Primrose Operating Co., Inc. v. Jones, 07-01-0275-CV.

CourtCourt of Appeals of Texas
Writing for the CourtJohn T. Boyd
Citation102 S.W.3d 188
PartiesPRIMROSE OPERATING COMPANY, INC. and Palmer Oilfield Construction Inc., Appellants, v. Walter James JONES, III and Jona Jones, Individually and as Next Friends of Allisha and Ty Jones, Minor Children, Appellees.
Docket NumberNo. 07-01-0275-CV.,07-01-0275-CV.
Decision Date24 January 2003

Page 188

102 S.W.3d 188
PRIMROSE OPERATING COMPANY, INC. and Palmer Oilfield Construction Inc., Appellants,
Walter James JONES, III and Jona Jones, Individually and as Next Friends of Allisha and Ty Jones, Minor Children, Appellees.
No. 07-01-0275-CV.
Court of Appeals of Texas, Amarillo.
January 24, 2003.
Rehearing Overruled May 6, 2003.

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Page 190

McMahon, Surovik, Suttle, Buhrmann, Hicks & Gill, William A. Hicks, Brandon J. Logan, for Palmer Oil Field Construction Company Inc.

Kevin Glasheen and Ralph H. Brock, Lubbock, for Appellees.

Craig, Terrill & Hale, Gary M. Bellair, for Primrose Operating Company, Inc.

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


JOHN T. BOYD, Senior Justice (Assigned).

This is an appeal from a judgment awarding damages for injuries arising from an oilfield accident. In the judgment, Walter James Jones III and his wife Jona Jones, individually and as next friend of their minor children, were awarded approximately 2.7 million dollars in actual and exemplary damages. These parties will be collectively referred to as Jones. The trial court defendants were Primrose Operating Company (Primrose), Palmer Oilfield Construction Company (Palmer), and Mike Byrd Casing Crews, Inc. (also referred to as Byrd Power Tong Service, Inc.). Each defendant filed a notice of appeal, but Byrd subsequently settled with Jones and is not a party to this appeal. Finding merit in Primrose's first issue and Palmer's second issue, we reverse the judgment of the trial court and remand the cause for further proceedings in accordance with our opinion.

The background of this appeal begins with the fact that Primrose was the operator of an oil and gas well in King County. It contracted with Palmer to drill the well and run casing down to 3600 feet on a perfoot basis. Additional work, to a maximum of 3650 feet, would be on a day work basis. Walter Jones was an employee of

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Palmer. Palmer, in turn, hired Byrd to perform part of the work, including supplying power tongs and elevators. In July 1997, soon after installation of the casing had begun, the crew encountered difficulty raising joints of casing into place for assembly. The difficulty arose because handles on the elevator struck the derrick while the casing was raised. Some of the workers felt the handles on the elevator were too long. However, no other elevator was available and the work continued.

On one occasion, the elevator handles hung on the derrick and, before the driller could stop the winch, the handles acted as a lever, causing the free-hanging end of the casing joint to swing out. As it swung back down, the casing struck Jones on the back of his head, causing him the injuries for which recovery was sought.

The Jones parties filed suit against Primrose and Byrd Casing. Primrose sought indemnification from Palmer under their written agreement. Palmer's worker's compensation carrier, Old Republic Insurance, filed a plea in intervention asserting it was subrogated to any recovery Jones obtained. The King County trial jury returned a verdict for Jones in which it found both Primrose and Byrd negligent and attributed 90 percent of the responsibility to Primrose and 10 percent to Byrd. In conformity with the jury's verdict, the trial court rendered judgment for Jones for $2,690,000 in damages, and $741,624 in prejudgment interest. That Old Republic had a subrogation interest of $85,608 in the judgment was undisputed. The trial court also found that Primrose was entitled to indemnification from Palmer in the amount of $1,000,000, together with $77,000 in attorney fees. Each party filed a notice of appeal, but Byrd subsequently settled.

In pursuing its appeal, Palmer presents five issues for our review. They are whether: 1) the trial court erred in denying their motions for mistrial based on a tainted jury panel, 2) the trial court erred in refusing to submit an issue on Primrose's right of control over Palmer, 3) the evidence was legally or factually sufficient to support the finding that Primrose retained a right of control over Palmer and/or Byrd sufficient to create a duty on Primrose to Jones, 4) the delay in obtaining the reporter's record entitles Palmer to a new trial, and 5) the trial court correctly held Primrose was entitled to indemnification from Palmer under the terms of their written contract.

