Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Johnson) (pdf version of opinion)
(defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim
based on improper juror conduct) (Ford given chance to force jurors to testify under oath to show it was
justified in backing out of settlement agreement because of allegedly misleading message from presiding
The lack of direct evidence about whether the presiding juror was subjected to
outside influence probably prevented Ford from properly presenting its case on
appeal. Accordingly, the trial court’s abuse of discretion in denying discovery was
harmful. See Tex. R. App. P. 44.1(a).
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district
(13-04-00638-CV, 200 SW3d 217, 06-08-06) (Dissent by Errlinda Castillo)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.
Texas Supreme Court Overturns Verdict Based on Nine-Word Note From Foreperson (John Turley's res ipsa loquitur blog)
(with lots of comments posted by others)
Waiting For The Verdict?: Supreme Court of Texas Precludes Jury Impeachment Even In The Absence Of A Verdict (Evidence
Supreme Distrust: Texas High Court Lets Ford Go After Jurors for Mis-Signalling (Jefferson Court Blog)
Integrity of the Jury Process May Permit Discovery in Later Cases: Ford Motor Co. v. Castillo (Supreme Court of Texas Blog)
The Downside of Allowing Jurors to Ask Questions: "What is the maximum amount that can be awarded?" (Juries Blog)
Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009)
Argued February 5, 2008
Justice Johnson delivered the opinion of the Court.
Justice Wainwright filed a concurring opinion.
Ford Motor Company and Ezequiel Castillo, the plaintiff in a products liability action, settled while
the jury was deliberating. The settlement occurred after the presiding juror sent a note to the judge
asking the maximum amount that could be awarded. Based on later discussions with jurors, Ford
suspected that outside influence may have been brought to bear on the presiding juror. After Ford
sought, but was refused, permission to obtain discovery on the outside influence question, it
withdrew its consent to the settlement. Castillo sought summary judgment against Ford for breach of
the settlement agreement. Ford’s response renewed its request for discovery, but the trial court
rendered summary judgment for Castillo on the breach of settlement agreement claim. We hold that
the trial court erred by refusing to allow discovery on Castillo’s action for breach of contract,
including whether there was any outside influence on the jury. We reverse the court of appeals’
judgment and remand the case to the trial court for further proceedings consistent with this opinion.
Ezequiel Castillo and other occupants of Castillo’s 2001 Ford Explorer (collectively, “Castillo”) sued
Ford in a products liability action arising from an accident. The jury charge contained two liability
questions: was there a design defect in the roof strength and was there a design defect in the
vehicle’s handling or stability. The jury began deliberating on a Friday, broke for the weekend, then
continued deliberating on the following Monday. Deliberations were recessed on Tuesday because
a member of the presiding juror’s family became ill. When the jury resumed deliberations on
Wednesday morning, the presiding juror sent a note to the court that asked, “What is the maximum
amount that can be awarded?” The parties promptly settled.
The judge released the jurors and advised them that they could discuss the case with the attorneys
and parties. The presiding juror left immediately, but other jurors stayed and voluntarily talked to
Ford. The jurors told Ford that they had decided the first liability question (roof strength) in Ford’s
favor and were deliberating on the second liability question when the presiding juror sent the note.
On the second liability question, eight jurors had voted in Ford’s favor, two were undecided, and two
had voted in Castillo’s favor. Ford learned that some of the jurors were unaware of the presiding
juror’s note and that she sent the note over the objection of other jurors.
Ford filed a Motion to Delay Settlement in which it requested “it be allowed to take discovery, or that
the Court independently undertake discovery, on the issue of outside influence in the drafting of this
note.” The motion was supported by four jurors’ affidavits, which described the course of the jury
deliberations and the behavior of the presiding juror. At the hearing, Ford’s attorney reiterated the
[I]t is to me something that should be of concern to the Court if there was any outside influence, and
it may be that nothing will show up about it at all, but there’s only one way to find out and that’s to
have either the Court do its own investigation and or the Court allow us to bring the jurors in and
have a hearing in front of the Court and or to depose them and then come back to the Court with our
findings and make a determination as to where we go from there.
The trial court denied Ford’s Motion to Delay Settlement. Although the judge encouraged Ford’s
counsel to conduct its own investigation concerning the matter, he refused to “disturb the jury”
absent specific evidence of misconduct.
