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Opinion=20 issued August 2, 2007=20











In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas


NO. 01-04-00566-CV

__________


R.C. JONES,=20 SUPERIOR WASTE MANAGEMENT SERVICES, INC.

AND JTI=20 CONTRACTORS, INC., Appellants


V.


REPUBLIC=20 WASTE SERVICES OF TEXAS, LTD. AND

RUSTIN=20 TRANSPORTATION COMPANY, L.P.,=20 Appellees



On = Appeal=20 from the 295th District Court

Harris County, Texas

Trial Court=20 Cause No. 2001-59389



O = P I N I O=20 N

This=20 is an appeal from a final judgment rendered on a jury verdict in = favor of=20 appellees, Republic Waste Services of Texas, Ltd. ("Republic")=20 (1) and = Rustin=20 Transportation Company, L.P. ("Rustin"), in a breach of contract = and fraud=20 action brought by appellants, R.C. Jones, Superior Waste = Management=20 Services, Inc. ("Superior"), and JTI Contractors, Inc. ("JTI"). In = two=20 issues, appellants contend that (1) as a matter of law, the = evidence is=20 insufficient to support the jury's verdict that Rustin, Republic's = subcontractor, did not breach its subcontracts with them by = failing to pay=20 them certain rate increases for hauling trash and (2) the trial = court=20 erred in denying their motion for new trial on the ground that = Rustin's=20 trial counsel engaged in improper and incurable jury argument. We=20 affirm.

Background

In 1999,=20 the City of Houston began soliciting bids for a long-term contract = for=20 disposal of its trash. The proposed 20-year project called for: = (1) the=20 construction and operation of two City-owned transfer stations, = one in=20 southwest Houston (the Westpark transfer station) and another in = southeast=20 Houston (the Lawndale transfer station) and (2) the hauling of = trash from=20 these transfer stations to a landfill for disposal. Republic was = the low=20 bidder on the City of Houston waste disposal contract. The City = estimated=20 Republic's bid amount for the 20-year contract to be $295 million. =

All city=20 contracts up for bid must comply with the City's Minority and = Women=20 Business Enterprises ("MWBE") Program. Before being awarded a = contract, a=20 city contractor must submit an MWBE participation plan, along with = either=20 executed subcontracts or letters of intent for each MWBE = subcontractor.=20 For the proposed City contract at issue, the City set the MWBE=20 participation requirement as follows: "at least 30% of the total = value of=20 all construction subcontracts or supply agreements" and "contracts = or=20 supply agreements in at least 20% of the remaining value of this=20 Agreement."

Republic=20 subcontracted all transfer station waste loading and hauling to = Rustin,=20 which operates every transfer station in the City of Houston. Ted = Meyer,=20 Republic's area president, and Donald Poarch, Rustin's owner, = agreed that=20 Rustin, which is not an MWBE, would subcontract with MWBEs to meet = the=20 MWBE requirement. Superior, which is owned by R.C. Jones, an=20 African-American, and JTI, which is owned by Jesse Valeriano, an = Hispanic,=20 agreed with Rustin to haul waste to Republic's landfill. Both = Jones and=20 Valeriano signed blank letters of intent. They understood that the = letters=20 of intent were not themselves the agreements, but merely = precursors for=20 more extensive and complete agreements.

Once City=20 Council approved the contract with Republic (the "City Contract"), = Republic entered into a subcontract with Rustin. The Republic = subcontract=20 provided for yearly rate adjustments pursuant to a formula set = forth in=20 the City Contract.

JTI and=20 Superior each signed a set of three subcontracts (the "Rustin=20 subcontracts") to perform hauling work at the two City of Houston = transfer=20 stations, Westpark and Lawndale. The Rustin subcontracts also = provided for=20 yearly rate adjustments "for the applicable year" but did not = define that=20 term.

Westpark=20 and Lawndale were scheduled to open in July 2000. However, = Westpark did=20 not open until March 9, 2001, and Lawndale did not open until = October of=20 that year. Until the Westpark and Lawndale transfer stations = opened, JTI=20 and Superior agreed with Rustin to perform hauling work out of = other=20 privately-owned transfer stations operated by Rustin including the = Sommermeyer/290, Sam Houston, and Friendswood transfer stations.=20

When the=20 Westpark transfer station opened, Superior took both of its = trailers=20 there, and JTI also began hauling from Westpark, although it = hauled mostly=20 from the Sommermeyer transfer station. The Rustin subcontracts = paid=20 Superior and JTI an initial rate of $5.25 per ton to work out of = Westpark=20 and Lawndale. However, at Westpark, Superior's costs were $6.06 = per ton=20 and JTI's costs were $6.78 per ton. At the contracted rate of = $5.25 per=20 ton, Superior and JTI were losing money working at Westpark and = Lawndale.=20

Jones=20 recognized that Superior was losing money at Westpark, and he = requested a=20 contract directly from Republic's president, Bill Linthicum. = Linthicum=20 testified that Jones complained that "his drivers weren't being = treated=20 fairly to be allowed to get the same number of loads that the . . = . Rustin=20 drivers were." Rustin allowed Superior to send one of its trailers = back to=20 the more profitable Friendswood transfer station. Both Linthicum = and Jones=20 exchanged proposed contracts that proved unacceptable to the = other. Jones=20 took his concerns to the Mayor's Office of Affirmative Action and = Contract=20 Compliance. Jones was told by the City that, once the Lawndale = transfer=20 station opened, he needed to have both of his trucks running from = the=20 Lawndale and Westpark transfer stations.

