Opinion
No. 12-07-00183-CV
Opinion delivered July 18, 2007.
Original Proceeding.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Dawn McKillip-Odom filed a petition for writ of mandamus challenging the trial court's order granting the motion to sever filed by real parties in interest, Fredericka Ann Mason and Gordon Knight as next friends of Jalyn Coxen (the "Coxen plaintiffs"). By granting the motion, the trial court severed the negligence claims asserted by Kerry Caudle, Elizabeth Sanders, and Wilma Caudle in her capacity as dependent administrator of the Estate of Miranda Caudle (the "Caudle plaintiffs") and the contribution claims asserted by McKillip-Odom against the Caudle plaintiffs from the negligence claims asserted by the Coxen plaintiffs and the contribution claims asserted by McKillip-Odom against the Coxen plaintiffs. We conditionally grant the petition.
BACKGROUND
On July 9, 2004, a serious accident occurred involving vehicles driven by Miranda Caudle and McKillip-Odom. Caudle died as a result of injuries sustained in the accident, and Jalyn Coxen, a passenger in Caudle's vehicle, sustained severe injuries.
In 2005, the Coxen plaintiffs brought suit against McKillip-Odom and the estate of Miranda Caudle. On November 2, 2005, the Caudle plaintiffs intervened in the suit and asserted claims against McKillip-Odom. The Coxen plaintiffs' and the Caudle plaintiffs' claims against McKillip-Odom were based on allegations of negligence regarding McKillip-Odom's operation of her vehicle and the maintenance of her vehicle prior to the accident. On January 8, 2007, McKillip-Odom filed claims for contribution against the Coxen plaintiffs and the Caudle plaintiffs.
Gordon Knight, next friend of Jalyn Nicole Coxen, was not initially named as a plaintiff but joined the suit sometime after it was filed. The estate of Miranda Caudle rather than the personal representative of the estate was named as a defendant.
On April 20, 2007, the Coxen plaintiffs brought a motion to sever the claims of the Coxen plaintiffs from the claims of the Caudle plaintiffs. The trial court heard the motion on May 3, 2007, and McKillip-Odom objected to the severance at the hearing. The trial court orally granted the motion at the hearing. On May 9, 2007, McKillip-Odom filed a written response to the motion to sever. On May 11, 2007, the trial court signed an order granting the motion to sever. The order severed not only the Caudle plaintiffs' claims from those of the Coxen plaintiffs, but also severed McKillip-Odom's claims against the Caudle plaintiffs. The order assigned the severed claims a new cause number. This original proceeding followed. Along with her mandamus petition, McKillip-Odom also filed a motion for emergency relief, which was granted.
PRESERVATION OF ERROR
McKillip-Odom asserts that the trial court abused its discretion when it granted the Coxen plaintiffs' motion to sever because the parties' claims are so interwoven that they involve common facts and issues. The Caudle plaintiffs allege that McKillip-Odom failed to preserve her complaint for review and therefore is not entitled to mandamus. To preserve a complaint for mandamus review, McKillip-Odom was required to present the complaint to the trial court "by a timely request, objection or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. . . ." See TEX. R. APP. P. 33.1; see also In re E. Tex. Med. Ctr. Athens , 154 S.W.3d 933, 936 (Tex.App.-Tyler 2005, orig. proceeding). This rule ensures that the trial court has had the opportunity to rule on matters for which parties later seek mandamus review. In re E. Tex. Med. Ctr. Athens , 154 S.W.3d at 936.
In this case, at the hearing on the motion to sever, McKillip-Odom objected to the severance because it would "involve two trials with the same people with the same issues." This objection is sufficiently specific to inform the trial court of her complaint that severance was improper because the claims were interwoven. Consequently, the trial court had the opportunity to rule on the matter before McKillip-Odom filed this original proceeding. Because McKillip-Odom complied with Rule 33.1, we will consider the merits of McKillip-Odom's complaint.
