IN RE Patti J. WAGNER, as Guardian of Jenny Wagner, an Incapacitated Adult, Relator

NO. 01-15-00774-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 14, 2017 Dissenting opinion on Denial of Reconsideration by Justice Massengale July 12, 2018

**OPINION ON REHEARING**

Terry Jennings, Justice

Real parties in interest, Four J's Community Living Center, Inc. ("Four J's") and Anthonia Uduma ("Uduma"), have *312filed motions for rehearing and for en banc reconsideration of our April 27, 2017 opinion. We deny the motion for rehearing, but withdraw our opinion and issue the following opinion in its stead. Because we issue a new opinion in connection with the denial of rehearing, the motion for en banc reconsideration is rendered moot. *See**Richardson-Eagle, Inc. v. William M. Mercer, Inc.* , 213 S.W.3d 469, 472 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) ; *Brookshire Bros., Inc. v. Smith* , 176 S.W.3d 30, 33 (Tex. App.-Houston [1st Dist.] 2004, pet. denied).

Relator, Patti J. Wagner ("Wagner"), as guardian of Jenny Wagner ("Jenny"), an incapacitated adult, has filed a petition for a writ of mandamus, requesting that this Court direct respondent1 to vacate his order granting the new-trial motion of real parties in interest, Four J's Community Living Center, Inc. ("Four J's") and Anthonia Uduma, in Wagner's suit against them for negligence. In her sole issue, Wagner contends that respondent clearly abused his discretion in granting a new trial and she has no adequate remedy by appeal.

We conditionally grant Wagner's petition.

**Background**

In her second amended petition, Wagner alleged that on September 4, 2008, Jenny was severely burned in a fire at a four-bedroom residential care facility ("the facility"),2 operated by Four J's and Uduma,3 for disabled adults. At the time of the fire, Jenny, a resident of the facility, was thirty-five years old. She has been legally blind since infancy, and she has cerebral palsy and "profound mental retardation." Jenny shared the facility with two other adult residents, Esperanza Arzola and Tanya James, who both "had the mental capacity of small children."

Wagner further alleged that Four J's and Uduma had inadequately supervised Arzola, who had obtained a cigarette lighter and used it to start the fire in her bedroom. When the fire spread to the rest of the facility, Jenny, who was wheelchair-bound and physically incapable of escaping the fire on her own, sustained smoke-inhalation injuries and second- and third-degree burns to her face, neck, chest, arms, and hands. She was hospitalized in a burn-trauma center for one month and endured painful treatments. The burns have permanently scarred and disfigured Jenny. James, who was also severely burned in the fire, later died from her injuries.

Wagner asserted that Four J's and Uduma breached the standards of care of a residential care facility by inadequately supervising Arzola; failing to equip the facility with properly functioning fire-detection and prevention systems, such as smoke detectors and overhead sprinkler systems; and failing to adequately train staff to respond to a fire at the facility. Also, because it was reasonably foreseeable that if a resident came into possession of a cigarette lighter, a fire would likely result, they breached their duty to ensure that Jenny was safe from foreseeable harm caused by other residents who were unable *313to understand the dangers of incendiary devices. Moreover, the sole staff member on duty at the time of the fire, Amuche Chinelo Udemezue, had run from the facility without attempting to assist Jenny.

Wagner further asserted that Four J's and Uduma's breaches of the standards of care proximately caused Jenny to inhale smoke and sustain second- and third-degree burns, hospitalization for one month, painful debridement of wounds, tube feeding due to inhalation injuries, and permanent scarring and disfigurement. And, Uduma was jointly and severally liable for the wrongful and negligent conduct of Four J's because it is her alter ego.4

Four J's and Uduma, in their answer, generally denied Wagner's allegations, and they asserted various affirmative defenses, including that their actions and omissions did not constitute "a proximate or producing cause" of Jenny's injuries. Rather, Jenny's injuries were caused by "the intervening actions of an independent, responsible third party," namely Arzola, "who started the fire in question."5

At trial, Udemezue testified that she began working for Four J's in 2007. Her training included watching a "CD" and working with another staff member for two days before being left to work alone at the facility. Four J's did not give her keys to any of the doors at the facility. Rather, a Four J's van driver would routinely drive her to the facility, and he would unlock the front door to let her inside. The back door was the only other outside door at the facility; however, it had a deadbolt lock that required a key to open it from the inside, and she did not have a key. Udemezue noted that the garage door of the facility did not properly function, and it would fall down if used. Thus, each week, the facility trash was gathered from the garage and removed through the living room and front door.

Udemezue explained that, initially, the facility had three residents: Jenny, James, and Arzola. Later, a fourth resident, Elisha Campbell, moved in. Udemezue routinely supervised the four residents on her own. She had to "do virtually everything" for Jenny, who needed "total care." They had a good relationship, and Jenny used to sing for Udemezue. James also needed "total care," including assistance with bathing and brushing her teeth. Although James was able to feed herself, she had to be prompted to complete basic tasks. She was also "fond of hitting herself," and she would "hurt herself most of the time" if her hands were not kept separated. Udemezue noted that Arzola was "something else." She was aggressive and "acted up all the time." Arzola often damaged property and ran away from the facility. And Udemezue was "very scared" of Arzola. Campbell was also aggressive and difficult for Udemezue to manage.

On the day of the fire, while Udemezue was working in Jenny's room, Arzola came in and tried to assist with Jenny. Udemezue, concerned about Arzola's handling Jenny, directed her to return to her bedroom. Arzola became angry, but complied. Udemezue then heard a "big bang," went to Arzola's bedroom, and saw that Arzola had broken a window. Udemezue telephoned a case manager to report Arzola's conduct, but she was unable to reach him. She also telephoned a nurse, who told her how to treat the cuts that Arzola had sustained in breaking the window. Arzola *314then calmed down and apologized to Udemezue. While they were talking, Udemezue heard sirens and looked outside. She told Arzola that it appeared that a house at the end of the road was on fire.

Later, while Udemezue was washing clothes, she heard another "big bang." Thinking that something had occurred outside, she rushed to investigate. Once outside, however, she saw through a window into Arzola's bedroom, which was situated next to the front door, that her room was on fire. Udemezue rushed back inside, pulled Campbell from her bedroom, and led her outside. Udemezue then went back inside the facility toward Jenny's and James's rooms. However, she panicked when she realized that the fire was very close to the front door and she did not have a key to the back door. She also knew that the garage door did not function. Thus, with access to only one door to the outside, Udemezue knew that "[i]f the fire g[ot] to that front door, that's it." They were "finished." She yelled to Arzola, and together they ran from the house. After Udemezue telephoned for emergency assistance and shouted for help from neighbors, she "passed out." She later awoke inside an ambulance.

Udemezue further testified that she had panicked during the fire because she had only "one exit." And she "would have tried [her] best if [she had] had another door in that house." She also noted that she was alone and there would have been a better outcome had she had the assistance of at least one other staff member. Although Four J's did provide Udemezue with fire-emergency training on two occasions, she, in both drills, was trained to exit through the front door. And neither drill involved the use of a fire extinguisher or placing Jenny in a blanket to evacuate her from the facility.

Chiaka Irondi testified that from 2006 to February 2008, she worked for Four J's at the facility. She noted that the back door of the facility could not be operated without a key. Although the back-door key, at some point before Irondi left, had been lost, she had reported it to Four J's. And the garage door, which was inoperative, had to be physically held up in order for one to pass underneath it. Moreover, although Four J's did not provide Irondi with any fire-emergency training, Four J's did require her to sign a statement that she had received such training.

