dissenting.
I most respectfully dissent. I would deny Relator’s petition for writ of mandamus.
The majority holds that “rule 266 controls our decision.” The opinion then states that “rules 265, 266 and 269 constitute the ‘guiding rules and principles’ ” by which to measure the trial court’s action.
These rules pertain to the trial court’s authority to revise the order of proceeding in a trial to afford a defendant the right to open and close in adducing its evidence or arguing its case. They do not relate to party alignment. On the contrary, rule 266 specifically retains the original designation of the parties “plaintiff” and “defendant.”
The core issue here is the alignment of the plaintiff and defendant. A Texas court has historically had the discretion to align its litigants. This often occurs in multiple party litigation; the trial judge therein is specifically charged with the duty to align the parties, not on the basis of burden of proof as in rule 266, but to avoid antagonism between parties on the same side of the case, preliminary to assigning the number of peremptory challenges by the parties. Tex.R.Civ.P. 233; Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974); American Cyanamid Co. v. Frankson, 732 S.W.2d 648 (Tex.App.—Corpus Christi 1987). In none of these cases are rules 265, 266 or 269 mentioned, nor is the standard for review of the alignment issue the respective litigants’ burden of proof on the whole case.
Doubtless the most prolific occasion for trial court alignment has been appeals from awards of the Texas Industrial Accident Board by workers’ compensation carriers. These are routinely granted. See the dissent by Justice Keltner in Royal Ins. Co. of America v. Szuma, 731 S.W.2d 953, 958 (Tex.App.—Fort Worth 1987, writ ref’d n.r.e.). Rules 265, 266 and 269 are, likewise, not the basis for party alignment in these cases.
Significantly, trial courts have not been reversed even in those few cases in which they have refused to align the workers’ compensation parties. Ibid; Texas Employers’ Ins. Ass’n v. Brown, 226 S.W.2d 233 (Tex.Civ.App.—Amarillo 1949). Likewise in the numerous multiple party suits involving peremptory challenges, the authority of the trial court to align has not been denied.
The majority opinion recognizes “the admitted tactical disadvantage of being cast before the jury as defendant rather than a plaintiff.” That litigant who suffers defeat in “the race to the courthouse” will be the permanent repository of that disadvantage, unless its adversary does not have the burden of proof on any aspect of the whole case. Tex.R.Civ.P. 265, 266 and 269. This holding encourages the early filing of lawsuits and could be tactically disadvantageous to those parties who sustain extended, incapacitating injuries.
Although we find no cases of trial court alignment in compulsory counterclaim litigation, I believe that it is clear that the trial court had authority to align, independent of rules 265, 266 or 269. Our courts have demonstrated their reluctance to interfere with trial court rulings in aligning the litigants before them. Alignment is a trial court ruling that I do not believe we should disturb on petition for writ of mandamus. I would deny this petition.