In re Lancer Insurance Company--Appeal from 79th Judicial District Court of Jim Wells County

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 26, 2007

PETITION FOR WRIT OF MANDAMUS DENIED

Lancer Insurance Company ("Lancer") seeks a writ of mandamus to set aside an amended severance order purportedly entered after the trial court lost plenary power. We deny the requested relief.

Factual and Procedural Background

Lancer is one of three defendants in the underlying lawsuit, in which the plaintiffs claim they contracted tuberculosis from the driver of a bus chartered from Garcia Holiday Tours, L.C. ("Holiday Tours"). When the incident giving rise to the suit occurred, another defendant, Holiday Tours, was insured by Lancer. The plaintiffs sued Holiday Tours and its employee Raul Garcia for negligence and also sought a declaratory judgment concerning Lancer's duties to defend and indemnify Holiday Tours and Garcia.

After answering the suit, Lancer moved for dismissal on grounds that the plaintiffs lacked standing to seek declaratory relief and that Lancer could not be sued directly under the policy in question. On July 17, 2006, the trial court held a hearing on Lancer's dismissal motion. On July 18, 2006, defendants Holiday Tours and Garcia filed a pleading requesting a declaratory judgment that Lancer and another party, Scottsdale Insurance Company, owed them "duties of indemnity and defense." (2) On July 21, 2006, the trial court granted Lancer's motion to dismiss by written order. On August 7, 2006, the trial court signed an agreed severance order stating that "all claims against Lancer Insurance Company are hereby severed from this cause."

Thereafter, in September of 2006, Lancer removed the suit to federal court; however, the federal court determined the removal was untimely and remanded. On February 9, 2007, following the remand, the trial court signed an amended severance order, in which it severed all claims against both Lancer and Scottsdale and assigned them a separate cause number. (3) Lancer objected to this order, asserting that the trial court had lost plenary power in the severed case. On May 14, 2007, the trial court overruled Lancer's objection and declined to vacate its amended severance order.

In its mandamus petition, Lancer contends that the February 9, 2007 amended severance order is void and the trial court abused its discretion by refusing to vacate it. According to Lancer, the dismissal order disposed of all of the claims against it, and therefore, the August 7, 2006 severance order rendered the dismissal order a final, appealable order. See Harris County Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001) (summary judgment for two defendants became final when a severance order was signed); Cherokee Water Co. v. Ross, 698 S.W.3d 363, 365-66 (Tex. 1985) (summary judgment became final when the order severing the plaintiff's summary judgment from the defendants' counterclaim was signed). Lancer further argues that the trial court's plenary power expired in "the Fall of 2006," long before the trial court signed the amended severance order on February 9, 2007. See Tex. R. Civ. P. 329b(d),(f) (a trial court loses plenary power unless a party to the judgment files a motion that extends the trial court's plenary power within thirty days of the date of judgment).

Mandamus Standard of Review

Generally, mandamus is available only when the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 837, 839-40 (Tex. 1992). Mandamus is also appropriate to set aside an order that is void because the trial court acted after its plenary power expired. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998); Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994).

Discussion

Lancer's entire argument hinges on its assertion that the July 21, 2006 dismissal order disposed of all claims against it. However, the record does not support this assertion. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001) (an appellate court may look to the record in the case to determine if an order disposes of all pending claims). Lancer's motion to dismiss did not seek dismissal of the declaratory judgment claims filed by Holiday Tours and Garcia. In fact, the record does not show that any party requested dismissal of these claims. Lancer's motion only sought dismissal of the plaintiffs' declaratory judgment claim and asked the trial court to dismiss Lancer from "this suit." The dismissal order grants Lancer's motion to dismiss and states that Lancer is dismissed "as a party to this lawsuit." In the context of the entire record, this phrase refers to the plaintiffs' claims, not the claims brought by Holiday Tours and Garcia. See Lehmann, 39 S.W.3d at 206 ("The record may help illumine whether an order is made final by its own language, so that an order that all parties appear to have treated as final may be final despite some vagueness in the order itself, while an order that some party should not reasonably have regarded as final may not be final despite language that might indicate otherwise.").

We conclude that the trial court's July 21, 2006 dismissal order did not dispose of all of the claims pending against Lancer. As such, the August 7, 2006 severance order did not operate as a final order and trigger the expiration of plenary power. Signed while the trial court still had plenary power, the February 9, 2007 amended severance order is not void. The trial court did not abuse its discretion in refusing to vacate this order. Accordingly, the petition for a writ of mandamus is denied.

PER CURIAM

1. This proceeding arises out of Cause No. 05-03-43200, styled Oscar Perez and Nydia Perez, Individually and as Next Friends of Oscar Perez, II,v. Raul Garcia and Garcia Holiday Tours, L.C., pending in the 79th Judicial District Court, Jim Wells County, Texas, the Honorable Richard C. Terrell presiding.

2. The pleading, entitled "Defendants Raul Garcia and Garcia Holiday Tours, L.C. Petition for Declaratory Judgment," was filed in the same cause number as the plaintiffs' suit.

3. The August 7, 2006 severance order did not assign a separate cause number to the severed claims. We note that this omission had no bearing on the effectiveness of this severance order. See McRoberts v. Ryals, 863 S.W.2d 450, 452-53 n.3 (Tex. 1993) (although the better practice is for the trial court to assign a new cause number in its severance order, a severance order is effective when it is signed without the assignment of a different cause number).