NUMBER 13-24-00162-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
ON PETITION FOR WRIT OF MANDAMUS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and West Memorandum Opinion by Justice West
By petition for writ of mandamus, relator State Farm Mutual Automobile Insurance
Company (State Farm) contends that the trial court 1 abused its discretion by granting a
new trial in a case involving underinsured motorist benefits. Prior to trial, State Farm’s
counsel represented to the trial court that there would be a bifurcated second part of trial
1 This original proceeding arises from trial court cause number 2020-DCL-01830 in the 197th
District Court of Cameron County, Texas; however, the respondent who issued the challenged order is the Honorable Ricardo M. Adobbati. See TEX. R. APP. P. 52.2. regarding attorney’s fees, “[b]ut in terms of what the jury is going to see and hear evidence
of is going to be negligence and injuries, if any, stemming from the accident.” Thereafter,
real party in interest Tita G. Teran submitted liability and damage issues regarding her
underinsured motorist claim against State Farm to a jury, which found in Teran’s favor.
The jury was discharged and Teran later filed a motion requesting the trial court to award
her attorney’s fees. State Farm opposed Teran’s motion and argued that she had waived
the recovery of attorney’s fees because she did not submit that issue to the jury. The trial
court concluded that “[t]he only way to fairly address the concerns of both sides is for a
new jury to hear the case.” We conditionally grant the petition for writ of mandamus in
part and deny in part.
I. BACKGROUND
Teran filed suit against State Farm for declaratory relief and damages regarding
the parties’ rights and obligations under her automobile insurance policy. Teran alleged
that she was involved in a motor vehicle accident with Olivia Lara Galvan, that Galvan
was at fault and was underinsured, and that Teran suffered personal injuries and other
damages from the collision. Teran thus sought declarations that under her insurance
policy, she was a “covered person,” Galvan was an “underinsured motorist,” the collision
was an “accident,” and State Farm was “obligated to pay the full amount” of her
underinsured motorist coverage, plus attorney’s fees and costs, because she was “legally
entitled to recover this amount” from Galvan because of Galvan’s negligence.
Teran settled her claims against Galvan for Galvan’s policy limits of $30,000, and
State Farm paid Teran $2,500 in personal injury protection benefits. Her claims against
2 State Farm were set for a jury trial. Prior to the trial, State Farm filed “Judicial Admissions”
in which it stipulated, among other things, that it was entitled to a credit for $32,500 and
that:
[T]he only provisions of the Policy with which [Teran] has not yet complied is: (1) she has not shown the specific amount of damages she is legally entitled to recover, if any, from [Galvan] as a result of the automobile accident on or about February 14, 2019, or (2) that [Galvan] was driving an “Uninsured Motor Vehicle” at the time of the accident, as that term is defined under “Uninsured/Underinsured Motorists Coverage” of policy number 171 9314-B19-53K.
In pretrial proceedings, the parties presented argument regarding the nature of the
case and the extent to which testimony regarding insurance would be allowed. Teran’s
counsel contended that she should be allowed to argue that State Farm did not want to
pay for her damages and that it was error to “mislead the jury about who the actual
[defendant] in the case is.” State Farm asserted, in contrast, that the trial court should
exclude argument and evidence regarding the claims process and policy matters because
the only relevant issues were whether Galvan was negligent and the amount of Teran’s
damages, if any. State Farm supported its argument by reference to the process in which
underinsured motorist cases are severed or bifurcated such that an initial proceeding
establishes the liability and underinsured status of the motorist, and a second proceeding
addresses contractual and extracontractual claims. See, e.g., In re State Farm Mut. Auto.
