Opinion issued=20
June 19, 2008
In The
Court of=20
Appeals
For=20
The
First =
District of=20
Texas
NO.=20
01-06-00816-CV
HERBERT L. JACK,=20
Appellant
V.
HOLIDAY WORLD OF=20
HOUSTON, FOREST RIVER, INC., and BANK OF AMERICA, N.A., Appellees
On Appeal from the =
281st=20
District Court
Harris County,=20
Texas
Trial Court Cause =
No.=20
2002-26339
O P I =
N I O=20
N
&nbs=
p; Appellant, Herbert L. Jack, brought suit =
against=20
appellees, Holiday World of Houston (=E2=80=9CHoliday =
World=E2=80=9D), Forest River, Inc.=20
(=E2=80=9CForest River=E2=80=9D), and Bank of America, N.A. =
(=E2=80=9CBank of America=E2=80=9D), after he=20
purchased from Holiday World, with financing by Bank of America, a =
motor=20
home that was built by Forest River. Jack appeals the final =
judgment of=20
the court. We consider whether the court erred in (1) =
reconstituting the=20
jury after declaring a mistrial, (2) overruling Jack=E2=80=99s =
Batson=20
challenges, and (3) granting partial summary judgment. We=20
affirm.
Facts
<=
/SPAN>In=20
May 2000, Jack purchased from Holiday World a motor home built by =
Forest=20
River. Jack financed the purchase through a retail installment =
contract=20
(=E2=80=9Cthe Contract=E2=80=9D) that was later assigned to Bank =
of America. Subsequently,=20
Jack brought a complaint under section 6.07 of the former Texas =
Motor=20
Vehicle Commission Code, ![3DFootnote](3D"")
alleging various electrical and =
mechanical=20
defects with the motor home. The administrative law judge =
(=E2=80=9CALJ=E2=80=9D)=20
determined that Jack failed =E2=80=9Cto show by a preponderance of =
the evidence=20
that any warrantable defect currently exists which justifies =
relief under=20
Section 6.07 of the Texas Motor Vehicle Commission Code.=E2=80=9D =
The ALJ issued=20
an order denying all relief sought, which Jack did not appeal. =
Rather,=20
Jack filed suit in district court against Holiday World, Forest =
River, and=20
Bank of America (collectively, =E2=80=9Cappellees=E2=80=9D), =
alleging breach of contract,=20
violations of the Texas Trade Deceptive Practices=E2=80=93Consumer =
Protection Act=20
(=E2=80=9CDTPA=E2=80=9D),
revocation of acceptance, breach =
of=20
warranty, and derivative claims based on the Contract. Bank of =
America=20
counterclaimed against Jack for breach of contract, alleging that =
Jack had=20
borrowed $98,079.57 from Bank of America for the motor home =
purchase, but=20
had repaid only approximately $25,000.
<=
/SPAN>Appellees=20
each moved for summary judgment. The trial court=E2=80=99s =
interlocutory order=20
granted, in part, those motions, ordering
that Plaintiff Herbert Jack=E2=80=99s =
claim for revocation=20
is dismissed as to all Defendants and that Plaintiff take nothing =
from=20
such claim.
. . . that Plaintiff=E2=80=99s claim for =
breach of an=20
express warranty as to Defendant Forest River Inc. is dismissed =
and that=20
Plaintiff take nothing from Defendant Forest River Inc. from such=20
claim.
. . . that Plaintiff=E2=80=99s claims =
under the [DTPA] as=20
to the Defendant Bank of America National Association are hereby =
dismissed=20
and that Plaintiff take nothing from Defendant Bank of America =
National=20
Association from such claims.
<=
/SPAN>After=20
a trial on the remaining issues, the court entered a final =
judgment in=20
favor of Jack against Holiday World for $3,300 for breach of =
implied=20
warranty and in favor of Bank of America on its counterclaim =
against Jack=20
in the amount of $126,428.96 for breach of contract and $48,103 =
for=20
attorney=E2=80=99s fees.
