                                         In The

                                  Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-19-00073-CV
                                __________________

IN RE ALLEN L. PANTALION AND JOSEPH P. ETHERIDGE D/B/A J&G
         TRUCKING D/B/A J&G LOGGING CONTRACTORS
__________________________________________________________________

                           Original Proceeding
               1st District Court of Jasper County, Texas
                          Trial Cause No. 35354
__________________________________________________________________

                                       OPINION

      In this original proceeding, relators Allen L. Pantalion and Joseph P.

Etheridge d/b/a J&G Trucking d/b/a J&G Logging Contractors seek a writ of

mandamus ordering the trial court to vacate its orders granting the motion for new

trial filed by the plaintiff in the underlying case, real party in interest Carol Brasher.

The jury found Brasher’s sole negligence proximately caused the motor vehicle

accident made the basis of the underlying lawsuit and found Pantalion not negligent.

The trial court sustained Brasher’s challenge to the sufficiency of the evidence for

the jury’s verdict without explanation, then amended the order after Relators filed
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the mandamus petition. Relators argue that the trial court abused its discretion when

it granted the motion for new trial despite there being factually and legally sufficient

evidence to support the jury’s verdict. We conditionally grant relief.

      No court is free to simply substitute its judgment for that of the jury. In re

Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex.

2009) (orig. proceeding). “To be facially valid, a new-trial order based on a factual-

sufficiency review ‘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.’” In re Bent, 487 S.W.3d 170, 176 (Tex.

2016) (orig. proceeding) (quoting In re United Scaffolding, Inc., 377 S.W.3d 685,

689 (Tex. 2012)). “If the record does not support the trial court’s rationale for

ordering a new trial, the appellate court may grant mandamus relief.” In re Toyota

Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding). “If,

despite conformity with the procedural requirements of our precedent, a trial court’s

articulated reasons are not supported by the underlying record, the new trial order

cannot stand.” Id. at 758.

      When the trial court grants a new trial because the jury’s finding was against

the great weight and preponderance of the evidence, we review the entire trial record

to determine, using a factual sufficiency standard, whether the record supports the

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trial court’s reasoning. In re E.I duPont de Nemours and Company, 463 S.W.3d 80,

85 (Tex. App.—Beaumont 2015, orig. proceeding). The trial court abused its

discretion in granting a new trial if the record does not support its stated reasons. Id.

“The amount of evidence necessary to support the jury’s verdict is far less than that

necessary to warrant disregarding the jury’s verdict.” In re Zimmer, Inc., 451 S.W.3d

893, 906 (Tex. App.—Dallas 2014, orig. proceeding). “Evidence is factually

sufficient to support the jury’s verdict if the evidence is such that reasonable minds

could differ on the meaning of the evidence or the inferences and conclusions to be

drawn therefrom.” Id.

      The evidence at trial relevant to the jury’s findings on negligence included

live testimony from Brasher and the investigating officer, and video deposition

testimony from Pantalion. Pantalion testified that he first noticed Brasher in his rear-

view mirror, at about the rear of his truck in the inside lane. She then passed him on

the left. Pantalion claimed he was approximately 200 yards from the stop light when

he saw the light change. Pantalion said he was driving the speed limit, which he

believed was 35 miles per hour. According to Pantalion, Brasher moved into the

right lane when “I was right on her[]” and stopped such a short distance in front of

him that he could not react in time to stop his 83,000-pound loaded Mack truck.

According to Pantalion, “It happened so fast, whenever she turned in front of me

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there like that and then pulled there to the light to stop, that’s when I hit her.” He

denied telling the officer that he had not been paying attention. Additionally,

Pantalion denied Brasher’s claim that she occupied the right-hand lane for most of a

cycle of the red-light before the collision occurred.

      Brasher testified before the jury that she was in the left-hand lane as she

approached the intersection. She moved from the left lane to the right lane because

she was going to make a right turn some distance past the intersection. Brasher

claimed that she stopped in the right-hand lane at the intersection during the yellow

caution light and remained there after the light turned red. Brasher did not notice

Pantalion’s vehicle until he struck her Tahoe. Brasher stated, “I wasn’t paying

attention to what was behind me because whenever I changed lanes, there was

nothing behind me.” Brasher stated a 50 miles-per-hour speed limit applied until the

intersection. According to Brasher, neither vehicle left skid marks in the straight-on

collision.

      Officer James Stephen Hopson, who had previously worked as a truck driver,

investigated the accident in his capacity as a Jasper police officer. In his opinion the

accident occurred due to inattention by Pantalion. He based his opinion on the

location of the vehicles and the impact damage to Brasher’s vehicle. Brasher’s

vehicle stopped at the intersection, and Pantalion’s log truck made a concentrated

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hit where the front of his vehicle contacted the rear of her vehicle. Officer Hopson

did not witness the accident. He agreed that he did not know how long Brasher had

been in the outside lane and at the intersection when the accident occurred. Officer

Hopson agreed that the concentrated hit on Brasher’s vehicle could have occurred

whether she had been there for one second or for two minutes. A photograph of the

rear of Brasher’s Tahoe showed damage across the rear and to the right side of the

tailgate and rear bumper. According to Officer Hopson, the speed limit changes from

50 miles-per-hour to 40 miles-per-hour at the intersection.

