## In The Court of Appeals Seventh District of Texas at Amarillo

________________________ No. 07

- 1 8

- 00 416

- C

V

________________________ IN RE DCP OPERATING COMPANY, LP F/K/A DCP MIDSTREAM, LP, RELATOR

Original Proceeding Arising From Proceedings Before the 69th District Court

Moore C ounty, Texas Trial Court No. 13

- 81 ; Honorable David Gleason , Presiding

April 29 , 201 9 

### MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER , JJ.
In this original proceeding, R elator, DCP Operating Company, LP, formerly known as DCP Midstream, LP, seeks to set aside the trial court’s order granting the motion for new trial of R eal P arty in I nterest , Blake Stringer. We grant DCP’s petition for writ of mandamus.2

B ACKGROUND DCP maintains an easement on farmland owned by Stringer. In 2011, DCP excavated an area o f the farmland to perform work on its pipeline

. S tringer claims DCP f ailed to properly fill the excavated area , resulting in soil damage and settling. T he settling purportedly caused Stringer’s irrigation sprinkler to frequently become stuck , leading to overwatering in the excavated area and un der watering in other areas of the field.
Stringer sued DCP for breach of the right

- of

- way agreement and negligence to recover remediation costs for the soil damage , repair costs for the irrigation sprinkler , and the loss es to his 2012 crop yield. The Honorable David Gleason 1 presided over the jury trial.
At trial, DCP sought to question Stringer about sta tements he made to his crop insurer concerning the cause of his low crop yield and about a loss statement created by the insurer. Stringer’s counsel addressed the matter during Stringer’s direct examination without referencing the insurer or the loss stat ement. On direct examination, Stringer testified that he had informed a third party that his low crop yield was due to a “hot, dry summer.” St r inger did not identify the third party; however, he did testify that the third party generated a “report” indica ting “excessive heat” as the cause of the low crop yield.

On cross

- examination , DCP questioned Stringer about a “claim” he made concerning his crop losses. Stringer’s counsel objected to DCP’s use of the term “claim” as interjecting insurance into the cas e and to the admissibility of the loss statement as violating the collateral source rule. The trial court overruled Stringer’s objections to the

1 Judge Gleason, a visiting district judge, was assigned to preside over the tria l.3

term “claim,” but held that the l oss s tatement was inadmissible under the collateral source rule

. DCP did not offer the loss statement into evidence.

After a four

- day t rial, t he jury found that DCP ’s breach of the right

- of

- way agreement and negligence had caused the soil damage , damages to the sprinkler, and losses to Stringer’s 2012 corn crop

. The jury also found that St r inger’s own negligence had contributed in cau sing the sprinkler damages and crop losses and apportion ed 60% of the responsibility on S t ringer . The jury awarded damages under both causes of action for the reduced market value of the land, the sprinkler repair costs, and the losses to the 2012 corn crop.
Following the jury’s verdict, Stringer filed a motion for new trial on various grounds

. T he trial court granted Stringer’s motion and ordered a new trial for the following reasons : 2
The Court erred in admitting testimony that suggested that Plaintiff was covered by crop insurance, a collateral source, and such error probably caused the jury to consider insurance, and probably caused the jury to apportion responsibility and determine damages that were inconsistent with the great weight of the evidence, rendering an improper verdict; The Hudson Insurance Co. report, Defendants ’ [sic] Exhibit 27 , was not a statement made or authorized by Blake Stringer or any agent of Blake Stringer, and was therefore not an admission against interest regarding which Blake Stringer could properly be impeached

.

