In Re Alfredo v. Hernandez and Palos & Guzman Inc. v. the State of Texas ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00246-CV
IN RE Alfredo VERNIS HERNANDEZ and Palos & Guzman Inc.
Original Mandamus Proceeding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: August 9, 2023
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relators Alfredo Vernis Hernandez and Palos & Guzman Inc. bring this original
proceeding, arguing they are entitled to mandamus relief because the trial court abused its
discretion by granting real-party-in-interest Matthew Alvarado’s motion for new trial. We agree
and conditionally grant the petition for a writ of mandamus.
BACKGROUND
While driving his Dodge Ram 2500 pick-up and loaded trailer, Vernis Hernandez rear-
ended Matthew Alvarado’s Dodge Ram 1500. Alvarado sued Vernis Hernandez for negligence.
After a trial, the jury concluded Vernis Hernandez was not negligent. Alvarado moved for a
1
This proceeding arises out of Cause No. 2021-CI-02520, styled Matthew L. Alvarado v. Alfredo V. Hernandez and
Palos & Guzman Services, Inc., pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable
Norma Gonzales presiding.
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judgment notwithstanding the verdict and for a new trial. The trial court denied the motion for
judgment notwithstanding the verdict and granted a new trial. Vernis Hernandez moved for
reconsideration, but the trial court refused to consider the motion. Vernis Hernandez then filed this
petition for a writ of mandamus.
STANDARD OF REVIEW
To be entitled to mandamus relief, a relator must show: (1) the trial court clearly abused its
discretion; and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360,
364 (Tex. 2011) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Cap. Mgmt.
L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). “In determining whether the trial court
abused its discretion with respect to resolution of factual matters, we may not substitute our
judgment for that of the trial court and may not disturb the trial court’s decision unless it is shown
to be arbitrary and unreasonable.” In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding).
In other words, we must defer to the trial court’s factual determinations if they are supported by
the evidence, but we review de novo the trial court’s legal determinations. In re Labatt Food Serv.,
L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
NEW TRIAL ORDERS
A. Law
A trial court’s order granting a new trial is subject to review in a mandamus proceeding.
See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758 (Tex. 2013) (orig. proceeding);
In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding). “A writ of
mandamus shall issue to correct a clear abuse of discretion committed by a trial court in granting
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a new trial.” In re Whataburger Rests., LP, 429 S.W.3d 597, 598 (Tex. 2014) (orig. proceeding)
(citing Toyota Motor Sales, 407 S.W.3d at 762).
1. Facially Valid Reasoning
A trial court does not abuse its discretion if its stated reason for granting a new trial (1) is
a legally appropriate and correct reason (such as a reason based on a well-defined legal standard
or a defect that probably resulted in an improper verdict); and (2) is specific enough to indicate the
trial court did not simply parrot a pro forma template. See, e.g., Toyota Motor Sales, 407 S.W.3d
at 759 (“Simply articulating understandable, reasonably specific, and legally appropriate reasons
is not enough; the reasons must be valid and correct.”); United Scaffolding, 377 S.W.3d at 688–
89; In re Munsch, 614 S.W.3d 397, 400 (Tex. App.—Houston [14th Dist.] 2020) (orig. proceeding)
(“The trial court’s stated reason for granting a new trial must be a legally valid reason and must
also be specific enough to show that the trial court did not simply parrot a pro forma template, but
rather derived the articulated reason from the particular facts and circumstances of the case at
hand.”); see TEX. R. CIV. P. 320.
The trial court does not need to provide a “detailed catalogue” of the relevant evidence on
the issue. See United Scaffolding, 377 S.W.3d at 688; see, e.g., In re Bent, 487 S.W.3d 170, 176
(Tex. 2016) (orig. proceeding). And appellate courts should not focus on the “length or detail of
the reasons a trial court gives, but on how well those reasons serve the general purpose of assuring
the parties that the jury’s decision was set aside only after careful thought and for valid reasons.”
United Scaffolding, 377 S.W.3d at 688. However, if liability turns on a specific event occurring on
a specific date, something more than a vague reference to the facts is required. Bent, 487 S.W.3d
at 179.
In In re United Scaffolding, the Texas Supreme Court explained a new trial order may
warrant mandamus relief if, among other things, the order’s stated reason: (1) “specific or not, is
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not one for which a new trial is legally valid”; (2) “plainly state[s] that the trial court merely
substituted its own judgment for the jury’s”; (3) is based on discrimination or dislike of a party’s
lawyer; (4) “provides little or no insight into the judge’s reasoning”; (5) merely recites “a legal
standard such as a statement that a finding is against the great weight and preponderance of the
evidence”; (6) fails to indicate the trial court “considered the specific facts and circumstances of
the case at hand” or (7) fails to “explain how the evidence (or lack of evidence) undermines the
jury’s findings.” 377 S.W.3d 685, 689 (Tex. 2012).
