Decision for new trial before Texas Supreme Court

By Steve Korris | Jul 28, 2011


AUSTIN, Texas (Legal Newsline) - The Texas Supreme Court must decide whether Jefferson County District Judge Donald Floyd fully explained why he overturned a verdict from jurors who rejected an injury claim after watching victim James Levine wash a red Corvette.

The justices set the case, In re United Scaffolding Inc., for oral argument on Oct. 6.

The outcome will determine the result of a similar challenge to an order Floyd entered in Whisnant v. du Pont, pending at the Ninth District appellate court in Beaumont.

In the red Corvette case, jurors awarded Levine $178,000 against United Scaffolding for future medical expenses, but nothing for past medical expenses, pain, anguish, impairment or loss of consortium.

Levine moved for judgment notwithstanding the verdict, and Floyd granted it "in the interest of justice and fairness."

United Scaffolding appealed, and in April 2009 the Ninth District appellate judges in Beaumont denied United Scaffolding's writ of mandamus, which argued Floyd abused his discretion by granting a motion for new trial. The justices affirmed Floyd's ruling.

Chief Justice Steve McKeithen wrote, "A new trial may be granted for good cause shown in a party's motion and may be granted when the damages are manifestly too small."

He wrote that Levine clearly complained that zero damages were manifestly too small and that Floyd's reasons for granting a new trial were evident from the face of the motion.

Dissenting Justice David Gaultney wrote, "The jury found no past medical expenses, no past physical pain, no past mental anguish, no past physical impairment, no past loss of earning capacity, no future mental anguish, no pain in the future, and no physical impairment in the future."

United Scaffolding appealed to the Supreme Court, where all nine Justices directed Floyd to give specific reasons for granting a new trial.

Floyd answered by writing that United Scaffolding's negligence supported an award of past damages, and he wrote that the jury's decision went against the great weight and preponderance of evidence.

United Scaffolding appealed again, and in June 2010 the Ninth District split as they had split the first time, with the majority approving the new trial request.

McKeithen wrote, "The trial court certainly could have articulated its reasons for granting a new trial more clearly, but this order is not so vague that the trial court's reasons for its rulings are known only to the trial court.

"In this case, the trial court's order was reasonably specific without having referred to the particular evidence that influenced the trial court's ruling."

He wrote that he and Kreger were concerned with the process Floyd employed and not the result.

Floyd considered the disparity between the evidence and the verdict, McKeithen wrote, and determined that the interest of justice required a new trial.

McKeithen also quoted Levine's counsel at a hearing after trial, telling Floyd that jurors gave nothing because they saw video of Levine washing a Corvette.

He quoted counsel saying, "You see it in their response, the red Corvette, the red Corvette."

While McKeithen and Kreger took that as good cause for Floyd to reject the verdict, Gaultney took it as good cause for jurors to reject damages.

Gaultney wrote, "If the jury watched a two hour video of the witness doing what he swore he could not do, should the witness be believed?

"When the trial judge decides credibility issues differently from the jury and sets aside the jury's verdict on that basis alone, the judge acts in an area normally reserved for the jury.

"A new trial is properly granted to prevent injustice; however, if the verdict is just, setting aside the verdict may be the injustice.

"The ruling does no more than state boilerplate conclusions without reasoning. If the jury's credibility determinations are unreasonable, why?"

After the appellate court's decision in favor of a new trial, United Scaffolding took the case to the Texas Supreme Court. When the case goes before the Court on Oct. 6, each side will be given 20 minutes to argue.

In the pending Whisnant case, which also deals with Floyd granting a new trial, the defense has asked for a continuance until a decision has been made in United Scaffolding case.

Kathleen Kennedy of Mehaffy Weber in Beaumont represents United Scaffolding.

Timothy Ferguson, Dominic Braus, Christopher Portner and Trenton Bond represent Levine.

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