in Re: Ferrer & Poirot, G.P., D/B/A Ferrer, Poirot & Wansbrough, Feller Daniel Abney ( 2018 )

DENY; and Opinion Filed February 23, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01233-CV
IN RE FERRER & POIROT, G.P., D/B/A FERRER, POIROT & WANSBROUGH,
FELLER DANIEL ABNEY, Relator
Original Proceeding from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-01828
MEMORANDUM OPINION
Before Justices Lang, Brown, and Stoddart
Opinion by Justice Brown
The underlying proceeding is a dispute between law firms regarding case referral fees in
products liability cases related to two drugs: Avandia and Seroquel. Relator is the plaintiff in the
underlying case. Relator brought suit against the real parties in interest alleging they refused to
return referral fees on Avandia cases that were mistakenly paid to them and were owed to a
different law firm. The real parties in interest filed counterclaims for breach of contract and unjust
enrichment/restitution/constructive trust, and money had and received alleging that relator failed
to pay agreed referral fees to them for Avandia and Seroquel case referrals. Relator moved to
sever the counterclaims, and the trial court denied the motion. In this original proceeding, relators
seek a writ directing the trial court to vacate the order denying the motion to sever and to grant the
severance.
Applicable Law
To be entitled to mandamus relief, a relator must show both that the trial court has clearly
abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court has broad discretion in the
matter of severance and consolidation of causes. McGuire v. Commercial Union Ins. Co., 431
S.W.2d 347 (Tex. 1968); TEX. R. CIV. P. 41 (“[a]ny claim against a party may be severed and
proceeded with separately”). A claim is properly severable if (1) the controversy involves more
than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit
if independently asserted, and (3) the severed claim is not so interwoven with the remaining action
that they involve the same facts and issues. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co.,
793 S.W.2d 652, 658 (Tex. 1990); Lusk v. Puryear, 896 S.W.2d 377, 379 (Tex. App.—Amarillo
1995, orig. proceeding). “The controlling reasons for a severance are to do justice, avoid prejudice
and further convenience.” Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
658 (Tex. 1990).
Discussion
Relator’s claims and the real parties’ counterclaims involve referral fees allegedly owed
between them regarding Avandia litigation and Seroquel litigation. Although relator insists its
claims sound in tort and the counterclaims sound in contract, the mandamus record establishes that
the factual basis for the claims and counterclaims arise from the Seroquel and Avandia referral
arrangement between relator and the real parties in interest. Further, the real parties in interest
presented evidence showing that the claims and counterclaims are interwoven because both seek
payment for referral fees, the fees related to the Avandia litigation are part of both, calculation of
damages could include offsets from fees in the opposite drug litigation, and relator’s damages may
be completely cancelled out by amounts relator purportedly owes the real parties in interest.
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Based on the record before us, we conclude relator has not shown the trial court abused its
discretion and has not shown relator is entitled to the relief requested. Accordingly, we deny
relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the
petition if the court determines relator is not entitled to the relief sought).
/Ada Brown/
ADA BROWN
JUSTICE
171233F.P05
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