Texas Supreme Court ends FY with more of the same

A RAFT OF OPINIONS WITH LITTLE FANFARE

Following its annual tradition, the Texas Supreme Court this morning emitted a gust of opinions just in time for the impending end of the Fiscal Year. All justices save two attached their names to opinions of the Court. In addition, Phil Johnson weighed in with a dissent to the Court's resolution of whether a hospital bed is a medical device for purposes of health care and/or premises liability, an issue that badly split the supreme appellate body to the tune of five (5) separate opinion. A rare scenario - if not a first - in recent high court history. As is true of many cases accepted for supreme court scrutiny, there was disagreement (on the nature of the defective bed that caused a patient's fall and injury) in the court below as well.

Only Justice Green was missing from the roll of distinguished opinion authors. Perhaps he is too busy planning his re-election strategy. As hypothesized previously, with some empirical data in tow, the need to hit the campaign trail may undermine judicial productivity (or at least provide a plausible excuse). Since they have already taken themselves out of their respective races, the electoral distraction does not apply to Justice Brister and Justice O'Neill, who have workaholic credentials in any event (at least by high court standards) and each penned a signed opinion on behalf of the Court. Brister also wrote a dissent.

The remainder of today's stack of opinions - long awaited after weeks of summerly lull - will make for interesting reading over the weekend, even if the case outcomes hold few if any surprises. Eleven opinions of the court delivered at once, not to mention concurrences and dissents, will tax the digestive capacity of any seasoned insta-pundit, not to mention the ordinary member of the attentive public or even regular court watcher.

Upon preliminary perusal, there is an intriguing e-discovery mandamus with an opinion by Justice O'Neill delving into how electronic discovery issues are handled in federal courts; an oil & gas contract construction case precipitated by a dispute over fugitive gas; two opinions addressing entitlement to attorney's fees (or absence thereof), at least one with reference to "the American Rule."

THE AMERICAN RULE - TEXAS STYLE

While we are on the seemingly patriotic topic of the "American Rule" (each party pays its own attorneys fees as opposed to the loser-pays principle favored by Europeans and other aliens), there is even more in the Court's fiscal-year-ending jurisprudence: We get learn the Court's view on the effect of a nonsuit when filed by a health care provider as plaintiff where the consumer/defendant had filed a counterclaim before the trial court had signed the dimissal order. The Court's unsurprising resolution of that case makes for a nice complement to the cases in which members of the Court went out of their way to make sure a prevailing health care defendant gets to collect attorneys fees from the patient-plaintiff as a sanction - dead or alive - even if the med-mal suit merely failed for procedural reasons, such as a missed deadline for filing the requisite expert report.

Did anyone suggest that there is a tad of a double standard? Not to mention - shall we say - preferential treatment of certain types of litigants - like Defendants? What a crude insinuation! Here, after all, one of the usual suspects appeared as the Plaintiff! The Court's critics better offer a more refined analysis of disposition patterns. After all, it's true: Plaintiff s don't always lose in the Texas Supreme Court -- especially not when they seek collection of a debt from a consumer. To all appearances, what matters is who you are - what category of litigant - not whether you are plaintiff or defendant, appellant or respondent. Sure, different statutory and nonstatutory considerations may be invoked, but those are malleable. And if the precedents don't fit, we can always change them. Then cite the new ready-made precedent in the next case down the road as authority. Indeed, there are a couple of those in today's offering.

WHO WON AND WHO LOST?

On that score, the usual beneficiaries of Supreme Court jurisprudential largess - governmental defendants and corporations - did well.

No surprises here.

Two more whistleblowers got skinned in the name of Lueck, their equally hapless predecessor on the Court's public employment/governmental entity docket. Since the Court set new precedent in TxDOT v. Lueck for jurisdictional dismissal of WBA claims on the pleadings, these other Whistleblower appeals could be swiftly disposed of in brief per curiams. And so they were.

Another public employment dispute - also resolved in favor of the governmental entity of course - concerned a municipal officer's disciplinary proceeding. Justice Hecht penned the opinion, and managed to explain with with less than 55 footnotes why the City was right in arguing that the hearing examiner had exceeded his authority when ordering reinstatement. No real surprise here either, leaving aside the footnote meter.

