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Date: 01-04-2021
Case Style:
In re Misty Stutsman
Case Number: 06-20-00072-CV
Judge: Ralph K. Burgess
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
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Description:
Texarkana, Texas - Criminal defense attorney represented Misty Stutsman with seeking mandamus relief from the trial court’s severance order that severed her claims against two alleged tortfeasors.
On December 17, 2018, Stutsman was involved in an automobile accident in which
Bruno Otto Schueler rear-ended her vehicle. Then, on December 28, 2018, Stutsman was
involved in a second automobile accident in which Cameron J. Peoples rear-ended her vehicle.
As a result of the two collisions, Stutsman filed a lawsuit against Schueler and Peoples. Peoples
filed a motion to sever, joined by Schueler, alleging that the claims against them were misjoined
under Rule 41 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 41.
Following a hearing, the trial court severed Stutsman’s claims against Schueler and
Peoples. This original proceeding followed.
II. Standard of Review
“Mandamus is the appropriate avenue by which a party may seek review of a trial court’s
order regarding severance.” In re Liu, 290 S.W.3d 515, 518 (Tex. App.—Texarkana, orig.
proceeding) (citing In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 650 & n.12 (Tex.
App.—El Paso 1999, orig. proceeding)). Mandamus will issue to correct a clear abuse of
discretion where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). “A trial court abuses its discretion if ‘it reaches a
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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.” In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005) (per curiam) (orig. proceeding) (quoting Walker, 827 S.W.2d at
839). To satisfy this standard, the relator must show “that the trial court could reasonably have
reached only one decision.” Walker, 827 S.W.2d at 840.
“The mere fact that a trial court may decide a matter within its discretionary authority in a
different manner than an appellate court in a similar circumstance does not demonstrate that an
abuse of discretion has occurred.” Liu, 290 S.W.3d at 518 (quoting Adams v. Baxter Healthcare
Corp., 998 S.W.2d 349, 356 (Tex. App.—Austin 1999, no pet.) (“conducting review of
severance order”)). And, when the trial court’s severance ruling falls “within the wide zone of
reasonable agreement, the appellate court reviewing that decision within the context of a
mandamus proceeding should not conclude the lower court abused its discretion.” Id. at 520.
Finally, where, as here, the trial court does not make findings of fact or conclusions of law, the
trial court’s ruling will not be disturbed if “it can be upheld on any legal theory that finds support
in the evidence.” Id. at 519 (quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per
curiam)); see In re Brookshire Bros., Ltd., 198 S.W.3d 381, 387 (Tex. App.—Texarkana 2006,
orig. proceeding) (absent written findings by trial court, mandamus court must uphold trial court
ruling on any legal theory finding support in evidence).
III. Analysis
“A severance splits a single suit into two or more independent actions, each action
resulting in an appealable final judgment.” Van Dyke v. Boswell, O’Toole, Davis & Pickering,
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697 S.W.2d 381, 383 (Tex. 1985). “Severance of claims under the Texas Rules of Civil
Procedure rests within the sound discretion of the trial court.”1
Liberty Nat’l Fire Ins. Co. v.
Akin, 927 S.W.2d 627, 629 (Tex. 1996) (orig. proceeding) (citing Guar. Fed. Sav. Bank v.
Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990)). A trial court properly exercises its
discretion to sever when “(1) the controversy involves more than one cause of action; (2) the
severed claim is one that could be asserted independently in a separate lawsuit; and (3) the
severed actions are not so interwoven with the other claims that they involve the same facts and
issues.” Id. “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).
“The issue of whether a trial court should or should not grant a severance motion is
ultimately a question of law.” Liu, 290 S.W.3d at 520 (citing Guar. Fed. Sav. Bank, 793 S.W.2d
at 658–59). In making this determination, “the trial court must generally accept the plaintiff’s
pleadings as true and then determine whether severance is appropriate.” Id. (citing Jones v. Ray,
886 S.W.2d 817, 820 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding) (“trial court
1Rule 40 of the Texas Rules of Civil Procedure provides for permissive joinder and states, in pertinent part:
All persons may be joined in one action as defendants if there is asserted against them jointly,
severally, or in the alternative any right to relief in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of law or fact
common to all of them will arise in the action.
TEX. R. CIV. P. 40(a). Rule 41 of the Texas Rules of Civil Procedure addresses misjoinder and states, in pertinent
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, 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. CIV. P. 41.
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should look exclusively to the live pleadings on file in determining whether to effect a
severance”)). Our analysis necessarily begins with the examination of Stutsman’s pleadings.
