*1 Therefore, deny Cunningham’s petition
for writ of mandamus.
IN RE WYATT FIELD SERVICE
COMPANY, Relator
NO. 14-14-00275-CV Texas, Appeals
Court of (14th Dist.)
Houston
December
Rehearing En Banc Overruled
January *3 on Texas manda-
сonsequences wrought holding in In Re practice mus due to the is a re- exactly what “merits Columbia: view,” ap- intermediate and how does an apply “great it to evaluate pellate the evi- weight preponderance dence”? interest, David McBride parties
Real
Burns,
personal inju-
Glenn
sustained
refinery
accident at a
owned
ries due
in Baytown,
ExxonMobil
Corporation
relator,
parties
Texas. Real
sued
*4
and ExxonMobil.
Company,
Field Services
parties
prior
Real
settled with ExxonMobil
argued
Wyatt
solely
and
was
to trial
accident.
responsible
Wyatt
returned a
was not
verdict
solely
re-
negligent, but ExxonMobil
injuries.
sponsible
parties’
for real
On
motion,
parties’
Kyle
real
the Honorable
Carter,
of the 125th
presiding judge
Dis-
County, signed
of
trict Court Harris
a new
in
parties
trial order
favor of real
on
3,
March
2014. The trial court’s new trial
findings
order and the
of fact reflect that
(1)
a new trial
granting
the bases
are
jury’s findings
that ExxonMobil was
negligent Wyatt
against
and
was not were
great weight
preponderance
of the
(2)
evidence;
Wyatt’s repeated injec-
of
tion
collateral source evidence into the
violated
in
case
the motion
limine and
tainted
verdict.
Slade,
Alvarado,
L.
M.
Keith
Karen
TX,
Houston,
for Relator.
Wyatt filed a
petition for writ manda
Itkin,
Post, Houston,
S.
Jason A.
Russell
16, 2013,
September
challenging
mus on
TX,
Party
for Real
in Interest.
denied Wyatt’s
the new trial order. We
provided
petition because it had
Christopher,
Panel consists of Justices
therefore,
and,
entire trial record
we could
Jamison, McCally.
not ascertain whether the trial court had
its
abused
discretion
a nеw
MAJORITY OPINION
Field,
Co.,
In re Wyatt
trial. See
Serv.
No.
Jamison,
Hill
Martha
Justice
6506749,
14-13-00811-CV, 2013
at *3
WL
10,
(Tex.App.-Houston
Dec.
Dist.]
opportu-
[14th
This case
presents our court
(mem.
2013,
op.).
nity
orig. proceeding)
to address
next of the unintended
petition
filed the current
for writ
review the trial
legal
court’s
determina-
mandamus,
which includes the entire
tions de novo.
Serv.,
In re Labatt Food
L.P.,
again challenges
640,
(Tex.2009)
record.
279 S.W.3d
requests
(orig.proceeding).
new trial order and
that we com-
pel the trial court to vacate its March
Although acknowledging that Texas trial
judgment
2014 order and render
on the
courts have historically been afforded
jury’s verdict. See Tex. Gov’t Code Ann. broad
trials,
discretion in granting new
(West 2004);
§ 22.221
see also Tex. R.
Court,
Texas Supreme
held that a
App. P. 52.
conditionally grant
We
trial court abuses its
by grant-
discretion
petition.
ing a motion for new trial without provid-
ing a reasonably specific explanation I.
Standards
of Review
court’s reasons for setting aside a jury
verdict. See In re Columbia Med. Ctr.
A. Mandamus
Review
New Trial Or-
Colinas,
L.P.,
Las
Subsidiary,
ders Before and after In re Colum-
(Tex.2009)
210, 213
(orig.proceeding)
bia
limitless”).
(holding “that discretion is not
To be entitled to mandamus re
Thus, the trial court abused its discretion
lief,
(1)
a relator must demonstrate
by ordering a new trial
solely
based
on “in
clearly
discretion;
trial court
abused its
justice”
interest of
because that reason
(2)
the relator
no adequate
has
reme
*5
sufficiently
was not
specific.
Id. at 215.
Reece,
dy by appeal.
In re
341 S.W.3d
360,
(Tex.2011)
364
(orig.proceeding). A
long-established
rule in Texas
trial
clearly
that,
court
abuses its discretion if it
is
except
very
in
limited circum
reaches a
arbitrary
stances,
decision so
and unrea
granting
order
a motion for
sonable as to
preju
amount to a clear and
new trial rendered within the trial court’s
dicial
clearly
error of law or if it
plenary power
fails to
subject
is not
to review
analyze
correctly
the law
apply
or
the law
either
direct appeal from that order or
correctly to the facts.
In re
judgment
Cerberus
from a final
rendered after fur
L.P.,
Capital Mgmt.
379,
164
proceedings
S.W.3d
382 ther
in the trial court. Cum
(Tex.2005)
curiam).
(orig.proceeding) (per
Co.,
mins v. Paisan Constr.
682 S.W.2d
“In determining
235,
(Tex.1984)
whether the
curiam);
trial court
236
(per
Hull v.
abused its
Catamarans, L.P.,
discretion with respect
35,
to reso
S. Coast
365 S.W.3d
matters,
lution of factual
may
not sub
(Tex.App.-Houston
2011,
40
pet.
[1st Dist.]
denied).
stitute
judgment
our
Columbia,
that of the trial
Before In Re
only two
may
not disturb the trial court’s
such circumstances had been identified:
(1)
decision unless it is shown to be arbitrary
when the trial
wholly
court’s order was
Sanders,
(2)
void;
unreasonable.”
In re
153
when the trial court errone
(Tex.2004)
54,
S.W.3d
56
(orig.proceeding)
ously concluded
that the
answers to
curiam).
words,
(per
In other
special
under an
issues were irreconcilably in con
standard,
abuse of
208-09;
discretion
we defer to flict. 290 S.W.3d at
see also Wil
the trial court’s factual
if
determinations
kins v.
Sys.,
Methodist Health Care
160
they
evidence,
(Tex.2005).1
are supported by
559,
but we S.W.3d
563
The court in
Wilkins,
1.
In
"[e]xcept
the court noted that
in
new trial orders that were void or were based
circumstances,
very
granting
limited
an order
on the trial court's erroneous conclusion that
a
motion for new trial rendered within
special
answers to
issues were irre-
plenary power
trial
concilably
court’s
is
subject
not reviewable
in conflict were
to review
However,
appeal.”
on
legal standard ponderance of the Evidence (2) verdict); and improper in an resulted to indicate specific enough high court has Ironically, although the pro forma simply parrot court did well- courts to articulate a directed trial the articulat but rather derived template, legal indicia that defined standard as one facts and particular from the ed reasons legally appropriate, trial order is its new at Id. at of the case hand. circumstances Scaffolding, 377 S.W.3d see United 688-89. a new standard of review it has enunciated appellate courts to use recently, supreme court for intermediate More *6 “merits- its directive: may implementing conduct a appellate that an court held Sales, Toyota Motor of a new based review.” See review” of the correctness “merits 757; generally 407 at see W. Wen verdict that S.W.3d setting trial order aside Texas, Hall, Review in and dall Standards facially comports with Columbia Unit of Mary’s (2010). Sales, provided 42 L.J. 3 It Toyota In re Motor Scaffolding. ed St. (Tex. Inc., 746, review the trial court’s USA., guidance little 407 S.W.3d 757-59 here, 2013) where, ruling given one reason Specifically, the (orig.proceeding).3 a new trial is that, if, the trial court for despite conformity explained court against great evidence is requirements of its procedural with the 209-10; lumbia, 916, (Tex.1985) see also In re 290 S.W.3d Appeals, 700 S.W.2d 918 of Rocket, L.P., 257, (Tex. (orig.proceeding); Johnson v. Court Civil 262 256 S.W.3d Team of Appeals Supreme Judicial Dist. 2008) the Seventh (explaining that the (orig.proceeding) 330, Tex., 613, 331 162 Tex. 350 S.W.2d appellate remedy adequacy an must be of (Tex.1961) (orig.proceeding). by balancing man the benefits of determined detriments). against review damus "exceptional cir- whether the It is unclear only extend to all trials or cumstances” high did not indicate the circum- 3. The court involve to those where a second trial would appel-. which an intermediate stances under "time, expense.” trouble and undue may decline to conduct such late court expressly did not balance the benefits review. against See Co- mandamus the detriments.