Primrose presents the following issues: 1) whether Jones' failure to secure a finding on its control over Palmer requires reversal of the judgment against Primrose, 2) whether the appearance of partiality on the part of the jurors requires reversal on public policy grounds, 3) whether the trial court erred in awarding damages for loss of consortium for a child born after the injury, and 4) whether Palmer should be required to pay post-judgment interest on its indemnity obligation.

Jones presents six issues in which they ask us to decide whether: 1) a pretrial "focus group" conducted by Jones probably caused any injury, 2) Primrose's right of control was established by the contract between it and Palmer, 3) the evidence was legally and factually sufficient to show Primrose's employee retained a right of control over Palmer's work, 4) Primrose's employee retained a right of control over Palmer's work, 5) Primrose waived its complaint regarding loss of consortium damages for after-born children, and 6) the reporter's record is sufficient for the purposes of this appeal.

Initially, we will consider the issues concerning jury selection, which encompass Primrose's issue two, Palmer's issue one, and Jones' issue one. The facts giving rise

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to these issues come from what Primrose and Palmer describe as a mock trial2 conducted before the jury selection in the case. It is undisputed that King County has a population of just over 300. Anticipating some difficulty in obtaining a jury, the district court had the clerk summon 130 veniremen. The jury summons were mailed on Monday, September 12, 2000. At some time prior to September 14, 2000, one of Jones' attorneys contacted Dr. Blodgett, a veterinarian at the 6666 Ranch in King County. He was seeking use of a conference room for a meeting in preparation for the trial, however, he did not explain the nature of the meeting. Another of Jones' attorneys, the lead counsel at trial, spoke to a secretary at the ranch, telling her that they wanted to conduct a "focus group" to help them decide how to best present their case at the upcoming trial.

Jones' attorney asked the secretary to assemble a group who was representative of the county population, but had not been called for jury duty. The secretary assembled a group of approximately seven adults, including a high school teacher and five students from the teacher's seniors government class. On Thursday, September 14, 2000, the group met at the ranch. Some time before the mock trial, the first attorney obtained a list of those summoned for jury duty in the case; however, he did not recall if he provided the list to Jones' trial attorney beforehand.

Jones' trial attorney presided over the mock trial and was unaware who would be participating before he arrived at the ranch. He asked the participants if any of them had been summoned for jury duty in the case and excluded one person who had been called. The attorney did not ask if any of the group's family members had been summoned to the trial venire. At the meeting, Jones' attorney summarized the evidence he expected would be presented by each party in the case using flip charts and a portion of a video deposition. At the conclusion of the meeting, which lasted approximately two hours, the mock jury held Primrose 80 percent responsible and opined that the Jones parties were entitled to $7,000,000 in damages. Each participant was given a $30 restaurant gift certificate for their participation in the mock trial.

The King County Judge learned of the mock trial on the same day that it was conducted. The judge went to the ranch and obtained a list of all the participants. The judge provided the list to the district clerk, who compared it to the members of the jury venire for the purpose of identifying family relationships between members of the two groups and found several relationships between the two lists. A copy of the mock trial list was also furnished to the district judge.

The case was called for trial on Monday, September 18, 2000. Primrose, Palmer, and Byrd learned of the mock trial before the jury voir dire began and jointly moved for a mistrial on the basis that the mock trial had tainted the entire venire. They also objected to Jones' failure to furnish them a list of the participants in the mock trial which, they argued, seriously impaired their ability to conduct an effective voir dire of the panel. The trial court did not rule on the motion immediately, but carried it on during the voir dire examination.

Even so, the effect of the mock trial was significantly explored during the jury voir

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dire examination. The parties explored the relationships between venire members and mock trial participants, as well as the effect of the mock trial on the community view of the dispute. One venire member, Mr. Pettiet, pointed out that the mock trial concluded only a few hours before a local junior high football game attended by county residents. He was serving food at the game and, he said, the mock trial, inducing the $7 million damage finding, was a major topic of conversation. He averred he heard about the case "from every direction," and ultimately stated that he could not set aside what he had heard about the case, which resulted in him being struck for cause. The trial court also allowed a strike for cause in the instance of Dr. Blodgett,3 who had questioned the ethics of the plaintiffs' attorney's actions in conducting the mock trial at the time. At the conclusion of the voir dire, the motion for mistrial was again urged,...

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