Union City Body Co., Inc. v. Ramirez

911 S.W.2d 196, 1995 Tex. App. LEXIS 2743, 1995 WL 654423

• Court: Court of Appeals of Texas
• Decided: November 3, 1995
• Docket: 04-95-00715-CV
• Status: Published

Opinions

ON RELATOR’S PETITION FOR WRIT OF MANDAMUS

CHAPA, Chief Justice.

Relator, Union City Body Co., Inc. (Union City), brings this petition for writ of mandamus against respondent, the Honorable Mario Ramirez, a visiting judge from the 229th Judicial District Court of Starr County, Texas. For the following reasons, we conclude the writ must be denied.

Background

This case arises from an automobile accident which occurred in Starr County on June 12, 1990. Plaintiff Ranee Bighorse was driving a van that had been manufactured by defendant/relator Union City Body Co. and owned by the United Parcel Service. The van was allegedly sideswiped by another vehicle and forced off of the road. Ranee Bighorse suffered disabling injuries which left him paralyzed.

Bighorse and his wife, Linda, sued Union City, Movac, General Motors Corporation (GM), the Freedman Seating Co., Thompson Ramo Wordridge, a/k/a TRW, Inc. (TRW), and Starr County. Liberty Mutual Fire Insurance Company was the workers’ compensation carrier for Bighorse’s employer and filed a claim in the lawsuit as a plaintiff/inter-venor. Union City filed cross- and third-party actions for contribution and indemnity against GM, Freedman, TRW, Movac, and Starr County.

On September 18,1995, the case was called for trial and the plaintiffs announced ready. Counsel for Union City stated there were some pretrial motions that needed to be heard. Plaintiffs explained that their ninth amended petition asserted claims against only two of the original defendants — Movac and Union City.

Counsel for GM urged special exceptions to Union City’s cross action. General Motors wanted to know specifically which component parts Union City alleged to be defective. Union City said it would amend its pleadings. The trial court offered Union City the opportunity to amend orally.¹

General Motors also complained that Union City failed to incorporate the plaintiffs’ allegations in its cross action and had produced no expert opinion regarding any defect in the part of the vehicle manufactured by GM. Union City responded that .it expected the plaintiffs to produce evidence regarding the steering column, and that the plaintiffs’ expert had previously stated that construction of the steering column was a cause of injury. Plaintiffs, however, said those claims had been nonsuited, and that the deposition testimony to which Union City alluded would be inadmissible.

Counsel for TRW then joined in GM’s special exceptions, emphasizing that Union City sought only contribution and indemnity, which required attributing a percentage of causation to each one of the cross defendants. TRW noted that it sold both two-point and three-point belt systems. It argued that the plaintiffs sought damages based on Union City’s choice of a two point belt system, not that the system was defective per se.

Freedman Seating Company reiterated GM’s argument that Union City’s cross claims failed to incorporate by reference any of the plaintiffs’ allegations. Counsel for the Wise Company joined in this argument.

General Motors recapped the arguments, claiming again that Union City’s cross actions failed to incorporate any of the plaintiffs’ pleadings or make any claims of then-own. The plaintiffs argued that discovery had revealed that defendants Movac and Union City were the culpable parties and that all claims against them belonged in the same suit.

The trial court then announced that it was granting all of the special exceptions and severing the cross claims: “This is the ruling of the court: special exceptions aire all sustained. And I’m going to grant severance as to everybody except for Union Body and Movac. That’s what we’re going to try today.” After the court clarified the style of the case to read Bighorse v. Union Body and Movac, counsel for Union City stated: “I understand that all special exceptions have been sustained so all cross claims are being severed at this time; it that my understand-mg?” The court responded, “That’s correct.” When counsel for Union City added, “Against all cross defendants,” the court responded, “We’ll come back and try it again if we have to.”

The court asked the remaining parties— the plaintiffs, Union City, Movac — to meet in chambers. Following an off-the-record discussion, the court held a hearing on a motion filed by Union City to disqualify one of the plaintiffs’ experts. The court then recessed, to be reconvened at 9:00 a.m. the next morning.

Counsel for Union City arrived at 9:40 the next morning — September 19, 1995. Union City urged a motion to reconsider the severance order. The trial court denied the motion, reminding counsel the case had been set for 9 o’clock and that “Lot’s of this stuff is waived, you know. Do you have anything else[?]”

Union City then applied to this court for a writ of mandamus and temporary emergency relief. On September 20, 1995, we issued a stay of all proceedings in the case pending our determination of the merits.

