Opinion issued February 6, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00742
- CV

——————————— IN RE TEXAS FARM BUR EAU MUTUAL INSURANCE COMPANY , Relat or

Original Proceedi ng on Petition for Writ of Mandamus

MEMORAN DU M OPINION Relator, Texas Farm Bureau Mutual Insurance Company, seeks mandamus
relief in connection with the trial court’s setting aside a jury’s verdict and ordering
a new trial. 1 Relator com plains of the ame nded order ’ s grant of new trial and of the

cou rt ’s determination that the jury’s finding was against the great weight and

1 The underlying case is Katherine H unter v. Texas Farm Bureau Mutual Insurance Compa ny , cause number 17

- C V

- 0 9 10, pending i n the 10th District Court of Galveston County, Texas, the Honorable Kerry L. Neves presiding.2

preponderance of the evidence. For the reasons set forth below, we conditionally grant the petition for mandamus reli ef

. Background Real party in inte r est, Katherine Hunter, was c ro ssing the street in 2015 during a family vacation in Galveston, Texas when she was struck by a car. At the time, she was insured by relator. Hunter settled with the driver’s insurer for $50, 000 and collected $10,000 from rela t or. She sued relator for und er insured motorist (“UIM”) benefits, asking the jury to award more than $1.6 million for past and future phys ical pain and mental anguish, past and future physical impairment,
and future medic al expenses . The jury imposed 20 pe r cent of the negligence again st Hunter and 80 percent against the driver. The jury did not award damages
to Hunter. The jury heard eviden ce that included :

• Hunter was taken by ambulance to the emergency room after the ac cident . She compl ained of soreness i n her left shoulder, hip and l eg but no acute injuries were found and she was discharged that day with pain killers;
• Hunter stayed in Galveston the rest of the week and went tubing at Schlitterbahn but did not ride any o ther rides ;
• She s aw her primary car e doctor thirteen days after t h e accident . At the time, Hunter believed her injuries were not acute;
• Hunter had arthroscopic surgery on her left shoulder to repair a torn rotator cuff approximately three months after the accident and on h er left hip approx i mately eight months after th e ac cident;
• In the three and one

- half years after the accident, Hunter had at least ten injections, three nerve conduction tests, eighty

- four physical3 therapy sessions, thirteen orthopedic doc tor visits, five neurology doctor v i sits, sixteen pain managemen t do ctor visits and twelve psychotherapy visits; and
• There was conflicting evidence

– including testimony from Hunter’s treaters

– as to whether Hunter’s pain was caused by the accident or oth er potential caus es, such as degene r ative conditions , that were n o t linked to the accident. On April 11, 2019, the trial court signed a final judgment rendering judgment in favor of relator, ordering that H unter take nothing on her UIM claims. On May 10 , 2019, Hunter mo ved for a new tria l , asserting the jury’s verdi c t was against the great weight and preponderance of the evidence. The court held a hearing on June 24, 2019 and granted the motion for new trial . On July 30, 2019,
Hunter moved to amend the o rder granting new trial such that i t would provide the
court’s r e a soning in granting the new trial. The court had a hearing on August 8, 2019 and granted the motion to amend the order granting the new trial

. T h at day
th e court signed an amended orde r for n ew trial (“amende d order”) drafted b y rela tor

. The amended order s aid, inter alia , the zero

- damage award was against the great weight and preponderance of the evidence because, given the jury’s findings
that t he defendant was negligent, Texas law required the jury to award non
economic dama g es to the plaintiff.
Relat or asserts in its petition for writ of mandamus that the trial court abused its discretion in ordering the new trial because (1) Texas law does n ot require the jury to award damages even if th e defendant is fo und to be negligen t ,4

and (2) the record support s the jury’s finding that Hunter was not entitled to damages. Hunter asserts mandamus relief is not warranted because (1) the invited
error doctr ine precludes the relief relator seeks, and (2) the trial court did not abuse
its d iscretion in finding the jur y’ s zero
- damages award was against the great weight and preponderance of the evidence.
Standard of Review
M andamus generally issue s “ to correct a clear abuse of discretion or the
violation o f a duty imposed by law ” and when t here i s no adequate remedy by
ap peal. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P. , 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). The merits of an o rder granting a new
trial when a jury verdict is set aside are reviewable by mandamus. In re Toyota
Moto r Sales, U.S.A. , I

nc. , 407 S.W.3d 746, 749 (Tex. 2 013) ; Col u mbia , 290
S.W.3d at 205, 209

. An order granting new trial is reviewed in a mandamus proceeding for abuse
of discretion. In re Bent , 487 S.W.3d 170, 1 77

