Appendix — Avala of Texas, Inc. v. West
Supreme Court brief1992
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yi 830
Bupreme Court, U.S,
FILED
No. NOV 25 i998
IN THE OFFICE OF THE CLERK
Supreme Court of Che United States
OCTOBER TERM, 1991
AVALA OF TEXAS, INC., d/b/a THE AVALA GROUP
AND d/b/a PLYMOUTH PARK SHOPPING CENTER
AND
INTERSHOP REAL ESTATE SERVICES, INC.,
f/k/a HFA MANAGEMENT USA Co.,
Petitioners
Vv.
THE HONORABLE DAVID WEST
JUDGE OF THE 269TH DISTRICT COURT
HARRIS COUNTY, TEXAS
AND
THE HONORABLE COURT OF APPEALS
For THE FIRST DISTRICT OF TEXAS,
Respondents
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF TEXAS
PENELOPE E. NICHOLSON
Counsel of Record
Louis E. MCCARTER
MARIE R. YEATES
PHILLIP B. DYE, JR.
JASON J. KULLER
VINSON & ELKINS
1001 Fannin, Suite 3114
Houston, Texas 77002-6760
(713) 758-1096
Counsel for Petitioners
i
TABLE OF CONTENTS
Texas Supreme Court’s Order Overruling
Motion for Leave to File Petition for
Writ of Mandamus.................. Appendix A
Texas Supreme Court’s Order Overruling
Motion for Rehearing................ Appendix B
Court of Appeals’s Opinion Overruling
Motion for Leave to File Petition for
Writ of Mandamus.................. Appendix C
Trial Court’s Order Granting Motion for
ke Appendix D
Trial Court’s Order Denying Motion for
Reconsideration .................... Appendix E
pe a ae Appendix F
Jury Charge and Verdict............... Appendix G
Defendants’ Motion for Reconsideration.. Appendix H
Plaintiffs’ Motion for New Trial......... Appendix I
Excerpts from Transcript of
Hearing on Motion for Reconsideration .. Appendix J
Petition for Writ of Mandamus
(Court of Appeals) .................. Appendix K
Answer to Petition for Writ of Mandamus
GE Oe PR ove 'e cee kee cate ns Appendix L
Moticn for Leave to File Petition for Writ
of Mandamus (Court of Appeals) ...... Appendix M
Petition for Writ of Mandamus
(Texas Supreme Court) .............. Appendix N
Answer to Petition for Writ of Mandamus
(Texas Supreme Court) .............. Appendix O
Motion for Leave to File Petition for Writ
of Mandamus (Texas Supreme Court) .. Appendix P
Motion for Rehearing
(Texas Supreme Court) .......... _... Appendix Q
Tables Subdividing the Methods of
Reviewing New Trial Orders by State .. Appendix R
A-1
APPENDIX A
THE SUPREME COURT OF TEXAS
No. D-1540
AVALA OF TEXAS, INC. d/b/a THE AVALA GROUP
and d/b/a PLYMOUTH PARK SHOPPING CENTER ET AL.
V.
THE HONORABLE DAVID WEST, JUDGE, ET AL.
Original Mandamus Proceeding
October 2, 1991
Dear Counsel:
Today, the Supreme Court of Texas overruled relator’s
motion for leave to file petition for writ of mandamus in the
above styled case. Relator/s motion to transfer exhibits from
the trial court is overruled.
Respectfully yours,
JOHN T. ADAMS, Clerk
/s/ PEGGY LITTLFFIELD
Peggy Littlefield,
Chief Deputy Clerk
cc: Ms. Kathryn Cox, Clerk
Hon. William (David) West, Judge
B-1
APPENDIX B
THE SUPREME COURT OF TEXAS
No. D-1540
AVALA OF TEXAS, INC. d/b/a THE AVALA GROUP
and d/b/a PLYMOUTH PARK SHOPPING CENTER ET AL.
V.
THE HONORABLE DAVID WEST, JUDGE, ET AL.
October 23, 1991
Dear Counsel:
Today, the Supreme Court of Texas overruled relator’s
motion for rehearing of motion for leave to file petition for
writ of mandamus in the above referenced case.
Sincerely,
JOHN T. ADAMS, Clerk
/s/ COURTLAND CROCKER
Courtland Crocker, Deputy
cc: Ms. Kathryn Cox, Clerk
Hon. William (David) West, Judge
core tas ace
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C-1
APPENDIX C
IN THE COURT OF APPEALS
for the
FIRST DISTRICT OF TEXAS
No. 01-91-00808-CV
AVALA OF TEXAS, INC., d/b/a THE AVALA
Group and d/b/a PLYMOUTH PARK SHOPPING CENTER
AND INTERSHOP REAL ESTATE SERVICES, INC.,
f/k/a HFA MANAGEMENT USA CoO.,
Relators
V.
THE HONORABLE DAVID WEST, JUDGE OF
THE 269TH DISTRICT COURT OF HARRIS
COUNTY, TEXAS,
Respondent
Original Proceeding on Motion for
Leave to File Petition tor Wnt of Mandamus
OPINION
Relators ask this Court to direct the respondent to set
aside his order granting a new trial.
We overrule relators’ motion for leave to file a petition for
writ of mandamus.
C-2
PER CURIAM
Panel consists of Justices Duggan, Mirabal and Wilson.
Do not publish. TEX. R. App. P. 90.
Judgment rendered and opinion delivered September 16,
1991.
True Copy Attest:
/s/ KATHRYN COx
Kathryn Cox
Clerk of Court
D-1
APPENDIX D
iN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, ET AL.
VS.
AVALA OF TEXAS, INC., ET AL.
ORDER GRANTING MOTION FOR NEW TRIAL
BE IT REMEMBERED that on this 26th day of July,
1991, came on to be heard Plaintiffs’ Motion for New Trial.
The Court is of the opinion that said Motion should in all
things be granted.
SIGNED this 26th day of July, 1991.
/s/ DAVID WEST
Judge Presiding
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APPENDIX E
IN THE DisTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, INDIVIDUALLY AND AS SURVIVING
HUSBAND OF PATRICIA WILSON GARCIA, AND AS NEXT
FRIEND OF ALICIA NICOLE GARCIA, AND ROBERT G. WILSON
AND TERESA S. WILSON, INDIVIDUALLY AND AS SURVIVING
PARENTS OF PATRICIA WILSON GARCIA
vs.
AVALA OF TEXAS, INC. d/b/a THE AVALA GRrouP and
d/b/a PLYMOUTH PARK SHOPPING CENTER, AND INTERSHOP
REAL ESTATE SERVICES, f/k/a HFA MANAGEMENT USA Co.
ORDER
On the 26th day of August, 1991, came on to be heard
Defendants’ Motion for Reconsideration.
It is ORDERED, ADJUDGED and DECREED that
Defendants’ Motion for Reconsideration is DENIED.
Signed and entered this 27th day of August, 1991.
/s/ DAVID WEST
Judge Presiding
F-1
APPENDIX F
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, INDIVIDUALLY AND AS SURVIVING
HUSBAND OF PATRICIA WILSON GARCIA, AND AS NEXT
FRIEND OF ALICIA NICOLE GARCIA, and ROBERT G.
WILSON AND TERESA S. WILSON, INDIVIDUALLY AND
AS SURVIVING PARENTS OF PATRICIA WILSON GARCIA
vs.
AVALA OF TEXAS, INC. d/b/a THE AVALA GROUP and
d/b/a PLYMOUTH PARK SHOPPING CENTER, AND INTERSHOP
REAL ESTATE SERVICES, f/k/a HFA MANAGEMENT USA Co.
JUDGMENT
On the 3rd day of June, 1991 CAME ON TO BE HEARD
the above-entitled and numbered cause of action and Plain-
uffs, GREGORIO GARCIA, INDIVIDUALLY AND AS
SURVIVING HUSBAND OF PATRICIA WILSON
GARCIA, AND AS NEXT FRIEND OF ALICIA NICOLE
GARCIA, and ROBERT G. WILSON AND TERESA S.
WILSON, INDIVIDUALLY AND AS SURVIVING
PARENTS OF PATRICIA WILSON GARCIA, (hereinafter
Plaintiffs”) appeared in person and by attorney of record
and announced ready for trial. Defendants, AVALA OF
TEXAS, INC. d/b/a THE AVALA GROUP and d/b/a
PLYMOUTH PARK SHOPPING CENTER, AND INTER-
SHOP REAL ESTATE SERVICES f/k/a HFA MANAGE-
MENT USA COMPANY, (hereinafter “Defendants’’)
appeared in person by attorney of record, and a jury having
been demanded, all matters of fact and controversy were
submitted to a jury consisting of twelve good and lawful
F-2
jurors was duly empaneled and the case proceeded to trial.
At the conclusion of the evidence the Court submitted the
case to the jury on special issues. The charge of the Court
included as Question No. One:
Did the negligence, if any, of Intershop Real Estate Serv-
ices, Inc. proximately cause the occurrence in question?
Answer “Yes” or “No”:
All other questions in the charge were contingent upon a
“ves” answer to Question No. |. The charge of the Court,
including the special issues and the verdict of the jury are
incorporated herein for all purposes by reference.
It appearing to the Court that the verdict of the jury was
for the Defendants and against the Plaintiffs in that the jury,
in answering Question No. | answered “no”, judgment
should be rendered upon the verdict in favor the Defendants
and against the Plaintiffs. It is therefore,
ORDERED, ADJUDGED AND DECREED BY THE
COURT that Plaintiffs take nothing by this suit and that
Defendants be in all things, discharged and go hence without
day. All costs of court are taxed against the Plaintiffs for
which, let execution issue. All other relief not expressly
granted herein is denied.
SIGNED THIS Sth day of July, 1991.
/s/ DAVID WEST
Judge Presiding
G-1
APPENDIX G
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, ET AL.
VS.
AVALA OF TEXAS, INC., ET AL.
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about
the facts, which you must decide from the evidence you have
heard in this trial. You are the sole judges of the credibility
of the witnesses and the weight to be given their testimony,
but in matters of law you must be governed by the instruc-
tions in this charge. In discharging your responsibility on
this jury, you will observe all the instructions which have
been previously given you. I shail now give you additional
instructions which you should carefully and strictly follow
during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in
your deliberations.
2. In arriving at your answers consider only the evidence
introduced here under oath and such exhibits, if any, as have
been introduced for your consideration under the rulings of
the court, that is, what you have seen and heard in this
courtroom, together with the law as given you by the court.
In your deliberations you will not consider or discuss any-
thing that is not represented by the evidence in this case.
3. Since every answer that is required by the charge is
important, no juror should state or consider that any
required answer is not important.
G-2
4. You must not decide who you think should win, and
then try to answer the questions accordingly. Simply answer
the questions, and do not discuss or concern yourselves with
the effect of your answers.
5. You will not decide the answer to a question by lot or
by drawing straws, or by any other method of chance. Do
not return a quotient verdict. A quotient verdict means that
the jurors agree to abide by the result to be reached by
adding together each juror’s figures and dividing by the
number of jurors to get an average. Do not do any trading on
your answers; that is, one juror should not agree to answer a
certain question one way if others will agree to answer
another question another way.
6. You may render your verdict upon the vote of ten or
more members of the jury. The same ten or more of you
must agree upon all of the answers made and to the entire
verdict. You will not, therefore, enter into an agreement to
be’ bound by a majority of any other vote of less than 10
jurors. If the verdict and all the answers therein are reached
by unanimous agreement, the Presiding Juror shall sign the
verdict for the entire jury. If any juror disagrees as to any
answer made by the verdict, those jurors who agree to all
findings shall each sign the verdict.
These instructions are given you because your conduct is
subject to review the same as that of the witnesses, parties,
attorneys and the judge. If it should be found that you have
disregarded any of these instructions, it will be jury miscon-
duct and it may require another trial by another jury; then
all of our time will have been wasted. 7
The presiding juror or any other who observes a violation
of the court’s instructions shall immediately warn the one
who is violating the same and caution the juror not to do so
again.
G-3
When words are used in this charge in a sense which varies
from the meaning commonly understood, you are given a
proper legal definition, which you are bound to accept in
place of any other definition or any other meaning.
Answer “Yes” or “No” to all questions unless otherwise
instructed. A ““Yes’’ answer must be based on a preponder-
ance of the evidence. If you do not find that a preponderance
of the evidence supports a “Yes” answer, then answer “No.”
The term “preponderance of the evidence” means the
greater weight and degree of credible testimony or evidence
introduced before you and admitted in this case.
Whenever a question requires other than a “Yes” or “No”
answer, your answer must be based on a preponderance of
the evidence.
G-4
Question No. 1
Did the negligence, if any, of Intershop Real Estate Serv-
ices, Inc. proximately cause the occurrence in question?
“Negligence” means the failure to use ordinary care; that
is, failure to do that which a person of ordinary prudence
would have done under the same or similar circumstances or
doing that which a person of ordinary prudence would not
have done under the same or similar circumstances.
““Ordinary_care” means that degree of care that would be
used by a person of ordinary prudence under the same or
similar circumstances.
‘“*Proximate cause”’ means that cause which, in a natural
and continuous sequence, produces an event, and without
which cause such event would not have occurred. In order to
be a proximate cause, the act or omission complained of
must be such that a person using ordinary care would have
foreseen that the event, or some similar event, might reason-
ably result therefrom. There may be more than one proxi-
mate cause of an event.
Answer “Yes” or “No”: NO
G-5
If, in answer to Question No. 1, you have found that the
negligence of Intershop Real Estate Services, Inc. was the
cause of the occurrence, then answer Questions 2-7. Other-
wise, do not answer Questions 2-7.
Question No. 2
What sum of money, if paid now in cash, would fairly and
reasonably compensate Greg Garcia for his damages, if any,
resulting from the death of Patricia Garcia?
Consider the elements of damages listed below and none
other. Consider each element separately. Do not include
damages for one element in any other element. Do not
include interest on any amount of damages you find.
Answer, with respect to the elements listed below, in dol-
iars and cents for damages, if any:
a. Pecuniary loss sustained in the past: $
Pecuniary loss that in reasonable
probability will be sustained in the
future: $
b. Loss of companionship and society
in the past: $
Loss of companionship and society
that in reasonable probability will be
sustained in the future:
c. Mental anguish in the past: $
Mental anguish that in reasonable
probability will be sustained in the
future: $
“Pecuniary loss” means the loss of the care, mainte-
nance, support, services, advice, counsel, and reason-
able contributions of a pecuniary value that Greg
Garcia, in reasonably probability, would have
received from Patricia Garcia had she lived.
“Loss of companionship and society” means the loss
of the positive benefits flowing from the love, comfort,
G-6
companionship, and society that Greg Garcia, in rea-
sonable probability, would have received from
Patricia Garcia had she lived.
‘Mental anguish” means the emotional pain, torment,
and suffering experienced by by Greg Garcia because
of the death of Patricia Garcia.
In determining damages for the elements “‘b” and ‘“‘c,”” you
may consider the relationship between Greg Garcia and
Patricia Garcia, their living arrangements, any extended
absences from one another, the harmony of their family
relations, and their common interests and activities. You are
reminded that elements “b” and “‘c.”’ like the other elements
of damages, are separate, and, in awarding damages for one
element, you shall not include damages for the other.
G-7
Question No. 3
What sum of money, if paid now in cash, would fairly and
reasonably compensate Alicia Nicole Garcia for her dam-
ages, if any, resulting from the death of Patricia Garcia?
Consider the elements of damages listed below and none
other. Consider each element separately. Do not include
damages for one element in any other element. Do not
include interest on any amount of damages you find.
Answer, with respect to the elements listed below, in dol-
lars and cents for damages, if any:
a. Pecuniary loss sustained in the past: $
Pecuniary loss that in reasonable
probability will be sustained in the
future: $
b. Loss of companionship and society
in the past: $
Loss of companionship and society
that in reasonable probability will be
sustained in the future:
c. Mental anguish in the past:
Mental anguish that in reasonable
probability will be sustained in the
future: $
“Pecuniary loss” means the loss of the care, mainte-
nance, support, services, advice, counsel, and reason-
able contributions of a pecuniary value that Alicia
Nicole Garcia, in reasonably probability, would have
received from Patricia Garcia had she lived.
“Loss of companionship and society” means the loss
of the positive benefits flowing from the love, comfort,
companionship, and society that Alicia Nicole Garcia,
in reasonable probability, would have received from
Patricia Garcia had she lived.
G-8
‘Mental anguish” means the emotional pain, torment,
and suffering experienced by by Alicia Nicole Garcia
because of the death of Patricia Garcia.
In determining damages for the elements “‘b” and “‘c,”” you
may consider the relationship between Alicia Nicole Garcia
and Patricia Garcia, their living arrangements, any extended
absences from one another, the harmony of their family
relations, and their common interests-and activities. You are
reminded that elements “b” and “‘c,” like the other elements
of damages, are separate, and, in awarding damages for one
element, you shall not include damages for the other.
G-9
Question No. 4
What sum of money, if paid now in cash, would fairly and
reasonably compensate Robert G. Wilson for his damages, if
any, resulting from the death of Patricia Garcia?
Consider the elements of damages listed below and none
other. Consider each element separately. Do not include
damages for one element in any other element. Do not
include interest on any amount of damages you find.
Answer, with respect to the elements listed below, in doi-
lars and cents for damages, if any:
a.
Pecuniary loss sustained in the past: $
Pecuniary loss that in reasonable
probability will be sustained in the
future: $
Loss of companionship and society
in the past: $
Loss of companionship and society
that in reasonable probability will be
sustained in the future:
Mental anguish in the past: $
Mental anguish that in reasonable
probability will be sustained in the
future: $
“Pecuniary loss” means the loss of the care, mainte-
nance, support, services, advice, counsel, and reason-
able contributions of a pecuniary value that Robert G.
Wilson, in reasonably probability, would have
received from Patricia Garcia had she lived.
“Loss of companionship and society” means the loss
of the positive benefits flowing trom the love, comfon,
companionship, and society that Robert G. Wilson, in
reasonable probability, would have received from
Patricia Garcia had she lived.
G-10
“Mental anguish” means the emotional pain, torment,
and suffering experienced by by Robert G. Wilson
because of the death of Patricia Garcia.
In determining damages for the elements “b” and “‘c,” you
may consider the relationship between Robert G. Wilson
and Patricia Garcia, their living arrangements, any extended
absences from one another, the harmony of their family
relations, and their common interests and activities. You are
reminded that elements “b” and “c,” like the other elements
of damages, are separate, and, in awarding damages for one
element, you shall not include damages for the other.
