Rich Phillips Quoted in Law360 on Appellate Power

“Texas Case Could Limit Appellate Power To Nix New Trials”

The Texas Supreme Court’s recent decision to review a Hurricane Ike insurance case will allow the justices to build on an earlier line of cases and set boundaries for how much power appellate courts should have to overturn trial judges’ decisions to grant new trials.

The high court on Friday agreed to hear In re: Bent, which asks whether appellate courts can evaluate the facts presented to a jury in order to decide whether a new trial should have been granted. The Bent case will be the fourth in a line of Texas Supreme Court cases since 2009 that address the tension between a trial court’s discretion to grant a new trial and a litigant’s right to have a jury decide the case.

“It has the potential to either expand or restrict the scope of an appellate court’s review of a trial court’s order granting a new trial,” Rich Phillips of Thompson & Knight LLP, who worked on the Toyota case, said.

Phillips said while appellate courts do have the power of factual sufficiency review on appeal from a final judgment, it’s not clear how far that power extends in the appeal of a new trial order. The key distinction is in timing, and whether that review can happen before a second trial is held, he said.

He said that after the Toyota ruling, it’s unclear in Texas whether an appellate court could review the trial record from two separate trials if a new trial had been granted. Previously, there was no way to go back to the first verdict, which is why people want the option of immediate review that could reinstate a jury verdict, he said.

Phillips said for the high court justices, the Bent case isn’t about narrowing or broadening the scope of appellate review but clarifying what that scope actually is.

Just as Toyota was the next step after the 2009 and 2012 rulings from the court, Bent provides a chance to go further in giving guidance to Texas lawyers and judges about the standards that apply, the discretion trial courts have and how to preserve that discretion while also ensuring new trials aren’t being granted that don’t live up to Texas rules.

“The court didn’t really have to deal with the edges of it in Toyota, but now they do,” he said.