Kevin Kern, the Director of Residential Services for The Center in Houston, testified as an expert about the standards of care applicable to facilities that provide residential services to persons with intellectual and developmental disabilities. Prior to his testimony, Kern reviewed the Four J's evacuation plans, Udemezue's deposition, the Houston Fire Department ("HFD") arson report, and documents concerning the other residents at the facility. Based on his review, he opined that the applicable standards of care required that a residential care provider prohibit a resident with Arzola's history of physical and verbal aggression and self-injurious behavior any access to an incendiary device, such as a cigarette lighter. Further, such a facility must provide adequate supervision and room inspections by staff. Kern explained that persons like Arzola are unable to "realize the consequences of their actions at the time that they are upset."

Based on the individual needs of the residents at the facility, the applicable standards of care required that "the house most definitely needed to be double staffed." Specifically, Kern noted that one of Four J's residents required total care and several of them had behavioral issues or concerns. He explained that it "would be impossible to be bathing a client in the *315bathroom when you may have another client that's trying to leave the home or have a physical altercation with another resident."

Kern further explained that the applicable standards of care for a four-bedroom residential care facility, such as here, required that it have a fire-sprinkler system, unless each of the residents was able to evacuate within three minutes, which is a "prompt evacuation score." Because this training must "be consistent across various shifts and different times of the day and night," such a facility must perform "third shift [fire] drill[s]." The standards of care also dictated that facility staff be trained in the use of a fire extinguisher. Kern, based on the reviewed HFD photographs, noted that Udemezue, while inside the facility during the early stages of the fire, did not use the facility's fire extinguisher. He also noted that the only way that the keyed deadbolt lock on the back door could have met the applicable standards of care was if all of the residents had had access to a key and were mentally and physically capable of opening the door with the key. Based on her condition, Jenny could have "never met that criteria." Moreover, it was apparent that a key to the deadbolt was not available, even for the staff. Kern further testified that Four J's, in his opinion, had breached the standards of care in each of the areas that he had outlined.

Rick Overholt, general manager of Omni Fire and Security Systems, LP, testified that he had installed a fire alarm at the facility. He installed a local alarm, however, that was not designed to automatically notify HFD in the event of a fire.

Dr. K. Gollaher testified that in March 2009, she performed a court-ordered evaluation of Arzola's competency to stand trial for the offense of arson6 in a separate criminal proceeding. She deemed Arzola incompetent to stand trial. Gollaher explained that Arzola had experienced auditory hallucinations, had tremendous difficulty answering questions and understanding terms, and did not understand that a death had resulted from the fire.

Uduma testified that she is the president, chief executive officer, and sole shareholder of Four J's. She is also the sole owner of the facility, which she leases to Four J's. Although Four J's staff were "never supposed to leave" residents unattended, there were, at the time of the fire, four clients residing at the facility and only one staff member on duty. Uduma admitted that the back door of the house had a deadbolt lock that required a key to open it from the inside, and staff members usually did not have keys to the back door.

Uduma and Four J's, prior to the fire, were aware that Arzola had been diagnosed with bipolar disorder, had tried to commit suicide, and had a history of violence toward the staff. Uduma was also familiar with Arzola's psychological evaluation and "Annual Individual Service Plan," which Four J's had completed the month before the fire. Arzola, who was then twenty-five years old, had, as a child, been emotionally, physically, and sexually abused, which included her being compelled into prostitution, by her biological parents. After their parental rights had been terminated, Arzola's parents facilitated her unauthorized departure from Richmond State School and took her to the Dallas area, where she "became infected with herpes as a result of ... sexual activity between her and her father." She also had a history of alcohol and narcotics abuse ; numerous placements in residential treatment centers; and "multiple contacts" with the Dallas Juvenile Justice Department *316for running away, evading arrest, prostitution, probation violations, and assault. Further, Arzola had a long history of behavioral issues, including breaking windows and light fixtures; attempting to leap from moving vehicles; swallowing objects; wrapping ligatures around her throat; biting herself and others; and "headbanging," choking, stabbing, and bludgeoning others.

Based on a "complete diagnostic evaluation," Four J's concluded that Arzola was functioning "within the mild range of mental retardation" and her behavior was "non-compliant most of the time." Although she had not been adjudicated incompetent by a court and was acting as her own legal guardian, her behavioral problems were "severe" and required multiple psychotropic medications to manage. And they were "typically occasioned by staff making requests of her, delaying or denying her tangibles or services," or "dividing their time" between Arzola and others. Because Arzola's aggression might result in injury to herself and others, Four J's directed that staff "[k]eep all sharps, medications, and poisons" in locked storage.

Uduma further testified that although Four J's allowed Arzola to smoke cigarettes, it did not allow her to keep a cigarette lighter. Uduma did not know how Arzola had obtained the cigarette lighter that she had used to start the fire. However, she conceded that Four J's did not ever search Arzola's room for contraband because the room "belong[ed] to her." She opined that Arzola was solely responsible for the injuries that had resulted from the fire because Arzola was "a competent adult who was only mild[ly] mental[ly] retarded," she had set the fire, and law-enforcement authorities had arrested her for arson. Uduma asserted that had Udemezue followed her training, she would have been able to timely evacuate all of the residents without injury. And she noted that a key to the back door was located in a drawer at the facility.

Ngozi Obichuku, a care coordinator at Four J's, testified that that Jenny was the only client at the facility who needed physical assistance to evacuate. And, on May 13 and June 6, 2008, Obichuku had trained Udemezue about Jenny's individual evacuation plan. She asserted that Udemezue simply did not follow her training during the fire. Obichuku further explained that the residents of the facility were allowed to take "smoking breaks," during which the staff "issue[d] out the lighters." And the staff were responsible for collecting the lighters "after the clients [we]re done."

In Question One of his charge, respondent asked the jury: "Did the negligence, if any, of those named below [Four J's, Uduma, and Arzola] proximately cause the injuries in question?" In regard to both Four J's and Uduma, the jury answered, "Yes." In regard to Arzola, the jury answered, "No." In answer to Question Two of the charge, the jury apportioned the responsibility of Four J's at 60 percent and Uduma at 40 percent. And it awarded Wagner damages in the amount of $8,071,600.00.

After respondent entered a judgment on the verdict, Four J's and Uduma filed a motion for new trial. They argued, in part, that there is "no evidence, legally insufficient evidence, or factually insufficient evidence" to support the jury's findings in Questions One and Two of the charge because "the evidence established that the fire that caused the injuries to [Wagner] and the death of [James] was caused by the intentional arson of [Arzola]." And, because "the evidence shows that the risk of Arzola's arson was unforeseeable to Four J's and [Uduma], ... neither Four J's nor [Uduma] had a duty, as a matter of law, to protect [Wagner] and [James] from the criminal act of Arzola." Four J's and *317Uduma argued that the jury's "finding of no negligence against Arzola was against the great weight and preponderance of the evidence" because the "undisputed evidence revealed that the fire that caused the injuries to [Wagner] and the death of [James] was solely caused by [Arzola], who intentionally used a lighter to start the fire."

Respondent granted Four J's and Uduma's new-trial motion, explaining:

> The reason for the Court's grant of new trial is that the jury's failure to find negligence on [Arzola], who started the fire that was the cause-in-fact of the injuries to [Wagner] and the death of [James], is so against the great weight of the evidence as to be clearly wrong and manifestly unjust. *See**Cropper v. Caterpillar Tractor Co.* , 754 S.W.2d 646. 651 (Tex. 1988).

