                  IN THE SUPREME COURT OF TEXAS
                                               444444444444
                                                  NO . 10-0933
                                               444444444444


    IN RE TOYOTA MOTOR SALES, U.S.A., INC. AND VISCOUNT PROPERTIES II,
               L.P., D/B/A HOY FOX TOYOTA/LEXUS, RELATORS

             4444444444444444444444444444444444444444444444444444
                                  ON PETITION FOR WRIT OF MANDAMUS
             4444444444444444444444444444444444444444444444444444

                                          Argued January 8, 2013

       CHIEF JUSTICE JEFFERSON delivered the opinion of the Court.

       JUSTICE LEHRMANN filed a concurring opinion, in which JUSTICE DEVINE joined.

       JUSTICE BOYD did not participate in the decision.

       We have recently held that a trial court must explain with reasonable specificity why it has

set aside a jury verdict and granted a new trial.1 Without such an explanation, parties in the case can

only speculate about why the court ostensibly circumvented a critical constitutional right. The

parties—and the public—are entitled to know why the trial court believes an injustice would occur

if the jury’s verdict were to stand. In this case, the jury returned a verdict, and the trial court

rendered a judgment in conformity with it. The trial court then ordered a new trial. The order is

reasonably specific. Its stated reasons are superficially sound. The question is whether an appellate

court may, in an original proceeding, determine whether the reasonably specific and legally sound




       1
           In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W .3d 204 (Tex. 2009).
rationale is actually true. And if it is not true, we must decide whether the trial court abuses its

discretion by granting a new trial.

          We hold that an appellate court may conduct a merits review of the bases for a new trial order

after a trial court has set aside a jury verdict. If the record does not support the trial court’s rationale

for ordering a new trial, the appellate court may grant mandamus relief. We conditionally grant

relief.

I.        Background

          A.     Facts

          Richard King was driving his Toyota 4Runner along a highway when a commercial truck

turned onto the road in front of him. King swerved to avoid the truck but lost control of his car,

which rolled over several times. King was ejected from the vehicle and died a few hours later.

          B.     Procedural History

                 1. Trial Court

          King’s family sued Toyota and the local Toyota dealership for strict products liability,

negligence, wrongful death, and survivorship.2 The Kings contended that the 4Runner’s allegedly

defective seat belt system caused his ejection from the car and his subsequent death.

          The family asserted that King was wearing his seat belt at the time of the accident. But in

a videotaped pretrial deposition, State Trooper Justin Coon, who responded to the emergency call




          2
            The Kings sued the commercial truck driver and his employers as well, but those defendants are no longer
parties to this dispute.

                                                         2
and arrived on the scene to investigate, testified that he believed that King was not wearing the belt

at the time of the rollover. Specifically, Officer Coon testified:

        Q:                      . . . How do you know about the position of the seat belt?

        Officer Coon:           Well, if he was wearing it or if it broke off, it would have
                                been in a position where it wasn’t in. Obviously, he wasn’t
                                wearing it, because it was in a straight-up position, like it had
                                been sitting there a while, and it hadn’t been pulled out.

        Q:                      So the seat belt was stowed?

        Officer Coon:           Yes.

        Q:                      Did you inspect the webbing, to see if there were any marks
                                on it?

        Officer Coon:           There was not any.

        Q:                      And you did look at it?


        Officer Coon:           I always look at the seat belts, if they are not wearing one.

        Q:                      Did you pull the seat belt out?

        Officer Coon:           No, I did not.


        The Kings filed a motion to preclude at trial “[a]ny reference to the purported opinions of

Officer[] Justin Coon . . . since [he] ha[d] never been identified by Defendants as [an] expert

witness[] in this case.” At a pretrial hearing, the Kings clarified that they would not object to Officer

Coon’s testifying about his observations of the accident scene as long as he did not offer his opinion

that King had not been wearing a seat belt when the car rolled over. The Kings later filed an

additional motion in limine to bar “[a]ny testimony from any purported fact witness including law

                                                   3
enforcement officials, investigators, emergency personnel, medical personnel and bystanders that

Richard King was not wearing his seatbelt . . . before or during the [ac]cident.” The trial court

granted these motions.

        The case proceeded to trial in May 2009.3 Despite the limine orders, Officer Coon’s

statement found its way into the record, in front of the jury, three times before the close of evidence.

Because the trial court’s order cites Toyota’s “prejudicial,” “brazen[],” and “inflammatory” reference

to Officer Coon’s seat belt testimony as a basis for granting a new trial, it is important to detail

precisely the manner in which the information was conveyed to the jury.

        The initial instance occurred when Toyota’s counsel introduced Officer Coon’s video

deposition. To comply with the court’s limine orders, Toyota had redacted portions of the officer’s

testimony, and the relevant passage was edited and played into the record as follows:

        Q:                            . . . How do you know about the position of the seat belt?

        Officer Coon:                 Well, if he was wearing it or if it broke off, it would have
                                      been in a position where it wasn’t in. Obviously, he wasn’t
                                      wearing it, because it was in a straight-up position, like it had
                                      been sitting there a while, and it hadn’t been pulled out.

        Q:                            So the seat belt was stowed?

        Officer Coon:                 Yes.

        Q:                            Did you inspect the webbing, to see if there were any marks
                                      on it?

        Officer Coon:                 There was not any.



