                               NUMBER 13-14-00484-CV

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                     IN RE FRED ADKINS


                           On Petition for Writ of Mandamus.


                               MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Perkes and Longoria
                Memorandum Opinion by Justice Perkes1

        Relator, Fred Adkins, filed an amended petition for writ of mandamus in the above

cause on August 27, 2014 seeking to compel the trial court to withdraw its order granting

a new trial and enter judgment in Adkins’s favor.2 In a series of recent opinions, the Texas

Supreme Court has mandated the trial court’s stated reasons for granting a new trial must


        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

        2This original proceeding arises from trial court cause number P-34,953 filed in the County Court
at Law No. 3 of Hidalgo County, Texas. The respondent in this original proceeding is the Honorable John
A. Hutchison III, a statutory probate judge presiding by appointment.
be legally appropriate and must be specific enough to show that the trial court derived its

articulated reasons for granting a new trial from the particular facts and circumstances of

the case at hand. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012)

(orig. proceeding); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d

204, 212 (Tex. 2009) (orig. proceeding). While the order granting a new trial in this case

is supported by legally appropriate reasons and includes some analysis regarding the

sufficiency of the evidence, the order is insufficient to meet the rigorous and detailed

standards articulated by the Texas Supreme Court. Specifically, the order does not

specifically show that the trial court derived its articulated reasons for granting a new trial

from the particular facts and circumstances of the case at hand. Accordingly, without

addressing the merits of the order granting new trial, we conditionally grant mandamus

relief in part and deny relief in part as specified herein.

                                       I. BACKGROUND

       The underlying matter is a will contest involving issues pertaining to testamentary

capacity and undue influence. Everett Hank Tingle passed away on February 5, 2012.

His caregiver, Adkins, sought to probate a will executed by Tingle on March 20, 2006,

which essentially left Everett’s property to Adkins. In contrast, Antonia Tingle, Everett’s

ex-wife, sought to probate a will executed by Everett on December 13, 2010, leaving his

property to Antonia. Adkins was at one time married to Antonia’s daughter, but was

divorced from her by the time of the events at issue.

       After a five-day jury trial, the jury rendered a verdict finding that: (1) in response

to jury question number one, Everett did not have testamentary capacity to sign the will

dated December 13, 2010; (2) in response to jury question number two, Everett signed



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the will dated December 13, 2010 as a result of undue influence; (3) in response to jury

question number three, Antonia did not prosecute the proceeding to probate the

December 13, 2010 will in good faith and with just cause; and (4) in response to jury

question number four, Antonia incurred $65,000 for “necessary expenses and

disbursements,” including attorney’s fees, incurred in prosecuting the proceeding to

probate the will.

        On December 30, 2013, the trial court entered a final judgment in favor of Adkins

in accordance with the jury’s verdict. The Court’s judgment denied Antonia’s application

to probate the December 13, 2010 will, rendered judgment in favor of Adkins, and denied

Antonia any award for the expenses and attorney’s fees she incurred in attempting to

probate the 2010 will.

        On January 22, 2014, Antonia filed a motion for judgment notwithstanding the

verdict, or alternatively, motion for new trial. According to Antonia’s motion, the “jury

reached a decision based . . . more on its subjective view of justice, as opposed to the

underlying facts.” On February 20, 2014, Adkins filed a response to Antonia’s motion for

new trial.    On February 25, 2014, the trial court held a non-evidentiary hearing on

Antonia’s motion and set the motion for submission on Friday, March 13, 2014. On March

13, 2014, the trial court granted Antonia’s motion for a new trial. The trial court’s order

granting Antonia’s motion for new trial provides as follows:

                On March 13, 2014, the Court considered the Motion for a New Trial
        filed by Antonia Tingle, the response thereto, and the evidence adduced at
        the hearing,[3] and enters the following findings:

                1.      As to jury issue No. 1 regarding testamentary capacity, the
        jury’s verdict is against the great weight and preponderance of the credible

        3
        As previously noted, contrary to the recital in the order granting new trial, there was no evidence
adduced at the hearing on the motion for new trial.

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       evidence. The evidence from the witnesses showed overwhelmingly that
       Everett Hank Tingle possessed testamentary capacity at the time of the
       execution of the will dated December 13, 2010.

