                                 NUMBER 13-20-00019-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI – EDINBURG


            IN RE FRANK TORRES, M.D. AND SAN BENITO MEDICAL
                           ASSOCIATES, INC.


                          On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Perkes1

        Relators Frank Torres, M.D. and San Benito Medical Associates, Inc. filed a

petition for writ of mandamus in the above cause on January 15, 2020. Through this

original proceeding, relators seek to set aside an order granting a new trial. Because we

conclude that the new trial order is facially invalid, we conditionally grant relief.




        1  See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in
any other case,” but when “denying relief, the court may hand down an opinion but is not required to do
so.”); see also id. R. 47.4 (distinguishing opinions and memorandum opinions).
                                           I. BACKGROUND

        This original proceeding arises from a health care liability claim filed against

relators by plaintiff and real party in interest, Enrique Linan, individually and as heir of

Laura Linan, deceased. 2 Enrique alleged in the lawsuit that relators’ negligence in failing

to diagnose and treat Laura’s pulmonary embolism proximately caused her death on

November 2, 2015. Enrique’s claims were submitted to the jury on February 14, 2019.

The jury unanimously found that relators were not negligent.

        After the jury rendered its verdict but before the trial court signed a final judgment,

Enrique filed a motion for new trial. Enrique argued, in relevant part, that there was

factually insufficient evidence to support the jury’s verdict, that the verdict was against the

overwhelming weight of the evidence, and that the admission of irrelevant and

unsupported scientific opinions tainted the evidence and resulted in an improper verdict.

On March 8, 2019, relators filed a response to Enrique’s motion for new trial.

        The trial court held an initial hearing on the motion for new trial on March 11, 2019.

The parties briefly discussed the sufficiency of the evidence supporting the verdict but

recessed the hearing pending production of the trial transcript.

        On May 5, 2019, Enrique filed a supplemental motion for new trial arguing that

causation for Laura’s death had been conclusively established and “[e]veryone agrees

that had [Laura] been sent for follow up testing, within a reasonable degree of medical

probability she would have survived.” The supplemental motion for new trial again


        2  This original proceeding arises from trial court cause number 2017-DCL-01084 in the 103rd
District Court of Cameron County, Texas. The cause was thereafter transferred to the 357th District Court,
and the respondent in this original proceeding is the Honorable Juan A. Magallanes. See id. R. 52.2.




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addressed the factual sufficiency of the evidence. On July 11, 2019, the relators filed a

response to the supplemental motion for new trial.

        The trial court held a second hearing on the motion for new trial on July 15, 2019,

and subsequently the trial court signed a final “take nothing” judgment in accordance with

the jury’s verdict on July 16, 2019. 3 The trial court thereafter granted Enrique’s motion for

new trial on September 27, 2019. The order granting new trial states as follows:

        After two hearings on Plaintiff’s Original and Supplemental Motions for New
        Trial, the Court having considered the same, along with the evidence and
        arguments of counsel, this Court finds that, pursuant to [Texas Rule of Civil
        Procedure 324(b)(2) and (3)], it is in the interests of justice to set aside the
        jury verdict and grant a new trial because there is factually insufficient
        evidence to support the jury’s response to Question 1 that no party’s
        negligence was a proximate cause of harm to Laura Linan. Further, the
        jury’s finding on the same question is against the overwhelming weight of
        the evidence presented at trial.

        The overwhelming evidence presented at trial concerned who as between
        Dr. Torres and Mr. and Mrs. Linan was negligent in failing to obtain
        treatment for Mrs. Linan’s pulmonary embolism. The evidence established
        that had Mrs. Linan received treatment for her pulmonary embolism, within
        a reasonable degree of medical probability, she would have survived.
        Therefore, it is the opinion of this court that there was insufficient evidence
        presented at trial to support the jury’s finding that no party was negligent
        and proximately caused harm to Mrs. Linan.

        It is hereby ORDERED, ADJUDGED, and DECREED that Plaintiff’s Motion
        for New Trial is GRANTED.

