by Rachel Stinson, Trial and Appellate Attorney for the City of Houston
In re Stagner, 01-18-758-CV
(Memorandum opinion issued on January 23, 2020 by Justice Evelyn V. Keyes. Panel consists of Justices Keyes, Goodman, and Countiss.)
Mattress Firm sued several individual and corporate defendants for fraud, negligence, unjust enrichment, and breach of fiduciary duty, alleging that some of its senior management conspired with a real estate firm and various real estate brokers and developers from 2010 through 2016. One of the individual defendants’ counter-claimed, alleging Mattress Firm’s then-CEO, Steve Stagner, had known about the transactions and participated in them. Another defendant served non-party subpoenas on Stagner’s ex-wife, Julie, and several real estate entities that Julie and/or Steve used during and after their marriage to purchase real estate. The subpoenas sought documents related to all real estate transactions by these entities and the Stagner’s from 2006 through 2018. One of the Stagner entities served objections and produced 600 pages subject to those objections. The other entities, and Julie herself, moved to quash, relying on an affidavit from Julie that explained the limited transaction one of the entities had with at least one of the defendants. Julie’s affidavit was never controverted. Nonetheless, the trial court denied the motion to quash and ordered full compliance with the subpoenas.
In granting the mandamus petition, the Court of Appeals viewed one entity’s objections as applying to all, and it treated the motion to quash the same way. The Court agreed that the subpoenas were overbroad as to time and scope. On time, the Court found the 12-year period requested well beyond the 6-year period at issue in the underlying suit. Similarly, the Court found the subpoenas “unlimited as to subject matter,” even though the real party argued that the subpoenas ought to be read as self-limited by the pleadings in the underlying litigation. Particularly because Julie’s affidavit was never rebutted, the Court of Appeals concluded that even this hypothetical self-limitation would not be sufficient to make any of the requests reasonably tailored to discover relevant information. And, because Julie and the Stagner entities were not parties to the underlying lawsuit, they lacked an adequate remedy by appeal.
Richard Haynes v. Union Pacific Railroad, 01-18-00181-CV
(Opinion issued on January 28, 2020 by Justice Richard Hightower. Panel consists of Chief Justice Radack and Justices Landau and Hightower.)
Richard Haynes’ personal injury lawsuit was first tried to a jury in 2008. The first jury award to Haynes was sent back to the trial court after the Court of Appeals found Batson error in the jury selection phase. A second jury trial in 2017 resulted in another award to Haynes. Both sides appealed.
Among the several issues on appeal was whether the trial court demonstrated reversible bias and hostility to Haynes and his counsel, either by a discrete act or by cumulative harm. First, Haynes complained that, on the record and while the jury or panel was seated, the trial judge: (1) mentioned the previous verdict reversal; (2) incorrectly summarized Haynes’ testimony; and (3) incorrectly described the evidence at trial during closing. Haynes failed to object to any of these statements, so the Court of Appeals found the complaints waived. The Court went on, however, to note that Haynes had also failed to show that any of these statements could not have been cured by a proper instruction.
But Haynes did preserve at least one of his complaints about bias. His second complaint was that a sidebar between his counsel and the judge, although off the record, at the bench, and held while white noise was broadcast into the courtroom, was nonetheless loud enough for the jury to overhear and so animated that it caused some jurors to laugh at his expense. Haynes contended the jury could overhear the exchange because his counsel’s paralegal took notes about specific parts of the sidebar, and observed some jurors “giggled,” even though she was seated at least five away from the nearest juror, closer to the bench than the jury box, and not as near to the source of the white noise. Outside the presence of the jury, when Haynes’ counsel brought up his concerns, the trial judge expressed frustration with Haynes’ counsel, and with the lawsuit in particular, confirming he found the case “thin” and “weak” and stating, “I really want to grant a mistrial, and you will never see me again, and you’ll never get another setting from me while I’m in this court.” In making a later record about the sidebar, which had not been transcribed, Haynes’ co-counsel testified he had seen the trial judge become “more and more animated and more and more loud and physically angry” during the sidebar. But the defendant’s attorney testified that it was his belief that some jurors were laughing because the white noise suddenly playing into the courtroom startled them, the trial judge further observed it was common for jurors to laugh when white noise played. Due to the lack of a transcript from the sidebar, and the conflicting testimony afterwards, the Court of Appeals concluded Haynes failed to clearly show which of the trial court’s comments, if any, the jury overheard. And, the Court of Appeals further concluded, the trial court’s frustration and skepticism did not rise to the level of “‘deep-seated favoritism or antagonism that would make fair judgment impossible,’” even though he had expressed his frustration at some length.
Haynes’ cumulative harm complaint failed as well. The Court of Appeals reiterated it found no error in considering Haynes’ single preserved complaint as to bias, and so it did not perform a cumulative harm analysis.