Petition for Writ of Mandamus Conditionally Granted and Majority and
Dissenting Opinions filed December 23, 2014.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-14-00275-CV



           IN RE WYATT FIELD SERVICE COMPANY, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              125th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2011-44838

                  DISSENTING OPINION

      The Majority concludes that the unintended consequence of In re Columbia
and its progeny, including In re Toyota, is that an appellate court must apply a
factual-sufficiency review of the trial court’s factual insufficiency decision—
viewing the evidence in the light most favorable to the jury findings. Applying
that mandamus factual-sufficiency standard equals reversal, as a matter of law, in
every case.   Thus, the consequence of the Majority’s opinion, intended or
unintended, is that a trial court may not grant a motion for new trial on factual
insufficiency. Because I disagree that a traditional factual sufficiency standard
applies to the mandamus review of the trial court’s grant of new trial, I respectfully
dissent.

                               I.     INTRODUCTION
      Our system of justice demands that we show respect for both the role of the
jury to determine disputed questions of fact and the role of the trial judge to apply
the law to those fact findings and to ensure that all parties received a fair trial. A
trial judge may not substitute its judgment for the jury on factual disputes
following a trial any more than a trial judge may resolve genuine issues of material
fact on summary judgment. However, as part of the trial court’s oversight role, the
trial judge may grant a motion for new trial on factual insufficiency, subject to a
merits-based mandamus review of that decision by the court of appeals.

      As a question of first impression in this court, the Majority decides the
standard by which this court of appeals performs such a merits-based mandamus
review. Instead of the traditional mandamus standard, abuse of discretion, the
Majority adopts a factual-sufficiency review, not only affording no discretion to
the trial court’s decision but also affording full deference to the jury’s presumed
determination of credibility. The Texas Supreme Court has not articulated the
standard we should apply; however, in repeatedly reaffirming the discretion of the
trial court to grant new trials, the Texas Supreme Court has implicitly rejected the
standard we adopt today. Further, the Texas Supreme Court placed strictures on
the trial court’s discretion while explicitly referencing the successful Fifth Circuit
approach as a model. Therefore, I suggest that we adopt the Fifth Circuit standard
                                          2
for reviewing such orders because it is a standard that is structured to afford
deference to both the jury’s verdict and the trial court’s necessary oversight. Using
that standard, I would deny the petition for writ of mandamus.

      I agree with the Majority that:

      1.     Under the abuse-of-discretion mandamus standard, we defer to the
trial court’s factual determinations if they are supported by the evidence, but we
review the trial court’s legal determinations de novo. In re Labatt Food Serv.,
L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

      2.     A trial court’s discretion to grant a motion for new trial is not limitless
and is abused in particular by ordering a new trial based solely on “in the interest
of justice.” See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290
S.W.3d 204, 210, 213 (Tex. 2009) (orig. proceeding) (holding “that discretion is
not limitless”).

      3.     To the extent that this new trial order rests solely upon “the interests
of justice,” it is an abuse of discretion. See In re Wyatt Field Serv. Co., No. 14-13-
00811-CV, 2013 WL 6506749, at *3 (Tex. App.—Houston [14th Dist.] Dec. 10,
2013, orig. proceeding) (mem. op.).

      4.     The reviewing court must ensure that an order granting a new trial is
based upon a reason or reasons (1) for which a new trial is legally appropriate, and
(2) 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. See In re United Scaffolding, Inc., 377 S.W.3d
685, 688–89. (Tex. 2012) (orig. proceeding).

                                           3
      5.     The new trial order in this case facially complies with the
requirements of In re United Scaffolding, Inc.

      6.     An appellate court “may conduct a merits-based review of the reasons
given for granting a new trial” to determine whether the record supports the
articulated reason(s). See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746,
761–62 (Tex. 2013) (orig. proceeding).

      7.     Although the Texas Supreme Court does not articulate when an
appellate court “must” conduct a merits-based review of the new trial order, we
should do so in this case because we cannot otherwise give any scrutiny to the
particular reasons articulated for granting the new trial in this case.

      8.     The Texas Supreme Court has not prescribed an appropriate standard
for this court to use in conducting the merits-based review.

