Burk Collins, Fountain Mall, Inc., and Mall Group, Ltd. v. Tex Mall, L.P. and Michael Kest, Individually ( 2009 )

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
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OPINION
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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