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In re Metropolitan Property and Casualty Insurance Co.

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018

IN RE: METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, ET AL, RELATORS METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, ET AL, Relators
v.
HON. J. CLAY GOSSETT, Respondent

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice

         Metropolitan Property and Casualty Insurance Company, Metropolitan Casualty Insurance Company, Metropolitan Direct Property and Casualty Insurance Company, Metropolitan General Insurance Company, Metropolitan Lloyds Insurance Company of Texas, and Economy Premier Insurance Company (collectively "Metropolitan") seek mandamus relief from the trial court's orders denying its motion to transfer venue and motion to sever.[1] We deny the writ.

         Background

         In 2013, Patti Wan was involved in an automobile collision with Fidel Campos's minor son, an uninsured motorist. Wan was covered by an insurance policy issued by Metropolitan that included uninsured motorist (UM) coverage. Metropolitan paid Wan's property damage and bodily injury claims, less her $250 deductible on the property claim. Metropolitan obtained partial subrogation from Campos and entered into a repayment agreement with him. Metropolitan reimbursed Wan's deductible in April 2017.

         Subsequent to the collision, Wan sued Campos for personal injuries allegedly sustained in the collision. In October 2017, she amended her petition to include allegations against Metropolitan for breach of contract, conversion, breach of fiduciary duty, civil conspiracy, and declaratory judgment. She alleged that Metropolitan failed to timely reimburse her deductible, and she sought certification of a class. Metropolitan moved to transfer venue to Dallas County and sever the claims against it from the claims against Campos. Following a hearing, the trial court denied both motions. This original proceeding followed.

         Availability of Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion by failing to analyze or apply the law correctly. Id. As the party seeking relief, the relator bears the burden of demonstrating entitlement to mandamus relief. Id. at 837; In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding.).

         An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. In re Prudential, 148 S.W.3d at 136. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. This determination is not "abstract or formulaic, " but rather is a practical and prudential determination. Id. at 136. Flexibility is the principal virtue of mandamus relief and rigid rules are "necessarily inconsistent" with that flexibility. Id. Thus, the supreme court has held that "an appellate remedy is not inadequate merely because it may involve more expense or delay" than a writ of mandamus, however, the word "merely" must be carefully considered. Id. Appeal is not an adequate remedy when the denial of mandamus relief would result in an "irreversible waste of judicial and public resources." Id. at 137. The decision whether there is an adequate remedy on appeal "depends heavily on the circumstances presented." Id. The decision is not confined to the private concerns of the parties but can extend to the impact on the legal system. Id.

         Severance

         In its first issue, Metropolitan contends the trial court abused its discretion when it denied the motion to sever Wan's claims against it from her claims against Campos. However, Wan filed a motion to lift the stay imposed by this Court, on grounds that she no longer desired to contest the severance.[2] In her response to Metropolitan's petition, Wan withdrew her opposition to the motion to sever and agreed to sever her claims against Metropolitan from her claims against Campos.

         When, as in this case, a controversy no longer exists between the parties, the case becomes moot. Reule v. RLZ Inv., 411 S.W.3d 31, 32 (Tex. App.-Houston [14th Dist.] 2013, no pet.). When a judgment "cannot have a practical effect on an existing controversy, the case is moot and any opinion issued on the merits in the appeal would constitute an impermissible advisory opinion." Id. An opinion is advisory when it neither constitutes specific relief to a litigant nor affects legal relations. See Houston Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, 401 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         Accordingly, because Wan has expressly represented to this Court that she no longer contests Metropolitan's entitlement to a severance, we conclude that this issue is now moot. See Reule, 411 S.W.3d at 32. ...


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