in Re Toyota Motor Sales, U.S.A., Inc. and Viscount Properties II, L.P., D/B/A Hoy Fox toyota/lexus , 56 Tex. Sup. Ct. J. 1007 ( 2013 )

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 10-0933
444444444444
IN RE TOYOTA MOTOR SALES, U.S.A., INC. AND VISCOUNT PROPERTIES II,
L.P., D/B/A HOY FOX TOYOTA/LEXUS, RELATORS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444
Argued January 8, 2013
CHIEF JUSTICE JEFFERSON delivered the opinion of the Court.
JUSTICE LEHRMANN filed a concurring opinion, in which JUSTICE DEVINE joined.
JUSTICE BOYD did not participate in the decision.
We have recently held that a trial court must explain with reasonable specificity why it has
set aside a jury verdict and granted a new trial.1 Without such an explanation, parties in the case can
only speculate about why the court ostensibly circumvented a critical constitutional right. The
parties—and the public—are entitled to know why the trial court believes an injustice would occur
if the jury’s verdict were to stand. In this case, the jury returned a verdict, and the trial court
rendered a judgment in conformity with it. The trial court then ordered a new trial. The order is
reasonably specific. Its stated reasons are superficially sound. The question is whether an appellate
court may, in an original proceeding, determine whether the reasonably specific and legally sound
1
In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W .3d 204 (Tex. 2009).
rationale is actually true. And if it is not true, we must decide whether the trial court abuses its
discretion by granting a new trial.
We hold that an appellate court may conduct a merits review of the bases for a new trial order
after a trial court has set aside a jury verdict. If the record does not support the trial court’s rationale
for ordering a new trial, the appellate court may grant mandamus relief. We conditionally grant
relief.
I. Background
A. Facts
Richard King was driving his Toyota 4Runner along a highway when a commercial truck
turned onto the road in front of him. King swerved to avoid the truck but lost control of his car,
which rolled over several times. King was ejected from the vehicle and died a few hours later.
B. Procedural History
1. Trial Court
King’s family sued Toyota and the local Toyota dealership for strict products liability,
negligence, wrongful death, and survivorship.2 The Kings contended that the 4Runner’s allegedly
defective seat belt system caused his ejection from the car and his subsequent death.
The family asserted that King was wearing his seat belt at the time of the accident. But in
a videotaped pretrial deposition, State Trooper Justin Coon, who responded to the emergency call
2
The Kings sued the commercial truck driver and his employers as well, but those defendants are no longer
parties to this dispute.
2
and arrived on the scene to investigate, testified that he believed that King was not wearing the belt
at the time of the rollover. Specifically, Officer Coon testified:
Q: . . . How do you know about the position of the seat belt?
Officer Coon: Well, if he was wearing it or if it broke off, it would have
been in a position where it wasn’t in. Obviously, he wasn’t
wearing it, because it was in a straight-up position, like it had
been sitting there a while, and it hadn’t been pulled out.
Q: So the seat belt was stowed?
Officer Coon: Yes.
Q: Did you inspect the webbing, to see if there were any marks
on it?
Officer Coon: There was not any.
Q: And you did look at it?
Officer Coon: I always look at the seat belts, if they are not wearing one.
Q: Did you pull the seat belt out?
Officer Coon: No, I did not.
The Kings filed a motion to preclude at trial “[a]ny reference to the purported opinions of
Officer[] Justin Coon . . . since [he] ha[d] never been identified by Defendants as [an] expert
witness[] in this case.” At a pretrial hearing, the Kings clarified that they would not object to Officer
Coon’s testifying about his observations of the accident scene as long as he did not offer his opinion
that King had not been wearing a seat belt when the car rolled over. The Kings later filed an
additional motion in limine to bar “[a]ny testimony from any purported fact witness including law
3
enforcement officials, investigators, emergency personnel, medical personnel and bystanders that
Richard King was not wearing his seatbelt . . . before or during the [ac]cident.” The trial court
granted these motions.
The case proceeded to trial in May 2009.3 Despite the limine orders, Officer Coon’s
statement found its way into the record, in front of the jury, three times before the close of evidence.
Because the trial court’s order cites Toyota’s “prejudicial,” “brazen[],” and “inflammatory” reference
to Officer Coon’s seat belt testimony as a basis for granting a new trial, it is important to detail
precisely the manner in which the information was conveyed to the jury.
The initial instance occurred when Toyota’s counsel introduced Officer Coon’s video
deposition. To comply with the court’s limine orders, Toyota had redacted portions of the officer’s
testimony, and the relevant passage was edited and played into the record as follows:
Q: . . . How do you know about the position of the seat belt?
Officer Coon: Well, if he was wearing it or if it broke off, it would have
been in a position where it wasn’t in. Obviously, he wasn’t
wearing it, because it was in a straight-up position, like it had
been sitting there a while, and it hadn’t been pulled out.
Q: So the seat belt was stowed?
Officer Coon: Yes.
Q: Did you inspect the webbing, to see if there were any marks
on it?
Officer Coon: There was not any.
3
An earlier trial ended in a mistrial.
4
Q: And you did look at it?
Officer Coon: I always look at the seat belts, if they are not wearing one.
