Dow Chemical Co. v. Garcia
909 S.W.2d 503
Tex.
1995
Check Treatment

The DOW CHEMICAL COMPANY, Relator, v. The Honorable Ricardo H. GARCIA, Judge, Respondent. The DOW CHEMICAL COMPANY, Relator, v. The Honorable Gary SANDERSON, Judge, Respondent.

Nos. 95-0505, 95-0633

Supreme Court of Texas.

Nov. 2, 1995

503 S.W.2d 503

Argued Oct. 10, 1995.

at a contempt hearing on July 19, 1994. An attorney was appointed for McKenzie and the case held over until August 8, 1994, at which point McKenzie was found in contempt. The court set a sentencing hearing on November 18, 1994, but McKenzie failed to appear.

Upon McKenzie‘s failure to appear, the court issued a writ of attachment to bring McKenzie into custody for sentencing. McKenzie was once again taken into custody on April 20, 1995.

At the same time as these proceedings were developing, McKenzie was involved in two other sets of proceedings involving child support. The first set of proceedings was initiated by the Guardian Ad Litem for McKenzie‘s child. The Guardian Ad Litem filed motions to hold McKenzie in contempt for non-payment of child support on December 8, 1993, and on June 3, 1994. But on October 4, 1994, the district court, without a hearing and without making findings, dismissed both of the Guardian Ad Litem‘s motions for contempt.

The second set of parallel proceedings began on October 13, 1994, when the district court signed an order requested by the Attorney General of the State of Texas directing that McKenzie‘s child support payments be made to the office of the Attorney General. On February 16, 1995, the Attorney General initiated a motion for enforcement and contempt owing to McKenzie‘s continued refusal to pay child support.

The district court held a contempt hearing on the Attorney General‘s motion on May 9, 1995. The court found McKenzie in contempt and ordered him placed in jail pursuant to a commitment order. The order holding McKenzie in contempt and committing him to the County jail erroneously showed the Guardian Ad Litem as the movant even though the district court had previously dismissed both of the Ad Litem‘s motions for contempt.

McKenzie then petitioned this Court for a writ of habeas corpus. We ordered his release on bond pending consideration of his petition. McKenzie‘s petition stated that he was being restrained “not by virtue of any warrant, writ, commitment, or process of any court except by virtue of a purported Order Holding Respondent in Contempt for Failure to Pay Child Support and for Commitment to County Jail.” This statement is incomplete because McKenzie was also in custody pursuant to the writ of attachment issued on December 1, 1994, for failing to appear at his sentencing hearing on his prior finding of contempt.

On June 22, 1995, the district court vacated its May 9th order holding McKenzie in contempt and for commitment to county jail because the Guardian Ad Litem‘s motions for contempt had been previously dismissed. As a result, McKenzie‘s application for writ of habeas corpus, which only challenges the May 9 commitment order, is now moot, and we accordingly dismiss his application for writ of habeas corpus as moot. We express no judgment on the viability of the writ of attachment used to bring McKenzie into custody for failing to appear at his November 18, 1994 sentencing hearing. The district court may determine the status of the writ of attachment signed on December 1, 1994.

Joe R. Greenhill, Bob E. Shannon, Patrick O. Keel, Austin, Richard L. Josephson, Robert J. Malinak, Cynthia G. Crawford, Houston, for Dow Chemical Co. in No. 95-0505.

Michael D. Sydow, Robin M. Ziek, Houston, Frank R. Nye, Jr., Rio Grande City, Pamela S. Hoerser, Kay K. Daniel Morgan, Houston, for Garcia.

Joe R. Greenhill, Bob E. Shannon, Patrick O. Keel, Joseph R. Knight, Austin, Richard L. Josephson, Robert J. Malinak, Cynthia G. Crawford, Houston, for Dow Chemical Co. in No. 95-0633.

John M. O‘Quinn, Richard N. Laminack, Houston, James P. Wallace, Austin, Luther H. Soules, III, San Antonio, Robinson C. Ramsey, Houston, Joel Grossman, Beaumont, Vincent Lee Marable, Wharton, Michael T. Gallagher, Houston, Sara S. Murray, San Antonio, for Sanderson.

CORNYN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HIGHTOWER, HECHT, ENOCH and SPECTOR, Justices, join.