      I disagree, however, that a factual-sufficiency standard is the proper standard
of review to apply in a petition for writ of mandamus, merits-based review of
reasons for granting a motion for new trial. Therefore, under what I urge is a more
appropriate, deferential standard of review, I also disagree that the trial court
abused its discretion in granting Real Parties’ motion for new trial.

    II.    REVIEW OF ORDERS GRANTING NEW TRIAL AFTER IN RE TOYOTA
      The Majority faithfully traces the Texas Supreme Court’s five-year path
toward eliminating the unfettered discretion trial courts long held to grant new
trials. The path culminated in the In re Toyota pronouncement that an appellate
court “may conduct a merits review of the bases for a new trial order.” Id. at 749.
Stated differently, an appellate court may peek behind the order granting new trial

                                           4
to determine whether the record supports the trial court’s rationale. Id. I join issue
with the Majority’s description of the In re Toyota merits-based review as one to
evaluate “the correctness of a new trial order setting aside a jury verdict.” Ante at
5. Instead, the In re Toyota Court authorized the appellate court to review the
record to evaluate “the correctness or validity of the orders’ articulated reasons.”
407 S.W.3d at 758. In re Toyota does not direct the appellate court to use the
record to decide whether the trial court made the right decision. In re Toyota
directs the appellate court to use the record to decide whether the trial court made
its decision for the right reason.

      The difference in these two types of review is subtle but material, and it
turns completely upon the light in which the appellate court views the record. The
traditional factual sufficiency review adopted by the Majority weighs all of the
evidence, viewing it in the light most favorable to the jury findings. Ante at 8
(citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).
The trial court’s presence during the trial becomes irrelevant because the appellate
standard gives no consideration to the trial judge’s participation in the trial. On the
other hand, a record review that assesses the correctness of the reasons provided
acknowledges both the vital oversight role of the trial judge and the limitations on
the exercise of that oversight power.

      The difficulty in crafting a standard of mandamus review of orders granting
new trial on factual insufficiency is the tension between the judge and jury. We
need not and may not pick one over the other. The Texas Supreme Court requires
that we review the grant of a new trial order under a standard the gives respect to
the jury and the trial court. See In re Columbia, 290 S.W.3d at 212 (“We do not
                                          5
retreat from the position that trial courts have significant discretion in granting new
trials.”); accord In re United Scaffolding, 377 S.W.3d at 687 (having “reiterated
the considerable discretion afforded trial judges in ordering new trials,” the court
clarifies that the standard of review “must both afford jury verdicts appropriate
regard and respect trial court’s significant discretion in these matters”).

      Neither do we write on a completely clean slate for an appropriate standard
of review. Although a merits review of an order granting new trial is completely
new to Texas practice, it is, as acknowledged by the In re Toyota Court, “old hat to
our colleagues on the federal bench.” 407 S.W.3d 758. The In re Toyota Court
examined the Fifth Circuit approach to reviewing orders granting new trial for
factual insufficiency. Though not binding precedent, the Fifth Circuit approach
quelled the Court’s policy concerns because it is a system for merits-based review
that is established and successful in achieving respect for both jury and judge.

      Following the In re Toyota Court’s nudge in the right direction, Real Parties
here urge this court to conduct its merits-based review on an abuse-of-discretion
standard following the Fifth Circuit. Wyatt, however, urges this court to adopt a
factual-sufficiency standard for reviewing the trial court’s order granting a new
trial for insufficient evidence.     The Majority chooses the Wyatt approach,
concluding that Real Parties’ position affords this court “no ability to review new
trial orders based on factual sufficiency” to ensure that the trial court has not
substituted its judgment for that of the jury. Ante at 10. I heartily disagree with
this conclusion.

