Opinion issued June 21, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00199-CV ——————————— VANESSA JEFFERSON, Appellant V. HELEN FULLER AND ASSOCIATES HEALTH, INC., Appellees
On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2008-35406
MEMORANDUM OPINION
In this personal injury suit, Vanessa Jefferson sued her employer, Associates
Health, Inc. (“Associates Health”), and her mother, Helen Fuller, for negligence
after Fuller allegedly ran over Jefferson’s foot with her power wheelchair, which caused Jefferson to fall and fracture her femur. A jury found that Associates
Health and Fuller were not negligent, and the trial court rendered a take-nothing
judgment against Jefferson. In five issues, Jefferson contends that (1) the trial
court erroneously refused to hold an evidentiary hearing on her motion for new
trial alleging juror misconduct; (2) the jury’s finding that Associates Health did not
negligently fail to warn her “of the hazards of her employment or supervise her
activities” was against the great weight and preponderance of the evidence; (3) the
jury’s finding that Fuller was not negligent was against the great weight and
preponderance of the evidence; (4) the trial court erroneously ordered sanctions
against her counsel for “abusing the judicial process, misusing the Court’s
subpoena power, and invading the privacy of a former juror”; and (5) the trial
court, after sanctioning her counsel, erred in failing to file separate findings of fact
and conclusions of law.
We affirm.
Background
A. Trial: Negligence
Associates Health provides non-skilled personal care services, such as
bathing, meal preparation, laundry, and shopping, to clients with medical
conditions. In 2004, the Texas Department of Aging and Disability Services
(“DADS”) and Fuller’s insurance company authorized Fuller to receive non-skilled
2 personal care services in addition to skilled nursing services. Fuller, who suffered
from several medical conditions, including partial paralysis, selected Associates
Health as her personal care services provider. Shortly thereafter, Jefferson,
Fuller’s daughter, applied to work as a part-time personal care attendant (“PCA”)
at Associates Health and requested that she provide PCA services for her mother.
At the time Fuller contracted with Associates Health and Jefferson began
working as Fuller’s PCA, Fuller had a motorized wheelchair, or “power chair,” that
she had already been using for several months. Jefferson testified that she attended
a forty-five-minute orientation session when Associates Health hired her and that
no one from Associates Health gave her any orientation at Fuller’s house and no
one instructed her on proper use of the power chair or on what safety precautions
needed to be taken with the chair. Jefferson also testified that Associates Health
was aware that Fuller used the power chair on a daily basis. According to
Jefferson, she told her supervisor, Patricia Broussard, that Fuller did not need to be
in her power chair because sometimes she “wouldn’t maneuver it right” and she
would occasionally run into the walls or furniture. Jefferson worked as Fuller’s
PCA for three years with no incidents.
Around 9:00 a.m. on September 6, 2007, Jefferson and her daughter, Regina,
were preparing to leave Fuller’s house to take Fuller to the hospital to have her
blood drawn. Jefferson testified that Fuller was having trouble moving her power
3 chair through the front doorway, so she walked outside and held the screen door
open so the door would not hit Fuller. Jefferson stated that she stood in front of the
screen door and that there was enough space on the front porch “for you to come
out of the door with the chair and someone holding the door.” Regina stayed
behind Fuller’s chair and held the front door open. As Fuller moved her power
chair through the doorway, she “geared [the chair] to the right,” and the right front
wheel of the chair rolled over Jefferson’s right foot, causing her to fall off of the
wheelchair ramp into an adjacent flowerbed. Jefferson fractured her right femur as
a result of this incident, and she required several surgeries to repair the fracture.
On cross-examination, Jefferson testified that she was aware that Fuller had
been diagnosed with spinal stenosis, among other medical conditions, which
resulted in some paralysis and which required Fuller to occasionally take Vicodin.
According to Jefferson, Vicodin would affect Fuller’s “mental state.” She testified
that her mother is not “bed bound” and that she was often in her power chair, as
that was the only way for her to get around her house. She was also aware that
Fuller’s health issues included numbness or weakness in her right hand, which was
the hand she used to control the power chair. She acknowledged that, before this
incident, she had seen Fuller operate the power chair and she knew that Fuller
would “sometimes run into things.” When asked about Fuller’s capabilities in
maneuvering her power chair on the day of the accident, Jefferson stated that she
4 “just felt like [Fuller] was doing what she usually [does], trying to maneuver
herself the best she can.”
Lavonia Matthews and her sister Boice Haggerty, both of whom are friends
of Jefferson’s who witnessed the accident, testified by deposition. Matthews and
Haggerty drove up to Fuller’s house as Jefferson was standing outside holding the
screen door. As Matthews walked up the driveway, she saw Fuller coming out of
the doorway and Regina standing behind her, still inside the house. She testified,
And [Fuller] was coming out the door, and that’s when she rolled right over [Jefferson’s] right foot. And I heard her holler, “You rolled over my foot.” She was screaming. That’s the part that I saw. And then [Jefferson] just kind of fell over toward the flower bed, screaming and in a lot of pain.
Haggerty testified similarly.
Fuller testified that she controlled her power chair by using a joystick on the
right-hand arm rest. She testified that when she was leaving her house, Regina was
standing behind her holding the front door open and Jefferson was outside holding
the screen door open. She stated,
And [Jefferson held] the door open and I was going on out the door and so I had taken my—I remember taking my hand off the joy stick, but I don’t know how it fell on there. Some kind of way, it got on that joy stick, then [the chair] rolled over [Jefferson’s] leg and broke it. But it was just an accident. I just must have reached my arm somehow because when you first—those wheelchairs, when you first get the power in them, you have to kind of take it easy.
