brief on the merits - texas appellate watch

NO. 10-0933

IN THE SUPREME COURT OF TEXAS

__________________________________________________________________

IN RE TOYOTA MOTOR SALES, U.S.A., INC. AND VISCOUNT PROPERTIES II, L.P., D/B/A

HOY FOX TOYOTA/LEXUS,

Relators. __________________________________________________________

RELATORS’ BRIEF ON THE MERITS

__________________________________________________________

Scott P. Stolley State Bar No. 19284350 Richard B. Phillips, Jr. State Bar No. 24032833 THOMPSON & KNIGHT LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 214.969.1700 214.969.1751 (facsimile)

Kurt C. Kern State Bar No. 11334600

David P. Stone State Bar No. 19289060

BOWMAN AND BROOKE LLP 2711 N. Haskell Avenue

Suite 650 Dallas, Texas 75204

972.616.1700 972.616.1701 (facsimile)

COUNSEL FOR RELATORS ORAL ARGUMENT REQUESTED

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LIST OF PARTIES AND COUNSEL

Relators/Defendants Appellate Counsel

Toyota Motor Sales, U.S.A., Inc. Scott P. Stolley Richard B. Phillips, Jr. Thompson & Knight LLP Viscount Properties II, L.P., One Arts Plaza d/b/a Hoy Fox Toyota/Lexus 1722 Routh Street Suite 1500 Dallas, Texas 75201 Kurt C. Kern David P. Stone1 Bowman and Brooke LLP 2711 N. Haskell Avenue Suite 650 Dallas, Texas 75204 Trial Counsel Kurt C. Kern David P. Stone Bowman and Brooke LLP 2711 N. Haskell Avenue Suite 650 Dallas, Texas 75204 Carlos Rincon Rincon Mounts, P.C. 1014 N. Mesa Suite 200 El Paso, Texas 79901

1 Until January 2011, Messrs. Kern and Stone were with Hartline, Dacus, Barger,

Dreyer & Kern in Dallas.

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Respondent Counsel

Hon. Patricia B. Chew2 unknown Statutory Probate Court No. 1 703 Courthouse 500 E. San Antonio Avenue El Paso, Texas 79901-2496

Real Parties in Interest/Plaintiffs Trial and Appellate Counsel

Rebecca King, Individually, Enrique Chavez, Jr. and as Heir and Personal The Chavez Law Firm Representative of Richard King, 2101 Stanton Street Deceased, and as Parent and El Paso, Texas 79902 Next Friend of Rhae Lynn King and Ryan Jacob King Enrique Moreno Law Office of Enrique Moreno Rene Jasmine King 701 Magoffin Avenue El Paso, Texas 79901 Maria Luisa King

2 The case was tried by the former judge of this court, the Hon. Yvonne T.

Rodriguez, who lost her seat in the 2010 elections. Judge Rodriguez signed the new-trial order at issue before she left the bench. In an order signed on May 24, 2011, the successor judge (Hon. Patricia B. Chew) denied Toyota’s motion to reconsider the granting of the new trial. (See App. Tabs D, E.) Under TEX. R. APP. P. 7.2(a), Judge Chew is automatically substituted as the Respondent.

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TABLE OF CONTENTS

Page

List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

________________________________________________________________________ Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xx Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . xx

________________________________________________________________________ Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi (1) Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi (a) Interest of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . xxi (b) Sanction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi (2) Reviewable by Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . xxi (3) Correctable by Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . xxi Mandamus Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii

________________________________________________________________________ Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 (1) The King Family’s Allegations . . . . . . . . . . . . . . . . . . . . . . . 2 (2) The Motions in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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(3) Officer Coon’s Video Testimony . . . . . . . . . . . . . . . . . . . . . . 2 (4) Other Testimony About Seatbelt Nonusage . . . . . . . . . . . . . . . . 4 (5) Toyota’s Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . 4 (6) The Verdict and Take-Nothing Judgment . . . . . . . . . . . . . . . . . . 5 (7) The Motion for New Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 5 (8) The Amended Motion for New Trial . . . . . . . . . . . . . . . . . . . . 6 (9) The Order Granting a New Trial . . . . . . . . . . . . . . . . . . . . . . . 6 (10) The Court of Appeals’ Decision . . . . . . . . . . . . . . . . . . . . . . . 7 (11) Reconsideration Denied . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

________________________________________________________________________ Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 (1) Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 (2) Reviewable by Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . 8 (3) Correctable by Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . 8

________________________________________________________________________ Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. The trial court abused its discretion by granting a new trial “in the interest of justice” based on Toyota’s closing argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The King Family preserved no error as to the injection of Coon’s testimony into the record. . . . . . . . . . . . 9 B. Toyota’s closing argument was based on the

record and was therefore permissible. . . . . . . . . . . . . . . . . 11

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C. The King Family waived any error by not requesting a curative instruction about Toyota’s closing argument. . . . . . . . . . . . . . . . . . . . . . 12 2. The trial court abused its discretion by granting a new trial as a sanction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. Toyota’s closing argument was not sanctionable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 B. The sanction award does not satisfy this Court’s two-part test. . . . . . . . . . . . . . . . . . . . . . . . . . 17 (1) The sanction is not directly related to the alleged misconduct. . . . . . . . . . . . . . . . . . . . 17 (2) The sanction is not narrowly tailored to the alleged misconduct. . . . . . . . . . . . . . . . . . . 18 C. The King Family did not properly move for a new trial as a sanction. . . . . . . . . . . . . . . . . . . . . . . . 19 D. Summary Regarding the Sanction Ground . . . . . . . . . . . . . 20 3. Newly discovered evidence is neither a stated nor a valid ground for the new trial. . . . . . . . . . . . . . . . . . . . . . . . . 20 A. A new-trial order cannot be supported by a ground not stated in the order. . . . . . . . . . . . . . . . . . . . . 21 B. The allegation of newly discovered evidence is not a valid ground for the new trial. . . . . . . . . . . . . . . . 23 (1) For procedural reasons, the allegation of newly discovered evidence is an invalid ground for the new trial. . . . . . . . . . . . . . . . 23 (2) For substantive reasons, the allegation of newly discovered evidence is an invalid ground for the new trial. . . . . . . . . . . . . . . . 24

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4. An appellate court can conduct a mandamus review to determine whether the reasons given for a new trial are valid, significant, and proper. . . . . . . . . . . . . . . . . . . . . . . 27 A. The next logical step following Columbia is mandamus review of the merits of new-trial orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 B. The dispositions in Columbia and other cases signaled this Court’s intention to allow mandamus review of the merits of new-trial orders. . . . . . . . . . . 28 C. The Court’s reasoning in Columbia further signaled the intent to allow merits review. . . . . . . . . . . . . . 30 D. The El Paso Court of Appeals adopted an

overly narrow view of its mandamus power. . . . . . . . . . . . . 33 E. The courts of appeals are not following Columbia’s lead. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 (1) The Beaumont Court of Appeals may allow limited review of the procedure employed. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 (2) The Texarkana Court of Appeals initially allowed review, but then backtracked. . . . . . . . . . . . 35 (3) At least four other courts have denied review without disclosing their reasoning. . . . . . . . . . 37 F. Mandamus review of new-trial orders is

consistent with Texas mandamus law. . . . . . . . . . . . . . . . 39 G. Texas courts have, in fact, performed such reviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 H. Appellate courts are capable of conducting

mandamus reviews of the merits of new- trial orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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5. The probate court’s abuse of discretion is correctable by mandamus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

________________________________________________________________________ Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

________________________________________________________________________ Appendices (attached to this brief)

A ― Court of Appeals opinion (In re Toyota Motor Sales, U.S.A., Inc., 327 S.W.3d 302 (Tex. App. ―El Paso 2010, orig. proceeding [mand. pending]). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab A B ― Court of Appeals judgment . . . . . . . . . . . . . . . . . . . . . Tab B

C ― Order Granting New Trial . . . . . . . . . . . . . . . . . . . . . Tab C

D ― Defendants’ Motion for Reconsideration ` Regarding Order Granting Motion for New Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab D

E ― Order Denying Defendants’ Motion for Reconsideration Regarding Order Granting Motion for New Trial . . . . . . . . . . . . . . . . . . . . . . . . Tab E

________________________________________________________________________ Mandamus Record (bound separately and filed when the Petition for Writ of Mandamus was filed)

1 ― Plaintiffs’ Fifth Amended Petition . . . . . . . . . . . . . . . . . . Tab 1 2 ― Plaintiffs’ Sixth Amended Petition . . . . . . . . . . . . . . . . . Tab 2 3 ― Plaintiffs’ Motion in Limine . . . . . . . . . . . . . . . . . . . . . Tab 3

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4 ― Plaintiffs’ Supplemental Motion in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 4 5 ― Charge of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 5 6 ― Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 6 7 ― Plaintiffs’ Motion for New Trial . . . . . . . . . . . . . . . . . . . Tab 7 8 ― Defendants’ Response to Plaintiffs’ Motion for New Trial (with Exs. 1-4) . . . . . . . . . . . . . . . . Tab 8 9 ― Plaintiffs’ First Amended Motion for New Trial (with Ex. 1) . . . . . . . . . . . . . . . . . . . . . . Tab 9 10 ― Defendants’ Response to Plaintiffs’ First Amended Motion for New Trial (and Motion to Strike) (with Exs. 1-4) . . . . . . . . . . . . . . . Tab 10 11 ― Order Granting New Trial . . . . . . . . . . . . . . . . . . . . . Tab 11 12 ― Transcript of hearing on motion for new trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 12 13 ― Reporter’s Record excerpt (6 RR 1, 318, 331-34, 356) . . . . . . . . . . . . . . . . . . . . . Tab 13 14 ― Reporter’s Record excerpt (9 RR 1, 21, 209-10, 347) . . . . . . . . . . . . . . . . . . . . . Tab 14 15 ― Reporter’s Record excerpt (12 RR 162-65, 186-263, 274) . . . . . . . . . . . . . . . . . . . Tab 15 16 ― Excerpt from transcript of January 16, 2009 hearing (pages 1, 16-20, 87) . . . . . . . . . . . . . . . . . Tab 16

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________________________________________________________________________ Supplemental Mandamus Record (filed electronically with this Brief on the Merits)

20-volume Reporter’s Record of the trial (electronically filed in 24 pdf files)

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INDEX OF AUTHORITIES

Page CASES

American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Austin v. Shampine, 948 S.W.2d 900 (Tex. App.—Texarkana 1997, writ dism’d by agr.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bayerische Motoren Werke Aktiengesellschaft v. Roth, 252 P.3d 649 (Nev. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex. App.—Amarillo 1995, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Bledsoe v. Burleson, 289 S.W. 143 (Tex. Civ. App.—Austin 1927), writ dism’d, 294 S.W. 516 (Tex. Comm’n App. 1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 48 Brown v. Hopkins, 921 S.W.2d 306 (Tex. App.—Corpus Christi 1996, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Burleson State Bank v. Plunkett, 27 S.W.3d 605 (Tex. App.—Waco 2000, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Buttery v. Betts, 422 S.W.2d 149 (Tex. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42 Chapman v. Abbot, 251 S.W.3d 612 (Tex. App.—Houston [1st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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Chevron U.S.A. Inc. v. Lara, 786 S.W.2d 48 (Tex. App.—El Paso 1990, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Clark v. Bres, 217 S.W.3d 501 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 32, 39, 46 Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Cummins v. Paisan Constr. Co., 682 S.W.2d 235 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Davis v. Stallones, 750 S.W.2d 235 (Tex. App.—Houston [1st Dist.] 1987, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012 (1924) . . . . . . . . . . . . . . . . . . . . . . . . 46 Friske v. Graham, 128 S.W.2d 139 (Tex. Civ. App.—San Antonio 1939, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993) (orig. proceeding) . . . . . . . . . . . 16, 18-19, 19 Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56 (Tex. App.—Houston [14th Dist.] 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Gulf, C. & S.F. Ry. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926) . . . . . . . . . . . . . . . . . . . . . 21, 41-42 In re Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999) (orig. proceeding) . . . . . . . . . . . . . . . . . . 25

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In re Bayerische Motoren Werke, AG, 8 S.W.3d 326 (Tex. 2000) (orig. proceeding) . . . . . . . . . . . . . . . 30, 32, 40 In re Baylor Med. Ctr., 289 S.W.3d 859 (Tex. 2009) (orig. proceeding) . . . . . . . . . . . . . . . 29, 40 In re Bennett, 960 S.W.2d 35 (Tex. 1997) (orig. proceeding) . . . . . . . . . . . . . . . . . . . 15 In re C.R.S., No. 04-10-00173-CV, 2010 WL 1492335 (Tex. App.—San Antonio Apr. 14, 2010, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re C.R.S., 310 S.W.3d 897 (Tex. App.—San Antonio 2010, orig. proceeding [mand. denied]) . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding) . . . . . 1, 20, 22, 27, 28, 30, 31, 32, 33, 39, 40, 42, 45,46, 47, 48, 49 In re Dickason, 987 S.W.2d 570 (Tex. 1998) (orig. proceeding) . . . . . . . . . . . . . . . . . . 42 In re E.I. du Pont de Nemours & Co., 289 S.W.3d 861 (Tex. 2009) (orig. proceeding) . . . . . . . . . . . . . . . 29, 40 In re Earle, No. 04-10-00430-CV, 2010 WL 2411987 (Tex. App.—San Antonio June 16, 2010, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re Hunter, 306 S.W.3d 422 (Tex. App.—Dallas 2010, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re Lufkin Indus., Inc., 317 S.W.3d 516 (Tex. App.—Texarkana 2010, orig. proceeding [mand. denied]) . . . . . . . . . . . . . . . . . . . . . . . 35, 36

