                           NUMBER 13-10-00232-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


EZEQUIEL CASTILLO, INDIVIDUALLY, MARIA
DE LOS ANGELES CASTILLO, INDIVIDUALLY
AND AS NEXT FRIEND FOR ASHLEY CASTILLO
AND EZEQUIEL CASTILLO JR., AND ROSA
SILVIA MARTINEZ, INDIVIDUALLY,                                          Appellants,

                                          v.

FORD MOTOR COMPANY,                                                       Appellee.


                   On appeal from the 404th District Court
                        of Cameron County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

      Appellants, Ezequiel Castillo, individually, Maria De Los Angeles Castillo,

Individually and as next friend for Ashley Castillo and Ezequiel Castillo Jr., and Rosa
Silva Martinez, individually, appeal a take-nothing judgment in favor of appellee, Ford

Motor Company (“Ford”). Appellants contend that Ford failed to prove its affirmative

defenses of mutual mistake and fraudulent inducement, the trial court admitted

inadmissible evidence concerning jury deliberations, and there was no evidence of juror

misconduct due to an outside influence.1 We reverse and remand.

                                           I.     BACKGROUND

           Appellants were injured in a roll-over accident involving a Ford Explorer and sued

Ford for personal injuries sustained during the accident (the “personal injury case”).

During jury deliberations, a note was sent to the judge asking, “What is the maximum

amount that can be awarded?” (the “complained-of note”). The parties then entered into

a Rule 11 agreement and settled the cause for three million dollars. After entering into

the agreement, Ford’s attorneys spoke with several of the jurors and discovered that

some jurors had asked the jury foreperson not to send the complained-of note to the

judge. Ford refused to tender the three million dollars to appellants, claiming that it had

been fraudulently induced into entering the contract and that it had entered the contract

based on a mutual mistake.

           Appellants asserted a breach of contract claim against Ford. Ford sought to

avoid the settlement agreement based on mutual mistake, unilateral mistake, and

fraudulent inducement. The trial court granted summary judgment in favor of appellants

on the claim for breach of contract, and a panel of this Court affirmed the judgment.

See Ford Motor Co. v. Castillo, 200 S.W.3d 217 (Tex. App.—Corpus Christi 2006),

rev’d, 279 S.W.3d 656 (Tex. 2009).                 After granting Ford’s petition for review and

           1
               We have reorganized and renumbered appellants’ issues for the purpose of this memorandum
opinion.


                                                     2
concluding that the trial court abused its discretion in denying Ford the right to conduct

discovery on appellants’ claim for breach of contract, the Texas Supreme Court

reversed the summary judgment and remanded the case to the trial court for further

proceedings.2 See Castillo, 279 S.W.3d at 667.

        On remand, appellants’ claim for breach of contract was tried to a jury. The only

issues in dispute were Ford’s affirmative defenses to the agreement. Prior to trial, Ford

stipulated that it had entered into the agreement and that appellants would be entitled to

recover on their breach of contract claim if Ford did not prevail on any of its affirmative

defenses. During the trial, Ford called former jurors as witnesses to establish that the

jury foreperson in the personal injury case, Cynthia Cortez, did not have the permission

of some of the jurors to send the complained-of note asking about damages.

        The jury found that Ford’s compliance with the settlement agreement was

excused by mutual mistake and fraudulent inducement.                     The jury made a specific

finding that the note sent by Cortez was a material misrepresentation “sent by or at the

direction of [appellants] or their agents or representatives with the knowledge that it was

false . . . with the intent that [Ford] rely on the misrepresentation.” A take-nothing

judgment was entered, and this appeal ensued.


        2
          The trial judge who previously granted appellants’ summary judgment for breach of contract was
Abel Limas. In Coronado, the Texas Supreme Court held that an order denying summary judgment
signed by Limas was void. Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012).
The court took judicial notice of and relied on a plea agreement signed by Limas. See id. The court
further held that neither it nor this Court had the authority to address the merits of the appeal. See id.

         “[A]ppellate courts do not have jurisdiction to address the merits of appeals from void orders or
judgments; rather, they have jurisdiction only to determine that the order or judgment underlying the
appeal is void and make appropriate orders based on that determination.” See id. at 623. We have a
duty to sua sponte determine whether this Court has jurisdiction to address the merits of an appeal. See
id. at 623–24. We have therefore reviewed Limas’s plea agreement relied on by the supreme court in
Coronado, and we have found nothing indicating that the order granting summary judgment was void.
Accordingly, we have jurisdiction to address the merits of this appeal.


                                                    3
                           II.    SUFFICIENCY OF THE EVIDENCE

       By their first and second issues, appellants contend that Ford failed to prove its

affirmative defenses of mutual mistake and fraudulent inducement. Specifically, they

argue that as a matter of law, there could not have been a mutual mistake and there

was insufficient evidence to support the jury’s findings of mutual mistake and fraudulent

inducement. Regarding fraud, appellants argue that there is no evidence that the note

was sent by Cortez at the direction of the appellants or at the direction of their agents or

representatives.   At oral argument, Ford urged this Court to conclude that it was

unnecessary in this case to prove that the note was sent at the direction of appellants,

their agents, or their representatives. Ford also argued that it is excused from the

contract even if it proved that Cortez committed fraud on her own.

A.     Standard of Review

       A legal sufficiency challenge may only be sustained when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules

of law or of evidence from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4)

the evidence establishes conclusively the opposite of a vital fact. Schaban-Maurer v.

Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort Worth 2007, no pet.) (citing

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Robert W.

Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361,

362–63 (1960)). In a legal sufficiency review, we must view the evidence in the light

most favorable to the verdict, crediting favorable evidence if a reasonable fact-finder

could and disregarding contrary evidence unless a reasonable fact-finder could not.



                                             4
City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The final test for legal

sufficiency must always be whether the evidence at trial would enable reasonable and

fair-minded people to reach the verdict under review. Id. at 822.

B.    The Evidence

      1.         Ford

      Peter Tassie testified that he is Ford’s managing counsel and that he was

involved in negotiating a settlement with appellants’ trial attorney, Mark Cantu. Tassie

stated that Ford’s trial attorneys in this case were Eduardo Rodriguez, Warren Platt, and

“Jerry Giordano.”3        Tassie explained that in the personal injury case, the plaintiffs

established that they were in a 2001 Ford Explorer that rolled over.                             Ford was

concerned that the accident occurred on a wet surface on a curve and that the vehicle

“went off the road.”         Tassie stated that although most of the injuries were minor,

appellant, Rosa Martinez suffered a serious injury.

      Tassie agreed that there were two questions on liability:                           the first question

regarded whether there was a design defect in the roof strength of the vehicle, the

second question asked, “Was there a design defect regarding handling and stability in

the 2001 Ford Explorer that was the producing cause to [sic] the injuries of Ms.

Martinez.” Tassie explained that the jury charge in the personal injury case was a

“conditional charge” “because it says, ‘If you answered yes to Questions 1 [or] 2, then

answer the following question,” on damages; and, the jury was not “allowed to get to the

damages questions” until it answered “yes” to either question one, two, or both.




      3
          It is unclear from the record if this is the proper spelling of the attorney’s name.


                                                       5
According to Tassie, “if you’ve answered no to both of those [questions], you never talk

about the damages question.”4

        Tassie recalled that the jury went home for the weekend, and that on Saturday,

he received a call from Cantu, who wanted to talk about settling the case. Tassie stated

that during this conversation, Cantu asked for fifteen million dollars and Tassie informed

Cantu that that was unreasonable.                Tassie testified that on Monday when the jury

submitted notes asking for testimony from the expert witnesses on “handling and

stability,” “we read that to mean” that the jury had answered question number one, and

“we’re fairly confident we didn’t think the roof allegation was a strong allegation anyhow

because this vehicle actually rolled into some boulders.”5 Tassie believed that the jury

had answered question number one in favor of Ford. Tassie acknowledged that he and

Cantu discussed the notes concerning the expert witnesses.                           When asked, “Not

necessarily specifically where they [the jury] were, plus or minus, you thought it was a

good sign, Mr. Cantu thought it was a good sign for him, right,” Tassie replied, “Right.”

