Opinion
13-23-00501-CV
01-22-2024
IN RE FIDEL LUIS PENA III AND THE FIDEL L. PENA III LAW FIRM, PLLC
On Petition for Writ of Mandamus.
Before Chief Justice Contreras and Justices Silva and Peña
MEMORANDUM OPINION
See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); id. R. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal."); id. R. 47.4 (explaining the differences between opinions and memorandum opinions).
By petition for writ of mandamus, relators Fidel Luis Pena III and The Fidel L. Pena III Law Firm, PLLC (Pena) assert that the trial court abused its discretion by refusing to grant their motion to strike a plea in intervention. We conditionally grant the petition for writ of mandamus.
This lawsuit arises from trial court cause number C-2730-21-B in the 93rd District Court of Hidalgo County, Texas, and the respondent is the Honorable Fernando G. Mancias. See id. R. 52.2.
I. Background
In the underlying case, Celina Flores and Noe Everardo Flores filed suit individually and as next friends to C.F. and N.F., minor children (the Flores family), against Alfredo Cornejo and Cornejo Forestry Services, Inc. for personal injury damages arising from an automobile accident. Thereafter, real parties in interest Francisco J. Garza and Frank Garza Law Firm, P.L.L.C. (Garza) filed a plea in intervention raising claims against Pena.Garza alleged that he entered into numerous contracts with Pena to perform legal services for various clients "for a 50% compensation to [Garza's] office of any recovered attorney's fees." Garza alleged that he "took on a large caseload" from Pena because Pena would have otherwise run afoul of the relevant statutes of limitation and because Pena was "not equipped [n]or [had] the knowledge or the desire to file the lawsuits and perform the work required." Garza asserted, for instance, that Pena was not licensed in federal court, yet some of the cases were required to be filed in that forum. Garza alleged that Pena interfered with litigating the cases, interfered with settling the cases, and failed to pay Garza his required allotment of attorney's fees in the cases that had been resolved. Garza's causes of action against Pena included anticipatory breach of contract, fraudulent inducement, fraud, constructive fraud, negligent misrepresentation, quantum meruit, and promissory estoppel. Garza sought remedies including specific performance, declaratory judgment, actual and exemplary damages, and attorney's fees. Garza specifically itemized the cases for which he alleged nonpayment of fees with two exhibits: (1) Exhibit A, a collection of two types of documents-client agreements providing consent to associate co-counsel and letter agreements between Pena and Garza regarding the division of fees-in total comprising sixty-six different cases; and (2) Exhibit B, a list of sixty-four clients. Garza sought relief as to all cases listed in both exhibits.
We refer to the relators and real parties in interest in the singular for clarity.
Garza asserts that he does not have possession of the signed contracts for the clients listed in Exhibit B because Pena refused to provide him with copies of the signed contracts. The Flores family, the plaintiffs in the underlying personal injury lawsuit, were listed as four separate clients in Exhibit B.
Pena filed a motion to strike Garza's plea in intervention. Pena asserted that Garza was not seeking to protect attorney's fees derived from the instant lawsuit but was rather seeking damages for the breach of agreements pertaining to other personal injury cases "even though those cases have no relation to the case before the court." Pena contended that Garza had no justiciable interest in the instant case "because the underlying litigation cannot possibly affect [Garza's] right to seek damages for the alleged breach of contract on any of the other . . . cases." Pena also asserted that even if Garza had a justiciable interest in the lawsuit, allowing him to intervene would cause an excessive multiplication of issues, and intervention was not required to effectively protect Garza's interests because he could "file an appropriate breach of contract case in a court of competent jurisdiction." Garza did not file a response to Pena's motion to strike.
After a non-evidentiary hearing, the trial court denied Pena's motion to strike. This original proceeding ensued. By one issue, Pena asserts that the trial court clearly abused its discretion by refusing to grant his motion to strike "despite [Garza] legally failing to meet [his] burden to establish a justiciable interest in the underlying case and as it pertained to one-hundred thirty (130) other personal injury cases filed in various other State District [and] Federal Courts as alleged in the Plea in Intervention." Pena also filed a motion to stay the underlying proceedings pending the resolution of his petition for writ of mandamus. This Court granted Pena's motion to stay and requested and received a response to the petition for writ of mandamus from Garza. Garza asserts both that the trial court acted within its discretion and that Pena possesses adequate legal remedies to address any alleged error.
