Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion

filed October 4 , 2012.

In The



## Fourteenth Court of Appeals

NO. 14

- 12

- 00835

- CV

IN RE ENERGY RESOURC ES TECHNOLOGY GOM, INC., AND HELIX

ENERGY SOLUTIONS GRO UP , Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS On Appeal from County Court No. 3 Galveston County , Texas Trial Court Cause No. CV

- 66114

MEMORANDUM OPINION On September 11, 2012, relator s, Energy Resources Technology GOM, Inc., and Helix Energy Solutions Group , filed a petition for writ of m andamus in this Court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator s ask this Court to compel t he Honorable Christopher Dupuy, presiding judge of County Court No. 3 of Galveston County to vacate his order of severance signed June 28, 2012. We conditionally grant the writ.2

Brandon Noland was fatally injured when a crane collapsed while he was working on a platform in the High Island production block in the Gulf of Mexico . A w rongful
death case was brought by his parents 1 (“plaintiffs”) alleging that relators , the platform owner and operator, were negligent, grossly negligent and negligent per se. Relators subsequently sought leave to designate the company responsible for the maintenance and safety inspection of the crane, Cargotec USA, Inc. a/k/a Cargotec USA, Inc. Marine
Americas (“Cargotec”) as a responsible third party

. The motion was granted. Plaintiffs
then f iled a motion to sever the third party claims

. Following an oral hearing, the trial court granted the motion to sever.
Mandamus relief is available if the trial court abuses its discretion, either in resolving fac tual issues or in determining legal principles when there is no other adequate remedy by law. See Walker v. Packer , 827 S.W.2d 833, 839

- 40 (Tex. 1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to

amoun t 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). In determining whether the writ should issue, we must further determine whether the party has an adequate remedy by appeal. Id. An appellate remedy is “adequate” when any benefits to mandamus review are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004). This determination depends heavily on the circumstances presented and is better guide d by general principles than by simple rules.
Id. at 137.

“ 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

1 Neshia Noland, Brandon’s mother, brought suit in her individual capacity and as personal representative of the estate of Brandon Michael Noland. Johnnie Lee Johnson, Brandon’s father, intervened.3

independently asserted, and (3) the severed claim is not so interwoven with t he remaining action that they involve the same facts and issues. ” Guar. Fed. Sav. Bank v. Horseshoe Op. Co., 793 S.W.2d 652, 658 (Tex. 1990). T he controlling reasons to allow a severance

are a voiding prejudice, doing justice, and increasing convenience. F.F.P. Operating Partners, L.P. v. Duenez , 237 S.W.3d 680, 693 (Tex. 20 07). Plaintiffs allege, among other things, relators failed to properly inspect and/or maintain its equipment and failed to warn of allegedly improperly inspected, poorly maintained and/or otherwise unrepaired conditions of the platform and/or its appurtenances. According to relators , Cargotec was retained to provide “ maintenance and repair services, which include maintenance programs, annua l condition and safety inspectio ns pertaining to the crane at issue and its component parts , such as the b oom hoist wire rope.” Thus, r elators claim , Cargotec is responsible for all or part of the plainitffs’ damages and they are entitled to contribution based on Cargotec’s negligence. Whether the collapse of the crane was due to Cargotec’s negligence is relevant to the plaintiffs’ claim against relators and will involve the same issues, facts, and evidence.
We find the third

- party claim is interwoven with the remaining action so that they involve
the same facts and issues. See F.F.P. Operating Partners, 237 S.W.3d at 693

- 94

. See also Man Industries (India) Ltd. v. Bank of Tokyo

- Mitsubishi UFJ, Ltd., 309 S.W.3d 589 (Tex. App.

-- Houston [14th Dist., 2010, orig. proceeding ). Accordi ngly, the severance of relators’ contribution claims against Cargotec was an abuse of discretion. See F.F.P. Operating Partners, 237 S.W.3d at 693

- 94.

I mproper severance is reversible error

. See F.F.P. Operating Partners, 237 S.W.3d at 694. Allowing an improper severance order to stand would therefore be a waste of public and judicial resources. Appeal “is no remedy at all for the irreversible waste of judicial and public resources.” See In re Masonite Corp. , 997 S.W.2d 194, 198 (Tex. 1999)

. It is a proper use of mandamus review to “spare private parties and the4

public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential, 148 S.W.3d at 136. Thus , the benefits of mandamus outweigh the detriments

. See id. ; s ee also In re McKillip

- Odom , 2007 WL 2045282, *3

- 4 (Tex. App.

-- Tyler 2007, orig. proceeding) (mem. op) , and In re Stat e , 355 S.W.3d 611, 617

- 18 (Tex. 2011)

. We therefore conclude that in this case the benefits of mandamus outweigh the detriments and find relators do not have an adequate remedy by appeal. Having found t he trial court abused its discretion by granting the motion to sever and that relators do not have an adequate remedy at law, w e conditionally grant
mandamus relief . We trust the trial court will promptly vacate its order of J une 28, 2012 , granting the mo tion to sever and enter an order denying the motion. The writ will issue only if the trial court fails to act in accordance with this opinion

. This court’s stay of September 11, 2012 is lifted.

PER CURIAM

Panel consists of Justices Frost, Christopher, an d Jamison.