G-11
Question No. 5
What sum of money, if paid now in cash, would fairly and
reasonably compensate Theresa S. Wilson for her damages,
if any, resulting from the death of Patricia Garcia?
Consider the elements of damages listed below and none
other. Consider each element separately. Do not include
damages for one element in any other element. Do not
include interest on any amount of damages you find.
Answer, with respect to the elements listed below, in dol-
lars and cents for damages, if any:
Pecuniary loss sustained in the past: $
Pecuniary loss that in reasonable
probability will be sustained in the
future: $
Loss of companionship and society
in the past: $
Loss of companionship and society
that in reasonable probability will be
sustained in the future:
Mental anguish in the past: $
Mental anguish that in reasonable
probability will be sustained in the
future: $
“Pecuniary loss” means the loss of the care, mainte-
nance, support, services, advice, counsel, and reason-
able contributions of a pecuniary value that Theresa S.
Wilson, in reasonably probability, would have
received from Patricia Garcia had she lived.
“Loss of companionship and society” means the loss
of the positive benefits flowing from the love, comfort,
companionship, and society that Theresa S. Wilson, in
reasonable probability, would have received from
Patricia Garcia had she lived.
G-12
“Mental anguish” means the emotional pain, torment,
and suffering experienced by by Theresa S. Wilson
because of the death of Patricia Garcia.
In determining damages for the elements “*b” and “‘c,”” you
may consider the relationship between Theresa S. Wilson
and Patricia Garcia, their living arrangements, any extended
absences from one another, the harmony of their family
relations, and their common interests and activities. You are
reminded that elements “b” and “c,”’ like the other elements
of damages, are separate, and, in awarding damages for one
element, you shall not include damages for the other.
G-13
Question No. 6
What sum of money would have fairly and reasonably
compensated Patricia Garcia for:
Pain and mental anguish
“Pain and mental anguish” means the conscious physical
pain and emotional pain, torment, and suffering experienced
by Patricia Garcia before her death as a result of the occur-
rence in question.
Answer in dollars and cents for damages, if any.
Answer:
G-14
Question No. 7
Was such negligence of Intershop Real Estate Services,
Inc. “gross negligence?”
“Gross negligence” means more than momentary thought-
lessness, inadvertence, or error of judgment. It means such
an entire want of care as to establish that the act or omission
in question was the result of actual conscious indifference to
the rights, welfare, or safety of the persons affected by it.
Answer “Yes” or “No”:
G-15
If you have answered Question No. 7 “Yes,” then answer
the following question. Otherwise, do not answer the follow-
ing question.
Question No. 8
What sum of money should be assessed against Intershop
Real Estate Services, Inc. as exemplary damages, if any, for
the death of Patricia Garcia?
“Exemplary damages” means an amount that you may in
your discretion award as an example to others and as a
penalty or by way of punishment, in addition to any amount
that you may have found as actual damages.
Answer in dollars and cents for damages, if any.
Answer:
G-16
If, in your answer to Question No. 8, you have entered any
amount of exemplary damages, then answer Question No. 9.
Otherwise, do not answer Question No. 9.
Question No. 9
How do you apportion the exemplary damages between
Greg Garcia and Alicia Nicole Garcia?
Answer by stating a percentage for each person named
below. The percentages you find must total 100%.
a. Greg Garcia %
b. Alicia Nicole Garcia %
Total 100%
G-17
After you retire to the jury room, you will select your own
presiding juror. The first thing the presiding juror will do is
to have this complete charge read aloud and then you will
deliberate upon your answers to the questions asked.
It is the duty of the presiding juror:
1. to preside during your deliberations,
2. to see that your deliberations are conducted in an
orderly manner and in accordance with the instruc-
tions in this charge,
3. to write out and hand to the bailiff any communica-
tions concerning the case that you desire to have
delivered to the judge,
4. to vote on the questions,
5. to write your answers to the questions in the spaces
provided, and
6. tocertify to your verdict in the space provided for the
presiding juror’s signature or to obtain the signatures
of all the jurors who agree with the verdict if your
verdict is less than unanimous.
You should not discuss the case with anyone, not even
with other members of the jury, unless all of you are present
and assembled in the jury room. Should anyone attempt to
talk to you about the case before the verdict is returned,
whether at the courthouse, at your home, or elsewhere,
please inform the judge of this fact.
When you have answered all the questions you are
required to answe, under the instructions of the judge, and
your presiding juror has placed your answers in the spaces
provided and signed the verdict as presiding juror or
obtained the signatures, you will inform the bailiff at the
G-18
door of the jury room that you have reached a verdict, and
then you will return into court with your verdict.
/s/_DAviD WEST
Judge Presiding
June 11, 199]
G-19
CERTIFICATE
We, the jury, have answered the above and foregoing
questions as herein indicated, and herewith return same into
court as our verdict.
(To be signed by the presiding juror if unanimous.)
Presiding Juror
(To be signed by those rendering the
verdict if not unanimous.)
/s/ TOM CLAYTON /s/ JAMES M. WILSON
/s/_ PauL C. GoopwiIn ss /s/_ JOE W. DAVIDSON
/s/ ELIZABETH C. GRAHAM /s/_ JEFFREY M. WALLIS.
/s/ Marc C. LANDLAND /s/ CORNELIUS WILLIAMS
/s/ RACHEL POWELL
/s/ HOWARD R. MILLER
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APPENDIX H
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, ET AL.
VS.
AVALA OF TEXAS, INC., ET AL.
DEFENDANTS’ MOTION FOR RECONSIDERATION
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Avala of Texas, Inc. d/b/a The Avala
Group and d/b/a Plymouth Park Shopping Center (hereaf-
ter ““Avala’’), and Intershop Real Estate Services, Inc., f/k/a
HFA Management USA Co. (hereafter ‘“Intershop’’),
Defendants in the above-entitled and numbered cause of
action, and file this Motion for Reconsideration of this
Court’s order granting Plaintiffs’ Motion for New Trial.
Defendants would show the Court the following:
I. This Case Was Fairly Tried by Both Sides, The Jury
Considered All the Evidence, and The Jury’s Verdict
Should Stand
As the Court is aware, this case was tried to a jury for
approximately seven days, beginning on June 4, 1991. The
jury, after considering all the evidence before it, rendered a
verdict finding no liability against Deferidant Intershop Real
Estate Services, Inc. f/k/a HFA Management USA, Co.
Plaintiffs elected not to submit any liability issues as to
Defendant Avala of Texas, Inc. d/b/a The Avala Group and
d/b/a Plymouth Park Shopping Center. A take-nothing
judgment was entered for both Defendants on July 5, 1991.
H-2
The Court heard Plaintiffs’ motion for new trial and entered
an order granting the same on July 26, 1991.
II. This Court Has Authority to Ungrant Its New Trial
Order During the 75-Days of Its Plenary Jurisdiction
This Court has broad discretion to withdraw prior orders
while pienary jurisdiction exists. This plenary power is the
full and complete power to reverse, modify, or vacate its
prior orders. Tex. R. Civ. P. 329b(c) gives this Court 75 days
to determine a motion for new trial, before the motion is
overruled by operation of law. During this period, the Court
can take any action on the motion for new trial, including
changing its mind and vacating a prior order granting a new
trial. See Fulton v. Finch, 346 S.W.2d 823, 827 (Tex. 1961);
Garza v. Gonzalez, 737 S.W.2d 588 (Tex. App. — San
Antonio 1987, org. proceeding); Essex Int'l v. Wood, 646
S.W.2d 322, 324-25 (Tex. App. — Dallas 1983, no wnt).
Because the judgment was signed on July 5, 1991, this
Court’s plenary jurisdiction continues until September 18,
1991, the 75th day after the judgment.
III. Defendant Avala Was Properly Entitled to a Take-
Nothing Judgment Because Plaintiffs Submitted No
Issues as to Its Fauit
At trial, Plaintiffs elected not to submit any issues of fault
for Avala, and submitted a negligence question only as to
Intershop. See Court’s Charge. According to Tex. R. Civ. P.
279, an independent ground of recovery which is not sub-
mitted or requested is waived. The take-nothing judgment of
July 5, 1991, is proper as to Avala; therefore, the Court erred
in granting a new trial as to the entire cause of action. Tex.
R. Civ. P. 320 provides that a new trial may be granted as to
parts that are “clearly separable.” The question of Avala’s
alleged negligence, clearly separable from Intershop’s negli-
gence, was not submitted, and is therefore waived. The
H-3
judgment is final as to Avala. Plaintiffs’ motion addressed
only the sufficiency of the evidence with regard to Inter-
shop’s negligence and did not challenge the finality of the
judgment as to Avala. Therefore, the granting of a new trial
as to both parties is in error.
IV. The Trial Court (Like the Appellate Courts) Cannot
Substitute Its Own Finding for the Jury’s Verdict
This Court cannot disregard the jury verdict and substi-
tute its own liability finding for the jury’s liability finding. By
doing so, the Court violates the sanctity of the constitution-
ally mandated right of trial by jury. See, e.g., Texas Farmers
Ins. Co. v. McGuire, 744 §.W.2d 601, 063 (Tex. 1988); Pool
v. Ford M«tor Co., 715 §.W.2d 629, 633-35 (Tex. 1986). In
Larsen v. Cactus Utility Co., 730 S.W.2d 640, 641
(Tex. 1987), the Texas Supreme Court emphasized that “‘no
court is free to substitute its judgment for that of the jury,”
and that any practice that “effectively allows jurists’
determinations to be substituted for those of the jury”
should be condemned. The Supreme Court declared that
“trial courts and courts of appeals should be subject to the
same standard for a simple reason: no court is free to substi-
tute its judgment for that of the jury.” Id. at 641 (emphasis
added). See also Hopson v. Gulf Oil Corp., 150 Tex. 1,
237 S.W.2d 352, 358 (1951) (power of court of appeals to
reverse for insufficiency “is the same as that exercised by the
trial court when it sets aside the jury’s verdict on account of
insufficient evidence and awards a new tnial”’).
The Court of Appeals’ right of review of a jury’s factual
finding is constitutionally limited. TEX. CONST. ART. § 6; see
Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648
(Tex. 1989); Herbert v. Herbert, 754 S.W.2d 141, 143-44
(Tex. 1988). Trial courts, thus, are not entitled to any greater
powers than courts of appeals. By granting Plaintiffs a new
trial presumably based on this Court’s conclusion that the
H-4
jury must have decided the case on something other than the
evidence, this Court is substituting its own liability finding
for the jury’s liability finding. In Herbert, 754 S.W.2d at 144,
the supreme court recognized the “sanctity to which a jury
verdict is entitled” and observed that “courts are not free to
substitute their judgment for that of the jury simply because
they may disagree with the jury’s verdict.”
The only basis for a new trial presented in Plaintiffs’
motion is sufficiency of the evidence. This Court’s order of
July 5, 1991 merely recites that the motion is granted. In
reviewing a sufficiency challenge, all the evidence must be
considered and weighed, and the verdict should only be set
aside if the evidence is so weak or the finding is so against
the great weight and preponderance of the evidence that it is
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.
1965). The reviewing court may not disregard a finding or
make a contrary finding in entering judgment for one of the
parties. Garza, 395 S.W.2d at 823. Because the trier of fact is
the sole judge of the credibility of witnesses and the weight
to be given their testimony, the reviewing court may not
substitute its opinion for that of the trier of fact merely
because it might have reached a different fact conclusion.
Herbert, 754 S$.W.2d at 144. Recent law suggests that trial
courts, like the appellate courts, should be prohibited from
vacating a jury’s verdict based upon the evidence unless a
correct standard of review is applied and the evidence, in
fact, will not support the jury’s verdict. Larsen, 730 S.W.2d
at 641: Pool, 715 S$.W.2d at 633-35.
V. In Reviewing the Sufficiency of the Evidence The Trial
Court Is Required to Detail the Evidence and Explain
How the Evidence Supports the Contrary Conclusion
When granting a new trial on factual sufficiency grounds, a
reviewing court must detail the evidence relevant to the
H-5
issue and clearly state why the jury’s finding is factually
insufficient or is so against the great weight and preponder-
ance as to be manifestly unjust, why it shocks the con-
science, or why it clearly demonstrates bias. Cropper, 754
S.W.2d at 652; Pool, 715 S.W.2d at 635. The reviewing court
must undertake “analyses of the evidence” or state “bases
for the conclusion drawn.” Pool, 715 S.W.2d at 635. The
trial court or the appellate court must have a cognizable
“mental process by which it reaches its conclusion concern-
ing sufficiency.” /d. Further, the reviewing court is required
to state the contrary evidence which greatly outweighs the
evidence in support of the verdict. Cropper, 754 S.W.2d at
652; Pool, 715 $.W.2d at 635. In reviewing great weight
points, the supreme court has admonished a reviewing court
to be mindful that the preponderance of the evidence did
not convince the jury. Herbert, 754 S.W.2d at 144. A new
trial is only warranted where the great weight of the evidence
supports an affirmative answer. /d.
The trial court can have no greater right to review on
factual sufficiency grounds than the appellate courts, Larsen,
730 S.W.2d at 641, and supreme court precedents make it
clear that a detailed review of the evidence is required when
a court is unfinding facts. Thus, this Court is constitutionally
required to enter findings detailing the evidence both in
support of and against the liability finding, explaining how
the liability finding by the jury is against the great weight
and preponderance of the evidence.' The restrictions on the
' Evidentiary hearings and fact findings by the trial court are
required in other cases where constitutional issues are
involved. For example, the trial court is required to file findings
of fact and conclusions of law in Batson cases when peremptory
challenges are used to exclude jurors on account of race. See
Batson v. Kentucky, 106 S. Ct. 1712 (1986) (criminal case);
Keeton v. State, 724 §.W.2d 58 (Tex. Crim. App. 1987) (Texas
criminal case); Edmonson v. Leesville Concrete Co., Inc., 111
S. Ct. 2077 (1991) (applying Batson rule to civil cases); Powers
H-6
trial court’s right to overturn the jury’s verdict can be no
more than those of the appellate court which are constitu-
tionally mandated. This is exactly what Larsen holds. If the
Court does not enter written findings detailing the evidence,
the appellate courts cannot determine whether this Court
applied the proper standard of review. Attached as
Exhibit K is the statement of facts from the trial to assist the
Court in entering its findings.
VI. The Jurors’ Affidavits Support the Conclusion
that This Case Was Fairly Tried and All the
Evidence Considered
Attached as Exhibits A through J, and incorporated herein
by reference as if set forth verbatim, are ten affidavits from
the foreman and members of the jury who adjudicated fault
in this case. These affidavits establish that the jury followed
their oath and considered only the evidence and the judge's
instructions. Further, these affidav#ts recount the jurors’ dis-
cussions with the Court, following receipt of the verdict, in
which the jurors indicated that the verdict was reached in
favor of the Defendants because the Plaintiffs failed to prove
their case. These affidavits can be received because they
neither seek to impeach the verdict on the basis of jury
misconduct nor to inquire into the validity of the verdict.
See Tex. R. Civ. P. 327; Tex. R. Civ. Evip. 606(b). See also
Shaw v. Greater Houston Transp. Co., 791 $.W.2d 204, 211
(Tex. App. — Corpus Christi 1990, no writ) (holding that
five juror affidavits were admissible because “relevant” and
“helpful” on issue other than to impeach the jury verdict).
The only grounds in Plaintiffs’ motion for a new trial are
insufficient evidence to support the verdict. These affidavits
merely demonstrate the jury considered all of the evidence
v. Palacios, 34 Tex. Sup. Ct. J. 651 (June 12, 1991) (per curiam)
(Texas civil case). The new bonding rules also contemplate
hearings and findings by the court. See TEX. R. App. P. 49(b).
H-7
before it. The affidavits do not seek to impeach the verdict:
rather the affidavits seek to permit the jury’s verdict to stand
and are relevant in showing the juror’s true intent. As such,
this Court’s receipt of the juror affidavits “contravenes no
announced principle of public policy.” Cay/at v. Houston
E.Y.W.T. Ry., 252 S.W. 478, 482 (Tex. Comm'n App. 1923,
op. adopted).
Similarly, Defendants’ chart of the lay-out of the shopping
center, upon which the jury marked the location of each of
the 40 crimes that had occurred around the shopping center
is also relevant in that it clearly shows that the jury carefuily
considered the evidence in reaching its verdict. See
Exhibit L. The chart is objective proof that the jury had
before it evidence showing that each of the 40 crimes, a list
of which Plaintiffs introduced into evidence, occurred in an
area of the shopping center far removed from the area upon
which the decedent was murdered. Hence, the chart is like-
wise relevant and admissible on the very issue upon which
this Court granted Plaintiffs’ motion for a new trial, i.e. the
factual sufficiency of the evidence to support the jury's no
liability finding in favor of Defendant.
VII. Plaintiffs’ Motion for New Trial Was Insufficient
Plaintiffs’ motion does not specify the particular way the
evidence is sufficient. Therefore, the trial court acted upon
an improper motion.
H-8
VIII. Defendants’ Constitutional Rights to a Jury Trial,
Due Process of Law, Double Jeopardy, and
Appellate Review Will Be Violated if this Court’s
Order Granting New Trial Is Not Set Aside
A. Defendants Are Entitled Under the Texas Consti-
tution to the Right to Trial by Jury. TEX. CONST.
ART. I § 15.
A party has a protected interest in the jury’s verdict on the
merits. Carter v. Carter, 5 Tex. 93, 100-01 (1849). Indeed, as
one recent Texas court stressed, the “jury’s verdict, in Texas
courts, has a special, significant sacredness and inviolability.
The jury’s verdict cannot be violated under our Texas Consti-
tution.”” Crawford v. Standard Fire Ins. Co., 779 $.W.2d 935,
941 (Tex. App. — Beaumont 1989, no writ) (citing TEx.
CONST. ART. I § 15 (1984)). This is the reason the supreme
court placed limitations on the trial court’s inherent power
and an appellate court’s constitutional power to vacate a
jury’s verdict. See Choate v. San Antonio & AP Ry., 91 Tex.
406, 44 S.W. 69 (1898). These reasons were restated in the
Pool and Larsen supreme court opinions. (See section IV,
infra.)
B. Defendants Are Entitled to Due Process of Law
Under the Texas and U.S. Constitutions.