5 When asked if she “was doing [her] best to steer the wheelchair,” Fuller replied, “I
[have] been using [a power chair] for quite a while, but my hand just slipped and
some kind of way, my sleeve touched the joy stick and [the chair] just jumped off
and jumped on ahead.” On cross-examination, Fuller testified that as she moved
through the doorway, her power chair “went to the right” and ran over Jefferson’s
foot.
The trial court also admitted deposition testimony from Fuller in which she
testified that she was supposed to keep the power chair moving in a straight line,
“but it just turned” and she did not “know how [she] managed to put [her] hand on
[the controls], and [the chair] turned to the right.” She also testified that she was
talking to Regina and she “wasn’t watching” when her chair rolled over Jefferson’s
foot. She acknowledged that she “should have been watching and looking and
keep[ing the chair] straight.”
Emma Smith, the administrator of Associates Health, testified that, pursuant
to Associates Health’s contract with DADS, it must have a registered nurse act as a
supervisor for all PCAs. She acknowledged that DADS rules and regulations
require Associates Health to “ensure that the attendant is properly trained and is
properly supervised.” She agreed that Associates Health had the responsibility to
provide orientation to its PCAs and to ensure “that the attendant has knowledge to
provide competent care.” Smith testified that Associates Health required its
6 supervisors to conduct a supervisory visit to the patient’s house at least yearly and
telephone surveys every sixty days to ensure a continuing need for service and to
ensure that “the attendant is adequately delivering authorized tasks.” In Fuller’s
case, Jefferson’s supervisor conducted a supervisory home visit every ninety days.
Smith testified that the Texas Board of Nursing’s standards require nursing
care providers to “[m]ake a reasonable effort to obtain orientation/training for
competency when encountering new equipment and technology of unfamiliar care
situations.” Smith stated that Associates Health was not responsible for Fuller’s
power chair, and it did not train Jefferson in the use of the power chair, because
Fuller was classified as a “bed bound” client. She acknowledged that Fuller’s
“care plan” with Associates Health listed a power chair as equipment present in
Fuller’s home, but she stated that assistance in using the power chair was not a part
of Fuller’s care plan. Smith testified that the only tasks included under DADS’s
agreement with Fuller were “bathing, dressing, grooming, routine hair and skin,
cleaning, laundry, meal preparation, escort, and shopping.”1
Smith acknowledged that Fuller’s original “health assessment,” completed in
2004, noted that she was using a power chair to get around her house and checked,
as allowable tasks for Jefferson to perform, both “transfer” and “ambulation” “as
1 Smith testified that DADS “purchase[s] certain tasks,” such as bathing or shopping, for each particular client, and, based on the tasks that DADS purchases, Associates Health develops a “care plan” with the client to instruct the PCA in what tasks to perform. 7 needed.” Smith testified that a client can be both “bed bound” and “wheelchair
bound,” and she noted that, because Associates Health does not provide 24-hour
service, a client’s family members can provide services, such as getting a client out
of bed, that Associates Health does not allow in its care plan. She stated, “Now, if
family members can get [Fuller] up and get her into the power chair, it’s fine; but
as far as Ms. Jefferson was concerned, that was not her duty.” She testified that the
record from Fuller’s May 2007 supervisory visit lists Fuller as both “wheelchair
bound” and “bed bound,” allows for transfer services as needed, and states “not
applicable” for walking services.
Patricia Broussard, the current director of nursing at Associates Health,
testified that she conducted Jefferson’s orientation, which involved watching a
video, discussing Associated Health’s policies and procedures, discussing the
particular tasks included in Fuller’s care plan, and discussing whatever material
had been submitted concerning Fuller from her caseworker. Broussard testified
that Associates Health conducted home visits every ninety days for the purpose of
doing “any training that needed to be done or any corrective actions that needed to
be done,” ensuring that the PCA was competent to perform the assigned tasks, and
ensuring that the client “was still certified for these services [specified in the care
plan].”
8 Broussard agreed with Smith that Fuller was classified as a “bed bound”
client, which meant “that she needed to be in the bed at all times for [Associates
Health’s] attendants.” Broussard testified that when she conducted her visits, she
occasionally would see Fuller out of bed, and Fuller would tell her that Jefferson or
another relative had helped her into her power chair. According to Broussard,
there was never a provision in Jefferson’s job description that allowed her to assist
Fuller in getting out of bed. She clarified that Associates Health considered Fuller
bed bound, but she noted that family members could help Fuller out of bed, even
during the hours that Jefferson was working as Fuller’s PCA.
After a break following the testimony of two of Fuller’s children who did
not witness the accident, Fuller’s attorney, Kenneth Chambers, informed the trial
court that, during lunch that day, juror Michael Grant approached him in the
courthouse cafeteria and told him that Fuller and two of her family members were
sitting next to a table where several jurors were sitting and that he was concerned
he and his fellow jurors “might overhear something.” Chambers responded,
“Thank you. I’ll handle it,” and he asked Fuller and her relatives to move to
another table, which they did. As the jurors left the cafeteria, Grant thanked
Chambers. Jefferson’s counsel asked which family members were sitting with
Fuller and whether Grant overheard any conversations, to which Chambers
responded, “He didn’t say that.” The trial court commented, “Sounds like he
9 handled the situation and avoided it and did what the lawyer should do and
eradicated the situation.” Jefferson did not object to Grant’s continued service as a
juror or request that Grant, or any of the family members present, provide an
account of this interaction on the record.
