in Re C.R. England, Inc. and Richardo Fernando Kerr ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00532-CV
____________________
IN RE C.R. ENGLAND, INC. AND RICHARDO FERNANDO KERR
_______________________________________________________ ______________
Original Proceeding
________________________________________________________ _____________
MEMORANDUM OPINION
On November 25, 2013, C.R. England, Inc. and Richardo Fernando Kerr
petitioned for mandamus and temporary relief from a December 9, 2013 trial
setting. Relators are defendants in a wrongful death suit that was removed to
federal court, dismissed and re-filed in state court, then consolidated with another
personal injury suit arising out of the same motor vehicle accident. See generally
In re C.R. England, Inc., No. 09-13-00327-CV, 2013 WL 4758224 (Tex. App.—
Beaumont Sept. 5, 2013, orig. proceeding). On September 11, 2013, the trial court
signed a docket control order that ordered new parties to be joined by September
27, 2013, ordered that discovery be concluded by November 8, 2013, and set the
1
case for trial on December 9, 2013. Relators contend the trial court abused its
discretion by ordering discovery to be completed within sixty days following the
consolidation and by denying the Relator’s motion for a continuance of a trial
setting that is within ninety days of the consolidation. Relators also contend the
trial court abused its discretion by refusing to continue the trial to allow time for
further discovery and to allow Relators to join two surviving parents as necessary
parties to the suit.
Generally, denial of a motion for continuance is an incidental trial ruling
ordinarily not reviewable by mandamus. See In re Allied Chem. Corp., 227
S.W.3d 652, 658 (Tex. 2007); Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477
(Tex. 1997). The discovery process was delayed in this case, but Relators have not
shown special circumstances that justify mandamus relief on an incidental ruling.
A person shall be joined as a party if the person claims an interest relating to
the subject of the action and is so situated that the disposition of the action in the
person’s absence may leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations
by reason of the person’s claimed interest. See Tex. R. Civ. P. 39(a). The surviving
parents are wrongful death beneficiaries. See Tex. Civ. Prac. & Rem. Code Ann. §
71.004 (West 2008). Relators contend joinder of the surviving parents is
mandatory under Rule 39. See Tex. R. Civ. P. 39. Relators argue they will be
2
prejudiced if the surviving parents are not joined as involuntary plaintiffs for
purposes of apportioning damages. See Tex. Civ. Prac. & Rem. Code Ann. §
71.010(b) (West 2008).
During the hearing on Relators’ motion, counsel for the real parties in
interest suggested that the surviving parents were not interested in joining the suit
and that he could obtain written disclaimers before the trial. The trial court denied
the motion for a continuance and instructed counsel to obtain the disclaimers. It
appears the trial court ruled only on the request for a continuance of the trial, and
the trial court has not finally determined whether an abatement or some other
action will be required to protect the parties’ rights if disclaimers of interest are not
obtained prior to trial. See Tex. R. Civ. P. 39. Under these circumstances,
Relators have not established an abuse of discretion for which an appeal will not be
an adequate remedy. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36
(Tex. 2004) (orig. proceeding). We overrule Relators’ issues and deny mandamus
and temporary relief without prejudice.
PETITION DENIED.
PER CURIAM
Submitted on December 4, 2013
Opinion Delivered December 6, 2013
Before McKeithen, C.J., Kreger and Johnson, JJ.
3