Newsom, Terry & Newsom, LLP and Steven K. Terry v. Henry S. Miller Commercial Company

DISSENT; Opinion Filed August 31, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00379-CV
NEWSOM, TERRY & NEWSOM, LLP AND STEVEN K. TERRY,
Appellants
V.
HENRY S. MILLER COMMERCIAL COMPANY, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-01306-G
DISSENTING OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Carlyle
I disagree only with the majority’s determination that the trial court committed
jury charge error in this legal malpractice case. To me, the majority falls into two
analytical difficulties that sidetrack its analysis. The first is in ignoring the word
“incidentally” in rule 277 and the second is that the substance of the malpractice is
legal representation.
Texas Rule of Civil Procedure 277 says:
The court shall not in its charge comment directly on the weight
of the evidence or advise the jury of the effect of their answers,
but the court’s charge shall not be objectionable on the ground
that it incidentally constitutes a comment on the weight of the
evidence or advises the jury of the effect of their answers when
it is properly a part of an instruction or definition.
The trial court has considerable discretion to determine proper jury
instructions, and if an instruction in a charge might aid the jury in answering the
issues presented, or if there is any support in the evidence for an instruction, the
instruction is proper. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (citing La.-
Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). Incidental comments in
jury charges are permissible when necessary as part of an explanatory instruction or
definition. See Imagine Auto. Grp. v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620,
645 (Tex. App.—Dallas 2014, pet. denied); TEX. R. CIV. P. 273, 277.
Here, the court first provided jurors the relevant text of the responsible third
party (RTP) statute, Texas Civil Practices and Remedies Code § 33.004, followed
by an explanatory instruction which read as follows:
Under this statute, a defendant is not required to provide evidence at the
time of the filing of a motion for leave to designate a responsible third
party, but the designation may be struck, by the Court, for lack of
evidence after an adequate time for discovery has passed.1
In resisting a motion to strike a designation of a responsible third party,
the Terry Defendants would not have been required to prove the
plaintiffs’ case that there was fraud in the underlying transaction. They
could rely on evidence of the proposed transaction, its failure, and the
identity of a responsible third party as the defaulting buyer in resisting
a motion to strike a designation of a responsible third party.
1
The majority does not include this part of the explanatory instruction in its analysis, and though I
include it for completeness, I do not place any special emphasis on it either.
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The majority concludes the trial court abused its discretion by giving jurors
this explanation. See TEX. R. APP. P. 44.1(a)(1). The abuse of discretion standard
requires us to conclude that the trial court acted without guiding principles or acted
arbitrarily or unreasonably. Imagine Auto. Grp., 430 S.W.3d at 645. A court can
abuse its discretion if it interprets or applies the law incorrectly, and I assume that’s
the path the majority takes here.
From the beginning, the majority incorrectly applies the governing rule
because it fails to consider the language allowing incidental comments in the jury
charge. The majority says, “A trial court’s charge may not comment on the evidence
or the weight of the evidence in any manner. See TEX. R. CIV. P. 277.” The rule is
more subtle: it prohibits only a comment “directly” on the weight of the evidence or
one that advises the jury of the effect of its answers. The rule specifically allows a
charge that “incidentally” constitutes a comment on those matters. TEX. R. CIV. P.
277. That is what we’re presented with in this charge.
This brings me to the second analytical difficulty the majority encounters: it
happens in this legal malpractice case that the proper application of the law to a set
of facts was the subject of the litigation. And at heart, my colleagues find fault in the
way the court instructed the jury about the law as applied to the facts in this case. In
my view, it was entirely proper to instruct jurors how the law applies to the specific
facts of the case.
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Explanatory instructions should be submitted when, in the discretion of the
trial court, they will help jurors understand the meaning and effect of the law and the
presumptions the law creates. Tex. Ear Nose & Throat Consultants, PLLC v. Jones,
470 S.W.3d 67, 88 (Tex. App.—Houston [14th Dist.] 2015, no pet.). An instruction
can be a correct statement of the law but unnecessary in the charge. Id. The
instruction here aided jurors in answering the issues presented to them, and on that
basis, the instruction is proper. See Thota, 366 S.W.3d at 687.
To the extent the majority concludes the court’s instruction was a direct
comment “on the weight of the evidence or advises the jury of the effect of their
answers,” I disagree. To be a direct comment on the weight of the evidence, the issue
submitted must suggest to the jury the trial court’s opinion on the matter. H.E. Butt
Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex. 1998). An impermissible comment
on the weight of the evidence occurs when “after examining the entire charge, it is
determined that the judge assumed the truth of a material controverted fact, or
exaggerates, minimizes, or withdraws some pertinent evidence from the jury’s
consideration.” Am. Bankers Ins. Co. of Fla. v. Caruth, 786 S.W.2d 427, 434 (Tex.
