concurring.
Justice John F. Onion, Jr., the former Presiding Judge of the Texas Court of Criminal Appeals, once observed “that appellate judges watch from on high the legal battle fought below, and when the dust and smoke of the battle clears they come down out of the hills and shoot the wounded.” Black v. State, 723 S.W.2d 674, 677 n. 1 (Tex.Crim. App.1986) (Onion, J., dissenting). The difference here is that the outcome of the battle is still far from clear.
We know that the plaintiffs adjusted their pleadings and asked for a severance on the morning of trial. We know that the special exceptions to Union City’s cross claims, which were handwritten, were also filed on the morning of trial. While the record is far from clear on this point, the circumstances suggest these eleventh-hour filings may not have resulted from mere carelessness, and in fact may have had more sinister motive. However, we also know that Union City— apparently focused on the original purpose of the hearing — failed to object to the severance until the next morning, when jurors had been in the hall for forty minutes and all the severed parties were long gone from Starr County.
To complicate matters, during oral argument it became clear none of the litigants knew with any degree of certainty whether, or how, Union City could effectively pursue its cross claims if the severance were allowed to stand. The dissent argues, not without some justification, that Texas has long required contribution claims to be tried together with the underlying suit, and that there are very practical reasons for doing so. Indeed, even a casual reading of the legislative history behind the 1987 tort reform legislation leaves little room for doubt that § 33.016(b) of the civil practice and remedies code maintains a defendant’s right — previously found in former article 2212a and the now-repealed § 33.017 — to litigate contribution claims in the primary suit. See John T. Montford and Will G. Barber, 1987 Texas Tort Reform: The Quest For A Fairer and More Predictable Texas Civil Justice System, 25 Hous.L.Rev. 245, 296-97 (1988) (discussing hypothetical situation that is strikingly similar to the present case).
But while I may agree with the dissent that the trial court’s decision to sever Union City’s cross- and third-party claims may have unfortunate consequences for any trial of the severed claims, much less a subsequent appeal, I also recognize that Union City waived the error by not making a timely objection. Because I agree this prevents us from reaching the merits, I concur in the majority’s denial of the writ of mandamus. Even so, in the interest of justice and fairness, I hasten to add that the trial court could avoid the problems foreseen by the dissent if it would simply rescind the order of severance and try all of the liability issues together.