       3
           An earlier trial ended in a mistrial.

                                                         4
       Q:                     And you did look at it?

       Officer Coon:          I always look at the seat belts, if they are not wearing one.

       Q:                     Did you pull the seat belt out?

       Officer Coon:          No, I did not.

       Q:                     How—tell—describe to me how you look[ed] at the seat belt.

       Officer Coon:          I mean, it was on its side—

       Immediately after this testimony, in front of the jury, the Kings’ attorney introduced the “if

they are not wearing one” portion of the statement into the record:

       Kings’ Counsel:        Your Honor, after the answer, [“]I always look at the
                              seatbelts, if they are not wearing one.[”] And then there
                              is—under the rule of optional completeness—a question and
                              answer that was not read and I would like to publish that to
                              the jury at this time.

(Emphasis added.)

       Toyota’s attorney was quick to alert the trial court that the plaintiffs’ counsel had just

introduced Officer Coon’s suggestion that King was not wearing a seat belt.

       Toyota’s Counsel:      If I understand it, Your Honor, he just said the question was,
                              [“]Did you look at it?[”] And the answer, [“]I always look at
                              the seat belts.[”] [To the Kings’ attorney] And you said
                              what?

       Kings’ Counsel:        And he finishes the answer.

       Toyota’s Counsel:      You finish the answer.

       Kings’ Counsel:        Under the rule of optional completeness, question at line 23,
                              [“]Did you pull the seat belt out? Answer: No, I did not.[”]
                              That’s what I wanted read into the record.


                                                 5
      Toyota’s Counsel:     Your Honor, I want the full answer to line 21 [just before the
                            previous question and answer] read into the evidence because
                            he just stated it out loud.
      ...

      (Bench conference.)

      ...

      Toyota’s Counsel:     Right. [To the Kings’ attorney] You read, [“]If they are not
                            wearing one.[”] We all heard it. That’s the biggest door
                            opening I have ever seen.

      Kings’ Counsel:       Judge, under the rule of optional completeness I wanted [the
                            next question and answer] read and he can’t go back—

      The Court:            I understand that. You read it. You just read it. You read it
                            into the record and before the jury.

      (End of bench conference.)

      ...


      The Court:            . . . [To Toyota’s attorney] I think [the Kings’ attorney] has
                            read into the record what you wanted published.

      Toyota’s Counsel:     That’s correct. And read into the record the complete answer
                            to the prior question.

      The Court:            It was already read into the record.

      Toyota’s Counsel:     Thank you.

      The Court:            You’re welcome.

(Emphases added.)




                                              6
       The Kings’ attorney did not move to strike the testimony or seek a mistrial, nor did he request

a curative or limiting instruction after quoting the statement. He did not revisit the seat belt issue

during his subsequent tender of designated testimony from Officer Coon’s deposition.

       During Toyota’s direct examination of expert witness Lee S. Carr, the statement was again

read into the record. Carr, an accident reconstructionist, built a scale model of the accident scene.

Before trial, he surveyed the accident site, read available police reports, and reviewed Officer Coon’s

deposition. The relevant portion of Carr’s testimony states:

       Toyota’s Counsel:       All right. And then yesterday, sir, Trooper Coon was
                               presented by deposition. You have read his deposition, have
                               you not, sir?

       Carr:                   Yes.

       Toyota’s Counsel:       I want to review this deposition passage which was read into
                               the record, sir, yesterday. This is page 26 beginning on line
                               17—or 15, rather.

                               Question: So the seat belt was stowed?

                               Answer: Yes.

                               Question: Did you inspect the webbing to see if there were
                               any marks on it?

                               Answer: There was not any.

                               Question: And did you look at it?

                               Answer: I always look at the seat belt if they are not wearing
                               one.

                               Question: Did you pull the seat belt out?

                               Answer: No, I did not.

                                                  7
The Court:               Hold on . . . [Kings’ attorney] has an objection . . .

Kings’ Counsel:          Your Honor, we need the jury out.

(Jury is not present.)

Kings’ Counsel:          Your Honor, let me sort of give you some history here.
                         Yesterday counsel showed what he just showed to the
                         witness, showed it to Your Honor, and said, I’m not going to
                         play this. This is within your ruling where the officer said,
                         [“]If he is not wearing it.[”] . . . That that’s not testimony
                         consistent with Your Honor’s ruling that should be played
                         with the jury.

                         Yesterday I made a mistake when I stood up on the rule of
                         optional completeness and I was trying to identify where I
                         wanted to insert the testimony. And I inadvertently
                         referenced that subject. Fortunately, Your Honor . . . what a
                         lawyer says is not testimony, right? . . .

                         I take it under some sort of guise that I opened the door . . .
                         but that’s something . . . that [Toyota’s attorney] should have
                         sought a clarification for. I think frankly that is sanctionable
                         conduct . . . If he felt that there had been a waiver . . . he
                         should have approached.

The Court:               [Toyota’s counsel]?

Toyota’s Counsel:        Your Honor, I did bring to everyone’s attention that [Kings’
                         attorney] had failed to even object to this passage prior to it
                         being played. Your Honor will recall and the record reflect
                         we had a bench conference shortly before this passage was
                         being offered to the jury. [Kings’ attorney] told me and told
                         the Court that he was going to offer something for purposes
                         of optional completeness. I said, on the record, [“]Well, if
                         you do, be careful of the motion in limine.[”] He said, [“]I’ve
                         got it.[”] He went back to counsel table . . . we completed our
                         video offer, he stood up and he said, [“]For purposes of
                         optional completeness[”]—this wasn’t lawyer talk, this was
                         evidence and he read, [“]If they are not wearing one.[”] . . .

