in Re Michael R. Bradle, Individually and as Trustee of the Mildred Roemer Irrevocable Trust

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00376-CV

In re Michael R. Bradle, Individually and as Trustee of the

Mildred Roemer Irrevocable Trust

ORIGINAL PROCEEDING FROM BASTROP COUNTY

Relator, Michael R. Bradle, Individually and as Trustee of the Mildred Roemer Trust,

seeks mandamus relief from an order by the district court effectively requiring the punitive damages

portion of a lawsuit to be tried to an entirely different jury than the one that determined the liability

and actual damage issues in the case. We hold that the district court abused its discretion in so

ordering, and we will conditionally grant the writ.

PROCEDURAL BACKGROUND

Bradle timely filed a pretrial motion to bifurcate the punitive damages portion of the

case below. (1) In the liability phase of the case, the jury returned a verdict favorable to the plaintiff

and real party-in-interest, Rosiland Roemer, on her claim against Bradle for conversion. The jury

found against Roemer on her claims against other defendants and on other claims against Bradle.

It is the jury's affirmative findings on Roemer's conversion claim, and the corollary issue of malice,

that is the subject of this proceeding. These are the only findings that constituted a predicate to the

adjudication of the punitive damages claim.

The original jury in this case returned its ten-two verdict on March 28, 2002. It found

that Bradle committed the tort of conversion against Roemer and that the value of the personal

property converted was $23,000. The jury also found Bradle to have acted maliciously in connection

with the conversion claim. The amount, if any, of punitive damages was not submitted to the jury

with the remainder of the case because the court granted Bradle's motion to bifurcate the trial on the

punitive damages issue.

After the verdict was returned, Roemer filed a "Plaintiff's Motion for a 'Phase Two'

Exemplary Damage Trial or for a New Trial" complaining that because the district court "dismissed

the jury," it "preempt[ed] Phase Two of the trial, in which the jury would have heard evidence on

what is relevant only to the amount of exemplary damages." On June 6, 2002, the district court

signed a "final" judgment which, among other things, disposed of the claims against the other

defendants, but severed the conversion claim against Bradle. The judgment provides:

the jury verdict having been received and accepted by the Court without objection by

any party, it is the Court's opinion that [Bradle is] entitled to a separate trial on the

issue of punitive damages. IT IS THEREFORE ORDERED that, as to [Bradle], a

separate trial shall be conducted for the purpose of determining the amount of

punitive damages, if any.

. . . .

IT IS FURTHER ORDERED that [Roemer] have judgment against [Bradle], jointly

and severally, in the amount of $23,000.00 actual damages for conversion.

. . . .

IT IS THEREFORE ORDERED that all claims asserted herein against [Bradle], be

and the same are hereby SEVERED and are ordered to be docketed under separate

cause number. This severance specifically includes all portion [sic] of this judgment

that related to claims against the said [Bradle]. The Clerk of the Court is hereby

ORDERED to docket said cause . . . under Cause No. 22,865-B. . . . All judgments

in these severed claims against [Bradle], shall remain interlocutory until such time

as a separate trial has been conducted on the issue of the amount, if any, of punitive

damages to be awarded to [Roemer] . . . .

It is undisputed that the jury's verdict was received and accepted by the district court without

objection; thereafter, the jury was discharged, again without objection. Currently, a separate trial

on punitive damages is set to be heard by a second jury on September 23, 2002. Bradle seeks

mandamus relief from this Court.

DISCUSSION

An appellate court issues a writ of mandamus to correct a clear abuse of discretion

when there is no adequate remedy at law. Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992). A

court abuses its discretion when it reaches a decision so arbitrary and unreasonable that it amounts

to a clear and prejudicial error of law. Id. ; In re Wallingford , 64 S.W.3d 22, 24 (Tex. App.--Austin

1999, orig. proceeding). Trial courts are accorded little discretion in deciding legal matters, and

mandamus will lie to remedy a clear failure by the trial court to analyze and apply the law correctly.

See Walker , 827 S.W.2d at 840 . Here, the district court clearly misapplied the applicable law in this

case.

When the supreme court first announced the scheme for bifurcated trials in cases

involving punitive damages, it said:

We therefore conclude that a trial court, if presented with a timely motion, should

bifurcate the determination of the amount of punitive damages from the remaining

issues . . . . Under this approach, the jury first hears evidence relevant to liability for

actual damages, the amount of actual damages, and liability for punitive

damages . . . , and then returns findings on these issues. If the jury answers the

punitive damage liability question in the plaintiff's favor, the same jury is then

presented evidence relevant only to the amount of punitive damages, and determines

the proper amount of punitive damages, considering the totality of the evidence

presented at both phases of the trial .

