FILED
`24-0290
`4/15/2024 12:00 AM
`tex-86630517
`SUPREME COURT OF TEXAS
`BLAKE A. HAWTHORNE, CLERK
`
`No. ___________
`
`
`
`
`
`In the Supreme Court of Texas
`
`
`In re SPACE EXPLORATION TECHNOLOGIES CORP. and
`LAUREN KRUEGER,
`Relators.
`
`
`
`Original Proceeding from the 444th District Court
`Cameron County, Texas, Trial Court Cause No. 2020-DCL-03939,
`Honorable David A. Sanchez, Presiding
`Following denial of mandamus relief by the
`Thirteenth Court of Appeals at Corpus Christi, No. 13-24-00042-CV
`
`PETITION FOR WRIT OF MANDAMUS
`
`
`
`
`
`
`
`ROERIG, OLIVEIRA & FISHER LLP
`D. Alan Erwin
`State Bar No. 06653020
`10225 N. 10th Street
`McAllen, Texas 78504
`(956) 393-6300
`aerwin@rofllp.com
`
`Counsel for Relator Lauren Elizabeth
`Krueger
`
`
`MORGAN, LEWIS & BOCKIUS LLP
`William R. Peterson
`State Bar No. 24065901
`william.peterson@morganlewis.com
`Michelle D. Pector
`State Bar No. 24027726
`michelle.pector@morganlewis.com
`Jared Wilkerson
`State Bar No. 24084096
`jared.wilkerson@morganlewis.com
`1000 Louisiana, Suite 4000
`Houston, Texas 77002
`(713) 890-5000
`(713) 890-5001 (Fax)
`
`ROERIG, OLIVEIRA & FISHER LLP
`David Oliveira
`
`State Bar No. 15254675
`10225 N. 10th Street
`McAllen, Texas 78504
`(956) 393-6300
`doliveira@rofllp.com
`
`
`Counsel for Relator Space Exploration
`Technologies Corp.
`
`
`
`

`

`IDENTITIES OF PARTIES AND COUNSEL
`
`The following constitutes a list of all parties to the cause below and the names
`
`and addresses of all counsel:
`
`Relators:
`
`Counsel for Space
`Exploration Technologies
`Corp.:
`
`Counsel for Lauren
`Krueger:
`
`
`Space Exploration Technologies Corp. and Lauren
`Krueger
`
`William R. Peterson
`Michelle D. Pector
`Jared Wilkerson
`MORGAN, LEWIS & BOCKIUS LLP
`1000 Louisiana Street, Suite 4000
`Houston, Texas 77002
`(713) 890-5000
`william.peterson@morganlewis.com
`michelle.pector@morganlewis.com
`jared.wilkerson@morganlewis.com
`
`David Oliveira
`ROERIG, OLIVEIRA & FISHER LLP
`10225 N. 10th Street
`McAllen, TX 78504
`(956) 393-6300
`doliveira@rofllp.com
`
`D. Alan Erwin
`ROERIG, OLIVEIRA & FISHER LLP
`10225 N. 10th Street
`McAllen, TX 78504
`(956) 393-6300
`aerwin@rofllp.com
`
`i
`
`

`

`Respondent:
`
`The Honorable David A. Sanchez
`Cameron County Courthouse
`974 E. Harrison St.
`Judicial Building, First Floor
`Brownsville, Texas 78520
`(956) 547-7034
`
`Real Parties in Interest:
`
`Jose Ruiz, Humberto Garcia, and Hector Garcia Jr.
`
`Counsel for Jose Ruiz and
`Humberto Garcia:
`
`Counsel for Hector Garcia,
`Jr.:
`
`Brandy Wingate Voss
`208 W. Cano St.
`Edinburg, Texas 78539
`(956) 688-9033 main
`brandy@brandyvosslaw.com
`
`Michael Cowen
`COWEN RODRIGUEZ PEACOCK
`6243 IH-10 West, Suite 801
`San Antonio, Texas 78201
`(210) 941-1301
`efilings@cowenlaw.com
`
`Sarah Durham
`BLIZZARD & ZIMMERMAN ATTORNEYS
`1174 North 3rd Street
`Abilene, Texas 79601
`sarah@blizzardlawfirm.com
`
`Michael H. Garatoni
`THE DASPIT LAW FIRM
`9601 McAllister Freeway, Suite 916
`San Antonio, Texas 78216
`(888) 273-1045
`e-service@daspitlaw.com
`
`
`
`ii
`
`