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In re Motor Trike, Inc., No. 13-11-00277-CV, 2011 WL 2473064 (Tex. App.—Corpus Christi June 17, 2011, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 In re Patton, 47 S.W.3d 825 (Tex. App.—Fort Worth 2001, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding) . . . . . . . . . . . . . 40, 41, 48 In re Smith, 332 S.W.3d 704 (Tex. App.—Texarkana 2011, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 In re Smith, No. 02-11-00196-C, 2011 WL 2185697 (Tex. App. —Fort Worth June 3, 2011, orig. proceeding) . . . . . . . . . . . . . . . . . . . 38 In re Smith, No. 02-10-173-CV, 2010 WL 2432031 (Tex. App. —Fort Worth June 17, 2010, orig. proceeding) . . . . . . . . . . . . . . . . . . . 38 In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) . . . . . . . . . . . . . 39, 40, 41 In re The Gladney Ctr., No. 2-10-107-CV, 2010 WL 2105872 (Tex. App. —Fort Worth May 20, 2010, orig. proceeding) . . . . . . . . . . . . . . . . . . . 38 In re Toyota Motor Sales, U.S.A., Inc., 327 S.W.3d 302 (Tex. App.—El Paso 2010, orig. proceeding [mand. pending]) . . . . . . . . . . . . . . . . . . vii, xix, 7, 33 In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010) (orig. proceeding) . . . . . . . . . . . . . . . 29, 40 In re United Scaffolding, Inc., 315 S.W.3d 246 (Tex. App.—Beaumont 2010, orig. proceeding [mand. pending]) . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

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In re Volkswagen of Am., Inc., 22 S.W.3d 462 (Tex. 2000) (orig. proceeding) . . . . . . . . . . . . . . . . 31, 40 In re Whataburger Rests., LP, No. 08-10-00250-CV, 2010 WL 4983563 (Tex. App.—El Paso Dec. 8, 2010, orig. proceeding [mand. pending]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 King v. Smith, 459 S.W.2d 202 (Tex. Civ. App.—Corpus Christi 1970, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Kutch v. Del Mar Coll., 831 S.W.2d 506 (Tex. App.—Corpus Christi 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 L.B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280 (Tex. Civ. App.—Houston 1964, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Larson v. Cactus Util. Co., 730 S.W.2d 640 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Lloyd v. Brinck, 35 Tex. 1, 1872 WL 7342 (1871) . . . . . . . . . . . . . . . . . . . . . . . . . . 42 McGregor v. Allen, 195 S.W.2d 945 (Tex. Civ. App.—Amarillo 1946, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 43 Mendez v. International Playtex, Inc., 776 S.W.2d 732 (Tex. App.—Corpus Christi 1989, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Merrifield v. Seyferth, 408 S.W.2d 558 (Tex. Civ. App.—Dallas 1966, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Meyer v. State, 372 S.W.2d 764 (Tex. Civ. App.—Beaumont 1963, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Oakland Raiders v. National Football League, 161 P.3d 151 (Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Oil Well Supply Co. v. Marchman, 293 S.W. 305 (Tex. Civ. App.—Texarkana 1927, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834 (Tex. App.—Dallas 2008, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Scott v. Monsanto Co., 868 F.2d 786 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . 12, 32, 39, 46 Smith v. Nguyen, 855 S.W.2d 263 (Tex. App.—Houston [14th Dist.] 1993, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 State Bar of Tex. v. Evans, 774 S.W.2d 656 (Tex. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 State Dep’t of Highways & Pub. Transp. v. King, 795 S.W.2d 888 (Tex. App.—Beaumont 1990), writ denied, 888 S.W.2d 465 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . 13 State v. Finch, 349 S.W.2d 780 (Tex. Civ. App.—San Antonio 1961, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Page

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Sweeney v. Jarvis, 6 Tex. 36, 1851 WL 3930 (1851) . . . . . . . . . . . . . . . . . . . . . . . 44, 46 Tarbutton v. Ambriz, 282 S.W. 891 (Tex. Civ. App.—San Antonio 1926, writ ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Texas Sand Co. v. Shield, 381 S.W.2d 48 (Tex. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (orig. proceeding) . . . . . . . . . . . . . . . 16, 18 Trinity Capital Corp. v. Briones, 847 S.W.2d 324 (Tex. App.—El Paso 1993, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43 Van Steenburgh v. Rival Co., 171 F.3d 1155 (8th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 W.T. Rawleigh Co. v. Sims, 108 S.W.2d 332 (Tex. Civ. App.—Amarillo 1937, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Waddell v. Williams, 356 S.W.2d 500 (Tex. Civ. App.—Eastland 1959, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22, 43 Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 42 Yuen v. Fisher, 227 S.W.3d 193 (Tex. App.—Houston [1st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONSTITUTIONS TEX. CONST. art. I, § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 TEX. CONST. art. V, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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STATUTES TEX. GOV’T CODE ANN. § 22.002(a) (Vernon 2004) . . . . . . . . . . . . . . . . . . . . xx TEX. GOV’T CODE ANN. § 25.0731(b) (Vernon Supp. 2010) . . . . . . . . . . . . . . . xx

RULES TEX. R. APP. P. 7.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TEX. R. APP. P. 7.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 13 TEX. R. APP. P. 52.7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii TEX. R. APP. P. 52.7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxii TEX. R. CIV. P. 269(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 TEX. R. CIV. P. 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 TEX. R. CIV. P. 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20 TEX. R. CIV. P. 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 TEX. R. CIV. P. 324(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SECONDARY AUTHORITIES W. Wendall Hall, et al., Hall’s Standards of Review in Texas, 42 ST. MARY’S L.J. 3 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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STATEMENT OF THE CASE

Nature of the Case Product-liability case involving a rollover accident in which driver Richard King was killed after being ejected from a Toyota vehicle. (Rec. Tabs 1, 2.) Relators Defendants in the underlying case (collectively, “Toyota”): (1) Toyota Motors Sales, U.S.A., Inc. (2) Viscount Properties II, L.P., d/b/a Hoy Fox Toyota Lexus (Rec. Tabs 1, 2.) Respondent Hon. Patricia B. Chew, Statutory Probate Court No. 1, El Paso County (successor to Hon. Yvonne T. Rodriguez, who tried the case and signed the new-trial order, but subsequently left the bench after losing in the 2010 election). (App. Tabs C, E; Rec. Tab 11; see note 2 on page ii, above.) Real Parties in Interest Plaintiffs in the underlying case (the “King Family”): (1) Rebecca King, Individually, and as Heir and Personal Representative of Richard King, Deceased, and as Parent and Next Friend of Rhae Lynn King and Ryan Jacob King (2) Rene Jasmine King (3) Maria Luisa King (Rec. Tabs 1, 2.) Trial Court Action Defense verdict for Toyota. (Rec. Tab 5.) Take-nothing judgment then entered for Toyota. (Rec. Tab 6.) Judgment vacated and new trial ordered by Judge Rodriguez on September 22, 2009. (App. Tab C.) Reconsideration denied by Judge Chew on May 24, 2011. (App. Tab E.)

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Mandamus in On November 9, 2009, Toyota filed a Court of Appeals mandamus petition in the El Paso Court of Appeals, Cause No. 08-09-00293-CV, requesting that the new-trial order be vacated and the take-nothing judgment be reinstated. Appellate Panel Opinion authored by Chief Justice David Wellington Chew, joined by Justices Ann Crawford McClure and Guadalupe Rivera. Opinion In re Toyota Motor Sales, U.S.A., Inc., 327 S.W.3d 302 (Tex. App.—El Paso 2010, orig. proceeding [mand. pending]) (issued Sept. 29, 2010). (App. Tab A.) Disposition in Mandamus denied, on the basis that the trial Court of Appeals court’s reasons for granting a new trial are not subject to mandamus review on the merits. 327 S.W.3d at 305-06.

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STATEMENT OF JURISDICTION

The Court has jurisdiction over this mandamus petition under Texas Government

Code section 22.002(a), which states that the Court may issue all writs of mandamus,

agreeable to the principles of law regulating those writs, against a judge of a statutory

probate court. TEX. GOV’T CODE ANN. § 22.002(a) (Vernon 2004). Statutory Probate

Court No. 1 of El Paso County is a statutory probate court. Id. § 25.0731(b) (Vernon

Supp. 2010).

STATEMENT REGARDING ORAL ARGUMENT

Because this original proceeding involves emerging law about mandamus review

of new-trial orders (see section 4 on pages 27-48, below), Toyota requests oral argument.

Toyota believes that the Court will benefit from the opportunity to question counsel about

(1) this emerging area of law, and (2) the abuse of discretion in vacating Toyota’s defense

verdict for reasons that are patently invalid.

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ISSUES

(1) Abuse of Discretion ― Did the trial court abuse its discretion by vacating

Toyota’s defense verdict and granting a new trial for two reasons that are invalid and

improper, when those reasons are reviewed in light of the undisputed record, settled law,

and the King Family’s clear failure to preserve error?

In particular, with respect to Toyota’s closing argument about the police officer’s testimony:

(a) Interest of Justice — Was it an abuse of discretion to grant a new trial in the “interest of justice” when: (i) the officer’s testimony was injected into the record twice (including once by the King Family’s counsel) without objection; and (ii) the King Family’s counsel did not request a curative instruction as to Toyota’s closing argument?

(b) Sanction — Was it an abuse of discretion to grant a new trial as a sanction when: (i) arguing about evidence that is in the record is not sanctionable conduct; (ii) granting a new trial is not a legally available sanction; and (iii) the King Family did not request any sanction in writing, let alone a new trial as a sanction?

(2) Reviewable by Mandamus ― After a trial court follows this Court’s mandate

in Columbia by stating the specific reasons for granting a new trial, can an appellate court

conduct a mandamus review (applying the abuse-of-discretion standard) to ensure that

the stated reasons are (in the words used in Columbia) valid, significant, and proper?

(3) Correctable by Mandamus ― Is the trial court’s abuse of discretion

correctable by mandamus because this case presents exceptional circumstances, there is

no appellate remedy at this stage of the proceedings, and appeal is not an effective

remedy after a retrial?

-xxii-

MANDAMUS RECORD

Per the usual procedure in an original proceeding, Toyota has compiled and

submitted the mandamus record that it believes is pertinent to this proceeding. See TEX.

R. APP. P. 52.7(a). First, Toyota has attached five documents to the appendix to this

brief. Toyota will refer to them as App. Tabs A, B, C, D, and E. (See page vii, above.)

The rest of the original record is separately bound and tabbed, and was filed along

with the Petition for Writ of Mandamus. (See pages vii-viii, above.) Toyota will refer to

those documents by tab number (e.g., Rec. Tab 1, etc.).

Under TEX. R. APP. P. 52.7(b), Toyota has supplemented the record in two ways.

First, Toyota has attached two new documents in the Appendix to this Brief on the

Merits. The two new documents are at App. Tabs D and E. (See page vii, above.)

Second, Toyota is electronically filing the 20-volume reporter’s record. (See page ix,

above.) Given the narrow grounds on which the trial court granted the new trial. Toyota

believes that the entire reporter’s record is not pertinent to this mandamus proceeding.

By filing the entire reporter’s record, Toyota is simply acting out of an abundance of

caution. Toyota will refer to these volumes by volume and page number (e.g., 10 RR

50).

RELATORS’ BRIEF ON THE MERITS Page 1

INTRODUCTION

After a hard-fought, twelve-day trial in El Paso, Toyota won a defense verdict in

this wrongful-death case. (Rec. Tab 5; see generally 1 RR to 20 RR.) The trial court

then erased this victory by granting a new trial for two reasons that are demonstrably

invalid and improper. (App. Tab C; see sections 1 & 2 on pages 9-20, below.) Those

reasons are based on (1) a flatly erroneous view of the undisputed record, and (2) a

failure to follow clear law. This judicial nullification of a jury verdict should not be

tolerated. Under any set of principled legal rules, the jury verdict should be respected,

and Toyota should retain its victory.