Castillo filed a motion to enforce the settlement agreement. At the hearing on the motion, Ford’s
attorney stated that Ford was willing to proceed with the settlement and asked for two weeks to
finalize the details. The trial court granted Ford’s request for additional time and extended the
payment date to November 5.
On November 2, Ford filed a motion asking the court to reconsider its order directing Ford to pay
the settlement. In its motion, Ford stated that it had withdrawn its consent to the settlement. Ford
urged that because it had withdrawn its consent to the entry of an agreed judgment, Castillo’s only
remedy would be to plead and sue on a breach of contract claim. Ford also asked the court to set
aside the Rule 11 settlement agreement and grant a new trial, or in the alternative, to grant a mistrial
based on juror misconduct. Attached to Ford’s motion were transcripts of interviews with ten jurors
that had been conducted by private investigators. Ford asserted that the settlement agreement
should be set aside under the theory of mutual mistake because both parties acted under the
mistaken belief that the presiding juror sent the note on behalf of the jury and that the jury had
reached the issue of damages. The trial court denied both of Ford’s motions and struck the juror
interview transcripts on the grounds that they were unsworn and hearsay. The court found no
showing of juror misconduct, mutual mistake, or other grounds to rescind the settlement agreement.
Ford did not fund the settlement, so Castillo filed a motion for summary judgment for breach of
contract. Ford responded and urged that before moving for summary judgment, Castillo must first
plead a claim for breach of contract and then proceed through the traditional course of litigation on
that claim. Ford asserted that “[g]ranting summary judgment at this juncture, without allowing Ford an
opportunity to conduct discovery, assert defenses, or have contested fact issues tried by a finder-of-
fact will deny Ford all its rights as a litigant.” Ford urged that it was entitled to conduct discovery to
“determine the motivation of the presiding juror’s actions and any outside influences that possibly
swayed her.” In its response, Ford referenced the four affidavits it had filed with its motion to delay
the settlement agreement and argued that the affidavits raised fact issues on Ford’s potential
affirmative defenses. Castillo objected to the four affidavits on the grounds that they were
impermissible under Texas Rule of Evidence 606 and Texas Rule of Civil Procedure 327(b)
because they contained testimony on matters that occurred during jury deliberations and portions of
them constituted hearsay. The trial court sustained Castillo’s objections, ordered the affidavits
stricken, and granted Castillo’s motion for summary judgment. Ford appealed.
The court of appeals affirmed. 200 S.W.3d 217. The court held that Ford waived any error regarding
both the trial court’s denial of its motion to delay and the discovery request in its response to Castillo’
s summary judgment motion. Id. at 227, 230. The appeals court also concluded that even if Ford had
not waived error, any error would be harmless because Ford ultimately conducted its own
investigation and gathered virtually all the evidence it sought to discover and failed to identify any
evidence it would have uncovered through discovery procedures. Id. at 230-31. Ford disagrees with
First, Ford asserts that the court of appeals erred by holding that Ford waived error as to its
discovery requests. Next, Ford urges that the trial court erred in denying it the right to conduct
discovery because Castillo’s claim for breach of the settlement agreement is the same as any other
claim for breach of contract and is subject to the same procedures, including discovery procedures,
that apply to any other breach of contract claim. We agree with Ford.
A. Standard of Review
We review a trial court’s actions denying discovery for an abuse of discretion. See TransAmerican
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A trial court abuses its discretion
when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
B. Preservation of Error
The court of appeals held that Ford failed to preserve error regarding the discovery requests it
made in both its (1) motion to delay the settlement, and (2) response to Castillo’s motion for
summary judgment. 200 S.W.3d at 227, 230. As for Ford’s request in the motion to delay
settlement, the court of appeals determined that the trial court did not actually deny the requested
discovery because it encouraged Ford to conduct its own informal investigation, which Ford did. Id.
at 229. We conclude, however, that Ford’s presentation and the trial court’s response were
sufficient to preserve error. The trial court clearly understood Ford’s request and just as clearly
refused to grant it: the court told Ford that it refused to disturb the jurors and offered Ford nothing
more than encouragement in conducting an informal investigation. See Tex. R. App. P. 33.1(a).
