Mann v. Ramirez

OPINION

PER CURIAM.

This is an appeal from a jury trial in the 81st Judicial District Court of Frio County. The trial court, based on the jury’s answers to special issues, rendered a take-nothing judgment against appellants. Appellants appeal from this adverse judgment.

We reverse the trial court’s judgment and remand the cause for a new trial.

Background

On June 19, 1990, appellant Jerry Edward Mann was severely injured in a traffic accident involving a Texas Dyno Chem, Inc. truck driven by appellee Rolando Ramirez. Originally, Ramirez brought an action against Mann for injuries suffered in the accident. The Mann family, appellants, filed a counter-claim against Ramirez and his employer, Texas Dyno Chem, Inc., for injuries suffered by Mann, which left him a quadriplegic. Following entry of an order realigning the parties, the Manns proceeded to trial against appellees Ramirez and Texas Dyno Chem, Inc.

Ramirez was driving an oil field servicing truck for Texas Dyno Chem when it was struck by Mann’s pickup truck. Mann testified that Ramirez was backing the truck onto a county road when Mann came over a hill and struck the left rear side of the truck. Mann contended that Ramirez negligently operated his truck and that Texas Dyno Chem was vicariously liable for his negligence and for certain independent acts and/or omissions that were negligent and the proximate cause of the accident. Ramirez testified that he was making a left turn from the county road into a private road. Appel-lees asserted that Mann’s negligence in failing to keep a proper lookout, driving at an excessive rate of speed, and failing to apply brakes in a timely fashion was the proximate cause of the accident. Both sides presented expert witness testimony from accident re-constructionists in support of their respective positions. The jury found that only Mann was negligent and the court rendered a take-nothing verdict upon this finding.

After the verdict was rendered and before entry of the judgment, Mann filed a Motion for Mistrial, alleging that the District Clerk, Brenda Fudge, had improperly summoned and excused members of the jury panel in violation of state regulations and the county’s jury selection plan. This misconduct, according to Mann, deprived him of a jury composed of a representative cross-section of the community and resulted in a trial that was materially unfair. Mann further alleged that Fudge’s misconduct stemmed from her personal “interest” in the case, based upon her admitted intimate relationship with David Massengale, the Area Manager of Texas Dyno Chem, who served as the company’s corporate representative at trial. Prior to and at the time of the trial, Fudge and Massengale were living together and expecting a baby. Their relationship was common knowledge within the community.

Because the trial was held during the summer in a small community in which both the parties and news of the accident would be well-known to many people, the District Clerk summoned 250 jurors rather than the usual 175. Pursuant to required procedures, the Clerk requested that the tax collector’s office prepare the list, which was randomly generated by computer. The list was drawn on June 29, 1993, with the case being set for the week of July 12,1993. The Clerk’s office then sent the list to the Sheriffs office for service. Undeliverable summonses were returned to the Clerk’s office, where “no service” was noted on the Clerk’s master juror list. Following the mailing of the summonses, the Clerk’s office began receiving affidavits of statutory exemptions, as well as calls from those seeking exemptions or excuses. Although many of the excuses noted on the Clerk’s working copy of the list are for statutory exemptions, such as “children” and “overage,” others reflect either no recorded excuse or nonstatutory excuses such as “vacation,” “out of state,” or “hospital,” which were admittedly not cleared by the presiding judges, as required by the jury selection plan of Frio County. It is conceded that the Clerk improperly excused jurors for nonstat-utory excuses.

According to District Clerk Brenda Fudge’s testimony at the hearing on the motion for mistrial, the returned summonses and exemption affidavits were usually thrown away “once the jury is selected and the case is disposed of.” She maintained that most of the excused jurors had written excuses, and admitted that some were taken over the phone. However, she could not produce a single affidavit substantiating the exemptions. Dawn McCormick, the Deputy District Clerk, testified that she kept the affidavits until after jury selection, and “usually after the trial and then I dispose of them.” At another point, McCormick testified that she usually disposed of them after jury selection, “usually the next day or so. I have held them sometime throughout the jury, but I never hold them any longer after a jury’s been picked.”

