                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                     No. 06-19-00087-CV



                               IN RE WILLIAM R. NORTON




                                Original Mandamus Proceeding




                         Before Stevens, Carter,* and Moseley,** JJ.
                                 Opinion by Justice Stevens
                           Concurring Opinion by Justice Carter*


___________________________

*Jack Carter, Justice, Retired, Sitting by Assignment
**Bailey C. Moseley, Justice, Retired, Sitting by Assignment
                                        OPINION
       Lasagna Vaughn sued William R. Norton for injuries allegedly caused in a motor vehicle

collision. A Bowie County jury found that Norton’s negligence proximately caused the collision

and awarded Vaughn $21,886.00 in past physical pain and mental anguish and $23,114.00 in past

medical expenses. Even so, the jury awarded no damages for past lost wages, loss of earning

capacity, or past physical impairment. In early June 2019, the trial court entered judgment on the

jury verdict. Shortly thereafter, the trial court granted Vaughn’s motion for new trial.

       As a result, Norton petitioned for a writ of mandamus claiming that (1) the trial court

abused its discretion in granting a motion for new trial because “the stated rationale for vacating

the jury’s verdict failed to comport with the trial record” and (2) there is no adequate remedy by

appeal. Norton is asking this Court to reverse the trial court’s order granting a new trial, allowing

the jury’s verdict and damage awards to stand. Because we find that the record does not support

the trial court’s reasons for granting a new trial and Norton has no adequate remedy at law, we

conditionally grant the petition for writ of mandamus.

I.     Background

       In January 2017, Norton’s vehicle rearended Vaughn’s vehicle on Moores Lane in

Texarkana. Vaughn stated that she was “shocked” by the collision but told Norton that she thought

she was “okay.” As a result of the collision, Vaughn’s car sustained almost $3,000.00 in damage,

but she was still able to drive it home. Norton’s truck was undrivable after the accident.

       Vaughn testified that, when she awoke the morning after the collision, she felt stiff, her

shoulders and neck were hurting, and she felt a “stabbing pain” in her right elbow. She went to
                                                 2
her job as a certified nursing assistant (CNA) at The Waterford, a retirement and assisted-living

facility, because she had a meeting at 9:00 a.m. 1 Yet, because of the pain in her elbow, she left

work and went to the Texarkana Emergency Center (emergency room), where she rated her elbow

pain at an eight on a scale of one to ten.

         Vaughn was diagnosed with an elbow sprain, at first, and given a steroid injection, pain

medication, muscle relaxers, and after-care instructions. She returned to work the next day and

kept working for about two more weeks, when she returned to the emergency room because the

pain in her elbow and shoulder had failed to subside. Vaughn also had trouble extending her arm

or lifting anything with it. Following her second emergency room visit, she started ongoing

treatment at Healthcare Express, where she claimed she “was going to the doctor . . . every two

weeks or every month” because the injury “was getting worse.”

         In May 2017, about five months after the collision, Vaughn had an MRI test performed on

her elbow, which revealed “lateral epicondylitis [with] a partial tear of the common extensor

tendon origin.” In October 2017, when the prescribed physical therapy did not improve her

condition, she was referred to Dr. Ellis Cooper at Orthopedic Specialists of Louisiana, who agreed

with the diagnosis from the previous MRI. In December 2017, when further treatments such as

injections and dry needling failed to achieve satisfactory results, Dr. Cooper informed Vaughn that




1
 Before the collision, Vaughn had worked for many years as a CNA at The Waterford. As part of her job duties, she
would have to lift, roll, and stabilize patients as well as help them eat, dress, and bathe. She testified that she performed
that type of work with no physical problems for more than a decade but that, in 2010, seven years before the collision,
her job duties changed to those of a marketer, performing office work at a desk rather than physically moving patients.
                                                             3
her elbow would require surgery. In January 2018, Dr. Cooper performed the surgery to repair

Vaughn’s elbow. Six weeks after the surgery, Vaughn returned to full-time work at The Waterford.