M ANDAMUS S TANDARD OF R EVIEW DCP filed a petition for writ of mandamus to vacate the trial court’s order granting a new trial

. Manda mus is an extraordinary remedy granted only when the relator can

2 The trial court’s order incorrectly cites the exhibit number of the l oss s tatement. The loss statement was Defendant’s Exhibit 37.4

show that (1) the trial court abused its discretion and (2) no adequate appellate remedy exists. In re H.E.B. Grocery Co. , L.P. , 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).
When granting a new trial, a trial court does not abuse its discretion if its reasons are (1) understandable and reasonably specific, (2) legally appropriate (such as a well

defined legal standard or a defect that probably resulted in an improper verdict ) , and (3) supported by the record. See In re Columbia Med. Ctr. of Las Colinas , Subsidiary , L.P ., 290 S.W.3d 204, 213 (Tex. 2009) ( orig. proceeding )

. See also In re Toyota Motor Sales, U.S.A., Inc

. , 407 S.W.3d 746, 758

- 759 (Tex. 2013) (orig. proceeding) ; In re United Scaffolding, Inc ., 377 S.W.3d 685, 6 88

- 89 (Tex. 2012) (orig. proceeding)

. If the trial court abuses its discretion in granting a motion for new trial, there is no adequate remedy by appeal and the petitioner is entitled to mandamus relief

. See Columbia Med

. Ctr. of Las Colinas , Subsidiary

, L.P ., 290 S.W.3d at 209

- 10

.
A NALYSIS DCP contends that the trial court abused its discretion because its reasons for granting a new trial are not supported by the record. The order state s that the trial court

“ erred in admitting testimony that suggested that [Stringer] was covered by crop insurance, a collateral source , ” which probably caused an improper verdict an d that DCP improperly impeach ed Stringer with the l oss s tatement

.
DCP argues that the se grounds are not supported by the record because (1) St r inger failed to preserve erro r regarding the collateral source rule , (2) Stringer waived the purported error, (3) the collateral source rule does not apply in this case , ( 4 ) the5

collateral source rule was not violated, ( 5 ) the admitted testimony did not cause an improper verdict, and ( 6 ) DCP did not use the l oss s tatement to impeach Stringer.
Accordingly, we must review the correctness of the trial court’s stated reasons for granting a new trial to determine if they are supported by the record. See Toyota Motor Sales, U.S.A., Inc ., 407 S.W.3d at 758

- 59 (“ Having concluded that the reasons articulated in a new trial order are reviewable on the merits by mandamus, we now evaluate the trial
court ’ s grant of new trial against the underlying record .”).

A. The Collateral Sourc e Rule The collateral source rule is a rule of evidence and damages. Taylor v. Am. Fabritech, Inc ., 132 S.W.3d 613, 626 (Tex. App.

— Houston [14th Dist.] 2004, pet. denied). It precludes a tortfeasor from introducing evidence or obtaining an offset for funds received by the plaintiff from a collateral source

. Id

. S ee also Brown v. Am. Transfer & Storage Co ., 601 S.W.2d 931, 934 (Tex. 1980 ) (“ The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy .”)

. However, e vidence of a collateral source may be ad missible for purposes other than the mitigation of damages. See M undy v. Shippers, Inc ., 783 S.W.2d 743, 745 (Tex. App.

— Houston [14th Dist.] 1990, writ denied) ; Russell v. Dunn Equipment, Inc ., 712 S.W.2d 542, 547 ( Tex . App.

— Houston [14th Dist.] 1986, writ ref’d n.r.e.).

B. Stringer P reserved the P urported E rror First, DCP claims that Stringer failed to preserve the purported error. See Toyota Motor Sales, U

. S

. A

. , Inc ., 407 S.W.3d at 760 ; In re State , No. 14

- 18

- 01036

- CV, 2018 Tex.6

App. LEXIS 10714, at *17

- 19 (Tex. App.