Transportation Ins. Co. v. Moriel , 879 S.W.2d 10, 30 (Tex. 1994) (emphasis added). The

Legislature subsequently enacted chapter 41 of the Texas Civil Practices and Remedies Code which

essentially codified Moriel , among other things. Section 41.009 of the statute provides in relevant

part:

On motion by a defendant, the court shall provide for a bifurcated trial under this

section . . . .

. . . .

In the first phase of a bifurcated trial, the trier of fact shall determine:

liability for compensatory and exemplary damages; and

the amount of compensatory damages.

If liability for exemplary damages is established during the first phase of a

bifurcated trial, the trier of fact shall, in the second phase of the trial, determine

the amount of exemplary damages to be awarded, if any.

Tex. Civ. Prac. & Rem. Code Ann. § 41.009 (a) (West 1997).

Although this is a case of first impression, the result appears to be clear. Moriel

expressly, and section 41.009 implicitly, mandates that the same jury that hears the liability phase

of a case must also hear the punitive damages phase. The district court's order requiring the punitive

damages to be tried to a different jury violates both Moriel and section 41.009(a). (2) The district court

clearly abused its discretion in ordering a second jury.

Each party has a duty when a jury returns a verdict to promptly examine the verdict

before the jury is discharged. See Pate v. Texline Feed Mills, Inc ., 689 S.W.2d 238, 243 (Tex.

App.--Amarillo 1985, writ ref'd n.r.e.). Here, it was Roemer's burden to raise the matter of the

remaining assessment of punitive damages before the jury was discharged. Failure to object before

the jury is discharged acts as a waiver of any untried issues. See Fleet v. Fleet , 711 S.W.2d 1, 3

(Tex. 1986); Continental Cas. Co. v. Street , 379 S.W.2d 648, 650-51 (Tex. 1964); Lewis v. Texas

Employers' Ins. Ass'n , 246 S.W.2d 599, 601 (Tex. 1952) ("If the trial judge was to correct the defect

he had to do it before the jury was discharged . . . . Under our procedure a party dissatisfied with a

verdict has ample opportunity to present the matter to the trial judge before the verdict is officially

accepted and the jury discharged. He has the duty to do so."). It is undisputed that Roemer did not

raise the issue and did not object to the jury's discharge.

When a verdict has been affirmed in open court, and the jury has separated and

become accessible to the parties, the only remedy for a mistake in the verdict is setting aside the

verdict and granting a new trial. Wanda Petroleum Co. v. Reeves , 385 S.W.2d 688, 690-91 (Tex.

Civ. App.--Waco 1964, writ ref'd n.r.e.); see also Burchfiled v. Tanner , 178 S.W.2d 681, 683 (Tex.

1944). Once a jury is discharged from their oaths, they are subject to contact with and influence by

the parties and others so that the jury cannot be reconstituted. See Caylat v. Houston E. & W. Ry.

Co. , 252 S.W. 478, 482-83 (Tex. 1923). In Caylat , the supreme court stated:

"when the verdict has been affirmed in open court and the jury have separated and

become accessible to the parties, the only remedy for a mistake is by setting the

verdict aside and granting a new trial . . . ." (3) [This rule] guards against any possible

irreparable injury to the parties litigant, and satisfies every requirement of complete

justice. The only consideration of public policy involved in denying a correction in

a clear case of clerical mistake is the expense and delay incident to a new trial . . . .

We are clearly of the view that the safer and more salutary rule is to deny a correction

in such cases; and to order a new trial as the full measure of the relief against the

mistake.

Id. This rule remains valid today. The court of appeals in Branhan v. Brown , 925 S.W.2d 365 (Tex.

App.--Houston [1st Dist.] 1996, no writ), held that:

once the judge had accepted the verdict and discharged the jury, he had no authority

to later order the jury to redeliberate; he should have proceeded to judgment on the

original 11-1 verdict. Therefore, we hold that the trial court erred in sending the jury

back to make any corrections or redeliberate on their verdict after the trial court

accepted the verdict and discharged the jury.

Id . at 368. Once a jury has been discharged and has mingled with the public, it is error to reconvene

that jury. Id .

