in Re Jarod Johnson ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00064-CV
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IN RE JAROD JOHNSON
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Original Proceeding
136th District Court of Jefferson County, Texas
Trial Cause No. D-199,594
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OPINION
In this mandamus proceeding, Jarod Johnson, as relator, asks the Court to
decide whether the trial court clearly abused its discretion by severing a wrongful
death action that was filed against him and three other defendants into three separate
suits. Because the plaintiff’s claims against all four of the defendants arose from a
single collision that gave rise to one wrongful death action, we hold the trial court
clearly abused its discretion by splintering the action into three different cause
numbers. Because a remedy through an ordinary appeal at the conclusion of the trials
of the causes would not adequately cure the harm to Johnson caused by the trial
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court’s orders of severance, we conditionally grant Johnson’s request for mandamus
relief.
Background
Seven-year-old Jarod Johnson Jr. died in a motor vehicle collision that
occurred in Liberty County on June 17, 2016. In February 2017, Jarod’s mother,
Holly D. Johnson, filed a wrongful death suit in Jefferson County, Texas, against
BesTest, Inc., Joshua Alan Jordan (Jordan), Jarod Lawrence Johnson (Johnson) and
Refractory Construction Services Co., LLC. The child was travelling in a truck
driven by Johnson, his father, when they were involved in a collision with an
eighteen-wheeler being driven by Jordan, who Holly alleged was driving the truck
in the course and scope of his employment for BesTest. Holly also alleged that when
the collision occurred, Johnson was driving his truck he and his son were in while in
the course of his employment with Refractory.
With respect to the county where Holly filed her suit, she alleged that
Jefferson County represented a county of proper venue because one of the
corporations she sued had its principal office there. However, Holly’s pleadings
failed to identify whether Refractory or BesTest was the corporation that she
intended to prove at trial had its principal office in Jefferson County. See Tex. Civ.
Prac. & Rem. Code Ann. § 15.002(a)(3) (West 2017).
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When Johnson answered Holly’s suit, he did not file a motion to transfer
venue. When the other three defendants appeared in the suit, BesTest and Jordan,
jointly, and Refractory, separately, filed motions to transfer venue. In their motions,
all three of these defendants denied that BesTest or Refractory had its principal office
in Jefferson County, Texas. In its motion, Refractory asked the trial court to transfer
venue of the case to Liberty County, where the accident occurred. In their joint
motion, BesTest and Jordan alleged that BesTest maintains its principal place of
business in Lee County, and they alleged that Jordan was a resident of Hardin
County. Although BesTest and Jordan’s motion alleged that they do not reside in
Galveston County, they asked the trial court to transfer the suit to Galveston County
because Refractory had its corporate office there.
In October 2017, BesTest and Jordan demanded that the trial court rule on
their joint motion to transfer. The trial court conducted a hearing regarding their
demand, but concluded in that hearing that it would not rule until the parties
completed both discovery and had mediated their dispute. BesTest, Inc., No. 09-17-
00449-CV, 2017 WL 6558814, at *2 (Tex. App.—Beaumont Dec. 21, 2017, orig.
proceeding) (mem. op.). When the trial court refused to rule on their joint motion to
transfer venue, BesTest and Jordan filed a petition for mandamus, and asked that this
Court require the trial court to rule on their joint motion. Id.
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In December 2017, we granted conditional mandamus relief requiring the trial
court to rule on the joint motion to transfer venue. Id. at *3. Approximately one
month after issuing our opinion in that original proceeding, the trial court granted
BesTest’s and Jordan’s joint motion for transfer. In its order granting the joint
motion, the trial court transferred Holly’s wrongful death action against BesTest and
Jordan to Galveston County. On the same day, the trial court signed a separate order
transferring Holly’s wrongful death action against Refractory to Liberty County.
These two orders are silent with respect to Holly’s action against Johnson, and did
not sever Holly’s action against BesTest and Jordan, and Holly’s action against
Refractory into separate cause numbers.
Subsequently, on January 24, 2018, the trial court amended these two orders.
