Opinion
NO. 14-19-00047-CV
04-23-2019
IN RE John HIGHTOWER, Jr. and Jessica Hightower, Relators
On January 15, 2019, relators John Hightower, Jr. and Jessica Hightower filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable Carson Campbell, presiding judge of the 335th District Court of Washington County, to withdraw the court’s order granting a mistrial and enter a take-nothing judgment in relators' favor. Finding no abuse of discretion, we deny relators' petition for writ of mandamus. I. BACKGROUND
Several residents of the Sacred Heart subdivision in Brenham (Plaintiffs and real-parties-in-interest) sued relators (Defendants), also Sacred Heart residents, seeking permanent injunctive relief for alleged violations of deed restrictions based on Defendants' operation of a lighted horse arena at night.
A. Pretrial
On April 24, 2017, the trial court signed a temporary restraining order (TRO) in which the court ordered Defendants to refrain from (1) using or operating the arena lights installed on their property at any time of the day or night; (2) using or operating any substitute form of lighting for the arena lights on their property at any time of the day or night; and (3) using or operating the horse arena on their property for any purpose.
On July 6, 2017, the trial court signed an amended order granting a temporary injunction. The temporary injunction continued the light usage restrictions put in place by the TRO. At a temporary injunction hearing Defendants' attorney informed the court that he had conducted a light test with directional shades intended to remediate the alleged nuisance. The lights were turned on at night for the test in violation of the temporary injunction. Photographs of the lighted horse arena were taken showing the lighting with shades installed to remediate the glare. When Defendants attempted to introduce photos of the light test results into evidence at the hearing Plaintiffs objected, and the trial court excluded the proffered photos.
Before trial Plaintiffs filed a motion in limine and motion to exclude, requesting an order barring testimony, comment, argument, or proffer of evidence of "solutions, alternatives, or fixes—that somehow would alter the nature of the lights at issue in the case[.]" The trial court granted the motion in limine stating that the relevant issue was the condition of the lights at the time suit was filed, not a later condition based on remediation. In a written order granting in part Plaintiffs' motion to exclude and the motion in limine, the trial court specifically excluded:
Any testimony, comment, argument or proffer of alleged evidence regarding alleged solutions, alternatives or fixes that somehow would alter the nature of the lights at issue in the case or otherwise cause them not to be in violation of the deed restrictions at issue or not be a private nuisance, are barred and excluded. By way of example, this order applies to bar any evidence of alleged technical fixes that could somehow resolve any issues with the lights, if any, including glare shields, blinders, alternative wattages, alternative equipment, or other adjustments, evidence of any alleged testing of the lights under such conditions, or opinions of the impact of same if they were to be implemented.
To clarify, the order both granted a motion in limine as to certain matters and specifically excluded other matters. The part of the order relevant here is the paragraph quoted above, which excluded the described evidence. The part of the order granting Plaintiffs' motion in limine and instructing the parties to approach the bench before offering evidence pertained to other matters not at issue in this mandamus proceeding.
B. Trial
At trial Defendants introduced Defendants' Exhibit 106 during John Hightower’s testimony, prompting the following exchange:
Q. Okay. What does that photo show?
A [Hightower]. That’s a picture of my arena with the lights on from my driveway.
MR. MCLEMORE [Defendants' attorney]: Your Honor, I'd offer Defendants' 106.
MS. PONIG [Plaintiffs' attorney]: Your Honor, if we could have some information on when the photo was taken.
THE COURT: Okay.
Q. (By Mr. McLemore) Do you know when that photo was taken?
A. Between February of [20]16 and April of [20]16.
Q. Okay. And does that photo fairly and accurately show your lights functioning on your property?
A. Yes.
MR. MCLEMORE: Your Honor, I'd offer Defendants' 106.
MS. PONIG: No objection, Your Honor.
THE COURT: The Court will admit Defendants' Exhibit 106.
The jury ultimately found that Defendants had not failed to comply with the deed restrictions and did not intentionally create a private nuisance.
