In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00059-CV
CHARLES GLEN HYDE, HYDE-WAY, INC., AND TEXAS AIR CLASSICS, APPELLANTS
V.
ROBERT "BOBBY" HAWK, APPELLEE
On Appeal from the 158th District Court Denton County, Texas Trial Court No. 2013-20761-158, Honorable Steve Burgess, Presiding
May 2, 2016
ORDER ON MOTION TO REMAND Before CAMPBELL and HANCOCK and PIRTLE, JJ.
We address here a pending motion filed by appellee Robert Hawk in an appeal
originally filed in January 2014 by appellants Charles Glen Hyde, Hyde-Way, Inc., and
Texas Air Classics (collectively, Hyde).1 Hyde appealed a final judgment in a suit
brought by Hawk.
1 The case was transferred from the Second Court of Appeals to our court, under an order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013); TEX. R. APP. P. 41.3 (precedent of transferor court). Hawk’s suit alleged he owns a lot and a residential hangar at the private airport
Hyde owns and operates in Denton County. The pleadings describe disputes over
Hawk’s access to the airport’s runway and taxiways, his lot’s deed restrictions, and his
entitlement to water supply to his lot. Hawk’s suit sought declaratory and injunctive
relief, as well as damages and attorney’s fees. In April 2013, Hawk filed a traditional
motion for partial summary judgment regarding his right to use of the runway and
taxiways. After a hearing the next month, the trial court granted the motion and signed
an order declaring a license for runway and taxiway use accompanies Hawk’s lot.
Hawk shortly thereafter filed a motion to sever his claim for a declaration regarding his
runway and taxiway license from his remaining claims.2 Hyde opposed the severance.
In September, the court signed an order granting the motion to sever, and in October
2013, signed the final judgment currently on appeal.3 After the severance, the
remaining claims resided in the trial court’s cause number 2012-20229-158; the severed
claims, and thus the final judgment on appeal, were assigned cause number 2013-
20761-158.
2 The motion described his remaining claims as those for an injunction to bar Hyde from interfering with Hawk’s exercise of the license, money damages arising from past interference, the dispute over the deed restriction on Hawk’s lot and attorney’s fees. He asserted they were separate and distinct claims from the license declaration claim, and asserted his desire for a final judgment on the license that he might record in the real property records. 3 The judgment declares that the terms of the runway and taxiway license for Hawk’s lot are set by a particular Addendum to the 1998 deed by which Hawk acquired the lot. The judgment further states that if it is “later determined that the Addendum does not set the license’s terms for any reason, then [Hawk’s lot] nonetheless has an easement for use of the runway and taxiways” under the 1995 deed from Hyde to Hawk’s predecessor in title.
2 Hyde’s appellants’ brief was filed in early June 2014. Later that month Hawk filed
a “motion to abate or stay the appeal,” making us aware that the parties had signed a
settlement agreement in February 2014. According to Hawk’s motion, the settlement
would resolve all issues in the pending appeal of the judgment in 2013-20761-158 and
those in 2012-20229-158. The motion further advised us that Hyde withdrew consent to
the settlement in March, and that Hawk filed pleadings in 2012-20229-158 in April,
seeking to enforce the settlement. Hyde filed a response opposing Hawk’s motion, but
agreeing that the settlement agreement was signed and that Hyde had withdrawn
consent to the settlement.
After obtaining and reviewing a supplemental clerk’s record containing Hawk’s
April pleadings in 2012-20229-158, we granted Hawk’s motion and abated the appeal in
early August 2014. We cited Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659
(Tex. 1996) (orig. proceeding), for the proposition that the parties and our court should
not be required to expend resources on an appeal that might be rendered moot. 4 We
directed Hawk to submit reports on the status of his suit to enforce the settlement.
After several continuances, a jury trial was conducted in 2012-20229-158 during
late February and early March 2016. On March 11, Hawk filed the motion now before
us, styled “expedited motion to remand,” in which he advises us that the jury in 2012-
20229-158 returned a verdict on March 3 “in favor of Hawk on all of his claims.” As the
result of the jury’s verdict, the motion asserts, “after a remand and re-consolidation,” the
4 Hyde v. Hawk, No. 07-14-00059-CV, 2014 Tex. App. LEXIS 8726 (Tex. App.— Amarillo Aug. 7, 2014) (order of abatement).
3 matters are “ripe for entry of a final judgment and permanent injunction.”5 The motion
makes no mention of Hawk’s suit to enforce the 2014 settlement.6 At our direction,
Hyde filed a response to Hawk’s motion to remand. Hyde opposes the motion as
presented.
