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

Opinion

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

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

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.