C. Post-trial
Following the jury’s verdict, and before the trial court rendered judgment, Plaintiffs filed a "Motion for Declaration of Mistrial, Post-Trial Striking of Defendants' Answer, and Entry of Final Judgment in the Form of Permanent Injunction and Award of Attorney’s Fees or, in the Alternative, Motion for Declaration of Mistrial and New Trial; Response in Opposition to Defendants' Motion for Entry of Judgment." In their motion Plaintiffs alleged that Hightower misrepresented the time the photo, Defendants' Exhibit 106, was taken and that Exhibit 106 was one of the photos taken on May 4, 2017, in violation of the temporary injunction. In the motion Plaintiffs further alleged that Defendants violated the trial court’s exclusionary order and order in limine during closing argument by referring to remedial measures that could be taken. Attached to Plaintiffs' motion were several exhibits, including photos that Defendants attempted to introduce at the temporary injunction hearing but were not allowed to introduce because the photos were taken in violation of the TRO. The crux of Plaintiffs' argument revolved around whether the photo introduced at trial (Exhibit 106) was actually one of the photos that was taken in violation of the TRO. In substance, the Plaintiffs contended that Exhibit 106 was in fact taken in violation of the TRO; that it was covered by the court’s pre-trial exclusionary order; that, in response to Plaintiffs' counsel’s question, Hightower misrepresented the date the photo was taken to evade the court’s exclusionary ruling; and that had Hightower testified truthfully in response to Plaintiffs' counsel’s question, Plaintiffs would have proceeded to object because the exhibit violated the pre-trial exclusionary ruling. Defendants responded to Plaintiffs' motion arguing that Hightower did not misrepresent the time of the taking of the photo.
After a non-evidentiary hearing, the trial court declared a mistrial on October 15, 2018, based on violation of the court’s pre-trial order and the Plaintiffs' objections at trial to the admission of Defendants' Exhibit 106. At the hearing the primary discussion was whether Exhibit 106 showed the lights with remediation or showed the lights as they were at the beginning of the suit.
D. Trial court’s order
In the trial court’s written order, the court stated that it granted the Defendants' motion and declared a mistrial. In its order the court noted the following:
Plaintiffs did not waive their objection to the admission of Defendants' Exhibit 106. Plaintiffs obtained a pretrial ruling through the court’s order in limine and preserved that objection through trial. Remington Arms Co., Inc. v. Caldwell , 850 S.W.2d 167, 169 (Tex. 1993). Defendants' violation of that order came to light after trial. Id.
Accordingly, the Court grants Defendants' motion and declares a mistrial. Galvan v. Downey , 933 S.W.[2]d 316, 321 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
As noted above, although the trial court described its pre-trial order as an "order in limine," the trial court’s order stated, "Any testimony, comment, argument or proffer of alleged evidence regarding alleged solutions, alternatives or fixes that somehow would alter the nature of the lights at issue in the case or otherwise cause them not to be in violation of the deed restrictions at issue or not be a private nuisance, are barred and excluded. " (emphasis added). The trial court’s order was not a traditional limine order in which the parties are required to further object to evidence when it is introduced at trial. The trial court’s order was a pre-trial order barring and excluding all evidence of solutions, alternatives, or fixes that somehow would alter the nature of the lights at issue.
II. ANALYSIS
A. Mandamus Standard
Mandamus is the proper vehicle to review the granting of a mistrial. Galvan v. Downey , 933 S.W.2d 316, 321 (Tex. App.—Houston [14th Dist.] 1996, writ denied). In this case, the motion for mistrial was the functional equivalent of a motion for new trial; therefore, we look to the standards governing the review of the granting of a motion for new trial. See In re Columbia Medical Center of Las Colinas , 290 S.W.3d 204, 206 (Tex. 2009) (orig. proceeding).
A trial court’s order granting a new trial after a jury trial is subject to mandamus review. In re United Scaffolding, Inc. , 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding). A new trial order initially must satisfy two "facial requirements." In re Bent , 487 S.W.3d 170, 173 (Tex. 2016) (orig. proceeding). First, the order must state a legally appropriate reason for the new trial. Id. Second, the stated reason must be specific enough to indicate that the trial court did not simply parrot a pro forma template but rather derived the articulated reason from the case’s particular facts and circumstances. Id. The order must satisfy both requirements, or it reflects an abuse of discretion correctable by mandamus. See United Scaffolding , 377 S.W.3d at 688–89.
Further, even if a new trial order meets the facial requirements, a relator can show an abuse of discretion and an entitlement to mandamus relief if, after a merits-based review, the record does not support the trial court’s rationale for ordering a new trial. See Bent , 487 S.W.3d at 173 ; In re Toyota Motor Sales, U.S.A., Inc. , 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding).
