In Re United Scaffolding Inc., 09-10-00172-CV

CourtCourt of Appeals of Texas
Writing for the CourtSTEVE McKEITHEN, Chief Justice
Citation315 S.W.3d 246
PartiesIn re UNITED SCAFFOLDING, INC.
Docket NumberNo. 09-10-00172-CV,09-10-00172-CV
Decision Date24 June 2010

315 S.W.3d 246

In re UNITED SCAFFOLDING, INC.

No. 09-10-00172-CV

Court of Appeals of Texas, Beaumont

Submitted April 26, 2010
Decided June 24, 2010


[315 S.W.3d 247]

Kathleen M. Kennedy, Mehaffy Weber, P.C., Beaumont, for relator.

Timothy W. Ferguson, Dominic M.V. Braus, Ferguson Firm, Beaumont, for real parties in interest.

Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

This mandamus proceeding requires this Court to determine whether the trial court complied with the Supreme Court's directive that the trial court specify its reasons for disregarding the jury's verdict and ordering a new trial. See In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010).

Although the Rules of Civil Procedure afford the trial court considerable discretion to set aside a jury verdict, the trial court cannot merely state that its order is in the interest of justice. See In re Columbia Med, Ctr., 290 S.W.3d 204, 210-15 (Tex.2009). The order must state specific reasons for refusing to render judgment on the jury's verdict and for granting a new trial. Id. at 212-15. The trial court's failure to state specific reasons for its ruling is correctable by mandamus. Id, at 215.

In this petition for writ of mandamus, United Scaffolding, Inc. contends the trial court abused its discretion by granting a motion for new trial filed by James Levine and Lisa Levine after a jury rendered a verdict in the underlying proceeding. In its amended order granting a new trial, the trial court states as follows:

After re-considering Plaintiff James and Lisa Levine's Motion for New Trial,

[315 S.W.3d 248]

the Court GRANTS the motion and orders New Trial based upon:

A. The jury's answer to question number three (3) is against the great weight and preponderance of the evidence; and/or

B. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant was a proximate cause of injury in the past to Plaintiff, James Levine; and/or

C. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages; and/or

D. In the interest of justice and fairness.

United Scaffolding complains that the amended order suffers from the same lack of specificity that plagued the original order, which the trial court granted "in the interest of justice and fairness" without identifying the particular injustice or wrongdoing that occurred in the case. See In re United Scaffolding, 301 S.W.3d at 662-63. This time, however, the trial court identified the specific question that the trial court ruled was against the great weight and preponderance of the evidence and explained why the jury's verdict should be set aside. The jury charge contained three questions: (1) Question one required the jury to find whether any negligence of United Scaffolding and James Levine was a proximate cause of the occurrence in question; (2) Question two apportioned negligence between United Scaffolding and James Levine; and (3) Question three contained twelve separate categories of damages. The jury found United Scaffolding to be negligent, and the trial court found that finding was supported by the great weight and preponderance of the evidence. Although the jury found James Levine would in reasonable probability incur expenses of $178,000 for future medical care, the jury failed to find any past damages, and the trial court determined that the great weight and preponderance of the evidence supports an award of past damages.

United Scaffolding argues the trial court's use of the term "and/or'" renders the order too uncertain and indefinite to satisfy the specificity required by In re Columbia Medical Center. Id., 290 S.W.3d at 21.5. This Court has criticized the use of "and/or" in legal writing precisely because it fails to state matters in plain and concise language. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 938 & n. 1 (Tex.App.-Beaumont 2010, no pet.); Willis Sears Trucking Co. v. Pate, 452 S.W.2d 782, 784 (Tex.Civ.App. Beaumont 1970, no writ). The question here is whether the use of "and/or" in the trial court's order renders that order so vague that the relator cannot determine why it has been deprived of its jury verdict. See In re Columbia. Med. Ctr., 290 S.W.3d at 213, 215. Read in the context of this particular order, "and/or" can be understood to mean that the trial court made each finding separately and that the trial court granted the motion for new trial based upon the collective force of all of the findings together. A reasonable reading of the order granting a new trial informs parties that the trial court found that because the great weight and preponderance of the evidence supported a finding that United Scaffolding's negligence was a proximate cause of James Levine's injuries (as found by the jury in answer to Question One), but the great weight and preponderance of the evidence also supported a finding of past damages, (which the jury failed to find in its answer to Question Three), the jury's damages findings in Question Three were against the great

[315 S.W.3d 249]

weight and preponderance of the evidence, and the interest of justice requires a new trial. The trial court certainly could have articulated its reasons for granting a new trial more clearly, but this order is not so vague that the trial court's reasons for its ruling are known only to the trial court.

United Scaffolding suggests that an order granting a new trial must state the trial court's specific reasons for granting the new trial "with reference to the evidence." For this guiding principle, United Scaffolding cites three cases: Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187, 1200-01 (198(5); and Scott v. Monsanto Co., 868 F.2d 786, 791 (5th Cir.1989). These cases do not expressly require a trial court to discuss the evidence in an order granting a motion for new trial.