Its amended order recites that the motions to transfer were sustained, and the court
severed Holly’s wrongful death action against Refractory and sent it to Liberty
County. As to BesTest and Jordan, the amended order severed Holly’s action and
sent Holly’s action against them to Galveston County, clarifying that BesTest and
Jordan were the only defendants the court was transferring to Galveston County. As
to Johnson, the amended order states that Johnson waived his right to challenge
venue, and the court ordered Holly’s action against Johnson to remain in Jefferson
County.
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On February 1, 2018, Johnson filed a motion requesting that the court
reconsider its decision splintering Holly’s wrongful death action into three separate
suits. Johnson’s motion, which complains about the trial court’s severance orders,
argues that Holly’s claims against the defendants were not properly severable. In his
motion, Johnson asked the court to “enter a new order that transfers the entire cause
to the same county whether it be Liberty or Galveston County.” Johnson did not
assert that he had preserved his right to choose from the counties of proper venue
that might be available under the circumstances of the case. Instead, his motion
argues only that the case should be tried against all of the defendants in one county
because it was not properly severable into separate causes.
Following a non-evidentiary hearing on Johnson’s motion, which occurred
nineteen days after the trial court amended its prior orders, the trial court denied
Johnson’s request. If not withdrawn, the trial court’s severance orders splintering
Holly’s wrongful death action into three causes will involve three courts, and
possibly three juries, in resolving Holly’s wrongful death action.
Several days after the trial court denied Johnson’s motion challenging the
court’s orders of severance, Johnson filed a petition seeking mandamus relief in this
Court. In his petition, Johnson argues the trial court improperly severed Holly’s
wrongful death action into three causes because Holly’s wrongful death action will
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require a jury to apportion the negligence of the various defendants who the jury
finds responsible for causing the collision that gave rise to Holly’s action. We stayed
the trial court’s orders of severance pending our review of Johnson’s petition.
In his petition seeking mandamus relief, Johnson argues that severing the
wrongful death action was improper and unnecessary under Rule 41, the rule of
procedure governing severances. Johnson argues that Holly’s action should be tried
in one proceeding. He suggests that by splintering the proceeding into three separate
actions, his right to fairly try the facts and issues that will be needed to resolve
Holly’s claims will be compromised. See Tex. R. Civ. P. 41 (misjoinder and non-
joinder of parties).
In response to Johnson’s petition, Holly contends that the severances were
proper because the sole remedy provided by the Texas Legislature when ruling on
timely-filed venue motions requires that trial courts splinter the case into separate
actions by sending those defendants who perfected their rights to challenge venue to
the county that each defendant requested, so long as those counties are counties of
proper venue. Holly argues that the venue statute does not authorize transferring her
suit against Johnson to a county of proper venue because he failed to file a motion
challenging her choice of venue.
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Mandamus Review
An appellate court may grant a petition for mandamus relief only to correct a
trial court’s clear abuse of its discretion because it made a ruling for which the relator
has no adequate remedy by ordinary appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). An abuse of discretion will be
found to have occurred when a trial court has failed to analyze or apply the law
correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
As the relator in this mandamus proceeding, Johnson is also required to show in this
court that he cannot obtain an adequate remedy through pursuing an ordinary appeal.
In re Team Rocket, L.P., 256 S.W.3d 257, 259, 262 (Tex. 2008) (orig. proceeding)
(“The adequacy of an appellate remedy must be determined by balancing the benefits
of mandamus review against the detriments.”).
In evaluating the benefits and detriments of reviewing a matter in a mandamus
proceeding instead of awaiting the ordinary appeal, we consider whether a decision
to grant the writ will preserve a litigant’s important substantive and procedural rights
that a litigant has from impairment or loss. See Prudential, 148 S.W.3d at 136.
“These considerations implicate both public and private interests.” Id. In deciding
whether an appellate remedy is adequate, we also consider whether an irreversible
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waste of judicial and public resources will occur should mandamus not issue. In re
Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999).
Severance
The Rules of Civil Procedure give trial courts broad discretion in deciding
whether to sever causes. Tex. R. Civ. P. 41. However, mandamus is available in a
proper case to protect a party against a trial court’s clear abuse of its discretion when
the trial court has improperly ordered a severance. See Womack v. Berry, 291 S.W.2d
677, 682 (Tex. 1956) (orig. proceeding).
