in Re United Scaffolding, Inc.

SCAFFOLDING, In UNITED

INC., Relator.

No. 10-0526.

Supreme Court of Texas.

Argued Oct. 2011. Aug.

Decided Mehaffy Kennedy,

Kаthleen Web- Marie TX, PC, Beaumont, Relator United er Scaffolding, Inc. LEHRMANN delivered the

Justice Court, in which Chief opinion JEFFERSON, HECHT, Justice Justice GREEN, MEDINA, Justice Justice JOHNSON, WILLETT, Justice Justice joined. Justice GUZMAN In In re Columbia Medical Center Colinas, we held that a trial court’s Las motion for reasonably specific explanation provide setting the court’s reasons for aside a (Tex. 204, 213 verdict. jury 290 S.W.3d rejected a new-trial premised solely was “in the interest of justice.” 213. Because order in can bе read to do this case conditionally grant we writ of deny mandamus. We re also United’s a writ quest compelling of mandamus court to the trial render Background I. negligence In James Levine’s 2008 law- Scaffolding, a suit United as- signed fifty-one responsibility for percent injuries The Levine’s to United. de- past to find even it damages, though clined $178,000 projected awarded future med- verdict, expenses. Following this ical granted trial court Levine’s motion for trial “in the interest light In re fairness.” Hatchell, LLP, Mike A. Locke Lord conditionally granted writ of United’s man- Austin, TX, E.I. for Amicus Curiae du January damus United Company. Pont de Nemours and Inc., Scaffolding, (“We (Tex.2010) direct the trial court to Portner, Christopher Michael J. Trenton specify disregarding its reasons for PLLC, Bond, Portner Bond Dominic M.V. trial.”). ordering verdict and Braus, Firm, Ferguson Timothy W. Fer- Beaumont, TX, guson, Firm, its order to add Ferguson Party Real in Interest Levine. three alternative rationales: James should, contends, re-considering After Plaintiff James order the trial Trial, Motion and Lisa for New render Levine’s the verdict. the motion or- Court GRANTS Levine counters that requiring reasoning upon: ders New Trial based specific more than that used here resources, would trial waste court and that A. to num- jury’s question The answer types substantive review of these of orders (3) great against ber three1 the improper. would be preponderance weight and evidence; and/or Requirements II. New-Trial Order great weight

B. The and preponder- In In supports ance of the evidence we reiterated the considerable discretion finding negli- determined afforded trial gence proximate judges ordering of Defendant was a in new trials. 290 S.W.3d in injury past (citing cause of to Plain- at 212 Johnson v. Fourth Court of tiff, Levine; (Tex.1985)). Appeals, James 700 S.W.2d and/or That has rule both jurisprudential justifi- great weight C. The and preponder- (trial judges actually cations attend the ance of evidence supports trial and are best to suitеd evaluate finding negli- that the its determined deficiencies), practical justifications gence supports of Defendant (most judges trial are past damages; understandably award of re- and/or luctant, presiding after over a full D. justice In the fair- interest Therefore, do it again). all over in consid- ness. ering detailed how a trial court’s new-trial added). (Emphasis again sought United be, order well as what level of relief, mandamus appeals court of to, subject rеview isit we must both afford reasonably found order regard verdicts appropriate and re- petition, denied the with one dis- spect significant trial courts’ senting. 315 at 247. these matters. argues United Imposing Pooü-like on standard trial provide adequate reasoning. still fails to weigh heavily courts would against too tri- attacking In addition to the order’s use of discretion, al courts’ since that standard and the retention of “in inter “and/or” frequently would impossible for a trial of justicе,” est ami- (supported by Pool, court meet. we said: cus curiae E.I. du Pont de Nemours Co.) urges require that we trial courts order that this in conduct, in new-trial orders based fac on future determine if a correct standard of sufficiency, analysis tual the same insufficiency detailed of factual points review has required utilized, of appellate courts in Pool v. appeals, been courts of when (Tex. Ford Motor reversing insufficiency grounds, should, United also invites us to in their opinions, detail the evi- evidence and conclude that the trial court relevant dence to the issue consider- abused its in granting clearly why discretion ation and state insufficiency grounds. factual finding factually insufficient is so Question future, separately past likely three asked to be sustained in the types damages above, calculate the different suf- etc. alluded to As answered categories fered Levine. included every category excеpt “$0” for for future expenses past, medical incurred in the those expenses. medical future, projected pain for the incurred in the (or it, selectively ignore portions weight preponder- the great Pool), who manifestly unjust; why it as we feared as to be

