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Click here for the full text of this decision FACTS:Lucinda J. Myers originally sued Mega Life and Health Insurance Co. for claims arising from Mega’s alleged refusal to honor a life insurance policy covering her husband. The latter died of cancer shortly after the policy was allegedly issued. Among other things, Mega asserted (via counterclaim and affirmative defense) that the policy was subject to rescission due to the pre-existing nature of the insured’s illness and his failure to disclose same when applying for the insurance. By a letter ruling at issue, the trial court ordered that Mega’s claim of rescission initially be tried to the jury. If the jury were to find against Mega on the issue, the trial court ordered that the claims of Myers then be tried. Myers contends the ruling realigned the parties and impermissibly shifted the burden of proof in the case. HOLDING:The court denies the petition for writ of mandamus. The record does not illustrate that Myers raised the issue of realignment below. Nor does it reveal that she invoked either Texas Rules of Civil Procedure 266 or 269 as basis establishing the impropriety of first trying the matter of rescission. Thus, those grounds cannot be raised for the first time via a petition for mandamus. Mega concedes, in its response to the petition for writ, that it has the burden to prove the elements of rescission. Moreover, nothing in the ruling of the trial court purports to relieve the carrier of same. A trial court has great discretion over the conduct of a trial. The court observes that disposing of the rescission counterclaim could dispense with the need to try Myers’ claims. Given this and because the conservation of judicial resources and the efficient resolution of disputes are recognized policy goals, the trial court’s decision did not lack reason. While the equitable relief of rescission can be asserted defensively, nothing that prevents one from asserting it affirmatively through an original petition. It appears that the trial court would have had the discretion to sever and try the claim of rescission separately from those dependent upon the existence of a contract. Because the trial court could have so severed and tried the claims, the court finds nothing arbitrary or unreasonable in it following a procedure having a like effect. “[T]he procedure of the trial court may be unique, but we cannot say that it exceeds the vast discretion given such bodies in conducting trials. Ever increasing docket loads should stimulate the adoption of creative procedures for speedily addressing disputes. And, we hesitate to interfere with the exercise of those creative efforts so long as they comport with lawful discretion.” OPINION:Brian Quinn, CJ; Quinn, CJ, Reavis and Hancock, JJ.

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