            Following her first surgery, Vaughn claimed that her elbow, arm pain, and mobility had

not significantly improved and that she was unable to brush her hair or carry a gallon of milk.

Even so, she did not seek more medical intervention for several months. Ultimately, she returned

to Dr. Cooper, who performed a second surgery on her right forearm. Even after the additional

surgery, Vaughn said that her elbow was no better than it had been before the first surgery, that

she lived with significantly reduced mobility in the elbow, and that she was in constant pain.

            Vaughn’s employer eventually eliminated her “front office,” desk-based marketer’s

position. Vaugh claimed that, because of the continuing pain and limitations in her arm, she was

unable to perform her former job duties as a CNA. As a result, The Waterford terminated her

employment. As of the time of trial, Vaughn testified that she had been unable to find other

employment as a CNA.

            Vaughn sued Norton, alleging that, as a result of the January 2017 collision, she (1) injured

her neck, back, and shoulders; 2 (2) developed right lateral epicondylitis, commonly known as

“tennis elbow,” and right radial tunnel syndrome, which both required surgery; (3) incurred

$61,024.61 in past medical expenses; 3 (4) incurred damages for physical pain, mental anguish,




2
    Vaughn testified that the injuries to her back, neck, and shoulder only lasted a few weeks.
3
 Vaughn introduced nine medical expense affidavits at trial that were not controverted by Norton. See TEX. CIV.
PRAC. & REM. CODE ANN. § 18.001(b), (e)–(f) (Supp.).
                                                             4
physical impairment, lost earnings and disfigurement—both past and future; and (5) incurred

future medical expenses.

       Whether and to what extent the collision proximately caused Vaughn’s elbow injury was

the primary issue in dispute during the trial. At the trial’s conclusion, the jury found that Norton’s

negligence “proximately cause[d] the occurrence in question” and awarded Vaughn $21,886.00 in

past physical pain and mental anguish and $23,114.00 in past medical expenses. The jury awarded

no damages for all other elements of damage submitted to the jury—future physical pain and

mental anguish, past and future loss of wages and earnings capacity, past and future physical

impairment, future medical expenses, and past and future disfigurement. In June 2019, the trial

court entered judgment on the jury verdict.

       Around two weeks later, the trial court granted Vaughn’s motion for new trial, setting aside

the jury verdict on the grounds that the verdict was against the great weight and preponderance of

the evidence presented at trial. Norton then petitioned for a writ of mandamus, seeking to vacate

the order because it failed to explain the basis of the trial court’s conclusion. In re Norton, No.

06-19-00074-CV, 2019 WL 4064580, at *1 (Tex. App.—Texarkana Aug. 29, 2019, orig.

proceeding) (mem. op.). After Norton filed his petition, the trial court entered an amended order

granting a new trial. The amended order explained that the evidence on Vaughn’s tennis elbow

injury did not support the jury’s refusal to award Vaughn full damages for her past medical

expenses or its award of no damages for past wages and loss of earning capacity and past physical

impairment. Id. Shortly thereafter, Norton filed this petition for writ of mandamus, again arguing

(1) that the trial court abused its discretion in granting the new trial because the record supported
                                                  5
the jury’s awards for medical expenses, past lost wages and earning capacity, and past physical

impairment and (2) that he has no adequate remedy at law.

II.      The Record Does Not Support the Trial Court’s Reasons for Granting a New Trial

         In his first issue, Norton claims that the trial court’s “stated rationale for vacating the jury’s

verdict failed to comport with the trial record.” We agree.

         A.       Standard of Review

         To be entitled to mandamus relief, the relator must show that (1) he has no adequate remedy

at law and (2) the trial court clearly abused its discretion. In re McAllen Med. Ctr., Inc., 275

S.W.3d 458, 462 (Tex. 2008) (orig. proceeding). A clear abuse of discretion occurs if a trial court

reaches a decision “so arbitrary and unreasonably as to amount to a clear and prejudicial error of

law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v.

