in Re City of Houston

Opinion issued December 5, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00200-CV
———————————
IN RE CITY OF HOUSTON, Relator
Original Proceeding on Petition for Writ of Mandamus
OPINION
Relator, the City of Houston, has petitioned this court for a writ of
mandamus, seeking review of the trial court’s order granting a new trial. * After the
trial court’s ruling, the Supreme Court of Texas decided In re Toyota Motor Sales,
U.S.A., Inc., which announced that a trial court’s legally appropriate and
*
The underlying case is LaShonda Rochelle v. City of Houston, cause number 2011-
01184, consolidated with Mattie Etubom v. City of Houston, cause number 2011-
13741, pending in the 269th District Court of Harris County, Texas, the Honorable
Dan Hinde presiding.
reasonably specific order granting a new trial may be reviewed on its substantive
merits in a mandamus proceeding. 407 S.W.3d 746, 758–59 (Tex. 2013).
Applying that standard of review to this case, we conditionally grant relief.
Background
On the night of May 1, 2009, plaintiff LaShonda Rochelle turned left in front
of a Houston Police Department patrol car driven by Officer K. Parker while he
was on duty and responding to a report of a suspected drunk driver. Plaintiff
Mattie Etubom was a passenger in Rochelle’s vehicle. Officer Parker’s vehicle hit
Rochelle’s vehicle at approximately 60 miles per hour, and both Rochelle and
Etubom sustained injuries.
Approximately one month after the accident, but before any suit had been
filed, attorneys representing Rochelle and Etubom sent a letter to the City’s Public
Affairs Division, requesting that the City preserve a variety of evidence,
specifically including the patrol car involved in the collision, all “components” of
the car or items removed from it, and all “[a]ccident reports, notations,
measurements, reports, reconstruction evaluations and any and all documentation
regarding the collision making the basis of [plaintiffs’] claim.” Despite this
request, several pieces of evidence were lost or destroyed. The patrol car itself was
destroyed when the HPD bomb squad detonated a bomb inside of it as part of a
training exercise, approximately one year after the collision. In addition, the City
2
lost, destroyed, or was otherwise unable to produce either the police call slip
showing the call to which Officer Parker was responding at the time of the
collision or the Mobile Data Terminal from his patrol car.
Rochelle and Etubom brought separate suits against the City of Houston,
which the trial court consolidated. Before trial, Etubom moved for a jury
instruction regarding spoliation of evidence, which the trial court granted over the
City’s opposition. At trial, counsel for the City asked R. White, an HPD officer
and accident investigator, to identify who was at fault in the collision. Officer
White testified that he had found Rochelle to be at fault, and counsel for the City
asked, “How so?” In response, Officer White listed several bases for his
conclusion and then stated, “And a citation was also issued to Ms. Rochelle.” This
testimony violated an order in limine prohibiting mention of any citation that
Rochelle received in connection with the collision. Counsel for Rochelle
immediately objected, moved to strike the testimony, and moved for a mistrial.
The trial court sustained the objection and granted the motion to strike. After a
bench conference, the trial court instructed the members of the jury to disregard
any testimony regarding tickets or citations, and it admonished them that it was
their responsibility, not the responsibility of any witness, to determine who was at
fault in causing the collision. The trial court carried the motion for mistrial, and
the trial continued to a verdict.
3
The jury found that the City bore 60 percent of the responsibility for the
accident and that Rochelle bore the remaining responsibility. Although the jury
awarded damages to both plaintiffs, the jury also found that the accident occurred
while Officer Parker was performing a discretionary duty, in good faith, and within
the scope of his authority, establishing one of the City’s affirmative defenses and
relieving it of liability.
The City moved for judgment on the verdict, which the plaintiffs opposed.
In her response to the City’s motion for judgment, Rochelle moved for a new trial.
Etubom separately moved for judgment notwithstanding the verdict or, in the
alternative, a new trial. The trial court expressly denied the motions for judgment
on the verdict, mistrial, and judgment notwithstanding the verdict, but it granted
the motions for new trial. The trial court found “that a new trial should be granted
for good cause and in the interest of justice pursuant to the Court’s authority under
Rule 320 of the Texas Rules of Civil Procedure and as otherwise permitted by
Texas law.” The trial court’s order contains two bases for this finding. First, the
trial court stated that the City had engaged in repeated misconduct by concealing or
destroying evidence and violating the limine order regarding the citation issued to
Rochelle. Second, the trial court found that a new trial was necessary in light of
newly-discovered evidence, specifically identifying a document in the City’s
possession that had not been produced and a witness who had not been disclosed.
