KAREN ANGELINI, Chief Justice.
Relators are the defendants in a personal injury lawsuit in Atascosa County, Texas. Relator WildBlue Equipment, LLC, employed Relator Ybarra as a driver. While in the course and scope of his employment, Ybarra was involved in an accident with Real Party in Interest Roy Alaniz. After a two-day trial, the jury returned a verdict finding Relators not negligent. Alaniz filed a motion for new trial, which the trial court granted. Relators brought this original proceeding to challenge the order granting new trial. We conditionally grant the petition for writ of mandamus.
The accident that led to this proceeding occurred on November 6, 2012. Over the course of the trial, the jury was presented with conflicting evidence with regard to the accident and Alaniz's injuries.
At trial, Alaniz testified he was traveling east on Bensdale Road in Pleasanton, Texas at 7:55 a.m. in his Ford F-150 pickup truck. As he approached the intersection at North Bryant Street, the traffic light at that intersection turned yellow. Alaniz slowed and stopped, and the light then turned red. Alaniz testified the intersection is located just east of a school zone where the speed limit is thirty miles per hour. According to Alaniz, after he stopped he saw Ybarra's Ford F-250 pickup truck approaching from behind. Alaniz stated that he could not see the driver of the truck as it approached. Alaniz testified "I still couldn't see his head until it was almost impact when I looked the last time in my rear view mirror when he hit me. Then I could see just barely the back part of his head." Alaniz estimated Ybarra was traveling at 45 miles an hour when he hit Alaniz. Alaniz described the impact as "hard" and testified he felt pain in his back, shoulders, and neck after the accident. Alaniz testified the force of the collision almost bent his truck in half and caused his seat to break loose from the hinges.
During the presentation of his case, Alaniz offered in evidence an excerpt from Ybarra's deposition.
Alaniz also offered a video excerpt from the deposition of Officer Smitty Gonzales, the police officer who responded to the accident. In the excerpt, Gonzales described how he conducted his investigation of the accident and discussed his crash report, which was admitted in evidence. According to Gonzales, when he arrived at the scene both trucks were still parked where they had been when the accident occurred. He spoke to both Alaniz and Ybarra and a "couple of" witnesses. Based on his observations of the scene and his interviews with the drivers and witnesses, Gonzales concluded Alaniz was stopped at the light and Ybarra was at fault for the accident. In his accident report, Gonzales included a notation that Ybarra caused the accident with contributing factors being a failure to control speed and driver inattention. Gonzales testified that he considered driver distraction and failure to control speed to be factors in the accident because he had seen these factors in other rear-end collisions.
According to Ybarra's trial testimony, he was working for WildBlue as a delivery driver at the time of the accident. Ybarra was driving from his home to the WildBlue office in Pleasanton the morning of the accident. Ybarra testified the accident occurred just after he passed through a school zone. According to Ybarra, he observed the thirty mile-per-hour speed limit as he drove through the school zone. Ybarra stated he saw Alaniz's truck at a yellow light, but then the morning sun got in his eyes and he was temporarily unable to see Alaniz or the light. Ybarra assumed Alaniz would proceed through the yellow light, and he did not see that Alaniz had stopped. Ybarra denied his head was below the dashboard and stated that, due to the size of his stomach, he could not get his head below the dashboard. Ybarra stated he caused the accident. Immediately after the accident, according to Ybarra, Alaniz got out of his truck and complained his back and neck were hurting. Ybarra testified the only visible damage to Alaniz's truck was minor damage to the rear bumper. Jurors were also presented with photographs of both trucks after the accident.
After two days of testimony, most of which dealt with Alaniz's medical expenses, the case was submitted to the jury. Question number one of the jury charge read:
The jury question included the following definitions:
The jury answered "No" to question number one.
Alaniz filed a motion for new trial. The court granted the motion with an order stating the jury's verdict was against the great weight and preponderance of the evidence, and noting its reasons were "enunciated on the record" of the hearing on the motion for new trial. Relators then filed this original proceeding.
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Traditionally, Texas trial courts were afforded very broad discretion in granting new trials, although that discretion was not unlimited. In re Bent, 487 S.W.3d 170, 175 (Tex. 2016); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). However, in recent decisions the Texas Supreme Court's "jurisprudence has evolved to more firmly secure Texans' constitutional right to a jury trial in the new-trial context." Bent, 487 S.W.3d at 175.