FCOA, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). “In determining whether the trial

court abused its discretion with respect to resolution of factual matters, we may not substitute our

judgment for that of the trial court and may not disturb the trial court’s decision unless it is shown

to be arbitrary and unreasonable.” In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding)

(per curiam).

         That said, the “significant discretion” of a trial court to grant a new trial “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.” 4 Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 212. “[T]he long-


4
 Historically, Texas courts enjoyed broad discretion when granting new trials. In re Columbia Med. Ctr. of Las
Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009) (orig. proceeding). However, the Texas Supreme Court
has taken steps to protect the right to trial by jury under the Texas Constitution by imposing certain requirements for
                                                          6
established precedents in this state demonstrate respect for jury verdicts.” Herbert v. Herbert, 754

S.W.2d 141, 144 (Tex. 1988). Thus, when granting a new trial, a trial court must explain with

reasonable specificity why it has set aside a jury verdict and granted a new trial. Toyota Motor

Sales, 407 S.W.3d at 757. The trial court may not simply parrot a pro forma template but must

instead articulate the reasons from the facts and circumstances of the case. Bent, 487 S.W.3d at

173.

         The appellate court must then conduct a “merits-based review” of the trial court’s order

and determine whether the reasons given by the trial court are reasonably specific and legally

sound and whether those reasons are supported by the record. Id. at 177. This merits-based review

is conducted under “the abuse-of-discretion standard that is familiar and inherent to mandamus.”

Id. Yet, if the record contains evidence that contradicts the trial court’s articulated reasons, then

the trial court has abused its discretion and the new trial order cannot stand. Id.; see In re Orren,

533 S.W.3d 926, 933 (Tex. App.—Tyler 2017, orig. proceeding).

         When, as here, “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 trial court’s reasoning.” In re

Pantalion, 575 S.W.3d 382, 383 (Tex. App.—Beaumont 2019, orig. proceeding) (per curiam)

(citing In re E.I. duPont de Nemours & Co., 463 S.W.3d 80, 85 (Tex. App.—Beaumont 2015, orig.


granting a new trial. See In re Bent, 487 S.W.3d 170, 172–73, 175 (Tex. 2016) (orig. proceeding); In re Toyota Motor
Sales, U.S.A., Inc., 407 S.W.3d 746, 757–58 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d
685, 688–89 (Tex. 2012) (orig. proceeding); Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 213.
Unlike the past, there are now more limits to the trial court’s discretion. Columbia Med. Ctr. of Las Colinas,
Subsidiary, L.P., 290 S.W.3d at 210.
                                                          7
proceeding) (per curiam)); see also In re Athans, 478 S.W.3d 128, 133–34 (Tex. App.—Houston

[14th Dist.] 2015, orig. proceeding) (applying factual sufficiency analysis to mandamus

proceeding challenging grant of new trial based on factual insufficiency); In re Baker, 420 S.W.3d

397, 402–04 (Tex. App.—Texarkana 2014, orig. proceeding). 5                        “The amount of evidence

necessary to support the jury’s verdict is far less than that necessary to warrant disregarding the

jury’s verdict.” Pantalion, 575 S.W.3d at 384 (quoting In re Zimmer, Inc., 451 S.W.3d 893, 906

(Tex. App.—Dallas 2014, orig. proceeding)).

        B.       The Trial Court’s Order is Facially Valid

        When granting a new trial, the trial court must “assur[e] the parties that the jury’s decision

was set aside only after careful thought and for valid reasons.” Bent, 487 S.W.3d at 176. To that

end, the trial court must articulate specific reasons for granting the new trial and explain how the

evidence, or lack thereof, undermines the jury’s findings. Id. at 183.

        Here, the trial court’s amended order granting a new trial stated, in pertinent part,

                The jury verdict in this matter is so against the great weight and
        preponderance of the evidence as to be manifestly unjust, shock the conscience, or
        clearly demonstrate bias and therefore a new trial is required.

