Specifically, during closing argument, [Toyota] read from the [d]eposition of witness Justin Coon concerning his lay opinion, and conclusion that Mr. King was not wearing a seat belt at the time of the commencement of the rollover. The Court had previously excluded these lay opinions and conclusory remarks by witness Coon on the grounds that they were not based on his personal knowledge and were, therefore, conclusory and incompetent to be presented to the jury and because witness Coon did not have the requisite training, education, schooling, or experience to opine whether or not Mr. King had been belted at the start of the rollover.
The court thus granted a new trial "in the interest of justice."
Second, the trial court reasoned that a new trial was warranted to sanction Toyota for violating the limine order, because a limiting instruction could not eliminate the harm. See Tex. R. Civ. P. 320 ("New trials may be granted and judgment set aside for good cause, on motion or on the court’s own motion on such terms as the court shall direct.").
2. Court of Appeals
Toyota sought a writ of mandamus from the court of appeals, which denied relief. 327 S.W.3d 302. The court evaluated the trial court’s order in light of In re Columbia. The court of appeals recognized that after Columbia, a new trial order must include the basis for the trial court’s decision. Id. at 305. But after considering the trial court’s order—reproduced in its entirety in the court of appeals’ opinion—the court concluded that "there is no question that the trial court . . . specified the reasons for its decision to grant the Kings’ motion [for new trial], and thereby satisfied the specificity requirements of Columbia." Id. (emphasis added). The court of appeals rejected the notion that "Columbia supports further review of the merits of the grounds specified, " and was "unpersuaded that the language Toyota relie[d] upon [in requesting mandamus relief] supports such an expansion of Columbia." Id. at 305-06 (emphasis added).
3. This Court
Toyota then filed an original proceeding in this Court.[5] We set the matter for argument, 55 Tex. Sup. Ct. J. 1212 (Tex. Aug. 31, 2012), and now conditionally grant relief.
II. Discussion
A. An appellate court may conduct merits-based mandamus review of a trial court’s articulated reasons for granting new trial.
In the decades leading up to Columbia, our jurisprudence gave trial courts broad deference in granting new trials and, specifically, "approved the practice of trial courts failing to specify reasons for setting aside jury verdicts." Columbia, 290 S.W.3d at 208. We generally precluded review of new trial orders, except in two narrow instances. Id.; see also Johnson v. Court of Civil Appeals, 350 S.W.2d 330, 331 (Tex. 1961) (recognizing that "[t]here are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial": when the order was void or when the trial court erroneously concluded that the jury’s answers to special issues conflicted irreconcilably).
But in Columbia, we emphasized that the discretion given trial courts was "not limitless." Columbia, 290 S.W.3d at 210. In that case, the jury returned a verdict in favor of the hospital-defendants after a four-week trial. Id. at 206. The trial judge granted the plaintiffs’ new trial motion "in the interests of justice and fairness, " without further elaboration. Id. We held that this was inadequate, noting that "such a vague explanation [whe]n setting aside a jury verdict does not enhance respect for the judiciary or the rule of law, detracts from transparency we strive to achieve in our legal system, and does not sufficiently respect the reasonable expectations of parties and the public when a lawsuit is tried to a jury." Id. at 213.
We disapproved of our prior approach under Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985), and held that "just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than ‘in the interest of justice’ for setting aside a jury verdict." Columbia, 290 S.W.3d at 205. We held that "the parties and public are entitled to an understandable, reasonably specific explanation [of] why their expectations are frustrated by a jury verdict being disregarded or set aside, the trial process being nullified, and the case having to be retried." Id. at 213 (emphasis added). We did not detail exactly what such an explanation would require, although it would have to be more than a bare assertion of "in the interests of justice and fairness." Id.
More recently, we decided In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), which presented a related, but narrower, question. There, we were asked to decide whether a trial court that gave four reasons for granting a new trial, including "in the interest of justice and fairness, " and linked them by "and/or" satisfied Columbia. Id. at 689.
In concluding that it did not, we noted that Columbia’s purpose "w[ould] be satisfied so long as the order provides a cogent and reasonably specific explanation of the reasoning that led the court to conclude that a new trial was warranted." Id. at 688 (emphases added). We acknowledged that Columbia focused "not on the length or detail of the reasons a trial court gives, but on how well those reasons serve the general purpose of assuring the parties that the jury’s decision was set aside only after careful thought and for valid reasons." Id. at 688 (citing Columbia, 290 S.W.3d at 213)). We held that the trial court’s "use of ‘and/or’ le[ft] open the possibility that ‘in the interest of justice and fairness’ [could be] the sole rationale." Id. at 689. That possibility, if true, would have violated our Columbia standard.