- 78 (Tex. 2016)

. A trial court ab uses its di scretion if its a ctio n is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re United Services Auto. Ass ’ n , 446 S.W.3d 162, 170 (Tex. App.

— Houston [1st Dist.] 2014, orig. proceeding ) ( quoting In re CSX Corp. , 124 S.W.3d 149, 151 (Te x. 2003 ) (per curiam) (orig. proceeding) ). Trial courts have “broad discretion” in the grant o f new trials. Bent , 487 S.W.3d at 175.5

However, a trial court’s broad authority “should not, and does not, permit a tr ial judge to subst itute his or her own views f or t hat of the jury without a valid basis.”
Columbia , 290 S.W.3d at 212. Trial courts may grant new trials “for good cause” and “when the damages are manifestly too small or too l a rge.” Bent , 4 87 S.W.3d at 175 ( quoting T EX
. R. C IV
. P. 320).

Th e amended or der is facially invalid.
The amended order stat es in part: The Court finds that the Jury found an occurrence caused by some negligence with Plaintiff 20% liable and the driver 80% liable for the occurrence. Based on these fin dings, Texas law r equired t he Jur y to award Plaintiff at least some non

- econo mic damages for past and future physical pain and mental anguish, past and future physical impairment, and future medical expenses. The Jury fai led to do so. Acc ordingly, the Jury ’s finding of zer o damages is aga inst the great weight and preponderance of t he evidence and is manifestly unjust. For these reasons, the Court grants Plaintiff’s Motion to Amend and orders a new trial.
The amended order does not provide any other basis f or the trial cour t ’s decisi on to grant the new trial. Specifically, the amended order does not identify any evidence
that supports the trial court’s reasoning. “ [ A] t the very least, parties to a jury trial

‘ are entitled t o an unde r standab le, reasonably spe cific explanation why th eir

e xpec tations are frustrated by a jury verdict being disregarded or set aside, the trial process being nullified, and the case having to be retried. ’ ” Bent , 487 S.W.3d at
175

- 76 (quoting Columbia , 290 S.W.3 d at 2 13 ). A trial court, in granting a new trial, must identify a reason that is “ legally appropriate ” and “is specific enough to6

indicate t hat the trial court did not simply parrot a pro form a template, but r ather
derived the articulated reason from the p arti cular facts and circumstances from the
case at hand. ” Bent , 487 S .W.3d at 173 (quoting In re United Scaffolding, Inc. , 377 S.W.3d 685, 68 8

- 8 9 (Tex. 2012) )

. A trial court abuses its discretio n in setting aside a jury verdict an d granting a new trial i f, in the new
- tr ial order, “ the given reason, specific or not, is not one for which a new trial is legally valid” or “if the order, though rubber

- stamped with a valid new

- trial rationale, provides little o r no insi ght
i nto the judge 's reasoning. ” United Sc af folding , 377 S.W.3d at 689

. Juries typically have “great discretion” in deciding whether the evidence supports a damage award. In re Orren , 533 S.W.3d 926, 9 30 ( Tex. App.

— Tyler
2 017 , orig. proce eding ) (citing Gr ant v. Cruz , 4 06 S .W.3d 358, 363 (Tex. App.

— D allas 2 013, no pet.)) ; s ee also Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 772 (Tex. 2003 ) (“[W]h ether to award damages and how much is uniquely
within the factfinder's discretion

. ”)

. In fact, the am ended ord e r’s stat ement that Texas law requ ir es the award of non

- economic damages because of the negligence finding is incorrect. “The mere fact of injury ” does not necessarily entitle the plaintiff to damages for pain , mental anguish or impairment

. O rren , 533 S.W.3d at 930 (c i ting Gra nt , 406 S.W.3 d at 364 ) ; Biggs v. GSC Enterprises, Inc. , 8 S.W.3d 765, 769 (Tex. App.