2. Merits Review
In addition to satisfying the foregoing facial requirements, appellate courts are empowered
“to conduct a merits review of the bases for a new trial order and grant mandamus relief [i]f the
record does not support the trial court’s rationale for ordering a new trial.” Bent, 487 S.W.3d at
173 (alteration in original) (internal quotation marks omitted); See, e.g., In re Whataburger Rests.,
429 S.W.3d at 598 (citing Toyota Motor Sales, 407 S.W.3d at 755–59); Munsch, 614 S.W.3d at
400. A record does not support the trial court’s rationale if it “squarely conflicts with the trial
judge’s expressed reasons for granting new trial.” Toyota Motor Sales, 407 S.W.3d at 759.
B. Facial Validity of New Trial Order
Vernis Hernandez argues the trial court’s order is facially invalid because it failed to
provide a reasonably specific justification based on an applicable legal standard for nullifying the
jury verdict and does not cite any legal standard. Vernis Hernandez further contends the trial court
cited some evidence it credited, but the evidence cited shows the trial court did not consider the
specific facts and circumstances of the case or how such evidence undermined the verdict.
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After the parties rested, the jury was instructed on negligence, ordinary care as defined in
the negligence instruction, and proximate cause. 2 The jury was then asked to consider whether
“the negligence, if any, of [Vernis Hernandez] proximately caused the occurrence in question.”
“No,” the jury answered.
Alvarado moved for a new trial “and/or” a judgment non obstante veredicto. He argued the
jury disregarded the negligence instruction and its decision was against the great weight and
preponderance of the evidence overwhelmingly establishing negligence. Alvarado further
contended the jury disregarded a driver’s duty of care codified in Texas Transportation Code
§ 545.062(a). 3 Vernis Hernandez, he argued, acknowledged during his testimony he had a duty—
as established in section 545.062(a)—and breached that duty. In opposition, Vernis Hernandez
argued Alvarado was attempting to turn his negligence case into a case of negligence per se when
(1) he did not plead a negligence per se cause of action, (2) did not request a negligence per se
instruction, (3) Vernis Hernandez was not cited for a violation of section 545.062, (4) section
545.062 provides no guidance as to what would constitute negligence, and (5) courts have
repeatedly held a violation of section 545.062 was not negligence per se but merely imposed on a
driver a duty of reasonable care.
The trial court denied the judgment non obstante veredicto but granted a new trial,
reasoning:
2
The negligence instruction provides negligence is a “failure to use ordinary care, that is, failing to do that which a
person of ordinary prudence would have done under the same or similar circumstances or doing that which a person
of ordinary prudence would not have done under the same or similar circumstances.” The proximate cause instruction
provides proximate cause means “a cause that was a substantial factor in bringing about an occurrence, and without
which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission
complained of must be such that a person using ordinary care would have foreseen that the occurrence, or some similar
occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occurrence.”
3
Subsection (a) of section 545.062 provides “[a]n operator shall, if following another vehicle, maintain an assured
clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the
highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle,
object, or person on or near the highway.”
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In granting the Motion for New Trial, the Court notes, inter alia, the following
factors: (1) Defendant Alfredo [Vernis] Hernandez admitted during his testimony
that he did not allow himself enough room to stop his vehicle when Plaintiff braked
given the speed at which he was traveling at the time of the rear-end accident;
(2) Defendant Palos & Guzman Services, Inc.’s internal investigation concluded
that the accident was avoidable; (3) Defendant [Vernis] Hernandez accepted
responsibility for the accident; and (4) neither defendant presented any evidence to
support any theory of excuse for Defendant [Vernis] Hernandez driving his vehicle
into the rear of Plaintiff’s vehicle. As a result, and considering the totality of the
evidence presented, the Court finds that the jury’s verdict should be set aside and
that a new trial be granted.
Turning to whether the foregoing is facially invalid under the two-prong United Scaffolding
test, the trial court’s reasoning is plainly specific enough to indicate that the trial court did not
simply parrot a pro forma template. See United Scaffolding, 377 S.W.3d at 688–89.
As to whether the trial court’s reasoning is legally appropriate, the stated reasons focus on
Vernis Hernandez’s “admission” he did not allow enough room, his “acceptance” of responsibility
for the accident, and his failure to present “any evidence” to support a “theory of excuse.” In other
words, the stated reasons imply there is no evidence to support the jury’s verdict. However, when
there is no evidence to support a jury’s verdict, a trial court is empowered to grant a judgment
notwithstanding the verdict. See, e.g., Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338,
347 (Tex. 2015) (“We review a trial court’s grant of a judgment notwithstanding the verdict under
a no-evidence standard, examining whether any evidence supports the jury’s findings.”). Yet,
Alvarado moved for a judgment notwithstanding the verdict, and the trial court denied the motion. 4
If there was no evidence, then the trial court should have granted judgment notwithstanding the
verdict, and a new trial would therefore not be a legally appropriate reason. See Bent, 487 S.W.3d
at 179 (concluding if trial court’s stated reason that party conclusively established their claim were
true, and the opposing party presented no contrary evidence, “judgment notwithstanding the
4
Alvarado does not challenge the trial court’s failure to grant the judgment non obstante veredicto.
