Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed February 13, 2015.




                                       In The

                     Fourteenth Court of Appeals

                                 NO. 14-14-00699-CV

       IN RE MARK ATHANS, OMAR MARTINEZ, AND PRESTIGE
               SURGICAL ASSISTANTS, LLC, Relators


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               80th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2013-05129

                       MAJORITY OPINION
      Relators Mark Athans, Omar Martinez, and Prestige Surgical Assistants,
LLC filed a petition for writ of mandamus in this court. In the petition, relators ask
this court to compel the respondent, the Honorable Larry Weiman, presiding judge
of the 80th District Court of Harris County, to vacate an order granting a motion
for new trial filed by real party in interest American Surgical Assistants, Inc. We
deny the petition.
                          Burden to Provide a Sufficient Record

      Relators bear the burden of demonstrating their entitlement to mandamus
relief. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding). This burden includes providing this court with a record sufficient to
make that showing. See Walker, 827 S.W.2d at 837 (stating that it is
relator’s burden to provide a record sufficient to establish her entitlement to
mandamus relief); In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th
Dist.] 2011, orig. proceeding) (stating that “[t]hose seeking the extraordinary
remedy of mandamus must follow the applicable procedural rules. Chief among
these is the critical obligation to provide the reviewing court with a complete and
adequate record.”) (footnote omitted). Relators have failed to satisfy this
requirement.

      In support of their mandamus petition, relators provided this court with
various documents, including the reporter’s record of the trial proceedings (without
any exhibits), the jury charge, the real party’s motion for new trial, and the
reporter’s record of the trial court’s hearing on the real party’s motion for new trial.
Relators, however, did not include any exhibits admitted into evidence during the
trial. Relators argue that this omission does not render the mandamus record
inadequate or insufficient. We disagree.

      The Supreme Court of Texas recently held that an appellate court “may
conduct,” in the context of a mandamus proceeding, “a merits review of the bases
for a new trial order after a trial court has set aside a jury verdict.” In re Toyota
Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding)
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(emphasis added); see also id. at 755–62. The purpose of such a review is to
determine the “correctness or validity” of the trial court’s articulated reasons for
granting a new trial. Id. at 758.

                             Necessity of a Complete Record

       To rule on a party’s request for a new trial that is based upon the factual
insufficiency of the evidence, the trial court must consider and weigh all of the trial
evidence and determine whether the challenged fact finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). The
respondent concluded that the jury’s answers in response to question one were so
against the great weight and preponderance of the evidence as to be manifestly
unjust. To review this ruling, we must consider, as we presume the respondent did,
all of the trial evidence. 1 See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at

1
  Our dissenting colleague has reviewed the Supreme Court of Texas briefs in In re Whataburger
Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (orig. proceeding) (per curiam), and he suggests
that, in that case, the Supreme Court of Texas implicitly rejected the notion that the complete
record must always be relevant in conducting a merits-based mandamus review of a new-trial
order. See post at pp. 3–4. Today, we do not address whether the complete record must always
be relevant in conducting a merits-based mandamus review of a new-trial order. Even presuming
that the parties in In re Whataburger asserted that the mandamus record was incomplete, the
record in that case may have been complete notwithstanding these assertions. Furthermore, the
In re Whataburger court neither mentioned these assertions nor addressed whether the record
was complete; therefore, the high court did not reject any notion regarding the need for a
complete record, either expressly or implicitly. See Texas v. Cobb, 532 U.S. 162, 169, 121 S. Ct.
1335, 1341, 149 L.Ed.2d 321 (2001) (concluding that an appellate court’s view regarding an
issue cannot be implied from a prior case in which the court did not address the issue in its
opinion); Waters v. Churchill, 511 U.S. 661, 678, 114 S.Ct. 1878, 1889, 128 L.Ed.2d 686
(1994) (stating that “cases cannot be read as foreclosing an argument that they never dealt
with”). This court cannot go behind the opinion of the In re Whataburger court in an effort to
discern the high court’s views on an issue that it did not mention in its opinion. See Employers
Cas. Co. v. Nat’l Bank of Commerce, 166 S.W.2d 691, 692 (Tex. 1942) (stating that court would
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758 (“If . . . a trial court’s articulated reasons are not supported by the underlying
record, the new trial order cannot stand.”), 759–60 (noting the court had
undertaken a “cumbersome review” of the multi-volume trial record) (internal
quotations omitted); In re Wyatt Field Serv. Co., No. 14-13-00811-CV, 2013 WL
6506749, at *3 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, orig. proceeding)
(mem. op., per curiam) (concluding that court could not review on mandamus grant
of new trial based on factual insufficiency point without a complete record of the
trial).2 Today, relators ask us to base our ruling on less.