Wagner moved for reconsideration, asserting that even if the evidence establishes causation-in-fact regarding Arzola, the jury could have reasonably concluded that Arzola did not proximately cause Jenny's injuries. Respondent denied Wagner's motion for reconsideration.

Uduma subsequently filed a motion to dismiss Wagner's claims against her on the ground that she is a health-care provider and Wagner had failed to timely serve her with an expert report.7 This Court affirmed respondent's order denying Uduma's motion to dismiss.8 Wagner then filed her petition for a writ of mandamus.

**Waiver**

As a preliminary matter, Four J's and Uduma argue that Wagner has "waived the right to seek review via mandamus" because she "can offer no justifiable excuse for a three-year delay in seeking relief."

Although mandamus is not an equitable remedy, its issuance is controlled largely by equitable principles. *In re Int'l Profit Assocs., Inc.* , 274 S.W.3d 672, 676 (Tex. 2009). "One such principle is that 'equity aids the diligent and not those who slumber on their rights.' " *Id.* (quoting *Rivercenter Assocs. v. Rivera* , 858 S.W.2d 366, 367 (Tex. 1993) ). Delay in the filing of a petition for mandamus relief may waive the right to relief unless the relator can justify the delay. *Id.* To invoke the equitable doctrine of laches, the moving party ordinarily must show that (1) the opposing party unreasonably delayed in asserting its rights and (2) a good faith and detrimental change in the moving party's position because of the delay. *In re Laibe Corp.* , 307 S.W.3d 314, 318 (Tex. 2010).

Wagner asserts, and the record shows, that respondent signed his order granting a new trial on March 27, 2012. On August 24, 2012, Uduma moved to dismiss the claims against her on the ground that Wagner did not timely serve her with an expert report. On August 30, 2013, the Texas Supreme Court held for the first time that a trial court's reasons articulated in a new-trial order are subject to merits-based mandamus review. *See**In re Toyota Motor Sales, U.S.A., Inc.* , 407 S.W.3d 746, 749 (Tex. 2013). On August 27, 2014, this Court issued its opinion in Uduma's interlocutory appeal. *Uduma v. Wagner* , No. 01-12-00796-CV, 2014 WL 4259886, at *8 (Tex. App.-Houston [1st Dist.] 2014, pet. denied). Uduma then petitioned for review in the Texas Supreme Court. After the supreme court denied her petition for review, we issued our mandate in the interlocutory *318appeal on September 4, 2015. Wagner then filed her petition for a writ of mandamus on September 8, 2015.

During the applicable time period from March 27, 2012, when respondent ordered a new trial, to August 24, 2012, when Uduma filed her motion to dismiss, no Texas Court had recognized a right to merits-based mandamus review of a trial court's new-trial order. When Uduma moved to dismiss the claims against her on the ground that she had not been served with an expert report, her motion stayed certain proceedings in the trial court. *See* TEX. CIV. PRAC. & REM. CODE § 74.351(s) (Vernon 2017). Further, Uduma's interlocutory appeal from respondent's order denying her motion to dismiss stayed the commencement of a trial pending resolution of the appeal. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9), (b) (Vernon Supp. 2016); *see also**In re Oceanografia, S.A. de C.V.* , 494 S.W.3d 728, 730 (Tex. 2016) (delay in seeking mandamus relief attributable, in part, to pendency of interlocutory appeal). After we resolved the appeal, by issuing our mandate on September 4, 2015, Wagner filed her petition for mandamus relief on the next business day. Thus, Wagner has provided an explanation that justifies her delay in seeking mandamus relief. *See**In re Oceanografia, S.A. de C.V.* , 494 S.W.3d at 731 (defendants' explanations sufficient to show they did not "slumber on their rights"); *In re Int'l Profit Associates, Inc.* , 274 S.W.3d at 676.

Moreover, Four J's and Uduma have not shown a detrimental change in their position between the time respondent granted a new trial and Wagner's filing of her mandamus petition in this Court. *See**In re Laibe* , 307 S.W.3d at 318 ; *In re Oceanografia* , 494 S.W.3d at 730 (four-year delay in seeking mandamus relief not unreasonable where plaintiffs showed no prejudice from delay); *In re E.I. du Pont de Nemours & Co.* , 92 S.W.3d 517, 524 (Tex. 2002) (rejecting argument four-year delay barred mandamus relief where plaintiffs had "failed to show how the delay has prejudiced them in any way"). In support of their argument, Four J's and Uduma rely on *Salinas* , in which the appellate court denied mandamus relief to a party who had delayed seeking mandamus relief for over three months. *In re Salinas* , No. 13-09-00599-CV, 2010 WL 196887, at *2 (Tex. App.-Corpus Christi Jan. 20, 2010, orig. proceeding) (mem. op.). There, however, the relator provided no justification for the delay. *Id.*

Accordingly, we hold that Wagner did not waive her right to seek mandamus relief. *See**In re Int'l Profit Assocs., Inc.* , 274 S.W.3d at 676 ; *In re SCI Tex. Funeral Servs., Inc.* , 236 S.W.3d 759, 761 (Tex. 2007).

**Standard of Review**

Although trial courts have long been afforded broad discretion in granting new trials, a trial court's discretion to order a new trial is not "limitless." *In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P.* , 290 S.W.3d 204, 210, 213 (Tex. 2009) ; *see also* TEX. CONST. art. 1, § 15 (right to trial by jury "shall remain inviolate"); *In re Wyatt Field Serv. Co.* , 454 S.W.3d 145, 152 (Tex. App.-Houston [14th Dist.] 2014, orig. proceeding) ("[W]e may not substitute our judgment for that of the trial court. But neither may the trial court substitute its judgment for that of the jury in granting a new trial."). Thus, when a trial court orders a new trial after a case has been tried to a jury, the parties " 'are entitled to an understandable, reasonably specific explanation why their expectations are frustrated by a jury verdict being disregarded or set aside, the trial process being nullified, and the case having to be retried.' "

*319*In re Bent* , 487 S.W.3d 170, 175-76 (Tex. 2016) (quoting *In re Columbia* , 290 S.W.3d at 213 ).

Accordingly, a trial court, in its order granting a new trial, must state a reason for doing so. *In re Columbia* , 290 S.W.3d at 213. The trial court's "stated reason" must be (1) "legally appropriate," articulating a "well-defined legal standard" or a "defect that probably resulted in an improper verdict," and (2) "specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reason[ ] from the particular facts and circumstances from the case at hand." *In re Bent* , 487 S.W.3d at 173 (quoting *In re United Scaffolding, Inc.* , 377 S.W.3d 685, 688-89 (Tex. 2012) (granting mandamus relief where trial court's order premised on bare assertion new trial warranted "in the interests of justice and fairness")). If the trial court's order granting a new trial satisfies these facial requirements, an appellate court may "conduct a merits review of the bases for [the] new trial order" and "grant mandamus relief '[i]f the record does not support the trial court's rationale for ordering a new trial.' " *In re Bent* , 487 S.W.3d at 173 (quoting *In re Toyota* , 407 S.W.3d at 749 ); *see also**In re United Scaffolding* , 377 S.W.3d at 688-89 (trial court's grant of new trial subject to mandamus review); *In re United Servs. Auto. Ass'n* , 446 S.W.3d 162, 170 (Tex. App.-Houston [1st Dist.] 2014, orig. proceeding). We review the merits of a new-trial order under the abuse-of-discretion standard "familiar and inherent in mandamus proceedings." *In re Bent* , 487 S.W.3d at 177-78.