In Columbia, this Court announced that, for several reasons (including

transparency in the judicial process), mandamus is available to require a trial judge to

state the specific reasons for granting a new trial. In re Columbia Med. Ctr. of Las

Colinas, Subsidiary, L.P., 290 S.W.3d 204, 206, 213, 215 (Tex. 2009) (orig. proceeding).

One way for the Court to restore Toyota’s victory is to answer Columbia’s open question:

whether mandamus is available to review the merits of a new-trial order to ensure that the

specific reasons given are valid, significant, and proper. The courts of appeals are

generally answering that Columbia does not authorize such review. If this emerging rule

becomes established law, then the common-law power of a trial judge to grant a new trial

will be elevated over the constitutional right to a jury trial. Also, denying such review

power will result in meaningless transparency without accountability. To complete what

Columbia began, to protect jury verdicts, and to foster accountability, the Court should

allow mandamus review of the merits of a new-trial order.


STATEMENT OF FACTS

(1) The King Family’s Allegations

The King Family alleged in their petition that Richard King was driving a Toyota

4Runner vehicle that was involved in a rollover accident. (Rec. Tabs 1, 2.) King died

after being ejected from the vehicle during the rollover. (Rec. Tabs 1, 2.) The King

Family sued Toyota Motor Sales, U.S.A., Inc. (as the alleged manufacturer of the

4Runner) and Viscount Properties (as the dealer that sold the 4Runner), alleging that the

occupant-restraint system was defective by allowing King to be ejected. (Rec. Tabs 1, 2.)

(2) The Motions in Limine

Before trial, the King Family filed motions in limine that, among other things,

sought to exclude testimony from police officer Justin Coon, who investigated the

accident. (Rec. Tab 3 at ¶ 4; Rec. Tab 4 at ¶ 24.) Coon stated in his deposition that King

was not wearing his seatbelt at the time of the accident. (Rec. Tab 8 at Ex. 1.) The trial

court granted the motion in limine to exclude Coon’s statement about King’s seatbelt

nonusage. (Rec. Tab 16 at 20.)

(3) Officer Coon’s Video Testimony

The pertinent deposition testimony from Coon was as follows:

Q. Did you inspect the [seatbelt] webbing, to see if there were any marks on it?

A. There was not any. Q. And did you look at it? A. I always look at the seatbelt, if they are not wearing

one.


Q. Did you pull the seatbelt out? A. No, I did not.

(Rec. Tab 8 at Ex. 1 (emphasis added).) At trial, Toyota’s counsel adhered to the limine

ruling by omitting the italicized portions above when playing Coon’s deposition video to

the jury. (Rec. Tab 13 at 332.)

The King Family’s counsel interrupted the video presentation to ask that the last

question and answer above be read to the jury under the rule of optional completeness.

(Id.) In the process, counsel disclosed to the jury Coon’s entire answer:

MR. MORENO: 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.

(Id. (emphasis added).) Thus, the King Family’s counsel himself revealed to the jury the

information that he had excluded by the limine order ― specifically, Coon’s statement

that King was not wearing his seatbelt.

Toyota’s counsel then asked that the entire answer (“if they are not wearing one”)

be read into the record since the King Family’s counsel had just revealed that portion of

the answer to the jury. (Id. at 332-34.) In response, the trial court acknowledged three

times that the King Family’s counsel had already recited into the record the portion of the

answer that Toyota’s counsel wanted read into the record. (Id.) The King Family’s

counsel never asked that the statement “if they are not wearing one” be stricken or that

the jury be instructed to disregard that portion of the answer. (Id.)


(4) Other Testimony About Seatbelt Nonusage

Later in the trial, during Toyota’s questioning of its expert (William Van Arsdell),

the jury was again told about Coon’s opinion:

Q. Did you read the deposition of Officer Coon? A. Yes, I did. Q. And based on your reading of his deposition, did he

examine the driver’s seatbelt of the Toyota 4Runner? A. Yes, he said he always would examine the seatbelts, if

someone was not wearing their seatbelt.

(Rec. Tab 14 at 209-10.) The King Family’s counsel did not object to this testimony, ask

that it be stricken, or ask that the jury be told to disregard it. (Id.)

In addition to the two instances where the jury heard about Coon’s opinion, the

jury heard opinions from: (a) two purported experts for the King Family that King was

wearing his seatbelt; and (b) one expert for Toyota that King was not wearing his

seatbelt. (See 3 RR 8-248; 4 RR 9-77; 5 RR 133-231; 6 RR 8-254; 8 RR 178-293; 9 RR

22-341.) The jury also heard testimony and viewed physical evidence (or the absence of

physical evidence) demonstrating that King was not wearing his seatbelt. (Id.)

(5) Toyota’s Closing Argument

Before closing arguments, the King Family’s counsel asked the trial court to

prohibit Toyota’s counsel from arguing to the jury that Coon believed that King was not

wearing his seat belt. (Rec. Tab 15 at 162-65.) Toyota’s counsel stated that he intended

to mention Coon’s testimony because it was in the record. (Id.) The trial court expressed

some uncertainty about whether Coon’s testimony was in the record, even though the


court had earlier stated at least three times that Coon’s statement was recited into the

record. (Rec. Tab 13 at 332-34; Rec. Tab 15 at 163-64.) Nevertheless, the trial court did

not prohibit Toyota’s counsel from making the argument. (Rec. Tab 15 at 163-65.)

Instead, the court merely told the King Family’s counsel to make an objection, and said

that the court would consider appropriate sanctions for arguing outside the record. (Id.)

During closing argument, Toyota’s counsel recited Coon’s testimony to the jury

(“I always look at the seatbelts if they are not wearing one.”). (Id. at 239.) After the

King Family’s counsel objected to this argument “as a violation of the court’s order,” the

court sustained the objection. (Id.) The King Family’s counsel did not, however, ask that

the jury be instructed to disregard Toyota’s argument. (Id. at 239-40.)

(6) The Verdict and Take-Nothing Judgment

In answer to the first question in the jury charge, the jury found (by a 10-2 vote)

that there was no defect in the occupant-restraint system that was a producing cause of

King’s death. (Rec. Tab 5.) As a result of this answer, the jury did not have to answer

the other questions in the charge. (Id.) Based on this verdict, the trial court entered a

July 13, 2009 Final Judgment that the King Family take nothing. (Rec. Tab 6.)

(7) The Motion for New Trial

The King Family filed a timely motion for new trial in which they asked for a new

trial “in the interest of justice.” (Rec. Tab 7.) They argued that Toyota’s counsel had

violated court orders and argued outside the record by mentioning Coon’s opinion during

closing argument. (Id.) They contended that this closing argument by Toyota’s counsel

was so prejudicial as to be incurable. (Id.)


(8) The Amended Motion for New Trial

More than 30 days after the judgment was signed, the King Family filed an

amended motion for new trial. (Rec. Tab 9.) In this untimely motion, they repeated the

argument from their first motion, but also added a new argument about newly discovered

evidence. (Id.) Specifically, they referred to a lawsuit filed against Toyota in California,

in which a former Toyota in-house counsel contended that Toyota had withheld discovery

in certain lawsuits. (Id.) The trial court did not hold an evidentiary hearing on the claim

of newly discovered evidence. (Rec. Tab 12.)

In response, Toyota objected that the amended motion was untimely and

unverified. (Rec. Tab 10.) Toyota also pointed out that the allegations of discovery

abuse that were raised in the California lawsuit had to do with cases involving allegations

of improper roof design. (Id.) Those allegations have nothing to do with cases (like this

one) involving allegations of defective occupant-restraint systems. (Id.)

(9) The Order Granting a New Trial

On September 22, 2009, the trial court entered an order granting a new trial.

(App. Tab C; Rec. Tab 11.) The order states two grounds for granting a new trial, both

relating to Toyota’s counsel mentioning Coon’s testimony during closing argument.

(App. Tab C.) First, the court ordered a new trial “in the interest of justice,” on the

purported ground that Toyota’s counsel had violated court orders and argued evidence

outside the record. (Id.)3 Second, the court ordered a new trial as a sanction, even

3 In some locales, a new-trial order “in the interest of justice” is colloquially called

a new trial “in the interest of settlement.”


though the King Family never filed a written request for any sanctions, let alone a new

trial as a sanction. (Id.) The trial court did not adopt newly discovered evidence as a

ground.

(10) The Court of Appeals’ Decision — Toyota filed a petition for writ of

mandamus in the El Paso Court of Appeals, asking that the new-trial order be vacated and

the take-nothing judgment for Toyota be reinstated. (See App. Tab A.) In an opinion

authored by Chief Justice Chew (joined by Justices McClure and Rivera), the court of

appeals denied mandamus relief, on the ground that appellate courts do not have the

authority to review the merits of a new-trial order. In re Toyota Motor Sales, U.S.A., Inc.,

327 S.W.3d 302, 305-06 (Tex. App.—El Paso 2010, orig. proceeding [mand. pending]).

(11) Reconsideration Denied — After Toyota filed this mandamus proceeding

in this Court, Judge Rodriguez left the bench because she was defeated in the 2010

elections. (See App. Tab D.) Toyota filed a motion asking the successor judge (Judge

Chew) to reconsider the new-trial order. (Id.) See TEX. R. APP. P. 7.2(b). In a May 24,

2011 order, Judge Chew denied reconsideration. (App. Tab E.)

SUMMARY OF THE ARGUMENTS

(1) Abuse of Discretion ― The trial court abused its discretion by erasing

Toyota’s verdict and granting a new trial for reasons that are invalid and improper.

Indeed, the reasons are so invalid as to be pretextual. Regarding the granting of a new

trial “in the interest of justice,” Toyota was absolutely entitled to argue Officer Coon’s

statement to the jury, because his statement was put into the record at least twice without

objection. Further, the King Family waived their objection by not requesting a curative


instruction about Toyota’s closing argument.

As to the granting of a new trial as a sanction, the trial court again invoked an

invalid, improper reason. First, Toyota’s counsel did not engage in any sanctionable

conduct by arguing about evidence that is in the record. Second, it was not proper to

punish Toyota for counsel’s conduct. Third, the punishment was too harsh. Fourth, the

King Family did not request in writing that the trial court grant a new trial as a sanction.

(2) Reviewable by Mandamus ― In Columbia and subsequent cases, this

Court strongly hinted that mandamus is available to review new-trial orders. Columbia

emphasized that a trial court’s discretion to grant a new trial is limited to valid,

significant, and proper reasons. Appellate courts must have the ability to determine and

enforce that limited discretion. Otherwise, it is an empty formality to require trial courts

to specify the reasons for a new trial. Transparency without accountability is meaning-

less. Also, mandamus review of new-trial orders is (1) consistent with mandamus law,

(2) necessary to protect the constitutional right to a jury trial, and (3) not a new

development in Texas. This Court should resolve the open question from Columbia, and

hold that Texas law allows mandamus review of new-trial orders.

(3) Correctable by Mandamus ― As in Columbia, the extraordinary

circumstances here justify correction by mandamus. First, the new-trial order implicates

Toyota’s constitutional right to a jury trial. Second, Toyota has no other appellate avenue

to obtain review of the new-trial order. Third, even if Toyota could obtain review of the

new-trial order after a second trial, Toyota would have the difficult or impossible burden

to show harmful error from a new trial. Finally, even if Toyota ultimately meets that


burden and secures a reversal of the new-trial order, the parties and the public will have

incurred the time, trouble, and expense of a new trial that was granted improperly.

ARGUMENTS

1. The trial court abused its discretion by granting a new trial “in the interest of justice” based on Toyota’s closing argument. The trial court’s abuse of discretion in this case is conspicuous. The trial court

granted a new trial on the basis that Toyota argued evidence that was not in the record —

even though the evidence was plainly in the record, as even the trial court itself had

earlier acknowledged. To use a baseball analogy, the trial court called Toyota out on a

third strike when no pitch had been thrown, after Toyota had already hit a home run.

A. The King Family preserved no error as to the injection of Coon’s testimony into the record.

Officer Coon’s statement about seatbelt nonusage was initially precluded by an

order in limine. (See page 2, above.) But an order in limine does not preserve error.

E.g., Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91 (Tex. App.—

Houston [14th Dist.] 2004, no pet.). That is, the violation of an order in limine is never,

by itself, reversible error. E.g., Austin v. Shampine, 948 S.W.2d 900, 912 (Tex. App.—

Texarkana 1997, writ dism’d by agr.) (“[N]o Texas court has ever reversed a case

because of a violation of a motion in limine that was not met by an objection.”). To

preserve error, the complaining party must object when the evidence is offered or

admitted. E.g., id.; see TEX. R. APP. P. 33.1(a).

In this case, not only did the King Family not object to the introduction of Coon’s

statement, the King Family’s counsel was actually the first to put Coon’s statement


before the jury. (Rec. Tab 13 at 332; see pages 2-3, above.) The King Family’s counsel

recited to the jury Coon’s entire answer: “I always look at the seatbelt, if they are not

wearing one.” (Rec. Tab 13 at 332.) By disclosing Coon’s testimony voluntarily, the

King Family’s counsel opened the door to this evidence, effectively waiving the limine

ruling. See Davis v. Stallones, 750 S.W.2d 235, 237 (Tex. App.—Houston [1st Dist.]

