                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-370-CV


BURK COLLINS, FOUNTAIN MALL,                                      APPELLANTS
INC., AND MALL GROUP, LTD.

                                       V.

TEX MALL, L.P. AND MICHAEL                                          APPELLEES
KEST, INDIVIDUALLY

                                   ------------

        FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      This is an arbitration case. The primary issue before us is whether a trial

court may review and confirm a “partial final” arbitration award that does not

dispose of all matters submitted to arbitration or a separate independent claim

of the parties. We hold, as a matter of first impression, that it may not. We,

therefore, reverse and vacate the trial court’s orders and remand the case for

further proceedings.
                                I.   Background

     Burk Collins and Michael Kest formed several partnerships for acquiring,

developing, and operating shopping centers and malls in north Texas. Among

these partnerships was North Hills Creek Mall, LP (“NHCM”), formed for the

sole purpose of owning the North Hills Mall property and operating the mall

(“Mall”). Two Collins-related entities were involved in NHCM: Fountain Mall,

Inc., which served as NHCM’s general partner; and Mall Group, Ltd., a limited

partner. Collectively, Collins-related entities ultimately owned 50% of NHCM.

The NHCM partnership agreement contained a mandatory arbitration clause,

requiring the parties to submit “all disputes between and among them” to the

American Arbitration Association in Los Angeles County, California.

     When NHCM bought the Mall in 1999, it assumed an $8 million loan.

The lender threatened to foreclose on the Mall in early 2003.       To forestall

foreclosure, Kest agreed to pay $1 million on the existing note.         Collins

prepared a memorandum of understanding (“MOU”) memorializing this

agreement, which also included, among other provisions, the following

paragraph:

     5.      In the event Michael Kest or any of his entities purchase the
             Mall note or purchase the property at foreclosure then Burk
             Collins will retain all of his ownership in the Mall
             property . . . under the new entity.



                                       2
Kest wrote the word “NO” next to this paragraph on Collins’s MOU and sent

Collins a different MOU that did not contain language about Collins retaining an

interest in the Mall if Kest bought it at foreclosure.

         Kest’s MOU contained an arbitration clause, which provided that “[a]ny

controversy or claim arising out of or relating to this MOU or the breach hereof

. . . shall be settled by binding arbitration in Los Angeles, California.” Kest’s

MOU also contained an integration clause, declaring that “[t]his MOU contains

the Parties’ entire agreement and understanding . . . and supersedes and

replaces all prior and contemporaneous negotiations, all proposed agreements[,]

and all agreements, written and oral, regarding the claims, the Note[,] and the

Mall.”

         Collins signed Kest’s MOU, but in a separate memorandum he sent to

Kest with the signed MOU, he wrote that his acceptance of the MOU was

conditioned on Kest’s agreement to “give [him] back [his] 50%” interest in the

Mall after foreclosure:

         I want an understanding that we have an agreement that if . . . you
         decide to foreclose or acquire the Mall property off the Courthouse
         steps that you will give me back my 50% interest after foreclosure.
         This Memo is a condition to my signature on the [MOU]. If you do
         not agree then the document is null and void.

         If I do not hear back from you then I will consider that we have an
         agreement.



                                         3
      The parties avoided foreclosure in the first half of 2003, but the lender

reposted the Mall for foreclosure in October 2003. Tex Mall, L.P.—an entity

formed shortly beforehand by Kest—bought the Mall at a public foreclosure

sale. Kest did not give Collins an interest in the Mall property or in Tex Mall.

      Some months after the foreclosure, Kest and several Kest-related entities

sued Collins and several Collins-related entities, alleging that Collins had

retained about $450,000 in sale proceeds for himself. At Kest’s request, the

trial court issued an injunction compelling Collins to deposit the money in the

registry of the court. The trial court also compelled the parties to arbitrate their

dispute, citing the arbitration clauses in both the NHCM partnership agreement

and in the MOU, and the parties began an arbitration proceeding in California.

Tex Mall was not a party to the lawsuit or the arbitration at that time.

      In June 2004, two of the Collins parties filed a third-party petition against

Michael Kest and Tex Mall, claiming a 50% interest in the Mall or in Tex Mall

under the MOU. The Collins parties also filed a notice of lis pendens against

the Mall property.

