H. Tebbs, Inc. v. Silver Eagle Distributors, Inc.
| Decision Date | 13 June 1990 |
| Docket Number | No. 3-88-217-CV,3-88-217-CV |
| Citation | 797 S.W.2d 80 |
| Parties | H. TEBBS, INC., doing business as Brooks Distributing Company and Coors Distributing Company, Appellants, v. SILVER EAGLE DISTRIBUTORS, INC., et al., Appellees. |
| Court | Texas Court of Appeals |
E. Eugene Palmer, Austin, for appellants.
William R. Burke, Jr., Pam Nielson, Baker & Botts, Austin, for appellees.
Before POWERS, GAMMAGE and JONES, JJ.
H. Tebbs, Inc. and Coors Distributing Company ("Tebbs/Coors") appeal from an agreed order of the district court entered into by the Alcoholic Beverage Commission ("Commission") and Silver Eagle Distributors, Inc. ("Silver Eagle"). The agreed order enjoins W.S. McBeath, Commission administrator, from holding hearings and allowing Tebbs/Coors bring three points of error, arguing that the district court erred: (1) in striking their petition in intervention, (2) in enjoining a pending administrative proceeding before Silver Eagle had exhausted its administrative remedies, and (3) in enjoining the Commission from correcting a violation of its own rules.
further discovery in proceedings before the Commission concerning the contested renewal of licenses and permits of Southwest Distributing Co., Inc. ("Southwest"), corporate predecessor in interest to Silver Eagle. We will reverse the district court's judgment and remand the cause to the district court with instructions to dissolve the injunction and dismiss the cause.
In August 1987, the Commission initiated a contested case proceeding involving Southwest's licenses and permits. Notices of hearing were issued, and Tebbs/Coors filed petitions in intervention which were granted. Before the hearing, the Commission and Southwest entered into an agreed order ("Commission's agreed order"), under which Southwest restructured itself into Silver Eagle and the Commission issued new licenses and permits to Silver Eagle. Tebbs/Coors filed a motion for rehearing which was granted.
Silver Eagle then sought a declaration of its rights in the district court under the Alcoholic Beverage Code, Tex.Alco.Bev.Code Ann. (1978 & Supp.1990); the Administrative Procedure and Texas Register Act ("APTRA"), Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1990); and the Commission's agreed order and sought temporary and permanent injunctions to enjoin further proceedings before the Commission. Tebbs/Coors filed a petition in intervention in the district court. After hearing, the district court struck the petition in intervention and granted the temporary injunction. The court subsequently signed an agreed order ("court's agreed order"), dissolving the temporary injunction and permanently enjoining McBeath from holding hearings and from allowing discovery, based on the court's conclusion that "the Commission acted within its authority in entering its April 28, 1988, Agreed Order with Silver Eagle, and lacked the authority to hold a rehearing." It is from the court's agreed order that Tebbs/Coors appeal.
We will first address Silver Eagle's cross-points, some of which relate to the jurisdiction of this Court. Whether these points are properly denominated "cross-points" or "contentions," as they are termed in Silver Eagle's brief, they are properly before this Court in the absence of perfection of an independent appeal by Silver Eagle because all four points relate to defense of the trial court's order or bear upon matters presented in the appeal, Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 641 (Tex.1989) (Ray, J., concurring). 1
Silver Eagle's four cross-points are: (1) Tebbs/Coors lack standing to appeal any aspect of the court's agreed order, (2) Tebbs/Coors present arguments and evidence outside the permissible scope of this Court's appellate review of the permanent
injunction, (3) entry of the final agreed judgment mooted the points of error and relief requested by Tebbs/Coors, and (4) Tebbs/Coors have failed to prove any reversible error.
Central to all cross-points is Silver Eagle's contention that the court's agreed order constituted an agreed judgment and is therefore not subject to attack absent an allegation of fraud or mistake. Tebbs/Coors argue the court's agreed order is a nullity without the consent of all parties if the trial court erred in striking their petition in intervention.
