Innovative Truck Storage, Inc. v. Airshield Corporation, No. 13-05-743-CV (Tex. App. 6/21/2007)
| Decision Date | 21 June 2007 |
| Docket Number | No. 13-05-743-CV.,13-05-743-CV. |
| Parties | INNOVATIVE TRUCK STORAGE, INC., Appellant, v. AIRSHIELD CORPORATION, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 103rd District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and VELA.
Innovative Truck Storage, Inc., ("ITS") appeals from a judgment in its favor for negligent misrepresentation against Airshield Corporation. By four issues, ITS complains of jury misconduct, challenges the legal and factual sufficiency of the evidence to support the award of damages, and complains the trial court failed to award pre- and post-judgment interest. Airshield raises two cross-points. We modify the judgment, and as modified, we affirm.
ITS, the developer of the "Hide-N-Side," an aftermarket storage system for pick-up trucks, entered into a manufacturing relationship with Airshield in which Airshield agreed to make the Hide-N-Side for ITS. Thereafter, ITS sued Airshield for negligence and negligent misrepresentation, claiming Airshield negligently produced the Hide-N-Side, causing the eventual loss of ITS's entire customer base. The jury found ITS sixty-percent negligent and Airshield forty-percent negligent. The jury awarded ITS $ 133,000 in damages for negligent misrepresentation and zero damages on its negligence claim.
By issue one, ITS argues the trial court erred by failing to grant a new trial based upon jury misconduct. A trial court has discretion to either grant or deny a new trial, and we will not disturb its decision absent an abuse of that discretion. Brandt v. Surber, 194 S.W.3d 108, 133 (Tex. App.-Corpus Christi 2006, pet. filed) (). A trial court abuses its discretion when the record clearly shows its decision was arbitrary and unreasonable. Id. (citing Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987)). To warrant a new trial for jury misconduct, the movant must show: (1) the misconduct occurred; (2) it was material; and (3) probably caused injury. Tex. R. Civ. P. 327(a); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000); Brandt, 194 S.W.3d at 133. Whether jury misconduct occurred and caused injury is a question of fact for the trial court. Golden Eagle, 24 S.W.3d at 372 (citing Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996)); Brandt, 194 S.W.3d at 133.
ITS points out in its appellate brief that during voir-dire examination, counsel for ITS asked the venire members several times whether the fact that Scott Clare and Neil Long (the founders of ITS) "'are millionaires, already have lots of money . . and are successful businessmen' would influence their decision-making process, or would cause the members of the panel to view ITS ' in a negative way and make [them] not be fair to [ITS].'" In response, none of the venire members raised their hands. In its motion for new trial, ITS relied upon the affidavits of four jurors as evidence of alleged jury misconduct.
Juror Minton stated that during numerous trial breaks during the trial, she heard several jurors say that because Long and Clare "already had enough money," they would ignore the evidence, not hold Airshield liable or completely negligent, and not award damages to ITS. Juror Garcia stated that during a trial break on the second or third day of trial, she heard two jurors indicate that because ITS "already had enough money," they would disregard the evidence, not hold Airshield liable or completely negligent, and would not award damages to ITS. Juror Rojas stated that throughout the trial and before jury deliberations began, she and her fellow jurors discussed the fact that Long and Clare were apparently wealthy and did not need an award of additional money or damages. Finally, juror Clancy stated that prior to deliberations, a fellow juror asked him whether he was leaning in favor of ITS or Airshield. He reminded the juror that they were not to discuss the case until all the evidence had been heard.
After hearing argument, the trial court refused to grant a new trial. ITS argues the four affidavits showed jury misconduct consisting of undisclosed bias and prejudice which caused a "false verdict." Failure to disclose bias is a form of juror misconduct that justifies a new trial under the appropriate circumstances. Golden Eagle, 24 S.W.3d at 371.
