 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-14-00091-CV
                              _________________


                        IN RE RONALD ALSBROOKS

________________________________________________________________________

                               Original Proceeding
________________________________________________________________________

                          MEMORANDUM OPINION

      Ronald Alsbrooks, the plaintiff in a case filed in the 411th District Court of

Polk County, petitions for mandamus relief from a severance order signed by the

visiting judge shortly before the beginning of the jury trial. After reviewing the

mandamus petition and the response filed by the real parties in interest, John

Walter Cobb and Elizabeth K. Cobb, we deny mandamus relief.

      “Any claim against a party may be severed and proceeded with separately.”

Tex. R. Civ. P. 41. “Severance of claims under the Texas Rules of Civil Procedure

rests within the sound discretion of the trial court.” Liberty Nat’l Fire Ins. Co. v.

Akin, 927 S.W.2d 627, 629 (Tex. 1996). Severance is proper when: (1) the

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controversy involves multiple causes of action; (2) the severed claim could be

asserted independently in a separate lawsuit; and (3) the severed claim is not so

interwoven with the other claims that they involve the same facts and issues. See In

re State, 355 S.W.3d 611, 614 (Tex. 2011) (orig. proceeding). “The controlling

reasons for a severance are to do justice, avoid prejudice and further convenience.”

Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.

1990). A trial court has discretion to render a judgment declaring the rights of the

parties as to only some of the issues raised in the general controversy. Hunter v.

NCNB Tex. Nat’l Bank, 857 S.W.2d 722, 725 (Tex. App.—Houston [14th Dist.]

1993, writ denied).

      The case before the trial court began in 2009 as a suit for declaratory

judgment and damages brought by Joyce Cobb against John Walter Cobb and

Elizabeth K. Cobb individually, as co-executors of the estate of John Vernon Cobb,

and as general partners in the J. Cobb Family Limited Partnership. After Joyce

Cobb’s death, Alsbrooks was appointed as the temporary administrator of her

estate and substituted as plaintiff. When the trial court issued the order that is the

subject of this proceeding, Alsbrooks’s pleadings alleged that John Vernon Cobb

contributed community property to the family partnership and that upon his death,

his spouse, Joyce Cobb became a limited partner of the family partnership.

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Alsbrooks alleged that John Walter Cobb controlled and used partnership property

for his personal enrichment, and also alleged that as trustees of the John Vernon

Cobb Family Trust, John Walter Cobb and Elizabeth Cobb turned to their own

benefit assets they held in trust for the benefit of Joyce Cobb.

      The trial court severed into a separate cause Alsbrooks’s petition for a

declaratory judgment to determine the character of certain property, to determine

whether John Vernon Cobb contributed community property to the family

partnership, and to determine whether Joyce Cobb became a limited partner in the

family partnership after her husband’s death. Alsbrooks contends the trial court

improperly divided a single cause of action on claims that present a complete set of

intertwined facts and issues, and that mandamus should issue to avoid a waste of

resources and to expedite the final trial of a case that has been ongoing since 2009.

The real parties in interest contend that each of Alsbrooks’s requested declarations

could be brought as a separate lawsuit, and that by severing the declaratory

judgment action relating to the creation of a partnership interest from the

remaining claims, the trial court avoided interjecting prejudicial evidence

regarding John Walter Cobb’s conduct as a fiduciary from a claim arising from the

conduct of John Vernon Cobb before his death. They also contend the severance




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will not cause undue delay because the trial court intends to try the second case

almost immediately after the trial of the severed case.

      On this record, the trial court could reasonably conclude that the facts and

issues to be resolved in the severed declaratory judgment action are not so

interwoven with the remaining claims that they involve the same facts and issues.

Because the relator has not shown that he is entitled to mandamus relief, we deny

his petition. See Tex. R. App. P. 52.8(a).

      PETITION DENIED.

                                                          PER CURIAM


Submitted on March 11, 2014
Opinion Delivered March 27, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.




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