Petition for Writ of Mandamus Denied and Memorandum Opinion filed 

December 10, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00811-CV

IN RE WYATT FIELD SERVICE COMPANY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

125th District Court

Harris County, Texas

Trial Court Cause No. 2011-44838

MEMORANDUM OPINION

On September 16, 2013, relator, Wyatt Field Service Company, filed a 

petition for writ of mandamus in this Court. See Tex. Gov‟t Code Ann. § 22.221; 

see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the 

Honorable Kyle Carter, presiding judge of the 125th District Court of Harris 

County, to vacate his March 4, 2013 order granting the motion for new trial filed 

by real parties in interest, David McBride and Glenn Burns. We deny the petition.
2

I. BACKGROUND

On July 3, 2011, David McBride and Glenn Burns were working as 

employees of LWL, Inc. on a tank in the flexicoker unit of ExxonMobil 

Corporation‟s Baytown refinery. They were replacing “dummy nozzles” inside the 

tank with spray nozzles. While they were removing a dummy nozzle, “it shot out 

and blew.” There was an explosion causing McBride and Burns to be thrown, and 

blowing steam and coking material onto McBride and Burns, causing them to 

sustain severe burns and injuries. McBride and Burns sued Wyatt for negligence, 

negligence per se, and gross negligence for improperly installing a safety chain. 

McBride and Burns also sued ExxonMobil, which settled before trial. 

Wyatt did not dispute that the safety chain was installed in an incorrect 

location, the condition was unreasonably dangerous, or McBride and Burns were 

not warned of the incorrect installation. On January 30, 2013, the case went to 

trial, and on February 13, 2013, the jury reached a verdict, finding (1) Wyatt was 

not negligent; (2) ExxonMobil exercised or retained some control over the manner 

in which the work in question was performed, other than the right to order the 

work to start or stop or to inspect progress or receive reports; and (3) 

ExxonMobil‟s negligence with respect to the condition of the dummy nozzle 

system proximately caused the occurrence. Although the jury found damages for 

McBride ($902,681.41) and Burns ($2,905,898.95), neither would recover because 

of the jury‟s no-negligence finding as to Wyatt. 

Real parties filed a motion for new trial, arguing (1) no factually sufficient 

evidence supported the jury‟s finding that Wyatt was not negligent, the finding was 

contrary to the great weight and preponderance of the evidence, and the verdict 
3

was manifestly unjust; and (2) Wyatt‟s repeated injection of collateral sources 

tainted the verdict. 

On March 4, 2013, the trial court granted real parties‟ motion for new trial as 

follows: 

The Court has considered Plaintiffs‟ motion for a new trial, all 

responsive briefing, the arguments of counsel, and the Court‟s own 

observations during the trial of this case. The Court believes 

Plaintiffs‟ motion is meritorious and should be granted.

The jury‟s answer to Question 1(a) was contrary to the 

overwhelming weight of the evidence. The great and overwhelming 

preponderance of the evidence showed that the safety chain at issue in 

this case was installed in an incorrect location. The great weight and 

overwhelming preponderance of the evidence also showed that the 

incorrect location of the safety chain created an unreasonably 

dangerous condition. The great weight and overwhelming 

preponderance of the evidence introduced at trial confirmed that 

Defendant Wyatt Field Services Company installed the safety chain in 

2008 and that the chain remained in the same location until July 3, 

2011. Further, the great weight and overwhelming preponderance of 

evidence introduced at trial confirmed that Plaintiffs were never 

warned that the safety chain was incorrectly installed and had no 

reason to be aware of the danger. The interests of justice require a 

new trial.

A new trial is also required because Defendant and its witnesses 

regularly injected evidence of collateral sources into the case in 

violation of the Court‟s order granting Plaintiff‟s [sic] motion in 

limine on this topic. This inadmissible evidence tainted the jury‟s 

verdict. Good cause and the interests of justice require the Court to 

grant a new trial.

1

 

1

Emphasis added. 
4

On April 9, 2013, the trial court entered the following findings of fact in 

support of its new trial order:

1. The jury‟s finding that Defendant Wyatt Field Services 

Company was not negligent is against the great weight and 

preponderance of the evidence.

2. The jury‟s finding that Defendant Wyatt Field Services 

Company was not negligent renders the jury‟s verdict 

manifestly unjust.

3. The jury‟s finding that ExxonMobil had actual knowledge of 

any unreasonable risk of harm/condition is not supported by 

factually sufficient evidence.

4. The jury‟s finding that ExxonMobil had actual knowledge of 

any unreasonable risk of harm/condition renders the jury‟s 

verdict manifestly unjust.

5. Based on the combination of factually insufficient liability 

findings concerning Defendant Wyatt Field Services Company 

and ExxonMobil, the Court finds that the jury failed to follow 

the Court‟s instructions and simply decided to place all 

responsibility on ExxonMobil without regard to the legal 

standards set forth in the Court‟s charge.