Discussion

Introduction

We can issue a writ of mandamus only if the record establishes there was (1) a clear abuse of discretion and (2) that there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 883, 889-40 (Tex.1992) (orig. proceeding); El Centro del Barrio, Inc. v. Barlow, 894 S.W.2d 775, 778 (Tex.App.—San Antonio 1994, orig. proceeding).

Rule 41 of the Texas Rules of Civil Procedure provides in part:

[A]ctions which have been improperly joined may be severed and each ground of recovery improperly joined may be docketed as a separate suit between the same parties, by order of the court on motion of any party or on its own initiative at any stage of the action that, before the time of submission to the jury or to the court if trial is without a jury, on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Tex.R.CivP. 41 (emphasis added).

In Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990), the Texas Supreme Court emphasized that a trial court has broad discretion regarding the severance and consolidation of cases:

Rule 41 of the Texas Rule of Civil Procedure grants the trial court broad discretion in the matter of severance and consolidation of causes. The trial court’s decision to grant a severance will not be reversed unless it has abused its discretion. 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. The controlling reasons for a severance are to do justice, avoid prejudice and further convenience.

Id. (citations omitted).

It is important to remember that our task in a mandamus proceeding is not to review the trial judge’s decision de novo, but to determine whether he clearly abused his discretion in reaching his decision. “A trial court clearly abuses its discretion if ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’ ” Walker, 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)). “The relator must establish that the trial court could reasonably have reached only one decision.” Id. at 840. See also Johnson, 700 S.W.2d at 917. It is not sufficient that the reviewing court would have reached a contrary decision unless the trial court’s decision is shown to have been arbitrary and unreasonable. Id.

The question in this case is whether the trial court clearly abused its discretion when it ordered the cross claims severed from the underlying lawsuit and tried separately. For the following reasons, we conclude it did not.

Waiver

Several of the real parties argue that Union City waived any complaint it may have had regarding the severance by waiting until the morning after the hearing to object, i.e., file the motion for reconsideration.

During oral argument, Union City responded that it was not served with a copy of the motion for severance, the plaintiffs’ ninth amended petition, or the special exceptions, until the morning of the hearing; moreover, that the motion to sever was never set for a hearing. Counsel for Union City maintained that he came to court on the morning of September 18, 1995, prepared to argue a pretrial motion, only to find the plaintiffs were dismissing their claims against all but two of the defendants — Movac and Union City — and that the plaintiffs had filed a motion to sever the cross- and third-party claims from the underlying lawsuit.² Union City maintains that, given the circumstances, a timely objection was impossible.

Our record corroborates some of Union City’s factual account, but the picture is still far from complete. For example, we have certified copies of the plaintiffs’ ninth amended petition, the motion to sever, and the special exceptions filed by Freedman Seating Company and GM. All of these documents were file-marked on September 18, 1995.³ The certificate of service on the ninth amended petition indicates that a copy was hand-delivered to Union City’s lead counsel on September 18, 1995. The certificate of service on the motion to sever, however, is undated; there is no request for a setting. Moreover, the special exceptions filed by Freedman Seating Company and GM, which are handwritten, contain no certificate of service.

There is no question that the spirit, if not the letter, of the Texas Rules of Civil Procedure requires motions of any kind to be in writing and contain a certificate of counsel that a copy was either mailed or delivered to opposing counsel. See Tex R.Civ.P. 21, 21a; see also City of Houston v. Sam P. Wallace And Co., 585 S.W.2d 669, 673 (Tex.1979). Rule 21 provides in part:

An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon the adverse party not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.

Tex.R.Civ.P. 21. Rule 21a requires that any motion submitted to the court be delivered upon the opposing counsel either in person or by certified mail. Tex.R.Civ.P. 21a. Indeed, if a party does not serve or deliver to other parties copies of pleadings, motions, or other papers as required by Rules 21 and 21a, the court can impose sanctions. See Tex. R.Civ.P. 21b; Johnson v. Smith, 857 S.W.2d 612, 617 (Tex.App.—Houston [1st Dist.] 1993, orig. proceeding); Ogunboyejo v. Prudential Property & Casualty Co., 844 S„W.2d 860, 862 (Tex.App.—Texarkana 1992, writ denied).