DISMISSAL FOR LACK OF EXHAUSTION & WANT OF JURISDICTON

- not to mention - WANT OF COMPASSION

Lastly, there is a worker's comp appeal (aka judicial review suit). Those pesky malingeres! They can't even get their paperwork right and exhaust their administrative remedies. We need to send a message here: Case dismissed. Compassion is for the comp carriers that are tardy in processing and disputing claims. No wonder they have such a hard time keeping up and denying claims. There are so many of them. Plus, they have to deal with these pesky claimants all day long.)

Dismissed for lack of jurisdiction!

Of course.

No jurisdiction. No need to entertain the merits of any claim, pain, or request for a judicial remedy.

Hand me that plea. And we will be done.

The jurisdiction, the jurisdiction, that's the thing .... that won't ever trouble the conscience of the King.


LAST INSTALMENT OF TEX. SUP. CT. OPINIONS FOR THE CURRENT FISCAL YEAR:

City of Pasadena, TX v. Smith, No. 06-0948 (Tex. Aug. 28, 2009)(Hecht) (disciplinary appeal, authority of hearing examiner, police officer, UDJA and jurisdictional issues) CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, 263 SW3d 80, 09-14-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.

Dynegy Midstream Services, LP v. Versado Gas Processors, LLC, No. 07-0043 (Tex. Aug. 28, 2009)(Willett) (oil and gas law litigation, gas lost in transit, construction of contract re: sale, delivery) DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v. APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06) 2 petitions The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Willett delivered the opinion of the Court.

TDHHS v. Okoli, No. 07-0642 (Tex. Aug. 28, 2009)(per curiam)(WBA case decided per Lueck) TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES v. OLIVER OKOLI; from Harris County; 1st district (01-07-00103-CV, 263 SW3d 275, 06-28-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands

Marks v. St. Luke's Episcopal Hospital, No. 07-0783 (Tex. Aug. 28, 2009)(Medina)
(injury caused to patient by defective hospital bed, what type of PI claim? medical health care liability or premises liability?) IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, and Justice Green joined. Chief Justice Jefferson delivered a concurring opinion. Justice Hecht delivered a dissenting opinion. Justice Wainwright delivered a dissenting opinion. Justice Johnson delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Willett joined.

Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett) (prevailing party for attorney fees purposes) INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County; 13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07)The Court reverses the court of appeals' judgment and renders judgment.Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Green, and Justice Johnson joined. [pdf]Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice Medina joined.

TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam) (Whistleblower Act claim, allegation of report of violation of law jurisdictional) TEXAS DEPARTMENT OF TRANSPORTATION v. SERGIO GARCIA; from Cameron County; 13th district (13-07-00004-CV, 243 SW3d 759, 11-01-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion

State Office of Risk Management v. Lawton, No. 08-0363 (Tex. Aug. 28, 2009)(Jefferson) (workers comp claim; deadline for contesting compensability) STATE OFFICE OF RISK MANAGEMENT v. MARY LAWTON; from Brazos County; 10th district (10-07-00072-CV, 256 SW3d 436, 04-16-08)The Court reverses the court of appeals' judgment and remands the case to the trial court.Chief Justice Jefferson delivered the opinion of the Court. View Electronic Briefs

MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009)(Brister)(what constitutes nominal damages?, recovery of damages as prerequisite for recovery of attorneys' fees) MBM FINANCIAL CORPORATION, ET AL. v. THE WOODLANDS OPERATING COMPANY, L.P.; from Montgomery County; 9th district (09-07-00060-CV, 251 SW3d 174, 04-10-08)2 petitionsThe Court reverses the court of appeals' judgment and renders judgment.Justice Brister delivered the opinion of the Court. (Justice O'Neill not sitting)

In Re Liberty Mutual Fire Ins. Co., No. 08-0742 (Tex. Aug. 28, 2009)(per curiam) (worker's comp, exhaustion of administrative remedies) IN RE LIBERTY MUTUAL FIRE INSURANCE COMPANY; from Nueces County; 13th district (13-08-00129-CV, ___ SW3d ___, 08-07-08)Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam) (effect of misnomer, nonsuit and counterclaim) IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County; 3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08)stay order issued October 17, 2008, liftedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion

In Re Weekley Homes, LP. No. 08-0836 (Tex. Aug. 28, 2009)(O'Neill)(discovery mandamus, order to facilitate recovery of deleted emails from computer) IN RE WEEKLEY HOMES, L.P.; from Dallas County; 5th district (05-08-01249-CV, ___ SW3d ___, 09-24-08) The Court conditionally grants the petition for writ of mandamus.Justice O'Neill delivered the opinion of the Court.