                                            8
                    We then had another bench conference . . . At first [Kings’
                    attorney] tried to deny that he said that. Your Honor had
                    reminded him, [“]No, you just said that. It’s in the record,
                    it’s before the jury.[”] [Kings’ attorney] said, [“]If it’s in the
                    record, it’s in the record, what’s before the jury is before the
                    jury.[”] . . . I don’t need to seek a clarification of what’s in
                    evidence or what’s in before the jury when we had multiple
                    bench conferences about it. Mistake or not—which I know
                    does happen on occasions despite it having been pointed out
                    several times—as [Kings’ attorney] said yesterday, [“]It’s
                    before the jury, it’s in the record and I’m free to use what is
                    in the evidence in framing my questions.[”]

                    So there is nothing sanctionable about that. I know the
                    plaintiffs are disappointed that they did that, but there is
                    nothing sanctionable[.]
...

The Court:          . . . [T]he record is going to have to speak for itself. My
                    recollection . . . is that it was a question that you were reading
                    from the deposition for optional completeness. I understand
                    and recognize that that may have been inadvertent . . .

                    . . . I’m not going to sanction anybody, but . . . [Toyota’s
                    counsel], [do] not . . . publish that to the jury. It has been
                    mentioned. You had already agreed that that would not go
                    before the jury. The evidence is going to be reflected in the
                    record . . .

Toyota’s Counsel:   . . . I understand the Court’s ruling . . . except for the . . .
                    statement that I agreed that that would not be before the jury.
                    I’m not the one that put it before the jury, your Honor, and I
                    don’t think I agreed that it would be after he put it before the
                    jury. I agreed before they put it before the jury that I
                    wouldn’t do it. But after he put it in the record and even
                    conceded to the Court, and I’m sure it will appear in the
                    record, [what’s] before the jury, is before the jury . . . I will
                    simply ask Mr. Carr the follow-up question that I was going
                    to ask him, but I will not publish that again.

The Court:          Thank you. I appreciate it.

                                       9
(Emphases added.) The jury returned, and Toyota’s counsel resumed questioning Carr, without

publishing Coon’s statement again. Later, the statement resurfaced during Toyota’s direct

examination of William Van Arsdell, Ph.D., another of Toyota’s expert witnesses. Dr. Van Arsdell

testified that he had been retained to evaluate the seat belt’s design and performance, and to

investigate whether King’s seat belt functioned properly and whether he was wearing it when the

accident occurred. Dr. Van Arsdell reviewed the depositions of all witnesses, including Officer

Coon. The relevant portion of Dr. Van Arsdell’s direct examination by Toyota’s attorney states:

       Toyota’s Counsel:      . . . During the course of your work in the case, you obviously,
                              thoroughly inspected the driver’s and passengers’ seat belt of
                              the Toyota 4 Runner.

       Dr. Van Arsdell:       Yes.

       Toyota’s Counsel:      You also read depositions?

       Dr. Van Arsdell:       Yes.

       Toyota’s Counsel:      Did you read the deposition of Officer Coon?

       Dr. Van Arsdell:       Yes, I did.

       Toyota’s Counsel:      And based on your reading of his deposition, did he examine
                              the driver’s seat belt of the Toyota 4 Runner?

       Dr. Van Arsdell:       Yes, he said he always would examine the seat belts, if
                              someone was not wearing their seat belt.

(Emphasis added.) The Kings’ attorney did not object to Dr. Van Arsdell’s statement.

       After the close of evidence, but before arguments commenced, the Kings’ attorney asked the

trial court for guidance on the point with respect to Officer Coon’s testimony:



                                                10
      Kings’ Counsel:     [R]emember there was that issue where I was trying to
                          identify a point for optional completeness and I misread or
                          should not have read that. I want to make sure that counsel
                          is not going to use that during their [closing] argument
                          because you ruled on that point four or five times.

      The Court:          Just make your objections and we will preserve the record and
                          appropriate sanctions will be issued to either party if they
                          argue outside the record.

      Toyota’s Counsel:   And just on that point, Your Honor, we do intend to . . . share
                          that with the jury. It’s before the jury, it was read into the
                          record, didn’t allow us to publish, but as [the Kings’ own
                          attorney] himself stated, What is before the jury, is before the
                          jury . . .

      ...

      The Court:          [To the Kings’ attorney] And you make your objection, and
                          I will sanction people accordingly. My recollections of it was
                          that . . . [Officer Coon’s conclusions] are outside the record.

      Toyota’s Counsel:   His statement that [King] was unbelted is outside the record.
                          What is in the record and was read in by [the Kings’] counsel,
                          Your Honor, is the testimony that, [“]I checked the seat belt.
                          And did you look at it? Answer: I always look at the seat
                          belts if they are not wearing one.[”] That is what was read
                          into the record.

      The Court:          I don’t believe that was read into the record at all.

      Toyota’s Counsel:   Well, we do, Your Honor, and we know it was, so we will
                          just argue accordingly.

      The Court:          [To the Kings’ attorney] Make your objections and ask for
                          your sanctions.

