Oral Argument Requested June 22, 2016

No. 07-16-00121-CV______________________________________________________________________

IN THE COURT OF APPEALSSEVENTH JUDICIAL DISTRICT OF TEXAS

AMARILLO, TEXAS______________________________________________________________________

WILLIAM A. BREWER III,

Appellant,

v.

LENNOX HEARTH PRODUCTS, LLC; TURNER & WITT PLUMBING,INC.; STRONG CUSTOM BUILDERS, LLC; THERMO DYNAMIC

INSULATION, LLC; STATE FARM LLOYDS INSURANCE COMPANY;KEN and BECKY TEEL; ROSS and MEG RUSHING,

Appellees.______________________________________________________________________

On Appeal from the 72nd Judicial District Court,Lubbock County, Texas

Trial Court No. 2012-504105______________________________________________________________________

BRIEF OF APPELLANT WILLIAM A. BREWER III______________________________________________________________________

George M. KryderState Bar No. 11742900Daniel L. TobeyState Bar No. 24048842Melissa L. JamesState Bar No. 24074746VINSON & ELKINS LLP

3700 Trammell Crow Center2001 Ross AvenueDallas, Texas 75201-2975Telephone: (214) 220-7700Fax: (214) 220-7716gkryder@velaw.comdtobey@velaw.commjames@velaw.com

Timothy T. PridmoreState Bar No. 00788224R. Michael McCauleyState Bar No. 00797030Jack P. DriskillState Bar No. 06127000MCWHORTER, COBB & JOHNSON, LLP

1722 Broadway (79401)P.O. Box 2547Lubbock, Texas 79408Telephone: (806) 762-0214Fax: (806) 762-8014tpridmore@mcjllp.commccauley@mcjllp.comjdriskill@mcjllp.com

Attorneys for Appellant William A. Brewer III

ACCEPTED07-16-00121-CV

SEVENTH COURT OF APPEALSAMARILLO, TEXAS

6/22/2016 9:59:05 AMVivian Long, Clerk

FILED IN7th COURT OF APPEALS AMARILLO, TEXAS6/22/2016 9:59:05 AM VIVIAN LONG CLERK

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IDENTITY OF PARTIES AND COUNSEL

Appellant William A. Brewer III

George M. KryderState Bar No. 11742900Daniel L. TobeyState Bar No. 24048842Melissa L. JamesState Bar No. 24074746VINSON & ELKINS LLP

3700 Trammell Crow Center2001 Ross AvenueDallas, Texas 75201-2975Telephone: (214) 220-7700Fax: (214) 220-7716gkryder@velaw.comdtobey@velaw.commjames@velaw.com

Timothy T. PridmoreState Bar No. 00788224R. Michael McCauleyState Bar No. 00797030Jack P. DriskillState Bar No. 06127000MCWHORTER, COBB & JOHNSON, LLP

1722 Broadway (79401)P. 0. Box 2547Lubbock, Texas 79408Telephone: (806) 762-0214Fax: (806) 762-8014tpridmore@mcjllp.commccauley@mcjllp.comjdriskill@mcjllp.com

Appellees Lennox Hearth Products, LLC; Strong Custom Builders, LLC;Thermo Dynamic Insulation, LLC; State Farm Lloyds Insurance Company;Turner & Witt Plumbing, Inc.; Ken and Becky Teel; Ross and Meg Rushing.

Ben TaylorMarquette WolfTED B. LYON & ASSOCIATES, P.C.18601 L.B.J. Freeway, Suite 525Mesquite, TX 75150

Angela HahnDOYEN SEBESTA, LTD., LLP

450 Gears Road, Suite 350Houston, Texas 77069

Bill HarrigerFIELD, MANNING, STONE, HAWTHORNE

& AYCOCK, P.C.2112 Indiana AvenueLubbock, Texas 79410

Scott CarpenterRebecca Bell-StantonDouglas C. HeuvelCARPENTER & SCHUMACHER, P.C.2701 N. Dallas Parkway, Suite 570Plano, TX 75093-8790

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Mark L. PackardPACKARD, HOOD, JOHNSON &BRADLEY, LLP

500 S. Taylor, Suite 900Lobby Box 223Amarillo, Texas 79101

Craig H. MyersTimothy GeorgeFEE, SMITH, HARP & VITULLO, LLP

Three Galleria Tower13155 Noel Road, Suite 1000Dallas, Texas 75240

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..........................................................................II

TABLE OF CONTENTS ................................................................................................ IV

INDEX OF AUTHORITIES............................................................................................ VII

RECORD REFERENCES ............................................................................................... XI

STATEMENT OF THE CASE ....................................................................................... XIII

STATEMENT REGARDING ORAL ARGUMENT ............................................................ XV

ISSUES PRESENTED.................................................................................................. XVI

STATEMENT OF FACTS.................................................................................................1

A. Brewer and his law firm hire a national public opinion surveycompany to conduct a blind and random survey of 300individuals residing in a county with a population over 289,000. ........1

B. Plaintiffs and co-defendants file motions for sanctions based onthe pre-trial survey, and Titeflex discharges Brewer as counsel. .........7

C. The trial court denies Brewer’s motion to continue, conductshearings on sanctions motions, and issues ruling. ................................9

SUMMARY OF THE ARGUMENT ..................................................................................10

STANDARD OF REVIEW..............................................................................................13

ARGUMENT ...............................................................................................................16

I. Surveys are not a bad faith abuse of the judicial process as a matter oflaw. The trial court abused its discretion by sanctioning Brewer forcommissioning a pre-trial research survey when no Texas Rule of CivilProcedure, Texas Rule of Evidence, Texas Disciplinary Rule, ethicsopinion, or published Texas decision prohibits attorneys fromcommissioning independent surveys or polls, or from performing juryfocus exercises in the lawsuit venue to test actual or hypotheticalmessages and themes in connection with a potential or pending case. .........16

A. Every relevant authority indicates that pre-trial research in thelawsuit venue is a common, accepted, and appropriate methodfor testing messages, themes, and theories prior to trial. ....................17

B. The survey was consistent with accepted professional standardsand sought 300 completed responses from individuals residing in

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a county with a population over 289,000 and a jury pool over155,000. ...............................................................................................21

C. Because Brewer’s intent must be judged at the time he decided tocommission the survey – not later, at the sanctions hearing – thetrial court abused its discretion by imposing sanctions based onits finding that Brewer’s demeanor at the hearing was“nonchalant and uncaring.” .................................................................27

II. The trial court’s sanction should be vacated because the trial courtapplied the wrong legal standard – basing sanctions on conduct foundto be grossly negligent instead of the Foust standard for bad faith whichrequires mens rea – and because there is no legally or factuallysufficient evidence to support a finding of bad faith.....................................28

A. Sanctions only can be imposed when there is legally andfactually sufficient evidence of bad faith. ...........................................28

B. The trial court’s finding of gross negligence does not meet thebad faith standard from Foust, which requires the “consciousdoing of a wrong for a dishonest, discriminatory, or maliciouspurpose.”..............................................................................................29

C. There is no legally or factually sufficient evidence in the recordof a bad faith abuse of the judicial process or the requisite mensrea, and the only evidence of intent establishes that the allegedimproper contact was accidental. ........................................................31

1. No evidence in the record supports the trial court’sconclusion that Brewer acted in bad faith.................................31

2. The trial court ignored the uncontroverted evidence in therecord establishing that Brewer did not engage in anyintentional conduct, including evidence from theindependent third party who actually conducted thesurvey. .......................................................................................34

III. The trial court’s sanction should be vacated because the permissibleremedy for any potential effect on a never-summoned jury pool wouldbe voir dire, not sanctions, and the survey did not interfere with thetraditional core functions of the court or affect any actual jurors. ................36

A. There is no evidence of significant interference – or anyinterference – with the court’s traditional core functions. ..................37

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B. Voir dire would have allowed the trial court and the parties todetermine whether the survey had any effect on potential jurors –and if so, to strike those jurors. ...........................................................39

IV. The trial court erred by denying Brewer the opportunity to obtain livetestimony of the third-party vendor that performed the survey, thenrefusing to consider the affidavit of that vendor testifying that Brewercommitted none of the alleged misconduct. ..................................................41

PRAYER .....................................................................................................................45

CERTIFICATE OF COMPLIANCE ..................................................................................46

CERTIFICATE OF SERVICE..........................................................................................47

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INDEX OF AUTHORITIES

Cases

Am. Flood Research, Inc. v. Jones,192 S.W.3d 581 (Tex. 2006)................................................................................16

Burrow v. Arce,997 S.W.2d 229 (Tex. 1999)................................................................................23

Cantu McGarrahan v. Foote,No. 03-01-00506-CV, 2002 WL 1728587 (Tex. App.—Austin July 26,2002, no pet.)................................................................................................. 33, 34

City of Alexandria v. CLECO, Corp.,547 F. App’x 568 (5th Cir. 2013) ........................................................................30

Clark v. Bres,217 S.W.3d 501 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)..............28

Clinica Santa Maria v. Martinez,No. 13-09-573-CV, 2010 WL 2543943 (Tex. App.—Corpus ChristiJune 24, 2010, pet. denied) ..................................................................................44

Cosgrove v. Grimes,774 S.W.2d 662 (Tex. 1989)................................................................... 15, 27, 31

Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238 (Tex. 1985)......................................................................... 43, 44

E.I. Du Pont de Nemours & Co. v. Robinson,923 S.W.2d 549 (Tex. 1995)...............................................................................23

Elkins v. Stotts-Brown,103 S.W.3d 664 (Tex. App.—Dallas 2003, no pet.)............................................14

Ezeoke v. Tracy,349 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2011, no pet.).............. 15, 37

First Heights Bank, FSB v. Gutierrez,852 S.W.2d 596 (Tex. App.—Corpus Christi 1993, writ denied) .......................19

Foust v. Hefner,No. 07-13-00331-CV, 2014 WL 3928781 (Tex. App.—AmarilloAug. 12, 2014, no pet.)................................................................................. passim

Gammill v. Jack Williams Chevrolet, Inc.,972 S.W.2d 713 (Tex. 1998)................................................................................23

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Gen. Elec. Co. v. Joiner,522 U.S. 136 (1997).............................................................................................23

Golden Eagle Archery, Inc. v. Jackson,24 S.W.3d 362 (Tex. 2000)..................................................................................39

Guzman v. Tex. Mut. Ins. Co.,No. 13-06-227-CV, 2007 WL 1439742 (Tex. App—Corpus ChristiMay 17, 2007, no pet.) .........................................................................................37

Harmouch v. Michael A. Rassner, D.D.S., P.C.,No. 01-10-00367-CV, 2011 WL 1435008 (Tex. App.—Houston [1st Dist.]Apr. 14, 2011, no pet.) .........................................................................................43

Howell v. Tex. Workers’ Comp. Comm’n,143 S.W.3d 416 (Tex. App.—Austin 2004, pet. denied) ............................. 14, 37

In re Bennett,960 S.W.2d 35 (Tex. 1997).................................................................................28

In re Estate of Perez Muzza,446 S.W.3d 415 (Tex. App.—San Antonio 2014, pet. denied)...........................29

In re J.V.G.,No. 09-06-015CV, 2007 WL 2011019 (Tex. App.—Beaumont July 12,2007, no pet.)................................................................................................. 14, 41

Island Entm’t Inc. v. Castaneda,882 S.W.2d 2 (Tex. App.—Houston [1st Dist.] 1994, writ denied)....................41

Kennedy v. Kennedy,125 S.W.3d 14 (Tex. App.—Austin 2002, pet. denied) ............................... 14, 37

Kugle v. DaimlerChrysler Corp.,88 S.W.3d 355 (Tex. App.—San Antonio 2002, pet. denied).............................44

Kutch v. Del Mar College,831 S.W.2d 506 (Tex. App.—Corpus Christi 1992, no writ)....................... 13, 15

Lawrence v. Kohl,853 S.W.2d 697 (Tex. App.—Houston [1st Dist.] 1993, no writ).... 13, 15, 28, 42

McWhorter v. Sheller,993 S.W.2d 781 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)..............30

Merrell Dow Pharm., Inc. v. Havner,953 S.W.2d 706 (Tex. 1997)................................................................................23

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Onwuteaka v. Gill,908 S.W.2d 276 (Tex. App.—Houston [1st Dist.] 1995, no writ).......... 14, 15, 30

Pearson v. Stewart,314 S.W.3d 242 (Tex. App.—Fort Worth 2010, no pet.)............................. 29, 31

People v. Owens,725 N.Y.S.2d 532 (N.Y. Sup. Ct. 2001) ..............................................................40

Primrose Operating Co. v. Jones,102 S.W.3d 188 (Tex. App.—Amarillo 2003, pet. denied)......................... passim

Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist.,198 S.W.3d 300 (Tex. App.—Texarkana 2006, pet. denied) ....................... 15, 29

Shamrock Oil Co. v. Gulf Coast Nat. Gas, Inc.,68 S.W.3d 737 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)................42

Sosa ex rel. Grant v. Koshy,961 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) ................45

Spohn Hosp. v. Mayer,104 S.W.3d 878 (Tex. 2003)................................................................................34

Tanner v. United States,483 U.S. 107 (1987).............................................................................................39

Tex. Mut. Ins. Co. v. Narvaez,312 S.W.3d 94 (Tex. App.—Dallas 2010, pet. denied).......................................34

United States v. Collins,972 F.2d 1385 (5th Cir. 1992) ...................................................................... 19, 40

Statutes

TEX. CODE CRIM. PROC. § 31.03 ..............................................................................20

Rules

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.06 .........................................................25

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.07 .........................................................25

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.07(a).....................................................25

TEX. DISCIPLINARY R. PROF’L CONDUCT Preamble .................................................25

TEX. R. CIV. P. 13.............................................................................................. 27, 33

TEX. R. CIV. P. 215...................................................................................................44

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TEX. R. CIV. P. 215.6................................................................................... 42, 43, 44

TEX. R. CIV. P. 257...................................................................................................20

TEX. R. CIV. P. 258...................................................................................................20

TEX. R. EVID. 703.....................................................................................................45

Other Authorities

AAPOR Provides Clarification on “Push Poll” Issue, Nov. 16, 2007 ...................21

AAPOR Statement on “Push” Polls, Oct. 2015.......................................................22

Dr. Jeffrey T. Frederick, Evaluating Potential Jurors, 2 American BarAssociation, GP SOLO REPORT 5 (2012) ..............................................................18

Dr. Jeffrey T. Frederick, Social Science Involvement in Voir Dire:Preliminary Data on the Effectiveness of “Scientific Jury Selection,”2 BEHAV. SCI. & L. 1 (1984) ................................................................................18

Dr. Jeffrey T. Frederick, Using Juror Surveys to Solve Problems at Trial,Aug. 1987.............................................................................................................17

Judge David Hittner & Eric J.R. Nichols, Jury Selection in Federal CivilLitigation: General Procedures, New Rules, and the Arrival of Batson,23 TEX. TECH L. REV. 407 (1992)........................................................................17

Thaddeus Hoffmeister, Investigating Jurors in the Digital Age: One Click at aTime, VOIR DIRE (American Board of Trial Advocates, Dallas, Tex.),Summer 2013 .......................................................................................................20

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RECORD REFERENCES

Citations to the record will be formatted as follows:

(1) Clerk’s Record Vol. No.CR Page No.

(2) First Supplemental Clerk’s Record 1Supp.CR Page No.

(3) Second Supplemental Clerk’s Record 2Supp.CR Page No.

(4) Reporter’s Record Master Index 1RR Page No.

(5) Reporter’s Record for May 14, 2014 Hearing on 2RR Page:Line Nos.Motion for Sanctions by Lennox Hearth

(6) Reporter’s Record for June 9, 2014 Hearing on 3RR Page:Line Nos.Motion for Sanctions

(7) Reporter’s Record for June 10, 2014 Hearing on 4RR Page:Line Nos.Motion for Sanctions

(8) Reporter’s Record for June 11, 2014 Hearing on 5RR Page:Line Nos.Motion for Sanctions

(9) Reporter’s Record for June 16, 2014 Hearing on 6RR Page:Line Nos.Motion for Sanctions

(10) Reporter’s Record for June 17, 2014 Hearing on 7RR Page:Line Nos.Motion for Sanctions

(11) Reporter’s Record for June 27, 2014 Hearing 8RR Page:Line Nos.

(12) Reporter’s Record for Sept. 29, 2014 Hearing on 9RR Page:Line Nos.Motion for Sanctions

(13) Reporter’s Record for Sept. 30, 2014 Hearing on 10RR Page:Line Nos.Motion for Sanctions

(14) Reporter’s Record for Oct. 1, 2014 Hearing on 11RR Page:Line Nos.Motion for Sanctions

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(15) Reporter’s Record for Oct. 2, 2014 Hearing on 12RR Page:Line Nos.Motion for Sanctions

(16) Reporter’s Record for May 13, 2015 Hearing on 13RR Page:Line Nos.Motion for Sanctions

(17) Reporter’s Record Exhibits 14RR, [PX/DX] Ex. No.

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STATEMENT OF THE CASE

Nature of the Case This appeal raises the issue of whether William A. Brewer III(“Brewer”) should be sanctioned for his law firm’s hiring awell-respected public opinion research company to gaugepublic perception and to test jury themes before trial bysurveying 300 persons in a county with a potential jury pool ofover 155,000 persons – based on little more than the fact that afew people tangentially involved with the underlyinglitigation were randomly selected from a list of 20,000 namesand inadvertently contacted by the survey company – andnone of those contacted actually completed the survey or wereon the never-summoned or impaneled jury venire. Thisappeal also raises the question of whether a finding of merelygross negligence satisfies the mens rea required to establish“proof of ‘conscious doing of a wrong for a dishonest,discriminatory, or malicious purpose’” that this Court held isrequired to support a bad faith finding in Foust v. Hefner, No.07-13-00331-CV, 2014 WL 3928781, at *5 (Tex.App.—Amarillo Aug. 12, 2014, no pet.).

In June 2014, Plaintiffs filed an Emergency Motion forProtection and Motion for Sanctions, which was joined byadditional defendants and designated responsible third parties(together with Plaintiffs, “Movants”). In June 2014, and, afterthe parties settled the underlying litigation, in September andOctober 2014, the trial court heard testimony and receiveddocumentary evidence on the issue of whether sanctionsshould be imposed on Brewer based on his firm’scommissioning the pre-trial survey.

On January 22, 2016, the trial court signed a letter finding thatcertain monetary sanctions against Brewer were appropriategiven his conduct, which the trial court stated was “intentionaland in bad faith.” 9CR 10193-94. On February 19, 2016, theCourt signed the “Proposed Order on Sanctions Motions(Docket Reference Nos. 50-54) and Final Order ofDismissal,” which awarded monetary sanctions againstBrewer and stated that it “dispose[d] of all parties, issues andclaims and is appealable ….” 9CR 10200.

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This timely appeal followed. 9CR 10205-15.Trial Court Honorable Ruben Gonzales Reyes, 72nd Judicial District

Court, Lubbock, TexasTrial CourtDisposition

Ruling on Sanctions Motion Letter, signed on January 22,2016

Order Granting Proposed Order on Sanctions Motions(Docket Reference Nos. 50-54), and Final Order of Dismissal,signed on February 19, 2016.

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STATEMENT REGARDING ORAL ARGUMENT

Brewer respectfully requests that the Court hold oral argument. This appeal

presents important questions regarding the appropriate standard for imposing

sanctions on attorneys under a court’s inherent power and the propriety of

conducting blind and random public surveys to test trial themes as part of an

attorney’s zealous representation of his or her client.

Brewer believes oral argument will aid the Court in reviewing these critical

issues as well as the voluminous factual record.

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ISSUES PRESENTED

Did the trial court abuse its discretion by:

1. Awarding sanctions against Brewer although surveys are not a bad faith

abuse of the judicial process as a matter of law and no Texas Rule of Civil

Procedure, Texas Rule of Evidence, Texas Disciplinary Rule, ethics opinion, or

published Texas decision prohibits attorneys from commissioning independent

surveys or polls, or from performing jury focus exercises in the lawsuit venue to test

actual or hypothetical messages and themes in connection with a potential or

pending case?

2. Basing a bad faith finding on merely gross negligence, not the required

standard where “establishing ‘bad faith’ requires proof of ‘conscious doing of a

wrong for a dishonest, discriminatory, or malicious purpose’” and mens rea by the

accused attorney. Foust v. Hefner, No. 07-13-00331-CV, 2014 WL 3928781, at *5

(Tex. App.—Amarillo Aug. 12, 2014, no pet.) (emphasis added)?

3. Concluding, as a matter of law and/or fact, that Brewer’s conduct of

commissioning a random survey of 300 people to gauge public perception about a

highly-publicized case in a county with a population over 289,000 was in bad faith

when there was: (a) no evidence that Brewer intended for any specific individuals to

be contacted in the survey, (b) no evidence that Brewer intended for the survey

xvii

questions to influence the participants, and (c) no evidence that Brewer had mens

rea, and when all probative evidence showed the opposite?

4. Imposing sanctions under the court’s inherent power without finding

that the survey significantly interfered with the court’s legitimate exercise of one of

its traditional core functions, or in the alternative, by finding that the survey

significantly interfered with the parties’ rights to a trial by jury when no jury had

been summoned and no venire had been impaneled?

5. Concluding that the sanctions imposed were no more severe than

necessary and just when, absent sanctions, any theoretical bias from the survey

would have been remedied through voir dire?

6. Failing to consider an affidavit from the nationally-reputable company

that actually conducted the survey, which disproved the trial court’s key

assumptions, after denying Brewer’s motion for continuance seeking time to obtain

other admissible discovery from out-of-state third parties, including that company?

7. Denying Brewer’s verified motion for continuance seeking additional

time to obtain discovery from out-of-state third parties – without which Brewer

could not present all facts essential to support his opposition to the sanctions

motions – after Movants: (a) set the hearing without consulting Brewer, (b) did not

timely provide Brewer with notice of the hearing, and (c) failed timely to serve him

with all of the motions and amended motions for sanctions?

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STATEMENT OF FACTS

A. Brewer and his law firm hire a national public opinion survey companyto conduct a blind and random survey of 300 individuals residing in acounty with a population over 289,000.

Brewer and his law firm1 represented Titeflex Corporation, Gastite Division

(“Titeflex”) as the primary defendant in a multi-million dollar products liability

lawsuit involving a death which occurred in a home in Lubbock, Texas that was

destroyed in a fire allegedly due in part to a corrugated stainless steel tubing

(“CSST”) product manufactured by Titeflex. The plaintiffs in the underlying case

(“Plaintiffs”) sued Titeflex and several other defendants on October 3, 2012.2 After

Plaintiffs filed the lawsuit, the fire marshal in Lubbock issued a moratorium on

certain CSST products, including yellow-jacketed CSST, the product manufactured

by Titeflex at issue in the underlying case, and later expanded the moratorium to

include another product – black-jacketed CSST.3

The moratorium and alleged dangers of CSST received significant media

coverage.4 Plaintiffs’ counsel engaged in local, state, and national media outreach

and public relations activities that resulted in multiple television interviews

1 While this case was in the trial court, the name of Brewer’s firm was Bickel & Brewer. It is nowcalled Brewer, Attorneys & Counselors.2 1CR 9-12.3 6RR 66:11-15, 206:25-207:2.4 6RR 146:19-147:4, 206:18-207:2.

2

discussing expansion of the moratorium, claiming it was helpful to Plaintiffs’ case,5

and also created a website about the alleged dangers of CSST called

CSSTDanger.com, posting over 25 videos and inviting the public to contact

Plaintiffs’ counsel for additional information.6 Plaintiffs’ counsel also conducted a

survey of Lubbock residents in connection with this case regarding “aware[ness] of

the existence of CSST gas plumbing.”7

Following this extensive publicity and in preparation for their defense of

Titeflex at trial, Brewer and his firm elected to “conduct a random independent poll

in regard to certain attitudes and opinions that would likely be prevalent among

homeowners in Lubbock, Texas,” about, among other things, CSST products, the

moratorium, and other issues potentially harmful to Titeflex’s case.8

Brewer instructed Travis Carter, his law firm’s director of community and

media relations, to oversee the public opinion research project.9 Carter had

experience overseeing public opinion research surveys on a broad range of matters

and had worked previously with Public Opinion Strategies, a “highly regarded and

professional” company.10 Brewer’s firm retained Public Opinion Strategies again,

5 6RR 218:10-19, 207:3-11; 14RR, DX13.6 8CR 9162; 10RR 67:7-12.7 3CR 3560.8 9RR 37:12-20; 6RR 147:9-148:2, 66:18-22, 159:24-160:4.9 6RR 61:12-18; 9RR 32:9-23.10 6RR 67:20-68:3, 72:8-10, 122:1-14; 9RR 32:9-19.

3

this time for the purpose of conducting a blind, random survey of Lubbock County

residents over the age of 18.11

After Carter provided them with various materials, Public Opinion Strategies

prepared the first draft of the survey questions, which Carter revised and Brewer

ultimately approved.12 Carter intended for his revisions to ensure “that the poll was

not in any way biased against one party or the other,” including by adding questions

critical of Titeflex, in order to test messages and themes.13 After reading the final

survey questions, Carter determined that “the questions were balanced and

represented the potential point of view or themes of all parties that were involved in

this matter.”14

Brewer agreed on a survey of 300 participants based on the suggestion of

Public Opinion Strategies that this would be a sufficient number to obtain a

statistically relevant sampling.15 Unknown to the Brewer firm, Public Opinion

Strategies ordered a database of approximately 20,000 random names and phone

numbers from i360, another independent third-party vendor.16 i360 then generated

the list of 20,000 phone numbers randomly from Lubbock County residents over the

11 9RR 34:7-35:3, 37:12-20, 68:8-16, 180:8-23; 7RR 41:17-21; 6RR 97:6-98:11; 12 RR 45:8-11,67:7-24; 8CR 9128-29; 2Supp.CR 4-40.12 6RR 72:8-10, 73:5-14, 101:11-13.13 6RR 66:18-22, 72:16-21; 75:13-22, 147:9-148:2, 66:18-22, 159:24-160:4.14 6RR 93:15-17.15 6RR 90:24-91:6; 9RR 68:8-16.