        This original proceeding ensued. By three issues, relators assert: (1) the trial

court’s order does not state a legally appropriate reason for granting a new trial and does



        3  The motion for new trial was premature because it was filed before final judgment. Even though
it was filed before the date of the final judgment, for the purposes of extending the appellate deadlines, it
was deemed filed immediately following its entry. TEX. R. CIV. P. 306c (governing prematurely filed
documents, including motions for new trial); see Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666
(Tex. 2011) (per curiam); In re P.J.P.R., 508 S.W.3d 588, 590 (Tex. App.—El Paso 2016, no pet.).




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not contain the required specific explanation of the reasons given for granting a new trial,

and is thus facially invalid; (2) alternatively, if the order is facially valid, then the trial court

abused its discretion because the reasons given by the trial court for granting the new

trial are not supported by the record; and (3) relators lack an adequate remedy by appeal.

This Court requested and received a response to the petition for writ of mandamus from

Enrique and received a reply thereto from relators.

                                          II. MANDAMUS

       Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,

302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a

clear abuse of discretion when there is no adequate remedy by appeal. In re Christus

Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator

bears the burden of proving these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at

302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse of

discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made

without regard for guiding legal principles or supporting evidence. In re Nationwide Ins.

Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia,

363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy

by balancing the benefits of mandamus review against the detriments. In re Essex Ins.

Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

       A writ of mandamus will issue to correct a clear abuse of discretion committed by

a trial court in granting a new trial. In re Whataburger Rests., LP, 429 S.W.3d 597, 598




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(Tex. 2014) (orig. proceeding) (per curiam); In re Toyota Motor Sales, U.S.A., Inc., 407

S.W.3d 746, 756–57 (Tex. 2013) (orig. proceeding); In re United Scaffolding, Inc., 377

S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding).

                                       III. NEW TRIALS

       Rule 320 of the Texas Rules of Civil Procedure gives the trial court broad discretion

to grant a new trial “for good cause, on motion or on the court’s own motion.” TEX. R. CIV.

P. 320. However, because the Texas Constitution guarantees the right to trial by jury, that

authority is not unfettered. See TEX. CONST. art. I, § 15; In re Bent, 487 S.W.3d 170, 175

(Tex. 2016) (orig. proceeding); In re Cambell, 577 S.W.3d 293, 297 (Tex. App.—Houston

[14th Dist.] 2019, orig. proceeding). Although trial courts have significant discretion in

granting new trials, “such discretion 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.” In re Columbia

Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig.

proceeding); see In re United Scaffolding, Inc., 377 S.W.3d at 688–89; In re Pantalion,

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

a trial court’s order granting a motion for new trial must provide a reasonably specific

explanation of the court’s reasons for setting aside a jury verdict. In re Bent, 487 S.W.3d

at 173; In re Columbia Med. Ctr., 290 S.W.3d at 213.

       A trial court does not abuse its discretion so long as its stated reason for granting

a new trial is: (1) a reason for which a new trial is legally appropriate, such as a well-

defined legal standard or a defect that probably resulted in an improper verdict; and (2)

specific enough to indicate that the trial court did not simply “parrot a pro forma template,”




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but rather derived the articulated reasons from the particular facts and circumstances of

the case at hand. In re United Scaffolding, Inc., 377 S.W.3d at 688–89. A new trial order

may be an abuse of discretion if, for example, it is based on a reason that is not legally

valid, or “if the articulated reasons plainly state that the trial court merely substituted its

own judgment for the jury’s.” Id. at 689. Further, an appellate court may conduct a merits-

based mandamus review of a trial court’s articulated reasons for granting a new trial. In

re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at 758; see In re Whataburger Rests.,

L.P., 429 S.W.3d at 59. If the articulated reasons are not supported by the law and the

record, mandamus relief is appropriate. In re Toyota Motor Sales, U.S.A., Inc., 407

S.W.3d at 761–62.

