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In re Esters

Court of Appeals of Texas, Twelfth District, Tyler

June 21, 2017

IN RE: HEATHER ESTERS, RELATOR HEATHER ESTERS, Relator
v.
HON. J. CLAY GOSSETT, Respondent

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice.

         Heather Esters seeks mandamus relief from the trial court's order granting Melinda Warner's motion for new trial.[1] In two issues, she contends that the trial court abused its discretion by granting the new trial, and that she has no adequate remedy at law. We deny the petition.

         Background

         Esters and Warner were involved in a motor vehicle collision in February 2014. Warner sued Esters, alleging that she was injured as a result of the collision. She sought past and future damages for expenses, pain and suffering, mental anguish, and physical impairment. The jury found Esters was negligent and awarded Warner $5, 000 for past physical pain and mental anguish, $5, 000 for past physical impairment, and $23, 206.46 for past medical expenses. The jury did not award any future damages.

         Esters filed a motion for judgment on the verdict, and Warner filed a motion for new trial. Warner alleged that the failure of the jury to award future damages was contrary to the overwhelming weight and preponderance of the evidence. Following a hearing, the trial court granted Warner's motion for new trial. This original proceeding followed.

         Availability of Mandamus

         Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court does not abuse its discretion in granting a new trial as long as its stated reason (1) is a reason for which a new trial is legally appropriate, and (2) is specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case. In re United Scaffolding, Inc., 377 S.W.3d 685, 687-88 (Tex. 2012) (orig. proceeding). To rule on a party's request for a new trial that is based on factual insufficiency of the evidence, the trial court must consider and weigh all of the trial evidence and determine whether the challenged fact finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).

         An appellate court may review the merits of a new trial order in a mandamus proceeding. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759 (Tex. 2013) (orig. proceeding). If a trial court abuses its discretion in granting a motion for new trial, there is no adequate remedy by appeal. In re Columbia Medical Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009) (orig. proceeding).

         Sufficiency of Record

         We first address Warner's argument that Esters's petition should be dismissed for failure to provide a complete record.

         Applicable Law

         A relator bears the burden of demonstrating her entitlement to mandamus relief. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). This burden includes providing the appellate court ...


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