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In re Pantalion

Court of Appeals of Texas, Ninth District, Beaumont

May 16, 2019

IN RE ALLEN L. PANTALION AND JOSEPH P. ETHERIDGE D/B/A J&G TRUCKING D/B/A J&G LOGGING CONTRACTORS

          Submitted on April 1, 2019

          Original Proceeding 1st District Court of Jasper County, Texas Trial Cause No. 35354

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          OPINION

          PER CURIAM.

         In this original proceeding, relators Allen L. Pantalion and Joseph P. Etheridge d/b/a J&G Trucking d/b/a J&G Logging Contractors seek a writ of mandamus ordering the trial court to vacate its orders granting the motion for new trial filed by the plaintiff in the underlying case, real party in interest Carol Brasher. The jury found Brasher's sole negligence proximately caused the motor vehicle accident made the basis of the underlying lawsuit and found Pantalion not negligent. The trial court sustained Brasher's challenge to the sufficiency of the evidence for the jury's verdict without explanation, then amended the order after Relators filed the mandamus petition. Relators argue that the trial court abused its discretion when it granted the motion for new trial despite there being factually and legally sufficient evidence to support the jury's verdict. We conditionally grant relief.

         No court is free to simply substitute its judgment for that of the jury. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009) (orig. proceeding). "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.'" In re Bent, 487 S.W.3d 170, 176 (Tex. 2016) (orig. proceeding) (quoting In re United Scaffolding, Inc., 377 S.W.3d 685, 689 (Tex. 2012)). "If the record does not support the trial court's rationale for ordering a new trial, the appellate court may grant mandamus relief." In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013) (orig. proceeding). "If, despite conformity with the procedural requirements of our precedent, a trial court's articulated reasons are not supported by the underlying record, the new trial order cannot stand." Id. at 758.

         When 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 E.I duPont de Nemours and Company, 463 S.W.3d 80, 85 (Tex. App.-Beaumont 2015, orig. proceeding). The trial court abused its discretion in granting a new trial if the record does not support its stated reasons. Id. "The amount of evidence necessary to support the jury's verdict is far less than that necessary to warrant disregarding the jury's verdict." In re Zimmer, Inc., 451 S.W.3d 893, 906 (Tex. App.-Dallas 2014, orig. proceeding). "Evidence is factually sufficient to support the jury's verdict if the evidence is such that reasonable minds could differ on the meaning of the evidence or the inferences and conclusions to be drawn therefrom." Id.

         The evidence at trial relevant to the jury's findings on negligence included live testimony from Brasher and the investigating officer, and video deposition testimony from Pantalion. Pantalion testified that he first noticed Brasher in his rear-view mirror, at about the rear of his truck in the inside lane. She then passed him on the left. Pantalion claimed he was approximately 200 yards from the stop light when he saw the light change. Pantalion said he was driving the speed limit, which he believed was 35 miles per hour. According to Pantalion, Brasher moved into the right lane when "I was right on her[]" and stopped such a short distance in front of him that he could not react in time to stop his 83, 000-pound loaded Mack truck. According to Pantalion, "It happened so fast, whenever she turned in front of me there like that and then pulled there to the light to stop, that's when I hit her." He denied telling the officer that he had not been paying attention. Additionally, Pantalion denied Brasher's claim that she occupied the right-hand lane for most of a cycle of the red-light before the collision occurred.

         Brasher testified before the jury that she was in the left-hand lane as she approached the intersection. She moved from the left lane to the right lane because she was going to make a right turn some distance past the intersection. Brasher claimed that she stopped in the right-hand lane at the intersection during the yellow caution light and remained there after the light turned red. Brasher did not notice Pantalion's vehicle until he struck her Tahoe. Brasher stated, "I wasn't paying attention to what was behind me because whenever I changed lanes, there was nothing behind me." Brasher stated a 50 miles-per-hour speed limit applied until the intersection. According to Brasher, neither vehicle left skid marks in the straight-on collision.

         Officer James Stephen Hopson, who had previously worked as a truck driver, investigated the accident in his capacity as a Jasper police officer. In his opinion the accident occurred due to inattention by Pantalion. He based his opinion on the location of the vehicles and the impact damage to Brasher's vehicle. Brasher's vehicle stopped at the intersection, and Pantalion's log truck made a concentrated hit where the front of his vehicle contacted the rear of her vehicle. Officer Hopson did not witness the accident. He agreed that he did not know how long Brasher had been in the outside lane and at the intersection when the accident occurred. Officer Hopson agreed that the concentrated hit on Brasher's vehicle could have occurred whether she had been there for one second or for two minutes. A photograph of the rear of Brasher's Tahoe showed damage across the rear and to the right side of the tailgate and rear bumper. According to Officer Hopson, the speed limit changes from 50 miles-per-hour to 40 miles-per-hour at the intersection.

         The trial court's amended order sustained Brasher's challenge to the legal and factual sufficiency of the evidence for the jury's verdict. In the amended order, the trial court stated that it granted Brasher's motion for new trial because

the finding of the jury was against the great weight of the evidence as the evidence supporting Defendant was so lacking as to make the result fundamentally unfair and manifestly unjust. Several witnesses testified and through this testimony it was evident that the defendant, Mr. Pantalion, was inattentive and his negligence was the proximate cause of the accident. Specifically, the testimony of Deputy James Hopson, a law enforcement officer and former truck driver, showed that the impact of the log truck on Plaintiff's vehicle was due to Defendant's inattention and corroborated Plaintiff's version of the event. The only evidence Defendant offered in support of his account of the collision was his own testimony that Plaintiff was in fact at fault. The evidence to support Defendant's bald assertions was so weak as to make the Jury's finding clearly wrong and manifestly unjust.
Further, Defendant's testimony, measured against the testimony corroborating Plaintiff's account of the accident, created no more than a mere surmise or suspicion, and could not prove the truth of this allegation. It was no more than a scintilla of evidence, and is not legally sufficient.

         The new-trial order omits evidence the jury reasonably could have credited in support of its determination of negligence. Brasher testified that until the impact occurred, she was unaware of the presence of Pantalion's vehicle on the roadway. Therefore, her testimony could give rise to an inference that Pantalion was well behind her when she changed lanes and stopped, but she could provide no information concerning Pantalion's behavior before the accident. The primary distinction between Brasher's version and Pantalion's is Pantalion testified that he observed ...


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