In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-411 CV
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SANDRA N. PONDER, Appellant
V.
COLIN L. HALES, Appellee
Jefferson County, Texas
Trial Cause No. D-175,517
MEMORANDUM OPINION
Sandra N. Ponder sued her former employer, Colin L. Hales, for breach of contract, misrepresentation, fraudulent inducement to enter into a contract, promissory estoppel, assault, battery, intentional infliction of emotional distress, and wrongful termination. The trial court granted partial summary judgment in favor of Hales as to all claims except assault and wrongful termination. At the trial on those two claims, the jury returned a verdict in favor of Hales. The trial court rendered judgment that Ponder take nothing and pay all costs. Ponder appeals.
In issue one, Ponder claims jury misconduct. Ponder's second, third, fourth, and fifth issues assert the evidence was factually insufficient to support the jury's findings. Ponder's sixth, seventh, eighth, and ninth issues challenge the jury's failure to award damages. Because we find no reversible error in the jury voir dire or the jury's findings, we affirm the trial court's judgment.
Jury Misconduct
Ponder claims the presiding juror, in response to the judge's question to the voir dire panel, did not disclose she knew Ponder, and this was jury misconduct. In her affidavit, Ponder avers "I personally know the presiding juror in the captioned lawsuit[.]" Rule 327(a) of the Texas Rules of Civil Procedure provides in part:
When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury . . . or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, . . . or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.
Tex. R. Civ. P. 327(a). Ponder filed a timely motion for new trial in which she asserted her misconduct claim. See Tex. R. Civ. P. 329b(a). Although the motion stated the "claim of jury misconduct is supported by the affidavit of Sandra N. Ponder, to be filed herein," Ponder did not attach any affidavits or supporting documents to the motion. Ponder did not file an affidavit within thirty days of the judgment. See Tex. R. Civ. P. 329b(b). She filed her affidavit after her motion for new trial was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Generally, if a motion for new trial asserting jury misconduct is unaccompanied by proper affidavits or a reasonable excuse for their absence, the trial court does not abuse its discretion in failing to order a new trial. See Clancy v. Zale Corp., 705 S.W.2d 820, 828 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). Furthermore, Ponder has not demonstrated how the failure to disclose -- that the juror and Ponder knew each other -- caused injury to Ponder. See Tex. R. Civ. P. 327(a). Issue one is overruled.
Sufficiency of the Evidence
Ponder argues that the evidence was factually insufficient to support the jury's findings that Hales assaulted her or wrongfully terminated her for a refusal to perform an illegal act. To prevail on a factual sufficiency challenge to an adverse finding on an issue for which the appellant had the burden of proof, the appellant must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). After considering and weighing all the evidence, a court of appeals will set aside the verdict if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). The jury is the sole judge of the credibility of witnesses. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Assault
Ponder challenges the jury's finding that Hales did not assault Ponder after July 20, 2003. (1) The jury was instructed that "[a] person commits an assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative."
Ponder testified that Dr. Hales hired her as a referral clerk in August 1999. She stated the atmosphere at work was very professional during the first three months of her employment. At some point, Hales began wanting to meet with Ponder in his office for forty-five minutes to an hour every morning to discuss his personal life. Hales would hug her and "would slip a kiss in or try to." He would sit close to her on his couch, caress her hands, and put his arm underneath her arm. He would rub himself against her, and she would push away from him. This touching was uninvited and offensive to Ponder. She described other offensive conduct and comments. Ponder stated that the uninvited and unwanted touching occurred every day and continued until she was fired. According to Ponder, she responded repeatedly that she was married and not interested.
Hales provided a different story. He testified that in January 2000, Ponder began giving him a big hug at the beginning and end of each day. He would sit with her on the couch in his office and talk about his problems raising his six children and his depression since his wife's death. He told her he did not want a girlfriend or sex, but wanted a wife. He admitted kissing her on the cheek once, but denied other testimony by Ponder.
Hales stated that in 2000, Ponder informed him that she was not going to marry him. After Hales's state board exam in 2000, he stopped thinking about Ponder and began searching on the internet for a wife. In 2001 he married a Russian woman, Yelena, whom he met over the internet. He had no further romantic interest in Ponder. The jury saw pictures of Ponder at the wedding, as well as at the baby shower for Yelena.
Wendy Tate, a co-worker of Ponder's at Hales's office, testified that there seemed to be a mutual attraction between Hales and Ponder. Tate was under the impression that Ponder was not married. Tate observed that after Hales took his state board exam, the relationship changed. The long meetings between Hales and Ponder ceased. The office staff then began helping Hales find a wife from Russia. After Hales married Yelena, Tate did not notice any further relationship between Hales and Ponder. Although Ponder received special treatment in the beginning, once Hales met Yelena, Ponder was treated similarly to her co-workers.
