                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-13-00364-CV


IN RE TAYLOR MORRISON OF                                                  RELATOR
TEXAS, INC. D/B/A MORRISON
HOMES



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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1

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      Relator Taylor Morrison of Texas, Inc. d/b/a Morrison Homes seeks a writ

of mandamus ordering the trial court to vacate its August 30, 2013 judgment

granting a partial mistrial in the underlying suit. We conditionally grant the writ of

mandamus.




      1
       See Tex. R. App. P. 47.4.
                                Background Facts

      Taylor Morrison sued Real Parties in Interest CTL/Thompson Texas, LLC

and Sheffield Development Company, Inc. in April 2007 over some geotechnical

studies that CTL/Thompson and Sheffield provided to Taylor Morrison regarding

whether certain land was suitable land on which to build houses. Taylor Morrison

sued for breach of contract, breach of warranties, negligence, negligent

misrepresentation, statutory fraud, and common-law fraud. A jury trial was held

in 2012. The Honorable Judge Ken Curry presided.

      After ten days of trial, the jury began deliberations.      The jury charge

contained thirty-five questions. After about two days of deliberations, the jurors

submitted a note indicating that they had “reached an impasse.” The trial judge

instructed the jurors to continue their deliberations.

      During a lunch break that same day, the trial judge told the parties that he

was “going to see how the jury was doing.” Later that day, the trial judge stated

that if the jury did not reach a verdict by 4:00 p.m., he would likely release them.

The trial judge again went to “check on the jury.”

      The trial judge returned to the courtroom around 4:20 p.m. and stated that

he had “received some partial answers from the jury and they’ve signed the

verdict form as to those partial answers.” He said,

           I’m not going to enter the verdict of record at this point
      because I’m not for sure how we’re going to handle that.




                                      2
             As we’ve discussed off the record, my inclination is to just
       mistry the case. But I’ll dismiss the jury and I’ll decide later on this
       week what I will do about the mistrial.

Sheffield and CTL/Thompson objected and requested an Allen charge. The trial

court denied the request, and the jury was polled and dismissed.            The jury

charge did not include answers to Question 10, which addressed Taylor

Morrison’s negligence claim.      Eleven of the twelve jurors signed the verdict

certificate.

       Taylor Morrison moved for mistrial.      CTL/Thompson filed a motion for

partial judgment on the jury verdict, and Sheffield filed a motion for entry of

judgment notwithstanding the verdict. The trial judge issued a letter ruling dated

December 21, 2012, stating that he was granting the motion for mistrial “as to the

cause of action for negligence” and was granting the Real Parties in Interest’s

motions for partial judgment on statutory fraud, common law fraud, negligent

misrepresentation, breach of contract, breach of warranties, and Sheffield’s

attorney fees. The letter also stated, “After entry of judgment the [trial court]

would consider a motion for new trial by [Taylor Morrision] as to all issues but

more especially as to negligent misrepresentation and the issue of [Sheffield’s]

attorney fees.” Judge Curry then retired from the bench as previously planned.

       In March 2013, Taylor Morrison filed an objection to entry of Sheffield’s

proposed judgment on partial verdict and amended motion for mistrial after

discovering that Judge Curry had instructed the jury outside the presence of the



                                      3
parties. Taylor Morrison attached three affidavits of jurors, who stated that Judge

Curry entered the jury room after lunch on December 12 and said, “You’ve got

until the end of the day to finish this or I’ll declare a hung jury,” or something

similar. 2 The presiding juror asked if they could skip Question 10, and Judge

Curry responded, “Yes, move on.” Judge Curry later returned to the jury room

and said, “That’s it. I’ll take what you’ve done, give it to both sides and see if

they can work something out,” or something similar. 3 The jurors testified that

they did not finish their deliberations.

      In May 2013, the Honorable Judge Susan McCoy, Judge Curry’s

successor, held a hearing on Taylor Morrison’s motion and Sheffield’s objections.

At the end of the hearing, Judge McCoy stated,

             My ruling is going to be the same. We’re going to retry the
      case on negligence and negligen[t] misrepresentation. And the
      other cause of action, I think that, you know, the jury ruled that they
      were not going to—I mean, they didn’t sign for those. And I’m sure
      that both sides are unhappy about that.