Nor is there any question that failing to serve motions or pleadings in the manner prescribed by rules 21 and 21a violates accepted and customary rules of practice, if not rules of procedure. See, e.g., Texas Lawyer’s Creed — A Mandate for Professionalism III, 7 (“I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.”). We do not invite or encourage attorneys to surprise one another with an onslaught of last-minute motions, pleadings or briefs, perhaps aimed at some pretrial tactical advantage. To do so puts opposing counsel, not to mention the trial court, in a precarious position.

The question, however, is not just whether pleadings or motions were properly served on opposing counsel or whether those motions were set for a hearing, but whether Union City waived these and other errors by failing to promptly bring them to the attention of the trial court. Rule 52 of the rules of appellate procedure provides:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the trial court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion.

Tex.R.App.P. 52(a); see also Tex.R.Civ.Evid. 103(a)(1) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.”). Moreover, a complaint of inadequate notice under rules 21 or 21a is waived absent a timely and specific objection. See Prade v. Helm, 725 S.W.2d 525,526 (Tex.App.—Dallas 1987, no writ); Ex parte Fernandez, 645 S.W.2d 636, 638 (Tex.App.—El Paso 1983, orig. proceeding). Even in a summary judgment context, an allegation that a party received less than the required notice under Rule 166a can be waived unless it is promptly brought to the attention of the trial court.

See Jones v. Jones, 888 S.W.2d 858, 859 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Negrini v. Beale, 822 S.W.2d 822, 823 (Tex.App.—Houston [14th Dist.] 1992, no writ).

The only case to recently interpret the word “timely” in the context of Rule 52(a) is Beall v. Ditmore, 867 S.W.2d 791 (Tex. App.—El Paso 1993, writ denied), a ease cited by the relator. The court noted, albeit in a different context:

While neither this court nor any other Texas Court has precisely defined the word “timely” in the Rule 52(a) context, it is clear from a simple reading of Texas law, that objections, in order to be considered timely, must be specific enough to enable the trial court to understand the precise nature of the error alleged and interposed at such a point in the proceedings so as to enable the trial court to understand the error alleged, if any. ‘Timeliness’ defies definition and generally the question of what is timely or otherwise must be left to the sound discretion of the trial judge, but such objection need not be immediate.

Id. at 795. (emphasis added).

Citing Beall, Union City argues that its objection need not have been immediate in order to preserve error. No doubt this is true, as a general proposition. The problem, however, is that immediacy is a concept that is almost as difficult to define as “timeliness,” a word the Beall court noted “defies definition.” Id. Nor does relator’s brief offers us much guidance in this area. In the end, we are left with the Beall court’s observation that what is timely must generally be left to the trial judge’s sound discretion. Id.

Here, Union City’s counsel was certainly under a duty to make a timely objection — if not to the severance itself, then at least to the fact that the motion appears to have been served on counsel that morning or that it was not set for a hearing. Union City, however, neither objected nor asked for a continuance. Although it made numerous attempts to respond to the non-suited defendants’ special exceptions, Union City never once addressed the severance motion, nor did it raise the issue of notice. Indeed, counsel’s only reaction to the decision to sever the cross claims was to ask: “I understand that all special exceptions have been sustained so all cross claims are being severed at this time; it that my understanding?” There was, however, no objection. Following an off-the-record discussion in chambers, the court turned its attention to some evidentiary matters. Co-counsel later added, ‘Tour Honor, let’s go ahead and begin.” Union City then participated in a lengthy evidentiary hearing to exclude the testimony of a plaintiffs’ witness. Even then, however, there was no objection to the severance. Instead Union City waited until the following day, when jury selection was about to begin and the cross-claim defendants had long since vanished from the courtroom, to present a motion for reconsideration of the severance ruling.

Like the Beall court, we recognize that every trial counsel is burdened by the dual objectives of presenting the case and yet preserving error for appeal. Id. at 867. This is never an easy task, especially in a case like the present one. Even so, we are also mindful of the fact that a party cannot lead a trial court into error and then complain about it later on appeal. See, e.g., Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex. App.—Houston [1st Dist.] 1993, no writ). For relator’s counsel to sit through a lengthy pretrial hearing and say nothing about the order of severance until the following day, when jury selection was about to begin and the severed parties had long since been excused from the courtroom, is sufficiently dilatory for us to conclude that any error in granting the severance was waived. Given the circumstances of this case, we therefore hold that any error in severing the cross claims from the underlying litigation has been waived.

