Steve Robert Hanzi v. Terry Leigh Shelton and Darold Shelton--Appeal from 245th District Court of Harris County

Reversed and Remanded and Memorandum Opinion filed September 30, 2003

Reversed and Remanded and Memorandum Opinion filed September 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01151-CV

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STEVE ROBERT HANZI, Appellant

V.

TERRY LEIGH SHELTON AND DAROLD SHELTON, Appellees

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On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 00-51292

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M E M O R A N D U M O P I N I O N

In this appeal from a post-divorce suit for partition, appellant, Steve Hanzi, complains the trial court erred in failing to send admitted exhibits to the jury during its deliberation and this error was harmful, warranting a new trial. We reverse and remand this case for a new trial.

 

Background facts

Appellant filed suit alleging his ex-wife, Terry Shelton ( Shelton ), failed to disclose property she owned prior to their divorce.[1] He claimed Shelton had beneficial ownership of two lots in Tennessee held in the name of her brother, Tim Johnson. Johnson deeded the land to Shelton less than four months after the divorce. At trial, Johnson s finances, the plausibility of his $25,000 cash down payment on the land, and tracing the source of sixteen monthly payments to the seller and noteholder of the lots were all disputed. The jury found the Tennessee lots were not marital property at the time of the divorce, and judgment was entered in favor of appellees.

In a pretrial conference, Johnson s bank records were admitted into evidence. Initially, Johnson s deposition was offered as an exhibit in a trial evidence notebook; however, the court excluded the deposition transcript and admitted only its exhibits, including Johnson s bank records. Apparently, the trial evidence notebook that should have contained Johnson s admitted bank records went to the jury room with nothing behind the tab where they were supposed to be located. After the trial court received the jury s verdict and dismissed the jury, appellees counsel noticed the admitted exhibits had been excluded from the evidence notebooks. As a result, he advised the court that these admitted exhibits were not in the jury room during deliberation. Appellant filed a motion for new trial, we find he presented the issue to the trial court, preserving it for our review. Tex. R. App. P. 33.1 (a). The trial court denied the motion for new trial by written order several days after it entered judgment.

Analysis

Texas Rule of Civil Procedure 281 provides: The jury may, and on request shall, take with them in their retirement the charges and instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused. Tex. R. Civ. P. 281. Pursuant to the Texas Supreme Court, Rule 281 is mandatory; the trial court is required to send all exhibits to the jury room even in the absence of a request by jurors or counsel. See First Employees Ins. Co. v. Skinner, 646 S.W.2d 170, 172 (Tex.1983). However, any error in failing to send exhibits to the jury room during deliberations does not call for reversal unless the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); Tex. R. Civ. P. 281.

In this case, the reporter s record clearly demonstrates the admitted exhibits were not included in the evidence sent to the jury during deliberation. This was error. Thus, we analyze whether this error probably caused the rendition of an improper judgment.

To guide our analysis, appellant cites two cases, both of which found that failing to send admitted exhibits to the jury room was harmless error. In Cruz v. Hinojosa, 12 S.W.3d 545, 550 (Tex. App. San Antonio 1999, pet. denied) a products liability action, the court failed to send to the jury room technical drawings and photographs of an alternative design for a golf cart. Because these exhibits were cumulative of testimony before the jury, the court ruled their absence from the jury room was harmless error. In Skinner, the court considered the entire record to determine whether the information in the exhibits was disputed and whether the jury had examined the exhibits when they were admitted. Skinner, 646 S.W.2d at 173. Because the jury considered the exhibits during trial, the court ruled their absence from jury deliberation was harmless. Id. In addition, if written evidence is cumulative of substantially undisputed facts, its exclusion from the jury room is harmless error. See Dallas Ry. & T. Co. v. Orr, 147 Tex. 383, 391, 215 S.W.2d 862, 866 67 (1948).

In appellant s case, the bank records were never published to the jury, nor were their contents cumulative of trial testimony. At trial, there was no direct testimony on behalf of Johnson s bank regarding records tracing the monies used to make the impugned monthly payments or the down payment for the lots. Moreover, whether or not Johnson (a) had the ability and (b) did make the monthly payments and sizable cash down payment for the lots were two facts critical to appellant s case. Without these admitted bank records in deliberation, the jury lacked important written evidence relied on by appellant to challenge Johnson s oral testimony surrounding his financial circumstances and purchase of the real estate.

In affidavits attached to appellant s motion for new trial, four jurors testified that they would have changed their vote if the missing exhibits were in the jury room. Compounded by the fact that Johnson s credibility and his finances were at the crux of the factual disputes to be resolved by the jury, and the importance of his bank records to appellant s case, we find the absence of Johnson s bank records from the jury s deliberation was harmful, calculated to cause an improper judgment, and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). Therefore, we reverse the judgment of the trial court and remand this case for a new trial.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed September 30, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] Appellant also sued Darold Shelton, Terry s husband, because he has an interest in the land.