In his motion to remand, Hawk somewhat adopts a position Hyde asserted in the
June 2014 appellants’ brief, viz, that the trial court’s severance order improperly divided
a single cause of action. In the appellants’ brief, Hyde relied on Dalisa, Inc. v. Bradford,
81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.) In Dalisa, the appellate court found
the trial court’s severance order improper and vacated the order. Because the finality of
the judgment for purposes of its appealability depended on the severance, the court
then concluded no final judgment was before it and dismissed the appeal for want of
jurisdiction. Id. at 882. Hyde asserted in the appellants’ brief, and Hawk suggests in
his expedited motion, that we should set aside the severance, follow Dalisa, and
dismiss the appeal.
Hawk’s motion to remand points out there is authority contrary to Dalisa’s
reasoning that an erroneous severance deprives an appellate court of jurisdiction over
an appeal of the judgment in the severed cause. Hawk is correct. Most significantly for
5 Under long-standing Texas law, a severance splits a single suit into two or more independent actions, each action resulting in an appealable final judgment. See, e.g., Aviation Composite Techs, Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.— Fort Worth 2004, no pet.) (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985). 6 On March 28, at our request, Hawk filed a status report stating that trial in 2012-20229-158 included the claim to enforce the settlement agreement. The report continued, “The jury rendered a verdict on March 4, 2016, but [Hawk] has not elected his remedy and a judgment has not been entered.”
4 our present purpose, the Fort Worth court of appeals is among the courts that has not
adopted Dalisa’s rationale. See Bird v. Lubricants, USA, LP, No. 2-06-061-CV, 2007
Tex. App. LEXIS 7110, *7-8, n.8 (Tex. App.—Fort Worth August 31, 2007, pet. denied)
(court had jurisdiction over appeal even assuming severance order was improper). 7 In
this transferred case, we will follow the Fort Worth court’s holding in Bird, and will not
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00059-CV
CHARLES GLEN HYDE, HYDE-WAY, INC., AND TEXAS AIR CLASSICS, APPELLANTS
V.
ROBERT "BOBBY" HAWK, APPELLEE
On Appeal from the 158th District Court Denton County, Texas Trial Court No. 2013-20761-158, Honorable Steve Burgess, Presiding
May 2, 2016
ORDER ON MOTION TO REMAND Before CAMPBELL and HANCOCK and PIRTLE, JJ.
We address here a pending motion filed by appellee Robert Hawk in an appeal
originally filed in January 2014 by appellants Charles Glen Hyde, Hyde-Way, Inc., and
Texas Air Classics (collectively, Hyde).1 Hyde appealed a final judgment in a suit
brought by Hawk.
1 The case was transferred from the Second Court of Appeals to our court, under an order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013); TEX. R. APP. P. 41.3 (precedent of transferor court). Hawk’s suit alleged he owns a lot and a residential hangar at the private airport
Hyde owns and operates in Denton County. The pleadings describe disputes over
Hawk’s access to the airport’s runway and taxiways, his lot’s deed restrictions, and his
entitlement to water supply to his lot. Hawk’s suit sought declaratory and injunctive
relief, as well as damages and attorney’s fees. In April 2013, Hawk filed a traditional
motion for partial summary judgment regarding his right to use of the runway and
taxiways. After a hearing the next month, the trial court granted the motion and signed
an order declaring a license for runway and taxiway use accompanies Hawk’s lot.
Hawk shortly thereafter filed a motion to sever his claim for a declaration regarding his
runway and taxiway license from his remaining claims.2 Hyde opposed the severance.
In September, the court signed an order granting the motion to sever, and in October
2013, signed the final judgment currently on appeal.3 After the severance, the
remaining claims resided in the trial court’s cause number 2012-20229-158; the severed
claims, and thus the final judgment on appeal, were assigned cause number 2013-
20761-158.
2 The motion described his remaining claims as those for an injunction to bar Hyde from interfering with Hawk’s exercise of the license, money damages arising from past interference, the dispute over the deed restriction on Hawk’s lot and attorney’s fees. He asserted they were separate and distinct claims from the license declaration claim, and asserted his desire for a final judgment on the license that he might record in the real property records. 3 The judgment declares that the terms of the runway and taxiway license for Hawk’s lot are set by a particular Addendum to the 1998 deed by which Hawk acquired the lot. The judgment further states that if it is “later determined that the Addendum does not set the license’s terms for any reason, then [Hawk’s lot] nonetheless has an easement for use of the runway and taxiways” under the 1995 deed from Hyde to Hawk’s predecessor in title.
2 Hyde’s appellants’ brief was filed in early June 2014. Later that month Hawk filed
a “motion to abate or stay the appeal,” making us aware that the parties had signed a
settlement agreement in February 2014. According to Hawk’s motion, the settlement
would resolve all issues in the pending appeal of the judgment in 2013-20761-158 and
those in 2012-20229-158. The motion further advised us that Hyde withdrew consent to
the settlement in March, and that Hawk filed pleadings in 2012-20229-158 in April,
seeking to enforce the settlement. Hyde filed a response opposing Hawk’s motion, but
agreeing that the settlement agreement was signed and that Hyde had withdrawn
consent to the settlement.