                                        IV. ANALYSIS

       In their first issue, relators contend that the new trial order is facially invalid. They

assert that the new trial order fails to meet the applicable legal requirements established

by the Texas Supreme Court because the order does not state a legally valid reason for

granting a new trial. The relators offer two reasons in support of this assertion. First, the

relators argue that although the trial court apparently concluded the jury’s answers finding

that relators were not negligent were contrary to evidence establishing cause-in-fact, the

trial court nevertheless failed to consider the evidence on the other necessary element of

proximate cause—foreseeability. The relators contend that because the jury’s failure to

find that they were negligent could reasonably have been based on a failure to prove

foreseeability, the fact that some evidence may have supported cause-in-fact does not

undermine the jury’s findings of no negligence. Second, relators contend that the trial




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court’s order does not explain how the evidence, or lack of evidence, undermines the

jury’s findings, considering the particular facts and circumstances of the case at hand.

Relators argue that the new trial order failed to address the evidence that Laura’s death

was not reasonably foreseeable and failed to address other conflicting evidence regarding

negligence and causation. Relators thus conclude that for either of these two reasons,

the order is not facially valid and constitutes a clear abuse of discretion.

       In addressing this issue, we first examine whether the trial court’s stated reason

for granting the new trial is a reason for which a new trial is legally appropriate, such as

a well-defined legal standard or a defect that probably resulted in an improper verdict.

See In re United Scaffolding, Inc., 377 S.W.3d at 688–89. The new trial order states that

“there is factually insufficient evidence to support the jury’s response to Question 1 that

no party’s negligence was a proximate cause of harm to Laura Linan” and that “the jury’s

finding on the same question is against the overwhelming weight of the evidence

presented at trial.” The trial court granted a new trial on the basis that the jury’s negative

findings were against the great weight and preponderance of the evidence, which is a

factual-sufficiency question. In re Wagner, 560 S.W.3d 309, 319 (Tex. App.—Houston

[1st Dist.] 2017, orig. proceeding); In re Baker, 420 S.W.3d 397, 402 (Tex. App.—

Texarkana 2014, orig. proceeding). Accordingly, we conclude that the trial court’s stated

reason for granting the new trial is a reason for which a new trial is legally appropriate.

See TEX. R. CIV. P. 324(b)(2) (stating that a motion for new trial is a prerequisite to

presenting a complaint on appeal regarding the factual insufficiency of the evidence to




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support a jury finding); In re United Scaffolding, Inc., 377 S.W.3d at 688–89; In re Wagner,

560 S.W.3d at 319.

       Second, we examine whether the new trial order is specific enough to indicate that

the trial court did not simply parrot a pro forma template, but rather derived the articulated

reasons for granting a new trial from the particular facts and circumstances of the case at

hand. See In re United Scaffolding, Inc., 377 S.W.3d at 688–89. The trial court is not

required to detail the evidence relevant to an issue under consideration in the manner

required of a court of appeals that reverses a judgment for factual insufficiency. Id. at 687;

see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). However, in its new trial

order, the trial court must point to the evidence that played a pivotal role in its decision to

grant a new trial. See In re Bent, 487 S.W.3d at 176. “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.’” Id. (quoting In re United Scaffolding,

Inc., 377 S.W.3d at 689); see also In re 3 Atoms, LLC, No. 07-19-00243-CV, 2019 WL

3820407, at *2 (Tex. App.—Amarillo Aug. 14, 2019, orig. proceeding) (mem. op.). A new

trial order must provide “an understandable, reasonably specific explanation” for the

order. In re Columbia Med. Ctr., 290 S.W.3d at 213. In reviewing the trial court’s order,

we focus “not on the length or detail of the reasons a trial court gives, but on how well

those reasons serve the general purpose of assuring the parties that the jury’s decision

was set aside only after careful thought and for valid reasons.” In re United Scaffolding,

Inc., 377 S.W.3d at 688.




