                                     NO. 07-06-0050-CV

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                  FEBRUARY 9, 2006
                           ______________________________

              In re: LUCINDA J. MYERS, individually, and as personal
                   representative of the estate of BARRY A. LONG,

                                                                         Relator
                         _________________________________

                                 Original Proceeding
                          _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

       Pending before the court is the request of Lucinda J. Myers, individually and as the

personal representative of the estate of Barry A. Long, for a writ of mandamus. Through

the writ, Myers asks that we vacate a letter ruling issued by the Hon. Abe Lopez, 108th

District Court (trial court), on February 3, 2006. Through that ruling, the trial court directed

how the case was to proceed. Myers originally sued Mega Life and Health Insurance

Company (Mega) for claims arising from Mega’s alleged refusal to honor a life insurance

policy covering her husband. The latter died of cancer shortly after the policy was allegedly

issued. Among other things, Mega asserted (via counterclaim and affirmative defense) that

the policy was subject to rescission due to the pre-existing nature of the insured’s illness

and his failure to disclose same when applying for the insurance. Trial of the cause was

set for February 13, 2006. And, by the letter ruling at issue, the trial court ordered that

Mega’s claim of rescission initially be tried to the jury. If the jury were to find against Mega
on the issue, the trial court ordered that the claims of Myers then be tried. Myers contends

the ruling realigned the parties and impermissibly shifted the burden of proof in the case.

For the following reasons, we deny the petition.

       First, the record before us does not illustrate that Myers raised the issue of

realignment below. Nor does it reveal that she invoked either Texas Rules of Civil

Procedure 266 or 269 as basis establishing the impropriety of first trying the matter of

rescission. Thus, those grounds cannot be raised for the first time via a petition for

mandamus. See Braden v. Downey, 811 S.W.2d 922, 927 (Tex. 1991); In re Zenergy, Inc.,

968 S.W.2d 1, 11 (Tex. App. –Corpus Christi 1997, orig. proceeding).

       Second, Mega concedes, in its response to the petition for writ, that it has the

burden to prove the elements of rescission. Moreover, nothing in the ruling of the trial court

purports to relieve the carrier of same.

       Third, a trial court has great discretion over the conduct of a trial. Dow Chemical Co.

v. Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). And, the burden lay with Myers to prove

that it clearly abused that discretion before mandamus can issue. In re Thornton-Johnson,

65 S.W.3d 137, 138 (Tex. App.–Amarillo 2001, orig. proceeding). This burden is met by

showing that the trial court acted unreasonably, arbitrarily, or without reference to guiding

principles. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (so describing

when a court abuses its discretion). To that end, we observe that disposing of the

rescission counterclaim could dispense with the need to try Myers’ claims. Arguably their

success is dependent upon the existence of an enforceable insurance contract. Without

such a contract, there could be neither a breach of contract nor an insurer/insured

relationship giving rise to the duties Mega allegedly breached.          See In re Certain


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Underwriters, 18 S.W.3d 867, 873-74 (Tex. App. –Beaumont 2000, orig. proceeding)

(noting that rescission of the contract would moot those claims founded upon the contract);

Koral Indus., Inc. v. Security-Connecticut Life Ins. Co., 788 S.W.2d 136, 147-48 (Tex.

App.–Dallas 1990, writ denied) (observing that before one can succeed on claims involving

the failure to settle and in unreasonably denying a claim there must first be an enforceable

insurance policy). Given this and because the conservation of judicial resources and the

efficient resolution of disputes are recognized policy goals, see Sysco Food Service, Inc.

v. Trapnell, 890 S.W.2d 796, 803-804 (Tex. 1994); see also J.O. Lockridge General

Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex. App.–Dallas 1993, writ denied),

we cannot say that the trial court’s decision lacked reason.

       Also, while the equitable relief of rescission can be asserted defensively, we know

of nothing that prevents one from asserting it affirmatively through an original petition. See

Lowrey v. University of Texas Medical Branch at Galveston, 837 S.W.2d 171, 174 (Tex.

App.–El Paso 1992, writ denied).       Indeed, there exist a plethora of cases wherein

rescission was sought by a plaintiff due to deception or like misconduct, for instance. See

e.g., Robbins v. Capozzi, 100 S.W.3d 18 (Tex. App.–Tyler 2002, no pet.); Lachalet Intern.,

Inc. v. Nowik, 787 S.W.2d 101 (Tex. App.–Dallas, 1990, no writ); Citizens Standard Life

Insurance Co. v. Muncy, 518 S.W.2d 391 (Tex. Civ. App.–Amarillo 1974, no writ). Thus,

it can be the proper subject of an independent suit. Additionally, while there may be some

relationship between the facts underlying an attempt to rescind a contract due to acts

preceding its formation and claims dependent upon the existence of the contract and the

commission of acts arising after its formation, the controlling facts and issues arguably

differ, as here. Simply put, whether Mega is entitled to rescission as alleged depends upon


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what the insured did and said to induce Mega to issue the contract. Whether Myers is

entitled to recovery depends upon the existence of a valid contract and what Mega did (or

did not do) thereafter. Thus, it cannot be said that the claims are so interwoven as to

involve the same operative facts, issues, or causes of action. Nor can it be denied that the

allegations affording Mega relief and those affording Myers relief involve different causes

of action in the same suit. Due to these circumstances, it appears that the trial court would

have had the discretion to sever and try the claim of rescission separately from those

dependent upon the existence of a contract. See Guarantee Fed. Sav. Bank v. The

Horseshoe Oper. Co., 793 S.W.2d 652, 658 (Tex. 1990) (stating that the severance of

claims for trial is permissible if the suit involves multiple causes of action, the claims can

be independently asserted, and the claims are not so interwoven as to involve the same

facts and issues). Because the trial court could have so severed and tried the claims, we

find nothing arbitrary or unreasonable in it following a procedure having a like effect.

       In sum, the procedure of the trial court may be unique, but we cannot say that it

exceeds the vast discretion given such bodies in conducting trials. Ever increasing docket

loads should stimulate the adoption of creative procedures for speedily addressing

disputes. And, we hesitate to interfere with the exercise of those creative efforts so long

as they comport with lawful discretion. Because that adopted here does, we deny the

petition for writ of mandamus.



                                                  Brian Quinn
                                                  Chief Justice




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