`

`Table of Contents
`
`Identities of Parties And Counsel ................................................................................ i
`
`Table of Contents ................................................................................................... viii
`
`Table of Authorities ................................................................................................ viii
`
`Statement of the Case ............................................................................................. viii
`
`Statement of Jurisdiction ........................................................................................... ix
`
`Issues Presented ......................................................................................................... x
`
`Introduction ................................................................................................................ 1
`
`Statement of Facts ...................................................................................................... 3
`
`Standard for Mandamus ........................................................................................... 10
`
`Argument .................................................................................................................. 11
`
`I.
`
`After Opposing a New Trial, Relators Were Not Required to
`“Advise” the Trial Court or Request a New Order Before Seeking
`Mandamus. ..................................................................................................... 11
`
`A.
`
`B.
`
`C.
`
`This Court—and the Courts of Appeals—Regularly Grant
`Mandamus to Vacate Erroneous New Trial Orders in These
`Circumstances. .................................................................................... 11
`
`The Court of Appeals Misapplied the Request-and-Refusal
`Principle. .............................................................................................. 13
`
`The Trial Court Was Fully Advised of the Deficiencies in Its
`Order. ................................................................................................... 15
`
`D.
`
`The Decision Below Creates Procedural Confusion. .......................... 16
`
`II.
`
`The Order Granting a New Trial Is Facially Invalid. .................................... 17
`
`III. No Ground for a New Trial Exists. ................................................................ 18
`
`iii
`
`

`

`A.
`
`Closing Argument Was Proper. ........................................................... 19
`
`1.
`
`2.
`
`SpaceX’s closing argument was grounded in the
`evidence. ................................................................................... 19
`
`Standard Fire Insurance Co. v. Reese controls and
`confirms that SpaceX’s closing arguments were
`proper......................................................................................... 21
`
`B.
`
`Even If SpaceX’s Argument Were Improper, It Did Not Rise
`to the High Level of “Incurable.” ........................................................ 22
`
`Conclusion & Prayer for Relief ............................................................................... 23
`
`Rule 52.3(j) Certification ......................................................................................... 25
`
`Certificate of Compliance ........................................................................................ 26
`
`Certificate of Service ............................................................................................... 27
`
`
`
`
`
`
`
`iv
`
`

`

`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`In re Baylor Med. Ctr.,
`289 S.W.3d 859 (Tex. 2009) (orig. proceeding) ................................................ 11
`
`In re Bent,
`487 S.W.3d 170 (Tex. 2016) (orig. proceeding) .......................................... 11, 13
`
`In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P.,
`290 S.W.3d 204 (Tex. 2009) (orig. proceeding) ................................................ 11
`
`In re Cook,
`356 S.W.3d 493 (Tex. 2011) (orig. proceeding) ................................................ 11
`
`In re Coppola,
`535 S.W.3d 506 (Tex. 2017) (orig. proceeding) ................................................ 14
`
`In re De Monserat,
`No. 05-23-01197-CV, 2024 WL 575852 (Tex. App.—Dallas Feb.
`13, 2024, orig. proceeding) ................................................................................. 12
`
`In re E.I. du Pont de Nemours & Co.,
`289 S.W.3d 861 (Tex. 2009) (orig. proceeding) ................................................ 11
`
`In re Gray Law, L.L.P.,
`2006 WL 1030206 (Tex. App.—Fort Worth, Apr. 20, 2006, orig.
`proceeding) ......................................................................................................... 14
`
`IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
`938 S.W.2d 440 (Tex. 1997) .............................................................................. 16
`
`In re Lapuerta,
`No. 01-23-00641-CV, 2023 WL 5963228 (Tex. App.—Houston
`[1st Dist.] Sept. 14, 2023, orig. proceeding) ....................................................... 15
`
`Living Centers of Tex., Inc. v. Penalver,
`256 S.W.3d 678 (Tex. 2008) .............................................................................. 22
`
`v
`
`