Justice Harriet O'Neill's Parting Shots

IN A DIFFERENT VOICE

Justice O'Neill's recent announcement that she will not seek re-election in 2010 adds something of a parting-shot quality to her vigorous dissent to the Court's disrespect for precedent and for trial courts' traditional discretion in deciding whether or not to grant a new trial in the interest of justice. In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (trial court judge ordered to state specific reason(s) for disregarding jury verdict and granting new trial; 'in the interest of justice' is no longer acceptable)

This is also the case in the which the attorney for the wrongful-death plaintiffs filed a motion to recuse four of the nine justices for the empirically documented proclivity of the court to favor tort defendants. The denial of the motion impugning the Supremes' [much-questioned] impartiality did not come as a great surprise. A blog post on Tex Parte - the Texas Lawyer Blog - summed it up succinctly: We don't need no stinkin' recusal.

QUITTING WITH ADVANCE NOTICE TO LET THE DEMOCRATIC PROCESS RUN ITS COURSE

Upon her announcement that she will step down, The Great Dissenter and only female member of the current Texas Supreme Court should be commended for her courage to stand up, speak her mind, and try to rein in (albeit unsuccessfully) a majority of her colleagues' power grab via mandamus-exhancement, and concomitant micro-management of the trial judges below.

Ironically the majority tries to justify its precedent-jettisoning decision with reference to the public's confidence in the judiciary. O'Neill's well-argued dissent deserves far greater public attention than it has so far received. And so does the empirical evidence of supreme pro-defendant bias cited to in the doomed motion to recuse in the case, which is at the core of the informed public's lack of confidence in the Court.

Hopefully Justice O'Neill's bold jurisprudence in dissent will add to the public debate over the legal and political role of the Texas Supreme Court and the wisdom of the Chief's idea to end the current judicial selection system and replace it with one that puts constraints on the role of the voters. If O'Neill serves out her term, her seat will be filled through the competitive electoral process in an open-seat race. Several would-be contenders are already entering the fray, or reported to be considering a run.

Both the Republican primary voters, and the general electorate, will thus get a chance to consider a choice of candidates and make a decision democratically, rather than a successor being hand-picked by the Gov. and bestowed with incumbency and fund-raising advantage just in time for election campaign season.

TEXT O'NEILL'S DISSENTING OPINION IN In Re Columbia Medical Center of Las Colinas, Subsidiary L.P., et al. (Tex. 2009) follows:

Justice O’Neill, joined by Chief Justice Jefferson, Justice Medina, and Justice Green, dissenting.

I agree that trial courts should not set aside jury verdicts without valid reasons. And I might agree that a change in the procedural rules to require trial judges to state good cause more particularly than “in the interests of justice and fairness” would be well advised, though the Legislature has only seen fit to impose such a requirement in criminal cases.

But declaring such a rule by judicial fiat on interlocutory review, and issuing mandamus relief against the trial court for not following it, turns our mandamus jurisprudence on its head. The Court recites that “exceptional circumstances” justify mandamus relief when the trial court shows “such disregard for guiding principles of law that the harm . . . is irreparable.” ___ S.W.3d ___, ___ (internal quotations omitted). Yet this case presents neither exceptional circumstances nor a departure from controlling law, as the trial court followed one of our most well-established legal principles.

We have long held, unequivocally, that a trial court may grant a new trial “in the interests of justice and fairness,”1 and trial and appellate courts have taken us at our word.2 The Court simply changes the rule and jettisons the law upon which the trial court relied. After today, I see no principled basis for denying mandamus review of any potentially dispositive but unexplained interlocutory ruling.

