Court of Appeals of Texas, Ninth District, Beaumont
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
McKeithen, C.J., Kreger and Johnson, JJ.
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.
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.
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."
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.
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.
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
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
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