— Houston [14th Dist.] Dec. 21, 2018, orig. proceeding) (per curiam) (mem. op.) (granting mandamus relief because purported error in new trial order was not preserved).
To preserve erro r , a defendant must make a timely and specific objection to the trial court and the trial court must rule on the objection. T EX

. R. A PP

. P. 33.1(a). The objection must be specific enough so that the trial court can understand the precise grounds to make a n informed ruling and a fford the offering party an opportunity to remedy the defect if possible

. See McKinney v. Nat ’ l Union Fire Ins. Co ., 772 S.W.2d 72, 74 (Tex. 1989)

.
At the start of DCP’s cross

- examination of Stringer , Stringer’s counsel objected to the admissibility of the l oss s tatemen t, asserting that it interject ed insurance and violat e d the collateral source rule. Stringer’s counsel later conceded that DCP could question Stringer about his con v er s ations with the third party a nd what the third party reported as the cause of the crop loss. 3 However, h e objected to DCP us ing the term “claim” during its questioning as it “ strongly infer s insurance.” The trial court ruled that the l oss

s tatement violated the collateral source rule but allowed DCP to use the term “claim” when

3 Stringer’s Counsel :

... Now, I don ’ t

– I

– you know, we went into his conversation and the choice that the agency employee made in selecting a code number. Obviously, [DCP] can cross - examine about that. But we

– we do object to the introduction of the exhibit as a violation of the collateral source rule, number one

... DCP’s Counsel : Well, your H onor, my response to that is they can’t talk about a document and not allow me to go into it... Stringer’s Counsel : I believe, on that point, [DCP] would be able to appropriately cross

examine him. There was a document prepared on your behalf that chose item 12, excessive heat.7

questioning S tringer. The court stated that it would permit the inference of insurance and granted Stringer a running objection.
Accordingly, b ased on its context , we find that Stringer’s objection to the term “claim” was spe cific enough for the trial court to underst and his position that the term violated the collateral source rule

. See T EX

. R. A PP

. P. 33.1(a) (1)(A) (requiring the objection to be sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context). Stringer’s objection was timely and

o verruled by the trial court. Thus, we conclude S tringer preserved the purported error

. 4

C

. Stringer D id N ot W aive His O bjection DCP also argues that Stringer waived any objection to the collateral source rule because he “opened the door” during his direct examination. A party waives an objection
to improper evidence offered by the other side when it has previously introduced the same evidence or evidence of a similar character. McInnes v. Yamaha Motor Corp., U.S.A ., 673 S.W.2d 185, 188 (Tex. 1984)

.
On direct examination, Stringer’s counsel asked him the following: Stringer’s Counsel : Now, in talking about government reporting, all the reporting you have to do as a farmer, there’s a reference in opening statement to a report involving your 2012 corn loss, right? St r inger : Y es. Question : Okay. Let’s

– let’s go through how that reporting works.

* * *

4 In the petition for writ of mandamus and the responding brief, the parties discus s DCP’s use of the term “claim” during closing arguments. However, t he trial court’s order does not include improper jury argument as a reason for granting a new trial . Instead, it cites the admission of “ testimony that suggested that [Stringer] was cove red by crop insurance, a collateral source .” ( E mphasis added)

. Therefore, we do not consider th e issue of improper jury argument in our analysis.8

Q uestion: When you get your harvest in, get your yield information from Telemark on the cotton and from the co

- op on the corn, do you have to report that? Answer: I do.

* * * Question: And when you reported the 85 bushels, did you receive a communication? Answer: I did. Question: And what was the inquiry? What was being asked of you? Answer: The communication was what was the reason for the low yield. Question: And this is a phone call? Answer: Yes. Question: And you had a conversation with this person, this employee, right? Answer: Yes. Question: And do you have a specific recollection of exactly what you told them? Answer: I just told them it was a hot, dry summer. Question: Okay. And then did you fill out

– did you personally fill out a form? Answer : No. Question: Did you sign it? As far as you know, sign anything? Answer: No, not tha t I can recall? Question: Okay . Is

– is there, then, a report

– or a document generated by the persons you talked to? Answer: Yes. Question: Okay. And on the report that is generated by that business or entity or agency, or whatever it is, did that person or business on the other end make a selection on how to describe it?9

Answer: Yes, they have a set of codes that they enter. Question: You didn’t enter the code? Answer: I did not enter the code.

* * * Question: And was the report created for your business, you r farm, coded a given cause number? Answer: Yes, it was. Question: What number was that? Answer: I think it was a number 12.

* * * Question: Okay. What does code 12, now that you’ve got the document, what does the code 12 say? Answer: Excessive heat.

