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In re City of Houston

Court of Appeals of Texas, First District, Houston

December 5, 2013

In re CITY OF HOUSTON, Relator.

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David M. Feldman, City Attorney, Lynette K. Fons, First Assistant City Attorney, Judith L. Ramsey, Chief, General Litigation Section, John B. Wallace, Fernando De Leon, City of Houston Legal Department, Houston, TX, for Relator.

Michael L. Phifer, Guy K. Cooksey, The Phifer Law Firm, Brad Beers, The Beers Law Firm, Houston, TX, for Real Party in Interest.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.



Relator, the City of Houston, has petitioned this court for a writ of mandamus, seeking review of the trial court's order granting a new trial. [*] After the trial court's ruling, the Supreme Court of Texas decided In re Toyota Motor Sales, U.S.A., Inc., which announced that a trial court's legally appropriate and reasonably specific order granting a new trial may be reviewed on its substantive merits in a mandamus proceeding. 407 S.W.3d 746, 758-59 (Tex.2013). Applying that standard of review to this case, we conditionally grant relief.


On the night of May 1, 2009, plaintiff LaShonda Rochelle turned left in front of

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a Houston Police Department patrol car driven by Officer K. Parker while he was on duty and responding to a report of a suspected drunk driver. Plaintiff Mattie Etubom was a passenger in Rochelle's vehicle. Officer Parker's vehicle hit Rochelle's vehicle at approximately 60 miles per hour, and both Rochelle and Etubom sustained injuries.

Approximately one month after the accident, but before any suit had been filed, attorneys representing Rochelle and Etubom sent a letter to the City's Public Affairs Division, requesting that the City preserve a variety of evidence, specifically including the patrol car involved in the collision, all " components" of the car or items removed from it, and all " [a]ccident reports, notations, measurements, reports, reconstruction evaluations and any and all documentation regarding the collision making the basis of [plaintiffs'] claim." Despite this request, several pieces of evidence were lost or destroyed. The patrol car itself was destroyed when the HPD bomb squad detonated a bomb inside of it as part of a training exercise, approximately one year after the collision. In addition, the City lost, destroyed, or was otherwise unable to produce either the police call slip showing the call to which Officer Parker was responding at the time of the collision or the Mobile Data Terminal from his patrol car.

Rochelle and Etubom brought separate suits against the City of Houston, which the trial court consolidated. Before trial, Etubom moved for a jury instruction regarding spoliation of evidence, which the trial court granted over the City's opposition. At trial, counsel for the City asked R. White, an HPD officer and accident investigator, to identify who was at fault in the collision. Officer White testified that he had found Rochelle to be at fault, and counsel for the City asked, " How so?" In response, Officer White listed several bases for his conclusion and then stated, " And a citation was also issued to Ms. Rochelle." This testimony violated an order in limine prohibiting mention of any citation that Rochelle received in connection with the collision. Counsel for Rochelle immediately objected, moved to strike the testimony, and moved for a mistrial. The trial court sustained the objection and granted the motion to strike. After a bench conference, the trial court instructed the members of the jury to disregard any testimony regarding tickets or citations, and it admonished them that it was their responsibility, not the responsibility of any witness, to determine who was at fault in causing the collision. The trial court carried the motion for mistrial, and the trial continued to a verdict.

The jury found that the City bore 60 percent of the responsibility for the accident and that Rochelle bore the remaining responsibility. Although the jury awarded damages to both plaintiffs, the jury also found that the accident occurred while Officer Parker was performing a discretionary duty, in good faith, and within the scope of his authority, establishing one of the City's affirmative defenses and relieving it of liability.

The City moved for judgment on the verdict, which the plaintiffs opposed. In her response to the City's motion for judgment, Rochelle moved for a new trial. Etubom separately moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court expressly denied the motions for judgment on the verdict, mistrial, and judgment notwithstanding the verdict, but it granted the motions for new trial. The trial court found " that a new trial should be granted for good cause and in the interest of justice pursuant to the Court's authority under

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Rule 320 of the Texas Rules of Civil Procedure and as otherwise permitted by Texas law." The trial court's order contains two bases for this finding. First, the trial court stated that the City had engaged in repeated misconduct by concealing or destroying evidence and violating the limine order regarding the citation issued to Rochelle. Second, the trial court found that a new trial was necessary in light of newly-discovered evidence, specifically identifying a document in the City's possession that had not been produced and a witness who had not been disclosed.

