           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      ---------------
                                      NO. 03-01-00042-CV
                                      ---------------


  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



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           FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
              NO. GN002569, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
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                Dalisa, Inc., and Enchanted Rock Pictures, L.P. (ADalisa@ collectively) appeal from a

summary judgment recovered against them by sixteen landowners (ABradford@ collectively).1 Bradford


       1
          The landowners are 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
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.


                                         THE CONTROVERSY

                 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 Ann. '' 37.001-.011 (West 1997) (the AAct@

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 AFinal

Judgment@ awarding Bradford the following declaratory relief: (1) Dalisa has no contract for the purchase of




Marcella Billups Symington.



                                                      2
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 AFinal 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.


   SEVERANCE ORDERS UNDER RULE 41, TEXAS RULES OF CIVIL PROCEDURE

                 Rule 41 of the Texas Rules of Civil Procedure states that A[a]ny 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, David & Pickering, 697 S.W.2d 381, 383 (Tex. 1985). AThe

controlling reasons for a severance are to do justice, avoid prejudice[,] and further convenience.@

Guaranty Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990).




                                                       3
                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 Aa sound and legal discretion within limits created by the circumstances of the

particular case.@ Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 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.CAustin 1993, writ denied).

                Compliance with Rule 41, providing for the severance of A[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 218, 219 (Tex. 1993). Rule 41 is also governed by

this venerable rule: A[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, 329 S.W.2d 76, 79 n.1 (Tex. 1959); see

also Pustejovski v. Rapid-American Corp., 35 S.W.3d 643,647 (Tex. 2000) (AThe reason for the rule

lies in the necessity for preventing vexatious and oppressive litigation, and its purpose is accomplished by

forbidding the division of a single cause of action so as to maintain several suits when a single suit will

suffice.@).


                                                      4
            BRADFORD=S CLAIM FOR ATTORNEY=S FEES UNDER THE ACT

                The trial-court severance necessarily implies a conclusion by that court that Bradford=sclaim

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 ACosts@ and states as follows: AIn 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 Ann. ' 37.009 (emphasis added). AThat a suit for the statutory attorney=s fees as a

separate action could not be maintained is evident from the wording of the statute. . . . The attorney=s fees,

while not costs, partake of the nature of the costs of suit and are assessed in accordance with the

judgment@ reached in the proceeding. Huff v. Fidelity Life Ins. Co., 312 S.W.2d 493, 501 (Tex. 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 Aproceeding@ and

measures the fees awarded by the equities and justice revealed in that particular proceeding. 2


        2
          Attorney=s fees incurred in defending a separate lawsuit cannot be recovered under section
37.009 of the Act, notwithstanding that the separate lawsuit concerned the same issues as those in
the declaratory judgment suit. See National Union Fire Ins. Co. v. Care Flight Air Ambulance Service,
Inc., 18 F.3d 323, 330 (5th Cir. 1994).




                                                      5
                 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.CSan 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


        3
           Great Am. Res. Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex. 1966); ASAI v. Vanco
Insulation Abatement, Inc., 932 S.W.2d 118, 124 (Tex. App.CEl Paso 1996, no writ); Industrial
Disposal Supply Co. v. Perryman Bros. Trash Serv., 664 S.W.2d 756, 761 (Tex. App.CSan Antonio
1983, writ ref=d n.r.e.); Leal v. Leal, 628 S.W.2d 168, 171 (Tex. App.CSan Antonio 1982, no writ).
        4
        International Ass=n of Fire Fighters Loc. 624 v. San Antonio, 822 S.W.2d 122, 132 (Tex.
App.CSan Antonio 1991, writ denied).
        5
        See, e.g., Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992); Otis Elevator Co. v. Bedre,
776 S.W.2d 152, 153 (Tex. 1989); Lakewood Pipe of Tex., Inc. v. Conveying Techniques, Inc., 814
S.W.2d 553, 557 (Tex. App.CHouston [1st Dist.] 1991, no writ); Butt v. Gonzalez, 646 S.W.2d 584,
585 (Tex. App.CSan Antonio 1983, no writ).

