Opinion
No. 05-02-01555-CV.
Opinion issued March 28, 2003.
Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. cc-02-00043-e.
Reversed and remanded; Petition for writ of mandamus denied.
MEMORANDUM OPINION
In these consolidated proceedings, Philadelphia Indemnity Insurance Corporation (Philadelphia) requests this Court issue a writ of mandamus directing the trial court to consider the merits of Philadelphia's plea in intervention and appeals, in five issues, the trial court's (1) striking of Philadelphia's plea in intervention based on the trial court's determination it no longer had subject matter jurisdiction and (2) entry of default judgment against Roberto Nascimento. Because Philadelphia has an adequate remedy by appeal, we deny Philadelphia's request for mandamus relief. We sustain Philadelphia's first issue on appeal because the trial court retained subject matter jurisdiction at the time the plea in intervention was filed. We remand this case to the trial court to consider the merits of Philadelphia's plea to the jurisdiction.
Procedural and Factual Background
Box was involved in an accident with Nascimento, a Brazilian national, who was driving an automobile rented from Alamo Rent-A-Car, LLC (Alamo). Philadelphia was Alamo's insurer. Box sued Nascimento, Alamo, and John Doe Corporation, Nascimento's possible employer.
John Doe Corporation was never identified or served. Box dismissed his claims against Alamo following Alamo's filing for bankruptcy relief. On July 8, 2002, the trial court granted Box's motion for default judgment against Nascimento and entered a "Final Default Judgment" against Nascimento awarding Box $1,100,125 and $5,000 in attorney's fees. Box then sought a turnover order requiring Nascimento to transfer any claims Nascimento had against Philadelphia to Box.
On August 6, 2002, Philadelphia filed a plea in intervention requesting the trial court set aside the default judgment against Nascimento. The trial court granted Box's motion to strike the intervention on grounds it did not have subject matter jurisdiction to consider the plea. Philadelphia filed a petition for writ of mandamus with this Court seeking to require the trial court to consider the merits of the plea in intervention and appealed the trial court's denial of the plea in intervention and granting of default judgment against Nascimento. We heard oral argument on March 6, 2003. On March 7, 2003, Box non-suited his claims against John Doe Corporation.
Jurisdiction Over Appeal
As discussed more fully below, the default judgment against Nascimento was interlocutory until Box non-suited his claims against John Doe Corporation on March 7, 2003. Although Philadelphia's appeal was prematurely filed, it was effective and deemed filed on March 7, 2003 when the trial court's judgment became final. Tex.R.App.P. 27.1. Accordingly, we have jurisdiction to consider the merits of Philadelphia's appeal.
Plea in Intervention
In its first issue on appeal, Philadelphia argues the trial court erred in striking the plea in intervention. A trial court has broad discretion in determining whether an intervention should be stricken. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). Whether the trial court abused its discretion in striking Philadelphia's plea in intervention on grounds the trial court no longer had subject matter jurisdiction depends on whether the default judgment entered against Nascimento was a final judgment.
A default judgment is entered without a conventional trial on the merits and, therefore, carries no presumption of finality. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199-200 (Tex. 2001). A default judgment is not final for purposes of appeal "unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Id. at 205. An order that disposes of claims against one defendant does not adjudicate claims against other parties. Id. An order does not dispose of all claims and all parties merely because it is entitled "final." Id.
Texas courts have recognized an unidentified defendant may be sued as a "John Doe." See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 925 (Tex. 1999) (per curiam) (recognizing unidentified defendant sued as "John Doe No. 1" and dismissed without being served); Operation Rescue-Nat'l v. Planned Parenthood of Houston Southeast Tex., Inc., 937 S.W.2d 60, 87-88 (Tex.App.-Houston [14th Dist.] 1996) (affirming trial court's assessment of costs incurred to serve John and Jane Doe defendants by publication), aff'd as modified, 975 S.W.2d 546 (Tex. 1998). Thus, for purposes of determining whether a judgment is final, claims against a John Doe defendant must be treated no differently than claims against a named defendant. See Herrera v. Wembley Inv. Co., 12 S.W.3d 83, 88-89 (Tex.App.-Dallas 1998) (treating claims against John Doe defendants identical to claims against identified defendants in determining whether judgment final and appealable), rev'd on other grounds, 11 S.W.3d 924 (Tex. 1999) (per curiam). The default judgment did not dispose of Box's claims against John Doe Corporation and, thus, was not final. Lehmann, 39 S.W.3d at 205. Because there was no final judgment at the time Philadelphia filed its plea in intervention, the trial court retained subject matter jurisdiction to consider the plea.
