1 NO. 01 - 15 - 00471 - CV
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

**______________________________________** IN RE DANIEL W. WARREN, BENEFICIARY OF T HE

DANIEL STEVEN WEINER 1996 TRUST, RELATOR

Appeal from the Harris County Probate Court No. 4 Harri s County, Texas

________________________________________________________________ RELATOR’S MOTION FOR REHEARING

_______________________________________________________________ Relator, Daniel W. Warren respectfully submits this motion for rehearing in respons e to the opinion issued by the C ourt on August 4, 2015 denying his petition for writ of mandamus and dismissal of his case. Daniel requests that t he Court reconsider its opinion in light of the additional facts presented herein , which the Court ma y not have been aware of , and which show that the trial court intended to retain the cross

- claims in David’s case only and that none of the parties intended to
sever , or thought they were severing, Weiner’s cross

- claims into Daniel’s new
case . T he Appeal Court , however, found that the trial court’s order granting Daniel’s motion to sever his claims into a new case implied ly severed M r. Weiner’s cross

- claims along with it, because no reasonable explanation was ACCEPTED 01-15-00471-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 9/17/2015 11:46:54 AM CHRISTOPHER PRINE

CLERK2 provided as to why Weiner’s cross - claims remai ned pending in David’s case after Daniel’s claims were severed
. This motion presents additional facts and background on the case so that the Court can fully understand why the cross

- claims remained pending in David’s case
. It also respectfully requests that the Court not find severance of the cross

claims by implication in the absence of a specific order to sever them
. This Court and other s have held that there may be no severance by implication
. Thomas v. Shult , 426 S.W.2d 194, 196 (Tex. App.―Houston [1 st Dist.] 1968) ; accord Gaitz v. Markman , 482 S.W.2d 391, 394 (Tex. App.―Houston [14 th Dist.] 1972)
. A seve rance requires a determination as to whether claims are properly severable as to the parties, the issues, or the causes of action
. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co ., 159 Tex. 550, 324 S.W.2d 200 (Tex. 1959). Accordingly, no severance may be had by implication. Id. The confusion and uncertainty of an implied severance would outweigh any advantage that might result theref rom. Id. Because the trial court did not make a determination as to whether Weiner’s cross

- claims were properly severable , or issue a specific order to sever them , no severance should be implied
. Id. Relator Daniel Warren respectfully asks the Co urt to reconsider its opinion in light of the additional facts and argument s presented in this motion a nd thereafter grant his p etition for writ of m andamus and dismiss his case in the trial3 court . ISSUE PRESENTED FOR REVIEW The Court should grant Daniel’s petition for writ of mandamus and dismiss his
case because the record shows that the trial court did not sever , or intend to sever , Weiner’s cross

- claims into Daniel’s case. Accordingly, since n o claims were pending at the time Daniel nonsuited , Daniel’s case should be dismissed
. ARGUMENT The following background may help the Court understand why the cross claims were not severed
. Background o n the Motion to Sever The trial court held a hearing on Mr. Weiner’s Special Exceptions to Daniel’s Intervent ion on August 27, 2014 and ruled that Daniel had no interest in David’s case , which included the cross

- claims against Ms. Warren at that time. Tab O, p. 5

- 21 and Tab X, p. 11. The trial court ordered Daniel to re
- plead his claims in a separate lawsuit, as follows: THE COURT: Well they need to be, they need to be two separate lawsuits, and that's how I would ask you to replead. Just keep them separately, you know, s eparate. Relator’s Tab O, p. 17. The trial court also issued the following order the next d ay on August 28, 2014 : I t is therefore, ORDE RED that lnter v enor Daniel Steven Weiner ( "Intervenor") re

- plead to specifically set out his specific causes of4 action against Andy Weiner and ide nt i fy the underlying facts supporting each specific cause or actio n. Relator’s Tab T, Exhibit A.