ance conscience; has, in most clearly dem- rules on a motion for shocks Further, courts, instances, participant those present been onstrates bias. re- state in what in the trial. We conclude that opinions, ‍‌‌​​​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​​​‌‌​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‍should entire their greatly out- contrary appropriate evidence are not gard the Pool standards support for new weighs the evidence trial court orders motions trial. cited that stan- S.W.2d at 635. We concerns, with these Consistent Columbia, In and United dard in we in In re Columbia not on focused comparisons our make much of DuPont court length detail of the reasons a trial a trial court’s new-trial gives, how well reasons serve but on those by appellate type of review conducted general purpose assuring parties See, S.W.3d at 211-12 e.g., 290 courts. only aside decision was set (“[TJhere meaningful difference to is no reasons. thought after careful for valid re- an court parties between Indeed, opinion 290 at 213. our a jury based verdict versing judgment a on the expressly touched substance setting verdict a trial court only reason what explaining ”). opinion, in that same we aside.... But that not be: substitutе the reason could to appellate courts nor- also observed that jury. for trial court’s that of the reporter’s have record at mally a court (citing 212 Scott v. Monsanto rely courts disposal, their while (5th Cir.1989)). A trial 868 F.2d 791 Id. at 211. on their own observations.2 catalog a provide need not detailed giving both for This distinction advocates of the evidence to ensure however to the trial court’s substantial deference subject reason opinion to differences its (since the trial determinations new-trial be, ing it was not a may mere substitution irregularities judge may have observed not jury’s. trial court’s record), wholly apparent in a cold and for long That will be purpose satisfied so (since requiring detail a trial not Pooi-level cogent reason provides usually judge record from does ably reasoning specific explanation of the which draw detailed recitations that court to that a new led the concludе presented). evidence Furthermore, trial was warranted. Moreover, large part of our rationale granted most a new trial will cases review for courts of prescribing Pool in a reasons stated motion for new so that, “without that men- appeals—concern explanation that will alert such process opinion,” tal reflected being parties per reason the found judge to the could that a ap- we not be sure court of suasive, illuminating further the substan weighed had peals all “considered tive the order. basis for at a arriving evidence before decision of considerations, Pool, insufficiency,” light of these we 715 S.W.2d at 635—is hold not abuse its potent less trial courts. that a does as to Unlike affirmatively long as its stated reason for appeals, court of which must discretion so (1) granting consider a new trial is a reason choose read and the entire Garland, Med. Ctr. at burden on a trial who is not likely рresided one same over trial is Baylor even See to be more substantial. legally appropriate which a new trial is sures that verdicts are not overturned (such reasons, specific as a standard or a without proper well-defined while still probably improp- maintaining resulted trial courts’ defect (2) verdict); specific enough is new trials. er did not simply indicate the trial court Application III. to This Order template,

parrot pro forma rather dеrived the articulated reasons from the turning Before United Scaffolding’s particular facts and circumstances of the challenge to the substantive basis for the at hand. case order, apply we first the two-part standard above to example,

For articulated this case. an order standard, Under that clear abuse amended order amount to a of dis- (still) reason, not, this case plainly if the violates our hold- given cretion ing in In re not one for Columbia. legally which a (“The it indisputably made clear that good See id. at “[b]road valid. 210 n. cause statements such as ‘in the jus- which interest of Rule Civil [Texas Procedure] tice’ sufficiently specific.” are not grant trial 290 320 allows courts new trials cause.”). if Or, S.W.3d at 215. just not mean And order based does man- solely on justice” “the would lie if articulated interest is insuffi- damus cient, so too is one though state it plainly merely contains reasons, alternative its could as well judgment substituted own solely cоnstrued as on relying ‍‌‌​​​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​​​‌‌​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‍that “the jury’s, see id. at or the trial court interest justice simply and fairness.” party’s lawyer, disliked one BMW, 326, (Tex.2000) 8 328 Here, the trial court’s four articu (Hecht, J., dissenting from the denial of reasons, including lated “in the interest of mandamus); rehearing petition or fairness,” justice preceded and are all that the reason on is based invidious dis- by followed Many courts and “and/or.” crimination, id. critics have denounced the use of “and/or”

