Roberto Alonzo and New Prime, Inc. v. Christine John and Christopher Lewis

Supreme Court of Texas
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No. 22-0521
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Roberto Alonzo and New Prime, Inc.,
Petitioners,

v.

Christine John and Christopher Lewis,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM

Justice Lehrmann did not participate in the decision.

Probable harm from improper jury argument is presumptively
remediable by retraction or curative instruction. Incurable argument is
rare, but counsel in this personal-injury case crossed that line with an
uninvited accusation of discriminatory animus. We therefore reverse
and remand for a new trial.
Christine John and Christopher Lewis were injured in a rear-end
collision involving a tractor-trailer driven by Roberto Alonzo. In the
ensuing personal-injury suit, the plaintiffs sought noneconomic
damages and exemplary damages. Alonzo and his employer, New
Prime, Inc., conceded liability for Alonzo’s negligence, leaving damages
as the only issue at trial. The jury awarded $12 million to John and
$450,000 to Lewis for physical pain and mental anguish, but no
exemplary damages were assessed because the jury failed to
unanimously answer a predicate question. The trial court rendered
judgment on the jury’s verdict.
Alonzo and New Prime sought a new trial on various grounds,
including that plaintiffs’ counsel inflamed the jury with an unprovoked
accusation of race and gender bias. The motion was overruled by
operation of law, and the court of appeals affirmed the judgment. 647
S.W.3d 764, 770-71 (Tex. App.—Houston [14th Dist.] 2022). Although a
new trial is “strong medicine,” the remedy is warranted on this record.
See In re Rudolph Auto., LLC, 674 S.W.3d 289, 296 (Tex. 2023).
Harm from improper jury argument is usually curable by a
“retraction of the argument or instruction from the court.” Living Ctrs.
of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). But in rare
instances, argument may be “so inflammatory and prejudicial” that its
harmfulness is incurable. Tex. Emp. Ins. Ass’n v. Haywood, 266 S.W.2d
856, 859 (Tex. 1954). Whether that threshold has been breached
depends on “the amount of harm from the argument.” Living Ctrs., 256
S.W.3d at 681. The test is “whether the argument, considered in its
proper setting, was reasonably calculated to cause such prejudice to the
opposing litigant that a withdrawal by counsel or an instruction by the
court, or both, could not eliminate the probability that it resulted in an
improper verdict.” Id. (quoting Haywood, 266 S.W.2d at 858). This
inquiry requires an evaluation of the case as a whole—beginning with
voir dire and ending with closing argument—and includes an
assessment of whether the complaining party invited or provoked the

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argument. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex.
1979). Here, Alonzo and New Prime have met the high burden of
demonstrating that the injection of new and inflammatory matters into
the case through argument was incurably harmful.
Plaintiffs’ counsel first introduced the concept of race and gender
bias when questioning potential jurors about their willingness to award
as much as $12 million for “invisible” injuries. In response to a
venireperson’s comment that a man she had trained “ended up making
three times more” money than her for the same job, counsel remarked:
“Well, it’s funny you bring that up because on my fear list . . . that I write
before I talk to every jury panel, I have on here [that] there are studies
where wom[e]n are awarded for the same injuries less money than men.”
In questioning another panel member about whether an injured party’s
income should factor into determining pain and suffering, counsel again
noted, “because it goes back to what we talked about, you know, like a
woman—there’s studies that show a woman—her damages are usually
less than a man for the same injuries, and sometimes it’s like if someone
is—does it matter if my client is African-American?” Following a
collective response of “no,” voir dire concluded without further comment
on race and gender disparities.
There is nothing inherently improper in this line of questioning
about potential juror bias. But with the jury having been sensitized to
concerns about discriminatory damage awards, plaintiffs’ counsel
circled back to the topic during closing argument with a pointed attack
on opposing counsel.
Repeating the refrain that Alonzo and New Prime “just want a
discount” on damages, counsel predicted that, in lieu of the $10 to $12
million John was seeking in compensatory damages, defense counsel

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would request an award of “like 4 or 5 million dollars.” He then urged
the jury to reject such a “discount” “because that’s the cost of doing
business for them” and “[p]artial justice is no justice.” Before yielding
the floor, counsel concluded by asserting, “[T]hey want to discount, and
I don’t think you have to discount a human being’s life. And I ask you
to award the full damages.” But when defense counsel instead asked
the jury to award John no more than $250,000, plaintiffs’ counsel
retorted in rebuttal:
We don’t want the 4 or 5 million dollars. And now we
certainly don’t want this $250,000.

....

We don’t want their 4 or 5 million dollars. That’s not fair.
Because it’s a woman, she should get less money? Because
she’s African American, she should get less money? No.
We’re going to fight because we believe in the jury system.
(Emphasis added.) This prompted defense counsel to object that
“personally attacking counsel is improper.” See TEX. R. CIV. P. 269(e).
Addressing the matter at a bench conference, the court asked
plaintiffs’ counsel “to limit [his] argument to the evidence admitted in
this case” and to refrain from “attack[ing] opposing counsel personally.”
In admonishing counsel, the judge explained: “[M]y bigger issue is that
you interjected the fact that she was African-American and she’s a
woman; and I didn’t hear anything on the other side referring to that as
a basis for denying them recovery.” At that point, defense counsel moved
for a mistrial “based upon the racial bias” the court had identified, but
the motion was overruled.
Although no retraction or curative instruction was requested or
given, none was required because the argument “struck at the heart of

