In re Liu

• Decision Date: 10 June 2009
• Docket Number: No. 06-09-00049-CV.,06-09-00049-CV.
• Citation: 290 S.W.3d 515
• Parties: In re: Edward LIU, M.D.
• Court: Texas Court of Appeals

290 S.W.3d 515

In re: Edward LIU, M.D.

No. 06-09-00049-CV.

Court of Appeals of Texas, Texarkana.

Submitted June 9, 2009.

Decided June 10, 2009.

Kay E. Ellington, Law Office of Kay Ellington, PC, Dallas, for relator.

Jason E. Dunahoe, Lapeze & Dunahoe, Houston, for real party in interest.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Dr. Edward Liu seeks an order from this Court directing the 71st Judicial District Court of Harrison County, Texas, to grant Liu's motion to sever the medical malpractice claims brought against him by Susan Woods in connection with her lawsuit against various parties. Woods's claimed injuries stem from an automobile collision that occurred in Harrison County. She sued several parties, including the allegedly intoxicated driver and many of the medical personnel who subsequently treated her at a hospital located in Gregg County, Texas; she claimed that her arm was broken in the collision and that the broken bone failed to heal properly because of improper treatment of the condition by Liu and others. Liu takes the position that the alleged tort which occasioned the automobile collision was separate, distinct, and apart from the claimed medical malpractice, but Woods maintains that there is a continuum which began with her injury and lasted through the allegedly-faulty medical treatment of that injury.

For the reasons set forth below, and without hearing oral argument a second time,¹ we conclude that the mandamus record fails to establish that the trial court's decision to deny Liu's requested relief fell outside the wide range of sound judicial reasoning, that the trial court has acted arbitrarily, or that the trial court acted without reference to guiding rules and principles.

We, therefore, deny Liu's petition for extraordinary relief.

A. Standard for Mandamus Relief

Mandamus is the appropriate avenue by which a party may seek review of a trial court's order regarding severance. See In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 650 & n. 12 (Tex.App.-El Paso 1999, orig. proceeding) (mandamus appropriate vehicle through which to challenge trial court's order severing claims brought within lawsuit). 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. In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008); In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998); see also Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). 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. 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 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). "The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Adams v Baxter Healthcare Corp., 998 S.W.2d 349, 356 (Tex.App.-Austin 1999, no pet.) (conducting review of severance order).

"Under an abuse of discretion standard, we view the evidence in the light most favorable to, and indulge every presumption in favor of, the trial court's action." Id.; see also Hoover, Bax & Slovacek, 6 S.W.3d at 650. We show much less deference with respect to our review of the trial court's determination of the controlling legal principles. In re Brookshire Bros., Ltd., 198 S.W.3d 381, 383 (Tex.App.-Texarkana 2006, orig. proceeding [mand. denied]). "A trial court has no `discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ." Hoover, Bax & Slovacek, 6 S.W.3d at 650.

When the trial court makes no formal findings of fact or conclusions of law (as is the case here), we must presume the trial court made all findings necessary to support its judgment. See Worford, 801 S.W.2d at 109 (addressing whether trial court abused discretion in determining child support where court entered no written findings or conclusions). In such situations, the trial court's ruling must not be disturbed if "it can be upheld on any legal theory that finds support in the evidence." Id.; see also Brookshire Bros., 198 S.W.3d at 387 (where trial court enters no written findings, mandamus court must uphold trial court on any legal theory finding support in evidence).²

B. The Order Denying Severance

The trial court's order denying Liu's severance motion succinctly stated:

On the 30th day of March, 2009, came on to be heard Defendant Edward Liu, M.D.'s Motion To Transfer Venue, Alternatively, Motion to Dismiss and Alternatively, Motion To Sever. After reviewing the pleadings and responses, including letter briefs subsequently submitted to the court, the Court is of the opinion that the motion to Transfer Venue, Alternatively, Motion to Dismiss and Alternatively, Motion to Sever is Denied in all parts.

C. Standard for Severance

Severance divides a lawsuit into two or more separate and independent causes of action. 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 838. Causes of action that have been severed from each other into independent lawsuits will be heard by different juries. See Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996).

"Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court." In re Foremost Ins. Co., 966 S.W.2d 770, 771 (Tex.App.-Corpus Christi 1998, orig. proceeding) (quoting Guar. Fed. Sav. Bank, 793 S.W.2d at 658; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588, 591 (1955); and referencing TEX.R. CIV. P. 41). "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." Id. (quoting Guar. Fed. Sav. Bank, 793 S.W.2d at 658); see also Akin, 927 S.W.2d at 628. "The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience." Id. (quoting 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. See generally Guar. Fed. Sav. Bank, 793 S.W.2d at 658-59. When 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. Jones v. Ray, 886 S.W.2d 817, 820 (Tex.App.-Houston [1st Dist.] 1994, orig. proceeding). "The controlling reasons for a severance are to do justice, avoid prejudice and further convenience." Guar. Fed. Sav. Bank, 793 S.W.2d at 658 (citing St. Paul Ins. Co. v. McPeak, 641 S.W.2d 284 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.)). 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. 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.

D. Woods's Pleadings

According to her second amended petition, Woods was involved in a two-vehicle automobile accident on Interstate 20 (I-20) in Harrison County, Texas. The accident occurred on January 28, 2006, at approximately 12:40 p.m. According to those pleadings, Carl Shallies Parker (when driving while intoxicated) was proceeding westerly on I-20, crossed over the grass median separating the lanes, and struck the vehicle in which Woods was a passenger in a head-on collision. Woods was injured in the collision and required medical attention. Woods was transported to Good Shepherd Medical Center in nearby Longview, Gregg County, Texas, where her condition was stabilized. After Woods's condition was stabilized, Liu performed orthopedic surgery on her "to repair the most serious of [her] injuries: the comminuted fracture of [her] left humerus." Liu allegedly failed to fully connect the surgically repaired bone to a rod placed in Woods's arm using one or more screws. According to Woods's second amended petition, "This failure to secure the distal end of the rod/pin constituted negligence on the part of Defendant LIU."

Woods sued several people: Parker (the alleged intoxicated driver who caused the accident), Liu, Dr. Jerry Keaton, Dr. Alan Glowczwski, and two insurance companies. Woods asserted various theories of liability against the several defendants, including negligence, negligence per se, and gross negligence against Parker; negligence and breach of duty of care (within the context of providing medical services and treatment) against Liu, Keaton, and Glowczwski; and breach of contract against the insurance companies. Woods also alleged, "[The] acts and/or omissions of Defendant LIU, in combination with the acts and/or omissions of Defendants PARKER, GLOWCZWSKI, and KEATON, caused Plaintiff's fractured humerus to heal improperly resulting in a non-union...