*1 SCAFFOLDING, INC. In re UNITED
No. 09-09-00098-CV. Appeals of
Beaumont. March
Submitted on 16, 2009.
Decided Weber, Mehaffy Kennedy, M.
Kathleen Beaumont, relator. Ferguson, E. Mar-
Timothy W. Lauren shall, Beaumont, party for real in interest. McKEITHEN, C.J., Before KREGER, GAULTNEY and JJ. OPINION McKEITHEN, STEVE Chief Justice. mandamus, for writ of Scaffolding, relator Inc. contends United abused its discretion a motion new trial filed Lisa James Levine and Levine after in the underlying pro- rendered a verdict ceeding. The trial court the mo- a new trial “in the inter- and ordered and fairness.” contends by grant trial court abused ing a “in the interest motion for identifying fairness” particular injustice wrongdoing in the case. In them motion for occurred fac the Levines tual zero physical pain impair care, earn and loss of had an ing capacity where James Levine *2 filed). objective injury jury Accordingly, awarded mancl. deny we $178,000 care. Le- for writ for future medical of mandamus. jury’s that the failure to argued vines also PETITION DENIED. damages pain for and award GAULTNEY, Justice, DAVID physical impairment, and anguish, mental dissenting. by loss of consortium caused the defen- negligence presents injus-
dant’s a definite require The Rules that upon error relied even if the damages tice award in a motion a for new trial constitute “good categories damages those trial, cause” to a “clearly and be and identified.” See Tex. R. P. Civ. A that asserts “the verdict of the and the like—shall may good A new trial be not be by considered the court.” See party’s may cause shown a motion and 322. The trial court abused Tex.R. Civ. when the mani- be are by granting discretion a new trial based festly A too small. See Civ. Tex.R. on a ground precluded of “the like” by identify motion for new must each Generally, granting a upon way relied such a that the motion for new trial is not reviewable on clearly can be identified and un- appeal. v. Methodist Wilkins Health Care by the court. See derstood (Tex.2005) Sys., 160 S.W.3d (citing case, In this the Levines’ motion for Co., Cummins v. Paisan Constr. clearly new trial identified their (Tex.1984)). appro- complaint damages findings that the zero priate only remedy and available is a manifestly too small and the trial tion for writ of mandamus. We should the new trial granting court’s reason issue the writ in this case. grant- evident from the face of the motion years trial occurred three after the by ed the trial court. past accident. The found no expenses, past physical pain, no no past Generally, appellate “an physical no past impair- by will not review mandamus an action of capacity, no earning loss of no the trial court a it granting while loss of future earning capacity, no future jurisdiction still has of the cause. The future, mental anguish, pain in the judgment of the trial court impairment the future. The a new trial cannot con be for medical care trolled or directed mandamus.” John plaintiff “will incur in the future.” son v. the Sev Court of Dist. In their enth Judicial motion for new Le- (Tex.1961). (plaintiffs parties vines and real in inter est) case, mandamus record does of the evi process support jury’s not reveal denial due dence to verdict. damage manifestly does not demonstrate Whether a award is too is, large that the trial court acted outside the limits small or too whether the —that inadequate general of its discretion. See Johnson v. Fourth award is or excessive— ly is determined a review the suffi ciency In re E.I. DuPont de Nem of the evidence to the ver 09-08-318-CV, generally ours and 2008 WL dict. See Larson v. Cactus Util. *1 641-42 (Tex. Am., review trial of the evidence Co. (sufficiency court); 2004); also Mar. A. Cassidy, Helen The Instant court and Ellis, Corp. v. Freeze-Dried Guide Mandamus Proce Overseas *3 (Tex.1998) (excessiveness); Mar Courts, dure in Texas 31 S. L.Rev. Treating 826 Superior (1990); v. Heat 509, shall see Mo Bayerische 512 In re (Tex.App.-Fort 200 Worth Werke, AG, S.W.2d toren 8 326 writ) (zero award); Rob (Hecht, J. is clear is dissenting). What Tatum, 138, 140-41 v. erts have to always exceptions that there been 1978, writ (Tex.Civ.App.-Corpus Christi DuPont, *1, rule. at general the See In re n.r.e.). Alternatively, the motion as ref'd Tex.App. at *1-2. LEXIS “appro an presented that the case serted The Levines to the fact that this to order a new in which priate situation” petition the in Court denied for mandamus justice, in interest of fairness and trial the DuPont, involving In re another case an if trial determines [the court] “even from this trial court that the award explanation. trial Id. of the the mandatory, ap- 322 is whether or not court the evidence.” trial plicable under the in In re circumstances motion and ordered a new trial Levines’ DuPont, the Rule applicable is to the the the inter based on second —“in ground argued the motion for new trial justice and fairness.”1 at here. See issue Tex.R. Civ. majority opinion general states the precludes Rule a trial court from a tri concerning rule mandamus review of considering “[g]rounds objections of of grant al court’s a new trial. See John terms[,]” general specifically couched in an v. Fourth son argument that “the verdict (Tex.1985); Johnson contrary to Id. The like[.]” the Seventh Court argument made that even this case was Supreme 162 Tex. Judicial Dist. of if supported by the verdict was suffi- (1961). This evidence, should, the cient trial court noted, however, recently that there Court alternative, rule the the verdict “exceptions to the rule” that general the interest of and fairness. That review man an will not “the like” that Rule a trial a new damus court’s order states “shall not be considered” trial. See In re E.I. de Nemours DuPont court, assuming error CV, & 09-08-318 WL given law or fact is as a reason. See 2838776, *1, at Tex.App. LEXIS at *1-2 orig. proceeding)(mand.filed). emphasized Mandamus Court has changed in that a court cannot judg- law has since the 1985 decision “substitute v. Fourth ment for that of Appeals. jury” Johnson See when the evi- Packer, Walker v. 839-40 dence is sufficient the verdict. Larson, In re Prudential Ins. also See at The trial response grounds: 1. The Levines assert in their to the was based on two alternative (1)[f]actual allega- insufficiency mandamus that "there is no of the evidence and (2) justice." They tion in the Motion for New Trial that the in the interest of state that conflict, jury's incomplete, judge were answers "[t]he ordered the new trial based unresponsive argument questions to the asked." The second an ‘unknown —not ” explain Levines for New Trial their "Motion reason.' any court order does not indicate reason the interest of fairness is
why by setting aside a verdict that
served supported considers The trial court not follow did governing
the Rules Civil Procedure new trial. See
motions for Tex.R. Civ. should We for writ of mandamus and vacate the *4 majority
trial court’s order. Because the not, respectfully
does I dissent. Lindsey GREENE,
Robert
Jr., Appellant, Texas, Appellee.
STATE
No. 11-07-00295-CR.
Eastland.
Discretionary Review Refused
Sept.