Opinion
No. 05-15-01513-CV
05-06-2016
IN RE VSDH VAQUERO VENTURE, LTD. AND DOUGLAS M. HICKOK, Relators
On Appeal from the County Court at Law No. 1 Dallas County, Texas
Trial Court Cause No. CC-09-05232-A
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Brown
Opinion by Justice Brown
After a jury rendered a verdict against the real parties in interest Kenneth and Kathy Gross on their breach of contract and fraud claims against relators VSDH Vaquero Venture Ltd. (VSDH) and Douglas M. Hickok, the trial court granted the Grosses' motion for new trial for the reason that VSDH's lawyer violated rule 3.08 of the rules of professional conduct by acting as both an advocate and a witness at trial. Relators filed a petition for writ of mandamus asserting the trial court's reason for granting a new trial was not legally appropriate. For the following reasons, we conditionally grant the writ of mandamus.
I. Factual and Procedural Background
In 2007, Kenneth Gross and his wife Kathy purchased a house from VSDH in a luxury subdivision in Westlake, Texas for a sales price of roughly $2.8 million. The Grosses purchased the house with the intent to construct improvements they hoped would increase its value and marketability. But to protect themselves, the Grosses' sales contract with VSDH ("the Contract") incorporated an addendum with an option ("Buy Back Option" or "Option") granting the Grosses the right to require VSDH to repurchase the house at the original sales price. To exercise the Option, the Grosses were required to give written notice by May 1, 2009, which would then trigger VSDH's obligation to repurchase the house on September 1, 2009 (the "Buy Back Date"), or an earlier mutually agreed upon date. The Option also included a provision that purported to constitute the personal guarantees of VSDH's two limited partners, Douglas Hickok and Van Shaw.
The Option included several terms and conditions related to the Grosses' proposed improvements. Specifically, the Grosses agreed to escrow funds to complete the improvements with their title company and enter into an escrow agreement acceptable to both the Grosses and VSDH. In addition, the Grosses were also required to obtain VSDH's approval of the plans and specifications for the improvements before commencing construction.
According to VSDH, after the sale closed, the Grosses materially breached the Option by (1) allowing their lender to retain the funds for the improvements instead of putting them into escrow with the title company, and (2) failing to obtain VSDH's approval of the plans and specifications before commencing construction of the improvements. Nevertheless, the Grosses completed construction of the improvements and timely notified VSDH they were exercising the Option in an effort to trigger VSDH's obligation to repurchase the house on September 1, 2009.
Up until that time, VSDH had communicated with the Grosses through Hickok, who had executed the Contract on its behalf. But after the Grosses purported to exercise the Option, Hickok informed them he was referring the matter to Shaw, who is also a practicing attorney.
Shortly thereafter, the Grosses sent Shaw an e-mail asking if VSDH was interested in agreeing to an earlier Buy Back Date, possibly at a discount. Shaw responded by e-mail that VSDH was not financially solvent, which would have a huge impact on any discussions they might have. Shaw also informed the Grosses that neither he nor Hickok had personally guaranteed the Option. Shaw subsequently met the Grosses in person and relayed essentially the same information. According to the Grosses, Shaw also expressly told them that VSDH was unable to perform. Based on Shaw's representations, the Grosses determined that VSDH and Hickok had repudiated their obligations under the Option and they sold the house to a third party at a loss before the Buy Back Date.
Meanwhile, VSDH instituted this action against the Grosses asserting they had breached their obligations under the Option. Shaw filed VSDH's petition on its behalf. Shaw also filed petitions in intervention on behalf of himself pro se and on behalf of Hickok, asserting the Grosses had made claims for indemnity that were not accurate.
After the Grosses sold the house, they filed counterclaims against VSDH, Hickok, and Shaw for breach of contract asserting they had repudiated the Option by affirmatively representing they would not perform. In 2011, the trial court granted summary judgment in favor of Shaw because he was not a party to the Contract and had not signed it in any capacity. Hickok retained his own attorney, but Shaw remained counsel of record for VSDH.
