David Neal Duncan v. Gary F. Prescott

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00330-CV
DAVID NEAL DUNCAN, APPELLANT
V.
GARY F. PRESCOTT, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 60,787-C, Honorable Don Emerson, Presiding
October 11, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
David Neal Duncan appeals the verdict of a jury that resulted in a judgment
against Duncan and in favor of Gary F. Prescott for the sum of $1,650 in compensatory
damages and $85,000 in exemplary damages. Through two issues, Duncan contends
that exemplary damages were so clearly excessive as to be a denial of due process and
the jury verdict awarding exemplary damages was not unanimous. We will suggest a
remittitur and affirm the judgment of the trial court as modified.
Factual and Procedural Background
The basic facts that are involved in the case are not really subject to much
dispute. On August 19, 2008, Duncan’s then-wife, Taylor, and his 18-month-old
daughter were shopping at Petsmart in Amarillo, Texas. Also shopping at Petsmart on
that day was Prescott. Eventually, Taylor and the daughter ended up in the checkout
line in front of Prescott. Apparently, there were several people in the checkout line in
front of Taylor and, while waiting in the line, her daughter kept taking things off nearby
shelves and throwing them on the floor. The child’s activities disturbed Prescott, as did
the failure of Taylor to attempt to stop her. Eventually, Prescott said something to
Taylor about controlling her child. Taylor advised Prescott to mind his own business
and not to talk to her about the child. This led Prescott to utter the phrase that led to the
physical confrontation. Prescott stated to Taylor that, if she did not control the child, the
child would grow up to be a “whore” just like Taylor.
After uttering this sentence, Prescott left the checkout line and went to the rear of
the store to pick up a large bag of cat litter. Taylor was very upset and called her
husband, Duncan, to advise him what had occurred. Testimony about what Taylor told
her husband was somewhat in conflict; however, the Petsmart cashier who was
checking Taylor out overheard Taylor tell Duncan he needed to come and beat Prescott
up. Duncan was shopping at the Academy store, nearly one and one-half mile away.
Duncan arrived at Petsmart within a matter of minutes. He immediately went
toward the back of the store in search of Prescott. According to the testimony, Taylor
was with Duncan and pointed out Prescott by saying, “That’s him.” While Prescott, with
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his back facing Duncan, was putting a large bag of cat litter in a shopping cart, Duncan
struck Prescott in the back of the head. Prescott fell to the ground and tried to cover his
head up while Duncan continued to throw a punch at his head. Duncan got astride
Prescott, rolled him over and sat on him while continuing to throw a couple of punches
at Prescott’s head. The record shows that it was not until Duncan realized that people
were telling him the police had been called that he stopped the assault of Prescott and
left the store.
Duncan was subsequently indicted for the felony offense of aggravated assault
with a deadly weapon; specifically, his hands in the manner of their use or intended use
were designated as the deadly weapon. Duncan entered into a plea bargain on the
matter and, after entering a plea of guilty, was placed on deferred adjudication for 10
years.
Prescott initially refused medical attention at the scene. However, a couple of
days later he presented at the ER at Northwest Texas Hospital with complaints of
continued headaches. Tests were run on Prescott at that time. After having some tests
performed, Prescott left the hospital before the results were fully known. Prescott
testified that he asked if he was OK and when told he was, left the hospital after getting
assurances that they would call him if anything was wrong. Prescott’s medical bills
were presented by an affidavit from the custodian of the medical records at Northwest
Texas Hospital and were in the amount of $650. Prescott testified to continue to have
occasional headaches plus bouts of anxiety from time to time.
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After hearing the evidence and argument of counsel, the jury returned a verdict
that found that Duncan had committed an assault against Prescott. Further, the jury
found that Prescott had been damaged in the sum of $1,000 for physical pain and
mental anguish in the past and had suffered reasonable and necessary medical
expenses of $650 in the past. The jury also found that by clear and convincing
evidence that the harm to Prescott resulted from malice and awarded Prescott $85,000
in exemplary damages.
After receiving the jury’s answers to the questions asked, the trial court entered
judgment based upon the answers. Thereafter, Duncan filed a motion for a remittitur
and new trial. Duncan’s motion was overruled by operation of law and this appeal
followed.