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         Here, the trial court’s order states that: the “overwhelming evidence presented at

trial concerned who as between Dr. Torres and Mr. and Mrs. Linan was negligent in failing

to obtain treatment for Mrs. Linan’s pulmonary embolism,” that the “evidence established

that had Mrs. Linan received treatment for her pulmonary embolism, within a reasonable

degree of medical probability, she would have survived” and that “there was insufficient

evidence presented at trial to support the jury’s finding that no party was negligent and

proximately caused harm to Mrs. Linan.” The order does not point to the evidence that

played a pivotal role in the trial court’s decision, and does not discuss any evidence,

reference any specific facts, or explain how any evidence, facts, or testimony undermines

the jury’s findings, thus warranting a new trial. Therefore, we conclude that the September

27, 2019 order granting a new trial is facially invalid. See In re Bent, 487 S.W.3d at 176;

In re United Scaffolding, Inc., 377 S.W.3d at 688–89; see also In re Nelsen, No. 14-19-

00600-CV, 2019 WL 4071982, at *2 (Tex. App.—Houston [14th Dist.] Aug. 29, 2019, orig.

proceeding) (mem. op.) (per curiam) (conditionally granting mandamus relief based on

the facial invalidity of the order granting a new trial); In re Ramos, No. 13-19-00039-CV,

2019 WL 1930111, at *3 (Tex. App.—Corpus Christi–Edinburg May 1, 2019, orig.

proceeding) (mem. op.) (same); In re Esters, No. 12-17-00122-CV, 2017 WL 4675368, at

*4 (Tex. App.—Tyler Oct. 18, 2017, orig. proceeding) (mem. op.) (same). In sum, the

order fails to assure the parties that the decision to disregard the jury’s verdict was made

only after careful thought and for valid reasons. See In re Bent, 487 S.W.3d at 176; In re

United Scaffolding, Inc., 377 S.W.3d at 688. Accordingly, we sustain the relators’ first

issue.




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       Having sustained this issue, we need not address the relators’ second issue

pertaining to a merits-based review of the new trial order. See TEX. R. APP. P. 47.4; see

also In re Tex. Farm Bureau Mut. Ins. Co., No 01-19-00742-CV, 2020 WL 573249, at *4

(Tex. App.—Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (mem. op.) (“The remedy

for a facially invalid order is a remand to the trial court, which then has the option to deny

the motion for new trial or to sign an order that comports with Texas law.”); In re Simms,

No. 14-19-00541-CV, 2019 WL 3822171, at *2 (Tex. App.—Houston [14th Dist.] Aug. 15,

2019, orig. proceeding) (mem. op.) (conditionally granting mandamus relief based on the

facial invalidity of the order granting a new trial); In re Ramos, 2019 WL 1930111, at *3

(same); In re Sanchez, No. 04-18-00530-CV, 2018 WL 4903038, at *2 (Tex. App.—San

Antonio Oct. 10, 2018, orig. proceeding)(same).

       In their third issue, relators contend that they lack an adequate remedy by appeal

to address the trial court’s error. We agree. The Texas Supreme Court has explained that

“absent mandamus review,” the parties “will seemingly have no appellate review” of

orders granting new trials. See In re Columbia Med. Ctr., 290 S.W.3d at 209. The supreme

court reasoned that even if a party could obtain appellate review of a new trial order after

a second trial, it could not obtain reversal of an unfavorable verdict unless it convinced

the appellate court that granting the new trial constituted harmful error. Id. Moreover, even

if an unfavorable verdict were to be reversed and rendered in the party’s favor, that party

“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.”




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Id. at 209–10. Thus, relators lack an adequate remedy by appeal. See id. We sustain

relators’ third issue.

                                        V. CONCLUSION

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

the response, the reply, and the applicable law, is of the opinion that the relators have

met their burden to obtain relief. Because the new trial order is facially invalid, we

conditionally grant the petition for writ of mandamus and direct the trial court to vacate its

new trial order and conduct further proceedings consistent with this opinion. The writ will

issue only if the trial court fails to comply.


                                                                 GREGORY T. PERKES
                                                                 Justice


Delivered and filed the
2nd day of April, 2020.




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