Dow Chemical Co. v. Francis

• Decision Date: 26 April 2001
• Docket Number: No. 00-0299,00-0299
• Citation: Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001)
• Parties: (Tex. 2001) The Dow Chemical Company and Joseph Hegyesi, Petitioners v. Renee K. Francis, Respondent
• Court: Texas Supreme Court

Page 237

46 S.W.3d 237 (Tex. 2001)

The Dow Chemical Company and Joseph Hegyesi, Petitioners v. Renee K. Francis, Respondent

No. 00-0299

Supreme Court of Texas

April 26, 2001.

On Petition for Review from the Court of Appeals for the First District of Texas

Per Curiam

Renee Francis, a former employee of The Dow Chemical Company, sued Dow and its employee, Joseph Hegyesi, alleging discrimination, fraud, constructive discharge, and retaliation. The trial court granted summary judgment for Dow and Hegyesi on Francis' fraud claims and dismissed Hegyesi from the case. The remaining claims against Dow were tried to a jury. After a two-week trial, the jury rejected Francis' discrimination and constructive-discharge claims. The jury found for Francis on her retaliation claim but awarded zero damages. Based on these findings, the trial court rendered a take-nothing judgment against Francis. Francis appealed. The court of appeals reversed both the take-nothing judgment for Dow and the summary judgment for Dow and Hegyesi. 46 S.W.3d 264. In doing so, the court of appeals concluded, among other things, that the cumulative effect of the trial court's abuse of discretion with regard to its evidentiary rulings and its bias against Francis resulted in the rendition of an improper judgment. 46 S.W.3d at 281. We conclude that the court of appeals erred, reverse its judgment, and remand this cause to that court for further proceedings consistent with this opinion.

In their petition for review, Dow and Hegyesi argue that the court of appeals erred in: (1) holding that the trial judge's bias resulted in an improper judgment; (2) sustaining Francis' evidentiary complaints; (3) applying incorrect legal and factual-sufficiency standards in reviewing the jury's zero damages verdict on Francis' retaliation claim; and (4) reversing the summary judgment on Francis' fraud claim. We begin with the court of appeals' bias holding.

Without citing any particular examples, the court of appeals concluded that:

Here, the record reveals that some of the trial court's comments were not so much directed toward Francis, her attorney, or the merits of her case, as they were to the trial court's desire to expedite the proceedings. However, there are many instances of conduct by the trial court that we do not condone and which cause us concern over whether there was prejudice towards Francis.

The cumulative effect of the trial court's abuse of its discretion with regard to its evidentiary rulings and its bias against the appellant resulted in the rendition of an improper judgment and constitutes reversible error.

46 S.W.3d at 280. Dow first complains that as a matter of law, the trial judge's comments were insufficient to support a finding of judicial bias or misconduct, and that the court of appeals erred in not describing the conduct it determined to be improper. Second, Dow maintains that the trial court's objectionable conduct was presumptively curable by instruction, and therefore, Francis failed to preserve her bias complaint by not objecting or requesting a jury instruction at trial. Third, Dow argues that the court of appeals failed to analyze how the alleged judicial misconduct probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1.

Francis responds with seven examples of alleged judicial bias. First, Francis claims that the trial judge assisted Dow's counsel during voir dire by commenting, "Ms. Johnson [Dow's counsel], there were a couple of other hands on your question about labor union [sic]." Second, Francis cites the following exchange as an example of the judge encouraging Dow's counsel to object:

Counsel: "Objection, Your Honor. Remote as to time. Vague."

Judge: "Go ahead."

Counsel: "Not relevant."

Judge: "Sustained."

Third, Francis contends that the judge frequently added additional bases to Dow's objections. Fourth, Francis asserts that the judge twice instructed Francis' counsel to "move on" "so that we can get this case to the jury." Fifth, Francis claims that the judge frequently reprimanded Francis' counsel in a condescending manner; as an example, Francis cites this response by the judge to an objection: "You can just say compound, and I can listen to the question." Sixth, Francis complains that the judge did not allow Francis' counsel to read from documents already admitted into evidence. For example, at one point, the judge said, "I instructed you not to read from the document. Would you please just direct questions to the witness? As I said, the document is in evidence and can be reviewed by the jury; and continuing to read the document at this late hour only prolongs the time we are here." And at another point in the trial, the judge again reminded Francis' counsel: "But I once again caution you that these documents are in evidence. So, rather than reviewing the documents with the jury, ask the question of the witness; and let's focus specifically on information you need to get from this witness and not information from the document that the jury has seen several times already." Francis argues that these comments were intended to prevent the impeachment of defense witnesses.

As a seventh example of alleged judicial bias, Francis describes an exchange that took place near the end of the trial, out of the jury's presence. The judge criticized Francis' counsel for calling a Dow executive to testify when counsel had not indicated his intention to do so the day before. Francis' attorney explained that he had developed his strategy just the evening before and had not made any misrepresentations to the court. The judge then apologized for her comment: "Okay. Well, I apologize. That was out of line. I shouldn't have said that. But honestly, I'm about to my limit with the conduct of how this trial has proceeded and - you know, I'm a patient person. That was out of line, and I do apologize." Francis argues the judge's improper comments spanned the two-week trial, grew increasingly caustic in nature, and were incurable by instruction. We disagree with Francis.

First, we consider whether the trial judge's comments constituted bias as a matter of law. The United States Supreme court, when presented with similar allegations of judicial bias, has determined that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," and opinions the judge forms during a trial do not necessitate recusal "unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994); see also, e.g., Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999); Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203, 216 n.6 (5th Cir. 1998);United States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997). Further, "[n]ot establishing bias or partiality. . . are expressions of impatience, dissatisfaction, annoyance, and even anger . . . . A judge's ordinary efforts at courtroom administration - even a stern and short-tempered judge's ordinary efforts at courtroom administration - remain immune."Liteky, 510 U.S. at 555-56. In short, a trial court has the inherent power to control the disposition of cases "with economy of time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254 (1936).

Similarly, Texas courts have held that "the discretion vested in the trial court over the conduct of a trial is great."Schroeder v. Brandon, 172 S.W.2d 488, 491 (Tex. 1943); see Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.-Houston[1st Dist.] 1994, writ denied). A trial court has the authority to express itself in exercising this broad discretion. Bott v. Bott,962 S.W.2d 626, 631 (Tex. App.-Houston [14th Dist.] 1997, no writ). Further, a trial court may properly intervene to maintain control in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time. Hoggett v .Brown, 971 S.W.2d 472, 495 (Tex. App.-Houston [14th Dist.] 1997, no pet.); Great Global Assurance Co. v. Keltex Prop., Inc., 904 S.W.2d 771, 777 (Tex. App.-Corpus Christi 1995, no writ).

We apply these principles to this case, and after carefully examining the judge's allegedly improper comments in the context of the entire record, we conclude there is no evidence of judicial bias. The record indicates that the judge exercised her broad discretion to "maintain control and promote expedition." Hoggett, 971 S.W.2d at 495. Thus, the court of appeals erred in concluding that the trial judge's conduct exhibited bias.

The court of appeals also erred in excusing Francis' failure to preserve her complaint. In State v. Wilemon, 393 S.W.2d816 (Tex. 1965), this Court held that objection to a trial court's alleged improper conduct or comment must be made when it occurs if a party is to preserve error for appellate review, unless the conduct or comment cannot be rendered harmless by proper...