Question number one in the jury charge asked whether, at the time she was
injured, Jefferson was acting in the scope of her employment for Associates
Health, and the jury answered in the affirmative. Question number two asked,
“Did Associates Health, Inc. negligently fail to warn Vanessa Jefferson as to the
hazards of her employment or to supervise her activities, which proximately
caused the occurrence in question?” This question included the following
instruction: “You are instructed that an employer owes its employees a non-
delegable duty to warn employees as to the hazards of their employment and to
supervise their activities.” The jury answered, “No.” Question number three asked
whether the negligence of either Jefferson or Fuller proximately caused the
occurrence in question. The jury answered “no” for both parties. The jury did not
answer question number four, concerning the percentage of negligence attributable
to all three of the parties, or question number five, concerning Jefferson’s damages.
In the final judgment, the trial court noted that “the jury failed to find that the
accident in question was caused by the negligence of either [d]efendant,” and it
ultimately rendered a take-nothing judgment against Jefferson.
10 B. Motion for New Trial: Sanctions
Jefferson moved for a new trial. She argued that the jury’s findings of no
negligence on the part of Associates Health and Fuller were against the
overwhelming weight of the evidence. She also asserted three grounds of jury
misconduct concerning presiding juror Michael Grant. She first alleged that Grant
concealed information during voir dire when, on his juror questionnaire and during
voir dire questioning, he stated that his occupation was “financial services,” when
he was actually an insurance agent. Jefferson attached Grant’s juror questionnaire,
a Yellow Pages telephone listing, a Texas Department of Insurance “agent profile,”
and a Texas Department of Insurance list of appointments for various insurance
companies. Jefferson also argued that Grant impermissibly “mingled” with and
accepted a favor from Chambers when, during a lunch break, Grant approached
Chambers to inform him that Fuller and several family members were sitting by
the jurors and talking loudly and to request that Chambers ask them to move to
another table. Chambers agreed to do so, and Fuller and her family members
acquiesced. Finally, Jefferson argued that she “observed [Grant] in open court on
several occasions talking and exchanging comments and body language with the
juror next to him.”
Jefferson attached three affidavits to her motion for new trial: her own, and
those of two of her daughters, Regina Jefferson and Raevann Fuller, neither of
11 whom testified at trial. Jefferson averred that, during the trial, she observed
Grant’s juror information form, which listed his occupation as “financial services.”
She averred that after the trial had concluded, she looked in the Yellow Pages and
the Texas Department of Insurance’s website, and both stated that Grant owned an
insurance agency. She further stated that during her testimony and the testimony
of two of her siblings, she observed Grant talking to the juror next to him, rolling
his eyes, and shaking his head. She provided no information concerning the
contents of Grant’s alleged conversation with his fellow juror. She also averred,
On the fourth day of trial Michael Grant came up to attorney Kent Chambers in the courthouse cafeteria and talked to him because the jurors were sitting too close to my Mother, Helen Fuller, a Defendant in this case, my daughters, Regina Jefferson and Raevann Fuller, and my brother Edward Fuller and could hear them talking. I never saw Michael Grant tell this to the judge but I did see Mr. Chambers tell this to the judge in the courtroom.
Raevann Fuller averred that, while she was in the cafeteria, she was talking
about her aunts and uncles who were planning to testify, and she mentioned that
her uncle had come to the courthouse under the influence of drugs and was there to
lie for money. When she said this, “several of the jurors looked at [her],” and one
juror pointed at her. Grant then approached Chambers, who asked the group to
move to another table, which they did. Regina Jefferson’s affidavit was almost
identical to Raevann’s.
12 At the beginning of the hearing on Jefferson’s motion for new trial, the trial
court asked Jefferson’s counsel if he wished to make argument before calling any
witnesses. Jefferson argued that Grant (1) concealed his true occupation, the fact
that he had been accidentally injured in the past, and the fact that he had recently
had surgery in connection with this injury at Saint Luke’s Episcopal Hospital, a
contention that was not specifically raised in her motion for new trial; (2) talked
with Fuller’s counsel in violation of the trial court’s instructions; and
(3) “discuss[ed] the case in the presence of everyone in the courtroom with the
juror next to him, [made] faces, [and] roll[ed] his eyes, in violation of this Court’s
order.” Jefferson’s counsel informed the trial court that he subpoenaed Grant to
testify at the hearing and issued a subpoena duces tecum, requiring Grant to bring
his financial records, including income tax returns, and medical records to the
hearing and requiring the hospital’s custodian of records to bring Grant’s recent
medical records to the hearing.
At this point, the trial court asked Jefferson’s counsel what authority allowed
him to subpoena and review a juror’s medical records. The court stated,
I’m concerned about the privacy rights of this particular individual who provided service to the state and the county with jury service for multiple days, and possible violations of his rights by someone subpoenaing his medical records not only for a medical records provider to appear in court but then for medical records to be divulged to someone who, without authorization, appears to have reviewed those records.
13 Regarding the cafeteria incident, the court asked Jefferson’s counsel whether that
incident was addressed during the trial and whether he “request[ed] any sort of
instruction or follow-up with the Court.” When he responded that he did not
request that the court take any action, the court found that “that particular issue is
waived at this point.” Jefferson’s counsel also informed the trial court that he did
not bring Grant’s behavior in the jury box to the court’s attention during trial.
The trial court quashed the subpoenas of Grant and the records custodian.
The court requested additional briefing from the parties regarding whether
Jefferson had established a prima facie case of juror misconduct, such that she was
entitled to an evidentiary hearing on her motion for new trial, and the court noted
that, if it found that Jefferson had met her prima facie case, it “may accept
additional testimony on issues related to the substance of the motion.” The court
also noted that it considered the conduct of Jefferson’s counsel “outrageous and
completely unwarranted” and informed the parties that it would consider whether
sanctions would be appropriate.
