Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed May 9, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00244-CV
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IN RE MARY L. HALL, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
In this original proceeding, relator, Mary L. Hall, seeks a writ of mandamus ordering the respondent, the Honorable Lonnie Cox, presiding judge of the 56th Judicial District Court of Galveston County, to vacate his order granting a new trial on the issue of whether the real party in interest is entitled to damages. We conditionally grant the writ.
In the underlying lawsuit, relator sued the real party in interest, Simon Resort Development, Inc., for breach of contract. The real party in interest filed a counterclaim and the case went to trial. The jury found in favor of relator and awarded damages. Six days later, the real party in interest filed a AMotion for Post-Verdict Trial Amendment for Quantum Meruit Claim,@ which asked the trial court to grant a new trial on the issue of whether the real party in interest was entitled to quantum meruit damages. Six months later, the trial court entered the judgment and ordered a new trial on the issue of whether the real party was entitled to damages.
Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses its discretion if Ait reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@ Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). When alleging that a trial court abused its discretion in its resolution of factual issues, the party must show the trial court could reasonably have reached only one decision. Id. at 918. As to the determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840.
In determining whether the writ should issue, we must further determine whether the party has an adequate remedy by appeal. Id. Mandamus is intended to be an extraordinary remedy, only available in limited circumstances Ainvolving manifest and urgent necessity and not for grievances that may be addressed by other remedies.@ Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989).
In the present case, the real party in interest did not plead quantum meruit damages as a theory of recovery as is required by Texas Rule of Civil Procedure 47(c); nor did the real party in interest file its trial amendment before the case was submitted to the jury as mandated by Texas Rule of Civil Procedure 67. Therefore, the trial court abused its discretion in granting a new trial, on a theory that was not pled and pursuant to a trial amendment urged after the jury=s verdict, because it failed to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840.
[wmf1] Having found the trial court abused its discretion, we turn to the question of whether relator has an adequate remedy by appeal. We determine that she does not because an order granting a new trial during the court=s plenary power, as is the case here, is not appealable. Cummins v. Paisan Const. Co., 682 S.W.2d 235, 236 (Tex. 1984).
For the foregoing reasons, relator is entitled to mandamus relief compelling the respondent to vacate his order granting a new trial on the issue of whether the real party in interest is entitled to damages. We are confident Judge Cox will vacate his order of January 23, 2006, granting a new trial. Our writ of mandamus will issue only in the event he fails to comply.
PER CURIAM
Petition Conditionally Granted and Memorandum Opinion filed May 9, 2006.
Panel consists of Justices Hudson, Fowler, and Seymore.
Justice Fowler dissents without opinion.
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