Baker Marine Corp. v. Weatherby Engineering Co.

• Decision Date: 17 April 1986
• Docket Number: No. 13-85-329-CV,13-85-329-CV
• Citation: 710 S.W.2d 690
• Parties: BAKER MARINE CORPORATION, Appellant, v. WEATHERBY ENGINEERING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 690

710 S.W.2d 690

BAKER MARINE CORPORATION, Appellant, v. WEATHERBY ENGINEERING COMPANY, Appellee.

No. 13-85-329-CV.

Court of Appeals of Texas,

Corpus Christi.

April 17, 1986.

Rehearing Denied May 29, 1986.

Barry Abrams, Claude R. Treece, Sewell & Riggs, Houston, for appellant.

V. Camp, Cuthrell, III, Corpus Christi, for appellee.

Before UTTER, SEERDEN and BENAVIDES, JJ.

OPINION

UTTER, Justice.

This is an appeal from a jury verdict in a contract case wherein the jury awarded Weatherby Engineering Company (Weatherby) damages against Baker Marine Corporation (Baker) for the value of the work performed by Weatherby as of the date of termination of the contract by Baker. The trial court entered judgment in the amount of $460,998.00, after deducting certain amounts agreed to by the parties, plus attorney's fees, prejudgment and post-judgment interest, and costs. We reform the judgment of the trial court and reverse and remand in part and affirm in part.

Dresser Industries (Dresser) awarded a contract to Baker for the construction of four gas compression modules. Weatherby was hired by Baker, as a subcontractor, to build two of the modules. The project was plagued with problems from the beginning which caused production to continually lag behind schedule. On February 1, 1983, Baker sent a letter to Weatherby, invoking the default provision of the contract and advising Weatherby that they had five days within which to "take positive steps to remedy this problem or [Baker] will be forced to take positive steps to complete the project by other means." Weatherby was terminated on May 1, 1983.

By its first point of error, Baker contends that the trial court erred in overruling its motion for new trial based on jury misconduct. Baker asserts that the alleged jury misconduct stems from a prospective juror's failure to disclose that her husband had previously worked for Baker and had filed a claim for unemployment compensation which Baker successfully protested. Weatherby's counsel, during general voir dire, asked the members of the jury panel to raise their hands if anyone knew any of the parties. No one responded. Baker's counsel then asked the following questions:

Are there any of you who remember this case or this dispute back in the time when it happened? Have you read anything about it in the newspaper or talked to any friends that know anything about it? Did any of you, or any members of your family, ever work for Weatherby Engineering or Protexas (phonetically)? Have any of you, or any members of your family, ever worked for Baker Marine? [emphasis ours]

Baker contends that prospective juror Odom's failure to respond to the last question, and thereby disclose the fact that her husband had worked for Baker and had been denied unemployment compensation, constitutes jury misconduct requiring a new trial. A new trial based on jury misconduct will be granted upon proof that: (1) misconduct occurred; (2) it was material misconduct; and, (3) based on the record as a whole, the misconduct probably resulted in harm to the movant. Kansas City Southern Railway Co. v. Chaffin, 658 S.W.2d 186 (Tex.App.--Texarkana 1983, writ ref'd n.r.e.), cert. denied, 469 U.S. 854, 105 S.Ct. 177, 83 L.Ed.2d 112 (1984). In the case before us, the trial court overruled Baker's motion for new trial, impliedly finding that no jury misconduct occurred. This action will not be disturbed on appeal unless a clear abuse of discretion is shown. Id. at 189.

At the hearing on the motion for new trial, Mrs. Odom testified as follows:

Q. And, Mrs. Odom, do you recall during the voir dire of that case, the question being asked of the jury, 'Have you or any members of your family ever worked for Baker Marine?'

A. I thought you said 'working.'

Q. All right. And you did not respond to that question, did you?

A. No.

Q. And your husband had, in fact, worked for Baker Marine?

A. Yes, in '82.

* * *

* * *

Q. And did your husband have any dispute with Baker Marine while he was employed there that would affect your opinion about Baker Marine?

