
operations, includ-
refinery
ed itself from
327(a).
alleged
The
misconduct
R.Civ.P.
obligations
payment
ing any
for
of crude
during
process,
occurred
the deliberation
pursuant
to March
document.
voting.
dis
prior
any
Specifically,
to
while
argues
the March
OKC
concerning
cussing
six
question number
contract,
merely
was not a
but
document
mitigation
some confusion
damages,
agreement
a
date for
agree
to
at
later
meaning
“mitigate,”
regarding
arose
places
future crude oil transactions. OKC
question.
question
as used in the
The
March
great emphasis on the fact that the
as
reads
follows:
specific
a
1979 document fails to mention
QUESTION NO. 6
quantity of crude oil that shall be delivered
damages,
mitigate
Did
fail to
its
light
In
BRI
month.
UPG to
each
to
any, resulting
Basin’s failure
from
background
factual
the aforementioned
in
1981?
pay
May,
oil delivered
for crude
suit,
to
we now address
giving rise
this
“Yes” or “No.”
Answer
arguments.
OKC’s
No
ANSWER:
question
proof
The
for this
burden
BAILIFF MISCONDUCT
is on OKC.
two,
points
of error one and
OKC
answering
you are in-
question
this
bailiff,
argues
certain actions
party
has sustained
that a
who
structed
Peden, during
Donna
deliberation
has a
damages from a breach of contract
misconduct of such a
process, constituted
diligence to mini-
duty to use reasonable
Ad
as to
a
grave nature
warrant
reversal.
damages,
required
is not
mize its
but
contends that
ditionally, right of
own.
a
sacrifice
substantial
alleged miscon
judge, in whose court the
damages does not
duty minimize
occurred,
in
his discretion
duct
abused
injured party
has notice
arise until
miscon
himself from the bailiff
recusing
repudiation of the contract.
a
or
breach
directs
hearing. Specifically, OKC
duct
presiding ju-
prepared by the
during delib A note
to the fact
our attention
Yohe,
ror,
the bailiff
concerning
show
eration,
Linda
question arose
jurors
regarding
concern
certain
(the
words word and not to make it
deliberation
question.
used in the
The note reads
process)
as
harder than it
be.
had to
disagreement
follows: “We
are
charge ap-
At the commencement of the
‘mitigate’
definition of
word
as to
following
pears the
admonition:
”
mitigate.’
its use in
phrase
‘fail to
If
used in
questions
words are
Regarding
the conversation
conduct
sense
meaning
which varies from the
Yohe,
juror,
presiding
between Linda
understood,
commonly
you
given
will be
Peden,
bailiff,
and Donna
concerning
proper legal
this
definition
note,
mitigation
the record reflects
words,
you
for such
bound
which
are
that,
hearing
motion
OKC’s
accept
place
any
other definition or
new
“I
Yohe testified
had the
meaning....
my
opened
note in
and had it
hands
she
continued,
note.” Yohe
“I
read the
[Peden]
We
question
consider
words
that follow
*4
actually
don’t recall if it [the note]
number
was—
six
explanatory
as more of an
in-
hands,
passed
actually
whether she
took
struction
legal
than
proper
rather
defini-
possession
full
of it. I
read
know she
the
tion, considering the language used in that
note.” Later Yohe concluded:
instruction as
as
explicit
well
the more
I still
note in my possession,
had the
language
in
used
the definition of other
why
I
that’s
I said don’t
if
recall when I
charge
“preponder-
terms in the
such as
gave
feel
her—I
certain
I
that because
evidence,” “waiver,”
ance
the
and “con-
it,
up
ended with
that she read it while I
knowledge.”
structive
Having so charac-
hand,
was
in
holding
my
it
feel fairly
I
instruction,
explanatory
terized the
we
certain,
fuzzy.
but
that’s still
kind
treat the
jurors
bailiff’s advice to the
up
But I ended
with the note.
merely a paraphrasing of the admonition
Yohe later
that
stated
Peden never refused
appears at
beginning
which
the
of the
to deliver a
from jury
note
the
to the court.
charge.
affidavit,
Specifically, in Yohe’s
contained
determine,
We
as the trial court
supplemental
record,
in a
transcript in the
found, that the
action
the bailiff consti
she swore
“[concerning
mitiga-
misconduct,
tuted
and that it was material.