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verdict, not a new trial, was appropriate” and “the trial court has not articulated a reason for which
a new trial is legally appropriate.”).
Even if the trial court’s stated reasons were legally appropriate, the trial court has a duty
“to ‘explain how the evidence (or lack of evidence) undermines the jury’s findings.’” Id. (quoting
United Scaffolding, 377 S.W.3d at 689). It did not do so. Liability here turns on a very specific
issue—negligence—in connection with a very specific event—a rear-end collision. The trial
court’s stated reasons for granting a new trial are, instead, vague. See id. at 179. The trial court
does not refer to the legal standards charged to the jury—negligence, ordinary care, or proximate
causation. See, e.g., Toyota Motor Sales, 407 S.W.3d at 759. Nor does it otherwise specifically
identify how the jury failed to apply those standards. The first stated reason does not provide how
Vernis Hernandez’s admission establishes any facts undermining the jury’s findings as to the rear-
end collision. 5 See United Scaffolding, 377 S.W.3d at 689 (“The order 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.”).
The other stated reasons are similarly vague and lack specific facts establishing how the
evidence undermined the jury’s findings. The second reason provides the internal investigation of
Vernis Hernandez’s employer concluded the accident was avoidable. However, the stated reason
fails to connect how the avoidability of the accident undermines the jury’s verdict of no negligence.
The third reason notes Vernis Hernandez “accepted responsibility” for the accident. Although a
party’s testimonial declarations contrary to his position are quasi-admissions, they only constitute
5
The first stated reason is also problematic for a different reason: it largely paraphrases section 545.062(a) of the
Texas Transportation Code. Alvarado argued in his motion for new trial section 545.062(a) established a duty of care,
and Vernis Hernandez admitted to breaching it. However, the trial court never charged the jury on section 545.062 or
negligence per se, and the negligence instruction did not incorporate section 545.062(a) (nor does Alvarado contend
it did). The application of § 545.062(a) would therefore not be a legally appropriate reason for granting a new trial.
See Bent, 487 S.W.3d at 179.
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some evidence; they do not conclusively prove liability. See Mendoza v. Fid. & Guar. Ins.
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Indeed, in his testimony, Vernis Hernandez
plainly denied he caused the accident, blaming heavy traffic, an abrupt stop in traffic, and
explaining the accident was not otherwise preventable under the circumstances. Vernis
Hernandez’s testimony also contradicts the trial court’s fourth reason, that he did not present “any
evidence” of any excuse. See Toyota Motor Sales, 407 S.W.3d at 755 (concluding record does not
support new trial order, explaining “[t]he trouble is that the record squarely conflicts with the trial
judge’s expressed reasons for granting new trial. Simply articulating understandable, reasonably
specific, and legally appropriate reasons is not enough; the reasons must be valid and correct”).
Nor does the trial court purport to provide any other legally appropriate reason demonstrating how
the great weight and preponderance of the evidence undermines the jury’s findings. United
Scaffolding, 377 S.W.3d at 689.
Accordingly, the trial court’s reasons were not legally appropriate, and the trial court
clearly abused its discretion. 6
CONCLUSION
We therefore conditionally grant the petition for writ of mandamus, direct the trial court,
no later than fifteen days from the date of this opinion, to vacate the portion of the January 10,
6
Vernis Hernandez contends the trial court’s order is too vague because of its use of “inter alia,” citing United
Scaffolding. 377 S.W.3d at 687. In United Scaffolding the Supreme Court of Texas conditionally granted mandamus,
concluding a trial court’s use of “and/or” in its order made the order read as though the trial court’s actual reasons
might have been any of the stated reasons, all of them, or none of them and simply the trial court’s conclusion a new
trial was “in the interest of justice and fairness.” Id. In the interest of justice and fairness is never an independently
sufficient reason for granting a new trial. Id. Here the trial court uses “inter alia,” which is defined as “among other
things.” Inter alia, BLACK’S LAW DICTIONARY (11th ed. 2019) available at Westlaw. Unlike the confusing use of the
combined “and/or” conjunction, “inter alia” or “among other things” plainly provides the reasoning in the order is
among other rationales it might have left out of the order.
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2023 order granting the Motion for New Trial, and render judgment on the verdict. The writ will
issue only if the trial court fails to comply.
Luz Elena D. Chapa, Justice
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