Faced with=20 this dissatisfaction from Superior, Republic and Rustin reviewed = their=20 records and discovered that JTI had been overpaid $1.81 per ton = for the=20 first four months that Westpark was open, from March 2001 through = June=20 2001. After the overpayment was discovered, Poarch, Rustin's = owner, asked=20 Valeriano, JTI's owner, to meet Republic's new area president, = Linthicum,=20 to discuss JTI's profitability. Valeriano told them that he was = making=20 money. On July 1, 2001, Rustin adjusted the rate that JTI was paid = to=20 conform with the figures in the Rustin subcontracts.

When the=20 Lawndale transfer station opened in October 2001, Superior = realized that=20 it could not make money hauling from there, either. By the end of = the next=20 month, Superior ceased operations and sued Republic asserting a = number of=20 legal theories, all based on a purported contractual and/or = partnership=20 relationship arising out of the letters of intent.

While the=20 litigation was ongoing between Superior and Republic, Republic and = Rustin=20 asked Valeriano to prepare a profit and loss statement for the = individual=20 transfer stations. Valeriano responded that he could not separate = it by=20 transfer station. Instead, he spent 10 minutes preparing a profit = and loss=20 statement and determined that he was making money on the Rustin = work.=20 (2)=20

One month later, = Superior's=20 counsel deposed = Valeriano in=20 conjunction with the Superior case against Republic and questioned = him at=20 length about the financial statement that he had prepared. Based = on the=20 questions he answered during his deposition, Valeriano "felt like = [his]=20 price increases hadn't been paid; and in going through that = financial=20 statement that [he] had produced, [he] realized that maybe [he] = wasn't=20 making money at Westpark like [he] had originally thought [he] = was."=20 Valeriano's CPA discovered that JTI was losing money at Westpark = and had=20 been underpaid approximately $160,000 in Consumer Price Index = ("CPI") rate=20 increases. Valeriano also discovered that he was not getting a 10% = participation in the MWBE contract. After an investigation by = Rustin in=20 response to JTI's claims, Rustin issued two checks totaling more = than=20 $65,000 to one of Valeriano's trucking entities. Because Valeriano = cashed=20 the checks and stopped hauling from the City transfer stations, = Rustin=20 believed that the matter was settled. Valeriano notified Rustin = that he=20 was terminating his performance under the Rustin subcontracts, but = would=20 continue to haul from Sommermeyer.

JTI, who=20 was represented by the same attorney who represented Superior,=20 subsequently intervened in Superior's suit against Republic, and = Rustin=20 was brought in as a co-defendant. The parties appeared for trial. = During=20 closing argument, Rustin's trial counsel alluded to how = appellants' theory=20 of the case was merely a "lawyer's construct" and how Valeriano = changed=20 his testimony after meeting with Superior's attorney. After a = nearly=20 three-week long trial, the jury rendered a verdict for Republic = and Rustin=20 finding that there was no agreement for Superior or JTI to have a = 10%=20 participation in the City Contract; that there was no fraud by = Republic in=20 signing the letters of intent; and that Rustin had not breached = its=20 subcontracts. Superior and JTI filed a motion for new trial and = for=20 judgment notwithstanding the verdict that was denied by the trial=20 court.

CPI Adjustments

In their=20 first issue, appellants contend that they are "entitled to = judgment=20 against Rustin on the CPI claims because the unambiguous contracts = should=20 be interpreted by the court, and the damages are liquidated and=20 undisputed."=20 (3) We disagree.

Standard = of=20 Review

A judgment = notwithstanding=20 the verdict ("JNOV") is proper when a directed verdict would have = been=20 proper. Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. = v.=20 Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A motion for JNOV = should be=20 granted when (1) the evidence is conclusive and one party is = entitled to=20 recover as a matter of law or (2) a legal principle precludes = recovery.=20 Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. = 1990);=20 John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.=20 App.--Houston [1st Dist.] 1992, writ denied). We review the denial = of the=20 appellants' motion under the legal sufficiency standard. See = Brown v.=20 Bank of Galveston, 963 S.W.2d 511, 513 (Tex. 1998); CDB = Software,=20 Inc. v. Kroll, 992 S.W.2d 31, 35 (Tex. App.--Houston [1st = Dist.]=20 1998, pet. denied).

In a = legal-sufficiency=20 review, a court should look at all the evidence in the light most=20 favorable to the finding to determine whether a reasonable trier = of fact=20 could have formed a firm belief or conviction that its finding was = true.=20 City of Keller v. Wilson, 168 S.W.3d 802, 822 = (Tex. = 2005). To give=20 appropriate deference to the factfinder's conclusions and the role = of a=20 court conducting a legal sufficiency review, looking at the = evidence in=20 the light most favorable to the finding means that a reviewing = court must=20 assume that the factfinder resolved disputed facts in favor of its = finding=20 if a reasonable factfinder could do so. Id. A corollary = to this=20 requirement is that a court should disregard all evidence that a=20 reasonable factfinder could have disbelieved or found to have been = incredible. Id. This does not mean that a court must = disregard=20 all evidence that does not support the finding. = Id.

Analysis=20

The jury=20 answered the following questions pertaining to Rustin:

Question 9

Did Rustin=20 fail to comply with the contracts between Superior and Rustin in = payment=20 of CPI increases?



