in Re: Carol Gaylene Osmond, Relator

NO. 07-03-0470-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JANUARY 24, 2005 ______________________________ IN RE CAROL GAYLENE OSMOND, RELATOR _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. MEMORANDUM OPINION By a Petition for Writ of Habeas Corpus, relator Carol Gaylene Osmond challenges an order of contempt and her restraint pursuant thereto. We deny relief. This original proceeding arises from a dispute over whether William and Lynn Luster, paternal grandparents, or Carol and Larry Osmond, maternal grandparents, will have possession of Christyn Shanae Luster (the child). The child has been involved in, or the subject of, three different suits affecting the parent child relationship (SAPCR) in the 100th District Court of Carson County ("the Texas court"). She has also been the subject of two proceedings in Oklahoma: one filed by the Osmonds in the District Court of McIntosh County, Oklahoma ("the Oklahoma court"), wherein the Osmonds sought to be named guardians for the child and sought an emergency order naming them temporary custodians of the child, and a separate proceeding in the Oklahoma court in which the Lusters sought registration of the Texas court's orders granting them custody of the child. In initiating their Oklahoma suit via verified pleadings, the Osmonds (1) asserted that the child was then, and had been for several months, living with them, and (2) disclosed that they knew proceedings were pending in Texas by which the Lusters were seeking custody of the child. (1) The Oklahoma court initially granted emergency custody to the Osmonds, but subsequently determined that Texas had jurisdiction over the child and dissolved its prior orders. In the separate proceeding wherein the Osmonds and the child's parents were named, and appeared, as parties, the Oklahoma court directed registration of Texas child custody orders as orders of the Oklahoma court, recognized the Lusters as custodians of the child and authorized all law enforcement personnel to aid the Lusters in securing possession of the child. On August 14, 2003, after the Oklahoma court registered the Texas custody orders, relator Carol Osmond traveled to Gray County, Texas, to attend a hearing in an SAPCR involving two other grandchildren of the Osmonds, and in which the Osmonds had intervened seeking managing conservatorship. (2) While in Texas, Carol was arrested pursuant to a writ of commitment based on an order of the Texas court holding her in contempt for failing to produce the child as ordered. The Texas court held a hearing at which Carol and her counsel appeared. The court set bond for Carol and continued the case to allow her to produce the child. Carol made bond. When she subsequently appeared before the Texas court without the child, another order was entered finding her in contempt. Specifically referencing the court's powers set out in article 11 of the Code of Criminal Procedure, the order directed her commitment to the Carson County Jail until such time as the child was produced. Carol filed a Petition for Writ of Habeas Corpus with this court. We granted temporary relief directing that she be released from confinement upon posting bond. Upon full consideration of relator's briefs, the issues presented, the law and the record presented, we deny relief. We vacate our previous order granting temporary relief and directing that relator be released from the Carson County jail upon posting bond. Relator Carol Osmond is remanded to the custody of the Sheriff of Carson County, to be held by him in accordance with the order of the Judge of the 100th District Court of Carson County which was signed on October 7, 2003, subject to further orders of the 100th District Court. See Tex. R. App. P. 52.8. Per Curiam 1. § - 2. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78 (1959). Mandamus. Because Trinity's challenge to the order denying severance as to the article 21.55 claim is addressed to an abuse of discretion vested in the trial court, Trinity carries a heavy burden. To prevail Trinity "must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). In reviewing rulings within the trial court's discretion, we may not substitute our judgment for that of the trial court. Id. at 918. Nor may we resolve factual disputes in mandamus proceedings. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). However, our review of the trial court's determination of applicable law is less deferential because a trial court has no discretion to determine what the law is or apply the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus, a clear failure of the trial court to analyze or apply the law correctly will constitute an abuse of discretion. A writ of mandamus will issue only where there is no adequate remedy at law and to correct "a clear abuse of discretion." (Emphasis added). Johnson, 700 S.W.2d at 918. