In their second issue, the Losiers contend that the trial court erred in denying their motion for new trial
based on juror misconduct.  According to the Losiers, during a break in the trial their counsel's paralegal,
Jana Tevis, saw an extensive conversation among a juror, the defense counsel's paralegal, and the
defendants' insurance representative.  The Losiers contend that the contact was sufficient to demonstrate
misconduct and that they are entitled to a new trial.  We review the trial court's denial of a motion for new
trial for abuse of discretion.  Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268
(Tex. 1994); Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 77 (Tex. App.-Houston
[14th Dist.] 2007, pet. denied).

As a threshold matter, appellees contend that the Losiers waived their complaint of juror misconduct
because they failed to complain before the verdict was read, citing Alamo Carriage Service, Inc. v. City of
San Antonio, 768 S.W.2d 937 (Tex. App.-San Antonio 1989, no writ).  In Alamo Carriage, the appellant
claimed juror misconduct in his motion for new trial.  Id. at 942-43.  Because the appellant made no
objection at the time of the incident or before the verdict, the appellate court overruled the complaint,

We believe that it would be wantonly unfair to allow a litigant to take his chances with the jury and later
complain of misconduct when he is unhappy with the result.  A party may not speculate on the result of a
verdict and then for the first time complain of jury misconduct.  Id. at 943.  

The Losiers respond that, unlike the situation in Alamo Carriage, the jury misconduct was witnessed by a
non-lawyer employee of the Losiers' law firm the day the jury returned its verdict, and there is no evidence
the misconduct was actually brought to counsel's attention before the jury returned its verdict.  The
Losiers cite as support Mercado v. Warner-Lambert Co., 106 S.W.3d 393 (Tex. App.-Houston [1st Dist.]
2003, pet. denied) (holding that appellant did not waive right to complain of jury misconduct not witnessed
by appellant's counsel).

We conclude that the Losiers have not waived this issue.  During the evidentiary hearing on the Losiers'
motion for new trial, Tevis testified that she saw the encounter with the juror on the day before the jury
returned its verdict, and at first she testified that she advised the Losiers' counsel, Mark Sparks, about it
before the verdict was rendered.  On redirect, however, she testified that Sparks approached the trial
court about the alleged misconduct “immediately" after she told him about the encounter.  The trial court
asked Tevis why she did not tell Sparks earlier, and she responded that she was “caught up in trying to
get [her] exhibits ready, trying to get back in the courtroom” when it “dawned on [her]" that the
conversation's length “wasn't normal."  The appellees offered no contrary evidence.

Thus, the evidence shows that Tevis brought the encounter to Spark's attention as soon as she realized,
in the push toward the trial's conclusion, that the encounter may have been improper.  Sparks then
brought the encounter to the trial court's attention “immediately" thereafter.  In this situation, and in the
absence of contrary testimony, we conclude that the Losiers did not waive the issue of juror misconduct.

We next turn to the merits of the Losiers' issue.  The Losiers' complaint regarding the alleged misconduct
involving a juror is governed by Texas Rule of Civil Procedure 327(a), which provides, in pertinent part, as

When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury ... 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. Tex. R.
Civ. P. 327(a).  

Jury misconduct includes outside influence on jurors.  Strauss v. Continental Airlines, Inc., 67 S.W.3d 428,
446 (Tex. App.-Houston [14th Dist.] 2002, no pet.).  “Outside influence" has been held to mean
information coming from outside the jury, i.e., from a non‑juror who introduces information to affect the
verdict, and not from within the jury's deliberations or as part of the jury's mental process.  Id.[3]

To warrant a new trial for jury misconduct, the Losiers had the burden to prove that (1) there was
misconduct, (2) it was material, and (3) probably caused injury.  See Golden Eagle Archery, Inc. v.
Jackson, 24 S.W.3d 362, 372 (Tex. 2000).  Whether misconduct occurred is a question of fact for the trial
court, and if there is conflicting evidence on this issue the trial court's finding must be upheld on appeal.  
Id.; Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996).  