To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion and (2) the relator has no adequate remedy by appeal. *In re Reece* , 341 S.W.3d 360, 364 (Tex. 2011). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. *In re Cerberus Capital Mgmt. L.P.* , 164 S.W.3d 379, 382 (Tex. 2005).

Here, we are presented with the issue of whether respondent abused his discretion in concluding that the jury's negative finding as to Arzola's negligence was against the great weight and preponderance of the evidence, a factual-sufficiency question. *See**In re United Servs. Auto. Ass'n* , 446 S.W.3d at 170 ; *see also**In re Baker* , 420 S.W.3d 397, 402 (Tex. App.-Texarkana 2014, orig. proceeding) ; *In re Zimmer* , *Inc.* , 451 S.W.3d 893, 905 (Tex. App.-Dallas 2014, orig. proceeding) ("[W]e see no reason to believe the standards for factual sufficiency review in new trial mandamus proceedings should differ from the standards of review on appeal.").

When a party attacks the factual sufficiency of an adverse finding on an issue on which it did not have the burden of proof, the party must demonstrate that the adverse finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. *Dow Chem. Co. v. Francis* , 46 S.W.3d 237, 242 (Tex. 2001). In conducting a factual-sufficiency review, we must examine, consider, and weigh all of the evidence that supports or contradicts the jury's finding. *See**Francis* , 46 S.W.3d at 242 ; *Plas-Tex, Inc. v. U.S. Steel Corp.* , 772 S.W.2d 442, 445 (Tex. 1989). In doing so, we note that the jury is the sole judge of the witnesses' credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. *See**Golden Eagle Archery, Inc. v. Jackson* , 116 S.W.3d 757, 761 (Tex. 2003). When presented with conflicting testimony, the fact finder may believe one witness and disbelieve others, and it may *320resolve inconsistencies in the testimony of any witness. *McGalliard v. Kuhlmann* , 722 S.W.2d 694, 697 (Tex. 1986).

**New Trial**

In her sole issue, Wagner argues that respondent abused his discretion in granting Four J's and Uduma a new trial because the evidence is factually sufficient to support the jury's finding that Arzola's negligence, if any, in starting the fire did not proximately cause Jenny's injuries.

The elements of a negligence cause of action consist of the "existence of a legal duty, a breach of that duty, and damages *proximately caused* by the breach." *Gharda USA, Inc. v. Control Sols., Inc.* , 464 S.W.3d 338, 352 (Tex. 2015) (emphasis added); *LeBlanc v. Palmer* , No. 01-15-00034-CV, 2015 WL 7261532, at *2 (Tex. App.-Houston [1st Dist.] Nov. 17, 2015, pet. denied) (mem. op.). The components of proximate cause are (1) cause-in-fact and (2) foreseeability. *Ryder Integrated Logistics, Inc. v. Fayette Cty.* , 453 S.W.3d 922, 929 (Tex. 2015) ; *LeBlanc* , 2015 WL 7261532, at *2. Cause-in-fact requires proof "that an act or omission was a substantial factor in bringing about injury which would not otherwise have occurred." *Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd.* , 896 S.W.2d 156, 161 (Tex. 1995). Foreseeability exists when "the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates for others." *D. Houston, Inc. v. Love* , 92 S.W.3d 450, 454 (Tex. 2002).

In Question One of his charge, respondent asked the jury, "Did the negligence, if any, of those named below [Four J's, Uduma, and Arzola] *proximately cause* the injuries in question?" (Emphasis added.) Respondent instructed the jury that

> "Negligence" means failure to use ordinary care-that is, failing to do that which a person or company of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

> "Ordinary care" means that degree of care that would be used by a person or company of ordinary prudence under the same or similar circumstances.

> ....

> "Proximate cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

> "New and independent cause" means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.

In granting Four J's and Uduma's motion for new trial, respondent concluded that

> the jury's failure to find negligence on [Arzola], who started the fire that was the cause-in-fact of the injuries to [Wagner] and the death of [James], is so against the great weight of the evidence as to be clearly wrong and manifestly unjust.

Respondent's stated reason, which points to the evidence that Arzola started the fire, is "specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather *321derived the articulated reason[ ] from the particular facts and circumstances from the case at hand." *See**In re Bent* , 487 S.W.3d at 173 (quoting *In re United Scaffolding* , 377 S.W.3d at 688-89 ). However, respondent's stated reason is not one for which a new trial is "legally appropriate" because the evidence that Arzola "started the fire that was the cause-in-fact of the injuries" does not undermine the challenged jury's finding. *See**In re United Scaffolding, Inc.* , 377 S.W.3d at 689 ("[M]ere recitation of a legal standard, such as a statement that a finding is against the great weight and preponderance of the evidence, will not suffice. The order must ... explain how the evidence (or lack of evidence) undermines the jury's findings."). A finding of negligence requires a showing of proximate cause, i.e., both cause-in-fact and foreseeability. *Gharda USA* , 464 S.W.3d at 352 ; *Fayette Cty.* , 453 S.W.3d at 929. Thus, cause-in-fact is merely one component. *Fayette Cty.* , 453 S.W.3d at 929. Accordingly, we hold that respondent's new-trial order does not satisfy the facial requirements of *In re Bent. See**In re Bent* , 487 S.W.3d at 173.

Even were we to conclude that respondent's new-trial order satisfies the facial requirements of *In re Bent* , the record does not support respondent's rationale for ordering a new trial. *See id.* ; *In re Toyota* , 407 S.W.3d at 749 ; *In re United Servs. Auto Ass'n* , 446 S.W.3d at 176-77 ("Even if the order satisfied *United Scaffolding* ," new trial improper because jury verdict not against great weight and preponderance of evidence). The jury heard ample evidence from which it could have reasonably concluded that Arzola's act in starting the fire was not the proximate cause of Jenny's injuries. *See**Fayette Cty.* , 453 S.W.3d at 929 ; *Yap v. ANR Freight Sys., Inc.* , 789 S.W.2d 424, 425-26 (Tex. App.-Houston [1st Dist.] 1990, no pet.) ("The question of proximate cause is one of fact particularly within the province of the jury, and a jury finding on proximate cause will be set aside only in the most exceptional circumstances.").

Uduma herself testified that she and Four J's, prior to the fire, were aware that Arzola had been diagnosed with bipolar disorder, had tried to commit suicide, and had a history of violence toward the staff. Uduma's testimony, along with Arzola's psychological evaluation and "Annual Individual Service Plan," which Four J's had completed the month before the fire, establish that Arzola, as a child, had been emotionally, physically, and sexually abused, which included her being compelled into prostitution by her biological parents. She had a history of alcohol and narcotics abuse ; numerous placements in residential treatment centers; and "multiple contacts" with the Dallas Juvenile Justice Department for running away, evading arrest, prostitution, probation violations, and assault. Further, Arzola had a long history of behavioral issues, including breaking windows and light fixtures; attempting to leap from moving vehicles; swallowing objects; wrapping ligatures around her throat; biting herself and others; and "headbanging," choking, stabbing, and bludgeoning others.

Four J's characterized Arzola's behavioral problems as "severe," requiring multiple psychotropic medications to manage. They were "typically occasioned by staff making requests of her, delaying or denying her tangibles or services," or "dividing their time" between Arzola and others. Because Arzola's aggression might result in injury to herself and others, Four J's directed that staff "[k]eep all sharps, medications, and poisons" in locked storage. Regardless, according to Uduma's testimony, Four J's allowed Arzola to smoke cigarettes, and it did not perform room inspections *322for contraband. Obichuku also testified that Four J's allowed its residents to take "smoking breaks," during which the staff "issued out the lighters." And the staff was responsible for collecting the lighters "after the clients were done."