In Golden Eagle, plaintiff filed a motion for new trial alleging that juror Maxwell concealed a bias during voir dire and that she and other jurors committed jury misconduct before and during formal deliberations. Id. at 364. The motion included juror Frederick's affidavit who testified in his affidavit and at the new-trial hearing that during a trial recess, he had a conversation with Maxwell, at which time she made comments he thought contradicted her statements during voir-dire. Id. at 364-65. The trial court overruled the motion for new trial. Id. at 366. The supreme court affirmed the trial court's decision and stated:
[T]he trial court may not have considered Frederick's testimony to have been credible. It was certainly hearsay, and while no objection was made to its admission to preclude the trial court from considering it, the trial court was nevertheless free on its own to disregard the testimony.
We conclude that the evidence about discussions prior to formal deliberations does not establish jury misconduct here, and Rules 606(b) and 327(b) prohibit considering the testimony about matters and statements occurring in the course of the jury's formal deliberations. . .
Hearsay is a statement, other than one made by a declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). ITS, in order to demonstrate jury misconduct, relied upon four juror affidavits containing remarks made by other jurors during trial breaks. Thus, the affidavits constituted hearsay. See Tex. R. Evid. 801(d); Golden Eagle, 24 S.W.3d at 373. Airshield's counsel lodged a hearsay objection to the four affidavits. Accordingly, the trial court was free to disregard the affidavits as hearsay. See Golden Eagle, 24 S.W.3d at 373. Therefore, because the record does not show the trial court's decision to deny a new trial was arbitrary and unreasonable, we hold that the trial court did not abuse its discretion by denying the motion for new trial. See Golden Eagle, 24 S.W.3d at 373-74.
In its reply brief, ITS presented argument and authority contending that the trial court reversibly erred by not holding an evidentiary hearing on its motion for new trial. See Tex. R. Civ. P. 327(a).1 ITS made this same argument in a subsequent letter brief. Our appellate rules set forth the required contents and organization of an appellant's brief. Bankhead v. Maddox, 135 S.W.3d 162, 163 (Tex. App.-Tyler 2004, no pet.); see Tex. R. App. P. 38.1. "The [appellant's] brief must state concisely all issues or points presented for review." Tex. R. App. P. 38.1(e). Rule 38.3 states that "The appellant may file a reply brief addressing any matter in the appellee's brief." Tex. R. App. P. 38.3. However, an appellant may not use a reply brief to raise new issues. Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.-San Antonio 2003, pet. denied); see Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996) (). Therefore, because ITS failed to raise this issue in its appellant's brief, we hold that ITS has waived this complaint for appellate review. Issue one is overruled.
Before resolving ITS's remaining issues, we must address Airshield's cross-points. By its first cross-point, Airshield argues that we should reverse and render the negligent misrepresentation finding because this is solely a breach of contract case and not a case in tort. Although a party's actions may breach duties in tort, contract, or both, our supreme court has recognized that "mere nonfeasance under a contract creates liability only for breach of contract." Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13 (Tex. 1996); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). "When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone." Reed, 711 S.W.2d at 618. In Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991), the court held that
If the defendant's conduct . . . would give rise to liability independent of the fact that a contract exists between the parties, the plaintiff's claim may also sound in tort. Conversely, if the defendant's conduct . . . would give rise to liability only because it breaches the parties' agreement, the plaintiff's claim ordinarily sounds only in contract.
Id. at 494 (cited DeWitt County Elec. Co-op. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999)) (footnote omitted).
To recover on a claim for negligent misrepresentation, there must be an injury independent of damages for the breach of contract claim. See D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663-64 (Tex. 1998) (per curiam); Blue Star Operating Co. v. Tetra Technologies, Inc., 119 S.W.3d 916, 922 (Tex. App.-Dallas 2003, pet. denied). In the instant case, Airshield has provided neither record citations nor authority to support the existence of a contract. We note that in its original petition, ITS alleged causes of action for breach of an oral contract and negligent misrepresentation, but abandoned the contract claim in its amended petition.2 ITS does not allege the existence of a contract, nor does it allege that it relied on Airshield's misrepresentations...
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