In late 2013, two weeks before the case was set for trial, the Grosses sent VSDH their witness list identifying Shaw as a person who might be called as an adverse witness at trial. When Shaw received the witness list, he contacted the Grosses' counsel and asked whether the Grosses were going to call him as a witness. When the Grosses' attorney would not confirm whether or not the Grosses would call Shaw as a witness, VSDH filed a motion for continuance. VSDH asserted a continuance was necessary until it could be determined whether the Grosses were going to call Shaw as a witness at trial because Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct would require Shaw to withdraw if he testified as a fact witness. It is unclear from the record whether the trial court granted the continuance or whether the case was passed for other reasons. In any event, the case was reset for July 7, 2014.
The Grosses did not make a decision as to whether or not they would call Shaw at trial and Shaw did not withdraw. The Grosses then filed a motion to disqualify Shaw. According to the Grosses, Shaw should be disqualified because he had stated he would be required to withdraw if he testified as a witness at trial and Hickok had previously indicated he was likely to call Shaw as a witness. At the hearing on the motion, Hickok appeared and acknowledged he might call Shaw at trial, but only if necessary to rebut the Grosses' evidence. Nevertheless, the Grosses did not state whether they intended to call Shaw as a witness or attempt to show Shaw's testimony was necessary to establish any particular fact on behalf of VSDH or any other party. Nor did the Grosses assert they would suffer prejudice if Shaw were permitted to act as both a witness and an advocate at trial. Rather, they told the trial court they did not care whether or not Shaw was VSDH's lawyer in the case, but sought disqualification because they did not want him to again use rule 3.08 as an excuse for a continuance.
The trial court granted the Grosses' motion and disqualified Shaw. VSDH filed a petition for writ of mandamus asserting the trial court abused its discretion in doing so. We agreed and conditionally granted mandamus relief. We explained that when a party seeks to disqualify their opponent's attorney because the attorney will be a fact witness at trial, that party "must present evidence that the testimony of the opposing lawyer is necessary, that it goes to an 'essential fact,' and that the party will be prejudiced if the opposing lawyer is permitted to serve in dual roles." In re VSDH Vaquero Venture, Ltd, No. 05-14-00958-CV, 2014 WL 4262167, at *2 (Tex. App.—Dallas Aug. 28, 2014, orig. proceeding). Because the Grosses did not do so, the trial court abused its discretion in disqualifying Shaw. See id.
The trial court vacated its order and the case proceeded to trial, with Shaw acting as VSDH's counsel. The Grosses called Hickok as their first witness.
The trial court had realigned the parties, with the Grosses as plaintiffs.
On direct examination, the Grosses asked Hickok about the e-mail Shaw sent them stating that VSDH was not financially solvent. Hickok disagreed with Shaw's assessment of VSDH's solvency. He testified that VSDH had no cash, but it was not insolvent at that or any other relevant time. Hickok testified that VSDH was not inclined to repurchase the house in any event because of the Grosses' prior breaches of their obligations under the Option. But VSDH never made a definitive decision because the Grosses sold the house to a third party before it was required to do so.
During a recess, Shaw told the trial court that it had suddenly become apparent that rule 3.08 required him to withdraw as VSDH's counsel. According to Shaw, he had come to believe during Hickok's trial testimony that Shaw could be compelled to testify adversely to VSDH's interests. Shaw also claimed his withdrawal would necessitate a mistrial. The trial court asked the parties to brief the issue and recessed for the evening. The following morning, VSDH and Shaw filed a written joint motion in which Shaw moved to withdraw and VSDH moved for a mistrial.
At the hearing, Shaw acknowledged that VSDH had filed a mandamus in this Court challenging the trial court's order disqualifying him as VSDH's attorney. Shaw asserted that that this Court "ruled that the record was insufficient to require [his] withdrawal at that time." (italics added). In the prior mandamus, we concluded the Grosses had failed to present evidence to show Shaw should be disqualified. Whether Shaw himself had information that would require him to withdraw in accordance with the disciplinary rules of professional conduct is a different question.
The trial court conducted a hearing on the combined motion. At that hearing, Shaw called Hickok's attorney as a witness to show Hickok would elicit testimony from Shaw that could be contrary to VSDH's interests. Hickok's counsel testified that he intended to question Shaw about VSDH's solvency, which could be prejudicial to VSDH if Shaw contradicted Hickok on that issue. Although Hickok's counsel also stated he intended to elicit other testimony from Shaw to support Hickok's and VSDH's mutual defense, the Grosses opposed Shaw's withdrawal without attempting to determine what the substance of that testimony might be. The trial court, without ruling on Shaw's motion to withdraw, concluded trial would proceed.