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The fact that a trial judge may decide a matter within his discretion in a different manner than an appellate judge in similar circumstances does not demonstrate that an abuse of discretion has occurred. Id. Analysis We commence our analysis by focusing on Trinity's grounds for its motion for severance and the coverage provision of the UIM endorsement. By its second motion for severance and abatement, in summary, Trinity contended: First. The UIM claim should be severed from the extra-contractual claims because evidence of settlement negotiations and insurance policy limits may be relevant to the extra-contractual claims but is not admissible as to the UIM claims. Second. Trinity should not be required to undergo the expense of discovery as to the extra-contractual claims, when there is a substantial possibility that the damages awarded in the contract claim will not exceed the limit of the tortfeasor's policy, and thus will not even trigger the UIM endorsement, which would preclude any necessity to discover or litigate the extra-contractual claims. The coverage provision of the UIM endorsement in the policy provides: We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured, or property damage caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. Any judgment for damages arising out of a suit brought without our written consent is not binding on us. If we and you do not agree as to whether or not a vehicle is actually uninsured, the burden of proof as to that issue shall be on us. By their second amended petition by which Trinity was joined as a defendant, the Brainards alleged that although they had made a claim for UIM benefits under the policy before filing suit against Trinity, no benefits were paid under the policy. In addition to contract damages, the Brainards also sought to recover interest and attorney's fees under article 21.55, in addition to claims of good faith/unfair settlement practices. Severability of UIM and Article 21.55 Claims Although the Brainards do not challenge Trinity's statement that it made an offer to settle the UIM claim, they contend severance was not proper under Lusk v. Puryear, 896 S.W.2d 377 (Tex.App.--Amarillo 1995, orig. proceeding). From the limited record, it appears that the trial court based its decision to deny the severance of the UIM prompt payment on our decision in Lusk; however, Lusk is not controlling because of the provisions of the UIM endorsement, the recent decision in Allstate Ins. Co. v. Bonner, 51 S.W.3d 289 (Tex. 2001), and other reasons discussed below. Lusk did not involve a claim for UIM benefits. In Lusk, we held that a cross-action against an insurer for breach of contract and for statutory damages for failure to promptly pay personal injury protection benefits constituted one cause of action and that a severance of the claims was improper. 896 S.W.2d at 380. However, unlike personal injury protection benefit coverage, the provisions of the UIM endorsement condition payment of benefits upon a determination of liability of the UIM motorist and damages. In Henson v. Texas Farm Bureau Mut. Ins. Co, 989 S.W.2d 837, 839-40 (Tex.App.--Amarillo 1999), aff'd, 17 S.W.3d 652 (Tex. 2000), we denied an award of prejudgment interest because the condition precedent provision in the contract for payment of the UIM claim remained to be determined when the UIM claim was presented. The Brainards' claim for UIM benefits is contractual in nature. See Henson, 17 S.W.3d at 653-54; see also U.S. Fire Ins. Co v. Millard, 847 S.W.2d 668, 672-73 (Tex.App.--Houston [1st Dist.]1993, orig. proceeding) (holding that a breach of insurance contract claim is separate and distinct from bad faith, Insurance Code, or DTPA claims, and [u]ninsured motorist claims and bad faith claims have been recognized as separate and distinct causes of action which might each constitute a complete lawsuit within itself. Citing State Farm Ins. Co. v. Wilborn, 835 S.W.2d 260, 261 (Tex.App.--Houston [14th Dist.] 1992, orig. proceeding). In Bonner, 51 S.W.3d at 291-92, which involved a prompt payment claim under UIM endorsement, the Court held that in order to establish a UIM claim under the policy, the claimant must prove not only that the UIM driver negligently caused the accident that resulted in the covered damages, but also that all applicable policy provisions were satisfied. The Court also denied an award of attorney's fees under section 6 of article 21.55. Also, in State Farm Mut. Auto Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex.App.