`

`
`
`In re N. Nat. Gas Co.,
`327 S.W.3d 181 (Tex. App.—San Antonio 2010, orig. proceeding) ................. 14
`
`In re Obialo,
`No. 01-23-00382-CV, 2023 WL 4356190 (Tex. App.—Houston
`[1st Dist.] July 6, 2023, orig. proceeding) .......................................................... 14
`
`In re Perritt,
`992 S.W.2d 444 (Tex. 1999) (orig. proceeding) .......................................... 13, 14
`
`Phillips v. Bramlett,
`288 S.W.3d 876 (Tex. 2009) .............................................................................. 22
`
`In re Prudential Ins. Co. of Am.,
`148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ................................................ 14
`
`In re Rudolph Auto., LLC,
`674 S.W.3d 289 (Tex. 2023) .......................................................................passim
`
`In re Saldivar,
`2017 WL 5760319 .............................................................................................. 16
`
`In re Salinas,
`No. 13-09-00599-CV, 2010 WL 196887, at *1 (Tex. App.—
`Corpus Christi–Edinburg Jan. 20, 2010, orig. proceeding) .......................... 12, 13
`
`In re Simms,
`No. 14-19-00541-CV, 2019 WL 3822171 (Tex. App.—Houston
`[14th Dist.] Aug. 15, 2019, orig. proceeding) .................................................... 12
`
`In re Smith,
`No. 06-10-00116-CV, 2010 WL 4679853 (Tex. App.—Texarkana
`Nov. 18, 2010, orig. proceeding) ........................................................................ 15
`
`In re Spotted Lakes, LLC,
`No. 04-23-00815-CV, 2024 WL 463348 (Tex. App.—San Antonio
`Feb. 7, 2024, orig. proceeding) ........................................................................... 12
`
`Standard Fire Ins. Co. v. Reese,
`584 S.W.2d 835 (Tex. 1979) ............................................................ 19, 20, 21, 23
`
`vi
`
`

`

`
`
`In re Torres,
`No. 13-20-00019-CV, 2020 WL 1615667 (Tex. App.—Corpus
`Christi-Edinburg Apr. 2, 2020, orig. proceeding) .............................................. 17
`
`In re Toyota Motor Sales, U.S.A., Inc.,
`407 S.W.3d 746 (Tex. 2013) (orig. proceeding) ................................................ 19
`
`Tunad Enterprises, Inc. v. Palma,
`No. 05-17-00208-CV, 2018 WL 3134891 (Tex. App.—Dallas June
`27, 2018, no pet.) ................................................................................................ 16
`
`In re United Scaffolding, Inc.,
`377 S.W.3d 685 (Tex. 2012) (orig. proceeding) ................................................ 11
`
`Statutes
`
`Government Code Section 22.002(a) ...................................................................... vii
`
`Other Authorities
`
`Tex. R. Civ. P. 269(e) .............................................................................................. 19
`
`vii
`
`

`

`
`
`STATEMENT OF THE CASE
`
`Nature of the Case: Minor car accident. A jury awarded Plaintiffs a small
`portion of the millions of dollars in damages they sought
`from Lauren Krueger.
`
`The jury also found that she was not acting within the course
`and scope of her employment for Space Exploration
`Technologies Corp. (“SpaceX”).
`
`After entry of final judgment, two of the three plaintiffs
`moved for a new trial. MR2053-56. No supporting evidence
`was referenced in or attached to that motion.
`
`Respondent:
`
`Hon. David A. Sanchez
`444th Judicial District Court of Cameron County
`
`Action from Which
`Relator Seeks
`Relief:
`
`On December 13, 2023, Respondent signed an order
`granting a new trial on the basis of unidentified “incurable”
`argument in closing by defense counsel.
`
`Court of Appeals:
`
`Petition for writ of mandamus filed with the Thirteenth
`Court of Appeals on January 11, 2024. MR2193-2247.
`
`Court of Appeals’
`Disposition:
`
`Opinion by Justice Nora Longoria, joined by Justices
`Clarissa Silva and Aron Pena. No. 13-24-00042-CV, 2024
`WL 1340854 (Tex. App.—Corpus Christi-Edinburg Mar.
`28, 2024). Appx3-13.
`
`Despite acknowledging that the new trial order is facially
`invalid, the court of appeals sua sponte denied mandamus
`relief (without prejudice) because Relators did not “advis[e]
`the trial court that its new trial order was facially
`insufficient” or request “a new order containing a sufficient
`explanation for its ruling.” Appx11.
`
`viii
`
`