The Court’s premise is simple enough and, on first glance, compelling: public confidence in the judicial system will be enhanced if trial courts explain the reasons for their rulings. This premise, though, would surely apply with equal force to any number of interlocutory rulings, such as why the court impaneled jurors who were challenged for cause, granted or denied a motion for summary judgment, allowed or disallowed particular discovery, exercised its gatekeeping function as it did with regard to a key expert witness, or admitted or excluded potentially dispositive evidence. A trial court’s ruling on matters like these, if wrong, could ultimately lead to reversal on appeal and necessitate the expense and delay of a new trial. Yet we have never justified interlocutory review of such decisions on the trial court’s failure to expound its reasoning.

Unlike many other jurisdictions, Texas has no statutory or procedural rule that requires a trial court to further explain its ruling on a new trial motion or that permits interlocutory review of that decision, presumably because the benefits of a relatively prompt retrial if the judge perceives unfairness in the proceedings outweigh the detriments of prolonging final judgment pending interlocutory appellate review. After all, this case has been on review for over four and one half years since the new trial was granted.

The Court purports to justify its misadventure on the principle that trial courts may not substitute their judgment for that of the jury. While undoubtedly true, it is equally true that an appellate court may not substitute its discretion for that of the trial court, which is charged with ensuring the fairness of the proceedings and safeguarding the integrity of the judicial process.

Because trial courts are in a unique position to observe the proceedings and participants firsthand, we have afforded them broad discretion in assessing whether “in the interests of justice and fairness” a new trial is warranted. If abuse of the privilege that such broad discretion affords is a concern, then Rule 320 should be amended to mirror the federal requirement that a court “specify the reasons in its order.” Fed. R. Civ. P. 59(d). Until then, no jurisprudential imperative compels us to overturn more than a century of clear precedent and erode the broad discretion we have traditionally afforded trial courts in granting new trials when they perceive good cause to do so. Because the Court ventures far beyond the boundaries of our mandamus jurisprudence, I respectfully dissent.

I. Background

Donald Creech, Jr. was admitted to Columbia Medical Center for difficulties with kidney stones. While at the hospital, he received the pain medication Dilaudid, a narcotic, intravenously. When he increasingly complained of severe pain, the licensed vocational nurse (LVN) attending to Donald increased the amount and frequency of his doses. Several hours after his largest dose, Donald died. Donald’s widow, Wendy Creech, brought this suit, alleging that the hospital staff violated the standard of care in administering such a large amount of Dilaudid to Donald when he suffered from sleep apnea. She alleges that the medication, a respiratory depressant, interacted with Donald’s sleep apnea to cause his death by asphyxiation.

After a four-week trial, the jury returned a verdict in favor of all defendants. Wendy moved for a new trial, arguing that the evidence conclusively proved the defendants’ negligence, the verdict was against the great weight and preponderance of the evidence, the verdict was manifestly unjust and conflicted with evidence that established Columbia’s negligence as a matter of law, and a new trial was warranted in the interests of justice and fairness. The motion contained twenty-eight evidentiary points, including a challenge to the reliability of Columbia’s expert testimony. The trial court, “in the interests of justice and fairness,” granted the motion as to the LVN, her supervising registered nurse, and Columbia in its capacity as their employer (collectively, “Columbia”), presumably on the grounds urged in the new trial motion. The court entered judgment in favor of all other defendants3 in accordance with the verdict. Relying on our precedent, the court of appeals held that the trial court’s explanation for granting the new trial was sufficient. ___ S.W.3d ___. Under our well-established jurisprudence, it clearly was.

II. Standard of Review

Trial courts have always been afforded broad discretion in the granting of new trials, and may exercise such discretion “in the interests of justice and fairness” without stating any other reason. See Champion Int’l Corp., 762 S.W.2d at 899; Johnson, 700 S.W.2d at 918. Over a century ago, this Court emphasized the point:

In ordinary cases the judge has a discretion to grant a new trial whenever, in his opinion, wrong and injustice have been done by the verdict; and it is upon this ground that courts have refused to interfere to revise the granting of new trials.

Goss, 17 Tex. at 115. In this case, the trial court did precisely what we have long said it could. Yet the Court concludes the trial court abused its discretion in not stating a more specific reason for its ruling, creating new law on mandamus and overturning a long line of precedent in the process.