Terri Miller, another co-worker, stated that there was a four-or-five-month time period after Ponder was hired when Hales and Ponder seemed mutually interested in each other. Miller stated that Ponder would come in to work in the mornings and want to know if Hales was there yet. Ponder would ask Miller to let her know when Hales arrived so that Ponder could hug him. When Hales arrived for work, Ponder would give him a hug and they would go into the office and talk. At the end of the day, Ponder would look for Hales, tell him goodbye, and hug him. Ponder never complained to Miller that Hales was bothering her. Miller observed that once Hales began looking on the internet for a wife, Ponder no longer sought out Hales to hug him. At the time of trial, Miller was still employed with Hales and had been working for him for sixteen years. She said that Ponder was known at the office as "the drama queen."
As the judge of the credibility of the witnesses, the jury reasonably could have believed Hales and not Ponder, and reasonably could have believed only some of the testimony of Miller and Tate. See Golden Eagle Archery, 116 S.W.3d at 761. The jury heard testimony that Hales's conduct toward Ponder changed in 2001 after he married Yelena. The evidence is sufficient to support the jury's finding. The jury's finding that Hales did not assault Ponder after July 20, 2003 was not against the great weight and preponderance of the evidence. We overrule Ponder's second and fourth issues.
Wrongful Termination
In issues three and five, Ponder challenges the jury's finding that Hales did not fire her solely because she refused to commit an illegal act. Ponder's wrongful termination claim is based on the narrow exception to at-will employment created in Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). This exception makes it unlawful to terminate an employee if the sole reason for the termination is her refusal to perform an illegal act. Id. at 735. Ponder claims she was discharged for the sole reason that she refused to commit the illegal act of prostitution. The jury was instructed in the charge that a person commits prostitution if the person knowingly (1) "offers to engage, agrees to engage, or engages in sexual conduct for a fee;" or (2) "solicits another in a public place to engage in sexual conduct for hire."
According to Ponder, Hales asked her to have sex with him in exchange for things of value. He offered to pay for her son's college expenses and to buy her a new car. He told her she would not have to care for his six children or work. She testified he told her he loved her and that he would give her these things if she would have sex with him. However, during a portion of her deposition, which was played for the jury during trial, she was asked whether she had been asked to do anything improper, and she replied, "I don't recall at this time." She explained to the jury that she was fired in June 2005. She had become ill in March 2005, and Hales, who was also her family physician, treated her with antibiotics. Hales referred her to an ear, nose, and throat specialist after her condition worsened. According to Ponder, the specialist suggested that she see an infectious disease specialist and Ponder informed him that Hales was planning on referring her depending on the outcome of the examination. She went back to Hales's office, used his phone while in his presence, called an infectious disease specialist, filled out the referral form in front of Hales, wrote "STAT" across the top of the form as instructed by Hales, and obtained an appointment with the infectious disease specialist. Ponder testified that the reason Hales gave for terminating her was because she had referred herself to the infectious disease specialist without Hales's authorization.
Hales testified he told Ponder that he wanted to marry her. He never talked to her about having sex or offered her anything for sex. He told her he would treat her son as his own and provide a college fund for him. Hales testified that he terminated Ponder for referring herself to a specialist without his authorization. He treated Ponder for a respiratory infection in 2005, prescribed her antibiotics, and then referred her to an ear, nose, and throat specialist after her condition did not improve. The specialist examined Ponder and sent Hales a letter regarding his findings and advising Ponder to take an over-the-counter medication. Hales later learned Ponder had seen another doctor, and that she had filled out the referral form to see that doctor without Hales's authorization. When Hales discovered she had referred herself to a doctor, he fired her.
When Ponder filed for unemployment benefits, she was asked to provide a statement as to why she was no longer employed. Her response was, "I was fired because I went to infectious disease doctor and the doctor I worked for didn't refer me to infectious disease doctor. This was the only reason he gave me."
The jury reasonably could have believed Hales's testimony. The jury's finding that Hales did not fire Ponder for the sole reason that she refused to commit an illegal act was not against the great weight and preponderance of the evidence. The evidence is sufficient to support the jury's finding. Issues three and five are overruled.Damages
Ponder's sixth, seventh, eighth, and ninth issues challenge the jury's failure to award damages. The jury was instructed to answer the damages questions only if they answered "yes" to the liability questions. Because the jury answered "no" to questions 1 and 3, the jury did not answer questions 2 and 4. The jury's verdict that Hales was not liable on the assault and wrongful termination claims was supported by sufficient evidence. Therefore, the jury correctly declined to answer the questions on damages. Issues six, seven, eight, and nine are overruled. We affirm the trial court's judgment.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on January 3, 2008
Opinion Delivered May 22, 2008
Before Gaultney, Kreger, and Horton, JJ.
1. Ponder filed suit on July 20, 2005. The trial court took judicial notice that the two-year limitations period applied to Ponder's civil assault claim. Because of the applicable
two-year statute of limitations, the jury question on the assault claim read, "Did Colin L.
Hales commit an assault against Sandra N. Ponder after July 20, 2003?"