— Fort Worth 1999, no pet.) (citing Blizzard v. Nationwide7

Mut. Fire Ins. Co. , 756 S.W.2d 801, 805 (Tex. App.

— Dallas 1988, no writ) )

. 2 Appe llate courts have upheld zero

- damage awards for p hysical pain , even when the jury found the plaintiff was entitled to damages for past medical expenses, when the jury heard conflicting evidenc e regarding the c ause of the in j ury or alternative explanations for t he plaintiff’s pain. Enright v. Goodman Di st ribution,
Inc

. , 330 S.W.3d 392, 398 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) ( “ [A] damage award for physical pain is not always mandated when medical expe nses are awarded. ” )

. See also Blizzard , 756 S.W.2d at 805 ( “ The jury could reasonably
have bel ie ved that Blizzard should fairly be compensated for seeking enough
medical ca re to ensure that her injury was no t serious , but that she never suff ered pain warranting a monetary award. ”)

. Further, “ w he re the evidence of pain is conflicting , scant, or more s ubjective than objec t ive, appellate courts are generally
more reluctant to determine a jury finding of no dama ges is contrary to the great weigh t and preponderance of the evidence.” Orren , 533 S.W.3d at 930 (citing
Grant , 406 S.W.3d at 363

- 64).
In Orren , t he plaintiffs sued t he defendant after a motor

- vehicle accident.
533 S.W.3d at 928. The plain tiffs alleged the y injured their ba cks and sought past

2 See also Lanier v. E. Foundations, Inc. , 401 S.W.3d 445, 455 (Tex. App.

— Dallas 2013, no pet.) (“[U]ncontroverted, objective evidence of injury d oe s n o t always re quire mental angui sh damages. When there is conflicting evidence about the severity of the i njuries or about whether the injuries were caused by the collision, the jur y has the discretion to resolve the conflicts, determine which version o f the evidence to accept, and refus e to award damages.”) ( cita tions omitted)

.8

and future medi cal expenses, pain and suffering, mental anguish, and physical impairment. Id. The jury awa rd ed the plaintiffs $13,7 0 0 and $30,000 in past medical expenses but no other da mages. Id. The pl aintiffs filed a m otion for new trial, asserting the jury’s failure to award noneconomic damages “ was against the great weight and preponderance of the evidenc e. ” Id. The trial court gra n ted the
motion , signing an order that said in p art , “T exas law required the Jury to award
Plaintiffs at least some non

- econo mic damages for physical pain and suffering, mental anguish, and physical impairment.” Id. at 930

- 3 1. Th e defendant sought mandamus relief, asserting the trial court abused its disc retion in grantin g the new
trial be cause the new
- trial order did not s atisfy the supreme court ’ s facial va lidity

or mer it s
- based review standard s and b e c a u s e the evidence was fact ua lly sufficient to support the jur y’s damage award. Id

. at 929.
The court o f appea ls h e ld th e order granting n ew trial was facially in valid
becaus e (1) Texas law d oes not require the jury to award non

- economic damages for physical pain and suffering, ment al anguish, or physical impairment, and (2)
the order did not provide “a rea son for whi c h new trial is legally appropriate.” Id.

at 931 (citing Ben t , 487 S.W.3d at 173 ). In addition, the order did not explain “how the evidence or lack thereof, undermine[d] t he jury’s findings as required by Bent. ”
Orren , 533 S.W.3d at 931. Theref ore, th e co u rt of appeals concluded the order did not state “a legally appropriate reason f or granting a new trial” or “a cogent and9

reasonably specific explanation for the trial c ou rt’s reasoning.” Id. (cit ing Bent , 487 S.W.3d at 173; Un ited Scaff olding , 377 S.W.3d at 688)