question,
tion
the bailiff did not refuse to
next
is
inquiry
probable
Our
whether
harm
mitigation
submit the
judge.
note
to
complainant.
resulted to the
Redinger,
After the
my previ-
discussions described in
prove
probable
the admonition appropriate apply rule under cific *5 trial court would have likely, was what the 327(a). circumstances. Tex.R.Civ.P. these proper procedures the jury told had the provides pertinent part: rule That had utilized. the trial court ground been a new the of motion for “When opportunities to correct the error two ... is misconduct of the or the trial them, the court considered it reversible—first ... the of officer issue, hearing the misconduct hear evidence thereof....” bailiff shall Tex.R. added). 327(a) (emphasis rule This secondly, upon presentation of OKC’s Civ.P. judge to mandatory for a trial makes alleging bailiff miscon- motion for new trial trial of misconduct of the hear evidence judge posi- in the best The trial was duct. judge A the best court’s officers. trial mis- his bailiff’s to determine whether tion determine, and should be position to new a trial because conduct warranted determine, misconduct alleged to if the one during the present exami- judge trial was harmed one probably of its officers of one witnesses, presentation nation parties. Consequently, we deter development evidence and the judge neither who heard mine that determined judge issues. Had for new trial based OKC’s motion jurors’ he have answered that would judge nor the trial abused recusal issue different from that question in a manner denying motion. discretion in OKC’s their bailiff, have declared that he could his 18a(f). error number Point of Tex.R.Civ.P. his bailiff’s harm resulted from probable two overruled. granted a Be- new trial. misconduct and a trial grant he new after failed cause ENFORCEABILITY CONTRACT being hearing and after misconduct motion for new OKC’s 1979 doc- presented with the March OKC maintains that ument, found con- determine OKC and UPG we under which transactions, an in reference was not inconsequential misconduct crude ducted law law Because the case as a matter of jury’s verdict. contract enforceable quan- from exact distinguishable specify the upon by OKC is it failed to relied because be delivered the bailiff’s oil which tity case and because of crude present main- refinery month. UPG each a mere restatement to OKC’s comment quantity is specific instructions, the lack of we determine tains that charging enforceability of the doc- fatal to the the miscon- not has failed to show that course and UPG’s probable because OKC’s ument bailiff resulted duct
305 conduct, document, pursuant proves Moreover, general rule concern the existence of a ing contractual intent to be assigned contracts holds that the as bound the document. signor discharge liability does not under upon assignment assign- the contract begin analysis by noting gen We ee; assignor secondarily remains liable agreement eral rule that an as to the silent pay the contract must under where quantity issue of is not enforceable assignee Birge to do is unable so. See See, e.g., contract. Weitzman v. Stein 754, 380 Community Corp., Fin. S.W.2d 171, berg, (Tex.Ap p 638 S.W.2d 175 —Dal 1964, (Tex.Civ.App. 756 writ Antonio 1982, writ); Vaughn las no — San Miller & n.r.e.) (assignor non-negotiable ref’d 852, Co., Taylor Constr. 345 S.W.2d note surety); treated as Burton Co. W.T. (Tex.Civ.App. Worth writ ref’d — Fort Co., v. Keown Contracting n.r.e.); Co., Gordon v. Emerson Shoe (Tex.Civ.App. (Tex.Civ.App. S.W. 795-96 — Beaumont — Beaumont n.r.e.) (assignor writ ref’d liable as endors 1922, writ). no We also note that the Uni non-negotiable er on instrument unless en (UCC) form provides Commercial Code qualified). Consequently, dorsement “gap quantity filler” for a term left out of hold that the March 1979 document awas agreement, supply missing but does binding and contract to the enforceable ex dealing place terms with time and of deliv goods tent of the delivered to and received ery, price. as well as See Tex.Bus. & Com. accepted by We do BRI. not reach the 2.305, (Tex.UCC) 2.308-.310 §§ Code Ann. whether, (Vernon goods issue of had no been deliv 1968). BRI, BRI ered to or OKC could have However, courts should strive to hold forced, through specific per an action for enforceable, possible, contracts where formance, UPG to deliver a certain amount allegations uncertainty. amidst See oil, of crude for that issue is not before us. Holden, 179, 183, Dahlberg v. 150 Tex. argument OKC makes the alternative (1951); Acuna, Guzman v. the March 1979 document can be (Tex.App.