It is your=20 duty to interpret the following language of the signed agreements = between=20 Rustin and Superior:



"The=20 transportation rate for the applicable Contract Year shall be = adjusted . .=20 . ."



You must=20 decide its meaning by determining the intent of the parties at the = time of=20 the agreement. Consider all the facts and circumstances = surrounding the=20 making of the agreement, the interpretation placed on the = agreement by the=20 parties, and the conduct of the parties.


Answer=20 "Yes" or "No":



Answer:=20 [No]



Jury=20 Question 19 simply replaced "Superior" with "JTI," but was = otherwise=20 verbatim. The jury answered Jury Question 19 "No" as well. =

Superior=20 and JTI each signed a set of three hauling subcontracts with = Rustin.=20 Exhibit "A" to each subcontract called for a rate adjustment for = "the=20 applicable Contract Year," but did not define that term. Although=20 appellants suggest that we should construe the various contracts = at issue=20 as a matter of law, the trial court evidently found language in = these=20 contracts ambiguous. In the jury charge, the trial court submitted = an=20 instruction that the jury "must decide [the contract's] meaning by = determining the intent of the parties at the time of the = agreement."=20 See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 = (Tex.=20 2003) (ambiguous contract creates a fact issue on the parties' = intent).=20 Although appellants find it significant that Rustin did not plead=20 ambiguity, a court may conclude that a contract is ambiguous even = in the=20 absence of a proper pleading by either party. Id. at=20 231.

Section=20 6.03 of the City Contract provides for the adjustment of rates=20 "[b]eginning July 1, 2001 and each subsequent July 1, thereafter," = in=20 accordance with the CPI formula set forth in Exhibit "H" to the = contract.=20 Appellants contend that the Rustin subcontracts should be read = together=20 with the City Contracts to ascertain the parties' intent. All six = of the=20 Rustin subcontracts were executed at the same time and all say the = same=20 thing: Superior's and JTI's rates for the "applicable Contract = Year" shall=20 be adjusted using the formula set forth in Exhibit "A." Appellants = argue=20 that the language in Exhibit "A" of the Rustin subcontracts = "exactly=20 mirrors" the language in Exhibit "H" of the City Contract. = Appellants=20 suggest that the Rustin subcontracts should be read in conjunction = with=20 the City Contract, which, under its operative provisions, includes = a July=20 1, 2001 effective date for CPI adjustments.

Exhibit "A"=20 to the Rustin subcontracts provides, in part, as = follows:

Cost Adjustment for = Transportation=20 Rate:

The=20 transportation rate for the applicable Contract Year shall be = adjusted by=20 the cumulative percent determined as follows:


0.30 times=20 the Labor Index for the applicable Contract Year divided by the = Labor=20 Index for March, 1998; plus



0.30 times=20 the Machinery and Equipment Index for the applicable Contract Year = divided=20 by the Machinery and Equipment Index for March 1998; = plus


0.40 times=20 the Fuel Index for the applicable Contract Year divided by the = Fuel Index=20 for March 1998.



Exhibit "H"=20 to the City Contract provides, in part, as follows:


CPI COST=20 ADJUSTMENT



The=20 disposal rate for the applicable Contract Year shall be = adjusted=20 by the cumulative percent determined as follows:


0.20=20 times the Construction Index for the applicable Contract Year = divided by=20 the Construction Index for March 1998;


plus 0.30=20 times the Labor Index for the applicable Contract Year divided by = the=20 Labor Index for March 1998;



plus=20 0.35 times the Machinery and Equipment Index for the = applicable=20 Contract Year divided by the Machinery and Equipment Index for = March=20 1998;



plus=20 0.15 times the Fuel Index for the applicable Contract Year = divided by=20 the Fuel Index for March 1998.



(Emphasis=20 added to note the differences in the two provisions.) Appellants = find it=20 significant that both exhibits capitalize "Contract Year." They = argue=20 that, if the subcontracts and the City Contract are read together = and the=20 rate is adjusted on July 1 of each year, Superior is due $77,204 = and,=20 after crediting Rustin for its overpayment on the = Sommermeyer/Highway 290=20 route, JTI is due $160,002.=20 (4)

In contrast, both = Rustin's=20 president, Sid Sherwood, and owner, Donald Poarch, testified that = its=20 intent was for Superior and JTI to get increases when Rustin=20 received

its increases = under Rustin's=20 various contracts.=20 (5) = The=20 appellants argue that, if there is an ambiguity, "a possible=20 interpretation of 'applicable Contract Year' is that Superior and = JTI were=20 to receive rate adjustments on each route when Rustin received its = adjustments from its customers." Using these dates for = adjustments, the=20 appellants assert that Superior is due $72,618 and JTI is due = $154,987.96.=20

Finally, = appellants state=20 that "the only other interpretation for the 'applicable Contract = Year' is=20 that the rate increases were to be paid one year after actual work = began=20 on each route." Appellants contend, however, that this = interpretation is=20 unreasonable when viewed in light of the context of the other=20 contemporaneous contracts and circumstances. In summary, = appellants argue=20 that, under any interpretation, Rustin breached its contracts and = failed=20 to pay the adjustments.