Q: Did you pull the seat belt out?
Officer Coon: No, I did not.
Q: How—tell—describe to me how you look[ed] at the seat belt.
Officer Coon: I mean, it was on its side—
Immediately after this testimony, in front of the jury, the Kings’ attorney introduced the “if
they are not wearing one” portion of the statement into the record:
Kings’ Counsel: Your Honor, after the answer, [“]I always look at the
seatbelts, if they are not wearing one.[”] And then there
is—under the rule of optional completeness—a question and
answer that was not read and I would like to publish that to
the jury at this time.
(Emphasis added.)
Toyota’s attorney was quick to alert the trial court that the plaintiffs’ counsel had just
introduced Officer Coon’s suggestion that King was not wearing a seat belt.
Toyota’s Counsel: If I understand it, Your Honor, he just said the question was,
[“]Did you look at it?[”] And the answer, [“]I always look at
the seat belts.[”] [To the Kings’ attorney] And you said
what?
Kings’ Counsel: And he finishes the answer.
Toyota’s Counsel: You finish the answer.
Kings’ Counsel: Under the rule of optional completeness, question at line 23,
[“]Did you pull the seat belt out? Answer: No, I did not.[”]
That’s what I wanted read into the record.
5
Toyota’s Counsel: Your Honor, I want the full answer to line 21 [just before the
previous question and answer] read into the evidence because
he just stated it out loud.
...
(Bench conference.)
...
Toyota’s Counsel: Right. [To the Kings’ attorney] You read, [“]If they are not
wearing one.[”] We all heard it. That’s the biggest door
opening I have ever seen.
Kings’ Counsel: Judge, under the rule of optional completeness I wanted [the
next question and answer] read and he can’t go back—
The Court: I understand that. You read it. You just read it. You read it
into the record and before the jury.
(End of bench conference.)
...
The Court: . . . [To Toyota’s attorney] I think [the Kings’ attorney] has
read into the record what you wanted published.
Toyota’s Counsel: That’s correct. And read into the record the complete answer
to the prior question.
The Court: It was already read into the record.
Toyota’s Counsel: Thank you.
The Court: You’re welcome.
(Emphases added.)
6
The Kings’ attorney did not move to strike the testimony or seek a mistrial, nor did he request
a curative or limiting instruction after quoting the statement. He did not revisit the seat belt issue
during his subsequent tender of designated testimony from Officer Coon’s deposition.
During Toyota’s direct examination of expert witness Lee S. Carr, the statement was again
read into the record. Carr, an accident reconstructionist, built a scale model of the accident scene.
Before trial, he surveyed the accident site, read available police reports, and reviewed Officer Coon’s
deposition. The relevant portion of Carr’s testimony states:
Toyota’s Counsel: All right. And then yesterday, sir, Trooper Coon was
presented by deposition. You have read his deposition, have
you not, sir?
Carr: Yes.
Toyota’s Counsel: I want to review this deposition passage which was read into
the record, sir, yesterday. This is page 26 beginning on line
17—or 15, rather.
Question: So the seat belt was stowed?
Answer: Yes.
Question: Did you inspect the webbing to see if there were
any marks on it?
Answer: There was not any.
Question: And did you look at it?
Answer: I always look at the seat belt if they are not wearing
one.
Question: Did you pull the seat belt out?
Answer: No, I did not.
7
The Court: Hold on . . . [Kings’ attorney] has an objection . . .
Kings’ Counsel: Your Honor, we need the jury out.
(Jury is not present.)
Kings’ Counsel: Your Honor, let me sort of give you some history here.
Yesterday counsel showed what he just showed to the
witness, showed it to Your Honor, and said, I’m not going to
play this. This is within your ruling where the officer said,
[“]If he is not wearing it.[”] . . . That that’s not testimony
consistent with Your Honor’s ruling that should be played
with the jury.
Yesterday I made a mistake when I stood up on the rule of
optional completeness and I was trying to identify where I
wanted to insert the testimony. And I inadvertently
referenced that subject. Fortunately, Your Honor . . . what a
lawyer says is not testimony, right? . . .
I take it under some sort of guise that I opened the door . . .
but that’s something . . . that [Toyota’s attorney] should have
sought a clarification for. I think frankly that is sanctionable
conduct . . . If he felt that there had been a waiver . . . he
should have approached.
The Court: [Toyota’s counsel]?
Toyota’s Counsel: Your Honor, I did bring to everyone’s attention that [Kings’
attorney] had failed to even object to this passage prior to it
being played. Your Honor will recall and the record reflect
we had a bench conference shortly before this passage was
being offered to the jury. [Kings’ attorney] told me and told
the Court that he was going to offer something for purposes
of optional completeness. I said, on the record, [“]Well, if
you do, be careful of the motion in limine.[”] He said, [“]I’ve
got it.[”] He went back to counsel table . . . we completed our
video offer, he stood up and he said, [“]For purposes of
optional completeness[”]—this wasn’t lawyer talk, this was
evidence and he read, [“]If they are not wearing one.[”] . . .