1987, no writ) (the appellant could not complain about the admission of evidence in

violation of a limine order because the appellant had elicited some of that testimony).

After the King Family’s counsel disclosed Coon’s opinion, Toyota’s counsel

asked that Coon’s entire answer be read into the record. (Rec. Tab 13 at 332; see page 3,

above.) Three different times, the trial court stated that this was unnecessary because the

King Family’s counsel had already recited the testimony into the record. (Rec. Tab 13 at

332; see page 3, above.)

The King Family’s counsel never asked that the statement be stricken or that the

jury be told to disregard it. (Rec. Tab 13 at 332.) Nor did the King Family request a

mistrial (although it would have been improper to give the King Family a mistrial for

error caused by their own counsel). In any event, the King Family waived any error by

injecting Coon’s statement into the record and by not asking for an instruction to

disregard. See 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 TEX.

R. APP. P. 33.1(a).

Coon’s statement was also placed in the record during Van Arsdell’s testimony.


(Rec. Tab 14 at 209-10; see page 4, above.) Once again, the King Family’s counsel

waived any error by not objecting, by not moving to strike, by not requesting an

instruction to disregard, and by not seeking a mistrial. (Rec. Tab 14 at 209-10.)

Overall, the King Family preserved no error as to the injection of Coon’s

statement into the record. As a result, the King Family could not have obtained an

appellate reversal based on a complaint about Coon’s statement being disclosed to the

jury. See Bay Area Healthcare Group, 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.”); TEX. R. APP. P. 33.1(a). Perhaps that is why the King Family did

not seek a new trial based on an argument that evidence was improperly admitted.

Instead, they sought, and were granted, a new trial on the basis that Toyota’s

counsel mentioned Coon’s statement to the jury during closing arguments. (App. Tab C;

Rec. Tab 7.) The King Family contended that Toyota’s closing argument violated a court

order and was outside the record. (Rec. Tab 7.) Both of those reasons are demonstrably

invalid and improper. As discussed below, they are factually and legally insupportable.

B. Toyota’s closing argument was based on the record and was therefore permissible. As discussed above, Coon’s opinion was injected into the record without objection

at least twice. Thus, it is simply false for the King Family to complain, and for the trial

court to rule, that Toyota’s closing argument about Coon’s testimony went outside the

record.

Because Toyota’s argument was based on evidence in the record, Toyota had the

absolute right to make the argument. E.g., Texas Sand Co. v. Shield, 381 S.W.2d 48, 58


(Tex. 1964); Clark v. Bres, 217 S.W.3d 501, 510 (Tex. App.—Houston [14th Dist.] 2006,

pet. denied) (“Arguing based on evidence in the record is proper and is the purpose of

closing argument.”); see TEX. R. CIV. P. 269(e). This means that Toyota’s closing

argument could not be a proper basis for an appellate court to disregard the jury verdict.

See Clark, 217 S.W.3d at 510-11 (finding no reversible error where an attorney’s

argument was based on evidence in the record). Likewise, Toyota’s closing argument

cannot be a proper basis for the trial court to disregard the jury verdict. It was legally

indefensible and an abuse of discretion to grant a new trial for a closing argument that

Toyota was lawfully entitled to make based on evidence that is in the record.

The Fifth Circuit’s decision in Scott v. Monsanto Co., 868 F.2d 786 (5th Cir.

1989), illustrates this. In that case, defense counsel’s closing argument emphasized some

expert testimony about a medical treatise. Id. at 791. After the plaintiffs lost the trial,

information came out that two witnesses had misstated what the treatise said. Id. The

district court granted the plaintiffs a new trial, but the Fifth Circuit reversed. The Fifth

Circuit noted that the testimony that was referred to in the closing argument originally

came from the plaintiffs’ witnesses. Id. at 792. The court concluded that “Monsanto’s

use of testimony presented at trial, even if that testimony was inaccurate, does not

warrant a new trial.” Id. Similarly, Toyota’s use of testimony that was presented at trial

without objection (indeed, presented the first time by the King Family’s counsel) does not

justify a new trial.

C. The King Family waived any error by not requesting a curative instruction about Toyota’s closing argument. Although the King Family’s counsel objected to Toyota’s closing argument about


Coon’s testimony, and the court sustained the objection, the King Family’s counsel did

not ask that the jury be instructed to disregard Toyota’s argument. (Rec. Tab 8 at Ex. 4.)

To preserve error, the King Family had to request a curative instruction. See State Dep’t

of Highways & Pub. Transp. v. King, 795 S.W.2d 888, 896 (Tex. App.—Beaumont 1990)

(holding that appellant waived error by failing to request a curative instruction after the

court sustained the appellant’s objection to the appellee’s jury argument), writ denied,

888 S.W.2d 465 (Tex. 1991). Since the King Family did not preserve error, an appellate

court could not have disregarded the jury verdict on the basis of improper jury argument.

See Chevron U.S.A. Inc. v. Lara, 786 S.W.2d 48, 52 (Tex. App.—El Paso 1990, writ

denied) (holding that improper jury argument is not reversible error if it “could have been

cured by a timely objection and an instruction to the jury to disregard it”); see also TEX.

R. APP. P. 33.1(a). Similarly, the trial court could not disregard the jury verdict on that

basis. In short, the trial court invoked an invalid and improper reason by granting a new

trial on the basis of improper jury argument.

The King Family tried to avoid their failure to request a curative instruction by

arguing that Toyota’s argument was incurable. (Rec. Tab 7.) But incurable jury argu-

ment is rare. E.g., Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680, 681 (Tex.

2008). The complaining party must show that the “nature, degree and extent” of the

argument was such that an instruction could not cure its effects. Id. at 680-81. This

generally requires that the argument not only harm the complaining party, but also injure

“the appearance of and actual impartiality, equality, and fairness” of the judicial system.

Id. at 681. Examples of such incurable jury argument are (1) appeals to racial prejudice,


(2) unsupported, extreme, and personal attacks, (3) accusing the opposing party of

manipulating a witness when there is no evidence of witness tampering, and (4) com-

paring the defendant’s conduct to a Nazi death-camp experiment. Id. at 681-82.

Toyota’s closing argument does not fall into the category of incurable jury

argument. First, Toyota’s argument was proper because it was based on evidence that

was put into the record without objection. (See sections 1.A. & B. on pages 9-12, above.)

Second, Toyota’s argument was not an attack on the integrity of the judicial system.

Offering an argument about a police officer’s statement regarding seatbelt nonusage does

not strike at the heart of the judicial system. Third, because Toyota’s argument dealt with

specific evidence that the King Family argues is incompetent, an instruction to disregard

could have cured any prejudice. See Chevron, 786 S.W.2d at 52. For example, it would

have been easy and effective to tell the jury to disregard Coon’s statement because he

was not qualified as an expert. This is much different than trying to get a jury to

disregard an inflammatory, emotionally charged, nonevidentiary argument such as an

appeal to racial prejudice.

In summary, the court invoked an invalid reason by granting a new trial based on

allegedly improper jury argument. This error is illustrated in a very recent Nevada case.

Bayerische Motoren Werke Aktiengesellschaft v. Roth, 252 P.3d 649 (Nev. 2011). In that

case, a passenger was killed after being ejected in a rollover accident. Her survivors

blamed the occupant-restraint system. The trial court entered a limine order that let

defense counsel introduce evidence that the decedent was not wearing her seatbelt, but


the order limited the manner in which counsel could argue that evidence. Id. at 7, 9.4

After a defense verdict, the plaintiffs moved for a new trial, arguing that defense counsel

had violated the limine order by improperly arguing the evidence. Id. at 10. The trial

court granted a new trial, but the Nevada Supreme Court reversed because defense

counsel’s arguments were largely unobjected to, or were not a violation of the order, or

were harmless or cured by the trial court’s admonishments. Id. at 10, 11-16.

For similar reasons, Toyota’s closing argument is not a valid ground for a new

trial. Toyota’s argument was not improper since it was based on evidence that was put

into the record without objection. Further, the King Family failed to preserve their

objection by not requesting a curative instruction. Because no appellate court could have

disregarded the jury verdict based on improper jury argument, it was improper for the

trial court to do so. It follows that the trial court abused its discretion in granting a new

trial.

2. The trial court abused its discretion by granting a new trial as a sanction. The trial court also purported to grant a new trial pursuant to its inherent sanction

authority. (App. Tab C.) Texas courts have inherent authority to sanction parties and

their counsel for misconduct during trial. E.g., In re Bennett, 960 S.W.2d 35, 40 (Tex.

1997) (orig. proceeding). But this authority is limited; it may be used only to sanction

conduct that “significantly interfered with the court’s legitimate exercise” of its core

4 Westlaw has not yet formatted the P.3d version of this case, so Toyota is citing to

the page numbers in Westlaw’s computer version.


judicial functions. Kutch v. Del Mar Coll., 831 S.W.2d 506, 510 (Tex. App.—Corpus

Christi 1992, no writ).

Moreover, sanction orders are reviewed under a two-part test. First, the sanction

must be directly related to the alleged wrongful conduct. TransAmerican Natural Gas

Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). Second, the

sanction must be “no more severe than necessary to satisfy its legitimate purposes.” Id.

The party seeking sanctions has the burden to establish these two elements. E.g., GTE

Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (orig. proceeding). A

trial court’s sanction order is reviewed for abuse of discretion. E.g., American Flood

Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).

As discussed in more detail below, the sanction order here is invalid and improper

for at least four independent reasons. First, Toyota’s closing argument was not

sanctionable because it was not wrongful. Second, the sanction is not directly related to

the alleged misconduct. Third, the sanction is not narrowly tailored to the alleged

misconduct. Fourth, the King Family never properly sought a new trial as a sanction for

Toyota’s closing argument. In short, the sanction order is an abuse of discretion.

A. Toyota’s closing argument was not sanctionable.

The King Family did not show that Toyota’s closing argument justifies the

exercise of the trial court’s inherent sanction authority. First, they did not show that

Toyota’s counsel’s conduct significantly interfered with the probate court’s legitimate

exercise of its judicial powers. Because any prejudice could have been cured by an

instruction to the jury, the alleged conduct did not significantly interfere with the probate


court’s judicial powers. (See section 1.C. on pages 12-15, above.)

Second, it is axiomatic that a court can sanction only wrongful conduct. In re

Patton, 47 S.W.3d 825, 827 (Tex. App.—Fort Worth 2001, orig. proceeding) (holding

that the trial court’s sanction order was improper “because there was no offensive

conduct”). As discussed above, Toyota’s counsel was entitled to argue based on the

evidence in the record. (See sections 1.A. & B. on pages 9-12, above.) Because the

conduct of Toyota’s counsel was not wrongful, it cannot support the sanction order.

Therefore, the trial court abused its discretion in purporting to exercise its inherent

authority to sanction Toyota by ordering a new trial.

B. The sanction award does not satisfy this Court’s two-part test. Even if the King Family had shown that Toyota’s closing argument was

sanctionable under the probate court’s inherent authority, the sanction is still improper.

As discussed above, a sanction order must meet a two-part test: (1) the sanction must be

directly related to the alleged misconduct; and (2) the sanction must be narrowly tailored.

Because it does not meet either half of this test, the sanction is an abuse of discretion.

(1) The sanction is not directly related to the alleged misconduct.

To satisfy the first factor, the King Family must show a “direct nexus among the

offensive conduct, the offender, and the sanction imposed.” Spohn Hosp. v. Mayer, 104

S.W.3d 878, 882 (Tex. 2003). To determine whether this factor has been met, “the court

should examine whether punishment was imposed upon the true offender and tailored to

remedy any prejudice . . . caused.” American Flood Research, Inc., 192 S.W.3d at 583.

The court must “determine whether the offensive conduct is attributable to counsel only,


to the party only, or to both.” Spohn Hosp., 104 S.W.3d at 882. One purpose of this

factor is to ensure that a party is not punished for conduct solely attributable to the party’s

counsel. E.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991) (orig. proceeding).

Here, the trial court made no effort to determine whether Toyota’s counsel’s

comments during closing argument are attributable to Toyota. (App. Tab C; Rec. Tab

12.) And there is no evidence in the record to support a finding that the alleged

misconduct is attributable to Toyota, as opposed to Toyota’s counsel. (Rec. Tabs 12, 15.)

The new-trial order punishes Toyota by overturning a favorable jury verdict and

subjecting Toyota to a new trial. In the absence of evidence attributing the conduct to

Toyota, as opposed to its counsel, the trial court abused its discretion in ordering a

sanction that punishes Toyota. See Smith v. Nguyen, 855 S.W.2d 263, 266-67 (Tex.