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the jury trial system, was designed to turn the jury against opposing
counsel and his clients, and was incurable.” See Living Ctrs., 256 S.W.3d
at 682. An appeal to racial prejudice is a paradigmatic example of
incurable jury argument. See id. at 681. Such a tactic strikes at the
“fairness and equality of justice” by inducing the jury to consider a
party’s race as a factor in reaching its decision. Id. “[N]o court of justice
ought for a moment to tolerate” such an argument because cases should
always be tried and determined on the facts proven. Moss v. Sanger, 12
S.W. 619, 620 (Tex. 1889); see also United Rentals N. Am., Inc. v. Evans,
668 S.W.3d 627, 631 (Tex. 2023) (upholding our judiciary’s “obligation to
provide race-neutral proceedings”); Living Ctrs., 256 S.W.3d at 681
(“Trial courts are not required to wait for objections before correcting
improper argument, but should guard against such conduct and correct
it sua sponte.” (citing TEX. R. CIV. P. 269(g))).
This case presents the flip side of that coin. Recognizing that
racial prejudice and discrimination are opprobrious in a civilized society,
a natural human instinct is to recoil and repudiate it. Pointing the
finger at opposing counsel results in palpable harm by undermining the
basic premise that a trial provides impartial and equal justice. See
Living Ctrs., 256 S.W.3d at 681. Although “[n]ot all personally critical
comments concerning opposing counsel are incurable,” we have
condemned a functionally analogous attack on opposing counsel as
overstepping the mark. Id. at 681-82.
In Living Centers, a nursing-home resident died after being
dropped by one of the nursing home’s employees. Id. at 679. In the
heirs’ wrongful-death suit, plaintiffs’ counsel equated opposing counsel’s
argument for a lesser damages award with atrocities committed against
the elderly and infirm in Nazi Germany’s World War II T-4 Project. Id.

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at 680. The improper argument was incurable because it “was designed
to incite passions of the jury and turn the jurors against defense counsel
for doing what lawyers are ethically bound to do: advocate clients’
interests within the bounds of law.” Id. at 682. In other words, the
nursing home’s attorney was “entitled to urge a smaller damages
amount than the plaintiffs sought without being painted as modern-day
equivalents of T-4 Project operators.” Id. So too here.
Alonzo and New Prime were entitled to suggest a smaller
damages amount than John sought without being accused of invidious
discrimination. We are not persuaded by the court of appeals’ conclusion
that plaintiffs’ counsel merely asked the jury to reject implicit bias in
their own deliberations. See 647 S.W.3d at 785. After repeatedly stating
that Alonzo and New Prime wanted a “discount,” counsel told the jury,
“We don’t want the 4 or 5 million dollars. And now we certainly don’t
want this $250,000,” which he then followed up with an accusation:
“Because it’s a woman, she should get less money? Because she’s African
American, she should get less money?” One need not be a linguistic
expert to understand the subtext of this argument. Counsel pointedly
insinuated that Alonzo and New Prime sought a lower damages amount
because John is a black woman. That is not a request for the jury to set
aside an implicit bias; that is a charge of race and gender discrimination.
This inflammatory argument was uninvited and unprovoked. At
no point did the defendants or their counsel indicate any prejudice
against John based on her race or gender, nor did they urge the jury to
award her less money because of these immutable characteristics. In
fact, the topic of whether John’s race and gender should affect her
damages award started and ended with plaintiffs’ counsel. Extreme and
unsupported personal attacks on the opposition “damage the judicial

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system itself” by striking at the impartiality, equality, and fairness of
justice rendered by the court. See Living Ctrs., 256 S.W.3d at 681.
Courts should, and do, “countenance very little tolerance of such
arguments.” Id.; see TEX. R. CIV. P. 269(e) (“Mere personal criticism by
counsel upon each other shall be avoided, and when indulged in shall be
promptly corrected as a contempt of court.”).
Accordingly, without hearing oral argument, we grant the
petition for review, reverse the court of appeals’ judgment, and remand
the case to the trial court for further proceedings. 1 See TEX. R. APP. P.
59.1.

OPINION DELIVERED: May 10, 2024

1 We do not reach Alonzo and New Prime’s remaining issues, which

include complaints about unsubstantiated anchoring. Last term, the Court
clarified that claimants cannot rely on unsubstantiated anchoring to sustain a
damages award. See Gregory v. Chohan, 670 S.W.3d 546, 558 (Tex. 2023)
(plurality op.) (“Unsubstantiated anchors . . . have nothing to do with the
emotional injuries suffered by the plaintiff and cannot rationally connect the
extent of the injuries to the amount awarded.”); id. at 569 (Devine, J.,
concurring) (“[Claimants] cannot engage in ‘unsubstantiated anchoring’ by
asking fact-finders to rely on evidence that has nothing to do with the pain or
anguish they’ve suffered.”); id. at 576 (Bland, J., concurring) (“Counsel’s
unchecked directives to the jury to employ mental anguish measurements
based on standards that depart from the evidence render the verdict legally
infirm under long-standing common law.”). In this case, plaintiffs’ counsel’s
comparisons to a van Gogh painting worth $90 million, multi-million-dollar
athlete and CEO salaries, and the value of New Prime’s trucking fleet and
warehouses are of the same ilk as those disapproved in Chohan.

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