When the Grosses resumed their questioning of Hickok, Hickok admitted VSDH had made no efforts to obtain a loan that would have enabled it to close on the Buy Back Date. On cross-examination, Hickok and VSDH both questioned Hickok about whether VSDH could have purchased the house even though it had not obtained a loan. Hickok testified that VSDH did not need a loan because Shaw had sufficient funds to purchase the house if necessary. Hickok said he and Shaw were considering that as an option when the Grosses sold the house to a third party before the Buy Back Date.
After the Grosses rested their case, Hickok called Shaw to testify on the repudiation issue. The Grosses did not object to Shaw testifying as a witness or at that point seek his disqualification based on the fact that he had been called to testify. During Hickok's examination of Shaw, Hickok asked Shaw about his statement to the Grosses that VSDH was not financially solvent. Shaw testified that he meant only that VSDH did not have the cash to purchase the house. Shaw denied telling the Grosses that VSDH could not or would not perform. Shaw also testified VSDH could have performed, even without a loan, because he personally had sufficient funds to purchase the house.
After hearing the evidence, the jury found against the Grosses on all issues. Specifically, the jury found that the Grosses failed to comply with the Option, but that VSDH had not. It also failed to find VSDH or Hickok committed fraud. After the jury returned its verdict, the Grosses filed a motion for new trial complaining that Shaw violated rule 3.08 by testifying that he was ready and willing to perform the Option on behalf of VSDH. They asserted that Shaw's violation justified a new trial because VSDH and Shaw had refused to provide the Court with Shaw's proposed testimony and essentially prevented the Grosses from seeking Shaw's removal as trial counsel.
The trial court granted the Grosses' motion for new trial and set aside the jury's verdict. In its order, the trial court concluded good cause existed for a new trial because Shaw acted as both counsel for VSDH and as a witness on a material issue in dispute, which ran afoul of rule 3.08 of the rules of disciplinary procedure and resulted in prejudice to the Grosses. The trial court also determined the Grosses did not waive application of rule 3.08 or the right to assert a motion for new trial, primarily because the first time the Grosses became aware that Shaw would testify that he was considering performing on behalf of VSDH was when he actually testified near the end of trial.
Relators filed this petition for writ of mandamus asserting the trial court's reason for granting new trial was not legally appropriate. We agree and conditionally grant relator's petition and direct the trial court to render judgment in accordance with the jury's verdict.
II. Applicable Law
A. Mandamus Review of Orders Granting New Trials
The rules of civil procedure vest trial courts with broad authority to order new trials for good cause. TEX. R. CIV. P. 320. However, because the Texas Constitution guarantees the right to trial by jury, that authority is not unfettered. See TEX. CONST. art. I, § 15; In re Bent, No. 14- 1006, 2016 WL 1267580, at *3-5 (Tex. Apr. 1, 2016) (orig. proceeding). A trial court must articulate a cogent, understandable, and reasonably specific explanation for why the case must be retried. Bent, 2016 WL 1267580, at *3; In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding). That reason must be one for which a new trial is legally appropriate. Bent, 2016 WL 1267580, at *8. The reason must be articulated with sufficient specificity to assure the parties that the trial court derived the reason from the particular facts and circumstances of the case and that the jury's decision was set aside only after careful thought and for valid reasons. United Scaffolding, 377 S.W.3d at 688-89. If an order requires the parties to speculate as to the trial court's reason for granting a new trial, it does not satisfy these requirements. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding). The trial court's reason must also be sufficiently specific to enable this Court to conduct a merits-based review of that reason. See Bent, 2016 WL 1267580, at *4.
Because of the importance of the right to a trial by jury, whether a trial court's order complies with these requirements is subject to review by mandamus. In re Health Care Unlimited, Inc., 429 S.W.3d 600, 602 (Tex. 2014) (orig. proceeding); In re Columbia Med. Ctr. of Los Colinas Subsidiary, L.P., 290 S.W.3d 204, 209-10 (Tex. 2009) (orig. proceeding).
B. Texas Disciplinary Rules of Professional Conduct
"The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline." TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 10. As the preamble to the rules explains, the "rules are not designed to be standards for procedural decisions . . . ." Id. at ¶ 15. That "a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule." Id. As a consequence, "nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty." Id.
