1 Forsimpl if icati on, James Oney, Penny Oney, and Jam es On ey d/b/a B & O Enterprises are collectiv ely referred to as Oney. NO. 07-03-0016 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B APRIL 7, 2003

______________________________ IN RE OC CIDENTA L PERM IAN LTD., Relator

_____________________ __________ ORIGINAL PROCE

EDING

_______________________________ Before JOHNSON, C.J. and QUINN and CAMPBELL, JJ. Occidental Perm ian, Ltd., (Occidental) petitioned the court for a writ of mandamus. Itseeks an order from us directing the Hon. H. B ryan Poff, ass igned to the 286th Judicial District, Hockley County, to “vacate the order of s everance issued Octobe r 1, 2002 .” We deny the petition. Backgr ound The dis pute invo lves the severan ce of O ccidenta l’s coun terclaim against B ry ant Sal t W ater Disposal, Inc. (Bryant), J ames Oney, Jam es Oney d/b/a B & O Enterprises, and Penny Oney. 1 Bryant

and One y or igina llysued O ccidenta l, Lobo Well Service, In c. (Lob o), and Key Energy Services, Inc. (Key) to recover damages all egedly cause d by Lob o dumping drilling mu d into a s alt wa ter d is posal well operated by Bryant an d Oney.2

Dum ping the mud into the well allegedly rendered the well inoperative. That is, the m ud
som ehow

plugged t he geologic form ation and caused the pres sure in the well to exceed thatpermitted by

the Railroad Com mission. Therefore, t he well was ruined, and Bryant and Oney purportedly lost their “livelihood.” In answer to the Oney/Bryan t suit, Occidental averred that the damag es, if any,
weresolely caused by Oney and B ryant. The latter, accord ing to Oc cide nta l, ran thew ell in a m anner w hich caus ed excessivepressu re to build, irrespective of whatever m ud m ay have been dumped in it. And, as a re sult of thei r own m isconduct, the well was lost

. Having so alleged in its answer to the petition, Occidental then fil ed a countercl aim against Oneyand Bryant. Through it, dam ages were s ought to recom pense the loss of one of its
own wells, CL U #41, locate d approxim ately a quarter m ile from the disposal well. The casing coll aps ed, accord ing to Oc cide nta l, du e toOne y an d B rya nt e xcess ively pressurizing the salt wate r disposal well, which in turn, overly pressured the underground strata through which CLU #41 was dril led. The r ecord ind icates tha t th is incident (the collapse of the casing) happened som e six w eeks before the m ud incident occurred. Yet, we cann ot continue without me ntioning one other claim for relief. It involves
a suit initiated by Perry Heard (Heard) against Oney, B ryant, Occidental, Lobo and Key for dam ages he suffered. Ac cor ding to t he r

eco rd b efo re u s, H ear

d ow ned thesalt

water dis posal wel l in question and had permitted Oney to operate it via a surface lease. Furthermore, his dam ages arose w hen the disposal well was rendered inoperative by Lobo pur por ted lydum ping mud into it. S o, he seeks m onetary relief to recom pe ns e h i m. Howeve r, no one seeks relief against him. An d, whi l e H ea rd i ni ti al l y p ur su ed hi s c l ai ms3

via a separate lawsuit, the latter was con solidated with the action of Oney an d Bryant at the behest of Occ idental. Given the foregoing background, w e see that

the re w ere , in effect, three suits under the um brella of one cause num ber. The first wasthat by Heard against ev eryone else to
recover for the loss of hi s saltwater dispo sal well. T he second was t hat of Oney a nd Bryant against Occidental, Lobo and Key to recover for the loss of the s ame well. And, the third involved ef

fort by Occidental to recover fromOney and Bryant for the loss of CLU #41, a separ

ate well. Finally, it was this t hird suit w hich the t rial court severed from the proceed ing and as signed its own cause num ber. Authori ty Ap plica ble rule of procedure states that any clai m againsta party m ay be severed and proceeded w ith separately. T EX
. R. C IV
. P