Moreover, legal mandamus lie if writing. E.g., Texаs Law Review Usage Style order, (Texas though rubber-stamped § with a Manual on 1.42 & rationale, provides ed., 2011) valid new-trial little or Law Review Ass’n 12th ed. (“Do insight no into judge’s reasoning. not use in legal writing.”); and/or Usually, the mere recitation of a State ex rel. Douglas, Adler v. 339 Mo. standard, (en (1936) banc) such as a statement that a find (“The ing great weight and prepon symbol use of the ... should ‘and/or’ evidence, court.”). derance of the will not every suffice. be condemned by The The order must indicate that the trial inherently term to ambiguity leads judge considered the facts Strunk, and cir confusion. William Jr. & E.B. Style (4th White, cumstances of the at hand explain case The Elements (or evidence) ed.2000); lack Garner, how evidence Bryan see also A. The jury’s findings. undermines the A trial Redbook: A Legal Style § Manual on 1.80 (2nd ed.2006). order, court abuses if its discretion its new-trial In this the use of provides pro order no more than a open possibility forma leaves “and/or” template judge’s rather than the trial anal “in the justice interest of and fairness” is ysis. This two-part adequately test en- the sole rationale.3 Because that is never slash, (a symbol virgule), The ambiguous upon, itself and frowned often indicates "/" a conclusion it did not reason date sufficient independently And absent the doing valid reason for so. new the amended having its rea- particularized test we first prong

violated the Therefore, be entitled we conditional- reasons —United would above. son—or announce court to part directing mandamus the trial the writ of mandamus ly grant only if it its amend- on the verdict the trial court to vacate render instruct issue a valid for the new- The court should showed no basis exists ed order.4 here —the ambiguity dis- trial order. It has not done so order that resolves the elaborate, only par- presented reference has cussed above trial, how the for new containing tial one Levine’s motion to the evidence adduced motion, such contrary great are to the and the exhibits to that jury’s answers the tran- deposition transcripts, of the evidence. weight preponderance hearing for new script of the on the motion Trial Need Not Render IV. Tex.R.App. trial. See P. 52.7. Judgment the Verdict V. Conclusion request now turn to United’s ordering mandamus we also writ of caused ambiguity Because court, merely to redraft the trial use of and “in the trial court’s “and/or” order, to render new-trial fairness,” interest of we condi- contends that the verdict. United tionally grant mandamus writ of every in order is deficient so the vacate its and order trial court to part respect than order the trial rather only The writ will if the trial order. issue order, direct court to redraft its we should comply. court fails to are confident We jury it to render on the verdict. order the trial court’s next amended will argues first three reasons ambiguity, leaving only all resolve behind in the amended based on the оrder —those that, in the the valid the weight and of “great preponderance ‍‌‌​​​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​​​‌‌​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‍case, why granted of this it explain context just boilerplate evidence”—are much as as a new trial. fairness,” justice “in the interest of sup- and that the record does not factual a Justice WAINWRIGHT filed them. that rendition on port disagree We concurring opinion. in this cir- verdict is warranted WAINWRIGHT, concurring Justice First, discussed, we have cumstance. judgment. the actual basis for the trial court’s unсlear; greater-weight agree if it I with the that the order

is rests on the rationale, compel new trial case fails to then our would a in this writ reasoning. pass trial court to that muster under In re Medi- elaborate on Colinas, 204, The trial court’s cal Las properly failure to state Center of man- why granted it a does not new trial 1.80, §§ supra, at the interest of and fairness" altematives. "in Garner, 1.81(d). Many guides itself. style translate

