Opinion
No. 01-02-00160-CV
Opinion issued January 8, 2004.
On Appeal from Probate Court No. 2, Harris County, Texas, Trial Court Cause No. 315,457-401.
Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
MEMORANDUM OPINION
Appellants, attorneys George R. Neely and Waverly R. Nolley, challenge the trial court's final judgment disposing of their claims asserted against appellees, Valencia L. Hubbard, Robert Ira Kahn, Ashley Specia, J. Felix Gonzales, Gloria Bean, Frederick Spencer Hubbard, Andrea Bobin, individually and as next friend of Lefreida Terrel Hubbard, Lisa Ann Salinas, individually and as next friend of Alexis Briana Hubbard, and Valencia Eli Hubbard, individually and as next friend of Frederick Riley Hubbard, in the probate proceedings concerning the estate of Frederick Frank Hubbard.
Appellees are the heirs of the decedent, their representatives, and their attorneys.
In their sole issue, appellants contend that the trial court erred in "entering a judgment purporting to dispose of [a]ppellants' claims" as raised in their "Original Petition in Intervention and Third Party Petition."
We affirm.
Facts and Procedural Background
On February 20, 1999, a security guard, employed by Federation Security Agency, Inc. (Federation), fatally shot Frederick Frank Hubbard at the Wilcrest Park Townhomes (Wilcrest), where he resided. At the time of the shooting, it was believed that the decedent was legally married to Valencia Latrease Hubbard (Valencia). Valencia, who was represented by appellants, filed a wrongful death and bystander lawsuit against Wilcrest and Federation in her individual capacity and as representative of the decedent's estate. Additional heirs of the decedent, represented by separate counsel, intervened or filed petitions joining in the lawsuit.
During discovery, the parties determined that, at the time of the shooting, Valencia was merely a putative spouse of the decedent, because the decedent had not divorced his previous wife, Mattie York, before "marrying" Valencia. Valencia subsequently amended her pleadings to reflect her status as a putative spouse, and the representation of the decedent's estate was transferred to another party.
Prior to trial, the decedent's heirs settled their claims against Wilcrest for $150,000 and agreed to deposit the funds into the registry of the court, pending an allocation of the funds among the parties "as agreed by the [parties] or as ordered by the court." During trial, the claims against Federation were settled for $450,000, and those funds were also deposited into the registry of the court.
In November 2001, all of the heirs except Valencia reached an agreement concerning an apportionment of the settlement proceeds among themselves, in various percentages, to be applied following the trial court's award of damages, if any, to Valencia. The trial court subsequently conducted a hearing concerning the apportionment of settlement funds to Valencia and ruled that, as a putative spouse, she was not entitled to any damages for her wrongful death claims. The trial court also awarded appellants attorneys' fees and expenses totaling $22,550.37 for their services rendered during their temporary representation of the decedent's estate.
Appellants subsequently filed a motion requesting that the trial court reconsider its apportionment ruling concerning Valencia, and, after a second hearing on apportionment in January 2002, the trial court denied the motion. On February 1, 2002, the trial court signed a judgment reflecting the parties' settlement and apportionment agreements, its decision to award Valencia nothing on her wrongful death claims, and its award of fees and costs to appellants. Valencia then discharged appellants as her attorneys and dismissed her claim for any of the settlement funds.
Appellants later filed a notice of appeal on Valencia's behalf, apparently from the trial court's ruling that Valencia was not entitled to any of the settlement proceeds. Valencia, proceeding pro se, filed a motion to dismiss her appeal, which we granted by previous order in this case.
On March 1, 2002, appellants filed a pleading entitled "Original Petition in Intervention and Third Party Petition" asserting a claim for breach of contract against Valencia and claims for, among other things, fraud, conspiracy to defraud, and tortious interference with contract against all of the other parties and their counsel. In their petition, appellants alleged that counsel for the decedent's heirs had paid or promised to pay Valencia an unspecified sum of money to resolve her claims against the decedent's heirs over the settlement proceeds and that Valencia was "an active participant . . . in attempting to destroy [relators'] claims for attorney's fees. . . ."
On March 8, 2002, the trial court signed a "Final Judgment" incorporating its earlier decisions concerning the parties' settlement and apportionment agreements, as well as the trial court's findings concerning the heirship of the various parties. Although the trial court's March 8, 2002 judgment includes a "Mother Hubbard" clause, which reads, "ALL RELIEF NOT GRANTED IS DENIED," the judgment does not specifically address the claims raised in appellants' petition. Also on March 8, 2002, but after the final judgment was signed, appellants filed a motion to sever the claims raised in their petition.
After the trial court signed its March 8, 2002 judgment, the decedent's heirs filed a motion to strike appellants' petition. On March 15, 2002, the trial court conducted a hearing on the motion to strike and explained its ruling as follows:
[I]f it were an intervention against your former client seeking your fees, that would be one thing; but this is a whole new lawsuit against a bunch of new parties who were not parties to the original suit, although they were counsel to parties in the original suit. And I'm not sure I do have jurisdiction over all those issues, although I do have a sum of money in the registry, but that's all committed to various people. So I'm going to grant the motion to strike the intervention. I think that the new lawsuit is just too broad for this Court to really have jurisdiction over it, because it's a suit against the attorneys for conspiracy or whatever.
