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`NUMBER 13-24-00042-CV
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`COURT OF APPEALS
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`THIRTEENTH DISTRICT OF TEXAS
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`CORPUS CHRISTI – EDINBURG
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`IN RE SPACE EXPLORATION TECHNOLOGIES CORP.
`AND LAUREN KRUEGER
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`ON PETITION FOR WRIT OF MANDAMUS
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`MEMORANDUM OPINION
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`Before Justices Longoria, Silva, and Peña
`Memorandum Opinion by Justice Longoria1
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`Relators Space Exploration Technologies Corp. (Space) and Lauren Krueger filed
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`a petition for writ of mandamus asserting that the trial court2 abused its discretion in
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`granting a new trial because its new trial order lacks a sufficient explanation for the ruling
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`1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
`required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
`47.4 (distinguishing opinions and memorandum opinions).
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` This original proceeding arises from trial court cause number 2020-DCL-03939 in the 444th
`District Court of Cameron County, Texas, and the respondent is the Honorable David Sanchez. See id. R.
`52.2.
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` 2
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`and because there is no valid basis to grant a new trial. We deny the petition for writ of
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`mandamus without prejudice.
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`I.
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`BACKGROUND
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`As relevant here, real parties in interest Jose Ruiz, Hector Garcia Jr. (Garcia Jr.),
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`and Humberto Garcia filed suit against relators for personal injuries sustained in an
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`automobile accident. The case was submitted to a jury which found that Krueger was
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`negligent but was not acting within the course and scope of her employment with Space
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`at the time of the accident. The jury awarded $73,500 to Ruiz, $40,000 to Garcia, and
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`$10,000 to Garcia Jr. The trial court entered judgment in accordance with the jury’s
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`verdict. Ruiz and Garcia thereafter filed a motion for new trial premised on improper
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`argument and they requested to supplement the record with demonstrative graphics used
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`at trial. Ruiz and Garcia argued, inter alia, that counsel for relators attacked the integrity
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`of real parties’ counsel, questioned lay witnesses regarding the legal basis for their
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`claims, and argued that the case was “an attorney-driven ‘shakedown.’” Relators filed a
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`response to the motion for new trial asserting that “the arguments of defense counsel
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`during closing were proper because they were supported by the evidence” and that the
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`real parties had not shown that the jury based its verdict on the allegedly improper
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`arguments. After holding a hearing, the trial court granted the motion for new trial. The
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`new trial order states merely that “the incurable arguments by defense counsel more likely
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`than not caused the rendition of the subject verdict.”
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`This original proceeding ensued. By two issues, relators assert that (1) the order
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`granting a new trial does not contain a sufficient explanation, including valid reasons
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`2
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`supported by the record, and (2) relators’ closing argument—“which addressed evidence
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`(admitted without objection) that [real parties] followed their former lawyer’s ‘plan’ and
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`orders in seeking medical treatment from doctors their lawyer selected” was not improper,
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`and if so, it was not an incurable argument that justified a new trial.
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`We have requested but have not received responses to the petition for writ of
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`mandamus from the real parties in interest, and the real parties in interest have filed
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`motions for extension of time to file their responses. See TEX. R. APP. P. 52.4, 52.8(b).
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`Instead, Ruiz and Garcia have filed a motion to abate this original proceeding. They assert
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`that the new trial order “articulates a legally valid reason for granting a new trial, i.e.,
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`incurable jury argument, [but] the order fails to refer to record support for its conclusion
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`or to specify the arguments it found were incurable.” They request that we abate this
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`original proceeding “to allow the trial court to issue a new order that specifically states the
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`reasons for granting the new trial.” Ruiz and Garcia argue that abatement is authorized
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`by Texas Rule of Appellate Procedure 44.4, and good cause for the abatement is shown
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`because this Court “is tasked with a merits-based review of the trial court’s order.” See
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`id. R. 44.4. Ruiz and Garcia assert that if we do not abate this original proceeding, we
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`would be required to issue a full written opinion, then address a second petition for writ of
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`mandamus challenging the reasons stated in the revised new trial order. They thus
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`contend that we should abate this petition for writ of mandamus for purposes of efficiency
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`and judicial economy.
