Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 3 of Nueces County,
Chief Justice Contreras and Justices Longoria and Perkes
L. LONGORIA JUSTICE
Unit Drilling Company (Unit) appeals a judgment rendered in
favor of appellee Michael Gilmore. Unit argues that the trial
court erred in denying its motion for new trial based on jury
misconduct. We reverse and remand.
a certified technician for Accurate Valve Services
(Accurate), was called out to one of Unit's oilfield
sites on September 13, 2011, to repair a seal on a blowout
preventer. Gilmore testified he had worked with
Unit on over fifty occasions, and each time, Unit provided
Gilmore with a forklift and pallet to hoist him up to the
site requiring repairs. On this particular day, Gilmore was
"boomed out"-i.e., lifted up by the forklift arms
while standing on a pallet-by Unit employee and certified
forklift operator Rolando Luna. Luna testified he was aware
that transporting Gilmore on the forklift went against his
training and Unit's safety protocols. Luna also testified
that prior to this incident with Gilmore, he had been
reprimanded by supervisors for improperly using the forklift
to carry people. Luna testified he did not think Unit
supervisor Jerry Chaney, who was on site, saw him use the
forklift to raise Gilmore.
other hand, according to Gilmore, Chaney was present for the
entire ordeal. Gilmore testified that Chaney directed Luna to
back up the forklift-a command that Luna testified he heard
but could not attribute to Chaney. As Luna backed up the
forklift, he did not check the area for potential hazards,
and there was no spotter in place as required by Unit's
safety procedures. The forklift backed over a cable that was
stretched across the ground. The cable, which became wrapped
in the forklift's tire, connected to a nearby pulley. The
cable broke, sending the pulley flying toward Gilmore. The
pulley struck Gilmore's right hand, causing injury.
Lopez testified that, although he was the rig manager
responsible for overseeing daily rig operations, his view of
Gilmore was blocked by other machinery at the time, and he
did not witness the accident. Unlike Lopez, Chaney stated a
nearby structure only partially obscured his sight. Further,
contrary to Gilmore and Luna, Chaney testified he witnessed
Gilmore moving forward instead of backward: "I see
[Gilmore] in a forward motion in this area, and I see a
forklift tire, and I see something strike [Gilmore's]
hand as he's holding himself, he's stabilizing
himself, he's looking forward, and then I see something
hit his hand." Chaney denied seeing Gilmore on the
forklift prior to the accident.
underwent surgery the following day for a crush injury to the
fourth metacarpal bone on his right hand. Gilmore returned to
work with Accurate in December 2011 and worked for the
company until he was laid off in March 2013. Three years
after his September 2011 injury, Gilmore was diagnosed with
complex regional pain syndrome. Gilmore then underwent a
trial implantation for a spinal cord stimulator in December
presented at trial fervently disputed the level of pain
Gilmore suffered and the extent his injuries precluded him
from working. All the while, Unit's safety procedures
went uncontested: all forklift operators were certified;
forklift employees were recertified in forklift operations
every one to two years; Unit held multiple safety meetings
each day; a job safety analysis (JSA) was required before
working with third parties; Unit prohibited individuals from
riding forklifts on the side, forks, and in the cab; Unit
employees were taught that misuse of forklifts could cause
serious injury or death; spotters were required before moving
forklifts; and written copies of Unit's safety protocols
were provided to each employee for daily use. Additionally,
Chaney testified Luna failed to follow multiple Unit
procedures on the day of Gilmore's accident.
[Chaney]: Nobody should be allowed to ride on the forklift
but the operator himself.
[Counsel]: Did Mr. Luna fail to follow that procedure on
September 13 of 2011?
[Chaney]: Yes, he did.
[Counsel]: Was one of the procedures to make sure that there
were no obstructions in the path of the forklift?
[Counsel]: Did Mr. Luna fail to follow that procedure?
[Counsel]: Was one of the procedures to conduct a job safety
analysis JSA for the task to be performed?
[Counsel]: And to your knowledge, was a JSA performed that
day prior to the task that was about to be performed before
[Chaney]: I do not remember seeing a JSA.
nearly two-week trial concluded on April 28, 2017, with a
jury awarding Gilmore $1, 025, 000 in actual
damages and $8, 000, 000 in exemplary damages.