151
weight
preponderance
of the evi- new trial
ground
on the
dence.4
finding
favor of the defendants was
against
great
weight and preponder
review,
In
sufficiency
a factual
ance of the
Baker,
evidence. See In re
420
appellate
weighs
court considers and
all
397,
S.W.3d
400 (Tex.App.-Texarkana
evidence,
both supporting and contra
2014, orig. proceeding).
appellate
dicting the finding. Maritime Overseas
court framed the
issues
the case as
Ellis,
Corp.
402,
v.
971 S.W.2d
406-07
whether
plaintiffs
had met their bur
(Tex.1998).
a party
When
attacks the fac
den to prove that the relator had breached
sufficiency
tual
of an
finding
adverse
on an
duty
his
of care and that
negligence
such
issue on which it had the burden of proof,
was a proximate cause of the
injuries.
their
the party must
appeal
demonstrate on
Id. at 400. The court set forth the factual
the adverse finding
against
the great
sufficiency
review,
standard of
reviewed all
weight
preponderance
of the evidence.
evidence,
observed that
Francis,
the case
237,
Dow Chem. Co. v.
46 S.W.3d
turned
(Tex.2001)
curiam).
on the
credibility,
relator’s
and held
(per
A reviewing
that evidence was factually
court considers all the evidence
will
sufficient to
support the adverse
judgment
set aside the
if the
only if it is
evidence
so
was such
contrary to the
overwhelming weight of
reasonable minds could dif
the evidence
fer on the
clearly
meaning
that it is
wrong and
the evidence or
Bain,
unjust.
175,
v.
Cain
709 S.W.2d
inferences
and conclusions drawn there
(Tex.1986)
curiam).
(per
The fact
court,
finder is
from. Id. at
therefore,
402-04. The
judge
the sole
credibility
of the
concluded
that “the
of the new trial
weight given
witnesses and the
their testi
improperly intruded on
prov
mony.
Eagle
Golden
Archery,
Inc. v.
ince,” and the trial should have rendered
Jackson,
(Tex.2003).
757,
116 S.W.3d
judgment
404;
on the verdict.
Id. at
see
presented
When
with conflicting testimo
Zimmer, Inc.,
also In re
ny, the fact finder may believe one witness
905 (Tex.App.-Dallas
orig. proceed
others,
and disbelieve
and it may resolve
ing) (stating that “we see no reason to
inconsistencies in
testimony
wit
believe the standards for factual sufficien
Kuhlmann,
ness. McGalliard v.
722 cy review in new trial
proceed
mandamus
(Tex.1986).
S.W.2d
The review
ings should differ from the standards of
ing court “must not merely substitute its
appeal,”
review on
holding,
after a
judgment for that of the jury.” Golden cumbersome
forty-one-vol
review of the
Inc.,
Eagle Archery,
After Toyota, the Texarkana Court of substituted its credibility decisions for Appeals an order granting a those of weighed the evidence addressed panel granted argument 4. The oral on the Do analysis 2. we have to conduct a harm specific issue of ap- what standard of review to the collateral source violations? plies parties to this case. We asked the to 3. judge's Should the new trial order or the following argument: address the at oral findings any of fact control in the event of discrepancy? 1.Is the standard of review different weight give 4. What judge grants judge’s from when a trial do we a new trial the trial against findings on the basis that the findings? verdict was versus the great weight preponderance Assuming justice 5. the interest of alone is trial, appellate grant the evidence versus when the insufficient to a new how do so, explain court does? If incorporate finding by difference we the trial in the judge? articulated standard. not, trials, should discretion ing new “such the evi- jury weighed differently than to judge a trial substi dence).5 permit and does that of the views for his or her own tute that, in position take parties Real Columbia, 290 valid basis.” jury without a factual sufficien- the traditional conducting 212. S.W.3d will not review, courts appellate cy “sig- trial court’s to the any deference give by advocated position real new trials. granting in nificant discretion” appeals the courts of would leave parties ap- Instead, real according parties, to orders new trial ability with review essentially perform- be will pellate courts do not insufficiency. We based on factual sufficiency factual own de novo ing their by the result intended this is the believe a differ- record to reach of the cold review for providing in Supreme Texas Court ent conclusion. orders. In of new trial mandamus review acknowl- Supreme Court The Texas may not sub proceeding, a mandamus from courts benefit edged “appellate the trial for that of judgment our stitute pro- complete record hindsight that a Sanders, But at 56. S.W.3d court. hand, courts, other on the Trial vides. its court substitute may the trial neither difficult, dispositive, deci- often must make in granting judgment for that recollection and best on their sions based Columbia, at 212. 290 S.W.3d new trial. alone, the aid frequently without judgment ensuring that the trial method for records, briefing.” transcripts, or of full for judgment court does not substitute Sales, at 761. 407 S.W.3d Toyota Motor jury, is to confirm that of clear that However, also made the court trial are a new court’s reasons grant- stated reasons the trial court’s correct, i.e., by the supported valid and supported by be trial must ing new Sales, 407 Motor Toyota trial record. See (“Having concluded id. at 759 record. See (“If artic ... a trial court’s at 758 S.W.3d in a trial order that the reasons articulated by the supported are not ulated reasons the merits manda- are reviewable on record, trial order can underlying the new mus, the trial court’s we now evaluate stand.”). Thus, suffi using a factual underlying against of new trial standard, engage in a review record.”). ciency we will Moreover, has while the court record to determine of the entire trial that trial position not retreated from its court’s rea- supports it grant- in whether significant courts have discretion that, ground. on this We note Appeals a new a new trial The First Court of addressed Keller, order, citing City the court articulated granted a new trial based which legal reviewing the sufficien the standard for part determination that on the trial court's Augusta Barge cy Co. v. company of the evidence. See that the insurance 01-13-00092-CV, B's, Inc., 2014 WL policy Five No. the homeowner's did not breach (Tex.App.-Houston weight preponderance [1st Dist.] at *3 contrary great ("In 26, 2014, h.) (mem.op.) Aug. pet. no. United Servs. Auto. of the evidence. See In re review, Ass’n, legal sufficiency we con (Tex.App.- conducting a 169-70 light in the most orig. proceeding all of thе evidence sider [1st Dist.] Houston indulge every filed]). favorable to the verdict The court stated that it must [mand. *8 it.”); support light inference that would in a favorable to reasonable review "all the evidence Johnson, 479, jurors v. 443 S.W.3d see also Wells the verdict and must assume that the 2014, filed) (ex pet. (Tex.App. evidence in accor- resolved all conflicts the - Amarillo that, conducting a factual suffi (citing plaining at 171-72 dance with the verdict.” Id. review, Wilson, 802, appeals does not ciency the court of City Keller v. (Tex.2005)). light most favor the evidence in the appellate consider The court found finding). by grant- able to the discretion the trial court abused its the the granting pulled way a new trial. If rec- out all out. A safety sons for chain stat- support not the trial court’s was on the nozzle. ord does installed When install- reasons, will have then the trial court properly, safety only ed ed the chain allowed its discretion in a new granting abused the nozzle to dummy pulled be out a cer- (holding trial. id. at 761 tain so See distance that the nozzle was its discretion pulled court abused out too far before gate the valve sup- because the’ new trial record did thereby letting was closed and steam and reason). articulated port the water escape. July Burns, On McBride and as Background II. LWL, employees, Inc. assigned were to processes crude oil ExxonMobil dummy remove the nozzles. They were by- to turn A
refinery gasoline. it into nozzle, pulling dummy out a when it came of that “flexicok- product process is tar. A far, shut, gate out too the valve was not at the refinery er” unit breaks down the spewed and steam and cоke the out of pure degrees. tar into carbon at 1300 thrown, heater. McBride and Burns were sand, carbon, which is “coke.” like is called them, sprayed and stem and coke were on back up The coke “heated and sent causing injuries. burns and other source of for the the reactor” the heat accident, to the Subsequent ExxonMobil reactor. performed analysis a root cause and deter- performs a on ExxonMobil “turnaround” safety mined that the chain had been “an- the unit about two to every flexicoker wrong chored allowing to the location years, during three which maintenance is nozzle to be detached completely out of its on the performed unit. It takes about two packing stopped.” before chain Exx- turnaround, years plan the the unit onMobil also determined that Wyatt had shut has to be down for the maintenance put dummy nozzles back in place and performed. be As part work to safety chain in previous reattached the process, the flexi- turnaround the heater of 2008. turnaround in unit, degrees, which coker is about 1300 Wyatt neg- and Burns sued McBride cooled must down in order be se, per ligence, negligence gross negli- work performed. maintenance to be Wa- gence safety for improperly installing a sprayed ter and steam are from nozzles to ExxonMobil, chain. sued They also which cool the heater. builds down Because coke settled the case before trial. them, spray clogs ups in the nozzles and that, designed system ExxonMobil so to trial on January case went turnarounds, during the time between the dispute did not that the safe- spray nozzles were with replaced ty chain installed in an was incorrect loca- “dummy