Reconstituting the=20
Jury after a Mistrial Was Declared
<=
/SPAN>In=20
his first issue, Jack contends that the trial court erred in=20
reconstituting the jury after having declared a mistrial, despite =
his=20
having acquiesced in continuing the trial and his agreement that =
no appeal=20
would be taken from the decision to continue the trial. The trial =
court=E2=80=99s=20
actions of which Jack complains occurred after Jack had violated a =
standing motion in limine. During Holiday World=E2=80=99s =
examination of him, Jack=20
asked Holiday World=E2=80=99s counsel, =E2=80=9CCould I ask you a =
quick question? Who=20
asked you this question: =E2=80=98How much money did the nigger =
make on the sale=20
of the RV?=E2=80=99=E2=80=9D Jack complains of what =
followed:
The Court:All right. Ladies and =
gentlemen of the=20
jury=E2=80=94I=E2=80=99ve had enough. Okay? Ladies and gentlemen =
of the jury, I am at this=20
time declaring a mistrial in this case. You guys are free to go =
home. I=20
apologize for the time that you have wasted in this case. Please =
go back=20
into the jury room, and I am going to come visit with you in a=20
second.
(Jury not present)
I am assuming the defendants were going =
to move=20
for a mistrial.
[Counsel]:I don=E2=80=99t know, Your =
Honor. Could we have=20
a minute?
The Court:Yes.
[Counsel]:I would like to talk to my=20
client.
(off the record)
The Court:I don=E2=80=99t know if the =
defendants have=20
decided whether or not they indeed want to move for a mistrial or =
not. Let=20
me tell you that I am comfortable that if I have the agreement of =
all=20
parties, that I can instruct the jury that my remark was being =
taken back=20
by the Court and that no appellate point will arise from my =
stating to the=20
jury both that I was declaring a mistrial, and following that up =
with a=20
declaration that my remark is taken back by me and should not =
enter into=20
their deliberations. If I have an agreement by all that those two =
things=20
will not constitute an appellate point by anyone and that everyone =
agrees=20
to proceed with this trial within the parameters as just stated by =
me, I=20
will continue with the trial of this cause.
If, however, there is no agreement or =
for whatever=20
reason a defendant wants to move for a mistrial, I am undecided =
whether or=20
not to carry that motion or to grant it at this point. I just =
haven=E2=80=99t=20
thought that one through. But I wanted to let y=E2=80=99all think =
about my other=20
point.
Lastly, if a mistrial is granted, I will =
take up=20
after the jury is excused=E2=80=94not necessarily today, but at a =
later date=E2=80=94a=20
motion for costs and allow the defendants the opportunity to brief =
the=20
issue and whether or not they are indeed entitled and, if so, to =
what=20
extent, and obviously allow the plaintiffs a chance to respond to=20
that.
Those are the three parameters I have =
thought out.=20
I don=E2=80=99t know if y=E2=80=99all have had a chance to think =
about where we go from=20
here, but I want y=E2=80=99all to know what my thoughts =
were.
. . .
[Counsel]:Your Honor, may I go on the =
record for=20
Mr. Jack a moment?
The Court:Yes.
[Counsel]:All right. Mr. Jack, you have =
been=20
instructed not to do that, correct?
[Jack]:Instructed not to do =
what?
[Counsel]:Not to=E2=80=94you were aware =
of the motion in=20
limine, correct, on racial epithets?
[Jack]:No, sir.
. . .
The Court:Were you informed by your =
counsel not to=20
go into any racial epithets, dispersions, buzz words in front of =
the=20
jury?
[Jack]:I did not see a motion in=20
limine.
The Court:That is not the question I =
asked you,=20
sir.
[Jack]:No.
The Court:Did your counsel tell you that =
you could=20
not say the word you said in front of the jury?
[Jack]:They didn=E2=80=99t tell me that =
I could not say=20
it. They didn=E2=80=99t coach me to say it.
[Counsel]:Mr. Jack, if the Court is =
seeking=20
agreement of the parties, what would be your instructions to =
counsel=20
after=E2=80=94
[Jack]:We=E2=80=99re not going to =
discuss this here,=20
Counsel. My instruction to you would be between me and you, and =
not=20
now.
[Counsel]:I understand. I don=E2=80=99t =
know what to tell=20
the Court, Mr. Jack.