      When the Kest parties became aware of the lis pendens in April 2005,

they filed a motion to void it. The Collins parties responded, in part, by asking

that this issue be referred to the pending arbitration. The trial court agreed with

the Kest parties and issued an order voiding the lis pendens.

                                         4
      The Collins parties filed a petition for writ of mandamus in this court,

challenging the trial court’s order striking their lis pendens. We conditionally

granted a writ of mandamus directing the trial court to vacate its order, holding

that the evidence before the trial court raised a fact issue on the question of

whether the Collins parties had a direct interest in the Mall property that must

be resolved by the fact finder.1

      Back in the trial court, the Kest parties filed a motion for summary

judgment, seeking a ruling that the Collins parties had no direct interest in the

Mall property.     They also asked the trial court to void the lis pendens in

accordance with the procedure this court explained in the mandamus opinion.2

The Collins parties again requested that these issues be referred to the pending

arbitration. The trial court agreed with the Collins parties and issued an order

compelling arbitration of the issues raised in the summary judgment motion. 3


      1
       … In re Collins, 172 S.W.3d 287, 297 (Tex. App.—Fort Worth 2005,
orig. proceeding).
      2
          … See id. at 294–95.
      3
        … Apparently, the trial court misunderstood our instructions in In re
Collins. W e held that the fact issue on the question of whether the Collins
parties have a direct interest in the Mall property must be resolved by the
“factfinder.” Id. at 295–98. Because this question was initially submitted to
the trial court for determination, we anticipated that the parties would seek
resolution of the fact issue in the trial court; we did not contemplate that the
trial court would submit the question that we had decided to the arbitration
panel for reconsideration. While we appreciate the trial court’s reasons for

                                       5
      The Kest parties refiled their motion for summary judgment in the

arbitration proceeding. Seven months later, the arbitrators issued their “Ninth

Preliminary and Interim Order,” in which, contrary to our prior opinion in In re

Collins, they determined that the Collins parties had failed to raise a material

fact issue to show a direct interest in the Mall property and that the lis pendens

was null and void. The arbitrators later embodied their rulings in a June 13,

2007, order labeled “Partial Final Award.”

      The Kest parties then moved the trial court to confirm the partial award

and cancel the lis pendens. The Collins parties filed a response urging the trial

court to review the arbitration award for errors of law, but they did not file a

motion to vacate the partial award. The trial court granted the Kest parties’

motion to confirm and on July 31, 2007, granted the Kest parties’ motion to

sever the Collins parties’ “claim for a direct interest in the Mall property” from

the remainder of the suit. The Collins parties filed this appeal.

                                   II.   Issues

      In three issues, the Collins parties argue that the trial court erred by

refusing to review errors of law committed by the arbitration panel and




taking this action, it has resulted in delay, conflicting rulings, and a waste of
resources that may have been avoided had the trial court correctly followed our
opinion in In re Collins.

                                         6
confirming an award that conflicts with our decision in the mandamus

proceeding, improperly confirming a partial award that does not dispose of all

issues submitted to arbitration, and severing the Collins parties’ lis pendens

claim.

                                    III.   Discussion

A.       Choice of Law: Texas or California?

         A threshold question in this case is what jurisdiction’s arbitration law

applies.       The Collins parties argue that the Texas General Arbitration Act

(“TAA”) applies.4 The Kest parties argue that the California Arbitration Act

(“CAA”) applies.5 The Collins parties contend that the Kest parties waived

application of the CAA by failing to request the trial court to take judicial notice

of California law. We agree.

         Under rule of evidence 202, a party may compel a trial court to take

judicial notice of another state’s law by filing a motion, giving notice to the

other parties, and furnishing the court with sufficient information to enable it

to properly comply with the request.6 But “[w]hen a party fails to request



         4
             … See Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001–.098 (Vernon
2005).
         5
             … See Cal. Code Civ. Proc. §§ 1280–1294.2 (West 2007).
         6
             … Tex. R. Evid. 202.