`

`
`
`STATEMENT OF JURISDICTION
`
`The Court has jurisdiction to issue the writ of mandamus against a district
`
`judge under Section 22.002(a) of the Government Code.
`
`ix
`
`

`

`
`
`ISSUES PRESENTED
`
`1. Whether a party that opposed a motion for a new trial must “advis[e] the trial
`
`court that its new trial order was facially insufficient” or request “a new order
`
`containing a sufficient explanation” before petitioning for a writ of mandamus
`
`directing the order to be vacated.
`
`2. Whether the order granting a new trial contains a sufficient explanation,
`
`including valid reasons supported by the record.
`
`3. Whether SpaceX’s closing argument—which addressed evidence (admitted
`
`without objection) that Plaintiffs followed their former lawyer’s “plan” in seeking
`
`medical treatment from doctors their lawyer selected—was improper and, if so,
`
`whether it was an incurable argument that justified a new trial.
`
`
`
`x
`
`

`

`
`
`INTRODUCTION
`
`“[D]isregarding a jury’s verdict is an unusually serious act that imperils a
`
`constitutional value of immense importance—the authority of a jury.” In re Rudolph
`
`Auto., LLC, 674 S.W.3d 289, 302 (Tex. 2023).
`
`This petition concerns a new-trial order that everyone agrees is invalid. Real
`
`Parties Jose Ruiz and Humberto Garcia (“Movants”), who wrote the order, admit
`
`that it “fails to refer to record support for its conclusion or to specify the arguments
`
`it found were incurable.” MR2353.1 And the court of appeals apparently
`
`acknowledged that it “was facially insufficient.” Appx11.
`
`The court of appeals nonetheless denied mandamus based on a rule of
`
`procedure that it invented sua sponte: Before petitioning for mandamus to seek
`
`vacatur of a facially (and substantively) invalid new-trial order, a party must
`
`“advis[e] the trial court that its new trial order was facially insufficient” or request
`
`“a new order containing a sufficient explanation.” Appx11.
`
`No other case has applied such a requirement. Courts regularly grant
`
`mandamus to vacate invalid new trial orders without requiring additional post-order
`
`filings. Relators opposed a new trial and sought mandamus to have the order vacated.
`
`Nothing more was required.
`
`
`1 Real Party Hector Garcia, Jr., represented by separate counsel, has not expressly
`conceded the order’s invalidity but has never defended it. MR2284-85.
`
`1
`
`

`

`
`
`This Court should cure the procedural confusion created below and issue the
`
`writ directing the new-trial order to be vacated, both because the order is facially
`
`invalid and because SpaceX’s closing argument—which was based on evidence
`
`admitted without objection—was not improper, much less incurable.
`
`2
`
`

`

`
`
`STATEMENT OF FACTS
`
`After a Minor Car Accident, Plaintiffs Follow Their Lawyer’s “Plan” in
`Seeking Medical Treatment
`
`While commuting, Lauren Krueger, a SpaceX engineer, was involved in a
`
`minor, three-car accident. A pickup truck containing Plaintiffs and Alejandro
`
`Arellano (a passenger who did not join the suit) was bumped at about 7.5 miles per
`
`hour. MR734, 1596, 1788-92.
`
`Plaintiffs exited the truck, walked around, did not ask for an ambulance or
`
`medical attention, and stayed at the scene for an hour. MR783-87, 832-33. They told
`
`a police officer at the scene that they were unharmed. MR1788-92. Humberto2
`
`testified that they were “bored,” MR1149, and Jose testified that nobody was hurt.
`
`MR1010.
`
`Martin Ruiz Jr., Plaintiffs’ boss and Jose’s nephew, learned of the accident
`
`shortly after it happened. MR1098. He immediately spoke to a lawyer, MR1098, and
`
`then directed Plaintiffs and Arellano to visit a nearby clinic. MR1102.
`
`After taking X-rays, which were “unremarkable” and showed “no significant
`
`acute abnormalities,” the clinic released Plaintiffs and Arellano to work that same
`
`day. E.g., MR1238.
`
`
`2 Where use of the last name would create ambiguity, we refer to an individual by
`first name.
`
`3
`
`

