in Re: Kip Dixon

• Court: Court of Appeals of Texas
• Decided: March 16, 2015
• Docket: 05-15-00242-CV
• Status: Published

Opinion

Deny and Opinion Filed March 16, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00242-CV

IN RE KIP DIXON, Relator

Original Proceeding from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-52676-2008

MEMORANDUM OPINION Before Justices Bridges, Stoddart, and Whitehill Opinion by Justice Bridges Relator filed this original proceeding requesting that the Court order the elected judge of

the trial court to withdraw her order granting new trial following a bench trial to an assigned

judge. A trial court has broad discretion in granting new trials. In re Columbia Med. Ctr. of Las

Colinas, Subsidiary, L.P., 290 S.W.3d 204, 206 (Tex. 2009). We decline relator’s invitation to

extend merits-based mandamus review to orders granting new trial in proceedings such as this

one. See In re Foster, No. 05-15-00179-CV, 2015 WL 682335, at *1 (Tex. App.—Dallas Feb.

18, 2015, orig. proceeding) (mem. op.) (declining to extend mandamus review to order granting

new trial following bench trial); see also In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746,

762–63 (Tex. 2013) (orig. proceeding) (Lehrmann, J. concurring) (noting concerns regarding

transparency in setting aside jury verdict are not present with regard to orders issued after bench

trials); In re Cort, No. 14-14-00646-CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th Dist.] Sept. 9, 2014, orig. proceeding) (mem. op.) (declining to extend mandamus review to

order granting new trial following post-answer default judgment); In re Old Am. Cnty. Mut. Fire

Ins. Co., No. 13–13–00644–CV, 2014 WL 1633098, * 11 (Tex. App.–Corpus Christi Apr. 23,

2014, orig. proceeding) (mem. op.) (declining to extend mandamus review to include merits-

based review of orders granting new trial in non-jury cases).

Particularly in a case such as this one, which involved less than a full-day trial, “the

benefits of a relatively prompt retrial if the judge perceives unfairness in the proceedings

outweigh the detriments of prolonging final judgment pending interlocutory appellate review.”

In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 215 (Tex. 2009)

(O’Neill, J. dissenting); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.

2004) (orig. proceeding) (pointing out mandamus review can, “interfere[] with trial court

proceedings, distract[] appellate court attention to issues that are unimportant both to the ultimate

disposition of the case at hand and to the uniform development of the law, and add[]

unproductively to the expense and delay of civil litigation” ). The fact that the order granting

new trial was signed by the elected judge after trial by an assigned judge does not change this

balance. Cf. TEX. GOV'T CODE ANN. § 24.003 (West Supp. 2014) (in counties with two or more

district courts “A district judge in the county may hear and determine any part or question of any

case or proceeding pending in any of the district courts, and any other district judge may

complete the hearing and render judgment in the case or proceeding.

–2– A district judge may hear and determine motions, including motions for new trial . . . .”);

TEX. R. CIV. P. 330(g) (in any county in which there are two or more district courts having civil

jurisdiction, “any judge may hear any part of any case or proceeding pending in any of said

courts and determine the same, or may hear and determine any question in any case, and any

other judge may complete the hearing and render judgment in the case”).

We deny the petition.

150242F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE

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