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`This Court requested and received responses to the motion to abate from Garcia
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`Jr. and relators. Garcia Jr. “agrees with and joins” the motion to abate “because the
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`3
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`reasons cited in the motion are legally and practically sound,” although he does not
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`concede that the new trial order is facially invalid. Relators oppose abatement and argue
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`that this Court should hold both that the trial court’s explanation for granting a new trial
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`was insufficient and that the stated ground for a new trial, incurable argument, is not valid.
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`Ruiz and Garcia have filed a reply in support of their motion to abate. In summary,
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`they assert that relators have provided an inadequate record insofar as they have not
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`filed the real parties’ trial exhibits, and the exhibits that they have filed “are not part of an
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`exhibit index certified by the court reporter, nor are they signed and dated by the court
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`reporter.” They assert that abatement, rather than denial of mandamus relief, would best
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`serve the parties and judicial efficiency and economy. Garcia Jr. has filed an additional
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`pleading stating that he is in agreement with these contentions.
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`II.
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`MANDAMUS
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`Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
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`Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
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`840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
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`S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
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`court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
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`USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
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`Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
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`839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two
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`requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
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`proceeding) (per curiam); Walker, 827 S.W.2d at 840.
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`“A writ of mandamus shall issue to correct a clear abuse of discretion committed
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`by a trial court in granting a new trial.” In re Whataburger Rests., LP, 429 S.W.3d 597,
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`598 (Tex. 2014) (orig. proceeding) (per curiam); see In re Toyota Motor Sales, U.S.A.,
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`Inc., 407 S.W.3d 746, 757–58 (Tex. 2013) (orig. proceeding); In re United Scaffolding,
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`Inc., 377 S.W.3d 685, 689 (Tex. 2012) (orig. proceeding). In such a case, the relator lacks
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`an adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P.,
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`290 S.W.3d 204, 209–10 (Tex. 2009) (orig. proceeding).
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`III.
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`NEW TRIALS
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`Because the Texas Constitution guarantees the right to trial by jury, the trial court’s
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`authority to grant a new trial is not “unfettered.” In re Bent, 487 S.W.3d 170, 175 (Tex.
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`2016) (orig. proceeding); see TEX. CONST. art. I, § 15. We employ a two-tier analysis to
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`determine whether a trial court has abused its discretion in granting a new trial. See In re
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`Rudolph Auto., LLC, 674 S.W.3d 289, 301 (Tex. 2023) (orig. proceeding); In re Hightower,
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`580 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding [mand.
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`denied]). First, we examine the facial validity of the order granting a new trial. See In re
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`Bent, 487 S.W.3d at 173. An order granting a new trial must provide “an understandable,
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`reasonably specific explanation why [the parties’] expectations are frustrated by a jury
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`verdict being disregarded or set aside, the trial process being nullified, and the case
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`having to be retried.” Id. at 175–76 (quoting In re Columbia Med. Ctr., 290 S.W.3d at 213).
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`Further, the order must state a legally appropriate reason for the new trial. Id. at 173.
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`Second, we perform a merits-based review of the trial court’s articulated reasons for
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`granting a new trial. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at 758; see
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`also In re Whataburger Rests., L.P., 429 S.W.3d at 598. If the articulated reasons are not
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`supported by the law and the record, mandamus relief is appropriate. In re Toyota Motor
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`Sales, U.S.A., Inc., 407 S.W.3d at 761–62.
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`The two parts of our analysis are “distinct yet closely related.” In re Rudolph Auto.,
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`LLC, 674 S.W.3d at 301. The supreme court recently explained that:
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`A reason [for granting a new trial] might be theoretically plausible,
`but if it is devoid of reference to the evidence, it will be facially insufficient;
`orders that provide no basis for the parties and appellate courts to confirm
`that the court’s determination was the result of careful assessment of the
`actual evidence in the case are conclusory. If the failure to invoke sufficient
`record support is because there is none, or because . . . the evidence in fact
`rebuts the stated reason, the deficiency is not merely facially insufficient but
`also relates to the merits. Such a merits-based deficiency suggests that the
`proffered reason is simply an error. And when a reason for a new trial
`appears to conflate a legal problem with an evidentiary one, the appellate
`court will likewise deem that reason inadequate because it fails on the
`merits. . . .
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`While the grounds for deeming a reason to be inadequate are
`therefore distinct, they can also overlap. The underlying concern, after all,
`is always the same: whether the new[ ]trial order is predicated on clear and
`valid grounds.
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`Id.; see In re Bent, 487 S.W.3d at 177–79.