A fundamental component of the due process guarantees
embodied in both the United States and Texas Constitution is
that a party be allowed to have the merits of the case “fairly
judged.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 433
(1982). This principle dictates that judicial decisions be
rendered in accordance with “reasonably clear guidelines.”
Smith v. Goguen, 415 U.S. 566, 572-73 (1974). TEx. CONST.
ART. I § 19; UNITED STATES CONST. AMEND. V, XIV.
-H-9
C. Defendants Will Be Denied Their Right to Appel-
late Review of the Order Granting New Trial.
Failure to afford a litigant appellate review, either imme-
diate or from a subsequent judgment, of an order from a
past verdict granting a new trial, offends due process. The
Texas Constitution guarantees litigants the right to obtain
~ review of a trial court’s decisions by an appellate court. TEX.
CONST. ART. I §§ 13, 19. “A dissatisfied litigant ... has the
constitutional right to have his case reviewed by the Court of
Civil Appeals.”” Stroud v. Word, 36 §.W.2d 590, 591 (Tex.
Civ. App. — Waco 1931, no writ). Litigants are also denied
their right to due process of law under the Fourteenth
Amendment of the United States Constitution. Due process
requires each State must “offer each defendant a fair oppor-
tunity to obtain an adjudication of the merits of his appeal.”
Evitts v. Lucey, 469 U.S. 387, 405 (1985). Presently,
Defendants are not entitled as a matter of right to manda-
mus relief, or to appellate review of the current ruling,
except possibly on an abuse of discretion. Plaintiffs, on the
other hand, have a remedy if the jury verdict stands. Plain-
tiffs can test the sufficiency of the evidence in the Court of
Appeals.
D. Defendants Will Be Subject to Double Jeopardy.
This Court’s order granting a new trial violates the doubie
jeopardy clause because it subjects Defendants to multiple
or successive punitive damage awards for the same course of
conduct when a jury has already absolved Defendants of any
liability. TEX. CONST. ART. I §14, United States Const.
Amend. V. Punitive damages are not awarded to compensate
plaintiff, but rather to punish the wrongdoer and deier sim-
ilar conduct by others. Lunsford v. Morris, 746 §.W.2d 471
(Tex. 1988) (citing Graham v. Roder, 5 Tex. 141, 149
(1849)). Because punitive damages are penal in nature,
H-10
Defendants will be subject to double jeopardy by an arbi-
trary re-trial of an error-free trial, in violation of both the
Texas and United States Constitution.
WHEREFORE, PREMISES CONSIDERED, Defendants
pray that this Court grant this Motion for Reconsideration
and withdraw the prior order granting a new trial; or alterna-
tively, amend its order of new trial to reflect a new trial as to
only Defendant Intershop Real Estate Services, Inc., f/k/a
HFA Management USA Co., and for such other and further
relief to which Defendants may show themselves to be justly
entitled.
Respectfully submitted,
VINSON & ELKINS
By /s/ Louis E. MCCARTER
Louis E. McCarter
TBA No. 13367000
Marie R. Yeates
TBA No. 22150700
Phillip B. Dye, Jr.
TBA No. 06311500
Catherine Bukowski
TBA No. 03319970
3300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
713/758-2530
Fax: 713/758-2346
Attorneys for Defendants, AVALA OF TEXAS, INC. d/b/a
PLYMOUTH PARK SHOPPING CENTER, and INTERSHOP REAL
ESTATE SERVICES, INC., f/k/a HFA Management USA Co.
H-11
CERTIFICATE OF CONFERENCE WITH
OPPOSING COUNSEL
Counsel for Defendants have conferred with counsel for
the Plaintiffs and the attorney ad litem and have in good
faith attempted to resolve the matter. Counsel for
Defendants has been informed that those parties oppose the
foregoing motion.
/s/ Louis E. MCCARTER |
Louis E. McCarter
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego-
ing instrument has been served upon counsel of record,
listed below, on tHis the | 3th day of August, 1991, by hand-
delivery and/or certified mail, return receipt requested.
Ronald D. Krist
Krist, Gunn, Weller, Neumann
17555 El Camino Real
Houston, Texas 77058
Mr. Jimmy G. Williamson
300 Fannin, Suite 300
Houston, Texas 77002
/s/__Louts E. MCCARTER
Louis E. McCarter
H-12
EXHIBIT A
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF THOMAS CHARLES CLAYTON
STATE OF TEXAS §
§
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be THOMAS CHARLES
CLAYTON, and stated that he is over the age of 18 years,
that he has not been convicted of any crimes and is of sound
mind. The affiant further stated that:
1. My name is THOMAS CHARLES CLAYTON. I was a
juror in the case of Gregorio Garcia, et al. vs. Avala of Texas,
Inc., et al.; Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991. After the closing argu-
ments, the judge gave us his charge and we retired to the jury
room. I was elected foreman. We began by taking a vote on
the first question. That question was:>
Did the negligence; if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
The jurors voted 8-4 to answer this question “no”. I voted
last. We then discussed the evidence and the judge’s instruc-
tions. Both groups of jurors explained their points of view
and discussed the evidence seen and heard. Finally, a vote
was taken and the jurors voted 10-2 to answer the first
question “no”.
In reaching this decision, there were no threats made of
any kind. Nothing was discussed other than the evidence
and the charge. No one appeared to be considering anything
other than the evidence.
H-13
It was my opinion, based upon the evidence, that the
murder of Mrs. Garcia was not foreseeable by the
defendants and that it could not have been prevented. I did
not feel that more security was needed based on the knowl-
edge possessed by the shopping center. I also did not feel
that the lack of security guards was a proximate cause of the
crime. This seemed to also be the consensus of the other
jurors.
I was not influenced by any passion, prejudice or bias and
did not consider any such prejudice, passion or bias in
reaching my verdict. No one else in the majority appeared to
be influenced by anything other than the evidence. The two
dissenting jurors were, in my opinion, swayed by the
sympathy in the case.
After the verdict, Judge West spoke to us in his chambers
for 40 minutes. He told us he believed we had made the right
decision. Our decision was based on the evidence alone, and
we did not feel the plaintiffs proved their case.
2. All of the foregoing is true and correct and within my
personal knowledge.
Further the affiant sayeth not.
/s/ THOMAS CHARLES CLAYTON |
Thomas Charles Clayton
Sworn to and subscribed before me this the 30th day of
July, 1991. -
/S/)_ DANITA JO HOEPPNER
Notary Public
My commission expires: 10-24-92
H-14
EXHIBIT B
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF ELIZABETH WALLS GRAHAM
SFATE OF TEXAS §
§
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be ELIZABETH WALLS
GRAHAM, and stated that she is over the age of 18 years,
that she has not been convicted of any crimes and is of
soufid mind. The affiant further stated that:
1. My name is ELIZABETH WALLS GRAHAM. I was a
juror in the case of Gregorio Garcia, et al. vs. Avala of Texas,
Inc., et al.; Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991.
2. The first question in the charge was:
Did the negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
3. When the vote was initially taken I voted to answer the
question “‘yes”. We then discussed the evidence. I insisted
that everyone give their reasons for the way they were vot-
ing. I listened very carefully to what everyone had to say.
4. After several hours of discussion, and after reviewing
the evidence, I changed my mind. I finally concluded that I
should answer the question “no’’. I still stand by my answer.
5. I took my job as a juror very seriously. These were
peoples lives we were dealing with. No one rushed me and
no one pressured me into changing my answer. I felt a lot of
sympathy for the family, but I set my feelings aside as we
were instructed.
H-15
6. Based upon the evidence, the judge’s instructions and
the charge, I felt the first question should be answered “‘no”’.
7. In answering this question, I followed my juror’s oath
and considered only the evidence presented in the trial and
the judge’s instructions. I was not influenced by any passion,
prejudice or bias and did not consider any such prejudice,
passion or bias in reaching my verdict.
8. All of the foregoing is true and correct and within my
personal knowledge.
Further the afhant sayeth not.
/s/ ELIZABETH WALLS GRAHAM |
Elizabeth Walls Graham
Sworn to and subscribed before me this the Ist day of
August, 1991.
/s/ DANITA JO HOEPPNER
Notary Public
My commission expires: 10-24-92
H-16
EXHIBIT C
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF CORNELIUS LLOYD WILLIAMS
STATE OF TEXAS §
S
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be CORNELIUS LLOYD WIL-
LIAMS, and stated that he is over the age of 18 years, that he
has not been convicted of any crimes and is of sound mind.
The affiant further stated that:
1. My name is CORNELIUS LLOYD WILLIAMS. I was
a juror in the case of Gregorio Garcia, et al. vs. Avala of
Texas, Inc., et al.; Cause No. 90-13234, which was tried in
the 269th Judicial District Court of Harris County, Texas,
from June 3, 1991 through June 12, 1991.
2. When the jury convened we considered the first ques-
tion, which was:
Did the- negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
When we first voted on this question, I voted to answer
the question “‘yes’’. The other jurors votes were counted and
the vote was 8-4 to answer the question “no’’. We then began
to discuss our points of view. After going over all of the
evidence, including the crimes that had occurred at the
shopping center and the diagram of the shopping center, I
determined, after reflection, that the question should be
answered “no”.
H-17
3. In answering the question, I was not influenced by
anything other than the evidence and the judge’s instruc-
tions. I was not pressured into changing my answer and I
would not have changed my answer under pressure.
4. I took my oath as a juror very seriously. I felt sorry for
the family of Mrs. Garcia, but the judge told us not to
consider sympathy in making our decision. Upon reflection,
I believe that I took my job seriously, as did the other jurors
and I would still answer the question “no”.
5. I was not influenced by any passion, prejudice or bias
and did not consider any such prejudice, passion or bias in
reaching my verdict.
6. All of the foregoing is true and correct and within my
personal knowledge.
Further the affiant sayeth not.
/s/ CORNELIUS WILLIAMS
Cornelius Lloyd Williams
Sworn to and subscribed before me this the 5th day of
August, 1991.
/s/ DANITA JO HOEPPNER
Notary Public
My commission expires: 10-24-92
H-18
EXHIBIT D
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF JEFFREY MAYNE WALLIS
STATE OF TEXAS §
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be JEFFREY MAYNE WALLIS,
and stated that he is over the age of 18 years, that he has not
been convicted of any crimes and is of sound mind. The
affant further stated that:
1. My name is JEFFREY MAYNE WALLIS. I was a juror
in the case of Gregorio Garcia, et al. vs. Avala of Texas, Inc.,
et al.; Cause No. 90-13234, which was tried in the 269th
Judicial District Court of .Harris County, Texas, from
June 3, 1991 through June 12, 1991.
2. The first question the jury had to answer was:
Did the negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
3. I carefully listened to all of the evidence and the court’s
instructions. I took my vote in the case very seriously and
made my decision on the evidence alone. In the jury room
the jurors went over all of the evidence in the case.
4. I have been on another jury. On that occasion some
jurors discussed things the judge explicitly told us not to
discuss. None of that occurred in this case. I did not hear
any jurors discuss anything other than the evidence in the
case.
5. None of the jurors tried to pressure other jurors. In
making my decision I was not motivated by anything other
than the evidence. I voted “no” to the first question. I simply
did not feel the plaintiffs proved that the security at the
H-19
shopping center or the lack of security was a proximate cause
of Mrs. Garcia’s death.
6. After the trial the judge asked us in chambers why we
were so somber. I stated that we felt sorry for the Garcia
family. The judge indicated that he would have done the
same thing we did if he had been on the jury.
7. All of the foregoing is true and correct and within my
personal knowledge.
FURTHER THE AFFIANT SAYETH NOT.
/s/ JEFFREY M. WALLIS
Jeffrey Mayne Wallis
Sworn to and subscribed before me this the Ist day of
August, 1991.
/s/ KAREY DUBIEL DYE
Notary Public
My commission expires: 10-20-94
H-20
EXHIBIT E
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF JAMES MITCHELL WILSON
STATE OF TEXAS §
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be JAMES MITCHELL WILSON,
and stated that he is over the age of 18 years, that he has not
been convicted of any crimes and is of sownd mind. The
affiant further stated that:
1. My name is JAMES MITCHELL WILSON. I was a
juror in the case of Gregorio Garcia, et al. vs. Avala of Texas,
Inc., et al.; Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991. The first question we
were asked was:
Did the negligence, if any, of Intershop Rez2i Estate
Services, Inc., proximately cause the occurrence in
question?
I voted to answer this question “no’’. Initially, the vote
was 8-4 to vote no, but after a few hours of discussion, the
vote was 10-2. I was a member of the majority of 10 who
voted no. I made my decision based on the evidence and the
instructions of Judge West. Based on the whole picture, I did
not believe that a security guard would have deterred the
person who committed the crime even if he had been close
by. I didn’t think the plaintiffs proved that the failure to
have two unarmed security guards was a proximate cause of
Mrs. Garcia’s death.
In answering this question, I followed my juror’s oath and
considered only the evidence presented in the trial and the
judge’s instructions. I was not influenced by any passion,
H-21
prejudice or bias and did not consicler any such prejudice,
passion or bias in reaching my verdict.
The discussions between the jurors were calm. I did not
hear anyone discuss anything other than the evidence
presented in court.
After we voted, Judge West asked us into his chambers.
Judge West told us that he agreed with our decision and that
we did a good job.
2. All of the foregoing is true and correct and within my
personal knowledge.
Further the affiant sayeth not.
/s/ JAMES M. WILSON
James Mitchell Wilson
Sworn to and subscribed before me this the !st day of
August, 1991.
/s/ KAREY DUBIEL DYE
Notary Public
My commission expires: 10-20-94
H-22
EXHIBIT F
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF MARC CHARLES LANGLAND
STATE OF TEXAS §
:
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to bb MARC CHARLES LANGLAND,
and stated that he is over the age of 18 years, that he has not
been convicted of any crimes and is of sound mind. The
afhant further stated that:
1. My name is MARC CHARLES LANGLAND. I was a
juror in the case of Gregorio Garcia, et al. vs. Avala of Texas,
Inc., et al.; Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991. The first question the
jury had to answer was:
Did the negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
At the end of our deliberation, the jurors voted 10-2 to
answer the question “no”. I took my duty as a juror
extremely seriously, and I believe the other jurors did also.
We were repeatedly told by the judge and the lawyers to put
aside our sympathy, which was difficult, because my heart
went out to the family of Mrs. Garcia. Based on the evidence
presented by the lawyers, and the judge’s instructions, |
answer the first question “no”. I was not motivated in my
answer by anything other than the evidence and the charge.
In the discussions among the jurors, no other factor was
raised. It was my opinion that this terrible crime was not
foreseeable and that security guards would have made no
difference.
H-23
After the trial, Judge West took us to his chambers. He
told us that this case would not be tried again. He said
nothing had been done wrong and he thought we reached the
right decision. He said we were like the Supreme Court and
our decision was final.
In answering question number 1, 1 followed my juror’s
oath and considered only the evidence presented in the tnal
and the judge’s instructions. I was not influenced by any
passion, prejudice or bias and did not consider any such
prejudice, passion or bias in reaching my verdict.
2. All of the foregoing is true and correct and within my
personal knowledge.
Further the afhant sayeth not.
/s/ Marc C. LANGLAND
Marc Charles Langland
Sworn to and subscribed before me this the Ist day of
August, 1991.
/s/ “AREY DUBIEL DYE
Notary Public
My commission expires: 10-20-94
H-24
EXHIBIT G
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF PAUL CURTIS GOODWIN
STATE OF TEXAS §
§
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be PAUL CURTIS GOODWIN, and
stated that he is over the age of 18 years, that he has not been
convicted of any crimes and is of sound mind. The affiant
further stated that:
1. My name is PAUL CURTIS GOODWIN. I was a juror
in the case of Gregorio Garcia, et al. vs. Avala of Texas, Inc.,
et al., Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991. The jury, after delibera-
tion, answered the first question with regard to negligence
and proximate cause “NO”. That first question was:
Did the negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in |
question?
I sat through the entire case and listened to all of the
evidence. I also listened carefully to all of the instructions. |
Based upon what I heard and saw I did not believe that the
plaintiffs proved their case. I felt that Mrs. Garcia’s murder
was a random act of violence, and that the lack of security
guards was not a cause of her death.
In answering this question, I followed my juror’s oath and
considered only the evidence presented in the trial and the
judge’s instructions. I was not influenced by any passion,
prejudice or bias and did not consider any such prejudice,
passion or bias in reaching my verdict.
EE
H-25
After the trial, Judge West questioned the jury at length
about the reasons for the verdict. The ten jurors who joined
the verdict did not indicate they were influenced by anything
other than the evidence. Judge West asked me about my
employment with Texaco. My employment with Texaco did
not in any way affect my decision, which was based solely on
the evidence.
2. All of the foregoing is true and correct and within my
personal knowledge.
Further the affiant sayeth not.
/s/ PAUL C. GOODWIN
Paul Curtis Goodwin
Sworn to and subscribed before me this the 29th day of
July, 1991.
/s/_DANITA JO HOEPPNER _
Notary Public
My commission expires: 10-24-92
H-26
EXHIBIT H
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF HOWARD ROBERT MILLER
STATE OF TEXAS §
S
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to bb HOWARD ROBERT MILLER,
and stated that he is over the age of 18 years, that he has not
been convicted of any crimes and is of sound mind. The
afhiant further stated that:
1. My name is HOWARD ROBERT MILLER. I was
selected as a juror in the case of Gregorio Garcia, et al. vs.
Avala of Texas, Inc., et al.; Cause No. 90-13234, which was
tried in the 269th Judicial District Court of Harris County,
Texas, from June 3, 1991 through June 12, 1991. The jury,
after deliberation, answered the first question with regard to
negligence and proximate cause “NO”. The first question
was:
Did the negligence, if any, of Intershop Real Estate
Services, Inc., proximately cause the occurrence in
question?
I listened to all of the evidence presented. I also listened to
the judge’s instructions as well as the arguments of counsel.
After going back to the jury room I reviewed the evidence
with all of the jurors. In answering this question, I followed
my oath and considered only the evidence presented in the
trial and the judge’s instructions. No other jurors brought up
any reasons for deciding the case other than the evidence. I
was not influenced by any passion, prejudice or bias and did
not consider any such prejudice, passion or bias in reaching
my verdict. I simply did not fcel that the plaintiffs carried
their burden of proof with respect to proximate cause.
H-27
2. All of the foregoing is true and correct and within my
personal knowledge.