[Jack]:I can tell him. Why don=E2=80=99t =
the Court ask=20
me?
The Court:Are you in agreement that this =
case can=20
proceed notwithstanding that I told the jury that I was declaring =
a=20
mistrial if I instruct the jury when they come back that there was =
no=20
mistrial, that I misspoke, and that they are to disregard not only =
my=20
comments but also your comment? Are you in agreement that the case =
can=20
proceed under those parameters?
[Jack]:Yes.
. . .
[Counsel]:. . . I would like to know if =
Mr. Jack=20
is going to waive any right to appeal the outcome of this trial =
based upon=20
any comments you made regarding mistrial.
[Jack]:No, sir, I=E2=80=99m not giving =
up any of my rights=20
in no shape, form, or fashion.
The Court:The only specific right, Mr. =
Jack, was=20
the right to appeal the continuation of this trial notwithstanding =
my=20
remark regarding the mistrial. That is the only issue =
we=E2=80=99re=20
addressing.
[Jack]:Yes. I just want it understood, =
sir. Any=20
right that the statutes of the state of Texas or the United States =
give me=20
as a plaintiff in this case, I am not waiving.
The Court:With the exception of a right =
that you=20
may or may not have regarding the mistrial comment; is that=20
correct?
[Jack]:I don=E2=80=99t know if I =
understand what you=E2=80=99re=20
saying.
The Court:I think=E2=80=94and I =
don=E2=80=99t know the answer to=20
it, Mr. Jack. I=E2=80=99m telling you I don=E2=80=99t know the =
answer to it. But if I have=20
the agreement of everyone to proceed with this trial =
notwithstanding the=20
remark you made, my remark of the mistrial, what I don=E2=80=99t =
want=E2=80=94and what no=20
one else wants=E2=80=94to be an appellate point is the =
continuation of the trial=20
notwithstanding my remark on a mistrial. And no one=E2=80=99s =
asking you to waive=20
any other rights you may have. What I want to make sure, though, =
is that=20
everyone is in agreement that they will not appeal that single=20
issue.
[Jack]:Tell me if I=E2=80=99m =
understanding you correctly.=20
What you are stating is that the fact that you stated there would =
be a=20
mistrial=E2=80=94that anyone would appeal the fact that you stated =
that there=20
would be a mistrial? Is that correct? Is that what you said? =
That=E2=80=99s the=20
way I=E2=80=99m interpreting what you [sic] saying.
The Court:Close. That if we agree to go =
forward=20
and I bring the jury back in and I tell them there is no mistrial, =
disregard my remark on the mistrial, that you, the bank, Holiday =
World,=20
and Forest River will not appeal that single issue.
[Jack]:That single issue of a =
mistrial.
The Court:Correct.
[Jack]:Okay.
The Court:You agree to that?
[Jack]:Yes.
<=
/SPAN>Jack=20
contends that the =E2=80=9Ctrial court action in using its =
=E2=80=98leverage=E2=80=99 violates the=20
mandate and spirit=E2=80=9D of the Code of Judicial Conduct and =
asserts that the=20
trial court =E2=80=9Cwas without authority to reconstitute the =
jury and proceed=20
with trial=E2=80=9D without any discussion of his agreement and =
what effect it=20
would have on this appellate issue. It is clear from the record =
that=20
neither the trial court nor appellees would have agreed to resume =
the=20
trial had everyone not expressly agreed to continue and to waive =
the issue=20
for appeal. Jack expressly agreed to continue the trial and to =
waive=20
appeal of the issue. Jack nonetheless contends that, at the point =
at which=20
the trial court discharged the jury, it lost subject-matter =
jurisdiction=20
over the case. He contends that, because that subject-matter =
jurisdiction=20
cannot be created by agreement or waiver, he cannot be held to his =
express=20
agreement and waiver of the issue.