8
We then had another bench conference . . . At first [Kings’
attorney] tried to deny that he said that. Your Honor had
reminded him, [“]No, you just said that. It’s in the record,
it’s before the jury.[”] [Kings’ attorney] said, [“]If it’s in the
record, it’s in the record, what’s before the jury is before the
jury.[”] . . . I don’t need to seek a clarification of what’s in
evidence or what’s in before the jury when we had multiple
bench conferences about it. Mistake or not—which I know
does happen on occasions despite it having been pointed out
several times—as [Kings’ attorney] said yesterday, [“]It’s
before the jury, it’s in the record and I’m free to use what is
in the evidence in framing my questions.[”]
So there is nothing sanctionable about that. I know the
plaintiffs are disappointed that they did that, but there is
nothing sanctionable[.]
...
The Court: . . . [T]he record is going to have to speak for itself. My
recollection . . . is that it was a question that you were reading
from the deposition for optional completeness. I understand
and recognize that that may have been inadvertent . . .
. . . I’m not going to sanction anybody, but . . . [Toyota’s
counsel], [do] not . . . publish that to the jury. It has been
mentioned. You had already agreed that that would not go
before the jury. The evidence is going to be reflected in the
record . . .
Toyota’s Counsel: . . . I understand the Court’s ruling . . . except for the . . .
statement that I agreed that that would not be before the jury.
I’m not the one that put it before the jury, your Honor, and I
don’t think I agreed that it would be after he put it before the
jury. I agreed before they put it before the jury that I
wouldn’t do it. But after he put it in the record and even
conceded to the Court, and I’m sure it will appear in the
record, [what’s] before the jury, is before the jury . . . I will
simply ask Mr. Carr the follow-up question that I was going
to ask him, but I will not publish that again.
The Court: Thank you. I appreciate it.
9
(Emphases added.) The jury returned, and Toyota’s counsel resumed questioning Carr, without
publishing Coon’s statement again. Later, the statement resurfaced during Toyota’s direct
examination of William Van Arsdell, Ph.D., another of Toyota’s expert witnesses. Dr. Van Arsdell
testified that he had been retained to evaluate the seat belt’s design and performance, and to
investigate whether King’s seat belt functioned properly and whether he was wearing it when the
accident occurred. Dr. Van Arsdell reviewed the depositions of all witnesses, including Officer
Coon. The relevant portion of Dr. Van Arsdell’s direct examination by Toyota’s attorney states:
Toyota’s Counsel: . . . During the course of your work in the case, you obviously,
thoroughly inspected the driver’s and passengers’ seat belt of
the Toyota 4 Runner.
Dr. Van Arsdell: Yes.
Toyota’s Counsel: You also read depositions?
Dr. Van Arsdell: Yes.
Toyota’s Counsel: Did you read the deposition of Officer Coon?
Dr. Van Arsdell: Yes, I did.
Toyota’s Counsel: And based on your reading of his deposition, did he examine
the driver’s seat belt of the Toyota 4 Runner?
Dr. Van Arsdell: Yes, he said he always would examine the seat belts, if
someone was not wearing their seat belt.
(Emphasis added.) The Kings’ attorney did not object to Dr. Van Arsdell’s statement.
After the close of evidence, but before arguments commenced, the Kings’ attorney asked the
trial court for guidance on the point with respect to Officer Coon’s testimony:
10
Kings’ Counsel: [R]emember there was that issue where I was trying to
identify a point for optional completeness and I misread or
should not have read that. I want to make sure that counsel
is not going to use that during their [closing] argument
because you ruled on that point four or five times.
The Court: Just make your objections and we will preserve the record and
appropriate sanctions will be issued to either party if they
argue outside the record.
Toyota’s Counsel: And just on that point, Your Honor, we do intend to . . . share
that with the jury. It’s before the jury, it was read into the
record, didn’t allow us to publish, but as [the Kings’ own
attorney] himself stated, What is before the jury, is before the
jury . . .
...
The Court: [To the Kings’ attorney] And you make your objection, and
I will sanction people accordingly. My recollections of it was
that . . . [Officer Coon’s conclusions] are outside the record.
Toyota’s Counsel: His statement that [King] was unbelted is outside the record.
What is in the record and was read in by [the Kings’] counsel,
Your Honor, is the testimony that, [“]I checked the seat belt.
And did you look at it? Answer: I always look at the seat
belts if they are not wearing one.[”] That is what was read
into the record.
The Court: I don’t believe that was read into the record at all.
Toyota’s Counsel: Well, we do, Your Honor, and we know it was, so we will
just argue accordingly.
The Court: [To the Kings’ attorney] Make your objections and ask for
your sanctions.
Kings’ Counsel: I will make the objection if that is done.
(Emphases added.)
11
During Toyota’s closing argument, Toyota’s counsel quoted the previously admitted line of
questioning from Officer Coon’s deposition:
Toyota’s Counsel: Dr. Wright and Mr. Flynn also agreed with Mr.
Coon’s testimony about the condition of the seat belt.
Question: So is the seat belt stowed? [Aside] This was read
into the record.
Answer: Yes.
Question: Did you inspect the webbing to see if there were
any marks on it?
Ans[w]er: There was not any.
Question: And you did look at it?
Answer: I always look at the seat belts if they are not wearing
one.