Box argues that because the statute of limitations on his claims against John Doe Corporation expired prior to the entry of the default judgment and because the default judgment was labeled "final," his conduct revealed an intent to abandon his claims against John Doe Corporation and, thus, the default judgment resolved all pending claims. Where not all defendants have been served, a plaintiff may dismiss the unserved parties without prejudice, obtain new service of process, or obtain a severance. Tex.R.Civ.P. 161. However, if the plaintiff proceeds to judgment against the served defendants without pursuing any of these options, the judgment against the served defendants acts as a dismissal of the plaintiff's claims against the unserved defendants and the judgment is final for purposes of appeal. Youngstown Sheet Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); Knie v. Piskun, 23 S.W.3d 455, 459-60 (Tex.App.-Amarillo 2000, pet. denied); First Dallas Petroleum, Inc. v. Hawkins, 715 S.W.2d 168, 170 (Tex.App.-Dallas 1986, no writ). If this analysis is applicable, the default judgment taken against Nascimento acted as a dismissal of Box's claims against the unserved defendant, John Doe Corporation, and the default judgment would have been final on July 8, 2002.
Texas Rule of Civil Procedure 161 provides:
When some of the several defendants in a suit are served with process in due time and others are not so served, the plaintiff may either dismiss as to those not so served and proceed against those who are, or he may take new process against those not served, or may obtain severance of the case as between those served and those not served, but no dismissal shall be allowed as to a principal obligor without also dismissing the parties secondarily liable except in cases provided by statute. No defendant against whom any suit may be so dismissed shall be thereby exonerated from any liability, but may at any time be proceeded against as if no such suit had been brought and no such dismissal ordered.
However, default judgments are specifically addressed in Texas Rule of Civil Procedure 240:
Where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others.
Tex.R.Civ.P. 240. Rule 240 expressly provides that a default judgment taken against one of several defendants is interlocutory, even if the remaining defendants have not been properly served. Castano v. Foremost County Mut. Ins. Co., 31 S.W.3d 387, 388 (Tex.App.-San Antonio 2000, no pet.) (per curiam) ; Dillard v. Leonard, 801 S.W.2d 23, 25 (Tex.App.-San Antonio 1990, no writ) (en banc); Reed v. Gum Keepsake Diamond Ctr., 657 S.W.2d 524, 525 (Tex.App.-Corpus Christi 1983, no writ); Dickerson v. Mack Fin. Corp., 452 S.W.2d 552, 555 (Tex.App.-Houston [1st Dist.] 1969, writ ref'd n.r.e.). Therefore, the default judgment against Nascimento was interlocutory and did not act as a dismissal of Box's claims against John Doe Corporation.
Because the default judgment taken against Nascimento was interlocutory, the trial court abused its discretion in determining it did not have subject matter jurisdiction to consider Philadelphia's plea in intervention. We sustain Philadelphia's first issue on appeal, reverse the trial court's order striking Philadelphia's plea in intervention on grounds the trial court did not have subject matter jurisdiction to consider the plea, and remand this case to the trial court for consideration of the merits of Philadelphia's plea in intervention. Due to our disposition of Philadelphia's first issue, we do not consider Philadelphia's remaining issues on appeal. Tex.R.App.P. 47.1.
Mandamus
Mandamus issues only when the trial court clearly abuses its discretion and there is no adequate remedy at law. In re CI Host, Inc. 92 S.W.3d 514, 516 (Tex. 2002) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). An appeal generally constitutes an adequate remedy at law. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994) (orig. proceeding). Because Philadelphia has an adequate remedy by appeal, it is not entitled to mandamus relief. We deny Philadelphia's petition for writ of mandamus.