Rustin asserts = that neither=20 Superior nor JTI was entitled to any adjustments because (1) = Superior=20 stopped hauling before any CPI increases became due and (2) JTI = "was=20 brought up to date on all its CPI increases in February 2003, = after it=20 quit hauling from all but the Sommermeyer transfer station, for = which it=20 had been previously overpaid." In June 2001, Poarch's CPA, Jim = Pouns,=20 proposed to Republic's president, Bill Linthicum, that Rustin = receive a=20 rate increase. Pouns asked for a delay on any increases, and Pouns = asked=20 Linthicum what constituted the "applicable Contract Year" for = purposes of=20 CPI adjustments under Superior's contracts with Rustin. Linthicum=20 responded via e-mail that he thought the "applicable Contract = Year" meant=20 the "initial operating date," which, for the City-owned transfer = stations,=20 was March 9, 2001, when the Westpark transfer station was opened.=20 Linthicum's e-mail stated that "I have read the contract between = Rustin=20 and Superior, and I interpret the contract year as March 9, 2001, = though=20 March 8, 2002. There is nothing in the contract defining 'contract = year.'=20 Superior Waste Management stated this contract began on March 9th, = 2001,=20 not when the agreement was signed." Accordingly, Linthicum = instructed=20 Rustin to prepare for a CPI adjustment for Superior in March 2002, = and, as=20 is standard in the trucking industry, only if Superior requested = one.=20 (6) = Neither=20 Superior nor JTI requested a CPI increase either in July 2001 or = March=20 2002.

Jones's first = formal request=20 for a rate increase was in a demand letter sent by his attorney in = August=20 2002 after Superior had already stopped hauling for Rustin. Sid = Sherwood,=20 Rustin's president, responded and explained that Superior was not = due any=20 adjustments using the base year 2000 because decreases in the fuel = index--the most heavily-weighted index under the Rustin=20 subcontracts--offset any increases in other indices. However, = Superior's=20 inquiry prompted Sherwood to ask Jim Goodyear to review JTI's = numbers to=20 determine if JTI was being paid the proper rate. Using March 1, = 2002 as=20 the initial due date for CPI adjustments and the CPI formula in = the Rustin=20 subcontracts, Goodyear found that JTI was underpaid on some routes = and=20 overpaid on others (namely, Sommermeyer), and he prepared a = schedule of=20 price increases for JTI, effective on September 1, 2002. =

Goodyear testified = that he=20 used the date of March 1, 2002 to calculate the CPI adjustments = because=20 that date was the one-year anniversary of the opening of Westpark; = in=20 other words, it was the first due date for an adjustment based on = a March=20 1, 2001 "Initial Operating Date."=20 (7)=20 Consequently, Rustin issued two checks to JTI totaling more than = $65,000.=20 With respect to Superior, Goodyear indicated that it was not = entitled to=20 adjustments because it was no longer hauling for Rustin as of = March 1,=20 2002.

Appellants have = presented at=20 least three different versions of how the contract could have been = interpreted. Rustin presented evidence from, among others, Jim = Goodyear=20 and Bill Linthicum who both testified that it was their = understanding and=20 impression that the adjustment date should be March 2002, if = requested by=20 JTI and Superior. We must assume that the jury resolved disputed = facts in=20 favor of its finding. See City of Keller, 168 S.W.3d at = 822.=20 After reviewing the record in the light most favorable to the = jury's=20 finding and disregarding all evidence that a reasonable factfinder = could=20 have disbelieved or found to be incredible, we hold that the = evidence is=20 legally sufficient to support the judgment and the trial court did = not err=20 in denying the appellants' motion for directed verdict.

We overrule = appellants'=20 first issue.

Incurable Jury Argument

In their second = issue,=20 appellants argue that the trial court erred in denying their = motion for=20 new trial because "the false accusations against counsel for = Superior and=20 JTI that he had suborned perjury" made by counsel for appellees in = closing=20 argument, "constitute incurable, reversible error." Appellants = argue that=20 "House committed incurable reversible error by accusing John Able=20 (Rustin's trial counsel) of suborning perjury." "Attacks upon the=20 integrity of opposing counsel are categorically prohibited." = Appellants=20 further argue that "Ms. House planned this argument. She attempted = to=20 plant the seed of some improper conduct by Mr. Able during her = cross. She=20 then argued it as fact during her closing argument." Appellants = contend=20 that, because the evidence "absolutely establishes that Rustin = failed to=20 pay the contracted rate for services to Superior or JTI," it is = impossible=20 to conclude that the jury was not influenced by the "outrageous=20 accusation" against Superior and JTI's lawyer. We = disagree.

Closing = Argument and=20 Motion for New Trial

In closing = argument,=20 Republic's counsel commented that "[t]his case is a construction = of=20 attorneys, trying to turn a letter of intent into something = entirely=20 unintended by any of the parties." Next, Rustin's counsel, = Jennifer House,=20 stated

[House]: = [Republic's lawyer]=20 alluded to the fact that this case is a lawyer's construct, it is = created=20 by lawyers. I am proud to be a lawyer. I take no pride in accusing = other=20 lawyers of wrongdoing, but I cannot help but have difficulty with = the fact=20 that Rustin never made representations to these minority = subcontractors=20 that they were going to be entitled to overall 20 percent = participation of=20 $295 million.



. . . =


And when = [Valeriano]=20 testified in October of 2002 that he was operating profitably from = Westpark and Lawndale, he was telling the truth.


Why did the story = change,=20 then? Why did the story change? Because he met Mr. Able and Mr. = Able said,=20 "Jesse, by the way, did you know under our theory you are entitled = to $5=20 million of profit over 20 years?"



[Able]: Objection, = Your=20 Honor. There is no evidence that I told him = anything.