. 41. Furtherm ore, whether to so s ever a claim is a mat ter lying within the trial court’s discretion. Liberty Nat . Fire In s. Co. v. A kin , 927 S.W.2d 627, 629 (Tex. 1996). Thus, m andam us will not issue unless the de cisi on constitutes a clear abuse of discretion and leaves theaggrieved party with noadequate remedy at law. Id. Next, a claim is properly severable if 1) the controvers y involves mo re than one
cause of action, 2) thesev ere d cla im is o ne t hat w ould be t he p rop er s ubj ect of alaw suit if independently asserted, and 3) the severed claim is not so interw oven with the rem aining action that they involve the sam e facts and issues. Guaranty Fed. Sav. B ank v. Horseshoe Operating

Co. , 793 S.W.2d 652, 658 (Tex. 1990); Lusk v. Pury ear, 896 S.W.2d 377, 3792 Occi dental cites v arious cases purporting to hold that a tri al court cannot sev er an d procee d

se pa rately

with a compuls ory cou nterclaim. See e.g., Rucker v. Bank One Texas, N. A., 36 S.W .3d 649, 651 (Tex. App.–W aco 2000, p et. denied); Goins v. League Bank and Trust, 8 57 S.W.2 d 6 28 , 6 30 (Tex. App.–Houston [1 stDist.] 1993, no writ). Each, however, is that of an inte rmed iate cou rt o f app ea l. And , w hile they may be informative, we a re non etheless bo und to follow the

dictate of the Texas Su preme Co urt. Lubbock County v. Tram mel’sLubbock Bail Bonds , 80 S.W.3d 580 , 585 ( Tex. 2002) (requ iring inter mediate appe llate courts to fol low Supreme Court prec edent and leav e to the Suprem e Court the m atterof abrogati ng or modi fyi ng its own precedent). So, since McGuire was ren der ed by the Sup rem e Co urt , i t c ont rol s. Moreover, the test applied when determi ning the v alidi ty of a sev erance dif fers f rom tha t ap plic ab le to assess ing whether a counterclai m i s compulsory. Concerni ng the latter, the court m ust decide, am ong other things , if the claims aris e from the s ame trans action o r occurrence . Rucker v. Bank One Texa s, N.A. , 36 S.W .3d 649, 651-52 (Tex . App.–W aco 2000, pe t. denied ). An d, th ey do if “ someof the f acts [are] relevant to both claims.” Community S tate Bank v. NSW Inv., L.L.C. , 38 S.W .3d 256, 258 (Tex . App. –Texark ana 200 1 , pet. dism ’d w.o.j.) (em phasis added). However, sev erance is proper if , among other thi ngs, the “severed act ions are not so interwoven with t he other claim s thatthey inv olv e the samefacts and iss ues .” Liberty Nat. Fire Ins. Co. v. Akin , 92 7 S. W .2d 627, 629 ( Tex . 19 96) (em phasi s adde d). Fr om thi s, 4 (T ex. Ap p.–

Am arillo199 5, o rig

. proceed ing). Finally, th e contr olling reasonsfor a severance are to do j ustice, avoid prejudice, and f urther convenience. Id.

Applica tion of Author ity Occidental initi ally sug ges ts t hat thetria l c ourt abus ed its dis cre tion bec aus e it severed a com pulsory counterclaim. A ssum ing arguendo tha t th e co unt erc laim is compulsory, we disagree with the sugges tion. According to the Texas Suprem e Court, “[i]t is not necessary to determ ine whether or not the. . . claim [is], in fa ct, a com pulsory counterclaim, since the trial court ha[s] discretionary pow er to sever” such a claim under Rule41. McGuire v. Commercial Union Ins. Co. , 431 S.W.2d 347, 351 (Tex. 1968). That rule “p rovides that ‘ any claim against a party m ay be severed and procee ded w it h separately.’” Id. (em phasis ad ded). S o, as long as thetrial court abides byRul e 41 , it is not error to sever and proceed sepa rately with any cl aim, includi ng a co mpulsor y co un te rc l ai m. 2one can see that the propriet y of a sev erance is dependent upon whether the facts and issues underlying

each claim are iden tical. See Saxer v. Nash Phillips-Corpus Co. , 678 S.W .2d 736, 739-40 (Tex . App.–Tyl er 1984, writ ref’d n.r.e.) (hol ding that the tr ia l c our t di d not abuse it s di scre ti on i n sev eri ng t he c la im s bec ause the facts an d circumsta nces necessar

