With a factual background that includes an imprisoned former state district judge, a strange jury note that led to a hasty $3 million settlement in that judge’s court, and a corporate defendant that later proved that it settled as a result of fraud, Ford Motor v. Ezequiel Castillo is becoming the stuff of legend for modern Texas Supreme Court decisions.
Perhaps never before have so many enticing facts been packed into an 11-page per curiam opinion—the unsigned and normally unremarkable decisions the high court reserves for rulings it believes should have no precedential value.
But the facts of Castillo, and how the high court interpreted them, are equally remarkable, according to David Schenck and David Gunn, two experienced appellate lawyers who represented opposing parties at the high court.
The Supreme Court concluded in its decision that the circumstantial evidence in the case was legally sufficient to support the jury’s finding that Ford Motor Co. agreed to a $3 million settlement that was “procured by fraud.”
“There are at least two things that are interesting about this case. One is that facts matter; you can’t get away from them. But the legal issue involved here is good, old-fashioned, sufficiency-of-the-evidence review,” said Schenk, a member in Dykema in Dallas, who represented Ford at the high court.
“The opinion didn’t tell the whole story. Facts do matter, but they left out the facts that matter the most,” said Gunn, a partner in Houston’s Beck Redden, who represented the plaintiffs at the high court. He said he will file a motion July 7 asking the high court to reconsider its decision, which he believes poured out his clients’ recovery entirely without evidence.
The background to Castillo is as follows, according to the June 20 decision.
In 2004 Ezequiel Castillo and other occupants of his Ford Explorer sued Ford Motor Co. for injuries they received in a rollover accident. The presiding judge in the case was Abel C. Limas, former judge of the 404th District Court in Cameron County, who, as the opinion notes, is currently serving a 72-month sentence in federal prison for “taking bribes from attorneys in exchange for favorable rulings.”
After a four-week trial, during which the parties had discussed a possible settlement, a jury note was sent to Limas inquiring, “What is the maximum amount that can be awarded?” Ford then “quickly agreed to settle the case for $3 million” before the jury reached a verdict, according to the decision.
Ford’s attorneys were able to speak with 11 members of the jury at the conclusion of the trial—all except one, who left the courthouse without speaking to them. Ford learned that the jury had not been discussing damages before the settlement and did not know that the missing juror had sent the note to Limas. Ford refused to pay the settlement, and the plaintiffs sued Ford for breach of contract. In its defense , Ford asserted fraudulent inducement and unilateral and mutual mistake, according to the decision.
Limas prohibited Ford from conducting discovery or offering evidence of the jury’s deliberations—a decision that the Texas Supreme Court ultimately reversed in 2009, after finding “circumstantial evidence indicated outside influence,” according to the high court’s decision.
On remand, a new jury and new judge heard testimony from the jurors who heard the original trial, including from the missing juror. Several jurors testified that the note was not sent by unanimous agreement and that the missing juror “kept trying to bring up the damages issue on her own, and sent the note against their specific requests that she not do so,” according to the decision.
The missing juror testified that she could not recall any of the pertinent details of the trial or the jury deliberations, why she sent the note in question or why she had left the courtroom quickly after the settlement was announced. The missing juror was also asked to explain a call from her cellphone during the trial to the “purported cellphone of attorney and State Representative Jim Solis.” Solis, as the decision notes, is serving a 47-month federal prison term after “confessing his role” in Limas’ “extortion scheme”, wherein Solis would operate as a middleman between Limas and the attorneys trying cases in his court.
The second jury found the settlement agreement invalid because of fraudulent inducement and mutual mistake, rendering a take-nothing verdict for the defense—a decision Corpus Christi’s Thirteenth Court of Appeals reversed after concluding that the evidence was legally insufficient to support a jury verdict.
Ford appealed the decision to the high court, the opinion continues, which found that the second jury in the case “could have reasonably inferred collusion” between the missing juror and an individual.
“Because the evidence is legally sufficient to support the jury’s verdict, and Castillo has not challenged the factual sufficiency of the evidence, we grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and reinstate the trial court’s,” the decision states.
Factual Sufficiency Review
“You can debate how important the phone call to Rep. Solis is, or a juror who can’t remember where she was during jury service. But the real question is whether that second jury could reasonably infer collusion. And they get to look at the evidence and draw reasonable inferences from them and draw determinations,” Schenck said.
“That’s what the second jury was asked and answered ‘yes’ to. And that had to be proved at the second trial,” Schencksaid, noting that the high court’s per curiam decision was remarkable because it was “extremely detailed.”
But Gunn said the decision was remarkable because it wasn’t detailed enough: There was no evidence of collusion in the case; the note was not the result of a rogue juror, as other jurors seemed to favor the plaintiff’s position; and Ford had no proof that Solis had anything to do with the trial.
Gunn’s clients pointed out all of those arguments in a response brief to the high court, but they were not noted in the per curiam decision.
“There is no evidence connecting Jim Solis—whoever he is—to this case,” Gunn said. “Look at the court of appeals’ decision in this case. They actually pointed this out,” Gunn said, noting the Thirteenth Court’s 2013 decision, which included a footnote that states: “Although Ford’s attorney claimed that the number belonged to Jim Solis, no evidence was presented establishing the owner of the phone number. Furthermore, there was no other mention of Solis or evidence presented of how he may have been involved in this case.”
Gunn also noted that the Thirteenth Court ultimately concluded that Ford “assumed the risk” by agreeing to settle with limited knowledge and before a jury had rendered a verdict in the case. He even included the transcript of a Texas Supreme Court advisory committee meeting from 2009, in which judges and lawyers discussed the facts of the Castillo trial and reached the same conclusions as the Thirteenth Court: that Ford lawyers had “assumed the risk” by settling the case before the trial concluded.
“It’s a large committee with very experienced judges and professors and lawyers. And they discussed this case at great length. You had a lot of very experienced judges and lawyers saying: ‘You cannot rely on that kind of note,’” Gunn said. “But you wouldn’t know any of this from the Supreme Court opinion.”
Gunn is concerned that the high court decided the case without oral argument, and he believes that the high court should rehear it, at least so the justices can get another look at the conclusions of their own advisory committee.
“I’m concerned that the Supreme Court didn’t see that,” Gunn said. “The judges are busy, and there is not enough time to read every brief. But, in this case, it’s critical to read the transcript of the advisory committee.”
Schenck said that the high court did what it had to do in the case.
“It’s error correction coming out of a court of appeals; it needed to be done,” Schenk said. “And credit to David Gunn for putting on the best arguments he could. But the facts speak for themselves.”
Chip Lewis, a Houston criminal defense solo who represents Limas, noted that Limas pleaded guilty to racketeering in 2011 and cooperated fully with federal prosecutors.
“I can tell you, as part of the unprecedented cooperation of Limas, he turned over useful, candid information” to federal prosecutors, Lewis said, including information about the trial Limas presided over in the Castillo case.
“It was one of many that was discussed with the federal government,” Lewis said. “But what was done with it after that … I don’t know.”
Mervyn Mosbacker of Houston’s The Law Office of Mervyn Mosbacker, who represents Solis, did not return a call for comment.