only nozzles.” The function tion, was unreasonably the condition dan- dummy “place- nozzles was to act as gerous, parties were or real not warned spray for the nozzles. holders” however, installation. Wyatt, incorrect dummy nozzle, it disputed To remove a worker was the contractor that put dummy the nozzle dis- nozzles back in pull place would out certain tance, safety not so far pull but as to it out reattached the chains in 2008. Real An employee heater. ExxonMobil would to the parties argued valve, liable, gate solely which a barri- ExxonMobil shut the acted as was not liable keep er the steam com- no actual knowledge and coke from because it had dummy safety out. The nozzle then be chains were in an could incorrect loca- *9 weight great The location. incorrect responsibility bore no tion, LWL and of the overwhelming preponderance and the accident. that the incorrect also showed evidence reached the February On created an safety chain location of the (1) Wyatt was not verdict, The dangerous condition. unreasonably (3) (2) negligent; was not LWL negligent; overwhelming prepon- weight and great some or retained exercised ExxonMobil the evidence introduced derance of the work manner in which over the control Wyatt Defendant trial confirmed the other than performed, was question the installed Company Services Field or stop or the work to start to order right chain and that the safety chain in 2008 reports; receive and progress inspect July until in the same location remained (4) respect with negligence ExxonMobil’s Further, and great weight 2011. dummy sys- nozzle of the the condition evi- of overwhelming preponderance caused the occurrence. proximately tem at trial confirmed dence introduced damages for jury found Although the were never warned Plaintiffs ($2,905,- ($902,681.41) Burns and McBride incorrectly installed safety chain was 898.95), because of would recover neither reason to be aware and had no finding as to no-negligence jury’s require justice interests of danger. The prior ExxonMobil’s settlement Wyatt and new trial. to trial. required because A new trial is also
III. Real Parties’ New Motion for regularly its witnesses Defendant and Trial & Court’s Order of collateral sources injected evidence new tri- filed a motion for parties Real in violation of the Court’s into the case (1) findings that al, jury’s arguing motion in granting Plaintiffs [sic] order the accident negligent not and Wyatt was This inadmissible topic. limine on this negligence were by Exxon’s was 'caused jury’s verdict. evidence tainted prepon- great weight and contrary to justice and the interests Good cause (2) evidence; Wyatt’s derance of grant a new trial. require the Court to into the evi- collateral sources injection of 9, 2013, the trial court entered April On the verdict. dence tainted findings support of fact in following 4, 2013, held a the trial court On March order, ExxonMo- addressing new trial motion for new hearing parties’ on real knowledge, in addition to the bil’s actual trial as follows: trial and ordered a new expressed in its order grounds prior Plaintiffs’ The Court has considered 4, 2013 order: March trial, responsive all for a new motion that Defendant jury’s finding 1. The counsel, arguments of briefing, the was Company Field Services during the observations Court’s own against great negligent The believes trial of this case. Court the ev- weight preponderance motion is meritorious and Plaintiffs’ idence. granted. be should jury’s finding The that Defendant 1(a) Question answer to Company Field Services was overwhelming contrary to, ver- renders the negligent great weight of evidence. manifestly unjust. dict of the evi- overwhelming preponderance that ExxonMobil jury’s finding 3. The safety chain at dence showed that knowledge unrea- had actual installed in an issue in this case was *10 sonable risk of is not 3.The Court concludes harm/condition that it is enti- by factually supported sufficient evi- grant tled to a new trial when it is dence. required in the justice. interest of jury’s finding 4. The that ExxonMobil This mandamus Wyatt followed. claims knowledge any had actual unrea- the trial court abused its discretion in sonable risk of ren- harm/condition granting parties’ real motion for new trial jury’s ders the verdict manifestly (1) because the jury’s finding Wyatt unjust. was negligent was not against 5. Based on the combination of factual- great weight and preponderance of the ly liability insufficient findings con- evidence; (2) the jury’s finding that Exx- cerning Wyatt Defendant Field Ser- onMobil had knowledge actual of the con- ExxonMobil, Company vices dition that caused the injuries was imma- jury Court finds failed to terial and could have impact on the follow the Court’s instructions and verdict after the had found Wyatt simply place decided to all responsi- (3) negligent; any violations of bility on regard ExxonMobil without motion limine on collateral sources legal standards set forth in made no mention of bearing fact on charge. the Court’s (4) Wyatt’s liability; and the Texas Su- Wyatt 6. Defendant Field Services preme Court has disapproved of granting Company repeatedly violated the a new trial based on the “interests of order granting Court’s Plaintiffs justice.”
motion in limine.
The new
granted
trial was
follow
7.
Wyatt
Defendant
Field Services
very long and very expensive jury
Company ignored this Court’s ad-
trial. We find that
presents
this case
monishments about the
in li-
motion
“exceptional circumstances” found in Co
mine.
lumbia to warrant mandamus review. See
Defendant
Field Services
1. The Court concludes that it is enti- case violated the motion in limine order grant
tled to a new trial when it and tainted the verdict. holdWe finds the contrary verdict is to that reasonably these are specific reasons great weight supported is not facially comporting “with pro Columbia’s by factually sufficient evidence. cedural ‘form’ requirements.” Toyota See Sales, 2. The Cоurt concludes that it is enti- Motor (comparing S.W.3d tled to a new trial when it new trial order in that case with new trial injection Columbia, finds that the of inflamma- order at merely issue which (such tory collateral matters as col- justice” asserted “in the interest of as the sources) trial). poisons lateral granting verdict. basis for a new The stated incorrectly installed and safety chain was trial here— the new reasons danger. reason to be aware had no great against verdict *11 the evidence weight preponderance and the at trial that dispute Wyatt did into the record injected and evidence in an incorrect installed safety chain was the ver order tainted limine of a violation location, unreasonably condition was the and sat appropriate legally also dict—are were parties or that real dangerous, In re United See Scaffolding. isfy United In- installation. the incorrect warned of (hold Ass’n, at 172 446 S.W.3d Auto Servs. stead, that it installed Wyatt only disputed weight prepon and great the ing “against 2008, and that the chain safety chain in the legally appro is a the evidence” 3, derance of July until same location remained in the trial); In a new basis for priate 2011. 388, Houston, City
re recently re- who was Merryman, Robert 2013, orig. Dist.] (Tex.App.-Houston [1st tired, planner as a turnaround had worked grant (holding that the order proceeding) Merryman 1990. ExxonMobil since limine of a on violations ing a new trial involved 2008 turnaround testified that the bases, order, satisfied United among other 20,000 kept ExxonMobil about activities. standard). Scaffolding the schedule the activities and track of as “Pri- program new trial known cоmputer that the Having determined with for the printout The Primavera require- with the mavera.” facially complies order Wyatt rein- showed that and 2008 turnaround in Columbia United articulated ments reconnect- dummy nozzles and stalled the must determine whether Scaffolding, Merryman saw safety the chains. grant- ed stated reasons the trial court’s any that contractor suggesting by valid and correct documents trial are ing a new safety Wyatt installed the the other than “merits review” of conducting a careful that, if Sales, testified Merryman also Motor chain. Toyota record. See dum- replaced had another contractor (“Simply articulating under- at 759 S.W.3d chains, safety then such standable, my nozzles ánd reasonably legally and specific, credit and have wanted contractor would enough; reasons is not appropriate correct.”). compensation for the work. must be valid and reasons Howell, in refin- plaintiff’s expert Peter Jury’s No-Liability IV. that, safety, testified process eries Wyatt Finding toas Primavera, based on the documents job reinstalling issue, Wyatt assigned Wyatt claims In its first connecting safety dummy nozzles and trial court’s that the Furthermore, How- chains to the nozzles. Wyatt’s negligence was verdict .as 22, an Plaintiff’s Exhibit ell testified about weight preponder against great contractor re- regarding chain which supported is not email ance of the evidence and reattached dummy nozzles placed trial court set forth the the record. The (1) McCarthy, refin- safety chains. Tim finding: following support of its department, for the fuels ery manager installed in an incorrect safety chain was unit, led (2) included the flexicоker location; of the which the incorrect location investigation. ExxonMobil’s root cause unreasonably dan safety chain created an email, 3, (3) August condition; McCarthy on Wyatt installed the sent gerous a turnaround Tommy Stanley, in the safety chain in and it remained (4) 2011; performed had manager, asking who July same location until turn- in the 2008 dummy nozzle installation never warned that parties real were around; Stanley replied Wyatt had accordingly.” Jordan admitted that he performed the work in 2008. Howell testi- any had seen not seen documents showing Wyatt fied that he did not see pulled documents had been off job work; showing Wyatt installing did not do the the chains. Jordan testified that instead, quality all the documents he ExxonMobil did the reviewed control on Wyatt’s work in Wyatt showed that had done the work. Howell further testified that ExxonMobil There was also evidence that dummy control, quality hired to the do the nozzle and chain had not been changed or