B. The trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate.
The trial court’s order cites Defendants' violation of the motion in limine as the reason for granting a mistrial. Defendants argue that Plaintiffs waived any objection they may have had to Defendants' Exhibit 106 by failing to make a contemporaneous objection at trial. We recognize that motions in limine do not preserve error; however, a distinction is drawn between a motion in limine and a pretrial ruling on admissibility. Owens–Corning Fiberglas Corp. v. Malone , 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff'd , 972 S.W.2d 35 (1998). While the trial court’s order granting a mistrial uses the phrase, "order in limine," the order in fact was a pre-trial order excluding evidence. The trial court has authority to make a pre-trial ruling on the admissibility of evidence. Reveal v. West , 764 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1988, no writ). The trial court also has authority to grant a mistrial when evidence was introduced in violation of its order and the harm could not be corrected by an instruction to the jury. Citigroup Glob. Markets Realty Corp. v. Stewart Title Guar. Co. , 417 S.W.3d 592, 604 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Therefore, the trial court’s order complies with the first facial requirement. See Toyota , 407 S.W.3d at 756–57.
The trial court’s order also satisfies the second requirement of specificity. The order contains the specific facts and circumstances of the case that led the trial court to reach its conclusion. The order is specific enough both to permit Defendants to attack it and to enable our review. See id.
C. The trial court’s reason for granting a mistrial (violation of the exclusionary order) is supported by the record.
The purpose of a motion in limine is to prevent a party from asking prejudicial questions and introducing evidence in front of the jury without first asking the court’s permission. See Weidner v. Sanchez , 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, no pet.). An order granting a motion in limine by itself preserves nothing for review. Estate of Veale v. Teledyne Indus., Inc. , 899 S.W.2d 239, 242 (Tex. App.—Houston [14th Dist.] 1995, writ denied). The complaining party must object immediately and also request the trial court to instruct the jury to disregard the evidence introduced in violation of a limine order. State Bar of Tex. v. Evans , 774 S.W.2d 656, 658 n.6 (Tex. 1989) ; Weidner , 14 S.W.3d at 363. This court has held that a trial court may not properly grant a new trial based on a violation of a limine order where the violation has been waived by a party’s introduction of the evidence or failure to make a timely objection and ask for a curative instruction or a mistrial. In re State , No. 14-18-01036-CV, 2018 WL 6722351, at *4 (Tex. App.—Houston [14th Dist.] Dec. 21, 2018, orig. proceeding) (mem. op.).
In this case, the trial court not only granted the motion in limine but also specifically prohibited the Defendants from introducing into evidence any photos taken in violation of the TRO, specifically any photos that depicted the lights at a time after the suit was filed. When Defendants' Exhibit 106 was introduced, Plaintiffs' attorney asked when the photo was taken to determine whether the photo violated the exclusionary order. Hightower, the sponsoring witness, testified that the photo was not taken in violation of the TRO but was taken between February 2016 and April of 2016. Based on Hightower’s testimony Plaintiffs' attorney stated that she had "no objection" to the exhibit. According to Plaintiffs' motion for mistrial filed after the jury’s verdict, Plaintiffs did not learn until after trial that Hightower had misrepresented the time the photo (Exhibit 106) was taken.
In Remington Arms Co., Inc. v. Caldwell , 850 S.W.2d 167 (Tex. 1993), cited by the trial court in its order, the Supreme Court of Texas held that if pretrial discovery abuse is not revealed until after trial has begun, or even after trial, a party cannot be said to have waived a claim for sanctions. Id. at 170. Relying on the holding in Remington Arms , the trial court found that Plaintiffs preserved their objection to admission of the photo taken in violation of the court’s exclusionary order despite Plaintiffs' failure to contemporaneously object at trial. The objectionable nature of the photo was not revealed until after trial despite a pointed inquiry on the matter.
While Plaintiffs did not object to Defendants' Exhibit 106, they asked the appropriate questions to elicit whether the photo violated the exclusionary order and they received an answer indicating the photo was not taken at a time that would have violated the TRO. According to Plaintiffs they would have objected had they learned at trial that the photo was not taken during the time period Hightower claimed. The trial court determined that Plaintiffs did not waive their objection to the photo, or their right to enforce the exclusionary ruling, because they did not learn of the violation until after the jury’s verdict.