phrase "A "A B or B” to mean or and/or supra, See both.” possibility 4. decision rests Our White, Strunk & Usage 64-65 solely granted a new trial based Follett, Wilson Modern American eds., Thus, (Jacques justice, speak Barzun et al. of not the interest and does might viability provid- trial court's have been actual reasons other three reasons them, three, or of the first all four of ed in the order. respectfully disagree give explanation I with some courts must also for Court’s opinion. propositions a setting aside verdict. 290 S.W.3d at considering support for the substantive 206. held that a trial court abuses its determinations, I that a disagree if discretion it fails to specify the reasons lack of a trial record presumed trial court’s grant for its decision to newa trial and determining for be a basis should that “in the interest justice” is not a scope sufficiency review of a 213, proper reason. 215. The for- grant of a motion for new trial. “in the justice” mulaic interest is age technology, trial courts have this vague explanаtion for more, including to the record and access not respect and “does enhance for the of the trial and their personal observations law_” or the judiciary rule of Id. at 213. than proceedings. appellate breadth of substantive consideration on appeal, including things granting of orders (God forbid) motions new trial. as sleeping jurors, such coun- Sales, sel, Toyota U.S.A., Inc., Motor jurists, explosions outside the court- 10-0933, during injuries, house a trial over burn and No. 55 Tex. Sup. J. - (Aug. Ct. other matters. I am also convinced that 31, valid, requiring the rationale for substan- historically Texas trial courts have been tive reasons for a trial court’s reversal afforded broad granting discretion in new

jury verdict be should more than the con- Columbia, 210; trials. 290 S.W.3d at cern that a judge judg- will substitute her v. Johnson Fourth Appeals, 700 ment for of matters within 916, 918 But that dis jury’s province. A trial court’s ‍‌‌​​​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​​​‌‌​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‍reasons for Columbia, cretion is not limitless. 290 granting a new trial should be valid and S.W.3d at 210 proper significance (citing because of the Larson v. of the Cactus right to by jury (Tex.1987)); and the due respect Util. 730 S.W.2d 640 In jury verdicts. See 290 S.W.3d Werke, Bayerische AG, re Motoren 8 3, 212, 211 n. at 213. 326, (Tex.2000) (Hecht, J„ dis senting from denial of motion for re determined in Medi- hearing petition of for writ of manda Center just cal Las Colinas as of mus) (“Broad as the trial appellate courts that set aside ver- court’s discretion is, unbounded.”). reasons, dicts are to detail required it is not is at Columbia mandated that a trial ourselves what to remind We need protects right “valid,” “reasonably specific,” Our Constitution must and stake. list “shall remain invio- by jury, which to trial motion for “proper granting reasons” Const, 1, § art. 15. A similar late.” Tex. significance new of trial because in the ver- original was included guarantee right by jury. at 211 n. to trial Constitution of 1876 of our current sion 3, 212, ju- points This our language 213. Texas of earlier Constitu- in all risprudence toward review of tions, the Re- including the Constitution of Id. reversing a verdict. given Repub. Const, of of Texаs. See public Tex. (stating “good grant at n. 3 cause” 9, 1836, reprint- art. Rights, Declaration of cause”). any just new trial “does mean 1 H.P.N. Gammel, The ed in Laws of Texas (Austin, Gammel Book Co. 1822-1897 A confirm that facial review fails to Const, 1869, I, 1898); also Tex. of art. see supports a new trial order does Const, 1866, 12, 8, 12; I, § §§ art. Tex. injustice and service of commitment Const, IV, 20; 1861, I, § art. art. Tex. faithfully to reach a true swore Const, IV, § § art. Tex. A facial inconsistent review is I, § 12. art. Unbounded discretion constitutionally right guaranteеd with the is at odds with these trials resolve Reasons disputes. century, For principles. over this Court given may meaningless become formulas recognized the limited discretion af- has reversed that are verdicts for reasons new trial. forded incorrect, unsupport- pretextual, legally Judges, in of all before the trial causes ed the record. And an order them, necessity should from have and a new trial for an reason is invalid great legal every exercise an order to pro- insufficient as that fails to the end stage at all. appel- vide reason Similar to enforced, laws be verdicts, late the rea- judgments all. equity administered to But that dis- sons them taking away set out cretion should be a sound and dis- for the bench bar to see. See public, cretion, compliance exercised id. rules, law; principles known arbitrary pleasure not the will and It important to remember what’s at judge presiding. stake. a motion for new trial is Whеn (1871). Brinck, 1, 6

