in Re Guillermo R. Pechero, M.D. and Ruben D. Pechero, M.D.

• Court: Court of Appeals of Texas
• Decided: December 18, 2012
• Docket: 13-12-00732-CV
• Status: Published

Opinion

NUMBER 13-12-00732-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE GUILLERMO R. PECHERO, M.D. AND RUBEN D. PECHERO, M.D.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela Memorandum Opinion Per Curiam1

Guillermo R. Pechero, M.D. and Ruben D. Pechero, M.D., filed a petition for writ

of mandamus in the above cause on December 3, 2012, seeking relief from an order

severing their counterclaims against the real party in interest, Agustin Garcia. The

Court requested and received a response to the petition for writ of mandamus from

Garcia.

1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). Generally, mandamus relief is appropriate only when (1) there has been a clear

abuse of discretion by the trial court, and (2) there is no adequate remedy on appeal. In

re Olshan Found. Repair, 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding). The

relator has the burden of establishing both prerequisites to mandamus relief, and this

burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding).

A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to

correctly analyze or apply the law. See In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding). We assess the adequacy of an appellate

remedy by “balancing the benefits of mandamus review against the detriments.” In re

Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2007) (orig. proceeding). In performing

this balancing, we look at a number of factors, among them “whether mandamus will

spare litigants and the public ‘the time and money utterly wasted enduring eventual

reversal of improperly conducted proceedings.’“ Id. (quoting In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)).

Courts permit severance principally to avoid prejudice, do justice, and increase

convenience. In re State, 355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding); F.F.P.

Operating Partners v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007). A claim may be

severed if: (1) the controversy must involve multiple causes of action, (2) the severed

claim would be the proper subject of a lawsuit if independently asserted, and (3) the

severed claim must not be so interwoven with the remaining action that they involve the

same facts and issues. In re State, 355 S.W.3d at 614; Guaranty Fed. Savs. Bank. v.

2 Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); see also TEX. R. CIV. P.

41. A trial court possesses broad discretion in deciding whether to sever causes of

action. Black v. Smith, 956 S.W.2d 72, 75 (Tex. App.—Houston [14th Dist.] 1997, orig.

proceeding). A trial court abuses its discretion if it fails to order a severance “[w]hen all

of the facts and circumstances of the case unquestionably require a separate trial to

prevent manifest injustice, and there is no fact or circumstance supporting or tending to

support a contrary conclusion, and the legal rights of the parties will not be prejudiced

thereby, there is no room for the exercise of discretion.” Womack v. Berry, 156 Tex. 44,

291 S.W.2d 677, 683 (1956) (orig. proceeding).

The Court, having examined and fully considered the petition for writ of

mandamus and the response thereto under the applicable standard of review, is of the

opinion that relators have not shown themselves entitled to the relief sought.

Accordingly, the stay previously imposed by this Court is LIFTED. See TEX. R. APP. P.

52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective

until the case is finally decided.”). The petition for writ of mandamus is DENIED. See

id. R. 52.8(a).

PER CURIAM

Delivered and filed the 18th day of December, 2012.