We note that Garza alleges that Pena "wait[ed] almost a month" to file the petition for writ of mandamus but does not present argument or authority suggesting that this delay should defeat mandamus. See In re Am. Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (per curiam) (holding that unreasonable delay may waive the right to mandamus relief unless the delay is justified); In re Giles, 675 S.W.3d 376, 389 (Tex. App.-Corpus Christi-Edinburg 2023, orig. proceeding) (stating that to defeat mandamus a litigant must ordinarily show unreasonable delay and a good faith and detrimental change in position because of the delay). Accordingly, we need not address this issue here. See Tex. R. App. P. 52.3(h) (providing that a petition for writ of mandamus "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record").
II. Standard of Review
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion; and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). "The relator bears the burden of proving these two requirements." In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 840.
A trial court abuses its discretion when it acts with disregard for guiding rules or principles or when it acts in an arbitrary or unreasonable manner. In re Garza, 544 S.W.3d at 840. We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Acad., Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding); In re Essex Ins., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. Whether an appellate remedy is adequate in a specific case "depends heavily on the circumstances presented and is better guided by general principles than by simple rules." In re Kappmeyer, 668 S.W.3d 651, 659 (Tex. 2023) (orig. proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 137). Thus, mandamus relief may be available if a trial court abuses its discretion by erroneously denying a motion to strike a plea in intervention. See In re Union Carbide Corp., 273 S.W.3d 152, 156-57 (Tex. 2008) (orig. proceeding) (per curiam); In re O'Quinn, 355 S.W.3d 857, 861-62 (Tex. App.-Houston [1st Dist.] 2011, orig. proceeding [mand. denied]); see also In re Ubican Glob., Inc., No. 01-21-00293-CV, 2021 WL 4533281, at *4 (Tex. App.-Houston [1st Dist.] Oct. 5, 2021, orig. proceeding) (mem. op.); In re McClellan Creek Ranch, LLC, No. 07-19-00135-CV, 2019 WL 2238429, at *3 (Tex. App.-Amarillo May 23, 2019, orig. proceeding) (mem. op.).
III. Intervention
"Any 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; see Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 713 (Tex. 2021). "The rule authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right." Nghiem v. Sajib, 567 S.W.3d 718, 721 (Tex. 2019) (quoting In re Union Carbide Corp., 273 S.W.3d at 154). A party opposing the intervention may file a motion to strike. Nghiem, 567 S.W.3d at 721. If a motion to strike is filed, the intervenor has the burden to show that it possesses a justiciable interest in the suit. Id.; In re Union Carbide Corp., 273 S.W.3d at 155.
An intervenor possesses a justiciable interest if the interest is "such that if the original action had never been commenced, and [the intervenor] had first brought it as the sole plaintiff, [the intervenor] 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. In re Union Carbide Corp., 273 S.W.3d at 155 (quoting King v. Olds, 12 S.W. 65, 65 (Tex. 1888)). Or, stated otherwise, an intervenor has a justiciable interest "if the intervenor could have 'brought the [pending] action, or any part thereof, in his own name.'" Id. (quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (op. on reh'g)). A justiciable interest is analogous to an interest that is "essential for a party to maintain or defend an action." Williamson v. Howard, 554 S.W.3d 59, 66 (Tex. App.-El Paso 2018, no pet.) (quoting McCord v. Watts, 777 S.W.2d 809, 811 (Tex. App.-Austin 1989, no writ)). In broad terms, a party may intervene when its interests will be affected by the litigation. J. Fuentes Colleyville, L.P. v. A.S., 501 S.W.3d 239, 243 (Tex. App.-Fort Worth 2016, no pet.); Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.-Fort Worth 2003, no pet.). The intervenor's interest may be legal or equitable. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982); Williamson, 554 S.W.3d at 66. However, the interest may not be merely contingent or remote. Williamson, 554 S.W.3d at 56; Smith v. City of Garland, 523 S.W.3d 234, 241 (Tex. App.-Dallas 2017, no pet.); Law Offices of Windle Turley, P.C., 109 S.W.3d at 70. We examine the pleadings to determine if an intervenor has a justiciable interest. Williamson, 554 S.W.3d at 66-67; J. Fuentes Colleyville, L.P., 501 S.W.3d at 243; Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex. App.-El Paso 1995, no writ).
