                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00031-CV




                IN RE: DONALD REID




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                      MEMORANDUM OPINION

       Donald Reid, one of several defendants in a lawsuit brought by Willie Garvin, asks this

Court to issue a writ of mandamus directing the district court to grant his motion and sever his

portion of the underlying lawsuit from the other defendants.

       Garvin sued Mo Money and Reid for debt from loans to Mo Money which had been

guaranteed by Reid. Garvin also sued Reid alleging Reid fraudulently induced him to transfer

stock of Arktex Medical, Inc. In exchange for the stock transfer, Garvin contends Reid was to

pay Mo Money one-half of the balance Garvin owed to Mo Money, not to exceed $1.2 million.

       Reid sought to sever the two actions. The trial court denied the severance request.

       “Mandamus is the appropriate avenue by which a party may seek review of a trial court’s

order regarding severance.” In re Liu, 290 S.W.3d 515, 518 (Tex. App.—Texarkana 2009, orig.

proceeding) (citing In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 650 & n.12 (Tex.

App.—El Paso 1999, orig. proceeding)). “We may grant the extraordinary relief of mandamus

only when the record brought forth demonstrates that the trial court has clearly abused its

discretion and that the relator lacks an adequate appellate remedy.” Id. (citing In re Team

Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding); In re Colonial Pipeline Co., 968

S.W.2d 938, 941 (Tex. 1998) (orig. proceeding)). “A trial court does not abuse its discretion

unless the judge acts without reference to guiding rules and principles or acts in a manner that is

arbitrary and unreasonable.” Id. at 518–19 (citing Colonial Pipeline Co., 968 S.W.2d at 941;

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); Worford v. Stamper, 801


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S.W.2d 108, 109 (Tex. 1990); Sw. Health Plan, Inc. v. Sparkman, 921 S.W.2d 355, 357 (Tex.

App.—Fort Worth 1996, no writ)).

       “Severance divides a lawsuit into two or more separate and independent causes of

action.” Id. at 519–20 (citing Hall v. City of Austin, 450 S.W.2d 836, 837–38 (Tex. 1970)).

“When a trial court grants a severance, the separated causes of action typically proceed to

individual judgments—judgments that are themselves separately final and appealable.” Id. at

520 (citing Hall, 450 S.W.2d at 838). “Causes of action that have been severed from each other

into independent lawsuits will be heard by different juries.” Id. (citing Liberty Nat’l Fire Ins.

Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996)).

       The decision to sever, however, is an exercise of discretion. Id. at 518; In re Foremost

Ins. Co., 966 S.W.2d 770, 771 (Tex. App.—Corpus Christi 1998, orig. proceeding); see TEX. R.

CIV. P. 41. In reviewing the exercise of that discretion, we focus on three factors that have been

consistently recognized as controlling by courts.

       A trial court properly exercises its discretion in severing claims when: (1) the
       controversy involves more than one cause of action; (2) the severed claim is one
       that could be asserted independently in a separate lawsuit; and (3) the severed
       actions are not so interwoven with the other claims 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 reasons for

severing claims are to do justice, avoid prejudice, and further convenience. Liu, 290 S.W.3d at

520 (citing Akin, 927 S.W.2d at 629; Guar. Fed. Sav. Bank, 793 S.W.2d at 658)).

       “The issue of whether a trial court should or should not grant a severance motion is

ultimately a question of law.” Id. (citing Guar. Fed. Sav. Bank, 793 S.W.2d at 658–59). “When
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considering whether to grant a severance motion, the trial court must generally accept the

plaintiff’s pleadings as true and then determine whether severance is appropriate.” Id. (citing

Jones v. Ray, 886 S.W.2d 817, 820 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding)).

“If the trial court’s decision to grant or deny a party’s severance motion fell within the wide zone

of reasonable agreement, the appellate court reviewing that decision within the context of a

mandamus proceeding should not conclude the lower court abused its discretion.” Id. Given

that the trial court must generally accept the plaintiff’s pleadings as true, the only remaining

dispute concerns the legal consequences stemming from those accepted-as-pleaded facts.” Id.

       As acknowledged by the trial judge in this case, there are multiple causes of action, and

claims are clearly separable. Further, it is apparent that a jury trial including all of these causes

of action would be an involved matter, as would the jury charge attempting to parse out the

various issues in a way that the jury could understand and apply. The trial court was authorized

to sever these causes of action, but we find nothing in the record that demonstrates an abuse of

discretion in failing to sever them. Generally, to mandate a severance, the movant must show

prejudice that may result from a joint trial. Allstate Ins. Co. v. Hunter, 865 S.W.2d 189, 194

(Tex. App.—Corpus Christi 1993, orig. proceeding). No presumption exists that the mere

joining of such contract and tort actions creates a conflict necessarily requiring a severance. Id.

       This case involves causes of action which have a common thread. There was a chain of

events linking each of the alleged wrongful acts in this case to the next. The same parties are

involved, and the transactions have some connection. The two actions provide context for the

series of events involved and may provide some evidentiary support for each other.
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       The question in this case, however, is whether the trial court abused its discretion or

made a mistake as a matter of law by refusing to sever. The question is not whether the lower

court’s decision is the same one that we would have made, but whether it was within the court’s

discretionary authority.

       We conclude that there are factors that support the trial court’s decision to sever these

claims as well as considerations that would have supported the opposite decision. In such a

situation, we cannot conclude that the trial court abused its discretion by declining the request to

sever or that severance was required as a matter of law.

       We deny the petition.



                                                     Jack Carter
                                                     Justice
Date Submitted:        May 21, 2013
Date Decided:          May 22, 2013




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