After the parties submitted further briefing, the trial court denied Jefferson’s
motion for new trial without holding another hearing. The trial court also issued an
order requiring Jefferson’s counsel to appear at a show cause hearing to
demonstrate why he should not be sanctioned, pursuant to the court’s inherent
14 power to sanction and discipline attorneys, for abusing the judicial process,
misusing the court’s subpoena power, and invading the privacy of a former juror.
At the show cause hearing, Jefferson’s counsel testified that, after the trial,
he began investigating the jurors by looking at their juror questionnaires and some
answers appeared “suspicious.” During the course of his investigation, he
discovered that Grant was a licensed insurance agent, although he had listed his
occupation as “financial services” on his juror questionnaire. He testified that he
called Grant “a couple of times,” but Grant never returned his calls. After he
moved for a new trial, he spoke with Grant twice by telephone. He characterized
his conversations with Grant as “very friendly” and “amicable.” During the course
of the conversation, Grant confirmed that he worked as an insurance agent, that he
had suffered a sports injury in college, and that he had recently had surgery to
repair his old injury. Jefferson’s counsel testified that he subpoenaed Grant to
bring his tax returns, medical records, a copy of his office lease agreement, and his
insurance license with him to the motion for new trial hearing.
At the close of the hearing, the trial court explained that it was concerned
that tacit approval of this behavior would have a “negative influence” and a
“chilling” effect on jurors such that potential jurors might be afraid to participate in
the judicial process if they knew that they could be forced to produce financial and
medical records after the conclusion of the trial. As sanctions, the court ordered
15 Jefferson’s counsel to write a letter of apology to Grant, to be submitted to the
court for approval, and to pay the costs of the show cause hearing.
Evidentiary Hearing on Motion for New Trial
In her first issue, Jefferson contends that the trial court erroneously refused
to hold an evidentiary hearing on her motion for new trial, which was required
because her motion alleged jury misconduct.
Texas Rule of Civil Procedure 327(a) provides,
When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury . . . or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved . . . or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.
TEX. R. CIV. P. 327(a) (emphasis added). It is reversible error for the trial court to
refuse to hear testimony on a motion for new trial if “affidavits are attached to the
motion showing material jury misconduct.” Roy Jones Lumber Co. v. Murphy, 163
S.W.2d 644, 646 (Tex. 1942); Tony’s Tortilla Factory, Inc. v. First Bank, 857
S.W.2d 580, 588 (Tex. App.—Houston [1st Dist.] 1993) (“If a party files a proper
motion for new trial that is supported by sufficient affidavits alleging jury
misconduct, the trial court must conduct a hearing.”), rev’d on other grounds, 877
S.W.2d 285 (Tex. 1994); Am. Home Assurance Co. v. Guevara, 717 S.W.2d 381,
16 384 (Tex. App.—San Antonio 1986, no writ) (“The rule imposes a mandatory duty
upon the trial court to receive evidence of jury misconduct if it is properly
presented; the party asserting jury misconduct must show good faith by
demonstrating that such allegation is based upon knowledge rather than hope.”);
Jordan v. Ortho Pharm., Inc., 696 S.W.2d 228, 238 (Tex. App.—San Antonio
1985, writ ref’d n.r.e.) (“An examination of the motion and affidavits, if present,
must reveal sufficient allegations of material jury misconduct setting forth specific
facts concerning the act of misconduct relied upon, naming or identifying the juror
or jurors who committed the misconduct, and showing that as a consequence, harm
has resulted to the movant.”). “The trial court must make an initial determination
as to whether material misconduct occurred from the motion [for new trial] and its
attachments.” Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d 215,
217 (Tex. Civ. App.—Texarkana 1980, no writ). If the supporting affidavits do
not demonstrate material misconduct, the trial court need not consider evidence on
the motion. Id.
Here, in her motion for new trial, Jefferson argued three grounds of juror
misconduct: (1) Michael Grant concealed or failed to disclose that he was an
insurance agent when he listed his occupation as “financial services” on his juror
questionnaire; (2) Grant improperly “mingled” with Chambers, Fuller’s attorney,
and received a favor when he approached Chambers in the courthouse cafeteria
17 and informed him that Fuller and several of her relatives were sitting close to the
jurors and could be talking about the case; and (3) during testimony, Grant
conversed with a fellow juror, “[made] faces,” and rolled his eyes. As supporting
evidence, Jefferson attached her own affidavit, as well as those of Raevann Fuller
and Regina Jefferson, both of whom provided information concerning the cafeteria
incident. We must determine whether Jefferson’s motion and the supporting
affidavits demonstrate material juror misconduct
A. Concealment of Occupation
Rule 327(a) provides that a new trial may be granted on the basis that a juror
gave an “erroneous or incorrect answer on voir dire examination.” TEX. R. CIV. P.
327(a). “A juror can commit misconduct if he lies in voir dire about a matter on
which he was clearly biased or prejudiced.” Wooten v. S. Pac. Transp. Co., 928
S.W.2d 76, 79 (Tex. App.—Houston [14th Dist.] 1995, no writ). For false answers
to voir dire questions to entitle a party to a new trial, the concealment must be in
response to a specific and direct question calling for disclosure. Id. To establish
jury misconduct on grounds that the juror concealed information during voir dire, a
party must obtain proof of concealment from a source other than jury deliberations.
Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 40 (Tex. App.—Houston [14th Dist.]
1999, pet. denied).
