Is Mandamus Relief Available for the Erroneous Granting New Trial ?

Mandamus will issue: (1) to correct a clear abuse of discretion or the violation of a duty imposed by law, if; (2) there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). In Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992), the court held that a party wrongfully denied the benefits of an agreement to arbitrate would be entitled to mandamus relief because to hold otherwise would be to deprive the party of the benefits of the arbitration clausefor which it had bargained. In Freis v. Canales, 877 S.W.2d 283, 283 (Tex. 1994), the court held that a party compelled to arbitrate without having agreed to do so would be entitled to mandamus relief to preserve his right to have the dispute resolved by litigation. By ordering a new arbitration, the trial court ordered a rehearing of the case. This is akin to the granting of a motion for new trial. Therefore, we believe that it is appropriate to apply, by analogy, the cases involving: "It is a general rule, well established, that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause. The discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus." Johnson v. Court of Civil Appeals for the Seventh Supreme Judicial Dist., 162 Tex. 613, 350 S.W.2d 330, 331 (Tex. 1961). There are two instances in which a trial court's order granting a new trial has been overturned on mandamus. Id. These are: (1) when the trial court's order was wholly void as where it was not rendered in the term in which the trial was had; (2) where the trial court has granted a new trial specifying in the written order the sole ground that the jury's answers to special issues were conflicting. Id.; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). A motion for new trial granted "in the interest of justice" is not reviewable by mandamus. Johnson, 700 S.W.2d at 918.