IN THE SUPREME COURT OF TEXAS
444444444444
NO . 10-0933
444444444444
IN RE TOYOTA MOTOR SALES, U.S.A., INC. AND VISCOUNT PROPERTIES II,
L.P., D/B/A HOY FOX TOYOTA/LEXUS, RELATORS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444
JUSTICE LEHRMANN , joined by JUSTICE DEVINE , concurring.
“The right of trial by jury shall remain inviolate.” TEX . CONST . art. I, § 15. The importance
of protecting that right was the underpinning of the Court’s recent holding that mandamus relief is
appropriate when a trial court fails to explain with reasonable specificity the reasons it has set aside
a jury verdict and granted a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P.,
290 S.W.3d 204, 209 (Tex. 2009). Today the Court takes another step along that path by authorizing
appellate courts to conduct merits-based review of such new-trial orders. See ___ S.W.3d at ___.
It is essential to remember in conducting this review, however, that the trial court’s authority to grant
a new trial “‘is not in derogation of the right of trial by jury but is one of the historic safeguards of
that right.’” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996) (quoting Aetna Cas.
& Sur. Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941)). I thus concur in the Court’s opinion, but
write separately to emphasize the significant discretion trial courts are, and must continue to be,
afforded in determining whether good cause exists to grant a new trial following a jury verdict.
The specific issue presented in Columbia was a narrow one: “whether trial courts must give
more explanation than ‘in the interest of justice’ for setting aside a jury verdict.” 290 S.W.3d at 206.
In affirmatively answering that question and conditionally granting mandamus relief to require such
specificity, we recognized the significant departure from our longstanding mandamus jurisprudence,
which had to that point “approved the practice of trial courts failing to specify reasons for setting
aside jury verdicts” and “preclude[d], for the most part, appellate review of orders granting new
trials.” Id. at 208 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985), and
Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)). Both Columbia and our
subsequent opinion in In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), focused on
transparency in the context of setting aside jury verdicts, noting the importance of ensuring that trial
courts do not impermissibly substitute their judgment for that of the jury. Id. at 688; Columbia, 290
S.W.3d at 214. This concern, however, is not present with respect to new-trial orders that do not set
aside a jury verdict, such as orders issued after a bench trial or setting aside a default judgment.
Accordingly, in my view, the Columbia line of cases does not apply to such orders.
Having required trial courts to “provide[] a cogent and reasonably specific explanation of the
reasoning” for new trial orders, United Scaffolding, 377 S.W.3d at 688, the Court now concludes
that, for the sake of averting “[t]ransparency without accountability,” such reasoning cannot be
“immune from substantive review.” ___ S.W.3d at ___. Engaging in that review, the Court further
holds that “the record squarely conflicts with the trial judge’s expressed reasons for granting new
trial” and that the court therefore abused its discretion in doing so. Id. at ___.
2
I agree that, in this case, determining whether the order granting a new trial was an abuse of
discretion is “relatively straightforward.” Id. at ___. It is undisputed that, notwithstanding the trial
court’s order in limine precluding the introduction of Officer Coon’s deposition testimony regarding
King’s seatbelt usage, the testimony was disclosed to the jury twice without objection, the first time
inadvertently by the Kings’ attorney (who did not request that the jury be instructed to disregard the
statement or otherwise clarify the mistake when pointed out by Toyota’s counsel), and the second
time by one of Toyota’s expert witnesses on direct examination. Notably, neither the Kings’ motion
for new trial nor the order granting it referenced the introduction of that testimony as a basis for the
order. Instead, both the motion and order focused solely on Toyota’s counsel’s referencing the
testimony during his closing argument, and the order clarified the trial court’s conclusion that
Toyota’s counsel “purported to present evidence outside the record, and commented on matters in
violation of [the trial c]ourt’s order in limine.” The trial transcript dispositively reveals, however,
that the complained-of and unobjected-to evidence discussed by Toyota’s counsel during closing
argument was not outside the record and thus was not improper. See Tex. Sand Co. v. Shield, 381
S.W.2d 48, 57–58 (Tex. 1964) (“Counsel may properly discuss the reasonableness or
unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude
extends only to the facts and issues raised by the evidence admitted under the ruling of the Court.”).
But while review of a cold record appears to be exactly what was needed in this case to
evaluate the substantive merit of the new-trial order, that limitation frequently places appellate courts
at a disadvantage in evaluating whether there is good cause to grant a new trial. See United
Scaffolding, 377 S.W.3d at 688. As we recognized in Columbia, “there are differences between the
3
review that can be accomplished by appellate judges who have only the record to consider and trial
judges who have seen the parties and witnesses and sensed the [e]ffect of certain evidence or
occurrences on the trial.” 290 S.W.3d at 211; see also United Scaffolding, 377 S.W.3d at 688
(noting that “the trial judge may have observed irregularities not wholly apparent in a cold record”);
Jennings v. Jones, 587 F.3d 430, 437 (1st Cir. 2009) (“[Appellate courts], reading the dry pages of
the record, do not experience the tenor of the testimony at trial. The balance of proof is often close
and may hinge on personal evaluations of witness demeanor.’” (quoting United States v. Alston, 974
F.2d 1206, 1212 (9th Cir. 1992))). The trial court, for example, may conclude, based on
observations of the jurors’ reactions, that they were particularly influenced by improperly admitted
evidence or by attorney misconduct and that such error unfairly affected the verdict. Or the trial
court may observe jurors being significantly distracted during the presentation of crucial evidence
in the case and discern a prejudicial effect on the verdict. And in the context of new-trial orders
based on evidentiary insufficiency, we recognized in United Scaffolding that trial courts need not
furnish the same level of detail in explaining their decisions that courts of appeals must provide.1
377 S.W.3d at 688. This is because the concerns that exist as to whether the “court of appeals ha[s]
‘considered and weighed all the evidence before arriving at a decision of insufficiency’” are not
present with respect to the trial court, which “has, in most instances, been present and a participant
in the entire trial.” Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
1
This ground for a new trial raises yet another wrinkle, as this Court lacks jurisdiction to conduct factual
sufficiency reviews. See T EX . G O V ’T C O DE § 22.001(a); see also Sw. Bell Tel. Co. v. Garza, 164 S.W .3d 607, 619–20
(Tex. 2004) (distinguishing between legal sufficiency and factual sufficiency reviews).
4
These examples illustrate that determining whether a trial court abused its discretion in
granting a motion for new trial after a jury verdict will rarely be as cut-and-dry as confirming that
evidence or testimony referenced during a closing argument is or is not in the record. Often, the trial
court’s presence and observations throughout the trial will be indispensable in evaluating whether
the requisite good cause exists to justify setting aside a jury verdict and granting a new trial. See
Columbia, 290 S.W.3d at 212 (“We do not retreat from the position that trial courts have significant
discretion in granting new trials.”). Recognizing the need to defer to trial courts with respect to such
determinations is crucial to ensuring that parties receive a fair trial.
_________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: August 30, 2013
5