[Trial Court]:=20 Sustained.



[House]: Suddenly = -- and you=20 heard the testimony. Mr. Able questioned him, and the testimony = was he met=20 with Mr. Able after his deposition. Do you know who else he met = with? The=20 gentleman sitting in this corner right here, Greg Brown,=20 CPA.



. . = .


And I will tell = you why he=20 is a party to this lawsuit. Because the couple of hundred thousand = dollars=20 that he was going to make or was making with Rustin, vis-a-vis the = existing work that he was doing, in his mind was peanuts compared = to the=20 $5 million that he was going to ask you for under the trumped up = claim=20 that he was entitled to 10 percent of $295 million over 20 years. = And=20 that's why the story changed, and that's why we are = here.

After nearly three = weeks of=20 trial, the case was submitted to the jury on issues primarily = relating to=20 whether the Letters of Intent gave rise to a contract between = Republic and=20 Superior and/or JTI, whether Republic breached that contract, = whether=20 Republic committed fraud in connection with the Letters of Intent, = and=20 whether Rustin breached its subcontracts with Superior and JTI to = pay CPI=20 increases. By an 11-1 verdict, the jury found in favor of Republic = and=20 Rustin on all issues.

Appellants filed = their=20 motion for new trial, alleging, among other things, that House's = closing=20 argument constituted incurable, reversible error. After = significant=20 briefing and two hearings, the trial court denied the motion. In = its=20 order, the trial court stated that

the court = considered the=20 entire record and believes that the evidence supports the jury = verdict and=20 was not the result of the improper, inflammatory jury argument = made by=20 Jennifer House.



The court has = reviewed all=20 of the evidence in the case supporting the jury verdict and finds = that=20 there is more than sufficient evidence to support the verdict. The = court=20 also notes that the inflammatory argument was of short duration, = was not=20 repeated, and an objection to the argument was promptly sustained. = There=20 was also evidence that Mr. Valeriano's testimony did change. The = court=20 finds that the probability that the jury verdict was grounded on = proper=20 evidence is greater than the probability that the verdict was = based on the=20 improper argument.



But let there be = no doubt=20 that the argument was improper. And although Ms. House in oral = argument=20 stated that she "was stunned by the seriousness with which the = Court=20 regarded the allegations," the denial of the new trial does not = mean that=20 the court condones this type of argument. Attacks on opposing = counsel are=20 error. (citations omitted)



In Ms. House's = argument she=20 completely concocted a conversation between the plaintiff's = counsel, Mr.=20 Able, and the plaintiff, Mr. Valeriano, and implied that Mr. Able = suborned=20 perjury. Ms. House stated in closing argument "Why did the story = change,=20 then? Why did the story change? Because he met Mr. Able and Mr. = Able said,=20 'Jesse, by the way, did you know under our theory you are entitled = to $5=20 million of profit over 20 years?'"

What is most = disturbing is=20 Ms. House's attempt to explain away this made-up conversation. In = her=20 brief and in her oral argument before the court she attempted to = justify=20 her statement, claiming it was based on questions asked by Mr. = Able in a=20 deposition. The court has reviewed the entire deposition of Mr. = Valeriano=20 and there is no reference to such a question or statement or = meeting. And=20 most certainly there was no evidence before the jury of such a = question or=20 statement or meeting. Ms. House continues her misstatements in her = briefing. At page 5 of her brief, Ms. House says, "each and every=20 questioned statement made by Ms. House is in the record and is = based in=20 fact." There is absolutely no evidence in the record of such a = meeting or=20 such a statement.



At oral argument, = realizing=20 that the court was skeptical that questions were asked in a = deposition=20 would be considered a meeting, Ms. House then argues that Mr. Able = and Mr.=20 Valeriano must have met to form the attorney client relationship = and that=20 such a meeting could be inferred from the fact that Mr. Valeriano = became=20 Mr. Able's client. While undoubtedly there were many meetings = between Mr.=20 Able and Mr. Valeriano, (although of course there is no evidence = in the=20 record of such meetings) what Ms. House fabricated was the content = of such=20 a meeting and the implication that Mr. Able suborned perjury and = induced=20 Mr. Valeriano to change his story.



Lawyers, in the = heat of=20 battle, do make misstatements of fact and law, and unwarranted = personal=20 criticisms. But they should not compound their errors in legal = briefs=20 filed after careful reflection. And they should not impugn the = rest of=20 their law firm by making an irrelevant argument that "all of my = partners=20 were 100% behind my representation."



Standard of=20 Review

We review the = denial of a=20 motion for new trial to determine if the trial court=20 abused its discretion. Champion Int'l Corp. v. = Twelfth Court=20 of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. = proceeding). A=20 trial court abuses its discretion when it acts in an arbitrary or=20 unreasonable manner or if it acts without reference to any guiding = rules=20 or principles. Downer v. Aquamarine Operators, Inc., 701 = S.W.2d=20 238, 241-42 (Tex. 1985).

To obtain reversal = of a=20 judgment on the basis of improper jury argument, a complainant = must prove=20 (1) an error; (2) that was not invited or provoked; (3) that was = preserved=20 at trial by a proper objection, motion to instruct, or motion for=20 mistrial; (4) that was not curable by an instruction, a prompt = withdrawal=20 of the statement, or a reprimand by the trial court; and that (5) = the=20 argument by its nature, extent, and degree constituted reversibly = harmful=20 error. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, = 839 (Tex.=20 1979). Reversal is proper only upon a showing that "the = probability that=20 the improper argument caused harm is greater than the probability = that the=20 verdict was grounded on the proper proceedings and evidence." = Id.=20 at 840.