              2.     As to jury issue No. 2 regarding undue influence, the jury’s
       verdict is against the great weight and preponderance of the credible
       evidence. There was insufficient evidence to show that Everett Hank Tingle
       signed the will dated December 13, 2010, as the result of undue influence.
       The evidence only indicated mere speculation or a bare suspicion that
       undue influence had been exercised.

              3.     As to jury issue No. 3, regarding good faith of proponent
       Antonia Tingle, the jury’s verdict is against the great weight and
       preponderance of the credible evidence. There was no evidence presented
       to show that Antonia Tingle did not prosecute the probate of the will in good
       faith.

              4.      As to jury issue No. 4, if jury issue No.4 derives from Jury
       Issue No.3, if jury issue no 3 is against the great weight and preponderance
       of evidence, then the answer to Jury Issue No.4 is manifestly unjust.

           IT IS ORDERED THAT Plaintiff’s Motion for a New Trial is
       GRANTED based on the findings herein and in the interest of justice.

       This original proceeding ensued. By two issues, Adkins contends: (1) that the trial

court cannot grant a new trial on the stated basis that the jury’s verdict was against the

great weight and preponderance of the evidence; and (2) the trial court abused its

discretion in substituting its judgment for that of the jury. Adkins contends that the trial

court must, when granting a new trial, state a reasoned basis with reference to specific

evidence, rather than merely granting a new trial with recitations to a legal standard and

because it believes the jury verdict to be “manifestly unfair.”

       The Court requested and received a response to the petition for writ of mandamus

from Antonia. By four issues, Antonia contends that: (1) the order granting a new trial is

sufficiently specific; (2) supreme court precedent does not require this Court to examine

the record when the trial court has granted a new trial based on factual insufficiency of



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the evidence to support the verdict; (3) this Court should apply a “very limited” merits-

based review to determine whether the trial court abused its discretion in granting a new

trial; and (4) the trial court did not abuse its discretion in granting a new trial.

                                   II. STANDARD OF REVIEW

       Mandamus is appropriate when the relator demonstrates that the trial court clearly

abused its discretion and the relator has no adequate remedy by appeal. In re Reece,

341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of

establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re

CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).

       A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary

and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails

to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital

Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The

adequacy of an appellate remedy must be determined by balancing the benefits of

mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262

(Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances,

it must be guided by the analysis of principles rather than the application of simple rules

that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.

2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review

and consider whether mandamus will preserve important substantive and procedural

rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.




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                                       III. NEW TRIALS

       Rule 320 of the Texas Rules of Civil Procedure gives the trial court broad discretion

to grant a new trial “for good cause, on motion or on the court’s own motion.” TEX. R. CIV.

P. 320. The Texas Supreme Court has held that although trial courts have significant

discretion in granting new trials, “such discretion should not, and does not, permit a trial

judge to substitute his or her own views for that of the jury without a valid basis.” In re

Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 212. Thus, a trial

court’s order granting a motion for new trial must provide a reasonably specific

explanation of the court’s reasons for setting aside a jury verdict. Id. at 213; see, e.g., In

re Hunter, 306 S.W.3d 422, 423 (Tex. App.—Dallas 2010, orig. proceeding); In re C.R.S.,

310 S.W.3d 897, 898 (Tex. App.—San Antonio 2010, orig. proceeding); In re Carrizo Oil

& Gas Co., 292 S.W.3d 763, 764 (Tex. App.—Beaumont 2009, orig. proceeding); see

also In re Davis, No. 02-14-00131-CV, 2014 WL 2145433, at *1 (Tex. App.—Fort Worth

May 20, 2014, orig. proceeding) (mem. op.); In re Whaley, No. 05-12-01518-CV, 2012

WL 5991789, at *1 (Tex. App.—Dallas Nov. 30, 2012, orig. proceeding) (mem. op.).

       A trial court does not abuse its discretion so long as its stated reason for granting

a new trial is: (1) a reason for which a new trial is legally appropriate, such as a well-

defined legal standard or a defect that probably resulted in an improper verdict; and (2)

specific enough to indicate that the trial court did not simply parrot a pro forma template,

but rather derived the articulated reasons from the particular facts and circumstances of

the case at hand. In re United Scaffolding, Inc., 377 S.W.3d at 688–89. A new trial order

may be an abuse of discretion if, for example, it is based on a reason that is not legally

valid, or “if the articulated reasons plainly state that the trial court merely substituted its



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own judgment for the jury’s.” Id. at 689. An appellate court may conduct a merits-based

mandamus review of a trial court’s articulated reasons for granting a new trial. In re

Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 755–59 (Tex. 2013) (orig. proceeding);

see In re Whataburger Restaurants LP, 429 S.W.3d 597, 598 (Tex. 2014) (orig.

proceeding) (per curiam); In re Health Care Unlimited, Inc., 429 S.W.3d 600, 602 (Tex.