4

age of 18.17 Lubbock County had a population over 289,000 at the time of the

survey, and a potential jury pool of over 155,000 persons. 18 Public Opinion

Strategies also retained yet another independent third-party vendor, Survey

Sampling International, LLC (“SSI”), to conduct the survey by making phone calls

to randomly selected phone numbers from the already-random database that i360

provided.19

Brewer and his firm worked only with Public Opinion Strategies and had no

contact with SSI or i360.20 Neither Brewer nor his firm directed Public Opinion

Strategies (or anyone else) to contact any person.21 The list of names and phone

numbers used for the survey was not shared with Brewer or his firm prior to placing

the calls.22 In fact, Brewer and his firm were not aware of Public Opinion Strategies’

use of SSI or i360 until after the survey was completed.23

16 6RR 51:15-52:2, 105:17-106:4, 134:5-14.17 2Supp.CR 7 (¶¶ 6-7); 8CR 9128-29.18 UNITED STATES CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/48/48303.html (lastvisited May 15, 2016). The Court can take judicial notice that the Lubbock County jury wheel isestimated to include over 155,000 names. For a given jury week, the Lubbock County CentralJury office sends out approximately 900 summons from a computer generated list. Depending onthe time of the year, as few as 250-300 potential jurors show up. 8CR 9144.19 9RR 35:23-36:11; 6RR 51:15-52:2, 105:17-106:4, 134:5-14.20 9RR 35:23-36:11; 6RR 35:23-36:25, 51:15-52:2, 104:18-24, 134:5-14; 2Supp.CR 8 (¶ 13).21 9RR 34:7- 35:3, 35:23-36:25, 112:16-113:1; 2Supp.CR 8 (¶ 9).22 2Supp.CR 8 (¶ 10).23 9RR 35:23-36:11; 6RR 51:15-52:2, 105:17-106:4, 134:5-14.

5

According to SSI employee Jacob Flake, “Public Opinion Strategies retained

SSI to conduct Computer Assisted Telephone Interviews (“CATI”) using a

questionnaire provided by Public Opinion Strategies to conduct a blind, random

survey of Lubbock County residents that would gauge public perception and

reaction about CSST and related matters.”24 Movants’ alleged survey expert, Glen

Cummins, agreed that a CATI system, with which he is familiar, “uses a randomized

system.”25

The CATI platform that SSI employed for the survey is a telephone surveying

technique in which the interviewer administers the survey using a computer guided

script.26 The interviewer sits in front of a computer screen, and upon command, a

computer database randomly selects each telephone number that is called from the

approximately 20,000 names and numbers furnished to SSI.27 When contact is

made, the interviewer reads the survey questions posed on the computer screen and

records the respondent’s answers directly into the computer.28 SSI’s interviewers

are trained to provide accurate and complete data collection, not to persuade the

respondent to answer any question in any way.29 At the time of the survey, the SSI

24 2Supp.CR 7 (¶ 4).25 11RR 18:9-14.26 2Supp.CR 8-9 (¶ 14).27 Id.28 2Supp.CR 9 (¶ 16).29 Id.

6

interviewers “did not know the names of any parties” or potential witnesses in the

lawsuit.30

The questions in the survey were randomized so that different participants

would hear the questions in different orders.31 Plaintiffs’ purported polling expert,

Cummins, agreed that the order of various questions in the survey were

randomized.32

Brewer understood that participants in the survey would be selected

randomly.33 Brewer never saw the list of people who could potentially receive a

phone call.34 Neither did Carter.35 Neither Brewer nor Carter knew the number of

people that would receive a phone call in order to obtain 300 completed responses.36

After the survey was completed, Brewer learned that in order to obtain 300

responses, a database of approximately 20,000 random names and phone numbers

was used.37 No one at Brewer’s firm had input in selecting the inclusion or

exclusion of any name or phone number in the database.38 Carter testified that “the

30 2Supp.CR 8 (¶ 13).31 See 14RR, PX5.32 10RR 225:25-226:3, 226:19-23.33 9RR 68:8-16.34 9RR 35:23-36:11; 2Supp.CR 8 (¶ 10).35 6RR 97:4-8; 2Supp.CR 8 (¶ 10).36 6RR 91:7-10; 9RR 68:8-16.37 9RR 68:8-16.38 9RR 68:8-16, 165:19-23.

7

purpose of the poll was for it to be one hundred percent random, and our law firm

and the contractors who were involved in conducting this poll were to have no

influence, whatsoever, on the people who participated in the survey process.”39

Indeed, it remains unknown how many people were contacted in order to obtain 300

completed surveys.40

B. Plaintiffs and co-defendants file motions for sanctions based on thepre-trial survey, and Titeflex discharges Brewer as counsel.

Approximately two weeks after the survey was completed,41 on June 6, 2014,

Plaintiffs filed an Emergency Motion for Protection and Motion for Sanctions,

alleging that a designated responsible third party in the case (who could not have

been a juror in the case) was contacted by SSI during the survey process. 42

Additional defendants and designated responsible third parties (together with

Plaintiffs, “Movants”) filed identical or similar motions and amended motions for

sanctions against Brewer and his firm (together with Plaintiffs’ Emergency Motion

for Protection and Motion for Sanctions, the “Motions for Sanctions”).43 The trial

39 6RR 97:6-16. Andrea Burnett, a professional in Brewer’s communications department whocommunicated with Public Opinion Strategies when Carter was unavailable, also testified that shewas told by Public Opinion Strategies that people on the contact list were randomly selected. 6RR102:2-12; 7RR 41:17-21.40 6RR 106:8-15.41 Public Opinion Strategies conducted the survey over a two-day period from May 21-22, 2014.2Supp.CR 8 (¶ 11).42 6CR 7413, 7415.43 6CR 7542, 7548, 7556, 7590.

8

court later reviewed the database that SSI used and found in the list of 20,000 people

some relatives and courthouse staff. 44

During pre-trial hearings on June 9, 2014, Plaintiffs’ counsel raised the issue

of the survey.45 On June 16-17, 2014, the trial court heard some evidence on the

Motions for Sanctions. The trial court then proceeded with pre-trial matters in

anticipation of a June 30, 2014 trial date, apparently reserving the Motions for

Sanctions until after trial.46

Meanwhile, Titeflex discharged the Brewer firm as its counsel in open court

on June 27, 2014, citing the Motions for Sanctions.47 Shortly thereafter, lead trial

counsel, James Renard, and the Brewer firm stopped receiving service copies of

filings in the case.48

The trial court entered an order on August 21, 2014, setting one of the

Motions for Sanctions for hearing on September 29, 2014.49 The next day, the trial

court set the other Motions for Sanctions for hearing on this date.50 Renard, prior

44 9CR 10191-94.45 3RR 8:24-9:9.46 8RR 10:2-11:4.47 See 8RR 8:23-10:1; 8RR 11:17-12:1.48 6CR 8520-21.49 6CR 8392-93.50 See 6CR 8394.

9

lead trial counsel for Titeflex, was not aware of the hearing.51 Brewer learned about

the hearing through subsequent email exchanges between counsel. 52 No one

conferred with Brewer, Renard, or anyone at Brewer’s firm about the hearing date.53

C. The trial court denies Brewer’s motion to continue, conducts hearingson sanctions motions, and issues ruling.

Shortly after Brewer became aware of the September 29, 2014 hearing, he

retained the undersigned counsel, who entered appearances on September 9, 2014.54

Brewer filed a verified Motion to Continue Hearing on Motions for Sanctions and

for Entry of Scheduling Order (the “Motion to Continue”) on September 17, 2014.55

Brewer requested more time in the Motion to Continue to seek admissible evidence

from out-of-state third parties, including Public Opinion Strategies and other fact

witnesses, because he was not able to gather or present all facts essential to support

his opposition to the Motions for Sanctions without additional time.56 The trial court

denied the Motion to Continue the following day.57

The hearings on the Motions for Sanctions commenced on September 29,

2014, picking up where the trial court ended the previous hearings on June 17, 2014.

51 6CR 8520-21.52 6CR 8434. Although a letter to the court clerk regarding the hearing was provided to Brewerand another Bickel & Brewer attorney, Renard was not aware of that letter. 6CR 8520-21.53 6CR 8520-21.54 1Supp.CR 16-18.55 6CR 8433.56 6CR 8435.

10

Brewer spent the first full day on the witness stand and was cross-examined by five

different attorneys.58 The court held four additional days of evidentiary hearings,

concluding on October 2, 2014.

On January 22, 2016, the trial court issued a letter ruling imposing sanctions

individually against Brewer.59 The trial court entered an order on February 19,

2016, granting the Motions for Sanctions, awarding attorneys’ fees and expenses

totaling $133,415.27 to $177,005.27 (accounting for appellate fees) to the six

Movants, and ordering Brewer to complete an additional 10 hours of ethics CLE

classes.60

Brewer timely filed a Notice of Appeal on March 18, 2016. 61

SUMMARY OF THE ARGUMENT

Surveys are not a bad faith abuse of the judicial process as a matter of law. No

Texas Rule of Civil Procedure, Texas Rule of Evidence, Texas Disciplinary Rule,

ethics opinion, or published Texas decision prohibits attorneys from commissioning

independent surveys or polls, or from performing jury focus exercises in the lawsuit

venue to test actual or hypothetical messages and themes in connection with a

potential or pending case.

57 6CR 8445-46.58 9RR 7:5-9.59 9CR 10191-94.60 9CR 10198-200.

11

An experienced law firm hired a well-respected public opinion research

company to test jury themes before trial, seeking 300 respondents in a county with a

population over 289,000. Unknown to that lawyer until after the completion of the

survey, that company hired a second independent, reputable company to conduct the

survey using names and contact information from a database provided by yet

another independent vendor. From a database of 20,000 randomly selected names,

employees of the second company contacted individuals who were further randomly

selected through an automated computer system to obtain 300 completed responses

to the survey. The survey gauged public perceptions about the case and the products

in question, tested themes on both sides of the case, and shuffled the order of

questions. Everything about this survey was consistent with every principle

governing trial lawyers preparing for trial in zealously representing their clients.

There was no evidence presented to contradict these facts.

From that list of names randomly selected from the 20,000-name database, a

few people in local government or tangentially involved with the case were

contacted. None completed the survey. None went on to become jurors or even sat

on any venire. The case settled before trial.

The trial lawyer, Brewer, was cross-examined about this survey for a full day

by five different lawyers. Some of those lawyers had even conducted their own

61 9CR 10205.

12

survey in the same venue and in the same case. After a full day on the witness stand,

and after Brewer expressed regret for any inadvertent contact by a subcontractor of a

subcontractor that caused no actual harm, the trial court complained that Brewer’s

attitude on the stand was “uncaring.” And for that he was sanctioned, without any

evidence supporting the required legal standard of intentional misconduct by the

lawyer at the time of the survey. Indeed, the representative of the company that

actually conducted the survey – two degrees separated from Brewer – testified by

affidavit that there was no contact with the trial lawyer and no instruction to

intentionally target anyone. The trial court refused a continuance that would have

allowed that representative to testify live, then refused to consider his sworn

affidavit.62

The sanction award should be reversed. There is no evidence showing the bad

faith or mens rea this Court requires. There is no evidence showing the required

harm. This Court has rejected sanctions in situations far more unprecedented than

this. The survey here was not contrary to any governing principle – no case law, no

ethical standard, no statute, no state or local rule. In fact, it was reasonable, and it

was good lawyering and zealous representation of a client. And if there had been

any potential for influence on a member of the venire – that is, if a venire had ever

been assembled – voir dire, not sanctions, would have been the appropriate response

62 The trial court’s refusal to consider the SSI affidavit was erroneous for the reasons explained

13

for any incidental effect of jury surveys, as multiple courts, including this one, have

held.

Lawyers cannot be afraid to represent their clients. And so sanctions must be

tied to guiding principles. The sanction here was not. It leaves lawyers guessing

whether they can test jury themes and arguments before trial, a critical and common

tool. The trial court’s factual supposition, supported by no evidence – that an

experienced trial lawyer would intentionally target court staff and a responsible

third party – defies logic, when such people would never sit on the jury and would

report such contact. This sanction award is contrary to guiding principles, is not

supported by any evidence, and is an abuse of discretion. This Court should vacate

the sanction.

STANDARD OF REVIEW

Appellate courts review a trial court’s imposition of sanctions for an abuse of

discretion. See Lawrence v. Kohl, 853 S.W.2d 697, 700-01 (Tex. App.—Houston

[1st Dist.] 1993, no writ) (citing Kutch v. Del Mar College, 831 S.W.2d 506, 512

(Tex. App.—Corpus Christi 1992, no writ)). In conducting this review, appellate

courts review the entire record and view the evidence in the light most favorable to

the trial court’s ruling. Id.

infra in Section IV.

14

“The test for an abuse of discretion is whether the trial court acted without

reference to any guiding rules or principles, or whether under the circumstances of

the case the trial court’s action was arbitrary or unreasonable.” Onwuteaka v. Gill,

908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ). “A trial court

abuses its discretion in imposing sanctions only if it based its order on an erroneous

view of the law or a clearly erroneous assessment of the evidence.” Elkins v.

Stotts-Brown, 103 S.W.3d 664, 667 (Tex. App.—Dallas 2003, no pet.). The review

is essentially a two-part inquiry: “1) the reviewing court must ensure that there is a

direct relationship between the improper conduct and the sanction imposed . . . ; and

2) the reviewing court must make certain that less severe sanctions would not have

been sufficient to promote compliance.” In re J.V.G., No. 09-06-015CV, 2007 WL

2011019, at *4 (Tex. App.—Beaumont July 12, 2007, no pet.).

Though trial courts have “inherent power to sanction bad faith conduct during

the course of litigation that interferes with administration of justice or the

preservation of the court’s dignity and integrity,” Onwuteaka, 908 S.W.2d at 280,

courts cannot invoke that power “without some evidence and factual findings that

the conduct complained of significantly interfered with the court’s legitimate

exercise of one of its traditional core functions.” Howell v. Tex. Workers’ Comp.

Comm’n, 143 S.W.3d 416, 447 (Tex. App.—Austin 2004, pet. denied) (citing

Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.—Austin 2002, pet. denied));

15

see also Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.]

2011, no pet.). The court’s “inherent power to sanction exists only to the extent

necessary to deter, alleviate, and counteract bad faith abuse of the judicial

process ….” Onwuteaka, 908 S.W.2d at 280 (citing Lawrence, 853 S.W.2d at

699-700).

A finding of “bad faith” must include the appropriate mens rea of the accused

attorney. See Foust v. Hefner, No. 07-13-00331-CV, 2014 WL 3928781, at *5 (Tex.

App.—Amarillo Aug. 12, 2014, no pet.). This mens rea must be present when the

attorney makes his decision, not later when his decision is under scrutiny. See id.;

Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) (“An attorney who makes

a reasonable decision in the handling of a case may not be held liable if the decision

later proves to be imperfect.”). As this Court has held, “establishing ‘bad faith’

requires proof of ‘conscious doing of a wrong for a dishonest, discriminatory, or

malicious purpose.’” Foust, 2014 WL 3928781, at *5 (emphasis added) (citing Save

Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 321 (Tex.

App.—Texarkana 2006, pet. denied)). Finally, in addition to these required

findings, a trial court’s inherent power to sanction is also limited by traditional due

process considerations. See Kutch, 831 S.W.2d at 511.

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ARGUMENT

For the following reasons, the sanctions should be reversed.

I. Surveys are not a bad faith abuse of the judicial process as a matter oflaw. The trial court abused its discretion by sanctioning Brewer forcommissioning a pre-trial research survey when no Texas Rule of CivilProcedure, Texas Rule of Evidence, Texas Disciplinary Rule, ethicsopinion, or published Texas decision prohibits attorneys fromcommissioning independent surveys or polls, or from performing juryfocus exercises in the lawsuit venue to test actual or hypotheticalmessages and themes in connection with a potential or pending case.

The trial court’s imposition of sanctions against Brewer ignored central

guiding principles on pre-trial research surveys. See Am. Flood Research, Inc. v.

Jones, 192 S.W.3d 581, 583 (Tex. 2006). There is no rule, ethics opinion, case,

disciplinary rule, or other authority that prohibits the type of survey conducted in

this case. Pre-trial surveys in the lawsuit venue are a well-accepted method of

testing actual or hypothetical arguments related to a pending case. It is so routine, in

fact, that Plaintiffs’ counsel also conducted a survey of Lubbock residents in

connection with this case. 63 The trial court’s imposition of sanctions for

well-accepted and routine conduct was unreasonable and constitutes an abuse of

discretion.

63 3CR 3560.

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A. Every relevant authority indicates that pre-trial research in the lawsuitvenue is a common, accepted, and appropriate method for testingmessages, themes, and theories prior to trial.

Pre-trial research in the relevant lawsuit venue is a frequently-used

mechanism for attorneys to test messages, themes, and theories with people similar

to the jury venire. According to an article by Judge David Hittner and Eric J.R.

Nichols in the Texas Tech Law Review:

Many litigants are attempting to graft social science methods onto juryselection. The most celebrated of these methods is the communityattitudinal survey. A jury consultant, ordinarily a psychologist, willprepare questions designed to elicit attitudes about the litigants orissues involved in a case and to ascertain the background characteristicsof those polled. A market research team then conducts, in person or bytelephone, a survey of large numbers of residents within the court’sjurisdiction. Such surveys can then be used to develop a“psychographic profile” of the most and least attractive jurors. Alitigant can also use the survey to gauge the receptiveness of acommunity to certain themes that a litigant might emphasize at trial.64

An article published by the American Bar Association further emphasizes that

use of surveys to research information about jurors has been a common practice

“[f]or more than thirty years.”65 Jury surveys regularly take place “in the trial

jurisdiction.”66 “The survey is generally conducted by interviewing a random sample

64 8CR 9173-9230. Judge David Hittner & Eric J.R. Nichols, Jury Selection in Federal CivilLitigation: General Procedures, New Rules, and the Arrival of Batson, 23 TEX. TECH L. REV. 407,437-38 (1992) (citing, inter alia, Dr. Jeffrey T. Frederick, Using Juror Surveys to Solve Problemsat Trial, Aug. 1987, at 8).65 8CR 9173-9230. See Dr. Jeffrey T. Frederick, Evaluating Potential Jurors, 2 American BarAssociation, GP SOLO REPORT 5 at 4 (2012) (emphasis added).66 Id.

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of individuals from the critical jurisdiction . . . .” 67 Such a sample is “designed to

closely approximate the characteristics of the jury pool.”68 These “polling techniques

determine which characteristics of potential jurors (profiles) predict important beliefs

or opinions, such as opinions concerning the guilt or liability of the defendant” that

may affect the advocate’s choice of themes or arguments for trial.69 Jury surveys

typically test attitudes believed to be relevant to the case and question jurors about

case-specific issues, including the use of hypotheticals.70

The leading Texas case on these issues is Primrose Operating Co. v. Jones,

102 S.W.3d 188 (Tex. App.—Amarillo 2003, pet. denied). There, the plaintiffs’

attorneys conducted a mock trial within the trial venue, King County, which had a

population of just 300 people. Id. at 192. The trial court summoned 130 of the 300

county residents for jury duty only two days before the mock trial at which

plaintiffs’ counsel presented their case. Despite evidence that at least two of the

persons summoned for jury duty overheard discussions about the mock trial, this

Court (and the trial court in that case) found no impropriety by plaintiffs’ counsel

and observed that “the effect of the mock trial was significantly explored during the

jury voir dire examination.” Id. at 192-93.

67 8CR 9233. Dr. Jeffrey T. Frederick, Social Science Involvement in Voir Dire: Preliminary Dataon the Effectiveness of “Scientific Jury Selection,” 2 BEHAV. SCI. & L. 1, 377 (1984).68 Id.69 8CR 9255.

19

Jury surveys are a tool so frequently used that several federal judges in the

United States District Court for the Eastern District of Texas have adopted standing

orders that specifically address mock trials, focus groups, or similar surveys in the

lawsuit venue.71 Importantly, each of these orders permits jury studies within the

division in which the case is pending.72 The United States Court of Appeals for the

Fifth Circuit also has approved similar jury surveys used by federal prosecutors,

noting that they do not “compromise the integrity of jury selection.” United States v.

Collins, 972 F.2d 1385, 1398 (5th Cir. 1992) (rejecting sanctions for a survey

conducted in the trial court’s jurisdiction with a one-sided recitation of facts testing

messages contrary to the constitutional presumption of innocence).

In addition to using jury surveys to test trial themes, surveys of potential

jurors in the trial venue are also commonly performed when attorneys are

considering moving for a change of venue under TEX. R. CIV. P. 257 and 258. See,

e.g., First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 620 (Tex.

App.—Corpus Christi 1993, writ denied) (analyzing results of public opinion survey

70 8CR 9233.71 9CR 10184-90.72 Id. The trial court cited these standing orders as evidence that the survey did not comply withthe specific procedures outlined in those orders. 9CR 10192. These standing orders were providedto the trial court per its request at the hearing to provide the court with practical guidance on howother courts have handled similar issues related to surveys. 9CR 10184. As the trial court notes,the standing orders contain certain notification requirements. 9CR 10192. But the trial court heredoes not have a standing order in place that contains particular notice requirements. If it had,Brewer would have complied.

20

within the trial jurisdiction to determine whether change of venue was warranted

under Rule 257). Rule 257 allows a change of venue upon evidence of a prejudice

within the trial jurisdiction. TEX. R. CIV. P. 257. Rule 258 provides that a Rule 257

motion shall be granted unless the credibility of the evidence is attacked. See TEX.

R. CIV. P. 258. Chapter 31 of the Code of Criminal Procedure provides a

comparable rule. TEX. CODE CRIM. PROC. § 31.03.

Only Movants’ purported expert, Lewis Sifford, has suggested that it is

inappropriate to conduct pre-trial litigation surveys in the lawsuit venue.73 As

shown, his unsupported opinion is an outlier. Even Voir Dire, the magazine

published by the American Board of Trial Advocates of which Sifford was

president,74 published an article touting the use of jury surveys.75 The article noted

that trial consultants have been around since the 1970s and use scientific approaches

to select jurors that include community surveys.76

As these authorities demonstrate, the survey Brewer commissioned was not

an unusual or inappropriate method for pre-trial research. Rather, the use of such

surveys is a longstanding and commonly-accepted method used by zealous

advocates to prepare for trial.

73 10RR 101:3-10.74 10RR 166:21-167:11.75 8CR 9493. See Thaddeus Hoffmeister, Investigating Jurors in the Digital Age: One Click at aTime, VOIR DIRE at 13 (American Board of Trial Advocates, Dallas, Tex.), Summer 2013.

21

B. The survey was consistent with accepted professional standards andsought 300 completed responses from individuals residing in a countywith a population over 289,000 and a jury pool over 155,000.

The specific methods used in conducting this survey did not violate any

relevant guidelines or the Texas Disciplinary Rules of Professional Conduct. The

survey Brewer commissioned was consistent with guidelines established by the

American Association for Public Opinion Research (“AAPOR”) for ethical message

testing. Unlike a “push poll,” which consists of “unethical political telemarketing

calls disguised as research that are designed to persuade large numbers of voters,”

the survey here was appropriate message testing. 77 “Message testing, when

campaigns test the effectiveness of possible messages about opponents and even

themselves, is very different; and it is a legitimate form of surveying.”78

The following chart shows a comparison between the characteristics of an

inappropriate push poll, according to AAPOR, and the characteristics of the survey

done in this case:

76 Id.77AAPOR Provides Clarification on “Push Poll” Issue, Nov. 16, 2007, available athttps://www.aapor.org/Communications/Press-Releases/Archived-Press-Releases/AAPOR-Provides-Clarification-on-Push-Poll-Issue.aspx (last visited May 15, 2016).78 Id.

22

Characteristics of anInappropriate Push Poll79

Characteristics ofThis Survey

Calls are not based on a randomsample.

The survey was a blind, randomsurvey of Lubbock County residentsover the age of 18.80 Brewer had noinput in selecting those contacted.81

One or few questions are asked. The survey asked 42 questionspresented in a randomized order.82

The one or few questions asked areabout only a single candidate or issue.

The survey presented variousquestions and arguments on bothsides of the case.83

The questions are uniformly stronglynegative.

The survey presented both sides of anissue.84

The survey is meant to influencepublic opinion.85

Long, interview style format meant togauge public opinion.86

Seeks to give survey to large numbersof people.

Sought only 300 responses.87

The survey is attached at Appendix Tab 2. It is neutral, straightforward, and

professional. It measures public perceptions and awareness of an issue, evenly

testing different views of that issue. It does not mention the parties. Read in

79 AAPOR Statement on “Push” Polls, October 2015,http://www.aapor.org/Education-Resources/Resources/AAPOR-Statements-on-Push-Polls.aspx(last visited June 22, 2016).80 9RR 34:7-35:3, 37:12-20, 68:8-16, 180:8-23; 7RR 41:17-21; 6RR 69:10-70:15; 12RR 45:8-11,67:7-24; 2Supp.CR 7.81 9RR 68:8-16, 165:19-23.82 8CR 9453-68.83 10RR 225:9-24.84 Id.85 8CR 9282.86 2Supp.CR 7 (¶ 4); 9RR 37:12-20; 6RR 147:9-148:2, 66:18-22, 159:24-160:4.

23

random order to randomly selected respondents, there is simply no way this survey

was a bad faith attempt to improperly influence potential jurors.

Even Plaintiffs’ purported polling expert, Cummins, conceded that the

elements in the survey here are not indicative of a push poll.88 In fact, Cummins

admitted that at least half of the survey was not a push poll and that other questions

lacked elements of a push poll.89 Thus, even taking Plaintiffs’ purported expert’s

testimony at face value, the survey was appropriate message testing and not an

inappropriate push poll.