Ins., 629 S.W.3d 866, 870 (Tex. 2021) (orig. proceeding) (concluding that bifurcation
rather than severance was the appropriate remedy where the plaintiff sought only
extracontractual claims); see also In re Allstate Fire and Cas. Ins., No. 03-21-00515-CV,
2022 WL 120263, at *3 (Tex. App.—Austin Jan. 12, 2022, orig. proceeding) (mem. op.)
3 (distinguishing State Farm and holding that “[s]everance and abatement is appropriate
when . . . an insured seeks a determination as to entitlement to [underinsured motorist]
benefits and also brings extracontractual claims against the insured”). State Farm’s
counsel discussed his experience trying other underinsured motorist cases, and stated
[W]hen we have had these trials, the issue for the jury to consider and the only things that the jury is going to get back in the jury charge are the negligence questions and then the damages questions, your Honor.
Now I know this is different because we have a [declaratory relief] action. [Teran’s counsel] and I talked about having a bifurcated second part about the [attorney’s] fees that have recently come up. But in terms of what the jury is going to see and hear evidence of is going to be negligence and injuries, if any, stemming from the accident.
(Emphasis added). Teran’s counsel ultimately agreed that she would not be discussing
insurance claim violations at trial but instead intended to show that State Farm denied
that Galvan was negligent, Teran suffered severe injuries, and that Teran’s medical bills
were reasonable.
The case was submitted to a jury, which found that Galvan was negligent, Teran
was not, and Teran should be awarded $33,369 for her injuries. The charge submitted to
the jury did not include a question about attorney’s fees. Following trial, the jury was
discharged without objection.
After trial, Teran filed a “Motion for Award of Attorney’s Fees and For Evidentiary
Hearing.” She requested the trial court to award her attorney’s fees in connection with her
lawsuit under § 37.009 of the Texas Civil Practice and Remedies Code and to hold a
hearing to determine the amount of attorney’s fees, if any, to be awarded. See TEX. CIV.
4 PRAC. & REM. CODE ANN. § 37.009 (“In any proceeding under this chapter, the court may
award costs and reasonable and necessary attorney’s fees as are equitable and just.”);
Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Managers of Am.,
L.L.C., 685 S.W.3d 816, 825–26 (Tex. 2024). State Farm filed a verified “Response to
Plaintiff’s Motion for Award of Attorney’s Fees and for Evidentiary Hearing” asserting that
it owed Teran only $869 after its credits were applied, and that Teran had rejected its offer
to settle her claims for $7,500. State Farm thus argued that it was effectively “the
prevailing party” and an award of attorney’s fees would be neither equitable nor just. State
Farm further asserted that “[w]hile the parties agreed to bifurcate the issue, the jury was
discharged before they could consider the reasonableness of fees”; thus, Teran waived
her request for attorney’s fees because the jury was the only appropriate factfinder
regarding the amount of fees to be awarded.
On November 8, 2022, the trial court granted a new trial in the case without stating
its reasons for doing so. State Farm assailed this order by filing a petition for writ of
mandamus in this Court. We concluded that the new trial order was facially invalid,
conditionally granted the petition for writ of mandamus, and directed the trial court to
vacate its new trial order and conduct further proceedings consistent with our opinion.
See In re State Farm Mut. Auto. Ins., No. 13-22-00589-CV, 2023 WL 418699, at *5 (Tex.
App.—Corpus Christi–Edinburg Jan. 26, 2023, orig. proceeding) (mem. op.).
State Farm thereafter filed a “Motion for Entry of Judgment” requesting the trial
court to enter judgment on the jury’s verdict. In response, Teran filed a “Motion for Mistrial.”
Teran alleged that the parties entered a valid Rule 11 agreement when State Farm’s
5 counsel represented that: “[Teran’s counsel] and I talked about having a bifurcated
second part about the attorneys’ fees that have recently come up. But in terms of what
the jury is going to see and hear evidence of is going to be negligence and injuries, if any,
stemming from the accident.” Teran’s counsel “agreed to this statement because it leaves
attorneys’ fees to be tried to the Court.” In view of the disagreement regarding the
meaning of this statement, Teran thus asserted that the trial court should “declare a
mistrial and order a new trial.”
State Farm thereafter filed a “Response to Plaintiff’s Motion for Mistrial/New Trial”
arguing that Teran lost at trial and waived her request for attorney’s fees. State Farm
argued that while it had agreed to bifurcate Teran’s claim for attorney’s fees, it never
agreed to try the attorney’s fee claim to the court rather than the jury.