* * * Question: Now, technically, what was the cost [sic] of the yield loss of the corn in 2012? Answer: Lack of water, irrigation water during poll ination was the technical
reason [...] that the corn did not make it. Thus, Stringer testified about statements he made to a third party concerning his low crop yield and that the third party g enerated a report indicating excessive heat as the

cause. String er’s testimony did not, however, indicate that he received any funds or payments from a collateral source as compensation for his losses

. See Kosaka v. Hook & Anchor Marine & Watersports, LLC , No. 03

- 11

- 00134

- CV, 2012 Tex. App. LEXIS 9487, at *7

- 8 (Tex. App.

— Austin Nov. 8, 2012, no pet.) (mem. op.) (holding that the collateral source rule was not violated where the defendant’s questions did not reveal the source10

of any funds available to compensate the plaintiff fo r his injuries)

. T herefore , we find that Stringer did not waive his objection to collateral source evidence.

D. The Collateral Source Rule Applies Next, DCP argues that the collateral source rule does not apply in this case because the rule does not apply to breach of contract claims

. 5 In support of its argument, DCP cites Travelers Indem. Co. v. Page & Assoc s

. Constr. Co ., No. 07

- 97

- 00338

- CV , 1998 Tex. App. LEXIS 6423 (Tex. App.

— Amarillo Oct. 15, 1998, pet. denied), reh’g overruled by

, 1998 Tex. App. LEXIS 7531 , at *2

- 3 (Tex. App.

— Amarillo Dec. 3, 1998)

. In Travelers , the plaintiff sued his liability insurer for breach of cont r act and extrac ontractual
tort claims , but the extracontractual claims were severed from the case before trial. Id. On rehearing , the plaintiff argued that the collateral source rule pr ecluded the defendant from receiving settlement credits for settlement funds paid to the plaintiff from its other insurers. Id

. In our opinion denying the plaintiff’s motion for rehearing, we held that that the collateral source rule did not apply because the o nly remaining claims were contractual. Id

. at *3.
Here, Stringer’s negligence and breach of contract claims were tried together

. Thus, even if the collateral source rule d oes not apply to breach of contract claims , the rule applied during the trial of St ringer’s unsevered negligence c auses of action

. Accordingly, we find that the collateral source rule was applicable at trial

.

5 Stringer sued DCP for negligence and breach of contract. We assume, arguendo, that DCP is asserting that S tringer cannot recover damages for his negligence claim because the jury apportioned more than 50% of the responsibility on Stringer for the crop losses. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . §§ 33.001, 33.003 (West 2015).11

E

. DCP D id Not Introduce C ollateral S ource Evidence DCP asserts that no evidence was admitted in violation of the collateral source rule because there was no testimony of benefits received by Stringer from a collateral

source. At trial, DCP asked Stringer the following about his “claim” and the l oss

s tatement :

DCP ’s Counsel: Let ’ s go now to exhibit

– or excuse me, to

– back to hot, dry winds. Now, hot, dry winds can lower a yield even if you’re watering properly, agreed? Answer: That’s correct. Question: And you agree DCP didn ’ t cause the hot, dry winds? Answer: I agree that DCP did not cause the hot, dry winds. Question: All right. But yet you made a claim that your reduction in the yield for corn on Section 198 in 2012 was due to excessive heat; isn ’ t that true? Answer: Yes. Question: Do you remember yesterday afternoon, when [your counsel] was

– had you reading from Defendant ’ s Exhibit Number 37? Answer: Yes, sir. Question: Would you take a look at Defendant ’ s Exhibit Number 37 again. Answer: Yes, sir. Question: I ’ m going to be refer ring to that document that y ’ all read from y esterday. A nswer: Yes, sir. Question: Let me ask this question

– I ’ ll be very careful. You filed a claim on Section 198 for a reduced yield for corn crops due to hot, dry winds, true? Answer: True.12

Question: And that claim for reduction in yield from hot, dry winds is separate from damages caused by DCP repairs