18 On his juror questionnaire, Grant listed his occupation as “financial
services.” During voir dire, Jefferson’s counsel asked Grant, “[Y]ou work for a—
financial services?” Grant responded, “I’m a financial adviser.” Counsel did not
ask any further questions on this subject, and the voir dire record does not indicate
that Grant was asked whether he was an insurance agent or involved with the
insurance industry. Jefferson averred that a post-trial investigation revealed that
Grant owned an insurance agency and was affiliated with several insurance
companies. She argued that Grant “had a direct or indirect interest in the subject
matter of this case” and concealed his true occupation.
As Fuller points out, federal statutes have defined “financial services” to
include insurance. See 26 U.S.C. § 904(d)(2)(D)(i) (“[T]he term ‘financial services
income’ means any income which is received or accrued by any person
predominantly engaged in the active conduct of a banking, insurance, financing, or
similar business . . . .”) (Internal Revenue Code); 10 U.S.C. § 992(d) (“In this
section, the term ‘financial services’ includes the following: (1) Life insurance,
casualty insurance, and other insurance . . . .”). Assisting individuals in obtaining
various types of insurance policies can be an integral part of financial and estate
planning. Jefferson provided no argument or authority for the proposition that,
because Grant has an insurance license and owns his own insurance agency, he
does not also provide “financial services,” and, thus, he improperly concealed
19 information when he stated his occupation as “financial services” on his voir dire
questionnaire and during questioning.2 We therefore conclude that Jefferson’s
motion and affidavit fail to demonstrate that Grant committed misconduct when he
stated that his occupation was “financial services.” See Wooten, 928 S.W.2d at 79
(noting that concealment “must be in response to a specific and direct question
calling for disclosure”).
B. “Mingling” with Counsel
Jefferson also contends that Grant committed misconduct when he
approached Chambers in the courthouse cafeteria and informed him that Fuller and
several of her family members were sitting at a table near the jurors and that he
was concerned the jurors may overhear discussion of the case. Chambers told
Grant that he would handle the problem, and he asked Fuller and her family
members to move to a different table, which they did. Grant thanked Chambers as
he left the cafeteria.
Chambers later brought this incident to the trial court’s attention in open
court, outside the presence of the jury. Chambers stated, “I’m not aware of
anything that they did overhear, just [that Grant] was concerned [the jury] might
because [the family was] sitting in close proximity.” Jefferson’s counsel asked
2 We note that during the show cause hearing, the trial court admitted a photograph of the sign outside of Grant’s office. The sign indicates that Grant is an insurance agent for New York Life, but it also states that he is a “Financial Services Professional.” 20 which family members were present and whether Grant overheard any
conversations, to which Chambers replied, “He didn’t say that.” The trial court
stated, “Sounds like he handled the situation and avoided it and did what the
lawyer should do and eradicated the situation.” Jefferson’s counsel did not make
any objections at this point in time, and he did not ask to question Grant on the
record regarding the incident and what he may have overheard or to question the
family members on the record regarding their conversation topics.
At the motion for new trial hearing, the trial court and Jefferson’s counsel
had the following exchange:
The Court: [W]e addressed that during the trial, did we not? [Jefferson]: Addressed what? The Court: The cafeteria incident. We addressed that during the trial, did we not? [Jefferson]: Yes, we addressed it during the trial. The Court: Did you request any sort of instruction or follow-up with the Court? [Jefferson]: I did not. The Court: The Court finds that particular issue is waived at this point.
We agree with the trial court that Jefferson waived any complaint of juror
misconduct on this basis. The alleged misconduct occurred while the evidence was
still open. Chambers informed the trial court and Jefferson’s counsel of what had
happened with Grant. Jefferson’s counsel asked two questions about the incident,
21 but he appeared satisfied that no misconduct had occurred. He did not take the
opportunity to question Grant or any of Fuller’s family members on the record
about the incident. He did not raise a complaint of juror misconduct until the
motion for new trial. We conclude that the trial court properly determined that
Jefferson had waived her complaint of juror misconduct on this basis. See Alamo
Carriage Serv., Inc. v. City of San Antonio, 768 S.W.2d 937, 943 (Tex. App.—San
Antonio 1989, no writ) (“[Plaintiffs] had three full days to voice their objections
[to the alleged jury misconduct] before the verdict was returned. We believe that it
would be wantonly unfair to allow a litigant to take his chances with the jury and
later complain of misconduct when he is unhappy with the result. A party may not
speculate on the result of a verdict and then for the first time complain of jury
misconduct.”); see also Melendez v. Exxon Corp., 998 S.W.2d 266, 279 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (holding complaint that juror was
sleeping during trial not preserved when raised for first time in motion for new
trial).
C. Juror’s Behavior in Open Court
Finally, Jefferson contends that she observed Grant “in open court on several
occasions talking and exchanging comments and body language with the juror next
to him.” In her affidavit, Jefferson further averred, “During the trial while I was
testifying and Reginald Fuller and Margaret Fuller were testifying[,] I observed
22 and heard Michael Grant many times talking to the juror next to him, rolling his
eyes over and over and shaking his head back and forth.” At the motion for new
trial hearing, Jefferson’s counsel argued that Grant “[w]as discussing the case in
the presence of everyone in the courtroom with the juror next to him,” but he
conceded that Grant’s behavior was not brought to the trial court’s attention at the
time that it occurred.