Mann alleges the following county plan requisites and state statutes were violated: (1) The Frio County jury selection plan mandates that only the presiding judge may pass on juror qualifications and excuse jurors. The District Clerk’s office excused some jurors for nonstatutory reasons. Secondly, the juror list was not placed 'on file with the county clerk, as required by the plan. (2) Section 62.101 and following sections of the Texas Government Code restrict the excusing of jurors for reasons other than those authorized by statute, require judicial excusing of jurors, and require filed affidavits supporting exemptions. Tex.Gov’t Code Ann. §§ 62.101, et seq. (Vernon 1988). The District Clerk admitted that exemptions and excuses were granted by phone or in person by her staff, some for improper reasons, and that affidavits were not filed on all exemptions. (3) Section 51.303 of the Texas Government Code mandates that the district clerk “has custody of and shall carefully maintain, arrange, and preserve the records relating to or lawfully deposited in the clerk’s office.” Tex.Gov’t Code Ann. § 51.303 (Vernon 1988). The District Clerk’s office destroyed the juror affidavits and returned summonses after jury selection instead of maintaining them as records. (4) Section 202.002 of the Texas Local Government Code states “a local government record the subject matter of which is known by the custodian to be in litigation may not be destroyed until the litigation is settled.” See Tex.Loc.Gov’t Code §§ 201.001, et seq. (Vernon Supp.1994). Mann contends that this section forbids the destruction of the affidavits and summonses.

Mann argues that all of the above irregularities are exacerbated by the undisputed fact that the District Clerk was involved in an intimate personal relationship with the Area Manager of Texas Dyno Chem, a defendant, thereby raising an inference of bias and impropriety. During the hearing on the Motion for Mistrial, the District Clerk admitted to the “very deep relationship” and acknowledged that she thereby had a “vested interest” in the case.

After the hearing on the Motion for Mistrial, the trial judge denied the motion and entered judgment. Mann filed a Motion for New Trial, alleging official misconduct based upon Fudge’s actions, juror misconduct, and trial court error. Following a hearing, the court overruled the Motion for New Trial. Appellants bring this appeal on four points of error.

In his first point of error, Mann alleges that the trial court abused its discretion in refusing to grant a mistrial based on the District Clerk’s failure to comply with statutes regulating the selection of petit jurors, which amounted to “fundamental error” and resulted in a “materially unfair trial.” In his second point of error, Mann contends that the trial court erred in refusing to grant him a new trial because Mann provided “conclusive evidence” of the Clerk’s misconduct that infringed on his right to a trial by jury.

Appellees reply that any failure to comply with the regulations governing jury panels was not fundamental error, that such actions did not result in a materially unfair trial, that there was no objection prior to jury selection to preserve the error, and that Mann has not shown any harm by the noneompliance or that an improper verdict resulted.

Fundamental Error

Mann asserts that because of the District Clerk’s actions, he was denied the right to a fair and impartial juiy representative of the community, which is guaranteed in the United States and Texas constitutions. He contends that a violation of this right is fundamental error. “Fundamental error survives today only in rare instances in which the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or Constitution of Texas.” Central Educ. Agency v. Burke, 711 S.W.2d 7, 8 (Tex.1986); see Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). Moreover, fundamental error is nonwaivable and may be raised for the first time on appeal. Johnson v. Ozim, 804 S.W.2d 179, 182 (Tex.App.—Houston [14th Dist.] 1991, writ denied). Mann argues that “when positive statutes regulating jury selection are violated, a party has been denied his constitutional right of a fair trial.” The statutory violations of which Mann complains are errors in the procedures of summoning, assembling, excusing, and documenting the jury array. It is well settled in Texas law, however, that such procedural issues are waivable. See, e.g., Sendejar v. Alice Physicians and Surgeons Hosp., Inc., 555 S.W.2d 879, 886 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.) (challenge to improper excuses by sheriff, district clerk, and others waived if not presented prior to time jury was selected); Texas Elec. Serv. Co. v. Yater, 494 S.W.2d 271, 274 (Tex.Civ.App.—El Paso 1973, writ ref'd n.r.e.) (using district court panel instead of proper county court panel was “matter of ready waiver”). Because procedural irregularities in jury selection can be waived, we find that the actions of the District Clerk, while in violation of the statutory requisites, do not rise to the level of fundamental error.