4
Before the date set for the new trial, the City petitioned this court for a writ
of mandamus. At the same time, the City filed a separate motion in this court
requesting a stay of the new trial setting, which we granted. The petition for writ
of mandamus asks this court to order the trial court to vacate its order of a new trial
and enter final judgment on the jury verdict, because the stated bases for the new
trial constitute a clear abuse of discretion. In response, real parties in interest
Rochelle and Etubom argue that the trial court’s order was legally sufficient.
Analysis
Mandamus relief is available only when the trial court has committed a clear
abuse of discretion for which there is no adequate remedy by appeal. In re
Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig.
proceeding). A trial court commits a clear abuse of discretion when its action is
“so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”
In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. proceeding).
A trial court has no discretion in determining what the law is or in applying the law
to the particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.
2004) (orig. proceeding).
A trial court’s order granting a motion for new trial may be reviewed in a
mandamus proceeding. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688–
89 (Tex. 2012) (orig. proceeding). A trial court abuses its discretion if it fails to
5
give specific reasons for setting aside a jury verdict. In re Columbia Med. Ctr. of
Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009) (orig.
proceeding). Rule 320 of the Texas Rules of Civil Procedure gives trial courts
broad discretion in granting new trials, which may be granted for “good cause,” or
“in the interest of justice.” Id. at 210, 213; TEX. R. CIV. P. 320. “But that
discretion is not limitless.” In re Columbia Med. Ctr., 290 S.W.3d at 210.
In United Scaffolding, the Supreme Court of Texas set out standards for
orders granting new trials, holding:
a trial court does not abuse its discretion 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.
377 S.W.3d at 688–89. The Court suggested examples of invalid orders, such as
one based on a reason that is not legally valid, or “if the articulated reasons plainly
state that the trial court merely substituted its own judgment for the jury’s; or that
the trial court simply disliked one party’s lawyer; or that the reason is based on
invidious discrimination.” Id. at 689 (citations omitted). The Court then
proceeded to disapprove an order that stated multiple reasons, each of which was
preceded by “and/or” and one of which was “in the interest of justice and fairness,”
leaving the possibility that the latter, legally insufficient, rationale was the only one
6
supporting the order. Id. at 689–90. The trial court in that case was required to
enter a new order “and elaborate, with reference to the evidence adduced at trial,”
why the facts of the trial supported one or more of the permissible rationales stated
in the new trial order. Id. at 690.
After the trial court granted a new trial in this case, and while the City’s
mandamus petition was pending in this court, the Supreme Court of Texas issued
its opinion in In re Toyota Motor Sales. The Court again considered a petition for
writ of mandamus arising from a new trial order and resolved the question of
“whether an appellate court may, in an original proceeding, determine whether the
reasonably specific and legally sound rationale is actually true.” In re Toyota
Motor Sales, 407 S.W.3d at 749. The Court held that when a trial court enters an
order for a new trial that facially complies with the requirements of Columbia
Medical Center and United Scaffolding, “an appellate court may conduct a merits-
based review of the reasons given.” Id. at 762. If the articulated reasons are not
supported by the law and the record, mandamus relief is appropriate. Id. at 761–
62.
On its face, the order granting a new trial in this case satisfies the standards
articulated in Columbia Medical Center and United Scaffolding. We will therefore
examine each of the trial court’s stated reasons for ordering a new trial. If any of
the reasons given satisfies the standards set forth in Toyota Motor Sales, then the
7
trial court did not abuse its discretion in ordering a new trial and we will deny
relief.
I. Newly–discovered evidence
The second basis stated by the trial court for ordering a new trial was
“material evidence first discovered after trial and brought to the Court’s attention
by Plaintiff Etubom.” When a party moves for a new trial based upon the
existence of newly-discovered evidence, that party has the burden of showing that:
(1) the evidence has come to the party’s attention since trial; (2) it was not owing
to want of due diligence that the evidence did not come to the party’s attention
sooner; (3) the evidence is not merely cumulative of that already presented and
does not tend only to impeach the testimony of the party’s adversary; and (4) the
evidence would probably produce a different result if a new trial were granted.