Although private parties are generally without standing to enforce the rules, there are limited situations in which courts look to the standards set forth in the rules as a basis to provide procedural relief to parties in litigation. One such situation is attorney disqualification. Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding); In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding).
Texas Disciplinary Rule of Professional Conduct 3.08(a) generally prohibits a lawyer from acting as both an advocate and a witness in an adjudicatory proceeding if his testimony is or may be necessary to establish an essential fact on behalf of the lawyer's client. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08(a); In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). Rule 3.08 is grounded principally on the notion that the jury may become confused when one person acts as both advocate and witness. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08 cmt. 4; Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996). Because one of the purposes of rule 3.08(a) is to protect opposing parties, courts have allowed parties to rely on that rule to disqualify their opponent's attorney when the attorney may be "a witness necessary to establish an essential fact" and they can demonstrate "actual prejudice." See Ayres v. Canales, 790 S.W.2d 554, 557 (Tex. 1990) (orig. proceeding); in re Lavizadeh, 353 S.W.3d 903, 904 (Tex. App.—Dallas 2011, orig. proceeding). Even then, rule 3.08 merely provides "guidelines" courts are to consider and is not itself a "controlling standard" for disqualification. See Sanders, 153 S.W.3d at 56; Keith v. Solls, 256 S.W.3d 912, 918 (Tex. App.—Dallas 2008, no pet.). Further, "[a] party who fails to file [a] motion to disqualify opposing counsel in a timely manner waives the complaint." Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994); see also In re EPIC Holdings, Inc., 985 S.W.2d 41, 52 (Tex. 1998) (orig. proceeding).
In contrast, rule 3.08(b), which prohibits an attorney from continuing representation if he believes he will be compelled to provide testimony substantially adverse to his client, is designed solely to protect the attorney's client. TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 & cmt. 10. Thus, the client may consent to the attorney's continued representation. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08. An opposing party has no standing to challenge the adequacy of such consent. See Anderson Producing Inc., 929 S.W.2d at 424. Instead, that "is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding." TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08 cmt. 10 (1989)); see also Anderson Producing Inc., 929 S.W.2d at 424.
III. Discussion
Here, the trial court concluded good cause existed for a new trial because Shaw acted as both counsel for VSDH and as a witness on a material issue in dispute, which ran afoul of rule 3.08 of the rules of disciplinary procedure and resulted in prejudice to the Grosses. In its order, the trial court first stated that Shaw testified as a witness on the contested issue of whether VSDH and Hickok had repudiated the Contract. The trial court relied on Shaw's specific testimony that although VSDH did not have the money to purchase the house, Shaw personally had sufficient funds to perform on behalf of VSDH and was considering doing so when the Grosses sold the house to third party. The trial court also relied on that testimony to support its conclusions that (1) the Grosses suffered prejudice, and (2) the Grosses did not waive their complaint.
VSDH and the Grosses both interpret the trial court's conclusion that Shaw's conduct ran "afoul" of rule 3.08 as a conclusion that he violated that rule. We will do likewise.
In their petition for writ of mandamus, relators assert (1) Shaw's testimony did not constitute a legally appropriate basis to grant a new trial, and (2) rule 3.08 is not a legally appropriate reason to grant a new trial. Relators' complaint regarding Shaw's testimony is not directed to the trial court's facial rationale, but whether the trial court could properly order a new trial for the reason it expressed. Specifically, relators assert the trial court abused its discretion in ordering a new trial based on Shaw's testimony because the underlying record shows that testimony was admitted without objection and because the Grosses failed to show admission of the testimony probably led to the rendition of an improper verdict.
However, before we can review the merits of the trial court's reason for granting a new trial, we must first identify the legal basis of its order. Although the trial court relied on the substance of Shaw's testimony to explain why a new trial was required, the trial court did not conclude that testimony was erroneously admitted. Nor did it provide any rationale that would have allowed it to preclude Hickok, who the Grosses sued for statements made by Shaw, from calling Shaw as a witness.
Instead, the trial court's order shows the trial court granted a new trial based on a violation of rule 3.08 itself. It is well-settled that the rules of professional conduct do not create substantive duties to third parties or themselves provide a basis to impose "extra-disciplinary consequences" for violating any duties they might create. TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 10. The Grosses nevertheless assert Shaw's violation of rule 3.08 was a legally appropriate reason for granting a new trial because trial courts have a "duty" to "enforce" that rule. They further assert because rule 3.08 is sufficient to require a trial court to disqualify an attorney, it is a legally sufficient reason to grant a new trial, even in the absence of a motion to disqualify. We disagree.
