IN RE: AL CARDENAS MASONRY, INC.--Appeal from 370th District Court of Hidalgo County

   NUMBER 13-06-049-CV

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: AL CARDENAS MASONRY, INC.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Chief Justice Valdez

Relator, Al Cardenas Masonry, Inc., files this petition for writ of mandamus requesting that this Court overturn the trial court=s decision denying its motion to consolidate. We deny the petition for writ of mandamus and we order the stay previously imposed lifted.

Background

Al Cardenas Masonry (ACM) is being sued by real-party-in-interest, Pharr-San Juan-Alamo Independent School District (PSJA), for negligence in a construction dispute in which ACM was one of several subcontractors. In its petition, PSJA stated "Plaintiff does not seek to recover joint and several liability against the Defendant [ACM], and hereby . . . limits its recovery against the Defendant to the percentage of the damages found by the trier of fact equal to the Defendant's percentage of responsibility with respect to the property damage for which the damages are allowed."

In a separate case, ACM is among a group of subcontractor-defendants being sued by a general contractor, Landmark Organization. In this dispute, Landmark and PSJA originally filed cross-claims against each other alleging various contract-related causes of action. Landmark also filed a third-party claim against its subcontractors, including ACM, for contribution and indemnity. Landmark and PSJA then resolved their claims out of court; however, Landmark=s suit against the subcontractors remains ongoing.

ACM requested that the trial court consolidate the two PSJA-related causes of action. PSJA opposed ACM=s motion, arguing that evidence from one case would be prejudicial in the other case. The trial court ultimately denied ACM=s motion to consolidate. ACM then filed this petition for writ of mandamus and an emergency motion to stay the underlying proceedings. We granted the motion for stay pending our resolution of this mandamus.

Analysis

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The party filing the petition must establish that either the trial court could reasonably have reached only one decision concerning the resolution of certain factual issues or matters committed to its discretion or the trial court failed to analyze or apply the law correctly to the facts. Id. at 839 40.

Texas Rule of Civil Procedure 174(a) provides for the consolidation and joint hearing or trial of actions "involving a common question of law or fact." Tex. R. Civ. P. 174(a). The trial judge is given broad discretion to consolidate cases. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982); S.W. Prop. Trust v. Dallas County Flood Control Dist. No. 1, 136 S.W.3d 1, 12 (Tex. App.BDallas 2001, no pet.); Excel Corp. v. Valdez, 921 S.W.2d 444, 448 (Tex. App.BCorpus Christi 1996, orig. proceeding).

In the case of consolidation for trial, the actions should relate to substantially the same transaction, occurrence, subject matter, or question, and they should be so related that evidence presented will be material, relevant, and admissible in each case. Excel Corp., 921 S.W.3d at 448. Accordingly, the trial court must balance the judicial economy and convenience that may be gained by consolidation against the risk of an unfair outcome because of prejudice or jury confusion. Id.; S.W. Prop. Trust, 136 S.W.3d at 12. Although cases may involve a common issue of law, if they each stem from distinct factual scenarios that would tend to confuse or prejudice the jury, it may not be within the trial court's discretion to consolidate and try them together. Excel Corp., 921 S.W.3d at 448.

PSJA argues that it would be prejudiced by consolidation of the two cases. Although the two cases involving ACM and PSJA are similar, the alignment of the parties and the specific causes of action differ. The trial court clearly considered the issue at least twice (although there is no order denying the first motion to consolidate in the record, there is an order denying a motion to reconsider the denial of the first motion to consolidate), and determined that a jury would in fact be prejudiced or confused by the various causes of action being presented in a single trial. Given that the rule specifically allows trial courts the discretion to consolidate only when they see fit to do so, there is insufficient evidence in the record to establish that the trial court clearly committed error in reaching its conclusion in this case. See Tex. R. Civ. P. 174(a); Crestway Care Ctr. v. Berchelmann, 945 S.W.2d 872, 873 (Tex. App.BSan Antonio 1997, orig. proceeding) (Amandamus will issue to correct an improper ruling on consolidation only where the trial court clearly fails to analyze or apply the law correctly. . . .@).

Conclusion

The petition for writ of mandamus is denied. The stay of the trial proceedings previously imposed by this Court is lifted.

ROGELIO VALDEZ

Chief Justice

Memorandum opinion delivered and

filed this the 13th day of April, 2006.