Kern, Wagner's expert, testified that Four J's breached the standards of care applicable to a residential care provider by not providing adequate staff at the facility; not providing adequate supervision; not conducting room inspections; and, based on her history, allowing Arzola to have access to an incendiary device, i.e., a cigarette lighter. He explained that persons like Arzola are unable to "realize the consequences of their actions at the time that they are upset."

Uduma did opine that Arzola alone was responsible for the injuries that resulted from the fire because Arzola was "a competent adult who was only mild[ly] mental[ly] retarded" and law-enforcement authorities had arrested Arzola for arson. However, the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. *See**Jackson* , 116 S.W.3d at 761.

Four J's and Uduma's own evidence shows that prior to the fire, they were aware of the extent of Arzola's behavioral issues, the dangers she posed to herself and others, and that she was not capable of governing herself. Nevertheless, they not only allowed Arzola to have access to cigarette lighters, but they also supplied them to her. And Four J's had itself concluded that Arzola's behavioral problems were "severe" and "typically occasioned" by staff "dividing their time" between her and other residents. Nevertheless, it assigned Udemezue to work alone at the facility, and she had to divide her time among Arzola and three other residents-two of whom required "total care."

Moreover, the back door of the facility had a deadbolt lock that required a key to open it from the inside, the door was kept locked, and staff members did not have a key. Kern opined that the keyed deadbolt lock on the back door, to which even the staff members did not have a key, did not meet the standard of care for a four-bedroom residential facility. He further opined that Four J's should have installed a fire-sprinkler system at the facility, conducted "third shift [fire] drill[s]," and trained its staff in the use of a fire extinguisher. And Kern explained that Four J's did not provide adequate staff at the facility, did not provide adequate supervision, and did not conduct room inspections.

Udemezue testified that by the time she discovered that Arzola had set fire to her bedroom, the flames were very close to the front door. And although she went back inside the facility toward Jenny's and James's rooms to try to rescue them, she panicked when she realized that she had only "one exit." She did not have a key to the back door, and the garage door did not function. With access to only one door to the outside, Udemezue knew that "[i]f the fire g[ot] to that front door, that's it." They were "finished." She "would have tried [her] best if [she had] had another door in that house." And the outcome would have been better had she had assistance from at least one other staff member. Although Four J's did provide Udemezue with fire-emergency training on two occasions, she, in both drills, was trained to exit "through the front door." And neither drill involved the use of a fire extinguisher or placing Jenny in a blanket to evacuate her from the facility.

Irondi also testified that there was no key available to the back door of the facility, and she had reported it lost to Four J's at least seven months before the fire. She *323further noted that Four J's had not provided her with any fire-emergency training.

Although Obichuku testified that she had trained Udemezue to implement Jenny's individual evacuation plan and Udemezue simply did not follow her training during the fire, it was within the province of the jury to resolve conflicts in the testimony. *See**McGalliard* , 722 S.W.2d at 697. The jury could have disbelieved Obichuku and believed Udemezue's testimony that the outcome would have been better had she had "another door in that house," another staff member to help her, or been adequately trained to handle a fire emergency. *See**Jackson* , 116 S.W.3d at 761 (fact finder is sole judge of credibility of witnesses and weight given their testimony).

"The question of proximate cause is one of fact particularly within the province of the jury...." *Yap* , 789 S.W.2d at 425-26. From the evidence, the jury could have reasonably concluded, as it did, that Jenny's injuries were proximately caused by Four J's and Uduma's breaches of the standards of care applicable to a residential care provider, namely, in supplying Arzola with an incendiary device, i.e., a cigarette lighter, not conducting room inspections, not providing adequate supervision of the residents, not providing adequate staff at the facility, not training staff on how to use a fire extinguisher, and not providing staff with keys to the back door, thereby preventing Jenny's timely escape.

Having considered all of the evidence, both that which supports and that which contradicts the jury's finding that Arzola's negligence, if any, in starting the fire did not proximately cause Jenny's injuries, we conclude that there is ample evidence to support the jury's finding. *See**Maritime Overseas Corp. v. Ellis* , 971 S.W.2d 402, 406-07 (Tex. 1998) ; *Cain v. Bain* , 709 S.W.2d 175, 176 (Tex. 1986). Thus, the jury's finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. *See**Francis* , 46 S.W.3d at 242 ; *In re United Servs. Auto Ass'n* , 446 S.W.3d at 173-74.

Accordingly, we hold that respondent abused his discretion in ordering a new trial on the ground that the evidence is factually insufficient to support the jury's finding that Arzola's negligence, if any, in starting the fire did not proximately cause Jenny's injuries. *See**In re Baker* , 420 S.W.3d at 404 ("[T]he grant of the new trial improperly intruded on the jury's province.").

**Adequate Remedy by Appeal**

Wagner argues that she has no adequate remedy by appeal because requiring a new trial will waste significant time and money and she may lose her right to a judgment on the first verdict.

The Texas Supreme Court has explained that "absent mandamus review," parties "will seemingly have no appellate review" of orders granting new trials. *See**In re Columbia* , 290 S.W.3d at 209. Even if a party could obtain appellate review of a new-trial order following a second trial, it could not obtain reversal of an unfavorable verdict unless it convinced an appellate court that the granting of the new trial constituted harmful error. *Id.* Furthermore, even if an unfavorable verdict were reversed and rendered in the party's favor, "it would have lost the benefit of a final judgment based on the first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of the second trial." *Id.* at 209-10. Thus, parties do not have an adequate appellate remedy. *Id.* at 210.

Accordingly, we hold that Wagner has no adequate remedy by appeal. *See id.* ; *see also**In re Toyota* , 407 S.W.3d at 762 ;

*324*In re United Servs. Auto Ass'n* , 446 S.W.3d at 180 (granting mandamus relief where trial court's reasons for ordering new trial not "legally appropriate" or grounded in facts of case).

**Conclusion**

Because respondent abused his discretion in granting Four J's and Uduma's motion for new trial and Wagner does not have an adequate remedy by appeal, we conditionally grant Wagner's petition for a writ of mandamus and direct respondent to vacate his order granting a new trial. A writ from this Court will issue only if respondent does not comply.

1

Respondent is The Honorable Dan Hinde of the 269th District Court of Harris County. The underlying suit is *Patti J. Wagner, as Guardian of Jenny Ann Wagner, as Incapacitated Adult v. Four J's Community Living Center, Inc. and Anthonia Uduma* , No. 2009-40925 (269th Dist. Court, Harris County, Tex.).

2

The record reveals that the facility is a single-story, single-family home.

3

Uduma is the president, chief executive officer, and sole shareholder of Four J's. She is also the sole owner of the facility, which she leased to Four J's.

4

Wylette Taylor, on behalf of James's son, intervened to also assert claims against Four J's and Uduma.

5

Respondent granted Four J's and Uduma's motion to designate Arzola as a responsible third party. *See* Tex. Civ. Prac. & Rem. Code Ann. Ch. 33 (Vernon 2015).

6

*See*Tex. Penal Code Ann. § 28.02 (Vernon 2011).

7

*See*Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2017).

8

*Uduma v. Wagner* , No. 01-12-00796-CV, 2014 WL 4259886, at *8 (Tex. App.-Houston [1st Dist.] 2014, pet. denied.).

Jennings, J., concurring.

Terry Jennings, Justice, concurring.