        Tassie stated that on Tuesday, the jury did not deliberate because a juror had

been in the hospital with a sick child all night.6 According to Tassie, that day, Cantu

eventually demanded four million dollars and Tassie offered one million dollars. When

asked why he made the offer, Tassie explained that Cantu “had moved a considerable

amount from an unreasonable number, we thought, but it was starting to get into the


        4
         Nowhere in the jury charge did the trial court instruct the jury that it could only discuss the issue
of damages if the jury answered “yes” to either question one or two. It merely stated that if they did not
answer “yes” to questions one or two, it should not answer the questions on damages.
        5
          Although Tassie mentions that he discussed the jury note concerning the experts on “handling
and stability” with Cantu, it is unclear who he refers to as “we.”
        6
            That juror was Cortez, the jury foreperson.


                                                          6
range where it made sense to continue negotiations. So I thought taking that step

would keep things moving.” Tassie did not believe that there was anything “wrong” with

the Explorer, but decided to settle for one million dollars “because [Ford] can’t fight

every case and try every case, and there’s still risks. . . . There’s too many things that

you can’t control, witnesses, juries, judges, jurisdiction, all those things can change and

they aren’t things you can control. . . .” Tassie continued, “There are cases we think we

should have won that we lost, and cases, you know, the same thing that we thought it

was going to be a really tough case because of all those factors and we won. . . .”

       Tassie testified that he and Cantu eventually, in their numerous and lengthy

discussions, “added in the element of a structured settlement for Ms. Martinez.” Tassie

said a structured settlement “is where you take part of the money and you actually place

it with a company and it gives periodic payments. In this case, monthly payments over

time so that rather than one big payment, the person can get payments every month,

literally for the rest of their life.” The men discussed that Rosa would receive $2,500 per

month for life and it would be guaranteed for fifteen years. The men had also discussed

incremental payments of two percent, in other words, “[i]t would slowly, over time, it

would increase by two percent a year so that that monthly payment would actually

increase over time.”

       However, according to Tassie, the men had not yet entered into an agreement;

Cantu’s demand was $1.96 million and Tassie’s offer was $1.5 million. Tassie stated

that he eventually proposed $1.75 million and Cantu rejected that amount. When asked

if he knew the breakdown of Cantu’s demand, Tassie said Cantu wanted the following:

(1) $850,000 for costs, including “all the expenses in putting the case together, paying



                                            7
the expert witnesses, filing fees, all the things that you have to do to try a case that both

sides have to spend”; (2) $400,000 for attorney’s fees; (3) “$540,000 was the cost of the

structure”; and (4) $100,000 for modifications to Rosa’s house. Tassie did not state how

much Cantu requested for the other appellants’ injuries.7

       According to Tassie, the men agreed that if there were any other questions

submitted by the jury, each would be free to change his demand or offer. Tassie stated

that Cantu then told him that “if there’s a note from the jurors about damages, then my

demand will go back up to $3,000,000.00.” Tassie believed that it was reasonable for a

demand to increase if it is determined that the jury is deliberating the damages. Tassie

testified that Cantu would not come down on his demand of $1.96 million, and Cantu

told Tassie that he would be contacting the judge to intervene in the negotiations

process.

       Tassie then received notice that the jury had sent a note to the judge asking for

clarification on the difference between preponderance of the evidence and beyond a

reasonable doubt. Tassie stated that Rodriguez then informed him that the jury sent out

the complained-of note asking about damages. Tassie immediately requested authority

to settle the case for three million dollars. Tassie testified that he had never seen a note

such as the complained-of note before or after this case. Tassie agreed that based on

jury notes, an attorney could “tell . . . what particular [issue] the jury might be trying to

evaluate in the charge[.]”

       The men entered into the settlement agreement for three million dollars. When

asked if it were possible that he offered Cantu $2.25 or $2.5 million before he became

       7
         Although Tassie did not state how much Cantu was demanding for the other appellants’ injuries,
Tassie stated that the numbers added up to $1.95 million and not $1.96 million as demanded by Cantu.


                                                  8
aware of the complained-of note, Tassie responded, “Couldn’t be true, because I didn’t

have authority to do that. . . . My authority was $1,000,000.00, and I had 1.5 million in

authority, and that’s why I said if we were going to split the difference at 1.75, if he

would make that demand, then I would go back and try to get that authority.”

        Ford’s attorneys spoke with the jurors after the parties entered into the settlement

agreement. Tassie stated,

               He [Rodriguez] told me generally that there was some concerns by
        the other jurors, that they weren’t aware of that not[e] going out, and that
        they were confused and didn’t understand why the case settled while they
        were still deliberating on the liability issue. And I decided at that point, that
        we needed to investigate further and find out what really happened.

Tassie claimed that the complained-of note undoubtedly indicated that the jury was

deliberating the issue of damages. He stated, “There is no guesswork at this point

when you get the wording of that note. . . . If the jury is following the instructions, they

can’t discuss the damages question unless they’ve answered yes to one of the first two

questions.”8

        Tassie stated that he was concerned with the jury process, so Ford chose not to

pay the three million dollars and to defend any breach of contract claim in court. Tassie

explained, “If they could go around the rules, ignore the rules and indicate that one

person could indicate that the jury has already decided and you’ve lost when, in fact,

that isn’t the case, then we can’t make our decisions and do what we think is right going

forward.” Tassie stated that Ford was not paying the three million dollars because “the




        8
          Again, we note that the jury charge had no such instruction. It merely instructed the jury not to
answer the questions on damages if they answered no to questions one and two. The jury was not
instructed that it could not discuss damages unless it answered questions one or two affirmatively.


                                                    9
entire process” was at stake and that “we count on when we go in for that process is

that we’re going to get a fair trial by a jury of 12 people, not a jury of one.”

         According to Tassie, he relied on the complained-of note and “everything

changed when this note came out.” Tassie testified that he would not have settled with

Cantu for three million dollars if that note had not been sent. Tassie stated that the note

could only have meant that the jury was deliberating damages in the case. When

asked, “Did you rely on this note as being accurate and reflective of the deliberation

process when you went out and got authority for $3,000,000.00,” Tassie replied, “Yes,

sir.” Tassie also responded, “Yes sir” to, “And did you later find out that that was not

true?”

         On cross-examination, Tassie urged that the jury was not allowed to discuss

damages unless it determined that Ford was liable. When asked, “[W]here does it say

the question must be answered in order in the jury instructions,” Tassie replied, “It

doesn’t say they have to be answered in order.            It says you’re not to answer the

damages question until you’ve answered—unless you’ve answered No.1 or No. 2 yes.”

         Tassie claimed that the complained-of note led Ford to settle the case with

appellants. Tassie stated that the complained-of note was not from the jury as a whole

but that the foreperson had sent the note out without the other jurors’ knowledge.

Tassie claimed that Ford’s evidence supporting its position was “that one juror sent out

a note on behalf of the whole jury that the rest of the jury did not even know about or

didn’t agree with, and that was the basis for us settling the case for $3,000,000.00.”

         Cantu testified that he did not participate in the courtroom as appellants’

advocate but that he was in the courtroom every day of the trial and had the sole



                                              10
authority to enter into a settlement agreement. Cantu recalled that Tassie had offered

$2.3 million, and that Cantu had demanded three million dollars on the night before they

entered into the settlement agreement. Cantu had authority to settle for three million

dollars.

       Cantu explained that the accident causing appellants’ injuries occurred on a trip

back to the United States from Mexico outside of San Luis Potosi, Mexico and that all of

the occupants were wearing their seatbelts. Rosa was the only occupant seriously

injured, while the other occupants “walked away from the accident.”

       Cantu testified that the attorneys were merely guessing about the jury’s

deliberations based on the jury’s questions sent to the trial court. He said, “So, [the jury]

had a question on preponderance of the evidence and beyond a reasonable doubt.

There was never any discussions on the case of beyond a reasonable doubt. It was not

a criminal case. It was preponderance of the evidence. . . .” Cantu explained that

based on his experience, it is never clear what the jury is going to do. Cantu said, “If I

knew what a jury was going to do . . . I’d probably be in New York City right now as a

jury consultant and making millions of dollars.”

       When asked if he recalled telling Tassie that his demand would increase to three

million dollars if the jury sent out a note on damages, Cantu stated, “Absolutely not.”

Cantu explained:

              What I remember talking to him that day before was that I wanted
       $3,000,000.00 and he was at $2.3 million. That’s what I remember. I
       don’t remember saying anything about—but it stands to reason that if I got
       a jury note that said what is the maximum amount that can be awarded, I
       should have gone to 5,000,000 or $7,000,000.00, but I didn’t because I
       knew that I had problems with the appellate process with what the
       appellate court was going to do.



                                             11
               I had problems with Nash, my expert. I didn’t know whether his
       testimony was going to be scrutinized by the [Texas] Supreme Court and
       struck.