Misconduct justifies a new trial only if it reasonably appears from the record that “injury probably resulted
to the complaining party."  Pharo, 922 S.W.2d at 950.  To show probable injury, there must be some
indication in the record that the alleged misconduct most likely caused a juror to vote differently than he
would otherwise have done on one or more issues vital to the judgment.  Id.  Determining the existence of
probable injury is a question of law.  Id.  

To support their assertion that the juror's contact with the defense paralegal and insurance
representative is sufficient to warrant a new trial, the Losiers cite to Texas Employers' Insurance
Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921-22 (1958), in which the supreme court held
that the plaintiff's overt act in seeking out a juror and asking her to “do all you can to help me" was
sufficient to demonstrate probable harm.  The McCaslin court noted that “[a] juror's disavowal of influence
derived from misconduct is not a proper inquiry."  Id. at 920.  Instead, the court explained, the presence or
absence of injury “must be drawn from overt acts such as conversations and physical actions, i.e., what
was said and done."  Id.   

The Losiers argue that the jurors undoubtedly knew the paralegal, Monica Lee, worked for the
defendants' attorneys because she was introduced in voir dire, and therefore the juror, Robert Mulvey,
was aware of her relationship to the defendants.  Cf. Mercado, 106 S.W.3d at 397 (holding that there
could be no conscious or subconscious influence from shadow juror's contact with juror when juror was
unaware of shadow juror's affiliation with a party).  The Losiers further contend that because the
insurance representative, John Southrey, had a pecuniary interest in the case, he and Lee were not far-
removed from the case, but rather were “part and parcel" of the defense team.  Given these relationships,
the Losiers argue, injury should be presumed from the contact itself.

In her affidavit accompanying the Losiers' motion for new trial, Tevis stated that she was a paralegal for
Mark Sparks of the Losiers' law firm.  She further stated that while on a break during the trial, she saw
Monica, the defendants' paralegal, and Dr. Ravi's insurance representative, “Johnny," outside the
courtroom “eating their lunch while visiting with one of the jurors."  She went into a conference room just
inside the courtroom to organize her exhibits in preparation for a meeting with Monica.  After more than
ten minutes, she went back out into the hallway and “observed Monica and Johnny still visiting with this
juror."  Further, Tevis stated that the three of them were “actively engaged in conversation and laughing
for at least ten (10) minutes."

In response, the defendants submitted the affidavits of Monica Lee, John Southrey, and the juror, Robert
Mulvey.  Lee stated in her affidavit that she was a paralegal at the defense counsel's firm, and that she
had reviewed Ms. Tevis's affidavit and it was incorrect “with regard to what transpired."  She stated that
she and Southrey saw Tevis come out of the courtroom to ask to go over exhibits.  Lee further stated that
she and Southrey were sitting in the hall outside the courtroom eating lunch and talking only to each
other.  Mr. Mulvey overheard Southrey and her talking about Austin traffic, and he made several
comments about it.  Lee further stated that she told Mulvey that they could not talk until the trial was over,
and Mulvey walked away.  Finally, Lee stated that the exchange “did not take more than a few seconds
and definitely did not take 10 minutes."

Southrey identified himself in his affidavit as a claim supervisor for Texas Medical Liability Trust.  He
stated that Tevis's recitation of the events was incorrect.  He further stated that he and Monica saw Tevis
come out of the courtroom to tell Monica something, and at that moment, he and Lee were sitting in the
hall outside of the courtroom eating lunch and were not talking with Mulvey.  Southrey stated that Monica
“had already admonished [Mulvey] that we could not talk to him until the trial was over at which point he
walked away from us."  Southrey went on to state that Mulvey had apparently overheard him and Monica
Atalking about the fact I live in Austin" and Mulvey commented that Austin traffic was “horrible."  Southrey
said that he told Mulvey that he “agreed with [Mulvey's] observation, but I intentionally tried not to even
make eye contact with him at the time and continued with my lunch."  Finally, Southrey stated that “Monica
told him we could not talk until the trial was over, and Mr. Mulvey proceeded to walk away."

