It used to be that orders granting new trials were effectively not reviewable. But the Texas Supreme Court has started to rein in the discretion of the trial court to grant a new trial. First, the court required a trial court to give "reasonably specific" reasons for granting a new trial; formulaic recitations of "in the interest of justice" were no longer enough. In re Columbia Medical Center of Los Colinas, 290 S.W.3d 204 (Tex. 2009). Then, the court allowed an appellate court to review the stated reasons for granting a new trial to see if they were supported by the underlying record. In re Toyota Motor Sales, 407 S.W. 3d 746 (Tex. 2013). The underlying policy driving these decisions is to preserve the right of trial by jury by ensuring that trial courts do not impermissibly substitute their judgment for that of the jury.
So what is the proper standard of review when a new trial has been granted for reasons related to factual sufficiency? For mandamus relief, the required standard is abuse of discretion. But Toyota Motor Sales allowed the appellate court to review the entire record for factual sufficiency. So does a reviewing court give deference to the trial court's decisions on the sufficiency of the evidence or make its own determination?
The Texas Supreme Court will soon resolve this question. On November 4, 2015, the court heard oral argument in In re Brent (No. 14-1006). There, an insured sued its insurer for not paying claims timely. The jury found for the insured. The trial court then granted a new trial because the amount of damages awarded by the jury was arbitrary.
The insurer in In re Brent argues that a merits-based review of the factual sufficiency of the evidence by an appellate court can coexist with the abuse of discretion standard because it would be an abuse of discretion for a trial judge to incorrectly weigh evidence to determine that a jury finding was not factually sufficient. The insured, on the other hand, argues that allowing an appellate court to decide, based on the cold record, whether a trial court correctly ordered a new trial for factual insufficiency deprives the trial court of all discretion.
We can expect a ruling on this issue by the first half of 2016. The decision should provide needed clarity and affect strategy in drafting motions for new trial. We'll provide an update of this entry with further analysis when the decision comes down.
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