Messmer v. State Farm County Mut. Ins. Co. of Texas

• Decision Date: 09 April 1998
• Docket Number: No. 13-96-276-CV,13-96-276-CV
• Citation: 972 S.W.2d 774
• Parties: Sherry MESSMER, Appellant, v. STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 774

972 S.W.2d 774

Sherry MESSMER, Appellant, v. STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS, Appellee.

No. 13-96-276-CV.

Court of Appeals of Texas,

Corpus Christi.

April 9, 1998.

R.W. Armstrong, R.W. Armstrong & Associates, Brownsville, for appellant.

Roger W. Hughes, Craig H. Vittitoe, Adams & Graham, Harlingen, for appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr., and CHAVEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellant, Sherry Messmer, sued appellee, State Farm County Mutual Insurance Co. of Texas, for breach of contract and bad faith for refusing to settle an uninsured/underinsured motorist policy claim. Messmer subsequently moved to non-suit her uninsured/underinsured motorist contract claim. The trial court granted the non-suit and dismissed, without prejudice, Messmer's contractual and extracontractual claim for bad faith. By a single point of error, Messmer contends the trial court abused its discretion by dismissing her bad faith claim because it had been previously severed. We affirm.

In 1992, Messmer purchased an uninsured/underinsured motorist insurance policy from State Farm. In 1993, Messmer was involved in a traffic accident with an uninsured motorist. In July 1994, Messmer sued State Farm because State Farm allegedly delayed settling Messmer's claim. On September 20, 1994, the trial court signed an order which "severed" the extracontractual claim for bad faith from the uninsured/underinsured motorist contract claim "for purposes of trial; such that the [contract] claim will go to trial initially." No separate cause number was created for the bad faith claim.

By agreement of the parties, the case was set for trial on April 3, 1995. On March 29, 1995, Messmer moved for, and was granted, a continuance to depose an expert, and the trial was reset for May 22, 1995. On May 22nd, the parties appeared and announced ready. However, the court did not reach the case, and it was continued until September 14, 1995. On September 14th, Messmer again moved for a continuance, claiming she needed to undergo additional medical tests. The motion was granted over State Farm's objections, and the case was reset for April 8, 1996.

On April 8th, Messmer's counsel appeared for trial and requested another continuance. Counsel informed the trial court that he was set for trial in another court, that the other case was first on the docket, and that the other case was unlikely to settle. The trial court put the matter on hold for one hour to allow counsel to appear in the other court. Counsel later returned and announced that the other case had settled after all. Reluctantly, counsel announced "ready." Both parties agreed and advised the trial court that the trial would last one day. A jury was selected and evidence concerning the contract claim only was scheduled to begin the next morning.

On the morning of April 9th, Messmer announced her desire to non-suit her contract claim. The trial judge informed Messmer that claims cannot be selectively non-suited. Either there would be no non-suit, or the entire case would be dismissed. Messmer insisted on non-suiting one of her two claims. The trial judge then dismissed the entire case, without prejudice, and this appeal followed.

By her sole point of error, Messmer contends the trial court's order of September 20, 1994, severed and abated her bad faith claim, thus creating two separate suits. Messmer argues that voluntarily dismissing her contract claim should not have resulted in the dismissal of her bad faith claim.

State Farm contends that the trial court's order separated Messmer's causes of actions for trial but did not effect a severance. Thus, State Farm argues, when Messmer moved for a non-suit, the trial court properly dismissed all of her claims.

The trial court's order of September 20, 1994, states as follows:

On this day came the Court after hearing and in consideration of the motion for severance and abatement filed by Defendant, STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS. The Court finds the motion to be meritorious.

Accordingly, IT IS HEREBY ORDERED, ADJUDGED and DECREED by the Court that Plaintiff's claims and causes of action seeking extracontractual recovery for breach of the implied covenant of good faith and fair dealing (as opposed to the uninsured/underinsured motorist contract claim) is hereby severed from the uninsured/underinsured motorist claim for purposes of trial; such that the uninsured/underinsured motorist claim will go to trial initially.

Additionally, it is ORDERED by the court that discovery shall continue as to all claims before the court with the parties protected by the appropriate objections that the Court may address as necessary.