AVAILABILITY OF MANDAMUS
Mandamus will issue to correct a clear abuse of discretion where there is no adequate remedy by appeal. Walker v. Packer , 827 S.W.2d 833, 839-40 (Tex. 1992). To determine whether the trial court clearly abused its discretion, the reviewing court must consider whether the challenged ruling or order was one compelled by the facts and circumstances or was arbitrary, unreasonable, or reached without reference to any guiding rules or principles. In re Huag , 175 S.W.3d 449, 451 (Tex.App.-Houston [14th Dist.] 2005, no pet.). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker , 827 S.W.2d at 840. The trial court has no discretion in determining what the law is or applying the law to the facts. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135 (Tex. 2004). An appellate remedy is "adequate" when any benefits to mandamus review are outweighed by the detriments. Id. at 136. This determination depends heavily on the circumstances presented and is better guided by general principles than by simple rules. Id. at 137. The party seeking the writ of mandamus has the burden of showing that the trial court abused its discretion and that appeal is an inadequate remedy. In re E. Tex. Med. Ctr. Athens , 154 S.W.3d at 935.
ABUSE OF DISCRETION
The Texas Rules of Civil Procedure provide that "[a]ny claim against a party may be severed and proceeded with separately." TEX. R. CIV. P. 41. A trial court severs a lawsuit when it splits the lawsuit into two or more independent actions, and each action, if brought to conclusion, results in an appealable final judgment. See Van Dyke v. Boswell, O'Toole, Davis Pickering , 697 S.W.2d 381, 383 (Tex. 1985); see also TEX. R. CIV. P. 41. Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court. Liberty Nat'l Fire Ins. Co. v. Akin , 927 S.W.2d 627, 629 (Tex. 1996). A trial court properly exercises its discretion in severing claims when 1) the lawsuit involves more than one cause of action; 2) the severed claim could be asserted independently in a separate lawsuit; and 3) the severed claim is not so interwoven with the other claims that they involve the same facts and issues. Id.
In their response to McKillip-Odom's mandamus petition, the Coxen plaintiffs make numerous references to "separate trials." The trial court's order severed the case into two separate cases with separate cause numbers rather than ordering separate trials for one case with the same cause number. Compare TEX. R. CIV. P. 41 with TEX. R. CIV. P. 174(b). Accordingly, we examine whether the severance was proper.
Here, the Coxen plaintiffs assert that McKillip-Odom was negligent, specifically alleging that she 1) traveled at an excessive speed, 2) failed to brake properly, 3) lost control of her vehicle, 4) had defective brakes, 5) had insufficient tire tread, which affected the braking ability of her vehicle, 6) failed to maintain a proper lookout, 7) utilized a commercial vehicle when it was in an overall defective condition, 8) used an overloaded vehicle, 9) failed to take proper evasive action, and 10) turned to the left when she should have turned to the right or continued traveling straight. The Caudle plaintiffs assert McKillip-Odom was negligent, specifically alleging that she 1) operated her vehicle at an unsafe speed, 2) operated an improperly maintained vehicle, 3) failed to maintain a proper lookout, 4) operated her vehicle in an unsafe manner considering the condition of the vehicle, 5) operated her vehicle in an unsafe manner considering the load being carried, 6) operated her vehicle unsafely for the traffic conditions, 7) failed to keep her vehicle in the condition required by law, 8) failed to submit her vehicle for inspection, and 9) failed to operate her vehicle in a manner consistent with the standards and practices of commercial drivers. The negligence claims alleged by the Coxen plaintiffs and by the Caudle plaintiffs relate to McKillip-Odom's alleged acts or omissions that resulted in the accident that occurred on July 9, 2004. Consequently, the facts and issues related to McKillip-Odom's liability are the same for the Coxen plaintiffs as for the Caudle plaintiffs. See State Dep't of Highways v. Cotner , 845 S.W.2d 818, 819 (Tex. 1993). Therefore, the Coxen plaintiffs did not satisfy the third criterion for severance. See Akin , 927 S.W.2d at 629 (severed claim should not be so interwoven with other claims that they involve same facts and issues). By severing the Coxen plaintiffs' negligence claims from the Caudle plaintiffs' negligence claims, the trial court abused its discretion.