y to prove one claim wer e not “ identical” to those n ecess aryto p ro ve the ot he r) . On th e o th er ha nd , t hefa cts in v olv ed in each clai m need not be ident ical t o satisfy the com pul so ry co un te rc la im te s t, bu t o nl y r el eva nt toea ch ot he r. Simp ly p ut , t hete s t u s ed in de te rmi nin g wh ethe r a matt er should be joined as a compul sory counterclaim is much m ore liberal in scope than that use d to assess the

validity of a severance

. 5 Next, with regard to the trial court’s com pliance with Rul e 41, we r eiterate the teaching of Guaranty . A clai m is severable if 1) the suit involves more th an one cause of action, 2) the severed claim is one that could be prosecuted th rough a separate laws uit, and 3) it is not so interwoven w ith the remaining action that they involve the “ samefacts and issues.” Guaranty Fed. Sav. Bank v. Hors eshoe Operati ng Co. , 793 S.W.2d at 658 (em pha sis supplied). Given tha t Heard sue d On ey, Br yan t, L obo , K ey a nd O cci den tal, that Oneyand Bryant sued Lobo, Key , and Occidental, and that Occidental sued Oney and Bryant for dam ages for various causes of ac tion, it is clear that the proceeding involved
m ore tha n on e ca useof a ctio n pr ior to se ver anc e. S o, t he f

irst elem ent pro pou nde d in Guaranty

is met. Second, as disclosed in the p leadings attached to the record befo re us, H eard decries the act of dum ping mud into the s alt water disposal well. Tha t is the conduct which alleg edly cau sed himinj ury . Th e sa m e ca n besaid of the claims asserted by Oney an d Bryant. However, Occidental ’s suit invo lves damage to a separate well it owned, which da m ages were allegedly caused by the m anner in which Oney and B ryant operated the disposal w ell, irrespective of the m ud Lobo purportedly dum ped. Sim ply p ut, eac h cla im involves injur

yto a separate right

or in ter est of t he p art

y as ser ting it a nd w

as s uscept ible to prosecution through separate law suits. So, the s econd element of Guaranty

is met.6

Next, and as previously mentioned, theproceeding consisted of causes asserted by1) Heard against everyone, 2) O ney and Bryant against Occidental, Lobo and Key, and 3) Occidental against On ey and Bryan t. Furtherm ore, the claims of Oney, Bryant and Heard aris e fr

om theact

of L obodum ping m ud in to t he d ispo sal w ell. This occurred so me six weeks after

the casing of CLU #41 collapsed purportedly due to the manner in which Oneyand Bryant op erated the disposal well. Thus, the operative facts underlying the injury described in Occidental’s counterclaim are no t directly related to or the sam e as those upon w hich the c laimsof Oney , Bry ant o r Heard are founded. S imply put, Occidental is not com plaining about the effect of Lobo dum ping mud into the disposal w ell. Nor does its claim arise fromthat fact or act. Yet, that i s the very fact and misconduct upon which the claim s of Heard, Oney, and Bryant are depende nt, and that is the fact from which arose their claims. Given thi s, we cannot say that the severed cla im is so interwoven w ith the remaining action that they involve the sam e facts and issues. In sum , the Suprem e Court in Liberty N ational and its predecessors set the standard high in c ase s involvin g m and am us. Ag ain, therecord m ust il lust rate a clear abuse of discretion. That is, “the rel ator must show ‘that the trial cour t could reaso nably have reached only

one dec ision .”’ Lib er ty Nat . Fire In s. Co. v. A kin , 927 S.W.2d at 629-30 (em pha sis added). As described above, circum stances appear of reco rd satisfying the elementsspecified in Guaranty and Lusk

which authorize severance. We cannot say that cl ai ms alleged and the my riad of potential facts and controver sies surrou nding them gave rise to but one reaso nable decision for the trial court to make. Thus, it did not fail to
com ply w ith g uid ing rules and pr incip les or abuse of discreti on in severi ng Occidenta l’s7

co un te rc l ai m. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 23 8, 24 1- 42 (T ex. 1985) (stating tha t a court abuses i ts d isc retion when it acts w ithout reference to any guiding rule or princi ple or acts arbitrarily or unreasonably). The petition for writ of m andam us is denied.

Brian Quinn Justice