App.—Dallas 1990, no writ). Similarly, to directly advise the jury of the legal effect
of its answers, the issue submitted must instruct the jury how to answer each question
in order for the plaintiff or defendant to prevail. Id. (citing Pope & Lowerre, The
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State of the Special Verdict—1979, 11 ST. MARY’S L.J. 1, 43 (1979)). The
instruction does none of these things.
Instead, it informs jurors of the legal mechanics of a motion to strike
proceeding as colored by the factual allegations here. Any comment on the evidence
is the definition of incidental. See Bilotto, 985 S.W.2d at 24. The best sense I can
make of the majority’s reading—to the extent it considers the “incidentally”
language in rule 277 at all—is that incidental means only small or minuscule. But
that ignores the other use of incidental, which is “liable to happen as a consequence
of an activity.”2
The majority cites several cases to support a conclusion that the instruction
directly instructed jurors how the court had ruled and is objectionable for that
reason.3 But unlike those cases, the court here made no announcement that it had
concluded either party was correct on any issue, and it gave no hint that the court
favored one party over the other because it had already decided for that party on
particular issues. The majority hyperelasticizes the principle those cases stand for
and in the process, ignores the incidental effect an instruction might have as opposed
to a specific instruction regarding prior final findings the court has made.
2
Incidental is defined as “happening as a result of or in connection with something more important;
casual” or “likely to happen as a result or concomitant.” Incidental, WEBSTER’S NEW WORLD DICTIONARY
682 (Third College ed. 1994).
3
See In re Commitment of Shelton, No. 02-19-00033-CV, 2020 WL 1887722, at *12 n.7 (Tex. App.—
Fort Worth Apr. 16, 2020, no pet.) (mem. op. on reh’g); Bd. of Regents of N. Tex. State Univ. v. Denton
Constr. Co., 652 S.W.2d 588, 594–95 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.).
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The majority further claims the instruction was not properly part of the charge
because it added nothing that selected portions of § 33.004 hadn’t already told the
jury. This wasn’t an intermediate court of appeals hearing a writ of mandamus relator
complaining that the trial court improperly granted a motion to strike an RTP; this
was a lay jury trying to decide whether a lawyer had committed malpractice. To do
their job, jurors needed the basics of the legal mechanics in this area of law, plus
some. The instruction clarified the boundaries within which the parties could
properly argue on the motion to strike an RTP designation. It helped the jurors do
their job.
I also find fault with the majority’s attempts to discredit the trial court for
using words from this court’s prior opinion in this case. The majority says the court
imported the language to the explanation portion of the charge “out of context”
because the “original context was a discussion of whether there was more than a
scintilla of evidence to support a finding that Terry was grossly negligent.”
In our prior opinion, we reversed the grant of a directed verdict on gross
negligence. In that posture, using the modified legal sufficiency standard to evaluate
gross negligence claims resulted in a holding that HSM had presented clear and
convincing evidence of gross negligence—evidence providing a factfinder the basis
for a firm belief or conviction as to the truth of the allegations. See U-Haul Int’l, Inc.
v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); Henry S. Miller Commercial Co. v.
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Newsom, Terry & Newsom, L.L.P., No. 05-14-01188-CV, 2016 WL 4821684, at *7
(Tex. App.—Dallas Sept. 14, 2016, pet. denied) (mem. op.) (“HSM I”) (“Instead, we
must determine whether a reasonable factfinder could form a firm belief or
conviction that the Lawyers were grossly negligent in failing to designate Flaven as
a responsible third party.” (citing U-Haul Int’l, Inc., 380 S.W.3d at 137)). We said
HSM had offered “clear and convincing evidence establishing the Lawyers’
subjective and objective awareness of the extreme risks of their litigation strategy
which exposed HSM to multi-million-dollar liability not only for Defterios’s actions
but also for Flaven’s.” HSM I, 2016 WL 4821684, at *7.4
All that said, the prior opinion wasn’t discussing jury charge issues like the
one we face in this case. But the trial judge used our specific statement of law as it
applies to the facts in this case as a legally proper, relevant, helpful instruction to the
jurors. See Thota, 366 S.W.3d at 687 (citing La.-Pac. Corp., 976 S.W.2d at 676);
TEX. R. CIV. P. 277. To prevail on a motion to strike, HSM would have had to present
only a scintilla of evidence that Flaven was responsible. See Gregory v. Chohan, 615
S.W.3d 277, 298 (Tex. App.—Dallas 2020, pet. pending) (en banc). In HSM I, our
substantive conclusion was that “evidence of the proposed transaction, its failure,
4
As part of our recognition that the existence of controverting evidence was not enough to support the
directed verdict on gross negligence, we noted that the Terry defendants presented evidence that the “jury
could have credited” to support the conclusion that they were not grossly negligent. This did nothing to
undercut our pronouncement that, in resisting the motion to strike the RTP designation, HSM would not
have had to prove the plaintiffs’ case that there was fraud in the underlying transaction. Instead, we noted
there was “ample evidence of the proposed transaction, its failure, and Flaven’s identity as the defaulting
buyer.” HSM I, 2016 WL 4821684, at *6.