       To review on appeal the trial court’s conclusion that the evidence is factually
insufficient to support a challenged fact finding, this court must have the entire
reporter’s record. Nonetheless, if an appellant substantially complies with Texas
Rule of Appellate Procedure 34.6(c), then the appellate court will presume that the


not go behind the opinion of an appellate court to determine the facts on which the court based
its opinion); Dockum v. Mercury Ins. Co., 135 S.W.2d 700, 700–01 (Tex. 1940) (holding that
court would not go behind the opinion of an appellate court to determine the facts on which the
court based its opinion). See also Cicairos v. Summit Logistics, Inc., 35 Cal.Rptr.3d 243, 248–9
(Cal. Ct. App. 2005) (holding that courts cannot “peek” behind the text of an appellate court’s
opinion to consider matters in the record not mentioned in the opinion in an effort to enlarge the
meaning of the opinion). Therefore, any issue as to whether the parties made these arguments in
In re Whataburger or whether the record in that case was complete is not relevant to the
adjudication of today’s case. See Employers Cas. Co., 166 S.W.2d at 692; Dockum, 135 S.W.2d
at 700–01; Cicairos, 35 Cal.Rptr.3d at 248–9. Accordingly, we have not reviewed the briefs or
the record in In re Whataburger.
2
  Our dissenting colleague states that the appellate rules, rather than cases, tell us whether we
must consider all of the trial evidence in reviewing a trial court’s ruling on a request for new trial
that is based upon the factual insufficiency of the evidence. See post at 5–6. Nonetheless,
applicable precedent is the source of the rules that (1) to review this type of ruling, we must
consider all of the trial evidence, and (2) in a mandamus proceeding, relators have the burden of
providing a record sufficient to establish their entitlement to mandamus relief. See Maritime
Overseas Corp., 971 S.W.2d at 406–07; In re Wyatt Field Serv. Co., 2013 WL 6506749, at *3; In
re Le, 335 S.W.3d at 813.
                                                  4
partial reporter’s record constitutes the entire record for the purpose of reviewing
the points or issues listed in the appellant’s statement of points or issues, including
issues regarding the alleged factual insufficiency of the evidence.3 See Tex. R.
App. P. 34.6(c); Bennett v. Cochran, 96 S.W.3d 227, 228–30 (Tex. 2002). But, if
the appellant completely fails to file a statement of points or issues, an appellate
court must presume that the omitted portions of the record are relevant to the
disposition of the appeal and that they support the trial court’s ruling. See Bennett,
96 S.W.3d at 229–30; Burns v. Mullin, No. 14-12-00966-CV, 2013 WL 5631031,
at *1–2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013, no pet.) (mem. op). Rule
34.6(c) does not apply to mandamus proceedings, and Rule 52 does not contain
any provision analogous to Rule 34.6(c). See Tex. R. App. P. 34.6, 52. Given
relators’ burden to provide this court with a record establishing that the respondent
abused his discretion in granting a new trial based on the factual-insufficiency
issue and given the absence of any rule analogous to Rule 34.6(c), relators must
provide this court with a mandamus record of all of the trial evidence before this
court may determine whether the respondent abused his discretion in concluding
that the trial evidence is factually insufficient. 4 See In re Toyota Motor Sales,