Cantu claimed that it was Tassie who informed him about the jury note concerning

damages. After receiving notice of the note, the parties settled the case for three million

dollars. Cantu acknowledged that he had never seen a note like the complained-of note

before.

       Cantu testified that the jury charge did not have any instructions concerning how

the jury notes were to be sent to the trial court, and he could not tell from the notes

alone whether the entire jury had asked the question or whether only a few jurors or one

juror had asked the question. Cantu stated that he was not going to rely on the note

and request more than three million dollars, and he believed Ford should not have relied

on the note either. According to Cantu, had he actually relied on the note, his demand

could have increased to seven million, eight million, or ten million dollars. He only had a

jury note and did not know if one or more jurors had the question; so Cantu stated he

decided to settle the case when Tassie’s offer went up to three million dollars.

       Cantu asserted that, because the jury charge did not address the issue of jury

notes, the jury was free to ask any question it wanted to ask. Cantu opined that “you

never know what a jury is going to ask. And you cannot rely on one question or two

questions.” Cantu pointed out that a note was later found, which had not been received

by the trial court because the parties settled. Cantu recalled that the note asked how

the money would be distributed between the attorneys and the families.              Cantu

explained that, had he seen this note, he would have believed that the jury was

       maybe worried about different issues, and [that it was] not answering
       question 1 or 2 or 3 or 4, but [that it] wanted to know maybe—maybe the

                                            12
      jury didn’t like my—my—the attorney that was—that tried the case for me,
      or maybe the attorneys were liked. You never know what a jury is
      thinking. I don’t know—I know that Cindy Cortez sent that note out, but
      how many jurors asked for that, I have no idea.

       Rodriguez, Ford’s trial attorney in the personal injury case, testified that he did

not recall ever seeing a note such as the complained-of note in this case in almost forty

years of practicing law. Rodriguez explained that the jury charge in the personal injury

case was a conditional charge because the jury would not reach the issue of damages

unless it found Ford liable. Rodriguez stated that the complained-of note gave him

“information that—that the jury had already decided the issue of liability and they were

deciding how much damages to award.”

      Rodriguez recalled that the night before the settlement agreement, Tassie had

made an offer somewhere in the range of $1.2 million and Cantu had demanded

somewhere in the range of $2.9 million. Rodriguez believed that the only reason the

offer went up to three million dollars the next day was due to the complained-of note.

      After the parties settled, Rodriguez went to talk to the members of the jury;

however, Cortez left before Rodriguez entered the jury room. Rodriguez stated that one

of the jurors said, “Look we set aside all the—all the damage documents. They’re over

here. We hadn’t gotten to them.”

      On cross-examination, Rodriguez stated that he was concerned about the

complained-of note because “in [his] 40-some years, or at that point 30-some-5 or 39,

36 years of practice and trying over 200 cases, I had never come across a situation

where the foreperson of the jury had sent a note on his or her own, without the other

jurors approving of that note.” Rodriguez explained that he was told by the jurors that

they told Cortez not to send out the note and that they had voted eleven to one on

                                           13
question one in favor of Ford. Rodriguez also recalled that several of the jurors told him

that Cortez would send a note to the trial court only if all of the jurors agreed to send the

note.

        Cortez testified that she was the foreperson in the personal injury case in 2005.

Cortez could not remember how she became the foreperson but thought that the other

jurors probably elected her foreperson.           Cortez agreed that there had to be a

“consensus” before a note was sent to the trial court and that the communications were

to come from the jury as a whole. Cortez acknowledged that the jury was not supposed

to answer any questions on damages unless it had answered yes to either question

one, two, or both. Cortez recalled that notes were sent to the trial court; however, she

could not recall any specific notes she wrote. Cortez acknowledged that all of the jurors

agreed to send the note to the trial court asking to clarify the difference between

preponderance of the evidence and beyond a reasonable doubt and that she included

the explanation that some of the jurors were confused. Regarding the complained-of

note, Cortez said, “I’m not really sure why we asked that question” and that “[i]t was

obviously something we [the jury] discussed together . . . .” Cortez assumed that the

jurors discussed the complained-of note because it was the procedure to do so.

However, Cortez did not remember discussing any of the jury’s notes. Cortez stated

that she did not believe that she would have sent the complained-of note to the trial

court without the other jurors’ agreement because she followed that procedure. Cortez

denied talking to anyone other than the other jurors about the personal injury case and

denied talking to lawyers during the pendency of the personal injury case.




                                             14
       On cross-examination, Cortez testified that she was not aware that Ford’s

attorneys and appellants’ attorneys were reading the notes she sent to the trial court.

She stated, “I thought they [the notes] were just going to the judge.”

       Benigno “Trey” Martinez testified as an expert witness for Ford.                            Martinez

explained that the jury communicates with the trial court via the presiding juror who

sends notes to the trial court. When a jury note is received, the trial court usually allows

the attorneys on each side an opportunity to read the note. Both sides then attempt to

determine what the note means.                 Martinez opined that “jury notes would affect

anybody’s decision in coming to an opinion or a decision on a case.”                               Martinez

explained that when attorneys read jury notes, “they’re going to try and guess where

they’re [the jury] at based upon the notes that are out there, so, yes, it’s [knowing that a

jury charge is conditional is] important.”

       Martinez stated that knowing that a jury had answered the questions on liability

and were now deliberating damages would be material and important and that he would

rely upon that note to make decisions concerning a case.9 Martinez testified that any

time a note is sent to the trial court, he presumes that it has been asked by the entire

jury. Martinez agreed that any juror could ask the foreperson to ask any question;

however, once the foreperson asks the question, it is on behalf of the entire jury.

Martinez believed that the jury notes “should be reflective of the deliberation process of

the case at hand. And when the judge receives a note, she doesn’t go back and sit

there and say a juror has a question. She comes back to the lawyer and says the jury

has a question. . . .”


       9
           The complained-of note did not state that the jury had answered any of the questions.


                                                    15
       Martinez opined that the complained-of note in this case was important to

evaluating a lawyer’s decision in the case. When asked if he had ever seen or heard of

a note like the complained-of note, Martinez responded that he had only heard of a jury

note asking, “How many zeros in 10 billion?” Martinez stated that the complained-of

note would affect negotiations between the parties. Martinez testified that, based on the

note, he would “know that they [the jury] are on the damages question . . . .”

       On cross-examination, Martinez stated that he did not know “if the jurors would

know that the lawyers can see the notes. They send it to the judge.” Martinez was not

surprised that Cortez testified that she did not know that the lawyers were reading the

jury notes. He said, “I would think that most jurors would think that a note was going to

be a direct communication with the court.” Regarding reliance on the note, Martinez

stated, “You take these notes and you take your best—your best guess, your best

educated guess as to what . . . . It’s not just—it’s an educated guess, because you’re

going to take that and then go rely on it in order to negotiate and do whatever it is that

you’re doing.” Martinez acknowledged that he had been involved in cases where he is

surprised by the results based on the jury notes. Martinez testified that if he were the

plaintiffs’ attorney and read the complained-of jury note, he would “know that they [the

jury] have gone passed [sic]” the questions on liability.

       Christina Gamez testified that she was a juror in the personal injury case.

Gamez did not know that Cortez sent the complained-of note to the trial court. Gamez

stated that the complained-of note did not reflect the jury’s discussions and that the jury

as a whole had not discussed the maximum amounts that could be awarded. Gamez

was told of the note when lawyers asked her for a deposition. Gamez testified that the



                                             16
settlement agreement was unexpected; she said, “They took, you know, about a month,

month and a half of our time for nothing because we didn’t do our part in any of it at the

end.”   Gamez said that the jury had not answered question number two, and she

believed that it was half for Ford and half against.

        When asked, “Looking at this note now, ‘What is the maximum amount that can

be awarded,’ can you see how that question might have had impact on those lawyers

who were waiting on the jury deliberations,” Gamez replied, “Yes.” Gamez agreed that

the note could have led Ford’s attorneys to believe the jury was deliberating damages.

Gamez stated that the jury was not discussing damages. Gamez did not believe that

Cortez had faithfully executed her duties as the presiding juror.

        Gamez explained that the note regarding confusion between preponderance of

the evidence and beyond a reasonable doubt was relevant to the jury’s discussions and

that all of the jurors agreed that Cortez should send that note to the trial court. Gamez

stated that when the settlement occurred, eight jurors were for Ford, and she believed

that they were getting closer to a verdict.         When asked how she felt about the

complained-of note, Gamez said, “Disappointing. It was very disappointing. I had no

idea it had been sent out. I still question, to this day, why she would send that note.”