            If I could make a [Taylor Morrison] case go away, I would do
      that. But my belief is that the jury—and I don’t—you know, I trust
      Judge Curry, good God. He was a judge for 20 years. I don’t think
      he would unfairly influence[] a jury. I mean, he was one of the
      kindest, fairest judges I’ve ever been in front of. I don’t think in a
      minute he would unfairly influence a jury. Why would he do that right
      2
        The second juror testified that Judge Curry said, “You’ve got today to
finish this or I’ll declare a mistrial.” The third juror testified that Judge Curry said,
“You’ve got until the end of today to finish or I’ll declare a mistrial.”
      3
        The second juror testified that Judge Curry said, “Wrap it up, hand it back,
and the Court will give it to both sides and they’ll decide from there.” The third
juror testified that Judge Curry said, “That’s it. Give me what you’ve got. I’ll give
it to both sides and see if they can work it out.”

                                       4
      before he got off the bench? I mean, why would he do that? That
      makes no sense to me. I’m using my common sense.

             We’re going to retry the case on negligence and negligent
      misrepresentation. I’m sure that makes everyone unhappy, but
      that’s my ruling and that’s what we’re going to do. So I’m not going
      to grant a new trial on the other causes of action.

The trial court then entered an interlocutory judgment ordering a take-nothing

judgment on Taylor Morrison’s fraud, breach of contract, and breach of warranty

claims and ordering $1,100,000 in attorney’s fees to Sheffield. The trial court

granted   a    mistrial   on   Taylor       Morrison’s   negligence   and   negligent

misrepresentation claims only. Taylor Morrison then filed its petition for writ of

mandamus in this court. 4

                               Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.

2011) (orig. proceeding).

      A trial court clearly abuses its discretion when it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law or

if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair

Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of

      4
         In the trial court, Taylor Morrison submitted a bill of exception, which was
signed while this mandamus was pending. Sheffield filed a motion for leave to
file supplemental briefing addressing the bill of exception. We do not address the
bill of exception in our opinion, and Sheffield’s motion is hereby denied.

                                        5
factual issues or matters committed to the trial court’s discretion, we may not

substitute our judgment for that of the trial court unless the relator establishes

that the trial court could reasonably have reached only one decision and that the

trial court’s decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d

54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839–40. In other

words, we give deference to a trial court’s factual determinations that are

supported by evidence, but we review the trial court’s legal determinations

de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.

proceeding).

      Absent extraordinary circumstances, mandamus will not issue unless the

relator lacks an adequate remedy by appeal. In re Van Waters & Rogers, Inc.,

145 S.W.3d 203, 210–11 (Tex. 2004) (orig. proceeding) (citing Walker, 827

S.W.2d at 839). This requirement “has no comprehensive definition.” In re Ford

Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding). Whether a clear

abuse of discretion can be adequately remedied by appeal depends on a careful

analysis of the costs and benefits of interlocutory review. In re McAllen Med.

Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this balance

depends heavily on circumstances, it must be guided by analysis of principles

rather than simple rules that treat cases as categories. Id.

      An appellate remedy is adequate when any benefits to mandamus review

are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d



                                     6
124, 136 (Tex. 2004) (orig. proceeding).         When the benefits outweigh the

detriments, we must conduct further analysis. Id. An appeal is inadequate for

mandamus purposes when parties are in danger of permanently losing

substantial rights, such as when the appellate court would not be able to cure the

error, the party’s ability to present a viable claim or defense is vitiated, or the

error cannot be made part of the appellate record. Van Waters & Rogers, Inc.,

145 S.W.3d at 210–11; Walker, 827 S.W.2d at 843–44.               An appellate court

should also consider whether mandamus will allow the court “to give needed and

helpful direction to the law that would otherwise prove elusive in appeals from

final judgments” and “whether mandamus will spare litigants and the public ‘the

time and money utterly wasted enduring eventual reversal of improperly

conducted proceedings.’” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.

2008) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136).