Rule 41 provides that “[a]ny claim against a party may be severed and
proceeded with separately.” See Tex. R. Civ. P. 41. Cases decided under Rule 41
establish the guidelines that trial courts are required to follow when deciding whether
to sever a litigant’s claims into multiple causes. Nearly thirty years ago, the Texas
Supreme Court explained that under Rule 41, “[a] claim is properly severable if (1)
the controversy involves more than one cause of action, (2) the severed claim is one
that would be the proper subject of a lawsuit if independently asserted, and (3) the
severed claim is not so interwoven with the remaining action that they involve the
same facts and issues.” Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793
S.W.2d 652, 658 (Tex. 1990). This three-part test remains the guiding rule and
principle the trial court was required to follow when it decided whether to sever
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Holly’s wrongful death action into three separate causes. “The controlling reasons
for a severance are to do justice, avoid prejudice and further convenience.” Id.
In this case, Holly, who is the sole plaintiff, alleged that the combined
negligence of four defendants caused a motor vehicle collision, and that the collision
resulted in her son’s death. Holly sued the defendants under the Wrongful Death
Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.012 (West 2008 & Supp.
2017) (Wrongful Death Act). In her petition, Holly alleged that Refractory was liable
for Johnson’s conduct in causing the collision because Johnson was driving his truck
in the course and scope of his employment for Refractory when the collision
occurred. She also alleged that Jordan was liable for causing the collision because
he was in the course and scope of his employment with BesTest when the collision
occurred.
If the trial court’s severance order is allowed to stand, Refractory would be
sent to Liberty County, BesTest and Jordan would be sent to Galveston County, and
Johnson would remain in Jefferson County. Due to the severances, the defendants in
each of those proceedings would likely identify the others as responsible third parties
so that the combined negligence of all four defendants could be apportioned. And,
the liability would be apportioned by three separate juries, as each jury would be
required to determine who was negligent and responsible for causing the wreck.
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Thus, assuming a jury finds in Holly’s favor in all three cases, Holly’s damages
(which might be in different amounts in each of the three cases) will be required to
be apportioned in ways that might differ. See id. § 33.004 (West 2015) (Designation
of Responsible Third Party). Consequently, severing Holly’s wrongful death action
into three separate causes would, if the orders are allowed to stand, require three
courts and three juries to hear largely, if not entirely, the same evidence.
Additionally, the three causes involve highly interwoven facts and legal theories. On
this record, we conclude the trial court abused its discretion by severing Holly’s
wrongful death action into separate causes when the action should be tried in one
cause number against all four defendants in a county of proper venue.
For the reasons explained above, we hold the trial court failed to follow well-
settled law when it severed Holly’s wrongful death action into three cause numbers.
See Guar. Fed., 793 S.W.2d at 658 (explaining that a properly severable claim is one
that “is not so interwoven with the remaining action that they involve the same facts
and issues”). We hold the trial court’s failure to follow the law was a clear abuse of
discretion. Id.
Johnson’s Waiver of His Venue Rights
In this original proceeding, Holly argues that mandamus relief is inappropriate
as to Johnson’s complaints about the trial court’s severance orders because Johnson
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failed to preserve his right to have the case Holly filed against him transferred to a
county of proper venue. Additionally, Holly suggests the trial court properly denied
Johnson’s motion because granting Johnson’s motion would require the trial court
to conduct more than one venue hearing, which she claims would violate Rule 87(5)
of the Texas Rules of Civil Procedure. See generally Tex. R. Civ. P. 87(5) (“If venue
has been sustained as against a motion to transfer, or if an action has been transferred
to a proper county in response to a motion to transfer, then no further motions to
transfer shall be considered regardless of whether the movant was a party to the prior
proceedings or was added as a party subsequent to the venue proceedings[.]”).
Relying on several Rule 87(5) cases, Holly argues it would be error for this
Court to grant Johnson’s petition. See Tex. R. Civ. P. 87(5). We disagree. The
authorities Holly cites are distinguishable. In Dorchester Master Limited
Partnership v. Anthony, the appellate court held the transferee court lacked the
authority to reconsider the transferring court’s prior venue determination. 734
S.W.2d 151, 152 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding). However,
the issue raised in Anthony did not include an error regarding an order of severance
that split the plaintiff’s claims. Id. Therefore, it is both distinguishable and does not
address whether a trial court may, through severance orders, require an action that is
otherwise not properly severable to proceed in separate causes.
