Avila v. Lone Star Radiology
| Decision Date | 14 December 2005 |
| Docket Number | No. 10-04-00021-CV.,10-04-00021-CV. |
| Citation | 183 S.W.3d 814 |
| Parties | Efren AVILA, Appellant, v. LONE STAR RADIOLOGY, Bob Kubicki, Dr. Kenneth Lustik, Family Care Pharmacy, Derrick Ford, and Karen Powell, Appellees. |
| Court | Texas Court of Appeals |
Domingo A. Garcia, Dallas, for appellant.
John A. Stephens, Fulbright, Winnford & Marable, Waco, for appellees.
Lone Star Radiology & Dr. Tamara Uptigrove, Dallas, pro se.
Bob Kubicki, Dallas, pro se.
Dr. Kenneth Lustik, Open Air MRI, Dallas, pro se.
Family Care Pharmacy, Plano, pro se.
Derrick Ford, Dallas, pro se.
Karen Powell, Plano, pro se.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
CORRECTED OPINION
Avila appeals from a judgment in an interpleader action claiming that the trial court abused its discretion by failing to award him attorney's fees. We reverse.
Alfredo Saldana and Efren Avila were driving back from work in a tractor when a pick-up truck struck them from behind. The truck, owned by Andy Christopher, was driven by Daniel Alan Christopher. Avila and Saldana suffered multiple injuries and filed suit against Andy, Daniel, and B.G. Williams d/b/a Williams Asphalt, Saldana's employer. Andy and Daniel offered to settle with Avila for their policy limit, $20,000. Avila agreed, but his medical bills totaled over $70,000. Avila negotiated with his medical creditors and offered them a pro-rata share of the settlement less attorney's fees. The medical creditors refused. Subsequently, Avila filed an interpleader action, and the trial court divided the settlement among the providers, but did not award Avila attorney's fees from the settlement funds. The trial court severed this cause from the remainder of the issues in the case, and Avila appealed.
Avila argues in his sole issue that the trial court abused its discretion in failing to award him attorney's fees.
An interpleader action permits an innocent stakeholder facing rival claims to allow the courts to decide who is entitled to the fund and thus avoid the peril of acting as judge and jury itself. Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex.App.-Corpus Christi 2003, pet. denied); Olmos v. Pecan Grove Mun. Utility Dist., 857 S.W.2d 734, 741 (Tex.App.-Houston [14th Dist.] 1993, no pet.). The elements of an interpleader action are: (1) the party is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) the party has not unreasonably delayed filing an action for interpleader; and (3) the party has unconditionally tendered the fund or property into the court's registry. Hanzel v. Herring, 80 S.W.3d 167, 173 (Tex.App.-Fort Worth 2002, no pet.) (citing Bryant v. United Shortline Inc., 984 S.W.2d 292, 296 (Tex.App.-Fort Worth), aff'd, 972 S.W.2d 26 (Tex.1998)). "The interpleader asks only that he be released and discharged from any liability on account of the proceeds, that he recover his attorney's fees for bringing the interpleader, and that he be paid his fees and costs out of the proceeds." Id. However, the award of attorney fees is within the sound discretion of the trial court. Olmos, 857 S.W.2d at 741; Beneficial Standard Life Ins. Co. v. Trinity Nat'l Bank, 763 S.W.2d 52, 56 (Tex.App.-Dallas 1988, writ denied).
Several creditors claimed an interest in Avila's settlement. There is no evidence that Avila delayed in bringing the interpleader action once it became clear that the matter could not be resolved. Further, Avila tendered the settlement amount to the trial court. Therefore, as an innocent stakeholder, Avila is entitled to recover attorney fees under Texas interpleader law. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex. 1964) (); Heggy v. American Trading Employee Retirement Account Plan, 110 S.W.3d 692, 703 (Tex.App.-Houston [14th Dist.] 2003, pet denied); Olmos, 857 S.W.2d at 741. Therefore, we find that the trial court abused its discretion in failing to award Avila reasonable attorney's fees for bring the interpleader action. Accordingly, we sustain Avila's sole issue.
We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.
Unfortunately, I do not see any chance of getting to the right result in this case on further review. Who is going to appeal? Who can? Where is there sufficient economic incentive to make it right? Maybe the representatives of the medical creditors would prefer not to be named as appellees or judgment creditors enough that they will pursue it. While the dollar amount is small, the implications are enormous. The majority has made persons and entities parties to this appeal because they were identified in a brief, and some did not even receive a copy of that brief.
