Conditional Grant and Opinion Filed February 13, 2024

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-23-01197-CV

IN RE MARSANA DE MONSERAT, Relator

Original Proceeding from the Probate Court No. 1

Dallas County, Texas

Trial Court Cause No. PR-20-02296-1

MEMORANDUM OPINION

Before Justices Partida-Kipness, Carlyle, and Garcia

Opinion by Justice Carlyle

Before the Court are relator’s November 28, 2023 petition for writ of 

mandamus and emergency motion to stay. In her petition, relator challenges the trial 

court’s order granting a new trial on grounds that the trial court failed to specify its 

reason for granting a new trial as required by Texas law. In her emergency motion, 

relator seeks a stay of this order pending our action on the petition, which we deny 

as moot. We conditionally grant the writ because the trial court’s order is facially 

deficient.

Entitlement to mandamus relief requires a relator to show that the trial court 

clearly abused its discretion and that the relator lacks an adequate appellate remedy. 
–2–

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). There is no adequate remedy by appeal when a trial court issues an 

erroneous new-trial order. In re Rudolph Auto., LLC, 674 S.W.3d 289, 299 n.5 (Tex. 

2023) (orig. proceeding). And a trial court abuses its discretion by issuing a newtrial order without “clearly identifying an understandable, reasonably specific 

explanation for why a new trial is warranted.” See id.

Following our review of relator’s petition, we requested a response, noting we 

were “of the tentative opinion that relator is entitled to the relief sought in the 

petition” and citing recent Texas Supreme Court precedent indicating respondent’s 

order is facially deficient for failing to state sufficient reasons for granting a new 

trial. Real party filed a response raising the predicate request-and-refusal 

requirement and also supplemented the record with an email exchange between the 

parties and the trial court, but he spent only one short paragraph devoid of 

meaningful legal analysis regarding the sufficiency of the trial court’s order. The 

respondent trial court did not file a response. 

Real party complains that relator has failed to meet a threshold requirement 

for mandamus relief, the predicate request-and-refusal doctrine. That doctrine 

provides that “[d]ue to the extraordinary nature of the remedy, the right to mandamus 

relief generally requires a predicate request for action by the respondent, and the

respondent’s erroneous refusal to act.” In re Eagleridge Operating, LLC, 642 

S.W.3d 518, 525 (Tex. 2022) (orig. proceeding). This doctrine leaves room for 
–3–

exceptions, and the supreme court has recognized one, explaining that “on rare 

occasions” the predicate requirement may be relaxed “when the circumstances 

confirmed that ‘the request would have been futile and the refusal little more than a 

formality.’” In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (per curiam) (orig. 

proceeding) (quoting Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. 

proceeding)).

The supreme court has detailed multiple times that mandamus review of newtrial orders is not limited to facial validity but that a court reviewing a petition for 

writ of mandamus may go beyond the surface and review the merits of the court’s 

decision to grant a new trial. See, e.g., Rudolph Auto., 674 S.W.3d at 302 (“[T]he 

appellate courts’ mandamus review is not limited to assessing the facial validity of 

the new-trial order but necessarily extends to the underlying merits.”); In re Bent, 

487 S.W.3d 170, 177 (Tex. 2016) (orig. proceeding) (“[Facially] noncompliant 

[new-trial] orders will be subject to mandamus review.”); In re Toyota Motor Sales, 

U.S.A., Inc., 407 S.W.3d 746, 757 (Tex. 2013) (orig. proceeding) (“[A new-trial] 

order that does not satisfy these [facial] requirements may be corrected by 

mandamus.”). So that the appellate courts may review the merits of a petition for 

writ of mandamus, the supreme court has directed trial courts to give “meaningful,” 

“truly proper and sufficiently weighty” reasons for granting the new trial. See 

Rudolph Auto., 674 S.W.3d at 300. 
–4–

We are not presented with a mandamus request for merits review, however. 