An=20 Error

To obtain=20 reversal, appellants must first prove "an error" that was not = "invited or=20 provoked." Id. at 839. Counsel must = confine=20 argument "strictly to the evidence and to the arguments of = opposing=20 counsel." Tex. R. Civ. P. 269(e). Criticism, censure, or = abuse of=20 counsel is not permitted. Appeals to passion and prejudice are = improper,=20 as=20 are=20 calls to punish a litigant for the acts of counsel. Tex. R. Civ. = P. 269;=20 Tex. Disciplinary R. Prof'l Conduct 3.04 (1990), reprinted in=20 Tex. Gov't Code Ann. tit. 2, subtit G. app. A (Vernon 2005) = (Tex.=20 State Bar R. art. X, =A7 9).

In this=20 case, there was no evidence of any post-deposition meeting between = Valeriano and his attorney. House's assertion that Valeriano's = testimony=20 changed "because he met Mr. Able and Mr. Able said, 'Jesse, by the = way,=20 did you know under our theory you are entitled to $5 million of = profit=20 over 20 years?'" and her decision to repeat Republic's statement = that this=20 "case is a lawyer's construct" constituted improper jury=20 arguments. See id. House's closing = arguments=20 were not confined "to the evidence and to the argument of opposing = counsel," and thus violated rule 269(e). No one argues that the = error was=20 invited or provoked.

Preservation=20 of Error

Appellants=20 must next prove either that the uninvited error (1) was preserved = at trial=20 by a proper objection, motion to instruct, or motion for mistrial = or (2)=20 was not curable by an instruction, a prompt withdrawal of the = statement or=20 a reprimand by the trial court. Standard Fire=20 Ins. Co., 584 = S.W.2d at=20 839. If a party is to preserve error, an = objection must=20 be made when the improper argument occurs, unless the conduct or = comment=20 cannot be rendered harmless by proper instruction. Dow Chem. = Co. v.=20 Francis, 46 S.W.3d 237, 241 (Tex. 2001). The burden to prove = that=20 improper argument was incurable rests on the claimant. See = Gen. Motors=20 Corp. v. Grizzle, 642 S.W.2d 837, 845 (Tex. App.--Waco 1982, = writ=20 dism'd).

Appellants=20 made one objection to the argument, and the trial court sustained = the=20 objection; however, appellants failed to request that the trial = court=20 instruct the jury to disregard the argument. Appellants did not = request=20 any relief from the trial court regarding these comments until = their=20 motion for new trial, after the jury had returned a verdict. Thus, = to=20 prevail, appellants must show that the statements constituted = incurable=20 jury argument. See Busse v. Pac. Cattle Feeding Fund No. 1, = Ltd.,=20 896 S.W.2d 807, 815 (Tex. App.--Texarkana 1995, writ denied) = (stating=20 failure to press for instruction at time of erroneous jury = argument=20 operates as waiver of any possible complaint about argument).=20

Improper=20 jury arguments can be either curable or incurable. Otis = Elevator Co.=20 v. Wood, 436 S.W.2d 324, 333 (Tex. 1968). A jury argument is=20 "curable" when its harmful effect can be eliminated by instructing = the=20 jury to disregard what they have just heard. Id. However, = when an=20 argument is so inflammatory that its harmfulness could not be = eliminated=20 by an instruction to the jury to disregard it, the prejudicial = nature of=20 the argument is so acute that it is "incurable." Id. If = an=20 argument is considered to be curable, counsel must make a prompt = objection=20 to it and request an instruction, or the error is waived. = Id. When an argument is incurable, a failure to object = does not=20 result in a waiver, under the reasoning that "counsel making the = argument=20 is the offender so the law will not require opposing counsel to = take a=20 chance on prejudicing his cause with the jury by making the = objection."=20 Id. Whether an argument is incurable depends on "the = degree of=20 prejudice flowing from the argument--whether the argument, = considered in=20 its proper setting, was reasonably calculated to cause such = prejudice to=20 the opposing litigant that a withdrawal by counsel or an = instruction by=20 the court, or both, could not eliminate the probability that it = resulted=20 in an improper verdict." Id.

Here, to=20 decide whether the jury argument was incurable, we examine the = record to=20 determine whether an instruction to disregard House's improper = arguments=20 would have sufficiently remedied the harm. See = Standard Fire=20 Ins. Co., 584 S.W.2d at 839; = Goswami v.=20 Thetford, 829 S.W.2d 317, 321 (Tex. App.--El Paso 1992, writ = denied).=20 Only rarely will an improper argument so prejudicially influence = the jury=20 that the error cannot be cured. Standard Fire=20 Ins. Co., 584 S.W.2d at 839; see = Tex.=20 Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859, 862-67 = (Tex.=20 App.--San Antonio 1990, writ denied) (holding intentional appeal = for=20 verdict based on parties' race or ethnicity is incurable); = Howard v.=20 Faberge, Inc., 679 S.W.2d 644, 649-50 (Tex. App.--Houston = [1st Dist.]=20 1984, writ ref'd n.r.e.) (holding demonstration of product's=20 inflammability by counsel's attempt to ignite his arm during = closing=20 argument was incurable when experiment was not cumulative of = evidence=20 adduced during trial); In re W.G.W., 812 S.W.2d 409, = 415-16 (Tex.=20 App.--Houston [1st Dist.] 1991, no writ) (holding in custody = dispute that=20 attempt to link mother's cervical cancer to immoral conduct was = incurable=20 because there was no evidence to support such = connection).