We held that "a trial court does not abuse its discretion[6] so long as its stated reason for granting a new trial (1) is a reason for which a new trial is legally appropriate (such as a well-defined legal standard or a defect that probably resulted in an improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case at hand." Id. at 688–89 (emphases added). Applying this new standard to the new trial order, we concluded that because, under Columbia, "in the interests of justice or fairness" or similar language "is never an independently sufficient reason for granting new trial, " the "and/or" order failed the test’s first prong. Id. at 689–90.
This case represents the next step in that progression. We must decide whether, on mandamus review, an appellate court may evaluate the merits of a new trial order that states a clear, legally appropriate, and reasonably specific reason for granting a new trial. Stated differently, if a trial court’s order facially comports with Columbia and United Scaffolding, may an appellate court review the correctness of the stated reasons for granting a new trial? Absent further guidance from this Court, our courts of appeals have generally been reluctant to engage in merits-based review of new trial orders.[7]
To answer this question, we consider Columbia and United Scaffolding together. A new trial order must be "understandable, " "reasonably specific, " see Columbia, 290 S.W.3d at 213, "cogent, " "legally appropriate, " "specific enough to indicate that the trial court did not simply parrot a pro forma template, " and issued "only after careful thought and for valid reasons, " see United Scaffolding, 377 S.W.3d at 688 (emphasis added). An order that does not satisfy these requirements may be corrected by mandamus.
Having already decided that new trial orders must meet these requirements and that non-compliant orders will be subject to mandamus review, it would make little sense to conclude now that the correctness or validity of the orders’ articulated reasons cannot also be evaluated. To deny merits-based review would mean that a trial court could set aside a verdict for reasons that are unsupported by the law or the evidence, as long as those reasons are facially valid. Columbia’s requirements would be mere formalities, lacking any substantive "checks" by appellate courts to ensure that the discretion to grant new trials has been exercised appropriately. Transparency without accountability is meaningless. While we reiterate our "faith in the integrity of our trial bench as well as that of the appellate bench, " Columbia, 290 S.W.3d at 214, we decline to hold that their decisions are immune from substantive review.
We have recognized two narrow instances in which new trial orders are reviewable, on the merits, by mandamus: when the trial court’s order was void or when the trial court erroneously concluded that the jury’s answers to special issues were irreconcilably in conflict. See Columbia, 290 S.W.3d at 208 (citing Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)).[8] As to the latter, since at least 1926, we have granted mandamus relief to correct a trial court’s erroneous ruling. See Gulf, C. & S.F. Ry. Co. v. Canty, 285 S.W. 296, 302 (Tex. 1926). In such cases, merits-based mandamus review is relatively straightforward—an appellate court may compare the jury charge against the jury’s answers, and decide whether the trial court correctly concluded that they conflicted irreconcilably.
This case is analogous. Appellate courts must be able to conduct merits-based review of new trial orders. If, despite conformity with the procedural requirements of our precedent, a trial court’s articulated reasons are not supported by the underlying record, the new trial order cannot stand.
While this review is new to us, it is old hat to our colleagues on the federal bench. Federal appellate courts regularly conduct record-bound, merits-based review of new trial orders to evaluate their validity.[9] For instance, in Peterson v. Wilson, 141 F.3d 573, 580 (5th Cir. 1998), the United States Court of Appeals for the Fifth Circuit reversed a district court’s ruling granting a new trial, vacated the judgment rendered after a jury verdict in a second trial, and reinstated the first trial’s results. The Fifth Circuit observed that the trial court had granted the defendant’s "bare-bones" new trial motion despite an original verdict for the plaintiff, after the court "met with and interrogated the jurors after the verdict (concededly, outside the presence of the parties and counsel), and then acted on the comments of some of the jurors as though their remarks were newly discovered evidence." Id. at 575. After examining the district court’s stated reason and "conduct[ing] the obligatory ‘cumbersome review’ of the multi-volume trial record, " the court concluded from its "meticulous review of the record of the first trial" that "[t]he instant record [could not] support any such conclusion [that the evidence was insufficient to support the original jury verdict]." Id. at 575–79 (internal citations omitted).[10]
Similarly, in Cruthirds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas, 624 F.2d 632, 635, 636 (5th Cir. 1980), the Fifth Circuit "review[ed] the record carefully to make certain that the district court [did] not merely substitute[] its own judgment for that of the jury" when that court "disregard[ed] the verdict and grant[ed] a new trial." The court consulted the record to evaluate the district court’s two stated grounds for granting new trial—the first, an erroneous jury charge on comparative negligence, and the second, an "against the great weight and preponderance" and "prevent[ion of] a miscarriage of justice" type rationale. Id.[11] Relevant for our purposes is the fact that the Fifth Circuit has long engaged in merits-based review of new trial orders, looking to the records available on a case-by-case basis. Though not binding on this Court, this approach supports our decision today that the reasons articulated in a new trial order are subject to merits-based mandamus review.