<=
/SPAN>Jack=20
cites no authority for his contention that the trial =
court=E2=80=99s ordering of a=20
mistrial deprives it of subject-matter jurisdiction. Although =
there are no=20
precedential civil cases concerning whether a trial court has the=20
authority to rescind a mistrial order, in criminal cases, courts =
have held=20
that a trial court does not lose subject-matter jurisdiction after =
entering a mistrial to rescind its mistrial order. See =
Rodriguez v.=20
State, 852 S.W.2d 516, 520 (Tex. Crim. App. 1993) =
(=E2=80=9C[A]t least as a=20
matter of jurisdiction, the trial court does not lack authority to =
withdraw or rescind its order of mistrial. . . . That an order =
granting a=20
mistrial that is not subsequently withdrawn does indeed have the =
effect of=20
nullifying all proceedings to that point does not mean the trial =
court may=20
not rescind that order, and continue with the trial, so long as =
that=20
remains a viable option under the circumstances.=E2=80=9D); =
Montemayor v.=20
State, 55 S.W.3d 78, 87 n.2 (Tex. App.=E2=80=94Austin 2001, no =
pet.) (=E2=80=9CBy=20
failing to discharge the jury and by ordering the jury to resume=20
deliberation, the court implicitly withdrew its decision to grant =
a=20
mistrial.=E2=80=9D); cf. Fruehauf Corp. v. Carrillo, 848 =
S.W.2d 83, 84=20
(Tex.1993) (holding that trial court had authority, during 75-day =
period=20
in which it had plenary power to rule on motion for new trial, to =
vacate=20
its previous order granting new trial).
We hold that the trial court did =
not lose=20
jurisdiction to withdraw the order of mistrial and to resume=20
trial.
<=
/SPAN>Because=20
the trial court retained jurisdiction to rescind its mistrial =
order, Jack=20
cannot now complain of the trial court=E2=80=99s action to which =
he explicitly=20
agreed. In Salinas v. State, the trial court granted a =
mistrial=20
when a witness made a prejudicial statement on the stand, much as =
what=20
occurred here. See Salinas v. State, 625 S.W.2d 397, 400 =
(Tex.=20
App.=E2=80=94San Antonio 1981, no pet.). The defendant then asked =
the court to=20
rescind the mistrial and to allow the trial to proceed. See =
id. On=20
appeal, the court held that =E2=80=9C[a]n election to proceed to =
trial after=20
withdrawing a motion for mistrial amounts to a waiver by appellant =
of any=20
claim of prejudice from the incident thereafter, either on appeal, =
on=20
motion for new trial, or otherwise.=E2=80=9D Id. =
<=
/SPAN>The=20
same rationale applies here. Jack waived appeal of the =
court=E2=80=99s declaring a=20
mistrial and then rescinding that order. See Kelly v. =
Cunningham,=20
848 S.W.2d 370, 371 (Tex. App.=E2=80=94Houston [1st Dist.] 1993, =
no writ) (=E2=80=9CA=20
party may not lead a trial court into error and then complain =
about it on=20
appeal.=E2=80=9D); see also Doucet v. Owens=E2=80=93Corning =
Fiberglas Corp., 966=20
S.W.2d 161, 165 (Tex. App.=E2=80=94Beaumont 1998, pet. denied) =
(holding that=20
plaintiff could not complain on appeal about juror misconduct when =
plaintiff had opposed motion for mistrial on same ground). =
<=
/SPAN>We=20
overrule issue one.