In addition to the appropriate types of questions used, the survey was also

administered in a manner consistent with industry standards. Brewer’s firm engaged

one of the most recognized public opinion research firms in the industry, Public

87 6RR 90:24-91:6; 9RR 68:8-16.88 10RR 225:25-227:6.89 10RR 225:20-24, 226:19-23, 227:18-20. Though Cummins characterized the survey as a “pushpoll,” his personal, subjective definition of a “push poll” is inconsistent with that of the AAPORand is not supported in any article or publication. 10RR 150:21-23, 151:12-18. Importantly,Cummins had no experience with litigation surveys like the one at issue here, 11RR 22:6-18, andwould not qualify as an expert under E.I. Du Pont de Nemours & Co. v. Robinson, 923 S.W.2d549, 557 (Tex. 1995) (holding that for expert testimony to be admissible, “[i]n addition to beingrelevant, the underlying scientific technique or principle must be reliable.”). The Texas SupremeCourt has recognized that an expert “cannot simply say, ‘Take my word for it; I know . . . . ’”Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999); see also Merrell Dow Pharm., Inc. v. Havner,953 S.W.2d 706, 712 (Tex. 1997) (“[i]t is not so simply because ‘an expert says it is so’”) (citationomitted); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) (the trialcourt need not admit opinion evidence which is “‘connected to existing data only by the ipse dixitof the expert’”) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

24

Opinion Strategies, to conduct the survey.90 Public Opinion Strategies retained SSI

to conduct CATI using a questionnaire provided by Public Opinion Strategies to

perform a blind, random survey of Lubbock County residents that would gauge

public perception and reaction about CSST and related matters. 91 Cummins

conceded that a CATI system “uses a randomized system” not used in push polls.92

The questions in the survey were further randomized so that different participants

heard the questions in different orders.93 Cummins conceded that the order of

various questions in the survey were randomized, which is not a characteristic of a

push poll.94

Consistent with their ethical obligations, Public Opinion Strategies and SSI

have not disclosed the names of the 300 people who responded to the survey. The

AAPOR Code of Ethics provides: “We understand that the use of our research

results in a legal proceeding does not relieve us of our ethical obligation to keep

confidential all respondent-identifying information (unless waived explicitly by

90 6RR 208:7-21. Public Opinion Strategies has an excellent reputation. 6RR 208:7-21. In fact,shortly before taking on the survey at issue in this case, Public Opinion Strategies performedanother project in the Lubbock area involving the American Heart Association. 6RR207:21-206:6.

91 2Supp.CR 7 (¶ 4).92 11RR 18:9-14.93 8CR 9453-68.94 10RR 225:25-226:3, 226:19-23.

25

respondent) or lessen the importance of respondent confidentiality.”95 Cummins

agreed that the names of the 300 respondents could not be disclosed by Public

Opinion Strategies or SSI without the specific consent of those respondents.96

Not only did the survey comport with standards for surveys established by

AAPOR, but it also was proper under the Texas Disciplinary Rules of Professional

Conduct, which do not prohibit pre-trial surveys. Nor do they provide a private

cause of action.97 Disciplinary Rules 3.06 and 3.07 prohibit certain contact with the

jury venire and certain pretrial publicity, but Brewer did not violate either rule.98

While a designated responsible third party in the case was contacted by SSI

during the survey process99 and the trial court’s later review of the 20,000-person

database (that Brewer and his firm never saw) showed that this database included a

95 8CR 9473-75.96 11RR 63:13-16.97 TEX. DISCIPLINARY R. PROF’L CONDUCT Preamble: 14-15.98 First, Rule 3.06 only applies to actual venire persons – not to potential venire persons. SeePrimrose, 102 S.W.3d at 193-94 (Rule 3.06 “prohibits an attorney from seeking to influence avenireman or communicate with any member of the venire”). And there is no evidence in therecord, nor do Movants suggest, that any member of the venire was contacted at any time for thesurvey. Second, Rule 3.07(a) prohibits attorney statements “that a reasonable person wouldexpect to be disseminated by means of public communications ….” See TEX. DISCIPLINARY R.PROF’L CONDUCT 3.07(a). In contrast to Plaintiffs’ counsels’ interviews with local media andwebsite postings, the survey here did not involve a public communication. It consisted of directphone calls to obtain 300 responses. The fact that the people contacted for the survey mightdescribe the survey and its contents to other members of the community does not make the surveya public communication. This Court has flatly rejected the argument that “word-of-mouth [even]in a small community” is sufficient to fall within “public communications” under Rule 3.07.Primrose, 102 S.W.3d at 194. In fact, it specifically stated that such a construction would“effectively rewrite the Rule.” Id.99 6CR 7413, 7415.

26

handful of city officials and courthouse staff,100 there is no indication that these

persons were intentionally contacted, nor would any reasonable attorney

intentionally want them on the list of selected names. If anything, the presence of

those individuals in the database further corroborates the integrity of the random

sample selected by i360 without input from Brewer or his firm.

Further, the large size of the jury pool in Lubbock County (over 155,000), the

number of randomly chosen persons included in the database (20,000), and the small

number of responses for the jury survey (300) refute any suggestion that this survey

was intended to target specific individuals or to sway actual jurors. The specifics of

this survey also provide a stark contrast with the facts in Primrose, where this Court

agreed with the trial court’s finding that there was no attorney misconduct where the

attorneys conducted a mock trial in a county of only 300 persons, in which nearly

half of the county residents were on the jury venire. See 102 S.W.3d at 192-94.

Ultimately, Brewer testified that it was unfortunate that these individuals were

included in the database of randomly selected names. And although Brewer

expressed sincere regret and stated that he would take steps in the future to avoid this

from happening again, 101 Brewer’s decision to commission the survey was

reasonable and consistent with all available guiding principles.

100 9CR 10191-94.101 9RR 112:4-113:1, 188:21-189:5.

27

C. Because Brewer’s intent must be judged at the time he decided tocommission the survey – not later, at the sanctions hearing – the trialcourt abused its discretion by imposing sanctions based on its findingthat Brewer’s demeanor at the hearing was “nonchalant and uncaring.”

An “attorney who makes a reasonable decision in the handling of a case may

not be held liable if the decision later proves to be imperfect.” Cosgrove v. Grimes,

774 S.W.2d 662, 664-65 (Tex. 1989) (emphasis added). Likewise, here, Brewer’s

intent must be assessed at the time of the decision, not later as of the date of the

sanctions hearing. See Foust, 2014 WL 3928781, at *5 (considering “mental

processes in which . . . attorney engaged when signing the original petition” to

determine whether there was evidence of the “conscious doing of a wrong” under

Rule 13) (emphasis added). As discussed infra in Section II, there is no evidence of

any improper, intentional conduct when Brewer commissioned the survey; the trial

court’s conclusion that Brewer’s demeanor at the hearing was “nonchalant and

uncaring” – after he spent the full day on the witness stand and was cross-examined

by five different attorneys102 – is legally irrelevant.103 As Brewer’s decision to

commission the survey was reasonable under every guiding authority at the time the

decision was made – the only relevant time period for purposes of evaluating

whether sanctions are appropriate – the trial court abused its discretion in imposing

sanctions.

102 9RR 7:5-9.103 See 9CR 10191.

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II. The trial court’s sanction should be vacated because the trial courtapplied the wrong legal standard – basing sanctions on conduct found tobe grossly negligent instead of the Foust standard for bad faith whichrequires mens rea – and because there is no legally or factually sufficientevidence to support a finding of bad faith.

Brewer’s conduct here was neither bad faith nor grossly negligent because the

survey complied with available guiding principles, was reasonable, and was nothing

more than zealous representation. But to the extent any mistakes were made, the

trial court’s finding of gross negligence cannot support inherent power sanctions as a

matter of law. And despite the trial court’s conclusory references to bad faith, there

is no evidence in the record sufficient to support that claim.

A. Sanctions only can be imposed when there is legally and factuallysufficient evidence of bad faith.

“Courts have inherent power to discipline an attorney’s behavior” only for

bad faith abuse of the judicial process. In re Bennett, 960 S.W.2d 35, 40 (Tex.

1997) (citing Lawrence, 853 S.W.2d at 700). Under In re Bennett and its progeny, a

court must make an express finding of bad faith to sanction a lawyer using its

inherent power. See Clark v. Bres, 217 S.W.3d 501, 512 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied) (“[I]n the absence of an applicable rule or statute,

courts have authority to sanction parties for bad faith abuses if it finds to do so will

aid in the exercise of its jurisdiction, in the administration of justice, and the

preservation of its independence and integrity.”). A court may exercise this power

only ‘“to the extent necessary to deter, alleviate, and counteract bad faith abuse of

29

the judicial process, such as any significant interference with the traditional core

functions’ of the court.” In re Estate of Perez Muzza, 446 S.W.3d 415, 424 (Tex.

App.—San Antonio 2014, pet. denied) (citation omitted).

This Court has held that “establishing ‘bad faith’ requires proof of ‘conscious

doing of a wrong for a dishonest, discriminatory, or malicious purpose.’” See Foust,

2014 WL 3928781, at *5 (citing Save Our Springs, 198 S.W.3d at 321). An attorney

cannot be sanctioned under a trial court’s inherent power for “simply bad judgment

or negligence….” Pearson v. Stewart, 314 S.W.3d 242, 248 (Tex. App.—Fort

Worth 2010, no pet.). “Improper motive is an essential element of bad faith.” Id.

(emphasis added).

As shown above, Brewer’s decision to commission the survey was reasonable

and consistent with guiding authorities. The facts do not support a finding of bad

faith for that reason alone. But even if the survey were not an appropriate method of

conducting pre-trial research, the trial court’s finding of gross negligence and the

evidence in the record do not support a finding of bad faith. The trial court’s order

should be vacated for this additional reason.

B. The trial court’s finding of gross negligence does not meet the bad faithstandard from Foust, which requires the “conscious doing of a wrongfor a dishonest, discriminatory, or malicious purpose.”

Bad judgment, negligence, or inadvertence is not equivalent to bad faith and

does not support sanctions. See Pearson, 314 S.W.3d at 248; see also City of

30

Alexandria v. CLECO, Corp., 547 F. App’x 568, 570 (5th Cir. 2013) (“Inadvertence

is inconsistent with a finding of bad faith.”). Texas appellate courts have found an

abuse of discretion and vacated a trial court’s award of sanctions where the evidence

in the record supported only negligence – not bad faith. See, e.g., McWhorter v.

Sheller, 993 S.W.2d 781, 789 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)

(reversing sanctions where attorney’s behavior, “at best, represents some degree of

inexperience and negligence on her part, rather than an intentional act made in bad

faith”); Onwuteaka, 908 S.W.2d at 280 (reversing sanctions where attorney’s

actions might constitute negligence but did not support bad faith finding).

Despite conclusory statements that Brewer’s conduct was intentional and in

bad faith, the trial court found, at most, that Brewer’s “failure to provide a list of

parties and witnesses whom should not be contacted was grossly negligent.”104 But

negligent conduct does not support the imposition of inherent power sanctions or the

requisite mens rea. See Foust, 2014 WL 3928781, at *5. The trial court abused its

discretion by applying the wrong standard for mens rea. Its imposition of sanctions

must be vacated.

104 9CR 10193.

31

C. There is no legally or factually sufficient evidence in the record of a badfaith abuse of the judicial process or the requisite mens rea, and theonly evidence of intent establishes that the alleged improper contactwas accidental.

Beyond the trial court applying the wrong standard in awarding sanctions, it

also abused its discretion by awarding sanctions against Brewer because the record

is devoid of any legally or factually sufficient evidence to support the finding that

Brewer engaged in any improper, intentional conduct. As improper motive and the

conscious doing of a wrong are necessary elements of bad faith, see Pearson, 314

S.W.3d at 248; Foust, 2014 WL 3928781, at *5, the trial court’s finding of bad faith

in this matter is arbitrary and unreasonable.

1. No evidence in the record supports the trial court’s conclusionthat Brewer acted in bad faith.

The trial court’s conclusory statements that Brewer acted in bad faith are not

supported by any evidence and fail under any standard.

First, Plaintiffs’ counsel conceded that “[w]e only know intent from what Bill

Brewer said.”105 But Brewer made no statements suggesting any intentional or bad

faith action at the time he commissioned the survey. See Cosgrove, 774 S.W.2d at

664-65. To the contrary, Brewer testified that: (1) he had no intention for anyone

with a connection to the case to be contacted about the survey; (2) he had no

knowledge of the contact at issue; (3) it “was unfortunate” that a couple of

105 11RR 119:5-9.

32

individuals with tangential connections to the case were called; (4) he wishes those

individuals had not been called; and (5) he would take steps to avoid anything like

this happening in the future.106 None of Brewer’s statements were controverted and

thus do not support any bad faith finding.

Second, even if the trial court discredited Brewer’s testimony, there is no

legally and factually sufficient evidence to support the trial court’s finding of bad

faith abuse of the judicial process because:

• There is no evidence of wrongful, intentional conduct by Brewer, let alone

“proof of ‘conscious doing of a wrong for a dishonest, discriminatory, or

malicious purpose.’” Foust, 2014 WL 3928781, at *5.

• Nothing in the record shows that Brewer intended to influence or interfere

with the jury pool, the venire, or the judicial process.

• The survey was not directed to any venire (which had not been summoned)

but rather to 300 randomly sampled Lubbock County residents over 18 years

old in a county with a population over 289,000 people.107

• Plaintiffs’ purported ethics expert, Lewis Sifford, agreed that there is no

evidence of who the venire members would have been, that any of them

would have been called to jury duty in the trial court, or that any of them

106 9RR 112:4-113:1, 180:8-23, 188:21-189:5.107 9RR 37:21-23; see n. 18, supra.

33

would not have truthfully responded to voir dire if they had been called to jury

duty.108

• There is no logical reason why a trial lawyer would intentionally target court

personnel or persons tangentially related to the case who could never be jurors

and would report such contact.

Thus, the only evidence presented supports a finding of no bad faith. The entire

record, after multiple attorneys and witnesses spent hours over six days of testimony

trying to prove otherwise, is devoid of any such evidence.

The Austin Court of Appeals’ decision in Cantu McGarrahan v. Foote, No.

03-01-00506-CV, 2002 WL 1728587, at *5 (Tex. App.—Austin July 26, 2002, no

pet.), is instructive on this point. In that case, the Austin Court of Appeals reversed a

sanctions award under Rule 13 where there was no evidence of bad faith, concluding

that the “only evidence about the motives of . . . counsel in filing the motion, or his

factual or legal inquiry prior to the filing, came from . . . counsel.” Id. Similarly, the

only evidence of Brewer’s intent in commissioning the survey at issue here is

Brewer’s testimony. “Without testimony as to these matters that tends to support

the trial court’s conclusions of groundlessness and bad faith, imposing sanctions

under rule 13 was an abuse of discretion.” Id. (emphasis added). So, too, here.

Even ignoring (as the trial court did) the copious affirmative evidence of benign

108 10RR 131:6-18, 132:12-16.

34

intent detailed below, simply disbelieving Brewer’s testimony is wholly insufficient

as a matter of law. Id.

Thus, the trial court’s finding of Brewer’s bad faith and malicious purpose

without corroborating testimony or evidence was an abuse of discretion. This Court

should vacate the sanctions order.

2. The trial court ignored the uncontroverted evidence in therecord establishing that Brewer did not engage in anyintentional conduct, including evidence from the independentthird party who actually conducted the survey.

Without a direct nexus between the attorney and the challenged conduct such

that the conduct was “knowing and intentional,” sanctions for bad faith are

improper. In Texas Mutual Ins. Co. v. Narvaez, the court of appeals reversed the

imposition of sanctions against an attorney where the trial court found only that

someone falsified a document but could not determine who did so. See 312 S.W.3d

94, 101-02 (Tex. App.—Dallas 2010, pet. denied). There was no evidence of

“knowing and intentional” use of the document by the attorney and, thus, “no direct

nexus among the offensive conduct, the offender, and the sanction imposed.” Id. at

102 (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003)). Likewise,

here, there is no evidence that Brewer knowingly and intentionally targeted any

individuals. The undisputed testimony of Brewer, Travis Carter, and Andrea

Burnett demonstrates that there was no wrongful intent in connection with the

35

survey. 109 The evidentiary record consistently shows that neither Brewer nor

anyone at his firm intended for any parties, witnesses, or potential witnesses to be

called in connection with the survey.

This testimony was independently corroborated by the sworn testimony in the

affidavit of SSI employee Jacob Flake.110 No one at SSI – the third party that

actually conducted the survey – had any contact with Brewer or his firm.111 In fact,

Brewer’s firm did not even retain SSI; Public Opinion Strategies retained SSI

without Brewer’s knowledge.

SSI’s affidavit further states that no person selected which phone numbers

were called; a computer program made that random determination.112 Specifically,

SSI used its CATI system, which randomly selected numbers from the database of

20,000 names and numbers that i360 compiled.113 And according to SSI, “[a]t no

time did anyone at Public Opinion Strategies, i360, Bickel & Brewer,114 or anyone

else suggest that SSI contact any specific individual or phone number among the

approximately 20,000 names and phone numbers that we received, or place more

109 9RR 34:7-35:3, 37:12-20, 68:8-16, 165:19-23, 180:8-23; 7RR 41:17-21; 6RR 69:10-70:15.110 The trial court erred by refusing to consider the SSI affidavit. See Section IV, infra. And in anyevent, the SSI affidavit merely corroborates all of the other evidence in the record and highlightsagain that the trial court’s sanction is supported by no evidence.111 9RR 35:23-36:11; 6RR 51:15-52:2, 105:17-106:4, 134:5-14.112 2Supp.CR 8-9 (¶ 14).113 2Supp.CR 7 (¶¶ 4, 6).

36

than one call to any person.”115 This is consistent with the testimony of Brewer,

Carter, and Burnett that they did not direct Public Opinion Strategies, SSI (with

whom they never had any contact), or anyone else to contact any person in

connection with the survey.116

The only evidence of whether specific people were targeted in connection

with the survey establishes that they were not. The only evidence of Brewer’s intent

in commissioning the survey – the critical inquiry under this Court’s Foust opinion –

is his testimony, consistent with all the evidence, that he did not intend for anyone

with a connection to the case to be contacted through this pre-trial research tool, that

it is unfortunate these people were included in the list of names, and that he would

take steps to avoid anything like that happening again.117 There is no nexus between

Brewer’s conduct and the sanction issued by the trial court.

III. The trial court’s sanction should be vacated because the permissibleremedy for any potential effect on a never-summoned jury pool would bevoir dire, not sanctions, and the survey did not interfere with thetraditional core functions of the court or affect any actual jurors.

Not only must a court find that a party acted in bad faith to impose sanctions,

but courts also cannot exercise their inherent power to sanction parties “without

114 As explained above, the name of Brewer’s firm while this case was in the trial court was Bickel& Brewer.115 2Supp.CR 8 (¶ 9).116 9RR 34:7-35:3, 35:23-36:25, 112:16-113:1; 6RR 51:15-52:2, 104:18-24, 134:5-14.117 9RR 112:4-113:1, 188:21-189:5.

37

some evidence and factual findings that the conduct complained of significantly

interfered with the court’s legitimate exercise of one of its traditional core

functions.” Howell, 143 S.W.3d at 447 (emphasis added). “To uphold a sanction

imposed under the court’s inherent power, the record must indicate that the conduct

complained of significantly interfered” with one of these core functions. See

Guzman v. Tex. Mut. Ins. Co., No. 13-06-227-CV, 2007 WL 1439742, at *2 (Tex.

App—Corpus Christi May 17, 2007, no pet.) (emphasis added). Reversal is

appropriate when – as here – there is no evidence of significant interference. See,

e.g., Ezeoke, 349 S.W.3d at 685 (citation omitted) (reversing sanctions against

attorney who failed to comply with local rules, failed to appear at mediation, and lied

to the court about having a vacation letter on file because the trial court did not find

that this conduct significantly interfered with its core functions); Kennedy, 125

S.W.3d at 16-17.

A. There is no evidence of significant interference – or any interference –with the court’s traditional core functions.

The record here is devoid of any evidence that the survey interfered with any

function of the court. No jury was impaneled and, because the case settled before

trial, no jury venire was even summoned. There is no evidence that any jury

38

member or even any venire member was contacted in connection with the jury

survey.118

Further, while the trial court here concluded that the survey “was designed to

improperly influence a jury pool and or venire panel” because the “database of

names from the pool included, in part, court personnel, their spouses, City Council

and their spouses, City Managers, witnesses and their spouses, designated third

parties and their spouses,”119 that finding does not show any – let alone significant –

interference.120 There is no evidence that any of these individuals completed the

survey,121 and none of them would have served as jurors, in any event. If the case

had proceeded to jury selection, any individuals with a preexisting connection to the

case would have been stricken for cause during voir dire and would not have served

on the jury. Nor would any court personnel sit on the jury. Any phone calls to these

individuals, if they occurred, created no likelihood of interference or influence with

the potential jury pool.

118 See 10RR 130:12-25, 131:6-18, 132:12-16.119 9CR 10193.120 As previously discussed supra Section II.B, there is no evidence in the record to support thefinding that these individuals were purposely targeted for the survey.121 8CR 9129.

39

B. Voir dire would have allowed the trial court and the parties todetermine whether the survey had any effect on potential jurors – and ifso, to strike those jurors.

Even if a venire member inadvertently had been contacted, the survey would

not have created the significant interference required to impose inherent power

sanctions. The Texas Rules of Civil Procedure provide tools – including voir dire –

to identify and strike any jurors with bias or prejudice. As the Texas Supreme Court

stated:

Rules 606(b) and 327(b) [regarding jury misconduct]cannot be viewed in isolation from other trial proceduresdesigned to further the Constitution’s goal of a fair andimpartial jury. Our system provides other procedures toprotect against undesirable jurors. Litigants may questionpotential jurors on voir dire to detect potential bias andeither challenge for cause or exercise peremptorychallenges.

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 375 (Tex. 2000) (citing

Tanner v. United States, 483 U.S. 107 (1987)) (holding that trial court did not abuse

its discretion in denying a new trial when there was no competent evidence of jury

misconduct). “If a problem develops during trial, the court may question the jury by

voir dire and take corrective measures such as instructing the jury, dismissing

particular jurors, or declaring a mistrial.” Id. Thus, the evidence here does not

demonstrate any significant interference.

On numerous occasions, courts (including this Court) have held that similar

pre-trial activity had no prejudicial effect because any influence on potential jurors

40

could be mitigated in voir dire. See id.; Primrose, 102 S.W.3d at 192-93 (denying

motion for mistrial when “the effect of the mock trial was significantly explored

during the jury voir dire examination”); Collins, 972 F.2d at 1399 (“defendants

made no showing that voir dire was inadequate” to determine any biases against

them as a result of the survey).122

This Court’s opinion in Primose provides an illustrative example. There, the

plaintiffs’ attorneys conducted a mock trial at which plaintiffs’ counsel presented

their case within the trial venue – King County, which had a population of just 300

people – two days after the trial court had summoned nearly half of the county’s

residents for jury duty. 102 S.W.3d at 192. Despite evidence that at least two of the

persons summoned for jury duty overheard discussions about the mock trial, this

Court (and the trial court in that case) found no impropriety by plaintiffs’ counsel.

Id. at 193, 195. This Court reasoned that “the effect of the mock trial was

significantly explored during the jury voir dire examination.” Id. at 192-93. Voir

dire gave the parties “a full opportunity to inquire into what, if any, information had

been conveyed to each venire member and what effect it might have on them.” Id. at

194.

122 See also People v. Owens, 725 N.Y.S.2d 532, 533-34 (N.Y. Sup. Ct. 2001) (finding thatdefendants were not prejudiced by prosecution’s survey when voir dire enabled them to questionjurors on “any racial biases, pre-conceived attitudes about the death penalty, and any other matterthe defendant deemed appropriate”).

41

Likewise here, if this lawsuit had gone to trial, voir dire would have allowed

the parties and the Court to identify any venire members who received a call in

connection with the jury survey and to question the venire members regarding any

potential bias. See id. at 193. The fact that voir dire would have cured any potential

interference renders the trial court’s sanction improper. To support the imposition of

an inherent power sanction, the court “must ensure that there is a direct relationship

between the improper conduct and the sanction imposed” and “must make certain

that less severe sanctions would not have been sufficient to promote compliance.”

See J.V.G., 2007 WL 2011019, at *4. Here, voir dire – not sanctions – was the

appropriate remedy for the routine conduct at issue. Thus, the trial court abused its

discretion by imposing sanctions against Brewer.

IV. The trial court erred by denying Brewer the opportunity to obtain livetestimony of the third-party vendor that performed the survey, thenrefusing to consider the affidavit of that vendor testifying that Brewercommitted none of the alleged misconduct.

SSI’s affidavit is additional evidence that Brewer did not engage in any

improper, intentional conduct. The trial court’s refusal to consider that affidavit was

error. This Court can and should consider SSI’s affidavit under the plain language

of TEX. R. CIV. P. 215.6 (providing that responses to sanctions motions “may have

exhibits attached, including affidavits . . . .”) (emphasis added); see also Island

Entm’t Inc. v. Castaneda, 882 S.W.2d 2, 5 (Tex. App.—Houston [1st Dist.] 1994,

writ denied) (to avoid abuse, courts imposing sanctions under inherent power must

42

“rely upon the rules and statutes expressly authorizing sanctions whenever

possible”) (citation omitted); Lawrence, 853 S.W.2d at 700-01 (in “an appellate

court’s examination of the trial court’s actions pursuant to its inherent power . . . the

appellate court must review the entire record …”); Shamrock Oil Co. v. Gulf Coast

Nat. Gas, Inc., 68 S.W.3d 737, 740 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) (noting that “there was no evidence” in the record “[b]ecause no affidavit or

testimony was submitted” in sanctions proceeding) (emphasis added).