                The only probative evidence in the record is that Plaintiff’s elbow was
        entirely asymptomatic and had not required any medical treatment before the motor
        vehicle collision . . . . The only probative evidence in the record is that Plaintiff had
        significant pain in her right elbow at the time she presented to the emergency room
        the day after the motor vehicle collision with Defendant which gave her significant
        mobility concerns and restricted and limited her ability to use her right arm. . . . It
        was undisputed at trial that, after the motor vehicle collision with Defendant,
        Plaintiff was eventually, and properly, diagnosed with epicondylitis and that the

5
 The Texas Supreme Court has not yet addressed how appellate courts should apply its merits review to an order
granting a new trial based on factual insufficiency. See Bent, 487 S.W.3d at 177–78; Toyota Motor Sales, U.S.A., 407
S.W.3d at 757–58.
                                                         8
       care she received, including surgery, was reasonable and necessary treatment of her
       epicondylitis.

               [The] Defendant’s [expert] avoided and never addressed whether the motor
       vehicle collision with Defendant proximately caused Plaintiff’s elbow to go from
       (a) being entirely asymptomatic to (b) causing such pain as to require surgery and
       other extensive medical care, weeks off of work, limited use of her arm, and other
       alleged damages.

       ....

              The only probative evidence in the record is that the . . . collision
       proximately caused Plaintiff to incur [more than $60,000 in] medical expenses to
       treat her elbow, including to treat epicondylitis, and there was no probative
       evidence to the contrary. . . .

       . . . [T]he only probative evidence in the record is that the . . . collision . . .
       proximately caused Plaintiff to not only . . . miss a day of work to go to the
       emergency room after the motor vehicle collision but also to be unable to work at
       all for at least several weeks following surgery. . . .

       . . . [T]he only probative evidence in the record is that the . . . collision . . .
       proximately caused Plaintiff to suffer at least some compensable physical
       impairment . . . [because the injury] caus[ed] such pain as to require surgery and
       other extensive medical care, weeks off of work, limited use of her arm, and other
       alleged damages.

       We find that the trial court’s order stated facially appropriate reasons for granting the new

trial. “[T]he trial court’s order recites that the verdict was [so] ‘against the great weight and

preponderance of . . . the evidence,’ which is a legally sound reason to grant a new trial.” In re

Peterson Constr., Inc., No. 13-15-00535-CV, 2016 WL 3548643, at *6 (Tex. App.—Corpus

Christi Jun. 17, 2016, orig. proceeding, [mand. denied]) (mem. op.) (quoting United Scaffolding,

377 S.W.3d at 888–89). The order also contained reasonably specific explanations of the trial

court’s reasoning. As a result, we conclude that the trial court’s order is facially valid.


                                                  9
       C.      Factual Sufficiency Analysis

               1.      Causation

       Having found the trial court’s order facially valid, we must next determine whether any of

the trial court’s stated reasons for granting a new trial are supported by the record. See Bent, 487

S.W.3d at 173. If any of the reasons given for granting the new trial satisfy the standards explained

in Toyota Motor, Columbia Medical Center, and United Scaffolding, then the trial court did not

abuse its discretion in ordering a new trial, and we will deny mandamus relief. See In re United

Servs. Auto. Ass’n, 446 S.W.3d 162, 171 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding).

       It was undisputed that (1) the collision occurred in January 2017, (2) Vaughn was properly

diagnosed with tennis elbow in May 2017, (3) her elbow condition required surgery, (4) Vaughn

incurred significant medical expenses for treatment and surgery on her elbow, (5) Vaughn’s six

weeks of surgical recovery were reasonable and necessary, (6) Vaughn was unable to work during

those six weeks, and (7) Vaughn lost earnings during the time she was unable to work. The issue,

therefore, is whether the trial court’s implicit finding that the only probative evidence is that the

collision proximately caused Vaughn’s tennis elbow is supported by the record.

       “The jury is the sole judge of the witnesses’ credibility, and it may choose to believe one

witness over another, and a reviewing court may not impose its own opinion to the contrary.”