`

`
`
`But rather than return to work, Martin had Plaintiffs and Arellano driven to
`
`the lawyer’s office in McAllen, where the lawyer signed them up and sent them to a
`
`chiropractor. MR835. Martin testified that Plaintiffs then “followed [the lawyer]’s
`
`plan,” MR1108-09, including receiving extensive therapy treatments for many
`
`months from providers chosen by the lawyers. MR838. Like the X-rays, MRIs
`
`indicated that Plaintiffs suffered no traumatic injury and had, at most, temporary
`
`soft-tissue conditions. MR1297. Plaintiffs returned to their “usual jobs” the day after
`
`the accident and continued working. MR1019.
`
`Plaintiffs Sue Krueger and SpaceX
`
`Plaintiffs—represented by new counsel—sued Krueger and SpaceX in August
`
`2020, shortly after their employer, Ruiz Erectors, completed its project at SpaceX.
`
`MR1158, MR1.
`
`At trial in August 2023, Plaintiffs abandoned any claims for the costs of
`
`medical treatment but collectively sought more than $3 million for pain and
`
`suffering. MR1735.
`
`During trial, the jury heard extensive evidence and testimony regarding the
`
`involvement of Plaintiffs’ previous counsel in their medical treatment:
`
` Humberto, Jose, and Arellano testified they received unrequested
`medical treatments—which they would not otherwise have received—
`at the direction of counsel. MR835-40, 1029-30, 1034-35, 1044, 1166-
`68.
`
`4
`
`

`

`
`
` Martin testified it was the lawyer’s “call” to have Plaintiffs taken to
`another doctor, despite being released by the clinic to return to work.
`MR 1108.
`
` When asked why Plaintiffs were taken to another doctor, Martin
`testified, “At that point, it was [the lawyer]’s . . . calls[.]” MR1108. He
`confirmed that Plaintiffs “followed [the lawyer]’s plan” thereafter.
`MR1108-09.
`
` Arellano testified they were not given a choice to go home after the
`accident—they were forced to go to the lawyer’s office and then to a
`chiropractor. MR836-39.
`
` Jose and Humberto both testified that their lawyer selected their
`medical providers. MR1029-30, 1165-66.
`
` Humberto testified that much of the treatment his lawyers sent him to
`was “a waste of time.” MR1167.
`
` Dr. Pechero, Plaintiffs’ surgeon, testified that his office coordinated
`with Plaintiffs’ counsel to operate on Jose’s arthritis, which was
`unrelated to the car accident. MR1281-1306.
`
`None of this testimony was objected to at trial.
`
`SpaceX Relies on this Evidence in Closing Argument
`
`Unsurprisingly, SpaceX relied on this evidence in closing to argue that the
`
`extent of Plaintiffs' medical treatment was unnecessary and thus that their injuries
`
`were not as severe as the medical treatment would suggest. Counsel for SpaceX
`
`argued, “[T]here was a lawyer-driven plan that was created and put into motion on
`
`the day of the accident to manufacture an opportunity to cash in[.]” MR1710-14
`
`(arguing that plaintiffs have the burden “to show you that there is a basis for their
`
`5
`
`

`

`
`
`claim and that this lawyer-driven plan that was designed to create a shakedown was
`
`valid”).
`
`During closing, Movants objected once to SpaceX’s reference to counsel but
`
`failed to secure a ruling (much less request a curative instruction) after the court told
`
`defense counsel, “Let’s move forward. Move on.” MR1712. After the jury was
`
`excused, Movants’ counsel waived asserting a mistrial. MR1762.
`
`The jury awarded Plaintiffs sizable (in Relators’ view, excessive) damages:
`
`$73,500 (Jose), $40,000 (Humberto), and $10,000 (Hector). MR2036-44. The jury
`
`also found that Krueger was not acting in the scope of her employment for SpaceX.
`
`MR2039.
`
`The trial court entered judgment on the verdict on September 22. MR2045.
`
`The Trial Court Grants a New Trial
`
`On October 22, Movants filed a conclusory two-and-a-half-page motion for
`
`new trial. MR2053. It cited no evidence and attached no exhibits.
`
`Relators opposed the motion, explaining that the closing argument was
`
`properly based on evidence admitted without objection in the record and that, in any
`
`event, Movants could not possibly satisfy the high bar for “incurable” argument.
`
`MR2065-70. Relators cautioned that “courts must ‘point to evidence’ in granting a
`
`motion for new trial.” MR2061 (quoting In re Rudolph Auto., LLC, 674 S.W.3d 289,
`
`300 (Tex. 2023)). They explained that the motion failed to point to any evidence,
`
`6
`
`