Mann asserts that the multiple jury selection violations of the Clerk must be viewed in the context of her admitted relationship with Massengale and her alleged bias, and that this convergence of circumstances gives rise to fundamental error. Texas Rule of Civil Procedure 221 (“Challenge to the Array”) specifically addresses this issue. The rule allows for a challenge “upon the ground that the officer summoning the jury has acted corruptly, and has wilfully summoned jurors known to be prejudiced against the party challenging or biased in favor of the adverse party.” Tex.R.Civ.PROC. 221 (emphasis added). Again, we find that Texas cases addressing a challenge to the array hold that such challenge may be waived if it does not comply with the requirements of Rule 221. E.g., Martinez v. City of Austin, 852 S.W.2d 71, 73 (Tex.App.—Austin 1993, writ denied); Garcia v. Texas Employers’ Ins. Ass’n, 622 S.W.2d 626, 630 (Tex.App.—Amarillo 1981, writ ref'd n.r.e.); King v. Moberley, 301 S.W.2d 202, 205 (Tex.Civ.App.—Eastland 1957, no writ). While the District Clerk’s admitted intimate relationship with one of the litigants does not singly elevate the irregularities to fundamental error, it certainly suggests that the irregularities were prejudicially oriented. Nevertheless, we conclude that the actions complained of do not rise to fundamental error.

Waiver

Because we find that the misconduct complained of does not amount to fundamental error, we next address appellees’ contention that Mann waived any error by failing to object to the jury selection process prior to the time the jury was selected. Mann’s attorney asserts, and the record reveals, that prior to voir dire he questioned the deputy clerk in the presence of the judge¹ concerning the small number of jurors who had appeared, and was misled by assurances that the number was affected by statutory exemptions, the judges’ excusing of jurors, and no service. Testimony by appellees’ attorney diming the hearing on the Motion for Mistrial confirmed the inquiry. The appellees’ attorney stated to the judge: “[I]f you’ll remember, as this panel was called in here and we were going through excuses Mr. Brock, plaintiffs attorney, knew, number one, that 250 jurors were summoned. They got that list of jurors the same day we did.... We got down here and a little bit less than a hundred jurors that actually appeared.... Mr. Brock said why aren’t there more people. He was advised people had been excused, you know, for the last nine days they’ve been calling in with excuses.” During his examination of Deputy Clerk Dawn McCormick, Brock stated: “do you recall during the voir dire process when we were at the bench and I raised the question about the number of jurors that showed up here and basically made an objection about that ..." and McCormick acknowledged that “[t]he statutory exemptions, the judges excusing them and no service” explained the small number of jurors. The jury list given to Mr. Brock was a clean copy showing all 250 names, so he did not see the extent or types of exemptions. Appellees cite to Sendejar v. Alice Physicians & Surgeons Hospital, 555 S.W.2d 879, 886 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.) in support of their waiver argument. In that ease, the appellant in a motion for new trial charged that jurors had been improperly excused by the sheriff, the district clerk, and others in violation of statute. Although the court stated, “To force a litigant over his objection to proceed to trial where prospective jurors have been excused contrary to the statute would no doubt constitute reversible error,” the court nonetheless held that appellant had waived error because he did not complain prior to selection of the jury. The court indicated that under the facts of that ease, the attorney “knew or should have known that ¼ jurors were absent and unaccounted for and he made no complaint thereof.” Id. at 889 (emphasis added).

