Caballero v. Playboy Enters., Inc.

• Decision Date: 12 January 2012
• Docket Number: No. 13–10–00586–CV.,13–10–00586–CV.
• Citation: 359 S.W.3d 318
• Parties: EDITORIAL CABALLERO, S.A. DE C.V. and Grupo Siete International, Inc., Appellants, v. PLAYBOY ENTERPRISES, INC., Appellee.
• Court: Texas Court of Appeals

359 S.W.3d 318

EDITORIAL CABALLERO, S.A. DE C.V. and Grupo Siete International, Inc., Appellants,

v.PLAYBOY ENTERPRISES, INC., Appellee.

No. 13–10–00586–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Jan. 12, 2012.Rehearing Overruled Feb. 9 2012.

Andy Taylor, Amanda Peterson, Andy Taylor & Associates, Brenham, Ramon Garcia, Edinburg, Michael Pohl, Montgomery, for Appellants.

Harry M. Reasoner, Penelope E. Nicholson, Matthew Ploeger, Michael A. Heidler, Vinson & Elkins, Houston, Guy Allison, The Allison Law Firm, Corpus Christi, Dana R. Allison, The Allison Law Firm, Brownsville, Ricardo G. Cedillo, Derick J. Rodger, Les Streiber III, Davis, Cedillo & Mendoza, San Antonio, for Appellee.

Before Justices RODRIGUEZ, VELA, and PERKES.

OPINION

Opinion by Justice RODRIGUEZ.

This is a commercial dispute between appellants, Editorial Caballero, S.A. de C.V. (EC) and Grupo Siete International, Inc. (GSI), and appellee, Playboy Enterprises, Inc. (PEI). For over twenty years EC published and distributed a Spanish language version of Playboy magazine in Mexico and other Latin American countries. In October 1996, PEI and EC entered into a licensing agreement (License Agreement) that provided, in relevant part, that EC could publish a Spanish language version of Playboy for distribution in the United States. GSI was EC's assignee of the U.S. distribution rights to the Spanish language version of Playboy. In January 1998, PEI terminated the License Agreement because EC and GSI allegedly failed to pay certain monies due under the License Agreement and under a Renegotiated Payment Plan Agreement. EC and GSI claimed that PEI caused the failure of the project. Suit was filed. EC and GSI filed claims against PEI, and PEI filed counter-claims against EC and GSI. The case was tried twice to a jury.

Following the first trial, EC and GSI appealed. See Playboy Enter., Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 276 (Tex.App.-Corpus Christi 2006, pet. denied) ( Playboy I ). In Playboy I, this Court rendered judgment against EC and GSI on all claims except breach of contract and fraudulent concealment, remanding those claims for a new trial. Id. We also remanded all claims asserted by PEI against EC and GSI. Id.

The second trial, the judgment from which this appeal is taken, began on March 31, 2010. Rejecting PEI's argument that our 2006 decision and the law of the case doctrine precluded many of EC and GSI's claims, the trial court submitted EC and GSI's claims against PEI for breach of the License Agreement, common law fraud, statutory fraud, antitrust violations, and theft. In addition, the trial court submitted PEI's claims against EC and GSI for breach of the License Agreement, breach of the Renegotiated Payment Plan Agreement, and fraud. The jury found against EC and GSI on their claims and in favor of PEI on its claims. The trial court entered judgment in favor of PEI and awarded breach-of-contract damages in the amount of $410,000.¹ It also awarded $1,680,000 in attorneys' fees, $500,000 in conditional appellate attorneys' fees, and interest. Following the entry of judgment in PEI's favor and the denial of EC and GSI's post-judgment motions, EC and GSI appealed.

By three issues, with multiple sub-issues, EC and GSI contend that (1) they are entitled to a new trial based on jury misconduct; and (2–3) the evidence is insufficient to support the adverse jury findings. We affirm.

I. Jury Misconduct

By their first issue, EC and GSI contend that the trial court abused its discretion when it denied their motion for new trial based, in part, on allegations of material jury misconduct that caused injury. The jury returned a 10–2 verdict. EC and GSI argue that the trial court abused its discretion in refusing to (1) admit and rely on affidavits from the two dissenting jurors; (2) hear live testimony from any of the jurors, especially the two juror affiants; and (3) grant a new trial based on juror misconduct. PEI responds that the juror affidavits did not contain competent, admissible evidence of jury misconduct, and its objections to those affidavits were properly sustained. We agree with PEI.