(Emphasis added.)
The Kings’ attorney objected, arguing that Toyota violated the trial court’s limine order. The
trial judge sustained the objection. But despite the objection, the Kings’ attorney did not move to
strike and did not request a curative or limiting instruction. Toyota’s attorney responded, “You heard
that, and it was read into the record by [the Kings’ own attorney] when Mr. Coon’s deposition
testimony was offered,” and continued with closing argument.
The jury returned a verdict in Toyota’s favor, and the trial court signed a corresponding
judgment. A few weeks later, the Kings moved for new trial, alleging that Toyota’s counsel had
12
violated the trial court’s limine rulings by reading, during closing argument, the disputed portion of
Officer Coon’s deposition.4
Toyota responded that the Kings’ lawyer violated the limine rulings by offering the evidence
first. Toyota elaborated:
The Court acknowledged on the record that [the Kings’ own attorney] had read
Officer Coon’s statement into the record. Because [he] read this testimony into
evidence, [Toyota] had every right to make closing arguments regarding evidence
already in the record. Plaintiffs cannot introduce evidence, and then allege the
prejudice from this evidence justifies a new trial.
(Emphasis added.)
Nevertheless, the trial court granted the Kings’ motion on two grounds. First, the trial court
stated that Toyota had violated the limine order and “purported to present evidence outside the
record.” The court explained that its decision was based on Toyota’s reference during closing to
Coon’s testimony:
Specifically, during closing argument, [Toyota] read from the [d]eposition of witness
Justin Coon concerning his lay opinion, and conclusion that Mr. King was not
wearing a seat belt at the time of the commencement of the rollover. The Court had
previously excluded these lay opinions and conclusory remarks by witness Coon on
the grounds that they were not based on his personal knowledge and were, therefore,
conclusory and incompetent to be presented to the jury and because witness Coon did
4
Before the trial court ruled on the new trial motion, but more than thirty days after the judgment was signed,
the Kings filed an amended motion for new trial alleging “newly discovered evidence” about a former Toyota employee’s
unrelated allegations against Toyota for “calculated conspiracy.” Toyota contended that the amended motion was
untimely. See T EX . R. C IV . P. 329b(b) (“One or more amended motions for new trial may be filed without leave of court
before any preceding motion for new trial . . . is overruled and within thirty days after the judgment . . . is signed.”); see
also Moritz v. Preiss, 121 S.W .3d 715, 720 (Tex. 2003) (holding that “an amended motion for new trial filed more than
thirty days after the trial court signs a final judgment is untimely” and does not preserve issues for appellate review but
that “the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under
its inherent authority before the court loses plenary power”).
Regardless, although the trial court considered the Amended Motion for New Trial, its order relied solely on
arguments already in the original motion. Accordingly, we need not address the timeliness of the amended motion.
13
not have the requisite training, education, schooling, or experience to opine whether
or not Mr. King had been belted at the start of the rollover.
The court thus granted a new trial “in the interest of justice.”
Second, the trial court reasoned that a new trial was warranted to sanction Toyota for
violating the limine order, because a limiting instruction could not eliminate the harm. See TEX . R.
CIV . P. 320 (“New trials may be granted and judgment set aside for good cause, on motion or on the
court’s own motion on such terms as the court shall direct.”).
2. Court of Appeals
Toyota sought a writ of mandamus from the court of appeals, which denied relief. 327
S.W.3d 302. The court evaluated the trial court’s order in light of In re Columbia. The court of
appeals recognized that after Columbia, a new trial order must include the basis for the trial court’s
decision. Id. at 305. But after considering the trial court’s order—reproduced in its entirety in the
court of appeals’ opinion—the court concluded that “there is no question that the trial court . . .
specified the reasons for its decision to grant the Kings’ motion [for new trial], and thereby satisfied
the specificity requirements of Columbia.” Id. (emphasis added). The court of appeals rejected the
notion that “Columbia supports further review of the merits of the grounds specified,” and was
“unpersuaded that the language Toyota relie[d] upon [in requesting mandamus relief] supports such
an expansion of Columbia.” Id. at 305-06 (emphasis added).
14
3. This Court
Toyota then filed an original proceeding in this Court.5 We set the matter for argument, 55
Tex. Sup. Ct. J. 1212 (Tex. Aug. 31, 2012), and now conditionally grant relief.
II. Discussion
A. An appellate court may conduct merits-based mandamus review of a trial
court’s articulated reasons for granting new trial.
In the decades leading up to Columbia, our jurisprudence gave trial courts broad deference
in granting new trials and, specifically, “approved the practice of trial courts failing to specify
reasons for setting aside jury verdicts.” Columbia, 290 S.W.3d at 208. We generally precluded
review of new trial orders, except in two narrow instances. Id.; see also Johnson v. Court of Civil
Appeals, 350 S.W.2d 330, 331 (Tex. 1961) (recognizing that “[t]here are only two instances where
any appellate court of this state has ever directed the trial judge to set aside its order granting motion
for new trial”: when the order was void or when the trial court erroneously concluded that the jury’s
answers to special issues conflicted irreconcilably).
But in Columbia, we emphasized that the discretion given trial courts was “not limitless.”