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`IV.
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`ANALYSIS
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`Based on what has been filed in this case to date, relators, Ruiz, and Garcia agree
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`that the new trial order is insufficient on its face insofar as it fails to provide an adequate
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`explanation for the trial court’s ruling. Garcia Jr. does not concede that the order is facially
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`invalid, but otherwise agrees with abatement as a “swifter remedy” to resolve this issue.
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`Relators further contend, though, that the new trial order fails on the merits, and there is
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`no agreement among the parties regarding this contention. As stated previously, the new
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`trial order states “that the incurable arguments by defense counsel more likely than not
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`caused the rendition of the subject verdict.” The supreme court has explained that a new
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`trial order predicated on incurably harmful argument should “identify the statement,
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`describe the context, and apply settled law deeming the statement incurably harmful,” or
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`if the argument is not inherently curable but incurable in the matter at issue, the new trial
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`order “must explain why the otherwise-curable problem . . . was nonetheless not
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`susceptible to cure.” In re Rudolph Auto., LLC, 674 S.W.3d at 312–13.
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`We first address Ruiz and Garcia’s motion to abate and their suggestion that
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`abatement is authorized by Rule 44.4. See TEX. R. APP. P. 44.4. Rule 44.4, entitled
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`“Remediable Error of the Trial Court,” provides:
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`(a) Generally. A court of appeals must not affirm or reverse a judgment
`or dismiss an appeal if:
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`(1)
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`the trial court’s erroneous action or failure or refusal to act
`prevents the proper presentation of a case to the court of
`appeals; and
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`the trial court can correct its action or failure to act.
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`(2)
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`Court of Appeals Direction if Error Remediable. If the circumstances
`described in (a) exist, the court of appeals must direct the trial court
`to correct the error. The court of appeals will then proceed as if the
`erroneous action or failure to act had not occurred.
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`(b)
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`Id. We disagree that this rule controls our analysis in this case. On its face, Rule 44.4
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`applies to appeals rather than original proceedings. See id. R. 44.4(a) (prohibiting an
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`appellate court from affirming or reversing a judgment or dismissing an appeal). Further,
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`Rule 44.4 does not “confer[] authority on an appellate court to abate an appeal while there
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`are significant issues yet to be determined by the trial court.” Garcia v. Comm’rs Ct. of
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`Cameron Cnty., 101 S.W.3d 778, 786 (Tex. App.—Corpus Christi–Edinburg 2003, no
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`pet.); see In re S.J.H., 594 S.W.3d 682, 691 (Tex. App.—El Paso 2019, no pet.) (refusing
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`to abate where the error required more than the determination of perfunctory issues and
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`where abatement “risks preventing full and fair litigation”); Trane US, Inc. v. Sublett, 501
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`S.W.3d 783, 787–88 (Tex. App.—Amarillo 2016, no pet.) (refusing to abate where the
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`necessary ruling would not be ministerial or perfunctory in nature and “the issues are
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`contested and the parties may adduce evidence”). We consider that the trial court’s
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`responsibility to provide a reasonably specific explanation for setting aside the jury’s
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`verdict that is based on the facts and circumstances of the case is neither ministerial, nor
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`perfunctory, but is a significant matter. See In re Columbia Med. Ctr., 290 S.W.3d at 213
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`(stating that “a vague explanation [for] setting aside a jury verdict does not enhance
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`respect for the judiciary or the rule of law, detracts from transparency . . . and does not
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`sufficiently respect the reasonable expectations of parties and the public when a lawsuit
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`is tried to a jury”); see also TEX. CONST. art. I, § 15. Based on the foregoing, we conclude
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`that abatement is not an acceptable option in these circumstances.3
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`We turn our attention to relators’ contention that we should grant mandamus relief
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`on grounds that the new trial order fails because it is both facially invalid and lacks merit.
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`Relators assert that “when a new trial order is invalid, whether facially, substantively, or
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`both, the courts of appeals uniformly (conditionally) grant the writ of mandamus and direct
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`the order to be vacated,” and real parties “offer no reason that there should be any
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`3 In so ruling, we do not foreclose the possibility that abatement might be an appropriate remedy
`for issues raised in other original proceedings, but we leave that decision to the specific facts and
`circumstances presented in those cases. See, e.g., TEX. R. APP. P. 2, 52.10.