A. Standard of Review and Applicable Law

We review a trial court's ruling on a motion for new trial based on jury misconduct for an abuse of discretion. Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 48 (Tex.App.-San Antonio 2006, no pet.) (op. on reh'g). An abuse of discretion will be found when the trial court's ruling is arbitrary, unreasonable, or without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

Whether jury misconduct occurred and caused injury is a question of fact for the trial court. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000). To obtain a new trial based on juror misconduct, an appellant must show (1) the misconduct occurred, (2) it was material, and (3) it probably caused injury. Tex.R. Civ. P. 327; Golden Eagle Archery, 24 S.W.3d at 372. A motion for new trial based upon jury misconduct must be supported by a juror's affidavit alleging that outside influences were brought to bear upon the jury. Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24 (Tex.1987) (per curiam); see Tex.R. Civ. P. 327(b); see also Tex.R. Evid. 606(b).

An outside influence “must emanate from outside the jury and its deliberations.” Soliz v. Saenz, 779 S.W.2d 929, 931–32 (Tex.App.-Corpus Christi 1989, writ denied); see Golden Eagle Archery, 24 S.W.3d at 370; King v. Bauer, 767 S.W.2d 197, 198 (Tex.App.-Corpus Christi 1989, writ denied). An outside influence does not include “information not in evidence, unknown to the jurors prior to trial, acquired by a juror and communicated to one or more other jurors between the time the jurors received their instructions from the court and the rendition of the verdict” and does not include “[i]nformation gathered by a juror and introduced to the other jurors by that juror, even if the information were introduced specifically to prejudice the vote....” Soliz, 779 S.W.2d at 932; see, e.g., King, 767 S.W.2d at 198 (holding that “discussion of newspaper articles is not considered an outside influence”). In sum, under this rule, a juror may testify about “improper contacts with individuals outside the jury” or “matters or statements not occurring during the course of the jury's deliberations.” Golden Eagle Archery, 24 S.W.3d at 370. However, “[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,....” Tex.R. Civ. P. 327(b); see Tex.R. Evid. 606(b) (“[A] juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict.”); Golden Eagle Archery, 24 S.W.3d at 370.

B. Discussion1. Affidavits

In support of their jury misconduct allegations in their motion for new trial, EC and GSI attached the affidavits of the two dissenting jurors. The affidavits set out the following three instances that allegedly occurred during jury deliberations:

• One juror reported to other jurors that she had been informed of a death in her family, and she switched her vote in order to conclude the deliberations more quickly;

• Another juror admitted that he read on the internet the appellate decision concerning the first trial of this case; and

• A third juror stated that he knew that the Sanchez family ² had a lot of money and that his (the juror's) sister was an attorney.

a. Death in Juror's Family

Personal pressures felt by jurors to wrap up the deliberations do not constitute outside influences. See, e.g., Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 660–61 (Tex.App.-Dallas 2002, pet. denied) (explaining that a statement by the bailiff to jurors that they would have to deliberate another day if they told the court that they were deadlocked was not outside influence); Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (concluding that family pressure to go on vacation was not outside influence); Kirby Forest Indus., Inc. v. Kirkland, 772 S.W.2d 226, 234 (Tex.App.-Houston [14th Dist.] 1989, writ denied) (holding that pressure from employers to return to work, and family, recreational, and personal pressures are not outside influences). The trial court could have reasonably determined that the portions of the jurors' affidavits discussing another juror's statements about a death in her family related to the effect of the death on the juror's mind or emotions or mental processes, as influencing her assent to or dissent from the verdict. See Tex.R. Civ. P. 327(b); Tex.R. Evid. 606(b); Golden Eagle Archery, 24 S.W.3d at 370; Goode, 943 S.W.2d at 446. Therefore, misconduct did not occur, and the trial court could have concluded that the affidavits were incompetent and inadmissible in this regard.

b. Appellate Decision Read on the Internet

The trial court could have made the same determination regarding the portion of one juror's affidavit explaining that another juror said, during deliberations, that he had read the appellate decision involving the first trial. The affidavit which stated that the juror read the decision on the internet, implies internet research. The affidavit did not state, however, that the juror said anything more about the opinion.

In a criminal context, this Court recently decided the issue of whether internet research constitutes an “outside influence.” See McQuarrie v. State, No. 13–09–00233–CR, 2011 WL 1442335, *5–7, 2011 Tex.App. LEXIS 2859, at *13–18 (Tex.App.-Corpus Christi Apr. 14, 2011, pet. granted) (mem. op., not designated for publication) (citing So...