On January 10, 2024, the trial court granted Teran’s motion. The trial court’s order
granting a new trial states that “justice requires a new trial based on the following facts
and circumstances.” The order further provides:
i) Prior to trial, the following Rule 11 Agreement was entered into the record “and the only things that the jury is going to get back in the jury charge are the negligence questions and then the damages questions, your Honor[]”;
ii) The agreement led [Teran’s] counsel to believe that the issue of attorneys’ fees would be tried to the bench;
iii) [State Farm’s] counsel disagrees that his words spoken into the record reflect that agreement;
iv) The jury was released after rendering its verdict;
v) [State Farm’s] counsel insists that the jury demand regarding attorneys’ fees was not withdrawn;
6 vi) [Teran’s] counsel insists that it was; and
vii) The only way to fairly address the concerns of both sides is for a new jury to hear the case.
This original proceeding ensued. In three issues, which we have reordered, State
Farm asserts that: (1) there is no legally appropriate reason for the trial court to have
granted a new trial; (2) the trial court failed to fulfill a ministerial duty to enter judgment for
State Farm where no irreconcilable conflict existed in the jury’s findings; and (3) the
reasons articulated by the trial court in the new trial order are not valid or correct or
supported by the underlying record. We requested and received a response to the petition
for writ of mandamus from Teran and received a reply thereto from State Farm.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). The Texas Supreme Court has recognized that
there is no adequate remedy by appeal when the trial court abuses its discretion by
granting a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d
204, 209–10 (Tex. 2009) (orig. proceeding). Thus, the relevant question in such original
proceedings is whether the order granting a new trial was an abuse of discretion. See In
7 re Bent, 487 S.W.3d 170, 177–78 (Tex. 2016) (orig. proceeding).
III. NEW TRIALS
Trial courts possess “considerable authority to grant new trials” and have the duty
“to do so when they observe problems that threaten the integrity of the process and,
therefore, the reliability of [a jury’s] verdict.” In re Rudolph Auto., LLC, 674 S.W.3d 289,
302 (Tex. 2023) (orig. proceeding). However, because “disregarding a jury’s verdict is an
unusually serious act that imperils a constitutional value of immense importance—the
authority of a jury,” the trial court may only do so “when clearly supported by sound
reasons.” Id. We thus review both the facial validity of an order granting a new trial and
its underlying merits. Id.; see In re Davenport, 522 S.W.3d 452, 456–56 (Tex. 2017) (orig.
proceeding); In re Bent, 487 S.W.3d at 172–73, 175–178; In re United Scaffolding, Inc.,
377 S.W.3d 685, 687–89 (Tex. 2012) (orig. proceeding); In re Columbia Med. Ctr. of Las
Colinas, 290 S.W.3d at 210–13.
IV. MISTRIALS AND NEW TRIALS
In its first issue, State Farm contends that there was no legally appropriate reason
for the trial court to grant a mistrial. It asserts both that the trial court’s “ultimate reasons”
for granting the mistrial—justice and fairness—are invalid reasons for a mistrial and that
mistrial is only available to address extreme circumstances involving highly prejudicial
and incurable errors.
A. Justice and Fairness
State Farm contends that “the ultimate reason for the trial court’s ruling is that
‘justice requires a new trial’ because the ‘only way to fairly address the concerns of both
8 sides [on the attorney’s fees issue] is for a new jury to hear the case.’” It argues that
justice and fairness are facially insufficient reasons to support a new trial order.
The supreme court has described its rationale for requiring the trial court to explain
its specific reasons for granting a new trial as follows:
[A] vague explanation in setting aside a jury verdict does not enhance respect for the judiciary or the rule of law, detracts from transparency we strive to achieve in our legal system, and does not sufficiently respect the reasonable expectations of parties and the public when a lawsuit is tried to a jury. Parties and the public generally expect that a trial followed by a jury verdict will close the trial process. Those expectations may be overly optimistic, practically speaking, but the parties and public 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.
