In RE RED BIRD TRAILS APARTMENTS, BRIDGEWAY CAPITAL, LLC, AND NCM MANAGEMENT, LTD. v. the State of Texas

Supreme Court of Texas
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No. 24-0557
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In re Red Bird Trail Apartments, Bridgeway Capital, LLC, and
NCM Management LTD.,
Relators

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On Petition for Writ of Mandamus
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JUSTICE YOUNG, concurring in the denial of the petition for writ
of mandamus.

A jury has already been selected for this trial, which relators ask
the Court to stay, primarily because of the eve-of-trial introduction of
significant new evidence (including a new expert report) that relates to
causation and damages. It is possible that there is good cause for real
parties in interest to submit this evidence so long after discovery closed
nearly four years ago. But any justification for disclosing it so soon
before trial is hard to imagine. Under Texas Rule of Civil Procedure
193.6, the consequence of such untimeliness is the exclusion of the
evidence or a continuance. The trial court has insisted on proceeding
with trial, but—despite relators’ repeated efforts to obtain a ruling—has
refused to address the admissibility of the new evidence. The trial court
will have no choice but to rule on that matter when the evidence is
proffered. This Court’s denial of relators’ request to stay the trial should

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not be misunderstood as suggesting that there is no problem with
proceeding to trial and using this evidence. To the contrary, if the trial
proceeds and the evidence is presented, any outcome unfavorable to
defendants would seem, at the least, to mandate a new trial. The long
and troubling history of this ill-starred case, and the fact that a jury has
been selected without such basic matters as the present issue having
been resolved, hardly inspires confidence, but the trial court remains
free to make further rulings and manage the conduct of the trial in a
way that will avoid such a massive waste of party and judicial resources.
On these understandings, I concur in the denial of the stay and petition
for writ of mandamus.

Evan A. Young
Justice

OPINION FILED: July 15, 2024

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