2014) (orig. proceeding) (per curiam). If the articulated reasons are not supported by the

law and the record, mandamus relief is appropriate. In re Toyota Motor Sales, U.S.A.,

Inc., 407 S.W.3d at 761–62.

                                      IV. ANALYSIS

       As stated previously, Adkins contends that the trial court abused its discretion by

substituting “its own judgment for that of the jury” and the order granting a new trial

constituted an abuse of discretion because it merely contained recitations to a legal

standard rather than stating a reasoned basis for granting the new trial with reference to

specific evidence. The trial court’s order granting a new trial in favor of Antonia states

that the jury’s verdict was against the great weight and preponderance of the credible

evidence with regard to its conclusions that Everett lacked testamentary capacity to sign

the December 13, 2010 will, that he signed the will as a result of undue influence, and

that Antonia did not prosecute the proceeding to probate that will in good faith and with

just cause. The order further recites that the “evidence from the witnesses showed

overwhelmingly that [Everett] possessed testamentary capacity at the time of the

execution of the will,” that there was “insufficient evidence to show that [Everett] signed

the will. . . as the result of undue influence,” that the “evidence only indicated mere

speculation or a bare suspicion that undue influence had been exercised,” and that there



                                            7
“was no evidence presented that [Antonia] did not prosecute the probate of the will in

good faith.” The order granted a new trial “based on the findings herein and in the interest

of justice.” The order contained no additional rationales or explanation for the trial court’s

determination to grant a new trial.

       As an initial matter, we examine whether or not the trial court’s order meets the

threshold requirements established by the Texas Supreme Court for orders granting new

trials. See In re United Scaffolding, Inc., 377 S.W.3d at 688–89. First, we determine

whether the trial court’s stated reason for granting the new trial is a reason for which a

new trial is legally appropriate, such as a well-defined legal standard. See id. Insofar as

the trial court’s order states that the new trial was granted “in the interest of justice,” the

supreme court has directed us that “[b]road statements such as ‘in the interest of justice’

are not sufficiently specific.” In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P.,

290 S.W.3d at 215. However, the trial court’s order also recites that the verdict was

“against the great weight and preponderance of the credible evidence,” which is a legally

sound reason to grant a new trial. See In re United Scaffolding, Inc., 377 S.W.3d at 688–

89. Specifically, a finding that a verdict is contrary to the great weight and preponderance

of the evidence can support a new trial order. See id. at 689 (“[A]n order granting a new

trial may amount to a clear abuse of discretion if the given reason, specific or not, is not

one for which a new trial is legally valid.”); see also, e.g., Sanders v. Harder, 227 S.W.2d

206, 209–10 (Tex. 1950) (“In ordinary civil cases trial courts . . . may set aside jury verdicts

and grant new trials when, in their opinion, those findings, though based upon some

evidence, are against the great weight and preponderance of the evidence.”).

Accordingly, the trial court’s order meets the first requirement for orders granting new



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trials.

          Second, we determine whether the trial court’s stated reasons for granting the new

trial are specific enough to indicate that the trial court derived the articulated reasons from

the particular facts and circumstances of the case at hand. See In re United Scaffolding,

Inc., 377 S.W.3d at 688–89. While the trial court need not provide “a detailed catalog of

the evidence” to ensure that it was not merely substituting its judgment for that of the

jury’s, the new trial order must provide “a cogent and reasonably specific explanation of

the reasoning that led the court to conclude that a new trial was warranted.” Id. The

Texas Supreme Court has directed us as follows:

                 [M]andamus may lie if the order, though rubber-stamped with a valid
          new-trial rationale, provides little or no insight into the judge’s reasoning.
          Usually, the mere recitation of a legal standard, such as a statement that a
          finding is against the great weight and preponderance of the evidence, will
          not suffice. The order must indicate that the trial judge considered the
          specific facts and circumstances of the case at hand and explain how the
          evidence (or lack of evidence) undermines the jury’s findings. A trial court
          abuses its discretion if its new-trial order provides no more than a pro forma
          template rather than the trial judge’s analysis. This two-part test adequately
          ensures that jury verdicts are not overturned without specific and proper
          reasons, while still maintaining trial courts’ discretion in granting new trials.