                                     Discussion

I. Whether the trial court abused its discretion

      We first determine whether the trial court abused its discretion.          In its

second issue, Taylor Morrison argues that the trial court abused its discretion by

not granting its motion for mistrial in its entirety because the trial judge instructed

the jury outside the presence of counsel. 5 The decision to grant a motion for new

      5
       Sheffield and CTL/Thompson argue that Taylor Morrison waived any
complaint regarding the jury’s answers because it did not object before the jury
was discharged. See Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986). However, the
grounds for Taylor Morrison’s objection were not known until after the jury was

                                      7
trial is at the trial court’s discretion and the court’s ruling will not be disturbed in

the absence of a showing of an abuse of that discretion. Strackbein v. Prewitt,

671 S.W.2d 37, 38 (Tex. 1984).

      Rule 286 of the rules of civil procedure requires any supplemental

instructions from the court to be in writing.          Tex. R. Civ. P. 286.        The

supplemental instruction must conform with the rules relating to the charge. Id.

In this case, the trial judge told the jurors after they had begun deliberations that

they should skip Question 10 of the jury charge and later that he would take

“what [they]’ve done” (or “what [they]’ve got”) before they had finished

deliberating.   Neither of these instructions conformed with the jury charge

discharged. An objection is considered timely if it is asserted when the potential
error becomes apparent. Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145
(Tex. App.—Amarillo 2001, pet. denied). Taylor Morrison cannot be seen to
waive a complaint that was not yet known at the time of the alleged waiver. See
Gardner v. Herring, 21 S.W.3d 767, 775 (Tex. App.—Amarillo 2000, no pet.)
(“Indeed, it would be quite specious to suggest that through silence one can
waive a complaint regarding conduct about which he knew nothing or about
which he was denied the opportunity to object. . . . In other words, the
complainant must have been in a position to perceive the error before his silence
can be deemed waiver.”). Taylor Morrison preserved its complaint by raising it in
its amended motion for new trial in a timely manner after Judge Curry’s actions
were made known. Although the parties knew that the trial judge was going to
“check on” the jury, there was no indication that the parties knew that the trial
judge would provide supplemental instructions that did not conform to the jury
charge.
        Sheffield and CTL/Thompson also argue that Taylor Morrison’s amended
motion for new trial was untimely because it was filed after the trial court denied
Taylor Morrison’s original motion. Although the trial judge’s December 21, 2012
letter indicated his intent to grant the motion in part and deny the motion in part,
no judgment was signed until August 30, 2013. Taylor Morrison’s motions were
therefore premature and were deemed filed “on the date of but subsequent to the
time of signing of the judgment.” Tex. R. Civ. P. 306c. Taylor Morrison’s original
motion was still pending at the time it filed its amended motion.

                                      8
instructions, which stated that “[a]ll the questions and answers are important. No

one should say that any question or answer is not important.”

      The only evidence of the trial judge’s violation of rule 286, however, is the

testimony in the jurors’ affidavits. Both rule 606 of the rules of evidence and rule

327 of the rules of civil procedure apply in the determination of whether the

affidavits may be considered. 6 See Tex. R. Evid. 606(b); Tex. R. Civ. P. 327.

Rule 606(b) states,

      Upon an inquiry into the validity of a verdict or indictment, a juror
      may not testify as to any matter or statement occurring during the
      jury’s deliberations . . . . However, a juror may testify: (1) whether
      any outside influence was improperly brought to bear upon any juror;
      or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b). Rule 327 states,

             a. When the ground of a motion for new trial, supported by
      affidavit, is misconduct of the jury or of the officer in charge of them,
      or because of any communication made to the jury . . . , 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
      communication made . . . , 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.

             b. A juror may not testify as to any matter or statement
      occurring during the course of the jury’s deliberations . . . except
      that a juror may testify whether any outside influence was improperly
      brought to bear upon any juror. Nor may his affidavit or evidence of


      6
        Rule 327, while titled, “For Jury Misconduct,” also covers motions for new
trial made “because of any communication made to the jury,” and thus appears
applicable to the present facts. See Tex. R. Civ. P. 327.

                                     9
      any statement by him concerning a matter about which he would be
      precluded from testifying be received for these purposes.

Tex. R. Civ. P. 327. In this case, Sheffield and CTL/Thompson argue that the

affidavits may not be considered because the testimony regards the jurors’

deliberations and because a supplemental instruction is not, as a matter of law,

an outside influence. See Golden v. First City Nat’l Bank in Grand Prairie, 751

S.W.2d 639, 644 (Tex. App.—Dallas 1988, no writ) (“As a matter of law, jury

instructions cannot be an outside influence.”).