which means that was to make sure worked on since the 2008 turnaround. *12 all the work had “been done per draw- explained Howell that a work order would ings.” Wyatt Howell stated that either did required be for any work to have been perform quality control or it did performed on the dummy nozzles. Exxon- properly. not do it provided Mobil Howell with a list of all work orders for the flexicoker unit for the Elveston, Wyatt’s expert, Russ who period between July 2008 and worked safety compliance as an OSHA None of the work orders showed that officer for thirty years, almost stated on there any was work performed on the Wyatt assigned cross-examination that was dummy nozzles. job of putting safety in the chains and “more likely Wyatt than not that it.” did Jordan also testified that he did not Elveston further explained that “[i]t have any documents showing that showed up on at least one or two docu- chain had been moved between 2008 and [Wyatt] ments that indicated that would be July that, explained 2011. Elveston if it assigned it.” Elveston noted that the doc- nozzle, just had single been a there would showing Wyatt uments did the work all possibility be a that the chain had been However, entry. stem from the Primavera changed. Elveston further stated that Elveston response Wyatt limited his that “[s]ince all of them were up set the same performed say the work: “To with one way and there was no evidence that percent it, hundred certainty they that did made, changes had been although, again, I won’t do it.” you rely cannot years. on two and a half absolutely You’re not sure that something
Wyatt’s corporate representative, James happen.” didn’t Jordan, regarding Wyatt testified whether performed the work. Jordan stated that parties argue Real there undisput- was have nothing yet actually “[w]e that con- proof ed that no one likely go was to near Wyatt firms” that installed the chain in safety chains without a reason and 2008, even though Jordan had gone specific authorization. Howell testified through Wyatt’s documents to trying dummy find that nozzles are located on information that would confirm Wyatt platform that forty ground, feet above the next did the heater, work. Jordan stated that the doc- to the tempera- which reaches a showing uments Wyatt that did the degrees. work ture of 1300 McBride and Burns are “all based on that Primavera.” With participated hour-lоng general safety regard Primavera, Jordan meeting testified that and a meeting” “toolbox to dis- value, face says “[o]n that document that they cuss what were going and how However, Wyatt’s was work.” they going were to do They it. also did a —it Jordan said “there should be more docu- walk-through supervisor. with their LWL ments out there that indicate when it was An air-conditioning vent was set to blow done, it, who did and have all the sign-offs on them. McBride they stated that were “you have that Elveston concluded be- dard.” twenty-minute shifts to work
going stuff you put tell how to They procedures wore fire retar- heat. of the cause place.” packs, right ice alumin- in the vests with clothing, dant thick, four inches suits, are which ized that the de- report in his Howell stated boots,” jackets, our over go that “boots inad- system was dummy nozzle sign words, any In other helmets. gloves, and trial dif- testimony at equate. Howell’s dummy work on subsequent alleged been better design could have fered: “The require planning. would nozzles and chain it could have been it was and than what findings despite Wyatt argues incident would designed so that safety chain in it had installed they occurred, design but the have in the the chain remained and that testified to adequate.” Howell had was 3, 2011, the July until location same sys- for the procedures of written the lack trial court do not stated grounds tem. to the conclusion necessarily lead provid- was testified that Howell Wyatt asserts that negligent. Wyatt was exactly drawing that “showed ed with with evidence presented *13 attached,” but to be supposed it’s where engi- ExxonMobil’s deficiency of the the procedure.” not a “written drawing the is the could have led neering drawings, which no writ- explained that there were Howell neg- Wyatt that was not jury to determine safely removing and procedures for ten engi- received Wyatt was to have ligent. and he believed installing dummy nozzles with the neering drawings in connection ExxonMobil should have such that .had Elveston dummy nozzles. work on the Howell, According to procedures. written engineer draw- testified that ExxonMobil’s it is difficult procedures, without written strictly by Going ideal. ing “is less than are that the contractors’ workers ensure out there is drawing and what we saw the trained, for the task of including properly of what was out really representative These reinstalling dummy the nozzles. “The Elveston further stated there.” human error such can reduce procedures the ... have some of drawing does not wrong safety chain in the attaching on it.” expect that I would to see elements and, a written if there had been place, diagram “the Elveston also testified that in the attaching the chain procedure for says that the chain is with the little bubble location, reference to along with a correct here” that was on supposed to be attached would have reduced drawing, “[fit drawing was not a warn- engineering of this incident.” probability describing procedure There was no ing. that, if Exxon- chain, explained Howell also purpose which was referred before employees, present who were chain in the docu- Mobil to as the “blow out” dummy the removal of the during He that there was “no and explained ments. trained, nozzle, they properly had any type of been safety, warning mention of safety have seen that the chain caution, wаy, would make sure it’s done could have installed and properly A draw- not procedure going.... there is no until the chain had been stopped job writ- nice reference but without a ing is a Howell, According to by correctly installed. through step it procedure going ten responsibility to train all the ExxonMobil has including make sure and step to jobs such as perform specific employees and all the going that’s to be there hazards dummy noz- withdrawing just installing not—it necessary just it’s precautions to the stan- zle. requirements doesn’t meet the
Howell further testified that ExxonMo- by tion that the answer that performed inadequate bil job hazards Wyatt was not negligent against analysis concerning the dummy nozzles. great weight and preponderance of the ExxonMobil did not consider a blowout Columbia, evidence. See 290 S.W.3d at retracted, when dummy nozzle was 212 (explaining that the trial court may not which expose high would workers to temp- judgment substitute its for that of the jury hydrocarbons erature poisonous hy- trial). when it grants a new We sustain drogen sulfide. Wyatt’s first issue. evidence, We have all reviewed both Jury’s Liability Finding V. supports which and contradicts the as to ExxonMobil
jury’s finding Wyatt negli was not gent. See Maritime Corp., Overseas issue, In its second Wyatt con S.W.2d at regarding 406-07. The evidence tends that the trial court abused its discre Wyatt performed whether the installation by granting tion real parties a new trial safety disputed chains 2008 was based on its finding that there was no at trial. The could have found Jor evidence that ExxonMobil had actual testimony dan’s that he nothing found in knowledge of the condition that caused Wyatt’s files to confirm had real parties’ injuries. Wyatt primarily ar done the work was more credible than the gues error in finding testimony based on single computer en ExxonMobil liable could have no effect on try showing that Wyatt had done the work. the verdict after the no-liability finding as Inc., Eagle See Golden Archery, and, therefore, was harmless. 761; McGalliard, S.W.3d at 722 S.W.2d at *14 A jury question is immaterial 697. The reason for the improper installa submitted, when it should not have been or tion disputed. was also could when it was properly submitted but has have given weight more to testimony that been rendered by immaterial other find design dummy ExxonMobil’s of the nozzle ings. Spencer v. Eagle Star Ins. Co. of system adequate was not and that Am., (Tex.1994). 154, 876 S.W.2d A might accident happened not have if Exx- jury question is also immaterial when its onMobil procedures had had written con answer can be found in elsewhere the ver cerning proper installation of the safe dict or when its answer cannot alter the ty chain. presence Given the of conflicting effect of the City verdict.6 Brownsville evidence jury’s and the apparent resolu Alvarado, (Tex. v. 897 S.W.2d tion of credibility of giving witnesses and 1995). greater weight to evidence favoring Wyatt, jury’s finding Wyatt above, neg was not As addressed we have concluded ligent against great is not weight and that granting a new trial based on the Thus, preponderance of the evidence. we jury’s no-liability finding Wyatt as to hold that the trial court abused against its discre- the great weight and preponder- parties Real assert that the sy part answer on clearly separable that such is Wyatt’s liability only is not the relevant find- parties, without unfairness to the the ing According parties, issue. to real Texаs may grant part only.” a new trial as to that Rule of Civil require Procedure 320 does not explanation, Tex.R. Civ. P. 320. Without real trial courts to consider each answer in a parties contend that the trial court cannot appears vacuum. "When it that a new trial separate only a part trial as to of this granted point points should be on a case. only part affect of the matters controver- Security for disabili- for Social signed up not a valid reason the evidence