Batson=20
Challenge
<=
/SPAN>In=20
his second issue, Jack complains that the court erred in =
overruling his=20
Batson challenge to appellees=E2=80=99 use of their =
peremptory strikes on=20
two potential jurors. See Batson v. Kentucky, 476 U.S. 79, =
89, 106=20
S. Ct. 1712, 1719 (1986).
<=
/SPAN>A=20
trial court=E2=80=99s ruling on a Batson challenge is =
reviewed for an abuse=20
of discretion. Baker v. Sensitive Care=E2=80=93Lexington Place =
Health Care,=20
Inc., 981 S.W.2d 753, 757 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1998, no=20
pet.) (citing Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. =
1997)).=20
A trial court abuses its discretion if its decision =E2=80=9Cis =
arbitrary,=20
unreasonable, and without reference to guiding principles. =
Id.=20
<=
/SPAN>Resolution=20
of a Batson challenge is a three-step process: (1) the party =
challenging=20
the strike must establish a prima facie case of racial =
discrimination; (2)=20
if the party challenging the strike does so, the striking party =
must come=20
forward with a race-neutral explanation; and (3) if the striking =
party=20
does so, the party challenging the strike must prove purposeful =
racial=20
discrimination. Miller-El v. Dretke, 545 U.S. 231, 239, 125 =
S. Ct.=20
2317, 2324 (2005); Baker, 981 S.W.2d at 755 (citing=20
Purkett v. Elem, 514 U.S. 765, 767=E2=80=9368, 115 =
S. Ct. 1769,=20
1770=E2=80=9371 (1995)). Jack complains only that the trial court =
failed to=20
complete the third step of the process, giving =
=E2=80=9Cshort-shrift=E2=80=9D to his=20
Batson challenges.
<=
/SPAN>Appellees=20
exercised two of their peremptory strikes on venireperson 10, =
Burrell, and=20
venireperson 31, Babineaux. Jack raised a Batson complaint, =
contending that both Burrell and Babineaux were struck from the =
jury=20
because they were African American. The trial court conducted a=20
Batson hearing, at which appellees explained that Burrell =
was=20
struck because he was =E2=80=9Cfiddling with his cell =
phone=E2=80=9D and =E2=80=9Claughing=20
regularly=E2=80=9D during voir dire, indicating that he would not =
give the case=20
the attention that it deserved. The court agreed:
I find credible the attorney=E2=80=99s =
remarks concerning=20
the way [Burrell] approached the voir dire process. I saw him =
making=20
remarks throughout the voir dire process to other jurors =
notwithstanding=20
that he wasn=E2=80=99t being talked to. I saw him fiddling with =
his cell phone=20
and/or Palm Pilot.
<=
/SPAN>Appellees=20
explained that they used a peremptory strike on Babineaux because =
she was=20
a busy doctor who indicated a desire to avoid serving on the jury. =
Babineaux had stated that she was about to start a long-awaited =
vacation=20
and could not give the case her full attention. Appellees further=20
explained that physicians are generally preoccupied and do not =
make good=20
jurors. The trial court recalled that Babineaux =E2=80=9Cwanted =
off this jury,=20
said it in so many words.=E2=80=9D The court overruled =
Jack=E2=80=99s Batson=20
challenges, finding that both jurors had been struck for =
race-neutral=20
reasons. See Brumfield v. Exxon Corp., 63 S.W.3d 912, 916 =
(Tex.=20
App.=E2=80=94Houston [14th Dist.] 2002, pet. denied) =
(=E2=80=9C[T]he trial court may=20
believe or not believe the explanation offered by the party who =
exercised=20
the peremptory challenge. Whether the race-neutral explanation =
should be=20
believed is purely a question for the trial =
court.=E2=80=9D).
<=
/SPAN>Jack=20
was given the opportunity to show purposeful discrimination as to =
each of=20
the contested peremptory strikes. After appellees stated their=20
race-neutral reasons for striking Burrell, Jack asked, =E2=80=9CDo =
I get to show=20
pretext on that?=E2=80=9D The trial court responded, =E2=80=9CI =
just finished saying that=20
I saw him fiddling with his cell phone, too; and I saw him =
laughing as=20
well. But you may go ahead and say they didn=E2=80=99t see what I =
saw. Go ahead.=E2=80=9D=20
Jack asked more questions about what appellees had =
=E2=80=9Cheard=E2=80=9D from Burrell=20
that led them to use a peremptory strike on him and concluded =
with,=20
=E2=80=9CThat=E2=80=99s all.=E2=80=9D Similarly, after appellees =
had stated their reasons for=20
striking Babineaux, the trial court stated, =E2=80=9CI do remember =
our discussion=20
with her. She wanted off this jury, said it in so many words. I am =
concerned that if she is selected, that she will indeed do a =
disservice,=20
through no fault of her own, to the parties in this =
dispute.=E2=80=9D Jack=20
responded with several questions directed at appellees and, when =
asked if=20
there was anything further, responded, =E2=80=9CThat=E2=80=99s all =
from me, Your Honor.=E2=80=9D=20
Based on this record, we conclude that Jack has failed to show in =
what way=20
the court gave =E2=80=9Cshort-shrift=E2=80=9D to his Batson =
challenges.