Orren, 533 S.W.3d at 931 (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761

(Tex. 2003)). “The jury ‘[may] believe all or any part of the testimony of any witness and disregard

all or any part of the testimony of any witness.’” Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 774–75 (Tex. 2003) (quoting Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex.
                                                 10
App.—Dallas 1991, writ denied)). Furthermore, the jury “may disregard physician testimony on

. . . the causal relationship between the accident and the plaintiff’s injuries, even if that testimony

is not contradicted.” Mauricio v. Cervantes, No. 04-16-00260-CV, 2017 WL 2791324, at *2 (Tex.

App.—San Antonio June 28, 2017, no pet.) (mem. op.) (citing McGalliard v. Kuhlmann, 722

S.W.2d 694, 697 (Tex. 1986); Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.

App.—San Antonio 1997, no writ)).

        Here, the jury heard evidence from Vaughn’s expert, Dr. Cooper, and Norton’s expert,

Dr. Bernie McCaskill, who both agreed that tennis elbow is caused by either trauma or

degeneration through repetitive activity. 6 Dr. Cooper testified that the collision caused Vaughn’s

tennis elbow, including the torn tendon. Even so, Dr. Cooper’s operative report stated that

Vaughn’s tendon “showed evidence of degeneration.” He also testified that tennis elbow is most

common from repetitive injuries, which cause degeneration. Moreover, Dr. Cooper admitted that

the degeneration in Vaughn’s tendon could have existed before the collision.

        Dr. McCaskill agreed that the elbow pain that first brought Vaughn to the emergency room

was “most likely caused by the car wreck.” Yet, based on his examination of Vaughn’s medical

records, he did not see “a basis to say that [Vaughn] had epicondylitis at the time of her visit to the

emergency room” on the day after the collision. He also noted that the records cited no objective,

abnormal physical findings, such as bruising, abrasions, discoloration, or swelling in her elbow.




6
 While a torn tendon can be diagnosed through an MRI, a diagnosis of tennis elbow “is based on clinical symptoms
and physical findings,” because there is no diagnostic test for the condition.
                                                      11
Dr. McCaskill testified that it would take a “very significant trauma” to cause Vaughn’s torn

tendon and that the torn tendon was the basis for her surgery.

          The jury also saw the medical records from Vaughn’s emergency room visit the day after

the accident that showed that an x-ray of her right elbow was taken. The x-ray of Vaughn’s elbow

was normal. It showed that “[n]o fracture, dislocation or radiopaque foreign body” was found.

          The jury also heard testimony from Vaughn that she told Norton she was “okay” after the

collision and that she did not go to the emergency room on the day of the accident. Vaughn also

testified that she did not immediately feel any pain after the accident. Additionally, photos of

Vaughn’s car after the accident show minor damage, and she was able to drive her car home from

the scene of the accident. Vaughn could also not confirm that she hit her elbow on anything during

the accident. Finally, there was evidence that Vaughn’s job responsibilities as a CNA, at one point

in her career, involved repetitive activities including lifting, rolling, and stabilizing patients.

          Based on all the testimony presented at trial, the jury could have reasonably disregarded

Dr. Cooper’s medical conclusions and concluded that Vaughn’s tennis elbow resulted from a pre-

existing condition. Thus, the trial court’s implicit finding that the only probative evidence in the

record is that the collision proximately caused Vaughn’s tennis elbow is not supported by the

record.

                 2.      Lost Wages

          The trial court’s order also states that the only probative evidence in the record is that the

accident proximately caused Vaughn to “not only miss a day of work to go to the emergency room

. . . but also to be unable to work at all for at least several weeks following surgery.” The trial
                                                   12
court, therefore, found the jury’s failure to award Vaughn any damages for lost wages against the

great weight and preponderance of the evidence.