After obtaining and reviewing a supplemental clerk’s record containing Hawk’s
April pleadings in 2012-20229-158, we granted Hawk’s motion and abated the appeal in
early August 2014. We cited Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659
(Tex. 1996) (orig. proceeding), for the proposition that the parties and our court should
not be required to expend resources on an appeal that might be rendered moot. 4 We
directed Hawk to submit reports on the status of his suit to enforce the settlement.
After several continuances, a jury trial was conducted in 2012-20229-158 during
late February and early March 2016. On March 11, Hawk filed the motion now before
us, styled “expedited motion to remand,” in which he advises us that the jury in 2012-
20229-158 returned a verdict on March 3 “in favor of Hawk on all of his claims.” As the
result of the jury’s verdict, the motion asserts, “after a remand and re-consolidation,” the
4 Hyde v. Hawk, No. 07-14-00059-CV, 2014 Tex. App. LEXIS 8726 (Tex. App.— Amarillo Aug. 7, 2014) (order of abatement).
3 matters are “ripe for entry of a final judgment and permanent injunction.”5 The motion
makes no mention of Hawk’s suit to enforce the 2014 settlement.6 At our direction,
Hyde filed a response to Hawk’s motion to remand. Hyde opposes the motion as
presented.
In his motion to remand, Hawk somewhat adopts a position Hyde asserted in the
June 2014 appellants’ brief, viz, that the trial court’s severance order improperly divided
a single cause of action. In the appellants’ brief, Hyde relied on Dalisa, Inc. v. Bradford,
81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.) In Dalisa, the appellate court found
the trial court’s severance order improper and vacated the order. Because the finality of
the judgment for purposes of its appealability depended on the severance, the court
then concluded no final judgment was before it and dismissed the appeal for want of
jurisdiction. Id. at 882. Hyde asserted in the appellants’ brief, and Hawk suggests in
his expedited motion, that we should set aside the severance, follow Dalisa, and
dismiss the appeal.
Hawk’s motion to remand points out there is authority contrary to Dalisa’s
reasoning that an erroneous severance deprives an appellate court of jurisdiction over
an appeal of the judgment in the severed cause. Hawk is correct. Most significantly for
5 Under long-standing Texas law, a severance splits a single suit into two or more independent actions, each action resulting in an appealable final judgment. See, e.g., Aviation Composite Techs, Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.— Fort Worth 2004, no pet.) (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985). 6 On March 28, at our request, Hawk filed a status report stating that trial in 2012-20229-158 included the claim to enforce the settlement agreement. The report continued, “The jury rendered a verdict on March 4, 2016, but [Hawk] has not elected his remedy and a judgment has not been entered.”
4 our present purpose, the Fort Worth court of appeals is among the courts that has not
adopted Dalisa’s rationale. See Bird v. Lubricants, USA, LP, No. 2-06-061-CV, 2007
Tex. App. LEXIS 7110, *7-8, n.8 (Tex. App.—Fort Worth August 31, 2007, pet. denied)
(court had jurisdiction over appeal even assuming severance order was improper). 7 In
this transferred case, we will follow the Fort Worth court’s holding in Bird, and will not
dismiss the appeal for lack of jurisdiction because of the severance order, even if it
proves improper.
Rule 43.2 of the appellate rules sets out the types of judgments a court of
appeals may issue. Rule 42.1 governs the means by which parties may bring about the
voluntary dismissal of a civil appeal. TEX. R. APP. P. 43.2., 42.1. Neither rule permits us
to remand an appealed judgment to the trial court merely on the motion of the appellee.
Hawk’s expedited motion to remand thus must be, and is, denied. Hawk’s “motion to
expedite consideration of appellee’s motion to remand,” filed April 7, 2016, is dismissed
as moot.
We abated the appeal because it appeared the outcome of 2012-20229-158
might cause the appeal of the judgment in 2013-20761-158 to become moot. From the
little information provided us concerning the outcome of trial in 2012-20229-158, we
perceive such a possibility still exists. Accordingly, we will maintain the abatement of
the appeal until June 15, 2016. See Mantas, 925 S.W.2d at 659; Lutz v. Cont’l Airlines,
7 Our court also has recognized that such was the holding of the Texas Supreme Court in Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78-79 (1959). See In re Thirty-Four Gambling Devices, No. 07-04-0548-CV, 2006 Tex. App. LEXIS 775, *7 n.3 (Tex. App.—Amarillo January 30, 2006, no pet.). See also Schieffer v. Patterson, 433 S.W.2d 418, 419 (Tex. 1968) (quoting and applying Pierce).
5 No. 14-00-0771-CV, 2002 Tex. App. LEXIS 4477 (Tex. App.—Houston [14th Dist.] June
20, 2002, no pet.) (addressing similar circumstance).
It is so ordered.8
Per Curiam
8 This day, Hawk has filed a reply to Hyde’s response to Hawk’s motion to remand. Nothing in the reply calls for a different ruling on Hawk’s motion than is stated in this order.