Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN CHIEF JUSTICE.
Orren seeks mandamus relief from the trial court's order
granting Dale Blocker and David George's motion for new
trial. 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.
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.
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.
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.
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).
Adequate Remedy by Appeal
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.
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.] ...