Furthermore, requiring the punitive damages issue be tried to a jury different from

the one that tried the liability and actual damages issues operates to abridge Bradle's fundamental

constitutional rights to trial by jury and to due process. In Texas, a jury's verdict has a "special,

significant sacredness and inviolability." Crawford v. Standard Fire Ins. Co. , 779 S.W.2d 935, 941

(Tex. App.--Beaumont 1989, no writ). The Texas Constitution requires that the right to trial by jury

remain inviolate. Tex. Const., art. I, § 15 (1984); Crawford , 779 S.W.2d at 941 . There is no

indication in the record that the original jury was not validly constituted and impaneled. It heard all

the evidence in this case, except the admissible evidence to be offered only during the punitive

damages phase of the case. The plaintiff allowed the original jury's verdict to be returned and

accepted and the jury discharged without objection. We hold that requiring a different jury to

determine punitive damages violates Bradle's right to trial by the jury lawfully chosen and impaneled

to try this case. Denial of the constitutional right to trial by jury amounts to an abuse of discretion

for which a new trial is the only remedy. McDaniel v. Yarbourgh , 898 S.W.2d 251, 253 (Tex. 1995).

In addition, we hold that requiring that a different jury determine punitive damages

violates Bradle's right to due process as recognized in BMW of N. Am, Inc. v. Gore , 517 U.S. 559,

568 (1996); Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 22 (1991); and Moriel , 879 S.W.2d at

30 . The district court's order effectively means that the amount of punitive damages will be tried

and determined in isolation from the liability and actual damages aspects of the case.

The imposition of "grossly excessive" punitive damages on a tortfeasor violates the

Due Process Clause of the Fourteenth Amendment. Gore , 517 U.S. at 562 . Proportionality between

the amount of punitive damages assessed and the liability facts and actual damages suffered is the

"most important indicium of reasonableness" when determining whether a punitive damage award

is constitutional. Id. at 575 ; see also Haslip , 499 U.S. at 21 . Punitive damages are not designed to

compensate or enrich, instead their purpose is to punish "outrageous, malicious, or otherwise morally

culpable conduct" and to deter others from committing the same or similar conduct in the future.

Gore , 517 U.S. at 568 . Special emphasis is placed on the principle that punitive damages may not

be disproportionally greater than the gravity and severity of the misconduct in issue and the injury

sustained. Id. at 576 .

In Texas, proportionality is achieved by having punitive damages assessed based on

a totality of the evidence from both phases of the bifurcated trial. Southwest Ref. Co. v. Bernal , 22

S.W.3d 425, 433 (Tex. 2000). A jury assessing the amount of punitive damages must necessarily

know of and consider the severity of the wrongdoing and the extent of actual damages. Id. ; see also

Alamo Nat'l Bank v. Kraus , 616 S.W.2d 908, 910 (Tex. 1981) ("Factors to consider in determining

whether an award of exemplary damages is reasonable include (1) the nature of the wrong; (2) the

character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation

and sensibilities of the parties concerned; and (5) the extent to which such conduct offends a public

sense of justice and propriety."). (4) The same jury must, therefore, sit in both phases of the trial.

In Bernal , the supreme court struck down a class certification, in part, because the

trial court's litigation plan allowed the issue of punitive damages to be tried before issues of

causation and actual damages, and required the jury to assess punitive damages before it heard the

"totality of the evidence." Bernal , 22 S.W.3d at 433 . The plan was defective because its structure

did not ensure that punitive damages would have some understandable relationship to the severity

of the offense and the amount of actual damage. Id.

The district court in this case did not grant a new trial; it granted judgment on the

jury's verdict for actual damages against Bradle on the conversion claim. The issues of liability and

actual damages would not remain to be retried in the second trial. Therefore, any second jury

considering exemplary damages would probably not have the benefit of the totality of the evidence

in undertaking its deliberations.

CONCLUSION

For the reasons set forth above, we conditionally grant the writ of mandamus

and instruct the district court to vacate its order of June 6, 2002, to the extent that it orders a separate

trial of the issue of punitive damages by a second jury after discharge of the original jury.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Yeakel

Filed: August 16, 2002

Publish

1. See Tex. Civ. Prac. & Rem. Code Ann. § 41.009 (West 1997); Transportation Ins. Co. v.

Moriel , 879 S.W.2d 10, 30 (Tex. 1994).

2. See Southwest Ref. Co. v. Bernal , 22 S.W.3d 425, 433 (Tex. 2000).

3. Caylat v. Houston E. & W. Ry. Co. , 252 S.W. 478, 482 (Tex. 1923) (quoting and adopting

rule in Weston v. Gilmore , 63 Me. 493 (Me. Ct. App. 1874)).

4. The Kraus factors have been approved as jury instructions to be given in punitive damage

jury charge submissions. Owens-Corning Fiberglass Corp. v. Malone , 972 S.W.2d 35, 40 (Tex.

1998).