      Rule 606 and rule 327, however, do not preclude juror testimony on

improper contact or statements that did not occur during the jurors’ deliberations.

See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370–72 (Tex. 2000).

In Golden Eagle, the supreme court discussed the definition of deliberations and

determined that it narrowly applies to those times when the jury is formally

deliberating. Id. For instance, it does not apply “during a trial break.” Id. at 371.

Thus, “[j]uror testimony is still permitted on the issue[] of . . . communications to

the jury . . . , provided such testimony does not require delving into deliberations.”

Id. at 372.

      In this case, the juror affidavits state that the trial judge entered the jurors’

room “right after lunch” before they had restarted deliberations and again in the

afternoon, stopping their deliberations. Thus, the trial court’s communications to

the jury did not occur during deliberations, and we may consider the jurors’

testimony on the trial court’s statements at those times. The testimony in the


                                      10
affidavits regarding how the jurors voted or filled out the jury charge is irrelevant

to our inquiry, which focuses on the trial judge’s actions under rule 286 and not

on juror misconduct. 7

      Rule 327 requires that the communication be material and that the

complaining party demonstrate probable harm before a mistrial may be granted. 8

Tex. R. Civ. P. 327(a). The communications from the trial judge that the jury

should skip a question and the communications stopping their deliberations

before they had concluded were material because they resulted in an incomplete

verdict.   The harm in this case is that the jurors did not complete their

deliberations, vote on some questions, or render a verdict on all questions

because the trial judge instructed them not to answer Question 10 and to stop

their deliberations. See Tex. Emp’rs Ins. Ass’n v. McCaslin, 159 Tex. 273, 279,

317 S.W.2d 916, 921 (1958) (“Rule 327 does not preclude the drawing of logical

      7
        Sheffield and CTL/Thompson also objected that the juror affidavits
contained inadmissible hearsay. See Tex. R. Evid. 801(d). However, when a
party offers a statement simply to show that it was made rather than to show its
truth or falsity, the hearsay rule does not bar its admission. See City of Austin v.
Houston Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App.—Dallas 1992,
writ denied) (citing Pope v. Darcey, 667 S.W.2d 270, 273 (Tex. App.—Houston
[14th Dist.] 1984, writ ref’d n.r.e.)). The jurors’ testimony regarding the trial
judge’s statements were offered as evidence that the statements were made and
thus are not hearsay.
      8
       Taylor Morrison argues that a violation of Rule 285 results in automatic
reversal. However, the case it cites for this proposition by its own language
reaffimed the harm requirement. See Ross v. Tex. Emp’rs Ins. Ass’n, 267
S.W.2d 541, 279 (Tex. 1954) (stating that there was no basis to distinguishing
communications from judge to jury from communications from counsel to jury,
which requires a showing of probability of harm).

                                     11
inferences of prejudice and unfairness from the overt act itself for an action or

occurrence may be so highly prejudicial and inimical to fairness of trial that the

burden of going forward with proof of harm is met, prima facie at least, by simply

showing the improper act and nothing more.”). Although McCaslin’s application

is narrow, the failure of a jury to complete its deliberations falls within its

parameters.     See Tex. & P. Ry. Co. v. Van Zandt, 159 Tex. 178, 182, 317

S.W.2d 528, 531 (1958) (citing McCaslin and holding that the trial court’s refusal

to submit a question to the jury regarding whether the plaintiff was injured by the

defendant amounted to a denial of the defendant’s constitutional right to trial by

jury).

         Sheffield and CTL/Thompson argue that the trial court had a duty to enter

a judgment on the partial jury answers. Garcia v. Spohn Health Sys. Corp., 19

S.W.3d 507, 510 (Tex. App.—Corpus Christi 2000, pet. denied) (“The general

rule is that a court must enter judgment on a verdict when it can be done.”). But

because the jury did not complete its deliberations, it is unclear what answers

were affected by the supplemental instructions. 9 And when “unanswered issues

are such that their answers might change the results of the case, such issues are

material and, therefore, the verdict is incomplete. It will not support a judgment.”

         9
       Although the juror affidavits contain testimony regarding the number of
jurors who agreed to the “no” answers written on the jury charge, that testimony
regards the jurors’ deliberations, and we cannot consider it. See Tex. R. Evid.
606(b); Tex. R. Civ. P. 327; Golden Eagle, 24 S.W.3d at 370–72. Further,
because the deliberations were prematurely concluded, there is no way of
knowing what the ultimate vote would have been.

