Waltrip v. Bilbon Corporation

• Decision Date: 15 March 2001
• Parties: (Tex.App.-Beaumont 2001) ETHEL ESTELL WALTRIP and ERIC M. CULVER, Appellants v. BILBON CORPORATION a/k/a NATIONAL CONCRETE PRODUCTS, Appellee NO. 09-00-063 CV
• Court: Texas Court of Appeals

Page 873

38 S.W.3d 873 (Tex.App.-Beaumont 2001)

ETHEL ESTELL WALTRIP and ERIC M. CULVER, Appellants v. BILBON CORPORATION a/k/a NATIONAL CONCRETE PRODUCTS, Appellee

NO. 09-00-063 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted January 23, 2001

Delivered March 15, 2001

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-152,794

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess and Gaultney, JJ.

OPINION

RONALD L. WALKER, Chief Justice

Ethel Estell Waltrip and Eric M. Culver appeal a judgment rendered on a jury verdict in their favor and against Bilbon Corporation, also known as National Concrete Products ("Bilbon"). Waltrip and Culver ("appellants") sued Bilbon for injuries allegedly incurred when appellants' vehicle was rear-ended by a "Mack" truck driven by Alex Jeumard, Bilbon's employee. The jury found Jeumard seventy percent negligent and Waltrip thirty percent negligent, and also found Waltrip and Culver were engaged in a joint enterprise. The jury ultimately awarded Waltrip $2,401.05 for past medical care, $160.80 for past loss of earning capacity, and $100 for past physical pain and mental anguish, but did not award future damages. The jury awarded Culver $773.93 for past medical care, $300 for past loss of earning capacity, and $100 for past physical pain and mental anguish. No questions were propounded regarding future damages for Culver.

The record before us reflects that in its first attempt at reaching a verdict, the jury awarded neither Waltrip nor Culver any damages for past physical pain or mental anguish. Prior to the jury's release by the trial court, counsel for Bilbon indicated to the trial court that the jury's response to the past physical pain and mental anguish issue was in conflict with its response for past medical care. Counsel for appellants took issue with this and at one point moved for the trial court to accept the "0" damages verdict. After hearing arguments of counsel, the trial court determined a conflict did exist and instructed the jury as follows:

. . . .[T]he law in the State of Texas says that if you award damages for medical expenses, you must award some amount of damages for physical pain and mental anguish. The amount you choose is within your discretion. (emphasis added)

After further deliberation, the jury sent out the following note:

Please review our corrections. If correct, please let us know - also, if incorrect - let us know how to do this correctly.

The trial court responded:

The court cannot direct you in your answer. If the sum of money you have written into the verdict correctly reflects your verdict then indicate such by signing the attached signature page.

Appellants' counsel asserted that a second verdict form was sent out with the jury's note. No verdict form was attached to the jury's note in the clerk's record. Subsequently, the jury returned its verdict determining that Waltrip and Culver should be paid $100 each for past physical pain and mental anguish. The trial court entered judgment on this verdict. Appellants filed a motion for new trial alleging the following: the trial court should have accepted the first jury verdict; all of the jury verdicts are against the great weight and preponderance of the evidence; and there was newly discovered evidence - Waltrip had post-trial neck surgery. No order was entered on appellants' motion for new trial.

After filing their notice of appeal, appellants filed a "Motion for New Trial, or, in the Alternative, to Obtain Complete Record" with this Court. The motion alleged the jury's "second" verdict (the one allegedly attached to the jury note) was not accepted by the trial court and, though not included in the clerk's record, could be reconstructed. This Court ordered that the appeal be abated and the cause remanded to the trial court to determine if an accurate copy of the jury's "second" verdict form could be filed. At a hearing held by the trial court on remand, the trial court's clerk testified that when the jury returned for further deliberations because of the perceived conflict, she sent the original form (that had already been answered and written on) back to the jury. She provided only a new signature page. For preparation of the transcript for appeal, she put the second new signature page with the re-deliberated verdict. She further testified that when the jury changed its answers from zero to $100 for each of the appellants, it did so on the original, and only, verdict form, and, therefore, there were no verdict forms missing from the appellate record.

