Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 6, 2018.




                                    In The

                   Fourteenth Court of Appeals

                              NO. 14-18-00904-CV



                             IN RE J. C., Relator


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                             312th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-30086

                       MEMORANDUM OPINION

      On October 19, 2018, relator J. C. (Father) filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable David Farr, presiding judge of the 312th District Court of Harris County,
to vacate the order granting new trial.

       In the underlying litigation, the Department of Family and Protective Services
sought termination of relator’s parental rights to his child, A.C. (Andrea).1 The
Department also sought termination of Andrea’s mother’s parental rights. Andrea’s
maternal grandmother (Grandmother) intervened in the termination suit seeking
adoption of Andrea and Andrea’s half-sister.

       Attached to relator’s petition for writ of mandamus is the trial court’s detailed
docket sheet, which reflects that jury trial was waived. At the conclusion of a bench
trial, the trial court terminated Mother’s parental rights, denied termination of
Father’s rights, and appointed Father and Grandmother as joint managing
conservators of Andrea. Before the trial court’s ruling was memorialized in a written
judgment, Father filed a motion to set aside appointment of Grandmother as a joint
conservator arguing, among other things, that Grandmother did not plead for
conservatorship in her petition in intervention. The trial court then clarified its
conservatorship findings and appointed the Department as primary managing
conservator and Father as possessory conservator. The trial court “order[ed] no
conservatorship status for [Grandmother] based on a failure to plead but will allow
[the Department] to make placement with [Grandmother] within their [sic]
discretion.”



       1
         We use pseudonyms to refer to relator, the child, and other family members. See Tex. Fam. Code
Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.
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      On September 14, 2018, the trial court signed a final decree terminating
Mother’s parental rights to two children and confirming relator’s paternity of
Andrea. In the decree the trial court denied termination of Father’s parental rights,
but noted that it was not in Andrea’s best interest to appoint Father as managing
conservator. The Department was appointed sole managing conservator of Andrea.
Ten days later Father filed a notice of appeal of the trial court’s termination decree,
which this court docketed as appeal number 14-18-00838-CV. On the same day,
Grandmother filed a petition to modify the parent-child relationship requesting
appointment as sole or joint managing conservator of Andrea.

      On October 1, 2018, the trial court, sua sponte, granted a partial new trial as
to the issue of primary conservatorship of Andrea. The order states:

      On this 1st day of October, 2018, came to be heard a MOTION FOR
      NEW TRIAL, and after hearing the evidence presented, the court finds
      that the MOTION FOR NEW TRIAL should be granted in part as
      follows.
      The new TRIAL DATE: 12/3/18

           The court grants partial new trial only as to the court’s decision
            as to conservatorship of the minor child [Andrea] appointing
            TDFPS as PMC and [Father] as PC. The court leaves undisturbed
            all orders as to the child [E.T.-T.] as well as all orders which
            granted termination as to [Mother] or denied termination as to
            [Father].

           The court grants leave for [Grandmother] to amend pleadings
            noting that trial is now set well beyond 45 days from the granting
            of the new trial.


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           The court enters (sua sponte) temporary orders appointing
            TDFPS as temporary PMC of the child [Andrea] with SPO to
            Father and child support by Father per final orders. Upon filing
            of amended pleading the court will allow TDFPS to non-suit and
            change temporary SMC to [Grandmother].

      The trial court’s docket sheet notes that a “First Amended New Trial Order”
was signed on October 8, 2018. Relator did not include a copy of this order in his
petition for writ of mandamus or in the mandamus record.

      In two issues, relator argues the trial court’s order granting a new trial is
facially and substantively insufficient under In re Bent, 487 S.W.3d 170 (Tex. 2016)
(orig. proceeding); In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex.
2013) (orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012)
(orig. proceeding); and In re Columbia Medical Center of Las Colinas, Subsidiary,
L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding). In those decisions, the
Supreme Court of Texas held that: (1) a trial court must provide a specific and valid
explanation for setting aside a jury verdict and granting a new trial; (2) mandamus
relief is available where the trial court fails to do so; and (3) an appellate court may
conduct a merits-based review on mandamus to determine if a facially specific and
valid explanation provided by the trial court is supported by the record. See Toyota,
407 S.W.3d at 748–49, 755–59.

      The supreme court recognized that the trial court’s discretion in granting new
trials is not limitless, and granted mandamus review of an order granting new trial
“in the interests of justice and fairness” when the judgment being set aside was a
jury trial verdict. See Columbia, 290 S.W.3d at 206. The justification for creating

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the departure to allow mandamus review of a new trial order in Columbia, was that
“the parties and public are entitled to an understandable, reasonably specific
explanation 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; see also Toyota, 407 S.W.3d at 762. The supreme court decided that despite
its historical approval of trial court orders failing to specify reasons for granting new
trial, “[o]n balance, the significance of the issue—protection of the right to jury
trial—convinces us that the circumstances are exceptional and mandamus review is
justified” when the trial court sets aside a jury verdict. Id. at 209. The court
acknowledged its prior decisions holding that a trial court, in its discretion, may
grant a new trial “in the interest of justice,” but concluded that such a vague
explanation is not adequate when setting aside a jury verdict. Id. at 213.

      Relator offers no argument to explain why standards developed specifically
for the grant of a new trial after a jury verdict apply to a trial court’s grant of a new
trial following a bench trial in a parental-termination proceeding. Cf. Toyota, 407
S.W.3d at 762–63 (Lehrmann, J., concurring) (“Both Columbia and our subsequent
opinion in [United Scaffolding] focused on transparency in the context of setting
aside jury verdicts, noting the importance of ensuring that trial courts do not
impermissibly substitute their judgment for that of the jury . . .. This concern,
however, is not present with respect to new-trial orders that do not set aside a jury
verdict, such as orders issued after a bench trial or setting aside a default judgment.
Accordingly . . ., the Columbia line of cases does not apply to such orders.”) (internal
citations omitted).

                                           5
      This court has declined to extend merits-based mandamus review to trial-court
orders granting a new trial following a bench trial. See In re Cort, No. 14-14-00646-
CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th Dist.] Sept. 9, 2014, orig.
proceeding) (mem. op.) (declining to conduct merits-based review under Columbia
line of cases of an order granting a new trial after default judgment).

      Relator’s arguments that the trial court abused its discretion are premised
specifically on the application of the Columbia line of cases to a new-trial order
following a bench trial; therefore, relator has not satisfied his burden to demonstrate
entitlement to mandamus relief.

      Accordingly, we deny relator’s petition for writ of mandamus.



                                        PER CURIAM


Panel consists of Chief Justice Frost and Justices Boyce and Busby.




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