Following the hearing, the trial court signed an order granting the motion to strike appellants' petition.
In contrast to its oral pronouncement, the trial court's March 15, 2002 order granting the motion to strike appellants' petition recites that appellants' claims were "disposed of" by the trial court's earlier March 8, 2002 judgment.
In April 2002, the trial court signed an order disbursing all of the settlement funds from the registry of the court to the parties, in accordance with the terms of the trial court's earlier judgment.
Appellants also filed a petition for writ of mandamus complaining of several of the trial court's rulings. We denied the petition. In re Neely, No. 01-02-00355-CV (Tex. App.-Houston [1st Dist.] January 23, 2003) (orig. proceeding).
Intervention and "Third-Party" Claims
In their sole issue, appellants argue that the trial court erred in disposing of the claims presented in their petition in intervention and "third-party" petition.
With regard to the characterization of the claims presented in appellants' petition, we hold that such claims are not true third-party claims because the appellants were not parties to the underlying lawsuit at the time that their petition was filed. See Tex. R. Civ. P. 38 (providing for circumstances under which parties to a lawsuit may assert claims against third parties). Thus, we consider appellants' claims as claims in intervention in the underlying lawsuit.
Any persons may intervene in an ongoing lawsuit "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. Such persons have the right to intervene if they could have brought the same action, or any part thereof, in their own name. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). A petition in intervention may be filed at any time prior to the signing of a final judgment, without leave of court. Id.
We review a trial court's ruling on a motion to strike a petition in intervention for abuse of discretion. Id. A trial court abuses its discretion when it strikes a petition in intervention that (1) meets the above test, (2) will not complicate the case by "an excessive multiplication of the issues," and (3) is "almost essential to effectively protect the intervenor's interest." Id. Additionally, a trial court may not strike a petition in intervention sua sponte, but may do so only after a party files a motion to strike the petition. Id.
At the time that the trial court signed its March 8, 2002 judgment, no motion to strike appellants' petition in intervention had been filed by any of the parties; thus, despite language to the contrary in the trial court's March 15, 2002 order, the trial court was without authority to strike appellants' petition at the time the court signed its March 8, 2002 judgment. Accordingly, we hold that the trial court's March 8, 2002 judgment was not a final, appealable judgment because it did not dispose of all parties and pending claims, namely, the claims raised in appellants' petition in intervention. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) ("A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language.").
Nor is the fact that the judgment contained "Mother Hubbard" language conclusive of its finality. Id. at 203-04 (holding that inclusion of Mother Hubbard clause does not, by itself, indicate finality of judgment rendered without conventional trial).
However, as noted above, shortly after the March 8, 2002 judgment was signed, the heirs of the decedent filed a motion to strike appellants' petition in intervention, and the trial court conducted a hearing and granted the motion. In granting the motion to strike the petition in intervention, the trial court disposed of all remaining parties and claims, thus rendering its prior judgment final. See id. We will review the trial court's decision to grant the motion to strike for abuse of discretion.
With regard to whether appellants demonstrated their right to intervene in the underlying lawsuit, it is undisputed that appellants could have filed a separate lawsuit in their own names asserting the claims brought against appellees in the petition in intervention.
In fact, appellees assert that appellants have already done so in a separate proceeding pending in the 164th District Court of Harris County, Texas. However, no pleadings from this cause appear in the record, and, in the absence of any support for this allegation in the record before us, we may not take judicial notice of such suit. See Tex.R.App.P. 34.1.
In the petition in intervention, appellants alleged claims against their former client, the decedent's heirs, and the other attorneys participating in the underlying suit for fraud, conspiracy to defraud, and tortious interference with contract. At the hearing on their motion to strike the intervention, appellees argued that the intervention was improper because it alleged several new causes of action against new parties. At the time appellants intervened, the trial court had already made its determinations as to the heirship of the parties and had signed a judgment memorializing the parties' agreements concerning the settlement of their wrongful death claims and the apportionment of the settlement proceeds. Therefore, permitting appellants' intervention to proceed would have served only to complicate a fairly simple and essentially resolved probate matter by "an excessive multiplication of the issues." See Horseshoe Operating Co., 793 S.W.2d at 657. Moreover, in their petition in intervention, appellants did not allege, nor have they demonstrated by argument and citation to the record on appeal, that their intervention in the underlying proceeding was "almost essential to effectively protect [their] interest." See id.
Accordingly, based on the record presented, we hold that the trial court did not abuse its discretion in granting appellees' motion to strike appellants' petition in intervention. Further, we hold that, by finally disposing of all parties and pending claims in its March 15, 2002 order granting the motion to strike the intervention, the trial court's March 8, 2002 judgment became final and appealable.
We overrule appellants' sole issue.
Conclusion
We affirm the judgment of the trial court.