`

`
`
`exhibits, or record citations that could support a new trial and submitted a proposed
`
`order denying the motion. MR2346.
`
`On December 13, less than 48 hours after the hearing, MR2166-82, the trial
`
`court signed Movants’ proposed one-page order granting a new trial without
`
`alteration. Appx1. The order, which fails to cite any evidence or identify any
`
`improper arguments, states only, “The Court finds that the incurable arguments by
`
`defense counsel more likely than not caused the rendition of the subject verdict.”
`
`Appx1.
`
`Relators Petition for Mandamus
`
`On January 11, Relators petitioned for writ of mandamus to the Thirteenth
`
`Court of Appeals. MR2193. Relators argued both that the order failed to make
`
`specific findings and that SpaceX’s closing argument was proper and not
`
`“incurable.” MR2206-07.
`
`The court of appeals requested a response within ten days. MR2257-58.
`
`Relators consented to thirty-day extensions sought by Real Parties in Interest.
`
`MR2267.
`
`Rather than respond, however, Movants filed a motion to “abate” the petition
`
`for writ of mandamus, in which they conceded the new-trial order’s invalidity.
`
`MR2276. Relators opposed, pointing out that Movants’ concession meant that
`
`mandamus should be granted. MR2316.
`
`7
`
`

`

`
`
`On the day their response was due, Real Parties sought a second extension,
`
`MR2296, which Relators opposed. MR2304 (noting that counsel’s duty of candor
`
`would require consenting to the writ). The deadline for Real Parties’ responses
`
`passed without any action by the court of appeals or filing by Real Parties.
`
`During the three months since Relators filed their petition, Real Parties have
`
`not asked the trial court to sign a revised new trial order. Nor has the trial court—
`
`despite being fully “advised” to the invalidity of its new trial order by Relators’
`
`petition for writ of mandamus—signed a revised order with a different explanation.
`
`The Court of Appeals Denies Mandamus on Procedural Grounds
`
`On March 28, the Corpus Christi Court of Appeals denied mandamus without
`
`prejudice. Appx13.
`
`The opinion apparently acknowledges the facial invalidity of the new-trial
`
`order. Appx11. It nonetheless denies mandamus, sua sponte holding that before
`
`petitioning for mandamus, Relators were first required to “advis[e] the trial court
`
`that its new trial order was facially insufficient” or request “a new order containing
`
`a sufficient explanation.” Appx11.
`
`With respect to Relators’ contention that the arguments in the new-trial motion
`
`conflicted with this Court’s precedent, the court of appeals stated that reviewing the
`
`merits was “untenable” because “we would be required to speculate as to which
`
`arguments the trial court found objectionable.” Appx12.
`
`8
`
`

`

`
`
`Relators now petition this Court for a writ of mandamus, ordering the trial
`
`court to vacate the order granting a new trial.
`
`9
`
`

`

`
`
`STANDARD FOR MANDAMUS
`
`Mandamus will lie when a district court issues an erroneous new-trial order
`
`because there is no adequate remedy by appeal. Rudolph Auto., 674 S.W.3d at 299
`
`n.5 (citing In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d
`
`204, 209-10 (Tex. 2009) (orig. proceeding)).
`
`10
`
`