       The jury heard evidence that Vaughn went to work the day following the accident. After

a short time at work, Vaughn went to the emergency room because of the pain in her elbow. That

said, Vaughn testified that she could not identify any lost wages in 2017. She also testified that

the only lost earnings she knew about were from the six-week period following her surgery in

January 2018. Moreover, the jury saw Vaughn’s employment payroll records and heard testimony

from Vaughn that her earnings after the accident were consistent with her earnings before the

accident.

       As a result, if the jury did not believe Vaughn’s tennis elbow was caused by the accident,

and Vaughn testified that she had no lost wages in 2017, the jury could have reasonably concluded

that Vaughn was not entitled to any lost wages. We, therefore, find that the trial court’s conclusion

that the jury’s award of zero dollars for lost wages sustained in the past was against the great

weight and preponderance of the evidence is not supported by the record.

               3.      Physical Impairment

       The trial court’s order states that “the only probative evidence in the record” is that the

accident proximately caused Vaughn to incur “at least some compensable physical impairment.”

The trial court also found that the jury’s award of zero damages for physical impairment sustained

in the past was “against the great weight and preponderance of the evidence.”




                                                 13
       In Golden Eagle Archery, the Texas Supreme Court held,

       In keeping with the principles that a court may not substitute its judgment for that
       of the jury and that the jury is the sole judge of the weight and credibility of
       testimony, courts should not conclude that a jury’s failure to award any damages
       for physical impairment is against the great weight and preponderance of the
       evidence simply because there is objective evidence of an injury.

Golden Eagle Archery, Inc., 116 S.W.3d at 774. Furthermore, “when a jury is presented with

conflicting evidence about the existence and severity of a physical injury and associated pain, the

jury ‘could believe all or any part of the testimony of any witness and disregard all or any part of

the testimony of any witness.’” Id. (quoting Pilkington, 822 S.W.2d at 230).

       As we explained above on the issues of causation and lost wages, based on the evidence

presented at trial, the jury could have reasonably believed that Vaughn’s tennis elbow and related

surgery expenses were not caused by the accident. The jury could have also disbelieved Vaughn’s

claims of physical impairment, as she continued to work from the day after the accident until her

initial surgery in 2018. She was also able to attend and participate in physical therapy sessions.

And there were large gaps in Vaughn’s medical treatment, including at least one eight-week gap

immediately following the accident and another six-month gap in 2018. Thus, there was evidence

in the record from which the jury could have reasonably concluded that Vaughn was not entitled

to damages for physical impairment.

       For these reasons, the trial court’s conclusion that the jury’s award of zero dollars for

physical impairment sustained in the past was against the great weight and preponderance of the

evidence is not supported by the record.



                                                14
               4.      Reduction of Vaughn’s Medical Expenses

        Vaughn presented evidence at trial of medical expenses totaling more than $60,000.00 for

treatment of her injuries, including her tennis elbow and forearm surgeries. Even so, the jury only

awarded Vaughn $23,114.00 for her medical expenses sustained in the past. As a result, the trial

court found that “the jury’s finding that $23,114[.00] would compensate Plaintiff for ‘medical care

expenses incurred in the past’ . . . is so against the great weight and preponderance of the evidence.”

        When causation is contested, as was the case here, a jury may award damages it deems

appropriate. Harris v. Ranebenur, No. 07-17-00014-CV, 2018 WL 3244858, at *3 (Tex. App.—

Amarillo July 3, 2018, no pet.) (mem. op). A “jury is not bound to award the damages set forth in

an uncontroverted affidavit under section 18.001 [of the Texas Civil Practice and Remedies

Code].” Id. “Ultimately, the determination of what is reasonable and necessary still falls within

the province of the jury.” Id. (citing Atwood v. Pietrowicz, No. 02-10-00010-CV, 2010 WL

4261600, at *4 (Tex. App.—Fort Worth Oct. 28, 2010, no pet.) (mem. op.)).

        For the reasons we explained above, there was sufficient evidence presented at trial for the

jury reasonably to conclude that the accident did not cause Vaughn’s tennis elbow or resulting

surgeries. Thus, the jury was free to award Vaughn an amount of damages that it found

appropriate. We, therefore, find that the trial court’s reasoning is not supported by the record on

this issue.

