21st Century Centennial Ins. Co. v. Ramirez

• Docket Number: 13-22-00116-CV,13-23-00382-CV
• Decision Date: 22 August 2023
• Parties: 21STCENTURY CENTENNIAL INSURANCE COMPANY, Appellant, v. JONATHAN RAMIREZ, Appellee.
• Court: Court of Appeals of Texas

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21STCENTURY CENTENNIAL INSURANCE COMPANY, Appellant,
v.
JONATHAN RAMIREZ, Appellee.

Nos. 13-22-00116-CV, 13-23-00382-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 22, 2023

On appeal from the County Court at Law No. 4 of Nueces County, Texas.

Before Chief Justice Contreras and Justices Silva and Peña

OPINION

CLARISSA SILVA JUSTICE

21st Century Centennial Insurance Company (21st Century) filed a notice of appeal in our cause number 13-22-00116-CV seeking to reverse an order granting a bill of review rendered in favor of Jonathan Ramirez. In the alternative, 21st Century requested that its appeal be treated as a petition for writ of mandamus. We dismiss the

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appeal, grant 21st Century's request to treat the appeal as an original proceeding filed in our cause number 13-23-00382-CV, and conditionally grant the petition for writ of mandamus.

I. Background

This case ^[1] arises from an automobile accident between Ramirez, who was insured by 21st Century, and Erica Bertero, who is not a party to this proceeding. On June 22, 2015, Ramirez filed suit against 21st Century on grounds that 21st Century refused to pay him underinsured motorist benefits that he was due under his insurance policy. Ramirez also raised claims against 21st Century for fraud, unfair insurance practices, and other extracontractual causes of action. On September 16, 2015, the trial court entered an agreed order granting 21st Century's motion to sever and abate Ramirez's extracontractual claims into a separate lawsuit.

In the original case, the parties stipulated to liability and the matter was submitted to a jury trial on the issue of damages only. The jury found in favor of Ramirez, and on September 12, 2018, the trial court signed a final judgment based on the jury's verdict. 21st Century paid Ramirez the damages awarded. The parties then began litigating Ramirez's extracontractual claims in the severed case. 21st Century filed a traditional motion for summary judgment arguing that there was no evidence that it breached the insurance policy or that its actions had caused Ramirez to suffer any independent injuries. Ramirez filed a response to 21st Century's motion for summary judgment, and in the

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alternative, a motion to continue the hearing on the motion for summary judgment. The trial court held a hearing on these matters, and on October 1, 2019, the trial court signed an order granting 21st Century's motion for traditional summary judgment. The trial court's order provides that it is a final judgment, disposes of all claims, and is appealable.

Ramirez filed a motion for rehearing and reconsideration of the order granting summary judgment. On October 3, 2019, the trial court held a hearing on Ramirez's motion. At the hearing, Ramirez contended that his bad faith and extracontractual causes of action survived 21st Century's payment of his contractual damages but asserted that he needed additional discovery to investigate his claims more fully. At the conclusion of the hearing, the trial court announced he was "going to vacate the order," and directed the parties to "get that discovery done." On October 28, 2019, Ramirez filed a proposed order granting his motion for rehearing and reconsideration. However, the trial court did not sign the order. The parties proceeded with discovery, filed a joint agreed motion for continuance of a trial date, and amended their pleadings.

On July 24, 2020, 21st Century's counsel informed Ramirez's attorneys that 21st Century was preparing to reargue its motion for summary judgment when it discovered that the trial court never signed an order granting Ramirez's motion for rehearing and reconsideration. 21st Century therefore took the position that the trial court's plenary power had expired.^[2]

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On July 28, 2020, the trial court signed an order granting Ramirez's motion for rehearing and reconsideration of appellant's summary judgment motion.

On August 25, 2020, Ramirez filed a petition for bill of review. He asserted that the trial court still possessed jurisdiction over the case concerning his extracontractual cause of action and that he was filing the petition for bill of review "only out of an abundance of caution." The trial court held a bench trial on the bill of review. Following the trial, on March 8, 2022, the trial court signed an order granting Ramirez's petition for bill of review and vacating the October 1, 2019 summary judgment order.