anee of ty- the record. supported it is not because prior ExxonMobil with settled parties
Real Hon- Objection, your MR. J. ITKIN: damages any recover trial and will or. verdict as a result ExxonMobil from Honor, Your can MR. ITKIN: C. no-liability Thus, it. against approach, please? any lia- renders in favor a bench court then conducted The trial immate- ExxonMobil bility finding against jury. hearing outside conference Inc., Stores, Lucky Ramsey v. rial. Cf. request an counsel did not parties’ Real (Tex.App.-Houston suggested but disregard, instruction denied) (“A zero writ Dist.] [1st when the court be admonished that Cox reversible error when no presents award a break. took evidence jury finds on sufficient act, be- negligent committed defendant then resumed direct Wyatt’s attorney awarded, the damages if were Cox, following even tes- cause and the examination required to enter would still be trial court timony came out: enter.”). it did take-nothing judgment you Okay. you And some- Q. —do issue. Wyatt’s second We sustain train- some additional times recommend position into a where get for folks to VI. in Limine Motion avail- they job opportunities have other issue, claims the triаl In its third able? by granting discretion court abused its term, on-the-job A. Yes. Short based on motion for new trial parties’ real training. pro- limine order violations of the court’s even, mean, I it Okay. be Q. Could of collateral hibiting the introduction you if have long time but could be a approaching first source evidence without five, months, three, four, six training for ruling. bench for a up opportunities more open does that in which col- There were two occasions you? brought up lateral source evidence was person who A. to me but to Not. jury. Both instances involved front of the yes, reemployment, trying get *15 to Cox, Robert Wyatt’s attorney questioning ma’am. on Wyatt’s expert, vocational rehabilitation Q. enough. Fair following took direct examination. The to be sure that ev- may say A. If I in the first incident: place these are services eryone understands that and Q. Okay. And to the extent Texas, throughout that are available you If silly question. like a this seems through Department of— any- can’t lift basically you I tell he —If — ITKIN: Your Honor MR. climb, he can’t thing. up, He can’t look psychological- he can’t turn his head and they announced that The trial coúrt then mean, workforce, I ly join he can’t a break. While going were to take vocational you any options do have courtroom, the trial of the jury was out rehabilitation? testify to about instructed Cox not No, A. ma’am. collat- any other government assistance Q. Okay. par- compensation. Real eral source for in- including an suggested counsel those sorts of ties’ person A. If a has charge not to consider jury in the try get I to them struction limitations then would
161
giv-
cоllateral source evidence rather than
jury would not eliminate the danger of
to
disregard
an instruction
when the
prejudice. Onstad v.Wright, 54 S.W.3d
jury returned to
courtroom because
799,
2001,
805 (Tex.App.-Texarkana
pet.
that would have called more attention to
denied)
(citing
Hulse,
Dennis v.
362
testimony.
Cox’s
The trial court stated
308,
(Tex.1962)).
S.W.2d
309
that it was
real parties’ request
Generally, the failure to request
jury charge
instruction.
the court to instruct the jury
disregard
Later,
conference,
charge
at
real
the testimony
in
results
waiver of the al
parties’ counsel reminded the trial court
leged error where the instruction would
had the issue of collateral bene-
“[w]e
B.W.,
have cured the error.
In re
99
fits.
I think
agreed
between the party
757,
S.W.3d
760 (Tex.App.-Houston [1st
put
[sic]
instruction in.”
ob-
2003, no pet.).
situation,
Dist.]
In that
jected to the inclusion of such an instruc-
reviewing court determines whether an in
charge,
tion
and real parties then
struction to disregard would not have
they
stated
could take up
post-
the issue
Barnes,
cured the error.
2013 WL
trial.
1748788,
*12;
Marine,
Weeks
Inc. v.
Wyatt argues that the testimo Barrera,
04-08-00681-CV,
No.
2010 WL
ny
makes no mention of
fact that could 307878, at
(Tex.App.-San
*6
Antonio Jan.
possibly
Wyatt’s
bear on
liability, and the
27,
denied)
2010, pet.
(mem.op.).
jury’s damages findings are immaterial in
When a trial court instructs- the
light of the no-liability finding in favor of
jury to disregard evidence
offered
viola
Wyatt.
purpose
of a motion in limine
limine,
tion of a motion in
the reviewing
is to prevent
party
the other
from asking
court may review the evidence to deter
prejudicial questions
introducing
evi
mine whether an
disregard
instruction to
dence in
front of the
without first
was adequate to cure its admission. In re
asking the
permission.
court’s
Weidner v.
Houston,
City
Sanchez,
bility. at the time given was either discretionary no instruction performing officer was charge; jury or in the faith, scope objection the of of the and within in duty, good therefore, to de- City’s of the we consider the evidence establishing one authority, his lia- would have relieving it of whether an instruction termine affirmative defenses However, as ad- granted court thе violations. The trial cured the bility. Id. below, of the new trial —one of Cox’s tes- motions for the admission plaintiffs’ dressed in of the motion the limine order was being timony violations in violation of grounds of the issu- mention an in- any harmless, of whether prohibiting regardless limine Id. at to the driver. the citation not have cured ance of would or would struction however, officer, men- 391-92, 397. the violations. testimony. Id. at his in
tioned the citation source rule is The collateral promptly sustained The trial court damages. evidence and both a rule of counsel, by the driver’s objection Fabritech, Inc., 132 Am. S.W.3d Taylor v. testimony, to strike granted a motion (Tex.App.-Houston [14th Dist.] jury disregard to instructed the denied). The collateral source pet. Id. the citation. testimony about in a tortfea- any reduction precludes rule review of new On mandamus benefits received liability because of sor’s evidence to order, reviewed the the court Hay else. by plaintiff from someone the instruction to dis- whether determine Escabedo, 356 S.W.3d good v. De to cure the admission adequate was regard (Tex.2011). words, In other the defendant court evidence. Id. The prohibited of the of, to evidence present is not entitled no reason to conclude there was held that for, by received an offset funds obtain actually failed to cure that the instruction Taylor, collateral source. plaintiff from a testimony. Id. improper the effect of damages at 626. The 132 S.W.3d was relevant of a citation The issuance in light are not relevant findings responsibility bore only the issue of who Wyatt. no-negligence finding as accident, and the causing of the trial Consequently, Wyatt’s violation responsi- City greatest bore the found limine order could not have affected court’ despite having heard bility for the accident neg was not jury’s finding received a citation. plaintiff that the had harmless. ligent, violation was improper testimony had Id. Because the Houston, at 397 City See affirmative defense of nothing to with the (“[A] harmless error cannot constitute City “discretionary duty,” on which the trial.”). a new ‘good cause’ for testimony ultimately was prevailed, Wyatt’s third issue. We sustain harmless, if it had not been disre- even jury. Id. garded “In the Interest Justice” VII. issue, con In fourth City ap Houston the trial court abused its discre reviewing the viola tends that the standard for plied new trial “in the by granting tion a motion in limine when an instruc tion of this is justice.” Wyatt interest of raised given. See id. disregard tion to (“When writ of manda petition in its first trial court instructs the sue mus, the trial court and we held in violation of a disregard evidence offered limine, by including “in the evi abused its discretion may review that motion *17 grant for justice” ground of as a whether an instruction interest dence to determine no an longer trial because it is to cure its ad- a new disregard adequate was sufficiently independently specific progeny, reason including Toyota, In re is that for a new trial. granting Wyatt Field appellate apply must a factual- Co., Serv. at *3 (citing WL sufficiency review of the trial court’s factu- 689-90; Scaffolding, at United al insufficiency viewing the evi- decision— 215). Columbia, 290 at S.W.3d We reiter- light dence in the most favorable to the previous holding. ate our Having held jury findings. Applying that mandamus that the trial court’s other three reasons factual-sufficiency equals standard rever- trial, i.e., for new granting jury’s a sal, law, as a matter of in every case. findings negligent was not Thus, consequence Majority’s ExxonMobil negligent and the intro- unintended, opinion, intended or is that a duction of collateral source evidence taint- may trial court grant a motion for new verdict, ed the are not valid and trial on insufficiency. factual Because I reasons, correct remaining sole basis disagree that a traditional factual sufficien- granting for the new trial is “in the inter- justice.” cy est of Again, applies because this is not standard to the mandamus re- an independently sufficiently specific rea- view of the trial, trial court’s of new trial, son granting for a new the trial court I respectfully dissent.