. As Hunter notes in her mandamus respon se, t he am ended order here

c ontains language nearly identical to that in the faciall y invalid Orren order.
Whereas the ame nd ed order in the instant case states, “Texas law required the Jury
to award Plaintiff at least some non

- economic damages for p ast and future ph ysical pain and me ntal anguish, pa s t and future physica l impair ment , and future medical
expenses , ” the Orren ord er states, “Texas law required the Jury to award Plaintiffs
at least some non

- economic damages for physical pain and suffering, ment a l anguish, and physical impai rment

. ” 533 S.W.3d at 930

- 31. Signifi cantly , bot h
orders refer to purported Texas law that doe s not exist. The jury ’ s finding in the
instant case that the driver was negligent does not h a v e t o result in a damage award
for the plaintiff. S ee Davi s v. Vaug h t ers , No. 01

- 17

- 00612

- CV, 2018 WL 5661 317,
at * 4, 10 (Tex. App.

— Houston [1st Dist.] Nov. 1, 201 8, no pet.) (mem. op.) (affirming jury’s award of past medical expenses but no future medical expenses, past and future pain an d suffering, ment al anguish , or imp a i rment even though defendant stipula ted to liabili ty for collision , finding “ t he jury could h av e reasonably concluded either that Davis was not suffering the pain, anguish, or impairment that she alleged or that any such pain, anguish, o r impairment was

c aused by other factors and not caused by the collisio n ” ).10

Fu rther , the amended order, like th e Orren order, is deficient because it lacks any explanation regarding “how the evidence, or lack th ereof, un d ermines the jury ’s findings as re quired by Bent .” S ee Orren , 533 S.W.3d at 931. The amend ed order provides no insight whatsoever into the trial co ur t’s reasoning in concluding the verdict was “ against the great weight and preponderance of the evidence and is
manifestl y un

just

. ” New

- trial orders that contai n “ the mere recitation of a legal

stan dard, such as a statement that a finding is against the g re at weight and preponderance of the evidence, will not suffice ” upon mandamus review

. United Scaffolding , 377 S.W

. 3d at 689 ; s ee In re Esters , No. 1 2

- 17

- 0012 2

- C V, 2017 WL 4675368, at *4 (Tex. App.

— T yler Oct. 18, 2017, orig. proceeding ) (mem. op.) ( new
- tri al order was facially invalid because it did not “ connect the evidence with an explanation as to why the damages findings for future medical ca re and
expenses , p ast and f

uture physical pain and menta l anguish, and past and future physical impairment were ‘ ma nifestly too small ’ or contrary to the overwhelming weight and preponderance of the evidence ”) (quoting United Scaffolding , 377
S.W.3d at 689 ) ; In re Ramos , No

. 13

- 19

- 00039

- CV, 2019 WL 1930111, at * 3 (Tex. App.

— Corp u s Christi May 1, 2019, orig. proceedin g ) ( mem. op.) ( n ew
- trial order was facially invalid because it was “ not specific enough to indicate that the
trial court

. . . derived the arti culated reasons fr om the facts and circumstances of
the case at hand ” and b ecause the order d id not “ discuss any ev idence, reference11

any specific facts, or explain how any evidence, facts, or testimony undermine [d] the jury's findings, thus warra nting a new trial

. ”); In re 3 Atoms , LLC , No. 07

- 19

- 00243

- CV, 2019 WL 382 0407, at *3 (Tex. A pp.

— Amaril l o Aug. 14, 2019, ori g. proceeding) (mem. op.) ( n ew
- trial order was facially invalid because it “ neither pointed to the evidence that played a pivotal rol e in its decision to grant a new tr ial, nor explained how the evidence re cited in the order, und er Texa s law appl i cable to
fu ture disfigurement damages, undermines the jury's zero

- dollars answer.”) (citing Bent, 487 S.W

. 3d at 176)

. G iven the amended order ’s reliance on a miss tatement of Te xas law and its lack of explanation for the trial court’s conclusion that the verdict was u nsupported and unjust , the amended order is facially invalid. Th erefore , relator is entitled to
mandamus relief

. Ramos , 2019 WL 19 30111, at * 3 (Tex . App.