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Holly also relies on In re Hardwick, 426 S.W.3d 151, 157 (Tex. App.—
Houston [1st Dist.] 2012, orig. proceeding). In Hardwick, the First Court of Appeals
explained that the trial court could not have considered amended pleadings that a
party filed after the trial court ruled on two motions to transfer venue when deciding
those motions. Id. Our review of our sister court’s opinion in Hardwick does not
reflect that the case involved a challenge to the validity of a trial court’s severance
orders. Id. at 153-156. Additionally, we note that in Hardwick, the First Court of
Appeals conditionally granted the petition, directed the trial court to vacate its order
denying the relators’ motions to transfer, and before deciding whether to grant the
motions, the appeals court indicated that the “trial court may permit the parties to
present additional evidence and arguments to help it determine to which county it
should transfer venue.” Id. at 163. The actual disposition of the mandamus
proceeding in Hardwick indicates that the First Court of Appeals allowed the trial
court to conduct additional proceedings on remand to make a determination
regarding which Texas county would be a county of proper venue even though it
was not authorized to alter the appeals court’s decision that the county of suit was
not a count of proper venue. See id.
Similarly, we find In re Medical Carbon Research Institute, L.L.C. to be
distinguishable. In Medical Carbon, the Fourteenth Court of Appeals held that the
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trial court did not err when it refused to hear Medical Carbon’s motion to reconsider
a prior ruling that had been made on Medical Carbon’s motion to transfer venue. No.
14-07-00935-CV, 2008 WL 220366, at *1 (Tex. App.—Houston [14th Dist.] Jan.
29, 2008, orig. proceeding) (mem. op.). The Fourteenth Court stated that Rule 87(5)
of the Texas Rules of Civil Procedure generally does not allow a trial court to
reconsider a ruling denying a motion to transfer venue. Id. However, in Medical
Carbon, Medical Carbon wanted the trial court to consider for the first time a matter
Medical Carbon had not raised in the initial hearing the trial court conducted on its
motion to transfer, a matter that concerned the effect of a forum selection clause in
the parties’ written agreement that was relevant to the plaintiff’s claims. Id. And, the
trial court expressly refused to rule on Medical Carbon’s motion to reconsider,
unlike the situation in Holly’s case. Id. at *2. Moreover, Johnson’s motion addresses
his complaints about the trial court’s severance orders, and he did not ask the trial
court to revisit its decision on venue. While Johnson failed to file a timely motion to
transfer, nothing in Rule 86, which provides that an objection to improper venue is
waived if not made by written motion, states that a party also waives all complaints
regarding an improper severance. See Tex. R. Civ. P. 86.
In Marathon Corporation v. Pitzner, which is another case Holly cites in her
response, the Corpus Christi Court of Appeals concluded that the trial court properly
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refused to consider Marathon’s motion to reconsider its venue ruling, noting that
Rule 87(5) prohibited the trial court from holding another hearing to consider its
initial venue ruling. 55 S.W.3d 114, 137, 137 n.6 (Tex. App.–—Corpus Christi
2001), rev’d on other grounds, 106 S.W.3d 724 (Tex. 2003). While we agree that
Rule 87(5) prevented the trial court from holding a second venue hearing under the
circumstances that occurred in Marathon, Rule 87 does not prohibit hearings that
concern severances. Compare Tex. R. Civ. P. 41, with Tex. R. Civ. P. 87. Simply
stated, a severance is not controlled by Rule 87.
Holly also argues that section 15.0641 of the Civil Practice and Remedies
Code prevented the trial court from reconsidering its orders transferring Holly’s
action to Liberty County and Galveston County. See Tex. Civ. Prac. & Rem. Code
Ann. § 15.0641 (West 2017) (“In a suit in which two or more defendants are joined,
any action or omission by one defendant in relation to venue, including a waiver of
venue by one defendant, does not operate to impair or diminish the right of any other
defendant to properly challenge venue.”). However, section 15.0641 of the Civil
Practice and Remedies Code does not address severances; instead, section 15.0641
concerns only the effect of a waiver on the venue rights of those defendants that
properly preserved their right to complain of the plaintiff’s failure to file suit in a
county of proper venue. Id. Since section 15.0641 is silent on the question of
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severances, and because the language employed by the Legislature when it enacted
section 15.063 authorized trial courts, upon granting venue motions, to send the case
to a county of proper venue, we conclude the trial court abused its discretion by
splintering Holly’s wrongful death action into three suits. See id. § 15.0641 (limiting
the effect of a defendant’s waiver of its venue rights so that the waiver affects only
the rights of that party to challenge the plaintiff’s choice of venue).