Lloyd v. 35 Tex. retried, jury granted and the case is two the awarded Lloyd, Court mandamus re- have been After verdicts will rendered. lief to set aside a new trial order where verdict, the litigants may the seek second providing the order was without issued through appeal relief with the court of Id. And we reason. at 8-9. reaffirmed appeal, may appeals. litigants In the raise Columbia, 290 principle in at issues, legal sufficiency and factual dam- (Gault- see also 315 S.W.3d errors, ages or procedural problems, other (“A J., ney, dissenting) trial judge should matters, jury and the second verdict the requirement have no need the or write scrutiny case a level of to confirm receives equivalent opinion appellate explain- findings or it. The fact and overturn why the ing judge jury verdict judged the law conclusions are and clearly wrong unjust, is and but it is not trial. proceedings record of The much to trial require too respected appellate verdiсt is in the second provide beyond an answer standardized appropriate phrases.”). process through standards of transparent and well-reasoned treating differently.” review and tradition of them by appellate Perhaps, but we took a analysis step courts. correcting problems toward with motions first verdict should likewise be ac- The trials, and recognized new that: respect. corded commensurate level of [Tjhere no meaningful difference to in the testimo- jurors The first trial heard the parties appellate between an argu- ny, carefully listened to counsel’s reversing jury based on a ments, and endeavored to follow the trial verdict a trial court setting the ver- instructions. As with the second or disregarding dict aside it. end

jury, jury the first deliberated and ren- result is that the prevailing party loses grand verdict in the dered a tradition jury judgment, verdict right the constitutional to a trial. potential judgment, based on it. However, without а review of substantive at 211-12. While are there trial, granting the reasons the new many procedural practical issues and chal- without first verdict be invalidated lenges to surmount in resolving is- these analysis of review rigor the careful sues, which I do not attempt to answer Why the second verdict. should accorded today, jurisprudential I have concerns in verdict be treated more im- second treating the verdicts differently. two than the first? portant Why should receive than the rеspect first less We have faith in the integrity of our Why and work second? should the efforts trial well bench as as that of appellate in the expense parties of counsel bench. 214. A serious re- merits subject first trial be under a view grants invalidation motions for new trial will thorough analytical in the not put less review than burdens on trial appellate already second? courts that are not expected—to just rulings issue fair and under the law are procedural Therе limitations cases and controversies filed in their review of a new mandamus trial order Instead, courts. this protects be would not of concern in an For appeal. by jury right to trial and a judge’s trial of re- example, mandamus standard a new trial rea- view abuse discretion than a de rather valid, sonably specific, proper reasons. verdict, proper novo review I agree judges While pro- should deference accorded to fact find- valid, vide substantive reasons for ings credibility determinations. a motion I agree with the Should the first verdict to the subject be that we require should not second, same review as the prepare courts to orders with grants of motions for new trial treated analysis same required detailed of appel- all, as final instead of After interlocutory? late courts in Pool v. Ford Motor verdict, the new order reversed a S.W.2d, 629, 635 would be judg- which considered a final But a true without merits-based rеview accomplished ment if in a not- given tri- granting new withstanding the ruling verdict or on a als, will fully not be A effective. and, entry judgment; motion is, rule reality, that cannot be enforced an order be the case no rule at all. retried after consideration. there legal congruence

Should between

the review motion for new trial and a verdict? notwithstanding the is, “Well, counterargument notes Even more Emphasizing that parties public and the my decade court ago, reporter “understandable, are entitled to an reason- provided court this former trial ably specific explanation” when new trial transcripts “real time” electronic of trial granted, we determined a trial testimony, as She main- needed. also give “proper court must reasons” for over- custody tained of the trial exhibits and the turning jury at 211 Id. n. maintained, obtain, clerks could clerk’s ‍‌‌​​​‌‌‌​‌​​‌​‌​‌‌​‌‌​​​​​‌‌​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‍Pre- documents from the record. more, sumably judges today have question yet we have not addressed less, access to trial records needed to for- in-depth how the appellate review of valid, mulate well-reasoned bases be, orders granting new trials should granting motions for new trial that over- issue raised this case unnecessary turn Incidents occur verdicts. Today for the Court to address. during a trial that warrant overturn- petition writ of mandamus that ing the jury’s verdict can be documented squarely raises the issue of the nature and explained appropriate

Case Details

Case Name: in Re United Scaffolding, Inc.

Court Name: Texas Supreme Court

Date Published: Aug 31, 2012

Citation: 377 S.W.3d 685

Docket Number: 10-0526

Court Abbreviation: Tex.