The trial court applied a statutory cap,  reducing
Gilmore's judgment against Unit to $943, 750 in actual
damages and $1, 885, 000 in exemplary damages, plus
the jury's verdict had been received by the judge and the
jury had been dismissed, Unit spoke with the jury. Unit was
informed that the jury received an unredacted insurance
certificate in the jury room. The insurance certificate
reflected that Unit had $9, 000, 000 in insurance coverage.
Unit moved for a mistrial and a new trial, arguing there was
unauthorized conduct and outside influence causing
substantial harm. Attached to its motion, Unit included
affidavits of jurors regarding the jury's consideration
of the insurance certificate. Unit also sought to elicit
juror testimony in support of its motion. In his opposition
to Unit's motion for mistrial, Gilmore also opposed
Unit's request to elicit juror testimony and moved to
quash the affidavits of the jurors. On August 16, 2017, the
trial court granted Gilmore's motion to quash the juror
affidavits and denied Unit's motion to elicit juror
testimony and its motion for mistrial.
sought emergency reconsideration and filed a motion for new
trial. Reconsideration was granted and the trial court set
aside its August 16 order. A hearing was set and Unit
subpoenaed witnesses to appear. Prior to the hearing, the
trial court sua sponte quashed the subpoenas. Unit
requested to proceed with an evidentiary hearing, which was
denied. The trial court denied Unit's motion for mistrial
and motion for new trial.
first issue, Unit argues that the trial court erred in
denying its motion for mistrial because the jury improperly
considered an insurance certificate. "'Misconduct of
the jury' is a legal phrase meaning an unlawful or
unauthorized act done by the jury or any of its members in
connection with the trial. . . . It does not necessarily
imply an evil or corrupt motive on the part of the jury or
the prevailing party." City of Houston v.
Simon, 580 S.W.2d 667, 668 (Tex. App.-Houston [14th
Dist.] 1979, no writ) (quoting Sidran v. W.Textile Prods.
Co., 258 S.W.2d 830, 832 (Tex. App.-Dallas 1953)
rev'd on other grounds, 262 S.W.2d 942 (1954)).
obtain a new trial based on jury misconduct, the moving party
must show that (1) misconduct occurred, (2) it was material,
and (3) the party probably suffered injury as a result.
Redinger v. Living, Inc., 689 S.W.2d 415, 419 (Tex.
1985); Am. Gen. Fire & Cas. Co. v. McInnis Book
Store, Inc., 860 S.W.2d 484, 486-87 (Tex. App.-Corpus
Christi- Edinburg 1993, no writ); Perry v. Safeco Ins.
Co., 821 S.W.2d 279, 280 (Tex. App.- Houston [1st Dist.]
1991, writ denied). The movant bears the burden of presenting
evidence substantiating fact claims necessary to entitle the
movant to relief. Cocke v. Saks, 776 S.W.2d 788, 790
(Tex. App.-Corpus Christi-Edinburg 1989, writ denied)). The
motion must also be supported by a juror's affidavit
alleging outside influence. See Editorial Caballero, S.A.
de C.V. v. Playboy Enters., Inc., 359 S.W.3d 318, 324
(Tex. App.-Corpus Christi-Edinburg 2012, pet. denied) (citing
Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23,
24 (Tex. 1987) (per curiam)). To determine whether the
misconduct probably resulted in injury, we evaluate the
"record as a whole." Id.; see In re
Whataburger Rests. LP, 429 S.W.3d 597, 599 (Tex. 2014)
(orig. proceeding) (citing Fountain v. Ferguson, 441
S.W.2d 506, 508-09 (Tex. 1969)) (broadly construing the
phrase "record as a whole" to include "any and
all parts of the record which may throw light on the question
of injury"); see also Tex. R. Civ. P. 327(a).
complains that the jury received evidence of its liability
insurance. During trial, Gilmore offered an exhibit which
contained a statement that Unit had $9, 000, 000 in liability
insurance, prompting a bench conference.
[Gilmore]: Did you ever see the contract between Blackbrush
Oil & Gas, LLP, and Unit Texas Drilling LLC?
[Witness]: It's possible.
[Gilmore]: Your Honor, we would offer Plaintiff's Exhibit
[Unit]: And may we approach just very quickly, Your Honor?
[The Court]: Yes.
[Unit]: Your Honor, we have no objection, but there are a
number of provisions that ...