—San ton An contract, dism’d). treated as an enforceable the evi Moreover, io writ the UCC *6 dence established of enforceable, “matter provides that a contract is law,” the contract was not enforceable. satisfy require even it fails to the formal prevail upon order to a “matter formation, of law” ments of contract long so as it is evidentiary challenge, the movant must respect goods valid with which have (1) show: that the record fails to establish accepted. been received and Tex.Bus. & examining the fact finder’s answer after 2.201(c)(3) and comment §§ Com.Code Ann. only finding, 2, the evidence favorable to the 2.204(c) (Tex.UCC)(Vernon and comment evidence, and, disregarding any contrary 1968). goods Where have been received additionally, that the record affirmative accepted, part performance, which will ly proposition establishes the movant’s as a agree save an otherwise unenforceable Watts, Holley matter of law. v. 629 ment, is deemed to have occurred. See 694, (Tex.1982); S.W.2d 696 Southern Slemons, 448, 452, Con Hutchings v. 141 Tex. Fin., Inc., crete Co. v. Metrotec 775 S.W.2d 487, (Tex.Comm’n App. 489 446, 1989, writ); (Tex.App. 448 no 1943, opinion adopted); Collins v. William — Dallas Haass, Marwick Main v. 775 Peat S.W.2d 489, Cory., 746 Printing son S.W.2d 493 1989, 698, (Tex.App. 706 Antonio writ 1988, writ). (Tex.App. — San — Dallas record, granted). After a review of the case, undisputed In our it is determine that OKC has failed to meet this accepted May BRI received and 1981 of error three is burden. Point number shipment crude from UPG. overruled. found, response question one, that neither nor BRI number OKC JURY CHARGE ERROR terminated or cancelled the March 1979 points chal- entered into UPG and OKC In numerous OKC contract 2, charge assigned January lenges to BRI on the submitted that was 306 questions proposition
basis of and instructions movant’s as a matter of law. which allegedly erroneously either were included at Holley, 629 S.W.2d 696. When review improperly Specifically, or challenge, excluded. ing appellate a no evidence an questions and instructions concern a varie- only court must consider the evidence and ty including: of defensive issues contract therefrom, reasonable inferences drawn duration, enforceability, nova- which, when in their most favorable viewed termination^ tion, release, waiver, modification, statute light, support the court find jury verdict or frauds, mitigation damages, estoppel, disregard ing. The court must all evidence performance. and excuse of To determine contrary finding. inferences to the fact alleged jury charge an error in the whether 14, Stafford, 726 S.W.2d 16 Stafford reversible, plead- we must consider the (Tex.1987); Alm v. Aluminum Co. of presented ings parties, the evidence America, 588, (Tex.1986). 593 S.W.2d trial, charge entirety. at and the its If there more than a scintilla of evidence Alleged error will be deemed reversible support finding, no evidence if, light only when viewed challenge Stafford, fails. 726 S.W.2d at circumstances, totality it amount- of these reviewing insufficiency factual rights ed such a denial points, appeals a court of will consider all complaining party reasonably as was calcu- in the record that is rele of the evidence probably did cause the rendition lated and challenged. The being to the fact vant improper judgment. Island Rec. only if may set aside the verdict it Sav., 710 Republic Dev. v. Texas S.W.2d overwhelming weight of contrary so (Tex.1986); Title Stewart Guar. clearly wrong and the evidence as to be Sterling, 772 Co. v. S.W.2d Bain, 175, 176 unjust. Cain App. writ de [14th Dist.] (Tex.1986). appellate — Houston court is Because an nied); Ins. Co. v. Southwestern finder, pass upon Life may not not a fact Green, (Tex.App. S.W.2d — El credibility or substitute witnesses Tex.R.App.P. denied); writ Paso This the trier of fact. for that of 81(b)(1). reviewing pleadings of conflicting evidence is true even if there is UPG, presented both the evidence upon a different conclusion could be which in its entire as well as Corp., 705 supported. Clancy v. Zale charge er ty, any jury we determine (Tex.App — Dallas degree ror, grave of such a any, was not n.r.e.). writ ref’d Dev., a reversal. Island Rec. as to warrant Tex.R.App.P. 555; 81(b)(1). 