To comply with the trial court’s order to re

- plead his claims in a new lawsuit, on September 8, 2014 Daniel filed a motion to “ sever his causes of action against Mr. Weiner into a separate lawsuit with a separate cause number
. ” Relator’s Tab T , p. 1
. The motion set out Daniel’s specific causes of action and attached a list of twenty

- nine (29) docket entries he requested be transferred to his
new case Relator’s Tab T , Ex. B
. Daniel’s motion to sever said nothing about Weiner’s cross - claims because he was ordered to re

- plead only his claims
. On October 29, 2014 , the trial court ’s Associate Judge emailed the parties stating that Daniel ’s motion to sever should not be granted because he needed instead to file a new petit ion. It could be a copy of what he pleaded in his motion to s ever, but it needed to be a new “Original Petition” with service pursuant to the rules for a new lawsuit. Relator’s Tab V

- 1 , p. 2
. The trial court also confirmed that it was retaining Andy We iner’s cross

claims in David’s case only and that after Daniel re

- pleads his claims, “we will now have two different cause numbers, 425577 for David’s claims and Andy’s
cross - claims, and 425576

- 401 for Daniel’s claims...” Relator’s Tab V

- 1, p. 3. According ly, the trial court did not intend to sever , or split the cross

- claims. Concerned that a new petition would effectively dismis s his c laims, Daniel’s counsel sent Associate Judge Shannon and the parties an email asking for5 clarification that Judge Butts w as not dismissing Daniel’s claims and would not require the parties to re

- start formal discovery all over again , but was only ordering th at his claims be set up as a new petition. Relator’s Tab V

- 1 , p. 2
. Daniel’s counsel offered to send the trial court a proposed order incorporating its instructions to re - plead his claims in a new lawsuit , but without requiring the parties to start formal discovery all over again. Relator’s Tab V

- 1, p. 1

- 2. Associate Judge Shannon replied: “ Please do send a proposed or der crafted as you suggested. I will l et you know if Judge Butts suggests any changes. Thank you .” Id. Background on the Trial Court’s Severance Order On November 4, 2014 Daniel’s counsel sent the trial court and the parties his proposed order . Relator’s Tab U and V

- 1, p. 1. The order provided that Daniel would restate his claims as a new original petition in a new ca use number and “file all future pleadings, motions, and other papers” in the his cause number. It also provided that “all prior discovery, o rders, motions, responses, and answers” pertaining to his claims w ould apply in his new case , thus solving his concerns about starting all over again
. Relator’s Tab U and V

- 1 , p.1
. The proposed order said nothing about the cross

- claims because the trial c ourt ordered Daniel to re

plead his claims and told the parties that the cross - claims would remain in David’s
case . Relator’s Tab V

- 1, p.3.6 The trial court signed Daniel’s proposed order the next day on November 5, 2014 without change, except for striking through a provision that would have consolidate d th e cases for trial. Compare Relator’s Tab U with Tab U

- 1. These same words also appeared in the trial court’s subsequent amended order dated November 17, 2014 without change
. The Language “All Prior Discovery, Orders, Motions, Responses, and Answers” The Appeal Court may not have been aware that Relator’s counsel drafted the language in the trial court’s severance order requesting that “all prior discovery, orders, motions, responses, and answers” pertaining to Daniel’s claims apply in his new case as if t hey had occurred there. Daniel’s counsel carefully chose those words to exclude “ claims ” because Daniel was ordered to re - plead his claims only, and the trial court had made it clear that the cross

- claims would remain in David’s case only
. Relator’s Tab V

- 2, p.3. The words “ discovery, orders, motions, responses, and answers ” were intended to include only those items
. They were not merely examples of the types of documents Daniel requested be applied in his new case. Had they been i ntended as examples, he would have included a generic phrase such as “and other papers,” like he did in the preceding phrase, which provided that “all future pleadings, motions and other papers” pertaining to Daniel would be filed in his new case . Relator’ s Tabs U, U

- 1, and U

- 2. Such generic phrases permit the reader to insert7 similar types of documents under the canon of ejusdem generis (“of the same kind or class”). Black’s Law Dictionary (7 th ed.), p. 535. But absent words implying that “ all prior discovery, orders, motions, response, and answers” are merely non