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`different result in this proceeding.” Relators thus urge that we direct the real parties to file
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`responses to their petition for writ of mandamus, and that such responses would
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`necessarily “admit that the writ should issue and the new trial order be vacated.”
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`Relators, Ruiz, and Garcia appear to agree that the new trial order is facially
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`insufficient; however, Garcia Jr. does not concede this issue. The parties disagree
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`regarding whether relief should issue on the merits. The parties contend variously that we
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`should grant relief, abate, or deny relief. Thus, we are not presented with a situation where
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`the parties agree as to the relief sought as to either the facial validity of the new trial order
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`or its merits. We need not further address this state of events, though, because the record
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`does not indicate that relators either advised the trial court that its new trial order was
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`facially insufficient or requested it to issue a new order containing a sufficient explanation
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`for its ruling. This omission runs afoul of the “demand” principle underlying mandamus
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`review. Because mandamus is an extraordinary remedy, “the right to mandamus relief
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`generally requires a predicate request for action by the respondent, and the respondent’s
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`erroneous refusal to act.” In re Eagleridge Operating, LLC, 642 S.W.3d 518, 525 (Tex.
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`2022) (orig. proceeding) (quoting In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017) (orig.
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`proceeding) (per curiam)). The record does not suggest, and the parties do not argue that
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`such a request would have been futile. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999)
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`(orig. proceeding) (per curiam); Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991)
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`(orig. proceeding); see also In re De Monserat, No. 05-23-01197-CV, 2024 WL 575852,
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`at *1–2 (Tex. App.—Dallas Feb. 13, 2024, orig. proceeding) (mem. op.) (concluding under
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`different circumstances that a demand to modify a new trial order that was facially invalid
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`would have been futile). “Equity generally is not served by issuing an extraordinary writ
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`against a trial court judge on a ground that was never presented in the trial court and that
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`the trial judge thus had no opportunity to address.” In re Jarvis, 431 S.W.3d 129, 139
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`(Tex. App.—Houston [14th Dist.] 2013, orig. proceeding).
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`Leaving that aside, relators’ request that we review the merits of the new trial order
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`in this proceeding is untenable. Leaving aside any issues regarding the record, see TEX.
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`R. APP. P. 52.7(a)(2), we would be required to speculate as to which arguments the trial
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`court found objectionable. We do not resort to “speculation or supposition” when
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`determining whether to issue extraordinary relief. In re Carrington, 438 S.W.3d 867, 870
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`(Tex. App.—Amarillo 2014, orig. proceeding); see In re Cap Rock Elec. Co-op., Inc., 35
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`S.W.3d 222, 226 (Tex. App.—Texarkana 2000, orig. proceeding); In re Colony Ins., 978
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`S.W.2d 746, 747 (Tex. App.—Dallas 1998, orig. proceeding [mand. denied]). In this
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`regard, we would be required to independently scour the record to identify allegedly
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`improper argument and determine whether that argument was incurable. We have no
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`duty or right to perform an independent review of the record and the applicable law to
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`determine whether there was a clear abuse of discretion in granting the new trial. See
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`N&A Props., Inc. v. PH Steel, Inc., 656 S.W.3d 556, 568 (Tex. App.—El Paso 2022, no
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`pet.); Manning v. Johnson, 642 S.W.3d 871, 884 (Tex. App.—Texarkana 2021, no pet.);
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`In re Phommivong, 560 S.W.3d 280 (Tex. App.—Amarillo 2016, orig. proceeding). “Were
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`we to engage in such activities, we would be abandoning our role as judges and become
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`an advocate for that party.” Walker v. Eubanks, 667 S.W.3d 402, 408 (Tex. App.—
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`Houston [1st Dist.] 2022, no pet.).
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`V.
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`CONCLUSION
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`The Court, having examined and fully considered the petition for writ of mandamus,
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`the motion to abate, the responses, and the applicable law, is of the opinion that relators
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`have not met their burden to obtain mandamus relief. Accordingly, we withdraw our
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`outstanding request for the real parties to file responses to the petition for writ of
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`mandamus, and we dismiss as moot their motions for extension of time to file their
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`responses. We deny Ruiz and Garcia’s motion to abate. We deny relators’ petition for writ
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`of mandamus without prejudice.
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`NORA L. LONGORIA
`Justice
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`Delivered and filed on the
`28th day of March, 2024.
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`11
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