The first case in which the supreme court addressed the impact of the constitutional right to a jury trial on the trial courts' discretion to grant new trials was Columbia. See id., 175-76 (discussing cases reflecting the recent changes to new trial jurisprudence). Prior to Columbia, the supreme court had "approved the practice of trial courts failing to specify reasons for setting aside jury verdicts." Columbia, 290 S.W.3d at 208. In Columbia, the court disapproved of that approach. Id. at 213. The supreme court noted that the trial courts' authority to order new trials was never limitless and the trial courts' discretion in granting new trials did not "permit a trial judge to substitute his or her own views for that of the jury without a valid basis." Id. at 208. The court held that a new trial order must include an "understandable, reasonably specific explanation" for why a new trial was being ordered. Id. at 213.
After Columbia, the supreme court issued In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012), in which the court further expanded on the trial court's obligation when granting a new trial. In United, the supreme court held "a trial court does not abuse its discretion so long as its stated reason for granting a new trial (1) is a reason for which a new trial is legally appropriate (such as a well-defined legal standard or a defect that probably resulted in an improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case at hand." United, 377 S.W.3d at 688-89. The supreme court then identified examples of new trial orders that would constitute an abuse of discretion, such as an order that plainly shows the trial court merely substituted its judgment for that of the jury. Id.
The year following its opinion in United, the supreme court decided In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013). In Toyota, the supreme court addressed the question of "whether, on mandamus review, an appellate court may evaluate the merits of a new trial order that states a clear, legally appropriate, and reasonably specific reason for granting a new trial." Toyota, 407 S.W.3d at 757. The court noted that the courts of appeals were "reluctant to engage in a merits-based review of new trial orders." Id. The court restated the requirements for new trial orders set out in Columbia and United Scaffolding. Id. at 756-57. It then concluded that "[h]aving already decided that new trial orders must meet these requirements and that noncompliant orders will be subject to mandamus review, it would make little sense to conclude now that the correctness or validity of the orders' articulated reasons cannot also be evaluated." Id. at 758. "Appellate courts must be able to conduct merits-based review of new trial orders. If, despite conformity with the procedural requirements of our precedent, a trial court's articulated reasons are not supported by the underlying record, the new trial order cannot stand." Id.
Relators argue the trial court abused its discretion by finding the jury's verdict was against the great weight and preponderance of the evidence. Therefore, we review the trial court's ruling to determine if the trial court's reason for granting the new trial is supported by the underlying record. Id. We conduct this merits review by applying a factual sufficiency standard to a review of the entire trial record to determine if the record supports the trial court's reason for granting a new trial. In re State Farm Mut. Automobile Ins. Co., 483 S.W.3d 249, 262 (Tex. App.-Ft. Worth 2016, orig. proceeding); In re Zimmer, Inc., 451 S.W.3d 893, 905 (Tex. App.-Dallas 2014, orig. proceeding). If the record does not support the reasons for the new trial, then the trial court abused its discretion by granting a new trial. State Farm, 483 S.W.3d at 262. A factual sufficiency review of a new trial order in a mandamus proceeding is performed using the same standard as a factual sufficiency review in an appeal. Id.
When reviewing a verdict for factual sufficiency, the reviewing court considers all the evidence supporting and contradicting the jury's finding and should set aside the judgment only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. UPS v. Leal, 468 S.W.3d 609, 615 (Tex. App.-San Antonio 2015, pet. denied). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). A jury may believe or disbelieve the testimony of a witness, in whole or in part, and may resolve any inconsistencies in a witness's testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). An appellate court may not substitute its judgment for that of the trial court; however, "neither may the trial court substitute its judgment for that of the jury in granting a new trial." In re Wyatt Field Serv., 454 S.W.3d 145, 152 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding). The purpose of this court's review is to determine if the trial court substituted its judgment for that of the jury. See id. ("The method for ensuring that the trial court does not substitute its judgment for that of the jury, is to confirm that the court's reasons for granting a new trial are valid and correct, i.e., supported by the trial record.").