Chapman v. Abbott, 251 S.W.3d 612, 620 (Tex. App.—Houston [1st Dist.] 2007,
no pet.); see also Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 471 (Tex.
App.—El Paso 2012, no pet.); Connell Chevrolet Co., Inc. v. Leak, 967 S.W.2d
888, 894 (Tex. App.—Austin 1998, no pet.).
The record reveals two purportedly new pieces of evidence. First, although
the City had produced in discovery a copy of HPD General Order 600-01 in effect
at the time of the collision, it did not produce a copy of that order as it was
amended in 2011. Second, Etubom asserted that HPD Officer K. Dozier should
8
have been identified by the City as a person with knowledge of facts relevant to her
claim because Officer Dozier gave deposition testimony regarding General
Order 600-01 in a different case involving a different collision. Both of these
issues were raised for the first time in a supplement to Etubom’s motion for
judgment notwithstanding the verdict or for new trial.
A. HPD General Order 600-01
HPD General Order 600-01 governs response priorities for calls received by
the HPD dispatchers. At the time of the collision, General Order 600-01 specified
that when an officer responds to a Priority 2 call, “The responding officer will
proceed directly to the scene, obey all traffic laws, (unless utilizing red light and
siren), and not stop any traffic violators.” It is undisputed that the report of a drunk
driver to which Officer Parker was responding was a “Priority 2” call. In 2011, the
HPD issued a significantly revised version of General Order 600-01. Among other
changes, the 2011 revision replaced the aforequoted language with the following:
When responding to priority . . . two calls for service, with the use of
emergency equipment, officers must drive with due regard for the
safety of themselves, fellow officers, and citizens. Units are to travel
directly to the scene and not stop any traffic violators or other persons
for minor offenses.
Thus, among other changes, the 2011 revision omitted the language requiring
officers responding to a Priority 2 call either to obey traffic laws or use the patrol
vehicle’s emergency lights and siren. The trial court found that this revision to
9
General Order 600-01 was not discovered by Etubom until after the close of trial
“due to its concealment by the city in discovery,” reasoning that the document was
properly requested in discovery but the City “improperly failed to produce it.” The
trial court further found that the document was “highly relevant and probative of
the defense of discretionary duty alleged by the City of Houston” and that its
production likely would have resulted in a different result at trial.
The plaintiffs had notice that the version of HPD General Order 600-01 in
effect in 2009 was not the only version that had ever existed. When Etubom
requested production of all current, previous, and subsequent versions of all City of
Houston or HPD policies relevant to driving or classification of police calls—a
request that expressly anticipated multiple versions of relevant policies—the City
objected that the request was “not limited in scope or time,” among other reasons.
In an amended response to Etubom’s request, the City reiterated its objections but
also stated that it would produce certain documents, including what it described
only as “HPD General Order 600-01,” and enclosing the order that was in effect at
the time of the accident in 2009. On its face, that version of the order states that it
was issued in 1989 and that it superseded a 1987 version of the same order. More
importantly there is no indication in the record that the plaintiffs sought a ruling on
the City’s objections or that they filed a motion to compel a more complete
response or production of any other versions of the order, such as the 1987 version
10
referenced in the version they received. The law is well settled that when a party
seeking discovery fails to request a hearing and obtain a ruling on discovery
objections, it waives its right to the discovery sought. E.g., In re City of Houston,
No. 14-12-00861-CV, 2013 WL 85097, at *1 n.2 (Tex. App.—Houston [14th
Dist.] Jan. 4, 2013, orig. proceeding) (mem. op.); Roberts v. Whitfill, 191 S.W.3d
348, 361 n.3 (Tex. App.—Waco 2006, no pet.); see also Remington Arms Co. v.
Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (“the failure to obtain a pretrial ruling
on discovery disputes that exist before commencement of trial constitutes a waiver
of any claim for sanctions based on that conduct”); McKinney v. Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa., 772 S.W.2d 72, 75 (Tex. 1989) (the “responsibility for
obtaining a hearing on discovery matters [is] on the party requesting discovery”).