A. No. We have a shrimp boat and he quit to go shrimping.

Q. Do you know whether or not your husband had any controversy or complaint against Baker Marine?

A. No.

It is counsel's responsibility to make sure that all members of the jury panel hear and understand the question asked. See Missouri Pacific Railroad Co. v. Cunningham, 515 S.W.2d 678 (Tex.Civ.App.--San Antonio 1974, writ dism'd); O'Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App.--Houston [1st Dist] 1970, writ ref'd n.r.e.). Baker offered no evidence to refute Mrs. Odom's assertions that she misunderstood the question and that she was unaware of her husband's claim for unemployment benefits. As the trier of fact, the trial court was entitled to believe her testimony. See, e.g., Missouri Pacific Railroad Co. v. Cunningham, 515 S.W.2d at 683; O'Day v. Sakowitz Brothers, 462 S.W.2d at 123. The trial court did not abuse its discretion by finding that no jury misconduct occurred. Even if Mrs. Odom's failure to answer the question was misconduct, Baker has not shown that such misconduct was material or that it resulted in probable harm. "To show probable harm, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he 'would otherwise have done on one or more issues vital to the judgment.' " Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985). There is nothing in the record to indicate that Baker struck any of the jurors from the jury panel who responded to the question, or that it would have struck Mrs. Odom had she responded. Baker points to the fact that the verdict was 10-2, with Mrs. Odom voting with the majority. At the hearing on the motion for new trial, Baker offered the testimony of Mrs. Kollar, one of the two jurors that did not sign the verdict. Mrs. Kollar testified that Mrs. Odom did not inject any outside evidence or personal experiences into their deliberations; that she seemed to be prejudiced against Baker throughout the deliberations; and, that Mrs. Odom seemed to have already made up her mind about the case before they began discussing it.

The evidence which can be heard by the trial court as grounds for a new trial based on jury misconduct is governed by TEX.R.CIV.P. 327:

b. A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. [emphasis ours]

TEX.R.CIV.P. 327(b); TEX.R.EVID. 606(b).

As can be seen, Mrs. Kollar's testimony expressly negated any contention that Mrs. Odom injected any "outside influence" into the jury deliberations. Any other testimony given was inadmissible on the issue of jury misconduct. TEX.R.CIV.P. 327(b); TEX.R.EVID. 606(b); see also Texas General Indemnity Co. v. Watson, 656 S.W.2d 612 (Tex.App.--Fort Worth 1983, writ ref'd n.r.e.); c.f. General Accident Fire and Life Assurance Corp. v. Coffman, 326 S.W.2d 287 (Tex.Civ.App.--Waco 1959, writ ref'd n.r.e.) (juror intentionally failed to disclose a previous back injury during jury voir dire; juror's testimony allowed to show "extraneous influence of his own injury.") Baker's first point of error is overruled.

Points of error two, three, four, and six challenge the sufficiency of the evidence. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well-established test set forth in Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

By point of error number two, Baker contends that the evidence is factually insufficient to support the jury's finding that Baker waived its right to cancel the contract. Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Burton v. National Bank of Commerce, 679 S.W.2d 115 (Tex.App.--Dallas 1984, no writ). Evidence of waiver can be divided into three general categories: (1) an express renunciation of the known right; (2) silence or inaction, coupled with knowledge of the right, for such an unreasonable period of time as to indicate an intention to waive the right; or, (3) conduct of the party knowingly possessing the right of such a nature as to mislead the other party into an honest belief that the waiver was intended or assented to. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210 (Tex.Civ.App.--Amarillo 1981, writ ref'd n.r.e.); see also PGP Gas Products, Inc. v. Reserve Equipment, Inc., 667 S.W.2d 604 (Tex.App.--Austin 1984, writ ref'd n.r.e.).

On February 1, 1983, Baker sent its letter notifying Weatherby that they were in default and had five days within which to "take positive steps to remedy [the] problem." The testimony of Mr. Kilpatrick, Baker's project manager, confirms that Baker knew of its right to terminate Weatherby under the default provisions of the contract. On February 2, 1983, Weatherby sent a letter to Baker outlining the steps that it was implementing in order to "remedy [the] problem." Mr. Kilpatrick testified that Weatherby's letter temporarily satisfied them. During the three month time span between the February 1, 1983, notice of default letter and the May 1, 1983, termination letter, Baker and Weatherby continued to work toward completion of the four modules. Baker continued to negotiate and approve change orders with Weatherby. Baker accepted and agreed to the percentage completion...