                                            7
judicial notice of the law of another state as permitted under Rule 202, ‘Texas

courts will simply presume that the law of the other state is identical to Texas

law.’” 7 A preliminary motion is necessary to assure the application of the law

of another jurisdiction, and absent a motion by a party, Texas law may be

applied to a dispute.8

      The Kest parties contend that they did request the trial court to take

judicial notice of the CAA, pointing to their December 2005 “Motion to Take

Judicial Notice of the California Arbitration Act,” which they filed before the

trial court sent the Collins parties’ counterclaims to arbitration. But the motion

requested that the trial court take judicial notice of just one section of the

CAA—section 1281, which pertains to the validity and enforcement of

contractual arbitration clauses, not to the scope of judicial review of arbitration

awards.9 The Kest parties did not move the trial court to take judicial notice of




      7
      … Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 695 (Tex.
2006) (Brister, J., dissenting) (quoting Olin Guy Wellborn III, Judicial Notice
Under Article II of the Texas Rules of Evidence, 19 St. Mary’s L.J. 1, 27
(1987)); see also Burlington N. & Santa Fe Ry. Co. v. Gunderson, Inc., 235
S.W.3d 287, 290 (Tex. App.—Fort Worth 2007, pet. withdrawn).
      8
      … Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 919–20 (Tex.
1993); Gunderson, Inc., 235 S.W.3d at 290; Pittsburgh Corning Corp. v.
Walters, 1 S.W.3d 759, 769 (Tex. App.—Corpus Christi 1999, pet. denied).
      9
          … See Cal. Code. Civ. Proc. §§ 1281–1281.96.

                                        8
the sections of the CAA dealing with judicial review and enforcement of

arbitration awards, nor did they attach those sections to their motion.10

      Because the Kest parties did not request the trial court to take judicial

notice of the relevant provisions of the CAA, we will presume that California

law is the same as Texas law with regard to judicial review and enforcement

of arbitration awards and apply the TAA to this appeal.11

B.    “Partial Final Award”

      In their second issue, the Collins parties argue that the trial court erred by

confirming the arbitration panel’s “Partial Final Award” because the award did

not dispose of all issues before the arbitration panel.       They contend that,

because the award did not determine all matters submitted to the arbitration

panel as Texas case law requires,12 the trial court had no authority under the

TAA to confirm it. In response, the Kest parties contend that Texas case law

does not prohibit the confirmation of a partial award and that the TAA



      10
           … See id. §§ 1285–1287.6.
      11
         … See Tex. R. Evid. 202; Harmar Bottling Co., 218 S.W.3d at 695
(Brister, J., dissenting); De La Lastra, 852 S.W.2d at 919–20; Gunderson, Inc.,
235 S.W.3d at 290; Pittsburgh Corning Corp., 1 S.W.3d at 769.
      12
       … See, e.g., Peacock v. Wave Tec Pools, Inc., 107 S.W.3d 631, 637
(Tex. App.—Waco 2003, no pet.); Porter v. Irvine, 658 S.W.2d 711, 713–14
(Tex. App.—Houston [1st Dist.] 1983, no writ); Smith v. Barnett, 373 S.W.2d
762, 765 (Tex. Civ. App.—Dallas 1963, no writ).

                                         9
specifically authorizes the confirmation of a partial award in section

171.086(b)(6), because it permits parties to file an application for a court order

confirming an award “during the period an arbitration is pending.”13

      1.       Texas Common Law and the TAA

      The common law and the TAA coexist as a dual system of arbitration,

and the TAA is “cumulative” of the common law.14 Courts presume that the

legislature enacts statutes with full knowledge of, and reference to, the existing

common law.15 The statutory provision controls and preempts the common law

only when a statute directly conflicts with a common law principle.16

      Texas case law generally recognizes that an essential prerequisite to the

trial court’s power to review an arbitral award is that the arbitrator’s decision

be final, not interlocutory. “An arbitration award must determine all matters

submitted or it will be unenforceable for lack of finality.”17       Like a final


      13
           … Tex. Civ. Prac. & Rem. Code Ann. § 171.086(b)(6).
      14
           … L. H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 351 (Tex.
1977); Pheng Invs., Inc. v. Rodriquez, 196 S.W.3d 322, 329 (Tex. App.—Fort
Worth, 2006, no pet).
      15
           … In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 677 (Tex. 2007) (orig.
proceeding).
      16
           … Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000).
      17
       … Porter, 658 S.W.2d at 713–14; see also Peacock, 107 S.W.3d at
637 ; Smith, 373 S.W.2d at 765.