– repair on the pipeline, true? Answer: That would be correct, yes. Qu e stion : Now, keep looking at number 1

– Defendant ’ s Exhibit Number 37. That ’ s
– Section 198 is not the only farm for which you made a claim that you had a reduced yield for corn crops due to hot, dry winds; isn ’ t that true? Stringer’s Counsel : Objection, y our H onor. T rial Court : Sustained. DCP’s Counsel: All right. Did you have reduc ed yields on other farms in Moore County that summer, due to hot, dry winds? A nswer: That would be true. Q uestion : Okay. Let ’ s go through some of those

– look at Exhibit Number 37. Let ’ s go through some of those farms where you had reduced yield for corn due to hot, dry winds.

* * * Question: All right. So you had reduced yields due to the hot, dry summer for corn on farms where there had not been a pipeline repair during the preceding months? Answer: That ’ s correct. Although DCP questioned Stringer about his crop loss claim s, DCP did not ask whether he received any compensation for the losses from a third party and DCP did not offer the loss statement into evidence. Thus, there was no testimony or evidence of funds paid to Stringer from a collateral source for his crop losses

. See Kosaka , 2012 Tex. App. LEXIS 9487, at * 7

- 8 ; Walker v. Missouri P ac . R. R. Co ., 425 S.W.2d 462, 464 (Tex. Civ. App.

— Houston [14th Dist.] 1968, writ ref’d n.r.e.) (holding that the admission of a letter guaranteeing payment of the plaintiff’s medical bills did not violate the collateral source rule because the letter did no t evidence a collateral payment).13

Stringer contends , however, that DCP’s use of the term “cl aim” and phrase s “made a claim” or “filed a claim” implied that he received payment from a collateral source. We have found no authority to support t his argument. T he cases cited by Stringer per tain to the inadmissibility of evidence that a defendant is covered by liability insurance , not the collateral source rule

. See A tchison, Topeka & Sante Fe Ry. Co. v. Acosta , 435 S.W.2d 539, 549 (Tex. Civ. App.

— Houston [1st Dist.] 1968, writ ref’d n.r.e.) (“[I] t is reversible error to disclose to the jury that the defendant has liability insurance

. ”); William Cameron Co., Inc. v. Downing , 147 S.W.2d 963, 966 (Tex. Civ. App.

— El Paso 1941, no writ) (“[ T ] he fact that the defendant is protected by indemnity insurance against liability for damages may not d irectly or indirectly be injected into the case .”)

. S ee also T EX

. R. E VID

. 411 (evidence of liability insurance inadmissible).
Further, e ven if DCP’s use of the term “claim” and the phrase s “made a claim” or “filed a claim” constituted evidence that Stringer received funds from a collateral source, such evidence would be admissible to rebut Stringer’s position concerning the cause of his crop losses

. See Watkins v. Charter Oak Fire Ins. Co

. , 592 S.W.2d 50, 51 (Tex. Civ. App

. — Texarkana 1 979 , no writ )

.
Texas courts have allowed the use of collateral source evidence to rebut a plaintiff’s claims at trial as an exception to the rule

. For example, in Watkins , the plaintiff claimed he suffered a back injury while working for the defendant. Watkins , 592 S.W.2d
at 50. To show that the plaintiff had suffered the alleged injury prior to his employment , the defendant introduced hospital records showing that the plaintiff was receiving medi cal benefits from his prior employer for a back injury. Id . at 50

- 51. The appellate court held that the hospital records did not violate the collateral source rule because they did not14

reveal the amount of any benefits received by the plaintiff. Id

. Fu rther, t he court held that the records were admissible to rebut the plaintiff’s claims that he injured his back working for the defendant. Id

. Likewise, in Gothard v. Marr , the court of appeals held that the plaintiff’s proof of loss statements were admissible despite the plaintiff’s objection that they violated the collateral source rule. Gothard v. Marr , 581 S.W.2d 276, 281 (Tex. Civ. App.

