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

                    DISSENTING                  OPINION


      My colleagues hold that whenever a relator seeks a merits-based mandamus
review of any order granting a new trial based on the factual insufficiency of the
evidence, the relator must file “all of the trial evidence.” Ante, at 3. If the relator
does not, its petition will be denied “without prejudice” to briefing the entire
mandamus proceeding all over again based on the complete record. Id. at 7.
Because this waste of judicial and party resources is not supported by either rule or
precedent, I respectfully dissent.

      Real party in interest American Surgical Assistants, Inc. (ASA) sued relators
Mark Athans, Omar Martinez, and Prestige Surgical Assistants, LLC for causes of
action including breach of fiduciary duty and aiding and abetting such a breach. At
trial, the jury failed to find a breach and thus did not answer the question regarding
aiding-and-abetting liability. The trial court granted ASA a new trial on three
grounds: (1) the jury’s “No” answers to the breach of fiduciary duty questions were
against the great weight and preponderance of the evidence; (2) the jury should
have been instructed on the meaning of the term “solicit” in the charge, which is a
question of law; and (3) defense counsel violated the trial court’s instructions not
to discuss the details of the evidence or argue the case at the voir dire stage.

      In support of their mandamus petition challenging this order, relators filed a
record that included a reporter’s record of all trial proceedings but omitted the
exhibits that were admitted into evidence at trial. Relators and ASA also filed a
lengthy petition, response, and reply that addressed the merits of whether the jury’s
failures to find a breach of fiduciary duty were against the great weight and
preponderance of the evidence. Each of these filings included extensive citations
to the reporter’s record of the trial. At no time did any party identify any particular
exhibit that it contended was relevant or material to the question whether the jury’s
verdict on breach of fiduciary duty was against the great weight and preponderance
of the evidence. Rather, ASA simply argued that without the entire trial record,
this Court cannot determine whether the trial court’s holding regarding the great
weight and preponderance of the evidence is incorrect.

      This argument is contrary to our rules governing mandamus records. In the
mandamus context, courts do not presume that missing portions of a record support

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the trial court’s order. Progressive Ins. Cos. v. Hartman, 788 S.W.2d 424, 427
(Tex. App.—Dallas 1990, orig. proceeding) (Baker, J.); see also In re 24R, Inc.,
324 S.W.3d 564, 568 (Tex. 2010) (per curiam) (orig. proceeding) (holding
“without merit” an argument that the relator had “waived its right to mandamus
relief because it did not file a complete transcript from proceedings in the trial
court”). Rather, a relator is required to file only “document[s] . . . material to the
relator’s claim for relief” and “a properly authenticated transcript of any relevant
testimony from any underlying proceeding, including any exhibits offered in
evidence.” Tex. R. App. P. 52.7(a) (emphasis added). Here, there is no indication
that any particular missing exhibit is either relevant or material in determining
whether the jury’s findings on breach of fiduciary duty are against the great weight
and preponderance of the evidence.

       Accordingly, the only possible basis for this Court’s denial of relators’
mandamus petition is the general notion that the complete record must always be
relevant in conducting a merits-based mandamus review of a new trial order. But
that very notion recently failed to carry the day in the Supreme Court of Texas. In
In re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (orig. proceeding)
(per curiam), the court considered a mandamus petition challenging an order
granting new trial based on a juror’s failure to disclose information during voir
dire. In briefing the case, the real party in interest correctly pointed out that the
rules require a review of the whole record to determine whether juror misconduct
warrants a new trial, see Tex. R. Civ. P. 327, and it argued that the mandamus
petition must be denied because the court did not have the entire record of the trial
before it.1 The relator did not dispute that the whole record had not been filed,
arguing instead that the missing portions were not relevant under Rule 52.7(a) and
       1
        See Real Parties’ Br. on Merits at vii–ix, 3–4, In re Whataburger Restaurants LP, 429
S.W.3d 597 (Tex. 2014) (No. 11–0037), 2011 WL 8584401.

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that the real party had not identified any item omitted from the record that
supported the order. 2 The supreme court did not deny the petition based on an
insufficient record. Instead, without expressly addressing the record issue, the
court examined the record that was before it and granted the petition after
concluding that “we find no evidence that [the juror’s] failure to disclose that she
was a defendant in prior lawsuits probably caused [the plaintiff] injury.” In re
Whataburger Restaurants LP, 429 S.W.3d at 599.