Robert Mulvey, the juror, averred that during the lunch break, he was outside the courtroom in the hall,
looking out the window.  He heard two people he did not know discussing Austin traffic.  He commented to
them that he traveled to Austin for business and that Austin traffic was “pretty bad."  Mulvey averred that
the female, whom he had since learned was Monica Lee of the defendants' law firm, “commented that we
should not talk until after the trial."  He further stated that, although he had seen both of them in the
courtroom, he also did not know who the gentleman was or his reason for being there.  Mulvey stated that
“Ms. Lee instructed that there should be no conversation with jurors until after the trial was over" and that
“[t]here was no further conversation with Ms. Lee or the gentleman."

At the evidentiary hearing before the trial court, only Tevis testified.  Her testimony repeated the
substance of her affidavit, except that she now knew that the juror's name was Robert Mulvey.  She stated
that when she first saw Lee, Southrey, and Mulvey, Lee and Southrey were sitting, finishing their meal,
and Mulvey was standing.  They were all facing each other and talking.  Tevis left to get her exhibits in
order, and when she returned five to ten minutes later, they were all “still talking, laughing, [and] having a
conversation."  She testified, however, that she could not hear the substance of the conversation.  
Additionally, she testified that she saw them three different times talking and laughing over a period of
fifteen to twenty minutes.  On cross-examination, Tevis admitted that, while she was in the courtroom, she
could not see them or hear any of their comments.  She also admitted that she did not know if Lee told
Mulvey they could not talk to him or how many times Lee told him that.  She also could not say who
initiated the comments or what was discussed.  In response to further questioning, Tevis stated that, after
the verdict was rendered, she overheard Lee tell Mulvey “now you can talk to me."

The trial court criticized Southrey's and Lee's conduct, saying that they “should know better" and that it
was not just the act of impropriety, it was the appearance of impropriety that should have been avoided.  
Nevertheless, the court found no evidence that Southrey, Lee, and Mulvey were talking about the case,
and concluded that the Losiers failed to meet their burden under Rule 327(a).  The trial court made no
findings of fact or conclusions of law.

Because the trial court did not make findings of fact or conclusions of law, we assume that all findings
support the judgment.  See Mercado, 106 S.W.3d at 396.  Although the parties dispute the length of time
Southrey, Lee, and the juror Mulvey conversed, Tevis offered no evidence that they were discussing the
case or that any favors were requested or received such as occurred in McCaslin.  And, all three agreed
that Lee told Mulvey that she and Southey could not talk to him until after the trial, and there was no
evidence to the contrary.  

Additionally, Mulvey stated in his affidavit that at the time he made his comments to Lee and Southrey,
although he had seen them in the courtroom, he did not know who they were.  This testimony undercuts
the Losiers' argument that harm may be presumed in part because Mulvey was aware of Lee's
relationship to the defendants, and in fact supports the opposite conclusion.  See Mercado, 106 S.W.3d
at 397.  

On this record, we conclude that the evidence does not rise to the level required to presume injury for
purposes of Rule 327(a).  See id; Strauss, 67 S.W.3d at 448.  Therefore, we hold that the trial court did
not abuse its discretion in denying the Losiers' motion for new trial on the ground of juror misconduct or

We overrule the Losiers' second issue.

* * *

Having overruled the Losiers' two issues, we affirm the trial court's judgment.

Jeffrey V. Brown


Panel consists of Justices Seymore, Brown and Sullivan.

Losier v. Ravi, M.D. (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Brown)
res ipsa loquitur, complaint of improper conduct of juror overruled, communication with party's agent
outside the courtroom)
AFFIRMED: Opinion by
Justice Brown   
Before Justices Seymore, Brown and Sullivan  
14-08-00399-CV  Orville Losier and Wife Joelle Losier v. Shivarajpur K. Ravi, M.D., and Ambika Medical
Group, P.A.   
Appeal from 129th District Court of Harris County
Trial Court Judge:
Samuel Grant Dorfman

WPS, Inc. v. Enervest Operating, LLC (pdf) (Tex.App.- Houston [1st. Dist.] Nov. 23,2009)(Taft)
jury charge error claim rejected, juror misconduct affidavit properly struck as inadmissible)
AFFIRM TC JUDGMENT: Opinion by Justice Taft  
Before Justices Taft, Keyes and Alcala   
01-06-00759-CV        WPS, Inc. v. Enervest Operating, LLC    
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn P. Wood