                                                       6
the McKee case when the supreme court reversed the court of appeal=s judgment and rendered its own

contrary Atake 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




        6
           If we understand correctly the dissenting opinion, it concedes the correctness of our holding,
under existing authorities, regarding the trial-court severance of Bradford=s claim for statutory attorney=s
fees. The dissenting opinion contends for an opposite holding, however, because Athe trial bench and
bar@ have become Acomfortable@ with a contrary, if incorrect, practice that Aappellate courts have
largely ignored.@ If it indeed exists, such a practice is untenable. Suppose, for example, that we must
reverse a plaintiff=s money judgment and render judgment that he take nothing on the merits of his
claim against the defendant. Then, in a separate appeal from an independent judgment awarding the
plaintiff attorney=s fees, we find we must affirm that judgment because no reversible error is shown in
the record of that severed proceeding. This would be intolerable, the opposite of a rational system for
the administration of justice.




                                                     7
                                    DALISA=S COUNTERCLAIMS

                 As indicated above, the discretion lodged in trial courts by Rule 41 may not be exercised in

a manner that is contrary to legal rules and principles applicable in the particular case. One such rule forbids

the severance of a claim that is interwoven with the remaining actions to an extent that they involve the same

facts and issues. We believe that rule was violated here.

                 Bradford requests negative declaratory relief exclusively: that Dalisa possesses no interest in

the Bradford tract, that no contract exists between the parties by reason of negotiations and writings

exchanged between them, and that Dalisa in consequence has no right to record a lis pendens notice against

the tract. Dalisa=s requested declaratory relief is exactly contrapositive: that Dalisa does possess a legal or

equitable interest in the Bradford tract by reason of a contract resulting from negotiations between the

parties and writings exchanged between them. Ancillary to its request for declaratory relief, Dalisa

requested specific performance of the alleged contract or, alternatively, money damages for fraudulent or

negligent misrepresentations allegedly made by Bradford in the course of their negotiations. It is difficult to

conceive how these opposing actions do not involve the same facts and issues. We conclude from the face

of the parties= pleadings that they do.

                 We therefore hold the trial court abused its discretion when it severed Bradford=s claim for

declaratory relief from Dalisa=s counterclaims because both are interwoven to an extent that they involve the

same facts and issues. See, e.g., Rucker and Tracom, Int=l v. Bank One Texas, N.A., 36 S.W.3d 649,

651-52 (Tex. App.CWaco 2000, pet. denied); Fuentes v. McFadden, 825 S.W.2d 772, 779 (Tex.




                                                       8
App.CWaco 1992, no writ); Mathis v. De La Garza & Assocs., P.C., 778 S.W.2d 105, 106 (Tex.

App.CSan Antonio 1989, no writ).7


                                  DISPOSITION OF THE APPEALS

                To be appealable, Bradford=s summary judgment must dispose of all parties and all issues

before the trial court. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). Such a judgment may

result, in cases like the present, from a valid severance order. The summary judgment awarding Bradford

declaratory relief does not satisfy this requirement because the severance order is the result of an abuse of

discretion. The invalid severance is prejudicial because it converted into a final judgment a judgment that is

interlocutory. See National Sur. Corp. v. Standard Concrete Pipe Sales Co., 366 S.W.2d 103, 105

(Tex. Civ. App.CHouston [1st Dist.] 1963, no writ).

                We vacate the trial-court severance order for the abuse of discretion found above. For

want of an appealable judgment, we dismiss Dalisa=s appeal from the summary judgment recovered by

Bradford. Bradford=s appeal from the trial-court order denying his motion to cancel the lis pendens notice


        7
         Similar instances of counterclaims interwoven with the plaintiff=s claim so as to involve the
same facts and issues are found in the following illustrative cases: Jinkins v. Bryan, 763 S.W.2d 539
(Tex. App.CAmarillo 1998, pet. denied); Bentley Village, Ltd. v. Nasits Bldg. Co., 736 S.W.2d 919
(Tex. App.CTyler 1987, no writ); McWilliams v. Gilbert, 715 S.W.2d 761 (Tex. App.CHouston [1st
Dist.] 1986, no writ); and, Bohart v. First Nat=l Bank, 536 S.W.2d 234 (Tex. Civ. App.CEastland
1976, writ ref=d n.r.e.).




                                                      9
depends upon the merits and validity of his claim for declaratory relief. No final judgment has been

rendered sustaining his claim in that regard. His appeal is therefore premature.

                 We dismiss the consolidated appeal for want of jurisdiction.




                                                  John E. Powers, Justice

Before Justices Yeakel, Patterson and Powers*: Opinion by Justice Powers;
 Dissenting Opinion by Justice Yeakel

Dismissed for Want of Jurisdiction

Filed: June 21, 2002

Publish




*
    Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex.
    Gov=t Code Ann. ' 74.003(b) (West 1998).




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