Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion
filed October 4, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                   NO. 14-12-00835-CV




    IN RE ENERGY RESOURCES TECHNOLOGY GOM, INC., AND HELIX
                ENERGY SOLUTIONS GROUP, Relator


                            ORIGINAL PROCEEDING
                              WRIT OF MANDAMUS
                         On Appeal from County Court No. 3
                              Galveston County, Texas
                          Trial Court Cause No. CV-66114

                             MEMORANDUM OPINION

      On September 11, 2012, relators, Energy Resources Technology GOM, Inc., and
Helix Energy Solutions Group, filed a petition for writ of mandamus in this Court. See
Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the
petition, relators ask this Court to compel the Honorable Christopher Dupuy, presiding
judge of County Court No. 3 of Galveston County to vacate his order of severance signed
June 28, 2012. We conditionally grant the writ.
       Brandon Noland was fatally injured when a crane collapsed while he was working
on a platform in the High Island production block in the Gulf of Mexico. A wrongful
death case was brought by his parents1 (“plaintiffs”) alleging that relators, the platform
owner and operator, were negligent, grossly negligent and negligent per se.             Relators
subsequently sought leave to designate the company responsible for the maintenance and
safety inspection of the crane, Cargotec USA, Inc. a/k/a Cargotec USA, Inc. Marine
Americas (“Cargotec”) as a responsible third party. The motion was granted. Plaintiffs
then filed a motion to sever the third party claims. Following an oral hearing, the trial
court granted the motion to sever.

       Mandamus relief is available if the trial court abuses its discretion, either in
resolving factual issues or in determining legal principles when there is no other adequate
remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial
court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or
apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). In
determining whether the writ should issue, we must further determine whether the party
has an adequate remedy by appeal. Id. An appellate remedy is “adequate” when any
benefits to mandamus review are outweighed by the detriments. In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 136 (Tex.2004). This determination depends heavily on the
circumstances presented and is better guided by general principles than by simple rules.
Id. at 137.

       “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


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          Neshia Noland, Brandon’s mother, brought suit in her individual capacity and as personal
representative of the estate of Brandon Michael Noland. Johnnie Lee Johnson, Brandon’s father,
intervened.
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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
Op. Co., 793 S.W.2d 652, 658 (Tex. 1990). The controlling reasons to allow a severance
are avoiding prejudice, doing justice, and increasing convenience. F.F.P. Operating
Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007).

      Plaintiffs allege, among other things, relators failed to properly inspect and/or
maintain its equipment and failed to warn of allegedly improperly inspected, poorly
maintained and/or otherwise unrepaired conditions of the platform and/or its
appurtenances. According to relators, Cargotec was retained to provide “maintenance
and repair services, which include maintenance programs, annual condition and safety
inspections pertaining to the crane at issue and its component parts, such as the boom
hoist wire rope.” Thus, relators claim, Cargotec is responsible for all or part of the
plainitffs’ damages and they are entitled to contribution based on Cargotec’s negligence.
Whether the collapse of the crane was due to Cargotec’s negligence is relevant to the
plaintiffs’ claim against relators and will involve the same issues, facts, and evidence.
We find the third-party claim is interwoven with the remaining action so that they involve
the same facts and issues. See F.F.P. Operating Partners, 237 S.W.3d at 693-94. See
also Man Industries (India) Ltd. v. Bank of Tokyo-Mitsubishi UFJ, Ltd., 309 S.W.3d 589
(Tex. App. -- Houston [14th Dist., 2010, orig. proceeding). Accordingly, the severance
of relators’ contribution claims against Cargotec was an abuse of discretion. See F.F.P.
Operating Partners, 237 S.W.3d at 693-94.

      Improper severance is reversible error.      See F.F.P. Operating Partners, 237
S.W.3d at 694. Allowing an improper severance order to stand would therefore be a
waste of public and judicial resources. Appeal “is no remedy at all for the irreversible
waste of judicial and public resources.” See In re Masonite Corp., 997 S.W.2d 194, 198
(Tex. 1999). It is a proper use of mandamus review to “spare private parties and the
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public the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.” In re Prudential, 148 S.W.3d at 136. Thus, the benefits of
mandamus outweigh the detriments. See id.; see also In re McKillip-Odom, 2007 WL
2045282, *3-4 (Tex. App. -- Tyler 2007, orig. proceeding) (mem. op), and In re State,
355 S.W.3d 611, 617-18 (Tex. 2011). We therefore conclude that in this case the benefits
of mandamus outweigh the detriments and find relators do not have an adequate remedy
by appeal.

       Having found the trial court abused its discretion by granting the motion to sever
and that relators do not have an adequate remedy at law, we conditionally grant
mandamus relief. We trust the trial court will promptly vacate its order of June 28, 2012,
granting the motion to sever and enter an order denying the motion. The writ will issue
only if the trial court fails to act in accordance with this opinion. This court’s stay of
September 11, 2012 is lifted.

                                     PER CURIAM




Panel consists of Justices Frost, Christopher, and Jamison.




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