<=
/SPAN>We=20
overrule issue two.Partial =
Summary=20
Judgment
<=
/SPAN>In=20
his last issue, Jack complains that the court erred by granting, =
in part,=20
appellees=E2=80=99 motions for summary judgment. Jack contends =
that =E2=80=9Cthe gravamen=20
of all of the motions was that the [appellees=E2=80=99] claims =
were barred under=20
the doctrines of res judicata and/or collateral =
estoppel.=E2=80=9D The=20
partial summary judgment order does not specify the grounds on =
which it=20
was granted. When, as=20
here, a trial court does not state the reasons for its ruling, the =
summary=20
judgment can be upheld upon any theory alleged in the motion. =
Harwell=20
v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.=20
1995).
=
As=20
stated previously, the trial court ordered in its partial summary=20
judgment
that Plaintiff Herbert Jack=E2=80=99s =
claim for revocation=20
is dismissed as to all Defendants and that Plaintiff take nothing =
from=20
such claim.
. . . that Plaintiff=E2=80=99s claim for =
breach of an=20
express warranty as to Defendant Forest River Inc. is dismissed =
and that=20
Plaintiff take nothing from Defendant Forest River Inc. from such=20
claim.
. . . that Plaintiff=E2=80=99s claims =
under the [DTPA] as=20
to the Defendant Bank of America National Association are hereby =
dismissed=20
and that Plaintiff take nothing from Defendant Bank of America =
National=20
Association from such claims.
<=
/SPAN>Each=20
of the motions for summary judgment raised multiple grounds upon =
which the=20
trial court could have granted the motions.
Jack has failed to =
=E2=80=9Cattack all independent=20
bases or grounds that fully support [the] complained-of ruling or=20
judgment.=E2=80=9D Britton v. Tex Dep=E2=80=99t of Crim. =
Justice, 95 S.W.3d 676,=20
681 (Tex. App.=E2=80=94Houston [1st Dist.] 2002, no pet.). =
=E2=80=9C[I]f an independent=20
ground fully supports the complained-of ruling or judgment, but =
the=20
appellant assigns no error to that independent ground, then (1) we =
must=20
accept the validity of that unchallenged independent ground . . . =
and thus=20
(2) any error in the grounds challenged on appeal is harmless =
because the=20
unchallenged independent ground fully supports the complained-of =
ruling or=20
judgment.=E2=80=9D Id. Because Jack failed to attack any =
grounds other than=20
=E2=80=9Cres judicata and/or collateral estoppel,=E2=80=9D =
we must affirm the=20
court=E2=80=99s partial summary judgment. See id. =
<=
/SPAN>Furthermore,=20
to the extent that Jack attempts to raise a complaint as to the =
competency=20
of the summary-judgment evidence, such argument is inadequately =
briefed.=20
Jack fails to provide any citations to the record and fails to =
identify=20
specifically any statements that he contends are =
=E2=80=9Cunsubstantiated legal=20
and factual conclusions unsupported by the evidence.=E2=80=9D =
See=20
Tex. R. App. P. =
38.1(h).=20
<=
/SPAN>We=20
overrule issue three.Conclusion
=
We=20
affirm the judgment of the trial court.
=
Holiday=20
World=E2=80=99s =E2=80=9CMotion to Conclude Appeal Despite =
Appellant=E2=80=99s Death=E2=80=9D under Texas=20
Rule of Appellate Procedure 7.1(a) is overruled as moot. =
See Tex. R. App. P. 7.1(a) =
(=E2=80=9CIf a=20
party to a civil case dies after the trial court renders judgment =
but=20
before the case has been finally disposed of on appeal, the appeal =
may be=20
perfected, and the appellate court will proceed to adjudicate the =
appeal=20
as if all parties were alive. The appellate court=E2=80=99s =
judgment will have the=20
same force and effect as if rendered when all parties were living. =
The=20
decedent party=E2=80=99s name may be used on all =
papers.=E2=80=9D).
Tim =
Taft
Justice
Panel consists of =
Justices=20
Taft, Keyes, and Alcala.
<=
/SPAN> |