710 S.W.2d at law” chal a “matter of OKC raises four, Therefore, points of error numbers evidence shows lenge contending that the five, seven, through twenty- eight, fourteen as a expired 1979 contract March *7 two, through thirty-nine are twenty-six and the above- applying matter of law. When overruled. review, together mentioned standard of 1979 contract the facts that the March with EVIDENCE SUFFICIENCY terminat it shall be specifically states that six, nine, and points of error numbers only thirty-day advance written ed eleven, various insufficient evi- OKC raises to contain such and the record fails notice evidence, dence, “matter of law” termination, hold that we written notice of concerning challenges to issues evidence expire as a did not the March 1979 contract formation, and oil de- expiration, contract Holley, 629 S.W.2d at matter of law. pursuant to the March 1979 contract. livery overruled. error number six is Point of earlier, prevail in order to on a As stated insuf asserts both no and evidentiary challenge, the OKC also “matter of law” maintaining (1) challenges dis- ficient evidence that: after movant must show May BRI in that the crude oil delivered contrary to the find- regarding all evidence March pursuant was not finding, remaining evidence of 1981 er of fact’s further, and, the March 1979 contract finding; support the fails to contract. was not a 1979 document affirmatively establishes record record, record, jury’s an examination of the we are unable to hold that two, response question evidentiary as well number error in its court committed furthermore, covering and, any alleged contract en- rulings discussion forceability, committed, we the evi- determine that not of the error was it was Gee, suffi- factually legally dence is both magnitude a reversal. to warrant twelve, prove ten, cient to that the crude oil delivered error S.W.2d at 396. Points of May pursuant of 1981 was thirteen, through twenty-five, BRI twenty-three March 1979 document the March and that forty, forty-one are overruled.
1979 document was indeed a contract. Cain, 16; Stafford, 726 S.W.2d at PREJUDGMENT INTEREST numbers S.W.2d at 176. Points of error error, con point its final OKC nine and are eleven overruled. pre tends that the trial court’s award of percent, interest at a rate of ten EXHIBITS TESTIMONY AND annually, compounded was erroneous be points In several OKC con law, cause, as a matter of the rate is six tends that certain and witness tes exhibits percent simple upon interest. relies timony erroneously were either admitted 5069-1.03, maintaining that the sum article improperly the evi into or excluded from reasonably from payable is ascertainable Specifically, dence. OKC maintains that the account or contract itself. Tex.Rev.Civ. testimony the excluded and exhibits were (Vernon 1987). art. 5069-1.03 StatAnn. objections relevant and that UPG’s were not payable maintains the sum general appellate scrutiny. too to withstand readily ascertainable from the March The excluded and exhibits were contract; therefore, general the more arti kept from the properly evidence because cle, 5069-1.05, applicable. Tex.Rev.Civ. properly the trial court considered them 1987). (Vernon art. 5069-1.05 Stat.Ann. par irrelevant to the issues raised provides: Article 5069-1.03 further, reviewing ties and after specified When no rate of interest record, objections sufficiently were agreed upon by parties, interest at specific. Regarding the admitted letter percent per annum shall the rate of six concerning supply termination from one be allowed on all accounts and contracts employees sup to one of OKC’s OKC’s ascertaining payable, the sum commenc- pliers, properly it was admitted as evidence (30th) ing day from and the thirtieth previously supply terminated that OKC after the time when the sum is due and proce contracts and was well aware of the payable. Moreover, necessary dure to do so. when (Ver- art. 5069-1.03 reviewing evidentiary a trial court’s rul Tex.Rev.Civ.Stat.Ann. 1987). non After a review of the March uphold the ings, appellate court should contract, so, 1979 under which UPG and OKC any ground doing ruling there is months and which is operated for several ground urged at the even if the was not lawsuit, cannot locate the focus of this trial court level. State Bar Texas “ascertains the sum (Tex.1989). any language which Evans, 658 n. 5 art. 5069- judg payable.” of a to obtain reversal Tex.Rev.Civ.Stat.Ann. Moreover, Supreme in 1.03. the Texas Court upon error of the trial court ment based evidence, has held that article 5069-1.03 does or exclusion of admission *8 (1) prejudgment of apply to a determination complainant must show that: error; (2) pro- contract in a case where the the error interest court committed ascertaining in the mea- guidance vides no reasonably calculated to cause and damages by party to the an im sure of suffered a probably did cause the rendition of contract. Land & Cattle Co. judgment. Liberty Mut. Rio Grande proper Gee v. (Tex.1988); Co., Light, 748 765 396 v. 758 S.W.2d Fire Ins. S.W.2d Olcott, Richardson, 744 S.W.2d Roofing v. 1989); Perry 163 Co. Bridges City v. of (Tex.1988); Quality (1962); 930 Cavnar Tex. 354 