in Re Mark Athans, Omar Martinez and Prestiege Surgival Assistants LLC, 478 S.W.3d 128

Background

ASA sued former employees Omar Martinez and Mark Athans and Prestige Surgical Assistants, LLC, alleging breaches of fiduciary duty (including solicitation of ASA employees while still employed), aiding and abetting, and tortious interference after several ASA surgical assistants resigned and began working for Prestige.
Martinez, Athans, and Monica Ellington resigned and by early December 2012 were working for Prestige; Martinez and Athans owned equity in Prestige; Flores ultimately stayed at ASA.
At trial ASA dismissed some claims and proceeded on breach-of-fiduciary-duty claims against Martinez and Athans and an aiding-and-abetting claim against Prestige; the jury answered “no” as to whether Martinez and Athans failed to comply with their fiduciary duties (i.e., solicited coworkers).
ASA moved for JNOV and a new trial; the trial court granted ASA’s motion for new trial, citing (1) factual insufficiency (jury verdict against great weight of evidence), (2) confusion over the undefined term “solicit,” and (3) improper voir dire comments by Prestige’s counsel.
Prestige sought mandamus relief. The appellate court reviewed whether the trial court abused its discretion in granting a new trial and whether the Prestige parties had an adequate remedy by appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the jury’s “no” verdict factually insufficient (against great weight) on whether Athans/Martinez solicited coworkers?	Jury answer contradicted overwhelming testimony that Martinez/Athans asked others to leave ASA.	Jury credibility determinations support the verdict; evidence permitted inference that defendants merely presented opportunities or asked casually.	Court: trial court abused discretion — record did not show verdict so against the great weight as to be clearly wrong; new trial on this ground improper.
Did failure to define “solicit” in the charge justify a new trial absent an objection at trial?	Lack of definition confused jurors; meaning should be defined and retrial needed.	No party objected at trial; absence of preservation bars reversal; any new-trial grant on this basis is improper unless error was fundamental causing gross injustice.	Court: granting a new trial for this unpreserved charge error was not legally appropriate; trial court abused discretion.
Could improper voir dire comments by Prestige counsel justify a sua sponte new trial when ASA did not object?	Comments violated court’s instructions and influenced jurors, warranting new trial.	ASA failed to preserve any objection; no record that comments were so fundamentally prejudicial to require retrial.	Court: new trial on this basis was not legally appropriate without preservation or a showing of fundamental injustice; trial court abused discretion.
Is mandamus appropriate to vacate the new-trial order?	N/A (Prestige sought mandamus)	N/A	Court: Mandamus conditionally granted; trial court ordered to vacate its new-trial order because Prestige had no adequate appellate remedy and trial court abused discretion.

Key Cases Cited

In re Toyota Motor Sales, USA, Inc., 407 S.W.3d 746 (Tex. 2013) (trial-court new-trial orders must state specific, legally appropriate reasons derived from the case)
In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (mandamus review of new-trial orders and deference limits)
In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (scope of trial-court discretion to grant new trial and requirement for specific reasons)
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) (charge defects unobjected to at trial are measured under the charge given)
Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817 (Tex. 2012) (preservation rules for jury-charge complaints)
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (jury is sole judge of credibility; appellate courts defer to jury fact findings)