Stutsman’s complaint alleged that her vehicle was rear-ended by Schueler on
December 17, 2018, and was rear-ended a second time by Peoples on December 28, 2018. The
allegations of negligence with respect to each defendant are identical. Stutsman sought to
recover damages for her medical expenses, loss of earning/earning capacity, physical pain and
mental anguish, and physical impairment, “all of which damages Plaintiff incurred by reason of
bodily injuries sustained in two (2) motor vehicle crashes which occurred in Longview, Gregg
County, Texas.” Stutsman then alleged,
By reason of the force and violence of the two (2) crashes Plaintiff has sustained
bodily injuries which are inseparable in that the injuries were to the same area of
Plaintiff’s body. Under the doctrine of inseparable injury announced by the Texas
Supreme Court in Landers v. East Texas Salt Water Disposal,
[2] Plaintiff would
show that Defendants should be held jointly and severally liable for all injuries
and damages sustained by Plaintiff in an amount within the jurisdictional limits of
this Court, for which sums Plaintiff now sues.
Stutsman’s response to the motion to sever indicates that, following the initial accident,
Stutsman reported to the emergency department complaining of pain across the chest, neck pain,
and right elbow pain. Two days later, Stutsman received chiropractic treatment by Gary Lipkin,
D.C., where she complained of neck and upper back pain, bilateral paresthesia in her upper
extremities, headaches, and stiffness in her lower back. She continued treatment for those
complaints on December 20–21, December 26, and December 28. The record further indicates
that, when Stutsman next visited Lipkin on January 7, 2019, she explained that her symptoms
2Landers v. E. Tex. Salt Water Disposal Co., et al., 248 S.W.2d 731 (Tex. 1952).
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had increased following the December 28 rear-end collision. Lipkin’s medical narrative
indicated that Stutsman was “maintained under active medical care for her first accident
from 12-19-2018 until 12-28-2018. The treatment dates from 1-7-2019 until 2-19-2019 were
for treatment of her neck and back injuries with a combined causation of the first and
second crash.”
This controversy involves more than one cause of action—defined as a “plaintiff’s
primary right to relief and the defendant’s act or omission that violates that right.” Jones v. Ray,
886 S.W.2d 817, 821 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding). Having been
involved in two automobile accidents on different dates with different drivers, Stutsman is
clearly entitled to bring a separate cause of action for injuries she sustained in each accident. But
the severed cases must not be so “interwoven” that they involve the “same facts and issues.” See
Guar. Fed. Sav. Bank, 793 S.W.2d at 658.
In reliance on Landers, Stutsman argues that her damage claims are interrelated because
the two accidents combined to cause inseparable injuries. In the Landers case, Landers sued two
defendants, seeking a joint and several judgment for damages. Landers, 248 S.W.2d at 731.
Landers’s petition alleged that, “on or about April 1, 1949,” East Texas Salt Water Disposal
Company’s pipe line broke and “negligently permitted some 10,000 to 15,000 barrels of salt
water to escape from the line and to flow over [his] land and into his lake, killing his fish and
otherwise injuring and damaging him.” Id. at 732. Landers further alleged that, on the same
day, a pipeline carrying oil and salt water owned by Sun Oil Company “broke and the defendant
Sun Oil Company negligently permitted large quantities of oil and salt water to escape and run
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. . . into plaintiff’s lake, killing his fish and otherwise injuring and damaging him.” Id. The
Texas Supreme Court held that those allegations were sufficient to assert joint and several
liability:
Where the tortious acts of two or more wrongdoers join to produce an indivisible
injury, that is, an injury which from its nature cannot be apportioned with
reasonable certainty to the individual wrongdoers, all of the wrongdoers will be
held jointly and severally liable for the entire damages and the injured party may
proceed to judgment against any one separately or against all in one suit.
Id. at 734.3
In reaching this conclusion, the court overruled Sun Oil Co. v. Robicheaux, 23 S.W.2d
713 (Tex. Com. App. 1930), which held that “an action at law for damages for torts cannot be
maintained against several defendants jointly, when each acted independently of the others and
there was no concert or unity of design between them.” Id. at 715. It reasoned that this rule,
strictly followed, has made it impossible for a plaintiff, though gravely injured, to
secure relief in the nature of damages through a joint and several judgment by
joining in one suit as defendants all wrongdoers whose independent tortious acts
have joined in producing an injury to the plaintiff, which, although theoretically
divisible, as a practical matter and realistically considered is in fact but a single
indivisible injury.