To the extent Jefferson contends that Grant and an unidentified juror
improperly discussed the case in the courtroom prior to the start of deliberations,
we note that Jefferson presented no admissible evidence concerning the content of
Grant’s alleged conversation with the other juror. In her affidavit, Jefferson
merely stated that she observed and heard Grant “many times talking to the juror
next to him,” but she gave no indication of the contents of this alleged
conversation. See Guevara, 717 S.W.2d at 384 (“[T]he party asserting jury
misconduct must show good faith by demonstrating that such allegation is based
upon knowledge rather than hope.”) (emphasis added); Jordan, 696 S.W.2d at 238
(“An examination of the motion and affidavits . . . must reveal sufficient
allegations of material jury misconduct setting forth specific facts concerning the
act of misconduct relied upon . . . .”).
Jefferson has presented no authority that one juror speaking to another about
an unknown topic, rolling his eyes, and shaking his head during testimony
23 constitutes juror misconduct. Furthermore, as the trial court noted during the
motion for new trial hearing, none of this alleged conduct was brought to the trial
court’s attention during the trial, even though Jefferson averred that she observed
Grant’s behavior during her testimony as well as during the testimony of two other
witnesses. See Melendez, 998 S.W.2d at 279 (holding plaintiff waived complaint
of juror misconduct due to juror allegedly sleeping during trial when juror’s
behavior not brought to attention to trial court during trial). We conclude that
Jefferson’s motion and affidavit do not establish that Grant engaged in misconduct
on this basis.
We therefore conclude that because Jefferson’s motion for new trial and the
attached affidavits do not demonstrate that Grant engaged in material misconduct,
the trial court did not err in refusing to hold an evidentiary hearing on the motion.
We overrule Jefferson’s first issue.
Sufficiency of the Evidence
In her second issue, Jefferson contends that the jury’s finding that Associates
Health did not negligently fail to comply with its non-delegable duty to warn her of
the hazards of her employment or to supervise her activities was against the great
weight and preponderance of the evidence. In her third issue, Jefferson contends
that the jury’s finding that Fuller was not negligent was also against the great
weight and preponderance of the evidence.
24 A. Standard of Review
When the appellant attacks the factual sufficiency of an adverse finding on
an issue on which she had the burden of proof, the appellant must demonstrate that
the adverse finding is against the great weight and preponderance of the evidence.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We
consider and weigh all of the evidence and we set aside the verdict only if the
finding is so against the great weight and preponderance of the evidence that it is
clearly wrong and manifestly unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986) (per curiam); Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied). The jury is the sole judge of the witnesses’
credibility, and it may choose to believe one witness over another. See Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We may not
substitute our judgment for that of the jury. Id. “Because it is the jury’s province
to resolve conflicting evidence, we must assume that jurors resolved all conflicts in
accordance with their verdict.” Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
B. Finding that Associates Health Did Not Negligently Fail to Warn Jefferson or to Supervise Her Actions
To prove negligence, the plaintiff must establish a duty, a breach of that
duty, and damages that are proximately caused by the breach. Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). Liability for negligence 25 cannot be imposed if no duty exists. Id. An employer has a duty to use ordinary
care in providing a safe workplace, which generally requires the employer to warn
an employee of the hazards of employment and provide any needed safety
equipment or assistance. Id. “However, an employer is not an insurer of its
employees’ safety.” Id. An employer owes no duty to warn of hazards that are
commonly known or already appreciated by the employee. Id.; see also
Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (per curiam)
(stating same); Nat’l Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149
(Tex. App.—Houston [14th Dist.] 1999, no pet.) (“[A]n employer’s duty to instruct
applies to an inexperienced employee but not to one who is experienced in the
work he is assigned.”).
Jefferson contends that Associates Health failed to instruct her “in the safe
use of wheelchairs and power chairs” and failed to warn her of the potential
hazards involved when an Associates Health client uses a power chair. At trial,
Jefferson testified that she began working for Associates Health as her mother’s
PCA in 2004, three years before the incident at issue. She testified that Fuller had
been using the particular power chair involved in the incident for several months at
the time that Associate Health began providing non-skilled care and assistance to
Fuller. She stated that she was aware that Fuller occasionally takes Vicodin, which
has “affect[ed] her mental state” in the past, and she also testified that she had
26 witnessed Fuller run into walls and furniture with her power chair on several prior
occasions.
Jefferson was injured when, while she was standing outside and holding a
screen door open, Fuller’s power chair ran over her right foot, causing her to fall
into a flowerbed and break her femur. The danger associated with an elderly
patient who takes several medications operating a motorized wheelchair and the
possibility that such a patient might lose control over the chair are “danger[s]
known to all,” and, thus, Associates Health owed no duty to Jefferson to warn her
of the potential hazard that Fuller’s power chair posed to Jefferson’s feet. Elwood,
197 S.W.3d at 795 (“Kroger had no duty to warn Elwood of a danger known to all
and no obligation to provide training or equipment to dissuade an employee from
using a vehicle doorjamb for leverage.”); see also Goss, 262 S.W.3d at 795 (“But
an employer owes no duty to warn of hazards commonly known or already
appreciated by the employee . . . .”); Jack in the Box, Inc. v. Skiles, 221 S.W.3d
566, 569 (Tex. 2007) (per curiam) (“The dangers associated with the use of a
ladder to climb over a lift gate are common and obvious to anyone.”).
Furthermore, Jefferson had witnessed Fuller lose control over her power chair on
previous occasions, and, therefore, Jefferson already appreciated the hazard that
Fuller might lose control and that her chair might run over Jefferson’s foot. See
27 Elwood, 197 S.W.3d at 794 (holding that employer owes no duty to warn of
dangers already appreciated by employee).
We hold that because Associates Health did not owe Jefferson a duty to
warn her of the danger posed by holding the screen door open for Fuller while she
maneuvered her power chair through the doorway, the jury’s finding that
Associates Health did not negligently fail to warn Jefferson of the hazards of her
employment was not against the great weight and preponderance of the evidence
so as to be manifestly unjust.
