in Re Ronald Alsbrooks ( 2014 )

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
1
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.
2
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
3
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.
4