This appeal ensued. By two issues, 21st Century contends that the trial court abused its discretion by granting the bill of review because: (1) Ramirez failed to offer any evidence of a meritorious defense; and (2) there is no evidence that fraud, accident, or any wrongful act of 21st Century, unmixed with fault or negligence by Ramirez, prevented Ramirez from making a meritorious defense. In contrast, Ramirez asserts that the trial court's order granting a bill of review was "interlocutory and not appealable," and if appealable, was supported by the law and the facts.

The Clerk of this Court advised 21st Century that it appeared that the order subject to appeal was not a final, appealable order, and requested 21st Century to correct this

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defect if possible. See Tex. R. App. P. 42.3(a). In response, 21st Century filed a letter brief asserting that the order was subject to appeal, but alternatively requesting that its appeal be treated as a petition for writ of mandamus if the Court were to conclude that we lacked jurisdiction over the appeal.^[3] Ramirez filed a response in opposition to 21st Century's request to treat the appeal as an original proceeding. Ramirez contends that this case fails to meet the appropriate criteria to be handled as a petition for writ of mandamus and asserts, inter alia, that this case is not "exceptional" and that 21st Century has an adequate remedy by appeal.

II. Appeal

We first address whether the order granting the bill of review is subject to review by appeal. "A bill of review which sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final judgment appealable to the court of appeals or the supreme court." Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006) (per curiam) (quoting Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam)); see In re D. N.C. , 656 S.W.3d 764, 766 (Tex. App.-El Paso 2022, no pet.); In re Estrada, 492 S.W.3d 42, 46 (Tex. App.-Corpus Christi- Edinburg 2016, orig. proceeding). Here, the trial court's order granting Ramirez's bill of review set aside the prior summary judgment but did not dispose of the case on the merits. Accordingly, we lack jurisdiction over the appeal. See Kiefer, 197 S.W.3d at 302; Tesoro Petroleum, 796 S.W.2d at 705.

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We turn our attention to 21st Century's request to treat its appeal as a petition for writ of mandamus. In certain circumstances, a court may treat an appeal as a petition for writ of mandamus. See CMH Homes v. Perez, 340 S.W.3d 444, 452-54 (Tex. 2011). This promotes judicial economy because requiring the appellant to file a separate petition for writ of mandamus would "unnecessarily waste the parties' time and further judicial resources." Id. at 453; see Icon Benefit Adm'rs II, L.P. v. Mullin, 405 S.W.3d 257, 263 (Tex. App.-Dallas 2013, orig. proceeding [mand. denied]). In order to obtain mandamus review in such a situation, the appellant must specifically request that its appeal be treated as a mandamus petition. Sintim v. Larson, 489 S.W.3d 551, 556 (Tex. App.-Houston [14th Dist.] 2016, no pet.); In re Estate of Aguilar, 435 S.W.3d 831, 834 (Tex. App.-San Antonio 2014, no pet.); In re Adams, 416 S.W.3d 556, 560 (Tex. App.-Tyler 2013, orig. proceeding), subsequent proceeding, No. 12-12-00242-CV, 2013 WL 4106703, at *1 (Tex. App.-Tyler Aug. 14, 2013, orig. proceeding) (per curiam).

After fully reviewing the appeal, 21st Century's express request to treat its appeal as a petition for writ of mandamus, and Ramirez's response, we conclude that the interests of justice and judicial economy militate in favor of granting 21st Century's request. See CMH Homes, 340 S.W.3d at 452-54. Accordingly, we grant 21st Century's request to treat its appeal as a petition for writ of mandamus. Having done so, we dismiss the appeal for want of jurisdiction.

III. Mandamus

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza,

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544 S.W.3d 836,840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Acad., Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding); In re Essex Ins., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). Thus, depending on the circumstances, mandamus may be available to review an order granting a bill of review. See In re Miramontes, 648 S.W.3d 590, 599-600 (Tex. App.- El Paso 2022, orig. proceeding); In re Estrada, 492 S.W.3d at 49.

IV. Bill of Review

A bill of review is an independent equitable proceeding filed by a party...