Further the afhiant sayeth not.
/s/ HOWARD R. MILLER.
Howard Robert Miller
Sworn to and subscribed before me this the 29th day of
July, 1991.
/s/_DANITA JO HOEPPNER _
Notary Public
My commission expires: 10-24-92
H-28
EXHIBIT I
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF JOE W. DAVIDSON
STATE OF TEXAS §
§
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be JOE W. DAVIDSON, and stated
that he is over the age of 18 years, that he has not been
convicted of any crimes and is of sound mind. The affiant
further stated that:
1. My name is JOE W. DAVIDSON. I was a juror in the
case of Gregorio Garcia, et al. vs. Avala of Texas, Inc., et al.;
Cause No. 90-13234, which was tried in the 269th Judicial
District Court of Harris County, Texas, from June 3, 1991
through June 12, 1991.
2. I was in the majority, which voted 10-2. I have read the
affidavit of Thomas Clayton. The notary has attached a copy
of Mr. Clayton’s affidavit to mine and marked it as
Exhibit “A’’. I agree with the affidavit of Mr. Clayton in all
respects. J} adopt Mr. Clayton’s statements as my own.
3. All of the foregoing is true and correct and within my
personal knowledge.
Further the afhant sayeth not.
/s/ JOE W. DAVIDSON
Joe W. Davidson
Sworn to and subscribed before me this the 2nd day of
August, 1991.
/s/ DANITA JO HOEPPNER
Notary Public
My commission expires: 10-24-92
H-29
EXHIBIT J
To Defendants’ Motion for Reconsideration
AFFIDAVIT OF RACHEL BRYAN POWELL
STATE OF TEXAS §
4
COUNTY OF HARRIS §
CAME BEFORE ME, the undersigned Notary Public, a
person known to me to be RACHEL BRYAN POWELL,
and stated that she is over the age of 18 years, that she has
not been convicted of any crimes and is of sound mind. The
afhant further stated that:
1. My name is RACHEL BRYAN POWELL. I was a juror
in the case of Gregorio Garcia, et al. vs. Avala of Texas, Inc.,
et al., Cause No. 90-13234, which was tried in the 269th
Judicial District Court of Harris County, Texas, from
June 3, 1991 through June 12, 1991.
2. I was in the majority, which voted 10-2. I have read the
affidavit of Thomas Ciayton. The notary has attached a copy
of Mr. Clayton’s affidavit to mine and marked it as
Exhibit “A”. I agree with the affidavit of Mr. Clay‘ on in all
respects. I adopt Mr. Clayton’s statements as my own.
3. All of the foregoing is true and correct and within my
personal knowledge.
Further the affiant sayeth not.
/s/_ RACHEL BRYAN POWELL
Rachel Bryan Powell
Sworn to and subscribed before me this the Ist day of
August, 1991.
[/s{/_ GLORIA J. ANESE
Notary Public
My commission expires: 1-16-94
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APPENDIX I
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
GREGORIO GARCIA, ET AL.
VS.
AVALA OF TEXAS, INC., ET AL.
PLAINTIFFS’ MOTION FOR NEW TRIAL
Now Come Plaintiffs in the above entitled and numbered
cause, and file this their Motion for New Trial, within the
time prescribed by law, and move the Court to set aside the
verdict of the jury returned June 12, 1991, and to grant a
new trial herein upon the following grounds, to-wit:
Il.
The jury’s answer to Special Issue No. 1, to the effect that
the Defendants were not negiigent, is so against the greater
weight and overwhelming preponderance of the evidence as
to be manifestly wrong and clearly unjust.
I.
The jury’s answer to Special Issue No. 1, to the effect that
the Defendants’ negligence was not a proximate cause of the
occurrence in question, is sO against the greater weight and
overwhelming preponderance of the evidence as to be
manifestly wrong and clearly unjust.
I-2
WHEREFORE, Premises Considered, Plaintiffs pray that
the verdict of the jury returned on June 12, 1991, be set
aside and that they be granted a new trial.
Pespectfully submitted,
KRIST, GUNN, WELLER, NEUMANN
& MORRISON
By: /s/RONALD D. KRIST
Ronald D. Krist
State Bar No. 11727000
17555 El Camino Real
Houston, Texas 77058
(713) 283-8500
(713) 488-3489 (FAX)
CERTIFICATE OF SERVICE
I, RONALD D. KRIST, do hereby certify that on this the
1 ith day of July, 1991, a true and correct copy of the above
and foregoing instrument was mailed by certified mail,
return receipt requested, to all attorneys of record.
/s/ RONALD D. KRIST
Ronald D. Krist
J-1
APPENDIX J
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS
269TH JUDICIAL DISTRICT
No. 90-13234
Houston, Texas, August 26, 1991
GREGORIO GARCIA, ET AL.
VERSUS
AVALA OF TEXAS, INC., ET AL.
TRANSCRIPT OF HEARING
BEFORE THE HONORABLE DAVID WEST
269TH DISTRICT COURT JUDGE
MOTION
BE IT REMEMBERED that the above entitled and
numbered cause came on for trial before said Honorable
Court, David West, Judge Presiding, at the Harris County
Civil Courts Building, 301 Fannin, Houston, Texas, on the
26th day of August, 1991, and the following proceedings
were had:
APPEARANCES
FOR THE PLAINTIFFS GREGORIO GARCIA, ET AL.:
RONALD D. KRIST AND KEVIN D. KRIST
KRIST, GUNN, WELLER, NEUMANN & MORRISON
17050 El Camino Real
Houston, Texas 77058
J-2
FOR ALICIA NICOLE GARCIA:
JIMMY WILLIAMSON
300 Fannin
Suite 300
Houston, Texas 77002
FOR THE DEFENDANTS
AVALA OF TEXAS, INC., ET AL.:
Louis E. MC CARTER AND
PHILLIP B. DYE, JR.
Vinson & Elkins
3300 First City Tower
Houston, Texas 77002
(MR. MC CARTER:]
They also asked me on what basis the Court granted the new
trial. And I said, Well, I couldn’t articulate a very good
answer, Judge, because it does seem to me, as you pointed
out, it was a hard fought, hotly disputed case. Tried by
Mr. Krist, who is probably one of the best known, most
talented lawyers in Texas, if not in the nation, and his
son, Kevin, is certainly extremely capable, and Jimmy
Williamson, as you know, is a highly capable lawyer. The
case was hotly disputed, vigorously disputed, and we won.
And I look on it and I say, Well, you did a good job, the jury
was fair, and we know what’s going to happen at the next
trial. We know what the testimony is. And I kind of scratch
my head. And it looks like to me, in light of your ruling,
Your Honor, with all due respect, that it’s a case that we
can’t win.
J-3
THE COURT: Well, that would be — that’s one way to
look at it. I just am not going to go into detail. I'll be glad to
have a beer with you and discuss — I'll discuss — I’ve dis-
cussed this case with a friend of mine. This is not an easy
case to grant a new trial in. I know when I have —I never
want to be granting new trials to make up for deficiencies of
lawyering. That was not the case in this case. I sure don’t like
to grant new trials and punish a lawyer. You did a sterling
job. So I’m not granting it based on — I told you that before,
and I want you to really understand I didn’t do this on
lawyer performance. When you’ve got good performances,
then that’s out of the motion for new trial. No, this was not
an easy case to grant a new trial in personally, but I don’t —
I like to get a finality of trials and let the chips fall where they
may. I thought justice demanded that I grant a new tnal
under the facts and the status of the law as I know it. And
I’m the last guy that wants to play Supreme Court.
[9-12]
*+_ * *
MR. MC CARTER: But, Your Honor, also I think the
law is crystal clear that you, as a trial judge, and for that
matter an appellate court in ruling on great weight points,
which as I understand the basis for their new trial was
insufficiency of the evidence, or in other words, it was
against the great weight and preponderance of the evidence
as to be manifestly unjust, the law is crystal clear, Your
Honor, that you, or an appellate court, cannot substitute
your judgment for that of the jury.
And I know Your Honor’s familiar with these cases, but
for example here is an excerpt from the Larson case. Judge
Kilgarlin said: Trial courts and courts of appeal should be
j-4
subject to the same standard for a simple reason. No court is
free to substitute his judgment for that of the jury.
And here’s another excerpt from Justice Wallace. It’s well-
established that an appellate court cannot merely substitute
its judgment for that of a jury because the Court cannot
exercise its constitutional authority to the detriment of the
right of trial by a jury which 1s of equal constitutional
stature.
And I have another case here that I’m not going to take the
time with the Court but here’s Justice Kilgarlin, the Herbert
case. The law is clear, Your Honor, that you cannot substi-
tute your opinion for that of the jury.
And I think it’s also crystal clear, Your Honor, that the
Judge — I’m sorry —the jury is the one who decides the
facts and the credibility of the witnesses. They decide dis-
puted facts. And you, Your Honor, told the jury panel that.
You told the jury that when they were impaneled that
they’re the sole judges of the credibility of the witnesses and
the weight to be given their testimony, and of course that
was included in the Court’s charge.
Here, for example, when you told the jury panel —
THE COURT: I told them that, didn’t I?
MR. MC CARTER: You certainly did, Your Honor.
THE COURT: I’ve told every jury that, and it’s not been
true three times in seven years, and I guess I’m going to have
to just suck it up when I told them they’re going to be the
final arbiter of the facts in this case.
MR. MC CARTER: Well, Your Honor, you did, and I
don’t think there’s any question but that is the law...
x*_ * *
MR. MC CARTER: My point, Judge, I guess_ what
you're saying, and there’s no question in my mind, Your
J-5
Honor, that you are a good, honorable man, but I guess what
you’re saying is that you didn’t think justice was served by
the jury’s verdict. And I don’t understand, since we had a
jury decide, it’s a fair fight, I don’t understand why it’s
justice to have my client pay a bunch of money to the
plaintiffs in this case —
THE COURT: No.
MR. MC CARTER: —for the third-party acts which
were totally unforeseen by a maniacal, crazy madman. I just
don’t understand why that is justice.
THE COURT: You’re hitting the point. Is that the fact?
If it was the sole — if it was in fact the sole proximate cause
of another not contributed by any negligence or proximate
cause of the defendant, then you’re right.
MR. MC CARTER: But sole — sole proximate cause
wasn’t even submitted, as you know.
THE COURT: I know it wasn’t.
x~ * &
[19-21]
*_ * *
(MR. MC CARTER:]
Mr. Dye has pointed out, if I understand what he’s point-
ing out to me, that sole proximate cause was not submitted
in this case.
THE COURT: No, it wasn’t.
MR. MC CARTER: It’s incumbent upon the plaintiffs to
prove that the negligent conduct of our client, if any, was a
proximate cause of the murder. And the jury answered that
question no. They either found we were not negligent or they
found it was not a proximate cause or they found both. And
again, a jury fee was paid, the jury has decided, and I just —
J-6
I don’t understand how anything is going to be any different
next time. We know what the evidence is going to be. We
know what the testimony is going to be. I just — in light of
the Court’s ruling, I don’t understand how we’re ever going
to be able to win this case.
* ae =
[MR. MC CARTER:]
The present status of the law is that there’s no avenue for
us to go with respect to your ruling. That is the present status
of the law. It would just seem to me to be much fairer, if you
will, that if you decide not to give them a new trial, that they
have an avenue, they can go up to the Court of Civil Appeals
and those gentlemen and ladies, as I understand it, are the
ones that frequently make the rule on insufficiency points.
Whether it was against the great weight and preponderance
of the evidence.
But under the present status of the law, you know, we have
no place to go, Your Honor, and it just seems again that if
we’re interested in fairness,-if we’re interested in justice, that
what would be fair and just, and I understand that my
attempts to get you to change your mind are tough, because
my father, late father, who is much smarter than I can ever
hope to be, said it takes a very courageous person to admit
he’s wrong and change his mind. With all due respect to this
Court, I think you are mistaken. We had a jury. The jury has
spoken. You may disagree with it. I think we won. You gave
us a fair trial. You gave everybody a fair trial. I think we
won, and I think we’re entitled to keep that verdict. Thank
you.
K-1
APPENDIX K
IN THE COURT OF APPEALS
for the
FIRST DISTRICT OF TEXAS
No. 01-91-00808-CV
AVALA OF TEXAS, INC., d/b/a THE AVALA
GROUP AND d/b/a PLYMOUTH PARK SHOPPING CENTER
AND INTERSHOP REAL ESTATE SERVICES, INC.,
f/k/a HFA MANAGEMENT USA Co.,
Relators
V.
THE HONORABLE DAVID WEST, JUDGE OF
THE 269TH DISTRICT COURT OF HARRIS
COUNTY, TEXAS,
Respondent
PETITION FOR WRIT OF MANDAMUS
FROM THE DISTRICT COURT OF THE 269TH
JUDICIAL DISTRICT, HARRIS COUNTY, TEXAS
TO THE HONORABLE JUSTICES OF THE COURT
OF APPEALS:
COME NOW Relator Avala of Texas, Inc. d/b/a The
Avala Group and d/b/a Plymouth Park Shopping Center
and Relator Intershop Real Estate Services, Inc., f/k/a HFA
Management USA Co. complaining of the Honorable David
West, Judge of the 269th District Court of Harris County,
Texas, and file this their Petition for Writ of Mandamus in
which Relators ask this Court to issue a Writ of Mandamus
K-2
directing Judge West to set aside his order granting a new
trial.
JURISDICTION
The Court of Appeals has jurisdiction to grant Relators’
Petition for Writ of Mandamus pursuant to TEX. GOv’T
CODE ANN. § 22.221(b) (Vernon 1988).
PARTIES
Relators are Avala of Texas, Inc., d/b/a The Avala Group
and d/b/a Plymouth Park Shopping Center (“‘Avala’’) and
Intershop Real Estate Services, Inc., f/k/a HFA Manage-
ment USA Company (“Intershop’’), the Defendants in the
underlying lawsuit out of which this mandamus proceeding
arose. The underlying lawsuit is styled Gregorio Garcia, Indi-
vidually and as Surviving Husband of Patricia Wilson Garcia
and as Next Friend of Alicia Nicole Garcia, and Robert G.
Wilson and Theresa S. Wi'!son, Individually and as Surviving
Parents of Patricia Wilson Garcia v. Avala of Texas, Inc.,
d/b/a the Avala Group and d/b/a Plymouth Park Shopping
Center, Intershop HFA Management USA Co., and Intershop
Reali Estate Services, Inc., f/k/a Intershop HFA Management
USA Co., No. 9090-13234, in the 269th Judicial District Court
of Harris County, Texas. Relators are represented by Marie
R. Yeates, Penelope E. Nicholson, Catherine Bukowski,
Louis E. McCarter, and Phillip B. Dye, Jr., of the law firm of
Vinson & Elkins, 1001 Fannin Street, 3300 First City Tower,
Houston, Texas 77002.
Respondent is the Honorable David West, Judge of the
269th Judicial District Court of Harris County, Texas. The
address for Judge West is Harris County Courthouse, 301
Fannin Street, Houston, Texas 77002.
The Real Parties in Interest are Gregorio Garcia (Individ-
ually and as Surviving Husband of Patricia Wilson Garcia
K-3
and as Next Friend of Alicia Nicole Garcia) and Robert G.
Wilson and Theresa S. Wilson (Individually and as Surviv-
ing Parents of Patricia Wilson Garcia), the Plaintiffs in the
underlying lawsuit out of which this mandamus proceeding
arose. Plaintiffs are represented by Ronald D. Krist and
Kevin D. Krist of the law firm of Krist, Gunn, Weller,
Neumann & Morrison, 17555 El Camino Real, Houston,
Texas 77058. The attorney ad litem for minor Plaintiff
Alicia Nicole Garcia is Jimmy G. Williamson of Jimmy G.
Williamson, P.C., 300 Fannin, Suite 300, Houston, Texas
77002. °
INTRODUCTION
Through this Petition for Writ of Mandamus, Relators
seek to challenge the unjust and unconstitutional rule that
shields a trial judge’s order granting a new trial from any
review whatsoever unless the order is wholly void or
expressly based on a perceived conflict in jury answers. The
rule makes a mockery of the jury system by effectively
allowing trial courts to toss out errorless jury verdicts for no
reason at all. A party who has spent tens of thousands of
dollars on one trial and has fairly won a jury verdict should
not have to face a retrial based on a whim of the trial judge.
The present case illustrates the injustice caused by the rule
exempting new trial orders from appellate review. After a
hard fought, sharply contested trial that lasted seven days,
the jury returned a verdict in Defendants’ favor. Although
there was ample evidence in the record to support the jury’s
verdict, Plaintiffs moved for a new trial on the sole ground
that the verdict was against the great weight and overwhelm-
ing preponderance of the evidence. To Defendants’ amaze-
ment, the trial court granted Plaintiffs’ motion. The judge
apparently believed that the jury reached the wrong result
and substituted his view of the evidence for that of the jury.
een
K-4
As the Statement of Facts from the trial filed along with this
Petition demonstrates, the jury’s verdict was not against the
great weight and preponderance of the evidence.' The clear
abuse of discretion committed by the triai judge in granting
Piaintiffs’ Motion for New Trial should not be a wrong
without a remedy. Defendants should not be subjected to a
second trial merely because the trial judge disagreed with the
verdict returned by the jury in the first trial. This Court has
the power to issue a writ of mandamus directing the trial
court to set aside its order granting a new trial and should do
so. The facts of this case demand relief.
Patricia Wilson Garcia was brutally murdered as she was
apparently attempting to buy stamps at a self-service postal
island located in the parking lot of a shopping center. The
police never caught her attacker. Her husband, daughter,
and parents sued Avala (the owner of the shopping center)
and Intershop (the manager of the shopping center) for
negligence claiming that inadequate security was responsible
for Mrs. Garcia’s death. (Ex. 1.) During the seven-day trial,
Plaintiffs presented evidence criticizing security at the shop-
ping center where the murder occurred, while Defendants
challenged Plaintiffs’ evidence and introduced their own
evidence that the murder was unforeseeable, that
Defendants acted reasonably under the circumstances, and
that no reasonable extra security measures would have
‘Relators have filed the Statement of Facts from the trial as
Exhibit 11 to this Petition. The Statement of Facts includes a
transcription of the entire trial, but does not include copies of
the exhibits introduced at trial because many of those exhibits
are photographs and other items that cannot readily be copied.