abused its discretion
a
granting
new
ground.
trial on this
See United Scaffold-
I.
Introduction
ing, 377
(stating
S.W.3d
689-90
“in the
justice”
interest of
indepen-
is never an
system
Our
justice
of
demands that we
dently
granting
sufficient reason for
a new
respect
show
for both the role of
trial); Columbia,
tion enough to indicate that the trial specific standard we articulated'the has not Court pro a forma however, simply parrot reaf- court did not repeatedly in apply; should the articulat- template, trial court but rather derived the discretion firming trials, particular reasons from the facts and Supreme Texas Court ed grant new See of case at hand. In rejected the standard we circumstances implicitly has Inc., Further, 377 Supreme Scaffolding, Texas S.W.3d today. re United adopt (Tex.2012) 685, (orig.proceeding). trial 688-89 on the court’s placed strictures Court referencing explicitly while discretion new in this case fa- 5. The trial оrder approach a Fifth Circuit successful of cially complies requirements with the In Therefore, suggest I model. Inc. Scaffolding, re United for re- Fifth Circuit standard adopt the conduct appellate “may An a 6. court n viewingsuch orders because a it is stan- given of the reasons merits-based review afford deference that is structured to dard granting a new trial” to determine for and the trial to both the verdict supports whether the record articulat- necessary oversight. Using that court’s reason(s). Toyota See re Motor ed In would, standard, deny petition I for Sales, U.S.A., Inc., S.W.3d 761-62 writ of mandamus. (Tex.2013)(orig.proceeding). that: agree Majority I with the Although Supreme Court 7. the Texas man- the abuse-of-discretion Under appellate not articulate an does when court standard, to the we defer trial damus a review “must” conduct merits-based they if factual determinations are court’s order, do so in the new we should this evidence, by the but we review supported give because we case cannot otherwise legal the trial court’s determinations de scrutiny particular to the reasons articulat- Serv., L.P., novo. In re Labatt Food granting ed for the new trial this case. (Tex.2009) (orig.proceed- S.W.3d Supreme 8. The Texas Court has not ing). prescribed appropriate standard for 2. A trial a court’s discretion conducting court to use merits- motion for new trial is not limitless is review. based particular by ordering abused in a new however, disagree, I factual-suffi- solely trial based “in the interest of on ciency proper standard standard of justice.” See In re Med. Ctr. Columbia apply petition review to in a fоr writ of Colinas, L.P., 290 Subsidiary, Las S.W.3d mandamus, review of reasons merits-based (Tex.2009) 204, 210, (orig.proceeding) granting a motion for new trial. limitless”). (holding “that is not discretion Therefore, urge under I is a what more 3. To the this new trial extent appropriate, deferential standard re- solely order rests interests upon “the of view, disagree I also justice,” it is an abuse of discretion. See granting abused its discretion in Real Par- Co., 14-13- In re Field No. Serv. ties’ motion for new trial. (Tex. 00811-CV, 2013 WL at *3 Granting 10, 2013, App.-Houston Dec. [14th Dist.] New II. Review Orders Toyota orig. proceeding) (mem.op.). Trial In re After 4. The reviewing Majority faithfully court must ensure traces Texas Supreme five-year path that an order a new trial is toward based Court’s (1) upon which eliminating a reason reasons unfettered discretion trial
165 long grant courts held to new trials. The between judge jury. We need not path Toyota pro- culminated the In re may pick not one over the other. The appellate “may nouncement that an court Texas Supreme requires Court that we conduct a merits review of the bases for a review of a new trial order under . new trial order.” Id. at 749. Stated dif- gives a standard the respect jury ferently, appellate may peek an court be- Columbia, and the trial court. See In re (“We granting hind the order new trial to deter- 290 at 212 S.W.3d do not retreat supports mine whether the record the trial from the position that trial courts have join court’s rationale. Id. I issue with the significant discretion in granting new tri- Majority’s description als.”); of the In Toyota re accord In re United Scaffolding, merits-based review as one to evaluate 377 (having S.W.3d at 687 “reiterated the “the correctness of a new trial order set- considerable discretion afforded trial ting jury aside a verdict.” judges trials,” Ante at 5. in ordering new the court Instead, the In Toyota re Court authorized clarifies that the standard of review “must the appellate court to review the record to both afford appropriate verdicts re- evaluate “the or validity gard correctness of the respect trial significant court’s matters”). orders’ articulated reasons.” 407 S.W.3d discretion in these at 758. In re Toyota does not direct the Neither do we write on completely a appellate court to use the record to decide clean appropriate slate for an standard of whether right court made the Although review. a merits review of an Toyota decision. In re appel- directs the granting new trial completely order new late court to use the record to decide is, practice, Texas it as acknowledged by whether the trial court made its decision Court, the In Toyota re “old hat to our right for the reason. colleagues on the federal bench.” 407
The difference in these two types of at S.W.3d 758. The In re Toyota Court material, review is subtle but and it turns examined the Fifth approach Circuit completely upon light in which the reviewing granting orders new trial for appellate court views the record. The tra- insufficiency. Though factual binding ditional factual sufficiency review adopted precedent, approach Fifth Circuit by Majority evidence, weighs all of the quelled policy the Court’s concerns be- viewing light it in the most favorable to the system cause it is a for merits-based re- jury findings. Ante at (citing 8 Golden view that is established and successful in Jackson, Eagle Archery, Inc. v. achieving respect for both judge. (Tex.2003)). 761 The trial court’s Following the In re Toyota Court’s presence during the trial becomes irrele- direction, nudge in the right Real Parties vant because the appellate gives standard here urge this court to conduct its merits- judge’s partic- consideration to the trial based review on an abuse-of-discretion ipation hand, in the trial. On the other following standard the Fifth Circuit. record review that assesses the correct- however, Wyatt, urges adopt this court to ness of provided the reasons acknowledges factual-sufficiency standard reviewing oversight both the vital role of the trial the trial court’s order granting a new trial judge and the limitations on the exercise of Majority insufficient evidence. The that oversight power. chooses approach, concluding difficulty in crafting a position standard of that Real Parties’ affords this mandamus review of orders new court ability “no to review new trial orders trial on insufficiency factual is the tension based on sufficiency” factual to ensure that “ integral part Rule 59 trial judg- ‘as has substituted ” Drilling, I jury.’ at 10. Transworld F.2d jury. Ante ment for that Federal (quoting Wright, Courts with conclusion. C.