      The Texas Supreme Court has, as outlined above, specifically pointed to the
Fifth Circuit model as one that achieves a proper balance between respect for both
                                           6
jury verdicts and judicial discretion. In re Toyota, 407 S.W.3d at 759 (referring to
Cruthirds v. RCI, Inc. d/b/a Red Carpet Inn of Beaumont, Tex., 624 F.2d 632, 635–
36 (5th Cir. 1980), as a decision in which the Fifth Circuit “‘review[ed] the record
carefully to make certain that the district court [did] not merely substitute[ ] its
own judgment for that of the jury’ when that court ‘disregard[ed] the verdict and
grant[ed] a new trial’” (alterations in original)). The order granting new trial in
Cruthirds, like the order in this case, rested in part upon the trial court’s conclusion
that the verdict was against the great weight of evidence. 624 F.2d at 635. That
the Texas Supreme Court found guidance in the decades-old Fifth Circuit model
for reviewing new trial orders should give comfort in selecting that model for
undertaking a review that gives respect to both the jury system and the judicial
oversight of that system.

      Federal Rule of Civil Procedure 59 grants a federal trial court “historic
power to grant a new trial based on its appraisal of the fairness of the trial and the
reliability of the jury’s verdict.” Smith v. Transworld Drilling Co., 773 F.2d 610
612–13 (5th Cir. 1985). One of the grounds permissible for the exercise of that
power is that the verdict is against the great weight of the evidence. Id. The trial
judge must weigh all of the evidence, but it need not consider such evidence in the
light most favorable to the nonmoving party. Laxton v. Gap Inc., 333 F.3d 572,
586 (5th Cir. 2003).

      Federal courts and commentators view the trial court’s oversight role
pursuant to Rule 59 “‘as an integral part of trial by jury.’” Transworld Drilling,
773 F.2d at 613 (quoting C. Wright, Federal Courts 633 (4th ed. 1983)). On the
other hand, federal courts of appeal “exercise ‘particularly close scrutiny’ over a
                                           7
district court’s grant of a new trial on evidentiary grounds in order ‘to protect the
litigants’ right to a jury trial.’” Cooper v. Morales, 535 Fed. App’x 425, 431 (5th
Cir. 2013) (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.
1982)).

      The Cruthirds decision, relied upon by the In re Toyota Court, urged that
“[g]reat latitude in the trial court’s authority is especially appropriate when the
motion cites some pernicious error in the conduct of the trial. Then the trial court
occupies the best vantage from which to estimate the prejudicial impact of the error
on the jury.” Cruthirds, 624 F.2d at 635. Shortly thereafter, the Fifth Circuit
adopted three factors, including the “pernicious error” of Cruthirds, to strike a
delicate balance between judge and jury: (1) the simplicity of the issues, (2) the
extent to which the evidence is in dispute, and (3) the absence of any pernicious or
undesirable occurrence at trial. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930
(5th Cir. 1982). “When these three factors are not present it is more appropriate to
affirm the district court’s decision, recognizing its first-hand knowledge of the
course of the trial.” Carbo Ceramics, Inc. v. Keefe, 166 Fed. App’x 714, 717 (5th
Cir. 2006). Stated differently, where the issues are relatively simple, the evidence
is disputed but not hotly contested, and the trial did not involve prejudicial
influences or improper trial tactics, then deference to the jury over the trial judge is
more appropriate. See id.

      Using this scope and standard of review, the decision of the federal trial
court to grant a new trial for factual insufficiency or against the great weight of the




                                           8
evidence1 is upheld if any of the Shows factors is present or applicable. Id. Of
note, however, the Shows factors guide the review of an order granting a new trial;
federal appellate courts accord far more deference to the trial court’s decision to
deny a new trial than to a decision to grant a new trial. Brady v. Fort Bend Cty.,
145 F.3d 691, 713 (5th Cir. 1998). Such a shift in deference makes perfect sense
because when the trial court denies a new trial there is no tension between judge
and jury. But upon grant of a new trial, the Shows factors assist in determining
whether circumstances exist that warrant deference to the trial court over the jury.

                         III.    REVIEW OF THE NEW TRIAL ORDER
        A merits-based review of the trial court’s reasons for granting new trial in
this case reveals the reasons to be correct. Application of the Shows factors favors
deference to the trial court. The new trial order should be upheld.