Although Ford interviewed most of the jurors, there is a significant difference between interviewing
witnesses and taking sworn testimony from them as is allowed in discovery. One difference is
demonstrated by Castillo’s hearsay objection to Ford’s juror interview transcripts and the trial court’s
granting of it. See Tex. R. Civ. P. 203.6(b) (providing that a deposition may be used for any purpose
in the same proceeding it was taken). Another difference is if a witness—such as the presiding
juror—declines to voluntarily give an interview or sworn statement, compulsory process is available
under discovery procedures to require the witness to attend and give testimony under penalty of
perjury. See Tex. R. Civ. P. 176.6(a). Because the trial court denied Ford’s request, Ford was
unable to obtain discovery by compulsory process from the presiding juror whose conduct is directly
The court of appeals also held that even if the trial court denied the motion, Ford effectively withdrew
its discovery complaint by sending the trial court “mixed messages” through its statement that it
would comply with the trial court’s order but then filing a motion to set aside the settlement
agreement without a request for discovery. 200 S.W.3d at 229. However, we need not address the
question of whether Ford waived or withdrew the requests for discovery it made before withdrawing
its consent to the settlement agreement because after it withdrew its consent, Ford requested that it
be allowed discovery in its response to the motion for summary judgment.
Finally, the court of appeals concluded that Ford also waived its discovery request in its response to
Castillo’s motion for summary judgment on the breach of a settlement agreement claim because
Ford did not file either an affidavit explaining the need for further discovery or a verified motion for
continuance. Id. at 226-27 (citing Tex. R. Civ. P. 166a(g), 251, 252, and Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)).
Texas Rule of Civil Procedure 166a(g) states that if a party opposing summary judgment files an
affidavit stating that he or she cannot present the facts in support of his position, a trial court may
order a continuance “to permit affidavits to be obtained or depositions to be taken or discovery to
be had.” In Tenneco, this Court reiterated that “[w]hen a party contends that it has not had an
adequate opportunity for discovery before a summary judgment hearing, it must file either an
affidavit explaining the need for further discovery or a verified motion for continuance.” 925 S.W.2d
at 646-47. But in the cases requiring a party to file an affidavit or a motion for continuance to
preserve error, the parties had conducted formal discovery and were seeking time to conduct
additional discovery. See Joe, 145 S.W.3d at 160-62; Tenneco, 925 S.W.2d at 647. Ford is not
complaining that it needed more time for discovery—it is complaining that the trial court denied it
any discovery on the breach of contract action. In its response to Castillo’s summary judgment
motion, Ford pled that granting summary judgment without allowing Ford an opportunity to conduct
discovery would “deny Ford all its rights as a litigant,” and that “[u]nder Texas law, Ford is entitled to
conduct . . . pretrial discovery before enforcement of the settlement.” A continuance in this situation
would have served no purpose other than to delay the proceedings. Ford’s response referenced the
four juror affidavits and clearly notified the trial court of Ford’s position: it was the same position
Ford took when the trial court held a hearing and ruled that it would not allow jurors to be disturbed
by discovery proceedings unless Ford could first show evidence of outside influence. Under these
circumstances, Ford was entitled to take the trial court’s rulings at face value. It was not required to
re-file juror affidavits the trial court had already stricken or assert what the record demonstrates
would have been a useless motion for continuance. By granting Castillo’s motions to strike the juror
affidavits and for summary judgment, the court implicitly denied Ford’s request for discovery in
Castillo’s breach of contract suit.
The court of appeals also reasoned that if Ford had filed a motion for continuance, the trial court
could have revisited its prior ruling and perhaps would have ordered a continuance to permit
discovery. 200 S.W.3d at 227 n.4. However, as we have noted above, the trial court had made its
position clear, Ford restated its request for discovery on the new contract action in its response to
Castillo’s motion for summary judgment, there is no indication the trial court did not understand Ford’
s request, and requesting a continuance so the trial court can revisit a prior ruling is not required to
preserve error. See Tex. R. App. P. 33.1(a) (providing that to preserve error, a party must present a
timely request, motion, or objection to the trial court stating the grounds to make the trial court aware
of the complaint and obtain a ruling). The trial court had already ruled that discovery was not going to
be allowed on the question of outside influence on the jury. Ford’s response to Castillo’s motion for
summary judgment, in light of Ford’s prior filings and presentations to the trial court and the trial
court’s rulings, sufficiently preserved Ford’s complaint that the trial court improperly denied it the
opportunity to conduct discovery.
C. Availability of Discovery in the Claim for Breach of Settlement Agreement
Written settlement agreements may be enforced as contracts even if one party withdraws consent
before judgment is entered on the agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.
1995). When consent is withdrawn, however, the agreed judgment that was part of the settlement
may not be entered. Id. at 462. The party seeking enforcement of the settlement agreement must
pursue a separate claim for breach of contract. Id.