Gamez felt that it was strange that Cortez did not stay to exchange phone numbers with

the other jurors or to talk to the lawyers after the parties settled.

        On cross-examination, Cantu asked Gamez if she remembered which particular

juror was confused regarding preponderance of the evidence versus beyond a

reasonable doubt, and Gamez replied, “I’m going to think I was one of them, because to

this day, I don’t know the difference.” When asked how she could have answered no to



                                              17
question number one if she was still confused about the difference between

preponderance of the evidence and beyond a reasonable doubt, Gamez said, “I didn’t

understand the difference between those two words, no, but in all our discussion, and

how we related to the question, and our interpretation of what it meant, my answer to it

was ‘no.’”

       Gamez stated that she felt “cheated” by the settlement agreement

       because of one person’s idea to send a note on her own, with her own
       question, not asking the rest of us our opinion about that question, or
       anything like that, she sent it on her own. Because of her, our six weeks,
       you know, close to two months, all our time that we gave to this was down
       the drain. You know, we didn’t get to participate. We didn’t—we were
       there for nothing. They wasted our time.

When asked whether she had already determined question number two in Ford’s favor,

Gamez said that she had not decided yet and that she had answered no to question

number one concerning the roof of the Explorer, but she “didn’t know the rest of the

questions. That didn’t make [her] decide on anybody [sic] yet.” Gamez elaborated, “I’m

not sure if I would have answered ‘yes’ or ‘no’ that would have made it that she gets all

this money. I didn’t answer the question, I’m still undecided. I didn’t get enough facts or

enough knowledge to know whether this vehicle was defective enough or not.” Gamez

agreed that if she had found Ford liable she could have conceivably voted to award up

to $35 million for Rosa’s injuries.

       Cantu read a statement to Gamez by Rosa Linda Salinas, another juror in the

personal injury case, stating that there were about three or four other jurors who

believed that the complained-of question was inappropriate. When asked if there were

eight jurors who wanted Cortez to ask the question, Gamez said, “I don’t remember.”

Cantu reminded Gamez that she had said she saw the note asking, “Who gets to decide

                                            18
how the money is distributed between [the] attorneys and the family” and that the jury

was “discussing the lady in the wheelchair [Rosa], and we all felt for her because for the

rest of her life, she was going to be in a wheelchair. And we did kind of talk about her

medical expenses for the rest of her life.” Gamez testified that she recalled that she had

made these statements and that the jury had been discussing that issue.

       Esmeralda Cuellar, a juror in the personal injury case, testified that the personal

injury trial took approximately one month, and she took her duties as a juror seriously.

Cuellar recalled that no one wanted to be the foreperson, and Cortez said that she

would do it if no one had a problem with her taking the position. Because no one

wanted to take the role, everyone agreed to let Cortez be the foreperson. Cuellar stated

that all of the jurors quickly decided to answer the first question on Ford’s liability, “no.”

       According to Cuellar, Cortez would send out a note to the trial court only after the

entire jury discussed the note and agreed to send it.               Cuellar stated that the

complained-of note was sent without the agreement of the entire jury and did not reflect

any of the jury’s discussions. Cuellar testified that “about three” jurors told her that they

did not agree with sending the complained-of note to the trial court. Cuellar did not

approve of sending the complained-of note. Cuellar stated that the complained-of note

did not reflect the jury’s discussions because the jury was not discussing “any type of

money.” Cuellar agreed that the complained-of note could be misleading to others who

may have believed the jury was discussing damages.              Cuellar stated that she “felt

cheated in a sense. It shouldn’t have been decided by one person.” Cuellar still felt

cheated because she “wasn’t accounted for. [She] never agreed for [the complained-of]

note to be sent out.”



                                              19
       On cross-examination, Cuellar testified that the jury had not decided the second

question on liability in Ford’s favor. Cuellar could not find any instructions in the trial

court’s jury charge stating that the jury had to unanimously agree before the foreperson

sent a question to the trial court.10 Cuellar explained that during deliberations, she and

about four other jurors were in the corner discussing question two, and “we didn’t find

out about [the complained-of] note after we—because when you’re in the jury room,

you’re all talking at the same time.” Cuellar agreed that it can be confusing because

“you’re all talking about the stuff that you need and all of that.” Cuellar clarified that

when she said “we didn’t find out” about the complained-of note, she was referring to

herself and the four or five jurors who were “where the wall is” in the corner discussing

that Ford was not liable for the accident. Cuellar stated that those jurors “did not hear

[the complained-of] question because [they] were still deliberating. [They] were talking

about the information that was given to [them].” When asked if she could have changed

her mind and decided that Ford was liable for the accident, Cuellar responded, “Oh,

yes, because we were barely on Question No. 2.” Cuellar agreed that she did not know

how the jury would have voted, and it could have found Ford liable.

       Salinas testified that she served on the jury in the personal injury case

approximately five years earlier.            Salinas recalled that the jury did not vote for a

foreperson because Cortez said she would do it unless anyone had any objections.

Salinas explained that the jury’s procedure for sending notes to the trial court was to

discuss “what was going out” and then Cortez would write the note and send it to the




       10
            The jury charge contains no such instruction.


                                                     20
judge. According to Salinas, before sending the notes to the judge, Cortez would ask

for approval from the other members of the jury.

       Salinas testified that the jurors had not agreed to send out the complained-of

note, that the jury had not discussed how much it would potentially award appellants,

and that it was not reviewing the questions concerning damages. Salinas did not find

out about the complained-of note until the parties settled, and the jury was called back

into the courtroom. When asked if that complained-of note was a reflection of the jury’s

discussions, Salinas replied, “No.     [Cortez] had brought that question up that she

wanted to know, and we had told her that that wasn’t an appropriate question to ask,

since we had not answered Question No. 2, and we were not even close to any—

knowing or having to do anything with that.”

       Salinas stated that before sending the complained-of note to the trial court,

Cortez did not ask the jurors in her presence for approval. Salinas was surprised that

the complained-of note had been sent to the trial court, “[b]ecause it had been

discussed that we weren’t going to ask that question.” Salinas felt that Cortez, “didn’t let

[the jury] finish [its] job[]. She asked something that she was told not to ask, and, you

know, I—I felt like I was cheated. I was cheated because she did not do what we asked

her to do.”   Salinas did not believe there was any reason for Cortez to send the

complained-of note to the trial court. Salinas thought it was reasonable for the lawyers

to think that the jury was considering damages and that it was “very misleading” to Ford.

To Salinas’s knowledge, no other juror had asked Cortez to ask the complained-of

question.




                                            21
       On cross-examination, Salinas testified that the jury had not answered either of

the two questions concerning Ford’s liability—questions one and two. Salinas did not

recall the amount of votes for each side, but only recalled that the jury had not come to

an agreement on liability. Salinas agreed that she and two of the other jurors, Virginia

White and Cuellar, felt “cheated,” and that she was still “[a] little bit” angry. Salinas

stated that she had voted in favor of Ford and was upset that Rosa was getting three

million dollars from Ford.

       Salinas acknowledged that she and two other jurors—Ester Hernandez and

White—had become friends. Salinas had last spoken with White one week prior to her

testimony.   Salinas testified that when she had lunch with these jurors, they had

discussed the complained-of note. Salinas said that they felt cheated.

       Salinas stated that during deliberations, Cortez had said “that the only way that

you can get anything is by suing.       She did make that comment. . . . And I know,

because I got into it with her.” When asked, “You argued with [Cortez],” Salinas replied,

“Yes. . . . I told her that that was not true. I said, ‘I work for a company where just

because you don’t like something doesn’t mean you have to take them to court.’”

Salinas elaborated, “I mean, just because you don’t like something or something

happens to you doesn’t mean that life has to be easy for you because you have to go

and sue somebody to get money.”

       Cantu reminded Salinas that in a statement given approximately one month after

the personal injury trial, she agreed that she made it clear to Cortez that she did not

want the damages note to be sent to the judge. She stated, “I did tell her that I didn’t

think that that was the right question to ask, and I didn’t think the judge could give us an



                                            22
answer.” Salinas testified that Cortez had requested permission to ask the question but

“we told her not to.”     Salinas said that Cortez “brought it up, and . . . we had a

discussion about that, and she asked, ‘Should I ask?’ And we told her, ‘No.’ But we

didn’t know that she had written down that question.” Salinas claimed that Cortez sent

the note to the trial court without any of the jurors’ knowledge.