The Court points to a number of jurisdictions that require a trial court to articulate the reason when granting a new trial sua sponte. In this case, though, the trial court did not rule sua sponte but granted the plaintiff’s motion for new trial, presumably for the reasons that the plaintiff explained. Although one of the plaintiff’s new trial grounds cited “the interests of justice and fairness,” another challenged the verdict based on “the great weight and preponderance of the evidence,” a ground we have no jurisdiction to review. We do not know whether the trial court’s “in the interests of justice and fairness” ruling was based on perceived unfairness in the proceedings, on factual insufficiency of the evidence to support the jury’s verdict, or on both. For this reason alone, we should deny mandamus relief. But even if the trial court had acted sua sponte, the rule in nearly all jurisdictions that require an explanation is codified in a statute or procedural rule.4 In none of the remaining jurisdictions was the rule promulgated on mandamus or its equivalent, and for good reason.

First, to warrant mandamus relief the trial court must have committed a “clear abuse of discretion,” which we have defined to include failure to apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). Because the trial court here did exactly what we have clearly said it could, the trial court can hardly be said to have abused that discretion. Second, our Legislature is well aware that trial courts may grant new trials “in the interests of justice and fairness” and has not seen fit to change the law. The Legislature did decide to allow interlocutory review of new trial orders in criminal proceedings, but declined to extend such review to the civil arena. See Tex. Code. Crim. Proc. art. 44.01(a)(3). In civil cases, our procedural rules expressly permit a trial court to grant a new trial on its own motion for any good cause. Tex. R. Civ. P. 320. Presuming, as the Court does, that a change in procedure is warranted, it would be far more appropriate to effect that change by amending the rules rather than implementing new law on mandamus.

Even if mandamus were an appropriate vehicle to overturn precedent, there is no cause to do so here. There is a “strong presumption” against overruling our precedent. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979). Absent compelling reasons, courts should avoid overturning established law because “the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process;” without adherence to precedent, no question of law would ever be considered resolved. Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995). Compelling reasons to overturn precedent may exist in limited circumstances, such as when the preceding decision itself was incorrect or unconstitutional, there is conflicting precedent, the decision has been undercut by the passage of time, the precedent created inconsistency and confusion, or the decision consistently creates unjust results. See Hammock v. State, 46 S.W.3d 889, 892–93 (Tex. Crim. App. 2001); see also Bowman Biscuit Co. v. Hines, 251 S.W.2d 153, 155 (Tex. 1952) (Garwood, J., dissenting). None of these circumstances are presented here. The well-established principle that a trial court does not abuse its discretion by ordering a new trial “in the interests of justice and fairness” is clear, we have followed it as recently as 2000, see In re Bayerische Motoren Werke, AG, 8 S.W.3d 326; In re Volkswagen, 22 S.W.3d 462, and there is no conflicting precedent over the course of the 150 years it has been in place. Our precedent is not unconstitutional, as I will later explain, nor was it incorrect in the first instance.

In sum, none of the factors we have considered in those rare instances when we have found it necessary to overrule precedent exist in this case.

Although the Court purports to rely on good policy in support of its new rule, there are also good reasons why a trial court’s failure to provide a more specific explanation does not warrant extraordinary relief. For example, it would likely be fundamentally unjust to uphold a verdict when jurors have been inattentive or their perceptions impaired, but our procedural and evidentiary rules only contemplate the development of an evidentiary record when outside influence has been asserted. See Tex. R. Civ. P. 327; Tex. R. Evid. 606(b). In Tanner v. United States, the jury was allegedly under the influence of alcohol and drugs, including marijuana and cocaine, for much of the trial. 483 U.S. 107, 115–16 (1987). That evidence was inadmissible under Federal Rule of Civil Procedure 606(b), which is almost identical to Texas Rule of Civil Procedure 606(b). Id. at 125. Under the Court’s decision today, it is not clear how extended the trial court’s explanation for a new trial in similar circumstances would have to be, nor is it clear what a reviewing court should do with that information. For the Court’s rule to have meaning, the trial judge would likely need to identify which jurors were impaired, how much so, and when, all without the ability to develop an evidentiary record. The party challenging the new trial order would surely counter that the jury was not impaired, or at least not so impaired as to taint the verdict. It is unclear how an appellate court could effectively review such an order, or whether such a reason, though probably “good cause” to order a new trial under Rule 320, would be sufficient to survive mandamus review.