Id. at 689. In the instant case, the new trial order states that the jury’s findings regarding

testamentary capacity, undue influence, and good faith were against the great weight and

preponderance of the evidence. Under the United Scaffolding analysis, this constitutes

a recitation of a legal standard and will not suffice to meet the specificity requirement

established by the supreme court. Id. The new trial order further states that the “evidence

from the witnesses showed overwhelmingly” that Everett possessed testamentary

capacity, that there was “insufficient evidence” to show that Everett signed the will as the

result of undue influence, that the “evidence only indicated mere speculation or a bare



                                                 9
suspicion that undue influence had been exercised,” and that there was “no evidence”

presented showing that Antonia did not prosecute the probate of the will in good faith.

       In the instant case, the new trial order, while providing a general rationale for the

trial court’s ruling, does not expressly illustrate that the trial judge considered the specific

facts and circumstances of the case at hand. Id. Although the new trial order recites that

the evidence, or lack of evidence, undermines the jury’s findings, the order does not

actually discuss the evidence itself, reference any specific facts, evidence, or testimony,

or explain how any particular facts, evidence, or testimony undermines the jury’s findings.

Id.   A new trial order must “elaborate, with reference to the evidence adduced at trial,

how the jury’s answers are contrary to the great weight and preponderance of the

evidence.” Id.; see, e.g., In re United Servs. Auto. Ass'n, No. 01-13-00508-CV, 2014 WL

4109756, at **8–16 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, orig. proceeding)

(examining the specificity and legal soundness of five different bases for a new trial order).

Under the analysis mandated by the Texas Supreme Court, the trial court’s stated

reasons for granting a new trial were not sufficiently specific, and thus the order granting

a new trial constituted an abuse of discretion. See In re United Scaffolding, Inc., 301

S.W.3d at 662; In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at

213. Accordingly, we sustain Adkin’s first issue. Having sustained Adkins’s first issue,

we need not reach his remaining issue pertaining to the merits of the trial court’s

articulated reasons for granting a new trial. See TEX. R. APP. P. 47.1, 47.4; In re Toyota

Motor Sales, U.S.A., Inc., 407 S.W.3d at 755–59; In re Whataburger Restaurants LP, 429

S.W.3d at 598; In re Health Care Unlimited, Inc., 429 S.W.3d at 602.




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                                      V. CONCLUSION

       Adkins requests that we issue a writ of mandamus directing the trial court to: (1)

withdraw the order granting new trial; and (2) enter judgment in favor of Adkins. Because

we agree with Adkins that the trial court’s order granting a new trial does not conform with

the procedural requirements set forth by the Texas Supreme Court, we conditionally grant

mandamus relief and direct the trial court to amend its order granting a new trial to more

specifically set out the reasons for which it set aside the jury verdict and granted a new

trial. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 206,

215; see also In re United Scaffolding, Inc., 377 S.W.3d at 686, 690.

       However, Adkins asks us not only to order the trial court to vacate its new trial

order, but also to order the trial court to enter judgment on the verdict. An order directing

the trial court to enter judgment on the verdict is not appropriate where the trial court does

not state its reasons for granting a new trial, or if the reasons given are unclear, because

there may be legitimate reasons for a new trial that are simply not clear to the appellate

court. See, e.g., In re United Scaffolding, Inc., 377 S.W.3d at 690 (trial court was not

required to enter judgment on the verdict when use of “and/or” and other ambiguities

made trial court’s reasoning unclear); In re Columbia Med. Ctr. of Las Colinas, Subsidiary,

L.P., 290 S.W.3d at 214 (declining to order judgment on the verdict when trial court had

not stated grounds for new trial order); see also In re City of Houston, 418 S.W.3d 388,

397–98 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (rendering judgment on

the verdict where the trial court specified invalid reasons for granting the new trial). Thus,

we deny the petition for writ of mandamus to the extent that Adkins seeks to have

judgment rendered on the jury verdict.       We direct the trial court to issue an order



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specifying its reasons for ordering a new trial within thirty days. A writ will issue only in

the event the trial court fails to comply.


                                                  GREGORY T. PERKES
                                                  JUSTICE

Delivered and filed the
8th day of October, 2014.




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