We review the trial court's ruling on a motion to strike an intervention under an abuse of discretion standard. Farmers Grp., Inc., 620 S.W.3d at 713; Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Quiroz v. Gray, 441 S.W.3d 588, 594 (Tex. App.-El Paso 2014, no pet.); Ins. Co. of State of Pa. v. Neese, 407 S.W.3d 850, 853 (Tex. App.-Dallas 2013, no pet.). The trial court's discretion is "broad," but not unlimited. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; see Williamson, 554 S.W.3d at 66-67; Ins. Co. of State of Pa., 407 S.W.3d at 853.
IV. Analysis
By one issue, Pena asserts that the trial court abused its discretion by denying his motion to strike the plea in intervention because Garza failed to show a justiciable interest in the pending case. In this regard, Pena argues that Garza failed to allege or establish "any common link between the ongoing lawsuit and the additional [one hundred and thirty] cases the court allowed him to bring into the litigation" and that "[m]ost of the additional cases are ongoing in other state and federal courts." Pena specifically asserts that Garza's purpose in filing a plea in intervention "was not to protect a justiciable interest that might be affected in the ongoing litigation" and instead "the plea was merely a mechanism by which [Garza] bypassed . . . random court assignment procedures."
We examine whether Garza has shown a justiciable interest in this pending lawsuit. See In re Union Carbide Corp., 273 S.W.3d at 155; Guar. Fed. Sav. Bank, 793 S.W.2d at 657. As stated previously, the underlying case is a personal injury case filed by the Flores family against Alfredo Cornejo and Cornejo Forestry Services, Inc. for "severe personal injuries and damages" arising from an automobile accident. Garza was not involved in the automobile accident and could not have brought the same action, or any part thereof, in his own name. According to his plea in intervention, Garza's claims involve a different party, Pena, different facts, different theories of liability, and different damages than those involved in the Flores family's personal injury case. See Williamson, 554 S.W.3d at 66-67; J. Fuentes Colleyville, L.P., 501 S.W.3d at 243.
Garza contends that a plea in intervention is an appropriate vehicle by which a discharged attorney may recover fees for services rendered. He asserts that it would be improper for him to file a plea in intervention in every single case in which he has claims against Pena, and thus, it could not be an abuse of discretion for the trial court to allow him to intervene in this one. Garza argues that "[a]ccording to the evidence in the record at the hearing" on Pena's motion to strike, "the Flores contract is identical to or substantially similar to all of the joint representation agreements between Pena, Garza, and their clients, and the single issue to decide is enforceability."
The hearing on the motion to strike was not evidentiary, and all of the contracts are not in the record before us. We note that courts have rejected the concept that the mere similarity of documents at issue in separate cases creates a justiciable interest. See, e.g., In re Devon Energy Prod. Co., 321 S.W.3d 778, 783-84 (Tex. App.-Tyler 2010, orig. proceeding) ("The fact that the form used for all the leases is the same does not give the intervenors a justiciable interest in the plaintiffs' suit."); Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 854 (Tex. App.-Dallas 2008, no pet.) (stating that the intervenor lacked a justiciable interest in a suit to rescind a contract where the intervenor was not a party to the contract and could not have sued to enforce it).
While we recognize that attorneys may be allowed to intervene in a case to protect their interest in the attorney's fees that are attributable to the matter, the intervention at issue here is not such a case. See Farmers Grp., Inc., 620 S.W.3d at 713 & n.11 (collecting cases standing for the proposition that "attorneys are sometimes permitted to intervene in hopes of obtaining or protecting their fees" but noting that "these authorities do not hold that a trial court must always entertain such requests"); Law Offices of Windle Turley, P.C., 109 S.W.3d at 70 (concluding that contingent fee agreements, as opposed to percentage agreements, create justiciable interests and that "[a] plea in intervention in the principal suit is an appropriate vehicle by which a discharged attorney may recover fees for services rendered"). Examining the pleadings, we observe that Garza is not merely seeking to protect his portion of the attorney's fees that are attributable to the Flores family's personal injury case pursuant to a fee-sharing agreement, contingent or otherwise, but is instead suing Pena for declaratory relief, specific performance, breach of contract, and damages with regard to the underlying case and many, many other cases. Allowing Garza to intervene in the Flores family's personal injury case would inject new issues into the case that are completely unrelated to the liability and damage issues that are germane to the resolution of their claims. See Law Offices of Windle Turley, P.C., 109 S.W.3d at 71.