I write separately to explain that there is a second ground for granting mandamus relief to relator, Patti J. Wagner ("Wagner"), as guardian of Jenny Wagner ("Jenny"), an incapacitated adult, in her lawsuit against real parties in interest, Four J's Community Living Center, Inc. ("Four J's") and Anthonia Uduma.

In his order granting Four J's and Uduma a new trial, respondent1 stated:

> The reason for the Court's grant of new trial is that *the jury's failure to find negligence* on [Esperanza Arzola], who started the fire that was the cause-in-fact of the injuries to [Jenny] and the death of [Tanya James], is so against the great weight of the evidence as to be clearly wrong and manifestly unjust. *See**Cropper v. Caterpillar Tractor Co.* , 754 S.W.2d 646, 651 (Tex. 1988).

(Emphasis added.)

When a party attacks the factual sufficiency of an adverse finding on an issue on which it did not have the burden of proof, the party must demonstrate that the adverse finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. *Dow Chem. Co. v. Francis* , 46 S.W.3d 237, 242 (Tex. 2001). In conducting a factual-sufficiency review, we must examine, consider, and weigh all of the evidence that supports or contradicts the jury's finding. *See**Francis* , 46 S.W.3d at 242 ; *Plas-Tex, Inc. v. U.S. Steel Corp.* , 772 S.W.2d 442, 445 (Tex. 1989). The jury is the sole judge of the witnesses' credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. *See**Golden Eagle Archery, Inc. v. Jackson* , 116 S.W.3d 757, 761 (Tex. 2003). When presented with conflicting testimony, the fact finder may believe one witness and disbelieve others, and it may resolve inconsistencies in the testimony of any witness. *McGalliard v. Kuhlmann* , 722 S.W.2d 694, 697 (Tex. 1986).

In Question One of his charge, respondent asked the jury, "Did the negligence, if any, of those named below [Four J's, Uduma, and Arzola] proximately cause the injuries in question?" In pertinent part, he instructed the jury that

> "Negligence" means failure to use ordinary care-that is, failing to do that which a person or company of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

> "Ordinary care" means that degree of care that would be used by a person or *325company of ordinary prudence under the same or similar circumstances.

In regard to Arzola, the jury answered, "No."

In Question Thirteen, which was predicated on an affirmative answer to Question One in regard to Arzola, respondent asked the jury:

> Did the injuries to Jenny Ann Wagner arise from a criminal act committed by Esperanza Arzola?

Respondent instructed the jury:

> "Criminal act" means arson, assault, criminal mischief, manslaughter, or reckless damage or destruction.

> A person commits "arson" if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with the intent to destroy or damage:

> ...

> 2) Any building, habitation, or vehicle:

> ...

> f) When the person is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.

> A person also commits "arson" if the person *intentionally* starts a fire or causes an explosion and in so doing:

> 1) Recklessly damages or destroys a building belonging to another; or

> 2) *Recklessly* causes another person to suffer bodily injury or death.

(Emphasis added.)

Further, respondent defined "intentionally" and "recklessly" as follows:

> A person acts "intentionally," or with intent, with respect to the nature of her conduct or to a result of her conduct when it is her conscious objective or desire to engage in the conduct or cause the result.

> A person acts "recklessly," or is reckless, with respect to circumstances surrounding her conduct or the result of her conduct when she is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

The parties have submitted post-submission briefing on the question, raised at oral argument, of whether the jury's negative answer to Question One in regard to Arzola should be upheld on the theory that the jury could have reasonably concluded that because Arzola intentionally started the fire and recklessly caused Jenny's injuries, Arzola did not *negligently* start the fire and cause Jenny's injuries.

The Texas Supreme Court has recognized that the "fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury." *Reed Tool Co. v. Copelin* , 689 S.W.2d 404, 406 (Tex. 1985). The court noted that the Restatement Second of Torts defines intent to mean that "the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it." *Id.* (quoting RESTATEMENT (SECOND) OF TORTS § 8A (1965) ).

For example, in *Fulmer v. Rider* , the jury found that the decedent acted negligently in pointing a rifle in the direction of Rider and Hester, the decedent acted negligently in discharging the rifle at a time when they were in the path of its barrel, and that both acts of negligence proximately *326caused their injuries. 635 S.W.2d 875, 876 (Tex. App.-Tyler 1982, writ ref'd n.r.e.). Fulmer, who sued on behalf of the estate of the decedent, argued that the testimony of Rider and Hester did not prove that the decedent had acted negligently in shooting them; to the contrary, Rider and Hester asserted that the decedent had acted willfully and intentionally. Fulmer urged the court to sustain her no-evidence and insufficiency points because Rider and Hester had tried and submitted their case on a negligence theory and did not seek any issues on whether the decedent had acted willfully and intentionally. Thus, Fulmer's position was that Rider and Hester had failed to establish their negligence case. *Id.* at 879.

In analyzing the issue, the court looked to the Corpus Juris Secundum on Negligence, which states:

> The difference between intent and negligence, in a legal sense, ordinarily is nothing but the difference in the probability, under the circumstances known to the actor and according to common experience, that a certain consequence or class of consequences will follow from a certain act. The words "negligence" and "intentional" are contradictory; negligence is not synonymous with intentional action.

*Id.* at 881 (quoting 65 C.J.S. *Negligence* § 1(7) (1966) ); *see also* 65 C.J.S. *Negligence* § 17 (2017). It also provided that negligence:

> excludes the idea of intentional wrong; the absence of an intent or purpose to inflict injury of which complaint is made is essential to the legal conception of negligence, is the, or a, distinguishing characteristic thereof, and is an element which distinguishes it from other torts, since, where an intention to inflict the injury exists, whether that intention is actual or constructive only, the wrongful act is not negligent but is one of violence or aggression or is fraudulent, willful, or wanton.

*Id.* at 881-82 (quoting 65 C.J.S. *Negligence* § 3 (1966) ); *see also* 65 C.J.S. *Negligence* § 28 (2017). And the court looked to the Restatement (Second) of Torts, which contrasts negligence with intent as follows:

> The definition of negligence given in this Section includes only such conduct as creates liability for the reason that it involves a risk and not a certainty of invading the interest of another. It therefore excludes conduct which creates liability because of the actor's intention to invade a legally protected interest of the person injured or of a third person.

*Id.* (quoting RESTATEMENT (SECOND) OF TORTS § 282, cmt. d (1965)); *see also* RESTATEMENT (SECOND) OF TORTS § 8A, cmt. b. (defining "intent" as including knowledge that conduct will invade interest, as well as purpose to invade it).

Accordingly, the *Fulmer* court concluded that the decedent's shooting of Rider and Hester was shown by all the evidence to be a willful and intentional act. 635 S.W.2d at 876. Thus, the court held that Rider and Hester could not recover on their negligence claims, notwithstanding that they had pleaded negligence and the trial court had submitted the issue to the jury. *Id.* at 881.

Here, Four J's and Uduma, in their post-submission brief, assert that "there is no evidence in the record that the injuries suffered by Jenny were specifically intended by Arzola; rather they were simply an unintended consequence of an intentional act-otherwise known as negligence." *See**Malouf v. Dallas Athletic Country Club* , 837 S.W.2d 674, 677 (Tex. App.-Dallas 1992, writ dism'd w.o.j.). They further assert, to the extent that the jury might have found Arzola "not negligent" because it *327concluded that she had acted intentionally, respondent correctly granted a new trial.