In the case now before this court, the new trial order stated it was "based on the reasons enunciated on the record by this Court on December 16, 2016, which included a ruling that the jury's verdict finding that Defendant Raymond Ybarra, Jr. was not negligent is against the great weight and preponderance of the evidence." The trial judge stated his reasons at the end of the hearing on Alaniz's motion for new trial:
The judge's statements indicate the judge considered Ybarra's statements that he caused the accident conclusive on the issue of negligence and disregarded any other testimony from which the jury could have found no negligence on Ybarra's part. However, Ybarra's testimony and pre-trial statements that he was responsible for the accident do not constitute an admission of negligence. See Campbell v. Perez, No. 02-14-00248-CV, 2015 WL 1020842 at *3 (Tex. App.-Fort Worth 2015, no pet.) (mem. op.) (holding defendant's admission he was at fault was not an admission of negligence); See also Benavente v. Granger, 312 S.W.3d 745, 749-50 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (holding defendant's testimony he ran into plaintiff's car did not establish negligence). Although Ybarra admitted his vehicle hit Alaniz's vehicle, he did not admit he was driving in a negligent manner.
In addition, "[t]he mere occurrence of a rear-end accident is not of itself evidence of negligence." Risinger v. Shuemaker, 160 S.W.3d 84, 90 (Tex. App.-Tyler 2004, pet. denied); DeLeon v. Pickens, 933 S.W.2d 286, 289 (Tex. App.-Corpus Christi 1996, writ denied). The plaintiff in a rear-end accident case must prove specific acts of negligence on the part of the following driver. Risinger, 160 S.W.3d at 90; Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1992, writ denied). In a rear-end collision, "standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts." Neese, 845 S.W.2d at 314 (quoting Gaitan v. Reyes Salvatierra, 485 S.W.2d 602, 604 (Tex. Civ. App.-San Antonio 1972, no writ)). "The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence adduced before it." Gaitan, 485 S.W.2d at 604.
Here the jury was presented with conflicting evidence regarding the accident. Alaniz described a high-speed impact that bent the frame of his truck. According to Alaniz, Ybarra's head was below the dashboard as he approached Alaniz and struck him. In contrast, Ybarra testified he was traveling slowly, having just exited a school zone, when the accident occurred. He stated his head was above the dashboard and the only reason he did not see that Alaniz stopped at the yellow light was because the rising sun momentarily blinded him. Ybarra described both trucks as having only minor damage such as would be expected from a slow speed impact. The jury viewed photographs of the damage done to both trucks.
After viewing the entire record we conclude the trial court erred by granting a new trial and setting aside the jury's verdict. The jury chose to believe Ybarra's version of the events leading to the collision, and determined that Ybarra had not failed to use ordinary care. That determination was within the jury's province. We are not free to disregard the jury's conclusion, and neither was the trial judge.
The evidence presented at trial was sufficient for the jury to conclude that Ybarra was not negligent in causing the accident. The trial court abused its discretion by granting the motion for new trial and thus substituting its judgment for that of the jury. Accordingly, we conditionally grant the petition for writ of mandamus. Mandamus will issue only if the trial judge does not vacate his order granting new trial within thirty days of the date of this opinion.
SANDEE BRYAN MARION, Chief Justice.
The majority holds the trial court abused its discretion in granting a new trial in the underlying cause because the trial judge "considered Ybarra's statements that he caused the accident conclusive on the issue of negligence and disregarded any other testimony from which the jury could have found no negligence on Ybarra's part." The trial judge, however, made express reference to the evidence presented at trial and stated his ruling was based on "everything before the Court." Because I disagree the trial court considered Ybarra's statements conclusive or that the trial court abused its discretion in determining the evidence is factually insufficient to support the jury's verdict, I respectfully dissent.
Just as the trial court considered "everything before the Court," we also "examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding."
Alaniz testified the accident occurred at an intersection with a traffic light at approximately 8 a.m. The intersection was just past a school zone and congested with vehicles taking children to school. As Alaniz approached the stoplight, the light turned yellow, and he slowed down behind the traffic in front of him. Alaniz testified he was not wearing sunglasses and had not lowered his visor, but he had no difficultly seeing the stoplight or the traffic ahead of him. As Alaniz stopped, the light turned red.
After stopping, Alaniz looked in his rearview mirror and observed a white truck quickly approaching from behind. Alaniz testified he could not see the driver's head and was worried about the speed at which the truck was approaching. Convinced the truck was going to hit him, Alaniz gripped the steering wheel to brace himself and to try to prevent the truck from pushing his truck into the intersection where he might hit a car taking children to school. Alaniz testified he could not see the driver's head until almost the time of impact, and the driver never braked, swerved, or made any effort to avoid hitting him. After the truck slammed into him, Alaniz went backward then forward in his seat, and the change in his ashtray went flying past him. Photographs of Alaniz's truck were admitted into evidence showing the damage caused by the collision. Alaniz testified the photographs showed the frame of the truck was bent. Alaniz estimated the truck was traveling at approximately 45 mph at the time of the collision.