That mystery solved, we move on to address appellants' four points of error. Points of error one and two are worded as follows:

Point of Error One: Since "Verdict I," although against the great weight and preponderance of the undisputed evidence, was not "defective" as contemplated under Tex. R. Civ. P. 295, the Court erred in refusing to accept "Verdict I" and instead directing the jury to return a different verdict.

Point of Error Two: The interaction between the Court and jury, particularly the Court's instruction to return a different verdict and the jury's professed desire to return a verdict that was "correct," caused the rendition of a tainted and improper verdict upon which Judgment was entered.

The gist of appellants' complaints under points of error one and two can be found from the following excerpt taken from their appellate brief:

Since there can be no argument that "Verdict I" was incomplete or unresponsive, the only ground upon which "Verdict I" might have been refused was that the answers to the questions were "in conflict". [sic] However, notwithstanding colloquial use of the word "conflicting", [sic] i.e., in the sense of "inconsistent," the legal test for conflict is well settled:

A conflicting jury finding will not prevent the rendition of judgment and require a mistrial unless the findings, considered separately and taken as true, would compel the rendition of different judgments. The apparently conflicting answers must be such that one answer would establish a cause of action or defense while the other would destroy it. The test is whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, a judgment should be entered in favor of the defendant. [If this is the case], then the answers are fatally in conflict.

Compton v. Polonski, 567 S.W.2d 835 (Tex. Civ. App.--Corpus Christi 1978, no writ) (reversing and remanding for new trial) (emphasis added) (citing Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985 (Tex. 1949)).

In addressing allegations of conflicting jury answers, the Texas Supreme Court has been quite consistent. The trial court must reconcile apparent conflicts in the jury's findings if reasonably possible in light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. See Huber v. Ryan, 627 S.W.2d 145, 145-146 (Tex. 1981); Bender v. Southern Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980); Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963); Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 989 (1949). A court is under the duty to reconcile conflicting jury findings if at all possible. Traywick, 364 S.W.2d at 191. "It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled." Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99 (1939). Indeed, where there is no fatal conflict in the jury's answers, a trial court judge has no discretion in entering a judgment on the verdict. See Traywick, 364 S.W.2d at 191. If the answers cannot be reconciled, then Tex. R. Civ. P. 295 comes into play. Rule 295 provides, inter alia, that if a jury's answers are in conflict, the trial court "shall" instruct the jury in writing and in open court of the nature of the conflict, provide the jury with such additional instructions as may be proper, and then allow the jury to deliberate further. The word "shall" means Rule 295 is mandatory.

In the instant case, the record does not reflect what was discussed at the bench conference between the parties and the trial court immediately following the reading of the jury's answers to the submitted issues. The discussion we do have before us does not indicate that anyone raised the initial requirement for the trial court to reconcile the jury's answers when they appear to be in conflict. Of course, appellants' contention was that there was no conflict in the answers; instead, the problem was that the evidence to support the jury's answers of zero damages for appellants' pain and suffering was insufficient. See infra note 4.

In deciding whether there was a conflict in the jury's answers, we are guided by the same rules that govern a trial court's determination. As noted above, the Supreme Court has made clear that we are under a duty to reconcile conflicting jury findings "if at all possible." Huber, 627 S.W.2d at 145. A court may not find conflict if there is any reasonable basis on which the finding can be reconciled. Id. at 146.

In Huber, the Supreme Court reversed the holding of the court of appeals that "failure of the jury to award damages for pain and mental anguish in the past is in fatal conflict with the affirmative findings of injury and loss of earning capacity in the past." Id. at 145. The Huber case is somewhat unique in that the reporter's record was missing from the record on appeal. Id. Nevertheless, the Supreme Court vigorously engaged itself in reconciling the jury's answers so as to dispel any hint of conflict between the jury finding of injury and the jury finding of zero damages for pain and...