Whether Defendants' Exhibit 106 violated the pre-trial exclusionary order and whether Hightower misrepresented the time the photo was taken are credibility determinations the trial court decided in favor of Plaintiffs. An appellate court may not question determinations of credibility in an original mandamus proceeding. In re Roof , 130 S.W.3d 414, 416 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding).
III. Conclusion
The trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate. In addition, the trial court’s reason for granting a mistrial is supported by the record. Relators have not established their entitlement to mandamus relief. We therefore deny relators' petition for writ of mandamus. See Bent , 487 S.W.3d at 173.
( Frost, C.J. dissenting).
DISSENTING OPINION
Kem Thompson Frost, Chief Justice
Though a motion for mistrial is not the same as a motion for new trial, the need to protect the right to trial by jury under the Texas Constitution counsels in favor of applying the mandamus standards recently developed by the Supreme Court of Texas for reviewing orders granting a new trial to orders granting a post-verdict mistrial. The majority concludes that the trial court’s mistrial order satisfies the facial-validity requirements under this line of cases. Because the trial court did not provide an understandable, reasonably specific explanation of its reasons for granting a mistrial, the trial court abused its discretion, and this court should grant mandamus relief.
The Applicable Legal Standard
To get mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator lacks an adequate remedy at law, such as an appeal. A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. Under an abuse-of-discretion standard, we defer to the trial court’s factual determinations if the evidence supports them, but we review the trial court’s legal determinations de novo.
In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
In re Cerberus Capital Mgmt. L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam).
In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
This court may presume, without deciding, that a trial court properly may grant a motion for mistrial after the trial court has discharged the jury and that the substance of the trial court’s order was a mistrial order. Nonetheless, a post-verdict order granting a mistrial vitiates the jury’s verdict and presents the same potential to undermine the right to trial by jury under the Texas Constitution as does an order granting a new trial. Thus, even under these two presumptions, this court should review the order granting a post-verdict mistrial under the legal standards applicable to a trial court order granting a new trial. That means this court should look to the mandamus standards the Supreme Court of Texas has given for reviewing orders granting motions for new trial in analyzing today’s case.
See Rod Ric Corp. v. Earney , 651 S.W.2d 407, 408–09 (Tex. App.—El Paso 1983, no writ) ; Anheuser-Busch, Inc. v. Smith , 539 S.W.2d 234, 237 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ).
See In re Bent , 487 S.W.3d 170, 172–73, 175 (Tex. 2016) (orig. proceeding); In re Toyota Motor Sales, U.S.A., Inc. , 407 S.W.3d 746, 757–58 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc. , 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P. , 290 S.W.3d 204, 213 (Tex. 2009) (orig. proceeding).
Under these standards, a trial court granting a motion for a post-verdict mistrial must give an understandable, reasonably specific explanation of the trial court’s reasons for setting aside the jury’s verdict. The trial court should state one or more reasons for the ruling and those reasons should be both legally appropriate and sufficiently specific to show the trial court did not simply parrot a pro forma template but rather derived the articulated reasons from the particular facts and circumstances of the case at hand.
See In re Bent , 487 S.W.3d at 173 ; In re Columbia Med. Ctr. , 290 S.W.3d at 213.
See In re Bent , 487 S.W.3d at 173 ; United Scaffolding , 377 S.W.3d at 688–89.
Even if a mistrial order meets these facial-validity requirements, the courts of appeals may conduct a "merits review" of the bases for the post-verdict mistrial and grant mandamus relief if the record does not support the trial court’s rationale for ordering the post-verdict mistrial.
See In re Bent , 487 S.W.3d at 173 ; In re Toyota Motor Sales, U.S.A. , 407 S.W.3d at 749.