      The trial court’s amended order sustained Brasher’s challenge to the legal and

factual sufficiency of the evidence for the jury’s verdict. In the amended order, the

trial court stated that it granted Brasher’s motion for new trial because

      the finding of the jury was against the great weight of the evidence as
      the evidence supporting Defendant was so lacking as to make the result
      fundamentally unfair and manifestly unjust. Several witnesses testified
      and through this testimony it was evident that the defendant, Mr.
      Pantalion, was inattentive and his negligence was the proximate cause
      of the accident. Specifically, the testimony of Deputy James Hopson, a
      law enforcement officer and former truck driver, showed that the
      impact of the log truck on Plaintiff’s vehicle was due to Defendant’s
      inattention and corroborated Plaintiff’s version of the event. The only
      evidence Defendant offered in support of his account of the collision
      was his own testimony that Plaintiff was in fact at fault. The evidence
      to support Defendant’s bald assertions was so weak as to make the
      Jury’s finding clearly wrong and manifestly unjust.

      Further, Defendant’s testimony, measured against the testimony
      corroborating Plaintiff’s account of the accident, created no more than
                                         5
      a mere surmise or suspicion, and could not prove the truth of this
      allegation. It was no more than a scintilla of evidence, and is not legally
      sufficient.

      The new-trial order omits evidence the jury reasonably could have credited in

support of its determination of negligence. Brasher testified that until the impact

occurred, she was unaware of the presence of Pantalion’s vehicle on the roadway.

Therefore, her testimony could give rise to an inference that Pantalion was well

behind her when she changed lanes and stopped, but she could provide no

information concerning Pantalion’s behavior before the accident. The primary

distinction between Brasher’s version and Pantalion’s is Pantalion testified that he

observed Brasher as she passed him on the left, and he suggested that she moved

into his lane and stopped suddenly before he could stop his loaded eighteen-wheeler.

      Officer Hopson corroborated Brasher’s testimony regarding the speed limit

where the accident occurred. There was, however, no evidence that Pantalion

exceeded the posted speed limit. While Officer Hopson’s report stated both drivers

were travelling westbound, both drivers agreed they were travelling eastbound.

Officer Hopson deduced from the location of and damage to the vehicles that

Pantalion’s log truck hit the back of Brasher’s Tahoe squarely, which would be

consistent with and supports both Pantalion’s and Brasher’s versions of the event.

Officer Hopson could not determine how much time elapsed from the time Brasher

                                          6
changed lanes until Pantalion hit the rear of her vehicle. Officer Hopson expressed

to the jury his opinion that the fact that the impact was a concentrated hit indicated

that Pantalion’s inattention caused the accident, but if the jury believed Pantalion

when he claimed that he observed Brasher change lanes and stop when she was too

close to him for him to be able to stop, it could reasonably reject Officer Hopson’s

opinion that it was Pantalion’s inattention that caused the accident. Furthermore,

Pantalion’s description of Brasher’s lane change and stop provide specific facts from

which a reasonable jury could decide that Brasher changed lanes in an unsafe manner

and that her actions were the sole cause of the accident or that it was an unavoidable

accident.1

      The trial court ruled that Pantalion’s testimony, measured against the

testimony corroborating Brasher’s testimony, “created no more than a mere surmise

or suspicion, and could not prove the truth of this allegation.” Generally, a claim that

there is no evidence will be sustained when there is a complete absence of evidence

of a vital fact, the court is barred by rules of law or evidence from giving weight to

the only evidence offered to prove a vital fact, the evidence offered to prove a vital


      1
         See generally Tex. Transp. Code Ann. § 545.060(a) (West 2011) (“An
operator on a roadway divided into two or more clearly marked lanes for traffic: (1)
shall drive as nearly as practical entirely within a single lane; and (2) may not move
from the lane unless that movement can be made safely.”).

                                           7
fact is no more than a mere scintilla, or the evidence conclusively established the

opposite of a vital fact. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003) (discussing no-evidence motion for summary judgment).

      The trial court’s reasoning is not supported by the record. Although the trial

court reasoned that Pantalion provided a bare assertion that Brasher was at fault,

Pantalion explained for the jury how he could not avoid the accident and how

Brasher caused the accident. Pantalion disputed Brasher’s claim that she had been

sitting at the stop light when the accident occurred. He stated that he started slowing

down when the light changed as he approached the intersection. He claimed Brasher

moved into his lane and suddenly stopped when he was right on her and, he could

not stop before he struck her vehicle with his bumper. Brasher claimed no other

vehicle was present when she changed lanes and that she sat through the yellow and

for most of the light’s red cycle before Pantalion hit her. Officer Hopson’s testimony,

which included an observation that the vehicles experienced a concentrated hit,

neither conclusively established that Brasher’s testimony was true nor that

Pantalion’s testimony was false. The trial court’s discretion to grant a new trial does

not permit the trial court to substitute its own views for that of the jury without a

valid basis. Columbia, 290 S.W.3d at 212. By substituting its judgment regarding



                                          8
the credibility of the witnesses for the jury’s, the trial court abused its discretion. See

United Scaffolding, 377 S.W.3d at 685.

       The trial court’s reason for granting Brasher’s motion for a new trial is not

supported by the record. Therefore, the trial court clearly abused its discretion by

granting a new trial. See Toyota Motor Sales, 407 S.W.3d at 758. We conditionally

grant mandamus relief. We are confident that the trial court will vacate its order

granting a new trial and sign a judgment on the jury’s verdict. The writ shall issue

only in the event the trial court fails to do so.

       PETITION CONDITIONALLY GRANTED.

                                                              PER CURIAM

Submitted on April 1, 2019
Opinion Delivered May 16, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.




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