In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d at 213. Thus, in terms of facial
validity, a new trial order must provide “a cogent and reasonably specific explanation of
the reasoning that led the court to conclude that a new trial was warranted,” and the
“stated reason for granting a new trial (1) is a reason for which a new trial is legally
appropriate . . . and (2) is specific enough to indicate that the trial court . . . derived the
articulated reasons from the particular facts and circumstances of the case at hand.” In
re United Scaffolding, Inc., 377 S.W.3d at 688–89. The supreme court has held that
granting a new trial “in the interests of justice and fairness” is not a sufficiently specific
reason to grant a new trial, and such a rationale renders the new trial order facially invalid.
In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d at 206, 213; see In re United
Scaffolding, Inc., 377 S.W.3d at 689–90 (concluding that a new trial order’s four
articulated reasons for granting a new trial, including the impermissible reason “in the
interest of justice and fairness,” linked together by the connector “and/or” was facially
9 invalid).
We construe orders, such as the new trial order at issue here, using the same rules
of construction as those we apply to other written instruments. In re Marquart, 675 S.W.3d
57, 62 (Tex. App.—San Antonio 2023, pet. denied); In re Mittelsted, 651 S.W.3d 630, 635
(Tex. App.—Houston [14th Dist.] 2022, orig. proceeding); Aubrey v. Aubrey, 523 S.W.3d
299, 316 (Tex. App.—Dallas 2017, no pet.). We interpret orders according to the plain
meaning of their terms. Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 627 (Tex. 2011)
(per curiam); Kim v. Ramos, 632 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2021,
no pet.). We construe an order in its entirety, and if possible, we construe it in a way that
gives each provision meaning. Kourosh Hemyari, 355 S.W.3d at 626; In re Mittelsted, 651
S.W.3d at 635.
Construing the new trial order as a whole, and giving each provision meaning, we
conclude that the order sufficiently, and in detail, explained the court’s specific reasons
for granting a new trial. In short, we do not read the terms “justice” and “fairly” in isolation,
but we examine them in the context of the court’s specific conclusions that, inter alia, the
parties entered into a Rule 11 agreement regarding the trial, but they disagreed regarding
whether the issue of attorney’s fees would be tried to the bench or a jury. See Kourosh
Hemyari, 355 S.W.3d at 626; In re Mittelsted, 651 S.W.3d at 635. These findings are
neither generic nor conclusory and they are based on the specific facts and
circumstances at issue in the case. See In re United Scaffolding, Inc., 377 S.W.3d at 688–
89. Thus, we reject State Farm’s contention otherwise.
10 B. Mistrial
State Farm asserts that mistrial is only appropriate in extreme circumstances for a
narrow class of highly prejudicial and incurable errors, and the record here shows no such
errors occurred. State Farm’s argument is premised on the doctrine that a mistrial should
only be granted only in “extreme circumstances” where prejudice is “incurable.” In re
Commitment of Ivie, 687 S.W.3d 526, 532 (Tex. App.—Eastland 2024, no pet.) (quoting
In re E.O.E., 508 S.W.3d 613, 624 (Tex. App.—El Paso 2016, no pet.)); see Givens v.
Anderson Columbia Co., 608 S.W.3d 65, 71 (Tex. App.—San Antonio 2020, pet. denied).
Here, the trial court’s order granted Teran’s motion for mistrial and ordered a “new
trial.” 2 We note that an order granting a mistrial and an order granting a new trial are not
precisely the same:
There is . . . a marked difference between a court granting a motion for a new trial and declaring a mistrial. . . . The former contemplates that a case has been tried, a judgment rendered, and on motion therefor said judgment set aside and a new trial granted. The latter results where, before a trial is completed and judgment rendered, the trial court concludes there is some error or irregularity that prevents a proper judgment being rendered, in which event [it] may declare a mistrial.