The trial court also severed McKillip-Odom's contribution claims against the Caudle plaintiffs. These contribution claims related to Miranda Caudle's alleged negligence. McKillip-Odom specifically alleged that Caudle 1) failed to keep a proper lookout, 2) operated her vehicle at an unsafe speed, 3) failed to timely brake, 4) failed to maintain a safe distance, 5) operated her vehicle in an unsafe and hazardous manner, 6) failed to take proper evasive action, and 7) violated several Texas traffic laws. The Coxen plaintiffs allege that Caudle was negligent because she failed to maintain a proper lookout. This claim relates to the same facts and issues that will be litigated by the Caudle plaintiffs. Therefore, the severance of McKillip-Odom's contribution claims against the Caudle plaintiffs was also an abuse of discretion. See F.F.P. Operating Partners, L.P. v. Duenez , No. 02-0381, 2007 Tex. LEXIS 432, at *40-41 (Tex. 2007).
ADEQUATE REMEDY AT LAW
Having determined that the granting of the motion to sever was an abuse of discretion, we next consider whether McKillip-Odom has an adequate remedy at law. Mandamus is not to be used as a substitute for an ordinary appeal. In re Barrett , 149 S.W.3d 275, 280 (Tex.App.-Tyler 2004, orig. proceeding). But mandamus review can be used to "spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings." In re Prudential , 148 S.W.3d at 136. In addressing whether there is an adequate remedy by appeal, the word "adequate" has no comprehensive definition; it is simply a reference to the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. Id. These considerations implicate both public and private interests. Id. An appellate remedy is "adequate" when any benefits to mandamus review are outweighed by the detriments. Id. Conversely, when the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. Among other factors, we consider the procedural dynamics of the case in determining whether the appellate remedy is adequate. Id.
A party "has a substantial right to present the complete set of intertwined facts and issues germane to his claims, to one factfinder, in one proceeding, rather than in two separate suits that are all but foreordained to generate, collectively, a decision destined to fail in the appellate process." Jones v. Ray , 886 S.W.2d 817, 822 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (emphasis in original). Here, if we allowed the improper severance to stand, McKillip-Odom would be required to defend the case on two fronts (first against the Coxen plaintiffs and then against the Caudle plaintiffs) and in piecemeal fashion, thus losing this substantial right. The assertion that collateral estoppel may limit the second trial weighs in favor of mandamus. Finally, "[a]ppeal may be adequate for a particular party, but it is no remedy at all for the irreversible waste of judicial and public resources. . . ." Id. (quoting In re Masonite Corp. , 997 S.W.2d 194, 198 (Tex. 1999)). Improper severance is reversible error. See, e.g., F.F.P. Operating Partners, L.P. v. Duenez , 2007 Tex. LEXIS 432, at *12. Therefore, the two trials that the severance would effect constitute a waste of public and judicial resources. See Jones , 886 S.W.2d at 823 n. 9. Under the facts of this case, we conclude that the benefits of mandamus outweigh the detriments. Accordingly, we hold that McKillip-Odom does not have an adequate remedy at law.
DISPOSITION
Having concluded that the trial court abused its discretion by granting the motion to sever and that McKillip-Odom does not have an adequate remedy at law, we conditionally grant mandamus relief. We trust that the trial court will promptly vacate its order of May 11, 2007 granting the Coxen plaintiffs' motion to sever and enter an order denying the motion. The writ will issue only if the trial court fails to comply with this court's opinion and order within ten days . The trial court shall furnish this court, within the time for compliance with this court's opinion and order, a certified copy of its order evidencing such compliance. Our stay of May 15, 2007 is lifted.