Motion to Sever and Abate in Texas

What Is a Motion to Sever and Abate?

Background

Any claim against a party may be severed and proceeded with separately. (Tex. R. Civ. P. 41.) A severance divides the lawsuit into two or more separate and independent causes. (Hall v. City of Austin (1970) 450 S.W.2d 836, 837-38.) The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience. (Id.) The trial court has broad discretion in the severance of causes of action. (Morgan v. Compugraphic Corp. (1984) 675 S.W.2d 729, 734; Black v. Smith (1997) 956 S.W.2d 72, 75.)

Claims are properly severable if the controversy involves more than one cause of action, the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and the severed claim is not so interwoven with the remaining action that it involves the same facts and issues. (Guar. Fed. Sav. Bank v. Horseshoe Operating Co. (1990) 793 S.W.2d 652, 658.) When this has been done, a judgment that disposes of all parties and issues in one of the severed causes is final and appealable. (Id. at 838.)

Abatement of extracontractual claims is required when, under the circumstances, both parties would incur unnecessary expenses if the breach of contract claim were decided in the insurer's favor. (In re Am. Nat'l Cty. Mut. Ins. Co. (2012) 384 S.W.3d 429, 436.) Thus, abatement is necessary when a determination on the breach of contract claim in favor of the insurer will negate the insured's extracontractual claims. (Id.) Without the abatement, the parties would be put to the effort and expense of conducting discovery and preparing for trial of claims that may be disposed of in a previous trial. (Id.)

How to Structure the Motion

Rule 41 of the Texas Rules of Civil Procedure governs the severance of claims. (See Tex.R. Civ. P. 41 [“Any claim against a party may be severed and proceeded with separately.”])

A claim may be severed if:

the controversy involves more than one cause of action,
the severed claim could be the proper subject of a lawsuit if independently asserted, and
the severed claim is not so interwoven with the remaining action that both involve the same facts and issues.

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

Abatement

Pleas in abatement are not included in the list of pleas which must be verified under Rule 93 of the Texas Rules of Civil Procedure. (In re General (2008) 254 S.W.3d 670, 676 citing Tex. R. Civ. P. 93.)

A motion to abate is used to challenge the plaintiff's pleadings by alleging facts outside the pleadings that prove the suit cannot go forward in its present condition. (Tex. Highway Dept. v. Jarrell (1967) 418 S.W.2d 486, 488 (Tex. 1967); Truong v. City of Houston (2002) 99 S.W.3d 204, 216.)

In the motion to abate, the defendant must:

identify any impediment to the continuation of the suit,
identify an effective cure, and
ask the court to abate the suit until the defect is corrected.

(Morgan v. City of Alvin (2004) 175 S.W.3d 408, 421 citing Truong, supra, 99 S.W.3d at 216.)

Response

The controlling reasons to allow a severance are to avoid prejudice, do justice, and promote convenience. (F.F.P. Operating Partners, L.P. v. Duenez (2007) 237 S.W.3d 680, 693). Therefore, any opposition should emphasize the prejudicial aspects of granting such a motion, or the injustice that may result from inconsistent rulings or verdicts. (Id.) The burden is on the party seeking severance to show how it will be prejudiced if the claims are tried together and to present the evidence to the trial court, in camera if necessary, that forms the basis of its claims. (In re Allstate Tex. Lloyds (2006) 202 S.W.3d 895).

The Court’s Decision

The trial court has broad discretion in the severance of causes of action. (Morgan v. Compugraphic Corp. (1984) 675 S.W.2d 729, 734.) Texas Rule of Civil Procedure 174(b) provides:

"The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues."

(Tex. R. Civ. P. 174(b).)

“As a general rule, a trial court has discretion to grant or deny a motion to abate. (In re Allstate (2007) 232 S.W.3d 340, 344.) [It is] recognize[d] that a number of [other] courts hold that abatement is mandatory when a trial court orders severance of extracontractual claims from contractual claims. (See, e.g., U.S. Fire Ins. v. Millard (1993) 847 S.W.2d 668 at 675-76.) But a trial court should schedule its cases in such a manner as to expeditiously resolve them. (In re Allstate County (2006) 209 S.W.3d 742, at 746 [citing Clanton v. Clark (1982) 639 S.W.2d 929, 931].) To promote the carrying out of this task, a trial court is given broad discretion in managing its docket, and "[the court of appeals] will not interfere with the exercise of that discretion absent a showing of clear abuse." (Clanton, 639 S.W.2d at 931.) Because of these competing interests, we have avoided creating a bright line rule requiring abatement under these circumstances.” (See In re Allstate County Mut. his. Co., 209 S.W.3d at 746-47.)

Although trial courts are given broad discretion in determining whether to grant severance, that discretion is not unlimited. (In re General (2008) 254 S.W.3d 670, 673-74 citing Black, supra, 956 S.W.2d at 75; United States Fire Ins. Co. v. Millard (1993) 847 S.W.2d 668, 671.) The trial court has a duty to order severance where the facts and circumstances unquestionably require severance to prevent “manifest injustice,” where no facts or circumstances support a contrary conclusion, and where there will be no prejudice suffered. (Black, 956 S.W.2d at 75 [citing Womack v. Berry (1956) 291 S.W.2d 677, 683.) Under such circumstances, the refusal to order a severance constitutes a violation of a plain legal duty, even though it is often termed a clear abuse of discretion. (Black, 956 S.W.2d at 75.)

If a trial court abuses its discretion in denying a motion to sever and abate extracontractual claims, there is no adequate remedy by appeal. (In re AAA Tex. Cnty. Mut. Ins. Co. (2016) No. 12-15-00277-CV, at *2 citing U.S. Fire Ins. Co. v. Millard (1993) 847 S.W.2d 668, 675-76.) This is because an insurer stands to lose substantial rights by being required to prepare for claims that may be rendered moot and may not have accrued. (In re United Fire Lloyds (2010) 327 S.W.3d 250, 256.)

Timeline

“Parties may be dropped or added, or suits filed separately may be consolidated, or actions which have been improperly joined may be severed and each ground of recovery improperly joined may be docketed as a separate suit between the same parties, by order of the court on motion of any party or on its own initiative at any stage of the action, before the time of submission to the jury or to the court if trial is without a jury, on such terms as are just. Any claim against a party may be severed and proceeded with separately.” (Tex. R. Civ. P. 41.)