--San Antonio 1998, no pet.), cited with approval in Bonner, 51 S.W.3d at 292, the court stated the rules that a claimant must (1) establish the negligence of the UIM operator and the amount of claimant's damages, and (2) that the operator was in fact uninsured. State Farm Ins. Co. v. Wilborn, 835 S.W.2d 260 (Tex.App.--Houston [14th Dist.] 1992, orig. proceeding) and U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding) recognize that because uninsured motorist claims and bad faith claims are separate and distinct causes of action and each may constitute a complete lawsuit, severance of the claims and abatement of the bad faith claims is appropriate because of the irreconcilable conflict between the respective parties' interests if severance is denied. Further, in Millard, 847 S.W.2d at 673, in its discussion of abatement the court recognized that judicial efficiency may be enhanced by severance and abatement because litigation of the extra-contractual claims may never be required because of the results of the contract litigation, which is addressed in Trinity's second ground. (3) Because (1) the claim for UIM benefits is contractual and the claim for penalty under article 21.55 controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the article 21.55 claim is not so interwoven with the tort action and contract action that they involve the same facts and issues, the claim for damages under article 21.55 was severable. Mandamus Having determined that the article 21.55 claim was severable, we must now determine whether a writ of mandamus is appropriate, which requires that we find that (1) the trial court abused its discretion, and (2) that Trinity has no adequate remedy at law. Regarding the abuse of discretion finding, our analysis above demonstrates that it is clear that a UIM claim does not mature until the claimant establishes that the negligence of the UIM motorist (1) caused the accident and the amount of damages, (2) the motorist was in fact underinsured, and (3) severance of the article 21.55 claim as it relates to the UIM claim is appropriate, and the trial court abused its discretion in denying the severance of the article 21.55 claim. Regarding the adequate remedy at law factor, Trinity contends that it has none and that mandamus is necessary because of the unacceptable dilemma presented if it is forced to try both the fundamental issues of liability in conjunction with claims addressing its evaluation of liability. Wilborn, 835 S.W.2d at 262. As in Millard, 847 S.W.2d at 675-76, we conclude that Trinity has a substantial right to the exclusion from evidence of its settlement offers and negotiations in the trial of the UIM claim. Also, severance is favored for reasons of judicial economy and to avoid the potential of unnecessary expense to the parties for similar reasons. Id. We conclude that Trinity does not have an adequate remedy at law. Laches and Motion for Sanctions We have not overlooked the Brainards' defense of laches and motion for sanctions. Contending that Trinity knew or should have known that the trial court intended to deny severance of the article 21.55 claim since at least August 8, 2001, the Brainards assert that laches bars mandamus and that Trinity should be sanctioned because the mandamus proceeding was merely brought for delay. We disagree. Even if counsel for Trinity were aware in early August that the trial court had decided to deny the severance as to the article 21.55 claim, the trial court did not sign its order granting the motion as to some claims and denying the severance as to the article 21.55 claim until September 14, 2001. Because the petition for mandamus was filed on September 17, 2001, laches does not apply and the Brainards' motion for sanctions is denied. Concluding that the trial court abused its discretion in denying severance of the article 21.55 claim as related to the Brainards' UIM claim, and finding that Trinity has no adequate remedy at law, we conditionally grant the petition for writ of mandamus. We are confident the trial court will now grant the motion to sever the article 21.55 claim from the contract claim in accordance with this opinion. We instruct the Clerk to issue the writ only if the trial court fails to grant the motion within thirty days. Don H. Reavis Justice Publish. 1. Real Parties in interest include Lilith Brainard, Sally Brainard Wicker, E. Swasey F. Brainard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard and the Estate of Edward H. Brainard, II, collectively referred to as the Brainards. 2. The order of dismissal as to Premier and its operator did not dismiss the Brainards' claims against Trinity. 3. Severance of the article 21.55 claim will not require additional litigation because the trial court did order a severance of the bad faith and article 21.21 claims.