- exclusive examples, Daniel respec t fully asks the Court not to imply that additional items are intended , such as the cross

claims
. The 24

- Item List T o Be Transferred After the trial court signed the November 5, 2014 order, Weiner’s counsel asked to change it to specifically enumerate in the order itself which documents were being transferred to Daniel’s new case. Relator’s Tab V

- 2, p.5. After some negotiations, counsel for Weiner and Daniel agreed on a list of twenty

- four (24) specific items to be expressly identified in the order and transferred to Daniel’s new case. Relator’s Tab V

- 2, p. 1

- 4
. None of the 24 items related to the numerous filings on the cross - claims that existed at the time . Relator’s Tab U

- 2. By November 17, 2014, Weiner had filed his original, first, and second amended cross

- claims and a supplement thereto. Ms. Warren had filed special exceptions, a bench brief, and a motion to dismiss the cross

- claims. And the trial court had issued two orders relating to them. Realtor’s Tab X, p. 5

- 13. Not one of these filings was included on the 24

- item list because neither the cou rt nor the parties intended to sever the cross

- claims
.8 Also important to note is that Mr. Conner, Ms. Warren’s attorney, did not participate in any of the discussions on Daniel’s motion to sever his claims or the 24

- item s to be included in his new case . Tabs V

- 1 a nd V

- 2. That is because there was no discussion about transferring the cross

- claims to Daniel’s new case . And the trial court had already made it clear to the parties that the cross

- claims would remain in David’s case after Daniel re

- pleads his claims . Relator’s Tab V

- 1, p. 3. Had there been any discussion about severing the cross

- claims, Mr. Conner, would have participated and made his objections known because a severance of the cross

claims would have resulted in two lawsuits against his client instead of one.
The Conduct of the Parties Even after the severance order was signed, the parties’ conduct shows that they did not intend to litigate Weiner’s cross

- claims in Daniel’s new case. Weiner filed two motion s to compel discovery against Ms. Warren and designated his exper t witness in David’s case only
. Relator’s Tab X, p. 14, 16, and 20. Mr. Conner filed a motion for no

- evidence partial summary judgment against Mr. Weiner in David’s case only. Relator’s Tab. X, p. 25. Mr. Conner never made an appearance in Daniel’s new c ase. Relator’s Tab W. Nor did Mr. Conner file any motions or responses, attend any hearings, conduct any discovery, or take any depositions in Daniel’s new case. Id. The trial court’s docket does not show Ms. Warren as a party to Daniel’s new case becau se9 s he was not named as a p arty to it
. The docket in Daniel’s case is simply de void of any activity related to the
cross - claims compared to the flurry of activity in David’s case. Compare Relator’s Tab W with X. Severability of Claims The Texas Suprem e Court holds that before a severance can occur, a court must first determine whether claims are properly severable as to the parties, issues, and causes of action. Pan American Petroleum Corp ., 324 S.W.2d 200. No party filed a motion to sever the cross

- cl aims. Tab X, pp. 5

- 13. The trial court conducted no hearing s or discussion s on whether the cross

- claims would, or could, be severed. Id. ; Tab O, p. 5

- 21. The trial court expressly stated the cross - claims would remain in only David’s case after Daniel re

- pl eaded his claims in a new lawsuit. Relator’s Tab V

- 1, p. 3. The trial court issued no specific order to sever the cross

claims. Therefore, Daniel respectfully requests that this Court not imply that a
severance occurred
. In addition, it is not clear tha t Weiner’s cross

- claims can be split, as written. A well

- established rule against claim

- splitting prevents a single cause of action from being split into several suits when a single suit will suffice
. Schneider Nat’l Carriers, Inc. v. Bates , 147 S.W.3d 264 , 277 (Tex. 2004). Th is rule , also known as the single

- action rule, provides a plaintiff one indivisible cause of action for all10 damages arising from a defendant's single breach of a legal duty. Pustejovsky v. Rapid