3
  Under this presumption, the appellate court is still complying with any applicable precedent
requiring consideration of all the trial evidence because the appellate court presumes that the
evidence contained in the record constitutes all of the trial evidence. See Tex. R. App. P.
34.6(c); Bennett v. Cochran, 96 S.W.3d 227, 228–30 (Tex. 2002).
4
  Presuming for the sake of argument that, in a mandamus proceeding, this court does not
presume that the missing portions of a record support the respondent’s order, this court does
require that a relator provide this court with a record sufficient to establish the relator’s
entitlement to mandamus relief. See Walker, 827 S.W.2d at 837; In re Le, 335 S.W.3d at 813.
Though a record containing less than all of the trial evidence might be sufficient to establish the
relator’s entitlement to mandamus relief as to rulings on certain issues, such a record is not
sufficient to show that a respondent abused his discretion in concluding that the trial evidence is
factually insufficient to support one or more jury findings. See Maritime Overseas Corp., 971
                                                5
U.S.A., Inc., 407 S.W.3d at 758; Maritime Overseas Corp., 971 S.W.2d at 406–07;
In re Wyatt Field Serv. Co., 2013 WL 6506749, at *3. See also In re Le, 335
S.W.3d at 813, 814 (stating that “[t]his court cannot make a sound decision based
on an incomplete picture” and that “[i]n the final analysis, this court cannot and
will not find an abuse of discretion on an incomplete record.”). Relators have not
provided a record of all of the trial evidence.

            Relators’ Failure to Provide a Sufficient Mandamus Record

       Under Texas Rule of Appellate Procedure 52.7, the relators must file with
their mandamus petition a certified or sworn copy of every document material to
their claim for relief that was filed in the underlying proceeding and a properly
authenticated transcript of any relevant testimony from any underlying proceeding,
including any exhibits offered into evidence. See Tex. R. App. P. 52.7. The trial
exhibits are documents material to relators’ claim that the respondent abused his
discretion in granting a new trial on the basis that the trial evidence is factually
insufficient. See id.; Maritime Overseas Corp., 971 S.W.2d at 406–07; In re Wyatt
Field Serv. Co., 2013 WL 6506749, at *3; In re Le, 335 S.W.3d at 814. In addition,
though relators have included in the mandamus record a properly authenticated
transcript of the relevant testimony from trial—all of the testimonyrelators have
failed to comply with Rule 52.7’s requirement that they include in the record the
exhibits offered in evidence. 5 See Tex. R. App. P. 52.7.


S.W.2d at 406–07; In re Wyatt Field Serv. Co., 2013 WL 6506749, *3; In re Le, 335 S.W.3d at
814.
5
  Our dissenting colleague cites In re Stern. See 436 S.W.3d 41, 45 n.1 (Tex. App.—Houston
[14th Dist.] 2014, orig. proceeding). The In re Stern case involved objections by the real parties
in interest that some exhibits from a hearing were not included in the mandamus record and that
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       Presuming, without deciding, that this court may review on mandamus the
other two grounds articulated by the respondent for granting a new trial without a
record containing all of the trial evidence, relators are not entitled to mandamus
relief unless and until they show that the respondent abused his discretion in
granting a new trial as to each independent ground for granting the new trial.
Because one of these grounds is factual insufficiency and because the record does
not contain all of the trial evidence, relators have failed to establish their
entitlement to mandamus relief.

                                           Conclusion

       Relators’ petition for writ of mandamus is denied, without prejudice to
relators’ filing a new mandamus petition concerning the respondent’s order
granting a new trial that is supported by the complete trial record. The stay granted
on September 9, 2014, is lifted.




                                               /s/       Kem Thompson Frost
                                                         Chief Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby (Busby,
J., dissenting).




other documents were included improperly. See id. Today’s proceeding does not involve any
issue of documents being included in the mandamus record improperly, and the Stern court noted
that all of the allegedly omitted documents were contained somewhere in the mandamus record,
if not directly in the hearing transcript. See id. Thus, the In re Stern case is not on point. See id.
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