In re BCH Development, LLC
Dallas Court of Appeals (August 15, 2017)
Justices Evans, Brown, and Schenck (Opinion here)
A homeowners’ association obtained an injunction prohibiting construction violating a deed restriction, and a jury awarded it $290,000 in attorney’s fees under the Property Code. Unhappy it did not receive the $580,000 in fees it requested, the association filed a motion for new trial solely on the fees, which the court granted. The Dallas Court of Appeals granted mandamus reinstating the jury’s verdict, holding the record did not support the trial court’s reasons for granting a new trial.

Appellate review of new-trial orders has been developing in recent years, following the Texas Supreme Court’s 2009 holding that “in the interest of justice” was an insufficient reason to justify a new trial and such an order could be remedied by mandamus. In re Columbia Medical Center, 290 S.W.3d 204 (Tex. 2009). In a series of opinions, the Supreme Court has articulated a three-part test for reviewing new-trial orders:

  1. The order must state a “legally appropriate reason” for a new trial;
  2. The stated reason must be sufficiently specific to reflect consideration of the case’s particular facts and circumstances; and
  3. If the first two “facial requirements” are satisfied, the record must support the trial court’s stated rationale.

In 2016, the Supreme Court acknowledged it had not resolved the scope of an appellate court’s authority “to re-weigh evidence considered by the trial court in determining whether there is insufficient evidence to support a jury’s finding.” In re Bent, 487 S.W.3d 170, 173 (Tex. 2016).

In BCH Development, the Dallas Court held the trial court had satisfied the two facial requirements, by articulating facially valid reasons for granting a new trial and tying its ruling to specific facts and circumstances. The court’s reasons included: (1) violations of limine orders; (2) improper jury arguments; and (3) factual and legal insufficiency of the evidence supporting the amount of fees awarded.

The appellate court then conducted a “merits review” of the record, and determined none of the trial court’s articulated reasons met the test of factual sufficiency. Neither the asserted limine violations nor jury arguments justified a new trial, and the jury’s determination of reasonable and necessary fees was “well within the range supported by the evidence.” Consequently, the trial court’s ruling was an abuse of its discretion for which mandamus was an appropriate remedy.