Lone Star Steel Co. v. Scott

• Decision Date: 28 June 1988
• Docket Number: No. 9577,9577
• Citation: 759 S.W.2d 144
• Parties: LONE STAR STEEL COMPANY, Appellant, v. John SCOTT, Appellee.
• Court: Texas Court of Appeals

Page 144

759 S.W.2d 144

LONE STAR STEEL COMPANY, Appellant, v. John SCOTT, Appellee.

No. 9577.

Court of Appeals of Texas Texarkana.

June 28, 1988.

Rehearing Denied Sept. 20, 1988.

Stephen F. Fink, Thompson & Knight, Dallas, for appellant.

Rick Harrison, Jones, Day, Reavis & Pogue, Austin, for appellee.

CORNELIUS, Chief Justice.

John Scott sued his employer, Lone Star Steel Company, because of its failure to pay him for a suggestion he made which improved slag removal efficiency and increased operating time in the company's steel soaking pits. The jury found for Scott on theories of contract breach, unjust enrichment, fraud, and estoppel. Scott was awarded $3,016,699.00 actual damages, $3,016,699.00 exemplary damages, and $2,315,851.26 prejudgment interest and attorney's fees, for a total of $8,349,249.26. Lone Star brings fifty-two points of error attacking the judgment and various rulings of the trial court. We find that the judgment for actual damages should be sustained on the breach of contract findings, but that the award of exemplary damages must be eliminated from the judgment because there is no proof of an independent tort accompanying the breach of contract or actual damages resulting from tort.

VENUE

At the threshold, we will discuss Lone Star's first point by which it contends that the judgment should be reversed because the trial court failed to transfer the case in response to Lone Star's uncontested motion for change of venue.

At docket call on January 5, 1987, Lone Star announced ready for trial. The case was set for trial at 9:00 a.m. on January 12, one week later. On that day at 8:55 a.m., Lone Star filed a written motion to transfer venue pursuant to Tex.R.Civ.P. 257, on the ground that there existed in Morris County and surrounding counties so great a prejudice against it that it could not obtain a fair trial. The motion was supported by the affidavits required by Rule 257. Scott did not file any affidavit opposing the motion. The trial then apparently proceeded as scheduled, with no separate hearing on the motion to transfer. The trial court orally denied the motion on January 15 and issued a written order to that effect the next day. A corrected order was filed on May 18, 1987. In its order the trial court found that the motion to transfer was not timely filed, that it was filed for the purpose of delay, that the events creating the alleged prejudice occurred several weeks before Lone Star's announcement of ready, and that at least one attorney for Lone Star had been aware of the alleged prejudicial events since they occurred.

Tex.R.Civ.P. 257 provides in part that:

A change of venue may be granted in civil causes upon motion of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:

(a) That there exists in the county where the suit is pending so great a prejudice against him that he cannot obtain a fair and impartial trial.

Tex.R.Civ.P. 258 provides in part:

Where such motion to transfer venue is duly made, it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in the said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge; and the application either granted or refused.

Rule 258 is mandatorily operative, and if the motion for transfer is duly filed and is not challenged as provided in the rule, the trial judge is required to transfer the case. City of Abilene v. Downs, 367 S.W.2d 153 (Tex.1963); Freeman v. Ortiz, 136 S.W. 113 (Tex.Civ.App.1911), aff'd, 106 Tex. 1, 153 S.W. 304 (1913). Rule 258 presupposes that, if the motion stands unchallenged, a change of venue is necessary in the interest of justice, and the failure to transfer the case in those circumstances is undoubtedly Forty-five panel members were examined during voir dire. They were all examined about any prejudice they may have had against Lone Star because of the company's lay-offs, disputes over its retirement policies, or for any other reason. All denied that they had any bias or prejudice. Only seven of the forty-five panel members had ever worked for Lone Star, and only three had heard about the lawsuit. Lone Star challenged none of the panel members for cause. We think these facts clearly indicate that Lone Star was not prejudiced by the jury's composition, and that the error in failing to grant its motion to transfer was harmless under the provisions of Rule 81.