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and the identity of a responsible third party as the defaulting buyer” would satisfy
the clear and convincing standard. HSM I, 2016 WL 4821684, at *6. It is simple
extrapolation that the same evidence constitutes more than a scintilla and thus would
defeat a motion to strike. Given that the standard to defeat a motion to strike is more
than a scintilla of evidence, it’s not clear why the majority has a problem with the
trial court’s using language from our prior opinion discussing that standard even on
a different legal issue.
Also, the majority never explains how the court’s instruction was legally
incorrect aside from suggesting it directed jurors regarding the court’s prior
conclusions5—that’s probably because the instruction is a proper statement of the
law. Instead, the majority cites case law dealing with trial tactics and reduces
appellants’ failure to designate Flaven as an RTP to a mere trial tactic, the same
logical error appellants make in their appellate argument. See Childs v. Crutchfield,
No. 09-07-00065 CV, 2007 WL 5075982, at *6 (Tex. App.—Beaumont Sept. 13,
2008, pet. denied) (mem. op.).6 A lawyer has discretion to execute trial tactics in
accordance with the law, including whether to designate a person as an RTP. But I
see no reason to extend that discretion to include making decisions based on
5
As I recognize above, a court may commit error even when including legally correct instructions, but
I view the instruction as relevant to the jurors’ task in this legal malpractice case.
6
The majority says that “any suggestion by the court that Terry should have made a different decision
would likely sway a jury.” The trial court’s instruction does not suggest that “Terry should have made a
strategic decision”—it instructs on the law as applied to the motions to strike RTP in this case.
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incorrect legal conclusions—it is no trial tactic to be wrong on the law. And the trial
court did not abuse its discretion by correctly instructing the jury on the law
applicable to the case, so that the jury could decide whether appellants acted
negligently under the circumstances.
Appellants were entitled to a fair opportunity to convince the jury that they
were not negligent in failing to designate Flaven as an RTP. In doing so, they were
free to argue that Terry’s interpretation of what the law would have required HSM
to show was reasonable at the time of his decision not to designate Flaven, even if
his interpretation ultimately proved to be mistaken. Appellants were not, however,
entitled to an opportunity to mislead the jury about what the law actually requires,
and the trial court did not abuse its discretion by clarifying the law for the jury.
Along those lines, the majority engages in a harm analysis to support its
implicit conclusion that the court’s instruction “probably caused the rendition of an
improper judgment.” But the Court’s harm analysis focuses on the effect that the
instruction may have had on the verdict. It makes no clear attempt to explain how
the judgment based on that verdict was improper. Instead, it makes suggestions and
inferences underlying only the idea that the instruction may have “impacted all of
the jury’s responses.” That isn’t the standard.
We know there can be harmless charge errors. See Shupe, 192 S.W.3d at 579–
80. Charge error is harmless when it fails to “probably cause the rendition of an
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improper judgment.” TEX. R. APP. P. 44.1(a)(1). Even though I don’t agree there was
error, the majority engages in an insufficient analysis to explain how the judgment
was improper. See id. There is the suggestion that, because the RTP issue was
contested or critical, the charge error was more likely to cause harm. See Thota, 366
S.W.3d at 687. But this principle can co-exist with a conclusion of no error or no
harm from a legally correct explanatory instruction that has the effect of cutting
against one party. The Court’s opinion gives reasons why the instruction could have
caused the answer but not how the answer was legally wrong. Instead, the evidence
supports the $13 million verdict in negligence damages and $7 million in exemplary
damages.
My final problem with the majority opinion is that it pulls the rug out from
under the trial court. When trial courts fail to follow our decisions, we remand cases
back to them with sometimes stern instructions to do what we say. The record begets
only one conclusion to me: that the very able trial judge acted reasonably and
followed guiding principles by taking our direction from HSM I in an effort to avoid
committing reversible error.
I dissent.
/Cory L. Carlyle/
CORY L. CARLYLE
200379df.p05 JUSTICE
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