Columbia, 290 S.W.3d at 210. In that case, the jury returned a verdict in favor of the hospital-
defendants after a four-week trial. Id. at 206. The trial judge granted the plaintiffs’ new trial motion
“in the interests of justice and fairness,” without further elaboration. Id. We held that this was
inadequate, noting that “such a vague explanation [whe]n setting aside a jury verdict does not
enhance respect for the judiciary or the rule of law, detracts from transparency we strive to achieve
5
The Texas Civil Justice League and the Texas Association of Defense Counsel submitted briefs as amici curiae
in support of the petition for writ of mandamus.
15
in our legal system, and does not sufficiently respect the reasonable expectations of parties and the
public when a lawsuit is tried to a jury.” Id. at 213.
We disapproved of our prior approach under Johnson v. Fourth Court of Appeals, 700
S.W.2d 916 (Tex. 1985), and held that “just as appellate courts that set aside jury verdicts are
required to detail reasons for doing so, trial courts must give more explanation than ‘in the interest
of justice’ for setting aside a jury verdict.” Columbia, 290 S.W.3d at 205. We held that “the parties
and public are entitled to an understandable, reasonably specific explanation [of] why their
expectations are frustrated by a jury verdict being disregarded or set aside, the trial process being
nullified, and the case having to be retried.” Id. at 213 (emphasis added). We did not detail exactly
what such an explanation would require, although it would have to be more than a bare assertion of
“in the interests of justice and fairness.” Id.
More recently, we decided In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), which
presented a related, but narrower, question. There, we were asked to decide whether a trial court that
gave four reasons for granting a new trial, including “in the interest of justice and fairness,” and
linked them by “and/or” satisfied Columbia. Id. at 689.
In concluding that it did not, we noted that Columbia’s purpose “w[ould] be satisfied so long
as the order provides a cogent and reasonably specific explanation of the reasoning that led the court
to conclude that a new trial was warranted.” Id. at 688 (emphases added). We acknowledged that
Columbia focused “not on the length or detail of the reasons a trial court gives, but on how well
those reasons serve the general purpose of assuring the parties that the jury’s decision was set aside
only after careful thought and for valid reasons.” Id. at 688 (citing Columbia, 290 S.W.3d at 213)).
16
We held that the trial court’s “use of ‘and/or’ le[ft] open the possibility that ‘in the interest of justice
and fairness’ [could be] the sole rationale.” Id. at 689. That possibility, if true, would have violated
our Columbia standard.
We held that “a trial court does not abuse its discretion6 so long as its stated reason for
granting a new trial (1) is a reason for which a new trial is legally appropriate (such as a well-
defined legal standard or a defect that probably resulted in an improper verdict); and (2) is specific
enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived
the articulated reasons from the particular facts and circumstances of the case at hand.” Id. at
688–89 (emphases added). Applying this new standard to the new trial order, we concluded that
because, under Columbia, “in the interests of justice or fairness” or similar language “is never an
independently sufficient reason for granting new trial,” the “and/or” order failed the test’s first prong.
Id. at 689–90.
This case represents the next step in that progression. We must decide whether, on
mandamus review, an appellate court may evaluate the merits of a new trial order that states a clear,
legally appropriate, and reasonably specific reason for granting a new trial. Stated differently, if a
trial court’s order facially comports with Columbia and United Scaffolding, may an appellate court
review the correctness of the stated reasons for granting a new trial? Absent further guidance from
6
W e also provided a non-exhaustive list of examples of new trial orders that would be clear abuses of
discretion, including: giving a reason (specific or not) that was not a legally valid reason; plain statements that the trial
court merely substituted its own judgment for the jury’s; statements that the trial court simply disliked one party’s lawyer;
invidious discrimination; an explanation that provides little or no insight into the trial judge’s reasoning; and pro forma
template language absent a trial judge’s analysis. United Scaffolding, 377 S.W .3d at 689.
17
this Court, our courts of appeals have generally been reluctant to engage in merits-based review of
new trial orders.7
***
To answer this question, we consider Columbia and United Scaffolding together. A new trial
order must be “understandable,” “reasonably specific,” see Columbia, 290 S.W.3d at 213, “cogent,”
“legally appropriate,” “specific enough to indicate that the trial court did not simply parrot a pro
forma template,” and issued “only after careful thought and for valid reasons,” see United
Scaffolding, 377 S.W.3d at 688 (emphasis added). An order that does not satisfy these requirements
may be corrected by mandamus.
7
See, e.g., In re Health Care Unlimited, Inc., No. 04–12–00192–CV, 2012 W L 1142302 (Tex. App.— San
Antonio Apr. 4, 2012, orig. proceeding [mand. pending]) (mem. op.) (denying mandamus with no additional explanation
other than simply being “of the opinion that relator is not entitled to the relief sought”); In re Oliver, No.
09–11–00546–CV, 2011 W L 5594606 (Tex. App.— Beaumont Nov. 17, 2011, orig. proceeding [mand. pending]) (mem.
op.) (denying mandamus relief after concluding that relator had “not shown that the trial court’s reasons provide no valid
basis in th[e] case, or that the trial court clearly abused its discretion”); In re State Farm Mut. Auto. Ins. Co., No.