Because the plaintiffs’ failure to obtain the document resulted from their
failure to pursue rulings on the City’s objections to discovery, and therefore
constituted a waiver, we conclude that the trial court abused its discretion to the
extent it ordered a new trial on the basis of the City’s failure to produce the 2011
revision to HPD General Order 600-01.
B. Testimony of Officer Dozier
In its order for new trial, the trial court also identified deposition testimony
of Officer K. Dozier as newly-discovered evidence justifying a new trial. Officer
Dozier testified in another motor-vehicle-collision case in which he was the
11
responding officer and which the City settled shortly after Rochelle and Etubom
proceeded to trial. In his deposition, Officer Dozier testified that the provisions of
General Order 600-01 requiring the use of emergency lights and sirens were
mandatory in May 2009. Officer Dozier also testified that General Order 600-01
required HPD officers responding to Priority 2 calls to obey the posted speed limit,
unless the officer’s emergency lights and siren were active. Nothing in the record
indicates that Officer Dozier had any special knowledge of HPD General Orders or
their proper interpretation as compared to Officers Parker and White.
Nevertheless, while the trial court’s order does not make any explicit findings
about the importance of Officer Dozier’s testimony, it states that a new trial was
warranted because “[d]espite this testimony, Officer Dozier was not identified by
the City of Houston as a person with knowledge of relevant facts in the case.” In
her motion for new trial, Etubom did not suggest that disclosure of Officer Dozier
was required in response to any discovery request. The trial court also referenced
no such discovery obligation, other than the implied reference to the disclosure
obligation of Rule 194.2(e).
The real parties in interest have not provided any legal authority for the
proposition that the discovery of Officer Dozier’s testimony could support a new
trial. Rule 320 cannot be read so broadly as to allow a new trial any time that two
persons with knowledge of a police department policy offer conflicting testimony
12
about that policy. To hold otherwise would effectively require police departments
to disclose every officer as a possible witness in every civil suit in which police
policies or procedures are in dispute, regardless of whether that officer has any
connection to the underlying facts. Similarly, in suits involving corporate entities,
such a rule might require disclosure of every person with knowledge of corporate
policies and procedures in cases implicating those policies or procedures. The
rules do not permit a new trial simply because one or more unknown or
undisclosed persons might disagree as to the existence or interpretation of an
organizational policy. E.g., Armendariz, 390 S.W.3d at 471–72 (newly-discovered
evidence in the form of affidavit from former employee asserting nonexistence of
attendance policy under which plaintiff was terminated was insufficient to warrant
a new trial, because it merely impeached former employer’s witnesses); see also
Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 131 (Tex. App.—Waco 2005,
pet. denied) (newly-discovered evidence tending to show commission of perjury
did not justify new trial, because it merely tended to impeach witness). To read
Rule 320 as permitting a new trial under these circumstances would eviscerate the
relevance limitation on discovery obligations, see TEX. R. CIV. P. 192, as well as
other evidentiary rules intended to limit the scope, expense, and burden of
discovery.
13
In their brief opposing the City’s petition for writ of mandamus, Rochelle
and Etubom rely upon Lopez v. La Madeleine of Texas, Inc., 200 S.W.3d 854, 861
(Tex. App.—Dallas 2006, no pet.), for the proposition that “the discovery rules
requiring the production of documents and identity of witnesses do not allow a
party to benefit from its own gamesmanship.” Lopez involved a party which failed
to disclose relevant evidence but later sought to introduce that same evidence for
purposes of impeachment. Id. at 860–61. The evidence was admitted, and the trial
court denied the objecting party’s motion for new trial. Id. at 856. The court of
appeals held that the non-disclosing party was attempting to engage in
“gamesmanship.” Id. at 861. Here, there has been no such attempt to game the
system, because the City never sought to use the undisclosed evidence. Unlike the
circumstance described in Lopez, the undisclosed evidence in this case was
discoverable by plaintiffs before trial in the exercise of due diligence.
Because the trial court abused its discretion to the extent it granted a new
trial for newly-discovered evidence, we turn to the other rationale given in the new
trial order.
II. Misconduct by the City
The trial court’s first reason for ordering a new trial was alleged misconduct
by the City in discovery and at trial. Specifically, the trial court identified the
following acts and omissions:
14
(1) the withholding and destruction of the police call slip allegedly
showing an emergency call;
(2) the withholding and destruction of the Mobile Data Terminal in
the police cruiser and any data contained therein concerning the
alleged emergency call;
(3) exploding a bomb in the police cruiser involved in the collision;
(4) improperly withholding other relevant and probative
information in the possession of the City of Houston that had
been properly requested in discovery [i.e., 2011 revision to
General Order 600-01 and the testimony of Officer Dozier]; and
(5) violation of the trial court’s order on a motion in limine.