St. Louis Sw. Ry. Co. v. Duke, 424 S.W.2d 896, 899 (Tex. 1967) (cleaned up) (quoting
Cortimeglia v. Herron, 281 S.W. 305, 306 (Tex. App.—Waco 1925, writ ref’d)); see Mo.-
Kan.-Tex. R. Co. of Tex. v. Thomason, 280 S.W. 325, 326 (Tex. App.—Austin 1926, writ
ref’d). Nevertheless, as State Farm acknowledges, when a motion for mistrial is the
2 We look to the substance of a pleading or motion, not merely the form or title, to determine the
relief sought. See TEX. R. CIV. P. 71; In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) (per curiam); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding). In the instant case, Teran filed a “Motion for Mistrial” requesting the trial court “to declare a mistrial and hold a new trial,” and she asserted that her motion should be analyzed under the standards governing orders granting a new trial. Here, the substance of Teran’s pleading made it clear that she sought a new trial. See TEX. R. CIV. P. 71; In re J.Z.P., 484 S.W.3d at 925. 11 functional equivalent of a motion for new trial, it is reviewed under the law applicable to
new trial orders. In re Hightower, 580 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.]
2019, orig. proceeding [mand. denied]); see also In re Mooney, No. 14-20-00556-CV,
2021 WL 3576947, at *2 (Tex. App.—Houston [14th Dist.] Aug. 10, 2021, orig. proceeding
[mand. denied]) (per curiam) (mem. op.). That is the case here. Accordingly, we reject
State Farm’s contention that Teran was required to show the case involved “extreme
circumstances” and “incurable prejudice” to obtain a new trial.
C. Conclusion
We overrule State Farm’s first issue.
V. MINISTERIAL DUTY
In its third issue, which we take out of order, State Farm asserts that the trial court
had a “ministerial duty” to enter judgment for State Farm based on the jury’s verdict
because there was not an irreconcilable conflict in the jury’s findings. We agree that when
there is no irreconcilable conflict in the jury’s findings, the trial court has a ministerial duty
to enter judgment on the verdict. Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963)
(orig. proceeding); In re Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex. App.—
El Paso 2017, orig. proceeding). However, that is not the only reason for which a trial
court can grant a new trial, and otherwise, the trial court has “broad” and “significant”
discretion to order a new trial. In re Rudolph Auto., LLC, 674 S.W.3d at 301. The trial court
did not base its ruling on any conflict in the jury’s findings, and no one argues otherwise.
Accordingly, we reject State Farm’s contention in its third issue that the trial court failed
to comply with a ministerial duty.
12 VI. MERITS REVIEW
Finally, we reach State Farm’s second issue through which it asserts that the
reasons articulated by the trial court for granting a new trial “are not valid or correct or
supported by the underlying record.” State Farm asserts that the parties did not enter an
enforceable Rule 11 agreement because the purported agreement lacked essential
terms, and the parties never had the requisite meeting of the minds to form an enforceable
agreement. State Farm further contends that granting a new trial was not the “only
recourse” to resolve the dispute. State Farm also asserts that Teran has waived her claim
for attorney’s fees. Teran disagrees with each of these arguments.
A. Rule 11 Agreement
Rule 11 states that “[u]nless otherwise provided in these rules, no agreement
between attorneys or parties touching on any suit pending will be enforced unless it be in
writing, signed and filed with the papers as part of the record, or unless it be made in open
court and entered of record.” TEX. R. CIV. P. 11. The trial court has a ministerial duty to
enforce a valid Rule 11 agreement. Shamrock Psychiatric Clinic, P.A. v. Tex. Dep’t of
Health & Human Servs., 540 S.W.3d 553, 560 (Tex. 2018) (per curiam); In re Marriage of
Comstock, 639 S.W.3d 118, 129 (Tex. App.—Houston [1st Dist.] 2021, no pet.); Tex. Tax
Sols., LLC v. City of El Paso, 593 S.W.3d 903, 912 (Tex. App.—El Paso 2019, no pet.).