The SSI affidavit was the direct result of the trial court’s denial of Brewer’s

Motion to Continue. After Titeflex discharged Brewer as its counsel, Brewer’s firm

was no longer included in filings and notices in the underlying case. Movants set the

sanctions hearing without consulting Brewer and without timely providing him

notice. Brewer promptly retained counsel and moved for a continuance, requesting

additional time to seek discovery – including depositions – from out-of-state third

parties, such as Public Opinion Strategies, SSI, and other fact witnesses, to show that

the allegations of “targeting” were baseless. 123 Brewer’s verified Motion to

Continue explained that without additional time to obtain this discovery, he could

not present all facts essential to support his opposition to the Motions for Sanctions,

including the corroborating testimony of third-party fact witnesses who actually

123 6CR 8433, 8435.

43

performed the random survey. The trial court denied the Motion to Continue on

September 18, 2014, the day after it was filed, without a hearing.124

Nonetheless, Brewer was able to obtain the SSI affidavit and properly

attached it to his opposition to the motions for sanctions under TEX. R. CIV.

P. 215.6.125 That rule specifically provides that responses to sanctions motions

“may have exhibits attached including affidavits …” TEX. R. CIV. P. 215.6. By

attaching the affidavit to his response, Brewer ensured that this important

corroborating evidence was in the record and before the trial court when it ruled on

the Motions for Sanctions. Indeed, as the Texas Supreme Court has held in a

sanctions case, a trial court is “presumed” to be “familiar with the entire record of

the case up to and including the motion to be considered.” Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985) (rejecting view that evidence

presented after the sanctions hearing, including an affidavit, was not before the trial

court); see also Harmouch v. Michael A. Rassner, D.D.S., P.C., No.

01-10-00367-CV, 2011 WL 1435008, at *3-4 (Tex. App.—Houston [1st Dist.] Apr.

14, 2011, no pet.) (reviewing entire record, including affidavits attached to motion

for sanctions, to determine whether evidence of bad faith existed).

124 6CR 8445-46.125 6CR 8532-36.

44

But after denying Brewer the opportunity to depose key out-of-state

witnesses, the trial court refused to consider an affidavit from one of them. That was

error. The fact that the trial court viewed the affidavit as hearsay in the context of the

evidentiary hearing – where the availability of live testimony was limited by the trial

court’s own order denying the Motion to Continue – cannot overcome the plain

language of Rule 215.6 allowing parties to place affidavit evidence into the

record.126

In addition to the plain language of Rule 215.6, the SSI affidavit is properly in

the record because Charles Herring, Jr., a leading Texas expert on attorney ethics,

discipline, and standards of care, testified that he relied in part on that affidavit in

forming his opinions: (1) that the survey was appropriate, (2) that Brewer acted

consistently with all ethical obligations, and (3) that the bad faith standard required

for the imposition of sanctions under the court’s inherent power was not met here.127

126 Brewer is aware of one outlier case that supports a different conclusion. In Kugle v.DaimlerChrysler Corp., 88 S.W.3d 355 (Tex. App.—San Antonio 2002, pet. denied), the courtstated, without analysis or citation to any authority, that “although rule 215.6 allows affidavits tobe attached to a response to a sanctions motion, in order for the trial court to consider suchaffidavits, they must be admitted in compliance with the rules of evidence at the evidentiaryhearing.” Id. at 364. Kugle was wrongly decided, is not binding on this Court, and should not befollowed. The Kugle holding would render the plain language of Rule 215 meaningless. It isinconsistent with the Texas Supreme Court’s holding in Downer, which rejected the view thatevidence, including an affidavit, submitted outside the live evidentiary hearing could not beconsidered. Kugle has appropriately been criticized by subsequent authority. See Clinica SantaMaria v. Martinez, No. 13-09-573-CV, 2010 WL 2543943, at *3 (Tex. App.—Corpus ChristiJune 24, 2010, pet. denied) (distinguishing Kugle and noting that “the procedural rules suggest thataffidavits may be properly attached to a response to a sanctions motion” even where the affiant didnot testify at the hearing).127 See 12RR 60:8-20, 68:3-10.

45

Herring was allowed to rely on the SSI affidavit as a proper basis for his expert

testimony. See TEX. R. EVID. 703; see also Sosa ex rel. Grant v. Koshy, 961 S.W.2d

420, 426-27 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (under Rule 703, an

expert may properly rely on hearsay evidence if experts in his field would

reasonably rely on such evidence).

For these reasons, this Court should review and consider the affidavit from

SSI employee Jacob Flake, which corroborates the rest of the record showing no bad

faith.

PRAYER

Brewer respectfully requests that this Court vacate the trial court’s imposition

of sanctions against Brewer in its entirety, reverse the Final Judgment to the extent

this judgment imposes sanctions, and render a take-nothing judgment as to: (1) the

“Proposed Order on Sanctions Motions (Docket Reference Nos. 50-54), and Final

Order of Dismissal” signed on February 19, 2016; and (2) the “Ruling on Sanctions

Motion” Letter signed on January 22, 2016. Brewer also respectfully requests any

further and additional relief to which he is justly entitled.

46

George M. KryderState Bar No. 11742900Daniel L. TobeyState Bar No. 24048842Melissa L. JamesState Bar No. 24074746VINSON & ELKINS LLP3700 Trammell Crow Center2001 Ross AvenueDallas, Texas 75201-2975Telephone: (214) 220-7700Fax: (214) 220-7716gkryder@velaw.comdtobey@velaw.commjames@velaw.com

Respectfully submitted,

/s/ Timothy T. Pridmore

Timothy T. PridmoreState Bar No. 00788224R. Michael McCauleyState Bar No. 00797030Jack P. DriskillState Bar No. 06127000MCWHORTER, COBB & JOHNSON, LLP1722 Broadway (79401)P. 0. Box 2547Lubbock, Texas 79408Telephone: (806) 762-0214Fax: (806) 762-8014tpridmore@mcjllp.commccauley@mcjllp.comjdriskill@mcjllp.com

Attorneys for Appellant William A. Brewer III

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned hereby certifies that theforegoing Brief of Appellant complies with the applicable word count limitationbecause it contains 10,698 words, excluding the parts exempted by Tex. R. App. P.9.4(i)(1). In making this certification, the undersigned has relied on the word-countfunction in Microsoft Word 2010, which was used to prepare this brief.

/s/ Timothy T. PridmoreTimothy T. Pridmore

47

CERTIFICATE OF SERVICE

The undersigned certifies that on June 22, 2016, a true and correct copy of theforegoing instrument was served on the following counsel of record listed in noticesfrom the Amarillo Court of Appeals, using the Court’s electronic case filing system:

Scott CarpenterRebecca Bell-StantonDouglas C. HeuvelCARPENTER & SCHUMACHER, P.C.2701 N. Dallas Pkwy., Suite 570Plano, TX 75093

Ben TaylorMarquette WolfTED B. LYON & ASSOCIATES, P.C.18601 LBJ Freeway, Suite 525Mesquite, TX 75150

Mark L. PackardPACKARD, HOOD, JOHNSON &BRADLEY, LLP

500 S. Taylor, Suite 900Lobby Box 223Amarillo, Texas 79101

Angela HahnDOYEN SEBESTA, LTD. LLP

450 Gears Road, Suite 350Houston, Texas 77067

Craig H. MyersTimothy GeorgeFEE, SMITH, SHARP & VITULLO, LLP

Three Galleria Tower13155 Noel Road, Suite 1000Dallas, Texas 75240

Bill HarrigerFIELD, MANNING, STONE, HAWTHORNE

& AYCOCK, P.C.2112 Indiana AvenueLubbock, Texas 79410

/s/ Timothy T. PridmoreTimothy T. Pridmore

Index of Appendix Materials

1. Order Granting Proposed Order on Sanctions Motions (Docket Reference Nos. 50-54), and Final Order of Dismissal (February 19, 2016) (9CR 10198-10200), attaching the Ruling on Sanctions Motion Letter (January 22, 2016) (9CR 10201-04) as an Exhibit

2. SSI Affidavit (2Supp.CR 4-40), attaching copy of survey

3. Excerpts from Texas Disciplinary Rules of Professional Conduct (Preamble ¶¶ 14-15, Rule 3.06, and Rule 3.07)

4. Primrose Operating Co. v. Jones, 102 S.W.3d 188 (Tex. App.—Amarillo 2003, pet. denied)

5. Foust v. Hefner, No. 07-13-00331-CV, 2014 WL 3928781 (Tex. App.—Amarillo Aug. 12, 2014, no pet.)

6. Excerpt from Judge David Hittner & Eric J.R. Nichols, Jury Selection in Federal Civil Litigation: General Procedures, New Rules, and the Arrival of Batson, 23 Tex. Tech L. Rev. 407 (1992)

Exhibit 1

Filed 2/19/2016 4:25:58 PM Barbara Sucsy

District Clerk Lubbock County, Texas

CAUSE NO. 2012-504105 SWS

KEN TEEL, individually and as representative of the ESTATE OF BRENNEN CHASE TEEL; BECKY TEEL; ROSS RUSHING and MEG RUSHING, individually and as next friend of L.R., a minor; STATE FARM LLOYDS INSURANCE COMPANY, as subrogee of Ross Rushing and Meg Rushing; and SAFECO INSURANCE COMPANY, as subrogee of Ross Rushing and Meg Rushing,

Plaintiffs,

v.

TITEFLEX CORPORATION, GASTITE DIVISION; TURNER & WITT PLUMBING, INC.; MORRISON SUPPLY COMPANY, LLC,

Defendants,

v.

THERMO DYNAMIC INSULATION, LLC; STRONG CUSTOM BUILDERS, LLC; and LENNOX HEARTH PRODUCTS, LLC,

Third-Party Defendants.

IN THE DISTRICT COURT

72nd JUDICIAL DISTRICT

LUBBOCK COUNTY, TEXAS

PROPOSED ORDER ON SANCTIONS MOTIONS (DOCKET REFERENCE NOS. 50 — 54),

AND FINAL ORDER OF DISMISSAL

In June 2014, Plaintiffs filed an Emergency Motion for Protection and Motion for

Sanctions (Trial Docket 50), which was then joined by Defendant Strong (Docket No. 51),

Defendant Thermo Dynamics (Docket 52), Defendant Lennox (Docket 53) and Defendant

Turner & Witt (Docket 54) (hereafter "the Motion"). Thereafter, over a period of days in June

-1- 10198

the Court heard testimony from fact and expert witnesses and received documentary evidence on

the matter of sanctions relating to William Brewer III. After consideration of the file in this

case, the totality of the circumstances involved, the motions, responses, argument and evidence

including but not limited to conflicting testimony and credibility of the witnesses, the Court is of

the opinion that the Motions are well taken and shall GRANT sanctions in connection with

William Brewer III. This Order first addresses sanctions and second the disposition of this case.

SANCTIONS

Based on the findings previously made by this Court on January 22, 2016 (attached as

Exhibit A) it is hereby ORDERED, ADJUGED AND DECREED that the parties named below

shall have and recover from William Brewer III attorney's fees and expenses as follows:

Defendant Lennox Hearth Products, LLC:

Attorney fees $29,500.00 plus expenses $3,500.00; If unsuccessfully appealed to Court ofAppeals: $5,000.00 plus $2,800.00 for oral argument plus $1,000.00 for expenses; If unsuccessfully appealed to Supreme Court: $5,000.00 plus $2,500.00 for oral argument plus $1,000.00 for expenses;

Defendant Turner & Witt Plumbing:

Attorney fees $11,032.00 plus expenses $1,919.76; If unsuccessfully appealed to Court of Appeals: $1,400.00 plus $1,120.00 for oral argument; If unsuccessfully appealed to Supreme Court: $2,800.00 plus $1,120.00 for oral argument plus $750.00 for expenses.

Defendant Strong Custom Builders, LLC: Attorney fees $8,170.00 plus expenses $554.83; If unsuccessfully appealed to Court of Appeals: $2,000.00 plus $1,000.00 for oral argument.

Defendant Thermo Dynamic Insulation, LLC: Attorney fees $16,038.00 plus expenses $3,738.68; If unsuccessfully appealed to Court of Appeals: $4,125.00 plus $2,475.00 for oral argument.

-2- 10199

Subrogee State Farm Lloyds Insurance Company: Attorney fees $27,312.00; If unsuccessfully appealed to Court of Appeals: $2,500.00 plus $2,500.00 for oral argument.

Plaintiffs Ken and Becky Teel and Ross and Meg Rushing: Attorney fees $31,650.00; If unsuccessfully appealed to Court of Appeals: $2,500.00 plus $2.000.00 for oral argument.

It is further ORDERED, ADJUDGED AND DECREED that all amounts awarded

above against William Brewer III shall earn post-judgment interest at five percent per annum

(compounding annually) from the date this Order was signed until fully paid.

It is further ORDERED, ADJUDGED AND DECREED that William Brewer III shall

successfully complete ten (10) additional hours of ethics CLE and e-file certificates

reflecting successful completion with the Lubbock County District Court Clerk of such no

later than December 31, 2016.

FINAL ADJUDICATION AS AMONG ORIGINAL PARTIES

The Parties by way of their Agreements announced to the Court have resolved all other

matters before this Court. Therefore, it is finally ORDERED, ADJUDGED AND DECREED

that: (a) all other relief not expressly granted herein is hereby denied; (b) this case is hereby

dismissed; (c) this Order finally disposes of all parties, issues and claims and is appealable; and

(d) all writs and processes may issue for collection of the amounts awarded against William

Brewer III.

SIGNED this 19th day of February, 2016.

RIIBEN REYE

10200 -3-

Filed 1/22/2016 2:40:09 PM Barbara Sucsy

District Clerk Lubbock County, Texas

RH R

RUBEN C. REYES District Judge

STATE OF TEXAS 72ND JUDICIAL DISTRICT OF TEXAS (Lubbock County Courthouse — Third Floor)

P.O. Box 10536 Lubbock, Texas 79408-3536 (806) 775-1023 Telephone

(806) 775-7996 Fax

REBECCA DUVAL Official Court Reporter

JUDY P. HALFORD Court Coordinator

January 22, 2016

Via e-file

Marquette Wolfe Ted B. Lyon & Associates, PC 18601 LBJ Freeway, Ste. 525 Mesquite, TX 75150

Via e-file

Timothy T. Pridmore R. Michael McCauley, Jr. McWhorter, Cobb & Johnson, LLP P.O. Box 2547 Lubbock, TX 79408-1499

Re: Cause No. 2012-504,105; Ken Teel, et al v_ Titeflex, et al; 72nd District Court of Lubbock County, Texas; Re: Ruling on Sanctions Motions

Dear Mr. Wolfe & Mr. Pridmore:

The Court makes the following ruling with regard to the Sanctions Motions referenced as numbers 50-54 on the Court's Motion List. The Court takes into consideration the motions, argument and briefing of counsel as well as the evidence presented — including but not limited to the conflicting testimony and credibility of the witnesses.

The Court grants the Motions for Sanctions only as they relate to William Brewer M. It should be noted that the manner in which Mr. Brewer has responded to the sanctions motions and allegations therein is concerning to this Court. Mr. Brewer's: demeanor was nonchalant and uncaring. Additionally, Mr. Brewer was repeatedly evasive in an ;veering questions when he was on the witness stand. This Court sustained multiple objections for non-responsiveness, instructed Mr. Brewer to answer the questions being asked of him by counsel, Ind before taking more aggressive steps, this Court took a recess during Mr. Brewer's examination seeking the assistance of Mr. Brewer's attorney. The Court asked Mr. Pridmore to step outside the courtroom and advise Mr. Brewer to follow the Court's instructions and be responsive to questions being asked of him. It was the desire and hope of this Court to highlight to Mr. Brewer that the matter at hand was of extreme importance with potentially grave consequences.

r EXHIBIT

10201

Page two Letter to Wolfe & Pridmore Letter dated January 22, 2016

The Court wishes to highlight in this letter some of the evidence which serves as the basis its ruling. Mr. Brewer admits instructing and guiding the pollster on the purpose and composition of the poll, i.e. the customer told the retailer what the customer desired. Additionally, evidence revealed the pollster contacted parties and attorney-represented, as well as unrepresented, witnesses involved with the pending litigation. Review of the database (Exhibit 4) further revealed family of this Judge as well as the Judge's staff being on the database call list. John Grace, assistant city attorney, testified his review of city employees/officials being contacted by the pollster led him to the conclusion the poll was "targeting" city employees/officials associated with the pending litigation.

Mr. Brewer testified he is the person who manages, directs and oversees all Bickel & Brewer operations including but not limited to all lawyers, non-lawyer employees and consultants. Mr. Brewer admits he, and members of his staff, reviewed and approved the poll questions. Testimony of Bickel & Brewer staff corroborated Mr. Brewer. After reviewing questions in the poll, the Court finds several questions were designed to influence or alter the opinion or attitude of the person being polled — some questions being tantamount to commitment opinions.

The Court finds Mr. Brewer's actions were not merely a negligent act, a mistake or the result of poor judgment, and Mr. Brewer's explanation that he bears clean hands because the poll was a blind study conducted by a third party vendor is insulting to this Court. The Court further finds Mr. Brewer's attempt to avoid responsibility and accountability for his conduct to be at the very least unpersuasive and at the worst in bad faith, unprofessional and unethical.

The Court finds Mr. Brewer's conduct disrespectful to the judicial system and threatening to the integrity of the judicial system. Mr. Brewer's conduct falls in the category of misconduct which is highly prejudicial and inimical to a fair trial by an impartial jury.

The Court is mindful of Mr. Pridmore's letter of June 4, 2015 which included "several standing orders . . . related to surveys." What is instructive of these standing orders from Chief Judge Ron Clark, Judge Rodney Gilstrap, Judge Leonard Davis and Judge Michael Schneider is that these orders actually serve as an excellent blueprint for the manner by which a proper survey/poll should be conducted. While Judge Gilstrap "discourages the parties from conducting studies in which any mock jurors or similar participants reside in the division where the case is pending" IF a study is to be conducted, specific procedures are to be followed by counsel — none of which were followed in the matter pending before this Court. Judge Clark mandates a minimum of one (1) month notice to the Court prior to pre-trial conference as to the commission of any study AND said notice "shall include a brief description of the study's methodology" — again such was not done in the case pending before this Court. Common to all four (4) standing orders is the requirement that the name and address of each participant in the study be retained by counsel and supplied to the Court — again not done herein. This Court is further mindful of the legal authority cited in the briefmg by all counsel, including but not limited to the Primrose case — noting first that Primrose involved a mock trial and not a poll and further that the safeguards taken by counsel in the Primrose case were not undertaken here.

10202

Page three Letter to Wolfe & Pridmore Letter dated January 22, 2016

In awarding the amounts below the court additionally finds:

1. Mr. Brewer's conduct taken in its entirety is an abusive litigation practice that harms the integrity of the justice system and the jury trial process;

2. Mr. Brewer's conduct was designed to improperly influence a jury pool and or venire panel via the dissemination of information without regard to it truthfulness or accuracy;

3. The net effect of Mr. Brewer's conduct was to impact the rights of parties to a trial by an impartial jury of their peers;

4. Mr. Brewer's conduct negatively affected the due process and seventh (7"') amendment protection due to the litigants in the case before the Court;

5. The conduct of Mr. Brewer includes the actions of those under his authority, direction as well as those acting as his agents;

6. The database of names from the pool included in part court personnel, their spouses, City Council and their spouses, City Managers, witnesses and their spouses, designated third parties and their spouses without regard to these individuals being represented by counsel or not;

7. The polling efforts were not random nor merely coincidental;

8. Mr. Brewer's failure to provide a list of parties and witnesses whom should not be contacted was grossly negligent and his attempt to avoid responsibility by deferring such responsibility to a third party vendor hired by his firm is conduct unbecoming an officer ofthe court;

9. The polling questions were not an appropriate and legitimate pre-trial preparation tool;

10. The conduct of Br. Brewer was intentional and in bad faith and abusive of the legal system and the judicial process specifically.

Accordingly, the Court finds the following sanctions to be just and not unconstitutionally excessive and no more severe than necessary to accomplish a legitimate end — namely, deterrence, punishment and compliance.

Attorney's fees are awarded as follows:

Defendant Lennox -- Attorney fees $29,500.00 plus expenses $3,500.00; If appealed to Court of Appeals: $5,000.00 plus $2,800.00 for oral argument plus $1,000.00

for expenses; If appealed to Supreme Court: $5,000.00 plus $2,500.00 for oral argument plus $1,000.00

for expenses.

10203

Sind]

uben G. Reye Presiding Judge 72"d District Court Lubbock/Crosby Co.

Page four Letter to Wolfe & Pridmore Letter dated January 22, 2016

Defendant Turner & Witt -- Attorney fees $11,032.00 plus expenses $1,919.76; If appealed to Court of Appeals: $1,400.00 plus $1,120.00 for oral argument; If appealed to Supreme Court: $2,800.00 plus $1,120.00 for oral argument plus $750.00 for

expenses.

Defendant Strong Custom Builders -- Attorney fees $8,170.00 plus expenses $554.83; If appealed to Court of Appeals: $2,000.00 plus $1,000.00 for oral argument.

Defendant Thermo Dynamic -- Attorney fees $16,038.00 plus expenses $3,738.68; If appealed to Court of Appeals: $4,125.00 plus $2,475.00 for oral argument.

Subrogee State Farm -- Attorney fees $27,312.00; If appealed to Court of Appeals: $2,500.00 plus $2,500.00 for oral argument.

Plaintiffs Teel and Rushing -- Attorney fees $31,650.00; If appealed to Court of Appeals: $2,500.00 plus $2,000.00 for oral argument.

The Court further orders Mr. Brewer to successfully complete ten (10) additional hours of ethics CLE and file certificates reflecting successful completion of such no later than December 31, 2016.

As there seemed to be some question in the briefing about the burden of proof standard, the Court bases its ruling on a preponderance of the evidence standard but would also say the ruling is equally supported by an elevated clear and convincing standard.

This ruling is limited to the specifics of the sanction motions presented to the Court — meaning that the Court is not commenting on the broader issue of lawyers utilizing polling, focus groups or mock trials; but rather this ruling speaks only to the poll used my Mr. Brewer and the manner of its implementation and utilization in the case before the Court.

Copy of this letter is being mailed to the State Bar of Texas Chief Disciplinary Counsel's Office for any action that office may wish to consider, if any, regarding Mr. Brewer.

RGR/jh

Cc: Attorneys for Teel, et al v. Titeflex, et al — via e-file

10204

Exhibit 2

Jack P. Driskill Timothy T. Pridmore R. Michael McCauley, Jr. Gwynn P. Martin James L. Stevens Kimberly R. Brown Todd J. Johnston Sarah Hegi Simpson

MCJ

Filed 9/26/2014 3:01:39 PM Barbara Sucsy

District Clerk Lubbock County, Texas

Of Counsel D. Thomas Johnson Dale H. Johnson Owen W. McWhorter, Jr. RH R

McWHORTER COBB and JOHNSON LLP Owen W. McWhorter (1897-1986) Charles L. Cobb (1913-2000) J.R. Blumrosen (1925-1996) D. Murray Hensley (1957-2011)

ATTORNEYS AND COUNSELORS • ESTABLISHED 1929

September 26, 2014

Via E-filing Honorable Ruben Reyes 72nd District Court P.O. Box 10536 Lubbock, Texas 79408-0536

Re: No. 2012-504,105; Ken Teel, et al. v. Titeflex et al. v. Thermo Dynamics, et aL; in the 72nd District Court, Lubbock County, Texas

Judge Reyes:

We file herewith the Affidavit of Survey Sampling International, LLC's ("SSI") employee, Jacob Flake, with the exhibits set forth therein. On September 24, 2014, the undersigned filed Willaim A. Brewer III and Bickel & Brewer's Consolidated Response to Motions for Sanctions. Attached thereto was the Affidavit of SSI employee Jacob Flake, which we had just received at the time of filing our Response. We have received the original affidavit of SSI employee Jacob Flake on this day, and attach true and exact copies of the exhibits to his affidavit, which we did not have at the time of filing our Response.

Respectfully,

McWHORTER, COBB & JOHNSON, L.L.P.

By: Timothy T. Pridmore

TTP/j s Attachment

1722 Broadway, Lubbock, Texas 79401. P.O. Box 2547, Lubbock, Texas 79408 Phone: 806.762.0214 t= Facsimile: 806.762.8014 E-mail: tpridmoreAmcillp.com

00155016.WPD - ver www.mcjllp.com

„....i.„

......->

imothy T. Pridmore

Honorable Ruben Reyes September 26, 2014 Page 2

CERTIFICATE OF SERVICE

The undersigned certifies that on September 26, 2014, a true and correct copy of the foregoing instrument was served on all counsel of record using the Court's Electronic Case File system in the above cause in accordance with Rule 21a, TEX. R. CIV. P.

00155016.WPD - ver5

9/26/2014 3:01:39 PM

Elumir and Mk

LA NM ORS*, Taw

CAUSE NO. 2012-504105 RHR

KEN TEEL, individually and as representative § IN THE DISTRICT COURT of the ESTATE OF BRENNEN CHASE TEEL; § BECKY TEEL; ROSS RUSHING and MEG § RUSHING, individually and as next friend of § L.R., a minor; STATE FARM LLOYDS INSURANCE COMPANY, as subrogee of § Ross Rushing and Meg Rushing; and SAFECO § INSURANCE COMPANY, as subrogee of § Ross Rushing and Meg Rushing,

Plaintiffs,

v. § 72nd JUDICIAL DISTRICT

TITEFLEX CORPORATION, GASTITE DIVISION; TURNER & WITT PLUMBING, § INC.; MORRISON SUPPLY COMPANY, § LLC,

Defendants,

v.

THERMO DYNAMIC INSULATION, LLC; § STRONG CUSTOM BUILDERS, LLC; and § LENNOX HEARTH PRODUCTS, LLC

Third-Party Defendants § LUBBOCK COUNTY, TEXAS

AFFIDAVIT OF JACOB FLAKE

STATE OF UTAH

COUNTY OF UTAH

BEFORE ME, the undersigned authority, on this day personally appeared Jacob Flake,

who being duly sworn on oath deposed and said:

1. My name is Jacob Flake. I am over twenty-one (21) years of age, of sound mind,

and fully competent to make this Affidavit. I have personal knowledge of the facts and

statements contained in this Affidavit and each of them is true and correct.