We have already addressed the effect of the non-disclosed information that the trial
court considered as newly-discovered evidence, and the record does not support
characterization of the City’s discovery responses as having been misconduct. We
therefore proceed to consider the remaining acts identified in the order.
A. Spoliation of evidence
The City does not dispute that it was unable to produce the evidence
described in the trial court’s points 1 through 3. These facts, however, cannot
support a new trial. There is no dispute that the call slip, Mobile Data Terminal,
and police cruiser would all remain unavailable in a new trial. Further, the trial
court gave a proper spoliation instruction: “If a Party fails to produce evidence
which is under its control, reasonably available to it, and not reasonably available
to the adverse Party, then you may infer that the evidence is unfavorable to the
Party who could have produced it but did not.” Courts must presume that juries
15
understand and follow the instructions that they are given. E.g., Salinas v. Salinas,
365 S.W.3d 318, 320 (Tex. 2012). There is therefore nothing to be cured with
regard to the spoliation of evidence by conducting a new trial in these
circumstances.
Indeed, a new trial under these circumstances would constitute little more
than a post-trial sanction for discovery abuses that occurred and were known to the
plaintiffs before trial. Plaintiffs waived any claim to such sanctions—beyond the
spoliation instruction—by failing to request them before trial and obtain a ruling.
Remington Arms, 850 S.W.2d at 170. The trial court thus abused its discretion in
ordering a new trial to the extent it did so on the basis of spoliated evidence.
B. Violation of limine order
The final basis that the trial court gave for ordering a new trial was Officer
White’s violation of the trial court’s limine order, prohibiting any mention of the
citation issued to Rochelle. The record reflects that this testimony was not directly
elicited by the City. Rather, after Officer White testified that he determined that
Rochelle was at fault for the accident, he was asked, “How so?” In response he
identified “the totality of the circumstances,” witness statements, and the citation
as the bases for his determination. The trial court promptly sustained an objection
by Rochelle’s counsel, granted a motion to strike the testimony, and instructed the
jury to disregard the testimony about the citation.
16
When a trial court instructs the jury to disregard evidence offered in
violation of a motion in limine, we may review that evidence to determine whether
an instruction to disregard was adequate to cure its admission. See Dyer v. Cotton,
333 S.W.3d 703, 715 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A new trial
may be justified if the impact of the improper testimony was incurable by the trial
court’s instructions. Dove v. Dir., State Emps. Workers’ Comp. Div., 857 S.W.2d
577, 580 (Tex. App.—Houston [1st Dist.] 1993, writ denied). “Violations of an
order on a motion in limine are incurable if instructions to the jury would not
eliminate the danger of prejudice.” Id. (citing Dennis v. Hulse, 362 S.W.2d 308,
309 (Tex. 1962)).
On this record, the violation of the limine order ultimately was harmless
insofar as it respected a matter unrelated to the successful affirmative defense.
“The good cause for which Rule 320 allows trial courts to grant new trials does not
mean just any cause,” and “the fact that the right to jury trial is of such significance
as to be provided for in both the Federal and State Constitutions counsels against
courts setting aside jury verdicts for less than specific, significant, and proper
reasons.” In re Columbia Med. Ctr., 290 S.W.3d at 210 n.3. In this case, there is
no reason to conclude that the instruction actually failed to cure the effect of the
improper testimony. The issuance of a citation was relevant only to the issue of
who bore responsibility for causing the accident, and the jury found that the City
17
bore the greatest responsibility for the accident despite having heard that Rochelle
received a citation. Nevertheless, because the improper testimony had nothing to
do with the affirmative defense of “discretionary duty” on which the City
prevailed, the testimony ultimately was harmless, even if it had not been
disregarded by the jury. Accordingly, we hold that a harmless error cannot
constitute “good cause” for granting a new trial. TEX. R. CIV. P. 320; see In re
Columbia Med. Ctr., 290 S.W.3d at 210 n.3; Glasscock v. Bryant, 185 S.W.2d 595,
600 (Tex. Civ. App.—El Paso 1944, writ ref’d w.o.m.) (Rule 320 “good cause”
requires that “the error complained of affected the result or might reasonably have
so affected the result”); cf. TEX. R. APP. P. 44.1(a).