Before the date set for the new trial, the City petitioned this court for a writ of mandamus. At the same time, the City filed a separate motion in this court requesting a stay of the new trial setting, which we granted. The petition for writ of mandamus asks this court to order the trial court to vacate its order of a new trial and enter final judgment on the jury verdict, because the stated bases for the new trial constitute a clear abuse of discretion. In response, real parties in interest Rochelle and Etubom argue that the trial court's order was legally sufficient.


Mandamus relief is available only when the trial court has committed a clear abuse of discretion for which there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.2010) (per curiam) (orig. proceeding). A trial court commits a clear abuse of discretion when its action is " so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (per curiam) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding).

A trial court's order granting a motion for new trial may be reviewed in a mandamus proceeding. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex.2012) (orig. proceeding). A trial court abuses its discretion if it fails to give specific reasons for setting aside a jury verdict. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009) (orig. proceeding). Rule 320 of the Texas Rules of Civil Procedure gives trial courts broad discretion in granting new trials, which may be granted for " good cause," or " in the interest of justice." Id. at 210, 213; TEX.R. CIV. P. 320. " But that discretion is not limitless." In re Columbia Med. Ctr., 290 S.W.3d at 210.

In United Scaffolding, the Supreme Court of Texas set out standards for orders granting new trials, holding:

a trial court does not abuse its discretion 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.

377 S.W.3d at 688-89. The Court suggested examples of invalid orders, such as one based on a reason that is not legally valid, or " if the articulated reasons plainly state that the trial court merely substituted its own judgment for the jury's; or that the trial court simply disliked one party's lawyer; or that the reason is based on invidious discrimination." Id. at 689 (citations omitted). The Court then proceeded to disapprove an order that stated multiple reasons, each of which was preceded by " and/or" and one of which was " in the interest of justice and fairness," leaving

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the possibility that the latter, legally insufficient, rationale was the only one supporting the order. Id. at 689-90. The trial court in that case was required to enter a new order " and elaborate, with reference to the evidence adduced at trial," why the facts of the trial supported one or more of the permissible rationales stated in the new trial order. Id. at 690.

After the trial court granted a new trial in this case, and while the City's mandamus petition was pending in this court, the Supreme Court of Texas issued its opinion in In re Toyota Motor Sales. The Court again considered a petition for writ of mandamus arising from a new trial order and resolved the question of " whether an appellate court may, in an original proceeding, determine whether the reasonably specific and legally sound rationale is actually true." In re Toyota Motor Sales, 407 S.W.3d at 749. The Court held that when a trial court enters an order for a new trial that facially complies with the requirements of Columbia Medical Center and United Scaffolding, " an appellate court may conduct a merits-based review of the reasons given." Id. at 762. If the articulated reasons are not supported by the law and the record, mandamus relief is appropriate. Id. at 761-62.

On its face, the order granting a new trial in this case satisfies the standards articulated in Columbia Medical Center and United Scaffolding. We will therefore examine each of the trial court's stated reasons for ordering a new trial. If any of the reasons given satisfies the standards set forth in Toyota Motor Sales, then the trial court did not abuse its discretion in ordering a new trial and we will deny relief.

I. Newly-discovered evidence

The second basis stated by the trial court for ordering a new trial was " material evidence first discovered after trial and brought to the Court's attention by Plaintiff Etubom." When a party moves for a new trial based upon the existence of newly-discovered evidence, that party has the burden of showing that: (1) the evidence has come to the party's attention since trial; (2) it was not owing to want of due diligence that the evidence did not come to the party's attention sooner; (3) the evidence is not merely cumulative of that already presented and does not tend only to impeach the testimony of the party's adversary; and (4) the evidence would probably produce a different result if a new trial were granted. Chapman v. Abbot, 251 S.W.3d 612, 620 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see also Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 471 (Tex.App.-El Paso 2012, no pet.); Connell Chevrolet Co., Inc. v. Leak, 967 S.W.2d 888, 894 (Tex.App.-Austin 1998, no pet.).

The record reveals two purportedly new pieces of evidence. First, although the City had produced in discovery a copy of HPD General Order 600-01 in effect at the time of the collision, it did not produce a copy of that order as it was amended in 2011. Second, Etubom asserted that HPD Officer K. Dozier should have been identified by the City as a person with knowledge of facts relevant to her claim because Officer Dozier gave deposition testimony regarding General Order 600-01 in a different case involving a different collision. Both ...

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