                                       10
judgment, an arbitral award should be “conclusive on the parties as to all

matters of fact and law.”18 The award may not “reserve judicial authority to

be exercised in the future.”19

        The TAA does not specifically address finality of an arbitration award.20

We presume that the legislature had full knowledge of the common law

principle of finality when it enacted the TAA, and, in the absence of conflicting

language, that it intended the act be construed in a manner consistent with that

principle.21 The Kest parties assert, however, that the act contemplates judicial

review of partial awards in section 171.086(b), which provides in pertinent

part:

        During the period an arbitration is pending before the arbitrators or
        at or after the conclusion of the arbitration, a party may file an
        application for a court order, including an order:

                 ....




        18
      … Pheng Invs., 196 S.W.3d at 328; see Quinn v. Nafta Traders, Inc.,
257 S.W.3d 795, 798 (Tex. App.—Dallas 2008, pet. granted).
        19
             … Peacock, 107 S.W.3d at 637.
        20
        … In contrast, the Federal Arbitration Act specifically provides that the
lack of finality is grounds for vacating an award. See 9 U.S.C.A. § 10(a)(4)
(West 2009) (providing that court may vacate award if it finds “final” award
was not made).
        21
             … In re Pirelli Tire, 247 S.W.3d at 677; see Bennett, 35 S.W.3d at 16.

                                          11
      (6) to obtain relief under Section 171.087, 171.088, 171.089, or
      171.091.22

Section 171.087 states that unless grounds are offered for vacating, modifying,

or correcting an award, the court, on application of a party, “shall confirm the

award.”23

      2.       Rules of Statutory Construction

      In construing a statute, our objective is to determine and give effect to

the legislature’s intent.24 If a statute’s language is unambiguous, we generally

interpret the statute according to its plain meaning. 25 We begin by examining

the exact wording and apply the tenet that the legislature chooses its words

carefully and means what it says.2 6 We determine legislative intent from the

entire act and not just isolated portions. 27 In determining the meaning of a




      22
           … Tex. Civ. Prac. & Rem. Code Ann. § 171.086(b)(6) (emphasis added).
      23
           … Id. § 171.087.
      24
        … In re M.N., 262 S.W.3d 799, 802 (Tex. 2008); City of San Antonio
v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); Benish v. Grottie, 281
S.W.3d 184, 192–93 (Tex. App.—Fort Worth 2009, pet. filed).
      25
           … Benish, 281 S.W.3d at 192–93.
      26
           … See In re M.N., 262 S.W.3d at 802; Benish, 281 S.W.3d at 192–93.
      27
           … Benish, 281 S.W.3d at 192–93.

                                       12
statute, we must consider the entire act, its nature and object, and the

consequences that would follow from each construction.28

      3.       Section 171.086(b)(6) of the TAA

      Applying these rules of statutory construction to section 171.086(b)(6),

we find no language in that section, or any other part of the TAA, that

specifically authorizes a trial court to confirm a partial award, or an award that

does not resolve all matters submitted to arbitration. While section 171.086(b)

may contain language that permits a party to “file an application for a court

order” confirming a partial award (in addition to other forms of relief) while the

arbitration is pending, that language is purely procedural and does not grant the

trial court the power to conduct judicial review of partial awards before the

arbitrator’s decision becomes final.29 The mere fact that the legislature chose


      28
       … Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991);
see generally Tex. Gov’t Code Ann. §§ 311.001–.034 (Vernon 2005 & Supp.
2008) (Code Construction Act setting forth presumptions and matters to be
considered in construing statute).
      29
           … The American Arbitration Association (AAA) commercial arbitration
rules provide that “[i]n addition to a final award, the arbitrator may make other
decisions, including interim, interlocutory, or partial rulings, orders, and
awards.” Am. Arbitration Ass’n Commercial Arbitration Rules & Mediation
Procedures           R-43(b)          (2009)        (emphasis          added),
http://www.adr.org/sp.asp?id=22440#R43. Thus, according to the AAA’s
own rules and procedures, a distinction is made between interim, interlocutory,
or partial awards and “final” awards. It is final awards that are subject to
confirmation under the TAA, not interim, interlocutory, or partial awards. This

                                       13
to allow parties to apply for confirmation of a partial award while arbitration is

pending does not, in our view, demonstrate a legislative intent to abrogate the

existing common law rule that arbitration awards must be final to be legally

enforceable and subject to judicial review.

