Berry Property Management, Inc. v. Bliskey, 13-91-658-CV

• Decision Date: 25 February 1993
• Docket Number: No. 13-91-658-CV,13-91-658-CV
• Citation: 850 S.W.2d 644
• Parties: BERRY PROPERTY MANAGEMENT, INC., Appellant, v. Juli BLISKEY, Appellee.
• Court: Texas Court of Appeals

Page 644

850 S.W.2d 644

BERRY PROPERTY MANAGEMENT, INC., Appellant, v. Juli BLISKEY, Appellee.

No. 13-91-658-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 25, 1993.

Rehearing Overruled March 26, 1993.

Richard W. Crews, Jr., Thomas F. Nye, Brin & Brin, Corpus Christi, Roger Townsend, Ben Taylor, Terriann Trostle, Joy M. Soloway, Fulbright & Jaworski, Houston, for appellant.

David M. Gunn, W. James Kronzer, Houston, William R. Edwards, Edwards & Terry, Corpus Christi, for appellee.

Before SEERDEN, KENNEDY, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

SEERDEN, Justice.

This is a negligence and DTPA case in which a jury found Berry Property Management culpable under both theories, and the trial court entered judgment accordingly. Both parties appeal. We modify and affirm the trial court's judgment.

Juli Bliskey lived at Wilderock Townhomes in Corpus Christi. In the middle of an October night in 1987, an intruder, using a key to Bliskey's front door, entered her townhome while she was asleep, and sexually assaulted her. Bliskey testified at trial that after her attack, the intruder told her that since she had cooperated with him, he would tell her how it all happened. Bliskey explained that the intruder told her that he broke into the property management office of the Wilderock Townhomes. He looked through the resident files searching for single women with good jobs. He told Bliskey that he was able to match the files with the corresponding apartment keys. The intruder selected Bliskey's lease information because it showed she was a single woman and listed her as the sole resident in townhome 2313B. He then matched the apartment number on the lease information with Bliskey's door key, which was clearly identified by her townhome number. He explained that he found her key hanging on a pegboard displaying all of the residents' keys in the property management office. The intruder was later apprehended, arrested, convicted for his crime, and incarcerated. While in prison he escaped, but, soon after, was apprehended and returned to jail.

Bliskey sued Wilderock Townhomes and Wilderock Owners, Inc., the owners of Bliskey's individual townhome, and Berry Property Management, Inc. for negligence and deceptive trade practices. Bliskey also sued various other Berry entities, and their owner, Annette Berry. ¹ The judgment does not address these other various Berry entities and they are not involved in this appeal. Shortly after trial began, Wilderock and the owners of Bliskey's specific townhome settled for $60,000, were non-suited, dismissed from the lawsuit, and also are not a subject of this appeal.

By her lawsuit, Bliskey alleged that Berry was negligent in handling its residents' keys and violated the DTPA by failing to provide door locks as required by statute and warranted by the lease. She alleged that these acts were causes of her sexual assault and other related injuries. The jury agreed with Bliskey. Both sides filed timely post-verdict motions and the trial court entered judgment on the verdict awarding Bliskey compensatory and punitive damages.

Following the trial court's overruling Berry's motion for new trial by operation of law, Berry brings nineteen points of error for our review. Berry's points of error complain about the jury size, the sufficiency of the evidence, the court's jury charge, the damages, the calculation of attorneys' fees, and the application of the settlement sum to the damages awarded. Bliskey brings two cross-points for our review complaining about the trial court's method in calculating damages and attorneys' fees.