The Grosses also assert that rule 3.08 should be given the "same status" as a rule of evidence. See, e.g., Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (attorneys in a case, like judges and jurors, should be incompetent as witnesses unless an exception to rule 3.08 applies); but see House v. State, 909 S.W.2d 214, 217 (Tex. App.—Houston [14th Dist.] 1995), aff'd, 947 S.W.2d 251 (Tex. Crim. App. 1997) (rule 3.08 operates to disqualify lawyers from acting as counsel, not as witnesses, and therefore does not support exclusion of a lawyer's testimony). Because the Grosses did not object to Shaw's testimony and the trial court did not conclude his testimony should have been excluded, we need not decide whether rule 3.08 would authorize the exclusion of evidence. We nevertheless note that determination would involve different considerations and concerns than those presented in a motion to disqualify. For example, excluding the testimony of a party's attorney would not deny that party the right to be represented by the counsel of its choice, but it could operate to prohibit that party from presenting necessary evidence because of his attorney's ethical violation.
A trial court may not disqualify an attorney based on a violation of rule 3.08 unless a party files a timely motion to disqualify and presents evidence establishing their entitlement to disqualification. Ayres, 790 S.W.2d at 558 (trial court abused its discretion by disqualifying counsel absent a showing of actual prejudice); Vaughan, 875 S.W.2d at 690 (trial court abused its discretion by disqualifying counsel when movant did not file its motion to disqualify in a timely manner); Lavizadeh, 353 S.W.3d at 904 (trial court abused its discretion by disqualifying counsel absent a showing that counsel's testimony was necessary to establish an essential fact on behalf of its client).
Further, the purpose of a motion for new trial is to give a trial court an opportunity to correct its own trial errors and to raise other defects in the proceeding not previously preserved, but would require reversal on appeal. Stillman v. Hirsch, 128 Tex. 359, 369, 99 S.W.2d 270, 275 (1936) ("[t]he object of a motion for new trial is to point out the rulings complained of, and call them to the attention of the trial judge, so that he may have an opportunity of reviewing his decisions, and, if need be, correct them."); D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.—Dallas 1993, no writ) ("[t]he purpose of a motion for new trial is to provide an opportunity for the trial court to cure any errors by granting a new trial."); see also TEX. R. CIV. P. 324 (complaints relating to jury argument, jury misconduct, the jury's findings, and incurable jury argument must be preserved in motion for new trial). In the absence of any error in the trial proceedings, a party may also assert equitable grounds in a motion for new trial. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (Comm'n App. 1939); Clute v. Ewing, 21 Tex. 677, 678 (1858) ("When there is no error in law [motion for new trial] is an equitable appeal to the sound discretion of the court trying the cause."). Equity will not provide a basis for a new trial for a complaint the movant could have, but did not, raise prior to judgment. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002); Harrison v. Crumb, 1881 WL 9259, at *1 (Tex. Comm'n App. 1881) ("[e]quity will not relieve against proceedings at law except for fraud, accident, surprise or manifest injustice, unmixed with fault or negligence on the complainant's part"); see Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) ("[o]ur purpose in adopting the Craddock standard was to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available.")
Here, the trial court did not base its order on any underlying trial error associated with rule 3.08. Thus, in an apparent effort to explain why a new trial was nevertheless warranted, the trial court determined the Grosses did not waive "application" of rule 3.08. Having reviewed the trial court's rationale, we are unable to identify what, if any, guiding rules and principals the trial court relied on in making its determination. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (trial court must adhere to established guiding rules and principals when deciding whether to grant a motion for new trial). For example, it is unclear whether the trial court was applying waiver law applicable to motions to disqualify counsel or was attempting to explain why equitable principals excused the Grosses' failure to file such a motion.
