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Landmark Organization10/13/2005
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Appellant, Landmark Organization, L.P., appeals from the judgment of the trial court in favor of appellee, Delphini Construction Company, in three issues: (1) the trial court committed reversible error by allowing the case to continue when a juror failed to appear on time on the second day of the trial; (2) the trial court erred in its calculation of prejudgment interest; and (3) the trial court erred in its calculation of postjudgment interest. We affirm.
Background
This appeal originated as a claim for breach of contract and quantum meruit. Landmark, a design builder, was the general contractor in the construction of two military housing projects. Delphini, a roofing contractor, entered into a subcontract with Landmark to furnish the labor, materials, and equipment necessary for the roofing, gutters and downspouts for the projects.
Landmark was allegedly dissatisfied with the work performed by Delphini and eventually informed Delphini it was terminating the contract. Delphini then sued for breach of contract and quantum meruit, alleging that Landmark's mismanagement made it impossible for Delphini to perform.
The trial began on April 5, 2004, with a six-member jury. On the morning of the second day of trial, one of the jurors failed to appear. A bailiff was eventually sent to the juror's home, but the juror could not be found. Delphini moved to go forward with the five remaining jurors; Landmark objected and moved for a mistrial. The trial judge denied the motion, and trial proceeded with the five-member jury. After several minutes of testimony regarding attorneys' fees, the absent juror appeared and informed the court he had overslept. The court then instructed the jury to disregard the testimony heard during the missing juror's absence and re-started the trial with all six jurors. The witness still on the stand repeated the testimony he had given in the missing juror's absence. Following the conclusion of the evidence, the jury unanimously found in favor of Delphini on all issues. The court awarded Delphini damages, attorneys' fees, prejudgment interest and postjudgment interest.
Absent Juror
By its first issue, Landmark claims that the trial court committed incurable reversible error when it denied Landmark's motion for mistrial and allowed the trial to continue with only five jurors in the absence of any evidence that the sixth juror was disabled.
A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Texas law requires that county court juries be composed of six members. See TEX. CONST. art. V § 17; TEX. GOV'T CODE ANN.§25.0007 (Vernon 2004). A trial can be heard with less than a full complement of jurors if a member of the jury is disabled from sitting. See McDaniel v. Yarbrough, 898 S.W.2d 251, 252-53 (Tex. 1995). Juror disability may arise through a physical or mental incapacity that is more significant than simple mental distress. See id. at 253. The trial court has broad discretion in determining whether a juror is disabled. Id.
Landmark argues that the trial court clearly erred and abused its discretion in allowing the trial to continue because there was no evidence that the missing juror was disabled. In support of its argument, Landmark cites the McDaniel opinion, in which the supreme court reversed the trial court's dismissal of a juror as disabled when the juror claimed that inclement weather would keep her from returning to the courthouse. Id. at 251-52. The supreme court held that
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