Along with this Petition, Relators are filing a motion seeking
permission to have the original exhibits transferred to this
Court from the tnal court so that this Court will have a com-
plete record of the evidence introduced at trial.
K-5
tiffs elected not to submit any questions to the jury concern-
ing the liability of Avala (the shopping center owner), but
rather to proceed solely against Intershop (the shopping
center manager). The jury returned a verdict absolving Inter-
shop of all liability by answering “‘No”’ to Jury Question
No. |, which asked,
Did the negligence, if any, of Intershop Real Estate
Services, Inc. proximately cause the occurrence in
question?
(Ex. 3.)
Judge West told the jurors that they had reached the right
decision and entered judgment on the basis of their verdict.
(Ex. 8-A, 8-D, 8-E, 8-F, 8-I, 8-J? and Ex. 4.) Six weeks after
the jury returned its verdict, however, he granted Plaintiffs’
Motion for New Trial. (Ex. 7.) The sole basis for that motion
was Plaintiffs’ contention that the jury’s answer to Question
No. | was against the great weight and overwhelming pre-
ponderance of the evidence. (Ex. 5.) Inexplicably, Judge
West also granted a new trial as to Avala, even though
Plaintiffs had waived their right to proceed against Avala by
failing to request any jury issues concerning Avala’s iiability.
Defendants filed a Motion for Reconsideration, but that
motion was denied. (Ex. 8, Ex. 9, and Ex. 12.)
prevented the attack. (Ex. 11.) After the parties rested, Plain-
Judge West’s decision to grant Plaintiffs’ Motion for New
Trial was wrong and constituted a clear abuse of discretion.
> Exhibit 8 is Defendants’ Motion for Reconsideration. The
motion has a number of exhibits attached to it, including
affidavits from the ten jurors who comprised the majority. In
their affidavits, six of the jurors made statements to the effect
that Judge West told them that they had made the right deci-
sion. Whenever a juror affidavit or other attachment to the
Motion for Reconsideration is referred to in this Petition, it
will be referred to as Ex. 8-A, 8-B, 8-C, etc. See footnote 3,
infra, regarding the admissibility of the affidavits.
a
K-6
The evidence was hotly contested, with each side presenting
evidence in support of its own position as well as challenging
the evidence presented by the other side. The jury clearly
was entitled to believe Deferdants’ evidence rather than
Plaintiffs’ evidence. The finding that Plaintiffs did not carry
their burden of proof is amply supported by the record.
In reaching its verdict, the jury considered all of the evi-
dence and took to heart Judge West’s admonition not to be
swayed by passion or sympathy. (Ex. 8-A - 8-J.) This is a
tragic case, and it took courage for the jury to return a
verdict based on its objective view of the facts rather than on
sympathy for the family of the 22-year old victim who was
stabbed to death during her seventh month of pregnancy.
Judge West had no right to substitute his judgment for that
of the jury, which is clearly what he did.
Although Texas law prohibits a trial court from substitut-
ing its view of the evidence for that of the jury, a party
aggrieved by a violation of that rule in the granting of a new
trial currently has no remedy. An-order granting a new trial
is not appealable, and the case law suggests that mandamus
is not available to set aside new trial orders unless they are
wholly void or expressly based on a perceived conflict in jury
answers. There is no reason why new trial orders should be
exempt from review when every other trial court order is
subject to review, either by mandamus or direct appeal. The
self-imposed restrictions applied by Texas appellate courts
to limit their review of new trial orders are unconstitutional
in that they deprive litigants of their right to a jury tmal,
their right to meaningful access to the courts, their right to
due process of law, their right to equal protection, and their
right to appellate review. Through this proceeding, Relators
ask this Court to cast aside those unconstitutional artificial
restrictions and to issue a writ of mandamus directing Judge
a
K-7
West to set aside his clearly erroneous order granting a new
trial.
Judge West’s order constituted a clear abuse of discretion
and should be set aside for the following reasons:
(1) Plaintiffs waived any cause of action against Avala
by failing to request any jury questions concerning
Avala’s liability;
(2) Plaintiffs’ Motion for New Tnal was defective in
that it failed to specify the particulars in which the
evidence allegedly was insufficient to support the
jury verdict;
(3) Judge West failed to detail the evidence both in
support of and contrary to the jury’s finding before
granting a new trial based on insufficiency of the
evidence; and
(4) The evidence was clearly sufficient to support the
jury’s verdict and therefore the order granting a
new trial violated Defendants’ federal and state
constitutional rights to a trial by jury, to access to
the courts, to due process of law, to equal protec-
tion, and to appellate review.
FACTUAL BACKGROUND
A brief review of the evidence presented at trial shows that
there was ample evidence to support the jury’s verdict.
The general facts surrounding Mrs. Garcia’s murder were
undisputed. Mrs. Garcia was stabbed six or seven times in
the back of the head and neck between 8:45 and 9:00 p.m. on
April 29, 1988. (Ex. 11 at Vol. V, pp. 1146, 1143.) The
postal island where Mrs. Garcia was killed was well lighted.
(Ex. 11 at Vol. V, pp. 1142, 1140.) Some of the stores in the
shopping center had closed, but many remained open.
(Ex. 11 at Vol. V, p. 1140; Vol. III, p. 609.) Although no one
witnessed the murder, there were still people in the parking
K-8
lot at the time it occurred. (Ex. 11 at Vol. V, p. 1141;
Vol. III, p. 609.)
Defendants called Dr. Charles S. Petty, who was the Chief
Medical Examiner and Director of the Criminal Laboratory
for Dallas County at the time of the attack, as an expert
witness. (Ex. 11 at Vol. III, p. 672.) Dr. Petty’s testimony
indicated that Mrs. Garcia was killed quickly. He testified
that “one or the other of the fatal wounds was inflicted early
on in this affray” and that there were no defensive wounds
or other signs of a struggle. (Ex. 11 at Vol. III, pp. 694, 707.)
In Dr. Petty’s opinion, Mrs. Garcia’s murderer “was under
some sexual tension” because the nature of the wounds
“represent a great deal of sexual energy.” (Ex. 11 at Vol. III,
p. 692.)
Defendants also called Mr. William Degan as an expert
witness on security. Mr. Degan testified that Defendants
“acted in a very prudent manner” in implementing their
security program. (Ex. 11 at Vol. V, pp. 1130-31.) He also
testified that he had reviewed the statistics concerning crime
in the shopping center and that those statistics provided no
basis for anticipating the kind of violent crime that took
Mrs. Garcia’s life. (Ex. 11 at Vol. V, p. 1136.) In his words,
“such an irrational and brutal crime [was] not foreseeable.”
(Ex. 11 at Vol. V, p. 1136.) Mr. Degan further testified that
the murder was “so vicious and executed so quickly, so
irrationally” that he did not think that the presence of roving
security personnel in the shopping center would have
prevented the crime. (Ex. 11 at Vol. V, pp. 1145-46. See also
1214.)
Predictably enough, Plaintiffs’ security expert, Mr. Robert
Waldhuber, disagreed with Mr. Degan’s_ opinion.
Mr. Waldhuber testified to the effect that Defendants’ secu-
rity was inadequate and that such inadequacy was a proxi-
mate cause of Mrs. Garcia’s vicious murder. In his opinion,
K-9
Defendants should have employed two unarmed security
guards — one to patrol the 77-acre parking lot and one to
guard the postal island. (Ex. 11 at Vol. III, pp. 626-627.) Yet
even Mr. Waldhuber admitted that unarmed security guards
might not have been able to prevent the brutal attack on
Mrs. Garcia. (Ex. 11 at Vol. III, pp. 637-38.) He also admit-
ted that good lighting is a recognized form of security, but
that adequate lighting did not prevent Mrs. Garcia’s murder.
(Ex. 11 at Vol. III, pp. 599, 610-11, 621.) In addition, he
agreed that the presence of people generally serves as a
deterrent to crime, but did not do so in this case. (Ex. 11 at
Vol. III, pp. 604, 612, 621.) Finally, he recognized that the
presence of cars passing slowly through the parking lot did
not stop the killer. (Ex. 11 at Vol. III, PP. 613-14, 621.)
In sum, the evidence concerning negli, ence and proximate
cause was hotly disputed. The verdict returned by the jury
was clearly not against the great weight and preponderance
of the evidence. To the contrary, there was ample evidence
in the record to support the verdict.
In affidavits submitted to the trial court in connection
with Defendants’ Motion for Reconsideration, the ten jurors
who composed the majority stated that they had carefully
considered all of the evidence in reaching their verdict.
(Ex. 8-A - 8-J.) A further indication of the jury’s thorough
> Plaintiffs made no objection to the juror affidavits when
Defendants tendered them into evidence at the hearing on the
Motion for Reconsideration. (Ex. 12, &: 25.) Moreover, the
affidavits were admissible because they did not seek to impeach
the verdict. See Shaw v. Greater Houston Transp. Co., 791
S.W.2d 204, 210 (Tex. App. — Corpus Christi 1990, no writ)
(holding that five juror affidavits were admissible because “rele-
vant” and “helpful” on issue other than to impeach the ju
verdict); Caylat v. Houston E. & W.T. Ry., 113 Tex. 131, 25
S.W. 478, 482 (Tex. Comm’n App. 1923, opinion adopted)
(receipt of juror affidavits that do not im h the jury verdict
“contravenes no announced principle of public policy”). The
affids-its show that the jurors were not subject to any outside
K-10
analysis of the evidence can be found in the marks that they
made on Defendants’ Exhibit 3, a map of the shopping
center. (Ex. 8-L.) The jury marked the location of the
incidents that Plaintiffs contended should have apprised
Defendants of the need for greater security and obviously
concluded that since none of the incidents had occurred near
the postal island, Defendants could not have foreseen any
need to station a security guard at the postal island. In their
affidavits, the jurors affirmed that they had decided the case
based solely on the evidence and had not considered any
outside influence. Although they felt very sorry for Plaintiffs,
they believed that the evidence compelled them to reach the
verdict that they did.
ARGUMENT AND AUTHORITIES
I. JUDGES MAY NOT SUBSTITUTE THEIR VIEW OF
THE EVIDENCE FOR THAT OF THE JURY.
Throughout the history of Texas jurisprudence, the opin-
ions handed down by the courts of this State have consist-
ently “demonstrate[dj respect for jury verdicts.” Herbert v.
Herbert, 754 §.W.2d 141, 144 (Tex. 1988). Indeed, “the
sanctity of the right of trial by jury” is embedded in the
Texas Constitution. Texas Farmers Ins. Co. v. McGuire,
744 S.W.2d 601, 603 (Tex. 1988). Section 15 of article I of
the constitution mandates that the mght to a jury tral “shall
remain inviolate.” TEx. CONST. art. I, § 15.
Because of the great deference to jury verdicts required by
the Texas Constitution, trial courts have been expressly pro-
hibited from substituting their view of the evidence for that
of the jury since at least 1898. In Choate v. San Antonio &
A. P. Ry., 91 Tex. 406, 44 S.W. 69 (1898), the Texas
influence, but rather decided the case based solely on the
evidence.
K-11
Supreme Court wrote, “clearly the trial court cannot set
aside the verdict, and substitute its finding.”’ More recently,
the supreme court has held, “‘no court is free to substitute its
judgment for that of the jury.”” Larson v. Cactus Utility Co.,
730 S.W.2d 640, 641 (Tex. 1987) (emphasis added).
While the Texas Constitution makes the right to trial by
jury “inviolate,” the constitution also gives courts of appeal:
the power to review the sufficiency of the evidence to su’ -
port a jury finding. TEx. CONST. art. V, §6. Herbert,
754 S.W.2d at 143. Several courts have noted that there is a
certain tension between the constitutional provision con-
cerning the people’s right to a jury determination of disputed
facts and the constitutional provision concerning the appel-
late courts’ power to review jury fact findings. See, e.g., id. at
142-44; Pool v. Ford Motor Co., 715 $.W.2d 629, 633-36
(Tex. 1986). The courts have resolved that tension by strictly
limiting an appellate court’s authority to review the fact
findings made by a jury. An appellate court may set aside a
jury verdict on the ground that the evidence is factually
insufficient to support that verdict only after considering all
of the evidence and concluding that the verdict is so con-
trary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). Furthermore, when reversing on insufficiency
grounds, an appellate court must “detail the evidence rele-
vant to the issue in consideration and clearly state why the
jury’s finding is factually insufficient or is so against the great
weight and preponderance as to be manifestly unjust; why it
shocks the conscience; or clearly demonstrates bias.” Pool,
715 S.W.2d at 635. The appellate court also must demon-
strate how the evidence contrary to the verdict greatly out-
weighs the evidence in support of the verdict. /d.
Like appellate courts, trial courts have the power to set
aside jury verdicts on factual sufficiency grounds, but in
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doing so they are subject to the same standards as appellate
courts. Larson, 730 S.W.2d at 641. Hopson v. Gulf Oil Corp.,
150 Tex. 1, 237 S.W.2d 352, 358 (1951); Choate, 44 S.W. at
69. In rejecting an argument that trial courts should have
greater latitude than appellate courts in ordering remittitur,
the Larson court observed that allowing a trial court to
reduce the damages awarded by a jury when the evidence is
factually sufficient to support those damages would “rob[{] of
its vitality the constitutionally mandated right of trial by
jury.” 730 S.W.2d at 641. The court also noted that giving
trial judges broad discretion to order remittitur would per-
mit them to substitute their judgment for that of the jury. /d.
Reaffirming this State’s longstanding commitment to trial by
jury, the court concluded, ‘Trial courts and courts of appeals
should be subject to the same standard for a simple reason: no
court is free to substitute its judgment for that of the jury.”’ Id.
(emphasis added).
Il. THERE IS CURRENTLY NO WAY TO OBTAIN
REVIEW OF A TRIAL COURT’S IMPROPER DECI-
SION TO SUBSTITUTE ITS VIEW OF THE EVI-
DENCE FOR THAT OF THE JURY IN THE
GRANTING OF A NEW TRIAL.
Although Texas law clearly makes trial courts subject to
the same standards as appellate courts in setting aside jury
verdicts based on factual insufficiency of the evidence, there
is currently no way to obtain review of a trial court’s
improper decision to substitute its view of the evidence for
that of the jury in the granting of a new trial. An order
granting a new trial is interlocutory and therefore not imme-
diately appealable. Cf TEx. Civ. Prac. & REM. CODE ANN.
§ 51.012 (Vernon 1987) (listing the only appealable interloc-
utory orders). Nor are new trial orders subject to review
following the entry of final judgment after a second trial.
Cummins v. Paisan Const. Co., 682 $.W.2d 235, 235-36
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(Tex. 1984); Equitable Life Assur. Soc. v. Murdock,
219 S.W.2d 159, 164 (Tex. Civ. App. — El Paso 1949, writ
ref'd n.r.e.). Finally, the courts of this State have declined to
use the writ of mandamus to compel trial courts to set aside
erroneous orders granting new trials except when the orders
are wholly void or based on a perceived conflict in jury
answers. Johnson v. Fourth Court of Appeals, 700 S.W.2d
916, 918 (Tex. 1985).
As a practical matter, under the current state of the law, a
trial court can order a new trial for any reason — or no
reason at all — and its decision will never be subject to even
the most minimal scrutiny. As the law now stands, trial
courts can toss out jury verdicts on the merest of whims.
Every other trial court order is subject to some kind of
review, either by appeal or mandamus, and there is simply
no basis for treating new trial orders differently from other
orders. There is no reason why a trial judge should be
allowed to set aside a hard fougi:t, fairly won jury verdict
simply because the judge believes the jury reached the wrong
result. The refusal of the courts of this State to allow any
review of orders granting new trials puts Texas in a minority
of only four jurisdictions that preclude review of new trial
orders. (Ex. 10.) |
Il. MANDAMUS SHOULD ISSUE TO CORRECT
THE TRIAL COURT’S CLEAR ABUSE OF DIS-
CRETION IN GRANTING A NEW TRIAL.
A. This Court Has Mandamus Jurisdiction to Review
Clear Abuses of Discretion By the Trial Court.
The injustice caused by the present rule denying review of
new trial orders could be cured by allowing mandamus to be
used to correct clear abuses of discretion in the granting of
new trials. Texas appellate courts have the authonty to issue
writs of mandamus to correct clear abuses of discretion by
K-14
trial courts when there is no adequate remedy at law. John-
son v. Fourth Court of Appeals, 700 S.W.2d at 917. A party
aggrieved by the granting of a new trial currently has no
remedy at law because orders granting new trials are not at
this time reviewable on appeal. See supra at pp. 12-13.
Moreover, even if review of a new irial order could be
obtained after a retrial, that remedy would not be “equally
convenient, beneficial, and effective as the proceeding by
mandamus.” Cleveland v. Ward, 116 Tex. 1, 285 3.W. 1063,
1068-69 (1926).
Substantial harm flows from the granting of a new trial.
The prevailing party is required to fund the litigation all
over again, and the delay threatens the party’s right of mean-
ingful access to the courts. The parties have completed an
expensive and time-consuming trial and now face another.
Difficult issues have been sharply contested. Consideration
of an order granting a new trial by an appellate court through
a mandamus proceeding could materially advance the termi-
nation of the litigation and avoid exceptional expense to the
parties. Mandamus review would not be overly burdensome
to either party and would be less expensive than the cost of a
new trial.
B. Mandamus Is Particularly Appropriate in Light
of Recent Trends in the Law Involving the Issuance
of Mandamus.
Appellate courts currently issue writs of mandamus when
trial courts commit a clear abuse of discretion in numerous
contexts. For example, the supreme court and courts of
appeals now routinely issue writs of mandamus to compel or
preclude discovery in a variety of circumstances. See, e.z.,
Masinga v. Whittington, 792 S.W.2d 940 (Tex. 1990) (man-
damus conditionally granted to vacate an order preventing
the videotaping of a deposition, which the supreme court
found to be an abuse of discretion); Lunsford v. Morris,
K-15
746 S.W.2d 471 (Tex. 1988) (mandamus conditionally
granted to vacate order disallowing discovery of net worth);
Garcia v. Peeples, 734 $.W.2d 343 (Tex. 1987) (mandamus
conditionally granted to vacate pretrial discovery order lim-
iting use of discovery documents); Ginsberg v. Fifth Court of
Appeals, 686 S.W.2d 105 (Tex. 1985) (mandamus condition-
ally granted to vacate order of court of appeals precluding
trial court from making an independent determination of
the discoverability and admissibility of medical records).