We construe Rule 11 agreements under the same rules that we apply to construe
contracts. Shamrock Psychiatric Clinic, P.A., 540 S.W.3d at 560; Transam. Corp v. Braes
Woods Condo Ass’n, Inc., 580 S.W.3d 733, 737 (Tex. App.—Houston [14th Dist.] 2019,
no pet.). We determine the scope of a Rule 11 agreement by examining the words used,
13 the surrounding circumstances, the allegations in the pleadings, and the attitude of the
parties with respect to the issues. In re Marriage of Comstock, 639 S.W.3d at 129; In re
Hulcher Servs., Inc., 568 S.W.3d 188, 192 (Tex. App.—Fort Worth 2018, orig.
proceeding); Lesikar v. EOG Res., Inc., 236 S.W.3d 457, 458–59 (Tex. App.—Amarillo
2007, no pet.).
“To be effective, a Rule 11 agreement must consist of ‘a written memorandum
which is complete within itself in every material detail, and which contains all of the
essential elements of the agreement.’” Shamrock Psychiatric Clinic, P.A., 540 S.W.3d at
561 (quoting Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)). We determine
whether a term is essential or material considering the circumstances surrounding the
agreement. Amedisys v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 514 (Tex.
2014); Jennings v. Jennings, 625 S.W.3d 854, 862 (Tex. App.—San Antonio 2021, pet.
denied). Essential terms are those that the parties would reasonably regard as vitally
important elements of their bargain. Boozer v. Fischer, 674 S.W.3d 314, 324 (Tex. 2023);
Jennings, 625 S.W.3d at 862; Kanan v. Plantation Homeowner’s Ass’n Inc., 407 S.W.3d
320, 330 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.). Whether a term is essential
is a question of law and subject to de novo review. Jennings, 625 S.W.3d at 862; Sharifi
v. Steen Auto., LLC, 370 S.W.3d 126, 142 (Tex. App.—Dallas 2012, no pet.).
As directed by the supreme court, we examine whether the trial court’s conclusion
that the parties had a Rule 11 agreement is a mistake of law or unsupported by the record.
In re Rudolph Auto., LLC, 674 S.W.3d at 302. In this regard, State Farm specifically
contends that the parties did not have the requisite meeting of the minds to form an
14 enforceable agreement because the agreement lacks essential and material terms
regarding “any reference to (i) attorney’s fees, (ii) bifurcation, and (iii) whether the trial
court or the jury would determine the amount of attorney’s fees.”
The only evidence in the record before us regarding the agreement consists of the
statements made in open court by State Farm’s counsel. See TEX. R. CIV. P. 11. During
arguments on State Farm’s motion in limine, the parties were discussing the nature of
underinsured motorist cases and the extent to which insurance might be addressed or
mentioned in front of the jury.
Again, all these cases talk about how what’s—what plaintiffs are attempting to try in front of a jury is that the insurance company did something wrong or there was some kind of wrong that they weren’t fair to the insurer. There was wrong claim handling and none of those are issues in this case, your Honor. It’s just not what the first part of this case is about. If there is an extra—there is not an extra contractual but in those cases where there are something like extra contractuals, that’s why those are always abated because that comes in a second part of the case, your Honor. . . . [When we have had these trials, the issue for the jury to consider and the only things that the jury is going to get back in the jury charge are the negligence questions and then the damages questions, your Honor.
Now I know this is different because we have a [declaratory] action. [Teran’s counsel] and I talked about having a bifurcated second part about the attorney[‘]s fees that have recently come up. But in terms of what the jury is going to see and hear evidence of is going to be negligence and injuries, if any, stemming from the accident.
Teran’s counsel agreed that State Farm’s counsel was “absolutely right.”
Contrary to State Farm’s contentions in this original proceeding, its counsel’s
representations on the record in open court include references to all material terms,
including attorney’s fees, bifurcation, and whether the trial court or the jury would
determine the amount of attorney’s fees. We thus conclude that the agreement was
15 effective. See Shamrock Psychiatric Clinic, P.A., 540 S.W.3d at 561; Padilla, 907 S.W.2d
at 460. We overrule State Farm’s second issue, in part, as to the validity of the trial court’s
rationale for granting a new trial.