We nevertheless note the Grosses seek to justify the trial court's waiver analysis based on the Supreme Court's opinion in In re Epic, which concerned whether a motion to disqualify filed during trial was timely. See Epic Holdings, 985 S.W.2d at 57. But the Grosses did not move to disqualify Shaw during trial. In addition, it is apparent that the trial court's waiver analysis was based primarily on Shaw's actions rather than whether the Grosses actions (or inaction) showed an intent to yield a known right. Id. (waiver occurs when a party intentionally relinquishes a known right). Specifically, the trial court first referenced the events that led to the first mandamus proceeding, which themselves were precipitated by Shaw's statements in VSDH's motion for continuance. The trial court then noted that, after this Court concluded Shaw should not have been disqualified from representing VSDH, VSDH subsequently moved for a mistrial claiming Shaw was required to withdraw. The trial court acknowledged that the Grosses opposed that motion, but noted that neither Shaw nor Hickok had disclosed that Shaw was going to testify that he could have performed and was considering performing on behalf of VSDH. Apparently based on that omission, the trial court found that the first time the Grosses became aware that Shaw would testify about his ability to and potential willingness to perform on behalf of VSDH was when he actually testified near the end of trial. The trial court concluded, as a result, the Grosses did not waive their right to move for a new trial on this basis.
The trial court did not, however, explain how Shaw's efforts to invoke rule 3.08 for the benefit of VSDH had any bearing on whether or not the Grosses waived their own rights. See Bent, 2016 WL 1267580, at *7 (mere reference to facts with no indication how those facts bear on trial court's rationale for granting new trial are insufficient); see also Inman's Corp. v. Transamerica Commercial Fin. Corp., 825 S.W.2d 473, 477 (Tex. App.—Dallas 1991, no writ) ("in an adversarial system, a party is ill-advised to assume that an action taken by another party will inure to its benefit"). Nor did the trial court explain how Shaw's failure to disclose information at the hearing on VSDH's motion for mistrial supported a finding with respect to what the Grosses knew or when they knew it.
Regardless, even if the Grosses were not aware Shaw would testify about his personal financial ability or possible willingness to perform on behalf of VSDH, the trial court did not explain why that would have prevented them from proving their grounds for disqualification. Shaw's personal ability or inability to perform was not itself an essential fact, but was offered to respond to the Grosses' claim that VSDH repudiated the Option when Shaw told them VSDH was insolvent. The Grosses were certainly aware that Shaw was a potential fact witness on that issue from the moment they filed suit. Nevertheless, the Grosses did not move to disqualify Shaw until shortly before trial and, when they did so, they relied on Shaw's own claim he might withdraw. In other words, they did not seek to assert any protections rule 3.08 might have afforded them as litigants or claim they would suffer prejudice if Shaw acted as both an advocate and a witness. EPIC Holdings, Inc., 985 S.W.2d at 53 (party must timely file motion to disqualify after it obtains information establishing grounds for disqualification). The trial court's order further reflects the Grosses did nothing to alter that course at trial.
Thus, instead of explaining the necessity for a new trial, the trial court's order shows that, although the Grosses were aware Shaw was likely to be a witness on the repudiation issue well before trial, it was only after the jury rendered an adverse verdict that they claimed they should have been protected by rule 3.08's prohibitions. A parties' dissatisfaction with its trial decisions or the manner in which it tried its case is not a valid basis for granting a new trial. See Hicks v. Brooks, 504 S.W.2d 942, 945 (Tex. Civ. App.—Tyler 1973, writ ref'd n.r.e.) (motion for new trial is not a vehicle to try a case over or differently in the absence of trial error). Further, a litigant is not "permitted to lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of [an error] in a motion for new trial." See Turner v. Turner, 385 S.W.2d 230, 237 (Tex. 1964); see also Hufo Oils v. R.R. Comm'n of Tex., 717 S.W.2d 405, 409 (Tex. App.—Austin 1986, writ denied).
Their failure to do so could certainly have been strategic. Although a party may suffer prejudice if their opponent's attorney testifies as a fact witness on a material contested issue, the "principal purpose "of rule 3.08(a) is to "insure that a client's case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate." See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08 cmt. 9. --------
On this record, we conclude that any violation of rule 3.08 was not itself a "reason for which a new trial is legally appropriate," and that the trial court did not otherwise provide a "cogent and reasonably specific explanation" why rule 3.08 required a new trial in this case. See Bent, 2016 WL 1267580, at *7. Therefore, the trial court's order was facially insufficient. See id. We conditionally grant relators' petition for writ of mandamus and direct the trial court to vacate its order and enter judgment on the jury's verdict. Id. at 11.
/Ada Brown/
ADA BROWN
JUSTICE 151513F.P05