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holding that the petition to intervene was not extinguished because the trial court had not yet ruled on the motion to strike at the time of the non-suit
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NUMBER 13-15-00105-CV
03-10-2016
CROX QUINTANILLA, Appellant, v. LAW OFFICE OF JERRY J. TREVINO, P.C., Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Memorandum Opinion by Justice Garza
In this appeal we are asked whether a party's petition in intervention, which was subject to a pending motion to strike, survives a plaintiff's non-suit. Appellant Crox Quintanilla, intervenor below, claims that it does and that the trial court therefore erred in dismissing his claims against appellee Law Office of Jerry J. Trevino, P.C. ("Trevino"). We reverse and remand.
I. BACKGROUND
Trevino sued Randall Barerra and René Rodriguez on April 15, 2013, for claims arising out of a Settlement and Confidentiality Agreement (the "Agreement") between Quintanilla and Barrera. The petition alleged that, under the Agreement, Barrera was required to make monthly payments "to Crox Quintanilla and his attorney René Rodriguez," but that Quintanilla had assigned his interest in the Agreement to Trevino. The petition alleged that Barrera breached the Agreement by initially failing to make the payments, and that Rodriguez tortiously interfered with the Agreement, converted Trevino's property, and breached fiduciary duties by retaining some of the funds eventually paid by Barrera as attorney's fees. Trevino sought specific performance of the Agreement, permanent and temporary injunctive relief, and a declaratory judgment.
On May 6, 2013, Quintanilla filed a petition in intervention asserting that the assignment of his rights under the Agreement to Trevino was invalid. He contended that Trevino was his attorney at the time he executed the assignment, but that Trevino made false representations to him regarding the value of his rights under the Agreement. Quintanilla asserted that he was entitled to over $200,000 in payments under the Agreement; but, on Trevino's advice that he should assign his rights under the Agreement "to relieve himself of the time, trouble and difficulty of collection," he transferred those rights to Trevino in exchange for only $28,000. Quintanilla argued there was "no basis" for Trevino to have told him "that there would have been any problems or difficulty in collection" of the amounts due to him under the Agreement. He alleged common law fraud, negligence, tortious interference with the Agreement, and breach of fiduciary duty.
Quintanilla later filed an amended petition in intervention adding Jerry J. Trevino, individually, as an intervenor-defendant. We will refer to both Trevino and his law office collectively as "Trevino."
On September 3, 2013, Trevino moved to strike Quintanilla's petition in intervention on the following grounds:
(1) Quintanilla's unsworn allegations of fraud and false misrepresentations constitute inadmissible parol evidence that do not create a justiciable interest in this litigation; (2) because the Assignment contains an express merger clause (Paragraph 3.2), Quintanilla's unsworn allegations of fraud and misrepresentation, even if such parol evidence is admissible, fail to prove the element of actual and justifiable reliance common to all of his causes of action as a matter of law; (3) Quintanilla's unsworn parol allegations of fraud and misrepresentation contradict express recitations and terms of the Assignment mandated by Rule 1.08 of the Texas Disciplinary Rules of Professional Conduct, rendering the provisions of Rule 1.08 meaningless and violating the cardinal rule of statutory construction that the Legislature is never presumed to do a useless act . . . ; (4) in the absence of an ability to defeat enforceability of the Assignment (either because his unsworn allegations of fraud and misrepresentation constitute inadmissible parol evidence, fail to prove his justifiable reliance, or render Rule 1.08 meaningless), Quintanilla as assignor has no standing to assert any "rights, title, and interest in and to the [Agreement]" he assigned to Trevino . . . in Paragraph 2.1 of the Assignment, no justiciable interest in this litigation, and is not a necessary party; and (5) the Intervention requires a multiplicity of litigation in that: (i) Rule 97 of the Texas Rules of Civil Procedure mandates that . . . Trevino file compulsory counterclaims stating "any claim [that] arises out of the transaction or occurrence that is the subject matter" of the Intervention; (ii) to avoid estoppel or preclusive effect in any later litigation, . . . Trevino must bring any permissive counterclaim under Rule 97 against Quintanilla "whether or not arising out of the transaction or occurrence" if the claim could be brought in this litigation; and (iii) to facilitate the orderly and efficient disposition of litigation and to avoid estoppel or preclusive effect in any later litigation, the Intervention requires . . . Trevino to add parties and claims that require a determination of the same questions of fact and law.Ten days later, Trevino filed a motion to dismiss Quintanilla's petition in intervention as baseless under Texas Rule of Civil Procedure 91 a. See TEX. R. CIV. P. 91 a (allowing any party to "move to dismiss a cause of action on the grounds that it has no basis in law or fact"). The Rule 91a motion stated that it was brought subject to the motion to strike. A hearing was held on October 4, 2013, but the trial court did not issue any rulings on the motion to strike or the Rule 91a motion.
No further activity occurred in the case until August 18, 2014, when Quintanilla filed a motion to: (1) set a hearing on all pending motions; (2) set the matter for trial; and (3) in the alternative, have the presiding judge of the 5th Administrative Judicial Region assign a new judge in the matter.
The motion noted that the trial court "has not made any rulings, set any hearings, or made any inquiries regarding this matter" for over ten months.
On September 3, 2014, by letter to the other parties' attorneys of record, Trevino's counsel proposed a settlement whereby each party, including Quintanilla, would dismiss their claims. Attached to the letter was a proposed "All Parties' Motion for Non Suit" and a proposed order granting the motion. However, the parties did not agree to this proposal.