We note that Pena asserts that Garza has been "discharged" from representing the Flores family in the instant case, but Garza's plea in intervention states that, "To date, [Pena] has not filed motions to substitute to take over cases away from [Garza] or motions to have a court withdraw [Garza] as attorney of record for the clients." We note that the trial court's "Register of Actions" includes Garza's name as attorney for the Flores family; however, Garza's name is struck through. The "Register of Actions" does not appear to include a motion to withdraw or similar motion seeking to terminate Garza's representation of the Flores family, nor does it include a ruling indicating that the trial court has ordered Garza to be withdrawn from the case.
We conclude that Garza's plea in intervention fails to show that he possesses a justiciable interest that would allow him to intervene in this lawsuit. See In re Union Carbide Corp., 273 S.W.3d at 155; Guar. Fed. Sav. Bank, 793 S.W.2d at 657. In reaching this conclusion, we note that the intervention would complicate the Flores family's personal injury case with an excessive multiplication of the issues and would involve examining the contracts and litigation results for numerous unrelated cases. See Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Williamson, 554 S.W.3d at 66-67; Ins. Co. of State of Pa., 407 S.W.3d at 853. Furthermore, Garza has not shown that an intervention into this particular case is "almost essential to effectively protect [his] interest." See Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Williamson, 554 S.W.3d at 66-67; Ins. Co. of State of Pa., 407 S.W.3d at 853. In particular, there is nothing preventing Garza from filing a separate action against Pena raising the same claims that he does in his plea in intervention. We conclude that the trial court abused its discretion in denying Pena's motion to strike Garza's plea in intervention.
We turn our attention to the adequacy of a remedy by appeal. Garza asserts that Pena possessed but failed to employ other legal remedies, such as, inter alia, requesting the trial court to reconsider its ruling, to continue the June 3, 2024 trial date, to stay its ruling, or to allow a permissive appeal, or that Pena could ultimately appeal "should the court rule in Garza's favor." We agree with Garza that mandamus is intended to be employed in circumstances "involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840 and Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding)). Nevertheless, we disagree with Garza's assertion that Pena possesses other remedies to address the trial court's error.
There are myriad reasons why appeal is an inadequate remedy to address the trial court's abuse of discretion in denying Pena's motion to strike. To the extent that Pena suggests that Garza could have sought additional recourse from the trial court, such suggested remedies fall short because they depend on speculative future events and discretionary rulings. Ultimately, however, the initiation of suit by intervention circumvents procedures establishing the random assignment of cases and deprives Pena of the procedural rights afforded to defendants in original actions. See In re Union Carbide Corp., 273 S.W.3d at 157 ("On balance, mandamus review is warranted because the benefits of establishing the priority that trial courts must give to ruling on motions to strike interventions and re-emphasizing the importance of both appearance and practice in maintaining integrity of random assignment rules outweigh any detriment to mandamus review in this instance."). Moreover, it would be difficult or impossible for an appellate court to assess the harm caused by the intervention on appeal after a final judgment. See id. at 156. Under these circumstances, mandamus is appropriate.
We conclude that the trial court abused its discretion, and Pena lacks an adequate remedy by appeal. Accordingly, we sustain the sole issue presented in this original proceeding.
V. Conclusion
The Court, having examined and fully considered Pena's petition for writ of mandamus, Garza's response, and the applicable law, is of the opinion that Pena has met his burden to obtain relief. We lift the stay previously imposed in this case. See Tex. R. App. P. 52.10. We conditionally grant the petition for writ of mandamus and direct the trial court to vacate its order denying Pena's motion to strike and to enter an order in accordance with this memorandum opinion. Our writ will issue only if the trial court fails to act promptly.