III. Entry of judgment
The City’s petition asks us not only to order the trial court to vacate its new
trial order but also to order the trial court to enter judgment on the verdict. Such an
order may not be appropriate if the trial court does not state its reasons for granting
a new trial or if the reasons given are unclear, because there may be legitimate
reasons for a new trial that are simply not clear to the appellate court. E.g., In re
United Scaffolding, 377 S.W.3d at 690 (trial court was not required to enter
judgment on the verdict when use of “and/or” and other ambiguities made trial
court’s reasoning unclear); In re Columbia Med Ctr., 290 S.W.3d at 214 (declining
to order judgment on the verdict when trial court had not stated grounds for new
18
trial order). But when the trial court specifies the reasons for a new trial order and
those reasons are invalid, judgment on the verdict is proper. E.g., In re Toyota
Motor Sales, 407 S.W.3d at 762. Because we conclude that ordering a new trial
for any of the reasons specified in the trial court’s order would constitute an abuse
of discretion, we hold that the City is entitled to judgment on the jury’s verdict.
Instead of addressing the merits of the mandamus petition, the dissent takes
issue with our conclusion that the ultimate relief in this proceeding should echo
that specified by the Supreme Court in In re Toyota Motor Sales, that is, that the
trial court should be instructed to enter judgment on the verdict. In so doing, the
dissent criticizes our failure to expand the scope of our mandamus review to
analyze the merits of other post-trial motions, particularly the City’s motion for
entry of judgment on the verdict and the plaintiffs’ motions for judgment
notwithstanding the verdict. The trial court expressly denied those motions—and
our dissenting colleague’s suggestion that there is an “absence of a ruling on the
merits of these motions from the trial court itself” is simply inaccurate. The trial
court’s order concluded:
(1) The Motions for Judgment Notwithstanding the Verdict are
DENIED;
(2) The Motions for Mistrial are DENIED;
(3) The City of Houston’s Motion for Entry of Judgment is
DENIED; and
19
(4) The Motions for New Trial of Plaintiffs Etubom and Rochelle
are GRANTED.
MR tab A, at 2-3. No party has challenged those rulings in this original
proceeding, nor has any party suggested that the merits of those rulings should be
revisited by our court or by the trial court. At oral argument, we raised the
possibility that we might find the grounds for new trial identified by the trial court
to be legally unsupportable, and we specifically asked plaintiffs’ counsel whether
there was any other legal argument for a new trial remaining to be addressed by the
trial court. Counsel identified none.
Our colleague speculates that the plaintiffs’ motions for JNOV could have
been denied because they were considered by the trial court to be mooted by the
grant of a new trial, as opposed to the merits of the motions. Such conjecture finds
no support in the trial court’s clear enumeration of its rulings, specifying first that
the motions for JNOV were “DENIED” and that the motions for mistrial were
“DENIED” before further indicating that the motions for new trial were
granted. In response to the suggestion that we have “implicitly” denied the
plaintiffs’ motions for JNOV on their merits or ruled on any other collateral matter,
we specifically disclaim any prejudgment of the merits of any appeal or other
proceeding which may raise such issues in the future.
Had the trial court remained silent on the subject of plaintiffs’ motions for
JNOV, or had it expressly stated the motions were “mooted” rather than ruling that
20
they were “denied,” then of course those procedural circumstances would inform
the nature of the relief granted by this court. But given that no party has asked us
to review the trial court’s collateral rulings, and considering that the plaintiffs still
have the procedural avenue of a direct appeal in which they can seek review of the
denial of the motions for JNOV, we find it appropriate to rule, as the Supreme
Court did in In re Toyota Motor Sales, that the trial court should “withdraw its
order and render judgment on the verdict.” 407 S.W.3d at 762.
Conclusion
We conditionally grant the City’s petition for writ of mandamus. We order
the trial court to withdraw its order of new trial and enter judgment on the jury
verdict. We are confident that the trial court will comply, and the writ will issue
only if it does not.
Michael Massengale
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Justice Keyes, dissenting.
21