App.—Houston [14th Dist.] 1993, writ denied) (reversing sanction award because,

among other things, the client was not implicated in the alleged wrongdoing).

(2) The sanction is not narrowly tailored to the alleged misconduct. To satisfy the second half of the two-part test, the sanction must be “no more

severe than necessary to satisfy its legitimate purposes.” Spohn Hosp., 104 S.W.3d at

882. In other words, “[t]he punishment must fit the crime.” TransAmerican Natural Gas

Corp., 811 S.W.2d at 917. The trial court is therefore required to “consider the

availability of less stringent sanctions and whether such lesser sanctions would fully

promote compliance.” Id. And the trial court’s conclusory statements that lesser

sanctions would have been ineffective are not entitled to any deference. GTE Commc’ns


Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (orig. proceeding). The court of

appeals must independently review the record to determine whether a less stringent

sanction would have sufficed. Id.

Here, the punishment does not fit the alleged crime. Although the new-trial order

makes the conclusory assertion that the sanction is narrowly tailored, there is no support

in the record for that assertion. There is no indication that the probate court even

considered any alternative measures. The fact is that less stringent measures could have

remedied the alleged misconduct. For example, the probate court could have stricken the

offending statement from the record or instructed the jury to disregard any improper

argument. These remedies would have cured any prejudice from the alleged misconduct

and deterred future violations. (See section 1.C. on pages 12-15, above.)

Because the King Family failed to timely request any of these remedies, they

waived their right to seek them. (See id.) Their motion for new trial is an attempt to

avoid the effect of their waiver. Because these less stringent remedies would have been

sufficient, the King Family should not be permitted to avoid their waiver by seeking the

more severe remedy of a new trial as a sanction.

C. The King Family did not properly move for a new trial as a sanction. Finally, the trial court’s consideration of the King Family’s sanction request

violates Rules 320, 321, and 322. Rule 320 requires that “[e]ach motion for new trial

shall be in writing and signed by the party or his attorney.” TEX. R. CIV. P. 320. Rule

321 requires that each point relied on in a motion for new trial be stated “in such a way

that the objection can be clearly identified and understood by the court.” TEX. R. CIV. P.


321. And Rule 322 states that general statements of objection “shall not be considered

by the court.” TEX. R. CIV. P. 322. Read together, these rules require that each ground

for a new trial be asserted in writing, with enough specificity to be clearly indentified and

understood. See Columbia, 290 S.W.3d at 210 (“[T]he motion must be in such form that

the bases for the motion can be clearly identified and understood by the trial court.”).

The trial court should not consider any ground that is not clearly presented in writing.

Here, neither the initial motion for new trial nor the amended motion requested

that the court grant a new trial as a sanction. (Rec. Tabs 7 & 9.) The King Family’s

counsel first suggested such a sanction at the hearing on the motion for new trial. (Rec.

Tab 12.) This asserted ground for a new trial is improper because it was not clearly

asserted in writing. Therefore, under Rule 322, the trial court should not have considered

the King Family’s oral sanction request in deciding whether to grant a new trial.

D. Summary Regarding the Sanction Ground For the reasons discussed above, granting a new trial as a sanction is an improper

and invalid ground for granting a new trial. By invoking an improper and invalid ground,

the trial court abused its discretion.

3. Newly discovered evidence is neither a stated nor a valid ground for the new trial.

The King Family has argued that the Court should deny mandamus because the

new-trial order can be supported by a ground that was not mentioned in the new-trial

order but was raised in their untimely amended motion for new trial. Specifically, they

argue that the new trial could have been granted on the basis of newly discovered

evidence. This argument fails for at least two reasons: (1) the new-trial order cannot be


supported by a ground not stated in the order; and (2) the alleged newly discovered

evidence is not a valid ground for the new trial.

A. A new-trial order cannot be supported by a ground not stated in the order.

The King Family argues that in granting a new trial, a trial court is not limited to

the grounds raised in a timely motion for new trial. It is true that a trial court may

consider, and even grant a new trial based on, grounds raised in an untimely motion for

new trial. But the trial court did not do so here. The trial court’s new-trial order

specifically recites only two grounds (in the interest of justice because of Toyota’s

closing argument, and as a sanction, for the same closing argument). (App. Tab C.) The

trial court did not recite newly discovered evidence as a ground for the new trial. This

Court should not presume that the trial court granted the new trial for a secret reason that

is not recited in the order.

Citing a 1926 case, the King Family has asked this Court to presume the opposite

— that the trial court could have granted the new trial based on any ground that was

raised, even if that ground was not recited in the order. See Oil Well Supply Co. v.

Marchman, 293 S.W. 305, 306 (Tex. Civ. App.—Texarkana 1927, no writ). For several

reasons, this Court should reject the King Family’s presumption.

First, the King Family’s 1926 case recites an incorrect statement of the law. That

case has been contradicted by multiple courts, including this Court. The correct law is

that when a trial court specifies the reasons for a new trial, the trial court is deemed to

have overruled the other asserted grounds for new trial. See Gulf, C. & S.F. Ry. v. Canty,

115 Tex. 537, 285 S.W. 296, 302 (1926) (orig. proceeding); Waddell v. Williams, 356


S.W.2d 500, 501 (Tex. Civ. App.—Eastland 1959, orig. proceeding); McGregor v. Allen,

195 S.W.2d 945, 947 (Tex. Civ. App.—Amarillo 1946, orig. proceeding); Friske v.

Graham, 128 S.W.2d 139, 142-43 (Tex. Civ. App.—San Antonio 1939, orig.

proceeding). This makes sense, since it should not be presumed that after reciting

specific reasons, the trial court harbored secret reasons for its ruling. That presumption

would defeat the purpose of reciting specific reasons.

Second, the King Family’s presumption is inconsistent with, and defeats the

purpose of, Columbia. It makes no sense for Columbia to require specific reasons, but

then for appellate courts to presume that trial courts can rely on secret, unstated reasons.

Indeed, one of the rationales in Columbia is that when there is no recitation of specific

reasons, only the trial judge knows the basis for the new trial. Columbia, 290 S.W.3d at

213. This Court concluded that “Columbia should be told why the trial court granted the

new trial.” Id. This leaves no room for secret, unstated reasons for granting a new trial.

See id. (explaining the importance of transparency in the legal system). Instead,

Columbia requires the application of the presumption that the trial court relied only on

the reasons stated in the order. The goal of transparency can be served only if the trial

court states all of the grounds for a new trial, not just some of them.

In summary, this Court should reject the idea that the trial court, having recited

two reasons for the new trial, also secretly relied on the allegation of newly discovered

evidence.


B. The allegation of newly discovered evidence is not a valid ground for the new trial.

Even if an unstated reason could support a new-trial order, there are procedural

and substantive reasons why the allegation of newly discovered evidence is an invalid

ground for a new trial in this case.

(1) For procedural reasons, the allegation of newly discovered evidence is an invalid ground for the new trial.

There are at least two procedural flaws in the King Family’s effort to assert newly

discovered evidence.

First, an allegation of newly discovered evidence must be verified and supported

by affidavits. See, e.g., Yuen v. Fisher, 227 S.W.3d 193, 205 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (verification required); Rivera v. Countrywide Home Loans, Inc.,

262 S.W.3d 834, 844 (Tex. App.—Dallas 2008, no pet.) (affidavit required); see also

TEX. R. CIV. P. 324(b)(1). Since the King Family’s amended motion for new trial was

not verified (see Rec. Tab 9) and not supported by affidavits (see Rec. Tabs 9 and 12),

their allegation of newly discovered evidence cannot support the granting of a new trial.

See Yuen, 227 S.W.3d at 205; Rivera, 262 S.W.3d at 844.

Second, an allegation of newly discovered evidence must be proven at an

evidentiary hearing. See, e.g., Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 (Tex.

App.—Amarillo 1995, writ denied); TEX. R. CIV. P. 324(b)(1). Since there was no

evidentiary hearing in this case (see Rec. Tab 12), the allegation of newly discovered

evidence is legally unsupported and cannot justify a new trial. See Bell, 899 S.W.2d at

757.


(2) For substantive reasons, the allegation of newly discovered evidence is an invalid ground for the new trial.

To justify a new trial based on newly discovered evidence, the movant must show

four elements:

(1) that the evidence came to the movant’s attention after the trial; (2) that it was not for want of due diligence that the evidence came to

the movant’s attention after trial; (3) that the evidence was not cumulative; and (4) that the evidence was so material that it probably would produce a

different result upon a retrial.

E.g., Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on

other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003); Chapman v. Abbot,

251 S.W.3d 612, 620 (Tex. App.—Houston [1st Dist.] 2007, no pet.). And of course, a

predicate to those four elements is to show that some new evidence actually exists. See

Merrifield v. Seyferth, 408 S.W.2d 558, 561 (Tex. Civ. App.—Dallas 1966, no writ)

(holding that no showing was “made of any newly discovered evidence”). For at least

four reasons, the King Family failed to satisfy these elements for a new trial.

First, the King Family did not show that any new evidence exists. All they have is

an allegation by a disgruntled former inhouse lawyer for Toyota (Dimitrios Biller), who

claims that Toyota withheld discovery in some cases. Biller never mentioned the King

case as one in which discovery was allegedly withheld. (Rec. Tab 9 at Ex. 1.) Further,

the cases Biller mentioned all involved allegations of improper roof design, not

allegations of defective occupant-restraint systems (which is what the King case is about).

In short, the King Family made no showing that Toyota withheld any discovery in this


case. Nor could they make a showing that Toyota withheld any material discovery, given

that they never sent Toyota a discovery request for documents related to defective

occupant-restraint systems. (Rec. Tab 10 at Ex. 3.) Given that there is no improperly

withheld discovery, the King Family necessarily made no showing that any new evidence

exists that they could present at a second trial.

At best, all they have is a desire to engage in a fishing expedition related to

Biller’s allegations. (Rec. Tab 9 at 6-8.) Of course, Texas law does not permit discovery

that is merely a fishing expedition. See, e.g., In re Alford Chevrolet-Geo, 997 S.W.2d

173, 181 (Tex. 1999) (orig. proceeding). More importantly, the mere suspicion, hope, or

belief that more discovery might uncover some helpful evidence is not sufficient to

sustain an allegation of newly discovered evidence. See Merrifield, 408 S.W.2d at 561

(“The mere suspicion or hope or belief of an attorney that an oral deposition ‘might’

uncover some helpful evidence is not sufficient.”). All the King Family has is a mere

hope that further discovery into Biller’s allegations might lead to some new evidence.

Second, the King Family made no showing that they exercised diligence to

discover the “new evidence” (whatever it might be) before trial. Specifically, they have

not shown that they sent any discovery requests for documents related to defective

occupant-restraint systems (Rec. Tab 10 at Ex. 3.) They cannot complain about the lack

of evidence they never requested. Even if there was any “new evidence” to be found

regarding defective occupant-restraint systems, it is the King Family’s own fault for not

requesting it. See, e.g., Mendez v. International Playtex, Inc., 776 S.W.2d 732, 734 (Tex.

App.—Corpus Christi 1989, writ denied) (“The due diligence requirement for a new trial


based on newly-discovered evidence is not satisfied if the discovery could have been

made before trial.”). In short, they did not show their due diligence in trying to obtain the

“new evidence” before trial. See, e.g., Burleson State Bank v. Plunkett, 27 S.W.3d 605,

621 (Tex. App.—Waco 2000, pet. denied) (movant failed to show it was diligent in

attempting to locate the pertinent document before trial); Bledsoe v. Burleson, 289 S.W.

143, 145 (Tex. Civ. App.—Austin 1927) (reversing a new-trial order that was based on

newly discovered evidence, where the plaintiff failed to exercise due diligence to

discover the new evidence), writ dism’d, 294 S.W. 516 (Tex. Comm’n App. 1927).

Third, since the King Family cannot show what “new evidence” they would offer

at a second trial, they cannot show that the “new evidence” is not cumulative.

Finally, the King Family cannot show that the ”new evidence” is so material that it

would probably produce a different result upon a retrial. They have made no effort to

explain how the “new evidence” they might uncover would cause a second jury to find

for them. See Burleson State Bank, 27 S.W.3d at 621 (“[T]here is nothing in the record

which shows that the [document in question] would have produced a different result.”);

Brown v. Hopkins, 921 S.W.2d 306, 311 (Tex. App.—Corpus Christi 1996, no writ)

(movant failed to show that the affidavit in question would have altered the jury’s finding

of no negligence liability).

In summary, the King Family’s allegation of newly discovered evidence fails on

the merits. Under no circumstances could this unstated ground support the granting of

the new trial.


4. An appellate court can conduct a mandamus review to determine whether the reasons given for a new trial are valid, significant, and proper.

After the showing that the new-trial order was an abuse of discretion, the next step

is to determine the remedy. A logical remedy, as discussed below, is to recognize that

new-trial orders are subject to mandamus review. In any event, there ought to be some

remedy for the trial court’s abuse of discretion in nullifying Toyota’s defense verdict. If

not mandamus, then Toyota urges the Court to fashion some remedy.

