                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §

                                                §
                                                                No. 08-09-00293-CV
 IN RE: TOYOTA MOTOR SALES,                     §
 U.S.A., INC., AND VISCOUNT                               AN ORIGINAL PROCEEDING
 PROPERTIES II, L.P. , D/B/A HOY FOX            §
 TOYOTA/LEXUS,                                                    IN MANDAMUS
                                                §
 Relators.
                                                §


                                          OPINION

        Toyota Motor Sales, Inc., U.S.A. and Viscount Properties II (“Toyota”) have filed a

petition for writ of mandamus to compel the Honorable Yvonne T. Rodriguez, Judge of the

Probate Court No. 1 of El Paso County, to withdraw her order granting a new trial in the

underlying case and enter a take-nothing judgment in Toyota’s favor.

        The underlying lawsuit was filed on behalf of the estate of Richard King by and for his

surviving family members (“the Kings”). Mr. King was killed in a rollover accident on

August 25, 2004. The Kings sued Toyota U.S.A. and Viscount Properties alleging his 1997

Toyota 4 Runner caused Mr. King’s death because the vehicle contained a defective restraint

system which allowed Mr. King to be ejected from the vehicle when it rolled. The case was

submitted to the jury in El Paso County Probate Court No. 1 on June 5, 2009. The jury

determined that there was no design defect in the 4 Runner’s occupant safety system and issued a

verdict in favor of Toyota. The trial court entered judgment on the jury’s verdict on July 13,

2009.
       On August 7, 2009, the Kings moved for a new trial in the case. The Kings argued

counsel for Toyota had violated the trial court’s limine and evidentiary rulings by referring to a

lay opinion provided by a police investigator regarding Mr. King’s seatbelt use at the time of the

accident. The Kings’ argued that Toyota’s references to the investigator’s opinion that Mr. King

was not wearing a seatbelt at the time of the accident during the presentation of evidence and

closing argument necessitate a new trial “in the interest of justice.” The Kings amended their

motion on September 9, 2009, alleging that in addition to the grounds outlined in their original

motion, a new trial was also necessary in order to explore newly discovered evidence.

       The trial court entered an order granting the Kings’ a new trial on September 22, 2009.

The order states:

               On this day, the Court considered the Plaintiff’s Motion for New Trial,
       Defendant’s Response, Plaintiff’s Amended Motion for New Trial, the law, and
       the record. After considering same and pursuant to this Court’s authority under
       Rule 320 of the Texas Rules of Civil Procedure, the Court now hereby grants a
       new trial in the above-styled cause in the interest of justice because Defendant
       willfully disregarded, brazenly and intentionally violated the Court’s orders in
       limine, evidentiary rulings, instructions and orders concerning a crucial
       evidentiary issue relating to seat belt use by Mr. Richard King, the decedent,
       during Defendant’s closing argument, it purported to present evidence outside the
       record, and commented on matters in violation of the Court’s order in limine.
       Specifically, during closing argument, Defendant read from the Deposition 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 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. This Court, mindful of its obligations under new Texas Supreme Court
       authority, In re Columbia Medical Center of Las Colinas Subsidiary, L.P., d/b/a
       Las Colinas Medical Center, et. al., 52 Tex. Sup. Ct. Jour. 1016, (Tex. 2009), has
       undertaken the review which only this court can take--which is different than that
       of an appellate court “who have only the record to consider”--and having seen the


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        parties, and witnesses and sensed the affect of the above occurrence on the trial
        grants the motion for new trial, for the specific grounds set out herein, in the
        interest of justice. See 52 Tex. Sup. Jour. 1020. [Emphasis in original].

                Additionally, this Court pursuant to its inherent authority to issue
        sanctions, irrespective of and or in additional to its authority under Rule 320,
        grants a new trial as a sanction to Defendant’s conduct during closing argument
        because Defense counsel’s reading from the deposition of witness Coon during
        closing argument, such to inject an inadmissible, factually unsubstantiated
        conclusion and lay opinion was so prejudicial to the Plaintiffs and inflammatory
        that an instruction to disregard at such a late stage in the trial could not eliminate
        its harm. Moreover, the court finds, in this regard, that this sanction of granting a
        new trial is narrowly tailored to prevent this sort of behavior in the future by
        Defendant.

        Toyota petitions this Court to issue a writ of mandamus compelling the trial court to

reverse its order granting the Kings a new trial, and to re-instate its take-nothing judgment.