The procedural history of this case aptly demonstrates another reason why extraordinary relief is not warranted for the trial court’s failure to provide a more specific explanation. During the pendency of this Court’s review, the trial judge who ordered a new trial, the Honorable Merrill Hartman, left office and a new judge succeeded him. We abated the original proceeding to allow the successor judge to reconsider Judge Hartman’s ruling. See Tex. R. App. P. 7.2(b). The new judge did so, and reaffirmed Judge Hartman’s order. The Court today sends the case back to the successor judge to specify the reasons why a new trial was granted. To the extent the successor judge is able to make an independent assessment based on the record, this may be feasible. But if Judge Hartman based his decision in whole or in part on unfairness that he perceived during the proceedings, which until today he was not required to articulate on the record, then the successor judge is faced with an impossible task. In such a circumstance, changing the rules in midstream produces a substantial injustice. And if the successor judge reviews the transcript of the proceedings and reaffirms the new trial order because the jury’s verdict was against the great weight and preponderance of the evidence, the Court today opens the door to interlocutory evidentiary review of that decision which heretofore has only been afforded on appeal from a final judgment. See Champion Int’l Corp., 762 S.W.2d at 899; Johnson v. Court of Civil Appeals for the Seventh Supreme Judicial Dist., 350 S.W.2d 330, 331 (Tex. 1961).

The Court purports to preserve the discretion traditionally afforded trial courts in issuing new trial orders, but the practical effect of its decision will be more frequent appellate intervention and delay. See Johnson, 700 S.W.2d at 918; see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). Moreover, without the vetting that the Court’s rule-making process would afford, the parameters for reviewing the trial court’s explanation are murky at best. For example, the rules contemplate a trial court’s discretion to grant a new trial for “good cause” based on “insufficiency or weight of the evidence.” See Tex. R. Civ. P. 320, 326. Will a judge’s statement that a new trial is ordered “because of insufficiency or weight of the evidence” satisfy the court’s requirement? Tex. R. Civ. P. 326. Or must the trial judge, like an appellate court, review the entire record and expend its resources “detail[ing] the evidence relevant to the issue in consideration and clearly stat[ing] why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias?” Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). If upon reflection the judge believes that a particular witness should not have been allowed to testify, or a piece of evidence should not have come in, or a requested instruction should have been included in the charge, are those reasons subject to interlocutory review before a new trial may proceed? If the appellate court considers an articulated reason invalid, will the case go back down for the judge to consider alternative grounds that were urged in support of the new trial motion? And if a new trial is granted based upon the judge’s personal observations, to what extent may those observations be tested? Is it sufficient for the judge to explain that the jury was generally inattentive, or must the judge identify the particular jurors and allow the making of a record for purposes of challenging the judge’s perception?

Such micromanagement of the trial process diminishes the important role trial courts play in making decisions with the benefit of observing firsthand the demeanor of the witnesses, parties, attorneys, and jurors, and any other aspect of the trial that may not be reflected on a cold record. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006)). The discretion afforded trial courts is particularly broad in the area of jury management. For example, we have frequently stated that trial courts have “wide latitude” in conducting voir dire proceedings and determining whether a juror is impartial. Id. We have noted that an interpretation of juror behavior “turns on the courtroom context, and perhaps the looks on their faces.” Hyundai, 189 S.W.3d at 755. Given the trial court’s observational advantage, it is in a better position than a reviewing court to discern whether the parties received the fair trial that our laws guarantee, which is why we have long said “[a]n appellate court may not substitute its discretion for that of the trial court.” Johnson, 700 S.W.2d at 918.