       White testified that the personal injury trial took approximately six weeks. White

stated that the jury all agreed to answer the first question in favor of Ford; initially,

Cortez had voted “yes” to question one but had “changed her mind” and the jurors all

agreed to answer “no.” The jury had still been deliberating question two when Cortez

sent the complained-of note to the trial court.       Regarding the second question on

liability, White said that some of the jurors “felt that Ford was at fault and some of us felt

that they were not to be held responsible for it.” White believed that six or seven jurors

were for Ford and “about four—four of them were holding out. . . .” White explained that

several of the jurors “were coming around” and were on the verge of finding that Ford

was not liable for the accident before the case settled.            When asked if the jury

discussed damages, White responded, “It was attempted [by Cortez]. It was attempted

several times, and we would keep bringing it back to No. 2 several times. It was told

that we need to focus on No. 2, we could not go on with the rest of the issues that stand

until all—1 and 2 were answered.” White testified that Cortez “kept saying, ‘I wonder

how much money would be involved? I wonder who would get it,’ comments like that

continued. And then we would try—we would tell her—one [] particular person would

tell her, ‘That’s not the issue right now. We need to get back to answering No. 2.’”




                                             23
White said that although the jury was instructed to answer questions one and two before

answering the questions on damages, the discussion “kept going in that direction.”

       White stated that none of the notes that Cortez sent to the trial court were seen

by the other jurors and they did not know what was written in the notes. The notes were

discussed and then Cortez would write it down and send it. According to White, the

jurors never exactly set out that they had to agree to send a note before Cortez sent it.

White did not know about the complained-of note, and it was not reflective of any of the

jury’s deliberations regarding question two. White did not believe there was a reason

for Cortez to send out the complained-of note and there had not been any discussions

regarding the maximum amount of damages. White said that she did not know why

Cortez sent the complained-of note, but that on that day, Cortez “came in and she was

very happy, very upbeat. [Cortez] said, ‘This will be settled today. I reviewed what I

want to talk to you-all about, and we’ll be out of here.’” White discovered that Cortez

had sent the complained-of note after the case settled. When asked if the jury was

discussing damages, White responded, “We were not.            Just—[Cortez] would start

thinking about it, talking about it, but we would tell her, you know, ‘Let’s go back to No.

2.’” White could see how the complained-of note could be misleading.

       On cross-examination, White stated that she has had lunch on several occasions

with some of the other jurors including Salinas and Cuellar. White testified that she was

not aware of any contacts or outside influence Cantu or his law firm may have had on

Cortez either directly or through an agent. White denied telling Ford’s attorneys, “[W]hy

did you settle the case? Ford was going to win.” White was disappointed that Ford

“was held [liable] for [Rosa’s injuries].” White acknowledged that she had stated that



                                            24
she was not going to vote that Ford “deliberately put out a vehicle to injure people when

that was not even a question that was asked . . . .” White testified that based on the

evidence presented, she wanted Ford to win the case.

      When asked if she felt cheated, White replied, “Not cheated, no I wouldn’t say

cheated. . . . I guess it was a lot of disappointment. I was very disappointed, yes, that

Ford didn’t win.” White stated that she discovered that the lawyers had been reading

the jury’s notes after the case settled and the judge let the jury know that the lawyers

used the notes to determine what the jury was discussing. White was not aware that

Tassie had made an offer to settle the case even before the complained-of note had

been sent. White never asked Cortez why she sent the complained-of note to the trial

court. White acknowledged that she had previously stated that “I wish this had never

happened to Ford Motor Company. I—I feel maybe I failed in trying to get my point

across, but this was so much to look at and not enough time was given to us.” When

asked if she felt sympathy for Rosa, White said:

               Sir, what I believed and what I went in there for, and what I listened
      to evidence, and what I read, that’s how I voted. . . . I work . . . and I pay
      insurance for—I pay three insurances. I pay work to—to have insurance if
      I’m not able to work. Now, yes, it’s a shame [Rosa] is like that, but, sir, I
      can—I can give you a list of things that’s a shame. I have people in my
      own family that—that they’re—they’re hurt. They have things going on in
      their life, but I’m not trying to find somebody to pay for it or to keep them
      living in a nursing home for the rest of their life [sic]. So where is the fault
      for this gentleman that was driving the car [involved in the accident]? Why
      is it that big companies always have to pay for someone’s fault that down
      [sic] here on the bottom of a ladder? And that’s how I believe, and you’re
      not going to change my mind and tell me that Ford ran out to try to settle
      when you took the settlement too for a lot less if you’d known—if you
      would have known that jury would have voted your way, you would never
      have settled for 3,000,000, not when you read cigarette companies are
      getting [sic] 20 $30,000,000.00 lawsuits. I—I don’t believe it.




                                            25
         Samuel Ramirez Jr., a juror in the personal injury case, testified that Cortez

volunteered to be the jury’s foreperson, and he did not object. Ramirez recalled that the

judge told the jury that in order to send a note, the members of the jury had to

unanimously agree to ask the question or send the note. Ramirez stated that the jury

would discuss a note and if they all agreed, Cortez would send the note to the trial

court.

         Ramirez testified that the jury was deliberating the second question on Ford’s

liability and that eight jurors intended to vote in favor of Ford, two intended to vote in

favor of appellants, and “two were still skeptical to say ‘yes’ or ‘no.’”

         Ramirez did not know that Cortez decided to send the complained-of note to the

trial court. Ramirez stated that Cortez had

         mentioned about what would be the percentages, and I told her, “Well, we
         haven’t even gotten to the—you know, the money factor part of the case,
         so we need to first answer this particular question, Question No. 2, which
         then—well, if we would have answered all of us as a unanimous yes, then
         we’d go into the financial status of the case.”

According to Ramirez, the jury was not discussing the maximum amount of damages

that could be awarded to appellants. Ramirez explained,

         The only one that brought up that question, that she wanted to know
         percentage, was [Cortez]. And I recall me and—I believe it’s a white lady,
         I believe Ms. White, we said, “Well, we, more or less have our”—we heard
         it mentioned during the course of the trial some percentages, but we—
         some of us wrote it, and I wrote it. I don’t recall what were the
         percentages, but with my experience, usually it’s between 30 percent, I
         believe, that usually the attorney gets if they win the case. And I asked
         her, “Would you like to see my notes?” And she replied, “No.”

Ramirez agreed that the complained-of note was not relevant to the jury’s discussion

regarding question two.      Ramirez testified that the jury did not agree to send the

complained-of note to the trial court. Ramirez could see how the complained-of note

                                              26
could impact Ford and cause Ford to settle the case. Ramirez stated that the jury was

not in fact discussing the maximum amount of damages.

      2.     Appellants

      Joe Saurez, a juror in the personal injury case, testified that the jury had

discussed the question Cortez asked in the complained-of note. Saurez stated,

              I was actually like on the jury table sitting right next to [Cortez], so I
      actually saw her when she wrote it and told everybody if they had any
      problem with her sending it. But since everybody at that time was talking
      like different amounts, I’m not sure if other people heard it. . . . [S]ince
      everybody was talking about the maximum amount, there was [sic] other
      people that were saying it, and then I know she was talking to other
      people to see if others agreed with that. . . . With that question, to send it
      out.

Saurez claimed that he told Cortez to send the complained-of note to the trial court.

Saurez observed Cortez knock on the door of the jury room and give the complained-of

note to the bailiff. When asked, “[T]hey’re saying that somehow [the complained-of]

note was sent by [Cortez] without any of the jurors knowing. Is that a true statement,”

Saurez replied, “No, sir.”    Saurez recalled that there were discussions about the

maximum amount that could be awarded, “Because everybody was saying like, ‘Oh,

you can’t say poor Rosa is going to get the money, since most of the lawyers are going

to get most of the—the money awarded to her.’” Saurez remembered discussing the

question, “Who gets to decide how the money is distributed between [the] attorneys and

the family?” However, Saurez did not recall Cortez sending that note to the trial court.

Saurez testified that some of the jurors, including White, were saying that “most” of the

money would go to appellants’ lawyers.             When asked if the jurors discussed

percentages, Saurez said, “Yes. I believe it was like five or 10 percent that was going to

be just for her and the rest for the lawyers.” Saurez believed that the judge was the only

                                             27
person reading the jury’s notes and that the other jurors had the same impression.

Saurez had voted in favor of Ford on question one. Saurez did not think that the jury

had reached a decision on question two.