      Kings’ Counsel:     I will make the objection if that is done.

(Emphases added.)


                                            11
       During Toyota’s closing argument, Toyota’s counsel quoted the previously admitted line of

questioning from Officer Coon’s deposition:

       Toyota’s Counsel:       Dr. Wright and Mr. Flynn also agreed with Mr.
                               Coon’s testimony about the condition of the seat belt.

                               Question: So is the seat belt stowed? [Aside] This was read
                               into the record.

                               Answer: Yes.

                               Question: Did you inspect the webbing to see if there were
                               any marks on it?

                               Ans[w]er: There was not any.

                               Question: And you did look at it?

                               Answer: I always look at the seat belts if they are not wearing
                               one.

(Emphasis added.)

       The Kings’ attorney objected, arguing that Toyota violated the trial court’s limine order. The

trial judge sustained the objection. But despite the objection, the Kings’ attorney did not move to

strike and did not request a curative or limiting instruction. Toyota’s attorney responded, “You heard

that, and it was read into the record by [the Kings’ own attorney] when Mr. Coon’s deposition

testimony was offered,” and continued with closing argument.

       The jury returned a verdict in Toyota’s favor, and the trial court signed a corresponding

judgment. A few weeks later, the Kings moved for new trial, alleging that Toyota’s counsel had




                                                 12
violated the trial court’s limine rulings by reading, during closing argument, the disputed portion of

Officer Coon’s deposition.4

         Toyota responded that the Kings’ lawyer violated the limine rulings by offering the evidence

first. Toyota elaborated:

         The Court acknowledged on the record that [the Kings’ own attorney] had read
         Officer Coon’s statement into the record. Because [he] read this testimony into
         evidence, [Toyota] had every right to make closing arguments regarding evidence
         already in the record. Plaintiffs cannot introduce evidence, and then allege the
         prejudice from this evidence justifies a new trial.

(Emphasis added.)

         Nevertheless, the trial court granted the Kings’ motion on two grounds. First, the trial court

stated that Toyota had violated the limine order and “purported to present evidence outside the

record.” The court explained that its decision was based on Toyota’s reference during closing to

Coon’s testimony:

         Specifically, during closing argument, [Toyota] read from the [d]eposition of witness
         Justin Coon concerning his lay opinion, and conclusion that Mr. King was not
         wearing a seat belt at the time of the commencement of the rollover. The Court had
         previously excluded these lay opinions and conclusory remarks by witness Coon on
         the grounds that they were not based on his personal knowledge and were, therefore,
         conclusory and incompetent to be presented to the jury and because witness Coon did


         4
            Before the trial court ruled on the new trial motion, but more than thirty days after the judgment was signed,
the Kings filed an amended motion for new trial alleging “newly discovered evidence” about a former Toyota employee’s
unrelated allegations against Toyota for “calculated conspiracy.” Toyota contended that the amended motion was
untimely. See T EX . R. C IV . P. 329b(b) (“One or more amended motions for new trial may be filed without leave of court
before any preceding motion for new trial . . . is overruled and within thirty days after the judgment . . . is signed.”); see
also Moritz v. Preiss, 121 S.W .3d 715, 720 (Tex. 2003) (holding that “an amended motion for new trial filed more than
thirty days after the trial court signs a final judgment is untimely” and does not preserve issues for appellate review but
that “the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under
its inherent authority before the court loses plenary power”).
          Regardless, although the trial court considered the Amended Motion for New Trial, its order relied solely on
arguments already in the original motion. Accordingly, we need not address the timeliness of the amended motion.

                                                             13
        not have the requisite training, education, schooling, or experience to opine whether
        or not Mr. King had been belted at the start of the rollover.

The court thus granted a new trial “in the interest of justice.”

        Second, the trial court reasoned that a new trial was warranted to sanction Toyota for

violating the limine order, because a limiting instruction could not eliminate the harm. See TEX . R.

CIV . P. 320 (“New trials may be granted and judgment set aside for good cause, on motion or on the

court’s own motion on such terms as the court shall direct.”).

                2. Court of Appeals

        Toyota sought a writ of mandamus from the court of appeals, which denied relief. 327

S.W.3d 302. The court evaluated the trial court’s order in light of In re Columbia. The court of

appeals recognized that after Columbia, a new trial order must include the basis for the trial court’s

decision. Id. at 305. But after considering the trial court’s order—reproduced in its entirety in the

court of appeals’ opinion—the court concluded that “there is no question that the trial court . . .

specified the reasons for its decision to grant the Kings’ motion [for new trial], and thereby satisfied

the specificity requirements of Columbia.” Id. (emphasis added). The court of appeals rejected the

notion that “Columbia supports further review of the merits of the grounds specified,” and was

“unpersuaded that the language Toyota relie[d] upon [in requesting mandamus relief] supports such

an expansion of Columbia.” Id. at 305-06 (emphasis added).




                                                  14
                  3. This Court

         Toyota then filed an original proceeding in this Court.5 We set the matter for argument, 55

Tex. Sup. Ct. J. 1212 (Tex. Aug. 31, 2012), and now conditionally grant relief.

II.      Discussion

         A.       An appellate court may conduct merits-based mandamus review of a trial
                  court’s articulated reasons for granting new trial.