Toyota presents two issues in its petition. In Issue One, Toyota contends the trial court abused its

discretion by granting a new trial because the reasons stated in the new trial order are legally and

factually insupportable. In Issue Two, Toyota asserts this error is correctable by mandamus

review under the Texas Supreme Court’s decision in In re Columbia Medical Center of Las

Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009)(orig. proceeding).

        Generally a writ of mandamus will issue only to correct a clear abuse of discretion or the

violation of a duty imposed by law, in circumstances when a regular appeal is not an adequate

remedy. In re Columbia, 209 S.W.3d at 207. In In re Columbia, the Texas Supreme Court held

that a trial court abused its discretion by failing to specify the reasons for its decision granting a

new trial “in the interest of justice.” See In re Columbia, 209 S.W.3d at 213; In re E.I. du Pont

de Nemours & Co., 289 S.W.3d 861, 861-62 (Tex. 2009)(orig. proceeding). The Court

concluded, “the parties and the public are entitled to an understandable, reasonably specific



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explanation why their expectations [that a jury verdict will close the trial process] are frustrated

by a jury verdict being disregarded, or set aside, the trial process being nullified, and the case

having to be retried.” In re Columbia, 209 S.W.3d at 213. The Court conditionally granted

mandamus relief, and directed the trial court judge to specify its reasons for granting a new trial.

Id. at 215. Because the trial court’s order did not include the reasons for its ruling, the Court

expressly declined to consider the realtor’s request for a writ of mandamus directing the trial

court to enter judgment on the verdict. Id. at 214.

       Following Columbia, an order granting a new trial in Texas which fails to specify the

reasons behind it is subject to correction by writ of mandamus. See In re E.I. du Pont de

Nemours & Co., 289 S.W.3d at 862. As our quotation of the trial court’s order above

demonstrates, there is no question that the trial court in this case specified the reasons for its

decision to grant the Kings’ motion, and thereby satisfied the specificity requirements of

Columbia. However, Toyota argues the Supreme Court’s analysis in Columbia supports further

review of the merits of the grounds specified. Based on its conclusion that none of the specified

grounds is sufficient to support the order, Toyota asks this Court to compel the trial court to

vacate its order, and re-instate its judgment on the jury verdict. We disagree that Columbia

authorizes such a review on mandamus and we deny the petition.

       The Columbia decision first reaffirms the trial court’s broad discretion in granting new

trials. See In re Columbia, 290 S.W.3d at 212, citing Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 918 (Tex. 1985)(orig. proceeding). In expressing the broad but not “limitless”

discretion trial court’s have historically enjoyed in granting motions for new trial, the Court

recounted the two instances when a trial court’s new trial order is subject to review by regular


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appeal: (1) when the court’s order is void; and (2) when the trial court erroneously concluded

that the jury’s answer to special issues contained an irreconcilable conflict. In re Columbia, 290

S.W.3d at 209. The Court’s express motivation for the specificity requirement is to support the

public perception of fairness in the judiciary through transparency. See In re Columbia, 290

S.W.3d at 214.

        Furthermore, the Court reaffirmed the trial court’s role as arbiter of motion’s for new trial

under Texas Rule of Civil Procedure 320, and expressly declined to define “good cause” in the

context of the rules governing new trial orders except to note that the significance of the right to

a jury trial, “counsels against courts setting aside jury verdicts for less than specific, significant,

and proper reasons.” In re Columbia, 290 S.W.3d at 210 n.3. It is the reference to “proper

reasons,” and a “valid basis” that Toyota argues indicates the Supreme Court’s intent for the

mandamus review authorized under Columbia also includes review of the merits of the grounds

stated in a new trial order. Id. at 212. We are unpersuaded that the language Toyota relies upon

supports such an expansion of Columbia. Given the Court’s reaffirmance of a trial court’s broad

discretion in these circumstances as discussed above, we do not agree that the passing references

to “proper reasons” and “valid” bases indicate the Court’s intent to add a merits review of the

grounds stated in an order which otherwise satisfies the specificity requirement. It cannot be said

that this order fails to serve the goal of judicial transparency cited in Columbia, and that as such,

the order serves to bolster the perception that this jury verdict was not set aside lightly. See In re

Columbia, 209 S.W.3d at 211. Because the new trial order in this case satisfied the requirements

of Columbia, Toyota has not demonstrated a clear abuse of discretion and we overrule Issue One.

        Having overruled Issue One, we decline to address Toyota’s argument that a regular


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appeal is not an adequate remedy in this instance. See In re Prudential Ins. Co. of America, 148

S.W.3d 124, 135-36 (Tex. 2004)(orig. proceeding). The mandamus relief requested is denied.




September 29, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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