                error.  It is equally well settled, however, that a judgment is not to be reversed for an error of law, unless the error amounts to such a denial of the appellant's rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, or probably prevented the appellant from making a proper presentation of the case on appeal.  Tex.R.App.P. 81. 1  The harmless error rule, as expressed in Rule 81, applies to all errors, even those involving the violation of procedural rules couched in mandatory language.   Lorusso v. Members Mutual Insurance Co., 603 S.W.2d 818 (Tex.1980);   C.E. Duke's Wrecker Service, Inc. v. Oakley, 526 S.W.2d 228 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref'd n.r.e.).  While the harmless error rule has not, to our knowledge, been applied to violations of Rule 258, the courts have held that the mandatory provisions of that rule may be waived by one in whose favor it would operate.   See Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306 (Tex.App.-Fort Worth, 1987, writ denied).  This fact, together with the well-recognized principle that all of the Rules of Civil Procedure stand on equal footing unless they provide otherwise, leads us to conclude that the provisions of Rule 81 apply to violations of Rule 258 the same as to other errors.  Having accepted that proposition and having carefully examined the jury selection process as reflected in the record, we conclude that the error in failing to transfer the case was not calculated to cause and did not cause the rendition of an improper judgment
                

THE FACTS

Lone Star began operating a suggestion plan in 1962, whereby its employees could receive monetary awards for suggestions which resulted in increased production or savings. Scott was employed in 1966 as a brick mason. In 1975, he submitted a suggestion concerning the operation of the soaking pits where steel ingots must be heated to a uniform temperature before they can be rolled into slabs and coils. The soaking pits are large masonry pits with movable covers. The steel ingots stand on the floor of the pit and are brought to the proper temperature ("soaked") by circulating hot gases around them. The gases come from a natural gas burner set in the wall of the pits and escape through a vent, an arched opening in the bottom of the back wall of the pit, and into tunnels leading to smokestacks. Heating the ingots produces slag, a molten material that runs off the ingots while in a semi-liquid state and onto the floor of the pit. The slag hardens and accumulates in the pits until it eventually must be removed.

When Scott made his suggestion, the procedure Lone Star used for slag removal required workers to enter the cooled pits and use jackhammers to loosen the solidified slag, which was then either dropped into the pit basement through doors in the floor of the pit or taken out through the top of the pit. While they were being cleaned the pits could not be used, and the production of marketable steel was delayed In summary, Scott's suggestion was that the floor of each soaking pit be inclined toward the downtakes and that a "slag runner," which was a grooved tile funnel, be placed in the floor to allow molten slag to run into the funnel and out into the downtakes. His design also called for a gas burner or "lance" to be mounted in the downtake, directed toward a notch cut in the bridge wall, to keep the slag fluid as it exited the bridge wall so that it would continue to flow out of the pit and into the downtake. Scott further proposed that part of an ingot mold be placed in the bottom of the downtake to catch the molten slag as it ran into the downtake. The ingot mold was to function as a kind of wastebasket which could be removed and replaced with another ingot mold after it had filled with slag.

until the pits were again operational. The intense heat in the pits during operation and the process of removing the solidified slag by jackhammers damaged the brickwork of the pits. From time to time Scott, as a brick mason, helped repair the damaged brickwork. While performing that work, he conceived his idea for slag removal.

Before Scott submitted his suggestion, he was warned by one of his supervisors that he could not be paid for his suggestion under the company's suggestion plan, because the idea had been discussed previously by others at the company. Nevertheless, he was told to take his suggestion to Robert Hurtte, who administered the suggestion plan for Lone Star. After his visit with Hurtte, Scott submitted his plan in writing on forms furnished by Lone Star. By a notice dated January 26, 1977, Scott was told that his suggestion had been rejected by the suggestion review committee. The reason for the rejection stated on the form was: "This has been considered previously by Management and/or another suggester."

Since he had been told that his suggestion could not be adopted, Scott wrote to Lone Star in May of 1977 asking it to release any rights it had in his suggestion so that he could develop it on his own. The company refused, and so advised him by a letter in which Lone Star's plant attorney observed that it was the company's policy not to release its rights to inventions or ideas discovered by its employees during and in relation to their employment. He also pointed out that...