                   COURT OF APPEALS
                    SECOND DISTRICT OF TEXAS
                         FORT WORTH

                       NO. 02-16-00105-CV


DONNIE R. MARTINEK D/B/A                        APPELLANTS
MARTINEK GRAIN & BINS, INC.,
MARTINEK TRUCKING, AND F.U.
ENTERPRISES A/K/A F.U.E.

                                   V.

ROBERT NEAL SCHLUTER, N & M                      APPELLEES
SCHLUTER FAMILY LIMITED
PARTNERSHIP, AND RN & MK,
INC.

                               ------------

       FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                   TRIAL COURT NO. CV88-344

                                ----------

                                 AND

                       NO. 02-16-00108-CV


IN RE ROBERT NEAL SCHLUTER                        RELATOR
                                      ----------

                           ORIGINAL PROCEEDING
                          TRIAL COURT NO. CV88-344

                                      ----------

               CONCURRING MEMORANDUM OPINION1

                                      ----------

      I agree with the majority opinion’s disposition of the attempted appeal in

cause number 02-16-00105-CV and denial of the petition for writ of mandamus

filed in cause number 02-16-00108-CV. I write separately concerning the denial

of mandamus relief simply to point out that the signing of what is tantamount to

an amended order granting a new trial (as occurred here) is now commonplace

as trial courts attempt to comply with In re Columbia Medical Center of Las

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

      The Texas Supreme Court in In re Columbia Medical Center imposed the

requirement that a trial court granting a motion for new trial provide an

understandable, reasonably specific explanation of why it has set aside a jury

verdict and is granting a new trial. Id. at 213; see also In re Toyota Motor Sales,

U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding). When a trial

court’s order granting a new trial fails to comply with Columbia’s mandate––that

the order provide an understandable, reasonably specific explanation of the trial

court’s reason for setting aside a jury verdict––then the trial court has abused its

      1
       See Tex. R. App. P. 47.4.

                                          2
discretion, and mandamus will lie to compel the trial court to issue an amended

order that complies with Columbia. See, e.g., In re United Scaffolding, Inc., 377

S.W.3d 685, 690 (Tex. 2012) (orig. proceeding). Thus, a trial court’s failure to

comply with Columbia’s requirements constitutes an abuse of discretion, but

does not alone vitiate the granting of a new trial. See id.; see also In re Toyota,

407 S.W.3d at 749 (authorizing mandamus review of reasons stated by trial court

for granting new trial).

      Here, the trial court unequivocally granted a new trial on the last day of its

plenary power by signing a dated, written document (a letter), bearing the trial

court cause number and the style of the case, that was filed with the clerk and

states, “[T]he Court GRANTS Plaintiff’s Motion for New Trial.” See, e.g., In re

CAS Cos., 422 S.W.3d 871, 874 (Tex. App.––Corpus Christi 2014, orig.

proceeding) (holding similar letter ruling constituted order); In re Newby, 266

S.W.3d 557, 558–59 (Tex. App.––Amarillo 2008, orig. proceeding) (same);

Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.––El Paso

1990, no writ) (same). But, because the proposed order granting the new trial

correctly stated some, but not all, of the trial court’s reasons for setting aside the

jury’s verdict and granting a new trial, the trial court requested the preparation

and tender of a new order reflecting the proper reasons by “deleting findings

under B page 4 and 5” of the proposed order. Accord In re United Scaffolding,

Inc., 377 S.W.3d at 690 (requiring trial court to issue amended new trial order

stating specific and valid reasons for granting new trial). Thus, the trial court

                                          3
here granted a new trial within its plenary power by virtue of its letter ruling and

the following day simply signed what amounted to an amended order that

accurately set forth its reasons for granting a new trial per Columbia. Accord id.

Therefore, I concur with the majority’s denial of the petition for writ of mandamus

in cause number 02-16-00108-CV.


                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE


DELIVERED: May 27, 2016




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