       This interpretation of section 171.086(b)(6) is consistent with the

purpose of arbitration to provide an efficient, economical system for resolving

disputes. Subjecting partial awards to judicial review would require trial courts

to hold themselves open as appellate tribunals during on-going arbitration

proceedings, resulting only in a waste of time, the interruption of the arbitration

proceedings, and delaying tactics in a proceeding that is supposed to produce

a speedy decision.30 The principle of finality avoids this waste and inefficiency

and promotes the role of arbitration as an expeditious alternative to traditional

litigation.




does not mean, however, that arbitrators may not make partial awards, only
that a trial court may not confirm partial awards.
       30
       … See CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002)
(“Subjecting arbitration awards to judicial review adds expense and delay,
thereby diminishing the benefits of arbitration as an efficient, economical
system for resolving disputes.”).

                                        14
      4.      Judicial Review of Partial Awards that Dispose of a Separate
              Independent Claim

      The Kest parties argue that because the partial award resolves the

specific issue of whether the Collins parties have a direct interest in the Mall

property, it is, therefore, “final” with respect to this “claim.” In determining

whether the TAA permits a judicial review of a partial award that disposes of

a single claim or cause of action, we will look to federal case law construing the

Federal Arbitration Act (FAA) for guidance because of the similarities between

the two acts.31

      Like Texas courts, the federal courts have followed the common law

principle that arbitral awards resolve all claims submitted as a prerequisite to

judicial review.32 Some federal circuits, however, have recognized exceptions

to this general rule.33 Those exceptions tend to fall under two broad categories

of partial awards: (1) those which finally and definitely dispose of a separate




      31
           … See Quinn, 257 S.W.3d at 798.
      32
      … See, e.g., Michaels v. Mariforum Shipping, S.A., 624 F.2d 411,
413–14 (2d Cir. 1980).
      33
       … Halliburton Energy Servs., Inc., v. NL Indus., 553 F.Supp.2d 733,
774 (S.D. Tex. 2008).

                                       15
and independent claim,34 and (2) those that were made pursuant to an

agreement of the parties.35

      There is no agreement between the parties in this case to sever the

Collins parties’ lis pendens claim from the other issues submitted to arbitration,

or to otherwise bifurcate the proceeding. Thus, the question we must decide

is whether the lis pendens claim is a separate claim that would be the proper

subject of a lawsuit if asserted independently from the other claims submitted

to arbitration, and, if so, whether the TAA permits review and confirmation of

an award that resolves such claims.

      5.    Does the Collins Parties’ Lis Pendens “Claim” Constitute a Separate
            Independent Claim?

      In determining whether the Collins parties’ lis pendens claim constitutes

a separate independent claim for the purpose of determining whether it may be

the subject of a “partial final” arbitration award subject to judicial review, we

first examine the nature of lis pendens. The doctrine of lis pendens is codified


      34
        … Hart Surgical, Inc. v. Ultracision, Inc., 244 F.3d 231, 233–34 (1st
Cir. 2001); Trade & Transp., Inc. v. Natural Petroleum Charterers Inc., 931 F.2d
191, 195 (2d Cir. 1991); Metallgesellschaft A.G. v. M/V Capitan Constante,
790 F.2d 280, 283 (2d Cir. 1986).
      35
        … Hart Surgical, 244 F.3d at 234; Rocket Jewelry Box, Inc. v. Noble
Gift Packaging, Inc., 157 F.3d 174, 177 (2d Cir. 1998); Mariforum Shipping,
624 F.2d at 413–14; Andrea Doreen, Ltd. v. Bldg. Material Local Union 282,
250 F.Supp.2d 107, 112 (E.D.N.Y. 2003).

                                       16
in Section 12.007(a) of the Texas Property Code, which provides in pertinent

part:

        After the plaintiff’s statement in an eminent domain proceeding is
        filed or during the pendency of an action involving title to real
        property, the establishment of an interest in real property, or the
        enforcement of an encumbrance against real property, a party to
        the action who is seeking affirmative relief may file for record with
        the county clerk of each county where a part of the property is
        located a notice that the action is pending.36

Under section 12.008, a party or other person interested in the result of or in

the property affected by a proceeding in which the lis pendens has been filed

may file a motion to cancel the lis pendens at any time during the proceeding.37

        Generally speaking, the purpose of lis pendens notice is two fold: (1) to

protect the alleged rights of the party filing it to the property that is in dispute

in the lawsuit, and (2) to put those interested in the property on notice of the

lawsuit.38      The doctrine of lis pendens does not void a conveyance of the

property during pendency of the suit; the interest of the grantor merely passes




        36
             … Tex. Prop. Code Ann. § 12.007(a) (Vernon 2004) (emphasis added).
        37
             … Id. § 12.008; In re Collins, 172 S.W.3d at 292–93.
        38
      … World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); In re Collins, 172 S.W.3d at
292–93.

