Monday, September 1, 2008

NO MANDAMUS (for now): Supremes put case on hold for Judge Jim Jordan - Democratic would-be Chief Justice of the Texas Supreme Court

In this mandamus proceeding involving a dispute about whether a motion for new trial following a jury verdict was properly granted / ungranted in the trial court, a majority of the Texas Supreme Court decides to abate the case to let the new trial judge, who also happens to be Chief Justice Jefferson's opponent in the Nov. 2008 judicial elections, revisit the orders rendered by his predecessor(s) on the Dallas district court bench. Justice Phil Johnson, who also has a date with the voters coming up, wrote a separate opinion, advocating that the post-trial procedural conundrum presented by this case (and others) be addressed through the exercise of the Court's rulemaking power.

In re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Aug. 29, 2008)(Brister)("[W]e overrule Porter v. Vick, and abate this case for Judge Jordan to reconsider whether to enter judgment on the jury verdict or to grant a new trial.")

IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district(05-05-01663-CV, ___ SW3d ___, 01-04-06) abatement order issued, stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. [excerpt follows below]

The Court is remanding for the third judge to consider whether a new trial is appropriate or whether judgment should be entered on the verdict. When a new trial has been granted and a new judge takes over the case for any reason, why would the party who prevailed during the first trial not move for judgment to be entered on the result of the trial under today’s decision? And this rule may also entail political consideration for judges who have granted new trials. Further, under the Court’s construct, a trial court theoretically has the power to grant more than one new trial and then pick the verdict or result the judge prefers. There needs to be some cutoff beyond which the parties and the trial court can proceed to the new trial without having the spectre of the prior verdict and judgment hanging over them. That can be, and in my view should be, done by rule.I would follow Porter and would not remand for the current judge to reconsider the order granting a new trial. I would hold that the trial court’s plenary power to vacate the order has expired and to remand would be useless. I would address the issues of whether Baylor is entitled to mandamus review, and if so, whether it is entitled to relief.

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