Clarence Leonard Ford, Jr., the operations manager for Ybarra's employer Wildblue Equipment, LLC, testified Ybarra completed a form stating he was responsible for the accident. Ford also testified Wildblue agreed Ybarra was responsible for the accident.
In his deposition, Ybarra agreed that he completed the form stating he was responsible for the accident. Ybarra further testified in his deposition that Alaniz did not do anything that caused the accident.
At trial, Ybarra testified he passed the school zone and was not speeding when he saw Alaniz's truck. Ybarra further testified:
(emphasis added).
Ybarra stated he did not squint or turn his head when the sunlight hit him in the face. He stated he tried to focus in front of him but could not. Ybarra denied that his head was below the dashboard, stating his "belly" and the "big old console" in the truck would prevent him from putting his head below the dashboard. Ybarra also denied that he was using his cell phone or a computer while he was driving. Ybarra testified he did not blame Alaniz for stopping for a yellow light, and he again agreed that he caused the accident. In response to whether he could have done anything differently to prevent the accident, Ybarra stated he probably could have left his house a little bit later. Ybarra identified the truck he was driving in photographs and stated the only damage to the truck was to the bumper. Ybarra also testified the only damage to Alaniz's truck was the bumper; however, he also admitted he did not look underneath Alaniz's truck at the frame. Ybarra stated he told the officer who arrived to investigate that the sun was in his eyes.
In his deposition, Officer Smitty Gonzales testified he completed a CR-3 Texas crash report regarding the accident. Gonzales stated he spoke with a few of the witnesses at the scene who stated Ybarra's vehicle rear ended Alaniz's vehicle. Based on his observations at the scene and his interviews with Alaniz, Ybarra, and the other witnesses at the scene, Gonzales testified Alaniz's vehicle was stopped at a stoplight, and Ybarra's vehicle rear ended Alaniz's vehicle. Gonzales concluded Ybarra was at fault and listed the contributing factors as failure to control speed and driver inattention. The report did not indicate sunlight as a contributing factor. Gonzales testified he would have listed sunlight as a contributing factor if a driver told him the sun prevented him from seeing the other driver or the light change.
In Priest v. Myers, the Houston court considered a sufficiency challenge under facts similar to the instant case. 598 S.W.2d 359 (Tex. App.-Houston [14th Dist.] 1980, no pet.). In that case, an automobile driven by Larry Myers struck the rear of an automobile driven by Larry Priest. Id. at 360. "The jury found that [Myers] did not fail to keep a proper lookout, that he failed to maintain an assured clear distance between his vehicle and the Priest vehicle, but that such failure was not a proximate cause of the collision." Id. "The jury also found [Priest] sustained damages totaling $6,500.00 by reason of personal injuries received in the accident." Id. The trial court overruled Priest's motion to disregard the jury's finding and rendered judgment in favor of Myers. Id.
On appeal, Priest challenged the legal and factual sufficiency of the evidence to support the jury's finding that Myers's failure to maintain an assured clear distance was not a proximate cause of the accident. Id. The evidence established that Myers was looking over his left shoulder to change lanes when he struck Priest's vehicle from behind. Id. at 361. In analyzing the evidence, the court reasoned:
Id. at 362-63. The court further noted, "If we were not holding that there is proximate cause as a matter of law, we would hold that the great weight and preponderance of the evidence shows that the defendant's failure to maintain an assured clear distance was a proximate cause of the collision." Id. at 363.
Similarly, in this case, although the jury could have believed Ybarra's testimony that the sunlight temporarily blinded him, Ybarra testified that he knew the stoplight was yellow and "assumed" Alaniz drove through the stoplight. "The test[, however,] is not what he [assumed] would occur but whether he reasonably should have foreseen that the event in question, or some similar event, would occur." Id. Under the facts in this case, "any reasonably prudent person should have foreseen that [a car might stop at a yellow light] and that, under those circumstances, a collision would occur if he did not exercise ordinary care" rather than assuming the other driver would proceed though the yellow light. Id. Stated differently, any reasonably prudent person would have stopped if he was unsure whether the driver in front of him did, in fact, proceed through the yellow light rather than just assume he did. It is this unreasonable assumption that proximately caused Ybarra to collide with Alaniz; therefore, I would hold the trial court did not abuse its discretion in granting the new trial. Because the majority holds to the contrary, I respectfully dissent.