A.      The trial court’s articulated reasons are confirmed correct on neutral
        record-evidence review.
        The trial court granted Real Parties’ motion for new trial on two bases:2 (1)
the jury’s answer to Question No. 1(a) was contrary to the overwhelming weight of

        1
           The “great weight” standard is contrasted in federal authority with the lesser, “greater weight”
standard that would permit the trial court to substitute its judgment and grant a new trial where it
concludes the evidence is merely insufficient. See Spurlin v. General Motors Corp., 528 F.2d 612, 620
(5th Cir. 1976). The “great weight” standard for a motion for new trial is, however, a lower standard than
the exacting standard for a directed verdict or judgment n.o.v. because those motions present a question of
law and result in a final judgment. See Shows, 671 F.2d at 930 (citing U.S. for Use and Benefit of
Weyerhaeuser Co. v. Bucon Const. Co., 430 F.2d 420, 423 (5th Cir. 1970)).
        2
           I quibble somewhat with the Majority’s analysis of the jury’s no-negligence response on
ExxonMobil as a basis for the new trial. The jury’s answer to Question No. 4 about ExxonMobil was not
mentioned in the order granting new trial, but it was mentioned in the trial court’s findings. I think the
distinction is significant, as outlined below, because I believe the trial court’s reference to the
ExxonMobil finding is intended as factual support for the trial court’s ultimate conclusion that the jury’s
answer to Question No. 1 about Wyatt was against the great weight and preponderance of the evidence.
ExxonMobil was a settling party and is, therefore, not a party to this appeal. As such, I cannot see that
                                                    9
the evidence; and (2) Wyatt and its witnesses regularly injected evidence of
collateral sources, which tainted the verdict. I examine the factual or quasi-factual
findings made by the trial court either in its order granting new trial or in its
findings of fact and conclusions of law to determine which, if any, of these
findings is unsupported in the record such that the trial court’s new trial order
should be reversed.

       1.      Was the safety chain installed in an incorrect location?
       The trial court makes the following factual determination:                       The “great
weight and overwhelming preponderance of the evidence showed that the safety
chain at issue in this case was installed in an incorrect location.” The Majority
states that “Wyatt did not dispute at trial that the safety chain was installed in an
incorrect location, the condition was unreasonably dangerous, or that real parties
were not warned of the incorrect installation.” Ante at 18. Thus, we agree that this
factual determination is supported by the record.

       2.      Did Wyatt install the safety chain in 2008 and did the safety chain
               move between 2008 and 2011?
       The trial court makes the following factual determination:                       The “great
weight and overwhelming preponderance evidence [sic] introduced at trial
confirmed that Defendant Wyatt Field Services Company installed the safety chain
in 2008 and that the chain remained in the same location until July 3, 2011.”

       The Majority accurately details the testimony of former ExxonMobil
employee Merryman, plaintiff’s expert Howell, Wyatt’s expert Elveston, and

the jury’s answer to Question No. 4 would provide an independent basis for granting Real Parties a new
trial against Wyatt.
                                                 10
Wyatt’s representative Jordan. None testified that Wyatt did not install the chain.
All affirmative evidence was that Wyatt installed the chain. Wyatt’s own expert
testified that it was “more likely” that Wyatt installed it. The parties joined issue
on this point solely by virtue of the Wyatt testimony that Wyatt could not locate
any documents to confirm that Wyatt installed it.

      All evidence regarding movement of the chain is circumstantial evidence by
negative omission. There is no evidence that the chain moved. To move the chain,
a work order was required. None of the work orders in evidence show the chain
moved. Wyatt has no documentation that the chain moved from 2008 to 2011.

      Thus, although there was arguably a fact question on whether Wyatt
installed the chain or whether the chain moved between 2008 and 2011, the trial
court’s factual determination is supported by the record.

      3.     Were the Plaintiffs / Real Parties warned?
      The trial court makes the following factual determination:           The “great
weight and overwhelming preponderance of the evidence introduced at trial
confirmed that Plaintiffs were never warned that the safety chain was incorrectly
installed and had no reason to be aware of the danger.” The Majority states that
“Wyatt did not dispute at trial that . . . real parties were not warned of the incorrect
installation.”   Ante at 18.    Thus, we agree that this factual determination is
supported by the record.