Messmer's counsel informed the trial court that he interpreted this order as severing the extracontractual bad faith claim from the contract claim. The trial judge, however, stated that he had not ordered a severance, but a division of the claims for separate trials. The order was intended to divide the causes of action because the outcome of the contract claim would bear on the bad faith claim, possibly disposing of it entirely. The trial judge noted that separate cause numbers had not been ordered. He also warned Messmer,

[T]here is [sic] not any provisions to non-suit a part of the case, and ... if you move for non-suit, I am going to throw the whole case out.... This is simply a division of causes where one sort of builds on the other, and ruling one way disposes of the others, and ruling the other way makes the other one viable.... We are not going to have a pending case.

Messmer acknowledged understanding the trial court's rationale but persisted in demanding a non-suit. The trial court granted the non-suit and dismissed both the contractual and extracontractual claims. The Order Sustaining Non-suit was signed on April 15, 1996.

Messmer argues that, in spite of the trial court's clarification of its September 20, 1994 order, the order is clearly one for severance and abatement of the extracontractual cause of action and creates two independent suits; it does not merely order separate trials of the causes of action. Because there is no basis in statute or common law for a judge to implicitly rescind a severance order or reconsolidate severed cases before ruling on a motion for non-suit in one action, Messmer contends the trial judge abused his discretion by doing so.

We will first examine the trial court's September 20, 1994 order and determine whether it is an order for severance or an order for separate trials.

Rule 41 governs severance of causes. TEX.R. CIV. P. 41. Rule 174 provides for dividing causes of action for separate trials. TEX.R. CIV. P. 174(b). The language of each rule is permissive, not mandatory. See TEX.R. CIV. P. 41, 174(b) (both using permissive "may" rather than mandatory "shall"); see also Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956) (orig.proceeding) (defining "may" as permissive word). A trial court has broad discretion to grant or refuse motions for severance or separate trial. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990); Womack, 291 S.W.2d at 683 (court's action on request for separate trial will not be disturbed absent an abuse of discretion); Allstate Ins. Co. v. Hunter, 865 S.W.2d 189, 194 (Tex.App.--Corpus Christi 1993, no writ) (affirming trial court's refusal to sever claims as defendant could not prove need for severance).

Because the record does not contain State Farm's Motion for Severance and Abatement, we cannot determine whether State Farm actually sought a severance or separate trials. It is the substance of the motion that determines the nature of the pleading, not the title given to it. State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980); see TEX.R. CIV. P. 71; City of Austin v. Hall, 446 S.W.2d 330, 343 (Tex.Civ.App.--Austin 1969) (Hughes, J., concurring) (pointing out body of appellee's motion invoked Rule 174(b) and expressly sought separate trials), dism'd per curiam, 450 S.W.2d 836 (Tex.1970). We cannot, therefore, regard the order's reference to the title of State Farm's motion as a guide to the meaning of the order's language, other than to note that the record contains no objections by State Farm to the trial court's order. We presume State Farm was satisfied with it.

The use of the word "sever" is not dispositive because the terms "sever" and "separate" are commonly confused. Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex.1970); Kansas Univ. Endowment Ass'n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (Tex.1961) . We note that the claims were severed "for purposes of trial" and that the contract claim would be heard first. The "for purposes of trial" language and order of hearing strongly suggest that the trial court wanted to hear the causes of action in separate trials and not as independent suits.

We also note that the order does not abate the extracontractual claim. An abatement is a present suspension of all proceedings in a suit. See Lumbermens Mut. Cas. Co. v. Garza, 777 S.W.2d 198, 199 (Tex.App.--Corpus Christi 1989, orig. proceeding). Abatement of an action prohibits the court and the parties from proceeding in any manner until the case has been ordered reinstated. See id.

The trial court's September 20, 1994 order did not suspend all proceedings in the suit. The parties were ordered to continue discovery on all claims. ¹ At the time of the order, only the contract claim and the bad faith claim were before the court, so the mandate to continue discovery on both causes further supports an interpretation that the court ordered separate trials, not severance. See U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673 (Tex.App.--Houston [1st Dist.] 1993, no writ) (abatement of bad faith claims must necessarily accompany severance of those claims from the contract claim, otherwise parties will be put to effort and expense...