2. I am an employee of Survey Sampling International. LLC ("SSI"), which

AFFIDAVIT OF JACOB FLAKE - Page 1

6

provides professional services including sampling, data collection, and data analytic solutions for

consumer and business-to-business survey research, operating from 25 offices in 18 countries.

SSI clients include government agencies, universities, market research firms, and business

brands.

3. I have been employed by SSI for approximately 1.5 years and currently work in

SSI' s Orem, Utah office.

4. In May 2014, Public Opinion Strategies retained SSI to conduct Computer

Assisted Telephone Interviews ("CATI") using a questionnaire provided by Public Opinion

Strategies to conduct a blind, random survey of Lubbock County residents that would gauge

public perception and reaction about corrugated stainless steel tubing ("CSST") and related

matters (the "Survey"). A true and correct copy of the Survey is attached as Exhibit 1.

5. Among the professionals at SSI who worked on the Survey, I was primarily

responsible for overseeing the launch of the telephone interviewing project. My responsibilities

on the Survey included ensuring that the programming of the survey questions was correct, that

the sample used was loaded correctly into our system to be dialed, monitoring the progress of the

survey by communicating with phone center supervisors, and that the data was properly collected

and sent back to Public Opinion Strategies after the completion of the project.

6. Public Opinion Strategies retained SSI to obtain 300 completed responses to the

Survey from the list of approximately 20,000 names and phone numbers generated by 1360, a

vendor hired by Public Opinion Strategies.

7. The list of names and phone numbers was randomly compiled from Lubbock

County residents over the age of 18. It is my understanding that minimum age and Lubbock

residency were the only two restrictions placed on who was selected.

AFFIDAVIT OF JACOB FLAKE - Page 2

7

8. As is customary in performing similar CATI surveys, SSI had no role in selecting

the names. I had no contact with anyone at the Bickel & Brewer law firm at all.

9. At no time did anyone at Public Opinion Strategies, 1360, Bickel & Brewer, or

anyone else suggest that SSI contact any specific individual or phone number among the

approximately 20,000 names and phone numbers that we received, or place more than one call to

any person.

10. The list of names and phone numbers used for the Survey was not shared with

anyone at Bickel & Brewer prior to placing the calls, nor did anyone at Bickel & Brewer ask for

certain names to be included in or deleted from the list of people who were contacted to

complete the Survey.

11. The SSI interviewers were in SS1 call centers, none of which were in Lubbock.

The Survey was conducted between May 21, 2014 and May 22, 2014. The Survey was

programmed to aske the questions on the Survey attached as Exhibit 1.

12. Attached as Exhibit 2 is a true and correct copy of the Survey summary results for

each of the 42 questions.

13. I never had any contact with anyone at Bickel & Brewer regarding the Survey.

To the best of my knowledge, no one else at SSI had contact with anyone at Bickel & Brewer

regarding the Survey until after receiving a subpoena dated June 12, 2014, that was issued in

connection with the above-listed lawsuit. I did not know the names of any parties to the above-

listed lawsuit until after SSI received the June 14, 2014 subpoena.

14. In its ordinary course of business, SSI employs a computer assisted telephone

interviewing ("CATI") platform, which is a telephone surveying technique in which the

interviewer administers a survey using a computer guided script. The interviewer sits in front of

AFFIDAVIT OF JACOB FLAKE - Page 3

8

a computer screen. Upon command, a computer database randomly selects each landline number

that is called from the approximately 20,000 names and numbers furnished to SSI for this

Survey.

15. For any wireless numbers included in the sample, a separate telephone dialing

platform is used whereby telephone agents manually dial potential respondents without use of an

automated telephone dialing system as defined under the Telephone Consumer Protection Act.

16. In the ordinary course of an SSI project, when contact is made, the interviewer

reads the survey questions posed on the computer screen and records the respondent's answers

directly into the computer. SSI's interviewers are trained to be respectful and polite at all times.

They are trained to provide accurate and complete data collection, not to persuade the respondent

to answer any question in any way.

17. SSI did not prepare or draft the questions posed in the Survey. The Survey

included 42 questions about a variety of issues.

18. In the ordinary course of a project, after a telephone call is terminated, the

interviewer selects a result (for example, No Answer, Busy, Terminated, or Complete) known as

a disposition code. In certain projects, the interviewer may make an appointment to call someone

back at a specific date and time if needed or requested. In the industry of public polling and

surveys, it is common for many people who receive a call to hang up immediately upon learning

that the call is from a polling company.

19. There was nothing unusual or improper in the handling of the Survey. It was

finalized and summarized as requested. I saw nothing improper or unethical in how this Survey

was conducted.

AFFIDAVIT OF JACOB FLAKE - Page 4

FURTHER, AFFIANT SAYETH NAUGHT.

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SUBSCRIBED AND SWORN TO before me, the undersigned Notary Public, on this 214TI* day of , 2014, to c ify which witness my hand and official seal.

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My Commission Expires:

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AFFIDAVIT OF JACOB FLAKE - Page 5

10

LUBBOCK, TEXAS Qux

Field Dates: May 21-22, 2014 N=300 Homeowners N=75 Cell

Project #: 14381 Margin of Error = +5.66%

Hello, I'm of Research, a national research firm. We're talking with people in your area and would like to ask you a few questions on a confidential basis. We are not attempting to sell anything, nor will your participation result in any calls in the future to sell you anything. (DO NOT PAUSE)

(ASK CP1-CP4 QUESTIONS TO CELL SAMPLE ONLY) CP1. For your safety, are you currently driving?

1 YES (SCHEDULE A CALL BACK) 2 NO 3 NOT SURE/REFUSED (DO NOT READ) (THANK AND TERMINATE)

CP2. In which state do you currently live? (If not TEXAS THANK AND TERMINATE)

CP3. And, in which county do you currently live? (RECORD EXACT ANSWER. USE 9999 FOR DON'T KNOW, TERMINATE IF A COUNTY NOT ON THE FRAME)

CP4. Of all the personal telephone calls that you receive, do you get... (READ, ROTATE PUNCHES 1 AND 3 - KEEP 2 ALWAYS IN THE MIDDLE) ?

1 All or almost all calls on a cell phone (CONTINUE) 2 Some on a cell phone and some on a regular home phone (THANK AND

TERMINATE) 3 All or almost all calls on a regular home phone (THANK AND TERMINATE) 4 NOT SURE/REFUSED (DO NOT READ) (THANK AND TERMINATE)

Exhibit 1

11

Lubbock, Texas page 2 of 14 004

First, just a few questions about you to make sure we have a representative sample...

QA. And, do you own or rent your home?

(IF OWN, ASK:) And, do you want to move sometime in the next few years?

1 OWN-WILL NOT MOVE IN NEXT FEW YEARS 2 OWN-WILL MOVE IN NEXT FEW YEARS 3 RENT (THANK AND TERMINATE)

5 DON'T KNOW (DO NOT READ)(THANK AND TERMINATE) 6 REFUSED (DO NOT READ)(THANK AND TERMINATE)

Q8. And, just to be sure we have a representative sample...

In what year were you born?

(9999 = REFUSED)

1. Would you say that things in Lubbock are going in the right direction, or have they pretty seriously gotten off on the wrong track?

1 RIGHT DIRECTION 2 WRONG TRACK

3 NO OPINION (DO NOT READ) 4 REFUSED (DO NOT READ)

12

Lubbock, Texas page 3 of 14 Qux

Thinking about a different topic...

How likely is it that any of the following weather related events would damage homes in your area? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF LIKELY LIKELY LIKELY LIKELY (DNR) (DNR) 1 2 3 4 5 6

2. Tornado

3. Flood

4. Lightning

5. Thinking now just about lightning, if lightning were to actually strike your home, would the damage to that home be (ROTATE TOP TO BOTTOM, BOTTOM TO TOP)...

I VERY SIGNIFICANT 2 SOMEWHAT SIGNIFICANT 3 NOT VERY SIGNIFICANT 4 NOT AT ALL SIGNIFICANT

5 DON'T KNOW (DO NOT READ) 6 REFUSED (DO NOT READ)

6. Thinking some more about your house, who would you say is MOST responsible for ensuring that your home is safely constructed. Is it...(RANDOMIZE)

1 THE HOME BUILDER 2 MANUFACTURERS OF THE BUILDING MATERIALS IN THE HOME 3 HOME INSPECTORS

4 OTHER (SPECIFY

5 DON'T KNOW (DO NOT READ) 6 REFUSED (DO NOT READ)

13

Lubbock, Texas page 4 of 14 Qux

7. Thinking now about your home, do you use natural gas in your home?

1 YES, USE NATURAL GAS 2 NO, DO NOT USE NATURAL GAS

3 DON'T KNOW (DO NOT READ) 4 REFUSED (DO NOT READ)

(IF Q7:1, ASK) S. And, is the natural gas in your home transported by Corrugated Stainless Steel Tubing, also

known as CSST, or is it transported by black iron pipe?

1 CSST 2 Black iron pipe

3 Other (SPECIFY) ( ) 4 Neither (DO NOT READ)

5 Don't Know/Not Sure (DO NOT READ) 6 Refused (DO NOT READ)

Changing topics slightly...

9. As you may know, a lightning strike can damage materials in your home, including the CSST used to transport natural gas. In some instances where the CSST is not installed in accordance with the manufacturer's instructions, damage to CSST following a lighting strike can result in the escape of natural gas, which can cause a house fire. If this happened at your home, who would you say is MOST to blame? (RANDOMIZE)

1 The manufacturer who makes and sells the natural gas piping 2 The installer, who might have installed the material improperly 3 The homebuilder, who hires the installers of the natural gas piping 4 No one, because a lightning strike is a natural disaster

5 DON'T KNOW (DO NOT READ) 6 REFUSED (DO NOT READ)

14

Lubbock, Texas page 5 of 14 Qux

10. And, have you seen, read, or heard anything about the potential dangers of CSST?

1 YES 2 NO

3 DON'T KNOW (DO NOT READ) 4 REFUSED (DO NOT READ)

(If Q10:1, ASK) 11. And, what was the source of this information? (DO NOT READ) (ACCEPT MULTIPLE

RESPONSES)

1 TV 2 RADIO 3 MAIL 4 NEWSPAPER 5 FRIENDS/NEIGHBORS/FAMILY 6 INTERNET/E-MAIL

10 OTHER (Specify: 11 DON'T KNOW (DO NOT READ) 12 REFUSED (DO NOT READ)

15

Lubbock Texas page 6 of 14 Qux

12. And, have you seen, read, or heard anything recently about lightning striking a home in Lubbock in August 2012, resulting in a house fire that killed a man who was visiting the home at the time?

YES NO

DON'T KNOW (DO NOT READ) REFUSED (DO NOT READ)

(If Q12:1, ASK) 13. And, what was the source of this information? (DO NOT READ) (ACCEPT MULTIPLE

RESPONSES)

1 TV 2 RADIO 3 MAIL 4 NEWSPAPER 5 FRIENDS/NEIGHBORS/FAMILY 6 INTERNET/E-MAIL

10 OTHER (Specify: 11 DON'T KNOW (DO NOT READ) 12 REFUSED (DO NOT READ)

16

Lubbock, Texas page 7 of 14 Qux

14. As you may know, in August of 2012, lightning struck a home in Lubbock during a thunderstorm. The lightning caused a fire that killed a man who was visiting the home at the time. Fire officials ruled that the fire was caused by a type of natural gas piping called Corrugated Stainless Steel Tubing, or CSST. I would Iike to read you two statements about who should be responsible for the fire. After I read each one, please tell me which comes closest to your own opinion.

1 (SOME/OTHER) People say that the homebuilder who built the house should be responsible for the incident. They say that if the CSST had been properly installed, it would not have been damaged during the lightning strike, and thus, no fire would have occurred. They say the homebuilder or installer did not make sure that there was a reasonable amount of space between the piping and other electrical wires, as is called for in the manufacturer's installation guidelines. They say that even if the CSST suffered damage which allowed gas to escape, it is unfair for the manufacturer of a product to be held responsible for the improper installation of that product.

...while...

2 (OTHERJSOME) People say that the manufacturer of the CSST should be responsible for what happened and should not be selling CSST if there is any chance it might fail in a lightning strike. They say the company should not be selling that product, particularly if it knows there is a likelihood it might fail if not properly installed. The ultimate responsibility for product safety rests with a manufacturer.

3 DON'T KNOW (DO NOT READ) 4 REFUSED (DO NOT READ)

17

Lubbock Texas page 8 of 14 Qux

15. As a result of the fire, the homeowners have filed a lawsuit. I am going to read you four options of who the homeowners should sue. After I read each one, please tell me which comes closest to your own opinion, (RANDOMIZE)

1 The homeowners should sue the homebuilder but NOT the manufacturer of the CSST. 2 The homeowners should sue the manufacturer of the CSST but NOT the homebuilder. 3 The homeowners should sue BOTH the homeowner AND the manufacturer of the CSST. 4 The homeowners should not be suing anyone.

5 DON'T KNOW (DO NOT READ) 6 REFUSED (DO NOT READ)

(IF Q15:1-4, ASK) 16. And what are some of the reasons you think that (INSERT Q15 CHOICE)? (PROBE:) What

else can you tell me about that? Anything else?

RECORD RESPONSE VERBATIM

18

Lubbock, Texas page 9 of 14 Qux

(ROTATE Q17-25 AND Q26-33) Now I am going to read you several statements about why the manufacturer of the corrugated stainless steel tubing, also known as CSST SHOULD NOT be held responsible. After I read each one, please tell me how convincing that statement is to you. Is it... very convincing, somewhat convincing, not very convincing, or not at all convincing? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR) 1 2 3 4 5 6

17. CSST is approved by the American Gas Association and has been on the market since 1990. CSST is installed in millions of homes across the nation and more than 600,000 homes in Texas, but this is the first time this manufacturer has ever been sued in a wrongful death case.

18. There are clear warnings on the packaging of CSST that, in order to be safe in a lightning storm, the piping must be installed according to the manufacturer's Design & Installation Guide. It is not the fault of the manufacturer that these warnings were not followed in this instance.

19. The manufacturer of CSST partners with the National Association of State Fire Marshals on an awareness campaign about this type of piping that helps make sure people know if they have the product in their home and to see if it was properly installed.

20. The homebuilder did a sloppy job of supervising the contractor he hired to install the electrical wiring and the electrician did not allow for a reasonable amount of space between the electrical wiring and the CSST. The manufacturer cannot be held responsible for this type of sloppy and careless oversight.

21. CSST was developed as a safer alternative to black iron pipe. It has fewer joints, which means there are less places where it can potentially leak. It is also flexible and able to withstand earthquakes or foundation shifts.

22. Many states recognize that CSST is very safe. For example, after a thorough scientific investigation, the state of Massachusetts lifted a ban on CSST.

23. The Texas State Fire Marshall has said he has no doubt that CSST is safer when it is properly installed.

24. No court has EVER ruled that CSST has been responsible for a fire when it is properly installed.

25. There were many other things that contributed to this tragic incident. The foam insulation in the attic was not properly treated, the people who were present did not heed the warnings of the smoke alarm, and electrical wiring was laying right on top of the CSST, which is in violation of the safety warnings and installation guidelines.

19

Lubbock Texas page 10 of 14 Qux

Now I am going to read you several statements about why the manufacturer of the corrugated stainless steel tubing, also known as CSST SHOULD be held responsible for causing the fire. After I read each one, please tell me how convincing that statement is to you. Is it... very convincing, somewhat convincing, not very convincing, or not at all convincing? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR) 1 2 3 4 5 6

26. The manufacturer of CSST has settled hundreds of lawsuits with insurance companies involving the product and lightning fires.

27. Since the 2012 fire and death, the Lubbock Fire Marshal has banned the use of CSST in new home construction.

28. The manufacturer of CSST makes another gas piping product that it promotes as "lightning resistant." Since it makes a product that may be safer, the manufacturer should not be selling the older, less safe version of the product.

29. Texas and more than a dozen other states are identified by the manufacturers as being lighting-prone. Clearly, the manufacturer should not sell CSST in those states.

30. If the manufacturer is aware that some installers are not installing CSST properly and CSST has the potential to fail in lighting storms, it should not sell the product in the first place.

31. The manufacturer has a responsibility to ensure CSST is being installed safely. It is not enough to simply entrust that responsibility to the home builder or installer.

32. The manufacturer of CSST has set aside more than one hundred million dollars to fund litigation and settle lawsuits stemming from this product.

33. One of this manufacturer's main competitors quit selling CSST in the United States because the product is unsafe and prone to failure.

20

Lubbock, Texas page 11 of 14 Qux

Now that you have heard some more about this issue...

34. I am going to again read you four options of who the homeowners should sue. After I read each one, please tell me which comes closest to your own opinion. (RANDOMIZE)

1 The homeowners should sue the homebuilder but NOT the manufacturer of the CSST. 2 The homeowners should sue the manufacturer of the CSST but NOT the homebuilder. 3 The homeowners should sue BOTH the homeowner AND the manufacturer of the CSST. 4 The homeowners should not be suing anyone.

5 DON'T KNOW (DO NOT READ) 6 REFUSED (DO NOT READ

35. And, when lightning hits a house and damages the natural gas piping, causing it to leak gas and resulting in a fire...who would you say is most at fault (ROTATE)

1 The manufacturer who makes and sells the CSST 2 The homebuilder who oversees the installation of the CSST

3 Neither, because a lightning strike is a natural disaster

3 DON'T KNOW (DO NOT READ) 4 REFUSED (DO NOT READ)

Now I just have a few more questions for statistical purposes only...

36. And what is the last grade you completed in school? (DO NOT READ)

SOME GRADE SCHOOL (GRADES 1-8) 2 SOME HIGH SCHOOL (GRADES 9-11) 3 GRADUATED HIGH SCHOOL (GRADE 12) 4 TECHNICAL/VOCATIONAL SCHOOL 5 SOME COLLEGE 6 GRADUATED COLLEGE 7 GRADUATE/PROFESSIONAL SCHOOL

8 REFUSED

21

Lubbock, Texas . page 12 of 14 Qux

37. And in politics today, do you consider yourself... (ROTATE)

a Republican, a Democrat, or something else?

...or are you not registered to vote?

(IF REPUBLICAN OR DEMOCRAT, ASK:) Would you call yourself a STRONG (REPUBLICAN/DEMOCRAT) or a NOT-SO-STRONG (REPUBLICAN/ DEMOCRAT)?

(IF SOMETHING ELSE, ASK:) Do you think of yourself as closer to the Republican or to the Democratic party?

1 STRONG REPUBLICAN 2 NOT-SO-STRONG REPUBLICAN

3 LEAN TO REPUBLICANS 4 SOMETHING ELSE/INDEPENDENT 5 LEAN TO DEMOCRATS

6 NOT-SO-STRONG DEMOCRAT 7 STRONG DEMOCRAT 8 NOT REGISTERED TO VOTE

9 DON'T KNOW (DO NOT READ) 10 REFUSED (DO NOT READ)

22

Lubbock, Texas page 13 of 14 Qux 38. And for statistical purposes only...is your total annual household income greater or less than

$60,000 dollars?

1 UNDER $20,000 2 BETWEEN $20,000 - $40,000 3 OVER $40,000

4 UNDER $80,000 5 BETWEEN $80,000 - $100,000 6 OVER $100,000

7 REFUSED

39. And, how long have you lived in Lubbock? (DO NOT READ CHOICES)

1 LESS THAN TWO YEARS 2 TWO TO FIVE YEARS 3 FIVE TO TEN YEARS 4 TEN TO TWENTY YEARS 5 MORE THAN TWENTY YEARS 6 NATIVE

7 DON'T KNOW (DO NOT READ) 8 REFUSED (DO NOT READ)

40. And, how long have you been a homeowner? (IF MORE OWNED MORE THAN ONE HOUSE, ASK FOR TOTAL LENGTH OF HOMEOWNERSHIP) (DO NOT READ CHOICES)

1 LESS THAN TWO YEARS 2 TWO TO FIVE YEARS 3 FIVE TO TEN YEARS 4 TEN TO TWENTY YEARS 5 MORE THAN TWENTY YEARS

6 DON'T KNOW (DO NOT READ) 7 REFUSED (DO NOT READ)

23

Lubbock, Texas Qux

page 14 of 14

41. What is your main racial or ethnic origin? Is it ... (READ CHOICES — ACCEPT ONLY ONE RESPONSE)

WHITE 2 BLACK OR AFRICAN AMERICAN 3 ASIAN

4 HISPANIC

5 SOMETHING ELSE (Specify: ) (DO NOT READ) 6 REFUSED (DO NOT READ)

42. Gender (BY OBSERVATION)

1 MALE 2 FEMALE

24

LUBBOCK, TEXAS Interview Schedule

Field Dates: May 21-22, 2014 N=300 Homeowners Project #: 14381 Margin of Error = +5.66%

Hello, I'm of Research, a national research firm. We're talking with people in your area and would like to ask you a few questions on a confidential basis. We are not attempting to sell anything, nor will your participation result in any calls in the future to sell you anything. (DO NOT PAUSE)

(ASK CP1-CP4 QUESTIONS TO CELL SAMPLE ONLY) CP1. For your safety, are you currently driving?

100% NO

CP2. In which state do you currently live? (If not TEXAS THANK AND TERMINATE)

100% TEXAS

CP4. Of all the personal telephone calls that you receive, do you get... (READ, ROTATE PUNCHES 1 AND 3 - KEEP 2 ALWAYS IN THE MIDDLE) 7

100% All or almost all calls on a cell phone (CONTINUE)

First, just a few questions about you to make sure we have a representative sample...

A. And, do you own or rent your home?

(IF OWN, ASK:) And, do you want to move sometime in the next few years?

82% OWN-WILL NOT MOVE IN NEXT FEW YEARS 18% OWN-WILL MOVE IN NEXT FEW YEARS

Exhibit 2

25

Lubbock Survey Page 2 of 16

)3. And, just to be sure we have a representative sample...

In what year were you born?

8% 18 - 24 15% 25 - 34 16% 35 - 44 15% 45 - 54 17% 55 - 64 29% 65 AND ABOVE

REFUSED

1. Would you say that things in Lubbock are going in the right direction, or have they pretty seriously gotten off on the wrong track?

64% RIGHT DIRECTION 22% WRONG TRACK

10% NO OPINION (DO NOT READ) 3% REFUSED (DO NOT READ)

Thinking about a different topic...

How likely is it that any of the following weather related events would damage homes in your area? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF LIKELY LIKELY LIKELY LIKELY (DNR) (DNR)

2. Tornado 35% 47% 15% 2% 1%

82% 17%

3. Flood 5% 9% 40% 45% 1% —

14% 85%

4. Lightning 19% - 46% 27% 6% 2% —

65% 34%A

26

Lubbock Survey Page 3 of 16

5. Thinking now just about lightning, if lightning were to actually strike your home, would the damage to that home be (ROTATE TOP TO BOTTOM, BOTTOM TO TOP)...

33% VERY SIGNIFICANT 32% SOMEWHAT SIGNIFICANT 14% NOT VERY SIGNIFICANT 6% NOT AT ALL SIGNIFICANT

14% DON'T KNOW (DO NOT READ) 1% REFUSED (DO NOT READ)

65% TOTAL SIGNIFICANT 20% TOTAL NOT SIGNIFICANT

6. Thinking some more about your house, who would you say is MOST responsible for ensuring that your home is safely constructed. Is it...(RANDOMIZE)

59% THE HOME BUILDER 7% MANUFACTURERS OF THE BUILDING MATERIALS IN THE HOME

17% HOME INSPECTORS 7% HOMEOWNER

2% OTHER (SPECIFY 2% ALL OF THE ABOVE

5% DON'T KNOW (DO NOT READ) REFUSED (DO NOT READ)

27

Lubbock Survey Page 4 of 16

7. Thinking now about your home, do you use natural gas in your home?

80% YES, USE NATURAL GAS 20% NO, DO NOT USE NATURAL GAS

- DON'T KNOW (DO NOT READ) - REFUSED (DO NOT READ)

(IF Q7:1, ASK) (N-239) (RESULTS SHOWN OFF OF TOTAL BASE) 8. And, is the natural gas in your home transported by Corrugated Stainless Steel Tubing, also

known as CSST, or is it transported by black iron pipe?

16% CSST 22% Black iron pipe

3% Other (SPECIFY) ( ) 1% Neither (DO NOT READ)

38% Don't Know/Not Sure (DO NOT READ) - Refused (DO NOT READ)

Changing topics slightly...

9. As you may know, a lightning strike can damage materials in your home, including the CSST used to transport natural gas. In some instances where the CSST is not installed in accordance with the manufacturer's instructions, damage to CSST following a lighting strike can result in the escape of natural gas, which can cause a house fire. If this happened at your home, who would you say is MOST to blame? (RANDOMIZE)

10% The manufacturer who makes and sells the natural gas piping 17% The installer, who might have installed the material improperly 17% The homebuilder, who hires the installers of the natural gas piping 48% No one, because a lightning strike is a natural disaster

7% DON'T KNOW (DO NOT READ) 1% REFUSED (DO NOT READ)

34% TOTAL INSTALLER/HOMEBUILDER

28

Lubbock Survey Page 5 of 16

10. And, have you seen, read, or heard anything about the potential dangers of CSST?

15% YES 83% NO

2% DON'T KNOW (DO NOT READ) REFUSED (DO NOT READ)

(If Q10:1, ASK) (N=44) (RESULTS SHOWN OFF OF TOTAL BASE) 11. And, what was the source of this information? (DO NOT READ) (ACCEPT MULTIPLE

RESPONSES)

7% TV 4% RADIO 1% MAIL 3% NEWSPAPER 4% FRIENDS/NEIGHBORS/FAMILY 1% INTERNET/E-MAIL

* OTHER (Specify: ) * DON'T KNOW (DO NOT READ)

— REFUSED (DO NOT READ)

29

Lubbock Survey Page 6 of 16

12. And, have you seen, read, or heard anything recently about lightning striking a home in Lubbock in August 2012, resulting in a house fire that killed a man who was visiting the home at the time?