A. The next logical step following Columbia is mandamus review of the merits of new-trial orders.

In Columbia, this Court held that trial courts must state their specific reasons for

disregarding a jury verdict and granting a new trial. Columbia, 290 S.W.3d at 206, 213,

215. “[T]he parties and the public are entitled to an understandable, reasonably specific

explanation 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.

The Court further recognized that mandamus is available when the trial court fails to state

its reasons, because exceptional circumstances are presented when a trial court gives no

reasons or only vague reasons. Id. at 209.

The Columbia Court recognized that requiring specific reasons enhances respect

for the judicial system, promotes transparency in the legal system, and respects the

reasonable expectations of the parties and the public that a verdict will end the trial

process. Id. at 213. The Court emphasized that parties, the jurors, and the public are

entitled to know why a verdict has been disregarded. Id. at 211; see id. at 214 (stating

that the law should not “shield[] decisions affecting rights such as those relating to jury


trials from the view of the parties and the public”).

The next logical step following Columbia is to allow mandamus review of the

reasons given for a new-trial order. This case presents the Court with that opportunity. It

is important to take that next step, for the same reasons that the Court recited in

Columbia. If the right to know why a new trial has been ordered is important enough to

require mandamus correction, then it is even more important to allow mandamus

correction when a jury verdict has been set aside for invalid, insignificant, or improper

reasons. Otherwise, Columbia’s requirement will be an empty formality.

B. The dispositions in Columbia and other cases signaled this Court’s intention to allow mandamus review of the merits of new-trial orders.

In Columbia, the relator sought a mandamus order directing the trial court to enter

a take-nothing judgment on the verdict. Id. at 206. Because the trial court had not

specified its reasons for granting the new trial, this Court “decline[d] to consider whether

mandamus relief is available as to the trial court’s action in disregarding the jury verdict.”

Id. at 214. The Court then denied, “without prejudice, Columbia’s request for a writ of

mandamus directing the trial court to enter judgment on the verdict.” Id.; see id. at 207

(same). The Court therefore left open the possibility of review on the merits. The dissent

in Columbia also recognized that the Court had left this door open. Id. at 219 (O’Neill,

J., dissenting) (“[T]he Court today opens the door to interlocutory evidentiary review of

that decision [to grant a new trial] . . . .”).

In the du Pont opinion issued the same day, the Court likewise left that door open.

The relator in du Pont asked the Court to hold that it was an abuse of discretion to grant a


new trial for any of the reasons stated in the plaintiffs’ motion for new trial. In re E.I. du

Pont de Nemours & Co., 289 S.W.3d 861, 862 (Tex. 2009) (orig. proceeding). Because

the trial court could have relied on other reasons, this Court declined the relator’s request:

“[W]e deny, without prejudice, any relief beyond directing the trial court to specify its

reasons for granting the new trial.” Id. By denying mandamus without prejudice,

thereby leaving open the possibility of later review on the merits after the trial court

stated its specific reasons, the Court signaled its willingness to allow such review.

The Court indicated this willingness in even stronger terms in another opinion

issued on the same day. In In re Baylor Med. Ctr., 289 S.W.3d 859, 860 (Tex. 2009)

(orig. proceeding), the trial court gave no reasons for granting the new trial. This Court

denied without prejudice the relator’s request for a mandamus order directing vacatur of

the new-trial order. Id. at 860-861. The Court reasoned that “absent specific reasons for

the [new-trial order], we cannot determine whether the affirmation of the original new

trial order was an abuse of discretion.” Id. at 860. This statement suggests that once the

trial court states its reasons, an appellate court can determine whether the new-trial order

is an abuse of discretion.

Finally, six months later, in In re United Scaffolding, Inc., 301 S.W.3d 661, 663

(Tex. 2010) (orig. proceeding), the Court applied Columbia to require a trial court to state

its reasons for granting a new trial. The Court declined to require the trial court to vacate

its new-trial order, “[b]ecause we do not know the reasons the trial court granted the new

trial . . . .” Id.

In all four of these cases, the Court signaled its intent to allow further mandamus


review after the trial court states its reasons for the new trial. If further review were not

available, then wouldn’t the Court have denied the additional mandamus relief outright,

instead of without prejudice? The Court left that door open instead of slamming it shut.

C. The Court’s reasoning in Columbia further signaled the intent to allow merits review.

The Court’s language in Columbia is additional evidence of the intent to allow

mandamus review on the merits. The Court recognized that a trial court’s discretion to

grant a new trial “is not limitless” and “is broad but has limits.” Columbia, 290 S.W.3d

at 210.5 The Court also stated that a trial judge cannot “substitute his or her own views

for that of the jury without a valid basis.” Id. at 212 (emphasis added); see id. at 210

(“[N]o court is free to substitute its judgment for that of the jury.”). The Court further

noted that “good cause” to grant a new trial “does not mean just any cause.” Id. at 210

n.3. Finally, the Court found that the constitutional importance of jury trials “counsels

against courts setting aside jury verdicts for less than specific, significant, and proper

reasons.” Id. (emphasis added).6 Thus, Columbia requires that the reasons for a new

trial must be valid, significant, and proper.

The dissent in Columbia agreed that trial courts can grant new trials only for valid

5 Justice Hecht foreshadowed this ruling in his BMW opinion. See In re Bayerische

Motoren Werke, AG, 8 S.W.3d 326, 327 (Tex. 2000) (orig. proceeding) (Hecht, J., dissenting from denial of mandamus) (“BMW”) (“Broad as the trial court’s discretion is, it is not unbounded.”).

6 Once again, Justice Hecht foreshadowed these rulings. See BMW, 8 S.W.3d at 327-28 (Hecht, J., dissenting) (‘“Good cause’ does not mean any cause, nor do the interests of justice and fairness include error, whim, and bias.”); id. at 328 (stating that a trial court cannot grant a new trial for a “reason that is simply false” or “for an improper reason”); id. at 331 (a trial court cannot refuse to enter judgment on a jury verdict “without a good reason”).


reasons and cannot substitute their judgment for the jury’s. Id. at 215 (O’Neill, J.,

dissenting) (“I agree that trial courts should not set aside jury verdicts without valid

reasons.”); id. at 216 (stating that it is true that “trial courts may not substitute their

judgment for that of the jury”).

In short, this Court went to great lengths in Columbia to articulate that a trial

court’s discretion to grant a new trial is limited. There is little reason to articulate that

trial courts are subject to limits if appellate courts cannot determine and enforce those

limits.7 That is an important role of appellate courts ― to ensure that trial courts stay

within their limits. See W. Wendall Hall, et al., Hall’s Standards of Review in Texas, 42

ST. MARY’S L.J. 3, 17 (2011) (“[I]t is only by requiring trial courts to follow guiding

rules and principles that appellate courts can impose some measure of control over ad hoc

decision making.”).

Similarly, there is little or no utility in requiring the trial court to state its reasons

for granting a new trial if those reasons are not subject to mandamus review. If such

review is not possible, then requiring trial courts to state their reasons is an empty

formality that promotes only meaningless transparency without accountability. This

Court should clarify that the purpose behind requiring trial courts to state specific reasons

7 Justice Hecht has suggested that appellate courts can determine and enforce those

limits. See In re Volkswagen of Am., Inc., 22 S.W.3d 462, 462 (Tex. 2000) (orig. proceeding) (Hecht, J., dissenting from denial of mandamus) (stating that the trial court’s discretion to grant a new trial “should not be insulated from all review”).


is to enable appellate courts to perform meaningful reviews.8 As one federal appellate

court put it, the purpose of requiring specific reasons for a new trial is “so that the

reviewing court can exercise a meaningful degree of scrutiny and safeguard parties’ right

to a jury trial.” Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999); see

Oakland Raiders v. National Football League, 161 P.3d 151, 156 (Cal. 2007) (“The

statement of ‘reasons’ [for a new trial] . . . should be specific enough to facilitate

appellate review . . . .”). Because unreviewable discretion equates to unlimited

discretion, it follows from Columbia that appellate courts must be able to review new-

trial orders.

The Columbia Court also adopted language from the Fifth Circuit, which has said

that “a trial court’s discretion in granting a new trial is not ‘impenetrable’ and that

‘careful scrutiny given to orders granting new trials is intended to assure that the court

does not imply substitute [its] judgment for that of the jury, thus depriving the litigants of

their right to trial by jury.’” Columbia, 290 S.W.3d at 212 (quoting Scott v. Monsanto

Co., 868 F.2d 786, 791 (5th Cir. 1989) (some internal quotation marks omitted)).9 By

endorsing the idea that new-trial orders should be “carefully scrutinized,” the Court has

endorsed mandamus review.

The Columbia Court reinforced this endorsement when it discussed the potential

8 Justice Hecht has spoken on this. See BMW, 8 S.W.3d at 328 (Hecht, J.,

dissenting) (“To determine whether a trial court clearly abused its discretion, an appellate court must know the basis for the trial court’s ruling.”).

9 The Scott case was in turn quoting from Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980).


for trial judges to “game” the system by stating contrived reasons for a new trial (as the

trial court did here). The Court chose “not to attribute such motives to trial courts absent

some reason for doing so in individual circumstances supported by a record.” Id. at 214.

That type of determination could be made only if appellate courts could conduct

mandamus reviews of the merits of new-trial orders. This is the next organic step that

flows from Columbia. Unfortunately, the El Paso Court of Appeals refused to take that

logical step in this case, as discussed below.

D. The El Paso Court of Appeals adopted an overly narrow view of its mandamus power.

In this case, the El Paso Court of Appeals flatly refused to recognize that the next

logical step of Columbia’s specificity requirement is mandamus review of the merits.

Toyota, 327 S.W.3d at 305 (“We disagree that Columbia authorizes such a review on

mandamus . . . .”). Ignoring the other policy reasons stated in Columbia, the court found

that transparency is the only goal of Columbia’s specificity requirement. Id. The court

found that the new-trial order in this case serves the transparency goal and should

therefore not be disturbed. Id. at 306.

The court recognized that Columbia requires “proper reasons” and “valid bases”

for granting a new trial. Id. at 305-306. But the court disagreed that these requirements

lead to the logical next step of merits review. Id. at 306. (“We are unpersuaded that the

language Toyota relies upon supports such an expansion of Columbia.”) The court ruled

that Columbia’s “passing references to ‘proper reasons’ and ‘valid’ bases [do not]

indicate the [Supreme] Court’s intent to add a merits review of the grounds stated . . . . ”

Id.


As described above, this conclusion is a misreading of Columbia and its progeny.

It results in a woeful underprotection of jury verdicts, and promotes a transparency that is

mere window-dressing. Unfortunately, as discussed in the next section, other courts of

appeals are also coming to the same wrong conclusion.

E. The courts of appeals are not following Columbia’s lead.

As discussed above, the El Paso Court of Appeals has adopted the rigid position

that Columbia does not authorize mandamus review of the merits of new-trial orders. In

a subsequent opinion, the El Paso Court followed the same rigid position. In re

Whataburger Rests., LP, No. 08-10-00250-CV, 2010 WL 4983563, at *1 (Tex. App.—El

Paso Dec. 8, 2010, orig. proceeding [mand. pending]).10 As discussed below, other

courts have been similarly reluctant to allow merits review.

(1) The Beaumont Court of Appeals may allow limited review of the procedure employed.

In In re United Scaffolding, Inc., 315 S.W.3d 246, 248, 249 (Tex. App.―

Beaumont 2010, orig. proceeding [mand. pending]), the court held that the new-trial

order complied with Columbia by being sufficiently specific. The court then addressed

the relator’s request to review the merits of those reasons, and found that “the appellate

court’s concern . . . should focus on the process by which the trial court reached its

discretionary decision, not upon the result of that determination.” Id. at 250; id. at 251

(“In this mandamus review, we are concerned with the process employed by the trial

court but not the result.”). The court concluded that the Supreme Court “has not

10 On April 15, 2011, this Court requested merits briefing in this case. (Case No.

11-0037.)


authorized a general interlocutory review of the sufficiency of the evidence.” Id. The

court then denied mandamus, finding that the trial court had “employed the appropriate

process in exercising its discretion to grant a new trial.” Id.11

Justice Gaultney dissented, finding that the reasons for the new trial were “no

more than . . . boilerplate conclusions without reasoning.” Id. at 252 (Gaultney, J.,

dissenting). He noted Columbia’s requirement that there must be a “valid basis” to grant

a new trial. Id. And he concluded that he would grant mandamus to compel rendition of

a judgment on the verdict. Id. at 253. Thus, Justice Gaultney appears to be willing to

take Columbia’s logical next step.

(2) The Texarkana Court of Appeals initially allowed review, but then backtracked.