The Motion the Trial Court Granted
Real parties in interest Nancy and Doug Herms, Debbie Pruitt, Ixarah and Brad Pranschke, and Amy and Lance Warmke (collectively the "Real Parties") filed a "Motion for Declaration of Mistrial, Post-Trial Striking of Defendants' Answer, and Entry of Final Judgment in the Form of Permanent Injunction and Award of Attorney’s Fees or, in the Alternative, Motion for Declaration of Mistrial and New Trial" (the "Motion for Mistrial"). In the Motion for Mistrial, the Real Parties complained that relators John Hightower, Jr. and Jessica Hightower presented false testimony from John Hightower that Defendants' Exhibit 106 was a photograph taken between February 2016 and April 2016, when, in fact, the photograph was taken on May 4, 2017. The Real Parties indicated in the Motion for Mistrial that because this photograph was taken on May 4, 2017, its admission into evidence violated the trial court’s pretrial order excluding "[a]ny testimony, comment, argument or proffer of alleged evidence regarding alleged solutions, alternatives or fixes that somehow would alter the nature of the lights at issue in the case or otherwise cause them not to be in violation of the deed restrictions at issue or not be a private nuisance" (the "Pretrial Order"). The Real Parties also complained that the Hightowers' counsel violated the Pretrial Order by allegedly referring to solutions and remedies during closing argument.
Based on both the allegedly false testimony regarding Defendants' Exhibit 106 and the statement during closing argument, the Real Parties moved for two alternative forms of relief. First, based on these two alleged violations of the Pretrial Order, they asked the trial court to declare a mistrial, strike the Hightowers' answer, and render final judgment in the Real Parties' favor, granting them a permanent injunction and awarding them attorney’s fees. In the alternative, the Real Parties asked the trial court to declare a mistrial, grant a new trial, and award the Real Parties monetary sanctions against the Hightowers in the amount of the Real Parties' attorney’s fees, paralegal fees, and costs incurred.
Thus, I respectfully disagree with the majority’s conclusion that "the motion for mistrial was the functional equivalent of a motion for new trial."
The Text of the Trial Court’s Order
The trial court’s order reads in its entirety as follows:
Having considered Plaintiffs' Motion for Declaration of Mistrial, Post-Trial Striking of Defendants' Answer, and Entry of Final Judgment or, in the Alternative, Motion for Declaration of Mistrial, the Response of Defendants, and the arguments of counsel, the Court FINDS:
Plaintiffs did not waive their objection to the admission of Defendants' Exhibit 106. Plaintiffs obtained a pretrial ruling through the court’s order in limine and preserved that objection through trial. Remington Arms Co., Inc. v. Caldwell , 850 S.W.2d 167, 169 (Tex. 1993). Defendants' violation of that order came to light after trial. Id.
Accordingly, the Court grants Defendants' motion and declares a mistrial. Galvan v. Downey , 933 S.W.[2]d 316, 321 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
It is so ORDERED.
In the order the trial court said that it granted the "Defendants' motion." The Hightowers, the "Defendants," had filed a motion for judgment on the jury’s verdict, but granting this motion would be inconsistent with the other statements in the mistrial order. Presumably, this was a typographical error, and the trial court meant to say "the Court grants Plaintiffs' motion." If so, the trial court stated that it granted the Motion for Mistrial; the trial court did not state that it granted this motion in part.
The trial court did not identify one or more reasons the court declared a mistrial. The trial court discussed preservation of error regarding Defendants' Exhibit 106, and then stated "[a]ccordingly, the Court grants Defendants' motion and declares a mistrial." In the Motion for Mistrial the Real Parties sought alternative relief based on two different alleged violations of the Pretrial Order. Even presuming that the trial court "declare[d] a mistrial" based only on the complaint regarding Defendants' Exhibit 106, the Real Parties sought two distinct types of relief based on this complaint: (1) the Real Parties asked the trial court to declare a mistrial, strike the Hightowers' answer, and render final judgment in the Real Parties' favor, and (2) in the alternative, the Real Parties asked the trial court to declare a mistrial, grant a new trial, and award the Real Parties monetary sanctions against the Hightowers. In each request, the Real Parties asked the trial court to declare a mistrial. In stating that it declared a mistrial, the trial court did not specify which of the two requests the trial court was granting.
Without addressing the merits of the trial court’s preservation-of-error statements, it is appropriate for a trial court in circumstances such as these to address preservation of error. See In re Athans , 478 S.W.3d 128, 139–40 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).
The Real Parties cited the Remington Arms case in the Motion for Mistrial in support of their request that the trial court declare a mistrial, strike the Hightowers' answer, and render final judgment in the Real Parties' favor. In the part of the Remington Arms case the trial court cited in the mistrial order, the Supreme Court of Texas describes how the trial court "declared a mistrial, struck Remington's pleadings, and rendered a default judgment against Remington on issues of liability for negligence and gross negligence." Though the trial court did not mention that it was striking the Hightowers' answer and rendering final judgment in the Real Parties' favor, neither did the court mention that it was granting a new trial and awarding the Real Parties monetary sanctions against the Hightowers.