6. Defendant Wyatt Field Services Company repeatedly violated 

the Court‟s order granting Plaintiffs‟ motion in limine.

7. Defendant Wyatt Field Services Company ignored this Court‟s 

admonishments about the motion in limine.

8. Defendant Wyatt Field Services Company‟s repeated injection 

of information into this case was inadmissible, including but 

not limited to information regarding benefits available to 

Plaintiff from collateral sources, tainted the verdict and 

rendered it manifestly unjust.
5

The trial court entered the following conclusions of law:

1. The Court concludes that it is entitled to grant a new trial when 

it finds the jury verdict is contrary to the great weight or is not 

supported by factually sufficient evidence.

2. The Court concludes that it is entitled to grant a new trial when 

it finds that the injection of inflammatory collateral matters 

(such as collateral sources) poisons the verdict.

3. The Court concludes that it is entitled to grant a new trial 

when it is required in the interest of justice.

2

In its petition, Wyatt claims the trial court abused its discretion in granting 

real parties‟ motion for new trial because (1) the jury‟s finding that Wyatt was not 

negligent was not against the great weight and preponderance of the evidence; (2)

the jury‟s finding that ExxonMobil had actual knowledge of the condition that 

caused the injuries was immaterial and could have no impact on the verdict after 

the jury found Wyatt was not negligent; (3) any violations of the motion in limine 

on collateral sources made no mention of any fact bearing on Wyatt‟s liability; and 

(4) the Texas Supreme Court has disapproved of granting a new trial based on the 

“interests of justice.” 

II. STANDARD OF REVIEW

To be entitled to mandamus relief, a relator must demonstrate (1) the trial 

court clearly abused its discretion, and (2) the relator has no adequate remedy by 

appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A new 

trial order is reviewable on mandamus for its reasonable specificity, legally

appropriate reasons, and correctness of its articulated reasons. In re Toyota Motor 

 

2

Emphasis added.
6

Sales, U.S.A., Inc., 407 S.W.3d 746, 762 (Tex. 2013) (orig. proceeding); In re 

United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding); 

In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 206 

(Tex. 2009) (orig. proceeding).

III. ANALYSIS

The trial court articulated several grounds for granting the new trial. We 

begin with the interest-of-justice ground. Although a trial court previously could 

grant a new trial “in the interest of justice,”3that ground is no longer a sufficiently 

specific reason for granting a new trial. See United Scaffolding, 377 S.W.3d at

689–90 (stating “in the interest of justice” is never an independently sufficient 

reason for granting a new trial); Columbia, 290 S.W.3d at 215 (“Broad statements 

such as „in the interest of justice‟ are not sufficiently specific.”). Therefore, the 

trial court abused its discretion by including “in the interest of justice” as a ground 

for granting a new trial.

The trial court also granted the new trial on several factual insufficiency 

grounds and on the manifest injustice resulting from Wyatt‟s repetitive violation of 

motions in limine. Recently, the Texas Supreme Court held an appellate court, in a 

mandamus proceeding, may conduct a merits-based review of the stated reasons 

for granting a new trial after the trial court has set aside a jury verdict. Toyota, 407 

S.W.3d at 762. If a trial court‟s articulated reasons are not supported by the 

underlying record, the new trial court order cannot stand. Id. at 746. 

 

3

See Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 

1988) (orig. proceeding); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) 

(orig. proceeding), disapproved of by Columbia, 290 S.W.3d at 213.
7

A review of the mandamus record reflects that it does not include the 

complete trial record. The record does not include the testimony of all the 

witnesses, any of the trial exhibits, or opening and closing arguments. Nor does 

the mandamus record include the reporter‟s hearing of the motion for new trial.

In the absence of a complete record, this court cannot ascertain whether the 

trial court abused its discretion in determining whether the jury‟s failure to find 

Wyatt liable was contrary to the great weight and preponderance of the evidence,

whether the jury‟s finding that ExxonMobil was 100% liable for real parties‟ 

injuries was supported by factually sufficient evidence, or whether Wyatt‟s motion 

in limine violations prejudiced the jury. See Toyota, 407 S.W.3d at 759–60

(“Having undertaken our own cumbersome review of the multi-volume trial 

record, we conclude that the record does not support the new trial order.”) (internal 

quotations and citations omitted); United Scaffolding, 377 S.W.3d at 690 (holding 

relator had failed to show that no valid basis for the new trial order existed where 

“the record United ha[d] presented [was] only a partial one containing Levine‟s 

motion for new trial and the exhibits to that motion, such as deposition transcripts, 

and the transcript of the hearing on the motion for new trial”); see also Tex. R. 

App. P. 52.7. Therefore, Wyatt has not shown that it is entitled to mandamus 

relief. 

Accordingly, we deny Wyatt‟s petition for writ of mandamus.

 PER CURIAM

Panel Consists of Justices Boyce, McCally, and Donovan.