heartily disagree (4th 1983)). hand, On the other ed. has, out Supreme Court Texas “exercise appeal ‘particu federal courts of above, pointed to specifically lined *20 larly over a court’s scrutiny1 close district a as one that achieves Fifth model Circuit evidentiary grant grounds of new trial on a respect betweеn for both proper balance litigants’ the to a protect right in order ‘to judicial discretion. In re jury verdicts and ” Morales, Fed. Cooper trial.’ v. 535 (referring to Toyota, at 759 Cir.2013) (5th 425, Appx. (quoting 431 RCI, Carpet Inc. Red v. Cruthirds d/b/a Inc., Bedding, v. F.2d Shows 671 Jamison Beaumont, Tex., 632, Inn 624 F.2d 635- of Cir.1982)). 927, (5th 930 (5th Cir.1980), 36 as a decision in which “ record decision, the Fifth Circuit the by ‘reviewed] relied upon Cruthirds Court, to make certain that the district carefully urged Toyota the In re merely own court not its “[g]reat substitute[ ] in the trial court’s author [did] latitude judgment jury’ for that of the when that ity especially appropriate is when the mo the ‘disregarded] verdict error pernicious tion some in the cites ” (alterations grant[ed] orig a new trial’ in conduct of the trial. Then trial court inal)). granting in The order new trial from occupies vantage the best which to Cruthirds, case, like the order this rest prejudicial impact estimate of the er Cruthirds, upon ed in the trial court’s conclusion part jury.” ror on 624 F.2d at against great thereafter, the verdict Shortly 635. the Fifth Circuit weight 624 factors, of evidence. F.2d at adopted including “perni three Supreme Cruthirds, That the Texas found Court cious of to strike a deli error” guidance in (1) the decades-old Fifth Circuit judge jury: cate balance between reviewing (2) new model for trial orders issues, the simplicity of the the extent comfort in that model give selecting (3) should dispute, to which the evidence is in respect review that undertaking gives a or any pernicious the absence of undesir to jury system judicial both the and the able occurrence at trial. Shows v. Jami system. of that oversight 927, (5th Inc., son 671 F.2d Bedding, 930 Cir.1982). three “When these factors are Rule of Civil 59 Federal Procedure present appropriate it more af is grants power a federal trial court “historic decision, firm the recogniz district court’s grant trial based appraisal new on its knowledge its of first-hand the course trial the fairness of the and the reliabili Ceramics, of the trial.” Carbo Inc. v. ty verdict.” Smith v. Trans (5th 714, Keefe, Fed.Appx. 717 Cir. Co., Drilling world 773 F.2d 612-13 2006). differently, (5th Stated where the issues Cir.1985). of the grounds per One are relatively simple, evidence is dis power missible for the exercise is contested, puted hotly but not and the trial against is the great weight the verdict prejudicial did involve influences or Id. The judge the evidence. trial must tactics, evidence, improper trial then deference to weigh all of the but it need not judge ap the trial is over more light consider such evidence most propriate. id. nonmoving See party. favorable to the Laxton Inc., (5th v. Gap 333 F.3d Cir. review, Using scope and standard of 2003). decision of the federal court to grant insufficiency trial for factual Federal courts and commentators view new oversight against great weight or evi- pursuant trial court’s role if upheld contrary denee1 is of the Shows fac to the overwhelming weight of note, present applicable. (2) tors is Id. evidence; Of and its wit- however, the guide Shows factors the re nesses regularly injected evidence of col- trial; view of an order a new sources, lateral which tainted the verdict. appellate federal courts accord far more I examine the quasi-factual factual or find- deference to the trial court’s decision to ings made the trial court either in its deny a new trial than to a decision tо order granting new trial or in findings a new trial. v. Brady Cty., Fort Bend 145 of fact and conclusions of law to determine (5th Cir.1998). F.3d Such a shift which, if any, of findings these unsup- in deference perfect makes sense because ported in the record such that when the trial court denies a new trial court’s new trial order should be reversed. there is no tension between judge and safety 1. Was the chain installed in *21 jury. trial, upon grant But of a new an incorrect location? Shows factors assist in determining wheth The trial court makes the following fac- er circumstances that exist warrant defer tual “great determination: The weight and ence to the trial court over jury. overwhelming preponderance of the evi- dence showed that the safety chain at issue
III. Review of the New TRIALOrdeR in this case was installed in an incorrect A merits-based review of the trial location.” The Majority states that court’s reasons for granting new trial in “Wyatt dispute did not at trial that this case reveals the reasons to be correct. safety chain was installed in an incorrect Application of the Shows factors favors location, the condition was unreasonably deference to the trial court. The new trial dangerous, or that parties real were not upheld. order should be warned of the incorrect installation.” Thus, Ante at 18. we agree A. The trial that court’s articulated this reasons factual supported by are determination is confirmed correct on neutral record. record-evidence review. Wyatt safety
The trial 2. granted Real Did install Parties’ chain (1) motion safety for new trial on two bases:2 2008 and did the chain movе 1(a) Question answer to No. was between 2008 and 2011? "great weight” 1. The standard is on ExxonMobil a contrasted as basis for the new trial. lesser, authority Question in federal "greater with the The answer to No. 4 about weight” permit standard that would ExxonMobil was not mentioned in the order judgment court to substitute its and a trial, granting new but it was mentioned in new trial where it concludes the evidence is findings. the trial court’s I think the distinc- merely Spurlin insufficient. See v. General below, significant, tion is as outlined because (5th Corp., Motors 528 F.2d 620 Cir. I believe the trial court’s reference 1976). "great weight” The standard for a ExxonMobil is intended factual is, however, motion for new trial a lower support for the trial court’s ultimate conclu- exacting standard than the standard a Question jury's that the sion answer to No. 1 judgment directed verdict or n.o.v. because Wyatt against great weight about was and present question those motions of law and preponderance of the evidence. ExxonMobil Shows, judgment. result in a final See is, therefore, settling party a and not (citing F.2d at 930 U.S. Use and Benefit of such, party appeal. to this I As cannot see Co., Weyerhaeuser Co. v. Bucon Const. Question jury's that answer to No. 4 (5th 1970)). F.2d Cir. provide independent grant- would basis for quibble I Majority’s somewhat with the against Wyatt. Real Parties a new trial analysis jury’s no-negligence response ... were parties real dispute at trial following fac- makes the The trial court installation.” the incorrect not warned of “great weight tual determination: Thus, this agree Ante at 18. evidence preponderance overwhelming by the supported determination factual that De- trial confirmed introduced [sic] record. Company in- Services Wyatt Field fendant in 2008 and that safety chain
stalled Wyatt repeatedly violate 4. Did same location in the the chain remained orders in limine? trial court’s July until 2011.” fac- following court makes the The trial accurately details the tes- Majority The “Defendant tual determination: employee ExxonMobil evidence regularly injected former timony of its witnesses Howell, in violation expert into the case plaintiffs collateral sources Merryman, Elveston, Wyatt’s rep- Plaintiff’s order Wyatt’s expert of the Court’s The trial topic.” testified that in limine on Jordan. None motion resentative stated, findings, in its chain. All affir- court also install the Wyatt did not li- violated the Court’s Wyatt Wyatt repeatedly installed was that mative evidence orders, admon- ignored Court’s testified mine Wyatt’s expert own the chain. ishments, infor- injected inadmissible in- likely” “more that it was into the case. issue on this mation joined parties stalled it. The testimo- solely by virtue of point *22 Majority evalu- Wyatt Neither nor locate docu- Wyatt could not ny that at all. regard in this ates the record it. Wyatt that installed ments to- confirm the record does Wyatt suggest not does Majority finding. not this support movement of the regarding All evidence the record suggest not that likewise does by nega- evidence is circumstantial chain Instead, finding. support does not that There is no evidence tive omission. trial court Wyatt argues solely that chain, a moved. To move the chain alleged vi- counsel’s erred because defense None of the required. work order was no effect the court’s order “had olation of show the chain work orders in evidence any liability on jury placed on whether that Wyatt moved. has documentation analysis by Wyatt.” Defendant Led to 2008 to 2011. the chain moved from examines the trial Wyatt, Majority Thus, although arguably there was a purely from the court’s factual statements Wyatt installed fact on whether question harm, support. not Ulti- standpoint of the chain moved be- the chain or whether that mately, Majority determines trial court’s fac- tween 2008 and court’s limine “Wyatt’s violation of the trial by rec- supported tual is determination have affected the order could not ord. negligent, not and Wyatt Ante, Parties Were Plaintiffs/Real at 31. any violation was harmless.” warned ? outset, harm disagree I that a At the following fac-
The trial court makes the re- to do with our analysis anything has and “great weight granting tual determination: The of the trial court’s order view overwhelming preponderance of the evi- of a motion Wyatt’s new trial. If violation trial confirmed that a basis for a provide dence introduced at in limine could not because, Majority safe- con- Plaintiffs were never warned that the as the new cludes, preliminary are incorrectly installed and had limine orders ty chain was and waiva- of them are curable danger.” to be aware of the violations no reason not ble, would Supreme then the Court Majority “Wyatt states that did perform have needed to a merits-based motions in limine granted that were in In Toyota. review record re Court this case?
