In re Houston
418 S.W.3d 388
Tex. App.2013Background
- Collision (May 1, 2009): HPD patrol car driven by Officer Parker struck Rochelle’s car while responding to a reported drunk driver; Rochelle (driver) and Etubom (passenger) injured. Jury apportioned fault 60% City / 40% Rochelle but found officer was performing a discretionary duty and in good faith, implicating City affirmative defense.
- Pretrial discovery: Plaintiffs requested preservation and production of various HPD materials (patrol car, call slip, mobile data terminal (MDT), policy orders, and witness IDs). Several items were unavailable at trial (call slip, MDT, patrol car later destroyed in HPD training detonation).
- Trial events: An HPD investigator mentioned a citation issued to Rochelle in violation of an in limine order; the court struck the testimony and instructed the jury to disregard. The trial proceeded to verdict in favor of the City on the discretionary-duty defense.
- Post-trial: Plaintiffs moved for new trial / JNOV; trial court denied JNOV and other relief but granted plaintiffs’ motions for new trial, citing (1) City misconduct in discovery/spoliation and limine violation, and (2) newly discovered evidence (2011 revision to HPD General Order 600-01 and testimony of Officer Dozier).
- Mandamus: City petitioned for writ of mandamus after the trial court granted a new trial, asking the appellate court to vacate the new-trial order and enter judgment on the jury verdict. Supreme Court precedent permits merits review of sufficiently specific new-trial orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Newly discovered policy document (2011 revision to HPD General Order 600-01) | The omitted 2011 revision (not produced) is highly probative of whether the HPD policy was discretionary or mandatory and likely would change the verdict. | City produced the 2009 version; plaintiffs failed to obtain a discovery ruling or move to compel other versions, so they waived complaint. | New trial improper on this ground — plaintiffs waived by not pursuing discovery objections; trial court abused discretion. |
| Undisclosed witness (Officer Dozier testimony from another case) | Dozier’s deposition contradicts City witnesses about whether the 2009 policy was mandatory; his non-disclosure supports new trial. | Disclosure of every officer with possible knowledge is not required; Dozier’s testimony would at best impeach and does not justify new trial. | New trial improper — testimony would be impeachment or cumulative; nondisclosure of an unrelated officer is not a basis for new trial. |
| Spoliation (missing call slip, MDT, destroyed cruiser) | City withheld/destroyed critical evidence showing the emergency call and MDT data; cumulative misconduct prejudiced plaintiffs. | Trial court gave a proper spoliation jury instruction; the missing items cannot be restored and plaintiffs had opportunity to seek sanctions before trial; instruction cured. | New trial improper — spoliation remedies (instruction) were provided and plaintiffs waived pretrial sanctions; granting a new trial is an abuse of discretion. |
| Violation of limine (mention of Rochelle’s citation) | The prohibited mention of a citation prejudiced plaintiffs and warranted a new trial. | The trial court promptly sustained objection, struck the testimony, and instructed jury to disregard; the citation related only to fault (jury still found City mostly at fault) and not to City’s discretionary-duty defense. | New trial improper — instruction likely cured prejudice and error was harmless (not affecting the dispositive discretionary-duty finding). |
Key Cases Cited
- In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (appellate courts may conduct merits-based review of reasonably specific and legally sound new-trial orders)
- In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (standards for valid new-trial orders: legally appropriate reason + sufficient specificity)
- In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (trial court must give specific reasons for new trial; Rule 320 discretion is broad but not limitless)
- Remington Arms Co. v. Caldwell, 850 S.W.2d 167 (Tex. 1993) (failure to obtain pretrial ruling on discovery disputes waives sanctions based on that conduct)