Branham v. Brown

• Decision Date: 01 January 1996
• Citation: 925 S.W.2d 365
• Court: Texas Court of Appeals

Page 365

925 S.W.2d 365

Eric BRANHAM, Appellant v Michael Joseph BROWN, Joseph M. Brown, Victoria Asset Management, Inc., d/b/a Forest Cove Apartments Bradley Apartment Homes, and Allied Development Corporation, Appellees.

No. 01-95-00763-CV.

Court of Appeals of Texas, Houston (1st Dist.).

Robert D. Bates, Houston, for appellant.

Ruben Hope, Kenna M. Seiler, Conroe, for appellees.

Before HUTSON-DUNN, MIRABAL and HEDGES, JJ.

OPINION

HUTSON-DUNN, Justice.

This is a suit for damages for personal injuries arising from a motor vehicle accident involving a motorcycle driven by Eric Branham, appellant, and a pick-up truck driven by Michael Joseph Brown, appellee.

Branham filed suit for his personal injuries against Michael Joseph Brown (Brown), the driver of the truck, alleging negligence, and Joseph M. Brown, the owner of the truck, alleging negligent entrustment. Branham also sued Victoria Asset Management, Inc., d/b/a Forest Cove Apartments, Bradley Apartment Homes, and Allied Development Corporation, alleging that Brown was in the course and scope of his employment at the time of the accident. All appellees answered, alleging that Branham was contributorily negligent. Before trial, Joseph M. Brown was nonsuited.

The suit was tried to a jury. The jury returned a verdict finding Branham 51% negligent and Brown 49% negligent. The trial court entered a take-nothing judgment against Branham based on the jury's findings. Branham filed a motion for new trial, which the trial court denied. In four points of error, Branham appeals the take-nothing judgment rendered against him complaining of jury misconduct and the admission and exclusion of evidence. We affirm.

In his first and second points of error, Branham argues the trial court erred in denying his motion for new trial and motion for mistrial based upon jury misconduct and trial court misconduct. After deliberating, the jury announced that it had reached a verdict. The foreman advised the court that the verdict had been signed by 11 jurors. The court then noted that the foreman had incorrectly signed the verdict form indicating that it was a unanimous verdict. The trial judge, after making an inquiry, instructed the foreman that he should scratch out his name if it was not a unanimous verdict, which he did. The 11-1 verdict reflected the jury's finding that Branham was 51% negligent and Brown was 49% negligent. The jury also found that Brown was in the course and scope of his employment at the time of the accident. At Branham's request, the jury was polled and 11 jurors indicated this was their verdict, and one juror indicated that she had not signed the verdict. The court then accepted the jury's verdict.

Afterwards, the trial judge, in a short discussion, stressed his appreciation of the jury's hard work in reaching the verdict, indicating that the parties had been unable, through mediation, to dispose of this lawsuit. The court also noted that this was a case of serious injuries and he was sure that the jury had difficulties in deciding this case. The trial judge then discharged the jurors from service and released them from his prior admonishments. Immediately after, the trial judge informed the jurors that this was the first time he had a jury in this particular courtroom, and he invited them back to his chambers so that he could personally greet them. He additionally invited the parties and attorneys to remain in the courtroom so that the jurors could ask them any questions they wanted.

The record reflects that immediately after the judge and jurors entered into the judge's chambers, and while the judge was still greeting the jurors, one juror volunteered that she made a mistake during the polling because she had mistakenly signed the verdict because of a misunderstanding. The trial judge immediately stopped the conversation and informed the attorneys. After discussing the situation with the attorneys, the judge instructed the jury to return to the jury room and sign the verdict in accordance with each juror's own decision. ¹ The jury later sent out a note questioning whether the percentage of negligence had to be unanimous. The court instructed the jurors to re-read certain instructions in the charge and continue to deliberate. After further deliberations, the jury returned and announced its verdict. The verdict, which was signed by ten jurors, found Branham to be 51% negligent and Brown 49% negligent. The court accepted this verdict, and judgment was entered on the 10-2 jury verdict.