Quick concerned the denial of a motion for new trial. Quick, 727 P.2d at 1190-91, 1200. The court's holding extended to the denial of a motion for new trial a preexisting rule that required the trial court to "indicate the grounds upon which he relies when he grants a new trial." Id., 121 P.2d at 1201. The court's opinion criticized the trial court's order overruling the motion for new trial because that order failed to reference the applicable rule or the language contained in that rule. Id., 727 P.2d at 1199. Ultimately, the reviewing court required the trial court to "distinguish between the various motions and the grounds upon which they are based, and not... simply lump them all together and issue a general grant or denial." Id., 727 P.2d at 1201. In Quick, the trial court erred because it failed to state the legal basis for its order and not because the trial court failed to articulate the facts that supported granting a new trial.

In Scott, a PCB exposure case, the trial court granted the plaintiffs' motion for new trial and dismissed all claims of all plaintiffs for lack of jurisdiction. Scott, 868 F.2d at 788. The trial court expressed its inclination to grant a new trial to avert what it called a miscarriage of justice. Id., at 789. In the trial court's view, "the evidence left no question that the plaintiffs were exposed to PCBs and that PCBs had a detrimental effect on their health." Id. Although the trial court considered none of the grounds asserted by the plaintiffs to be a sufficient basis upon which to grant a new trial, the trial court expressed its view that the "combined effect of the 'grounds taken together, plus the miscarriage of justice' influenced the district court's decision to grant the plaintiffs' motion for a new trial." Id, On appeal, the reviewing court examined the record and explained why the trial court erred in granting the motion for new trial without discussing the adequacy of the order granting it. Id., 868 F.2d at 789-92. In Scott, the trial court erred because it granted a new trial, not because it failed to discuss the evidence in its order granting a new trial.

Ellis concerns the intermediate appellate court's duty to detail all of the evidence relevant to the issue when the appellate court reverses a trial court judgment for factual insufficiency. Ellis, 971 S.W.2d at 407. When reviewing a case for factual sufficiency, an intermediate appellate court must reveal the mental processes that led to a reversal so that the Supreme Court will be able to determine that the standard of review has been properly applied and the appellate court has not merely substituted its view of the evidence for that of the jury. Pool v. Ford, Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986). When it considers a motion for new trial, the trial court's function is broader and its discretion is wider than that of an intermediate appellate court conducting a factual sufficiency review. See...

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3 practice notes
  • United Scaffolding, Inc. v. Levine, 15-0921
    • United States
    • Supreme Court of Texas
    • June 30, 2017
    ...amended its order, but USI again sought mandamus relief, which the court of appeals again denied. In re United Scaffolding, Inc. , 315 S.W.3d 246, 251 (Tex. App.—Beaumont 2010, orig. proceeding), mand. granted , 377 S.W.3d 685, 690 (Tex. 2012). USI then filed a second petition for writ of m......
  • In re United Scaffolding, Inc., 10–0526.
    • United States
    • Supreme Court of Texas
    • August 31, 2012
    ...the order was issued without providing a reason. Id. at 8–9. And we reaffirmed that principle in Columbia, 290 S.W.3d at 210;see also315 S.W.3d 246, 253 (Gaultney, J., dissenting) (“A trial judge should have no need or requirement to write the equivalent of an appellate opinion explaining w......
  • United Scaffolding, Inc. v. Levine, NUMBER 13-14-00377-CV
    • United States
    • Court of Appeals of Texas
    • January 20, 2015
    ...(Tex. App.—Beaumont 2009, orig. proceeding); In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010); In re United Scaffolding, Inc., 315 S.W.3d 246 (Tex. App.—Beaumont 2010, orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012). In the end, the Supreme Court orde......
3 cases
  • United Scaffolding, Inc. v. Levine, 15-0921
    • United States
    • Supreme Court of Texas
    • June 30, 2017
    ...amended its order, but USI again sought mandamus relief, which the court of appeals again denied. In re United Scaffolding, Inc. , 315 S.W.3d 246, 251 (Tex. App.—Beaumont 2010, orig. proceeding), mand. granted , 377 S.W.3d 685, 690 (Tex. 2012). USI then filed a second petition for writ of m......
  • In re United Scaffolding, Inc., 10–0526.
    • United States
    • Supreme Court of Texas
    • August 31, 2012
    ...the order was issued without providing a reason. Id. at 8–9. And we reaffirmed that principle in Columbia, 290 S.W.3d at 210;see also315 S.W.3d 246, 253 (Gaultney, J., dissenting) (“A trial judge should have no need or requirement to write the equivalent of an appellate opinion explaining w......
  • United Scaffolding, Inc. v. Levine, NUMBER 13-14-00377-CV
    • United States
    • Court of Appeals of Texas
    • January 20, 2015
    ...(Tex. App.—Beaumont 2009, orig. proceeding); In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010); In re United Scaffolding, Inc., 315 S.W.3d 246 (Tex. App.—Beaumont 2010, orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012). In the end, the Supreme Court orde......

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