         On cross-examination by Ford, Saurez stated that he did not know that the

lawyers in the personal injury case were reading the jury’s notes. Saurez clarified that

he did not know whether the other jurors knew that the lawyers were reading the notes.

Saurez agreed that if the jury had discussed money it was not in reference to question

two. Saurez could not recall whether other jurors objected to sending the complained-of

note to the trial court. Saurez stated that he had not asked the complained-of question,

but that he did tell Cortez to send it “so everybody could be [one] hundred percent

sure. . . .” Saurez said that “there was [sic] other jurors that were asking [about the

maximum amount of damages that could be awarded besides Cortez], that’s why we

[the jury] were discussing it. So it wasn’t just like one person talking back to somebody

else.”

         On re-direct examination, Saurez stated that “[a] lot of people knew about [the

complained-of] note.” Saurez “knew” that other members of the jury were talking about

how much money the lawyers were going to make and that the jury was discussing

money and damages.

         Maria Ofelia Ramos, a juror in the personal injury case, testified that for the most

part, she was “for Ms. Rosa Martinez,” and she did not vote in favor of Ford. Ramos

remembered White as being “for the Ford Company.”             Ramos stated that she was

familiar with the complained-of note because she had told Cortez to ask the question.

Ramos stated, “I was the one that had asked the question, yes, but I never knew if she



                                              28
had turned it in or not.” Ramos recalled that “everybody” was talking about money.

Ramos testified that she told Cortez to ask the complained-of question “[b]ecause [she]

figured that Ms. Rosa Martinez was, you know, liable to get what she deserved, her

money coming from Ford. It was only right for her to get her money.”

       On cross-examination by Ford, Ramos acknowledged that she never disclosed to

Ford’s attorneys that she told Cortez to ask the complained-of question. Ramos agreed

that in order for the system to work, the jury notes should be approved by all of the

jurors. Ramos stated that the jury had been discussing the note and “We were all there

together and she said that she was going to send it in, but that’s it. I don’t recall

whether she sent it in or not. But the rest of the other notes, all of them were going into

[the judge’s] hands, so I imagine that if she was going to write it, it was going to get to

[the judge’s] hands, too, like all the other ones.” Ramos did not recall whether any of

the other jurors were aware of the complained-of note.

       On re-direct examination, Ramos reiterated that she asked Cortez to send the

complained-of note. Ramos stated, “I wanted to know whether [Rosa] was going to

come into her money, which was only fair to get whatever she deserves, and that was

my question.”

       Efrain Garcia, a juror in the personal injury case, testified that Cortez was the

presiding juror on the case and was in charge of sending notes to the trial court. When

asked who he believed was reading the jury’s notes, Garcia responded, “We just

thought of it being by the judge.” Garcia did not know that the attorneys were reading

the jury’s notes. Garcia was asked why Cortez sent the complained-of note, and he

responded, “A lot of people were still debating whether—who to pick for and then there



                                            29
were some comments made, ‘Well, all the money is going to go out to the lawyers’

where people were saying, ‘Let’s ask.’ I know [Ramos] was one of them who asked,

and some other jurors asked, also, ‘Let’s go ahead and ask how much money would be

awarded.’” Garcia recalled that Ramos and several other jurors wanted Cortez to ask

the complained-of question.

       On re-direct examination, Garcia agreed that the complained-of note did not

pertain to question two and that others reading the note may have assumed that the jury

was deliberating damages.       Garcia recalled that other jurors had objected to the

complained-of note and that the jury “really didn’t say not to send it out.” Garcia did not

recall anyone specifically saying not to send that note to the judge. However, Garcia

agreed that other jurors had voiced objections to the complained-of note. Garcia did not

believe that the question was helpful.

       Maritza Lopez, a juror in the personal injury case, testified that some of the jurors

wanted to know the maximum amount of damages that could be awarded and how the

money would be divided. Lopez said that the jurors argued over the complained-of

note; some of the jurors said that the complained-of question was premature and others

stated, “it’s just a question.” According to Lopez, the jurors were aware that Cortez was

sending out the complained-of note.

       On cross-examination, Lopez agreed that she had voted “no” to question one on

the liability issue in favor of Ford. Lopez acknowledged that the jury was instructed to

answer the two liability questions before answering the questions on damages. Lopez

stated that she did not authorize Cortez to send the complained-of note to the trial court.

When asked if any other juror authorized the complained-of note, Lopez replied, “I



                                            30
wouldn’t know if somebody did or not because there was a lot of talking. . . . I heard

some people saying it was okay to be sent out, I just don’t know who did by name.”

Ford’s counsel pointed out that, five years earlier, Lopez stated that no other juror had

authorized Cortez to send out the complained-of note.

         On re-direct examination, Lopez stated that she did not know that the attorneys

were reading the jury’s notes. Lopez believed that only the judge was reading the

notes.

         Rosalinda Mendez, a juror in the personal injury case, testified that she recalled

“we were all talking. ‘Well, how much is [Rosa] going to get because we need to know if

she’s going to get something?’ And [Ramos] told [Cortez] to ask Judge Limas how

much the maximum was [Rosa] was going to get, so she started writing it and called

the . . . bailiff. And gave it to him to give it [the complained-of note] to Judge Limas.”

When asked if she was aware that the lawyers for both sides were reading the notes,

Mendez stated that she thought only the judge was reading the notes. Mendez recalled

that “everybody” sitting around her was talking about how much money Rosa would get

and how much money the lawyers would receive. Mendez testified that Cortez wrote

the question, “Who gets to decide how the money is distributed between [the] attorneys

and the family” “[b]ecause we were afraid that the lawyers would get more than Rosa

would.” According to Mendez, the jurors argued about how much money Rosa would

receive.

         Regarding the complained-of note, Mendez recalled that the jurors had

discussed sending it out. Mendez said,

         I remember that they were saying, “Well, let’s ask them how much—how
         much they’re going to be distributed, how much, you know, every—if the

                                             31
      judge is going to take so much out of her and all that.” And then they
      started saying, “Okay. Let’s send it.” And she would write it. She didn’t
      show it to us, but she wrote it and then she gave it to the [bailiff].

      Appellants recalled Mendez to testify the day after her testimony. On recall direct

examination, Mendez stated that she had called Cantu after she testified and asked him

why he had not asked her questions concerning how Ford had treated her. Mendez

wanted to discuss how Ford had treated her when its investigators went to her home

and interviewed her shortly after the personal injury case ended. Mendez said,

              After two, three weeks when they came to see me, they came and
      they had a recorder. There were two men with a recorder and they would
      ask me, “Rosalinda, when—when—did you have Friday off? Do you
      remember?” And I said, “No.” “Are you sure?” I said, “Well, no, I don’t
      remember. I’m sorry. I don’t remember.” Because then he would get
      frustrated or either mad. I don’t know. He would tell the other man to stop
      the recording and rewind it and he would tell me, “Don’t you remember
      that you went to a football game?” And I go, “I don’t go to football games.
      I don’t like football games. So I don’t remember why they gave us off.”
      “Oh, did you go early?” “I don’t remember.” So I don’t remember. And
      then he would tell me, “Well, remember here, here, here. You went to—
      they told you to go home because you went to a football game.” And I
      said, “I don’t go to football games, so I don’t remember when it was. It
      could have been Monday, Tuesday, Wednesday. I don’t remember.”

             So he would tell me what to say, and I said, “Okay.” But everything
      was, to me, no, because I didn’t remember.

      When asked if the men would record her statement and then rewind the tape,

Mendez replied, “Yeah. And then he would get frustrated with me because I didn’t

remember.” Mendez recalled that the men were at her home for approximately two

hours. Mendez claimed that the men did not “like” what she was telling them because

“they would turn [the recorder] off and rewind it so they could—so they could tell me.”

Mendez felt that the men “took advantage” of her because “they were forcing [her] to

answer questions that [she] didn’t remember.” When asked if the men “were putting



                                          32
words in [her] mouth,” Mendez replied, “Well, I—I say yes.” Mendez stated that she felt

intimidated by the men.

       On cross-examination, Mendez was asked if she remembered telling the men

that she did not feel threatened. Ford showed Mendez the transcript of her statement

and she read into the record that she was asked by the interviewer if he had threatened

her in any way, and that she had responded, “No, no, no.”