The original opinion issued on June 29, 2005. No motion for rehearing was filed. Thus, our plenary jurisdiction ended 60 days thereafter on August 28, 2005. TEX. R.APP. P. 19.1(a). The mandate issued on October 21, 2005. Any jurisdiction we had to modify the opinion or the judgment, other than for a purely clerical error, has long since passed. TEX.R.APP. P. 19.3. So the operative question is whether purporting to add some parties on appeal, long after the appeal was in progress, and now changing the assessment of cost to those "parties" is a purely clerical error that we can correct. TEX.R.APP. P. 19.3(a). I do not believe it to be a purely clerical error, and thus, I dissent.
The majority memorandum opinion and my dissenting opinion in this case were issued on June 29, 2005. Avila v. Christopher, No. 10-04-00021-CV, 2005 Tex.App. LEXIS 5038, 2005 WL 1531170 (Tex.App.-Waco June 29, 2005, no pet.). At that time, the full style of the case was: Efren Avila v. Andy Christopher, Daniel Alan Christopher and B.G. Williams d/b/a Williams Asphalt.1 There was no motion for rehearing filed. There was no petition for review filed. The mandate issued in the usual course of proceeding. TEX. R.APP. P. 18.1. Then, seven days after the mandate was issued, we received a letter from counsel for the Christophers. The letter copied only Avila's attorney.
In the letter, counsel asserted that his clients were released by Avila and dismissed from the underlying case "well before Avila appealed." The letter indicates a common misconception — that once dismissed from a case, the party is no longer subject to the possibility of being impacted by subsequent events that occur in the case or of being a party to a subsequent appeal. When a party has settled a claim and secured an order of dismissal, until that dismissal order is final, the party is just that, a party to the case, and must be served with all documents pursuant to Texas Rule of Civil Procedure 21 and, if the entity remains a party on appeal, Texas Rule of Appellate Procedure 9.5. If the case is proceeding against other parties, the only way to avoid continuing involvement, cost, and risk in the case is to secure a severance so that the order dismissing the party can be made a final judgment as to the dismissed party.
It appears that the Christophers may also have been operating under the mistaken belief that they were not parties to the severed case in the trial court. The letter seems to imply that it was only the interpleader action that was severed. This is, however, contrary to the severance order. The severance order "severs Efren Avila's claim against Andy Christopher and Daniel A. Christopher and the interpleader action from the rest of the suit." The documents ordered to be included in the severed action include all the pleadings and answers in which the Christophers were involved. There can be no question that the Christophers were parties in the severed case.
The next question then is whether the Christophers were parties in the appeal. The original notice of appeal did not specify the "parties" against whom relief would be sought, nor did the amended notice of appeal. A notice of appeal invokes our jurisdiction of an appeal over all the "parties to the trial court's judgment or order appealed from." TEX.R.APP. P. 25.1(b). A notice of appeal, however, does not invoke our jurisdiction over persons who were not parties in the trial court. According to the certificate of service, counsel for the Christophers was served with both notices of appeal, the original and amended. The style also continued to be in their names. Thus, based upon this record, it appears the Christophers were intended to be and are parties to the appeal.
Any doubt about whether this Court considered the Christophers as parties to this appeal should have been resolved when the Court acknowledged receipt of the notice of appeal and notified the attorneys of the appellate cause number and style of the appeal as follows:
Re: Court of Appeals Number: 10-04-00021-CV
Trial Court Case Number: 03-00-12821-CV
Style: Efren Avila
v
Andy Christopher, Daniel Alan Christopher
and B.G. Williams d/b/a
Williams Asphalt
This notice was sent only to counsel for Avila and counsel for the Christophers. No one else received this notice from the Court. Neither Avila nor the Christophers complained about the absence of notice being sent to the litany of medical creditors. Neither party complained about the style of the appeal. The parties and this Court proceeded with the appeal as follows:
1. Noticed the parties that the clerk's record had not been filed, because it had apparently not been paid for.
2. Noticed the parties of the deficiencies in the record. It did not contain specified documents. Included in the list of missing documents were plaintiff's petition, defendants' answers, summary judgment pleadings, and summary...
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