COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

I N RE: TOYOTA MO TOR SAL ES, U.S.A., I NC., AND VI SCOUNT PROP ERTI ES I I , L .P. , D/B/A HOYFOX TOYOTA/L EXUS, Relators. § § § § § § No. 08-09-00293- CV AN ORI GI

NAL PROCEEDI

NG I N MANDA MUS

O P I N I O N Toy ota Motor Sales, Inc., U.S.A. and V iscount Properties I I(“Toy ota”) have f

iled a petition for writ of manda mus to compel the Honora ble Yvonne T . Rodrigue z, J udg e of the Probate Court No. 1 of E l Paso County , to withdraw he r orde r g rantinga new trial in the underlying c ase a

nd enter a take -nothingjudgme nt in Toy ota’s fa vor. The unde rlying la

wsuit was filed on be half of the estate of Richard Kingby

and for his surviving f

amily members ( “the King s”). Mr. K ing w as killed in a rollover acc ident on Aug ust 25, 2004. The King s sued Toy ota U.S.A. and Visc ount Properties alleg ing his 1997 Toy ota 4 Runner c aused Mr . King ’s death beca use the ve hicle conta ined a de fec tive restra int sy stem which allowe d Mr. King to be ejec ted from the ve hicle whe n it rolled. The ca se wa s submitt ed to the jury

in El Paso Count y

Probate Court No. 1 on June 5, 2009. The jury deter mined that there was no de sign de fec t in the 4 Runner’s occ upant safe ty sy stem and issued a verdic t in favor of

Toy ota. The tria l court ente red judg ment on the jury ’s ver dict on J uly 13, 2009.On August 7, 2009, the King s moved for a new tria l in the case . The King s argued counsel for

Toy ota had violated the trial court’ s limi ne and e videntiary ruling s by

ref err ing to a lay opinion provided by

a police inve stigator reg ardingMr. King ’s seatbelt use at the time of the
acc ident. The King s’ ar g ued that Toy ota’s re fer ence s to the investigator’s opinion that Mr. King was not we aringa seatbelt at the time of the a ccide nt during the pre sentation of evide nce a nd closing argument nece ssitate a new trial “in the intere st of justice.” The King s amende d their motion on S eptember

9, 2009, alleg ing that in addition to t he g rounds outlined in their orig inal motion, a new trial wa s also nece ssary in order to e x plore ne wly discovere d evidenc e. The trial c ourt enter ed an or der g rantingthe King s’ a ne w trial on September 22, 2009. The orde r states:

On this day , the Court considere d the Plaintiff’s Motion for Ne w Trial, Def endant’ s Response, Plaintiff’s Amende d Motion for NewTrial, the law , and the re cord. A fter c onsidering same a nd pursuant to this Court’s authority under Rule 320 of the Te x as Rules of Civil P roce dure, the Court now here by g rants a new tria l in the above- sty led ca use in the intere st of justice because Def endant willfully disreg arde d, brazenly

and intentionally

violated the Court’s orde rs in limine, evidentiary

ruling s, instructions and order s conce rning a cr ucial evidentiar y issue rela ting to seat belt use by

Mr. Richard K ing, the dece dent, during Def

endant’ s closing a

rg ument, it purported to pre sent evidenc e outside the rec ord, and c ommented on matters in violation of the Court’s orde r in limine. Specifica lly , during closing argument, Def endant r ead f

rom the De position of witness J ustin Coon concerninghis lay opinion, and conclusion that Mr. Kingwas not wear ing a

seat be lt at the time of the commenc ement of the rollover. The Court had pre viously

excluded these lay

opinions and conclusory

rema rks by witness Coon on the g rounds that they wer e not base d on his personal knowle dg e and we re, the ref

ore, c onclusory

and incompete nt to be prese nted to the jury and beca use witness Coon did not have the r equisite training , educa tion, schooling, or experience to opine whether or not Mr. Kinghad bee n belted at the sta rt of the rollover. This Court, mindful of its obligations under new Te x as Supreme Court authority , In re Columbia Medic al Center of Las Colinas Subsidi ary, L.P., d/b/a Las Col inas Medical Center, e t. al. , 52 Tex. S up. Ct. J our. 1016, (Te x . 2009), has undertaken the r eview which only this court can ta

ke-- which is diffe rent than that of an a ppellate c ourt “who ha

ve only the re cord to c onsider”- -and ha ving se en the
-2-parties, a nd witnesses and se nsed the a ffe ct of the a bove occ urre nce on the trial g rants the motion for ne w trial, for the spec ific g rounds set out here in, in the interest of justice. See 52 Tex. S up. J our. 1020. [Emphasis in original]. Additionally , this Court pursuant to it s inherent a uthority to issue sanctions, irre spective of

and or in a dditional to it s authority under Rule 320, g rants a ne w trial as a

sanction to Def

endant’ s conduct duringclosing argument beca use De fense counsel’s r eading from the de position of witness Coon during closing argument, such to inject an ina dmissibl e, fa ctually unsubstantiated conclusion and la

y opinion was so prejudicia l to the Plainti ffs a nd inflammatory that an instruction to disreg ard at such a late stag e in the trial c ould not eliminate its harm. Moreove r, the c ourt finds, in this reg ard, that this sanction of g rantinga new tria l is narrowly

tailored to pre vent this sort of behavior in the future by Def endant. Toy ota petitions this C ourt to issue a writ of ma ndamus compelling the trial cour t to
reve rse its order

g rantingthe King s a newtrial, and to re -instate its take-nothingjudgme nt. Toy ota pre sents two issues in its petit ion. I n I ssue One, T oy ota contends the trial court a bused its discretion by