Another recent example of the expanded use of manda-
mus can be seen in the case of Henderson v. O'Neill,
797 §.W.2d 905 (Tex. 1990). In Henderson, the supreme
court issued a writ of mandamus to compel the trial court to
vacate an order granting a change of venue because the
plaintiff had less than 45 days notice of the hearing. Interloc-
utory venue orders can be appealed after a trial on the
merits. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b)
(Vernon 1988). Nevertheless, the court granted the
requested mandamus relief.
An even more recent example of expanded mandamus
review is seen in 7ransamerican Natural Gas Corp. v. Powell,
34 Tex. Sup. Ct. J. 701 (June 19, 1991). In that case, the
supreme court made mandamus relief available to review a
trial court’s abuse of discretion in imposing discovery sanc-
tions that have the effect of precluding a decision on the
merits of a party’s claim. The supreme court concluded that
the remedy by way of appeal was completely inadequate. /d.
at 706. Interestingly, the court granted the requested manda-
mus relief despite the clear language of TEX. R. Civ. P. 215
that sanctions for discovery abuse are reviewable by appeal.
See also Braden v. Downey, 34 Tex. Sup. Ct. J. 721 (June 19,
1991) (mandamus granted to direct tria! court to defer impo-
sition of monetary and community service sanctions until
after entry of final judgment).
K-16
In light of the expanded availability of mandamus relief,
mandamus clearly should be available to set aside new trial
orders. An order granting a new trial is the most onerous of
all trial court orders, especially in hotly contested cases
where the parties have already spent hundreds of thousands
of dollars on one trial and now must face the expense of a
second trial. With mandamus available to resolve squabbles
over whether particular documents are discoverable and
whether a particular deposition should be videotaped, it is
absurd for mandamus not to be available to determine
whether a party who has prevailed in one trial should have
to undergo a second.
C. The Rule Precluding Review of New Trial Orders
Should Be Discarded As a Historical Anomaly.
The rationale for the rule precluding review of new trial
orders is unclear. From 1872 until at least 1911, Texas
courts allowed mandamus to be used to set aside orders
granting new trials. In Lloyd v. Brinck, 35 Tex. 1 (1872), the
Texas Supreme Court issued a writ of mandamus directing
the trial court to set aside its order granting a new trial,
ruling that there was no error in the jury’s verdict and that
the granting of a new trial constituted a clear abuse of
discretion. The Brinck court held that if a party has a clear
right to judgment and the trial court commits an abuse of
discretion in ordering a new trial, mandamus is the proper
remedy to set aside the new trial order. The court further
recognized that an appeal from a final judgment after a
retrial would be “‘wholly inadequate.” Jd. at 8.
Brinck has never been expressly overruled or modified by
any Texas court. Yet, for reasons difficult to discern, the
courts of this State subsequently created a rule exempting
new trial orders from review and have continued to follow
that rule blindly even though the use of mandamus has
K-17
expanded significantly in recent years. See supra at
pp. 14-16.
The peculiar rule exempting new trial orders from review
appears to have had its origin in the 1911 decision of Wright
v. Swayne, 104 Tex. 440, 140 S.W. 221 (1911). Without
mentioning Brinck, the Wright court held that mandamus
would not issue unless the order under consideration was
“wholly and absolutely void.” Although Wright involved a
motion for new trial, it is impossible to tell from the court’s
opinion whether the court intended to restrict mandamus
jurisdiction in general by only allowing mandamus for
“void” orders or rather intended to create a special rule for
new trial orders.
Then in 1926 the supreme court decided Gulf C. & S. F.
Ry. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926), in which
the court issued a writ of mandamus overturning a new trial
order that was based on the trial court’s erroneous conclu-
sion that there was an irreconcilable conflict among certain
jury findings. The Canty court noted that since there was, in
fact, no conflict in the jury answers, the trial judge had a
ministerial nondiscretionary duty to enter judgment based
upon the verdict, but the court also cited the Brinck opinion
with approval. The Canty court’s reliance on Brinck shows
that the court had no intention of overruling Brinck and saw
no inconsistency between the two decisions.
Although the meaning and import of Wright and Canty
are far from clear, one thing is certain: later courts seized
upo i the two decisions as authority for the proposition that
an order granting a new tral can only be set aside if (1) the
order is void or (2) the basis for the order is a conflict in the
issues.* Born of a misunderstanding of precedent, the rule
* See, 2.g., Employers Reinsurance Corp. v. Holland, 162 Tex.
394, 347 S.W.2d 605 (1961); Southland-Greyhound Lines, Inc.
v. Richardson, 126 Tex. 118, 86 S.W.2d 731 (1935); Missouri-
K-18
has become entrenched in Texas jurisprudence even though
there is not—and never has been — any reason for its
existence. The rule is nothing more than a_hisiorical
anomaly and should be discarded.°
D. The Texas Legislature Has Recognized the Right
to Review of New Trial Orders.
Continued adherence to the rule exempting new trial
orders from review is particularly anomalous since the Texas
legislature long ago recognized that new trial orders should
be subject to some kind of review. In 1925, the legislature
enacted a statute allowing appeals from every order granting
a motion for new trial. Act of February 23, 1925, 39th Leg.,
R.S., ch. 18, § A, 1925 Tex. Gen. Laws 45. Two years later,
the legislature suspended the right to appeal new trial orders,
proclaiming that “the granting of new trials is largely discre-
tionary with the trial court and not subject to reversal except
for abuse of discretion...” Act of February 21, 1927,
40th Leg., R.S., ch. 52, § 2, 1927 Tex. Gen. Laws 75-76
(emphasis added). Thus, the legislature recognized that new
trial orders could be reviewed for abuse of discretion. But
contrary to this explicit acknowledgment of a right to some
type of review (presumably by mandamus since there is
currently no right to appeal after a second judgment), Texas
K.-T. R.R. v. Brewster, 124 Tex. 244, 78 S.W.2d 575 (1934);
Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905 (1930);
Anchor v. Martin, 116 Tex. 409, 292 S.W. 877 (1927); Cor-
timeglia v. Davis, 116 Tex. 412, 292 S.W. 875 (1927); Angelina
Casualty Co. v. Fisher, 319 $.W.2d 387 (Tex. Civ. App. —
Beaumont 1958, no writ); Union City Transfer v. Kenna, 210
S.W.2d 431 (Tex. Civ. App. — Beaumont 1948, no writ).
* See, Johnson v. Fourth Court of Appeals, 700 $.W.2d 916 (Tex.
1985), in which the court cites precedent for the rule without
discussing any reason for the rule. Johnson is internally incon-
sistent since it adheres to the rule severely limiting the author-
ity of appellate courts to set aside new trial orders, but at the
same time recognizes that mandamus should issue when a trial
court clearly abuses its discretion.
K-19
appellate courts blindly cling to their self-imposed restric-
tions on the scope of review of new trial orders.
IV. THE TEXAS RULE PRECLUDING REVIEW OF
NEW TRIAL ORDERS IS UNCONSTITUTIONAL.
A. Defendants Have the Right te Trial by Jury Under
the Texas Constitution.
The current Texas rule precluding review of an order
granting a new trial effectively permits a trial court to set
aside an errorless jury verdict for any reason or no reason at
all in derogation of the prevailing party’s constitutional right
to trial by jury. TEX. CONST. art. I, § 15. A prevailing litigant
has a protected interest in the jury’s verdidt on the merits.
Giving trial judges carte blanche to set aside jury verdicts
violates a litigant’s constitutional right to a jury trial.
B. Defendants Are Entitled to Due Process of Law
and Equal Protection Under the U.S. and Texas
Constitutions.
A rule requiring a party to abide by an arbitrary ruling,
violative of its constitutional right to trial by jury, offends
due process. A fundamental component of the due process
guarantees in the Texas and United States Constitution is
that a party be allowed to have the merits of his case “fairly
judged.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 433
(1982). U.S. CONST. amend. V, XIV; TEx. CONST. art. I, §§ 3,
19. The failure to offer litigants any appellate or mandamus
review of an order arbitrarily granting a new tnial violates
due process and denies litigants meaningful access to the
courts. The Texas judicial system provides some kind of
review for every other type of trial court order, and the
peculiar exemption of new tnal orders from any review
contravenes the due process and equal protection clauses of
the United States and Texas Constitutions.
K-20
C. Defendants Have the Right to Appellate Review
Under the Texas Constitution.
The Texas Constitution guarantees litigants the right to
obtain review of a tral court’s decisions by an appellate
court. TEX. CONST. art. I, §§ 13, 19. “A dissatisfied liti-
gant. . .has the constitutional right to have his case
reviewed by the Court of Civil Appeals.” Stroud v. Ward, 36
S.W.2d $90, 591 (Tex. Civ. App. — Waco 1931, no wnit).
The right to appellate review protects a party’s right to due
process of law and preserves the integrity of the judiciary by
guarding against the arbitrary exercise of judicial power.
Rule 81(b) of the Texas Rules of Appellate Procedure serves
to implement the constitutional right to appellate review by
making any error that “probably prevented the appellant
from making a proper presentation of the case to the appel-
late court” reversible error.
D. Defendants Are Entitled to Protection From Arbi-
trary Retrial Under the Double Jeopardy Clauses
of the U.S. and Texas Constitutions.
The trial court’s order in this case violates the double
jeopardy clause because it potentially subjects Defendants to
multiple or successive punitive damage awards for the same
course of conduct when a jury has already absolved
Defendants of any liability. U.S. CONST. amend. V; TEx.
CONST. art. I, § 14. Because punitive damage awards are
designed to be penal in nature, see Lunsford v. Morris, 746
S.W.2d 471 (Tex. 1988), Defendants will be subject to dou-
ble jeopardy by an arbitrary retrial. Therefore, under the
double jeopardy clauses of the United States and Texas
Constitutions, Defendants are entitled to appellate review of
the trial court’s decision to grant a new trial.
K-21
V. THE TRIAL COURT CLEARLY ABUSED ITS DIS-
CRETION IN GRANTING A NEW TRIAL.
If the trial court’s order granting a new trial in this case is
subject to review, that order should be set aside because it
constituted a clear abuse of discretion.
A. The Trial Court Had No Authority to Grant a New
Trial for Avala.
Plaintiffs elected to submit liability issues only as to Inter-
shop’s negligence. No issues were submitted as to Avala. An
independent ground of recovery which is not submitted or
requested is waived. TEX. R. Civ. P. 279. Thus, the tral
court plainly erred in granting a new trial as to the entire
cause of action. The take-nothing judgment of July 5, 1991 is
clearly proper as to Avala.
B. The Trial Court Acted On An Improper Motion.
Plaintiffs’ Motion for New Trial did not specify the partic-
ular way the evidence was allegedly insufficient to support
the verdict. A motion for new trial based on insufficiency of
the evidence must distinctly specify the particulars in which
the evidence is claimed to be insufficient. White v.
Wadlington, 78 Tex. 159, 14 S.W. 296 (1890). Plaintiffs’
motion merely directed global allegations to a broad form
negligence question. The trial court clearly abused its discre-
tion by ruling on an improper motion.
C. The Trial Court’s Order Violated Defendants’ Con-
stitutional Rights.
By granting a new trial when, as discussed above, the
evidence was sufficient to support the jury’s verdict, the trial
court substituted its view of the evidence for that of the jury
and violated Defendants’ constitutional right to trial by jury,
to access to the courts, to due process of law, to equal
protection, and to appellate review. U.S. CONST. amend. V,
XIV; TEX. CONST. art. I, §§ 3, 13, 15, 19; TEx. R. App. P.
K-22
81(b). See supra at pp. 19-21. Furthermore, by arbitrarily
ordering a retrial after a jury had absolved Defendants of
liability, the trial court twice placed Defendants in jeopardy
of being subjected to punitive damages in violation of the
double jeopardy clauses of the United States and Texas
Constitutions. U.S. CONST. amend. V; TEX. CONST. art. I,
§ 14. See supra at p. 21.
D. The Trial Court Set Aside the Jury Verdict With-
out Detailing the Evidence.
The trial court overturned the jury’s verdict in this case in
a three-line order that merely recited that Plaintiffs’ Motion
for New Trial (the sole basis for which was that the verdict
was against the great weight and preponderance of the evi-
dence) had been heard and granted. A trial court has no
greater right to review the factual sufficiency of evidence
than the courts of appeals, and a court of appeals cannot set
aside a jury finding without first engaging in a detailed
review of the evidence. Larson, 730 S.W.2d at 641; Herbert,
754 S.W.2d at 144; Pool, 715 S.W.2d at 635. When granting
a new trial on factual sufficiency grounds, a court must detail
the evidence relevant to the issue and clearly state why the
jury’s finding is factually insufficient or is so against the great
weight and preponderance as to be manifestly unjust, why it
shocks the conscience, or why it clearly demonstrates bias.
Cropper v. Caterpillar Tractor Co., 754 $.W.2d 646, 652
(Tex. 1988); Pool, 715 S.W.2d at 635.
Thus, before setting aside the verdict returned by the jury
for factual insufficiency, the trial court was constitutionally
required to enter findings detailing the evidence both in
support of and against the verdict and explaining why the
verdict was against the great weight and preponderance of
K-23
the evidence.® Pool, 715 S.W.2d at 635. Defendants pro-
vided the trial court with a complete Statement of Facts
from the entire trial and specifically pointed out the need for
findings concerning the evidence. (Ex. 8.) By signing an
order granting Plaintiffs a new trial without any explanation,
the trial court violated its constitutional duty to make find-
ings that reflected the “mental process” by which it reached
its conclusion concerning the insufficiency of the evidence.
Id.
CONCLUSION
The verdict returned by the jury in this case was the result
of a fair trial and was amply supported by the evidence.
Plaintiffs were represented by able trial counsel and had a
full opportunity to present their case to the jury. They lost.
They should not be allowed to retry their case simply
because the trial judge believes that they should have won.
Mandamus should issue to correct the trial court’s clear
abuse of discretion in granting Plaintiffs’ Motion for New
Trial.
. Evidentiary hearings and fact findings by the trial court are
required in other cases where constitutional issues are
involved. For example, the trial court is required to file findings
of fact and conclusions of law in Batson cases when peremptory
challenges are used to exclude jurors on account of race. See
Batson v. Kentucky, 476 U.S. 79 (1986) (criminal case); Keeton
v. State, 724 S.W.2d 58 (Tex. Crim. App. 1987) (Texas criminal
case); Edmonson v. Leesville Concrete Co., 111 §S. Ct. 2077,
U:S. (1991) (applying Batson rule to civil cases);
Powers v. Palacios, 34 Tex. Sup. Ct. J. 651 (June 12, 1991) (per
curiam) (Texas civil case). The new bonding rules also contem-
_ hearings and findings by the court. See Tex. R. App. P.
49(b).
K-24
EXHIBITS
Certified or sworn copies of the following documents have
been bound under separate cover, are being submitted to the
Court along with this Petition, and are incorporated by
reference as if fully set forth herein:
EXHIBIT
DESCRIPTION _No. _
Plaintiffs’ Second Amended Original Petition l
Defendants’ Answer to Plaintiffs’ Second
Amended Original Petition...
| 2
Seaty COME FORE onc ccc cccene 3
EER a a 4
Plaintiffs’ Motion for New Trial. ........ 5
Defendants’ Response to Plaintiffs’ Motion for
New Trial... ENO Le See eae |
Order Granting Motion for News I 6500:
Defendants’ Motion For Reconsideration .
Order Denying Motion for Reconsideration . |
Tables Concerning Reviewability of New Trial
CORRES OR ART Fe BONES gcc cee ) 10
Statement of Facts from Trial (bound in 7
ee eee | 11
Statement of Facts from Hearing
on Motion for Reconsideration
(bound in a separate volume)... Pos 12
Oo on D
K-25
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relators
pray that this Court grant this Petition for Writ of Manda-
mus, issue a writ of mandamus directing Respondent to set
aside his order granting a new trial and to render judgment
upon the verdict. Alternatively, and without waiving the
foregoing, Relators pray that this Court issue a writ of man-
damus directing Respondent to issue a new trial order detail-
ing the evidence and showing how the verdict was against
the great weight and preponderance of the evidence, and
grant Relators such other and further relief to which they are
justly entitled.
Respectfully submitted,
VINSON & ELKINS
By /s/ PENELOPE E. NICHOLSON
Louis E. McCarter Marie R. Yeates
TBA No. 13367000 Penelope E. Nicholson
Phiilip B. Dye, Jr. TBA No. 15011500
TBA No. 06311500 - Catherine Bukowski
VINSON & ELKINS TBA No. 03319970
3300 First City Tower 3300 First City Tower
1001 Fannin Street 1001 Fannin Street
Houston, Texas 77002-6760 Houston, Texas 77002-6760
713/758-2530
Fax: 713/758-2346
Attorneys for Relators, AVALA
OF TEXAS, INC. d/b/a
PLYMOUTH PARK SHOPPING
CENTER, and INTERSHOP REAL
ESTATE SERVICES, INC., f/k/a
HFA MANAGEMENT USA Co.
K-26
AFFIDAVIT OF LOUIS E. McCARTER
IN SUPPORT OF PETITION FOR
WRIT OF MANDAMUS
STATE OF TEXAS §
s
COUNTY OF HARRIS §
Before me, the undersigned authority, on this day per-
sonally appeared Louis E. McCarter, known to me to be the
individual whose name is subscribed to this Affidavit, who
being duly sworn by me, did depose and state as follows:
1. My name is Louis E. McCarter. I am over 21 years of
age, have never been convicted of a crime involving moral
turpitude, and am in all ways competent to make this Affida-
vit. | have personal knowledge of all of the facts contained in
this Affidavit and all of such facts are true and correct.
2. I am an attorney with the law firm of Vinson & Elkins
and am representing Relators Avala of Texas, Inc., d/b/a
The Avala Group and d/b/a Plymouth Park Shopping Cen-
ter and Intershop Real Estate Services, Inc., f/k/a HFA
Management USA Company in this proceeding.
K-27
3. I have read the foregoing Petition for Writ of Manda-
mus and have personal knowledge of all of the facts set forth
in that Petition. All such facts are true and correct.
FURTHER AFFIANT SAYETH NOT.
/s/ Louis E. MCCARTER
Louis E. McCarter
SUBSCRIBED and SWORN TO before me on this the 9th
day of September, 1991, to which I certify my hand and seal
of office.