S.W.2d Tex. R.App.P. Inc., 81(b)(1). reviewing Parking, the Control (Tex.1985). compounded interest prejudgment The March 1979 contract shall be damages; longer there- No is the com daily silent as to the measure of on a basis. fore, applica- provides pounding period article 5069-1.05 left to the discretion of the (cid:127) calculating inter- prejudgment ble rule for at 229 Wolfe, trial courts.” est, prejudg- added). of upon and the trial court’s award UPG’s reliance (emphasis per percent ten misguided ment interest at the rate of as is the is almost as Wolfe proper. Land & annum was Rio Grande of interpretation Cavnar. court’s Wolfe Co., 748; Tex.Rev.Civ. discretionary Cattle 758 S.W.2d at takes the court Wolfe (Vernon 5069-1.05, (i.e. art. prevailing “a language of § Cavnar Stat.Ann. 1987). forty-two is of error Point number plaintiff prejudgment interest may recover overruled. compounded trans daily”) and somehow non-discretionary it into a mandate forms UPG’s CROSS-POINTS (“awards prejudgment be interest shall brief, response In its to OKC’s UPG basis”) daily compounded on a for trial First, cross-points error. raises two only is this contravention of courts. Not inter prejudgment maintains that the UPG language of but it is specific Cavnar compounded should have been est awarded applicable stat also in contravention daily, on a rather than an annual basis. arts. utes. See Tex.Rev.Civ.Stat.Ann. Second, the trial court’s UPG contends that per annum com (providing 5069-1.03 complete it fails to judgment is not because (silent compound on pounding), 5069-1.05 Corporation Liq name the trustee of OKC 1987). (Vernon light facts ing) uidating first address Trust. We will (1) 5069-1.05 is silent on that: article com cross-point concerning the UPG’s interest; (2) compounding of matter of then pounding prejudgment interest and upon court’s misinter relies UPG Wolfe trustee’s the absence of the we will discuss Cavnar; dispute pretation of judgment. name in the is contractual OKC and UPG between point discussion under nature, wrongful Pursuant than a tortious rather forty-two, Cavnar, we hold that of error number we hold action addressed death interest at the rate prejudgment compounding award annual that the trial court’s proper. percent per annum was of ten proper. interest was prejudgment the interest awarded contends that UPG one is cross-point of error number daily, compounded on should have been overruled. places an annual basis. UPG rather than cross-point of In its second brief, upon the emphasis, in its Cav- great judgment should maintains support of its cases for nar Wolfe Corpora the trustee have named Quality Control proposition. Cavnar Sherman, Trust, Liquidating Daniel J. tion 553-54; Inc., City Parking, Originally, the liable defendants. as one of 228, 229-30 Wolfe, 712 S.W.2d Houston v. to Daniel J. Sher ( judgment referred Tex.App. [14th Dist.] — Houston “[tjhrough following language, inman ref’d). wrongful death action writ In a Sherman_” How- Daniel J. its Trustee held, hold “We therefore Court Cavnar OKC, ever, judgment upon motion law, plain prevailing as a matter of any reference to delete was modified to com prejudgment interest may tiff recover contended, because, Sher- as OKC Sherman (based daily 365-day year) pounded on a E. Redwine replace Charles man did time of damages have accrued trustee) liqui- (the because predecessor Cavnar, 696 S.W.2d at judgment.” terminated and Sherman dating trust had emphasis original (emphasis added bankruptcy by the merely appointed removed). authorizing pre the award of over the estate bankruptcy trustee court as interest, compounded daily, in an trust, pending the bank- liquidating action, eminent domain Wolfe be- argues that proceedings. UPG Cavnar, ruptcy stated, this well- “As we read *9 liqui- only names judgment as a matter cause the has dissolved: concern founded trustee, the naming its cases, dating without trust law, awards' types in all ineffective, judgment support as a trust is not Readers can that statement. UPG, however, legal entity. only speculate cites and reliabili- authori- as to source ty situations, ty. which holds that in certain specifical- of a not be the trustee trust need majority The draws a distinction between ly liable. named hold trustee With- Logan the facts this case and those judgment, ruling scope out (Tex.Civ.App Grady, 482 S.W.2d — Ft. pre- not cross-point note that the has been 1972, writ). Because the facts of Worth When appellate served for review. proper is not a two cases are not identical its motion to presented the trial court with un where the basis to draw a distinction any delete modify judgment so as to virtually identical derlying legal principle