32% YES 62% NO

6% DON'T KNOW (DO NOT READ) - REFUSED (DO NOT READ)

(If Q12:1, ASK) (N=95) (RESULTS SHOWN OFF OF TOTAL BASE) 13. And, what was the source of this information? (DO NOT READ) (ACCEPT MULTIPLE

RESPONSES)

22% TV 3% RADIO

MAIL 8% NEWSPAPER 5% FRIENDS/NEIGHBORS/FAMILY • INTERNET/E-MAIL

OTHER (Specify: • DON'T KNOW (DO NOT READ) - REFUSED (DO NOT READ)

30

Lubbock Survey Page 7 of I6

14. As you may know, in August of 2012, lightning struck a home in Lubbock during a thunderstorm. The lightning caused a fire that killed a man who was visiting the home at the time. Fire officials ruled that the fire was caused by a type of natural gas piping called Corrugated Stainless Steel Tubing, or CSST. I would like to read you two statements about who should be responsible for the fire. After I read each one, please tell me which comes closest to your own opinion.

43% (SOME/OTHER) People say that the homebuilder who built the house should be responsible for the incident. They say that if the CSST had been properly installed, it would not have been damaged during the lightning strike, and thus, no fire would have occurred. They say the homebuilder or installer did not make sure that there was a reasonable amount of space between the piping and other electrical wires, as is called for in the manufacturer's installation guidelines. They say that even if the CSST suffered damage which allowed gas to escape, it is unfair for the manufacturer of a product to be held responsible for the improper installation of that product.

...while...

44% (OTHER/SOME) People say that the manufacturer of the CSST should be responsible for what happened and should not be selling CSST if there is any chance it might fail in a lightning strike. They say the company should not be selling that product, particularly if it knows there is a likelihood it might fail if not properly installed. The ultimate responsibility for product safety rests with a manufacturer.

10% DON'T KNOW (DO NOT READ) 3% REFUSED (DO NOT READ)

31

Lubbock Survey Page 8 of 16

15. As a result of the fire, the homeowners have filed a lawsuit. I am going to read you four options of who the homeowners should sue. After I read each one, please tell me which comes closest to your own opinion. (RANDOMIZE)

19% The homeowners should sue the homebuilder but NOT the manufacturer of the CSST. 12% The homeowners should sue the manufacturer of the CSST but NOT the homebuilder. 38% The homeowners should sue BOTH the homebuilder AND the manufacturer of the

CS ST. 24% The homeowners should not be suing anyone.

5% DON'T KNOW (DO NOT READ) 2% REFUSED (DO NOT READ)

(IF Q15:1-4, ASK) 16. And what are some of the reasons you think that (INSERT Q15 CHOICE)? (PROBE:) What

else can you tell me about that? Anything else?

SEE VERBATIM LISTOUTS

32

Lubbock Survey Page 9 of 16

(ROTATE Q17-25 AND Q26-33) Now I am going to read you several statements about why the manufacturer of the corrugated stainless steel tubing, also known as CSST SHOULD NOT be held responsible. After I read each one, please tell me how convincing that statement is to you. Is it... very convincing, somewhat convincing, not very convincing, or not at all convincing? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR)

17. CSST is approved by the American Gas Association and has been on the market since 1990. CSST is installed in millions of homes across the nation and more than 600,000 homes in Texas, but this is the first time this manufacturer has ever been sued in a wrongful death case. 36% 32% 17% 11% 2% 2%

67%^ 28%

18. There are clear warnings on the packaging of CSST that, in order to be safe in a lightning storm, the piping must be installed according to the manufacturer's Design & Installation Guide. It is not the fault of the manufacturer that these warnings were not followed in this instance. 51% 26% 11% 8% 2% 1%

77% 19%

19. The manufacturer of CSST partners with the National Association of State Fire Marshals on an awareness campaign about this type of piping that helps make sure people know if they have the product in their home and to see if it was properly installed. 37% 38% 12% 8% 3% 1%

75% 2104"

20. The homebuilder did a sloppy job of supervising the contractor he hired to install the electrical wiring and the electrician did not allow for a reasonable amount of space between the electrical wiring and the CSST. The manufacturer cannot be held responsible for this type of sloppy and careless oversight. 46% 27% 12% 11% 2% 2%

73% 23%

21. CSST was developed as a safer alternative to black iron pipe. It has fewer joints, which means there are less places where it can potentially leak. It is also flexible and able to withstand earthquakes or foundation shifts. 38% 35% 13% 10% 3% 1%

73% 23%

22. Many states recognize that CSST is very safe. For example, after a thorough scientific investigation, the state of Massachusetts lifted a ban on CSST. 28% 40% 13% 13% 5% 2%

67%^ ' 26%

(Continued )

33

Lubbock Survey Page 10 of 16

VERY SMWT NOT VERY NOT AT ALL DK REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR)

23. The Texas State Fire Marshall has said he has no doubt that CSST is safer when it is properly installed. 43% 36% 9% 11% 1% 1%

78%^ 20%

24. No court has EVER ruled that CSST has been responsible for a fire when it is properly installed. 40% 29% 14% 12% 3% 2%

69% 26%

25. There were many other things that contributed to this tragic incident. The foam insulation in the attic was not properly treated, the people who were present did not heed the warnings of the smoke alarm, and electrical wiring was laying right on top of the CSST, which is in violation of the safety warnings and installation guidelines. 46% 29% 12% 9% 3% 1%

75%.A 21%

Now I am going to read you several statements about why the manufacturer of the corrugated stainless steel tubing, also known as CSST SHOULD be held responsible for causing the fire. After I read each one, please tell me how convincing that statement is to you. Is it... very convincing, somewhat convincing, not very convincing, or not at all convincing? (RANDOMIZE)

VERY SMWT NOT VERY NOT AT ALL DK REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR)

26. The manufacturer of CSST has settled hundreds of lawsuits with insurance companies involving the product and lightning fires. 31% ' 34% 15% 14% 5% 1%

66%^ 28%^

27. Since the 2012 fire and death, the Lubbock Fire Marshal has banned the use of CSST in new home construction. 47% 22% 13% 13% 4% 1%

69% 26%

28. The manufacturer of CSST makes another gas piping product that it promotes as "lightning resistant." Since it makes a product that may be safer, the manufacturer should not be selling the older, less safe version of the product. 45% 26% 11% 14% 2% 1%

72%^ 25%

(Continued.)

34

Lubbock Survey Page 11 of 16

VERY SMWT NOT VERY NOT AT ALL DX REF CONVINCING CONVINCING CONVINCING CONVINCING (DNR) (DNR)

29. Texas and more than a dozen other states are identified by the manufacturers as being lighting-prone. Clearly, the manufacturer should not sell CSST in those states. 36% 25% 21% 16% 1% 1%

61% 37%

30. If the manufacturer is aware that some instillers are not installing CSST properly and CSST has the potential to fail in lighting storms, it should not sell the product in the first place. 42% 21% 18% 17% 1% 1%

62%A 35%

31. The manufacturer has a responsibility to ensure CSST is being installed safely. It is not enough to simply entrust that responsibility to the home builder or installer. 26% 21% 23% 25% 3% 1%

47% 48%

32. The manufacturer of CSST has set aside more than one hundred million dollars to fund litigation and settle lawsuits stemming from this product. 33% 34% 12% 14% 4% 2%

67% 27%A

33. One of this manufacturer's main competitors quit selling CSST in the United States because the product is unsafe and prone to failure. 40% 31% 13% 12% 2% 2%

71% 25%

35

Lubbock Survey Page 12 of 16

Now that you have heard some more about this issue...

34. I am going to again read you four options of who the homeowners should sue. After I read each one, please tell me which comes closest to your own opinion, (RANDOMIZE)

Q15 INIT

Q34 INF

19% 25% The homeowners should sue the homebuilder but NOT the manufacturer of the CSST.

12% 12% The homeowners should sue the manufacturer of the CSST but NOT the homebuilder.

38% 37% The homeowners should sue BOTH the homebuilder AND the manufacturer of the CSST.

24% 22% The homeowners should not be suing anyone.

5% 4% DON'T KNOW (DO NOT READ) 2% 1% REFUSED (DO NOT READ

35. And, when lightning hits a house and damages the natural gas piping, causing it to leak gas and resulting in a fire...who would you say is most at fault (ROTATE)

Q9 INIT

Q35 INF

10% 14% The manufacturer who makes and sells the CSST 17% 33% The homebuilder who oversees the installation of the CSST

48% 47% Neither, because a lightning strike is a natural disaster

17% The installer, who might have installed the material improperly (UNREAD OPTION IN Q35)

7% 5% DON'T KNOW (DO NOT READ) 1% 1% REFUSED (DO NOT READ)

36

Lubbock Survey Page 13 of 16

Now I just have a few more questions for statistical purposes only...

36, And what is the last grade you completed in school? (DO NOT READ)

2% SOME GRADE SCHOOL (GRADES 1-8) 2% SOME HIGH SCHOOL (GRADES 9-11)

23% GRADUATED HIGH SCHOOL (GRADE 12) 1% 1hCHNICALNOCATIONAL SCHOOL

24% SOME COLLEGE 31% GRADUATED COLLEGE 14% GRADUATE/PROFESSIONAL SCHOOL

2% REFUSED

27% HIGH SCHOOL OR LESS 25% SOME COLLEGE 46%^ COLLEGE+

37

Lubbock Survey Page 14 of 16

37, And in politics today, do you consider yourself... (ROTATE)

a Republican, a Democrat, or something else?

..,or are you not registered to vote?

(IF REPUBLICAN OR DEMOCRAT, ASK:) Would you call yourself a STRONG (REPUBLICAN/DEMOCRAT) or a NOT-SO-STRONG (REPUBLICAN/ DEMOCRAT)?

(IF SOMETHING ELSE, ASK:) Do you think of yourself as closer to the Republican or to the Democratic party?

26% STRONG REPUBLICAN 13% NOT-SO-STRONG REPUBLICAN 7% LEAN TO REPUBLICANS

18% SOMETHING ELSE/INDEPENDENT

3% LEAN TO DEMOCRATS 5% NOT-SO-STRONG DEMOCRAT

18% STRONG DEMOCRAT

2% NOT REGISTERED TO VOTE

2% DON'T KNOW (DO NOT READ) 5% REFUSED (DO NOT READ)

46% TOTAL REPUBLICAN 27%A TOTAL DEMOCRAT

38

Lubbock Survey Page 15 of 16

38. And for statistical purposes only...is your total annual household income greater or less than $60,000 dollars?

7% UNDER $20,000 16% BETWEEN $20,000 - $40,000 15% OVER $40,000

16% UNDER $80,000 16% BETWEEN $80,000 - $100,000 17% OVER $100,000

11% REFUSED

23% UNDER $40K 32% $40K $80K 34% OVER $80K

39. And, how long have you lived in Lubbock? (DO NOT READ CHOICES)

2% LESS THAN TWO YEARS 3% TWO TO FIVE YEARS 7% FIVE TO TEN YEARS 15% TEN TO TWENTY YEARS 52% MORE THAN TWENTY YEARS 18% NATIVE

1% DON'T KNOW (DO NOT READ) 2% REFUSED (DO NOT READ)

39

Lubbock Survey Page 16 of 16

40. And, how long have you been a homeowner? (IF MORE OWNED MORE THAN ONE HOUSE, ASK FOR TOTAL LENGTH OF HOMEOWNERSHIP) (DO NOT READ CHOICES)

1% LESS THAN TWO YEARS 6% TWO TO FIVE YEARS 10% FIVE TO TEN YEARS 22% TEN TO TWENTY YEARS 57% MORE THAN TWENTY YEARS

1% DON'T KNOW (DO NOT READ) 2% REFUSED (DO NOT READ)

41. What is your main racial or ethnic origin? Is it ... (READ CHOICES --- ACCEPT ONLY ONE RESPONSE)

70% WHITE 8% BLACK OR AFRICAN AMERICAN 1% ASIAN

16% HISPANIC

1% SOMETHING ELSE (Specify: ) (DO NOT READ) 4% REFUSED (DO NOT READ)

42. Gender (BY OBSERVATION)

48% MALE 52% FEMALE

40

Exhibit 3

Exhibit 4

188 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

PRIMROSE OPERATING COMPANY,INC. and Palmer Oilfield Construction

Inc., Appellants,

v.

Walter James JONES, III and JonaJones, Individually and as NextFriends of Allisha and Ty Jones, Mi-nor Children, Appellees.

No. 07–01–0275–CV.

Court of Appeals of Texas,Amarillo.

Jan. 24, 2003.

Rehearing Overruled May 6, 2003.

Injured worker brought negligenceaction against oil and gas well operatorand contractor drilling company in connec-tion with injuries suffered on oilfield welldrilling project. The 50th District Court,King County, David Hajek, J., enteredjudgment in favor of injured worker. Afterinitial appeal was abated, 2002 WL 236629,operator and contractor appealed. TheCourt of Appeals, John T. Boyd, SeniorJustice (Assigned), held that: (1) mock trialconducted by worker’s counsel prior totrial did not constitute attorney or jurymisconduct; (2) any misconduct committedby attorney for worker, or jury, in con-ducting and participating in mock trial, didnot result in prejudice to operator or con-tractor, and thus, could not be basis formistrial; (3) worker failed to establish op-erator’s duty to him; (4) worker could notshow that operator retained right to forbidunsafe practices; and (5) operator’s writtenrequests for jury questions regarding itscontrol of contractors was sufficient to pre-serve issue of control for appellate review.

Reversed and remanded, with di-rections.

1. Trial O133.1, 305

Trial court acted within its discretionin denying motion of oilfield operator andwell drilling contractor for mistrial, basedon alleged misconduct by jury or attorneyrepresenting worker in negligence actionfor injuries suffered in well drilling acci-dent, where alleged misconduct consistedof violation of disciplinary rules of profes-sional conduct regarding maintaining in-tegrity of jury system and trial publicity,and attorney’s actions of telling one personasked to participate in mock trial that suchindividual could not participate in mocktrial because he was member of actual jurytrial venire, and holding mock trial, wordof which may have been passed by word ofmouth in community, were not improper.Vernon’s Ann.Texas Rules of Civ.Proc.,Rule 327; State Bar Rules, V.T.C.A., Gov-ernment Code Title 2, Subtitle G App. A,Art. 10, § 9, Rules of Prof.Conduct, Rules1.01 et seq.

2. Attorney and Client O47.1

Disciplinary Rules of ProfessionalConduct are not designed to be standardsfor procedural decisions; rules govern dis-ciplinary proceedings and are only applica-ble to other types of proceedings to extentthey might manifest public policy. StateBar Rules, V.T.C.A., Government Code Ti-tle 2, Subtitle G App. A, Art. 10, § 9, Rulesof Prof.Conduct, Rules 1.01 et seq.

3. Appeal and Error O969

Trial court’s denial of motion for mis-trial will not be disturbed without showingthat court abused its discretion.

4. Trial O133.1, 305

Any misconduct committed by attor-ney for worker, or jury, in conducting andparticipating in mock trial of worker’s caseagainst oil well operator and contractordrilling company for injuries worker suf-fered in oil well drilling accident, did not

189Tex.PRIMROSE OPERATING CO., INC. v. JONESCite as 102 S.W.3d 188 (Tex.App.—Amarillo 2003)

result in prejudice to operator or contrac-tor, and thus, could not be basis for mistri-al, where mock trial jurors were not takenfrom trial jury pool, voir dire examinationof jury venire explored relationships be-tween venire members and mock trial par-ticipants, parties had full opportunity toinquire into what information was con-veyed to each venire member and effect itmight have on them, and worker did notidentify specific jury members he wasforced to accept after being denied addi-tional strikes for cause. Vernon’sAnn.Texas Rules Civ.Proc., Rule 327.

5. Mines and Minerals O118

Worker injured in well drilling acci-dent at oilfield failed to establish oilfieldoperator’s duty to him, where any dutywas derivative of contractor well driller’sliability, which in turn depended on wheth-er operator and contractor were perform-ing under day work provisions of contract,rather than on footage basis, where con-tract construction finding that day workprovisions controlled would have requirecourt to ignore portions of contract.

6. Negligence O202

Common law doctrine of negligencerequires showing of three elements: (1)legal duty owed by one person to another;(2) breach of that duty; and (3) damagesproximately resulting from breach.

7. Negligence O1692

Determination of duty, presence ofwhich creates liability in negligence forbreach, is question of law for court todecide from facts surrounding occurrence.

8. Negligence O1076

Owner or occupier of land generallyhas duty to use reasonable care to makeand keep premises safe for business invi-tees.

9. Negligence O1000Claim that is contemporaneous result

of negligence is negligent activity claimrather than one for premises defect.

10. Negligence O1205(7)General contractor has two potential

sources of duty to maintain safe premises:(1) it could be liable for injuries arisingfrom premises defects, or (2) from negli-gent activity.

11. Negligence O1204(1), 1205(7)Generally, property owner or general

contractor does not have duty to see thatindependent contractor performs work insafe manner.

12. Negligence O1205(7)Exception to general rule, that prop-

erty owner or general contractor does nothave duty to see that independent contrac-tor performs work in safe manner, existswhen general contractor retains or exercis-es control over subcontractor’s activities;in that circumstance, general contractorowes duty to exercise reasonable care insupervision of subcontractor’s activity.

13. Appeal and Error O931(3)A plaintiff must obtain a finding on

each essential element of cause of action orface reversal, unless opponent did not ob-ject to failure to submit question on issueor element is established as matter of law;absent waiver, missing element cannot bedeemed found. Vernon’s Ann.Texas RulesCiv.Proc., Rule 279.

14. Contracts O147(2)When construing written contract,

Court of Appeals’ goal must be to deter-mine shared intent of parties as expressedin agreement.

15. Contracts O143.5When construing contract, Court of

Appeals must consider entire agreementgiving effect to each of its provisions.

190 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

16. Mines and Minerals O118

Injured worker could not show thatoperator of oilfield retained right to forbidunsafe practices on well drilling project,such that operator could be held liable innegligence, to worker injured at projectsite, for the actions of contractor drillingwell, where worker failed to obtain juryfinding on operator’s right of control overcontractor.

17. Appeal and Error O1012.1(5)

When considering factual sufficiencyissue, reviewing court reviews all evidenceand reverses only if challenged finding isso against great weight and preponderanceof evidence as to be manifestly unjust.

18. Appeal and Error O216(7)

Operator’s written requests for juryquestions, in worker’s negligence actionagainst operator and drilling contractor forinjuries sustained at oilfield well drillingproject, regarding its control of contrac-tors providing drilling services at oilfield,as well as its oral presentation of controlover one such contractor, were sufficient tocall trial court’s attention to control issue,and thus, issue was preserved for appellatereview; operator’s failure to orally argueeach question submitted by it to trial courtdid not result in waiver of questions notspecifically identified in charge hearing.

19. Appeal and Error O216(7), 232(3)

Relevant inquiry, regarding reviewingsufficiency of requests and objections tojury charge, is whether request called trialcourt’s attention to issue.

McMahon, Surovik, Suttle, Buhrmann,Hicks & Gill, William A. Hicks, Brandon J.

Logan, for Palmer Oil Field ConstructionCompany Inc.

Kevin Glasheen and Ralph H. Brock,Lubbock, for Appellees.

Craig, Terrill & Hale, Gary M. Bellair,for Primrose Operating Company, Inc.

Before QUINN and REAVIS, JJ., andBOYD, S.J.1

OPINION

JOHN T. BOYD, Senior Justice(Assigned).

This is an appeal from a judgmentawarding damages for injuries arisingfrom an oilfield accident. In the judg-ment, Walter James Jones III and his wifeJona Jones, individually and as next friendof their minor children, were awarded ap-proximately 2.7 million dollars in actualand exemplary damages. These partieswill be collectively referred to as Jones.The trial court defendants were PrimroseOperating Company (Primrose), PalmerOilfield Construction Company (Palmer),and Mike Byrd Casing Crews, Inc. (alsoreferred to as Byrd Power Tong Service,Inc.). Each defendant filed a notice ofappeal, but Byrd subsequently settled withJones and is not a party to this appeal.Finding merit in Primrose’s first issue andPalmer’s second issue, we reverse thejudgment of the trial court and remand thecause for further proceedings in accor-dance with our opinion.

The background of this appeal beginswith the fact that Primrose was the opera-tor of an oil and gas well in King County.It contracted with Palmer to drill the welland run casing down to 3600 feet on a per-foot basis. Additional work, to a maxi-mum of 3650 feet, would be on a day workbasis. Walter Jones was an employee of

1. John T. Boyd, Chief Justice (Ret.), SeventhCourt of Appeals, sitting by assignment. Tex.

Gov’t Code Ann. § 75.002(a)(1) (VernonSupp.2003).

191Tex.PRIMROSE OPERATING CO., INC. v. JONESCite as 102 S.W.3d 188 (Tex.App.—Amarillo 2003)

Palmer. Palmer, in turn, hired Byrd toperform part of the work, including sup-plying power tongs and elevators. In July1997, soon after installation of the casinghad begun, the crew encountered difficultyraising joints of casing into place for as-sembly. The difficulty arose because han-dles on the elevator struck the derrickwhile the casing was raised. Some of theworkers felt the handles on the elevatorwere too long. However, no other elevatorwas available and the work continued.

On one occasion, the elevator handleshung on the derrick and, before the drillercould stop the winch, the handles acted asa lever, causing the free-hanging end ofthe casing joint to swing out. As it swungback down, the casing struck Jones on theback of his head, causing him the injuriesfor which recovery was sought.

The Jones parties filed suit againstPrimrose and Byrd Casing. Primrosesought indemnification from Palmer undertheir written agreement. Palmer’s work-er’s compensation carrier, Old Republic In-surance, filed a plea in intervention assert-ing it was subrogated to any recoveryJones obtained. The King County trialjury returned a verdict for Jones in whichit found both Primrose and Byrd negligentand attributed 90 percent of the responsi-bility to Primrose and 10 percent to Byrd.In conformity with the jury’s verdict, thetrial court rendered judgment for Jonesfor $2,690,000 in damages, and $741,624 inprejudgment interest. That Old Republichad a subrogation interest of $85,608 inthe judgment was undisputed. The trialcourt also found that Primrose was enti-tled to indemnification from Palmer in theamount of $1,000,000, together with$77,000 in attorney fees. Each party fileda notice of appeal, but Byrd subsequentlysettled.

In pursuing its appeal, Palmer presentsfive issues for our review. They are

whether: 1) the trial court erred in deny-ing their motions for mistrial based on atainted jury panel, 2) the trial court erredin refusing to submit an issue on Prim-rose’s right of control over Palmer, 3) theevidence was legally or factually sufficientto support the finding that Primrose re-tained a right of control over Palmerand/or Byrd sufficient to create a duty onPrimrose to Jones, 4) the delay in obtain-ing the reporter’s record entitles Palmerto a new trial, and 5) the trial court cor-rectly held Primrose was entitled to in-demnification from Palmer under theterms of their written contract.

Primrose presents the following issues:1) whether Jones’ failure to secure a find-ing on its control over Palmer requiresreversal of the judgment against Primrose,2) whether the appearance of partiality onthe part of the jurors requires reversal onpublic policy grounds, 3) whether the trialcourt erred in awarding damages for lossof consortium for a child born after theinjury, and 4) whether Palmer should berequired to pay post-judgment interest onits indemnity obligation.

Jones presents six issues in which theyask us to decide whether: 1) a pretrial‘‘focus group’’ conducted by Jones proba-bly caused any injury, 2) Primrose’s rightof control was established by the contractbetween it and Palmer, 3) the evidencewas legally and factually sufficient to showPrimrose’s employee retained a right ofcontrol over Palmer’s work, 4) Primrose’semployee retained a right of control overPalmer’s work, 5) Primrose waived itscomplaint regarding loss of consortiumdamages for after-born children, and 6) thereporter’s record is sufficient for the pur-poses of this appeal.

Initially, we will consider the issues con-cerning jury selection, which encompassPrimrose’s issue two, Palmer’s issue one,and Jones’ issue one. The facts giving rise

192 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

to these issues come from what Primroseand Palmer describe as a mock trial 2 con-ducted before the jury selection in thecase. It is undisputed that King Countyhas a population of just over 300. Antici-pating some difficulty in obtaining a jury,the district court had the clerk summon130 veniremen. The jury summons weremailed on Monday, September 12, 2000.At some time prior to September 14, 2000,one of Jones’ attorneys contacted Dr.Blodgett, a veterinarian at the 6666 Ranchin King County. He was seeking use of aconference room for a meeting in prepara-tion for the trial, however, he did notexplain the nature of the meeting. Anoth-er of Jones’ attorneys, the lead counsel attrial, spoke to a secretary at the ranch,telling her that they wanted to conduct a‘‘focus group’’ to help them decide how tobest present their case at the upcomingtrial.

Jones’ attorney asked the secretary toassemble a group who was representativeof the county population, but had not beencalled for jury duty. The secretary assem-bled a group of approximately sevenadults, including a high school teacher andfive students from the teacher’s seniorsgovernment class. On Thursday, Septem-ber 14, 2000, the group met at the ranch.Some time before the mock trial, the firstattorney obtained a list of those summonedfor jury duty in the case; however, he didnot recall if he provided the list to Jones’trial attorney beforehand.

Jones’ trial attorney presided over themock trial and was unaware who would beparticipating before he arrived at theranch. He asked the participants if any ofthem had been summoned for jury duty inthe case and excluded one person who hadbeen called. The attorney did not ask if

any of the group’s family members hadbeen summoned to the trial venire. At themeeting, Jones’ attorney summarized theevidence he expected would be presentedby each party in the case using flip chartsand a portion of a video deposition. At theconclusion of the meeting, which lastedapproximately two hours, the mock juryheld Primrose 80 percent responsible andopined that the Jones parties were entitledto $7,000,000 in damages. Each partici-pant was given a $30 restaurant gift certif-icate for their participation in the mocktrial.