Wagner, in her post-submission brief, notes that although there was an "absence of animosity directed at Jenny," "there was room for debate about Arzola's state of mind." Indeed, the record reveals that Arzola admitted to setting the fire and "murdering her home," and that she was upset with her caretaker. Wagner asserts that from this evidence, the jury could have reasonably found that Arzola "intended the consequences of her conduct or was substantially certain that they would result."

In light of the well-established fact that the words "negligence" and "intentional" are "contradictory," the trial court's instructions, and the evidence presented at trial, the jury could have reasonably concluded that Arzola intentionally started the fire and recklessly caused Jenny's injuries. Thus, it could have further found that Arzola did not negligently start the fire and cause Jenny's injuries. *See**Fulmer* , 635 S.W.2d at 881 (quoting C.J.S. *Negligence* § 1(7) (1966) ). Although, as Four J's and Uduma note, respondent's charge did not authorize the jury to "excuse" Arzola's negligence if it found that she acted intentionally, the jury's negative answer to Question One in regard to Arzola's negligence is not so "against the great weight" of the evidence as to be clearly wrong and manifestly unjust.

In 1976, this Court erroneously stated that an "intentional act" can "constitute negligence." *Dartez v. Gadbois* , 541 S.W.2d 502, 506 (Tex. Civ. App.-Houston [1st Dist.] 1976, no writ). There, a father sued a swimming pool owner for injuries his son sustained while swimming in the pool when another child threw a berry that struck his son in the eye. *Id.* The father argued in the trial court that the charge erroneously asked the jury to find whether the negligence of the berry-thrower was a proximate cause of his son's injuries because the evidence showed his conduct to have been intentional and there was no evidence raising an issue of negligence. *Id.* This Court, without citation to authority, stated that "an intentional act may nevertheless constitute negligence on the part of the actor." *Id.*

However, the Texas Supreme Court has held that there is a "fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury." *Reed Tool Co.* , 689 S.W.2d at 406 ; *see also**Gavrel v. Lieberman* , No. 2-08-414-CV, 2010 WL 1270334, at *2 (Tex. App.-Fort Worth Apr. 1, 2010, no pet.) (mem. op.) (holding there is "fundamental difference between a claim for negligence and an intentional tort" (citing *Reed Tool Co. v. Copelin* , 689 S.W.2d 404, 406 (Tex. 1985) )).

Because the jury, based on respondent's instructions and the evidence presented, could have reasonably concluded that Arzola intentionally started the fire and recklessly caused Jenny's injuries, its negative answer to Question One of the charge is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

**DISSENT FROM DENIAL OF EN BANC RECONSIDERATION**

Michael Massengale, Justice

This case was tried to a jury in October 2011. The trial judge issued his order granting a new trial on March 27, 2012. This original proceeding challenging that order was filed in September 2015, nearly three and a half years after a new trial was ordered. It should have been immediately and summarily denied as untimely filed. Instead, the case lingers at our court *328well over six years after the challenged order was entered.

Our en banc court has the power and the duty to correct the panel's error and to expedite proceedings to permit this case to be retried as soon as possible. Because the court fails to do so, I respectfully dissent.

**I**

The relevant procedural history is easily summarized. The tragic fire that gave rise to this litigation occurred in September 2008. This lawsuit was initiated in June 2009. The case was tried to a jury in October 2011, leading to an order granting a new trial in March 2012. The March 2012 order is the subject of this original proceeding, which was filed over three years later in September 2015.

How did that happen? After the trial judge ordered a new trial, one of the defendants in the trial court, Anthonia Uduma, filed a motion to dismiss the claims against her pursuant to the procedures applicable to health care liability claims under Chapter 74 of the Civil Practice and Remedies Code. The denial of that motion on August 23, 2012 resulted in an accelerated interlocutory appeal that was initiated the next day, August 24, 2012. This court's opinion affirming the trial court's interlocutory order issued just over two years later, on August 27, 2014.1

Uduma continued to pursue her interlocutory appeal, filing a petition for review in the Supreme Court of Texas on December 12, 2014. That petition was denied on June 5, 2015. The Supreme Court sent notice that the petition had been denied to this court on August 24, 2015. This court's mandate in the interlocutory appeal issued on Friday, September 4, 2015. The following Tuesday, September 8, 2015, Wagner initiated this original proceeding to challenge the new-trial order issued over three years earlier in March 2012.

**II**

Despite the extended delay between the new-trial order and the filing of this original proceeding, Wagner claimed to have "acted diligently to assert her rights." She noted that her petition was filed "on the business day following this Court's issuance of the mandate in the interlocutory appeal." She also relied upon developments in the law governing the availability of mandamus review of new-trial orders. However, her petition acknowledged that the availability of mandamus review of the merits of the reasons specified in an order granting a new trial was definitively confirmed when the Supreme Court issued its opinion in *In re Toyota Motor Sales* on August 30, 2013.2

Although Wagner argued that "changes in the law can justify waiting to seek mandamus relief," her arguments do not justify waiting as long as she did. The fact that the interlocutory appeal was pending was meaningless-that tangential litigation did not prevent Wagner from initiating her own challenge to the new-trial order, which would have mooted the interlocutory appeal if successful. She had no other legal arguments that would have been prejudiced by pursuing mandamus relief before the resolution of Uduma's interlocutory appeal. Moreover, the inevitable refinements in the law that have developed in the wake of *In re Toyota Motor Sales* were no justification for Wagner to stand pat for two *329entire years before initiating her own mandamus challenge.

**III**

It is black-letter law of Texas appellate procedure that an important equitable principle governing mandamus relief is that equity aids the diligent and not those who slumber on their rights.3 While the application of this rule isn't always clear in marginal cases, the answer should have been obvious and applied swiftly in this case. Even giving Wagner the benefit of the doubt about whether she was justified in holding off on filing her mandamus petition while *In re Toyota Motor Sales* was pending in the Supreme Court, the availability of the mandamus remedy in this scenario was known as of the day the opinion issued. A two-year delay after that decision, waiting until September 2015 to file the mandamus petition, was not justified by the pendency of an opposing party's interlocutory appeal,4 the purported operation of a discovery stay,5 or the continuing development of the law as other litigants across Texas actively explored the parameters of mandamus relief from new-trial orders both before and after the August 2013 decision in *In re Toyota Motor Sales* .6

*330Six years is a long time to wait for a new trial, and the prejudice to the defendants of having to wait an additional three years beyond the time required to litigate the interlocutory appeal is self-evident. We can't turn back the clock, but the least we can do is act swiftly to correct this court's error and help to expedite the next inevitable round of review in the Supreme Court. I would grant en banc reconsideration and deny mandamus relief. Because the court does not do so, I respectfully dissent.

Justice Lloyd, not participating.

Justice Massengale, voting to grant en banc reconsideration and dissenting from the denial of en banc reconsideration.