Although acknowledging that orders granting new trials are rare, Columbia warns that without careful interlocutory scrutiny judges will be free to substitute their opinions for those of the jury. Even accepting the premise that some stray trial courts may intentionally abuse their discretion in this regard, I doubt that requiring wayward courts to explain their decisions will bring them back into the fold; a judge intent on granting a new trial without good cause can surely construct a plausible reason capable of withstanding appellate scrutiny. While I agree that trial courts should, when feasible, explain to the parties why a new trial is being granted, imposing such a requirement threatens to impede the conscientious trial judge’s ability to correct errors or unfairness that may have occurred in the proceedings, and ultimately result in fruitless expense and delay.

III. Columbia’s Constitutional Challenge

Columbia contends our precedents allowing trial courts to grant new trials “in the interests of justice and fairness,” without further explanation, violate federal and state constitutional guarantees of due process and the state constitutional guarantee of trial by jury. Specifically, Columbia claims the lack of meaningful appellate review of new trial orders violates substantive and procedural federal constitutional rights to due process and state constitutional rights to due course of law.5 See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. According to Columbia, its substantive due-process rights are violated because it is deprived of its property, the jury verdict, in an arbitrary and capricious manner, see Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 215, 225 (1985), and its procedural due-process rights are violated because it did not have the opportunity to contest the new trial order at a hearing on appeal, see Mathews v. Eldridge, 424 U.S. 319, 333 (1976). These alleged constitutional violations, Columbia argues, would be cured by effective appellate review of new trial orders.

Neither type of due-process right that Columbia describes is implicated unless a party is deprived of a protected property or liberty interest. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Mathews, 424 U.S. at 332. Columbia claims deprivation of a property interest, which is only constitutionally protected if the right is independently guaranteed by state or federal law. Leis v. Flynt, 439 U.S. 438, 441–42 (1979). Columbia does not argue that any federal statute or the common law creates a property right in a particular jury verdict, and we have held that “[n]o party to a civil action has a constitutional right of appeal from an order of the trial court granting a new trial.” Plummer v. Van Arsdell, 299 S.W. 869, 870 (Tex. 1927). Under Texas law, although there is a property interest in a legal claim or contractual right, Tex. Prop. Code § 111.004(12), there is no property interest in a particular non-final judgment, Burroughs v. Leslie, 620 S.W.2d 643, 644 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.). Furthermore, the Supreme Court has held that no property rights are implicated when a trial court makes a decision that is discretionary under state law, even if the trial court provides no reasoning for its decision. Leis, 439 U.S. at 442–44. Because Columbia was not deprived of any protected property interest when the trial court issued its new trial order, Columbia’s due-process and due-course-of-law rights are not implicated.

Columbia further asserts that allowing trial courts to issue new trial orders without appellate review deprives it of its state constitutional right to trial by jury. See Tex. Const. art. I, § 15, art. V, § 10. I agree that the Texas Constitution guarantees Columbia a right to a trial by jury in this health care liability case. But new trial orders, even if shielded from interlocutory review, do not infringe on that right. We upheld the constitutionality of such orders in Plummer, and I see no reason to revisit the question here. 299 S.W. at 870. Columbia has had a trial by jury and will have another; it does not have a constitutional right to a particular jury or a particular jury verdict. Indeed, the discretion afforded a trial court in granting new trials does not deprive parties of the right to a fair trial by jury; to the contrary, it helps to guarantee that right when circumstances of the first trial were unjust or unfair to one of the parties. See Hon. Scott Brister, The Decline in Jury Trials: What Would Wal-Mart Do?, 47 S. Tex. L. Rev. 191, 221 (2005) (“If the first jury was correct, then a second can confirm it.”). Given that the merits of Creech’s claims and Columbia’s defenses will ultimately be decided by a jury, Columbia has not been deprived of its right to a trial by jury.

IV. Conclusion

This case does not present exceptional circumstances to warrant overturning clear and longstanding precedent on mandamus review. Because the Court concludes otherwise, I respectfully dissent.
___________________________________
Harriet O’Neill
Justice

OPINION DELIVERED: July 3, 2009

[footnotes omitted]

See full text of O'Neill's dissenting opinion in pdf html version on the Supreme Court's web site.