Castillo urges that his motion to enforce the settlement agreement was sufficient as a pleading to
support a judgment for breach of contract. See Tex. R. Civ. P. 301 (“The judgment of the court shall
conform to the pleadings, the nature of the case proved and the verdict, if any . . . .”). Ford does not
contend otherwise. Rather, Ford asserts that it was entitled to conduct discovery and develop its
defenses regarding Castillo’s breach of contract claim just as it would have been allowed to do for
any breach of contract claim. We agree.
Like any other breach of contract claim, a claim for breach of settlement agreement is subject to the
established procedures of pleading and proof. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656,
658 (Tex. 1996) (orig. proceeding) (per curiam). Parties are “entitled to full, fair discovery” and to
have their cases decided on the merits. Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995)
(orig. proceeding); see State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (“Only in certain narrow
circumstances is it appropriate to obstruct the search for truth by denying discovery.”). A trial court
abuses its discretion when it denies discovery going to the heart of a party’s case or when that
denial severely compromises a party’s ability to present a viable defense. Able, 898 S.W.2d at 772.
The validity of a settlement agreement cannot be determined without “full resolution of the
surrounding facts and circumstances.” Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444
(Tex. 1983). Because the trial court denied discovery, Ford was unable to develop facts relevant to
the presentation of its defense. Therefore, the trial court abused its discretion by denying Ford the
right to conduct discovery on the breach of settlement agreement claim.
Castillo further argues that Ford’s request to conduct discovery was an insufficient reason to require
the trial court to lift the agreed discovery deadlines. However, the discovery deadlines Castillo refers
to pertain to Castillo’s tort action against Ford, not his breach of contract claim. Because the claim
for breach of a settlement agreement is a separate cause of action that arose subsequent to the
deadlines Castillo references, the discovery deadlines pertaining to Castillo’s tort action have no
bearing on the breach of contract cause of action. See Padilla, 907 S.W.2d at 461-62.
D. Did Ford Seek Discoverable Information?
Castillo asserts that the trial court did not abuse its discretion in denying Ford’s discovery request
because the evidence Ford sought to develop was immaterial as it did not bear on any proper
defense to the breach of contract action. Ford offers mutual mistake as one such potential
defense. The parties disagree as to whether mutual mistake is applicable in this case, but a party is
not required to demonstrate the viability of defenses before it is entitled to conduct discovery.
Rather, a party may obtain discovery “regarding any matter that is not privileged and is relevant to
the subject matter of the pending action.” Tex. R. Civ. P. 192.3. The phrase “relevant to the subject
matter” is to be “liberally construed to allow the litigants to obtain the fullest knowledge of the facts
and issues prior to trial.” Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). The trial court’
s preemptive denial of discovery could have been proper only if there existed no possible relevant,
discoverable testimony, facts, or material to support or lead to evidence that would support a
defense to Castillo’s claim for breach of contract. This record does not demonstrate such a situation.
Castillo further asserts that Ford’s suspicion that discovery might uncover relevant evidence is
insufficient to render the trial court’s denial of discovery an abuse of discretion. We agree that in
some cases the denial of more time to conduct discovery is not an abuse of discretion when the
discovery “might have” raised a fact question. Tenneco, 925 S.W.2d at 647; Nat’l Union Fire Ins.
Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). But in such cases, the parties had not
been completely precluded by the trial court from conducting discovery to begin with. See Tenneco,
925 S.W.2d at 647. Rather, the facts in those cases were “sufficiently developed” and “all the
relevant information [was] at hand.” Id. In this case, facts and matters relevant to the question of
outside influence were not developed and the question of whether follow-up discovery on the issue
should be undertaken was foreclosed.
Castillo also cites Texas Co. v. State, 281 S.W.2d 83, 91 (Tex. 1955), as support for the argument
that discovery under these circumstances was immaterial, asserting that Ford was not entitled to
rescind the contract as rescission is only allowed when the party seeking cancellation can restore
the original status. Id. (“[O]ne seeking a cancellation of an instrument, with certain exceptions not
pertinent here, must restore the original status . . . .”). Castillo argues that restoring the original
status in this case—the original jury deliberating toward a verdict—is impossible. But the cases
requiring a party to restore the original status refer to returning money or property received pursuant
to the contract. See, e.g., id. at 91 (“[I]t was not beyond the power of the trial court to require Duval to
do equity by returning the money it had received . . . .”); Tex. Employers Ins. Ass’n v. Kennedy, 143 S.