Sherman, op- reference to UPG could have cases, here. Read both such as we have posed presenting same ar- that motion ing beyond head notes of syllabus guments that it now asserts in our Court. Logan interrelated reveals there were two judgment UPG contested the on the com- court, analyzed by errors and both er pounding of interest issue but chose to supported reversing court and rors remain silent on the trustee until issue remanding for new trial. now. In order to make in an a valid claim ac- Logan involved a head-on automobile court, appellate that claim must first be Contributory negligence cident. give made in the trial court to that court an plaintiff keystone of the defense. opportunity to correct its error. San Ja The court first addressed the fact Logan Duke, cinto River Auth. v. the trial court admitted a written (Tex.1990); McKinney v. National Un witness non-party statement from a who Co., ion Fire Ins. also testified at trial. After extensive Tex.R.App.P. 1989); 52(a). Because the admis- analysis, Logan court held
raising point ap this for the first time on harmful, sion of the statement reversible peal, properly it is not before this Court. error because the statement contained Consequently, cross-point UPG’s second of many During conclusions. de- inadmissible error is overruled. liberation, juror noted some differences The trial court’s is affirmed. statement exhibit and between written testimony of the witness. The oral McCLUNG, Dissenting opinion by J. they jury requested be allowed to hear again. failed to testimony oral The bailiff McCLUNG, Justice, dissenting. request communicate this to the court. respectfully I majority dissent. The The noted that this failure Logan court serious, very grave, treats this and forbid- jury caused the to have before it inadmissi- insignifi- den misconduct of this bailiff as bearing on the issue of con- ble evidence consequence. cant of no I it as a view tributory negligence. Id. at 320. The bail- flagrant process. most violation of due jury iff instructed the its members granted The trial court should have already Logan had all needed. The Prompt recognition motion for new trial. prejudicial and revers- held this transaction emanating of the obvious harm from a error, also. Id. at 322. ible sequence proba- of events such as occurred holding majority misinterprets scarcity of author- bly accounts for the suggest Logan They court. the deci- perplex- I find it itative cases. somewhat being deprived of jury sion turned on the way up ing that this case has worked its I read the key of a witness. judicial point, ladder to this and some- given say inadmissible case to astonishing can cas- majority what overemphasized by a which was evidence harm occurred since ually determine no direct bailiff that had a trial error of the likely, what what the bailiff said was “most jury. bearing pivotal issue before the on a jury had trial court would have told the Thus, prejudice arose. I procedures been utilized.” do proper majority I our case. The clairvoyance. of such turn now to enjoy the benefit position absolutely nothing in this record takes the cavalier There is *10 deprived nothing. suggest was I that A review the at trial reveals sup- jury deprived Strange, manager the was that T.J. everything. The UPG’s marketing, he jury ply denied that knew judge. was contact with the testified at least in problems of Basin’s financial jury right The was isolated and denied the 1981, early as March April maybe as of direct judge. communication with the collecting from he that When discovered jury The was right denied the of freedom difficult he recom- probably Basin would be from outside jury influence. The was de- immediately collect what mended that UPG right nied the of freedom from unautho- delivering crude to stop was owed and rized jury communication. The was denied the de- testimony described Basin. Other opportunity the to make an deci- informed made from liberate and accelerated efforts sion on all issues. Basin from May May to collect 27 to damages The issue of mitigation of was a April. month of was owed the what for hotly contested question of fact at trial. manager, Smith, tes- operations Carl key appellant’s This was a issue of defense. deliveries they that had tified terminated very The nature question of the the jury been could have May on UPG’s losses the suggested they addressed to then, fol- had UPG Logically, cut half. against already appellant found on the con- the Strange’s lowed recommendation dispute, considering tract and were dam- it, might not have lost time he made UPG ages. jury specifically The note set out evi- probative is anything. Since there disagreement that there was a among