      4.     Did Wyatt repeatedly violate the trial court’s orders in limine?
      The trial court makes the following factual determination: The “Defendant
and its witnesses regularly injected evidence of collateral sources into the case in

                                          11
violation of the Court’s order granting Plaintiff’s motion in limine on this topic.”
The trial court also stated, in its findings, that Wyatt repeatedly violated the
Court’s limine orders, ignored the Court’s admonishments, and injected
inadmissible information into the case.

      Neither Wyatt nor the Majority evaluates the record in this regard at all.
Wyatt does not suggest the record does not support this finding. The Majority
likewise does not suggest that the record does not support this finding. Instead,
Wyatt argues solely that the trial court erred because defense counsel’s alleged
violation of the court’s order “had no effect on whether the jury placed any liability
on Defendant Wyatt.” Led to the analysis by Wyatt, the Majority examines the
trial court’s factual statements purely from the standpoint of harm, not support.
Ultimately, the Majority determines that “Wyatt’s violation of the trial court’s
limine order could not have affected the jury’s finding that Wyatt was not
negligent, and any violation was harmless.” Ante. at 31.

      At the outset, I disagree that a harm analysis has anything to do with our
review of the trial court’s order granting a new trial. If Wyatt’s violation of a
motion in limine could not provide a basis for a new trial because, as the Majority
concludes, limine orders are preliminary and violations of them are curable and
waivable, then the Supreme Court would not have needed to perform a merits-
based review of the record in In re Toyota. There, as here, the trial court’s grounds
for granting a new trial included Toyota’s violation of an order in limine. 407
S.W.3d at 754–55. The Supreme Court stated that this reason, “(if accurate) would
have been ‘legally appropriate’ grounds for new trial.” Id. at 760. However, the
Supreme Court’s merits-based review of the record revealed that Toyota did not
                                          12
violate the trial court’s rulings. Id. at 761. Therefore, the record did not support
that ground. “Support” is our inquiry; not harm.

      Therefore, as Wyatt’s sole allegation is that its conduct “did no harm,”
Wyatt fails to support its petition with any argument that it did comply with the
trial court’s limine orders or an argument that a merits-based review shows that
Wyatt did not violate the trial court’s limine orders. Nevertheless, a review of the
record does support the trial court’s factual statement. On the very last day of
testimony in this three-week trial, the following exchange occurred outside the
presence of the jury:

      THE COURT: At this time I would like to address the witness in this
      matter. This is the second time that you have injected a matter
      involving collateral source in the testimony here today.
      ...
      THE COURT: I am instructing you at this time not to mention
      anything about government assistance or any other collateral source
      for compensation available through any kind of charity or any kind of,
      like I said, government program for these gentlemen. If you violate
      this Court’s instruction, I will hold you in contempt.
      ...
      THE COURT: I want to ask the witness real quickly, did you have a
      conversation with these attorneys about the motions in limine that
      were granted by the Court in this case?
      THE WITNESS: No.

      Wyatt’s counsel acknowledged failing to instruct the witness on the limine
orders. The court’s response to Wyatt’s acknowledgement is striking:

             There’s a right and wrong way to do this. Everybody has done
      this enough times to know how to question and examine a witness so
                                        13
      as not to violate motions in limine and the orders of the Court.
      Moreover, the witnesses themselves know. I have witnesses that this
      isn’t their first time in court. These are professional witnesses. It’s
      amazing to the Court that people that know the rules that have done
      this so many times can stand up and plead ignorance and say, I’m
      sorry, I’m surprised by this happening and that happening.
             You have represented to the Court a number of times that you
      have gone back and spoken to certain witnesses [sic] and the first time
      I ask a witness whether or not you have done that he says no. I want
      to believe you but at the same time I have been told this now several
      times and you say something and then you proceed to do the opposite.
      So I’m afraid I can’t continue to believe you.

      Wyatt’s counsel attempted to deflect the court’s ire by suggesting that the
Plaintiffs had “talked about records that you won’t let in, too; so, I mean, you are
not directing that directly at me, are you?” The trial court responded,
      I am saying that’s got to stop. At this point, yes, I am directing that
      towards you. I don’t have the same issue and nothing has been
      brought up like it has continually with respect to anybody else’s
      conduct . . . .”