- American Corp ., 35 S.W.3d 643, 646

- 647 ( Tex. 2000)
. Weiner’s causes of action against Ms. Warren for breach of fiduciary duty , tortious interference with administration , contribution to one - half his damages, initiating unnecessary litigation, and creating a hostile environment are indivisibl e , as written , because they do not distinguish how her conduct specifically relates to David ’ s trust , Daniel ’ s trust , or Mr. Weiner
. If they were to be split, they would need to be re - pleaded to describe which of her actions relate to which cause and which case
. R egardless of their severability, the record establishes that the cross - claims were not , in fact , severed
. The trial court intended them to remain in David’s case. The conduct of the parties shows that they did not intend them to be severed . No party asked that they be severed, or contends that they thought they were being severed. T he trial court did not conduct a hearing or issue a specific order that they be severed
. The parties did not treat them as having been severed. The record is simply devoid of an y a ctual or intended severance of the cross

- claims. Accordingly, Relator Daniel Warren respectfully requests that this C ourt not imply a severance when none was intended or specifically ordered
. Thomas , 426 S.W.2d 19 6; Gaitz , 482 S.W.2d 39 4; Pan American Petroleum Corp. , 324 S.W.2d 200
.11 PRAYER Because the record demonstrates that no claims were pending, or intended to be pending in Daniel’s case at the time he nonsuited, and severance cannot be found by implication, Daniel respectfully requests that th e Court grant this Motion for Rehearing, grant his Petition for Writ of M andamus , and dismiss his case in the trial court
. Respectfully submitted, Cantrell & Cantrell, PLLC /s/ Carol A. Cantrell State Bar No. 24043592 370 0 Buffalo Speedway, Ste. 520 Houston, Texas 77098 (713) 333

- 0555 (713) 333

- 0550 (facsimile) ATTORNEY FOR RELATOR13 CERTIFICATE OF COMPLIANCE 1. This brief compli es with the type

- volume limitation of Tex. R. App. P. 9. 4(i)(2)(D) because it contains 2, 376 words, excluding the parts exempted by Tex. R. App. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it ha s been prepared in a proportionately spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font.
/s/ Carol A. Cantrell Attorney for Relator
CERTIFICATE OF SERVICE I certify that a copy of the Relator’s Motion for Rehearing was served on the parties below by electronic service on September 17, 2015. Sarah Patel Pacheco Kathleen Tanner Beduze Crain Caton & James Five Houston Center, 1401 McKinney, 17 th Floor Houston, TX 77010 pacheco

- efile@ craincaton.com 713

- 658

- 1921 (facsimile) ATTORNEY FOR ANDY WEINER Thomas R. Conner Conner & Lindamood, P.C. 1221 Lamar, Suite 1010 Houston, TX 77010 tom@lawcl.com 713

- 654

- 8115 (facsimile) ATTORNEY FOR KATHERINE R. WARRE N
I certify that a copy of Appellant’s Motion for Rehearing was served on Respondent by certified mail on September 17 , 2015 to the following address.14 The Honorable Christine Butts Probate Court No. 4, Harris County 201 Caroline St., 7 th Floor Houston, Texas 77002 Tel: 713

- 368

- 6767
/s/ Carol A. Cantrell Attorney for Relator15 APPENDIX HEARING TRANSCRIPT ON DANIEL’S INTERVENTION (8

- 27

- 14)...Tab O DANIEL WARREN’S MOTION TO SEVER WITH EXHIBITS
...... ... . Tab T RELATOR’S PROPOSED ORDER ON MOTION TO SEVER
......... ... Tab U TRIAL COURT’S NOV. 5 ORDER ON MOTION TO SEVER
. ....... .... Tab U

- 1 TRIAL COURT’S AMENDED ORDER ON MOTION TO SEVER...
... .Tab U

- 2 EMAIL EXCHANGE BETWEEN TRIAL COURT AND COUNSEL : FROM O CT. 24 TO NOV. 4, 2014
... .................... . .. ...... . .Tab V

- 1

FROM NOV. 6 TO NOV. 17, 2014................................Tab V

- 2 DOCKET IN DANIEL’S CAUSE NO
. 425,576

- 401
.... ................... . . . ... .. .. . Tab W DOCKET IN DAVID’S CAUSE NO. 425,577
... .................. ...... ... ...Tab X