Duncan now contends that the award of exemplary damages was so excessive
as to amount to a denial of due process. In his second issue, Duncan contends that the
record reflects that the jury verdict was not unanimous regarding liability and, therefore,
cannot sustain the judgment for exemplary damages. We will suggest a remittitur as
hereinafter set forth and, in all other respects, affirm the trial court’s judgment.
Jury Verdict
We choose to address the question raised by Duncan regarding the propriety of
the jury verdict first. Briefly, Duncan contends that the verdict received by the trial court
is defective because the same was not the result of jury unanimity. 1 For this
1
Prescott raises the issue of whether either of Duncan’s complaints regarding
jury unanimity were properly preserved. We need not address this question because of
our disposition of the matter.
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proposition, Duncan cites the Court to Rule 292(b) of the Texas Rules of Civil
Procedure and Section 41.003 of the Texas Civil Practices and Remedies Code. Each
provision cited does, in fact, require that a jury’s verdict assessing exemplary damages
must be the result of jury unanimity on the question of liability and the amount of those
damages. See TEX. R. CIV. P. 292(b); TEX. CIV. PRAC. & REM. CODE ANN. § 41.003
(West Supp. 2012).
However, a close reading of the record and review of the clerk’s record supports
the fact that the jury was unanimous in its verdict on liability and amount of exemplary
damages. The confusion came about from how the requirement for jury unanimity was
applied to Question 2. When the jury first returned a verdict on liability and damages to
the courtroom, the verdict form as to medical expenses suffered by Prescott in the past
had only the notation “out of pocket medical expenses.” The trial court sent the jury
back to deliberate and come out with a dollars and cents notation for that answer.
Thereafter, the jury returned with the notation of “$650” written on the form. The
presiding juror had originally signed the verdict form indicating jury unanimity on all
questions. When the jury returned to the courtroom with a dollar amount written in for
Question 2, the presiding juror, when questioned by the trial court, advised that they
were no longer unanimous as to the amount of damages. The trial court then
interlineated lines for the jurors who found for questions one and two to sign and a
separate signature for the presiding juror to indicate juror unanimity for the liability
question, Question 3, and instructed them to return to the jury room to affix the
signatures to the appropriate form. Upon returning to the courtroom, the jury had
verdict forms signed by ten of the jurors that applied to answers to Questions 1 and 2.
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The presiding juror signed on the line that applied to Question 3, as indicated by the trial
court’s written instruction.
The liability question, for purposes of this issue, was Question 3. Question 3
contained an instruction that to answer “yes” to this question the answer must be
unanimous and that the jury could answer “no” to the question on the vote of ten jurors.
The question asked is, “Do you find by clear and convincing evidence that the harm to
Gary Prescott resulted from malice?” The question then gave the correct definitions of
“clear and convincing evidence” and “malice.” The jury answered “yes” to the question.
As stated above, “malice,” as defined by the trial court, was the liability question that
required the unanimous jury answer in the case before the Court. See TEX. CIV. PRAC.
& REM. CODE ANN. § 41.003(a)(2).
The record further reflects that the jury’s answer to Question 4, the exemplary
damages question, occurred the following day. In the instructions that accompanied
this question, the trial court set forth the requirement that the jury’s answer was to be
unanimous. The record reflects that the verdict form was signed by the presiding juror,
indicating jury unanimity.
Because the record clearly demonstrates that the jury’s answers to Questions 3
and 4, those requiring unanimity, were in fact unanimous, we overrule Duncan’s second
issue.
Exemplary Damages
We now turn our attention to Duncan’s first issue, wherein he contends that the
amount of the exemplary damages awarded to Prescott is so excessive as to amount to
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a violation of his federal constitutional right to due process. See U.S. CONST. amend.
XIV, § 1.
The United States Supreme Court has directed that we must review the award of
exemplary damages pursuant to three guideposts: 1) the degree of reprehensibility of
Duncan’s misconduct; 2) the disparity between the actual or potential harm suffered by
Prescott and the exemplary damages awarded; and 3) the difference between the
exemplary damages awarded by the jury and the civil penalties authorized or imposed
in a comparable case. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S. Ct.