`

`
`
`I.
`
`ARGUMENT
`
`After Opposing a New Trial, Relators Were Not Required to “Advise” the
`Trial Court or Request a New Order Before Seeking Mandamus.
`
`Relators opposed the motion for a new trial. MR2059. After the trial court
`
`signed the new trial order (drafted by Movants), Relators properly sought mandamus
`
`to vacate the order. Nothing more was required.
`
`The court of appeals erred by holding that Relators had some additional
`
`obligation to “advise[]” the trial court or request a “new order containing a sufficient
`
`explanation” before petitioning for mandamus.
`
`A. This Court—and the Courts of Appeals—Regularly Grant
`Mandamus to Vacate Erroneous New Trial Orders in These
`Circumstances.
`
`Courts routinely grant petitions for writs of mandamus to vacate erroneous
`
`new-trial orders without imposing the additional procedural hurdles imposed below.
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`This Court first held in 2009 that trial courts must specify the reasons for
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`granting a new trial. Columbia Med. Ctr., 290 S.W.3d at 204. Over the following 15
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`years, this Court has granted six petitions for writs of mandamus involving facially
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`invalid new-trial orders. Rudolph Auto., 674 S.W.3d at 289; In re Bent, 487 S.W.3d
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`170 (Tex. 2016) (orig. proceeding); In re United Scaffolding, Inc., 377 S.W.3d 685
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`(Tex. 2012) (orig. proceeding); In re Cook, 356 S.W.3d 493 (Tex. 2011) (orig.
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`proceeding); In re Baylor Med. Ctr., 289 S.W.3d 859 (Tex. 2009) (orig. proceeding);
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`In re E.I. du Pont de Nemours & Co., 289 S.W.3d 861 (Tex. 2009) (orig. proceeding).
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`11
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`None of these decisions suggests that the relator, after the trial court signed the order,
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`made (or was required to make) some additional filing concerning its form.
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`The courts of appeals also routinely grant mandamus relief directing the
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`vacatur of new-trial orders without any suggestion that some additional “advisory”
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`filing is necessary. E.g., In re Spotted Lakes, LLC, No. 04-23-00815-CV, 2024 WL
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`463348, at *4 (Tex. App.—San Antonio Feb. 7, 2024, orig. proceeding); In re Simms,
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`No. 14-19-00541-CV, 2019 WL 3822171, at *2 (Tex. App.—Houston [14th Dist.]
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`Aug. 15, 2019, orig. proceeding).
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`Aside from the decision below, we have found only two even slightly contrary
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`examples. In In re De Monserat, the only case cited by the court below, the Dallas
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`Court of Appeals “conditionally grant[ed] the writ because the trial court’s [new-
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`trial] order is facially deficient.” No. 05-23-01197-CV, 2024 WL 575852, at *1-2
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`(Tex. App.—Dallas Feb. 13, 2024, orig. proceeding). The court of appeals concluded
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`that “any further action in the trial court would be futile because there is nothing
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`further for the trial court to consider regarding the facial invalidity of its new trial
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`order.” Id. at *2. Indeed, in that case, the real party diligently sought to fix the error.
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`Real Parties here should not be rewarded for failing to seek correction of an order
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`that Movants wrote, did not seek to fix, and concede is invalid.
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`In the other, In re Salinas, the relators sought mandamus “to compel the trial
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`court to reasonably specify the basis for granting a new trial in this cause.” No.
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`13-09-00599-CV, 2010 WL 196887, at *1 (Tex. App.—Corpus Christi–Edinburg
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`Jan. 20, 2010, orig. proceeding). That request, the court of appeals held, should have
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`been made in the first instance in the trial court.
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`In contrast to Salinas, Relators sought a “writ of mandamus directing the trial
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`court to vacate its [new-trial] order signed on December 13, 2023.” MR2244. See
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`Rudolph Auto., 674 S.W.3d at 314 (“We therefore conditionally grant mandamus
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`relief and direct the district court to vacate its new-trial order, harmonize the verdict,
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`and proceed in the normal course with the post-trial stages of litigation.”); In re Bent,
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`487 S.W.3d at 184 (“We conclude that three of the trial court’s bases for ordering a
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`new trial fail to satisfy the facial requirements[.] . . . [T]he court of appeals acted
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`appropriately in conditionally granting mandamus relief directing the trial court to
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`vacate its order and enter judgment on the jury’s verdict.”). Relators fully preserved
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`their entitlement to that relief by opposing the motion for a new trial in the trial court.
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`None of this Court’s cases supports the procedural steps demanded by the
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`court below as a prerequisite for mandamus.
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`B.
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`The Court of Appeals Misapplied the Request-and-Refusal
`Principle.
