How much deference should an appellate court give a trial court’s new-trial order? The Texas Supreme Court faces that question in a mandamus case Justice Debra Lehrmann described during Jan. 8 oral argument as having “long-reaching ramifications.”

With In Re Toyota Motor Sales, U.S.A. Inc. and Viscount Properties II, LP, d/b/a Hoy Fox Toyota/Lexis, the high court weighs the issue of reviewing reasons for granting new trials. In 2009, the Supreme Court ruled in In Re Columbia Medical Center of Las Colinas that a trial court must state specific reasons when it grants a new trial.

Relators’ counsel, Thompson & Knight partner Scott Stolley of Dallas, argued to the high court on Jan. 8 that appellate courts must keep trial courts accountable on mandamus by conducting merits reviews of the reasons a trial court granted a new trial.

But, countered El Paso solo John Mobbs, counsel for the real parties in interest, if the high court allows such review, mandamus would become an “ordinary” remedy, because every losing party would appeal every new-trial order.

According to the Sept. 29, 2010, opinion from the 8th Court of Appeals in El Paso, the family of a man killed in a rollover sued defendants the court collectively refers to as Toyota, and Toyota won a jury verdict. The judge granted a new trial in the plaintiffs’ favor. Toyota sought mandamus at the 8th Court, arguing the reasons for granting the new trial were “legally and factually unsupportable” and that the “error is correctable by mandamus” under In Re Columbia.

The 8th Court denied mandamus, writing that In Re Columbia only requires a trial court to list specific reasons for granting a new trial.

“[T]here is no question that the trial court in this case specified its reasons,” wrote Chief Justice David Wellington Chew. The 8th Court rejected Toyota’s argument that In Re Columbia’s references to “proper reasons” and a “valid basis” for granting new trials “indicates the Supreme Court’s intent for . . . review on the merits.”

Appellate courts should be able to review trial court reasons for granting a new trial, according to the June 30, 2011, Relators’ Brief on the Merits. Such a review is the next step after In Re Columbia, when the Supreme Court ruled a trial court must state specific reasons when it grants a new trial, continue the relators in their high court brief.

“A big piece of Columbia is about transparency, but it needs to be more than just transparency. Trial courts have to be accountable. So transparency without review is transparency without accountability,” said Stolley during oral arguments.

But Mobbs, arguing for the real parties in interest, family members of the man killed, said in oral argument that, if the Supreme Court allows such reviews, “Mandamus will no longer be an extraordinary remedy. It will be an ordinary remedy.”

He warned the justices, “If this court says you have the opportunity to do it, then anyone who has a new-trial order granted against them will do it.”

Stolley declines comment. Mobbs writes in an email that if the court allows merits reviews of new-trial orders, “the result will be years of delay before the case is retried.”

How Much Review?

According to the relators’ brief, “One way for the Court to restore Toyota’s victory is to answer Columbia’s open question: whether mandamus is available to review the merits of a new-trial order to ensure that the specific reasons given are valid, significant, and proper.”

Appellate courts must enforce a trial court’s limited discretion to grant a new trial, argue the relators in their brief: “If the right to know why a new trial has been ordered is important enough to require mandamus correction, then it is even more important to allow mandamus correction when a jury verdict has been set aside for invalid, insignificant, or improper reasons.” — which, the relators argue, was the case here.

But the reasons for the new trial were “valid, significant, proper and certainly within the Trial Court’s discretion,” according to the Aug. 29, 2011, Real Parties’ in Interest Brief on the Merits.

The real parties in interest argue that In Re Columbia only compels a trial court to provide specific reasons in a new-trial order, and the trial court complied.

“Relator’s petition is an invitation to judicial activism because it asks this Court to radically depart from over a century of precedent and upend the deep respect which Texas affords its trial judges. It is a cynical assault on Texas trial judges and the trust which the legislature and over a century of precedent has rightly placed on them to exercise their discretion,” says the real parties’ brief.

The real parties in interest argue that trial courts “engage in a live review” when considering a new-trial motion, and replacing it with an appellate standard would “destroy the trial court’s unique perspective.”

During oral arguments on Jan. 8, Justice Paul Green asked Stolley, “In what you’re proposing, in almost every instance where a new trial is granted, the offended party is going to seek mandamus relief. I mean — As a lawyer, wouldn’t you do that?”

Stolley replied it was likely to happen a lot, which he said speaks to the problem: “Proper verdicts are being taken away for invalid and improper reasons, and that’s why this court should step in. I think it would actually happen less if this court would step in and let trial judges know they are accountable,” said Stolley.

Justice Don Willett asked Stolley what standard he would propose to avoid a “full-blown, soup-to-nuts merit review” of every new-trial order.

Stolley responded that the court has already recognized two categories entitled to a review on mandamus: when a new-trial order is void, or when a trial court grants a new trial for an alleged irreconcilable conflict in a jury verdict when there is none, replied Stolley.

He suggested the court add another category: “When the error is plain on the face of the record, when it’s a pure question of law, when the facts are undisputed, and when there’s an undisputed failure to preserve error. We have all the elements in this case.”

Justice Phil Johnson asked Mobbs if a party who lost a new-trial order and went through a second trial would have an opportunity to appeal the new-trial order from the first trial.

No, Mobbs replied, because the party would already have a second jury verdict that was not “tainted” by the error from the first trial.

But what if there was no error, asked Chief Justice Wallace Jefferson. Could an appellate court set aside the second verdict and restore the first?

Mobbs said the trial judge who set aside the first verdict had an observational advantage and, “It makes more sense in respecting the trial court’s decision.”

Justice Eva Guzman said suits are expensive to try and asked Mobbs: Wouldn’t it make sense to review new-trial orders “at the front” instead of waiting for the end of a second trial?

Mobbs said the problem is every new-trial order would go through mandamus, which also has costs. For example, without this mandamus, the new trial in this case would be over, and any appeals would almost be finished.

Reviewing a new-trial order outweighs the cost of the new trial itself, Mobbs said, because a trial court has discretion and an observational advantage, so it’s unlikely an appellate court would set aside a trial court’s judgment.