We overrule Jefferson’s second issue.
C. Finding that Fuller Was Not Negligent
To prevail on her negligence cause of action against Fuller, Jefferson must
establish the existence of a duty, a breach of that duty, and damages proximately
caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
To establish breach of duty, the plaintiff must show either that the defendant did
something an ordinarily prudent person exercising ordinary care would not have
done under the particular circumstances or that the defendant failed to do
something that an ordinarily prudent person would have done in the exercise of
ordinary care. Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas
2004, pet. denied); Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex. App.—
Fort Worth 1999, pet. denied).
28 In support of her contention that the jury’s finding that Fuller was not
negligent was against the great weight and preponderance of the evidence,
Jefferson points to Fuller’s admissions in her deposition testimony, made in
response to the questioning of Jefferson’s counsel and read into the record during
trial, that she ran over Jefferson’s foot with her power chair, which caused
Jefferson to fall into the flowerbed, that the power chair was not defective and did
not malfunction, and that she “should have been watching and looking to keep [her
power chair] straight.” It is undisputed that the right front wheel of Fuller’s power
chair ran over Jefferson’s right foot, causing Jefferson to fall and fracture her
femur; however, Fuller denied that she was negligent in operating her power chair
and she presented testimony to this effect at trial.
Fuller and Jefferson both testified that Fuller controlled the direction in
which the power chair moved via a joystick on the right-hand arm rest. Fuller
testified as follows concerning the incident:
And [Jefferson held] the door open and I was going on out the door and so I had taken my—I remember taking my hand off the joy stick, but I don’t know how it fell on there. Some kind of way, it got on that joy stick, then [the chair] rolled over [Jefferson’s] leg and broke it. But it was just an accident. I just must have reached my arm somehow because when you first—those wheelchairs, when you first get the power in them, you have to kind of take it easy.
Fuller stated that she has been using a power chair “for quite a while” and that, on
this occasion, her “hand just slipped and some kind of way, [her] sleeve touched
29 the joy stick and [the chair] just jumped off and jumped on ahead,” running over
Jefferson’s foot in the process.
The record, therefore, contained conflicting evidence: (1) Fuller’s deposition
testimony that she was talking to Regina and not watching where she was going as
she moved through the doorway, and (2) her trial testimony that she was trying to
maneuver her power chair through the doorway when either her hand slipped off
the chair’s joystick or her sleeve hit the joystick and caused the chair to move to
the right, instead of straight ahead, running over Jefferson’s foot. We assume that
the jury resolved any conflicts in the evidence in accordance with its verdict.
Figueroa, 318 S.W.3d at 60. Thus, there was evidence in the record that
Jefferson’s injury was the result of an accident and not the result of Fuller’s failure
to use ordinary care in operating her power chair. As the fact-finder, the jury had
the sole responsibility to assess the credibility of the witnesses, and it could choose
to believe or disbelieve all or part of any witness’s testimony. See Jackson, 116
S.W.3d at 761. When the evidence falls within the zone of reasonable
disagreement, we may not substitute our judgment for that of the jury. Id.
Based on this record, we hold that the jury’s finding that Fuller was not
negligent was not against the great weight and preponderance of the evidence so as
to be manifestly unjust.
We overrule Jefferson’s third issue.
30 Sanctions Order
In her fourth issue, Jefferson contends that the trial court erred in ordering
sanctions against her counsel for “abusing the judicial process, misusing the
Court’s subpoena power[,] and invading the privacy of a former juror.” In her fifth
issue, she contends that the trial court erred in failing to file separate findings of
fact and conclusions of law in association with this order.
Courts possess the inherent power to discipline an attorney’s behavior and
may impose sanctions on their own motion in an appropriate case. In re Bennett,
960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding). “Even in the absence of an
applicable rule or statute, courts have the authority to sanction parties for bad faith
abuses if it finds that to do so will aid in the exercise of its jurisdiction, in the
administration of justice, and the preservation of its independence and integrity.”
Clark v. Bres, 217 S.W.3d 501, 512 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). The trial court has the inherent power to sanction an attorney “to the
extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial
process, such as any significant interference with the court’s administration of its
core functions . . . .” Mills v. Ghilain, 68 S.W.3d 141, 145 (Tex. App.—Corpus
Christi 2001, no pet.). To uphold a sanction imposed under the court’s inherent
power, there “must be some support in the record that the [attorney’s] conduct
complained of significantly interfered with the court’s legitimate exercise” of one
31 of its core functions. Id.; see also Kings Park Apartments, Ltd. v. Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa., 101 S.W.3d 525, 541 (Tex. App.—Houston [1st Dist.]
2003, pet. denied) (holding same).
We review a trial court’s order sanctioning an attorney under its inherent
powers for an abuse of discretion. See Clark, 217 S.W.3d at 512; Lawrence v.
Kohl, 853 S.W.2d 697, 700 (Tex. App.—Houston [1st Dist.] 1993, no writ). In
reviewing the trial court’s sanctions ruling, we are not bound by the trial court’s
findings of fact and conclusions of law concerning the ruling. Am. Flood
Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam). Instead,
we independently review the entire record to determine whether the trial court
abused its discretion. Id.; Lawrence, 853 S.W.2d at 700 (“[We] must review the
entire record and view the evidence most favorably to the trial court’s ruling.”).
Any findings of fact made by the trial court “are not to be treated on appeal as
findings of fact made under Texas Rule of Civil Procedure 296, which are
reviewed for legal and factual sufficiency.” Mills, 68 S.W.3d at 145 (citing IKB
Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) and Chrysler
Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992)); see also Clark, 217 S.W.3d
at 513 (stating same). The trial court’s findings are instead “merely utilized to
assist the appellate court in deciding whether the trial court abused its discretion.”
