law-consolidation | severance

A trial court has broad discretion in consolidating and severing cases, see Tex. R. Civ. P. 41, 174, and we
review such decisions for abuse of that discretion.  Guar. Fed. Sav. Bank v. Horshoe Operating Co., 793 S.W.
2d 652, 658 (Tex. 1990) (op. on reh’g).  

Rule 174 of the Texas Rules of Civil Procedure governs consolidation of
actions. Rule 174(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Tex. R. Civ. P. 174(a). Rule 174 give the trial court broad discretion to consolidate cases with common issues
of law or fact. See Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 737 (Tex. App.-Houston [1st Dist.]
1992, writ denied). As the Texas Supreme Court stated in Womack v. Berry:

The use of the permissive word "may" imports the exercise of discretion in such matters. But the court is not
vested with unlimited discretion, and is required to exercise a sound and legal discretion within limits created by
the circumstances of the particular case. The express purpose of the rule is to further convenience and avoid
prejudice, and thus promote the ends of justice. When all of the facts and circumstances of the case
unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance
supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced
thereby, there is no room for the exercise of discretion.

Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956); Dal-Briar Corp v. Baskette, 833 S.W.2d 612, 615 (Tex.
App.-El Paso 1992, no writ). We apply the same principles in considering the propriety of consolidation under
rule 174 as apply to the ordering of separate trials under that authority. See Dal-Briar Corp, 833 S.W.2d at

The trial court may consolidate actions that relate to substantially the same transaction, occurrence, subject
matter, or question. Crestway Care Ctr., Inc. v. Berchelmann, 945 S.W.2d 872, 873-74 (Tex. App.-San Antonio
1997, orig. proceeding) (op. on rehearing) (en banc); Lone Star Ford, Inc., 838 S.W.2d at 737. The actions
should be so related that the evidence presented will be material, relevant, and admissible in each case.
Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 716 (Tex. App.-Dallas 1997, no pet.); Crestway
Care Ctr., Inc., 945 S.W.2d at 873-74. A trial court may abuse its discretion by "incorrectly resolving the
relatedness issue" or by consolidating cases when the consolidation results in prejudice to the complaining
party. Crestway Care Ctr., Inc., 945 S.W.2d at 874 (citing Lone Star Ford, 838 S.W.2d at 738).

In deciding whether to consolidate, the trial court must balance the judicial economy and convenience that may
be gained by the consolidation against the risk of an unfair outcome because of prejudice or jury confusion.
See Dal-Briar, 833 S.W.2d at 615; Owens-Corning Fiberglas Corp., 942 S.W.2d at 716. Even if the cases
share common questions of law and fact, an abuse of discretion may be found if the consolidation results in
prejudice to the complaining party. Lone Star Ford, Inc., 838 S.W.2d at 738. However, we may not presume
prejudice; it must be demonstrated. Id. Where the cases do share common questions of law and fact, and the
record does not reveal actual prejudice, the consolidation does not provide a basis for reversal. See Hall v.
Dorsey, 596 S.W.2d 565, 569 (Tex. Civ. App.-Houston [1st Dist] 1980, writ ref'd n.r.e.).