mitigation the lack of dence about Although this, them. the note indicated ques- record, answered jury may have polled by asking then jury bailiff jury did not six as it did because the tion they meaning knew the term. of the “mitiga- meaning of the word know the did, they some said the bailiff then in- They and needed tion.” were confused jury go structed to with common clarify. It was help from the to words, make it use of the and not harder the trial court. deny them to harm access it had to The result than be. obvious by the bailiff had The trial error committed made that the bailiff’s instructions some But bearing pivotal on issue. a direct jurors witnesses” to unauthorized “secret bailiff, note conduct of the would meaning jurors proper the other As sent to trial court. have been Light the terms. See Power & Central was, opportu- the trial court never had (Tex. Freeman, 897, 898 Co. S.W.2d duty. majority nity to do its Even Civ.App. Corpus writ ref’d Christi — the trial court assuming correct n.r.e.). information, jury requests aOnce nothing said more or different would have respond. duty it becomes of the court bailiff, unnecessary en- from it is Lewis, Taylor damage gage conjecture such n.r.e.) ref’d Civ.App. writ — Amarillo The done when the misconduct occurred. (on rehearing). deprived jury The the mean- jury was left free misconstrue right response. to hear the court’s Harm arose ing “mitigation.” of the word jury hotly contest- because answered undisputed at the motion evidence ignorance. I maintain it issue out of ed conclusively trial for new established evidence, misconduct, not the was the 283 and 285 bailiff violated rules mitigation caused to answer Texas Rules of CivilProcedure. The adversely to issue OKC. court found such violation to be This that it was a error. material the en- failing In addition to to examine record, of review to analysis uncontroverted. Our standard the majority’s tire harm only requires harm that we Instead of ac- determine another fatal flaw. suffers presented focusing any the evidence at the mo- harm caused to tually review OKC, majority new also the entire record focused on the effect tion for but had on the mental Light Power Co. v. statements as a whole. Texas & the bailiff’s are not to jurors. We processes 148 Tex. Hering, jurors’ processes. But (1949). mental consider
3H *11 regardless processes materially mental used to un- OKC received a unfair trial answer, problem arrive at their the real is der the circumstances. they were ill-informed. Under I judgment would reverse the and re- we are to Appellate Rules of Procedure mand to the trial court. complained ap- of on reverse if the error caused rendition of an im- peal probably SUPPLEMENTAL Tex.R.App.P. 81(b)(1). I proper judgment. DISSENTING OPINION improper judgment that an is one maintain McCLUNG, Justice, dissenting. by a misinformed ill-informed rendered or jury. considering opinion new issued majority rehearing, on motion I jury statutory right A has the to receive dissenting by my opinion abide issued on additional instructions the trial court June 1990. duty give requested. has the them when par- 286. both Tex.R.Civ.P. attorneys ties or their should be notified of jury’s request for additional instruc- of, given
tions and opportuni- notice and an to, ty object supplementary all instruc- Texas, Appellant, STATE given by tions the trial court. Scroggs v. 581, 586, Morgan, 133 Tex. (Tex. App. opinion Comm’n GARRETT, Craig Anthony Appellee. adopted). No. 01-89-00919-CR. assert, I do not While that but for the Texas, Appeals Court of bailiff, jury misconduct of the would (1st Dist.). Houston have returned a different verdict an- swering differently, issue No. 6 I am mind- Aug. 1990. purpose ful that the intent and of Rule Rehearing Denied 1990. Oct. 81(b)(1) require complain- is not to that the Discretionary Review Granted ing party demonstrate but for the Jan. judgment a different would have re- If sulted. the error had such force as reasonably
would be calculated to have af- jury finding question,
fected the
complaining party has suffered harm
through the error and entitled to a rever- appeal.
sal on
Here, jury finding returned a verdict mitigate. did not fail to It was jury
only because the answered this issue large was as
as it did upon Because the took it
it was. bailiff give additional instruc-
herself to
tions, deprived right of their communication with the trial
of direct
court; right their to hear and benefit from said; judge have
what would
right obligation his to have fulfill respond; right to have the officer
charge properly discharge duty her and not their confidential delibera-
interfere with aggregate, In the this means that
tions.