g rantinga new

trial bec ause the rea sons stated in the new tria l order a re le g ally and fac tually insupportable. In I ssue Two, Toyota asser ts this error is cor

rec table by

mandamus revie w under

the Texas Supreme Court’s de cision in In re Columbia Medic al Center of Las Colinas, Subs idiary, L.P. , 290 S.W .3d 204 (Tex. 2009)(orig . proce eding ). Gene rally a wr it of mandamus will issue only to corre ct a c lear

abuse of discretion or the violation of a duty

imposed by

law, in circ umstances whe n a re gular a ppeal is not an a dequate
reme dy
. In re Columbia , 209 S.W .3d at 207. In In re Columbia , the Texas Supreme Court held that a trial c ourt abused its discre tion by failing to specify

the re asons for its dec ision gra nting a new tria l “in the intere st of justice.” See I n re Columbia , 209 S.W .3d at 213; In re E.I . du Pont de Nemours &Co. , 289 S.W .3d 861, 861-62 (Te x . 2009)(or ig. pr ocee ding) . The Court conclude d, “the pa

rties and the public a

re e ntitled to an understanda ble, re asonably

specific

-3-explanation why their expectations [that a jury verdic t will close the trial proc ess] are f rustrate d by a jury verdic t being disreg arde d, or set aside , the trial proc ess beingnullified, and the c ase having to be re tried.” In re Columbia , 209 S.W .3d at 213. The Court c onditionally g rante d mandamus re lief, and dire cted the tr ial court judg e to spec ify its reasons for

g rantinga new

trial. Id . at 215. B eca

use the trial c ourt’s orde r did not include the re asons for its ruling , the Court expressly declined to c onsider the r ealtor’ s reque st for a w rit of mandamus dire cting the trial court to ente r judg ment on the ver dict. Id . at 214. Following Columbia , an orde r g rantinga new trial in Texas which fails to specif y the
rea sons behind it is subj ect to cor rec tion by writ of mandamus. See I n re E.I. du Pont de Nemours & Co. , 289 S.W .3d at 862. As our quotation of the trial court’ s order above demonstrates, the re is no question that the trial c ourt in this case spec ified the re asons for its decision to g rant the K ings’ motion, and thereby satisfied the spec ificity

require ments of Columbia . Howeve r, Toyota ar g ues the Supreme Court’s analy sis in Columbia supports further revie w of the me rits of the g rounds spec ified. B ased on its conc lusion that none of the spec ified g rounds is sufficient to support the or der, Toyota asks this Court to compel the trial cour t to
vacate its order, a

nd re- instate its judgment on the jury verdic t. We disagr ee that Columbia authorizes such a r eview on ma ndamus and we deny

the petition. The Columbia decision first re aff irms the trial court’ s broad discr etion in gr anting new trials. See I

n re Columbia , 290 S.W .3d at 212, citing Johnson v. Fourth Court of Appeals , 700 S.W .2d 916, 918 (Tex. 1985)(orig . proce eding ). In expressing the broad but not “limitless” discretion trial c ourt’s have historically enjoy ed in g rantingmotions for new trial, the Court
rec ounted the two instance s when a trial court’ s new trial or der is subjec t to review by regular
-4-appea l: (1) when the court’s or der is void; and (2) when the tr ial court e rrone ously conclude d that the jury ’s answe r to specia l issues contained a n irrec oncilable c onflict. In re Columbia , 290 S.W .3d at 209. The Court’s e x press motivation for the spe cificity require ment is to support the public perc eption of fa irness in the judiciary throug h transpar ency . See I n re Columbia , 290 S.W .3d at 214. Fur thermore , the Court rea ffirme d the trial cour t’s role a s arbiter

of motion’s for ne w trial under Te x as Rule of Civil Procedure 320, and expressly declined to de fine “ g ood cause ” in the context of the rules g overningnew tria l orders e x cept to note that the sig nificanc e of the rig ht to a jury trial, “c ounsels ag ainst courts settingaside jury verdic ts for less than spec ific, sig nificant, and prope r re asons.” In re Columbia , 290 S.W .3d at 210 n.3. I t is the refe renc e to “pr oper
rea sons,” and a

“valid basis” that Toy ota ar g ues indicate s the Supreme Court’s intent for the mandamus re view author ized under Columbia also includes re view of the merits of the g rounds stated in a ne w trial orde r. Id. at 212. We are unpersua ded that the languag e Toyota re lies upon supports such an e x pansion of Columbia . Given the Court’s r eaf firmanc e of a

trial court’ s broad discretion in these c ircumstance s as discussed a bove, we do not ag ree that the passing ref ere nces to “prope r re asons” a

nd “valid” ba ses indicate the Court’s intent to add a mer its review of the g rounds stated in an or der w hich otherw ise satisfies the spec ificity require ment. I t cannot be sa id that this order fa ils to serve the g oal of judicial tra nspare ncy cited in Columbia , and that as suc h, the orde r ser

ves to bolster the pe rce ption that this jury verdic t was not set aside lig htly
. See I n re Columbia , 209 S.W .3d at 211. B eca use the ne w trial orde r in this case satisfied the re quirements of Columbia , Toyota has not demonstrated a c lear abuse of discretion and w e over

rule I ssue One. Havingoverr

uled I ssue One, w e dec line to addre ss Toy ota’s ar gument that a re g ular
-5-appea l is not an adequate re medy in this i nstance
. See I

n re Prudential Ins. Co. of America , 148 S.W .3d 124, 135-36 (Te x . 2004)(or ig. pr ocee ding) . The manda mus relief r equeste d is denied.

September 29, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
.

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