         In the decades leading up to Columbia, our jurisprudence gave trial courts broad deference

in granting new trials and, specifically, “approved the practice of trial courts failing to specify

reasons for setting aside jury verdicts.” Columbia, 290 S.W.3d at 208. We generally precluded

review of new trial orders, except in two narrow instances. Id.; see also Johnson v. Court of Civil

Appeals, 350 S.W.2d 330, 331 (Tex. 1961) (recognizing that “[t]here are only two instances where

any appellate court of this state has ever directed the trial judge to set aside its order granting motion

for new trial”: when the order was void or when the trial court erroneously concluded that the jury’s

answers to special issues conflicted irreconcilably).

         But in Columbia, we emphasized that the discretion given trial courts was “not limitless.”

Columbia, 290 S.W.3d at 210. In that case, the jury returned a verdict in favor of the hospital-

defendants after a four-week trial. Id. at 206. The trial judge granted the plaintiffs’ new trial motion

“in the interests of justice and fairness,” without further elaboration. Id. We held that this was

inadequate, noting that “such a vague explanation [whe]n setting aside a jury verdict does not

enhance respect for the judiciary or the rule of law, detracts from transparency we strive to achieve

        5
          The Texas Civil Justice League and the Texas Association of Defense Counsel submitted briefs as amici curiae
in support of the petition for writ of mandamus.

                                                         15
in our legal system, and does not sufficiently respect the reasonable expectations of parties and the

public when a lawsuit is tried to a jury.” Id. at 213.

        We disapproved of our prior approach under Johnson v. Fourth Court of Appeals, 700

S.W.2d 916 (Tex. 1985), and held that “just as appellate courts that set aside jury verdicts are

required to detail reasons for doing so, trial courts must give more explanation than ‘in the interest

of justice’ for setting aside a jury verdict.” Columbia, 290 S.W.3d at 205. We held that “the parties

and public are entitled to an understandable, reasonably specific explanation [of] why their

expectations are frustrated by a jury verdict being disregarded or set aside, the trial process being

nullified, and the case having to be retried.” Id. at 213 (emphasis added). We did not detail exactly

what such an explanation would require, although it would have to be more than a bare assertion of

“in the interests of justice and fairness.” Id.

        More recently, we decided In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), which

presented a related, but narrower, question. There, we were asked to decide whether a trial court that

gave four reasons for granting a new trial, including “in the interest of justice and fairness,” and

linked them by “and/or” satisfied Columbia. Id. at 689.

        In concluding that it did not, we noted that Columbia’s purpose “w[ould] be satisfied so long

as the order provides a cogent and reasonably specific explanation of the reasoning that led the court

to conclude that a new trial was warranted.” Id. at 688 (emphases added). We acknowledged that

Columbia focused “not on the length or detail of the reasons a trial court gives, but on how well

those reasons serve the general purpose of assuring the parties that the jury’s decision was set aside

only after careful thought and for valid reasons.” Id. at 688 (citing Columbia, 290 S.W.3d at 213)).

                                                  16
We held that the trial court’s “use of ‘and/or’ le[ft] open the possibility that ‘in the interest of justice

and fairness’ [could be] the sole rationale.” Id. at 689. That possibility, if true, would have violated

our Columbia standard.

         We held that “a trial court does not abuse its discretion6 so long as its stated reason for

granting a new trial (1) is a reason for which a new trial is legally appropriate (such as a well-

defined legal standard or a defect that probably resulted in an improper verdict); and (2) is 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.” Id. at

688–89 (emphases added). Applying this new standard to the new trial order, we concluded that

because, under Columbia, “in the interests of justice or fairness” or similar language “is never an

independently sufficient reason for granting new trial,” the “and/or” order failed the test’s first prong.

Id. at 689–90.

         This case represents the next step in that progression. We must decide whether, on

mandamus review, an appellate court may evaluate the merits of a new trial order that states a clear,

legally appropriate, and reasonably specific reason for granting a new trial. Stated differently, if a

trial court’s order facially comports with Columbia and United Scaffolding, may an appellate court

review the correctness of the stated reasons for granting a new trial? Absent further guidance from




         6
             W e also provided a non-exhaustive list of examples of new trial orders that would be clear abuses of
discretion, including: giving a reason (specific or not) that was not a legally valid reason; plain statements that the trial
court merely substituted its own judgment for the jury’s; statements that the trial court simply disliked one party’s lawyer;
invidious discrimination; an explanation that provides little or no insight into the trial judge’s reasoning; and pro forma
template language absent a trial judge’s analysis. United Scaffolding, 377 S.W .3d at 689.

                                                             17
this Court, our courts of appeals have generally been reluctant to engage in merits-based review of

new trial orders.7

                                                           ***

         To answer this question, we consider Columbia and United Scaffolding together. A new trial

order must be “understandable,” “reasonably specific,” see Columbia, 290 S.W.3d at 213, “cogent,”

“legally appropriate,” “specific enough to indicate that the trial court did not simply parrot a pro

forma template,” and issued “only after careful thought and for valid reasons,” see United

Scaffolding, 377 S.W.3d at 688 (emphasis added). An order that does not satisfy these requirements

may be corrected by mandamus.