04–11–00708–CV, 2011 W L 4830177 (Tex. App.— San Antonio Oct. 12, 2011, orig. proceeding [mand. pending])
(mem. op.) (denying mandamus relief and concluding mandamus review is not available when relators are simply asking
appellate court to “review the trial court’s reasons for not granting a new trial”); In re Camp Mystic, Inc., No.
04–11–00694–CV, 2011 W L 4591194 (Tex. App.— San Antonio Oct. 5, 2011, orig. proceeding) (mem. op.) (denying
mandamus relief and reading Columbia to “provide mandamus relief when the trial court fails to specify the reasons for
granting a new trial, not to provide a merit-based review on mandamus”); In re Jazzercize, Inc., No. 05–11–01034–CV,
2011 W L 3805545 (Tex. App.— Dallas Aug. 30, 2011, orig. proceeding [mand. pending]) (mem. op.) (denying
mandamus relief despite relators’ challenge that trial court order granting new trial was “on erroneous and pretextual
reasons”); In re Whataburger Rests., LP, 2010 W L 4983563 (Tex. App.— El Paso 2010, orig. proceeding [mand.
pending]) (denying mandamus relief and interpreting In re Columbia to mean mandamus review is available only “if the
trial court fails to specify the reasons for ordering the new trial,” since the “merits of the grounds stated . . . are not
reviewable by mandamus”).
But see In re Lufkin Indus., Inc., 317 S.W .3d 516, 518 (Tex. App.— Texarkana 2010, orig. proceeding [mand.
denied]) (denying mandamus relief because it found trial court was within its discretion on at least one ground, but
holding that a trial court’s reasons for granting new trial are reviewable on appeal).
Notably, after In re Lufkin, the Texarkana court of appeals clarified its position in In re Smith, 332 S.W .3d 704,
708–09 (Tex. App.— Texarkana 2011, orig. proceeding) (denying mandamus relief and clarifying its earlier decision in
In re Lufkin that “[n]ever . . . did we state the proposition . . . that the appellate court should review the entire record,
as in an ordinary appeal, in our mandamus review”).
18
Having already decided that new trial orders must meet these requirements and that non-
compliant orders will be subject to mandamus review, it would make little sense to conclude now
that the correctness or validity of the orders’ articulated reasons cannot also be evaluated. To deny
merits-based review would mean that a trial court could set aside a verdict for reasons that are
unsupported by the law or the evidence, as long as those reasons are facially valid. Columbia’s
requirements would be mere formalities, lacking any substantive “checks” by appellate courts to
ensure that the discretion to grant new trials has been exercised appropriately. Transparency without
accountability is meaningless. While we reiterate our “faith in the integrity of our trial bench as well
as that of the appellate bench,” Columbia, 290 S.W.3d at 214, we decline to hold that their decisions
are immune from substantive review.
We have recognized two narrow instances in which new trial orders are reviewable, on the
merits, by mandamus: when the trial court’s order was void or when the trial court erroneously
concluded that the jury’s answers to special issues were irreconcilably in conflict. See Columbia,
290 S.W.3d at 208 (citing Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.
2005)).8 As to the latter, since at least 1926, we have granted mandamus relief to correct a trial
court’s erroneous ruling. See Gulf, C. & S.F. Ry. Co. v. Canty, 285 S.W. 296, 302 (Tex. 1926). In
such cases, merits-based mandamus review is relatively straightforward—an appellate court may
compare the jury charge against the jury’s answers, and decide whether the trial court correctly
concluded that they conflicted irreconcilably.
8
See also Angelina Cas. Co. v. Fisher, 319 S.W .2d 387, 388 (Tex. 1962) (noting that if a trial court is
“mistaken” about whether jury answers were in irreconcilable conflict, mandamus would issue to compel entry of
judgment).
19
This case is analogous. Appellate courts must be able to conduct merits-based review of new
trial orders. If, despite conformity with the procedural requirements of our precedent, a trial court’s
articulated reasons are not supported by the underlying record, the new trial order cannot stand.
While this review is new to us, it is old hat to our colleagues on the federal bench. Federal
appellate courts regularly conduct record-bound, merits-based review of new trial orders to evaluate
their validity.9 For instance, in Peterson v. Wilson, 141 F.3d 573, 580 (5th Cir. 1998), the United
States Court of Appeals for the Fifth Circuit reversed a district court’s ruling granting a new trial,
vacated the judgment rendered after a jury verdict in a second trial, and reinstated the first trial’s
results. The Fifth Circuit observed that the trial court had granted the defendant’s “bare-bones” new
trial motion despite an original verdict for the plaintiff, after the court “met with and interrogated the
jurors after the verdict (concededly, outside the presence of the parties and counsel), and then acted
on the comments of some of the jurors as though their remarks were newly discovered evidence.”
Id. at 575. After examining the district court’s stated reason and “conduct[ing] the obligatory
‘cumbersome review’ of the multi-volume trial record,” the court concluded from its “meticulous
review of the record of the first trial” that “[t]he instant record [could not] support any such
conclusion [that the evidence was insufficient to support the original jury verdict].” Id. at 575–79
(internal citations omitted).10
9
See, e.g., Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999) (noting that “[a] district court
must adequately articulate its reasons for overturning a jury verdict . . . so that the reviewing court can exercise a
meaningful degree of scrutiny and safeguard parties’ right to a jury trial”).