1589, 134 L. Ed. 2d 809 (1996). Our review of these guideposts, as applied by the trial
court, is further directed to be de novo. See Cooper Indus., Inc. v. Leatherman Tool
Group, Inc., 532 U.S. 424, 436, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001). Our review is
further guided by our Texas Supreme Court who has stated that the constitutionality of
exemplary damages is a legal question for the court. See Tony Gullo Motors I, L.P. v.
Chapa, 212 S.W.3d 299, 307 (Tex. 2006) (citing Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43, 45 (Tex. 1998)).
Duncan’s position regarding the amount of exemplary damages is very simple
and straight forward. Duncan posits that the award of exemplary damages, as
compared to what the jury found as actual damages, results in a ratio of 51.5:1, which is
significantly greater than the 4:1 ratio that the Texas Supreme Court has historically
stated as being “close to the line” for constitutional impropriety. See Bennett v.
Reynolds, 315 S.W.3d 867, 873 (Tex. 2010). However, as the United States Supreme
Court has on several occasions noted, “We need not, and indeed we cannot, draw a
mathematical bright line between the constitutionally acceptable and the constitutionally
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unacceptable that would fit every case.” See TXO Prod. Corp. v. Alliance Res., 509
U.S. 443, 458, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993) (quoting Pac. Mut. Life Ins. Co.
v. Haslip, 499 U.S. 1, 18, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991)).
We therefore turn to the guideposts as formulated by the United States Supreme
Court and adopted by the Texas Supreme Court. See Gore, 517 U.S. at 575; Bennett,
315 S.W.3d at 873. The first consideration is the degree of reprehensibility of Duncan’s
conduct. In making this determination, the United States Supreme Court has set forth
five nonexclusive factors to consider. State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 419, 123 S.Ct 1513, 155 L. Ed. 2d 585 (2003). First, the harm visited on
Prescott by Duncan was physical harm and not economic harm. Id.; Bennett, 315
S.W.3d at 874. The record reflects that Duncan attacked a man some 27 2 years older
than himself from behind. This fact alone pushes the reprehensibility factor very high.
Second, we consider whether the tortious conduct showed “an indifference to or a
reckless disregard for the health or safety of others.” Campbell, 538 U.S. at 419;
Bennett, 315 S.W.3d at 874. Further, the record reflects that Duncan showed no
propensity to cease the assault until the fact that the police had been called was made
very clear to him. This action shows indifference by Duncan as to the health or safety of
others, or at least a reckless disregard for it. The third and fourth factors, respectively,
the financial vulnerability of the target and whether the conduct involved—the assault—
was a repeated event, are not applicable to our facts. See Campbell, 538 U.S. at 419.
The last factor, whether the harm resulted from “intentional malice” as opposed to
accident, is very present. Despite how hard Duncan tries to portray the assault as
2
The medical records introduced into the evidence reflect that Prescott was 65
years old. Duncan testified that he was 38 years old on the date of the assault.
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“either protecting the honor of his then-wife” or “outrage” at the incendiary words used
by Prescott, the fact remains that Duncan drove nearly a mile and a half from Academy
to Petsmart before attacking Prescott. Thus, the assault on Prescott begins to take on
the visage of premeditation, as opposed to heat of passion. This fact and the violence
of an attack from behind strongly support the finding of malice. At the end of the day,
Duncan’s conduct was simply extremely reprehensible.
Looking at the second guidepost, “the disparity between the actual or potential
harm suffered by Prescott and the exemplary damages award,” we are called to look at
the ratio between compensatory damages and the exemplary damages. See id. at 418;
Bennett, 315 S.W.3d at 873. However, before we approach the ratio present in this
case, matters need to be considered.
First, the question of the actual damages versus the potential for substantially
greater damages must be addressed. Prescott suffered actual damages, according to
the jury’s verdict, of $1,650; however, the testimony regarding the assault paints a
significantly different picture about the severity of the assault. To reiterate, Duncan
attacked Prescott from the rear with a blow to the head. According to one witness, after
Prescott fell to the floor, Duncan rolled him over so that Duncan was astride his back
and continued to punch. Further, witnesses said Duncan was banging Prescott’s head
against a concrete floor. That Prescott did not suffer much more significant injuries was
simply due to good fortune and not because of anything Duncan did or did not do.