In these two original proceedings, the Dow Chemical Company complains of trial court orders severing claims against it from claims against the Dow Corning Corporation and others concerning silicone gel breast implants. Because the present procedural posture of these cases proscribes the relief Dow Chemical seeks, we dismiss its petitions for writ of mandamus as moot.

Dow Chemical and Corning Incorporated each own half of the Dow Corning Corporation, a leading manufacturer of silicone products, including silicone gel breast implants. In the underlying cases, women who received silicone implants charge Dow Chemical, Corning, Dow Corning, and the doctors who performed the implant operations, with, among other things, negligence, gross negligence, products liability, fraud, conspiracy, breach of warranty, misrepresentation, and violations of the Deceptive Trade Practices-Consumer Protection Act. On May 15, 1995, Dow Corning filed for protection under Chapter 11 of the Bankruptcy Code. On the plaintiffs’ motion, the trial courts severed the claims against Dow Corning and other defendants, and continued to proceed with claims against Dow Chemical. Dow Corning then removed all breast implant cases pending against it and Dow Chemical to federal court, and sought transfer of those cases to the federal district court in the district in which Dow Corning‘s bankruptcy is pending. The federal district court ordered transfer of all claims against Dow Corning, but determined that it did not have jurisdiction over the claims against Dow Chemical and other non-debtors because it determined that those claims were not “related to” Dow Corning‘s bankruptcy. See 28 U.S.C. § 1334(b). Dow Chemical and Dow Corning have appealed that ruling to the United States Court of Appeals for the Sixth Circuit.

Before this Court Dow Chemical complains that the trial courts abused their discretion in severing the claims against it from the claims against Dow Corning because all the claims present the same issues of fact and law and because all of the plaintiffs’ claims against Dow Chemical are derivative of or dependent on Dow Corning‘s liability. Dow Chemical also argues that unless mandamus is granted and the claims reunited, it will be deprived of its right to contribution from Dow Corning. Plaintiffs argue that they have independent claims against Dow Chemical, and also that these mandamuses themselves are moot because this Court can never give Dow Chemical the relief it seeks, namely, the rejoining of claims against it and Dow Corning.1

Without addressing the merits of the severance or contribution arguments, we agree with the plaintiffs that no action by this Court can effect the relief Dow Chemical requests. No party suggests that the claims against Dow Corning will be resolved anywhere other than in the federal system, which means that those claims cannot be rejoined in state court with the claims against Dow Chemical. Directing the trial courts in these cases to vacate their severance orders can have no practical effect, and we will not issue mandamus “if for any reason it would be useless or unavailing.”

.

Accordingly, for the reasons explained above, we vacate our stay2 and dismiss both original proceedings as moot.

Justice BAKER dissenting, joined by Justice OWEN.

I respectfully dissent from the Court‘s order dismissing these cases. I would abate both proceedings until the cases are remanded to state court. A state court should proceed no further in an action in which a notice of removal has been filed unless and until the case is remanded. 28 U.S.C. § 1446(d); see also

. “A state court has no power to proceed with a case which has been properly removed to federal court.”
; see also
(holding that a state court has no power to set aside a default judgment after removal has been perfected). The Court should await remand before taking any action.

Notes

1
At oral argument before this Court and in its response to the plaintiffs’ motion to dismiss as moot, Dow Chemical urged that claims against defendant doctors in cause number 95-0633 were also improperly severed from the claims against it. This concern, however, was apparently not mentioned at the trial court (see Relator‘s Exhs. N, S), was not mentioned in Dow Chemical‘s original petition for writ of mandamus, and is plainly subsidiary to its main argument throughout these proceedings: that it cannot be fairly tried separately from Dow Corning. Inasmuch as we have no authority to grant Dow Chemical the primary relief it seeks, and we are unwilling to speculate about future events in the trial court if the claims against Dow Chemical are finally remanded, we express no opinion on the propriety of the severance of the claims against the doctors.
2
We have found no authority denying the propriety of a state court‘s action in dismissing collateral proceedings such as a petition for writ of mandamus after a case has been removed to federal court, nor do the dissenting justices cite any. Notwithstanding our action, the trial courts, of course, may not proceed further unless and until the cases are remanded to them from the federal district courts. 28 U.S.C. § 1446(d).