         7
            See, e.g., In re Health Care Unlimited, Inc., No. 04–12–00192–CV, 2012 W L 1142302 (Tex. App.— San
Antonio Apr. 4, 2012, orig. proceeding [mand. pending]) (mem. op.) (denying mandamus with no additional explanation
other than simply being “of the opinion that relator is not entitled to the relief sought”); In re Oliver, No.
09–11–00546–CV, 2011 W L 5594606 (Tex. App.— Beaumont Nov. 17, 2011, orig. proceeding [mand. pending]) (mem.
op.) (denying mandamus relief after concluding that relator had “not shown that the trial court’s reasons provide no valid
basis in th[e] case, or that the trial court clearly abused its discretion”); In re State Farm Mut. Auto. Ins. Co., No.
04–11–00708–CV, 2011 W L 4830177 (Tex. App.— San Antonio Oct. 12, 2011, orig. proceeding [mand. pending])
(mem. op.) (denying mandamus relief and concluding mandamus review is not available when relators are simply asking
appellate court to “review the trial court’s reasons for not granting a new trial”); In re Camp Mystic, Inc., No.
04–11–00694–CV, 2011 W L 4591194 (Tex. App.— San Antonio Oct. 5, 2011, orig. proceeding) (mem. op.) (denying
mandamus relief and reading Columbia to “provide mandamus relief when the trial court fails to specify the reasons for
granting a new trial, not to provide a merit-based review on mandamus”); In re Jazzercize, Inc., No. 05–11–01034–CV,
2011 W L 3805545 (Tex. App.— Dallas Aug. 30, 2011, orig. proceeding [mand. pending]) (mem. op.) (denying
mandamus relief despite relators’ challenge that trial court order granting new trial was “on erroneous and pretextual
reasons”); In re Whataburger Rests., LP, 2010 W L 4983563 (Tex. App.— El Paso 2010, orig. proceeding [mand.
pending]) (denying mandamus relief and interpreting In re Columbia to mean mandamus review is available only “if the
trial court fails to specify the reasons for ordering the new trial,” since the “merits of the grounds stated . . . are not
reviewable by mandamus”).
          But see In re Lufkin Indus., Inc., 317 S.W .3d 516, 518 (Tex. App.— Texarkana 2010, orig. proceeding [mand.
denied]) (denying mandamus relief because it found trial court was within its discretion on at least one ground, but
holding that a trial court’s reasons for granting new trial are reviewable on appeal).
          Notably, after In re Lufkin, the Texarkana court of appeals clarified its position in In re Smith, 332 S.W .3d 704,
708–09 (Tex. App.— Texarkana 2011, orig. proceeding) (denying mandamus relief and clarifying its earlier decision in
In re Lufkin that “[n]ever . . . did we state the proposition . . . that the appellate court should review the entire record,
as in an ordinary appeal, in our mandamus review”).

                                                             18
        Having already decided that new trial orders must meet these requirements and that non-

compliant orders will be subject to mandamus review, it would make little sense to conclude now

that the correctness or validity of the orders’ articulated reasons cannot also be evaluated. To deny

merits-based review would mean that a trial court could set aside a verdict for reasons that are

unsupported by the law or the evidence, as long as those reasons are facially valid. Columbia’s

requirements would be mere formalities, lacking any substantive “checks” by appellate courts to

ensure that the discretion to grant new trials has been exercised appropriately. Transparency without

accountability is meaningless. While we reiterate our “faith in the integrity of our trial bench as well

as that of the appellate bench,” Columbia, 290 S.W.3d at 214, we decline to hold that their decisions

are immune from substantive review.

        We have recognized two narrow instances in which new trial orders are reviewable, on the

merits, by mandamus: when the trial court’s order was void or when the trial court erroneously

concluded that the jury’s answers to special issues were irreconcilably in conflict. See Columbia,

290 S.W.3d at 208 (citing Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.

2005)).8 As to the latter, since at least 1926, we have granted mandamus relief to correct a trial

court’s erroneous ruling. See Gulf, C. & S.F. Ry. Co. v. Canty, 285 S.W. 296, 302 (Tex. 1926). In

such cases, merits-based mandamus review is relatively straightforward—an appellate court may

compare the jury charge against the jury’s answers, and decide whether the trial court correctly

concluded that they conflicted irreconcilably.

        8
          See also Angelina Cas. Co. v. Fisher, 319 S.W .2d 387, 388 (Tex. 1962) (noting that if a trial court is
“mistaken” about whether jury answers were in irreconcilable conflict, mandamus would issue to compel entry of
judgment).

                                                       19
         This case is analogous. Appellate courts must be able to conduct merits-based review of new

trial orders. If, despite conformity with the procedural requirements of our precedent, a trial court’s

articulated reasons are not supported by the underlying record, the new trial order cannot stand.

         While this review is new to us, it is old hat to our colleagues on the federal bench. Federal

appellate courts regularly conduct record-bound, merits-based review of new trial orders to evaluate

their validity.9 For instance, in Peterson v. Wilson, 141 F.3d 573, 580 (5th Cir. 1998), the United

States Court of Appeals for the Fifth Circuit reversed a district court’s ruling granting a new trial,

vacated the judgment rendered after a jury verdict in a second trial, and reinstated the first trial’s

results. The Fifth Circuit observed that the trial court had granted the defendant’s “bare-bones” new

trial motion despite an original verdict for the plaintiff, after the court “met with and interrogated the

jurors after the verdict (concededly, outside the presence of the parties and counsel), and then acted

on the comments of some of the jurors as though their remarks were newly discovered evidence.”

