In re Space Exploration Technologies Corp. and Lauren Krueger, 24-0290, June 27, 2025.
Mandamus
Synopsis
The Supreme Court of Texas conditionally granted mandamus relief and directed the trial court to withdraw its new-trial order because the complained-of closing argument was presumptively curable by retraction or a curative instruction, and the complaining party waived the complaint by failing to request such a remedy. The Court emphasized that “incurable” jury argument is rare and that a new trial is improper where the error was remediable but not preserved.
Relevance to Family Law
This decision controls how family-law practitioners must respond to allegedly improper jury argument in divorce, custody, or property trials. Arguments that plaintiffs or petitioners view as incurable—even those attacking credibility, motive, or the parties’ financial resources—are ordinarily remediable by a retraction or curative instruction; failure to request immediate remediation risks waiver and forecloses later reliance on the argument as a ground for a new trial or reversal. In high-stakes family cases (division of assets, attorney-fee awards, jury-determined property valuations, parental fitness and custody disputes), counsel must preserve objections and seek immediate curative relief to protect clients’ appellate rights.
Case Summary
Fact Summary
This was a low-speed automobile-negligence case arising from a 7.5-mph rear-end collision. Plaintiffs (occupants of a Toyota Tundra employed by a subcontractor) received on-scene and post-accident medical care after their employer consulted an attorney and directed them to treat with certain providers. At trial, the principal dispute was whether plaintiffs’ pain stemmed from the collision or preexisting degenerative conditions and whether post-accident treatment was the product of a “lawyer-driven plan.” In closing, defense counsel accused the treatment and litigation of being a “shakedown” engineered by counsel; plaintiffs objected, the judge told counsel to “move on,” and plaintiffs reserved their right to move for a new trial if the verdict was unfavorable. The jury nevertheless awarded damages to the plaintiffs; the trial court then granted a new trial, stating that defense counsel’s “incurable arguments” likely caused the verdict. Relators (SpaceX and Krueger) sought mandamus relief.
Issues Decided
- Whether the trial court properly granted a new trial on the ground that closing argument was “incurable.”
- Whether a complaining party waives a claim of harmful jury argument by failing to request a retraction or curative instruction.
- Whether any other grounds cited by the trial court justified setting aside the jury’s verdict.
Rules Applied
The Court applied the principle—recently reiterated in Alonzo v. John, 689 S.W.3d 911, 912 (Tex. 2024)—that probable harm from improper jury argument is presumptively remediable by retraction or a curative instruction, making “incurable argument” an uncommon species of error. The opinion rests on established Texas preservation doctrine: a party must timely object and seek an appropriate curative remedy (retraction, instruction, mistrial) to preserve an argument for post-trial relief. The Court also applied the mandamus standards requiring a showing that the trial court abused its discretion and that relators lack an adequate appellate remedy, justifying extraordinary relief to correct a legally unsupportable new-trial order.
Application
The Court reviewed the closing argument in context and concluded the offending statements were redressable by retraction or by a curative instruction. Plaintiffs had objected at trial, but did not request a curative instruction, seek an immediate ruling supporting a mistrial, or otherwise obtain a remedial order from the trial court. Because probable harm was remediable at the time, the failure to seek an instruction or other remedy amounted to waiver. The trial court’s summary finding that the argument was “incurable” therefore could not be reconciled with the preservation rule and the presumption of remediability articulated in Alonzo. The Court further examined the trial court’s other reasons for granting a new trial and found none of them sufficient to sustain the order. On that basis the Court conditionally granted mandamus relief and directed the trial court to withdraw its new-trial order.
Holding
The Supreme Court of Texas conditionally granted mandamus relief and directed the trial court to withdraw its new-trial order because the complained-of closing argument was presumptively curable and plaintiffs waived the complaint by failing to request a curative instruction or other remedial relief.
The Court reiterated that “incurable” argument is rare: where an argument can be remedied by retraction or instruction, a new trial is an inappropriate remedy in the absence of a timely request for cure.
The Court also held that none of the other grounds the trial court cited justified setting aside the jury’s verdict, so the new-trial order could not stand on alternate bases.
Practical Application
For family-law litigators, the practical lesson is straightforward and urgent: preserve the record and seek immediate curative relief when opposing counsel crosses the line. In divorce and custody jury trials, inflammatory or credibility-attacking rhetoric (attacks on parenting motive, insinuations about “shakedowns” to extract money, statements about a party’s wealth or manipulation of experts) is likely curable by a retraction or jury instruction. If the trial judge declines to give an instruction or retract the statement, or if the judge’s ruling is ambiguous, make a clear, contemporaneous record—request the precise instruction you want, move for a mistrial when appropriate, and obtain a ruling. Failing to take these steps will often forfeit appellate or post-trial relief and can leave a party subject to a new-trial order that the Supreme Court may find unsupported.
Checklists
Preserve the Record
- Object on the record immediately and identify the specific impropriety (e.g., improper jury argument, statements about counsel’s motives, references to financial resources).
- Ask for a specific curative instruction or request retraction of the statement.
- If the judge declines or gives no clear ruling, move for a mistrial if the argument is truly prejudicial and irreparable.
- Make an offer of proof or otherwise ensure the precise words are captured in the reporter’s record.
Post-Trial Responses
- If you received no curative instruction and lost, file a motion for new trial that explains why the argument was incurable and why a curative instruction would have been ineffective (if that is your position), with citations to the record and law.
- If you are defending against a motion for new trial premised on alleged incurable argument, move quickly to seek mandamus if the trial court grants a new trial that is legally unsupportable on the record.
When Opposing Counsel Crosses the Line in Family Cases
- Demand an immediate retraction on the record and request a precise jury instruction tailored to cure the prejudice (e.g., instruction limiting use of wealth evidence, instruction on permissible inference).
- If argument attacks a third party or counsel (e.g., “lawyer-driven shakedown”), insist on limiting instruction and consider sanctions or a mistrial motion if the conduct persists.
- Preserve the distinction between curable remarks and the rare truly incurable statements; be prepared to explain in post-trial briefing why the particular remark was incurable if you seek a new trial.
When Seeking Mandamus to Reverse a New-Trial Order
- Demonstrate that the trial court abused discretion by granting a new trial for a reason that is legally insufficient on the record.
- Show lack of an adequate appellate remedy (e.g., where a new trial would irreparably alter the litigation posture).
- File promptly and assemble a concise record demonstrating both remediability and waiver (or, if you are the party seeking relief from a new-trial order, showing that the complaining party failed to preserve).
Citation
In re Space Exploration Technologies Corp. and Lauren Krueger, No. 24-0290 (Tex. June 27, 2025).
Full Opinion
http://docs.texasappellate.com/scotx/op/24-0290/2025-06-27.pc.pdf
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