Union City, however, relies on our opinion in Johnson v. State Farm Mutual Automobile Ins., 762 S.W.2d 267 (Tex.App.—San Antonio 1988, writ denied). In that case, the appellant claimed the trial court erred in ordering separate trials of her two causes of action — negligence and breach of the duty of good faith and fair dealing. We held that the error, if any, was waived:

The record fails to reflect that an objection to the separate trials order was made by appellant. It is dear that appellant presented no objection to the trial court at the time the order for separate trials was signed. Further, at the time of the present trial on the issue of release, which occurred approximately one month later, the record shows affirmatively that appellant voiced no objection to the separate trial. Therefore, nothing is preserved for review.

Id. at 269. (emphasis added). Citing only the highlighted portion of our opinion, Union City claims that it preserved error by objecting before the order granting the separate trials was signed on September 19, 1995. Yet, our opinion in Johnson specifically noted that the appellant’s motion to sever causes and have separate trials was heard more than a month before the jury trial, and that we had no record of the hearing. Id. at 268. Thus, we could not determine from the record before us when, or if, the appellant actually objected to the ruling for separate trials. See id. As we have already noted, the present case is quite different. For this reason alone, Union City’s reliance on Johnson is therefore misplaced.⁴

Given the record in this case, we simply cannot say the trial court clearly abused its discretion. This is not to say we would have reached the same conclusion as the trial court, or that we encourage attorneys to surprise one another on the morning of trial with a flurry of eleventh-hour motions or pleadings. Whether or not we would have decided the issue differently, however, mandamus requires the relator to establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. In the present case, the record simply does not provide such clarity. We cannot disturb the trial court’s decision unless it shown to have been so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. This the relator has failed to do.

It is unnecessary for us to address whether the relator has a clear and adequate remedy at law, the remaining component of mandamus review. We hold that, given the circumstances of this case, any error in severing the cross claims from the underlying litigation has been waived. Consequently, relator has not shown there was a clear abuse of discretion. For this reason, the writ is denied.

1 . Union City responded to the trial court’s invitation by referring to some allegations in the plaintiffs' ninth amended petition regarding the dash board and the interior compartment of the vehicle. Our record does not show whether Union City orally amended its cross actions; moreover, if any amended pleadings were filed, they are not part of our record.

2 . Our record also contains an affidavit from relator’s counsel, which is cited by the dissent. The affidavit attests that neither of Union City’s attorneys were “aware of, or had an opportunity to read, the Motion For Severance filed by Plaintiffs,” prior to the court's ruling. The affidavit also states that one of the plaintiffs’ attorneys refused to give relator’s counsel a copy “of one of the Motions she alleged to have filed that morning, despite my demand that I be provided a copy.” We note, however, that the relator’s affidavit does not tell us whether counsel was refused a copy of the motion to sever, the ninth amended petition, the special exceptions, or some other document. Moreover, the assertion is controverted by an affidavit from the plaintiffs' counsel, which states that all of the motions filed by the plaintiffs were served on relator’s counsel; that relator’s counsel received not one but two copies of the motion for severance; and that plaintiffs "did not omit or refuse to give anyone, including [relator’s counsel], copies of any Motions and in fact extra copies of the Motion For Severance were given to him." Finally, there is no indication that relator’s counsel ever brought the problem to the attention of the trial judge, either during the pretrial hearings or in the motion to reconsider, prior to seeking leave to file a petition for mandamus.

3 . The file-mark on the plaintiffs' ninth amended petition indicates that it was filed at 9:30 a.m. The motion to sever appears to have been filed at 9:45 a.m. Freedman Seating Company's special exceptions were filed at 11:40 a.m. Only a portion of the file-mark on GM’s special exceptions is visible, so we cannot determine the time it was filed.

4 . Nor is the present case in any way similar to Mann v. Ramirez & Tex. Dyno Chem, Inc., 905 S.W.2d 275 (Tex.App.—San Antonio 1995, writ pending), which is cited by the dissent. Mann involved a situation where there had been irregularities in the granting and documentation of juror exemptions and excuses. It was undisputed that a close personal relationship existed between the District Clerk and an official representative of the defendant company. Our opinion specifically noted that the appellants' attorney made an inquiry at the bench regarding the small number of jurors who were summoned for voir dire. He was assured by a representative of the District Clerk’s office — in the presence of the trial judge and the attorney for the appellees— that all regulations had been followed. Given the circumstances, we concluded that a motion for mistrial filed after the verdict was returned but before entry of judgment preserved error, since appellants acted as soon as they "knew or should have known” of the irregularities.