Branham contends that it was misconduct for the judge to have accepted the jury's verdict, have spoken with the jury afterwards in his chambers, and then have sent the jury back to "redeliberate." He argues it was error for the court to deny him a mistrial or a new trial based on this misconduct. When jurors affirm their verdict in open court and the verdict is received, it acquires the finality of an official act. Sims v. State Farm Fire & Cas. Co., 720 S.W.2d 273, 274-75 (Tex.App.--Fort Worth 1986, no writ); Jones v. Square Deal Cab Co., 501 S.W.2d 746, 747-48 (Tex.Civ.App.--Houston [14th Dist.] 1973), writ ref'd n.r.e. per curiam, 506 S.W.2d 855 (Tex.1974). The court held in Jones:

We hold that when a jury returns a verdict as being unanimous and the verdict is officially received by the court and the jury is discharged, it is not permissible to thereafter impeach the verdict by presenting evidence that such verdict was not unanimous. If a nonunanimous verdict had been returned and had been officially received by the court and the jury had been discharged, such a nonunanimous verdict would not thereafter be subject to impeachment by presenting evidence that different 'shifting' majorities answered the special issues....

Jones, 501 S.W.2d at 748. That finality is not destroyed by proof that jurors answered 'Yes' but believed 'No.' State v. Finch, 349 S.W.2d 780, 782-83 (Tex.Civ.App.--San Antonio 1961, no writ). A juror's doubts and misgivings, uncertainty, hesitancy, and mental reservations about the verdict do not destroy a verdict. Id.; see also Van Wart v. Van Wart, 501 S.W.2d 359, 362 (Tex.Civ.App.--Austin 1973, no writ). It is not destroyed by proof that a juror is not satisfied with the verdict; that the verdict was reached against a juror's better judgment; that the verdict was the result of a compromise; or that the juror voted with the majority under protest. Finch, 349 S.W.2d at 782-83. The purpose of the poll, under the protection of the court, is to afford jurors an opportunity to express their true convictions. Id. They should speak at that time and not after they have been discharged and have mingled with the public. Thus, after a verdict is returned and is officially received by the court and the jury is discharged, it is not permissible to thereafter establish jury misconduct and impeach the verdict by presenting evidence that the verdict was not unanimous or that a nonunanimous verdict was returned by different "shifting" majorities. Jones, 501 S.W.2d at 748.

In our case, after the foreman of the jury in this case announced its verdict to the court, the jury was polled at appellant's request and the trial court discharged the jury. After the jury was discharged, the judge and the jury had a meeting in the judge's chambers, after which the judge returned and announced he was not receiving the verdict until the jurors redeliberated. However, once the judge had accepted the verdict and discharged the jury, he had no authority to later order the jury to redeliberate; he should have proceeded to judgment on the original 11-1 verdict. Therefore, we hold that the trial court erred in sending the jury back to make any corrections or redeliberate on their verdict after the trial court accepted the verdict and discharged the jury.

We will address Branham's complaints of jury misconduct as they relate to the 11-1 jury verdict. Branham argues there was jury misconduct; however, we consider it only insofar as it concerns the original 11-1 verdict. To obtain a new trial on the basis of jury misconduct, the complaining party must show that (1) the misconduct occurred; (2) it was material; and (3) the misconduct resulted in harm. Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.1985); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 280-81 (Tex.App.--Houston [1st Dist.] 1991, writ denied). After reviewing the record, we find there was no evidence or testimony before the trial court of any overt act of misconduct. There was no testimony that the conduct of the foreman or any of the jurors caused the members of the jury to reach a verdict different from what they would have otherwise reached. If there was some reservation to the contrary in the mind of some juror, it cannot now be considered. The trial court polled the jury, all the jurors but one assented, and the judge received the verdict. Without a showing in the record of any improper outside influence, we hold appellant did not meet his burden of showing jury misconduct.

Further, Branham argues the trial court erred in accepting the jury's first verdict because the polling of the jury did not conform to the jury's written verdict form. When the jury was polled, all 12 jurors indicated that it was their verdict. Since only 11 jurors had signed the verdict form, the trial judge inquired as to whether the verdict was unanimous or 11-1. One juror responded:

Juror: I think I didn't sign it.

Another juror: Yeah, she did not agree.

Juror: I don't think it was on purpose though. I'm lost here.

Court: I'm not lost. If you didn't agree, you don't have to sign it. As a matter of fact, you are prohibited from signing it unless this is your verdict.

Juror: Oh, okay.

Court: So, this is not your verdict?

Juror: Correct.

After that exchange, the court asked the attorneys if they were satisfied with the jury polling, to...