Mills, 68 S.W.3d at 145 (citing IKB Indus., 938 S.W.2d at 442). We must ensure
32 that the sanctions imposed were appropriate and just. Jones, 192 S.W.3d at 583
(citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 916 (Tex.
1991)).
Here, in her motion for new trial, Jefferson enumerated three specific
allegations of juror misconduct on Grant’s part: (1) he concealed his true
occupation when he listed his occupation as “financial services,” instead of
disclosing that he had an insurance license, on his juror questionnaire; (2) he
inappropriately “mingled” with and accepted a favor from Chambers when he
informed Chambers that Fuller and her family members, some of whom were
potential witnesses, were sitting very close to the jurors in the courthouse cafeteria
and requested that Chambers ask them to move to a different table; and (3) he
improperly discussed the case during trial with a fellow juror while sitting in the
jury box and “[made] faces” and “roll[ed] his eyes” during testimony, in violation
of trial court orders. Jefferson did not allege in her motion that Grant committed
misconduct by failing to disclose that he had suffered an accidental injury and had
received medical attention for this injury on his juror questionnaire, and she did not
attach any evidence demonstrating this allegation to her motion for new trial in
affidavit, or any other, form.3 Jefferson’s counsel did not raise this allegation until
3 During voir dire, Chambers asked the venire whether they themselves or someone close to them had had a knee injury. Grant raised his hand. He then stated, “Had two, first in college, football injury, fractured my patella. It was—there was some 33 the motion for new trial hearing, after which he had already subpoenaed Grant and
the records custodian of Saint Luke’s Episcopal Hospital, requiring her to bring
Grant’s medical records to the hearing.4
The trial court was appropriately concerned that subjecting jurors to the
subpoena power of the court and requiring them to disclose their financial and
medical records might have a “chilling” effect or a negative influence on citizens’
willingness to participate in the judicial process. Given that Jefferson did not
argue and did not provide any evidentiary support in her motion for new trial for
her contention that Grant had concealed his injury history, we cannot conclude that
the trial court abused its discretion when it found that Jefferson’s counsel abused
the judicial process, misused the court’s subpoena power, and invaded Grant’s
privacy. We therefore hold that the trial court’s decision to sanction Jefferson’s
negligence on the university’s part but they—they took care of it all. The second, had ACL reconstruction and meniscal repair about four years ago.” He told Chambers that he could be unbiased and further stated, “[S]ometimes individuals are right; sometimes they’re wrong. Sometimes organizations are right; sometimes they’re wrong. That’s why we have laws.” 4 Jefferson argued that Grant committed misconduct on this basis in her supplemental briefing provided at the trial court’s request after the motion for new trial hearing. To the extent she contends that this filing amended her initial motion to raise this allegation, we note that Rule 329b allows a party to amend a motion for new trial, provided that the amendment occurs “within thirty days after the judgment or other order complained of is signed.” TEX. R. CIV. P. 329b(b). Jefferson did not file her supplemental briefing until two months after the trial court signed its final judgment. 34 counsel under its inherent authority to discipline an attorney’s behavior was within
the zone of reasonable disagreement, and we therefore uphold the sanctions order.
Jefferson contends, in her fifth issue, that the trial court erred in including
findings of fact and conclusions of law in the sanctions order itself, instead of
filing separate findings and conclusions pursuant to Texas Rule of Civil Procedure
296 upon her counsel’s request. We first note that, on appeal of a sanctions order,
we are not bound by a trial court’s findings and conclusions, and, instead, we
consider the entire record when determining whether the trial court abused its
discretion in making the sanctions order. Jones, 192 S.W.3d at 583; Mills, 68
S.W.3d at 145. Findings of fact relating to a sanctions order “are not to be treated
on appeal as findings of fact made under [Rule] 296.” Mills, 68 S.W.3d at 145.
Moreover, when a trial court sanctions a party or an attorney pursuant to Civil
Practice and Remedies Code Chapter 10, the court “shall describe in an order
imposing a sanction under this chapter the conduct the court has determined
violated Section 10.001 and explain the basis for the sanction imposed.” TEX. CIV.
PRAC. & REM. CODE ANN. § 10.005 (Vernon 2002) (emphasis added); Univ. of Tex.
at Arlington v. Bishop, 997 S.W.2d 350, 355–56 (Tex. App.—Fort Worth 1999,
pet. denied) (noting that court did “not condone” the practice of using separate
findings and conclusions to satisfy section 10.005, but holding that when findings
35 and conclusions provide particulars that sanctions order itself lacks, reversible
error does not occur).
Jefferson cites no authority for the proposition that, when a trial court
sanctions an attorney pursuant to its inherent power, it must state its findings and
conclusions in a separate document, rather than in the sanctions order itself, which
is the general practice for sanctions orders. Furthermore, even if the trial court
should have stated separate findings and conclusions, we cannot conclude that its
failure to do so in this case is reversible error because the court set out its findings
and conclusions in the sanctions order. This was not a situation in which
Jefferson’s counsel had to guess at the reasons that the court imposed its sanctions
order and therefore could not properly present his case on appeal. See Larry F.
Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet.
denied) (“The general rule is that an appellant has been harmed [by the failure to
file findings and conclusions] if, under the circumstances of the case, he has to
guess at the reason the trial court ruled against him.”). We therefore conclude that
the trial court did not reversibly err when it refused to file separate findings of fact
We overrule Jefferson’s fourth and fifth issues.
36 Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.