B. Under this standard, the trial court abused its discretion in granting a new trial.
1. Merits-Based Review of This Order
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.
The new trial order complies with Columbia’s procedural "form" requirements. The trial judge’s three-page order, which pinpointed Toyota’s reference to Officer Coon’s testimony in closing argument as the basis for granting new trial, is distinguishable from the Columbia order’s bare assertion of "in the interests of justice and fairness." This order, on its face, comports with Columbia.
Similarly, the trial court’s explanation of and reference to the specific grounds for new trial from Toyota’s closing argument satisfy, facially, United Scaffolding’s requirements that the reasons listed (if accurate) would have been "legally appropriate" grounds for new trial, and are "specific enough" that they are not simply pro forma. 377 S.W.3d at 688–89.
The trouble is that the record squarely conflicts with the trial judge’s expressed reasons for granting new trial. Simply articulating understandable, reasonably specific, and legally appropriate reasons is not enough; the reasons must be valid and correct. Having undertaken our own "’cumbersome review’ of the multi-volume trial record, " Peterson, 141 F.3d at 579 (internal citations omitted), we conclude that the record does not support the new trial order.
The trial court initially granted the Kings’ motion in limine to preclude Officer Coon’s deposition testimony regarding King’s seat belt usage at the time of the crash. But a protective limine order alone does not preserve error. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986) (noting that "to preserve error as to an improper question asked in contravention of a sustained motion in limine, a timely objection is necessary"). Furthermore, where, as here, the party that requested the limine order itself introduces the evidence into the record, and then fails to immediately object, ask for a curative or limiting instruction or, alternatively, move for mistrial, the party waives any subsequent alleged error on the point. See, e.g., Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) ("Error is waived if the complaining party allows the evidence to be introduced without objection."); State Bar of Tex. v. Evans, 774 S.W.2d 656, 659 n.6 (Tex. 1989) ("Failure to request the court to instruct the jury to disregard the inadmissible testimony results in waiver of the alleged error where the instruction would have cured the error."); see also Tex. R. App. P. 33.1(a) (detailing requirements for preservation of appellate complaints); Tex. R. Evid. 103(a) (describing effects of erroneous admission or exclusion of evidentiary rulings); John Henry Wigmore, Wigmore’s Code of the Rules of Evidence in Trials at Law § 140 (3d ed. 1942) ("The objector waives an objection when he himself subsequently introduces evidence which is directed to prove or disprove the same matter and is liable to the same objection.").
Even if the attorney’s actions were inadvertent, the Kings introduced the point into evidence and waived the point of error. The trial court acknowledged the introduction of the evidence, stating three times that the Kings’ attorney had "read it into the record." The Kings argue that because the statement came from their attorney, and not directly from Officer Coon’s deposition, it cannot be considered a tender or proffer of testimony. The record reflects, however, that the Kings’ attorney quoted the relevant deposition testimony when making an offer under the rule of optional completeness and that the trial court repeatedly acknowledged that the evidence had been read into the record. See Tex. R. Evid. 107 ("When part of a[] . . . recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other . . . recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence.") Surely, the Kings would not argue that their intended quotation for optional completeness was a tender of testimony, while their inadvertent quotation was not. Once the evidence was in the record—without objection or a request that it be stricken or that the jury be instructed to disregard—it was in for all purposes and a proper subject of closing argument.
Toyota’s counsel fairly referenced the previous day’s proceedings during Lee Carr’s direct examination, by noting that he "wanted to review [Officer Coon's] deposition passage which was read into the record . . . yesterday." Though the Kings’ attorney objected to Toyota’s questioning, he again neglected to ask the trial court for any sort of ruling, or for a limiting or curative instruction. The colloquy ended with the trial court’s noting her recollection that Kings’ counsel had previously "read[] from the deposition for optional completeness" and that his disclosure may have been "inadvertent." She stated that she was not going to sanction anyone, that "[t]he record is going to have to speak for itself, " and that "[t]he evidence is going to be reflected in the record." See discussion supra, S.W.3d at .
On the third instance, during Dr. Van Arsdell’s direct examination, the Kings’ attorney again remained silent. The Kings’ attorney’s objection during closing argument was too late. The statement was in evidence. Attorneys in closing must "confine the argument strictly to the evidence"; any evidence in the record is fair game. See Tex. R. Civ. P. 269(e) ("Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel.").