Id. at 575. After examining the district court’s stated reason and “conduct[ing] the obligatory

‘cumbersome review’ of the multi-volume trial record,” the court concluded from its “meticulous

review of the record of the first trial” that “[t]he instant record [could not] support any such

conclusion [that the evidence was insufficient to support the original jury verdict].” Id. at 575–79

(internal citations omitted).10

         9
          See, e.g., Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999) (noting that “[a] district court
must adequately articulate its reasons for overturning a jury verdict . . . so that the reviewing court can exercise a
meaningful degree of scrutiny and safeguard parties’ right to a jury trial”).

         10
            Toyota actually argues that Peterson and the federal model “run[] headlong into established Texas law that
[generally] precludes appellate review of a new-trial order [or a final judgment] after a subsequent retrial,” see Cummins
v. Paisan Constr. Co., 682 S.W .2d 235, 236 (Tex. 1984), but concedes that “[e]ven under the federal model, there are
cases in which the court of appeals granted mandamus to review a new-trial order before a subsequent retrial could

                                                           20
          Similarly, in Cruthirds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas, 624 F.2d 632,

635, 636 (5th Cir. 1980), 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.” The court consulted the record to evaluate the

district court’s two stated grounds for granting new trial—the first, an erroneous jury charge on

comparative negligence, and the second, an “against the great weight and preponderance” and

“prevent[ion of] a miscarriage of justice” type rationale. Id.11 Relevant for our purposes is the fact

that the Fifth Circuit has long engaged in merits-based review of new trial orders, looking to the

records available on a case-by-case basis. Though not binding on this Court, this approach supports

our decision today that the reasons articulated in a new trial order are subject to merits-based

mandamus review.

          B.       Under this standard, the trial court abused its discretion in granting a new trial.

                   1.       Merits-Based Review of This Order

          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.




occur.” W e reference these federal cases only to demonstrate that we are not the first nor the only court to conclude that,
in certain instances, review of the record to evaluate a new trial order may be warranted.

          11
             The court noted that “the record in this case does not clearly reveal what error in the instructions to the jury
was so troubling to the district court,” but ultimately concluded that the district court had committed a fundamental error
in the jury instructions which, though unobjected to by plaintiff’s counsel, was severe enough to warrant sua sponte
correction by new trial. Cruthirds v. RCI, Inc., d/b/a Red Carpet Inn of Beaumont, Texas, 624 F.2d 632, 635–36 (5th
Cir. 1980).

                                                             21
        The new trial order complies with Columbia’s procedural “form” requirements. The trial

judge’s three-page order, which pinpointed Toyota’s reference to Officer Coon’s testimony in closing

argument as the basis for granting new trial, is distinguishable from the Columbia order’s bare

assertion of “in the interests of justice and fairness.” This order, on its face, comports with

Columbia.

        Similarly, the trial court’s explanation of and reference to the specific grounds for new trial

from Toyota’s closing argument satisfy, facially, United Scaffolding’s requirements that the reasons

listed (if accurate) would have been “legally appropriate” grounds for new trial, and are “specific

enough” that they are not simply pro forma. 377 S.W.3d at 688–89.

        The trouble is that the record squarely conflicts with the trial judge’s expressed reasons for

granting new trial. Simply articulating understandable, reasonably specific, and legally appropriate

reasons is not enough; the reasons must be valid and correct. Having undertaken our own

“‘cumbersome review’ of the multi-volume trial record,” Peterson, 141 F.3d at 579 (internal

citations omitted), we conclude that the record does not support the new trial order.

        The trial court initially granted the Kings’ motion in limine to preclude Officer Coon’s

deposition testimony regarding King’s seat belt usage at the time of the crash. But a protective

limine order alone does not preserve error. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.

1986) (noting that “to preserve error as to an improper question asked in contravention of a sustained

motion in limine, a timely objection is necessary”). Furthermore, where, as here, the party that

requested the limine order itself introduces the evidence into the record, and then fails to immediately

object, ask for a curative or limiting instruction or, alternatively, move for mistrial, the party waives

                                                   22
any subsequent alleged error on the point. See, e.g., Bay Area Healthcare Grp., Ltd. v. McShane,

239 S.W.3d 231, 235 (Tex. 2007) (“Error is waived if the complaining party allows the evidence to

be introduced without objection.”); State Bar of Tex. v. Evans, 774 S.W.2d 656, 659 n.6 (Tex. 1989)

(“Failure to request the court to instruct the jury to disregard the inadmissible testimony results in

waiver of the alleged error where the instruction would have cured the error.”); see also TEX . R. APP .

P. 33.1(a) (detailing requirements for preservation of appellate complaints); TEX . R. EVID . 103(a)

(describing effects of erroneous admission or exclusion of evidentiary rulings); JOHN HENRY

WIGMORE , WIGMORE ’S CODE OF THE RULES OF EVIDENCE IN TRIALS AT LAW § 140 (3d ed. 1942)

(“The objector waives an objection when he himself subsequently introduces evidence which is

directed to prove or disprove the same matter and is liable to the same objection.”).