In In re Lufkin Indus., Inc., 317 S.W.3d 516, 519 (Tex. App.―Texarkana 2010,

orig. proceeding [mand. denied]), the court’s opinion contains a section captioned “(2)

The Trial Court’s Reasons for Granting a New Trial Are Reviewable on Appeal.” The

court noted this Court’s statement in Columbia that a new-trial order must have a “valid

basis.” Id. at 520. The court then concluded: “By stating that the trial court must have a

‘valid basis’ for granting a new trial, the Court is, in effect, authorizing appellate review

of the reasons given. Otherwise, who is to say whether the reasons given are ‘valid’?”

Id.

As further support for this conclusion, the Court noted that the “law does not

11 This Court has granted review in this case, but has not yet set it for argument.

(Case No. 10-0526.) The issue before this Court in United Scaffolding appears to be whether the reasons for the new trial are stated with sufficient specificity.


require a vain or useless act.” Id. “If we were to determine that the trial court’s reasons

for granting a new trial were not reviewable on appeal, we would be saying that the

Court’s requirement that a trial court give reasons for its ruling was a useless

requirement.” Id. The court emphasized that allowing merits review promotes the

policies espoused in Columbia:

Among the rationales used by the Texas Supreme Court in requiring trial courts to express reasons for granting new trials are that the requirement enhances respect for the rule of law, provides trans-parency for the legal system, and respects expectations of parties and the public from a jury trial. . . . Each of those purposes is supported by making the reasons reviewable; each element is sullied by having any reasons be unreviewable. We conclude, therefore, that the trial court’s reasons for granting a new trial are subject to appellate review.

Id. The court then conducted such a review, but denied mandamus because the trial court

acted within its discretion with respect to at least one of the stated reasons for granting a

new trial. Id. at 520-21.12

Justice Carter concurred in the result, but expressed his view that appellate courts

should defer to the trial court’s “unique position” when the trial court has complied with

Columbia by stating specific reasons. Id. at 521-23 (Carter, J., concurring). He

expressed that such review “does not lend itself to the usual appellate review process;

perhaps that is the reason the law of this State has for generations authorized this action

without review.” Id. at 522. So, like the El Paso Court of Appeals, Justice Carter would

let trial judges have unreviewable rein to exercise their discretion.

12 This Court denied the relator’s mandamus petition on October 15, 2010 and the

relator’s motion for rehearing on January 14, 2011. (Case No. 10-0693.)


About seven months after the Lufkin Indus. decision, the Texarkana court abruptly

backtracked. See In re Smith, 332 S.W.3d 704 (Tex. App.―Texarkana 2011, orig.

proceeding). In that case, the court rejected the relator’s argument that Columbia

changed the law, and disagreed “that either Columbia or Lufkin authorizes or mandates

. . . a merit-based review on mandamus.” Id. at 705, 707. The court recharacterized its

Lufkin Indus. decision as follows: “Although we determined that some type of review

was authorized, we did not suggest the appellate review authorized a full review of the

sufficiency of the evidence.” Id. at 708. The court emphasized: “Never in Lufkin did we

state the proposition that relator now argues: that the appellate court should review the

entire record, as in an ordinary appeal, in our mandamus review.” Id. at 708-09.

Echoing the El Paso Court of Appeals’ Toyota opinion, the court could “not agree

that the passing references in [Columbia] to ‘proper reasons’ and ‘valid’ basis indicate

the Texas Supreme Court’s intention to add a merits review of the grounds stated . . . .”

Id. at 709. Again echoing Toyota, the court denied mandamus because the trial court’s

order sufficiently served the goal of judicial transparency. Id. The court did not believe

that “it was the intention of the Texas Supreme Court in announcing its decision in

Columbia to create a backdoor via mandamus proceedings for interlocutory appeals of

[new-trial orders].” Id. Thus, the Texarkana Court has slam shut the door that it

acknowledged was open in the Lufkin Indus. case.

(3) At least four other courts have denied review without disclosing their reasoning.

At least four other courts of appeals have been presented with the opportunity to

review the merits of a new-trial order, but each court denied such review without giving


any reasons for the denial:

• Fort Worth — In re Smith, No. 02-11-00196-CV, 2011 WL 2185697, at *1 (Tex. App.—Fort Worth June 3, 2011, orig. proceeding). This denial came after an earlier mandamus opinion in which the court had required the trial judge to state its reasons for the new trial. See In re Smith, No. 2-10-173-CV, 2010 WL 2432031, at *1 (Tex. App.―Fort Worth June 17, 2010, orig. proceeding).13

• San Antonio — In re C.R.S., No. 04-10-00173-CV, 2010 WL 1492335, at *1 (Tex. App.—San Antonio Apr. 14, 2010, orig. proceeding). This denial came after an earlier opinion in which the court had granted mandamus to require the trial judge to state the specific reasons, but denied, without prejudice, the relator’s request for a mandamus directing entry of a judgment on the verdict. In re C.R.S., 310 S.W.3d 897, 898-99 (Tex. App.―San Antonio 2010, orig. proceeding [mand. denied]).

• San Antonio — In re Earle, No. 04-10-00430-CV, 2010 WL 2411987 (Tex. App.—San Antonio June 16, 2010, orig. proceeding).14

• Dallas — In re Hunter, 306 S.W.3d 422, 423 (Tex. App.—Dallas 2010, orig. proceeding).

• Corpus Christi — In re Motor Trike, Inc., No. 13-11-00277-CV, 2011 WL 2473064, at *1, 4 (Tex. App.—Corpus Christi June 17, 2011, orig. pro-ceeding).

These denials of mandamus relief may be for technical or other reasons that have

no bearing on how the courts view the Columbia decision. Even so, they reflect the

continuing problem of trial courts granting new trials without stating reasons or after

stating insufficient or invalid reasons.

13 Without citing to Columbia or discussing the Columbia issues, the Fort Worth

Court of Appeals granted mandamus to compel the trial court to vacate a new-trial order and reinstate a judgment that voluntarily relinquished the relator’s parental rights. In re The Gladney Ctr., No. 2-10-107-CV, 2010 WL 2105872 (Tex. App.—Fort Worth May 20, 2010, orig. proceeding).

14 This Court requested briefs on the merits in this case, but denied the relator’s petition on April 29, 2011. The relator filed a motion for rehearing on May 16, 2011, which remains pending. (Case No. 10-0556.).


F. Mandamus review of new-trial orders is consistent with Texas mandamus law.

This Court has held that the “adequacy of an appellate remedy must be determined

by balancing the benefits of mandamus review against its detriments.” In re Team

Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). In evaluating that

balance, an appellate court should examine, among other things:

• “whether mandamus will preserve important substantive and procedural rights from loss”;

• whether mandamus can provide useful guidance on issues that are likely to recur but elude appellate review; and

• whether mandamus will spare courts, parties, and taxpayers the time and expense of meaningless proceedings and trials.

Id. These factors call for the ability to conduct mandamus review of new-trial orders.

As to the first factor, the important constitutional right to a jury trial is at stake.

This constitutional right is more deserving of mandamus protection than

nonconstitutional rights (such as the contract right to compel arbitration, which is subject

to mandamus review). Preservation of jury verdicts should be important enough to

warrant mandamus protection. See Columbia, 290 S.W.3d at 209 (“[T]he significance of

the issue — protection of the right to jury trial — convinces us that the circumstances are

exceptional and mandamus review is justified.”); see also Scott v. Monsanto Co., 868

F.2d 786, 791 (5th Cir. 1989) (“The more careful scrutiny given to orders granting new

trial is intended to assure that the court ‘does not simply substitute [its] judgment for that

of the jury, thus depriving the litigants of their right to trial by jury.’” (quoting Conway v.

Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980))).

As to the second factor, the problem of abusive and standardless granting of new


trials is likely to recur, as shown by the number of cases in recent years that have

presented the issue. See United Scaffolding, 301 S.W.3d at 662; Columbia, 290 S.W.3d

at 206; du Pont, 289 S.W.3d at 861; Baylor, 289 S.W.3d at 860; Volkswagen, 22 S.W.3d

at 462; BMW, 8 S.W.3d at 326-27; see also the cases cited on pages 34-38, above; In re

Team Rocket, L.P., 256 S.W.3d at 262 (noting that the issue there was likely to recur “as

demonstrated by the court of appeals’ decisions that have already addressed it”); In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding) (this

factor was satisfied because the issue in that case had already arisen in another case).

This recurring issue will elude appellate review because new-trial orders are not

reviewable on appeal either by direct appeal from the order or from a final judgment

rendered after further proceedings in the trial court. Columbia, 290 S.W.3d at 209; see

id. (“Thus, absent mandamus review, Columbia will seemingly have no appellate review

of the orders granting a new trial.” (emphasis in original)); Wilkins v. Methodist Health

Care Sys., 160 S.W.3d 559, 563 (Tex. 2005); Cummins v. Paisan Constr. Co., 682

S.W.2d 235, 235-36 (Tex. 1984). When an issue will elude resolution by appeal,

mandamus protection is required. See Prudential, 148 S.W.3d at 138.

Furthermore, even if appellate review is available after a second trial, it is not an

adequate appellate remedy. If the defendant wins a second trial, it will have no need to

appeal, but will have been subjected to an unnecessary trial. On the other hand, if the

defendant loses a second trial, it will have the difficult appellate burden to show harmful

error. See Columbia, 290 S.W.3d at 209. And if the defendant does show harmful error,

it will have been subjected to an unnecessary second trial after winning the first trial. See


id. at 209-10; see also Prudential, 148 S.W.3d at 138. In that circumstance, the

defendant should be entitled to a final judgment on the first verdict “without establishing

that right after a needless retrial and an appeal.” Buttery v. Betts, 422 S.W.2d 149, 151

(Tex. 1967) (orig. proceeding). Reviewing new-trial orders by mandamus will rectify

these ills, protect the right to a jury trial, and provide guidance for trial courts in

determining motions for new trial.

As to the third factor, mandamus review of new-trial orders can spare the parties,

courts, jurors, and taxpayers the time and expense of meaningless proceedings and trials.

See, e.g., In re Team Rocket, L.P., 256 S.W.3d at 262 (stating that mandamus can be

warranted when the trial court’s action will subject the parties, the taxpayers, and the

courts to meaningless proceedings and trials). In such cases, mandamus relief will

eliminate a meaningless second trial and an appeal from the second trial.

In sum, the benefits of mandamus review outweigh the detriments, making it

appropriate to review new-trial orders by mandamus. While Columbia made it clear that

an appellate court should issue mandamus to compel a trial court to state the specific

reasons for a new trial, this Court should also allow the next step — namely, mandamus

review of those reasons.

G. Texas courts have, in fact, performed such reviews.

In 1926, this Court granted mandamus to reverse a new-trial order that was based

on a supposed irreconcilable conflict in the jury verdict. Gulf, C. & S.F. Ry. v. Canty,

115 Tex. 537, 285 S.W. 296, 302 (1926) (orig. proceeding). Because there was no such

conflict, the trial court had no discretion to disregard the verdict and order a new trial. Id.


at 300, 302.

This Court has also recognized that mandamus is available when a new-trial order

is void because it was entered after the trial court had lost jurisdiction. See, e.g., In re

Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); Buttery v. Betts, 422

S.W.2d 149, 151 (Tex. 1967) (orig. proceeding).

Based on those rulings, the Court has said that there are only two types of cases in

which a Texas appellate court has overturned an order granting a new trial: (1) when the

order was void; and (2) when the trial court erroneously found that there was an

irreconcilable conflict in the jury findings. E.g., Columbia, 290 S.W.3d at 209; Wilkins v.

Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005).

But those two categories are incomplete, because Texas courts have conducted

mandamus reviews of new-trial orders for other reasons. For example, this Court did so

as early as 1871 in Lloyd v. Brinck, 35 Tex. 1, 1872 WL 7342 (1871) (orig. proceeding).

There, the trial court set aside the verdict and ordered a new trial for some undisclosed

reason. Id., 1872 WL 7342, at *1. This Court granted mandamus and directed the trial

court to set aside the new-trial order and enter judgment on the verdict for the defendant.

Id., 1872 WL 7342, at *6. The Court announced that a trial court’s discretion to grant a

new trial “should be in compliance with known rules, and principles of law; and not the

arbitrary will and pleasure of the judge presiding.” Id., 1872 WL 7342, at *4.

In Trinity Capital Corp. v. Briones, 847 S.W.2d 324, 327 (Tex. App.—El Paso

1993, orig. proceeding), the trial court not only refused to enforce a foreign judgment, but

set it aside and granted a new trial. Id. at 325. The court of appeals granted mandamus to


reinstate the judgment because the trial court did not have the option to vacate a foreign

judgment and order a new trial. Id. at 327. The court granted mandamus even though the

circumstances did not fall within the two recognized exceptions for reviewing a new-trial

order.