       Rosa testified that she was in the accident on July 13, 2002 after visiting a

church in San Juan de los Lagos, Mexico. At the time of this trial, it had been seven

years since the accident and Rosa was fifty-two-years-old. Rosa has lived in a nursing

home in Brownsville, Texas since August 30, 2002. Rosa has been in and out of the

hospital over the past seven years approximately twelve times due to a kidney infection.

Rosa usually stayed in the hospital for about ten to fifteen days.

       Rosa recalled that five years prior to this trial, Ford entered an agreement to pay

her three million dollars. Rosa stated that Ford had not paid the money to her.

       When asked if she understood that “Ford is saying that you, Rosa Martinez,

through somehow, either through me, or an agent, they have to prove that you knew

and somehow you got [Cortez] to send out a note,” Rosa replied, “Yes.” Rosa testified

that she did not “know” Cortez “until the day before yesterday when she came to testify,

that’s when I saw her.” Rosa stated that she knew that Cortez had been a juror but that

she did not know Cortez personally. Rosa said that she did not know any of the people

who presided as jurors in the personal injury case. Rosa denied telling Cortez to send

out the complained-of note and stated that she had never spoken with Cortez.




                                            33
C.      Fraud

        Question number three in the jury charge asked, “Was the note, ‘What is the

maximum amount that can be awarded,’ sent by Cynthia Cortez for the purpose of

fraudulently inducing Ford to settle with the Castillo family?” The jury answered, “Yes.”

The jury was instructed, “If you have answered the preceding Question [number three]

‘yes’ then answer the following Question No. 4. Otherwise, do not answer question No.

4.” Question number four asked:

              Was the note, “What is the maximum amount that can be
        awarded”—

                1. a material misrepresentation;

                2. sent by or at the direction of plaintiffs [appellants] or their agents
                   or representatives with the knowledge it was false;

                3. with the intent that Ford Motor Company rely on the
                   representation;

                4. that Ford Motor Company did not know the representation was
                   false and actually and justifiably relied upon the representation;
                   and

                5. that Ford Motor Company detrimentally relied on                             the
                   representation by entering into the settlement agreement.

The jury answered “Yes” to question number four.11

        Viewing the evidence in the light most favorable to the verdict, we conclude that

the jury could have found by a preponderance of the evidence: (1) that Cortez sent out

a note asking “What is the maximum amount of damages that can be awarded?” without

the consent and knowledge of many of the jurors; (2) that Ford inferred from the note

that the jury had already found Ford liable and was determining what damages to award

        11
         We note that although the jury answered question four affirmatively, in the jury charge, there
are handwritten checkmarks written after 1, 4, and 5 and a “y” written after 3. Nothing is written after 2.


                                                    34
to appellants; (3) that in fact, the jury had not yet found Ford liable for the accident

causing appellants’ injuries when the note was sent to the trial court; (4) that there were

two questions regarding Ford’s liability; (5) that ten jurors had answered question one

“No” and found Ford not liable under appellants’ first theory of recovery; (6) that eight

jurors had already expressed the opinion that Ford was not liable under question two;

(7) that Cortez was the only juror who wanted to answer the first question on Ford’s

liability, “Yes”; (8) that during settlement negotiations on the night before Cortez sent out

the note, Cantu told Ford’s attorney that his demand would increase to three million

dollars if the jury sent out a note concerning damages; (9) that Cortez told the jury the

morning she sent out the note that the case would be settled; (10) that the jury had

agreed on a protocol for sending notes to the judge, and Cortez violated that protocol;

and (11) that after becoming aware of the note, Ford agreed to settle the case for over

one million dollars more than it had originally offered. See City of Keller, 168 S.W.3d at

807.

       However, in order to find appellants liable for Cortez’s alleged fraudulent acts,

the jury must have concluded that the note was sent to the judge by or at the direction

of appellants, their agents, or their representatives with the knowledge that it was false.

There is no evidence that Cortez was appellants’ agent or representative. Furthermore,

we find no evidence that appellants, their agents, or any other representatives directed

Cortez to send out the note. There was no testimony from any of the witnesses that

Cortez contacted or communicated with the appellants, their agents, or representatives.

Furthermore, it does not appear from the record that Ford claimed that appellants,

themselves, directed Cortez to send out the note. The only possible scenario which



                                             35
would support the jury’s finding then, would be if the note was sent by or at the direction

of appellants’ agents or representatives.12 At trial, it was established that Cantu acted

as appellants’ representative in negotiating the settlement with Ford. However, again,

there was no evidence presented that Cantu directed Cortez to send the complained-of

note to the judge.13

        To the extent that the jury may have relied on Cantu’s statement that he would

increase his demand if there was a note concerning damages, we conclude this is

meager circumstantial evidence. See Jelinek v. Casas, 328 S.W.3d 526, 538 (Tex.

2010) (citing City of Keller, 168 S.W.3d at 814); Lozano v. Lozano, 52 S.W.3d 141, 148

(Tex. 2001) (holding that a jury may not reasonably infer an ultimate fact from meager

circumstantial evidence where circumstantial evidence is slight, and something else

must be found in record to corroborate probability of fact’s existence). Evidence at trial


        12
             This is consistent with the following illustration:

                 A, who is not C's agent, induces B by a fraudulent misrepresentation to make a
        contract with C to sell land to C. C promises to pay the agreed price, not knowing or
        having reason to know of the fraudulent misrepresentation. Since C's promise to pay is
        value, the contract is not voidable by B. The contract would be voidable by B if C learned
        or acquired reason to know of the fraudulent misrepresentation before promising to pay
        the price.

RESTATEMENT (SECOND) OF CONTRACTS § 164 cmt. e (1981). In this case, even assuming, without
deciding, that Cortez’s note was a fraudulent misrepresentation, there was no evidence presented that
appellants learned or acquired reason to know that Cortez made the alleged fraudulent misrepresentation
before promising to release Ford.
        13
          At trial, Ford asked Cortez if she had contacted any attorneys during the course of the personal
injury case, and Cortez stated she did not. Ford’s attorney then produced phone records he claimed
belonged to Cortez. Cortez would neither confirm nor deny that the phone records belonged to her;
however, she stated that the email address listed on the phone records did not belong to her because she
never had an email address with Sprint. She claimed she did not know her phone number from that time
period. Ford’s attorney then informed Cortez that, based on his research, one of the numbers listed in the
phone records that was called during the personal injury trial belonged to a lawyer, Jim Solis. Cortez
denied making the call and stated that her husband may have made the call. Although Ford’s attorney
claimed that the number belonged to Jim Solis, no evidence was presented establishing the owner of the
phone number. Furthermore, there was no other mention of Solis or evidence presented of how he may
have been involved in the case.


                                                         36
established that Cantu’s statement is consistent with the custom of plaintiff’s attorneys

and that a plaintiff is reasonable in making such a demand. Cantu may have merely

been stating the obvious when he told Tassie his demand would increase. It may also

have been purely coincidental that Cantu made this comment the night before the

complained-of note was received by the trial court. On the other hand, it is possible that

Cantu made the comment because he knew Cortez would send the complained-of note

to the trial court. However, when the circumstances are equally consistent with either of

two facts, neither fact may be inferred. See Jelinek, 328 S.W.3d at 538. Moreover,

there is nothing in the record corroborating a finding that Cantu knew that Cortez would

send the complained-of note to the trial court. See Lozano, 52 S.W.3d at 148. The jury

was not free to infer from this evidence that Cantu directed Cortez to send the

complained-of note to the trial court. See Jelinek, 328 S.W.3d at 538 (establishing that

when the evidence compels the jury to guess if a vital fact exists, a reviewing court does

not undermine the jury’s role by sustaining a no-evidence challenge). This evidence

compelled the jury to guess whether Cantu directed Cortez to send the complained-of

note to the trial court. Therefore, this evidence does not rise above a scintilla. See

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (“When the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is

no evidence.”).

       Because there was no evidence that appellants, their agents, or their

representatives sent or directed Cortez to send the complained-of note, the evidence at

trial was not such as to enable reasonable and fair-minded people to reach the verdict



                                             37
under review. Thus, we conclude that the evidence is legally insufficient to support the

jury’s finding that appellants were responsible for Cortez’s alleged fraud.14 We sustain

appellants’ first issue.

D.      Mutual Mistake

        The party wishing to establish a mutual mistake must show that the parties were

acting under the same misunderstanding of the same material fact. Walden v. Affiliated

Computer Servs., Inc., 97 S.W.3d 303, 326 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied). A mutual mistake of fact occurs when the parties to an agreement have a

common intention, but the written contract does not reflect the intention of the parties

due to a mutual mistake. N. Natural Gas v. Chisos Joint Venture I, 142 S.W.3d 447,

456 (Tex. App.—El Paso 2004, no pet.). In order for mutual mistake to apply, the

proponent must establish that the contract sets out a bargain that was never made. N.