RELATED SEARCH TERMS: TEXAS SUPREME COURT PRO-DEFENDANT PRO-BUSINESS ANTI-CONSUMER AND PERSONAL INJURY TORT-PLAINTIFF BIAS, DECISIONMAKING PATTERNS, WHO, WHICH CLASS OF LITIGANTS PLAINTIFFS DEFENDANTS DOES THE TEX. SUPREME COURT FAVOR? MOTION TO RECUSE RECUSAL CASES AND CASELAW

Deficient Proof of (DTPA) Damages in Post-Answer Default Judgment Hearing Requires Remand, Texas Supreme Court Says

Evidence of damages caused by defective roof work was defective enough to require reversal of default judgment in DTPA suit against contractor

Bennett v. McDaniel (Tex. 2009)

In the wake of another recent reversal of a post-answer default judgment, the defendant-friendly Texas Supreme Court agrees with the court of appeals that proof of damages in a consumer complaint against a roofing contractor was insufficient, thus requiring reversal, but disagrees that the plaintiffs should take nothing via rendition of judgment in the contractor's favor on appeal.

Instead, the High Court requires remand to the trial court, thus affording both the defendant and the plaintiffs a second chance to litigate their dispute on the merits of the facts.

Supreme moderation at its best.

A nagging question: How should the empirically-inclined court watchers (be they social scientific bean counters or plaintiff's bar partisans looking for even more stats to validate the court's bias against common folk) code this case in terms of outcome? 50% for the Defense or 50% for the Offense? Half-win for biz; Half-loss for consumers? Not to mention that the Defendant is not of the corporate kind in this case and qualifies as average Joe too, doing business in his own name or dba (his status is not entirely clear since he also has or had an inc. appended to his name).

The Court's per curiam opinion - the sole jurisprudential offering over the course of several weeks - is succinct enough to merit posting in toto.

Here we go:

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Bennett v. McDaniel (Tex. 2009)(per curiam)
══════════════════════════════════════════

PER CURIAM

In this restricted appeal of a post-answer default judgment, the court of appeals held that the plaintiffs presented legally insufficient evidence of damages and rendered a take-nothing judgment. ___ S.W.3d at ___. We agree that the damages evidence was legally insufficient, but the court of appeals’ disposition was improper under our recent opinion in Dolgencorp v. Lerma, ___ S.W.3d at ___. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court.

Benny and Mary Bennett sued Richard McDaniel alleging that McDaniel had damaged the roof of their home, which the Bennetts had hired him to repair. McDaniel filed an answer denying their allegations, but did not appear when the case was called for trial. At trial, Mary Bennett testified that she received an estimate to repair the roof in the amount of “approximately 72 or $7300.00,” and that she incurred “actual damages of $7500.00 to repair this roof.” The estimate, however, does not appear in the record. The trial court rendered a default judgment in favor of the Bennetts for $7,500 in actual damages, $10,000 in punitive damages, and $1,500 in attorney’s fees.

It is unclear whether the estimate that Mary Bennett referred to was submitted to the trial court and omitted from the appellate record, or whether it was not submitted at all. In either case, we disagree with the court of appeals’ statement that “an estimate without the testimony of the person who created the estimate or other expert testimony is no evidence of the necessity of the repair or the reasonableness of the cost of the repair.” ___S.W.3d___. Such evidence might ordinarily be properly excluded as hearsay, but no hearsay objection was lodged in this case. The record indicates, however, that Mary Bennett merely stated an estimated price and did not testify that the estimate was reasonable. For this reason, we agree with the court of appeals that the Bennetts did not present legally sufficient evidence of damages.

While this petition was pending, we held in Dolgencorp, ___S.W.3d ___, that when the evidence is legally insufficient to support a post-answer default judgment the proper disposition is to remand for a new trial. Accordingly, we grant the Bennetts’ petition for review and, without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and remand this case to the trial court for a new trial.

OPINION DELIVERED: August 21, 2009

BENNY BENNETT AND WIFE, MARY BENNETT v. RICHARD MCDANIEL, INDIVIDUALLY AND D/B/A RICHARD MCDANIEL, INC., D/B/A B.R. ROOFING, A/K/A B&R ROOFING; from Wheeler County; 7th district (07-06-00250-CV, ___ SW3d ___, 04-30-08) (post-answer default judgment, testimony on damages insufficient to support the judgment; default judgment reversed)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court.
Per Curiam Opinion
Links to available online e-briefs for this case (PDF)