B. Waiver
State Farm further contends that Teran waived her claim for attorney’s fees
because she did not produce evidence in support of her claim for attorney’s fees, submit
a question regarding attorney’s fees to the jury in the charge, and did not object when the
jury was discharged. State Farm relies on the contention that whether attorney’s fees are
reasonable and necessary are fact issues that must be submitted to a jury. Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). In this regard, a party waives its right to recover
attorney’s fees when it fails to put on evidence of attorney’s fees and fails to request the
trial court to submit a question on attorney’s fees to the jury. Unique Staff Leasing, Ltd. v.
Cates, 500 S.W.3d 587, 600 (Tex. App.—Eastland 2016, pet. denied); RDG P’Ship v.
Long, 350 S.W.3d 262, 277 (Tex. App.—San Antonio 2011, no pet.).
Given the parties’ discussion regarding the bifurcation of the trial, we do not agree
with State Farm’s proposition that Teran’s failure to litigate the issue of attorney’s fees by
including a question in the charge or presenting evidence regarding attorney’s fees in
what was intended to be the first part of the case constitutes waiver. See In re Prudential
Ins. Co. of Am., 148 S.W.3d at 131; In re Marriage of Comstock, 639 S.W.3d at 129; In
re Hulcher Servs., Inc., 568 S.W.3d at 190. Accordingly, we overrule State Farm’s second
issue, in part, insofar as it asks that we find Teran waived her right to attorney’s fees as
a matter of law.
16 C. Remedy
Finally, State Farm asserts that the trial court erred because granting a new trial
was not the only solution to resolve the parties’ differing positions. Here, the trial court’s
order granting a new trial stated that “[t]he only way to fairly address the concerns of both
sides is for a new jury to hear the case.” State Farm suggests that, for instance, Teran
could enforce the parties’ agreement and have the trial court decide the issue of attorney’s
fees.
While we appreciate the trial court’s efforts to satisfy both Teran’s and State Farm’s
concerns, we agree with State Farm that a new trial on liability and damages was not
warranted. As an initial matter, we note that Teran previously attempted to have the trial
court decide the issue of attorney’s fees; however, State Farm objected on grounds that
it possessed a right to a jury trial. We have concluded that State Farm agreed otherwise
as to the attorney’s fees in this case. In any event, enforcement of the agreement is
certainly an option. Alternatively, we note that attorney’s fees may be determined by a
second and subsequent jury in certain circumstances. See, e.g., Horizon Health Corp. v.
Acadia Healthcare Co., 520 S.W.3d 848, 884 (Tex. 2017) (“In this instance, vacating the
attorney’s fees award and remanding for a new trial on the issue is proper.”); see also
Mintz v. Carew, No. 05-16-00997-CV, 2018 WL 833371, at *3 (Tex. App.—Dallas Feb.
13, 2018, pet. denied) (mem. op.) (rejecting an argument that the claimants waived their
right to attorney’s fees by resting and closing without presenting evidence of attorney’s
fees). We leave it to the trial court to determine how to proceed on attorney’s fees. We
sustain State Farm’s second issue, in part, as to the trial court’s new trial order insofar as
17 it encompasses liability and damages.
VII. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
Teran’s response, and State Farm’s reply, is of the opinion that State Farm has met its
burden, in part, to obtain mandamus relief. Accordingly, we lift the stay previously
imposed in this case. See TEX. R. APP. P. 52.10 (“Unless vacated or modified, an order
granting temporary relief is effective until the case is finally decided.”). We conditionally
grant the petition for writ of mandamus, in part, and we direct the trial court to vacate its
order of January 2, 2024, insofar as it encompasses liability and damages, and to proceed
in accordance with this memorandum opinion. We deny the petition for writ of mandamus
as to all other relief sought. Our writ will issue only if the trial court fails to act in accordance
with this opinion.
JON WEST Justice
Delivered and filed on the 26th day of February, 2025.