Second, we cannot agree with Duncan’s attempt to characterize his conduct,
during his testimony, and in his briefs, as some sort of heat-of-passion moment. The
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record is rather clear on the fact that Duncan was not physically present when Prescott
uttered the untoward and uncalled for comment. Duncan got the phone call and drove
from the Academy store to the Petsmart location, a distance of 1.4 miles. Upon arrival,
Duncan went to the back of the store, his then-wife pointed out Prescott, and Duncan
assaulted him. In the period between the phone call and the assault, Duncan had
enough time for at least some momentary reflection on his chosen course of conduct,
yet, he did not chose to consider the ramifications of his conduct.
Realizing that there is no set of mathematical ratios that fits all circumstances
and, upon reflecting on the facts within the second guidepost, we are left with a couple
of additional considerations. See TXO, 509 U.S. at 458. The initial consideration is
whether there is a reasonable relationship between the exemplary damages award and
the harm likely to result from the conduct of Duncan as well as the harm already actually
suffered by Prescott. See Gore, 517 U.S. at 581. Additionally, we note that a
particularly egregious act that results in only small damages may support a larger award
of exemplary damages and still comport with due process requirements. See Campbell,
538 U.S. at 425. So too has the Texas Supreme Court held in the Bennett case.
Bennett, 315 S.W.3d at 879.
However, before we finally answer the question of whether this particular award
of exemplary damages comports with our due process requirements, we need to
address the third guidepost set forth in Gore, that is, the difference between the
exemplary damages awarded by the jury and the civil penalties authorized or imposed
in comparable cases. Campbell, 538 U.S. at 418. In our case, there are no comparable
civil penalties because this was a criminal assault. We are authorized to consider
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criminal penalties that could be imposed because this is indicative of the seriousness
with which the State views the wrongful conduct. See id. at 428. To the charges
stemming from this event, Duncan entered a plea of guilty to the offense of aggravated
assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
Aggravated assault with a deadly weapon is a second-degree felony and is punishable
by confinement for a term of not more than 20 years or less than 2 years in the
Institutional Division of the Texas Department of Criminal Justice, and an optional fine of
up to $10,000. See id. §§ 12.33, 22.02(b). However, we are warned that, in referring to
the possible criminal penalties, we must take “great care” to avoid using the civil
process to impose criminal penalties that can be properly imposed only after the
heightened standards of proof of criminal prosecutions have been observed. See
Campbell, 538 U.S.at 428.
In our case, the record supports our consideration of the criminal penalty
because Duncan has entered a plea of guilty to the offense. For purpose of our
analysis, his guilty plea alleviates to some degree the concerns voiced in Campbell
regarding the heightened standards of proof in a criminal matter. See id. Accordingly,
we find support for a measure of exemplary damages in the legislative determination
that Duncan’s type of conduct is worthy of punishment as a second-degree felony.
Based upon our consideration of the guideposts set forth in Gore, we find that the
exemplary damages awarded do go beyond the constitutional limits. Specifically, we
note that a ratio of 51.5:1 is excessive under the applicable authority of our Texas
Supreme Court. See Bennett, 315 S.W.3d at 882-83 (holding that, under the facts of
the case, a ratio of 4:1 was “a stretch”); Tony Gullo Motors, 212 S.W.3d at 310 (holding
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that an award 5 to 10 times more than the comparable civil penalty was constitutionally
infirm).
However, we feel no hesitation is finding that award of exemplary damages equal
to the criminal fine applicable in this matter—$10,000—would pass the constitutional
due process test.
Conclusion
We overrule Duncan’s second issue. However, we sustain his first issue relating
to the exemplary damages and suggest a remittitur. In accordance with Rule 46.3 of
the Texas Rules of Appellate Procedure, if Prescott files with this Court, within fifteen
days of the date of this opinion, a remittitur of $75,000 from the award for exemplary
damages, the trial court’s judgment will be reformed as to exemplary damages and
affirmed. See TEX. R. APP. P. 46.3. If the suggested remittitur is not timely filed, the trial
court’s judgment will be reversed with respect to exemplary damages, and this cause
will be remanded to the trial court for a new trial on all issues.
Mackey K. Hancock
Justice
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