W.2d 583, 585 (Tex. 1940) (“The general equitable rule is that a plaintiff in a suit for the rescission
or cancellation of a contract to which he is a party must return, or offer to return, any consideration
which he has received under the contract.”); Gibson v. Lancaster, 39 S.W. 1078, 1079 (Tex. 1897)
(“[I]f any part of the purchase price has been paid, in order to [obtain] a rescission the money so
paid must be tendered by the seller to the purchaser.”). The rule is one of justice, designed to
ensure that parties do not repudiate an agreement while retaining benefits received by reason of the
agreement. See Tex. Co., 281 S.W.2d at 91. We decline to extend the rule to a case such as this.
First, Ford has not unfairly benefitted by receipt of tangible benefits that in equity should be returned
in order for it to assert an equitable remedy. Any benefits Ford received could just as well be said to
have been received by Castillo. Neither party knows whether the jury would have eventually found for
Ford or Castillo and, if for Castillo, what amount of damages would have been awarded. Both
parties were at risk by allowing the jury to continue deliberating—that is why they settled. Further, the
rule is an equitable one. Kennedy, 143 S.W.2d at 585. Equitable rules by necessity are flexible and
adaptable. See Johnson v. Cherry, 726 S.W.2d 4, 8 (Tex. 1987). In this instance, facts have been
disclosed that raise a legitimate question about the integrity of the trial process. It would be an
anomalous application of the Court’s equitable powers for those powers to be exercised to
preclude inquiry into possible outside influence on jurors deliberating a verdict. We refuse to so
apply an equitable doctrine.
E. Discovery as to Jury Deliberations
Castillo next cites Texas Rule of Civil Procedure 327(b) and Texas Rule of Evidence 606 in support
of his position. Rule 327 is found in the “New Trials” subchapter of the Rules of Civil Procedure and
is entitled “For Jury Misconduct.” It provides:
a. When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury or of
the officer in charge of them, or because of any communication made to 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
communication made, 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.
b. A juror may not testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing
him to assent to or dissent from the verdict concerning his mental processes in connection
therewith, except that a juror may testify whether any outside influence was improperly brought to
bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter
about which he would be precluded from testifying be received for these purposes.
Tex. R. Civ. P. 327 (emphasis added). Rule of Evidence 606(b) is entitled “Competency of Juror
as a Witness” and provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or
statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or
emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or
indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which
the juror would be precluded from testifying be admitted in evidence for any of these purposes.
However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon
any juror; or (2) to rebut a claim that the juror was not qualified to serve.
Tex. R. Evid. 606(b) (emphasis added).
Noting that both rules provide jurors may not testify about matters or statements made during jury
deliberations, Castillo urges they apply to protect the jury’s deliberations from all discovery. But, by
their plain language, the rules apply to motions for new trials, reasons jurors voted for or against
verdicts, and inquiries into the validity of verdicts or indictments. Tex. R. Civ. P. 327(b); Tex. R. Evid.
606(b). Even when those types of issues are involved, the rules specifically allow jurors to testify
about outside influence brought to bear on any of them. Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b).
In this case, there was no verdict. Ford is not seeking discovery to impeach a verdict or to take
testimony of jurors as to their votes on a verdict. And although the net effect of Ford’s success in
having the settlement agreement set aside will be a new trial, Ford is not asserting error in the trial
court’s denial of discovery as to a motion for new trial. So, although rules 327(b) and 606 do not
strictly apply here, the policies inherent in those rules are implicated by this record and the positions
of the parties. We have previously articulated some reasons underlying the prohibition of unfettered
probing into jury deliberations: (1) keeping jury deliberations private to encourage candid
discussion of a case, (2) protecting jurors from post-trial harassment or tampering, (3) preventing a
disgruntled juror whose view did not prevail from overturning the verdict, and (4) protecting the need
for finality. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 366-67 (Tex. 2000). Not all
these reasons apply when no attempt is being made to impeach a verdict, but the overarching
principles are the same any time discovery is sought as to what occurred during jury deliberations.
Jurors are summoned to court to do public service and they should not be subjected to unfettered
post-trial proceedings regardless of whether their deliberations resulted in a verdict. Discovery
involving jurors will not be appropriate in most cases, but in this case there was more than just a
suspicion that something suspect occurred—there was some circumstantial evidence that it did.