— Corpus Chri sti May 1, 2019, ori g. proceed i ng .) (“ B ecause the new trial order is facially invalid ,

we c onditionally grant the petition for writ of mandamus

. . . .”); In re Sanchez , No. 04

- 18

- 00530

- CV, 2018 WL 4903038, at * 2 (T ex. App.

— San Antonio Oct. 10, 2018, orig. proce eding ) (same). The r emedy for a faciall y invalid order is a remand
to the trial cou rt , which then has the option to deny the motion for new trial or to sign an order that comports with Texas law. In re Simms , No. 14

- 19

- 00 541

- CV,
2019 WL 3 822171, at *2 (Tex . App.

— Houston [14th Dist.] Au g . 15, 20 19, orig. proceeding) (mem. op.) ; In re Nels en , No. 14

- 19

- 00600

- CV, 2019 WL 4071982, at12

*2 (Tex. App.

— Houston [14th Dist.] Aug. 29, 2019, orig. proceeding) (mem. op.)

. 3
Th e i nvited e rror d o ctrine is inapplicable.
Hunter asserts relator’s ri g ht to seek mandamus relief is precluded by the
invited er ro r doctrine. The invited error doctrine provi des t hat a party “ cannot ask something of the trial court a nd the n complain that t he court erred by granting the request

. . . . [T ] he doctr ine of invited error provides that a party may not complain
of an er r o r which the party invited. ” Haler v. Boyington Capital Gr p . , Inc. , 411 S.W.3d 631, 637 (Tex. App.

— Dallas 201 3, pet. denied) ( refusing to consid er merits of defendant’s argument t h a t j ury’s answer did not clearly “affor d a reasonable basis upon which to ent e r a judgment” and should be disregarded , because jury question used language def e ndant requested in pro posed jury charge ) ; 4 s ee also Berry v. Segall , 315 S.W.3d 141, 144 (Tex. Ap p.

— El Paso 2010, no pet.) ( invited error doctrine precluded consideration of a p peal by plaintiff who said before trial that jury should not hear evidence of offset issues and that offset

3 Given our determination that the amended order is facially invalid, we need not consider whether the jury ’ s verdic t was against the great weight and preponderance of the eviden ce
.
4 The Hale r defendant compl ai ned on appeal that “ because of the disjunctive language used in the [jury] question, a trial court cannot tell f rom the jury's answer which facts apply to Haler or other responsible third parties in order to formulate a j udg m ent against Haler.” 411 S. W.3d at 637 . The court refused to cons ider the argument because the defendant had requested the specific disjunctive language in his proposed jury charge. Id.13

was questi on of law to be d ecided by court bu t th en complained on appeal that trial

c ourt should have submitted offset issues to jury) ; Houston La u r eate Assoc

. , Ltd. v. Russell , 504 S.W.3d 550, 567

– 68 (Tex. App.

— Houston [14th Dist.] 20 1 6, no pet.) (invited error doctrine preclud ed defendant ’ s argument on ap peal that it was deprived of jury tria l , because it had agreed to permanent injunction and fin al judgment in order to end litigation and proceed with appeal). The invited error doctrine is a type of e stoppel. W & T Offshore Inc. v. Meyers , 577 S.W.3d 247, 252 (Tex. App.

— Ho uston [14th Dist.] 2018, pet. filed).

“ Th e rule, grounded in even justice and d ictated by common sense, i s that [a litigant] is estopped” from asking a court to take action and “ then c omplain [ ing ]
th at the court committed e r ror ” after taking the reques ted action. Ne. Texas Motor
Line s, Inc. v. Hodges , 158 S.W.2d 487, 488 ( Tex. [ Co mm ’ n Op.] 1 942) (citations omitted)

. However , “[f] or a party to be estopped from asserting a po sition in an appellate court based on actions it took in the trial court, the party must have
‘u nequivocally take n a position in th e trial co urt that is clear ly ad verse to its position on appeal.’” In re Dep ’ t of Family & Protective Serv s . , 273 S.W.3d 63 7, 646 (Tex. 2009) (quoting Tittizer v. Union Gas Corp. , 171 S.W.3d 857, 862 ( Tex. 2005)) ; s ee a lso DeClaris Asso ciates v. McCoy Wo rkplace Sols., L.P. , 331 S.W. 3d
55 6, 561 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) (plaintiff who filed joint
motion for entry of judgment that conformed with jury’s unfavorable verdict14

“cannot be s aid [on appeal] to have invited the trial court int o error , ” given that “[t]he t ri al co urt had made its rulings, and [plaintiff] had consistently expressed disagreement with those rulings.”)

