Crestway Care Center, Inc. v. Berchelmann

945 S.W.2d 872, 1997 WL 229087

• Court: Court of Appeals of Texas
• Decided: May 7, 1997
• Docket: 04-97-00070-CV
• Status: Published

Opinions

OPINION ON REAL PARTIES’ IN INTEREST MOTION FOR REHEARING EN BANC

HARDBERGER, Chief Justice.

The motion for rehearing en banc filed by the real parties in interest on March 31,1997 is granted. Our opinion and order of March 19, 1997 are withdrawn, and this opinion and order are substituted. We dismiss the petition for writ of mandamus as improvidently granted.

Facts

Relators, Crestway Care Center, Inc. d/b/a Crestway Care Center and Meritcare, Inc. (“Crestway”), were sued in two separate lawsuits for claims relating to the contraction of genital warts by Plaintiff Y, a 16-year-old minor (96-CI-08092), and Lela Sams, an 80-year-old woman (96-CI-08094). Both Plaintiff Y and Lela Sams were residents of the same wing at Crestway, a nursing home, during the same year and were diagnosed with genital warts within a few months of each other. Virtually identical pleadings and responses have been filed in both cases, joint discovery has been pursued, and the designated experts are the same in each case.

Crestway filed this action seeking mandamus relief after the Hon. David A. Berehel-mann, Jr. granted the plaintiffs’ motion to consolidate the two cases. A panel of this court conditionally granted Crestway’s writ, holding that Judge Berchelmann abused his discretion in consolidating the two cases because the consolidation “effectively stripped from the judge who will actually try the case the discretion in which to make the ruling on the admissibility of evidence of other similar acts or occurrences.”¹ A majority of the entire court disagrees with the panel’s interpretation of the law; therefore, the en banc motion for rehearing filed by the real parties in interest is granted, and the panel’s order and opinion are withdrawn.²

Discussion

“Mandamus is an extraordinary remedy, reserved for ‘manifest and urgent necessity,’ Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989), and will not issue unless relator satisfies a heavy burden of establishing ‘compelling circumstances.’” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996)(citing Tex.R.App.P. 121(a)(2)(D); Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 842 n. 9 (Tex.1992)). A trial court is given broad discretion in applying the legal principals of consolidation and deciding whether to consolidate cases. See Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 737 (Tex.App.—Houston [1st Dist.] 1992, writ denied); Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 614-15 (Tex.App.— El Paso 1992, orig. proceeding); Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836, 838 (Tex.App.—San Antonio 1987, writ ref d n.r.e.). Thus, mandamus will issue to correct an improper ruling on consolidation only where the trial court clearly fads to analyze or apply the law correctly and there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d at 839-40.

Tex.R.Civ.P. 174 permits a trial court to consolidate actions that involve a common question of law or fact. Actions should only be consolidated if they “relate to substantially the same transaction, occurrence, subject matter, or question, and they should be so related that evidence presented will be material, relevant, and admissible in each case.” Excel Corp. v. Valdez, 921 S.W.2d 444, 448 (Tex.App.—Corpus Christi 1996, orig. proceeding [leave denied]); see also Lone Star Ford, Inc., 838 S.W.2d at 737. In addition to incorrectly resolving the relatedness issue, a trial court may abuse its discretion in consolidating actions if consolidation results in prejudice to the complaining party. Lone Star Ford, Inc., 838 S.W.2d at 738. Therefore, “the trial court must balance the judicial economy and convenience that may be gained by consolidation against the risk of an unfair outcome because of prejudice or jury confusion.” Excel Corp. v. Valdez, 921 S.W.2d at 448.

Crestway argues in its brief, as it argued before the trial court, that the two pending cases involve distinct issues of causation, that the medical history of each of the plaintiffs is unique and will require differing proof and that consolidation would result in great prejudice by permitting evidence of the allegations in one case to be used as evidence in the other. The real parties in interest countered Crestway’s arguments before the trial court by asserting that the issues presented in each case are the same, that Crestway voluntarily consented to joint discovery for both cases, and that evidence of the allegations in each case would be admissible in the other case if tried separately.

At the hearing on the consolidation motion, Judge Berchelmann indicated that the problematic issue to him was whether evidence of the allegations in one case would be admissible in the other, stating:

The one question that I have is, do you agree with her that probably the evidence of one is going to come out in the case of the other?

It appears Judge Berchelmann was concerned that the judicial economy and convenience gained by consolidation might be outweighed by the potential prejudice in having the allegations in each case revealed as evidence in the other. Judge Berchelmann appeared to resolve this issue by concluding that the evidence of the allegations in each case would be admissible in the other if tried separately as follows:

But if you get up and deny, she has the opportunity to rebut. You deny that it happened or whatever way she pleads, and you put on evidence, and she has the opportunity to rebut. And one of the ways that she can rebut is by showing, Well, that’s not so, because we have another ease here. Correct? In essence, without going through all the—

We cannot conclude that Judge Ber-chelmann clearly failed to analyze or apply the law. Judge Berchelmann balanced the judicial economy and convenience that would be gained by consolidation against the risk of an unfair outcome because of prejudice or jury confusion and concluded that the potential for prejudice was minimized by the strong potential that the evidence of the allegations in each cause would be admissible as evidence in the other case. Therefore, Judge Berchelmann did not abuse his discretion.

Conclusion

The relators’ petition for writ of mandamus is dismissed as improvidently granted.

Dissenting opinion by GREEN, J., joined by DUNCAN and ANGELINI, JJ.

1 . Crestway Care Center, Inc. v. Berchelmann, No. 04-97-00070-CV, 1997 WL 120193 (Tex.App.—San Antonio March 19, 1997, orig. proceeding)(not designated for publication).

2 . En banc review of the conditional grant of a writ of mandamus involves the weighing of two extraordinary remedies against one another. Mandamus is an extraordinary remedy reserved for manifest and urgent necessity, while a rehearing en banc should not he ordered unless consideration by the full court is necessary to secure or maintain uniformity of its decisions or in extraordinary circumstances. Because a majority of the court disagrees with the panel's interpretation of the law and its decision to issue the extraordinary remedy of mandamus, a majority of the court voted to grant the en banc motion for rehearing.