Dalisa, Inc. v. Bradford
| Citation | 81 S.W.3d 876 |
| Decision Date | 21 June 2002 |
| Docket Number | No. 03-01-00042-CV.,03-01-00042-CV. |
| Parties | DALISA, INC. and Enchanted Rock Pictures, L.P./Lawren E. Bradford; Charles E. Pratt, III; Martha Claire Tompkins; John Francis Heard, Jr.; Mary Ellen Heard; Susan Frances Heard; Joan Heard; Michael Thomas Heard; Judith Jacks Lide; James H.W. Jacks; Jennifer Jacks Henley; Liza Billups Lewis; LeAnn Billups; James S. Billups III 1996 Trust No. 1; James S. Billups, III, Trustee; Francesca Billups Mannix; and Marcella Billups Symington, Appellants, v. Lawren E. BRADFORD, Charles E. Pratt, III; Martha Claire Tompkins; John Francis Heard, Jr.; Mary Ellen Heard; Susan Frances Heard; Joan Heard; Michael Thomas Heard; Judith Jacks Lide; James H.W. Jacks; Jennifer Jacks Henley; Liza Billups Lewis; LeAnn Billups; James S. Billups III 1996 Trust No. 1; James S. Billups, III, Trustee; Francesca Billups Mannix; and Marcella Billups Symington/Dalisa, Inc. and Enchanted Rock Pictures, L.P., Appellees. |
| Court | Court of Appeals of Texas |
Robert M. O'Boyle, Charles G. Orr, Shannon L. O'Leary, Haynes & Boone, L.L.P., Austin, for Appellants.
John J. McKetta III, Kathryn E. Allen, William W. Dibrell, Graves, Dougherty,
Hearon & Moody, P.C., Austin, for Appellees.
Before Justices YEAKEL, PATTERSON and POWERS.*
Dalisa, Inc., and Enchanted Rock Pictures, L.P. ("Dalisa" collectively) appeal from a summary judgment recovered against them by sixteen landowners ("Bradford" collectively).1 Bradford appeals from a related trial-court order denying his motion to cancel a lis pendens notice recorded by Dalisa. We will sustain Dalisa's motion that we dismiss the appeals for want of an appealable final order.
Under the Uniform Declaratory Judgments Act, Bradford sued Dalisa for the following declaratory relief: (1) Dalisa possessed no interest in Bradford's tract of land; (2) no contract pertaining to the land existed between Dalisa and Bradford; and (3) Dalisa was not entitled to record against the tract a lis pendens notice. See TEX. CIV. PRAC. & Rem.Code
§§ 37.001-.011 (West 1997) (the "Act" hereafter). Bradford also claimed a right to attorney's fees under section 37.009 of the Act.
Dalisa included in its answer the following counterclaims: an action for specific performance of an alleged contract or contracts wherein Bradford agreed to sell the land to Dalisa; actions for money damages based upon allegations of fraudulent or negligent misrepresentation made by Bradford in the course of negotiations aimed at selling the land to Dalisa; a statutory cause of action for declaratory relief establishing in Dalisa an equitable title or other interest in the land; and a claim for imposition of a constructive trust against the land securing large sums allegedly spent by Dalisa in reliance upon misrepresentations made by Bradford in the course of negotiations.
Bradford moved for partial summary judgment. After hearing, the trial judge signed a "Final Judgment" awarding Bradford the following declaratory relief: (1) Dalisa has no contract for the purchase of Bradford's land; (2) Dalisa owns no beneficial interest in the land; and (3) Dalisa possesses no other interest in the land sufficient to support the filing of a lis pendens notice or otherwise to cloud Bradford's title.
Immediately after signing the "Final Judgment," the trial judge severed from the cause Bradford's claim for declaratory relief under the Act, leaving for an independent adjudication Bradford's claim for attorney's fees under section 37.009 of the Act and Dalisa's counterclaims. The trial court denied, however, Bradford's motion to cancel the lis pendens notice recorded by Dalisa.
Dalisa appealed to this Court from the order granting Bradford's motion for summary judgment. Bradford appealed from the denial of his motion to cancel the lis pendens notice. We consolidated the two appeals.
Dalisa contends the trial court abused its discretion by severing Bradford's statutory cause of action under the Act; and, as a result, there is no valid severance order upon which our appellate jurisdiction depends.
Rule 41 of the Texas Rules of Civil Procedure states that "rainy claim against a party may be severed and proceeded with separately." TEX.R. CIV. P. 41. The effect of a severance is to divide a lawsuit into two or more independent suits that will be adjudicated by distinct and separate judgments. See Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex.1985). "The controlling reasons for a severance are to do justice, avoid prejudice[,] and further convenience." Guaranty Fed. Says. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990).