— Waco 1979, no writ). There, the plaintiff claimed he injured his hip in a car accident with the defendant

. Id

. at 277. T he defendant introduced the proof of loss statements to s how that the plaintiff did not report his alleged hip injury to his “sickness and accident” insurer until months after the wreck

. Id

. at 281. The court of appeals held that the proof of loss statements did not violate the collateral source rule because they did not show any sums received by the plaintiff

. Id

. Furthermore, the statements were admissible to rebut plaintiff’s claims at trial. Id

.
In this case , St r inger claimed that DCP caused his low crop yield. To rebut t his claim, DCP questioned Stringer about the prior claim he made concerning the cause of his crop losse s in the excavated field and the cause of his crop losses in his other fields

. DCP did not ask Stringer whethe r he received any benefits as compensation for his crop losses. Moreover , e vidence that Stringer had previously attributed his crop losses to hot and dry weather was admissible to rebut St r inger’s position at trial that DCP caused the crop losses. See Watkins , 592 S.W.2d at 51.
Accordingly, the trial court did not admit any testimony in violation of the c ollateral source rule

. We, therefore, need not address the trial court’s further reasoning that the15

testimony p robably caused the rendition of an improper judgment. Because the record does not support the trial court’s ground for granting a new trial, the trial court abused its discretion.

F

. Stringer Was Not Improperly Impeached The trial court ’s second ground f or granting a new trial was that the l oss s tatement

“ was not a statement made or authorized by Blake Stringer or any agent of Blake Stringer, and was therefore not an admission against interest regarding which Blake Stringer could properly be impeached

. ”
A party may impeach a witness by questioning the witness about a prior inconsistent statement. T EX

. R. E VID

. 607, 613(a). The rules of evidence provide even

more latitude w he n the witness is an opposing party

. See T EX

. R. E VID

. 613(a)(5). Any
out
- of

- court statement made, adopted, or authorized by the opposing party may be offered against them as an exclusion to the hearsay rule. T EX

. R. E VID

. 801(e)(2)

. Thus, an opposing party’s statements need not be an admission or made against intere st to be admissible. T EX

. R. E VID

. 801(e)(2), C omment to the 2015 Restyling ( “Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no longer refer r ed to as

‘ admissions

. ’ [A] statement can be within the exclusion even if it ‘ admitted ’ nothing and was not against the party’s interest when made.”).
The trial court held, outside the presence of the jury, that the l oss s tatement was inadmissible before DCP cross

- examined Stringer. After the ruling, DCP showed the l oss

s tatement to Stringer and then questioned him about the claim he made concerning his crop losses

. DCP’s c ounsel used the phrase s “hot, dry winds” and “excessive heat”16

interchangeably when questioning Stringer. The l oss s tatement also used code number “12” to indicate “excessive heat ” as the cause of the loss. To the extent this is a st atement contained in the l oss s tatement, Stringer testified that he made the out

- of

- court statement. See T EX

. R. E VID

. 801(a) ( A statement is a “ person’s oral or written verbal expression.”). When DCP asked Stringer whether he “ made a claim ” that his crop losses were due to “excessive heat , ” Stringer answered “yes.” Therefore, the statement could be offered against Stringer as a prior inconsistent statement pursuant to Rule 613(a).

Because the rec ord does not reflect that DCP improperly impeached Stringer with the l oss s tatement , t he trial court abuse d its discretion by grant ing a new trial on this basis

.
C ONCLUSION Accordingly, we find the trial court abused its discretion in granting Stringer’s motion for new trial. Because DCP has no adequate remedy by appeal, we condi tionally grant its petition for writ of mandamus and direct the trial court to vacate its order granting a new trial

. 6 A writ of mandamus will issue only if the trial court fails to act in accordance with this opinion.

Patrick A. Pirtle Justice

6 We note that DCP filed a post

- v erdict motion to disregard certain jury findings. Because the trial court mooted that motion in its Order Granting New Trial , no ruling has been made as to that motion. We also order that the order mooting that motion be set aside and that, prior to the entry of judgment, the trial court shall also consider all post

- verdict motions.