# Appendix — Avala of Texas, Inc. v. West > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2065%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1059 ## Text 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 ; f ~~ * a 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 i .] ; 7 ' . e ‘ . ‘ ‘ ’ ‘ P f 7 : - ae oa »y a = a - " > ™_ ~~~ 7 _ ——— = 2-2 - . of i) i a _ =_ -_ > wa cee —a 2 H-| 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 5) 7 p ad a. fra: ot ft Nol Se : im toll i ood oe ee N : ae meats f Ae ¥ oe 5 Pie 7 at ia 4 Po a a ee a Serle eee y ae I-| 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 K-12 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 K-13 (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2065%3A2. Public record. Not legal advice.