**APPENDIX**

Procedural Timeline

```
*331September 4, 2008 Fire at Four J's Community Living Center June 26, 2009 Original petition filed by Patti J. Wagner July 3, 2009 *In re Columbia Medical**Center* decided by Supreme Court of Texas* October 17-21, 2011 Jury trial March 27, 2012 Order granting new trial July 12, 2012 Anthonia Uduma's motion to dismiss pursuant to Civil Practice and Remedies Code Chapter 74 August 23, 2012 Interlocutory order denying Uduma's motion to dismiss August 24, 2012 Notice of interlocutory appeal filed by Uduma August 31, 2012 *In re Toyota Motor Sales* scheduled for oral submission to the Supreme Court of Texas in January 2013 January 4, 2013 *In re Toyota Motor Sales* argued in the Supreme Court of Texas, in which a principal issue was whether an appellate court may evaluate a new-trial order on the merits in a mandamus proceeding *332August 30, 2013 *In re Toyota Motor Sales* decided by the Supreme Court of Texas, holding that the reasons articulated in a new-trial order are subject to merits-based mandamus review August 27, 2014 Opinion affirming interlocutory denial of Uduma's motion to dismiss December 12, 2014 Petition for review filed by Uduma June 5, 2015 Petition for review denied by Supreme Court of Texas September 4, 2015 Mandate issued by First Court of Appeals September 8, 2015 Petition for writ of mandamus filed by Wagner May 10, 2016 Case submitted in First Court of Appeals April 27, 2017 Petition for mandamus granted by First Court of Appeals December 14. 2017 Revised opinion issued by First Court of Appeals January 22, 2018† Motion for reconsideration en banc filed
```

[**Editor's Note:** The preceding image contains the reference for footnotes*,† ]

1

Respondent is The Honorable Dan Hinde of the 269th District Court of Harris County. The underlying suit is Patti J. Wagner, as Guardian of Jenny Ann Wagner, as Incapacitated Adult v. Four J's Community Living Center, Inc. and Anthonia Uduma, No. 2009-40925 (269th Dist. Court, Harris County, Tex.).

1

*Uduma v. Wagner* , No. 01-12-00796-CV, 2014 WL 4259886, at *1 (Tex. App.-Houston [1st Dist.] Aug. 27, 2014, pet. denied) (mem. op.).

2

407 S.W.3d 746, 758 (Tex. 2013).

3

*Rivercenter Associates v. Rivera* , 858 S.W.2d 366, 367 (Tex. 1993) (quoting *Callahan v. Giles* , 137 Tex. 571, 575, 155 S.W.2d 793, 795 (1941) ).

4

*In re Oceanografia, S.A. de C.V.* , 494 S.W.3d 728 (Tex. 2016) (per curiam), relied upon by the panel, is easily distinguishable from this case. The intervening interlocutory appeal in that case was an appeal from the denial of a special appearance. *See**In re Oceanografia* , 494 S.W.3d at 730. As the Supreme Court noted, seeking mandamus relief in that case before the same party's special appearance was finally resolved might have compromised the appeal of the special appearance. *Id.* at 731. Similarly, the four-year delay in pursuing a forum non conveniens remedy, the denial of which resulted in the mandamus proceeding in *In re E.I. du Pont de Nemours & Co.* , also was explained by the time required for the relator to litigate a special appearance first. *See*92 S.W.3d 517, 524-25 (Tex. 2002). Unlike the justification of avoiding a general appearance pending the litigation of a special appearance, no comparable dynamic was at play in this case-Wagner would not have compromised any other active requests for relief by seeking mandamus relief in a timely fashion and before *Uduma's* interlocutory appeal was resolved. Indeed, to the extent Wagner's petition was meritorious, it could have obviated the need to fully litigate Uduma's interlocutory appeal.

5

The panel curiously suggested that Wagner's delay was justified by the discovery-stay provision of Civil Practice and Remedies Code section 74.351(s). *See**In re Wagner* , No. 01-15-00774-CV, 560 S.W.3d 309, 317-18, 2017 WL 6374549, at *6 (Tex. App.-Houston [1st Dist.] Dec. 14, 2017) (orig. proceeding). The panel's suggestion that Uduma's motion to dismiss triggered a discovery stay under section 74.351(s) has no support in the statutory text and is a dubious proposition. Regardless, in the usual case the function of that statute is to delay the initiation and ordinary course of civil discovery relating to a health care liability claim until after the expert report requirement of section 74.351(a) has been satisfied. By contrast, this case has already been tried once, so the significance of the discovery stay as applied to these circumstances, if it applied at all, was greatly diminished. Even to the extent there was a discovery stay, that would not have prevented Wagner from seeking mandamus relief from the new-trial order.

6

*See, e.g.* , *In re Whataburger Rests. LP* , 429 S.W.3d 597 (Tex. 2014) (orig. proceeding) (mandamus petitions filed in 2010 and January 2011 challenging new-trial order entered in May 2010); *In re Health Care Unlimited, Inc.* , 429 S.W.3d 600 (Tex. 2014) (mandamus petitions filed in March 2012 and May 2012 challenging new-trial order entered in January 2012); *In re City of Houston* , 418 S.W.3d 388 (Tex. App.-Houston [1st Dist.] 2013, orig. proceeding) (mandamus petition filed in March 2013 challenging new-trial order entered in February 2013); *In re Bent* , 487 S.W.3d 170 (Tex. 2016) (mandamus petitions filed in June 2013 and December 2014 challenging new-trial order entered in May 2013); *In re Wyatt Field Serv. Co.* , No. 14-13-00811-CV, 2013 WL 6506749 (Tex. App.-Houston [14th Dist.] Dec. 10, 2013, orig. proceeding) (per curiam) (mem. op.) (mandamus petition filed in September 2013 challenging new-trial order entered in March 2013); *In re Baker* , 420 S.W.3d 397, 399 (Tex. App.-Texarkana 2014, orig. proceeding) (mandamus petition filed in November 2013 challenging new-trial order entered in October 2013); *In re Old Am. Cty. Mut. Fire Ins. Co.* , No. 13-13-00644-CV, 2014 WL 1633098 (Tex. App.-Corpus Christi Apr. 23, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in November 2013 challenging new-trial order entered in August 2013); *In re Stearns* , No. 02-14-00079-CV, 2014 WL 1510059 (Tex. App.-Fort Worth Apr. 17, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in March 2014 challenging new-trial order entered in January 2014); *In re Zimmer, Inc.* , 451 S.W.3d 893 (Tex. App.-Dallas 2014, orig. proceeding) (mandamus petition filed in July 2014 challenging new-trial order entered in April 2014); *In re Procesos Especializados en Metal, S.A. de C.V.* , No. 04-14-00543-CV, 2014 WL 4347724 (Tex. App.-San Antonio Sept. 3, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in May 2014); *In re Cort* , No. 14-14-00646-CV, 2014 WL 4416074 (Tex. App.-Houston [14th Dist.] Sept. 9, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in June 2014); *In re Adkins* , No. 13-14-00484-CV, 2014 WL 5026051 (Tex. App.-Corpus Christi Oct. 8, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in March 2014); *In re Athans* , 458 S.W.3d 675 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding) (mandamus petition filed in August 2014 challenging new-trial order entered in May 2014); *In re Davenport* , No. 04-14-00666-CV, 2015 WL 1089679 (Tex. App.-San Antonio Mar. 11, 2015, orig. proceeding) (mem. op.) (mandamus petition filed in September 2014 challenging new-trial order entered in September 2014); *In re E.I. duPont de Nemours & Co.* , 463 S.W.3d 80, 83 (Tex. App.-Beaumont 2015, orig. proceeding) (per curiam) (mandamus petition filed in October 2014 challenging new-trial order entered in September 2014).

*

290 S.W.3d 204 (Tex. 2009) (orig. proceeding) (granting mandamus relief and requiring trial court to specify reasons for ordering a new trial).

†

*See* Internal Operating Procedures of the Court of Appeals for the First District of Texas (Apr. 2015), *http://www.txcourts.gov/media/1439061/internal-operating-procedures-for-website-101017.pdf* ("The justices on the original panel first consider the en banc motion. If the panel changes its opinion, the en banc motion is not circulated to the rest of the court. If the panel does not change its opinion, the vote of the justices on the panel is reported to the rest of justices, who then consider the motion. If any justice calls for a vote, the entire court votes on rehearing.").