in Re Janice M. Wilkerson ( 2008 )

Petition for Writ of Mandamus Denied, and Motion for Temporary Relief Denied as Moot, and Memorandum Opinion filed June 6, 2008

Petition for Writ of Mandamus Denied, and Motion for Temporary Relief Denied as Moot, and Memorandum Opinion filed June 6, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00376 -CV

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IN RE JANICE M. WILKERSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

Relator Janice M. Wilkerson asks in this original proceeding that we issue a writ of mandamus requiring that the respondent^[1] sever her counterclaim from the underlying lawsuit and, further, that the respondent be ordered to grant her leave to designate a responsible third party under chapter 33 of the Texas Civil Practice and Remedies Code.  Relator has not demonstrated her entitlement to the extraordinary relief of a writ of mandamus.  We therefore deny the petition.

The facts of this case are known to the parties, and we need not recite them at length.  Real party in interest (Rich Gaddis) sued relator for negligence in connection with a motor vehicle accident on May 15, 2004.  Wilkerson denies liability, and also asserts by counterclaim that the parties entered into a valid settlement of all claims.  The parties filed competing summary judgments on the counterclaim.  The trial court denied Wilkerson=s motion, and granted Gaddis=s.  Wilkerson asked that the counterclaim be severed so that she could appeal the summary judgment orders. That request was denied.

Wilkerson also sought leave to designate Memorial Hermann Hospital, one of Gaddis=s health care providers, as a responsible third party.  See Tex. Civ. Prac. & Rem. Code Ann. ' 33.004 (Vernon Supp. 2007).  The trial court denied relator=s request for leave, ruling that she failed to plead sufficient facts concerning the hospital=s responsibility.  See id. ' 33.004(g).  Relator now assails that ruling, and the denial of her severance request, by petitioning for a writ of mandamus.

The law concerning severance of claims is well-settled.  A claim may be severed if (1) the controversy involves more than one cause of action; (2) the claim to be severed could be the proper subject of a separate lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that both involve the same facts and issues.  Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990).  A trial court possesses broad discretion in deciding whether to sever causes of action. Black v. Smith, 956 S.W.2d 72, 75 (Tex. App.BHouston [14th Dist.] 1997, orig. proceeding).  That a claim may be severed does not always mean that it must. A severance must be ordered where the facts and circumstances unquestionably require severance to prevent Amanifest injustice,@ where no facts or circumstances support a contrary conclusion, and where a severance would not prejudice any of the parties.  See id. (citing Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956)).

Wilkerson contends that, because appellate resolution of her contract counterclaim might dispose of the underlying lawsuit, judicial economy required that her counterclaim be severed.  We disagree; mandamus relief is not warranted merely because an ordinary appeal might involve more expense or delay.  See Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding).  Wilkerson has not demonstrated that the lack of a severance will result in manifest injustice, or that the trial court=s broad discretion in this matter was extinguished.  We therefore overrule relator=s first issue.

We need not decide whether Wilkerson was entitled to designate the hospital as a responsible third party, because we hold that relator has an adequate remedy by appeal.  Whether an appellate remedy is Aadequate@ depends heavily upon the circumstances presented.  See In re Prudential Ins. Co., 148 S.W.3d 124, 137 (Tex. 2004) (orig. proceeding).  The determination rests upon a careful consideration of both public and private interests.  See id. at 136. This case does not present the sort of extraordinary circumstances that justify mandamus relief.  See In re Arthur Andersen, L.L.P., 121 S.W.3d 471, 486 (Tex. App.BHouston [14th Dist.] 2003, orig. proceeding).  Instead, allowing mandamus relief in cases like this one would increase the expense and delay of civil litigation by enabling parties to pursue extraordinary relief in all kinds of cases, exceptional or not.  See  In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 65-66 (Tex. App.BHouston [1st Dist.] 2005, orig. proceeding).  Therefore, any benefits to mandamus relief are outweighed by the detriments.  See Prudential, 148 S.W.3d at 137.  We overrule relator=s second issue.

Accordingly, we deny the petition for writ of mandamus, and likewise deny as moot relator=s motion for temporary relief.

PER CURIAM

Petition Denied and Memorandum Opinion filed, June 6, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

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            ^[1]           The Honorable Reece Rondon, presiding judge of the 234th Judicial District Court of Harris County, Texas.