        Even if the attorney’s actions were inadvertent, the Kings introduced the point into evidence

and waived the point of error. The trial court acknowledged the introduction of the evidence, stating

three times that the Kings’ attorney had “read it into the record.” The Kings argue that because the

statement came from their attorney, and not directly from Officer Coon’s deposition, it cannot be

considered a tender or proffer of testimony. The record reflects, however, that the Kings’ attorney

quoted the relevant deposition testimony when making an offer under the rule of optional

completeness and that the trial court repeatedly acknowledged that the evidence had been read into

the record. See TEX . R. EVID . 107 (“When part of a[] . . . recorded statement is given in evidence

by one party, the whole on the same subject may be inquired into by the other, and any other . . .

recorded statement which is necessary to make it fully understood or to explain the same may also

be given in evidence.”) Surely, the Kings would not argue that their intended quotation for optional

                                                  23
completeness was a tender of testimony, while their inadvertent quotation was not. Once the

evidence was in the record—without objection or a request that it be stricken or that the jury be

instructed to disregard—it was in for all purposes and a proper subject of closing argument.

        Toyota’s counsel fairly referenced the previous day’s proceedings during Lee Carr’s direct

examination, by noting that he “wanted to review [Officer Coon’s] deposition passage which was

read into the record . . . yesterday.” Though the Kings’ attorney objected to Toyota’s questioning,

he again neglected to ask the trial court for any sort of ruling, or for a limiting or curative instruction.

The colloquy ended with the trial court’s noting her recollection that Kings’ counsel had previously

“read[] from the deposition for optional completeness” and that his disclosure may have been

“inadvertent.” She stated that she was not going to sanction anyone, that “[t]he record is going to

have to speak for itself,” and that “[t]he evidence is going to be reflected in the record.” See

discussion supra, ___ S.W.3d at ___.

        On the third instance, during Dr. Van Arsdell’s direct examination, the Kings’ attorney again

remained silent. The Kings’ attorney’s objection during closing argument was too late. The

statement was in evidence. Attorneys in closing must “confine the argument strictly to the

evidence”; any evidence in the record is fair game. See TEX . R. CIV . P. 269(e) (“Counsel shall be

required to confine the argument strictly to the evidence and to the arguments of opposing counsel.”).

        The trial court’s pretrial limine rulings prevented Toyota from introducing the evidence, and

the record—specifically, the redacted deposition Toyota offered—reflects Toyota’s compliance with

those rulings. After the Kings’ attorney read the testimony into evidence, and after Toyota’s counsel

repeated the excerpt subsequently, the parties sought clarification from the trial court, who repeatedly

                                                    24
stated that the record would reflect what was in evidence. The trial court did not instruct Toyota not

to mention Coon’s statement during closing; rather, she warned that “appropriate sanctions [would]

be issued to either party if they argue outside the record.” (Emphasis added.) We agree with Toyota

that it did not violate the trial court’s rulings by referencing Officer Coon’s deposition in closing.

       We acknowledge that appellate courts benefit from the hindsight that a complete record

provides. Trial courts, on the other hand, must make difficult, often dispositive, decisions based on

their recollection and best judgment alone, frequently without the aid of full records, transcripts, or

briefing. Nevertheless, having thoroughly reviewed the record here, we conclude that the trial

court’s articulated reason for granting new trial—that Toyota’s counsel “willfully disregarded,

brazenly and intentionally violated” the limine orders in closing—is unsupported. The record

directly contravenes the order, including the trial court’s acknowledgment during trial that the Kings’

attorney “ha[d] read into the record what [Toyota] wanted published.”

       Because the record does not support the articulated reason, the trial court abused its discretion

by granting a new trial on that ground.

               2.      New Trial as a Sanction

       The trial court further explained that it was ordering a new trial pursuant to its inherent

authority to issue sanctions, irrespective of or in addition to Texas Rule of Civil Procedure 320,

because of Toyota’s reference to Officer Coon’s testimony during closing argument. The court held

that the reference was so prejudicial and inflammatory that an instruction to disregard could not

eliminate the harm.



                                                  25
       A new trial on that basis presupposes sanctionable conduct, and we have just held that

Toyota’s statements during closing argument were appropriate. The record reflects that Toyota and

its counsel complied with the limine orders regarding Officer Coon’s deposition, as demonstrated

by the playback of mechanically redacted portions of the videotaped testimony. There is nothing to

suggest that either Toyota or its counsel intended, prior to the statement’s first introduction by the

Kings’ attorney, to introduce the statement regarding King’s seat belt usage to the jury. In fact,

Toyota made clear prior to Officer Coon’s deposition playback that it had voluntarily deleted the “if

they are not wearing one” excerpt, even though there had been no objection or ruling on that portion

specifically. Once the statement was in evidence, however, and in light of subsequent bench

conferences, Toyota’s reference to it during closing argument was appropriate. Given that, the trial

court abused its discretion in sanctioning Toyota for that conduct.

III.   Conclusion

       On mandamus review, an appellate court may conduct a merits-based review of the reasons

given for granting a new trial. That review compels us to conclude that the trial court abused its

discretion in granting a new trial here. The stated reasons, though complying in form with the

requirements of Columbia and United Scaffolding, lacked substantive merit. Further, a new trial was

an improper sanction.




                                                 26
        We conditionally grant relief and order the trial court to withdraw its order and render

judgment on the verdict. We are confident the trial court will comply, and the writ will issue only

if it does not.



                                             ___________________________________________
                                             Wallace B. Jefferson
                                             Chief Justice




OPINION DELIVERED: August 30, 2013




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