Natural Gas, 142 S.W.3d at 447.

        When a party alleges mutual mistake, the court should not interpret the language

contained in the contract but should determine whether the contract itself is valid. See

Williams v. Glash, 789 S.W.2d 261, 264–65 (Tex. 1990). Parol or extrinsic evidence is

allowed to show mutual mistake if the contract failed to express the actual agreement of

the parties. N. Natural Gas Co., 142 S.W.3d at 456. If the court determines a contract

sets out a bargain that was never made, the contract will be invalidated. Williams, 789




        14
           We further note that in order to find that Cortez committed fraud, the jury had to find that Cortez
sent the complained-of note with the intent that Ford rely on the allegedly false representation. However,
no evidence was provided that Cortez knew that Ford’s attorneys were reading the jury’s notes. In fact,
all of the jurors, including Cortez, testified that they did not know that the attorneys were reading the
notes. The only evidence presented showed that the jurors believed that the notes were only being read
by the judge to whom the notes were addressed.


                                                     38
S.W.2d at 264. The doctrine of mutual mistake must not routinely be available to avoid

the results of an unhappy bargain. Id. at 265.

       Ford argues that the parties to the settlement agreement held a mistaken belief

that the jury had found Ford liable for the accident and had reached the issue of

damages. Here, Ford intended to pay appellants three million dollars in exchange for

release from liability. The contract sets out that bargain. The evidence presented at

trial shows that both parties intended to set out the terms in the contract exactly as they

were written, and the contract does not set out a bargain that was never made. See id.

              To enable a party to a written contract to be relieved from liability
       thereunder on the ground of a mutual mistake of fact, the mistake in
       question must deal with a material part of the contract itself. That is, the
       mistake must involve the subject matter of the contract and the substance
       thereof; it may not be related to a mere collateral matter, such as the
       inducement for the agreement.

Brown-McKee, Inc. v. Western Beef, Inc., 538 S.W.2d 840, 844 (Tex. Civ. App.—

Amarillo 1976, writ ref’d n.r.e.). The mistake must be related to a fact which is the very

essence of the contract, and “material in the sense that it is one of the things contracted

about.” Id. Here, the “mistake,” if any, did not involve the subject matter of the contract.

See id.       The fact that the jury may have reached the issue of damages in its

deliberations was a mere collateral matter because it concerned the inducement to

enter the agreement to settle for more money than previously offered.15             See id.

Moreover, Ford did not present any evidence that appellants entered the contract based

on the belief that the jury was deliberating damages. Tassie unequivocally stated that

the complained-of note had only one meaning; however, there is nothing in the record

supporting a finding that appellants settled based on that belief. See Williams v. Glash,

       15
            Appellants also settled for less money than demanded.


                                                   39
789 S.W.2d 261, 264 (Tex. 1990) (“The question of mutual mistake is determined not by

the self-serving subjective statements of the parties’ intent, which would necessitate trial

to a jury in all such cases, but rather solely by objective circumstances surrounding

execution of the [contract].”).

       Furthermore, a party’s prediction or judgment as to events to occur in the future,

even if erroneous, is not a “mistake” as the word is defined in the Restatements of

Contracts.    RESTATEMENT (SECOND)        OF   CONTRACTS § 151 comment a (1981).              The

evidence presented conclusively proved that the jury had not reached a verdict. Ford’s

belief that the jury had determined that the jury would award damages was merely a

prediction of a future occurrence.         Ford’s assumption that the jury would award

damages was merely conjecture and speculation of a future event because the jury had

not yet rendered a verdict. See id. Whether the parties were mistaken as to the jury’s

deliberations is immaterial because the jury had not determined that Ford was not liable.

In other words, at the time that the parties entered the settlement agreement, the jury

had neither ruled in favor of or against Ford.16

       Finally, a mistake is not ordinarily available if the party assumes the risk of the

mistake. De Monet v. Pera, 877 S.W.2d 352, 359 (Tex. App.—Dallas 1994, no writ)

(citing RESTATEMENT (SECOND)       OF   CONTRACTS § 154(a) & (b) (1981)); see Commercial

Standard Ins. Co. v. White, 423 S.W.2d 427, 433 (Tex. Civ. App.—Amarillo 1967, writ

ref’d n.r.e.); see also Smith v. Lagerstam, No. 03-05-00275-CV, 2007 Tex. App. LEXIS

5722, at *21 (Tex. App.—Austin July 19, 2007, no pet.) (mem. op. on reh’g) (“[A] party

to an agreement may not seek relief on the ground of mistake if the risk of the mistake

       16
          See RESTATEMENT (SECOND) OF CONTRACTS § 151 comment a (1981) (providing that the
erroneous belief must relate to the facts as they exist at the time of the making of the contract).


                                                40
is allocated to that party.”). A party assumes the risk of mistake if he “is aware, at the

time the contract is made, that he has only limited knowledge with respect to the facts to

which the mistake relates but treats his limited knowledge as sufficient.” RESTATEMENT

(SECOND)     OF   CONTRACTS § 154(b). If even with this awareness, the mistaken party

chooses to enter the contract, that party assumes the risk that he is wrong. See id.

        Here, both parties entered into a Rule 11 settlement agreement with limited

knowledge and decided to enter into the contract. Both parties were fully aware that the

jury had not finished its deliberations and had not rendered a verdict. The parties chose

to divine the jury’s intent from the complained-of note and were wrong. Even with its

limited knowledge regarding the jury’s decision, Ford chose to settle the case with

appellants. Ford was aware at the time the contract was made that it only had limited

knowledge regarding the jury’s decision and treated this limited knowledge as sufficient.

The complained-of note did not state that the jury was actually deliberating damages;

Ford merely inferred that the jury must have been discussing damages and had

therefore determined that Ford was liable.17 Even if the jury had determined that Ford

was liable during its deliberations, the jury was free to change its answers to either

question one, two, or both before it rendered its verdict.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

Ford intended to give Rosa three million dollars in exchange for release of any and all

claims. However, there is no evidence that the contract failed to express the actual

agreement of the parties and that the alleged mistake was related to a fact which was

the very essence of the contract. Furthermore, Ford was aware that the jury had not

        17
          There is nothing in the jury charge instructing the jury that it could not change its answers to the
questions on liability once it began deliberating the questions on damages.


                                                     41
rendered a verdict but chose to assume the risk of agreeing to settle with limited

knowledge. Accordingly, the evidence at trial would not have enabled reasonable and

fair-minded people to reach the jury’s verdict in this case. We conclude, therefore, that

the evidence was legally insufficient to prove by a preponderance of the evidence that

Ford’s performance of the contract was excused by virtue of a mutual mistake. We

sustain appellants’ second issue.18

                                           III.    CONCLUSION

        Having found that Ford is not excused from performing the contract due to either

fraud or mutual mistake, we reverse the trial court’s judgment.19 We remand to the trial

court for proceedings consistent with this opinion.20

                                                                   ___________________
                                                                   ROGELIO VALDEZ
                                                                   Chief Justice


Delivered and filed the
24th day of January, 2013.




        18
              Due to our disposition, we need not address appellants’ other issues. See TEX. R. APP. P.
47.1, 47.4.
        19
            By way of a “cross-point,” Ford argues, in the alternative, that the trial court should have
submitted its requested jury question, “Did the foreperson, Cynthia Cortez, subvert the integrity of the jury
process by sending [the complained-of note to the trial court]?” Ford seeks a new trial based on this
alleged trial court error. However, Ford did not file a separate notice of appeal although it seeks to alter
the trial court’s judgment; therefore, Ford has not properly invoked this Court’s jurisdiction to consider its
cross-issue. See TEX R. APP. P. 25.1(a), (c) (providing that a party who wishes to alter a trial court’s
judgment must file its own notice of appeal and that we may not grant more favorable relief than did the
trial court except for just cause); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171 (Tex. 2004) (citing
Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—
Houston [1st Dist.] 1999, no pet.) (refusing to consider the party’s challenge to the trial court’s judgment
because the party did not file a notice of appeal from the trial court’s judgment, did not notice a cross-
appeal, and did not file a petition for review)).
        20
           Appellants filed a motion for leave to file a reply brief that was carried with the case. We
dismiss the appellant’s motion for leave to file a reply brief as moot.


                                                     42