In conclusion, BesTest, Jordan, and Refractory preserved their right to
complain that Jefferson County was not a county of proper venue by filing timely
motions to transfer venue. Consequently, the venue motions filed by the defendants
who perfected their right to challenge venue required the trial court to decide whether
or not Jefferson County, the county in which Holly chose to file her suit, was a
county of proper venue for Holly’s action. Once the trial court determined that
Jefferson County was not a county of proper venue, the venue statute that controlled
the trial court’s determination about where to send the case, as well as the rule of
civil procedure governing severances, and Guaranty Federal required the trial court
to avoid splintering Holly’s action into three suits. See id. § 15.063 (requiring the
trial court, on granting a timely filed motion to transfer venue, to transfer the “action
to another county of proper venue”); Tex. R. Civ. P. 41; Guar. Fed. Sav. Bank, 793
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S.W.2d at 658. We hold the trial court clearly abused its discretion by severing
Holly’s claims against the defendants into three separate causes. Tex. R. Civ. P. 41.
Inadequate Remedy by Appeal
Holly argues in her response that the trial court’s venue ruling is an incidental
ruling for which mandamus relief is unavailable. However, allowing a trial court to
improperly sever claims to require separate courts to handle a wrongful death action
when the case was not properly severable could result in different outcomes on the
issues of negligence, proximate cause, apportionment of fault, and damages. Should
the trial court’s severances stand, requiring multiple proceedings that will possibly
result in different outcomes, a significant waste of both public and judicial resources
will occur. In re Energy Res. Tech. GOM, Inc., No. 14-12-00835-CV, 2012 WL
4754006, at *2 (Tex. App.—Houston [14th Dist.] Oct. 4, 2012, orig. proceeding)
(mem. op.) (conditionally granting a petition for writ of mandamus to require the
trial court to vacate an improper order of severance).
The trial court recognized the burden that splintering the actions would create
during one of the hearings that it conducted on the motion BesTest and Jordan filed
complaining about the trial court’s refusal to issue a timely ruling on their joint
motion to transfer. In that hearing, the trial court explained its view that splitting
Holly’s action into multiple suits “had the potential to create a procedural and
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logistical nightmare caused by two different trials in two different counties regarding
the conduct of the same parties in the same motor vehicle collision.” In re BesTest,
2017 WL 6558814, at *2. Although the trial court recognized the practical
difficulties by splitting the case in two, the court’s severance orders create an even
greater burden by splitting Holly’s action into three causes. The result the trial court
imposed was avoidable. Tex. Civ. Prac. & Rem. Code Ann. § 15.063.
We conclude the benefits of allowing Johnson to obtain relief in a mandamus
proceeding significantly outweigh the detriments to allowing the trial court’s
improvidently granted orders of severance to stand. See In re Prudential, 148 S.W.3d
at 136. Moreover, the relief Johnson might be able to obtain through a regular appeal
following trials in Jefferson, Liberty and Galveston Counties would be inadequate
to cure the waste of public and private resources that would result if the orders of
severance are allowed to stand. Id.
Conclusion
Having found that the trial court abused its discretion by severing the action
and that Johnson does not have an adequate remedy at law, we conditionally grant
Johnson’s request for mandamus relief. We are confident the trial court will
promptly vacate its prior orders severing Holly’s action, and that it will transfer the
entire case to a county of proper venue, as requested by one of the defendants who
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timely requested a transfer of venue. The writ will issue only if the trial court fails
to act in accordance with the Court’s opinion.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on February 27, 2018
Opinion Delivered March 22, 2018
Before McKeithen, C.J., Horton and Johnson, JJ.
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