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`The court of appeals went astray when it misinterpreted this Court’s
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`pronouncement that “mandamus relief generally requires a predicate request for
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`some action and a refusal of that request.” In re Perritt, 992 S.W.2d 444, 446 (Tex.
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`1999) (orig. proceeding) (emphasis added). This principle is perfectly correct when
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`a party seeks to compel action by the trial court, such as disqualification, id. at 447;
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`quashing a jury demand, In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 140-41
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`(Tex. 2004) (orig. proceeding); or granting a motion to designate responsible third
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`parties, In re Coppola, 535 S.W.3d 506, 507 (Tex. 2017) (orig. proceeding).
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`But the principle applies differently where, as here, the relator opposed an
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`action taken by the trial court and seeks mandamus to vacate it. In these
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`circumstances, the opposition satisfies any “request” requirement:
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`Northern’s complaint in this mandamus is that the trial court improperly
`granted a new trial. Northern opposed the granting of a new trial, which
`was to no avail when the trial court signed an order purportedly granting
`the new trial subject to further consideration. Therefore, we conclude
`Northern was not required to ask the trial court to reconsider the
`decision.
`
`In re N. Nat. Gas Co., 327 S.W.3d 181, 189 (Tex. App.—San Antonio 2010, orig.
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`proceeding) (internal citations omitted); see also In re Obialo, No. 01-23-00382-CV,
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`2023 WL 4356190, at *3 (Tex. App.—Houston [1st Dist.] July 6, 2023, orig.
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`proceeding) (“Requiring Obialo to make an additional request to the trial court to
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`vacate an order on the same grounds on which he argued against the trial court's
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`issuance of the order would be little more than a formality.”); In re Gray Law, L.L.P.,
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`No. 2-05-379-CV, 2006 WL 1030206, at *3 (Tex. App.—Fort Worth, Apr. 20, 2006,
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`orig. proceeding) (“[Y]et another request in the form of a motion was not necessary
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`to preserve [relator]’s right to mandamus relief.”).
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`14
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`A party that has already opposed an order in the trial court has fully satisfied
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`the prerequisites for mandamus relief. No additional advice, motion to vacate, or
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`motion for reconsideration should be necessary.
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`C. The Trial Court Was Fully Advised of the Deficiencies in Its Order.
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`Relators’ opposition informed the trial court that any new trial order “must
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`point to evidence” and be tethered to the record. MR2061. And Relators explained
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`that Movant’s new-trial motion failed to “provide an evidentiary basis for a new
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`trial.” MR2060-2064 (citing Rudolph Auto., 674 S.W.3d at 300).
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`Moreover, the trial court—Respondent—was served with Relator’s petition
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`for writ of mandamus, which detailed the deficiencies in the order, more than three
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`months ago. MR2247. If the trial court intended to provide an adequate order, it had
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`the opportunity to do so. Cf. In re Lapuerta, No. 01-23-00641-CV, 2023 WL
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`5963228, at *1 (Tex. App.—Houston [1st Dist.] Sept. 14, 2023, orig. proceeding)
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`(involving the trial court entering an amended order); In re Smith, No. 06-10-00116-
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`CV, 2010 WL 4679853, at *1 (Tex. App.—Texarkana Nov. 18, 2010, orig.
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`proceeding) (same).
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`Movants, who prepared the deficient order that the trial court signed, now
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`concede that the order that they prepared is indefensible. Neither Movants nor the
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`trial court have demonstrated any inclination to correct the admittedly deficient
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`order. Further “advising” the trial court would be meaningless and futile.
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`15
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`D. The Decision Below Creates Procedural Confusion.
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`The court of appeals failed to explain how Relators should have “advised” the
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`trial court or requested a “new order containing a sufficient explanation.” A simple
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`notification, in addition to being duplicative of the mandamus petition and Relators’
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`opposition, would not constitute a “predicate request for action.” Appx11.
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`With no evidentiary hearing, Relators could not have requested findings of
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`fact and conclusions of law. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938
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`S.W.2d 440, 443 (Tex. 1997) (noting that findings of fact and conclusions of law
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`would be appropriate if a judgment is “based in any part on an evidentiary hearing”);
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`see also Tunad Ent