EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 8, 2011

Duty Free: Court Of Appeals Of Texas Finds No New Trial Warranted Despite Jury Misconduct

Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that a trial involves the question of whether a defendant breached a fiduciary duty. And let's say that jurors use dictionaries to look up the terms "fiduciary" and fiduciary duty." Jurors can testify about these acts consistent with Rule 606(b), but does this jury misconduct warrant a new trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Holland v. Lovelace, 2011 WL 3805519 (Tex.App-Dallas 2011), the answer is "no."

In Lovelace

Kim Holland, in her capacity as Receiver of Petrosurance Casualty Company (PCC), brought [a] suit for damages against three former PCC officers and PCC's auditors and consultants. After a five-week jury trial, the trial court signed a judgment awarding Holland $30,000 in damages against appellees Charles Ray Lovelace, Robert Carlin Lee, and Richard Wayne Miller (together, the Officers). The trial court's judgment also provided that Holland take nothing from appellee Murrell, Hall, McIntosh & Co., PLLP (MHM).

In reaching this conclusion, the jury found that the Officers breached their fiduciary duties but that MHM did not knowingly participate in the breach. Thereafter, Holland filed a motion for a new trial against MHM, claiming that there was jury misconduct falling into six categories. After the trial court denied the motion, Holland appealed to the Court of Appeals of Texas, Dallas.

According to Holland, inter alia, it was "the regular practice of some jurors" to look up definitions of unfamiliar words and share the definitions with other jurors. Moreover,

according to multiple witnesses, including juror Mito, juror Mito looked up the word "fiduciary" or the term "fiduciary duty" during trial and may have shared the definition with others. Also, alternate juror Jones testified that (1) four jurors looked up "[t]hree to four" words said by witnesses during trial, and (2) he believed juror Adams "looked stuff up" because juror Adams brought his computer to the jury room most days, and when other jurors asked him what some of the words meant, he told them.

The Court of Appeals of Texas, Dallas, found that this testimony was properly received under Texas Rule of Evidence 606(b) but also found that a new trial was not warranted because

there [wa]s no evidence that sharing the definition of "fiduciary" or any other word most likely caused a juror to vote differently than the juror would have voted otherwise on an issue vital to the judgment. See Pharo, 922 S.W.2d at 950. 

Now, I'm not going to say that the court was wrong because I don't know whether the definitions of "fiduciary" or "fiduciary duty" that the jurors found were different than their legal definitions and could have led to a different vote. But what I do know is that the jury misconduct in Lovelace was nothing like the jury misconduct in Pharo v. Chambers County, Texas, 922 S.W.2d 945 (Tex. 1996), the case cited by the court. 

In Pharo, a juror made a casual comment about the aged condition of jury cards, and teh bailiff responded "for me to do something about the cards, I would have to raise the taxes." The court found that this comment was improper but that it did not require a new trial because "[t]he evidence indicate[d] that the bailiff made the remark casually, in a context unrelated to the issues in the lawsuit, and in a manner that was perceived by the panel members who heard it as a joke."

So, did the misconduct in Lovelace necessitate a new trial? I don't know, but I don know that the misconduct was in a context related to the issues in the lawsuit, unlike in Pharo.


606(b) TX

Holland v. Lovelace
--- S.W.3d ----, 2011 WL 3805519



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