Improper = argument=20 regarding the alleged wrongful conduct by a lawyer is not per = se=20 incurable. As Texas courts have held, "charges that opposing = counsel=20 manufactured evidence, suborned perjury, or was untruthful are = highly=20 improper and are generally considered to be = incurable."=20 Yoakum, 826 = S.W.2d. at 758=20 (emphasis added). To determine whether a specific = instance of=20 accusing opposing counsel of suborning perjury is incurable, we = must=20 examine all of the circumstances surrounding the making of the = statement=20 to determine if the comment was so inflammatory that its perceived = prejudicial effect could not have been cured by an instruction to = the=20 jury. Standard Fire=20 Ins. Co., 584 S.W.2d at 840.

Under the=20 facts of this case, House's comments were curable. To preserve = error,=20 appellants should have timely objected to the comments and sought = an=20 appropriate instruction from the trial court who, after listening = to all=20 of the evidence and the offending comments and viewing the jury's = reaction=20 to the comments, was in the best position to fashion the = appropriate=20 remedy for the transgression and punish counsel for her conduct.=20 Appellants should not have waited until after the jury had = returned with=20 its verdict to seek relief for House's clearly improper=20 argument.

While=20 House's comments were reprehensible, the comments were short in = duration=20 and occurred at the very end of almost three weeks of trial after = the jury=20 had heard all of the evidence, including evidence that clearly=20 contradicted House's accusations of perjury. Although the record=20 indisputably reveals that Valeriano did testify differently when = deposed=20 during the suit between Superior and Republic and later when JTI=20 intervened in the suit against Republic and Rustin, Valeriano = presented=20 the jury with an arguably legitimate explanation for the change in = his=20 position.=20 (8) = Thus, the=20 jury could have, with the proper instruction, found House's = arguments to=20 be deliberately false and in bad faith. Furthermore, contrary to = House's=20 apparent implications, the issue of the changed testimony was not=20 dispositive of the jury's determination of this case. This issue = went to=20 appellants' theory of damages, how much appellants were entitled = to=20 recover, which the jury never reached per the court's = instructions. The=20 changed testimony did not go to the issue of liability that was = reached by=20 the jury--whether there was a breach of contract regarding CPI = adjustments=20 and the requisite contractual percentage of income that appellants = were=20 required to make under their contracts with Rustin. Of particular=20 importance is the fact that at no time did the trial court in any = way=20 condone or show approval for the comments in front of the jury and = thus=20 its ability to issue a curative instruction was not impaired. = See=20 Yoakum, 826 S.W.2d. at 758-59. Appellants' only objection was = immediately sustained by the court, and appellants elected not to = pursue=20 the matter any further by requesting an instruction to disregard = or a=20 reprimand from the court.

Under these facts, = House's=20 comments were not so inflammatory that their perceived prejudicial = effect=20 would have prevented the jury from following its oath with the = proper=20 instructions from the judge. Appellants could have requested the = trial=20 court to instruct the jury that "the record does not show any=20 post-deposition meeting or conversations between Mr. Able = [appellants'=20 counsel], his retained accounting experts, and Mr. Valeriano and = to=20 disregard any reference to such meeting or conversations between = any of=20 them." Appellants could have gone further by asking the trial = court to=20 instruct the jury that it was improper for House to impute = wrongdoing of=20 any kind to appellants' counsel. The trial court, if it had been = timely=20 requested to do so, could have also admonished House that any = further=20 argument along such lines would result in a mistrial. In this = case, the=20 timely request for relief regarding an imaginary post-deposition = meeting=20 or conversation would not have prejudiced appellants' case in = front of the=20 jury. See General Motors Corp. v. Iracheta, 161 = S.W.3d.=20 462, 472 (Tex. 2005) (held comments before closing arguments made = in=20 Spanish by party, not his counsel, directly to a Spanish speaking = jury=20 were incurable.)

Appellants' = reliance on the=20 holdings in Yoakum and Stephens v. Smith, 208 = S.W.2d 689=20 (Tex. Civ. App.--Waco 1948, writ ref'd n.r.e.) to support the = conclusion=20 that House's comments constituted incurable error is misplaced. = The facts=20 of those cases are clearly distinguishable from the facts in this = case. In=20 both of the cases in which the appellate courts found allegations = that=20 counsel manufactured evidence at trial to be incurable, the trial = court,=20 by its conduct, erroneously condoned or implied to the jury that = the=20 conduct was proper. Accordingly, the trial court's ability to = fashion an=20 appropriate instruction was impaired. In Yoakum, not only = did the=20 trial court erroneously prevent counsel from arguing that = allegations of=20 manufactured evidence by opposing counsel was error, but the = offending=20 counsel referred to the trial court's rulings to bolster his = allegations=20 in front of the jury. Yoakum, 826 S.W.2d at 758. = Likewise in = Stephens,=20 the court overruled attempts by opposing counsel to correct = the error=20 of counsel's arguments that he "deliberately planted a lie in the = mouth of=20 a witness." Stephens, 208 S.W.2d at 691. In other cases = cited by=20 appellants, in which allegations that counsel manufactured and/or=20 destroyed evidence were found to be incurable, either additional = facts=20 impaired the trial court's ability to give an effective curative=20 instruction, or the length of the improper argument made an = effective=20 curative instruction impossible. See Howsley & = Jacobs v.=20 Kendall, 376 S.W.2d 562, 566 (Tex. 1964) (held that counsel's = comments were incurable when, during closing argument, counsel = asked the=20 jury who was more likely to be telling the truth--a man on his = deathbed=20 "about to come face to face with his Master" or "a colored boy who = had=20 been under the coaching of this battery of lawyers, when he got on = there=20 to give words that were not his words."); Montgomery Ward = & Co. v.=20 Brewer, 416 S.W.2d 837, 845-48 (Tex. Civ. App.--Waco 1967, = writ ref'd=20 n.r.e.) (held as incurable repeated accusations throughout closing = argument that opposing counsel had destroyed key evidence as to = the issue=20 of liability and the pointing directly to counsel while making = these=20 accusations).