The trial court’s pretrial limine rulings prevented Toyota from introducing the evidence, and the record—specifically, the redacted deposition Toyota offered—reflects Toyota’s compliance with those rulings. After the Kings’ attorney read the testimony into evidence, and after Toyota’s counsel repeated the excerpt subsequently, the parties sought clarification from the trial court, who repeatedly stated that the record would reflect what was in evidence. The trial court did not instruct Toyota not to mention Coon’s statement during closing; rather, she warned that "appropriate sanctions [would] be issued to either party if they argue outside the record." (Emphasis added.) We agree with Toyota that it did not violate the trial court’s rulings by referencing Officer Coon’s deposition in closing.
We acknowledge that appellate courts benefit from the hindsight that a complete record provides. Trial courts, on the other hand, must make difficult, often dispositive, decisions based on their recollection and best judgment alone, frequently without the aid of full records, transcripts, or briefing. Nevertheless, having thoroughly reviewed the record here, we conclude that the trial court’s articulated reason for granting new trial—that Toyota’s counsel "willfully disregarded, brazenly and intentionally violated" the limine orders in closing—is unsupported. The record directly contravenes the order, including the trial court’s acknowledgment during trial that the Kings’ attorney "ha[d] read into the record what [Toyota] wanted published."
Because the record does not support the articulated reason, the trial court abused its discretion by granting a new trial on that ground.
2. New Trial as a Sanction
The trial court further explained that it was ordering a new trial pursuant to its inherent authority to issue sanctions, irrespective of or in addition to Texas Rule of Civil Procedure 320, because of Toyota’s reference to Officer Coon’s testimony during closing argument. The court held that the reference was so prejudicial and inflammatory that an instruction to disregard could not eliminate the harm.
A new trial on that basis presupposes sanctionable conduct, and we have just held that Toyota’s statements during closing argument were appropriate. The record reflects that Toyota and its counsel complied with the limine orders regarding Officer Coon’s deposition, as demonstrated by the playback of mechanically redacted portions of the videotaped testimony. There is nothing to suggest that either Toyota or its counsel intended, prior to the statement’s first introduction by the Kings’ attorney, to introduce the statement regarding King’s seat belt usage to the jury. In fact, Toyota made clear prior to Officer Coon’s deposition playback that it had voluntarily deleted the "if they are not wearing one" excerpt, even though there had been no objection or ruling on that portion specifically. Once the statement was in evidence, however, and in light of subsequent bench conferences, Toyota’s reference to it during closing argument was appropriate. Given that, the trial court abused its discretion in sanctioning Toyota for that conduct.
III. Conclusion
On mandamus review, an appellate court may conduct a merits-based review of the reasons given for granting a new trial. That review compels us to conclude that the trial court abused its discretion in granting a new trial here. The stated reasons, though complying in form with the requirements of Columbia and United Scaffolding, lacked substantive merit. Further, a new trial was an improper sanction.
We conditionally grant relief and order the trial court to withdraw its order and render judgment on the verdict. We are confident the trial court will comply, and the writ will issue only if it does not.
JUSTICE LEHRMANN filed a concurring opinion, in which JUSTICE DEVINE joined.
JUSTICE BOYD did not participate in the decision.
Justice Lehrmann, joined by Justice Devine, concurring.
"The right of trial by jury shall remain inviolate." Tex. Const. art. I, § 15. The importance of protecting that right was the underpinning of the Court’s recent holding that mandamus relief is appropriate when a trial court fails to explain with reasonable specificity the reasons it has set aside a jury verdict and granted a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009). Today the Court takes another step along that path by authorizing appellate courts to conduct merits-based review of such new-trial orders. See S.W.3d at . It is essential to remember in conducting this review, however, that the trial court’s authority to grant a new trial "’is not in derogation of the right of trial by jury but is one of the historic safeguards of that right.’" Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996) (quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941)). I thus concur in the Court’s opinion, but write separately to emphasize the significant discretion trial courts are, and must continue to be, afforded in determining whether good cause exists to grant a new trial following a jury verdict.