Once the trial court discharges them, jurors are not prohibited from discussing what took place
during deliberations. But there is a difference between jurors choosing to talk about their service
and their being compelled to do so in discovery depositions and court hearings. We believe the
better policy, in general, is to conform discovery involving jurors to those matters permitted by Rule
of Civil Procedure 327 and Rule of Evidence 606. That is, discovery involving jurors should
ordinarily be limited to facts and evidence relevant to (1) whether any outside influence was
improperly brought to bear upon any juror, and (2) rebuttal of a claim that a juror was not qualified to
serve. And although we have determined that the trial court abused its discretion by entirely
depriving Ford of discovery on the breach of contract claim, it remains within the trial court’s
discretion to reasonably control the limits of discovery and the manner in which the discovery may
be obtained. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (per curiam).
III. Exclusion of Juror Affidavits
Ford asserts that the trial court erred by sustaining Castillo’s objections and striking the four juror
affidavits it initially filed in conjunction with its motion for new trial and which it referenced in its
opposition to Castillo’s motion for summary judgment. Ford was entitled to discovery on Castillo’s
separate breach of contract claim regardless of the admission or contents of the affidavits. See
Quintero, 654 S.W.2d at 444 (noting that when a settlement agreement is enforced in a new action
for breach of contract, the validity of the settlement agreement cannot be determined without “proper
pleadings and full resolution of the surrounding facts and circumstances”). The affidavits might be
useful to the trial court in setting parameters and procedures for discovery, but because Ford did not
need the affidavits to be entitled to at least some type of discovery on the breach of contract claim,
we do not reach the issue of whether the trial court erred by excluding the affidavits.
IV. Harmful Error
If the trial court abuses its discretion in a discovery ruling, the complaining party must still show harm
on appeal to obtain a reversal. See Tex. R. App. P. 44.1(a). Harmful error is error that “probably
caused the rendition of an improper judgment” or “probably prevented the appellant from properly
presenting the case to the court of appeals.” Id.
The court of appeals determined that even if the trial court erred, its error was harmless because
Ford collected virtually all the evidence it sought to discover and failed to identify what type of
evidence it would have obtained and presented if the trial court had granted its motion to delay. 200
S.W.3d at 230-31. It held that these considerations indicate the trial court’s denial of Ford’s request
for discovery did not harm Ford. Id. at 231. We disagree.
First, while Ford interviewed some of the jurors, it did not have the opportunity to question the
presiding juror while she was under oath and required to respond under penalty of perjury. See, e.g.,
Tex. R. Civ. P. 176.6, .8 (requiring a nonparty to comply with a discovery subpoena subject to being
held in contempt of court); Tex. R. Civ. P. 199.5(b) (requiring a person whose deposition is taken to
be placed under oath); Tex. Penal Code § 37.02 (providing that it is a criminal offense to make a
false statement under oath). Additionally, when discovery is denied and because of the denial the
evidence sought does not appear in the record, determining harm from the denial is impossible and
the party is prevented from properly presenting its case on appeal. See Tom L. Scott, Inc. v.
McIlhany, 798 S.W.2d 556, 558 (Tex. 1990) (orig. proceeding) (“[T]he protective order shields the
witnesses from deposition and thereby prevents the evidence from being part of the record.
Therefore, it would be impossible to determine on appeal if the denial were harmful error.”);
Jampole v. Touchy, 673 S.W.2d 569, 576 (Tex. 1984) (orig. proceeding). The lack of direct
evidence about whether the presiding juror was subjected to outside influence probably prevented
Ford from properly presenting its case on appeal. Accordingly, the trial court’s abuse of discretion in
denying discovery was harmful. See Tex. R. App. P. 44.1(a).
The trial court committed harmful error by denying Ford the opportunity to conduct discovery on
Castillo’s claim for breach of the settlement agreement. We reverse the court of appeals’ judgment
and remand the case to the trial court for further proceedings consistent with this opinion.
OPINION DELIVERED: April 3, 2009
 Ford ultimately submitted affidavits from four jurors and transcripts from interviews with ten jurors. None of
these involved the presiding juror.
 Castillo also asserts that the trial court properly denied Ford’s discovery request in its motion to delay
settlement because Ford had not withdrawn its consent to settle at that time so any discovery would have
been an improper “fishing expedition.” However, Ford reasserted its request for discovery after it withdrew its
consent to the settlement.
 We express no opinion about discovery or matters involving the breach of contract claim other than
discovery involving jurors.