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

• Court: Court of Appeals of Texas
• Decided: February 23, 2018
• Docket: 05-17-01233-CV
• Status: Published

Opinion

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.

–2– 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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