Court of Appeals of Texas, Seventh District, Amarillo
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
QUINN, C.J., and PIRTLE and PARKER, JJ.
Patrick A. Pirtle Justice
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.
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
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 presided over the jury trial.
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
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
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
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
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
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
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).
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
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.
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.
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
Collateral Source Rule
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.).
Stringer Preserved the Purported Error
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).
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).
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. 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.
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
Stringer Did Not Waive His Objection
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
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?
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?