The King County Judge learned of themock trial on the same day that it wasconducted. The judge went to the ranchand obtained a list of all the participants.The judge provided the list to the districtclerk, who compared it to the members ofthe jury venire for the purpose of identify-ing family relationships between membersof the two groups and found several rela-tionships between the two lists. A copy ofthe mock trial list was also furnished tothe district judge.

The case was called for trial on Monday,September 18, 2000. Primrose, Palmer,and Byrd learned of the mock trial beforethe jury voir dire began and jointly movedfor a mistrial on the basis that the mocktrial had tainted the entire venire. Theyalso objected to Jones’ failure to furnishthem a list of the participants in the mocktrial which, they argued, seriously im-paired their ability to conduct an effectivevoir dire of the panel. The trial court didnot rule on the motion immediately, butcarried it on during the voir dire examina-tion.

Even so, the effect of the mock trial wassignificantly explored during the jury voir

2. The Jones parties call this meeting a ‘‘focusgroup’’ while appellants refer to it as a ‘‘mocktrial.’’ The substance of what took place at

the meeting is essentially undisputed, makingthe nomenclature irrelevant. For simplicity,we will refer to it as a mock trial.

193Tex.PRIMROSE OPERATING CO., INC. v. JONESCite as 102 S.W.3d 188 (Tex.App.—Amarillo 2003)

dire examination. The parties exploredthe relationships between venire membersand mock trial participants, as well as theeffect of the mock trial on the communityview of the dispute. One venire member,Mr. Pettiet, pointed out that the mock trialconcluded only a few hours before a localjunior high football game attended bycounty residents. He was serving food atthe game and, he said, the mock trial,including the $7 million damage finding,was a major topic of conversation. Heaverred he heard about the case ‘‘fromevery direction,’’ and ultimately stated thathe could not set aside what he had heardabout the case, which resulted in him be-ing struck for cause. The trial court alsoallowed a strike for cause in the instanceof Dr. Blodgett,3 who had questioned theethics of the plaintiffs’ attorney’s actions inconducting the mock trial at the time. Atthe conclusion of the voir dire, the motionfor mistrial was again urged, but it wasoverruled.

[1, 2] In challenging the refusal oftheir mistrial motion, both Primrose andPalmer initially argue the trial court erredbecause Jones’ attorney’s conduct violatedTexas Disciplinary Rules of ProfessionalConduct 3.06 and 3.07, which address re-spectively, maintaining the integrity of thejury system and trial publicity. Paren-thetically, we note that paragraph 15 ofthe preamble to the rules specify that theyare not designed to be the standards forprocedural decisions. Those rules governdisciplinary proceedings and are only ap-plicable to other types of proceedings tothe extent they might manifest public poli-cy. See Shields v. Texas Scottish Rite

Hosp. for Crippled Children, 11 S.W.3d457, 459 (Tex.App.-Eastland 2000, pet. de-nied).

[3] Texas Rule of Civil Procedure 327governs the instances in which a party isentitled to a new trial because of jurymisconduct. That rule authorizes a court,after taking evidence on the alleged mis-conduct, to grant a new trial if it findsmisconduct by the jury, including any com-munication made to the jury, or that thejuror gave an incorrect answer during voirdire. Tex.R. Civ. P. 327. By includingcommunications made to the jury, it isclear that ‘‘jury misconduct’’ is not limitedto acts of jurors. A trial court’s denial of amotion for mistrial will not be disturbedwithout a showing that the court abusedits discretion. Till v. Thomas, 10 S.W.3d730, 734 (Tex.App.-Houston [1st Dist.]1999, no pet.).4

Even construing Disciplinary Rules 3.06and 3.07 as explicating improper communi-cations under Rule 327, the record doesnot show the trial court abused its discre-tion by denying the motion for mistrial.Rule 3.06(a)(2) prohibits an attorney fromseeking to influence a venireman or com-municate with any member of the venire.Initially, we note that the record revealsonly one communication between Jones’attorneys and any member of the venire.That was Jones’ trial attorney’s conversa-tion in which he discovered that one per-son included in the group at the 6666Ranch, who was a member of the jury trialvenire, but wanted to serve as a memberof the mock trial. It is undisputed that hisconversation with the person was limitedto explaining that he could not participate

3. This was the veterinarian at the 6666 Ranchwho had authorized the Jones’ use of a con-ference room at the ranch.

4. Palmer’s reliance upon Elston v. ShermanCoca Cola Co., 596 S.W.2d 215 (Tex.Civ.App.-Texarkana 1980, no writ), for the proposition

that review of a denial of a motion for newtrial is de novo is misplaced. The case actual-ly held the question of injury from juror mis-conduct is a question of law for the court. Id.at 218.

194 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

in the mock trial. That communicationwas not improper because it amounted toan effort to avoid a potential violation ofDisciplinary Rule 3.06(a).

Rule 3.07 prohibits an attorney frommaking statements ‘‘that a reasonable per-son would expect to be disseminated bymeans of public communications’’ that heshould know will have a substantial likeli-hood of prejudicing a proceeding. Thereis nothing in the record that shows any ofthe matters discussed in the mock trialwere disseminated by ‘‘means of publiccommunications.’’ To adopt appellants’apparent position that word-of-mouth in asmall community such as King County issufficient to fall within the purview of dis-semination by ‘‘means of public communi-cations’’ as used in the Rule would be toeffectively rewrite the Rule and tell thetrial court it abused its discretion by fail-ing to do so. We decline to start downthat road.

Whether Jones’ attorneys sought to in-fluence members of the venire by commu-nicating with non-members is a fact ques-tion for resolution by the trial court. Wehave noted that it is undisputed that Jones’attorneys took steps to ensure that nomembers of the venire participated in themock trial. There was not, however, anyevidence that Jones’ attorneys asked iffamily members of the mock trial partici-pants had been summoned to serve on thejury venire in the case, nor was there anyshowing that the attorneys had instructedthe participants not to speak about thecase to others in the community before thetrial.

Appellants also emphasize the evidencethat the mock trial concluded just hoursbefore the local junior high football gameand that there was testimony that news ofthe outcome of the mock trial and theverdict of seven million dollars ‘‘spread likewildfire’’ in the county. That emphasis

arises from the testimony of venire mem-ber Pettiet’s statement that ‘‘Y’all got tounderstand TTT we’re a big county but wedon’t have many people and it just spreadslike wildfire, and it goes to the school andthe post office and the courthouse. That’sall we’ve got.’’ Taken in context, use ofthe plural ‘‘spreads’’ is referring to thepronoun ‘‘it’’ and refers to news generally,rather than the specific news about themock trial outcome. Thus, that statementwas a general description of the county’sculture rather than evidence establishingthe extent to which information about themock trial reached members of the venire.Pettiet gave much more specific informa-tion about his view as to the community’sknowledge about the facts before the mocktrial and the damages they found.

[4] As we have noted, in order to granta mistrial, even assuming arguendo therewas misconduct, the trial court must findthe misconduct was material and probablyresulted in injury. Tex.R. Civ. P. 327(a).In advancing the proposition that harmmay be inferred from the misconduct it-self, appellants point to Texas EmployersIns. Ass’n v. McCaslin, 159 Tex. 273, 317S.W.2d 916 (1958) for that proposition.We agree that McCaslin supports thatproposition, however, it does not stand forthe proposition that such an inference ismandatory and irrefutable. In determin-ing probable injury, we are to consider therecord as a whole. Here, the recordshows the voir dire examination of the juryvenire included rather detailed explorationof the relationships between venire mem-bers and participants in the mock trial.The parties had a full opportunity to in-quire into what, if any, information hadbeen conveyed to each venire member andwhat effect it might have on them.

Out of a venire of 130 people, the partiessought, and were granted, four strikes forcause. Appellants have failed to identify

195Tex.PRIMROSE OPERATING CO., INC. v. JONESCite as 102 S.W.3d 188 (Tex.App.—Amarillo 2003)

any specific members of the jury theywere forced to accept because they weredenied additional strikes for cause. Basedon the record before us, we cannot say thetrial court abused its discretion in denyingappellants’ mistrial motions. We overrulePalmer’s first, and Primrose’s second is-sues.

[5–7] We next consider the failure ofthe trial court to submit a jury question onPrimrose’s right of control over Palmer.The common law doctrine of negligencerequires a showing of three elements: 1) alegal duty owed by one person to another;2) a breach of that duty; and 3) damagesproximately resulting from the breach. ElChico Corp. v. Poole, 732 S.W.2d 306, 311(Tex.1987). The existence of a defendant’sduty to the plaintiff is the threshold inqui-ry in a negligence case and has presenteddifficulty for many courts in the context ofa premise occupier’s duty to contractors’employees. The determination of duty is aquestion of law for the court to decidefrom the facts surrounding the occurrence.Id. Because any liability of Palmer in thiscase must be derivative of Primrose’s lia-bility, our duty inquiry must necessarilyfocus on Primrose.

[8–10] The two potential sources ofPrimrose’s duty to Jones are as the occupi-er of the premises and as the generalcontractor in drilling the well. An owneror occupier of land generally has a duty touse reasonable care to make and keep thepremises safe for business invitees. Clay-ton W. Williams, Jr. v. Olivo, 952 S.W.2d523, 527 (Tex.1997). As general contractorfor the well, there were two potentialsources of Primrose’s duty to maintainsafe premises. It could be liable for inju-ries arising from premises defects or fromnegligent activity. Id. at 527. A claimthat is the contemporaneous result of neg-ligence is a negligent activity claim ratherthan one for premises defect. Keetch v.

Kroger Co., 845 S.W.2d 262, 264 (Tex.1992)(premise defect); Redinger v. Living, Inc.,689 S.W.2d 415 (Tex.1985) (negligent activ-ity). Under the facts of this case, Jones’claim is one for negligent activity.

[11, 12] As a general rule, a propertyowner or a general contractor does nothave a duty to see that an independentcontractor performs the work in a safemanner. Abalos v. Oil Development Co.,544 S.W.2d 627 (Tex.1976). An exceptionexists when the general contractor retainsor exercises control over the subcontrac-tor’s activities. Redinger, 689 S.W.2d at418. In that circumstance, the generalcontractor owes a duty to exercise reason-able care in the supervision of the subcon-tractor’s activity. Id.

[13] In advancing their challenge, ap-pellants cite the rule that a plaintiff mustobtain a finding on each essential elementof their cause of action or face reversalunless the opponent did not object to thefailure to submit a question on the issue orthe element is established as a matter oflaw. McKinley v. Stripling, 763 S.W.2d407, 410 (Tex.1989). Absent waiver, themissing element cannot be deemed foundpursuant to Rule 279. Physicians & Sur-geons General Hosp. v. Koblizek, 752S.W.2d 657, 660 (Tex.App.-Corpus Christi1988, writ denied).

In response to appellants’ argumentabout the right of control question, Jonespresents two arguments: 1) Primrose’sright of control is established as a matterof law by the contract between it andPalmer, and 2) appellants waived any com-plaint arising from the omission of a con-trol finding. Jones’ contract argument re-quires a consideration of relevant portionsof the contract between Palmer and Prim-rose. The contract was a standard ‘‘foot-age drilling contract’’ and provided thatPrimrose was to pay Palmer $10 per foot

196 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

to drill and install casing in the well to adepth of 3600 feet. It also provided ‘‘alldrilling below the TTT specified contractdepth shall be on a day work basis asdefined herein.’’ The contract went on tospecify a maximum depth of 3650 feet.

The Term ‘‘footage basis’’ means con-tractor [Palmer] shall furnish the equip-ment, labor, and perform services TTT todrill a well as specified by [Primrose] tothe contract footage depthTTTT Whiledrilling on a footage basis [Palmer] shalldirect, supervise, and control drilling op-erations and assumes certain liabilitiesto the extent specifically provided forhereinTTTT The term ‘‘daywork basis’’means [Palmer] shall furnish equipment,labor, and perform services as hereinprovided, for a specified sum per dayunder the direction, supervision and con-trol of [Primrose]. Except for such obli-gations and liabilities specifically as-sumed by [Palmer, Primrose] shall besolely responsible and assumes liabilityfor all consequences of operations byboth parties while on a daywork basis,including results and all other risks orliabilities incurred in or incident to suchoperations.

Because it is undisputed that the well ex-ceeded 3600 feet in depth, Jones arguesthe contract became a day work contract,giving control to Primrose the moment thedrill bit exceeded 3600 feet and all subse-quent operations were conducted on a daywork basis. Appellants argue that theprovisions governing day work only ap-plied to work performed below the 3600–foot contract depth. We agree with thatinterpretation of the contract.

Neither party cites authority construingthe relevant provisions of this standardizedcontract and, likewise, we have found apaucity of such authority. However, inCleere Drilling Co. v. Dominion Explora-tion & Production, 2002 U.S. Dist. LEXIS

4424 (N.D. Texas Mar 18, 2002), the courtconstrued a similar contract observing thatthe parties ‘‘had obviously contemplatedthe fluctuating nature of the Contract’sbasis.’’ Id.

[14] When construing a written con-tract, our goal must be to determine theshared intent of the parties as expressedin the agreement. National Union FireIns. v. CBI Industries, Inc., 907 S.W.2d517, 520 (Tex.1995). Paragraph 4.7(a) ofthe contract provides that work done on aday work basis includes ‘‘all drilling belowthe contract footage depth as provided inPar. 3.1 including the setting of any stringof casing below such depth.’’ The evidenceconfirms that casing is only installed afterthe well is drilled. See also Cox v. KTMDrilling, Inc., 395 S.W.2d 851, 853 (Tex.Civ.App.-Amarillo 1965, writ ref’d n.r.e.).Thus, if, as Jones contends, after drillingbelow the contract depth of 3600 feet, alloperations were governed by the contract’sday work provisions, the reference in para-graph 4.7 relating to setting casing belowthat depth would not be necessary. Addi-tionally, paragraph 7.1 of the contract spe-cifically states that casing set ‘‘below thefootage contract depth’’ would be on a daywork basis.

[15] Other provisions of the contractcontemplate temporary operations on aday work basis with a return to a footagebasis. For example, paragraph 4.7 pro-vides that any repair work or work beyondthat specified in the contract would be on aday work basis. When construing a con-tract, we must consider the entire agree-ment giving effect to each of its provisions.R.C. Small & Associates, Inc. v. SouthernMechanical, Inc., 730 S.W.2d 100, 104(Tex.App.-Dallas 1987, no writ). The con-struction of the contract urged by Joneswould require us to ignore the reference tosetting casing contained in paragraph4.7(a).

197Tex.PRIMROSE OPERATING CO., INC. v. JONESCite as 102 S.W.3d 188 (Tex.App.—Amarillo 2003)

For the reasons we have explicated, wehold the contract does not reveal an intentthat all operations conducted after the wellexceeded the footage contract were to beconducted on a day work basis. We aremindful of Jones’ argument that this con-struction might result in some difficulty inknowing which provisions govern at anyparticular point in the operation. SeeStartex Drilling Co. v. Sohio PetroleumCo., 680 F.2d 412, 416 (5th Cir.) (discussingthe determination as to whether drilling isoperating on a footage or day work basis);Samson Resources Co. v. Quarles DrillingCo., 783 P.2d 974 (Okla.App.1989) (findingcontract required notice to operator ofchange from footage to day work basis).However, this possibility cannot justify usin departing from the plain language of thecontract or the rules of construction.

The record is not clear how much casinghad been run in the well when Jones’sinjury occurred. It does reveal that thecrew began having problems after runningjust a few joints. The record does notshow how many joints were put in beforeJones’s injury, but there is evidence thatsix to ten joints were run after the injury,thus indicating that the injury did not oc-cur while working at the bottom of thewell. Jones’s burden to show duty made itincumbent on him to establish the partieswere operating under the day work provi-sions of the contract. The evidence islegally insufficient to support such a find-ing. Thus, we reject Jones’ argument thatPrimrose’s right of control over Palmer’soperations was established as a matter oflaw.

[16, 17] In their third issue, Jones ar-gues that the evidence was legally andfactually sufficient to show Primrose’s rep-resentative retained the right to forbidunsafe practices. In supporting that argu-ment, Jones correctly cites the rule thatwhen ‘‘considering a factual sufficiency is-

sue, the reviewing court reviews all theevidence TTT and reverses only if the chal-lenged finding is so against the greatweight and preponderance of the evidenceas to be manifestly unjust.’’ (Emphasisadded). However, because Jones failed toobtain a jury finding on Primrose’s right ofcontrol, a review for factual and legal suffi-ciency is not applicable. They are limitedto showing that Primrose’s control overPalmer was established as a matter of law.McKinley, 763 S.W.2d at 410.

[18] We next consider the argumentpresented in Jones’ fourth issue, namely,that any error arising from the failure toobtain a finding on Primrose’s control overPalmer was waived. Primrose submitted alist of proposed jury questions, definitions,and instructions. The individual items arenot marked as granted or denied, but thedocument is file marked September 14,2000. As relevant here, it contained thefollowing proposed question: ‘‘Did Prim-rose Operating Company control themeans, methods, and details of Palmer Oil-field Construction Company’s work on thecasing operation in question?’’ It went onto list several rights that would notamount to control. An identical questionwas requested with regard to Primrose’scontrol over Byrd.

At the charge conference, Primrose pre-sented its objections to the court’s charge,specifically pointing out its request fordefinitions on negligence, dangerous con-ditions, and a request for ‘‘the court tosubmit on [sic] did Primrose OperationCompany control the means, methods anddetails of Byrd Casing Crews’ work on thecasing operation in question.’’ It did notspecifically identify its question with re-gard to its control over Palmer’s work.The trial court stated, ‘‘[t]he exceptionsand objections presented by defendantPrimrose are denied.’’ Palmer adoptedPrimrose’s objections and urged additional

198 Tex. 102 SOUTH WESTERN REPORTER, 3d SERIES

requests and objections of its own. SeeTex.R. Civ. P. 279.

Citing Carr v. Smith, 22 S.W.3d 128(Tex.App.-Fort Worth 2000, pet. denied),Jones argues Palmer’s purported adoptionof Primrose’s written requests was ineffec-tive, resulting in a waiver by Palmer also.However, Carr did not involve an expressadoption of another party’s requests orobjections in the trial court. Thus, it isnot applicable here.

[19] The question now presented to usis whether Primrose’s failure to orally ar-gue each question submitted by it to thetrial court resulted in a waiver of thequestions not specifically identified in thecharge hearing. The standard for review-ing the sufficiency of requests and objec-tions to the jury charge is articulated inState Dept. of Highways & Public Transp.v. Payne, 838 S.W.2d 235 (Tex.1992). Inthe course of its opinion, after commentingon the complexity previously existing inour jurisprudence to preserve charge er-ror, the court adopted a simple rule to doso. It opined that the relevant inquiry iswhether the request ‘‘called the trialcourt’s attention to the issue.’’ Id. at 239–40. The court continues to adhere to thistest. See Coastal Liquids Transp., L.P. v.Harris County Appraisal Dist., 46 S.W.3d880, 885 n. 14 (Tex.2001). Even so, thisstandard must be applied in the context ofRule of Civil Procedure 274’s admonitionmaking requests ‘‘obscured or concealedby TTT numerous unnecessary requests.’’However, here, Primrose’s written re-quests for jury questions regarding itscontrol of Palmer and Byrd, as well as itsoral presentation of control over Byrd,were sufficient to call the trial court’s at-tention to the issues and thus preserve thequestion for appellate review.

Thus, we must sustain Primrose’s firstissue and Palmer’s second issue and holdthat Jones failed to establish Primrose’s

duty to him. Because duty is a necessaryelement of Jones’ negligence claim, ourholding requires us to reverse the trialcourt judgment against Primrose. Thatdisposition also requires reversal of Prim-rose’s claim for indemnification againstPalmer. In summary, that holding re-quires that we reverse the judgment of thetrial court and render judgment that Jonestake nothing against Primrose and Palmer.

,

LONE STAR CALIPER CO. d/b/a LoneStar Muscle Car, Appellant,

v.

TALTY WATER SUPPLYCORPORATION,

Appellee.

No. 05–02–00537–CV.

Court of Appeals of Texas,Dallas.

Jan. 31, 2003.

Supplemental Opinion on Denial ofRehearing May 1, 2003.

Rehearing Overruled June 10, 2003.

Tenant whose property was allegedlydestroyed by fire after fire hydrants failedto work brought negligence action againstwater supply corporation. The 160th Judi-cial District Court, Dallas County, DavidGodby, J., granted corporation’s motion forsummary judgment. Tenant appealed.The Court of Appeals, Sue Lagarde, J.(Retired), sitting by assignment, held that:(1) genuine issue of material fact as towhether corporation had contract with mu-nicipality or volunteer fire department pre-cluded summary judgment; (2) genuine is-

Exhibit 5

Foust v. Hefner, Not Reported in S.W.3d (2014)

2014 WL 3928781, 2014 IER Cases 165,584

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 3928781

SEE TX R RAP RULE 47.2 FOR DESIGNATION ANDSIGNING OF OPINIONS.

MEMORANDUM OPINIONCourt of Appeals of Texas,

Amarillo.

Alicia FOUST, Appellantv.

Don E. HEFNER, CPA, Appellee.

No. 07–13–00331–CV.|

Aug. 12, 2014.

On Appeal from the 99th District Court, Lubbock County,Texas, Trial Court No. 2012–502,047, William C. Sowder,Presiding.

Attorneys and Law Firms

J. Craig Johnston, for Alicia Foust.

Malinda Clawson Standefer, for Don E. Hefner, CPA.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

BRIAN QUINN, Chief Justice.

*1 Alicia Foust (Foust) appeals from a judgment awardingDon E. Hefner (Hefner) sanctions against her. Afterterminating her employment with Hefner, Foust sued himfor defamation, business disparagement, and the recovery ofunpaid overtime. Before trial, Hefner moved the trial court

to award him sanctions. 1 The suit was tried by the court,and by the time of trial, Foust had abandoned her claim forbusiness disparagement. Ultimately, the trial court awardedFoust unpaid overtime due her from Hefner but denied herdefamation claim. It also granted Hefner sanctions in theamount of $5,271.75 against both Foust and her attorney. Thesum represented the amount of attorney's fees purportedlyincurred by Hefner in defending against the defamation claim.On appeal, we are asked to determine whether the trial courtabused its discretion in levying such sanctions. We concludethat it did.

AuthorityHefner moved for sanctions under section 10.001 et seq. of theTexas Civil Practice and Remedies Code. Per that statute, thesigning of a pleading or motion constitutes a certificate by theperson that, to the signatory's best knowledge, information,and belief, formed after reasonable inquiry, 1) the pleadingor motion is not being presented for any improper purpose,including to harass or to cause unnecessary delay or needlessincrease in the cost of litigation; 2) each claim, defense, orother legal contention asserted is warranted by existing law orby a nonfrivolous argument for the extension, modification,or reversal of existing law or the establishment of new law;3) each allegation or factual assertion has evidentiary supportor is likely to have evidentiary support after a reasonableopportunity for further investigation or discovery; and 4)each denial is warranted on the evidence or is reasonablybased on a lack of information or belief. TEX. CIV. PRAC.& REM.CODE ANN. § 10.001 (West 2002). Furthermore,a court determining that a person signed such pleading ormotion in violation of section 10.001 may sanction either orboth the signatory and the party represented by the person. Id.§ 10.004(a).

Yet, before sanctions may issue, the presumption that thesignatory acted in good faith must be rebutted, and the burdento do so lies with the movant. Unifund CCR Partners v.Villa, 299 S.W.3d 92, 97 (Tex.2009). We further note thatthe pertinent window through which the court considers thematter is that existing when the petition or motion is filed.See R.M. Dudley Const. Co., Inc. v. Dawson, 258 S.W.3d694, 711 (Tex.App.-Waco 2008, pet. denied) (stating thatsanctions for frivolous or groundless pleadings do not apply toan action later determined to be groundless after the pleadingwas filed). Consequently, a plaintiff's failure to convince theultimate factfinder to render a favorable verdict does not ipsofacto entitle the opposition to sanctions. Nor is it enough thatthe plaintiff unsuccessfully attempted to pursue an unpopularclaim or one which other attorneys would have eschewed.Unless it is shown that the certification created by section10.001 was false or breached, sanctions cannot issue undersection 10.001 et seq. of the Civil Practice and RemediesCode.

*2 Finally, whether the court erred in levying sanctionsdepends upon whether it abused its discretion. Low v. Henry,221 S.W.3d 609, 614 (Tex.2007). That occurs when thetrial court “acted without reference to any guiding rules andprinciples, such that its ruling was arbitrary or unreasonable.”Id.

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DiscussionHere, the sanctions levied arose from Foust's effort to pursueher cause of action for defamation. The allegedly defamatorystatements were made by Hefner during a phone call. Theparties to the call were Hefner and Travis, the latter being afriend of Foust. Travis agreed to place the call while posingas a prospective employer inquiring about Foust. The latterhad left her job with Hefner, applied for others, and hadencountered little success in finding new employment. Thus,she engaged her friend to help discover what Hefner may havebeen saying about her to prospective employers.

During the phone conversation, which was recorded, Hefnerindicated that he often had to finish Foust's work anddescribed her as jealous and abrasive. He also stated that“[a]nd this last time, she deleted her client e-mails and she orher husband, one, unplugged the file server cables, and I hadto have my IT people come over and fix that.” When asked byhis trial counsel whether these acts of “vandalism really onlyaffected her work area,” Hefner replied, “That's right. Thatand the file server, which was not in her work area.” Foustdenied having “vandalized” the office or her computer.

