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Haygood v. Chandler10/31/2003
ly nominal damages are awarded, a claimant may recover exemplary damages if the claimant establishes by clear and convincing evidence that the harm suffered results from malice. Tex. Civ. Prac. & Rem. Code Ann. ยง 41.004(b). It is also well-settled at common law that the recovery of actual damages is a prerequisite to receiving exemplary damages. Nabours v. Longview Savings & Loan Ass'n, 700 S.W.2d 901, 903 (Tex. 1985). Exemplary damages must be contingent on a finding of actual damage because actual damage is a necessary element of the underlying tort upon which the exemplary damages are to be based. Id. at 904.
As a matter of law, the Association's argument cannot pass muster because the jury failed to award any actual damages; therefore, it was not entitled to punitive damages, even absent waiver of the issue. The Association's fourth issue, as it relates to any error in the charge, is overruled.
Trial Court's Response to Jury Question
The Association also complains that the trial court erred when it "misled the jury and gave the jury improper instructions" in a response to a question from the jury after it had begun deliberations. The jurors asked the trial court in writing, "If one member voted no on question #1, can he continue to vote on the other questions, example -questions 2, 3, 4, 5, and 6." The trial court responded in writing, "Each juror can vote on each question being considered."
The Association contends that the trial court's answer to the jury's question was error because the instructions in the charge "clearly state that if a juror answers "NO" to question No. 1 (finding Randy Chandler guilty of malicious prosecution) `then do not answer the remaining questions.'" Therefore, the Association argues, the court misled jurors into believing that they could award punitive damages even if the individual juror voted against the finding of malicious prosecution. We disagree.
Because the Association failed to object to the trial court's response to the jury's question, it has waived any argument it may have about the response. Tex. R. Civ. P. 272; Tex. R. App. P. 33.1(a); see also George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314, 317-18 (Tex. App.- Houston [1st Dist.] 1983, no writ) (failure to object to court's further communications and instructions to jury constituted waiver).
Even if the Association had not waived the issue, its argument would still fail. Rule 286 of the Texas Rules of Civil Procedure allows the jury to request further instructions from the court and for the court to communicate those instructions "in conformity with the rules relating to the charge." Tex. R. Civ. P. 286. When reaching a verdict, the same ten members of a jury of twelve must give the same answers to each question. Tex. R. Civ. P. 292.
Subsumed within the Association's argument is the assumption that a juror who cast a vote against the finding of malicious prosecution later changed his mind and voted for an award of punitive damages. We agree that such a scenario could possibly constitute juror misconduct because in such an instance, the same ten jurors would not have given the same answers to each question. However, in the instant case, there is no evidence of any misconduct. According to the charge received by the court, the same ten jurors voted the same way on each question. Two jurors did not agree with the other ten, and the two dissenters apparently "vote on each question being considered." The supplemental instruction was correct and in conformity with the rules relating to the charge. See Tex. R. Civ. P. 286. The Association's fourth issue is overruled.
Review of Discovery Rulings
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