The specific issue presented in Columbia was a narrow one: "whether trial courts must give more explanation than ‘in the interest of justice’ for setting aside a jury verdict." 290 S.W.3d at 206. In affirmatively answering that question and conditionally granting mandamus relief to require such specificity, we recognized the significant departure from our longstanding mandamus jurisprudence, which had to that point "approved the practice of trial courts failing to specify reasons for setting aside jury verdicts" and "preclude[d], for the most part, appellate review of orders granting new trials." Id. at 208 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985), and Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)). Both Columbia and our subsequent opinion in In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), focused on transparency in the context of setting aside jury verdicts, noting the importance of ensuring that trial courts do not impermissibly substitute their judgment for that of the jury. Id. at 688; Columbia, 290 S.W.3d at 214. This concern, however, is not present with respect to new-trial orders that do not set aside a jury verdict, such as orders issued after a bench trial or setting aside a default judgment. Accordingly, in my view, the Columbia line of cases does not apply to such orders.
Having required trial courts to "provide[] a cogent and reasonably specific explanation of the reasoning" for new trial orders, United Scaffolding, 377 S.W.3d at 688, the Court now concludes that, for the sake of averting "[t]ransparency without accountability, " such reasoning cannot be "immune from substantive review." __S.W.3d at__. Engaging in that review, the Court further holds that "the record squarely conflicts with the trial judge’s expressed reasons for granting new trial" and that the court therefore abused its discretion in doing so. Id. at__.
I agree that, in this case, determining whether the order granting a new trial was an abuse of discretion is "relatively straightforward." Id. at__. It is undisputed that, notwithstanding the trial court’s order in limine precluding the introduction of Officer Coon’s deposition testimony regarding King’s seatbelt usage, the testimony was disclosed to the jury twice without objection, the first time inadvertently by the Kings’ attorney (who did not request that the jury be instructed to disregard the statement or otherwise clarify the mistake when pointed out by Toyota’s counsel), and the second time by one of Toyota’s expert witnesses on direct examination. Notably, neither the Kings’ motion for new trial nor the order granting it referenced the introduction of that testimony as a basis for the order. Instead, both the motion and order focused solely on Toyota’s counsel’s referencing the testimony during his closing argument, and the order clarified the trial court’s conclusion that Toyota’s counsel "purported to present evidence outside the record, and commented on matters in violation of [the trial c]ourt’s order in limine." The trial transcript dispositively reveals, however, that the complained-of and unobjected-to evidence discussed by Toyota’s counsel during closing argument was not outside the record and thus was not improper. See Tex. Sand Co. v. Shield, 381 S.W.2d 48, 57–58 (Tex. 1964) ("Counsel may properly discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude extends only to the facts and issues raised by the evidence admitted under the ruling of the Court.").
But while review of a cold record appears to be exactly what was needed in this case to evaluate the substantive merit of the new-trial order, that limitation frequently places appellate courts at a disadvantage in evaluating whether there is good cause to grant a new trial. See United Scaffolding, 377 S.W.3d at 688. As we recognized in Columbia, "there are differences between the review that can be accomplished by appellate judges who have only the record to consider and trial judges who have seen the parties and witnesses and sensed the [e]ffect of certain evidence or occurrences on the trial." 290 S.W.3d at 211; see also United Scaffolding, 377 S.W.3d at 688 (noting that "the trial judge may have observed irregularities not wholly apparent in a cold record"); Jennings v. Jones, 587 F.3d 430, 437 (1st Cir. 2009) ("[Appellate courts], reading the dry pages of the record, do not experience the tenor of the testimony at trial. The balance of proof is often close and may hinge on personal evaluations of witness demeanor.’" (quoting United States v. Alston, 974 F.2d 1206, 1212 (9th Cir. 1992))). The trial court, for example, may conclude, based on observations of the jurors’ reactions, that they were particularly influenced by improperly admitted evidence or by attorney misconduct and that such error unfairly affected the verdict. Or the trial court may observe jurors being significantly distracted during the presentation of crucial evidence in the case and discern a prejudicial effect on the verdict. And in the context of new-trial orders based on evidentiary insufficiency, we recognized in United Scaffolding that trial courts need not furnish the same level of detail in explaining their decisions that courts of appeals must provide.[1]377 S.W.3d at 688. This is because the concerns that exist as to whether the "court of appeals ha[s] ‘considered and weighed all the evidence before arriving at a decision of insufficiency’" are not present with respect to the trial court, which "has, in most instances, been present and a participant in the entire trial." Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
These examples illustrate that determining whether a trial court abused its discretion in granting a motion for new trial after a jury verdict will rarely be as cut-and-dry as confirming that evidence or testimony referenced during a closing argument is or is not in the record. Often, the trial court’s presence and observations throughout the trial will be indispensable in evaluating whether the requisite good cause exists to justify setting aside a jury verdict and granting a new trial. See Columbia, 290 S.W.3d at 212 ("We do not retreat from the position that trial courts have significant discretion in granting new trials."). Recognizing the need to defer to trial courts with respect to such determinations is crucial to ensuring that parties receive a fair trial.
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