There, here, as the trial court’s grounds THE WITNESS: No. Toyota’s new trial included Wyatt’s violation of an order in limine. counsel acknowledged failing to Supreme at 754-55. The instruct the Court stated witness on the limine orders. “(if accurate) reason, that this would have The court’s response Wyatt’s acknowl- ‘legally appropriate’ grounds edgement been striking: new is However, trial.” Id. at 760. the Supreme right There’s a wrong way to do Court’s merits-based review of the record this. Everybody has done this enough Toyota revealed that did not violate the times to know how to question and ex- rulings. trial court’s Id. at 761. There- amine a witness so as not to violate fore, support record did not motions in limine and the orders of the ground. “Support” inquiry; is our Moreover, Court. the witnesses them- harm. selves I know. have witnesses that this Therefore, Wyatt’s allegation sole isn’t their first time in court. These are harm,” its conduct “did no fails professional witnesses. It’s amazing to support petition any argument with the Court that people that know the comply it did with the trial court’s rules that have done this so many times argument limine orders or an that a mer- up can stand plead ignorance its-based review shows that did not say, I’m sorry, surprised I’m by this violate the trial court’s limine orders. happening and that happening. Nevertheless, a review of the record does You represented have to the Court a support the trial court’s factual statement. number of you times that gone have very On the day testimony last in this spoken back and to certain witnesses trial, three-week the following exchange *23 and the first time I [sic] ask a witness occurred presence jury: outside the of the whether or you not have done that he THE COURT: At this time I would like says no. I you want to believe but at to address the witness in this matter. the same I time have beеn told this now This is the second you time that have several you say times and something injected involving a matter collateral you and then proceed to do the opposite. source in testimony today. the here So I’m I afraid can’t continue to believe you.
THE COURT: I am instructing you at Wyatt’s attempted counsel to deflect the this time not to mention anything about court’s ire by suggesting that the Plaintiffs government assistance any or other col- had you “talked records that won’t about compensation lateral source for available in, too; so, mean, you let I are not direct- through any of charity any kind kind me, directly you?” are The of, said, I government program like responded, trial court gentlemen. you these If violate this instruction, Court’s I will you hold saying got I am stop. that’s to At this contempt. point, yes, I am directing that towards
you. I don’t have the same issue and THE COURT: I want to ask the wit- nothing brought up has been like it has quickly, you ness real did have a continually respect conver- with to anybody sation with attorneys these about the else’s conduct....” leged charge appeal error on traditional exchange plain makes foregoing
The
case,
verdict,
jury
like
Toyo-
judgment
In re
from a
on
is askew
is
that this
neither
ta,
squarely
perform.
conflicts
are to
analysis
“record
of the
where the
expressed reasons
judge’s
with
trial
judge
did not
a new trial
trial
trial,”3 nor
a case
new
is it
against Wyatt
to Real Parties
because
court, knowing the outcome
the trial
where
have
Exx-
jury
or did not
evidence of
did
case,
a set of facts
generated
of the
has
Finding of
knowledge.
actual
onMobil’s
Insteаd,
the record.
not evident from
the trial
fact number 5 makes clear that
fully supports the statement
record
new
Parties
judge granted a
trial to Real
repeatedly violated limine orders
against Wyatt
because
answers
that even before
returned
questions,
together
to several
viewed
verdict,
was
the trial court
concerned
evidence,
light
of the
caused
Wyatt’s
and the
it
impact
conduct
about
judge
failed to
to conclude
“the
having
trial.
on the
simply
follow
the Court’s instructions
any
5. Was there
evidence of Exxon-
Exx-
place
responsibility
to
all
on
decided
knowledge
danger
of the
Mobil’s actual
regard
legal
stan-
onMobil without
dummy
system?
nozzle
charge.”
dards
in the
set forth
Court’s
moot
Whether
ExxonMobil
is
trial
fac-
following
court makes
purposes
entry of
or immaterial for
jury’s finding
tual determination:
“The
judgment
speak
not
does
to whether
actual knowledge
that ExxonMobil had
factual
about the
judge’s
statement
any
is
unreasonable risk
harm/condition
knowledge
support
evidence of actual
has
supported by factually
evi-
sufficient
in the record.
dence.”
A
review
con-
merits-based
of the record
petition, Wyatt stipulates
In its
that the
(1)
firms that
there is no direct evidence
record contains no direct evidence that
knowledge,
that ExxonMobil had actual
any
knowledge
ExxonMobil had
actual
(2)
there is no circumstantial evidence
harm
unreasonable risk of
or the con-
from
proper
which a
inference of actual
improperly
safety
dition of the
installed
knowledge
indulged.
could be
The trial
points
chain.
circumstantial
court’s factual
is
determination
there
Moreover,
knowledge.
evidence of actual
to support
insufficient evidence
Wyatt’s two-paragraph discussion of this
Question
answer
No. 4
ExxonMo-
about
finding does
dispute
trial court’s
bil’s
knowledge
supported by
actual
Instead,
finding.
Wyatt urges that
*24
by Wyatt’s
record
stipulation.
and
4)
(Question No.
that Exxon-
knowledge
Mobil had
is
actual
rendered
unchallenged
B. The trial court’s
find-
by
moot
to other questions.
answers
ing
pernicious
or undesirable
Similarly,
sidesteps
the Majority
a merits-
by Wyatt,
conduct
when evaluated
based review of the
to determine
record
model,
Fifth
re-
under the
Circuit
sup-
whether
trial court’s finding is
quires deference to
trial court’s
and
ported
instead concludes that “the
trial order.
new
no-liability finding
favor of
any liability finding against
sup-
renders
Exx-
that
Having concluded
the record
onMobil
Ante at
again ports
by
immaterial.”
25. I
the factual statements made
trial,
urge
legal analysis,
that
al-
I turn
this
akin to
the new
3.
to the Shows factors from the Fifth
analysis
Circuit
ultimate
in favor of deference
any
model.
one of them
present,
If
is
the trial court. Specifically, as the
above,
foregoing
outlined
deference should be ac-
discussion of limine order viola-
reveals,
judge’s
corded the trial
decision to
tions
supports
record
the trial
Shows,
judge’s
new trial.
Factor three present high is at a de- jury, the and the resolution of gree However, and this tips court, Shows factor therefore the issues. the trial hav- trial, new-trial deci court never made its of believed trial three weeks
ing observed and, instead, had losing party trial jury and sion infected that conduct sufficiency fair challenged of a trial. the factual Real Parties deprived methodology by regular purposes For appellate appeal. evidence There is trial, cor- have ren trial court was a motion for new evaluating whether the Tex- Because and neither the trial court irrelevant. rect about that conclusion dered suggests are “cor authority authority nor trial court’s reasons federal stated trial try. this record because the appellate court should This rect” on and in to determine position the definition discretion. court was the best is vio Wyatt’s pernicious1conduct in whether present, factor Because three is Shows lating prejudice limine orders operated deference to the trial court’s deci- requires a fair jury deprive Real Parties of new trial. sion trial, hold trial court did I would that the factual-sufficiency Because abuse its limited discretion. Majority’s The C. otherwise, Majority respectful holds I jury findings implied deference ly dissent. eliminates all discretion. trial-court Majority entirely to the defers thereby with disagrees “great overwhelming weight court’s
preponderance of the evidence” determina- example, Majority For states:
tion.
“The could have found Jordan’s testi- Wyatt’s
mony nothing that he in found had done
files to confirm that WILLIAMS, Michael Jermaine work was more than the testimo- credible Appellant entry show- ny single computer based on ing Wyatt the work.” Ante had done v. at 23.
Second, analysis as the illus- Majority’s Texas, Appellee The STATE of trates, using factual-sufficiency stan- NO. 14-13-00527-CR analysis and performing dard a harm has the effect of asking whether Texas, of Appeals Court committed reversible error instead ask- Dist.) (14th Houston urge question: what I correct Is support there record for the trial filed Opinion December court’s factual statement?
IV. Conclusion Majority performs a factual-suffi review,
ciency applying permissible all in deferring credibility
ferences and to all flow presume
determinations that we answers,
support of the then such,
overlays analysis. a harm As
Majority applied has the stan precisely
dard that we had applied would have