I respectfully dissent from the majority's decision to overrule the Appellees' Motion for Rehearing. By their motions, the appellees argue that the Wilsons' wrongful death claims are not so interwoven with Tucker's claim for property damage to its truck as to make a partial remand of Tucker's claim alone unfair. I agree and would grant rehearing and modify our prior opinion and judgment to reverse and remand only Tucker's claim and not the claims of the Wilson plaintiffs.
Texas Rule of Appellate Procedure 44.1(b)1 provides with regard to reversible error that, "[i]f the error affects part of, but not all, the matter in controversy, and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to that part affected by the error." Accordingly, reversal of all claims and parties is required only when the rights of all such parties are so interwoven or dependent on each other as to require a reversal of the entire judgment. Plas-Tex, Inc.v. U.S. Steel Corp., 772 S.W.2d 442, 446 (Tex. 1989);Turner, Collie Braden v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982).
Moreover, whether a partial remand is appropriate under this test is determined on a case-by-case basis. See Ex parteElliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (order expunging criminal records must encompass all persons and agencies in possession of relevant criminal records and cannot be partially remanded as to one agency, since reversal of the entire judgment is necessary to provide the appellant with full and effective relief); see also Donwerth v.Preston II Chrysler-Dodge, 775 S.W.2d 634, 642 (Tex. 1989) (Ray, J., concurring).
Most of the cases discussing partial remand involve judgments against multiple defendants with cross-claims for indemnity. Reversal and retrial of claims against one defendant generally affects the cross-claims and the ultimate division of responsibility among the defendants such that they cannot be separated without unfairness to the parties and must all be reversed and remanded for new trial. See Turner, 642 S.W.2d at 166; Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766, 771 (Tex.App. — Corpus Christi 1986, writ ref'd n.r.e.).
In Turner, Brookhollow purchased land for a housing development and hired Turner to design, and Whitelak to construct, the sewer system. After the sewer system as constructed proved unworkable, Whitelak sued Brookhollow for recovery of the balance owing on its construction contract. Brookhollow in turn brought both a claim for indemnity and an independent cross-claim for breach of contract against Turner based on the defective sewer system. The trial court granted a judgment for Whitelak against Brookhollow, and for Brookhollow against Turner for indemnity. In addition, the trial court granted judgment for Brookhollow against Turner on the cross-claim. The only error found on appeal, however, involved the damages awarded to Brookhollow on his cross-claim against Turner. Nevertheless, the Texas Supreme Court concluded that "the various claims for damages are so intertwined that one cannot be severed from the others and retried alone." The Court noted that liability in the first trial had been established by jury findings that Turner's negligence *Page 190 was the sole proximate cause of the sewer's defects. The prospect of inconsistent liability findings in the second trial, such that Turner might remain liable to Brookhollow for indemnity as a result of the first trial, but be exonerated from liability for the same alleged breach in the retrial of Brookhollow's cross-claim, was sufficiently intolerable for the Court to require reversal and remand of all claims for a new trial.
In Diamond Shamrock, Wendt filed suit against Medina, the laboratory at which insecticide was applied, and Diamond Shamrock, the insecticide manufacturer, seeking damages for the death of his bull. The trial court granted judgment against both defendants and granted Medina indemnity against Diamond Shamrock. However, only Diamond Shamrock appealed and convinced this Court that error required reversal of Wendt's claims against it. Nevertheless, this Court determined that the liability of Medina and Shamrock were so interwoven as to require a reversal and remand as to both.
In the present case, however, the claims involved are those of multiple plaintiffs for the same negligent conduct of the defendant. The Wilsons' claims for wrongful death have no connection to Tucker's claim for the loss of his truck aside from the circumstance that the rollover of that truck ultimately caused both. With regard to liability for the rollover, all parties had a fair trial about which we sustained no error. This Court reversed the trial court's judgment only because the great weight of the evidence supported a higher award to Tucker for the value of his truck than the jury had assessed. That error had no connection to the defendants' liability for the accident or the amount of the Wilson's wrongful death damages. Yet, because of error in the damages awarded to Tucker for the value of its truck, the majority feels compelled to reverse and remand also as to the Wilsons' claims for wrongful death.
The majority opinion cites State Dep't of Highways andPublic Transportation v. Cotner, 845 S.W.2d 818 (Tex. 1993) (per curiam), as requiring a general remand of all claims. The Cotners, husband and wife, were driving together over an icy bridge maintained by the State when their car went out of control and crashed. They sued the State for the wife's bodily injuries and the husband's mental anguish and loss of his wife's society, companionship, household services and consortium. After finding the State responsible for the dangerous condition on the bridge, a jury found significant damages in favor of the wife, but slight damages to the husband. The trial court accordingly granted judgment on the wife's damages, but severed and ordered new trial on the husband's claims.2
In a per curiam opinion, the Texas Supreme Court reversed, holding that Texas Rule of Civil Procedure 41 does not permit a trial court to sever a case after it has been submitted to the trier of fact. In addition, the court noted, as an alternate reason for denying severance or partial new trial, "the facts and issues related to liability for the accident are the same for [husband] as for [wife], and to some extent [husband's] damage allegations are related to the extent of damages [wife] suffered." Id. at 819.
However, a review of Cotner in the appellate court shows that the State also claimed contribution from the husband for the damages to the wife, and the jury had found the husband partially responsible for the crash. See State Dept. ofHighways and Public Transp. v. Cotner, 826 S.W.2d 692 (Tex.App. — Waco 1992), rev'd, 845 S.W.2d 818 (Tex. 1993). Thus, a new trial on the husband's claim for damages would require a new determination of responsibility for the crash between the State and the husband, possibly altering the damage claims of both the husband and the wife. Accordingly, the interrelation of damages and liability between the various claims in Cotner brings it within the scope of Turner and Diamond Shamrock, and distinguishes it from the present case where there are no such obstacles to a separation of the claims of the Wilsons from the claim of Tucker. *Page 191
Absent the complications generally present when multiple defendants raise claims for indemnity and cross-claims against each other, the only prospect for inconsistent findings on retrial in the present context of multiple plaintiffs' claims is the possibility that the defendant might be found liable to one plaintiff, but not to another, for the same conduct. However, inconsistencies of this nature are inherent in a legal system that allows separate plaintiffs to control their own lawsuits and to sue the same defendant for the same conduct either together or separately as they may choose. I find less unfairness in the present case in allowing for the possibility of a different liability finding as to Tucker on retrial, than in requiring the parties to relitigate claims against the Wilsons which have already been fairly tried and concluded.
Thus, absent any error in that part of the judgment concerning the Wilsons' claims, I would not reverse the legitimate result of the first trial merely for the sake of trying everything together again, but would reverse only that portion of the judgment concerning Tucker's claim.3