                                     12
Elliott v. Hamilton, 512 S.W.2d 824, 827 (Tex. Civ. App.—Corpus Christi 1974,

no writ). The verdict in this case cannot support the trial court’s judgment.

      Further, Judge McCoy’s statements during the hearing indicate an arbitrary

decision and therefore an abuse of discretion. See In re Columbia Med. Ctr. of

Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212–13 (Tex. 2009) (stating that

a trial court’s discretion to grant new trials “should not, and does not, permit a

trial judge to substitute his or her own views for that of the jury without a valid

basis” and that a trial court’s failure to give its reasons for granting a new trial is

an abuse of discretion). At the end of the hearing, the trial judge said,

             I trust Judge Curry, good God. He was a judge for 20 years. I
      don’t think he would [have] unfairly influenced a jury. I mean, he
      was one of the kindest, fairest judges I’ve ever been in front of. I
      don’t think in a minute he would unfairly influence a jury. Why would
      he do that right before he got off the bench? I mean, why would he
      do that? That makes no sense to me. I’m using my common sense.

The trial judge’s statements suggest that she did not rule based on the

application of any rules or laws but instead based her ruling on her disbelief that

Judge Curry would influence the jury. This is not a valid basis on which to render

a decision.

      The trial judge stated that she would not grant a new trial on the other non-

negligence causes of action because “the jury ruled that they were not going to—

I mean, they didn’t sign for those. And I’m sure that both sides are unhappy

about that.” The trial judge offered no explanation as to why she granted a

mistrial on the negligent misrepresentation claim and not on the other claims.


                                      13
There was an ostensible jury answer to that claim as there were to the other,

non-negligence claims.      The only rationale appears to be that it was a

negligence-based claim like the statutory negligence claim and thus, was

intertwined with the same facts and evidence. But such is the case for the other

causes of action for which mistrial was denied. In essence, the trial judge upheld

a non-existent jury verdict. When there is no jury verdict on any claims, granting

a new trial as to some but not to others is an arbitrary decision. The trial court’s

partial judgment was therefore a clear abuse of discretion. 10

II. Whether there is an adequate remedy by appeal

      Sheffield and CTL/Thompson argue that mandamus is inappropriate

because Taylor Morrison has an adequate remedy at law by appealing the partial

denial of its motion for new trial after a final judgment from the partial new trial

that was granted.

      First, there would be one new trial on the negligence and negligent

misrepresentation claims. Then, on appeal, the partial denial of the motion for

new trial should be reversed for the reasons expressed above and a new trial

granted as to those claims. There would then be another new trial on statutory

fraud, common law fraud, breach of contract, and breach of express and implied

warranties, all of which are based on the same contract and the same



      10
       Because Taylor Morrison’s first issue seeks the same relief on different
grounds, and because we sustain its second issue, we need not address the first
issue. See Tex. R. App. P. 47.1.

                                     14
representations of the parties that formed the basis of the negligence causes of

action.

       While mandamus does not lie simply because of the costs associated with

a new trial, it is appropriate in circumstances when it would “spare private parties

and the public the time and money utterly wasted enduring eventual reversal of

improperly conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 136 (Tex. 2004). In this case, a new trial just on the negligence causes of

action, knowing that another new trial regarding the same events and relying on

the same evidence will be forthcoming, is one of those situations in which the

time and money of a trial would be utterly wasted. Cf. Howard Gault & Son, Inc.

v. Metcalf, 529 S.W.2d 317, 321 (Tex. Civ. App.—Amarillo 1975, no writ)

(denying mandamus when the trial court granted a partial new trial as to some

defendants because “the three defendants [were] distinct and their causes

severable”). We therefore hold that an appeal is not an adequate remedy under

these facts and that mandamus relief is appropriate. See Prudential Ins., 148

S.W.3d at 136.

                                       Conclusion

       We conditionally grant Taylor Morrison’s petition for writ of mandamus, and

we order the trial court to vacate its August 30, 2013 judgment. The writ will

issue only if the trial court fails to do so.




                                         15
                                         /s/ Lee Gabriel
                                         LEE GABRIEL
                                         JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: February 6, 2014




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