      The foregoing exchange makes plain that this is neither a case, like In re
Toyota, where the “record squarely conflicts with the trial judge’s expressed
reasons for granting a new trial,”3 nor is it a case where the trial court, knowing the
outcome of the case, has generated a set of facts not evident from the record.
Instead, the record fully supports the statement that Wyatt repeatedly violated
limine orders and that even before the jury returned its verdict, the trial court was
concerned about Wyatt’s conduct and the impact it was having on the trial.



      3
          407 S.W.3d at 759.
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      5.     Was there any evidence of ExxonMobil’s actual knowledge of the
             danger of the dummy nozzle system?
      The trial court makes the following factual determination:         “The jury’s
finding that ExxonMobil had actual knowledge of any unreasonable risk of
harm/condition is not supported by factually sufficient evidence.”

      In its petition, Wyatt stipulates that the record contains no direct evidence
that ExxonMobil had any actual knowledge of any unreasonable risk of harm or
the condition of the improperly installed safety chain.         Wyatt points to no
circumstantial evidence of actual knowledge. Moreover, Wyatt’s two-paragraph
discussion of this finding does not dispute the trial court’s finding. Instead, Wyatt
urges that the jury’s finding (Question No. 4) that ExxonMobil had actual
knowledge is rendered moot by the answers to other questions. Similarly, the
Majority sidesteps a merits-based review of the record to determine whether the
trial court’s finding is supported and instead concludes that “the jury’s no-liability
finding in favor of Wyatt renders any liability finding against ExxonMobil
immaterial.” Ante at 25. I again urge that this legal analysis, akin to alleged
charge error on traditional appeal from a judgment on jury verdict, is askew of the
analysis we are to perform.

      The trial judge did not grant a new trial to Real Parties against Wyatt
because the jury did or did not have evidence of ExxonMobil’s actual knowledge.
Finding of fact number 5 makes clear that the trial judge granted a new trial to Real
Parties against Wyatt because the jury’s answers to several questions, viewed
together and in light of the evidence, caused the trial judge to conclude that “the
jury failed to follow the Court’s instructions and simply decided to place all

                                         15
responsibility on ExxonMobil without regard to the legal standards set forth in the
Court’s charge.” Whether the ExxonMobil finding is moot or immaterial for
purposes of entry of judgment does not speak to whether the trial judge’s factual
statement about the evidence of actual knowledge has support in the record.

      A merits-based review of the record confirms that (1) there is no direct
evidence that ExxonMobil had actual knowledge, and (2) there is no circumstantial
evidence from which a proper inference of actual knowledge could be indulged.
The trial court’s factual determination that there is insufficient evidence to support
the jury’s answer to Question No. 4 about ExxonMobil’s actual knowledge is
supported by the record and by Wyatt’s stipulation.

B.    The trial court’s unchallenged finding of pernicious or undesirable
      conduct by Wyatt, when evaluated under the Fifth Circuit model,
      requires deference to the trial court’s new trial order.
      Having concluded that the record supports the factual statements made by
the trial court in granting the new trial, I turn to the Shows factors from the Fifth
Circuit model. If any one of them is present, as outlined above, deference should
be accorded the trial judge’s decision to grant a new trial. Shows, 671 F.2d at 930.

      1.     The simplicity of the issues.
      My review of Fifth Circuit authority suggests that few if any cases have
failed to meet this factor. See, e.g., Ellerbrook v. City of Lubbock, Tex., 465 Fed.
App’x 324, 336–37 (finding factor one inapplicable because a Title VII retaliation
claim presents a relatively simple issue). If retaliation is simple, negligence as the
principal issue is also simple. Because the issues are not complex, factor one is not
present and suggests deference to the jury.

