                                   NUMBER 13-09-00599-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                   IN RE MIGUEL SALINAS AND MARIA E. SANIN
                        D/B/A NEW AGE ADULT DAY CARE


                            On Petition for Writ of Mandamus.


                                   MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Garza
                    Per Curiam Memorandum Opinion1

        Through this original proceeding, relators, Miguel Salinas and Maria E. Sanin d/b/a

New Age Adult Day Care, seek to compel the trial court to “reasonably specify the basis

for granting a new trial in this cause.” For the reasons stated herein, we deny the petition

for writ of mandamus.



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          See T EX . R. A PP . P. 52.8(d) (“W hen denying relief, the court m ay hand down an opinion but is not
required to do so.”); T EX . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions).
                                       I. Background

       Real party in interest, Idelfonsa Casarez, was injured in an automobile accident

while traveling in a van driven by relator Miguel Salinas. She brought suit against relators

and an additional defendant, Gregorio Huerta, Jr., who is not a party to this proceeding.

The case was tried to a jury which assessed fifty percent liability to “Miguel Salinas & New

Age Adult Day Care, Inc.” and fifty percent liability to Huerta. The jury awarded Casarez

$2,638.65 in past medical expenses and $2,000.00 for physical impairment, but failed to

award any damages for physical pain and mental anguish.          The trial court entered a final

judgment based on the jury’s verdict on June 8, 2009. On June 11, 2009, Casarez filed

a motion for new trial contending that the jury’s responses were so contrary to the great

weight and preponderance of the evidence as to be manifestly unjust because, despite

“clear, unequivocal, uncontroverted, and compelling” evidence regarding Casarez’s

“significant injur[ies] to her left shoulder, upper torso and fracture of the left leg at the

ankle,” the jury failed to award damages for pain and suffering or mental anguish. On July

7, the trial court granted a new trial without specifying a reason. According to relator’s

petition for writ of mandamus, further events ensued as follows:

       On October the 13th 2009, the court held a DCC wherein the jury selection
       for trial was set for November 3rd at 2:00 P.M. 13 days later, while preparing
       for trial on October 29th, 2009 Relators’ counsel discovered that the Texas
       Supreme Court has specifically ruled that such a new trial order is improper
       in In re Columbia Med. Ctr. Of Las Colinas, 290 S.W.3d 204 (Tex. July 3,
       2009).

Relators filed this petition for writ of mandamus and a motion for emergency stay on

October 30, 2009, contending that the trial court erred in granting a new trial without

explaining the basis for its ruling. This Court granted the motion for emergency stay and

requested that the real party in interest file a response to the petition for writ of mandamus.


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By response, Casarez argues, inter alia, that relators never requested the trial court to

specify its reasons for granting a new trial.

                                      II. Applicable Law

       The Texas Rules of Civil Procedure recognize that the trial court has the power to

grant a motion for new trial “for good cause.” See TEX . R. CIV. P. 320. “Texas trial courts

have historically been afforded broad discretion in granting new trials, [b]ut that discretion

is not limitless.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 (Tex. 2009)

(original proceeding) (internal citation omitted). On July 3, 2009, the Texas Supreme Court

held in Columbia that, while the trial court has significant discretion to grant a new trial, the

trial court is required to specify the reasons it is ordering a new trial, and further held that

the “reasons should be clearly identified and reasonably specific,” stating that “[b]road

statements such as "in the interest of justice" are not sufficiently specific.” See id. at 215.

                                         III. Analysis

       Based on the supreme court’s analysis in Columbia, the trial court's failure to

disclose its reasons for granting a new trial was an arbitrary and impermissible abuse of

discretion. See id. However, mandamus will not issue unless (1) the relator has made a

demand on the respondent and (2) the respondent has denied relief or otherwise refused

to act. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999); Terrazas v. Ramirez, 829

S.W.2d 712, 723 (Tex. 1991); Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990).

An exception to this “demand and refusal” requirement arises if demand would be futile.

See In re Perritt, 992 S.W.2d at 446; Terrazas, 829 S.W.2d at 723.

       There is nothing in the record before us which shows that relators made their

complaint known to the trial court and the trial court refused to act. Further, there is



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nothing in the record or circumstances which indicate that any such demand would have

been futile.

       Moreover, relators waited from July 7, the date that the new trial was granted, until

October 30, the date that this original proceeding ensued and immediately before the new

trial date, before requesting any relief. Delay in the filing of a petition for mandamus relief

may waive the right to relief unless the relator can justify the delay. See In re Int'l Profit

Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam). Relators

have failed to justify their delay in filing the instant proceeding. See id.; In re Users Sys.

Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999) (orig. proceeding); see, e.g., Rivercenter

Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). While it appears

that counsel did not discover the supreme court’s ruling in Columbia until October 29, we

query that such allegation constitutes adequate justification for the delay.

                                       IV. Conclusion

       The Court, having examined and fully considered the petition for writ of mandamus

and the response thereto, is of the opinion that relators have not shown themselves

entitled to the relief sought. Accordingly, the stay previously imposed by this Court is

LIFTED. See TEX . R. APP . P. 52.10(b) (“Unless vacated or modified, an order granting

temporary relief is effective until the case is finally decided.”). The petition for writ of

mandamus is DENIED. See id. 52.8(a).


                                                                 PER CURIAM


Delivered and filed the 20th
day of January, 2010.




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