While it is true that an agreed judgment is not subject to attack absent an allegation of fraud or mistake, Hill v. Hill, 599 S.W.2d 691 (Tex.Civ.App.1980, no writ), it is also generally true that an agreed judgment can be rendered only if all parties agree. Hensley v. Salinas, 583 S.W.2d 617 (Tex.1979). Silver Eagle argues that even if the district court had permitted intervention by Tebbs/Coors, the intervention would not affect the validity of this agreed order.
The validity of judgments made on the basis of agreements between some of the parties without the consent of intervenors was addressed by the United States Supreme Court in Firefighters v. Cleveland, 478 U.S. 501, 528-529, 106 S.Ct. 3063, 3078-3079, 92 L.Ed.2d 405 (1986):
It has never been supposed that one party--whether an original party, a party that was joined later, or an intervenor--could preclude other parties from settling their own disputes and thereby withdrawing from litigation.... Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors.
(Emphasis added.) See also Travelers Insurance Co. v. Williams, 603 S.W.2d 258 (Tex.Civ.App.1980, no writ) (treating intervenors as parties whose consent was necessary to the agreed judgment).
The court's agreed order disposed of Tebbs/Coors' claim for a rehearing before the Commission by enjoining the Commission from holding further hearings and from allowing further discovery on the docketed case. As we explain below, in our discussion of Tebbs/Coors' first point of error, we conclude: (1) the district court erred in striking the petition in intervention and (2) Tebbs/Coors' claim for rehearing was valid. Consequently, the court's agreed order disposing of that claim must be reversed. Because Silver Eagle's first cross-point is based solely upon its contention that the court's agreed order is not subject to attack by Tebbs/Coors, it is overruled.
Silver Eagle's second cross-point is also overruled. Silver Eagle argues that, because Tebbs/Coors were not parties to the permanent injunction, their only possible basis for relief is that the district court erred in striking their petition in intervention. As previously stated, if the trial court erred in striking the petition in intervention, the court's agreed order could not dispose of Tebbs/Coors' valid claims without their consent. Firefighters, 478 U.S. at 528-529, 106 S.Ct. at 3078-3079.
Silver Eagle further argues that Tebbs/Coors' other points of error are improperly directed to the district court's issuance of the temporary injunction rather than the final agreed order. We disagree. By points of error two and three, Tebbs/Coors argue the district court erred in enjoining a pending administrative proceeding before Silver Eagle had exhausted its administrative remedies and in enjoining the Commission from correcting a violation of its own rules. Both of these points relate to the district court's final order permanently enjoining the Commission from holding hearings and from allowing discovery to proceed.
We also overrule the third cross-point in which Silver Eagle argues that Silver Eagle further argues, however, that because Southwest withdrew its application for renewal licenses and permits by virtue of the settlement agreement reached with the Commission, the issues on which Tebbs/Coors requested a rehearing were moot. We find this argument without merit because Southwest's surrender of its prior licenses and permits and the Commission's issuance of Silver Eagle's new licenses and permits occurred only as a result of the Commission's agreed order, the validity of which was challenged in, and was the basis for, the motion for rehearing granted by the Commission. The new licenses and permits resulting from the Commission's agreed order are no barrier to our review of the court's order enjoining the Commission from rehearing the contested case from which those same licenses and permits resulted.
Tebbs/Coors' points of error and relief requested have been mooted by entry of the court's final agreed judgment. We have already addressed that part of Silver Eagle's mootness argument relating to an agreed judgment being immune from attack.
For the reasons stated below, we also overrule Silver Eagle's fourth cross-point of error.
We now address Tebbs/Coors' points of error. In their first point of error, Tebbs/Coors argue the district court erred in striking their petition in intervention. The rule regarding right of intervention is:
The 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; or, if the action had first been brought against him as the defendant, he would have been able to defeat the recovery, in part at least. His interest may be either legal or equitable.
King v. Olds, 71 Tex. 729, 12 S.W. 65, 65-66 (Tex.1888); University Sav. v. Intercontinental Consol., 751 S.W.2d 657 (Tex.App.1988, no writ).
A trial court has broad discretion in determining whether an intervention should be stricken. Its exercise, however, is subject to review...
To continue reading
Request your trial