III.    Norton Has No Adequate Remedy by Appeal

        In his second issue, Norton argues that he has no adequate remedy by appeal because

requiring the parties to endure a new trial will waste significant time and money. We agree.
                                                  15
        “The Texas Supreme Court has explained that ‘absent mandamus review,’ parties ‘will

seemingly have no appellate review’ of orders granting new trials.” Orren, 533 S.W.3d at 928

(citing Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 209). “Even if a party

could obtain appellate review of a new trial order following a second trial, it could not obtain

reversal of an unfavorable verdict unless it convinced an appellate court that the granting of the

new trial constituted harmful error.” Id. “And even if an unfavorable verdict were reversed and

rendered in [Norton’s] favor, [he] would have lost the benefit of a final judgment based on the first

jury verdict without ever knowing why, and would have endured the time, trouble, and expense of

the second trial.” Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 209–10.

We, therefore, hold that Norton has no adequate remedy by appeal.

IV.     Conclusion

        The jury’s decision to award only part of Vaughn’s past medical expenses while awarding

her zero for past lost wages and past physical impairment was not against the great weight and

preponderance of the evidence because there was evidence in the record to support such awards.

Thus, the trial court’s findings that “[t]he only probative evidence” in the record is that the collision

proximately caused Vaughn to incur medical expenses, lost wages, and physical impairment are

not supported by the record.

        Finding that the trial court’s stated reasons for granting a new trial are unsupported by the

record and that Norton has no adequate remedy by appeal, we conditionally grant Norton’s petition




                                                   16
for writ of mandamus, and direct the trial court to vacate its August 21, 2019, order granting a new

trial. The writ of mandamus will issue only if the trial court fails to do so.




                                               Scott E. Stevens
                                               Justice



                                   CONCURRING OPINION

       The majority opinion treats this case as if the trial court entered a judgment in accordance

with the jury verdict and the plaintiff appealed on the ground that the jury’s failure to answer

questions in her favor was against the great weight and preponderance of the evidence. The

standard traditionally used in that instance is: “When reviewing a jury verdict to determine the

factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence,

and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence

as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)

(citing Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In re King’s Estate, 244 S.W.2d

660, 661 (Tex. 1951) (per curiam)).”

       Since this is a mandamus proceeding and not an appeal, it should be analyzed in accordance

with mandamus review principles. The Corpus Christi court clearly stated how appellate courts

should approach the review of a new trial granted for insufficiency of evidence. “Here we are

reviewing the trial court’s new trial order by mandamus under an abuse of discretion standard. We


                                                 17
are not performing a factual sufficiency review of a jury’s verdict on appeal.” Peterson Const.,

Inc., 2016 WL 3548643, at *10.

       The Texas Supreme Court has stated that the review of the granting of a new trial should

be conducted on the abuse-of-discretion standard. Simply reviewing such a case based on

sufficiency of evidence, in the same manner as a review of an appeal of the jury verdict, does not

comply with our requirement to employ the abuse-of-discretion standard. Other areas of the law

have managed to meld these two concepts without doing violence to either.

       For instance, in a review of a trial court’s modification of a conservatorship order, legal

and factual sufficiency of the evidence are relevant factors in assessing whether the trial court

abused its discretion, but a trial court cannot be said to abuse its discretion as long as some evidence

of a substantive and probative character supports its decision. In re A.L.E., 279 S.W.3d 424, 427–

28 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Bates v. Tesar, 81 S.W.3d 411, 424–

25 (Tex. App.—El Paso 2002, no pet.)).

       I believe that a review as outlined above more accurately complies with our charge to

review these matters based on the abuse-of-discretion standard. In this case, I do not believe such

an analysis leads to a different conclusion. Consequently, I concur in the judgment.




                                               Jack Carter
                                               Justice

Date Submitted:        February 20, 2020
Date Decided:          February 21, 2020

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