/s/ TERESA FITZMORRIS
Notary Public In and For
The State of Texas
My Commission Expires:
August 1, 1994
K-28
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego-
ing instrument has been served upon Respondent and coun-
sel of record, listed below, on this the 9th day of September,
1991, by hand-delivery and/or certified mail, return receipt
requested.
Honorable David West
269th Judicial District Court
of Harris County, Texas
301 Fannin Street
Houston, Texas 77002
Mr. Ronald D. Krist
Krist, Gunn, Weller, Neumann
17555 El Camino Real
Houston, Texas 77058
Mr. Jimmy G. Williamson
300 Fannin, Suite 300
Houston, Texas 77002
/s/ PENELOPE E. NICHOLSON
L-|
APPENDIX L
No. 01-91-808-CV
IN THE
COURT OF APPEALS
for the
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
AVALA OF TEXAS, INC. d/b/a THE AVALA GROUP
AND d/b/a PLYMOUTH PARK SHOPPING CENTER AND
INTERSHOP REAL ESTATE SERVICES, INC.
f/k/a HFA MANAGEMENT USA Co.,
Relators
V.
THE HONORABLE DAVID WEST
JUDGE OF THE 269TH DISTRICT COURT
HARRIS COUNTY, TEXAS,
Respondent.
ANSWER TO PETITION FOR
WRIT OF MANDAMUS
TO THE HONORABLE JUSTICES OF SAID COURT:
COME NOW Gregorio Garcia, Individually and as Sur-
viving Husband of Patricia Wilson Garcia and As Next
Friend of Alicia Nicole Garcia, and Robert G. Wilson and
Teresa S. Wilson, Individually and As Surviving Parents of
Patricia Wilson Garcia (“Plaintiffs”), the real parties in
interest, and file this original Answer in response to the
Petition for Writ of Mandamus filed by Avala and Intershop,
Relators. and for answer would show:
L-2
PARTIES
The Petition accurately identifies the Respondent and the
real parties in interest as required by Rule 121 of the Texas
Rules of Appellate Procedure.
FACTS!
Plaintiffs filed suit against Relators (the owner and man-
ager of the Plymouth Park Shopping Center) to recover
damages for the death of Patricia Wilson Garcia who was
murdered as she was attempting to buy stamps at a self-
service postal island located in the parking lot of the center.
After a jury trial resulted in a verdict favorable to Relators
(Ex. 3), Respondent entered judgment on the verdict in
Relators’ favor (Ex. 4). On Plaintiffs’ motion (Ex. 5), the
Court entered an order granting a new trial (Ex. 7). Although
the order specified no reason, Respondent indicated during
the hearing on Relators’ motion for reconsideration that the
new trial was granted in the interest of justice (Ex. 12, at 8).
Relators now seek leave to file a petition for writ of manda-
mus to review Respondent’s order.
RELIEF SOUGHT
Relators ask this Court to overturn 80 years of Supreme
Court precedent to the effect that orders granting new trials
are not reviewable by mandamus. They faii to state the basis
for the relief; similarly, they fail to state the compelling
circumstances which establish the necessity for the writ.
QUESTIONS PRESENTED
1. Should this Court abandon the long-standing rule that a
trial court order granting a new trial is not reviewable by
' As the Petition contains factual material not cailed for by Rule
121(aX2\(C) of the Rules of Appellate Procedure, Plaintiffs
supply the required statement.
L-3
mandamus except in two circumstances not presented on
this record?”
2. Whether the long-standing rule that trial court orders
granting a new trial are not reviewable by writ of mandamus
violates either the Texas or U.S. Constitution?’
BRIEF OF THE ARGUMENT
1. There is no reason to overturn 80 years of Supreme
Court precedent that trial court orders granting new trials
are not reviewable by mandamus.
Relators acknowledge that mandamus has not been availa-
ble to review trial court orders granting new trials since the
decision in Wright v. Swayne, 140 S.W. 221 (Tex. 1911).
They also acknowledge that the rule has been reaffirmed as
recently as 1985 in Johnson v. Fourth Court of Appeals, 700
S.W.2d 916 (Tex. 1985), a security case in which the plaintiff
sought mandamus. This concession alone would justify over-
ruling the motion for leave to file in accordance with the
provisions of Rule 1i21(c) of the Rules of Appellate
Procedure.‘
’ A trial court’s order granting a new trial is subject to review by
mandamus if the trial court’s order is wholly void or is based
on a perceived conflict in jury answers. Johnson v. Fourth Court
uf Appeals, 700 S.W.2d $16. 918 (Tex. 1985); see O’Connor,
Texas Rules § 7.2, at 607 (1991).
> The related question of the constitutionality of the decision of
the Supreme Court of Texas that an order granting a new trial
is not reviewable on appeal from the judgment entered after the
second trial, Cummins v. Paisan Const. Co., 682 S.W.2d 235,
236 (Tex. 1984), cannot conceivably be before this Court by
way of mandamus.
* This is not to suggest that this Court lacks jurisdiction to grant
the writ. Compare Tex. Gov’t Code Ann. d 22.221(b) (Vernon
1988) with Tex. Gov’t Code Ann. § 22.002(a) (Vernon 1988).
L-4
Instead, Relators argue that the Court should overturn
long-established Supreme Court precedent? because the rule,
in its view, “*. . . should be discarded as a (sic) historical
anomaly (Pet. 16-18),”’ particularly in light of recent trends
which have expanded the availability of mandamus to
review discovery orders (Pet. 14-16). These arguments will
not withstand analysis.
The duty of a trial judge to grant a new trial in the interest
of justice is deeply rooted in our jurisprudence, as our
Supreme Court observed nearly a hundred years ago in
Choate v. San Antonio & A.P.Ry. Co., 37 S.W. 319 (Tex.
1896):
Although there may be sufficient evidence in a case to
require the court to submit it to the jury, yet if the
verdict rendered thereon is against the preponderance
of the evidence, to that degree which shows that mani-
fest injustice has been done, the tnal court may and
should grant a new tnal. The judge should not invade
the province of the jury and take from it the decision of
a question which properly belongs to it. Neither should
he abdicate the functions of his office, and permit the
prerogatives of the jury to be perverted to the accom-
plishment of wrong.
As the Supreme Court observed recently in Cropper v.
Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex. 1988), in
dealing with the closely related power of appellate courts to
review fact questions, “[t]he right of trial by jury and appel-
late court review of fact questions have peacefully co-existed
for almost 150 years, and are thoroughly rooted in our
constitution and judicial system.”
Relators will respond that they do not really quarrel with
the proposition that trial courts should have the power to
> Relators fail to explain where this Court is to find the authority
to overrule the Supreme Court’s clear and unambiguous
decisions.
L-5
grant new trials; however, they contend that a trial court
order granting a new trial should be reviewable. There are
two simple answers to this contention. First, an appellate
court’s action in ordering a new trial on similar grounds is
not reviewable. Tex. Const. art. V, § 6; Pool v. Ford Motor
Co., 715 $.W.2d 629, 634 (Tex. 1986). See Calvert, ‘“No
Evidence” and ‘‘Insufficient Evidence” Points of Error, 38
Tex. L. Rev. 361, 368 (1960). Second, considerations of
judicial economy mitigate against review of orders granting
new trials. It is one thing to ask an appellate court to review
a trial record during the course of disposing of an appeal
from a final judgment. It is quite another to ask an already
overburdened appellate court to look at a lengthy tnal record
for the sole purpose of determining whether an interlocutory
order of 2 trial court granting a new trial was proper and
then ask it to review essentially the same record again on
appeal of the verdict following a retrial.
In a sense, Relators’ argument based on the expanded use
of mandamus in discovery contexts proves too much. The
facts are rarely in dispute in discovery contexts. Moreover,
appellate courts, already overburdened with mandamus pro-
ceedings arising out of discovery orders, arguably do not
have time to review orders granting new trials.
2. Neither the Texas nor the U.S. Constitution requires
that Relators be entitled to review an order granting a new
trial by writ of mandamus.
a. Right to trial by jury.°
It is well established that the action of a court of appeals
setting aside a jury finding as against the great weight and
preponderance of the evidence is not violative of Tex. Const.
° As the Seventh Amendment right to jury trial has not been
made applicable to the states, Minneapolis & St. Louis R.R. Co.
v. Bombolis, 241 U.S. 211 (1916), this discussion is confined to
decisions under the Texas Constitution.
L-6
art. I, § 15. Pool v. Ford Motor Co., 715 S.W.2d 629, 634
(Tex. 1986). If the action of an appellate court setting aside a
jury finding on the basis of a written record does not violate
the right to trial by jury, then action of a trial judge who has
had the benefit of observing the conduct and demeanor of
the witnesses and parties and who is in a much better posi-
tion to evaluate the extent to which an injustice may have
been done, cf. Larson v. Cactus Utility Co., 730 S.W.2d 640,
642 (Tex. 1987) (Hill, C.J., dissenting), presents no constitu-
tional question. Since the decision of a court of appeals is
not reviewable, Tex. Const. art. V., § 6, it is less than clear
why the action of the trial judge need be reviewable, much
less, by way of mandamus.
~ b. Relators have not been denied due process or equal
protection.
Relators cite no case, and Plaintiffs are aware of none,
holding that the due process clauses of the Texas or U.S.
Constitution require that interlocutory orders in general or
orders granting new trials in particular be reviewable by way
of mandamus. Although the related questions of non-
reviewability under Tex. Civ. Prac. & Rem. Code §51.012
(Vernon 1987) or on appeal of a final judgment after the
second trial, Cummins, supra, are not before the Court, it is
also worth noting that Relators cite no authority indicating
that due process requires that such an interlocutory order be
appealable at some State.
The failure of Relators to brief the federal decisions is, of
course, understandable. A similar order of a federal trial
court granting a new trial is not reviewable by either manda-
mus or appeal. Allied Chemical Corp. v. Daiflon, Inc., 449
U.S. 33 (1980) (mandamus not available); Eaton v. National
L-7
Steel Products Co., 624 F.2d 863 (9th Cir. 1980) (order not
appealable).’
Simply put, the Texas scheme jealously protects the inher-
ent power of a trial judge to grant a new trial in the interest
of justice. Instead of making the order reviewable, it protects
the litigants by limiting the number of new trials that can be
granted in the same cause because of insufficiency or weight
of the evidence. Tex.R.Civ.P. 326. Accordingly, the state’s
interest in fashioning its own rules of procedure is para-
mount to any discernable federal interest, except perhaps an
interest in protecting the individual from state action that is
wholly arbitrary or irrational, cf. Martinez v. California, 444
U.S. 277, 282 (1980).
This brings to the equal protection analysis. There is no
equal protection problem because litigants who might wish
to complain of an order granting a new trial are treated alike;
all are denied review. See Logan v. Zimmerman Brush Co.,
455 U.S. 422, 438-39 (1982) (Blackmun, J., concurring).
c. Jeopardy is not an issue in a civil case.
Relators’ jeopardy claim is a ciassic case of a “federal
question” so absolutely devoid of merit as to be frivolous.
Equitable Life Assurance Society v. Brown, 187 U.S. 308
Although the Daiflon result is bottomed in part on the availa-
bility of review on appeal from the judgment following the
second trial, the case by no means stands for the proposition
that even federal litigants are constitutionally entitled to review
(at some stage) of every interlocutory order. Even if that were
the law, it would not make mandamus available. See State v.
Walker, 679 S.W.2d 484, 485 (Tex. 1984) (mandamus will lie
only to correct abuse of discretion or violation of clear duty and
wher. there is no other adequate remedy at law).
L-8
(1902). Jeopardy provides three related protections in crimi-
nal cases:
It protects against a second prosecution for the same
events after acquittal. It protects against a second prose-
cution for the same events after conviction. And it
protects against multiple punishments for the same
event. North Carolina v. Pierce, 395 U.S. 711, 717
(1969).
Even in criminal cases a defendant may be retried after
reversal because of errors at the trial. United States v. Tateo,
377 U.S. 463, 473 (1964) (Goldberg, J., dissenting).
Relators’ claim of jeopardy in a civil case requires no further
discussion.
d. Denial of mandamus is not equivalent to denial of the
right to an appeal.
It is undisputed that Relators will be entitled to appeal any
judgment which might be entered against them following the
second trial. Although they will not be entitled to review the
order granting a new trial under the reasoning of Cummins,
supra, any complaint properly preserved in the second trial
clearly will be before the appellate court for review.’
CONCLUSION
Respondent, an experienced trial judge, granted a new
trial in the interest of justice (Ex. 12, at 8, 17). As the order
is not reviewable by mandamus, the motion for leave to file
should be denied.’
* at that time they will be free to assert their position that
Plaintiffs waived their right to recovery against Avala (Pet. 21).
Given the fact that the undisputed evidence in the case estab-
lishes that Intershop was acting as the t of Avala (S.F. 836),
that effort is likely to be unsuccessful. Nevertheless, that is for
another court on another day.
* The argument that the Court acted on an improper motion and
failed to detail the evidence in the way in which appellate
L-9
EXHIBITS
Although Plaintiffs have no additional exhibits, they
observe that this proceeding may be disposed of without
reference to Exhibits 10 and 11.
Respectfully submitted,
JIMMY WILLIAMSON, P.C. KRIST, GUNN, WELLER
300 Fannin, Suite 300 NEUMANN & MORRISON
Houston, Texas 77002
713/223-3330
Attorney Ad Litem for By: /s/_ Perry O. BARBER, JR.
Alicia Nicole Garcia Ronald D. Krist
State Bar Number 11727000
Kevin D. Krist
State Bar Number 11726900
Perry O. Barber Jr.
State Bar Number 01715000
David A. Slaughter
State Bar Number 18488000
17555 El Camino Real
Houston, Texas 77058-3097
713/283-8500
Attorneys for Plaintiffs
courts are required to do (Pet. 22-23) is patently frivolous. The
trial judge can grant a new trial on his own motion,
Tex.R.Civ.P. 320, and even Larson, supra, stops short of
requiring the trial judge to detail the evidence in the process of
ordering a new trial conditioned on remittitur. Moreover, there
is a good reason for the requirement that appellate courts detail
the evidence. They, unlike the trial court, were not there when
the case was tried.
L-10
AFFIDAVIT OF KEVIN D. KRIST
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority on this day per-
sonally appeared KEVIN D. KRIST, known to me to be the
individual whose name is subscribed to this affidavit, who
being duly sworn by me did depose and state as follows:
1. My name is KEVIN D. KRIST. I am over 21! years of
age, have never been convicted of a crime involving moral
turpitude, and am in all ways competent to make this
affidavit.
2. | am an attorney with the law firm of Krist, Gunn,
Weller, Neumann and Morrison and am representing Plain-
ffs in this proceeding.
3. I have read the foregoing Answer to Petition for Writ of
Mandamus and have personal knowledge of all the facts set
forth in that Petition. All such facts are true and correct.
/s/_ Kevin D. Krist _
Kevin D. Krist, Affiant
SUBSCRIBED AND SWORN TO BEFORE me on the
16th day of September, 1991, to certify which witness my
hand and official seal of office.
/s/ Terri W. JONES
Notary Public - State of Texas
L-11
CERTIFICATE OF SERVICE
I, Perry O. Barber Jr., hereby certify that on the 16th day
of September, 1991, a true and correct copy of the foregoing
instrument was furnished to each attorney of record in this
cause by messenger.
/s/_ Perry O. BARBER, JR.
Perry O. Barber Jr.
M-1
APPENDIX M
IN THE COURT OF APPEALS
for the
FIRST DISTRICT OF TEXAS
No. 01-91-00808-CV
AVALA OF TEXAS, INC., d/b/a THE AVALA
GROUP AND d/b/a PLYMOUTH PARK SHOPPING CENTER
AND INTERSHOP REAL ESTATE SERVICES, INC.,
f/k/a HFA MANAGEMENT USA Co.,
Relators
V.
THE HONORABLE DAVID WEST, JUDGE OF
THE 269TH DISTRICT COURT OF HARRIS
COUNTY, TEXAS,
Respondent
MOTION FOR LEAVE TO FILE PETITION FOR
WRIT OF MANDAMUS
TO THE HONORABLE JUSTICES OF THE COURT
OF APPEALS:
COME NOW Relators, Avala of Texas, Inc. d/b/a The
Avala Group and d/b/a Plymouth Park Shopping Center
(hereafter ““Avala’’) and Intershop Real Estate Services, Inc.,
f/k/a HFA Management USA Co. (hereafter “Intershop’”’),
complaining of the Respondent, the Honorable David West,
Judge of the 269th Judicial District Court of Harris County,
Texas, and move this Court to grant leave to file their
M-2
Petition for Writ of Mandamus. In support of this Motion,
Relators would respectfully show the following:
I.
The Petition for Writ of Mandamus and the Exhibits to
the Petition for Wrt of Mandamus are attached and
incorporated by reference as if fully set forth herein.
Il.
Relators have tendered the cash deposit for costs as
required by the Texas Rules of Appellate Procedure.
Il.
Respondent clearly abused his discretion in granting a new
trial to the Plaintiffs and Real Parties in Interest, Gregorio
Garcia (Individually and as Surviving Husband of Patricia
Wilson Garcia and as Next Friend of Alicia Garcia) and
Robert G. Wilson and Theresa S. Wilson (Individually and
as Surviving Parents of Patricia Wilson Garcia). The grant-
ing of Plaintiffs’ Motion for New Trial constituted a clear
abuse of discretion for the following reasons:
1. Plaintiffs waived any claims against Avala by failing to
request any jury questions concerning Avala’s liability.
Thus, Plaintiffs are not entitled to re-try their claims against
Avala, and the judgment should be final as to Avala.
2. The sole basis for Plaintiffs’ Motion for New Trial was
Plaintiffs’ contention that the jury’s verdict was against the
great weight and preponderance of the evidence. Plaintiffs’
motion did not, however, distinctly specify the particulars in
which the evidence was allegedly insufficient to support the
verdict. Therefore, the trial court acted on an improper
motion.
M-3
3. Respondent failed to detail the evidence both in sup-
port of and contrary to the jury’s finding before granting a
new trial based on insufficiency of the evidence as required
by the Texas Constitution and the decisions of the Texas
Supreme Court.
4. The evidence was clearly sufficient to support the jury’s
verdict. The verdict was plainly not against the great weight
and overwhelming preponderance of the evidence. In grant-
ing Plaintiffs’ Motion for New Trial, Respondent substituted
his view of the evidence for that of the jury and violated
Defendants’ state and federal constitutional rights to a trial
by jury, to access to the courts, to due process of law, to
equal protection, and to appellate review.