See Remington Arms Company v. Caldwell , 850 S.W.2d 167 (Tex. 1993).
Id. at 169.
In the mistrial order, the trial court mentions an "objection to the admission of Defendants' Exhibit 106." But the Real Parties complained not of an allegedly erroneous admission of evidence, but of the Hightowers' alleged presentation of "false evidence" or "untruthful" testimony as to when the photograph was taken to obtain admission of Defendants' Exhibit 106, even though that exhibit allegedly violated the Pretrial Order. In its order, the trial court did not make a finding as to when the photograph was taken or as to whether John Hightower testified untruthfully at trial on this point. Other than the reference to Defendants' Exhibit 106, the trial court did not mention any evidence upon which it relied in deciding to declare a mistrial. The trial court did not find the photograph was taken on May 4, 2017, or explain what evidence would lead to such a conclusion — a significant point because no evidence before the trial court showed that the photograph was taken on that date. The trial court did not state whether it relied upon an inspection and comparison of Defendants' Exhibit 106 with other photographs.
Even presuming that the trial court found that John Hightower testified untruthfully as to the date the photograph, the Real Parties sought relief as a sanction for the Hightowers' alleged "presentation of false evidence and direct flouting of the [Pretrial Order]." Thus, the Real Parties sought this relief as a sanction for the Hightowers' alleged violation of the Pretrial Order. Yet, the trial court did not specify how the Hightowers allegedly violated the Pretrial Order in regard to Defendants' Exhibit 106. In the Pretrial Order, the trial court excluded "[a]ny testimony, comment, argument or proffer of alleged evidence regarding alleged solutions, alternatives or fixes that somehow would alter the nature of the lights at issue in the case or otherwise cause them not to be in violation of the deed restrictions at issue or not be a private nuisance." At trial John Hightower testified that Defendants' Exhibit 106 showed his arena with the lights on sometime between February 2016 and April 2016. The trial court did not specify how this testimony or the photograph falls within the scope of the evidence excluded in the Pretrial Order.
The trial court did not specify whether any untruthful testimony by John Hightower was made intentionally, knowingly, recklessly, negligently, or accidentally. Nor did the trial court address why the declaration of a mistrial was an appropriate sanction for the unspecified conduct in which the trial court found the Hightowers to have engaged.
For the foregoing reasons, in the mistrial order the trial court did not provide an understandable, reasonably specific explanation of the trial court’s reasons for setting aside the jury’s verdict.
See In re Bent , 487 S.W.3d at 178–80 ; In re United Scaffolding, Inc. , 377 S.W.3d at 689–90.
No Record Support Under Toyota Merits Review
Even presuming that (1) the mistrial order satisfied the requirements for facial validity and (2) the trial court granted the alternative requested relief based on the Hightowers' alleged violation of the Pretrial Order by presenting false testimony as to when the photograph in Defendants' Exhibit 106 was taken, the majority does not explain how the record supports such an order under its Toyota merits review. The record reflects that John Hightower and Wendy Biggs both testified under penalty of perjury that the picture was taken in 2016, in which case it would not violate the Pretrial Order. The record contains no testimony under penalty of perjury that the photograph was taken on any date in 2017. The record reflects that no witness at the temporary-injunction hearing testified as to when the photograph in Defendants' Exhibit 106 was taken. Even if the photograph was included in the set of photographs the Hightowers' counsel had at the temporary-injunction hearing, the Hightowers' counsel never offered those photographs into evidence, and no testimony was presented about them. No witness testified that a specific photograph, or all of the photographs, were taken in 2017, and the trial court did not find that any of the photographs were taken in 2017. The majority does not explain how the evidence is sufficient to support a finding that the photograph was taken on May 4, 2017, or that John Hightower knew that the photograph was taken on that date when he testified that it was taken in 2016.
Conclusion
The Supreme Court of Texas has made it clear that trial courts should not cast aside jury verdicts without reasons explained on the record. Because the trial court in today’s case did not give reasons that met the high court’s standard, this court should conditionally grant mandamus relief and order the trial court to vacate the mistrial order so that the trial court has an opportunity to issue a new order that satisfies the facial-validity requirements. Because the majority concludes otherwise, I respectfully dissent.