Subsequently, on September 24, 2014, Trevino filed a "Motion for Non Suit" pertaining to each of his own affirmative claims. That same day, the trial court rendered an "Order of Dismissal" stating in its entirety as follows:
Plaintiffs, Law Office of Jerry J. Trevino and Jerry J. Trevino, Individually move for a Non-Suit of all of the parties in interests [sic]. The Court after considering the request GRANTS THE NON-SUIT and all claims of the Plaintiffs Law Office of Jerry J. Trevino and Jerry J. Trevino, Individually are hereby dismissed.
Later, on January 22, 2015, the trial court rendered an "Order on Interpleader [sic] Petition" stating in its entirety as follows:
The clerk's record shows that the parties were notified that a "final hearing" would take place on January 30, 2015. The parties do not mention whether this hearing took place, and there is no reporter's record of any such hearing. The clerk's record further shows that Trevino filed a "Memorandum In Support of Motion to Dismiss Plea In Intervention" on January 12, 2015, making the same arguments he now makes on appeal—i.e., that the non-suit of his own claims extinguished Quintanilla's intervention.
The Court finds that the Plaintiff's Motion to Non-Suit and Order of dismissal entered on September 24, 2014 disposed of all issues and causes of actions of all parties. It is therefore the Order of the Court and it is so
ORDERED that the Interpleader [sic] Petition of Crox Quintanilla be and it is stricken in its entirety.Quintanilla filed a motion to reconsider and for new trial, which was denied. This appeal followed.
II. DISCUSSION
Texas Rule of Civil Procedure 60 provides that "[a]ny party may intervene by filing a pleading subject to being stricken out by the court for sufficient cause on the motion of any party." TEX. R. CIV. P. 60. The rule authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right. In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008); Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). "The parties to the pending case may protect themselves from the intervention by filing a motion to strike." In re Union Carbide Corp., 273 S.W.3d at 155 (citing Guar. Fed. Sav. Bank, 793 S.W.2d at 657). "If any party to the pending suit moves to strike the intervention, the intervenors have the burden to show a justiciable interest in the pending suit." Id. (citing Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982)). To constitute a justiciable interest, "[t]he intervenor's interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought" in the original suit. Id. (citing King v. Olds, 12 S.W. 65, 65 (Tex. 1888)). In other words, a party may intervene if the intervenor could have "brought the [pending] action, or any part thereof, in his own name." Id. (citing Guar. Fed. Sav. Bank, 793 S.W.2d at 657).
We review a trial court's ruling on a motion to strike an intervention for abuse of discretion. See Guar. Fed. Sav. Bank, 793 S.W.2d at 657. It is an abuse of discretion to strike a plea in intervention if: (1) the intervenor has a justiciable interest in the suit; (2) "the intervention will not complicate the case by an excessive multiplication of the issues"; and (3) "the intervention is almost essential to effectively protect the intervenor's interest." Id. Further, a trial court abuses its discretion when it acts without regard for guiding rules or principles. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012).
In this case, Quintanilla filed a petition in intervention and Trevino moved to strike it. Trevino later non-suited his own claims before the trial court ruled on the motion to strike. Quintanilla argues on appeal that the trial court abused its discretion by dismissing his pleadings because Trevino, by filing a non-suit as to Trevino's own claims, cannot "affect the intervenor's rights in this litigation."
In response, Trevino contends that, "[b]ecause [Quintanilla]'s intervention was pending and had not been heard or granted the Dismissal of the case also dismissed the Motion to Intervene." We disagree. Intervention is permitted as a matter of right, In re Union Carbide Corp., 273 S.W.3d at 155; therefore, Quintanilla did not need to have his petition "heard or granted" in order for him to be a party to the suit. A party may, of course, move to strike an intervention, and when a party does so, the intervenor bears the burden to show a justiciable interest in the suit, id.; but the intervention remains active unless and until the trial court grants the motion to strike. Here, the trial court had not ruled on the motion to strike at the time of Trevino's non-suit; accordingly, that non-suit did not extinguish Quintanilla's petition in intervention. See TEX. R. CIV. P. 162 (stating that any dismissal pursuant to a non-suit "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief"); Zeifman v. Michels, 229 S.W.3d 460, 468 (Tex. App.—Austin 2007, no pet.) (noting that, because appellant filed intervention one week before appellee non-suited her claims, appellant was a "proper party" at the time of the non-suit).
The trial court arguably granted Trevino's motion to strike in its January 22, 2015 "Order on Interpleader [sic] Petition," which stated that Quintanilla's petition "is stricken in its entirety." However, this order stated specifically that Quintanilla's petition was struck because the September 24, 2014 order "disposed of all issues and causes of actions of all parties." Apparently, the trial court did not consider the issue of whether Quintanilla showed that he had a justiciable interest in the suit; instead, it struck Quintanilla's petition solely on the basis of Trevino's "Motion for Non Suit." This was error. We have already concluded that, because the motion to strike had not been ruled upon as of September 24, 2014, the order granting Trevino's non-suit on that date did not dispose of Quintanilla's intervention. Accordingly, the trial court abused its discretion by acting without regard to guiding rules and principles when it struck Quintanilla's pleadings. See U-Haul Int'l, Inc., 380 S.W.3d at 132. Quintanilla's issue on appeal is sustained.
In their appellate briefs, neither party addresses the issue of whether Quintanilla had a justiciable interest in the suit. Instead, their dispute concerns the effect of Trevino's non-suit. --------
III. CONCLUSION
We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
DORI CONTRERAS GARZA
Justice Delivered and filed the 10th day of March, 2016.