in Re Mark Athans, Omar Martinez and Prestige Surgical Assistants, LLC
458 S.W.3d 675
Tex. App.2015Background
- Relators Athans, Martinez, and Prestige filed a petition for writ of mandamus to compel Judge Weiman to vacate an order granting a motion for new trial to ASA.
- Relators provided trial reporter’s record and related filings but omitted trial exhibits.
- The trial court granted a new trial on three grounds, including factual insufficiency of the evidence.
- Relators failed to include admissible trial exhibits in the mandamus record as required by Rule 52.7.
- Texas mandamus review requires a record sufficient to show abuse of discretion, including complete trial evidence for factual-insufficiency grounds.
- The court denied the mandamus petition and lifted the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must mandamus record include all trial exhibits? | Athans (relator) | ASA (real party) | Yes; exhibits are required to review the factual-insufficiency ground. |
| Is a complete trial record always needed for merits-based mandamus review of a new-trial order based on factual insufficiency? | Athans argues complete record not always required per Whataburger | ASA argues missing portions prevent review | Complete record necessary to review the factual-insufficiency basis. |
| Rule 52.7 mandamus record requirements apply to review? | Athans | ASA | Relators must include documents material to relief and any exhibit offered in evidence. |
| Does Rule 34.6(c) apply to mandamus review? | Athans | ASA | Rule 34.6(c) not applicable to mandamus; do not presume missing material supports the order. |
| Should the petition be decided on merits despite incomplete record? | Athans | ASA | No; without complete record, cannot determine abuse of discretion; petition denied. |
Key Cases Cited
- Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (require review considering all trial evidence for factual-insufficiency grounds)
- In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (merits-based review of new-trial order depends on bases for grant of new trial)
- Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002) (partial-record review permissible; 34.6(c) inapplicable to mandamus)
- In re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (partial-record approach; mandamus review limited to record before court)
- In re Stern, 436 S.W.3d 41 (Tex.App.—Houston [14th Dist.] 2014) (record sufficiency under mandamus context; missing items not assumed)