       This result is sound because it is consistent with the mandamus rules’ refusal
to presume that a missing item supports the order, and it recognizes that the parties
can most efficiently determine whether all items relevant and material to a
mandamus petition are before the appellate court. Unlike in an ordinary appeal, a
relator files both its mandamus petition and record at the very beginning of the
proceeding. See Tex. R. App. P. 52.1, 52.7(a). The real party, having lived with
the case and reviewed the particular arguments raised in the relator’s petition, will
certainly be in a better position than the appellate court to determine whether a
relevant or material item has been omitted from the record.               In this way, a
mandamus petition is analogous to a partial-record appeal, in which the appellant
files an early statement of the issues presented and requests a partial reporter’s
record addressing those issues, while other parties may designate additions to that
record. See Tex. R. App. P. 34.6(c). If the real party in a mandamus proceeding
believes a relevant or material item has been omitted from the record, it may either
explain why the omitted item is relevant or material, or it may supplement the
record to include the omitted item. See Tex. R. App. P. 52.7(a), (b). But if—as
here—it chooses to do neither, it may not complain if the court proceeds to decide
the petition on the existing record.
       2
        Relator’s Reply Br. on Merits at 10–11, In re Whataburger Restaurants LP, 429 S.W.3d
597 (Tex. 2014) (No. 11–0037), 2011 WL 8584402.

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      Under this interpretation of the mandamus rules, relator’s record is
sufficient. As our Court recently recognized, “there is no defect with relator’s
record that affects our consideration of [his] petition” when the real party “does not
argue . . . [missing] documents establish any material facts not otherwise admitted
by the parties . . . .” In re Stern, 436 S.W.3d 41, 45 n.1 (Tex. App.—Houston
[14th Dist.] 2014, orig. proceeding). Here, ASA does not argue that the missing
exhibits establish any relevant or material facts beyond those discussed by the
witnesses at trial or otherwise contained in the record before us. Moreover, the
trial court’s order granting a new trial on three grounds suggests that any missing
exhibits are not relevant or material to our review of any of the grounds. To
support its holding that the jury’s verdict on breach of fiduciary duty was against
the great weight and preponderance of the evidence, the trial court pointed
specifically to “[t]he testimony of witnesses Mark Athans, Monica Ellington, Omar
Martinez, and Eleazar Flores”—all of which is in the record before us. As to
whether the lack of a definition of the term “solicit” confused the jury, the trial
court noted the different definitions “argued to the jury during closing argument,” a
transcript of which appears in the mandamus record. Finally, the trial court held
that defense counsel violated the court’s instructions at the voir dire stage, and our
record likewise contains a transcript of the voir dire.

      The majority opinion argues that under Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402, 406–07 (Tex. 1998), “relators must provide” and “we must
consider . . . all of the trial evidence” in reviewing a trial court’s factual
insufficiency ruling. Ante, at 3, 5. To the contrary, the appellate rules dictate the
extent of the record that parties must provide and courts must consider. In the
context of a partial-record appeal, for example, “an appellant need not file a
complete reporter’s record to preserve legal or factual sufficiency issues.” Bennett


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v. Cochran, 96 S.W.3d 227, 228 (Tex. 2002) (per curiam) (citing Tex. R. App. P.
34.6(c)(4)). This conclusion is consistent with common experience: in many cases,
substantial portions of the trial court proceedings will not be relevant to a particular
issue on which the factual sufficiency of the evidence is challenged, and it would
be a waste of resources to include these irrelevant portions in the record. Given
this reality, as well as the supreme court’s consistent mandate to interpret our rules
in a common-sense manner that furthers resolution of cases on the merits, 3 we
should not interpret the relevance and materiality requirements of Rule 52.7 to
require relators to file a complete trial record in every single case in which a new
trial has been granted based on factual insufficiency of the evidence.

       For these reasons, we should decide this petition on the merits, not deny it
based on an insufficient record. Our recent decision in In re Wyatt Field Service
Co., No. 14–13–00811–CV, 2013 WL 6506749 (Tex. App.—Houston [14th Dist.]
Dec. 10, 2013, orig. proceeding), is not to the contrary. There, we applied Texas
Rule of Appellate Procedure 52.7 to the facts of the case and concluded that
because the mandamus record “does not include the testimony of all the witnesses,
any of the trial exhibits, or opening and closing arguments,” we could not
determine whether the trial court abused its discretion in granting a new trial on the
particular grounds it did. Id. at *3. The record and grounds are different in the
case before us, and there is no basis for concluding that any item missing from our
record is relevant or material to our review of the new trial grounds as explained
above. Moreover, we did not adopt a blanket holding in Wyatt—as my colleagues
do here—that it is always necessary to have a complete trial record to conduct a

       3
          E.g., Thota v. Young, 366 S.W.3d 678, 690 (Tex. 2012) (“[W]e have long favored a
common sense application of our procedural rules that serves the purpose of the rules, rather than
a technical application that rigidly promotes form over substance.”); Bennett, 96 S.W.3d at 230
(“Our appellate rules are designed to further the resolution of appeals on the merits,” and “[w]e
will interpret these rules, when possible, to achieve that aim.”).

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merits-based review of an order granting a new trial based on the factual
insufficiency of the evidence. See ante, at 3. Because I conclude that this holding
is not supported by rules, precedent, or sound policy, I respectfully dissent.




                                 /s/          J. Brett Busby
                                              Justice

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




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