Relator asks us only to review the order’s facial validity due to the fact that the trial 

court failed to specify the grounds for granting a new trial in the order. For three 

reasons, we conclude that on this record, this is one of the rare occasions where the 

circumstances confirm that a request by relator to the respondent trial court to fix the 

defect at issue would have been futile and little more than a formality. Perritt, 992 

S.W.2d at 446. First, the trial court granted real party’s motion for new trial without 

setting it for submission by hearing and without otherwise giving relator an 

opportunity to respond. Second, the trial court’s error has nothing to do with real 

party’s substantive requests for new trial, and relator does not call on us to review 

the order’s substantive merits in this proceeding. 

Third, the record demonstrates that after this Court requested a response to 

relator’s mandamus petition, real party took efforts to try to get the respondent trial 

court to cure the defect at issue. Specifically, real party emailed the trial court’s 

briefing attorney, administrative assistant, and docket coordinator to notify them that 

he had filed a proposed amended new-trial order. He explained that the order’s 

purpose was to “address” and “moot” this pending mandamus proceeding. Relator 

replied all and, addressing the court staff, objected to consideration of the proposed 

order without a hearing, and relator requested a hearing. Following this exchange, 

the briefing attorney emailed the parties of record and stated the trial court “is 

satisfied” with its original new-trial order. The respondent trial court could have 
–5–

mooted this proceeding, but it has not done so. Real party complains of relator’s 

litigation tactics in the emails, but ultimately, real party ignores this court’s actions 

and the respondent trial court’s inaction in response. Thus, this record shows that 

real party asked the trial court to fix the error at issue and the respondent trial court 

refused.

We are confident any further action in the trial court would be futile because 

there is nothing further for the trial court to consider regarding the facial invalidity 

of its new trial order. See In re Dunn, No. 14-23-00666-CV, 2023 WL 5921522, at 

*1 (Tex. App.—Houston [14th Dist.] Sept. 12, 2023, orig. proceeding) (mem. op.) 

(“To determine whether a request would have been futile, appellate courts examine 

whether the request would have added anything for the trial court’s consideration.”); 

Perritt, 992 S.W.2d at 446 (finding that the futility exception applied and noting that 

“had [relators] filed their own formal objection to Judge Stephens, it would have 

added nothing for the court’s consideration,” given the objection mirrored another 

party’s filed objection). Accordingly, relator’s facial validity issue is properly before 

this court.

“The Texas Constitution provides that the right of trial by jury ‘shall remain 

inviolate.’” In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 

S.W.3d 204, 206 (Tex. 2009) (quoting TEX. CONST. art. I, § 15). “No level of the 

judiciary has the authority to repudiate a determination, predicated on the presence 

of probative evidence, made by a properly constituted and instructed jury in response 
–6–

to a properly submitted question.” Rudolph Auto., 674 S.W.3d at 299. “When a trial 

court perceives a problem to be so serious that only the strong medicine of a new 

trial can cure it, the court may order a new trial if it provides an explanation that the 

appellate courts can review.” Id. at 296. “[T]rial courts have no authority to grant a 

new trial without a valid reason[.]” Id. at 302.

The trial court’s order does not identify a valid reason for a new trial. Instead, 

it reads: “Came on for consideration the Defendant’s Motion for New Trial . . . The 

Court, having reviewed the Motion, the Jury Charge, pertinent pleadings, and the 

trial record, finds that the Motion should be granted.” Thus, the trial court’s order 

lacks an understandable and reasonably specific explanation justifying a new trial, 

thereby leaving us with nothing to review. See id. at 296. This constitutes an abuse 

of discretion because it was both unreasonable and without reference to guiding rules 

and principles concerning motions for new trial. See In re Kappmeyer, 668 S.W.3d

651, 655 (Tex. 2023) (orig. proceeding).

Because both mandamus prongs have been satisfied, we conditionally grant 

relator’s petition for writ of mandamus. We direct the trial court to vacate its 

November 20, 2023 order granting a new trial. If the trial court fails to do so, the 

writ will issue.

231197f.p05

/Cory L. Carlyle//

CORY L. CARLYLE

JUSTICE