Landers, 248 S.W.2d at 734. The Texas Supreme Court noted that the class of cases following
the Robicheaux rule seemed to embrace the philosophy “that it is better that the injured party lose
all of his damages than that any of several wrongdoers should pay more of the damages than he
individually and separately caused.” Id. And, although there was no allegation that Landers’s
injuries happened simultaneously, the court reasoned that “the burden of proving the share
3Because the allegations in the petition were sufficient to assert a case of joint and several liability, there was no
misjoinder of either parties or causes of action. Landers, 248 S.W.2d at 734.
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contributed to the injury by each of the wrongdoers is just as onerous in this case as in [a case of
simultaneous injury].” The court continued, “[W]e perceive no sound reason for permitting the
imposition of joint and several liability in the one class of cases and denying it in the other.” Id.
at 735. The court defined an indivisible injury as one that “from its nature cannot be apportioned
with reasonable certainty to the individual wrongdoers.” Id. at 734.
Although Landers is clearly distinguishable on its facts, it plainly recognizes instances in
which independent tortious injuries can combine to produce an indivisible injury, as Stutsman
alleges in her original petition. The real parties in interest point out, though, that Landers should
not control in light of the fact that the two automobile accidents in which Stutsman was involved
occurred over one week apart. In support of this proposition, they rely on Phillips v. Gulf &
South America S.S. Co., 323 S.W.2d 631, 635 (Tex. App.—Houston 1959, writ ref’d). In that
case, Phillips injured his low back on January 14, 1957, while loading cargo aboard a ship
operated by Creole. Id. at 632. Then, on August 1, 1957, Phillips sustained a second injury to
his low back while working aboard a ship operated by Gulf & South American Steamship
Company, Inc. Id. Phillips sued Creole and Gulf seeking a joint and several judgment for
injuries to his low back sustained in each accident. Id. Phillips alleged that his injuries were “so
interrelated as to make it impossible to differentiate between the effects of each.” Id. Following
a hearing, the trial court granted Gulf’s motion to sever.
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Id.
4The trial court ordered Phillips “to amend his pleadings so as to proceed against the two appellees in separate
causes.” Phillips, 323 S.W.2d at 632. When Phillips failed to do so, the trial court dismissed Phillips’s lawsuit, and
Phillips appealed. Id.
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Evidence at the severance hearing established the injury dates and showed that, on each
date, Phillips slipped and fell on dangerous substances. Id. at 632–33. Following the first injury,
Phillips sought medical treatment and continued that treatment two or three times the following
week. Id. at 633. Despite this injury, and although his back still hurt, Phillips continued to work
as a longshoreman until the time of his second injury. Id. After the second injury, Phillips’s
back bothered him more, and he did not work for about two and one-half to three months. He
returned to work in May 1958, but ultimately quit because he could do only light work, which
was in short supply. Id.
On appeal, Phillips claimed that the court erred in severing his claims because his injury
was indivisible, in reliance on Landers. Id. The court concluded that “there is no basis in law
under the allegations contained in [Phillips’s] petition . . . which would entitle [him] to obtain a
joint and several judgment against each [defendant] for both injuries he may have received on
the two separate occasions in question.” Id. at 635. In reaching this conclusion, the court
explained that, at least for several months before the second injury, “damages both past and
future resulting from his . . . injury were subject to determination with reasonable certainty.” Id.
Moreover, his right to recover for those damages was not altered by the second accident.
Finally, the damages resulting from the second accident resulted in time off from work and
ultimately caused him to leave his employment. Id. Any aggravation of the prior injury was
likewise subject to a damage claim against Gulf. Id. Consequently, the appellate court
determined that the severance order was proper. Id.
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This case is different than Phillips because the accidents in which Stutsman was involved
were only eleven days apart. That said, it is apparent from Stutsman’s pleadings that she was
treated five times for injuries sustained in the first accident before she was involved in the second
accident. Under these facts, the trial court could have concluded that Stutsman’s claims against
Schueler and her claims against Peoples, having originated from two different automobile
accidents more than one week apart, were not in such close temporal proximity to cause proof of
damages in each case to have been interrelated to the extent that Schueler and Peoples would be
jointly and severally liable for those damages. We do not believe that such a conclusion is “so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law,” Walker, 827
S.W.2d at 839, such that “the trial court could reasonably have reached only one decision.” Id. at
840.
Outcome: We deny Stutsman’s petition for writ of mandamus.
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