10
Toyota actually argues that Peterson and the federal model “run[] headlong into established Texas law that
[generally] precludes appellate review of a new-trial order [or a final judgment] after a subsequent retrial,” see Cummins
v. Paisan Constr. Co., 682 S.W .2d 235, 236 (Tex. 1984), but concedes that “[e]ven under the federal model, there are
cases in which the court of appeals granted mandamus to review a new-trial order before a subsequent retrial could
20
Similarly, in Cruthirds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas, 624 F.2d 632,
635, 636 (5th Cir. 1980), the Fifth Circuit “review[ed] the record carefully to make certain that the
district court [did] not merely substitute[] its own judgment for that of the jury” when that court
“disregard[ed] the verdict and grant[ed] a new trial.” The court consulted the record to evaluate the
district court’s two stated grounds for granting new trial—the first, an erroneous jury charge on
comparative negligence, and the second, an “against the great weight and preponderance” and
“prevent[ion of] a miscarriage of justice” type rationale. Id.11 Relevant for our purposes is the fact
that the Fifth Circuit has long engaged in merits-based review of new trial orders, looking to the
records available on a case-by-case basis. Though not binding on this Court, this approach supports
our decision today that the reasons articulated in a new trial order are subject to merits-based
mandamus review.
B. Under this standard, the trial court abused its discretion in granting a new trial.
1. Merits-Based Review of This Order
Having concluded that the reasons articulated in a new trial order are reviewable on the
merits by mandamus, we now evaluate the trial court’s grant of new trial against the underlying
record.
occur.” W e reference these federal cases only to demonstrate that we are not the first nor the only court to conclude that,
in certain instances, review of the record to evaluate a new trial order may be warranted.
11
The court noted that “the record in this case does not clearly reveal what error in the instructions to the jury
was so troubling to the district court,” but ultimately concluded that the district court had committed a fundamental error
in the jury instructions which, though unobjected to by plaintiff’s counsel, was severe enough to warrant sua sponte
correction by new trial. Cruthirds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas, 624 F.2d 632, 635–36 (5th
Cir. 1980).
21
The new trial order complies with Columbia’s procedural “form” requirements. The trial
judge’s three-page order, which pinpointed Toyota’s reference to Officer Coon’s testimony in closing
argument as the basis for granting new trial, is distinguishable from the Columbia order’s bare
assertion of “in the interests of justice and fairness.” This order, on its face, comports with
Columbia.
Similarly, the trial court’s explanation of and reference to the specific grounds for new trial
from Toyota’s closing argument satisfy, facially, United Scaffolding’s requirements that the reasons
listed (if accurate) would have been “legally appropriate” grounds for new trial, and are “specific
enough” that they are not simply pro forma. 377 S.W.3d at 688–89.
The trouble is that the record squarely conflicts with the trial judge’s expressed reasons for
granting new trial. Simply articulating understandable, reasonably specific, and legally appropriate
reasons is not enough; the reasons must be valid and correct. Having undertaken our own
“‘cumbersome review’ of the multi-volume trial record,” Peterson, 141 F.3d at 579 (internal
citations omitted), we conclude that the record does not support the new trial order.
The trial court initially granted the Kings’ motion in limine to preclude Officer Coon’s
deposition testimony regarding King’s seat belt usage at the time of the crash. But a protective
limine order alone does not preserve error. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.
1986) (noting that “to preserve error as to an improper question asked in contravention of a sustained
motion in limine, a timely objection is necessary”). Furthermore, where, as here, the party that
requested the limine order itself introduces the evidence into the record, and then fails to immediately
object, ask for a curative or limiting instruction or, alternatively, move for mistrial, the party waives
22
any subsequent alleged error on the point. See, e.g., Bay Area Healthcare Grp., Ltd. v. McShane,
239 S.W.3d 231, 235 (Tex. 2007) (“Error is waived if the complaining party allows the evidence to
be introduced without objection.”); State Bar of Tex. v. Evans, 774 S.W.2d 656, 659 n.6 (Tex. 1989)
(“Failure to request the court to instruct the jury to disregard the inadmissible testimony results in
waiver of the alleged error where the instruction would have cured the error.”); see also TEX . R. APP .
P. 33.1(a) (detailing requirements for preservation of appellate complaints); TEX . R. EVID . 103(a)
(describing effects of erroneous admission or exclusion of evidentiary rulings); JOHN HENRY
WIGMORE , WIGMORE ’S CODE OF THE RULES OF EVIDENCE IN TRIALS AT LAW § 140 (3d ed. 1942)
(“The objector waives an objection when he himself subsequently introduces evidence which is
directed to prove or disprove the same matter and is liable to the same objection.”).