Sendejar and other cases holding that a party’s failure to timely object waives error regarding summoning the jury are distinguishable from the case before us. The circumstances of the cases either justify the conclusion that appellants knew or should have discovered the irregularities, complained in an untimely fashion to the wrong judge, or brought their challenges too late. See, e.g., State ex rel. Hightower v. Smith, 671 S.W.2d 32, 36 (Tex.1984) (plaintiff complained that jury was not selected in compliance with jury wheel statute; court would not consider merits because he did not present his complaint to the proper judge); Berner v. Southwestern Public Service Co., 517 S.W.2d 924, 925 (Tex.Civ.App.—Amarillo 1974, writ ref'd n.r.e.) (appellant lacked diligence in questioning juror selection method, thereby waiving error, when he filed motion for new trial more than two and a half months after trial); Texas & N.O.R. Co. v. Jacks, 306 S.W.2d 790, 792-93 (Tex.Civ.App.—Beaumont 1957, writ ref'd n.r.e.) (plaintiff charged that many jurors were wrongfully excused by sheriff and clerk; court held that error was waived because he complained to the trial court instead of the judge who organized panels).

In the instant case, appellants’ attorney not only brought to the court’s attention the missing jurors, but was assured by a representative of the District Clerk’s office that the absentees had valid judicial excuses or exemptions. A party in litigation has a right to rely on the representations of a public official regarding the proper execution of the official’s duties, especially when made in the presence of the presiding judge. It was not until after the trial that appellants discovered the potential irregularities and that the District Clerk’s office had destroyed the documentation on the excuses, exemptions, and returned services, making it impossible to verify the propriety of the Clerk’s actions. Immediately upon discovering the discrepancies, appellants moved for a mistrial.

In Mendoza v. Ranger Insurance Co., 753 S.W.2d 779 (Tex.App.—Fort Worth 1988, writ denied), appellant moved for a mistrial and requested a new panel after initial voir dire by the court and before empaneling of the jury, because a disproportionate number of the jurors were teachers. The court found that appellant’s objection was timely in spite of being contrary to cases holding that the objection must first be presented to the judge in charge of the jury for the week. The court said that this rule “puts an unreasonable and impractical burden on a party who is faced with a jury panel which is impermissibly selected.” Id. at 780. The court concluded that the appellant had actively asserted her rights and adequately moved for a mistrial when the jury irregularity became apparent.

As noted supra, the record is clear that appellants’ attorney made an inquiry regarding the missing jurors at the bench in the presence of appellees’ attorney and the judge, and was assured in their presence that all regulations had been followed. We conclude that under the circumstances of this case, appellants acted as soon as they “knew or should have known” of the irregularities. Appellants cannot be faulted for relying on the assurances of the District Clerk’s office regarding the jury-assembling procedures and diligently pursued the error through their Motion for Mistrial as soon as the irregularities became apparent. We therefore hold that appellants’ timely actions properly place the case on its merits before us.

Analysis

Because we find that Appellant did not waive his objection to the violations of the Clerk’s office in assembling the jury array, we next address the merits of his first two points of error. It is undisputed that irregularities in the granting and documentation of exemptions and excuses occurred. Moreover, it is undisputed that a close personal relationship existed between the District Clerk and the official representative of the defendant company. We must therefore examine the totality of the circumstances to determine whether the aggregate of errors, when assessed in combination with the relationship involved, raises the error to a level that would require a reversal of the trial court’s judgment and the granting of a new trial.

a. Standard of review: “Materially unfair trial”

Appellees contend that Mann has not shown that he was harmed by the admittedly improper actions of the District Clerk, nor has he shown any type of systematic exclusion of any particular group of jurors. While it is true that the harmless error rule has been applied in some cases involving erroneous empaneling of jurors and errors committed during jury selection, e.g., Rivas v. Liberty Mut. Ins. Co., 480 S.W.2d 610, 611-12 (Tex.1972) (holding that harmless error rule applies when trial court fails to comply with rules prescribing methods of listing jurors), “[t]he necessity to prevent the subtle erosion of the standards of the jury system does not require a showing by appellant of injury.” Mendoza, 753 S.W.2d at 781. The Texas Supreme Court has lessened in some instances the burden on an appellant in recognition of the difficulty in showing an improper judgment has resulted from actions that may prejudice the appellant’s rights to an impartial jury. In Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965), defendants whose interests were antagonistic were granted only three peremptory challenges each. In reversing and remanding for a new trial, the court noted: “As a practical matter ... the appellant will usually be unable to show that an improper judgment probably resulted from an error of this nature.” Id. at 117. The court then analogized the situation to that in Heflin v. Wilson, 297 S.W.2d 864 (Tex.Civ.App.—Beaumont 1956, writ ref'd), in which members of a jury panel had been selected by the jury commission method rather than the use of a jury wheel. The Tamburello court quoted Heflin:

Approval of the judgment would be tantamount to denying appellant his constitutional right of a trial by jury, because trial by jury that has at least been selected in substantial compliance with law is what is guaranteed him by both the federal and our state constitutions.