Jury of Eleven

By point one, Berry complains about the trial court dismissing a juror on the second day of trial. A jury of twelve persons was impaneled and sworn. On the morning of the second day of trial, the bailiff reported to the trial court that juror Wilson told him that he saw one of the defendants talking with his "insurance man" and friend, Scott Oshman. The bailiff also reported to the court that Wilson told him that he did not want to see his friend Oshman get hurt if he was somehow involved in the case. During a bench discussion among the attorneys and the trial judge about the impact of this information on the proceedings and how to address this issue, Berry's attorney disclosed that it was Oshman who wrote the insurance policy for the defendant Berry. The court then brought Wilson into the courtroom and asked him to explain what he had seen and his concern about his friend Oshman. Wilson explained that he had seen Berry talking with Oshman, and that he was concerned about his, Oshman's, involvement in the case. He continued by telling the court that Oshman was a family friend and that Oshman had written his personal insurance policies. Wilson was concerned that if Oshman were involved in any way in the facts surrounding this case that the court should be aware of his relationship with Oshman. The trial court instructed Wilson not to consider any matters extraneous to the evidence he would hear in the courtroom and asked could he do that. Wilson answered "uh-huh." Bliskey then asked that Wilson be removed from the jury panel or, alternatively, for the trial court to declare a mistrial. Appellant's attorney stated that he opposed proceeding with the trial with only eleven jurors, and contended that regardless of the court's instructions to Wilson, he believed that insurance was improperly injected into the proceedings. The trial court recalled Wilson, and inquired further about whether Wilson had discussed his relationship with Oshman with any of the other jurors. Wilson told the trial court that he had not discussed what he had seen or his friendship with Oshman with any other jurors. After learning this, and reviewing juror Wilson's testimony, the court excused Wilson, denied the motion for mistrial, and resumed the trial with the remaining eleven jurors.

By point one, Berry contends that the trial court reversibly erred when it excused juror Wilson after trial testimony began. Berry contends that completing the trial with the remaining eleven jurors requires us to remand this case for a new trial. Berry propounds that proceeding with the trial with only eleven jurors was violative of Texas Constitution article 5, section 13, which provides:

When pending the trial of any case, one or more jurors not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict; provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render the verdict.

Also instructive is Texas Rule of Civil Procedure 292, which in part provides:

A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve.... However, where as many as three jurors die or be disabled from sitting and there are only nine of the jurors remaining of an original jury of twelve, those remaining may render and return a verdict.

A disability sufficient to justify the dismissal of a juror is largely left to the trial court's discretion. Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 97 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.). Therefore, in determining whether the trial court abused its discretion, we determine whether the trial judge acted without reference to guiding rules and principles or whether his act excusing juror Wilson was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Illness, mental disability, misconduct, drunkenness or other facts are subject to the discretionary consideration of the trial court in determining a juror's disability. Remuda Oil & Gas Co. v. Nobles, 613 S.W.2d 312, 314 (Tex.Civ.App.--Fort Worth 1981, no writ); Daniels v. Southwestern Transp., 621 S.W.2d 188, 191 (Tex.Civ.App.--Texarkana 1981, no writ).

Additionally, a person is disqualified to serve as a juror if he has a bias or prejudice in favor of or against a party in the case. Tex.Gov't Code Ann. § 62.105(4) (Vernon 1988). If bias or prejudice is established, then the juror is disqualified by operation of law. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963). Whether a juror is biased or prejudiced is a factual determination to be made by the trial court. Id. In order to disqualify a juror, it must appear that the juror's state of mind leads to the natural inference that the juror will not act with impartiality. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963). In this case, the trial court had the opportunity to observe the juror as he testified and was in a better position than we are now to evaluate the juror's sincerity and his capacity for fairness and impartiality. See Fortune, 365 S.W.2d at 154. Under these circumstances, we conclude that the trial court did not act unreasonably or without referring to guiding rules and principles when proceeding with the trial in the absence of the twelfth juror.

Also, we note that a verdict may be rendered in any cause by the concurrence, as to each and all answers made of the same ten members of an original jury of twelve. Tex.R.Civ.P. 292; see Sherrill v. Estate of Plumley, 514 S.W.2d 286, 296-97 (Tex.Civ.App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.) (verdict of 10-2 with same 10 jurors concurring on all issues was constitutional). The jury, in the case before us, rendered a unanimous verdict. We contrast the facts in the case before us with those in Palmer Well Servs. Inc. v. Mack Trucks, Inc., 776 S.W.2d 575 (Tex.1985). In Palmer, the jury rendered a 10-2 verdict. After the verdict, Palmer, by a motion for new trial, alleged discovery of a felony indictment pending against one of the ten jurors making up the majority, and asserted that the verdict was not rendered by the requisite number of jurors. Palmer, 776 S.W.2d at 576. The Palmer court agreed, and held that harm was...