. 5
Relator’s unequivocal, consistent arguments in the hearings o n the motion
for ne w trial and on th e motion to amen d order on motion for new trial

– th at
Hunte r was not entitled to a new trial

– comport with its request for mandamus
relief

. I ndeed, r elator said during the latter hearing, “while we don’t like this [ame n ded new trial] Ord er, we think it m ore closely reflec ts what the Court actually sa id at the Mot ion for New Trial hearing.” T he trial court acknowledged
the amended order memorial ized its ruling. The court said during the hearing on the motion to amend tha t the amended or der “does reflect ba sically what I sai d. So,
I’m going to go ahead and s ign it.” 6 A s soon as the trial court judge said he
intended to sign the amended order, r elator to ld the court it would seek mandamus
relief in connection with the amend e d order’s grant of new trial.

5 See also Andrew S he bay & Co., P.L. L. C. v. Bishop , 429 S.W.3d 644, 6 47 (Tex. App.

— Houston [1st Dist.] 2013, pet. denied) (“ A propose d judgment submitted by a party need not note the submitting party's disagreement with the contents of the ju dgment to maintain the right to a

pp eal. Rather, cl ea r objections in th e trial cour t or post

- trial proceedings evidencing disagreement with the judg ment are sufficient.”) (citing Gl attly v. Air Start er Components, Inc. , 332 S.W.3d 620, 636 (Tex. App.

— Housto n [1st Dist.] 2010, pet. denied) )

.
6 Hunter’s assertion in its mandamus response that “[n]othing in Relator’s form order resembl es the trial court’s ar ti culated reasons f or granting the ne w trial” conflicts with the court’s acknowledgement that the amend ed order re flects what the judge said.15

In l ight of the trial court’s acknowledgement that t he am ended or der
reflected his reasons for granting the new trial, coupled with Relator’s consistent arguments against a new trial, Hunter’s “invited error” a rgument lacks m erit. “A party sho uld not be estopp ed from challengin g a court’s order when the par ty
pr ovides t o the court a proposed order following what it believes was the court’s ruling at the he aring, and the court signs it.” In re Bahn , 13 S.W.3d 865 , 875 (Tex. Ap p
. — Fort Worth 2000, orig

. proceeding )

. See also John M asek Corp. v. Davis , 848 S.W.2 d 1 70 , 175 (T ex. App.

— Houston [1st Dist.] 1992, writ denied) (plaintiff
did not waive its appeal by “ merely provid [ing] a draft judgment to conform to
what the court had an n ounced would be it s judgment. ”) ; Gl attly v. Air Start er Components, Inc. , 332 S.W.3 d 6 20 , 636

– 37 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (plaintiff had right to appeal propos ed judgment that it circulated to parties and court because judgment was drafted “after s e veral hearings on post

- trial
motion s and was intended to conform to wh at the t rial court had announced as its judgment at those hearings.”) ; AmeriPath, Inc. v. Hebert , 447 S.W. 3d 319, 328 (Tex. App.

— Dallas 2014, pet. denied) ( “When a party merely provide s a draft judgment to conform to what the court has indicated its j udg me nt would be, there is no waiver of the appeal.”).16 Conclusion Accordingly, we conditionally g rant mandamus relie f, directing the trial

court to vacate its August 8, 2019 amended order a nd for further pr oceedings
consist e nt with this opinion. T he writ wil l issue on ly if the trial court fails to comply

. Russell Lloyd Justice

Panel consists of Justices Lloyd , Goodman , and Landau

.