WHEREFORE, PREMISES CONSIDERED, Relators
respectfully request that this Court grant leave to file the
attached Petition for Writ of Mandamus, that the same be
set for hearing with notice to all interested parties, and that
this Court issue a writ of mandamus directing Respondent
to set aside his order granting a new tmal and to render
judgment on the verdict. Without waiving the foregoing,
Relators alternatively pray that this Court order Respondent
to set forth in his order granting a new trial, in detail, the
evidence both in support of and contraty to the jury’s finding
that supports Respondent’s conclusion that the jury’s verdict
iS against the great weight and preponderance of the evi-
dence. Finally, Relators request that they be granted such
M-4
other and further relief to which they may show themselves
justly entitled.
Respectfully submitted,
VINSON & ELKINS
By /s/ PENELOPE E. NICHOLSON
Louis E. McCarter
TBA No. 13367000
Phillip B. Dye, Jr.
TBA No. 06311500
3300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
Marie R. Yeates
TBA No. 22150700
Penelope E. Nicholson
TBA No. 15011500
Catherine Bukowski
TBA No. 03319970
3300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
713/758-2530
Fax: 713/758-2346
Attorneys For Relators,
AVALA OF TEXAS, INC.
d/b/a PLYMOUTH PARK
SHOPPING CENTER, and
INTERSHOP REAL ESTATE
SERVICES, INC., f/k/a HFA
MANAGEMENT USA Co.
M-5
VERIFICATION
STATE OF TEXAS §
: 5
COUNTY OF HARRIS §
Before me, the undersigned authority, on this day per-
sonally appeared Louis E. McCarter, who being duly sworn
by me on his oath that he has read the above and foregoing
and that the statements ‘contained therein are true and
correct.
/s/ Louis E. MCCARTER
Louis E. McCarter
SUBSCRIBED and SWORN TO before me on this the 9th
day of September, 1991, to which I certify my hand and seal
of office.
/s/ TERESA FITZMORRIS
Notary Public In and For
The State of Texas
My Commission Expires:
8-1-94
M-6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego-
ing instrument has been served upon Respondent and coun-
sel of record, listed below, on this the 9th day of September,
1991, by hand-delivery and/or certified mail, return receipt
requested.
Honorable David West
269th Judicial District Court
of Harris County, Texas
301 Fannin Street
Houston, Texas 77002
Mr. Ronald D. Krist
Krist, Gunn, Weller,
Neumann
17555 El Camino Real
Houston, Texas 77058
Mr. Jimmy G. Williamson
300 Fannin, Suite 300
Houston, Texas 77002
/s/ PENELOPE E. NICHOLSON
N-1
APPENDIX N
THE SUPREME COURT OF TEXAS
No. D-1540
AVALA OF TEXAS, INC. d/b/a THE AVALA GROUP
AND d/b/a PLYMOUTH PARK SHOPPING CENTER
AND
INTERSHOP REAL ESTATE SERVICES, INC.,
f/k/a HFA MANAGEMENT USA CoO.,
Relators
V.
THE HONORABLE DAVID WEST
JUDGE OF THE 269TH DISTRICT COURT
HARRIS COUNTY, TEXAS
AND
THE HONORABLE FIRST COURT OF APPEALS,
Respondents
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE SUPREME COURT
OF TEXAS:
COME NOW Relator Avala of Texas, Inc. d/b/a The
Avala Group and d/b/a Plymouth Park Shopping Center
and Relator Intershop Real Estate Services, Inc., f/k/a HFA
Management USA Co. complaining of the Honorable David
West, Judge of the 269th District Court of Harris County,
Texas, and also complaining of the Honorable First Court of
Appeals, and file this their Petition for Writ of Mandamus in
which Relators ask this Court to issue a Writ of Mandamus
directing Judge West to set aside his order granting a new
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trial, and alternatively ask this Court to issue a Writ of
Mandamus directing the First Court of Appeals! to consider
and rule on the complaints made by Relators in their Peti-
tion in connection with Judge West’s order granting a new
trial.
JURISDICTION
The Texas Supreme Court has jurisdiction to grant
Relators’ Petition for Writ of Mandamus pursuant to TEX.
GOv’T CODE ANN. §22.002(a) (Vernon 1988). Relators
presented their Petition to the First Court of Appeals on
September 9, 1991. (Ex. 13-15.) That court overruled
Relators’ Motion for Leave to File Petition for Writ of
Mandamus on September 16, 1991. (Ex. 16.) Thus, Relators
have satisfied the requirements of TEX. R. App. P. 121(a)(1).
PARTIES
Relators are Avala of Texas, Inc., d/b/a The Avala Group
and d/b/a Plymouth Park Shopping Center (“‘Avala’’) and
Intershop Real Estate Services, Inc., f/k/a HFA Manage-
ment USA Company (“Intershop’’), the Defendants in the
underlying lawsuit out of which this mandamus proceeding
' The primary relief requested by Relators in this Petition is for
this Court to issue a writ of mandamus directing the trial court
to set aside its order granting a new trial and to enter judgment
in accordance with the verdict returned by the jury. See infra at
pp. 27-28. Relators have, however, named the First Court of
Appeals as a Respondent in the event that this Court decides
that the Court of Appeals is the appropriate tribunal to deter-
mine whether Judge West clearly abused his discretion in grant-
ing a new trial on the ground that the verdict returned by the
jury was against the great weight and preponderance of the
evidence. If this Court decides that the Court of Appeals is the
proper tribunal to make that determination, then Relators are
asking the Court to direct the First Court of Appeals to review
the complaints concerning the new trial order raised by
Relators in their Petition. See infra at pp. 27-28.
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arose. The underlying lawsuit is styled Gregorio Garcia, Indi-
vidually and as Surviving Husband of Patricia Wilson Garcia
and as Next Friend of Alicia Nicole Garcia, and Robert G.
Wilson and Theresa S. Wilson, Individually and as Surviving
Parents of Patricia Wilson Garcia v. Avaia of Texas, Inc.,
d/b/a the Avala Group and d/b/a Plymouth Park Shopping
Center, Intershop HFA Management USA Co., and Intershop
Real Estate Services, Inc., f/k/a Intershop HFA Management
USA Co., No. 90-13234, in the 269th Judicial District Court
of Harris County, Texas. Relators are represented by Louis
E. McCarter, Marie R. Yeates, Penelope E. Nicholson, and
Phillip B. Dye, Jr. of the law firm of Vinson & Elkins, 1001
Fannin Street, 3300 First City Tower, Houston, Texas
77002.
Respondents are the Honorable David West, Judge of the
269th Judicial District Court of Harris County, Texas, and
the Honorable First Court of Appeals. The address for Judge
West is Harris County Courthouse, 301 Fannin Street, —
Houston, Texas 77002. The address for the First Court of
Appeals is 1307 San Jacinto Street, Houston, Texas 77002.
The Justices on the Panel of the First Court of Appeals that
denied Petitioners’ Motion for Leave to File Petition for
Writ of Mandamus were the Honorable F. Lee Duggan, Jr.,
the Honorable Margaret Garner Mirabal, and the Honorable
Davie L. Wilson. The Clerk for the First Court of Appeals is
the Honorable Kathryn Cox. :
The Real Parties in Interest are Gregorio Garcia (Individ-
ually and as Surviving Husband of Patricia Wilson Garcia
and as Next Friend of Alicia Nicole Garcia) and Robert G.
Wilson and Theresa S. Wilson (Individually and as Surviv-
ing Parents of Patricia Wilson Garcia), the Plaintiffs in the
underlying lawsuit out of which this mandamus proceeding
arose. Plaintiffs are represented by Ronald D. Krist and
Kevin D. Krist of the law firm of Krist, Gunn, Weller,
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Neumann & Morrison, 17555 El Camino Real, Houston,
Texas 77058. The attorney ad litem for minor Plaintiff
Alicia Nicole Garcia is Jimmy G. Williamson of Jimmy G.
Williamson, P.C., 300 Fannin, Suite 300, Houston, Texas
77002.
INTRODUCTION
Through this Petition for Writ of Mandamus, Relators
seek to challenge the unjust and unconstitutional rule that
shields a trial judge’s order granting a new trial from any
review whatsoever unless the order is wholly void or
expressly based on a perceived conflict in jury answers. The
rule makes a mockery of the jury system by effectively
allowing trial courts to toss out errorless jury verdicts for no
reason at all. A party who has spent tens of thousands of
dollars on one trial and has fairly won a jury verdict should
not have to face a retrial based on a whim of the trial judge.
The present case illustrates the injustice caused by the rule
exempting new trial orders from appellate review. After a
hard fought, sharply contested trial that lasted seven days,
the jury returned a verdict in Defendants’ favor. Although
there was ample evidence in the record to support the jury’s
verdict, Plaintiffs moved for a new trial on the sole ground
that the verdict was against the great weight and overwhelm-
ing preponderance of the evidence. To Defendants’ amaze-
ment, the trial court granted Plaintiffs’ motion. The judge
apparently believed that the jury reached the wrong result
and substituted his view of the evidence for that of the jury.
As the Statement of Facts from the trial filed along with this
Petition demonstrates, the jury’s verdict was not against the
great weight and preponderance of the evidence.” The clear
> Relators have filed the Statement of Facts from the trial as
Exhibit 11 to this Petition. The Statement of Facts includes a
transcription of the entire trial, but does not include copies of
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abuse of discretion committed by the trial judge in granting
Plaintiffs’ Motion for New Trial should not be a wrong
without a remedy. Defendants should not be subjected to a
second trial merely because the trial judge disagreed with the
verdict returned by the jury in the first trial. This Court has
the power to issue a writ of mandamus directing the trial
court to set aside its order granting a new trial and should do
so. The facts of this case demand relief.
Patricia Wilson Garcia was brutally murdered as she was
apparently attempting to buy stamps at a self-service postal
island located in the parking lot of a shopping center. The
police never caught her attacker. Her husband, daughter,
and parents sued Avala (the owner of the shopping center)
and Intershop (the manager of the shopping center) for
negligence claiming that inadequate security was responsible
for Mrs. Garcia’s death. (Ex. 1.) During the seven-day trial,
Plaintiffs presented evidence criticizing security at the shop-
ping center where the murder occurred, while Defendants
challenged Plaintiffs’ evidence and introduced their own
evidence that the murder was unforeseeable, that
Defendants acted reasonably under the circumstances, and
that no reasonable extra security measures would have
prevented the attack. (Ex. 11.) After the parties rested, Plain-
tiffs elected not to submit any questions to the jury concern-
ing the liability of Avala (the shopping center owner), but
rather to proceed solely against Intershop (the shopping
center manager). The jury returned a verdict absolving Inter-
shop of all liability by answering “No” to Jury Question
No. |, which asked,
the exhibits introduced at trial because many of those exhibits
are phot phs and other items that cannot readily be copied.
Along with this Petition, Relators are filing a motion seeking
permission to have the original exhibits transferred to this
Court from the trial court so that this Court will have a com-
plete record of the evidence introduced at trial.
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Did the negligence, if any, of Intershop Real Estate
Services, Inc. proximately cause the occurrence in
question?
(Ex. 3.)
Judge West told the jurors that they had reached the right
decision and entered judgment on the basis of their verdict.
(Ex. 8-A, 8-D, 8-E, 8-F, 8-1, 8-J’ and Ex. 4.) Six weeks after
the jury returned its verdict, however, he granted Plaintiffs’
Motion for New Trial. (Ex. 7.) The sole basis for that motion
was Plaintiffs’ contention that the jury’s answer to Question
No. | was against the great weight and overwhelming pre-
ponderance of the evidence. (Ex. 5.) Inexplicably, Judge
West also granted a new trial as to Avala, even though
Plaintiffs had waived their right to proceed against Avala by
failing to request any jury issues concerning Avala’s liability.
Defendants filed a Motion for Reconsideration, but that
motion was denied. (Ex. 8, Ex. 9, and Ex. 12.)
Judge West's decision to grant Plaintiffs’ Motion for New
Trial was wrong and constituted a clear abuse of discretion.
The evidence was hotly contested, with each side presenting
evidence in support of its own position as well as challenging
the evidence presented by the other side. The jury clearly
was entitled to believe Defendants’ evidence rather than
Plaintiffs’ evidence. The finding that Plaintiffs did not carry
their burden of proof is amply supported by the record.
> Exhibit 8 is Defendants’ Motion for Reconsideration. The
motion has a number of exhibits attached to it, including
affidavits from the ten jurors who comprised the majority. In
their affidavits, six of the jurors made statements to the effect
that Judge West told them that they had made the right deci-
sion. Whenever a juror affidavit or other attachment to the
Motion for Reconsideration is referred to in this Petition, it
will be referred to as Ex. 8-A, 8-B, 8-C, etc. See footnote 4,
infra, regarding the admissibility of the affidavits.
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In reaching its verdict, the jury considered all of the evi-
dence and took to heart Judge West’s admonition not to be
swayed by passion or sympathy. (Ex. 8-A - 8-J.) This is a
tragic case, and it took courage for the jury to return a
verdict based on its objective view of the facts rather than on
sympathy for the family of the 22-year old victim who was
stabbed to death during her seventh month of pregnancy.
Judge West had no right to substitute his judgment for that
of the jury, which is clearly what he did.
Although Texas law prohibits a trial court from substitut-
ing its view of the evidence for that of the jury, a party
aggrieved by a violation of that rule in the granting of a new
trial currently has no remedy. An order granting a new trial
is not appealable, and the case law suggests that mandamus
is not available to set aside new trial orders unless they are
wholly void or expressly based on a perceived conflict in jury
answers. There is no reason why new trial orders should be
exempt from review when every other trial court order is
subject to review, either by mandamus or direct appeal. The
self-imposed restrictions applied by Texas appellate courts
to limit their review of new trial orders are unconstitutional
in that they deprive litigants of their right to a jury trial,
their right to meaningful access to the courts, their right to
due process of law, their right to equal protection, and their
right to appellate review. Through this proceeding, Relators
ask this Court to cast aside those unconstitutional artificial
restrictions and to issue a writ of mandamus directing Judge
West to set aside his clearly erroneous order granting a new
trial.
Judge West's order constituted a clear abuse of discretion
and should be set aside for the following reasons:
(1) Plaintiffs waived any cause of action against Avala by
failing to request any jury questions concerning
Avala’s liability:
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(2) Plaintiffs’ Motion for New Trial was defective in that
it failed to specify the particulars in which the evi-
dence allegedly was insufficient to support the jury
verdict;
(3) Judge West failed to detail the evidence both in sup-
port of and contrary to the jury’s finding before grant-
ing a new trial based on insufficiency of the evidence;
and
(4) The evidence was clearly sufficient to support the
jury’s verdict and therefore the order granting a new
trial violated Defendants’ federal and state constitu-
tional rights to a trial by jury, to access to the courts,
to due process of law, to equal protection, and to
appellate review.
FACTUAL BACKGROUND
A brief review of the evidence presented at trial shows that
there was ample evidence to support the jury’s verdict.
The general facts surrounding Mrs. Garcia’s murder were
undisputed. Mrs. Garcia was stabbed six or seven times in
the back of the head and neck between 8:45 and 9:00 p.m. on
April 29, 1988. (Ex. 11 at Vol. V, pp. 1146, 1143.) The
postal island where Mrs. Garcia was killed was well lighted.
(Ex. 11 at Vol. V, pp. 1142, 1140.) Some of the stores in the
shopping center had closed, but many remained open.
(Ex. 11 at Vol. V, p. 1140; Vol. III, p. 609.) Although no one
witnessed the murder, there were still people in the parking
lot at the time it occurred. (Ex. 11 at Vol. V, p. 1141; Vol.
III, p. 609.)
Defendants called Dr. Charles S. Petty, who was the Chief
Medical Examiner and Director of the Criminal Laboratory
for Dallas County at the time of the attack, as an expert
witness. (Ex. 11 at Vol. III, p. 672.) Dr. Petty’s testimony
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indicated that Mrs. Garcia was killed quickly. He testified
that “one or the other of the fatal wounds was inflicted early
on in this affray” and that there were no defensive wounds
or other signs of a struggle. (Ex. 11 at Vol. III, pp. 694, 707.)
In Dr. Petty’s opinion, Mrs. Garcia’s murderer “was under
some sexual tension” because the nature of the wounds
“represent a great deal of sexual energy.” (Ex. 11 at Vol. III,
p. 692.)
Defendants also called Mr. William Degan as an expert
witness on security. Mr. Degan testified that Defendants
“acted in a very prudent manner” in implementing their
security program. (Ex. 11 at Vol. V, pp. 1130-31.) He also
testified that he had reviewed the statistics concerning crime
in the shopping center and that those statistics provided no
basis for anticipating the kind of violent crime that took
Mrs. Garcia’s life. (Ex. 11 at Vol. V, p. i136.) In his words,
“such an irrational and brutal crime [was] not foreseeable.”
(Ex. 11 at Vol. V, p. 1136.) Mr. Degan further testified that
the murder was “so vicious and executed so quickly, so
irrationally” that he did not think that the presence of roving
security personnel in the shopping center would have
prevented the crime. (Ex. 11 at Vol. V, pp. 1145-46. See also
1214.)
Predictably enough, Plaintiffs’ security expert, Mr. Robert
Waldhuber, disagreed with Mr. Degan’s_ opinion.
Mr. Waldhuber testified to the effect that Defendants’ secu-
rity was inadequate and that such inadequacy was a proxi-
mate cause of Mrs. Garcia’s vicious murder. In his opinion,
Defendants should have employed two unarmed security
guards — one to patrol the 77-acre parking lot and one to
guard the postal island. (Ex. 11 at Vol. III, pp. 626-627.) Yet
even Mr. Waldhuber admitted that unarmed security guards
might not have been able to prevent the brutal attack on
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Mrs. Garcia. (Ex. 11 at Vol. III, pp. 637-38.) He also admit-
ted that good lighting is a recognized form of security, but
that adequate lighting did not prevent Mrs. Garcia’s murder.
(Ex. 11 at Vol. III, pp. 599, 610-11, 621.) In addition, he
agreed that the presence of people generally serves as a
deterrent to crime, but did not do so in this case. (Ex. 11 at
Vol. III, pp. 604, 612, 621.) Finally, he recognized that th
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