As previously mentioned, one of the two claims uponwhich trial was had met with favor. That is, the trial courtawarded Foust past overtime but denied recovery for thepurported defamation. It also concluded, in its judgment,that the defamation claim 1) “was presented for an improperpurpose,” 2) was “not warranted by existing law or by anonfrivolous argument for the extension, modification orreversal of existing law or the establishment of new law,”and 3) lacked “evidentiary support and ... [was] not likely tohave evidentiary support after a reasonable opportunity forfurther investigation or discovery.” So too did it explain, viathe judgment, that the claim was improper or unwarrantedunder the law because Foust “instigated” the purportedlydefamatory utterance from Hefner.

Following entry of the judgment, the trial court also executedfindings of fact and conclusions of law. Included therein wasthe following:

A reasonable inquiry by J. Craig Johnston, as required byCPRC Sec. 10.001 would have disclosed to him that thedefamation claim pursued by him on Foust's behalf wasnot warranted by existing law and that such allegations ofdefamation did not have evidentiary support. There was no

evidence presented on causation of any alleged defamatorystatement and the damages claimed by Foust.

... At trial, J. Craig Johnston made no arguments,nonfrivolous or otherwise, for the extension, modificationor reversal of existing law regarding the defamation claim.

* * *

*3 The facts and equities of this case are such that Hefneris entitled to relief, jointly and severally, from Foust andJ. Craig Johnston under the Texas Civil Practices andRemedies Code Section 10.001 et seq. And specificallySection 10.001(1), (2) and (3), due to the filing of anunwarranted defamation claim by Foust and her attorneyagainst Hefner ... [and]

Foust's defamation claim was filed for an improperpurpose.

In addressing the accuracy of the trial court's findingsand decision, we initially note that it did not conduct aseparate evidentiary hearing on the motion for sanctions

before levying them. 2 So, we do not have before us sworntestimony from Foust's legal counsel describing the extentof his investigation, if any, into the factual or legal basisunderlying the defamation claim or what he believed withregard to the components encompassed within section 10.001of the Civil Practice and Remedies Code. While we cannotsay that the absence of such evidence makes it impossible tofind that section 10.001 was breached, it nonetheless inhibitsour ability to construct the appropriate window through whichthe court views the dispute. Again, the pertinent window isthat revealing what counsel thought, knew, or should haveknown when he signed the pleading or motion.

Next, one cannot deny that the common law recognizes acause of action for defamation. See Neely v. Wilson, 418S.W.3d 52, 60 (Tex.2013). Similarly indisputable is thatrecovery under the cause depends upon proving that thedefendant 1) published a statement, 2) that defamed theplaintiff, 3) while either acting with actual malice (if theplaintiff was a public official or public figure) or negligence(if the plaintiff was a private individual) regarding the truthof the statement. Id. at 61. The record before us contains,at the very least, evidence that Hefner told a third partythat Foust vandalized his office and that the accusationwas false, assuming, of course, one was to believe Foust'stestimony. In comparing the latter evidence with the elements

Foust v. Hefner, Not Reported in S.W.3d (2014)

2014 WL 3928781, 2014 IER Cases 165,584

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of defamation, it cannot be said that the claim lacked eitherlegal or factual basis.

As suggested above, what troubled the trial court was theevidence that Foust “instigated” the call to Hefner or hadher friend place it. In doing so, she invited the falsehood,according to the court. In so inviting the defamation, shepurportedly vitiated the cause of action, and, in the trialcourt's view, that was something her trial counsel should haverecognized. Yet, authority illustrates that alleged defamatorystatements made to someone acting on behalf of the defamedindividual does not alone render the suit groundless. FrankB. Hall v. Buck, 678 S.W.2d 612, 618 (Tex.App.-Houston[14th Dist.] 1984, writ ref'd n.r.e.) (wherein the defamed hiredthe investigator to whom the disparaging remarks were said).Publishing defamatory comments to a person's agent maycreate a cause of action, as it did in Buck. Yet, the claim is lostif the defamatory statements are procured to create a lawsuitor invited by the complainant. Id. And, they are so procuredor invited if the person induced them or knew in advance thatthey were likely to be forthcoming. Id.

*4 According to the record before us, the circumstancesprecipitating Foust's departure involved her perceivedinability to be “consistent” in appearing for work; they hadnothing to do with her engaging in criminal conduct such asvandalism. So, we may assume arguendo that Foust could orshould have expected Hefner to give her a less than glowingreference when Travis placed the call. Yet, nothing in therecorded conversation indicated that Travis induced or baitedHefner into accusing Foust of vandalism. And in view ofthe absence of evidence suggesting that vandalism was thecause of or played any role in Foust's decision to end heremployment relationship with Hefner, one can reasonablydebate about whether she or Travis could or should haveexpected that Hefner would accuse her of such criminality.We couple the latter observation with the absence of evidencesuggesting trial counsel for Foust had reason to doubt theveracity of his client's foreseeable testimony about not havingengaged in such illegal activities. And, when so combined,they lead us to conclude that no reasonable basis existed uponwhich the trial court could have found that the defamationclaim lacked arguable basis in law or fact (when the pleadingwas signed) simply because a friend of Foust placed the call.

Nor can it be said that section 103.004 of the TexasLabor Code vitiated Foust's claim of legal or factual basis.The immunity granted ex-employers who talk about ex-employees in that statute does not encompass comments

“known by that employer to be false at the time the disclosurewas made or [disclosures] ... made with malice or in recklessdisregard for the truth or falsity of the information disclosed.”TEX. LABOR CODE ANN. § 103.004(a) (West 2006).Admittedly, the statute placed upon Foust and her attorneythe obligation to clear a higher legal hurdle before recovering.Yet, it did not indicate that they could not recover. Nor didit obligate them to forego pursuing recovery for what wasperceived to be a false accusation, especially when Foustwould testify, under oath, that the accusation was false.

As for the trial court's statement that “no evidence [was]presented on causation of any alleged defamatory statementand the damages claimed by Foust,” we have severalconcerns. First, the finding suggests that the trial court leviedsanctions by focusing upon what Foust may or may not haveproved at trial, as opposed to what trial counsel thought,believed, or should have known or discovered when he signedthe pleadings. Losing at trial does not alone prove that thecause of action lacked present or reasonably potential legal orfactual basis (or was offered for an improper purpose) at thetime when the pleadings were signed. Second, the purportedlyfalse utterance accused Foust of vandalism, that is, a type ofcriminal conduct. See TEX. PENAL CODE ANN. § 28.03(a)(1) & (2) (West 2011) (stating that one commits a criminaloffense when he, without effective consent, intentionallyor knowingly damages the tangible property of the owner,or intentionally or knowingly tampers with the tangibleproperty of the owner and causes pecuniary loss or substantialinconvenience to the owner). Falsehoods of that ilk not onlyare defamatory per se but also are presumed to cause thedefamed nominal damages. See Medical Gardens, LLC v.Wikle, No. 07–12–00011–CV, 2013 Tex.App. LEXIS 6699,at *3–4, 2013 WL 2390103 (Tex.App.-Amarillo May 29,2013, no pet.) (mem.op.). Thus, it was inappropriate toconsider the claim groundless from its inception due to theabsence of evidence illustrating a causal link between theutterance and injury since one was to presume the existenceof nominal damages as a matter of law (assuming, of course,that Foust proved the other elements of her claim).

*5 As for the finding that the defamation claim wasasserted for an “improper purpose,” the latter phrase hasbeen construed as equivalent to “bad faith” under TexasRule of Civil Procedure 13. Dike v. Peltier Chevrolet, Inc.,343 S.W.3d 179, 195 (Tex.App.-Texarkana 2011, no pet.);Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util.Dist., 198 S.W.3d 300, 321 (Tex.App.-Texarkana 2006,pet. denied). Moreover, under Rule 13, establishing “bad

Foust v. Hefner, Not Reported in S.W.3d (2014)

2014 WL 3928781, 2014 IER Cases 165,584

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 4

faith” requires proof of “conscious doing of a wrong fora dishonest, discriminatory, or malicious purpose.” SaveOur Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist.,198 S.W.3d at 321; Stites v. Gillum, 872 S.W.2d 786, 795(Tex.App.-Fort Worth 1994, writ denied). As previouslymentioned, we are not privy to the mental processes inwhich Foust's attorney engaged when signing the originalpetition. And, while someone's mens rea may be discernedfrom circumstantial evidence, Anaya v. State, 381 S.W.3d660, 666 (Tex.Crim.App.2012, pet.ref'd), none appears ofrecord here from which one can reasonably infer that counselfor Foust consciously sought to do wrong for a dishonest,discriminatory, or malicious purpose when including thedefamation claim in the lawsuit. Certainly such a mens rea ordesire cannot be inferred from simply losing at trial.

The tenor of the record leads us to conclude that Hefner failedto rebut the presumption that Foust's legal counsel acted ingood faith when he signed the pleading that contained thedefamation claim. As discussed above, there existed legal andfactual basis to Foust's defamation per se claim given theevidence of record, and there was no evidence indicating thatFoust's trial counsel acted in bad faith when he included theclaim in the petition. Accordingly, we reverse the judgmentinsofar as it levied sanctions against Foust and her counsel

and affirm the remainder of the judgment. 3

All Citations

Not Reported in S.W.3d, 2014 WL 3928781, 2014 IER Cases165,584

Footnotes1 Hefner asserted in his motion that “[b]oth pleadings have a claim, defense or other legal contention that is not warranted by

existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishmentof new law and each allegation or other factual contention in the pleadings does not have evidentiary support, even aftera reasonable opportunity for further investigation or discovery. Respondent's pleadings were presented for an improperpurpose, to harass Movant.”

2 It was carried along with the trial.

3 Pending before the court is Hefner's motion to further sanction Foust and her attorney for pursuing a “frivolous” appeal.Given our decision on the merits of the appeal, we deny Hefner's motion. We do not know whether the effort to obtainsanctions arose from a desire to be an effective advocate or some animus developed over the course of the dispute.Nonetheless, litigants must factor caution and thought into their decision whether to pursue relief under Rule 13 of theTexas Rules of Civil Procedure and section 10.001 et seq . of the Texas Civil Practice and Remedies Code. Indeed,just as sanctions may be levied, in appropriate cases, for filing a frivolous pleading, so too may they be levied for filinga baseless motion for sanctions.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit 6

JURY SELECTION IN FEDERAL CIVIL LITIGATION:..., 23 Tex. Tech L. Rev. 407

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

Texas Tech Law Review

Judge David Hittner a1 Eric J.R. Nichols aa1

Copyright (c) 1992 by David Hittner and Eric J.R. Nichols

TABLE OF CONTENTS

I. INTRODUCTION

II. THE COMPOSITION OF THE VENIRE

A. The Jury Selection and Service Act of 1968

1. The Venire Selection Plan

2. Statutory Exemptions from Service

3. Statutory Qualifications for Service

B. The Act as Applied

C. Challenges to Adherence to the Act or to a Venire Selection Plan

D. Challenges to the Array

E. Jury Shuffle

F. Court Alteration of Panel Selection

III. THE SIZE OF THE JURY

IV. THE COURT'S ADMINISTRATION OF VOIR DIRE

A. The Court's Discretion

B. Juror Information Forms

C. Preparation for Voir Dire by Court

D. Content of Voir Dire by Court

V. LIMITATIONS ON VOIR DIRE BY JUDGES AND ATTORNEYS

JURY SELECTION IN FEDERAL CIVIL LITIGATION:..., 23 Tex. Tech L. Rev. 407

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

A. Limitations by Trial Court Generally

B. Prohibited Areas of Examination

C. Remarks by Panelists During Voir Dire

D. Time Limitations on Attorney Voir Dire

*408 VI. GOALS AND TECHNIQUES IN ATTORNEY VOIR DIRE

A. Goals

B. Techniques

C. Jury Selection Aids

D. Written Questionnaires During Voir Dire

VII. CHALLENGES FOR CAUSE

A. Format

1. Mechanism for Use

2. Entitlement to Juror Honesty

B. Grounds for Challenges for Cause

1. The Court's Discretion

2. Particular Grounds for Exercising

C. Grounds on Which Excusals for Cause May Be Contested

1. The Jury Selection and Service Act as Grounds for Challenge

2. Other Statutes

3. Preserving Error

VIII. PEREMPTORY CHALLENGES

A. Format

1. Number of Strikes

2. Preserving Error on Allocation

3. Exercising Strikes

(a) Struck Jury Method

JURY SELECTION IN FEDERAL CIVIL LITIGATION:..., 23 Tex. Tech L. Rev. 407

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

(b) Jury Box Method

(c) The Systems Compared

(d) Altering Jury Selection Method by Agreement

4. Empaneling Alternates

B. Restrictions on the Use of Peremptory Strikes

1. Applicability of Batson in Civil Litigation

2. Elimination of Racial Identity Requirement

3. Procedure Under Batson

(a) Prima Facie Case Under Batson

(b) Race-Neutral Explanations

(i) Panelist Hostility or Sympathy

(ii) Relationship to or Affiliation With a Party or Witness

(iii) Prior Dealings with Subject Matter

*409 (iv) Inattentiveness or Unwillingness to Follow Evidence or Law

(v) Lack of Forthrightness

(vi) Background

(vii) Physical Characteristics and Youth

(viii) Demeanor and Dress

(ix) Mistake as to Characteristic

(c) Showing of Pretext

4. Remedy for Batson Violations

5. Review of Findings

IX. CONCLUSION

JURY SELECTION IN FEDERAL CIVIL LITIGATION:..., 23 Tex. Tech L. Rev. 407

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(8) Observe the behavior patterns of panelists. For example, a panelist's tendency to join in cliques or to remain aloof could

reveal something about his disposition as a juror. 218

(9) Observe the belongings of panelists. 219 The books, magazines, and newspapers that panelists have with them might reveal

a great deal about their personalities. 220 Purses, coats, hats, and any handicraft supplies, such as knitting materials, may also

lead clues. 221

(10) Disclose something about yourself to the jury, thus facilitating the panelists' own self-disclosure. 222

(11) Ask initial questions that will likely cause everyone to raise a hand. 223 This “ice-breaking” measure might facilitate further

disclosure by the panelists. 224

*437 C. Jury Selection Aids

In developing the “science” of jury selection, litigants have devised aids that do not involve mere intuition or subjective

evaluations of jurors. 225 For example, attorneys have consulted handwriting analysts who scrutinize the handwriting of

panelists on juror questionnaires. 226

The science of jury selection, however, has become much more sophisticated than handwriting analysis. 227 Many litigants

are attempting to graft social science methods onto jury selection. 228 The most celebrated of these methods is the community

attitudinal survey. 229 A jury consultant, ordinarily a psychologist, will prepare questions designed to elicit attitudes about the

litigants or issues involved in a case and to ascertain the background characteristics of those polled. 230 A market research team

then conducts, in person or by telephone, a survey of large numbers of residents within the court's jurisdiction. 231 Such surveys

can then be used to develop a “psychographic profile” of the most and least attractive jurors. 232 A litigant can also use the

survey to gauge the receptiveness of a community to certain themes that a litigant might emphasize at trial. 233

Some proponents of these large-scale surveys tout their accuracy in predicting how persons determined to be pro-plaintiff

or prodefense by their answers to the surveys will vote. 234 Reliance on any such predictive studies, however, is a tenuous

matter. 235 Even the proponents of community attitudinal surveys recognize the error inherent in attempts to predict

behavior. 236 Furthermore, in all but *438 the largest of cases, the expense of the survey may outweigh its benefits. 237

One related experimental method is the use of a “composite personal psychological profile,” or “C3P study,” that combines

the social science research with jury history and reports filed by a pool of attorneys. 238 These C3P studies attempt to develop

profiles on individual candidates for jury service rather than a profile of an entire community. 239

Litigants in large cases might choose to employ mock juries or focus groups in preparing for trial. 240 The mock jury process

can involve laying out a “mini-trial” for mock jurors, preferably residents of the jurisdiction in which the case is to be tried.

The trial simulation might include a mock voir dire. 241 This mini-trial can also include the attorney's abbreviated presentation

of the evidence and a potential charge. 242 A less time-consuming and less expensive method involves the employment of a

focus group. 243 An attorney might formally introduce his client to the focus group, give the group a brief summary of the case,

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and then allow the group's members to ask questions about the case and the client. 244 The attorney can test the focus group or

mock jury for its receptiveness to certain themes that he or she might stress at trial. 245

Furthermore, in more complex cases, an attorney might employ a “shadow” or “mirror” jury to aid in the actual jury

selection. 246 The members of a shadow or mirror jury sit in the courtroom during the voir dire examination. 247 The members

of the shadow jury then present the attorneys with their impressions of the voir dire examination. 248 Except in very complex

cases, jury selection in federal court rarely takes more than a few hours. For this reason, the shadow jury is not as much an aid

in jury selection in federal court as it is *439 in the ongoing prosecution of a case. Some shadow juries are employed for the

entire case and discuss each day's testimony with the lawyers. 249

The increased emphasis on jury research has also seen an expansion in the number of jury selection specialists. 250 Litigants

employ these specialists to sit in the courtroom during voir dire and assist in the examination process and in the execution of

peremptory strikes. Two commentators, however, warn about the objectivity of such specialists: “Whether working for free or

for fee, the [consulting] scientist will tend to identify with the process and develop a commitment that transcends disinterested

concern to test the [attorneys'] tactics rigorously.” 251

Finally, litigants in some cases undertake significant investigations of individual panelists. Prior to jury selection in trials

in some state courts, attorneys will undertake lengthy investigations of venire members. 252 These investigations are not

prevalent in preparing for jury selection in federal court, however, because the attorneys are usually handed the names and juror

questionnaires (if any) of the panelists in a case only shortly before voir dire is to commence.

D. Written Questionnaires During Voir Dire

Some courts will present panelists with written questionnaires that a party prepares and proposes to be handed out prior to oral

voir dire. 253 Some panelists, the argument goes, might be more willing to answer sensitive questions in writing than orally

in front of a panel of peers.

Other courts might be hesitant to permit written questionnaires. One reason for this hesitance is that written questionnaires

might result in a counterproductive “stacking” of juries. 254 As long as a court's oral voir dire is sufficient to reveal potential

biases among panelists, a court's failure to submit a proposed written questionnaire *440 will not be an abuse of its broad

discretion in this area. 255 In the appeal following the Jim Bakker trial, for example, the Fourth Circuit held that the district

court did not abuse its discretion in declining to present the panelists with a questionnaire containing such inquiries as “Do you

believe in miracles?” and “Would you be offended by someone blaming the devil?” 256

VII. CHALLENGES FOR CAUSE

During or immediately following the oral voir dire of the panel, a party isolates those members of the panel whom it does not

want to sit on the jury. The party then often attempts to eliminate the offensive panelist through a challenge for “cause.”

A. Format

Federal law confers upon litigants in civil cases the right to make “challenges for cause or favor.” 257 Under this terminology,

a panelist who does not meet the statutory criteria for jury service is subject to a challenge for “cause,” and a biased panelist

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evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” 510 If the district court itself

participated in the voir dire process, a reviewing court may accord even greater weight to the district court's findings. 511

To achieve review of an adverse ruling by the district court, a litigant raising a Batson challenge must preserve error. The burden

of creating a record of relevant facts falls on the party making the Batson challenge. 512 For example, if the trial court declines

to find *474 that a prima facie case of race discrimination has been established, the objecting party must make a record as

to the racial composition of the panel and the race of struck panelists. 513 A record of names of struck panelists, rather than a

record of their actual racial affiliations, is insufficient. 514

IX. CONCLUSION

The recent arrival of Batson in the civil context serves to add yet another procedural aspect of jury selection that is subject to

nonuniform application among courts. With the broad discretion afforded federal district courts in administering jury selection,

there are few fixed stars to guide a litigant unfamiliar with a particular court's practices. The federal courts have created fairly

uniform methods of composing venires under the Jury Selection and Service Act. The relevant statute and cases have fairly

delineated the grounds on which an attorney might successfully base a challenge for cause, and courts, ever fearful of runs on

the jury, tend to construe these grounds strictly. Case law sets minimum standards for voir dire examination by a court and

limits questioning by courts and attorneys to some degree. The Supreme Court's Edmonson decision imposes an across-the-

board constitutional limitation on the use of peremptory challenges in civil cases.

The nuts and bolts of jury selection, however, have been left to each court's discretion. The individual judge may or may not

allow the attorneys to conduct voir dire examination. The scope of the voir dire examination that a judge performs or permits

is left largely to his or her discretion. Courts have various methods of equalizing peremptory strikes in multiparty litigation--

methods that are also subject to review only for abuses of discretion. Finally, even the method of physically empaneling a jury

varies from court to court.

Before commencing jury selection in an unfamiliar court, an attorney should check the local rules for the district in which he

or she will appear for any applicable rules. The attorney might also determine whether the judge has published a procedures

manual that *475 contains more precise information on the court's jury selection process. The attorney might also turn for

advice to an invaluable resource: his or her colleagues.

Some preliminary investigation is necessary. If jury selection is, as most experienced trial attorneys believe, not strictly a

guessing game, an attorney's failure to understand a court's method of selecting a jury could be devastating to his or her

prosecution of a case.

Footnotes

Note1. Copyright (c) 1992 by David Hittner and Eric J.R. Nichols. All Rights Reserved to Authors.

a1 David Hittner: United States District Judge, Southern District of Texas; J.D. 1964, New York University School of Law; B.S.

1961, New York University.

aa1 Eric J.R. Nichols: Assistant United States Attorney, Southern District of Texas; J.D. 1989, University of Texas School of

Law; B.A. 1985, University of Virginia.

1 See Eugene I. Pavalon, Jury Selection Theories: Art? Science? Guessing Game?, TRIAL, June 1987, at 26.

2 476 U.S. 79 (1986).

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201 Id.

202 Id.

203 See STARR & MCCORMICK, supra note 105, §§ 12.1-12.5.5, at 340-41; VINSON, supra note 199, § 4-4(B), at 87-88.

204 See Jones, Voir Dire and Jury Selection: Strategies for Success, TRIAL, Sept. 1986, at 60, 62.

205 See ANN FAGAN GINGER, JURY SELECTION IN CIVIL AND CRIMINAL TRIALS § 8.56 (2d ed. 1984); STARR &

MCCORMICK, supra note 105, § 10.2, at 278; Herman, supra note 116, at 80; Pavalon, supra note 1, at 28; TOTTENHAM,

supra note 191, at 58.

206 See id.

207 See Pavalon, supra note 1, at 28 (citing Nizer, The Art of the Jury Trial, 32 CORNELL L.Q. 59, 62 (1946)).

208 See STARR & MCCORMICK, supra note 105, § 10.3.1, at 292.

209 See Jones, supra note 204, at 63; Sonya S. Urquhart, Voir Dire: When Prospective Jurors Speak, Do You Listen?, TRIAL,

NOV. 1987, at 106.

210 See id.

211 See, e.g., VINSON, supra note 199, § 6-1, at 126-27.

212 See Samuel G. Isaacs, Evaluating the Panel: Understanding Implied and Nonverbal Communication, TRIAL, June 1987, at

21; Pierce, supra note 184, at 172.

213 See id.

214 See id.

215 See, e.g., Jones, supra note 204, at 64; Lees-Haley, Psychology of Jury Selection, 28 RES GESTAE 650, 650 (June 1985).

216 STARR & MCCORMICK, supra note 105, §§ 11.0-14.10, at 319-420.

217 See id. § 14.2.7, at 386-87; Isaacs, supra note 212, at 21.

218 See VINSON, supra note 199, § 7-3, at 163-66; Isaacs, supra note 212, at 21, 23; Pierce, supra note 184, at 172-73.

219 See Herman, supra note 116, at 79.

220 See id.

221 See STARR & MCCORMICK, supra note 105, § 14.2.6, at 384.

222 See Frederick, Effective Voir Dire, supra note 180, at 66; Jones, supra note 204, at 62.

223 See Jones, supra note 204, at 62.

224 See id.

225 See Pavalon, supra note 1, at 28.

226 See id.

227 See id. at 28-29.

228 See id. at 28.

229 See, e.g., Margaret Covington, Use of Expert Assistance in Jury Selection, CASE & COM., July-Aug. 1985, at 20, 20.

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230 See generally STARR & MCCORMICK, supra note 105, §§ 5.0-5.2.3, at 115-24 (describing the uses of community attitude

assessments and the different ways to conduct such assessments); VINSON, supra note 199, § 9-5; Jeffrey T. Frederick, Using

Juror Surveys to Solve Problems at Trial, FOR THE DEF., Aug. 1987, at 8, 8 [hereinafter Frederick, Juror Surveys].

231 See Frederick, Juror Surveys, supra note 230, at 8.

232 See, e.g., Lees-Haley, supra note 215, at 650.

233 See Frederick, Juror Surveys, supra note 230, at 10-12.

234 See, e.g., id. at 9.

235 See, e.g., Covington, supra note 229, at 20.

236 See, Pavalon, supra note 1, at 28.

237 See id.

238 See Lees-Haley, supra note 215, at 651.

239 Id. (emphasis added).

240 See, e.g., VINSON, supra note 199, § 9-6(A); Pavalon, supra note 1, at 29.

241 See STARR & MCCORMICK, supra note 105, § 6.1, at 176.

242 See Jones, supra note 204, at 61.

243 See id. at 60-61.

244 See id.

245 See Frederick, Juror Surveys, supra note 230, at 11-12.

246 See Pavalon, supra note 1, at 29.

247 See id.

248 See id.

249 See id.

250 See id.; Pierce, supra note 184.

251 Bermant & Shapard, supra note 104, at 4.

252 See generally STARR & MCCORMICK, supra note 105, §§ 4.0-4.3, at 89-114 (discussing how to conduct and evaluate

pretrial investigations of jurors); Covington, supra note 229, at 22.

253 See Delving Into the Jurors' Minds, NAT'L L.J., Jan. 21, 1991, at 1, 1.

254 Id. at 23.

255 See id.

256 United States v. Bakker, 925 F.2d 728, 733-34 (4th Cir. 1991).

257 28 U.S.C. § 1870 (1988).

258 9 WRIGHT & MILLER, supra note 44, § 2483, at 471-72.