 
 




                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-18-00064-CV
                              _________________


                            IN RE JAROD JOHNSON

________________________________________________________________________

                              Original Proceeding
                136th District Court of Jefferson County, Texas
                           Trial Cause No. D-199,594
________________________________________________________________________

                                     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

                                          16
 
 
 




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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