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In re DCP Operating Co., LP

Court of Appeals of Texas, Seventh District, Amarillo

April 29, 2019

IN RE DCP OPERATING COMPANY, LP F/K/A DCP MIDSTREAM, LP, RELATOR

          Original Proceeding Arising From Proceedings Before the 69th District Court Moore County, Texas Trial Court No. 13-81; Honorable David Gleason, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         In this original proceeding, Relator, DCP Operating Company, LP, formerly known as DCP Midstream, LP, seeks to set aside the trial court's order granting the motion for new trial of Real Party in Interest, Blake Stringer. We grant DCP's petition for writ of mandamus.

         Background

         DCP maintains an easement on farmland owned by Stringer. In 2011, DCP excavated an area of the farmland to perform work on its pipeline. Stringer claims DCP failed to properly fill the excavated area, resulting in soil damage and settling. The settling purportedly caused Stringer's irrigation sprinkler to frequently become stuck, leading to overwatering in the excavated area and underwatering in other areas of the field.

         Stringer sued DCP for breach of the right-of-way agreement and negligence to recover remediation costs for the soil damage, repair costs for the irrigation sprinkler, and the losses to his 2012 crop yield. The Honorable David Gleason[1] presided over the jury trial.

         At trial, DCP sought to question Stringer about statements he made to his crop insurer concerning the cause of his low crop yield and about a loss statement created by the insurer. Stringer's counsel addressed the matter during Stringer's direct examination without referencing the insurer or the loss statement. On direct examination, Stringer testified that he had informed a third party that his low crop yield was due to a "hot, dry summer." Stringer did not identify the third party; however, he did testify that the third party generated a "report" indicating "excessive heat" as the cause of the low crop yield.

         On cross-examination, DCP questioned Stringer about a "claim" he made concerning his crop losses. Stringer's counsel objected to DCP's use of the term "claim" as interjecting insurance into the case and to the admissibility of the loss statement as violating the collateral source rule. The trial court overruled Stringer's objections to the term "claim," but held that the loss statement was inadmissible under the collateral source rule. DCP did not offer the loss statement into evidence.

         After a four-day trial, the jury found that DCP's breach of the right-of-way agreement and negligence had caused the soil damage, damages to the sprinkler, and losses to Stringer's 2012 corn crop. The jury also found that Stringer's own negligence had contributed in causing the sprinkler damages and crop losses and apportioned 60% of the responsibility on Stringer. The jury awarded damages under both causes of action for the reduced market value of the land, the sprinkler repair costs, and the losses to the 2012 corn crop.

         Following the jury's verdict, Stringer filed a motion for new trial on various grounds. The trial court granted Stringer's motion and ordered a new trial for the following reasons:[2]

The Court erred in admitting testimony that suggested that Plaintiff was covered by crop insurance, a collateral source, and such error probably caused the jury to consider insurance, and probably caused the jury to apportion responsibility and determine damages that were inconsistent with the great weight of the evidence, rendering an improper verdict;
The Hudson Insurance Co. report, Defendants' [sic] Exhibit 27, was not a statement made or authorized by Blake Stringer or any agent of Blake Stringer, and was therefore not an admission against interest regarding which Blake Stringer could properly be impeached.
Mandamus Standard of Review

         DCP filed a petition for writ of mandamus to vacate the trial court's order granting a new trial. Mandamus is an extraordinary remedy granted only when the relator can show that (1) the trial court abused its discretion and (2) no adequate appellate remedy exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).

         When granting a new trial, a trial court does not abuse its discretion if its reasons are (1) understandable and reasonably specific, (2) legally appropriate (such as a well-defined legal standard or a defect that probably resulted in an improper verdict), and (3) supported by the record. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009) (orig. proceeding). See also In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758-759 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding). If the trial court abuses its discretion in granting a motion for new trial, there is no adequate remedy by appeal and the petitioner is entitled to mandamus relief. See Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 209-10.