Because we=20 hold that the error was curable by an instruction, a prompt = withdrawal of=20 the statement, or a reprimand by the trial court, the appellants = were=20 required to object, request an instruction to disregard, and = request a=20 motion for mistrial. Standard Fire Ins. = Co., 584=20 S.W.2d at 839. = By=20 failing to do so, appellants have waived this error. = Id.=20 We overrule appellants' second issue.

Harm

Finally, assuming = that the=20 error had been preserved, appellants must prove that "the argument = by its=20 nature, extent, and degree constituted reversibly harmful error."=20 Id. On appeal, we must evaluate the improper argument in = light of=20 the entire case, from voir dire to closing arguments. Luna v. = North=20 Star Dodge Sales, Inc., 667 S.W.2d 115, 120 (Tex. 1984). The = test is=20 whether a juror of ordinary intelligence would have been persuaded = by the=20 improper argument to agree to a verdict contrary to that to which = the=20 juror would have otherwise agreed. See Tex. Employers Ins. = Ass'n v.=20 Puckett, 822 S.W.2d 133, 136 (Tex. App.--Houston [1st Dist.] = 1991,=20 writ denied).

We have reviewed = the entire=20 record, and we agree with the trial court's finding = that

[t]he court has = reviewed all=20 of the evidence in the case supporting the jury verdict and finds = that=20 there is more than sufficient evidence to support the verdict. The = court=20 also notes that the inflammatory argument was of short duration, = was not=20 repeated, and an objection to the argument was promptly sustained. = There=20 was also evidence that Mr. Valeriano's testimony did change. The = court=20 finds that the probability that the jury verdict was grounded on = proper=20 evidence is greater than the probability that the verdict was = based on the=20 improper argument.



Accordingly, we = hold that=20 the trial court did not err in denying appellants' motion for new = trial.=20 See Standard Fire Ins. Co., 584 S.W.2d at 840 (for = reversal, must=20 show probability that improper argument caused harm greater than=20 probability verdict grounded on proper proceedings and evidence).=20

We overrule = appellants'=20 second issue.









Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice



Panel consists of Justices Jennings, Hanks, and Higley.



Justice Jennings,=20 dissenting.

1. During the = pendency=20 of this appeal, appellants dismissed Republic from the appeal.=20

2. Valeriano = prepared=20 the financial statement by taking the income that he received from = the two=20 transfer stations, calculating that income as a percentage of his = total=20 revenue, and then applying that percentage to his costs.=20

3. While the = appellants=20 do not specify the procedural vehicle whereby they preserved their = matter-of-law point on appeal, the record reflects that they filed = a=20 motion for judgment notwithstanding the verdict ("JNOV") asserting = that=20 they were entitled to a JNOV on their contract claim against = Rustin for=20 CPI adjustment increases. A legal-sufficiency challenge may be = preserved=20 by a motion for directed verdict, a motion for judgment = notwithstanding=20 the verdict, an objection to submitting an issue to the jury, a = motion to=20 disregard a jury finding on an issue, or a motion for new trial. = See=20 Cecil v. Smith, 804 S.W.2d 509, 511 (Tex. 1991); C.M. = Asfahl=20 Agency v. Tensor, Inc., 135 S.W.3d 768, 786 (Tex. = App.--Houston [1st=20 Dist.] 2004, no pet.).=20

4. Rustin's = CFO, Jim=20 Goodyear, agreed with the calculations from Greg Brown, = appellants'=20 accounting expert, based on a July 1, 2001 effective date. = However, he=20 took issue with the July 1, 2001 effective date.=20

5. Sherwood = testified=20 that he was under the impression that, when Rustin got a rate = increase,=20 JTI and Superior would get an increase, but he changed his = understanding=20 when "it was pointed out to me in the contract."=20

6. Linthicum = testified=20 that, "in our business, in the waste hauling business, all CPIs = are -- it=20 is the burden of the person contracting the services to request = CPIs,=20 whether they are increases or decreases. It is standard in the = industry."=20

7. Westpark = actually=20 opened on March 9, 2001, but it was easier to calculate from the = first of=20 the month.=20

8. At trial, = Valeriano=20 testified that, when he was deposed, he was under the impression = that the=20 Westpark route was profitable. He had not evaluated the various = routes=20 separately. Based on the line of questions posed to him during his = deposition, he determined that he needed to have an accountant = audit the=20 individual routes. He testified at trial that, only after he was = able to=20 take the time to do so, he discovered that the Westpark route was = not, in=20 fact, profitable. =

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