Even if the attorney’s actions were inadvertent, the Kings introduced the point into evidence
and waived the point of error. The trial court acknowledged the introduction of the evidence, stating
three times that the Kings’ attorney had “read it into the record.” The Kings argue that because the
statement came from their attorney, and not directly from Officer Coon’s deposition, it cannot be
considered a tender or proffer of testimony. The record reflects, however, that the Kings’ attorney
quoted the relevant deposition testimony when making an offer under the rule of optional
completeness and that the trial court repeatedly acknowledged that the evidence had been read into
the record. See TEX . R. EVID . 107 (“When part of a[] . . . recorded statement is given in evidence
by one party, the whole on the same subject may be inquired into by the other, and any other . . .
recorded statement which is necessary to make it fully understood or to explain the same may also
be given in evidence.”) Surely, the Kings would not argue that their intended quotation for optional
23
completeness was a tender of testimony, while their inadvertent quotation was not. Once the
evidence was in the record—without objection or a request that it be stricken or that the jury be
instructed to disregard—it was in for all purposes and a proper subject of closing argument.
Toyota’s counsel fairly referenced the previous day’s proceedings during Lee Carr’s direct
examination, by noting that he “wanted to review [Officer Coon’s] deposition passage which was
read into the record . . . yesterday.” Though the Kings’ attorney objected to Toyota’s questioning,
he again neglected to ask the trial court for any sort of ruling, or for a limiting or curative instruction.
The colloquy ended with the trial court’s noting her recollection that Kings’ counsel had previously
“read[] from the deposition for optional completeness” and that his disclosure may have been
“inadvertent.” She stated that she was not going to sanction anyone, that “[t]he record is going to
have to speak for itself,” and that “[t]he evidence is going to be reflected in the record.” See
discussion supra, ___ S.W.3d at ___.
On the third instance, during Dr. Van Arsdell’s direct examination, the Kings’ attorney again
remained silent. The Kings’ attorney’s objection during closing argument was too late. The
statement was in evidence. Attorneys in closing must “confine the argument strictly to the
evidence”; any evidence in the record is fair game. See TEX . R. CIV . P. 269(e) (“Counsel shall be
required to confine the argument strictly to the evidence and to the arguments of opposing counsel.”).
The trial court’s pretrial limine rulings prevented Toyota from introducing the evidence, and
the record—specifically, the redacted deposition Toyota offered—reflects Toyota’s compliance with
those rulings. After the Kings’ attorney read the testimony into evidence, and after Toyota’s counsel
repeated the excerpt subsequently, the parties sought clarification from the trial court, who repeatedly
24
stated that the record would reflect what was in evidence. The trial court did not instruct Toyota not
to mention Coon’s statement during closing; rather, she warned that “appropriate sanctions [would]
be issued to either party if they argue outside the record.” (Emphasis added.) We agree with Toyota
that it did not violate the trial court’s rulings by referencing Officer Coon’s deposition in closing.
We acknowledge that appellate courts benefit from the hindsight that a complete record
provides. Trial courts, on the other hand, must make difficult, often dispositive, decisions based on
their recollection and best judgment alone, frequently without the aid of full records, transcripts, or
briefing. Nevertheless, having thoroughly reviewed the record here, we conclude that the trial
court’s articulated reason for granting new trial—that Toyota’s counsel “willfully disregarded,
brazenly and intentionally violated” the limine orders in closing—is unsupported. The record
directly contravenes the order, including the trial court’s acknowledgment during trial that the Kings’
attorney “ha[d] read into the record what [Toyota] wanted published.”
Because the record does not support the articulated reason, the trial court abused its discretion
by granting a new trial on that ground.
2. New Trial as a Sanction
The trial court further explained that it was ordering a new trial pursuant to its inherent
authority to issue sanctions, irrespective of or in addition to Texas Rule of Civil Procedure 320,
because of Toyota’s reference to Officer Coon’s testimony during closing argument. The court held
that the reference was so prejudicial and inflammatory that an instruction to disregard could not
eliminate the harm.
25
A new trial on that basis presupposes sanctionable conduct, and we have just held that
Toyota’s statements during closing argument were appropriate. The record reflects that Toyota and
its counsel complied with the limine orders regarding Officer Coon’s deposition, as demonstrated
by the playback of mechanically redacted portions of the videotaped testimony. There is nothing to
suggest that either Toyota or its counsel intended, prior to the statement’s first introduction by the
Kings’ attorney, to introduce the statement regarding King’s seat belt usage to the jury. In fact,
Toyota made clear prior to Officer Coon’s deposition playback that it had voluntarily deleted the “if
they are not wearing one” excerpt, even though there had been no objection or ruling on that portion
specifically. Once the statement was in evidence, however, and in light of subsequent bench
conferences, Toyota’s reference to it during closing argument was appropriate. Given that, the trial
court abused its discretion in sanctioning Toyota for that conduct.
III. Conclusion
On mandamus review, an appellate court may conduct a merits-based review of the reasons
given for granting a new trial. That review compels us to conclude that the trial court abused its
discretion in granting a new trial here. The stated reasons, though complying in form with the
requirements of Columbia and United Scaffolding, lacked substantive merit. Further, a new trial was
an improper sanction.
26
We conditionally grant relief and order the trial court to withdraw its order and render
judgment on the verdict. We are confident the trial court will comply, and the writ will issue only
if it does not.
___________________________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: August 30, 2013
27