                                         17
subject to it.39 The lis pendens notice operates only during pendency of the suit

and terminates with the judgment in the absence of appeal.40

      Considering the nature of lis pendens, the issue of whether the Collins

parties’ notice of lis pendens was properly filed clearly would not be the proper

subject of a separate lawsuit independent of the underlying lawsuit in which the

lis pendens has been recorded. The lis pendens notice is wholly dependent on

the filing and pendency of the underlying lawsuit. Apart from that lawsuit,

there would be no lis pendens.

      For these reasons, we hold that issue of the Collins parties’ right to lis

pendens notice does not constitute a separate independent claim. Therefore,

assuming without deciding that the TAA permits judicial review of partial

awards that definitely and finally dispose of separate independent claims

submitted to arbitration, we hold that the lis pendens claim decided by the

arbitration panel does not constitute the type of claim that would render the

“Partial Final Award” subject to judicial review under the TAA. It is the content

of the award, not its nomenclature, that determines its finality.




      39
       … Cherokee Water Co. v. Advance Oil & Gas Co., 843 S.W.2d 132,
135 (Tex. App.—Texarkana 1992, writ denied).
      40
           … Hartel v. Dishman, 135 Tex. 600, 608–09, 145 S.W.2d 865, 869
(1940).

                                       18
      To summarize, the partial award determining the Collins parties’ lis

pendens claim is not final and enforceable because it does not dispose of all of

the claims submitted to arbitration, or a separate independent claim. Further,

neither the TAA or common law authorizes a trial court to confirm a partial

award that does not dispose of all claims submitted to arbitration, or a separate

independent claim. Therefore, we hold that the trial court erred by granting the

June 13, 2007, order confirming the partial award. The Collins parties’ second

issue is sustained.41

D.    Severance

      In their third issue, the Collins parties argue that the trial court abused its

discretion by severing the lis pendens issue. The trial court stated in its July

31, 2007, severance order that it ordered that this “claim” be severed “so that

the [June 13, 2007, order confirming the ‘Partial Final Award’] with respect to

that claim may become final.”

      Rule 41 of the Texas Rules of Civil Procedure provides that “[a]ny claim

against a party may be severed and proceeded with separately.”42 This rule


      41
        … Having held that the trial court had no statutory authority to review
the partial award, we do not address the Collins parties’ first issue complaining
of the trial court’s refusal to review errors of law in the award. See Tex. R.
App. P. 47.1.
      42
           … Tex. R. Civ. P. 41.

                                        19
grants the trial court broad discretion in the matter of severance and

consolidation of causes.43 The trial court’s decision to grant a severance will

not be reversed unless it has abused its discretion.44     A claim is properly

severable if (1) the controversy involves more than one cause of action, (2) the

severed claim is one that would be the proper subject of a lawsuit if

independently asserted, and (3) the severed claim is not so interwoven with the

remaining action that they involve the same facts and issues.45 The controlling

reasons for a severance are to do justice, avoid prejudice, and further

convenience.46

      We have held that the trial court had no authority under common or

statutory law to grant the June 13, 2007, order confirming the partial award

because of its lack of finality, and because the lis pendens claim is not a

separate claim that would be the proper subject of a lawsuit if independently

asserted. The lis pendens claim is, therefore, not properly severable from the




      43
           … Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
658 (Tex. 1990).
      44
           … Id.
      45
           … Id. (emphasis added).
      46
           … Id.

                                       20
remaining action.47 We, therefore, hold that the trial court abused its discretion

in severing the Collins parties’ lis pendens claim. The Collins parties’ third issue

is sustained.

                                IV.    Conclusion

      Having sustained the Collins parties’ second and third issues, we reverse

and vacate the trial court’s June 13, 2007, and July 31, 2007, orders and

remand the case for further proceedings.




                                             JOHN CAYCE
                                             CHIEF JUSTICE

PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.

DELIVERED: August 20, 2009




      47
           … Id.

                                        21
