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In re Orren

Court of Appeals of Texas, Twelfth District, Tyler

November 22, 2017

IN RE: JENNIFER ORREN, RELATOR

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          JAMES T. WORTHEN CHIEF JUSTICE.

         Jennifer Orren seeks mandamus relief from the trial court's order granting Dale Blocker and David George's motion for new trial.[1] In a single issue, she contends that the trial court abused its discretion by granting the new trial and that she has no adequate remedy at law. We conditionally grant the writ.

         Background

         Blocker and George were involved in a motor vehicle collision with Orren in March 2014. They subsequently sued Orren, alleging they were injured as a result of the collision. At trial, Blocker and George each alleged that they injured their backs during the collision. They sought past and future damages for medical expenses, pain and suffering, mental anguish, and physical impairment. Blocker's treating physician, Dr. Kenneth Reesor, testified that the collision aggravated and significantly worsened prior injuries. And George's physician, Dr. Charles Gordon, testified that the accident caused a significant back injury that resulted in surgery.

         At the conclusion of trial, the jury awarded Blocker $13, 700.00 in past medical expenses and George $30, 000.00 in past medical expenses. The jury did not award any other damages.

         Blocker and George filed a motion for new trial, and Orren filed a motion for a judgment on the verdict. Blocker and George alleged that the failure of the jury to award noneconomic damages was against the great weight and preponderance of the evidence. Following a hearing, the trial court granted the motion for new trial. This original proceeding followed.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). To be entitled to mandamus relief, a relator must demonstrate that (1) the trial court clearly abused its discretion and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding).

         No Adequate Remedy by Appeal

         As part of her sole issue, Orren argues that she has no adequate remedy by appeal. The Texas Supreme Court has explained that "absent mandamus review, " parties "will seemingly have no appellate review" of orders granting new trials. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009) (orig. proceeding). Even if a party could obtain appellate review of a new trial order following a second trial, it could not obtain reversal of an unfavorable verdict unless it convinced an appellate court that the granting of the new trial constituted harmful error. Id. Furthermore, even if an unfavorable verdict were reversed and rendered in the party's favor, "it would have lost the benefit of a final judgment based on the first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of the second trial." Id. at 209-10.

         Accordingly, an appellate court may review the merits of a new trial order in a mandamus proceeding. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759 (Tex. 2013) (orig. proceeding). If a trial court abuses its discretion in granting a motion for new trial, there is no adequate remedy by appeal. In re Columbia, 290 S.W.3d at 210. Thus, because mandamus review is appropriate in this case, we must now determine if the trial court abused its discretion by granting a new trial. See id.; see also In re Toyota Motor Sales, 407 S.W.3d at 762; In re United Servs. Auto Ass'n,446 S.W.3d 162, 180 (Tex. App.-Houston [1st Dist.] ...


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