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      2.     The extent to which the evidence is in dispute.
      Notwithstanding that the underlying trial lasted several weeks, the actual
disputes between the parties or in the evidence were few. Most of the evidence in
the case was admitted without objection. The parties hotly contested the legal
theory by which the Real Parties’ case needed to be submitted and how to treat
ExxonMobil under Chapter 33. But the parties narrowed their disputes to a very
few, as is reflected by the Majority’s presentation of the evidence, rendering more
evidence undisputed than disputed. See, e.g., Carbo Ceramics, Inc., 166 Fed.
App’x at 717 (finding factor two inapplicable because, “although the evidence is
this case was disputed, there were numerous areas of agreement between the
parties”). Because the evidence is not hotly disputed, factor two is not present and
suggests deference to the jury.

      3.     The absence of any pernicious or undesirable occurrence at trial.
      Factor three is present at a high degree and this Shows factor therefore tips
the ultimate analysis in favor of deference to the trial court. Specifically, as the
foregoing discussion of limine order violations reveals, the record supports the trial
judge’s statement that Wyatt engaged in a pattern of disregarding limine orders.
Wyatt’s counsel refused to admonish witnesses on excluded evidence and, in the
view of the trial court, did so while deliberately misleading the court with
reassurances that limine orders had been communicated to witnesses. Wyatt’s
counsel displayed inadmissible evidence to the jury—evidence that the judge and
jury saw but which this appellate court cannot.

      In addition to these referenced exchanges previously excerpted, the trial
judge admonished the lawyers again just before closing argument.            Giving a
                                         17
specific example once again, the judge highlighted that Wyatt’s counsel assured
the court that a document had been redacted before showing it to the jury, but
when the document appeared on the screen, it was not and therefore “flashed up
there to let everybody know there was another defendant in the case.” The court
stated: “I don’t trust the parties in the matter to do [redactions] on their own,” and
based upon the parties’ three-week track record for not getting redactions
accomplished and showing the jury information that was not admitted, “if [during
closing argument] something is put up that’s violative of the court order or is not
reflective of what the record shows as the agreements of counsel with respect to
evidence in this case, I am going to sanction you.”

      Though, as outlined above, a merits-based review fully supports the
“correctness” of the trial court’s finding that pernicious and undesirable conduct
occurred, no merits-based review could speak to the impact such conduct actually
had on the trial, the jury, and the jury’s resolution of the issues. However, the trial
court, having observed three weeks of trial, believed that conduct infected this jury
trial and deprived Real Parties of a fair trial. There is no appellate methodology
for evaluating whether the trial court was correct about that conclusion and neither
Texas authority nor federal authority suggests that the appellate court should try.
This is the definition of discretion.

      Because factor three is present, Shows requires deference to the trial court’s
decision to grant a new trial.




                                          18
C.    The Majority’s factual-sufficiency deference to implied jury findings
      eliminates all trial-court discretion.
      The Majority defers entirely to the jury and thereby disagrees with the trial
court’s “great weight and overwhelming preponderance of the evidence”
determination. For example, the Majority states: “The jury could have found
Jordan’s testimony that he found nothing in Wyatt’s files to confirm that Wyatt had
done the work was more credible than the testimony based on a single computer
entry showing that Wyatt had done the work.” Ante at 23.

      Second, as the Majority’s analysis illustrates, using the factual-sufficiency
standard and performing a harm analysis has the effect of asking whether the trial
court committed reversible error instead of asking what I urge is the correct
question: Is there support in the record for the trial court’s factual statement?

                                 IV.   CONCLUSION
      The Majority performs a factual-sufficiency review, applying all permissible
inferences and deferring to all credibility determinations that we presume flow in
support of the jury’s answers, and then overlays a harm analysis. As such, the
Majority has applied precisely the standard that we would have applied had the
trial court never made its new-trial decision and, instead, the losing party had
challenged the factual sufficiency of the evidence by regular appeal. For purposes
of a motion for new trial, we have rendered the trial court irrelevant. Because the
trial court’s stated reasons are “correct” on this record and because the trial court
was in the best position to determine whether Wyatt’s pernicious conduct in
violating limine orders operated to prejudice the jury and deprive Real Parties of a


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fair trial, I would hold that the trial court did not abuse its limited discretion.
Because the Majority holds otherwise, I respectfully dissent.




                                      /s/     Sharon McCally
                                              Justice


Panel consists of Justices Christopher, Jamison, and McCally. (Jamison, J.,
majority).




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