Furthermore, courts have granted mandamus when a trial court improperly granted

a mistrial. These cases are pertinent, because granting a mistrial is equivalent to granting

a new trial. See Meyer v. State, 372 S.W.2d 764, 766 (Tex. Civ. App.—Beaumont 1963,

orig. proceeding) (“We see no legal distinction . . . between a mistrial and a new trial.”);

accord L.B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280, 283 (Tex. Civ. App.—

Houston 1964, orig. proceeding) (adopting that language from Meyer). In two cases, the

trial court granted a mistrial because the jury had not answered all of the questions. In

each case, this was an invalid reason for the mistrial, because the other jury findings

compelled a judgment for one party. Thus, the appellate courts granted mandamus in

each case to direct entry of the proper judgment. King v. Smith, 459 S.W.2d 202, 205

(Tex. Civ. App.—Corpus Christi 1970, orig. proceeding); W.T. Rawleigh Co. v. Sims, 108

S.W.2d 332, 333-34 (Tex. Civ. App.—Amarillo 1937, orig. proceeding).

In two other cases, mandamus was granted to overturn a mistrial that was granted

on the invalid ground that no party proved its right to a judgment, whereas undisputed

facts showed that one party was entitled to a judgment. Waddell v. Williams, 356 S.W.2d

500, 501-02 (Tex. Civ. App.—Eastland 1959, orig. proceeding); McGregor v. Allen, 195

S.W.2d 945, 946-47 (Tex. Civ. App.—Amarillo 1946, orig. proceeding).

In another case, the trial court granted a mistrial because one juror withdrew her


support for the verdict after the trial court had received the verdict. This was an improper

ground to grant a mistrial because a juror may not change his or her vote after the verdict

is received. Given that the mistrial was improper, the appellate court granted mandamus

to compel entry of a judgment for the defendant. State v. Finch, 349 S.W.2d 780, 782-83

(Tex. Civ. App.—San Antonio 1961, orig. proceeding).

These cases involving mistrials show that courts have not rigidly adhered to the

view that mandamus is available only when the new-trial order was void or when it was

wrongly based on a perceived conflict in the jury findings. So besides the two categories

that are routinely listed, there are many other instances where courts have conducted

mandamus reviews of new-trial orders. Such reviews are not new in Texas

jurisprudence, going back at least as far as this Court’s Lloyd decision in 1871. See page

42, above.

Twenty years before that, this Court recognized the peril of erasing jury verdicts

through the granting of new trials: “Great injustice . . . may be done by ‘lending too

easy an ear’ to applications for new trials.” Sweeney v. Jarvis, 6 Tex. 36, 1851 WL 3930,

at *3 (1851). The Court further recognized that there had to be a way for appellate courts

to police the granting of new trials: “[U]nless the granting of new trials is subject to a

revising power it is not easy to perceive what effectual limitation there is upon the

discretion of the judge, or how it can justly be said to be a legal as distinguished from

[an] arbitrary discretion . . . .” Id.

There is no reason why only two categories of new-trial orders should present

“exceptional circumstances” warranting mandamus review. Improperly granting a new


trial for a proper jury argument should be just as susceptible to mandamus correction as

improperly granting a new trial based on a nonexistent conflict in the jury findings. Both

are based on demonstrably invalid reasons. Thus, there are “exceptional circumstances”

that warrant mandamus review here.

H. Appellate courts are capable of conducting mandamus reviews of the merits of new-trial orders.

There are several rationales that are commonly invoked by the courts that have

refused to recognize merits review of new-trial orders. One rationale is that such review

allegedly infringes on the trial court’s traditionally broad discretion to grant a new trial.

A second rationale is that appellate courts should defer to the trial court’s broader

discretion and the trial court’s alleged observational advantage. Finally, such courts have

questioned how an appellate court will conduct such reviews. There are easy answers to

all three rationales.

First, Columbia reaffirms that trial courts continue to have broad discretion to

grant new trials. Columbia, 290 S.W.3d at 212. At the same time, Columbia clarified

that trial-court discretion is not limitless, but in fact, is limited to specific, significant,

proper, and valid reasons. Id. at 210, 212. There is nothing unusual about appellate court

review to ensure that trial courts remain within their limits. In fact, that is a big reason

why appellate courts exist.

The fact that trial courts have broad but not unbounded discretion is therefore not a

reason to ban appellate review. Appellate courts should be empowered to define and

maintain those boundaries. Mandamus review does not infringe on a trial court’s broad

discretion, but keeps it within proper boundaries and protects jury verdicts when trial


courts substitute their judgment for the jury’s. See id. at 212.

Further, it is important to recognize that a trial court’s broad discretion to grant a

new trial is a judicial construct derived from the common law. See Sweeney v. Jarvis, 6

Tex. 36, 1851 WL 3930, at *2 (1851). By contrast, jury verdicts are born of a

constitutional right. See TEX. CONST. art. I, § 15; art. V, § 10. That constitutional right

should prevail over the common-law construct. See Dickson v. Strickland, 114 Tex. 176,

265 S.W. 1012, 1021 (1924) (“The Constitution is the supreme law of the state. It is

elementary that a statute or principle of the common law in conflict with the Constitution

is void.”). Therefore, the deference due to a jury verdict should trump the deference due

to a trial court’s new-trial order. That is why the Fifth Circuit has said that an appellate

court should apply greater scrutiny to an order granting a new trial than to an order

denying a new trial. See Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989);

Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362-63 (5th Cir. 1980).

At a minimum, jury verdicts and new-trial orders are entitled to equal deference.

Cf. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988) (the right of

trial by jury is of equal constitutional stature to an appellate court’s review power).

Those who oppose mandamus review of new-trial orders would elevate trial-court

discretion over the sanctity of jury verdicts. These two concepts (deference to jury

verdicts versus deference to trial-court discretion) have co-existed for over 150 years. Cf.

id. at 652. The Court should not sacrifice jury verdicts for the benefit of recognizing

trial-court discretion. Cf. id. (“[W]e are not prepared to sacrifice either [that is, jury

verdicts or appellate review] for the benefit of the other.”).


Second, it may be true that there are circumstances where a trial court will have an

observational advantage over the appellate court. And in Columbia, this Court

recognized that trial courts have somewhat broader discretion to overturn a jury verdict.

Columbia, 290 S.W.3d at 211. But neither of those factors should foreclose an appellate

court’s ability to ensure that trial courts stay within their discretionary boundaries.

Among other things, the abuse-of-discretion standard will factor in whatever broader

discretion or observational advantage the trial court may possess.

More importantly, whatever differences there may be between the review powers

of trial and appellate courts, those differences are immaterial here. This case simply calls

for the application of the abuse-of-discretion standard to settled law and an undisputed set

of facts. The trial court’s grounds for the new trial here have nothing to do with the

credibility of the witnesses or the ability to observe the effect on the jury. Instead, those

grounds turn on undisputed facts and purely legal questions. Appellate courts are just as

equipped as the trial court to review those grounds. This does not infringe on trial court

discretion. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987) (holding

that a trial court is no freer than an appellate court to substitute its judgment for the

jury’s). And nothing about the trial court’s vantage point should preclude that review

under this record.

Third, appellate courts are fully equipped to conduct mandamus reviews of new-

trial orders. As discussed on pages 41-45, above, courts have conducted such reviews

regarding a variety of grounds for new-trial orders. Further, in the 1920s, there was a

short-lived statute that gave appellate courts jurisdiction to review new-trial orders by


way of appeal. See Columbia, 290 S.W.3d at 209 & nn. 1, 2. Courts had no difficulty

conducting such reviews under that statute. See Bledsoe v. Burleson, 289 S.W. 143, 145

(Tex. Civ. App.—Austin 1927) (reversing a new-trial order that was based on newly

discovered evidence), writ dism’d, 294 S.W. 516 (Tex. Comm’n App. 1927); Tarbutton

v. Ambriz, 282 S.W. 891, 894 (Tex. Civ. App.—San Antonio 1926, writ ref’d) (reversing

a new-trial order because there was no evidence to support the plaintiff’s case and there

was no reversible error in excluding certain evidence).

Aside from the fact that many courts have conducted such reviews, this Court has

provided ample guidance over the years with respect to mandamus practice and the

abuse-of-discretion standard. See, e.g., Prudential, 148 S.W.3d at 135-40. There is no

reason that appellate courts cannot apply those standards to the review of new-trial

orders. To the extent those standards may need fleshing out in this context, that is not a

reason to deny review power altogether.

5. The probate court’s abuse of discretion is correctable by mandamus. This Court’s decision in Columbia shows that the discretionary exercise of

mandamus relief is appropriate here. See Columbia 290 S.W.3d at 208-11. In Columbia,

the Court concluded that mandamus relief was appropriate because:

(1) the right at issue is the constitutionally protected right to a jury trial;

(2) the defendant had no other means of obtaining review;

(3) even if the defendant could obtain appellate review, it would be difficult or impossible to show that the new-trial order prevented the defendant from presenting its case on appeal or probably caused the rendition of an improper judgment; and

(4) even if the defendant ultimately obtained a reversal, it would have


incurred the expense and delay of a second trial without knowing why.

Id. In light of these factors, the court concluded that the defendant had no adequate

remedy by appeal. Id.

This case presents the same exceptional circumstances. First, Toyota’s

constitutional right to a jury trial is implicated by the order granting a new trial. Second,

Toyota has no other method for obtaining review, since normal appellate review is not

available at this stage of the proceedings. Third, even if Toyota could obtain appellate

review after a new trial, it would still have the difficult or impossible burden to show that

the new-trial order either prevented Toyota from presenting its case on appeal or

probably caused the rendition of an improper judgment. Finally, even if Toyota

ultimately obtained a reversal, it would have incurred the time, trouble, and expense of a

new trial that was granted for improper reasons.

Overall, Toyota is entitled to mandamus relief to correct the trial court’s abuse of

discretion in granting a new trial.

CONCLUSION AND PRAYER

The probate court’s stated reasons for granting a new trial are not valid or proper

reasons for substituting the court’s judgment for the jury’s. The probate court therefore

abused its discretion in granting a new trial. This abuse should be reviewable and

correctable by mandamus (or at least correctable by some other vehicle). Otherwise, trial

courts will not be accountable, and Columbia’s transparency goal will be meaningless.

Toyota therefore requests that the Court issue a writ of mandamus directing the trial court


to: (1) withdraw the order granting a new trial; and (2) enter a take-nothing judgment for

Toyota. Toyota further requests general relief.


Respectfully submitted,

THOMPSON & KNIGHT LLP

By: /s/Scott P. Stolley Scott P. Stolley State Bar No. 19284350 Email: [email protected] Richard B. Phillips, Jr. State Bar No. 24032833 Email: [email protected]

One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Telephone: (214) 969-1700 Facsimile: (214) 969-1751

BOWMAN AND BROOKE LLP

Kurt C. Kern State Bar No. 11334600 Email: [email protected] David P. Stone State Bar No. 19289060 Email: [email protected] 2711 N. Haskell Avenue Suite 650 Dallas, Texas 75204 Telephone: (972) 616-1700 Facsimile: (972) 616-1701

COUNSEL FOR RELATORS TOYOTA MOTOR SALES, U.S.A., INC., AND VISCOUNT PROPERTIES, II, L.P., D/B/A HOY FOX TOYOTA/LEXUS

mailto:[email protected]





VERIFICATION

STATE OF TEXAS § § COUNTY OF DALLAS § Before me, the undersigned authority, on this date personally appeared Scott P.

Stolley, who was duly sworn, and stated that:

(1) he is one of the lawyers for Relators Toyota Motor Sales, U.S.A., Inc. and Viscount Properties, II, L.P., d/b/a Hoy Fox Toyota/Lexus;

(2) he has reviewed this brief on the merits and concluded that every

factual statement in it is supported by competent evidence included in the record or the appendix;

(3) the documents attached to this brief at Appendix Tabs A and B are

true copies of the court of appeals’ opinion and judgment in this case; and

(4) the documents attached to this brief at Appendix Tabs C, D, and E

are true copies of documents filed in the underlying case. __________________________________________ Scott P. Stolley Subscribed and Sworn to Before Me on June 30, 2011. _________________________________________ Notary Public, State of Texas __________________________________________ Printed Name of Notary My Commission expires:


CERTIFICATE OF SERVICE

On June 30, 2011, a copy of this brief on the merits was served on the following by email and certified mail, return receipt requested:

Respondent Hon. Patricia B. Chew Statutory Probate Court Number 1 703 Courthouse 500 E. San Antonio Avenue El Paso, Texas 79901-2496 [email protected]

Counsel for Real Parties in Interest Enrique Moreno, Esq. Law Office of Enrique Moreno 701 Magoffin Avenue El Paso, Texas 79901 Email: [email protected] Enrique Chavez Jr., Esq. The Chavez Law Firm 2101 Stanton Street El Paso, Texas 79902 Email: [email protected]

/s/Scott P. Stolley Scott P. Stolley

503885 000015 DALLAS 2756664.1




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