         Analysis

         DCP contends that the trial court abused its discretion because its reasons for granting a new trial are not supported by the record. The order states that the trial court "erred in admitting testimony that suggested that [Stringer] was covered by crop insurance, a collateral source," which probably caused an improper verdict and that DCP improperly impeached Stringer with the loss statement.

         DCP argues that these grounds are not supported by the record because (1) Stringer failed to preserve error regarding the collateral source rule, (2) Stringer waived the purported error, (3) the collateral source rule does not apply in this case, (4) the collateral source rule was not violated, (5) the admitted testimony did not cause an improper verdict, and (6) DCP did not use the loss statement to impeach Stringer.

         Accordingly, we must review the correctness of the trial court's stated reasons for granting a new trial to determine if they are supported by the record. See Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at 758-59 ("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.").

         A. The Collateral Source Rule

         The collateral source rule is a rule of evidence and damages. Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.-Houston [14th Dist.] 2004, pet. denied). It precludes a tortfeasor from introducing evidence or obtaining an offset for funds received by the plaintiff from a collateral source. Id. See also Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980) ("The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy."). However, evidence of a collateral source may be admissible for purposes other than the mitigation of damages. See Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex. App.-Houston [14th Dist.] 1990, writ denied); Russell v. Dunn Equipment, Inc., 712 S.W.2d 542, 547 (Tex. App.- Houston [14th Dist.] 1986, writ ref'd n.r.e.).

         B. Stringer Preserved the Purported Error

         First, DCP claims that Stringer failed to preserve the purported error. See Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at 760; In re State, No. 14-18-01036-CV, 2018 Tex.App. LEXIS 10714, at *17-19 (Tex. App.-Houston [14th Dist.] Dec. 21, 2018, orig. proceeding) (per curiam) (mem. op.) (granting mandamus relief because purported error in new trial order was not preserved).

         To preserve error, a defendant must make a timely and specific objection to the trial court and the trial court must rule on the objection. Tex.R.App.P. 33.1(a). The objection must be specific enough so that the trial court can understand the precise grounds to make an informed ruling and afford the offering party an opportunity to remedy the defect if possible. See McKinney v. Nat'l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989).

         At the start of DCP's cross-examination of Stringer, Stringer's counsel objected to the admissibility of the loss statement, asserting that it interjected insurance and violated the collateral source rule. Stringer's counsel later conceded that DCP could question Stringer about his conversations with the third party and what the third party reported as the cause of the crop loss.[3] However, he objected to DCP using the term "claim" during its questioning as it "strongly infers insurance." The trial court ruled that the loss statement violated the collateral source rule but allowed DCP to use the term "claim" when questioning Stringer. The court stated that it would permit the inference of insurance and granted Stringer a running objection.

         Accordingly, based on its context, we find that Stringer's objection to the term "claim" was specific enough for the trial court to understand his position that the term violated the collateral source rule. See Tex. R. App. P. 33.1(a)(1)(A) (requiring the objection to be sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context). Stringer's objection was timely and overruled by the trial court. Thus, we conclude Stringer preserved the purported error.[4]

         C. Stringer Did Not Waive His Objection

         DCP also argues that Stringer waived any objection to the collateral source rule because he "opened the door" during his direct examination. A party waives an objection to improper evidence offered by the other side when it has previously introduced the same evidence or evidence of a similar character. McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984).

On direct examination, Stringer's counsel asked him the following:
Stringer's Counsel: Now, in talking about government reporting, all the reporting you have to do as a farmer, there's a reference in opening statement to a report involving your 2012 corn loss, right?
Stringer: Yes.
Question: Okay. Let's - let's go through how that reporting works.
Question: When you get your harvest in, get your yield information from Telemark on the cotton and from the co-op on the corn, do you have to report that?
Answer: I do.

Question: And when you reported the 85 bushels, did you receive a communication? ...


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