Tamburello, 392 S.W.2d at 117 (emphasis added).

We agree with the supreme court that the principle involved in cases on the unfair allocation of jury strikes is the same as that in cases dealing with a lack of substantial compliance with jury selection statutes; namely, the inability of an appellant to show harm resulting from a tainted jury selection process.

In Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979), the supreme court noted, “We relaxed the requirement of the traditional ‘harmless error’ rule by establishing the burden on the complaining party to show that ‘the trial which resulted against him was materially unfair’ and held that the denial of strikes to each defendant, without any further showing, resulted in a trial that was so materially unfair that the judgment must be reversed.” Id. at 921 (citing Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965)) (emphasis added); see Lopez v. Foremost Paving Inc., 709 S.W.2d 643, 644 (Tex.1986).

In Patterson, the supreme court asserted that when a trial is contested and the evidence sharply conflicting, “the error results in a materially unfair trial without showing more.” Patterson, 592 S.W.2d at 921. Although in Patterson a statement of facts was not available, the court assessed certain factors in determining whether the trial was “hotly contested”: (1) the number of special issues submitted, (2) the ten-to-two verdict, (3) the absence of summary judgment motions or motions for an instructed verdict.

Since Patterson Dental, subsequent cases have identified additional factors that should be assessed when determining if a trial has been “hotly contested” and if the evidence is “sharply conflicting,” such that complained-of errors result in a materially unfair trial. In Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818 (Tex.1980), the court, citing Tamburello and Patterson with approval, noted:

We recognize the impossibility of prescribing a specific test for determining whether any error, be it the improper admission or exclusion of evidence, improper argument, or the giving or depriving of a party of the proper number of peremptory challenges, “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Such a determination necessarily is a judgment call entrusted to the sound discretion and good senses of the reviewing court. It is clear, however, that such a judgment call must be determined from an evaluation of the whole case.

Id. at 821.

In Lorusso, the court was faced with a partial statement of facts. The case involved an action by a motorist against her insurer for uninsured motorist benefits and against the uninsured motorist for injuries. The trial court granted both the insurer and the uninsured motorist six peremptory challenges each, compared to Lorusso’s six challenges. Following a take-nothing judgment, Lorusso appealed the granting of unequal challenges. The supreme court analyzed the pleadings and the jury findings and determined that nothing indicated that the case was “sharply contested.” The court noted that the record did not indicate how the parties used their strikes, whether they were all exercised, or whether there were double strikes. The court concluded that Lorusso had failed to establish a materially unfair trial.

In Lopez v. Foremost Paving Inc., 709 S.W.2d 643, 644 (Tex.1986), the supreme court reversed the court of appeals and remanded for a new trial upon a finding that the trial was hotly contested and the evidence conflicting. The trial court had awarded the defendants twice the number of strikes as the plaintiff, which the court of appeals held to be harmless error. Applying the “relaxed” harmless error standard, the supreme court reversed because the error resulted in a materially unfair trial. In reviewing the record, the court described in detail the conflicting testimony of both plaintiffs and defendant’s witnesses and experts. The court further noted that, at one point, the jury was deadlocked 7-5 in favor of defendants, and ultimately rendered a verdict on a 10-2 vote. The court listed as other significant factors the defendants’ methods of cross-examining each other’s witnesses, and the defendants’ collaboration on strikes to eliminate double strikes. Lastly, the court noted that defendants did not present motions for summary judgment or instructed verdicts.

In Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex.1986), a strike equalization challenge, the court again found a hotly contested trial and remanded for a new trial based on the following factors: (1) no motions for summary judgment filed, (2) only two motions for an instructed verdict, (3) eighteen witnesses testified, including expert witnesses on both sides, (4) the jury was asked twenty-three special issues, many of which were multipart, (5) the multiple defendants made exculpatory remarks about each other, and (6) the verdict was ten to two.

b. Standard of review applied to the instant ease

We now analyze the record before us in light of the test enunciated by the Texas Supreme Court in Tamburello and the determinative factors as revealed in its progeny. First, the record reflects that there were no motions for summary judgment. The appel-lees moved for a directed verdict once, at the conclusion of the appellants’ ease-in-chief, which the trial court denied. Next, the record reveals that the jury verdict was eleven to one. Both appellant and appellees used all six jury strikes, and there were no double strikes. Next, multiple jury issues were submitted. The jury heard the testimony of twenty-four witnesses, including appellants and appellees, expert witnesses, Department of Public Safety officers, physicians, and witnesses at the scene shortly before and after the accident. The testimony of Mr. Ramirez and Mr. Mann as to the cause of the accident was sharply conflicting, and several alternate theories regarding the movement and positioning of the vehicles immediately before the accident were advanced. Each side presented expert testimony by accident reconstruc-tionists.

Furthermore, we must analyze the record of the trial before us through the unique prism of the relationships of the interested parties. In this ease, we are faced with an admitted intimate relationship between a representative of a party to the suit and the public official whose office is charged with the responsibility of assuring a fair and impartial jury. It is undisputed that statutory violations occurred, and misleading assurances were made to the appellants’ attorney.

Based on the totality of the record before us, we find that the trial in the instant case sufficiently meets the standard set by the supreme court of a hotly contested trial which resulted in a materially unfair trial as a matter of law.

e. Harmful error analysis

Moreover, we would reach the same conclusion under a harmful error analysis. Texas Rule of Appellate Procedure 81(b)(1) provides: ■

No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case....

Tex.R.App.P. 81(b)(1). It is axiomatic in our system of justice that “[ejvery citizen is entitled to a fair and impartial trial before an impartial jury, fairly representative of the community.” Mendoza, 753 S.W.2d at 781. We recognize that in the case before us the trial judge, in a sincere effort to reach an appropriate decision, made a thorough inquiry into the appellants’ allegations at both the hearing on the Motion for Mistrial and at the hearing on the Motion for New Trial. Moreover, the trial judge’s comments from the bench reflected his understanding, gained from observation and personal experience, of unsanctioned procedural shortcuts which may be employed at times in the implementation of our justice system. Nevertheless, the fact that custom may be otherwise does not relieve anyone from following the requirements of the law. An individual litigant, as well as a trial attorney, has the right to bring a suit in any county in the state and be assured that he or she will receive a hearing before a fair and impartial jury, assembled in accordance with the laws of the state.² The conceded statutory and local violations and admitted personal bias of the official charged with assembling an impartial jury as detailed previously in this opinion raise a strong inference that the actions taken may have been intended to, and did, prejudice the rights of the appellants.

We conclude that the trial court abused its discretion in denying a mistrial and erred in failing to grant a new trial, in light of the totality of the record and the evidence adduced at the posttrial hearings. These errors amounted to such a denial of the Manns’ rights as to be reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

We do not reach appellants’ other points of error. The judgment of the trial court is reversed and the cause is remanded for a new trial.

1 . It must be noted that the trial judge was an assigned visiting retired senior judge, rather than the district judge who would normally have excused the jurors involved. Therefore, he was apparently as unfamiliar with what had transpired in the excusing of jurors prior to his assignment as were the litigants. Like the litigants, however, the trial judge was entitled to rely on the public official’s assurances of procedural regularity regarding the absent jurors.

2 . We are accused by the dissent of “setting a dangerous precedent” in our decision today. We find no difficulty, however, in establishing a precedent that requires those sworn to follow the laws of jury selection to do so, considering that we are sworn to follow the law ourselves and to review appeals under those dictates. If local custom justifies ignoring laws that are found to be cumbersome, why is there not justification also for local custom to ignore any other law for any other reason? This would indeed be a dangerous precedent.