In their administration of Rule 41, trial courts have broad authority and their decisions to grant or deny a severance will not be reversed on appeal absent an abuse of discretion. Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996). The discretion vested in trial courts is not, however, without limits. Theirs is "a sound and legal discretion within limits created by the circumstances of the particular case." Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956). Such discretion may not be exercised contrary to legal rules and principles applicable in the particular case. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Del Valle Indep. Sch. Dist. v. Lopez, 863 S.W.2d 507, 513 (Tex.App.-Austin 1993, writ denied).
Compliance with Rule 41, providing for the severance of "[a]ny claim," requires the following: (1) a controversy involving more than one cause of action; (2) a severed claim that is the proper subject of a lawsuit if asserted independently of the other claims; and (3) a severed claim that is not so interwoven with the remaining actions as to involve the same facts and issues. See State Dept. of Highways & Public Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex.1993). Rule 41 is also governed by this venerable rule: "[s]everance of a single cause of action into two parts is never proper and should not be granted for the purpose of enabling the litigants to obtain an early appellate ruling on the trial court's determination of one phase of the case." Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 79 n. 1 (1959); see also Pustejovsky v. Rapid American Corp., 35 S.W.3d 643, 647 (Tex.2000) ().
The trial-court severance necessarily implies a conclusion by that court that Bradford's claim for declaratory relief under section 37.003 of the Act and his claim for attorney's fees under section 37.009 can be adjudged in independent lawsuits culminating in separate and distinct judgments. Dalisa contends the two claims are instead merely different phases of a single cause of action. We concur with Dalisa.
Section 37.009 is headed "Costs" and states as follows: "In any proceeding under this chapter, the court may award costs and reasonable attorney's fees as are equitable and just." TEX. CIV. PRAC. & Rem.Code § 37.009 (emphasis added). reached in the proceeding. Huff v. Fidelity Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 501 (1958) (emphasis added). While the opinion in Huff referred to the statutory predecessor of the attorney's-fee provisions now found in section 38.001 of the Texas Civil Practice and Remedies Code, the reasoning applies all the more, in our view, to section 37.009 of the Act which prescribes a single "proceeding" and measures the fees awarded by the equities and justice revealed in that particular proceeding.2
Bradford urges six appellate decisions in support of his position that a claim for attorney's fees under section 37.009 may be maintained in an independent proceeding and made the subject of a separate and distinct judgment. Four of the decisions involve different statutory authorizations for the recovery of attorney's fees.3 A fifth decision does involve a proceeding under the Act.4 In each of the five cases, however, the claim for attorney's fees was severed by the appellate court and remanded for a new trial. An appellate-court severance of this character is authorized by Rules 43.2(d), 43.3(a), (b), and 43.6 of the Texas Rules of Appellate Procedure and not by Rule 41 of the Texas Rules of Civil Procedure. See TEX.R.APP. P. 43.2(d), 43.3(a), (b), 43.6. Severance of a part of a claim for remand to the trial court invokes different considerations.5 Bradford's sixth case is in point. The case is Grain Dealers Mutual Insurance Co. v. McKee, 911 S.W.2d 775 (Tex.App.-San Antonio 1995). Therein, the appellate court concluded, without citation of authority or supporting rationale, that a claim for attorney's fees under section 37.009 could proceed to a hearing and judgment independently of a claim for declaratory relief under the Act. We disagree for the reasons stated above. In any event, the claim for attorney's fees vanished from the McKee case when the supreme court reversed the court of appeal's judgment and rendered its own contrary "take nothing" judgment on the merits of the plaintiff's claim for declaratory relief. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455 (Tex.1997).
We hold the trial court abused its discretion when it severed Bradford's claim for declaratory relief from his claim for attorney's fees under the Act.6
As indicated above, the discretion lodged in...
To continue reading
Request your trial
-
Bird v. Lubricants, USA, LP, No. 2-06-061-CV (Tex. App. 8/31/2007)
...trial court's error in granting a severance does not divest the court of appeals of jurisdiction over the appeal). But cf. Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 882 (Tex. App.-Austin 2002, no pet.) (dismissing properly perfected appeal for want of jurisdiction after concluding that trial......
-
Barclay v. Richey
...phases of a single cause of action, as even section 37.009 prescribes a single proceeding under Chapter 37 of the Act. Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex. App.—Austin 2002, no pet.); see also Town of Flower Mound v. Upper Trinity Reg'l Water Dist., 178 S.W.3d 841, 843 (Tex. A......
-
In re Estate of Bean
...Act, notwithstanding that the separate lawsuit concerned the same issues as those in the declaratory judgment suit." Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 n. 2 (Tex. App.-Austin 2002, no pet.). Shore contends the fees incurred in Bean I were improperly not segregated from fees incurr......
-
Vicc Homeowners' Ass'n, Inc. v. Los Campeones
...the Uniform Declaratory Judgments Act is not severable from the merits of the declaratory judgment action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex.App.-Austin 2002, no pet.). "`That a suit for the statutory attorney's fees as a separate action could not be maintained is......