Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers

CourtSupreme Court of Texas
Writing for the CourtPer Curiam
Citation1 S.W.3d 108
Decision Date26 August 1999
Parties(Tex. 1999) MOTOR VEHICLE BOARD OF THE TEXAS DEPARTMENT OF TRANSPORTATION, PETITIONER v. EL PASO INDEPENDENT AUTOMOBILE DEALERS ASSOCIATION, INC., RESPONDENT NO. 98-0514

Page 108

1 S.W.3d 108 (Tex. 1999)
MOTOR VEHICLE BOARD OF THE TEXAS DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
EL PASO INDEPENDENT AUTOMOBILE DEALERS ASSOCIATION, INC., RESPONDENT
NO. 98-0514
IN THE SUPREME COURT OF TEXAS
August 26, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS

Page 109

Per Curiam

In this case, we consider whether the Texas Department of Transportation's Motor Vehicle Board ("the Board") waived its right to appeal a trial court judgment holding Texas Transportation Code sections 728.001 through 728.004 unconstitutional and enjoining the enforcement of those

Page 110

provisions. We hold that the Board did not waive its right to appeal. Accordingly, we reverse the court of appeals' judgment dismissing the Board's appeal and remand the case to that court to address the merits of the trial court's decision.

Sections 728.001 through 728.004 of the Transportation Code - commonly known as the "Blue Law" - make it illegal to sell cars on consecutive weekend days. TEX. TRANSP. CODE 728.001-728.004. The El Paso Independent Automobile Dealers Association ("EPIADA"), an association of used car dealers, filed suit against the El Paso District, City, and County Attorneys ("Local Officials"), seeking to enjoin them from enforcing the Blue Law and to have the law declared unconstitutional. Although the suit named neither the Attorney General nor its client-agency, the Board, as defendants, EPIADA served a copy of its petition on the Attorney General, as required by law. See TEX. CIV. PRAC. & REM. CODE 37.006(b) ("[I]f the statute . . . is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding . . . ."). By letter dated October 24, 1997, the Attorney General declined to participate in the case at trial.

The Local Officials filed a general denial on November 17, 1997, but upon researching their defense, came to believe that the Blue Law was, in fact, unconstitutional. Without notifying the Attorney General, the Local Officials negotiated a pretrial agreement with EPIADA for findings of fact and conclusions of law consistent with their view of the Blue Law's unconstitutionality. On December 23, 1997, following an evidentiary hearing, the trial court rendered judgment declaring the Blue Law unconstitutional, and permanently enjoined "all officials" authorized under the Transportation Code from enforcing its provisions.

The Attorney General and the Board filed post-judgment motions in an attempt to intervene; these motions were denied by the trial court. The Local Officials appealed, despite their belief in the Blue Law's unconstitutionality, in an effort to preserve an avenue for the Attorney General and the Board to perfect an appeal. EPIADA moved to dismiss the Attorney General and the Board on the grounds that they were not parties to the original suit. The court of appeals held that the Attorney General and the Board had the right to appeal under the doctrine of virtual representation, but concluded that the Attorney General had waived this right by its October 24, 1997 letter. 966 S.W.2d 783, 785-86. On May 21, 1998, after the court of appeals issued its opinion dismissing the appeal by the Board and the Attorney General, the Local Officials voluntarily dismissed their appeal.

Generally, appeal is available only to parties of record. However, an exception exists when the appellant is deemed to be a party under the doctrine of virtual representation. See, e.g., Gunn v. Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965); Jernigan v. Jernigan, 677 S.W.2d 137, 140 (Tex. App.-Dallas 1984, no writ). To claim virtual representation, an appellant must show that: (1) it is bound by the judgment; (2) its privity of estate, title, or interest appears from the record; and (3) there is an identity of interest between the appellant and a party to the judgment. See Continental Cas. Co. v. Huizar, 740 S.W.2d 429, 432 (Tex. 1987) (Kilgarlin, J., concurring). The court of appeals concluded that the Attorney General and the Board satisfied this test, but nevertheless held that the Attorney General and the Board waived their right to appeal pursuant to the doctrine. 966 S.W.2d at 785-86.

Although we agree that the doctrine of virtual representation applies, we disagree with the court...

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135 practice notes
  • Lalonde v. Gosnell, No. 16-0966
    • United States
    • Supreme Court of Texas
    • June 14, 2019
    ..., 111 S.W.3d at 157 (paraphrasing Tenneco ); Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc. , 1 S.W.3d 108, 111 (Tex. 1999) (quoting Tenneco ); see also Crosstex , 430 S.W.3d at 391 (parties may waive the section 150.002 expert-report requirement "by ......
  • Nat. Union Fire Ins. Co. v. Puget Plastics, Civil Action No. B-05-050.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 12, 2009
    ...the litigant and a named party to the judgment. Id. at 722 (citing Motor Vehicle Bd. of Tex. v. El Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110 (Tex.1999)). The doctrine recognizes that often, if not always, the interests between the intervenor and the party will have diverged to some......
  • In Re Endeavour Highrise, Bankruptcy No. 09-33151-H4-11.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • July 13, 2010
    ...851 S.W.2d 328, 331 (Tex.App.-Dallas 1993, writ denied); Motor Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc., 1 S.W.3d 108, 111 (Tex.1999) (“A party's express renunciation of a known right can establish waiver. Silence or inaction, for so long a period as to show......
  • Hesseltine v. Goodyear Tire & Rubber Co., No. Civ.A. 1:03-CV-865.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • August 23, 2005
    ...Monumental Life Ins. Co., 403 F.3d at 313 (quoting Motor Vehicle Bd. of Tex. Dep't. of Transp. v. El Paso Ind. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 Here, Plaintiffs contend that Goodyear's prior history of paying overtime resulting from shift relief when brought to the attention of ......
  • Request a trial to view additional results
135 cases
  • Lalonde v. Gosnell, No. 16-0966
    • United States
    • Supreme Court of Texas
    • June 14, 2019
    ..., 111 S.W.3d at 157 (paraphrasing Tenneco ); Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc. , 1 S.W.3d 108, 111 (Tex. 1999) (quoting Tenneco ); see also Crosstex , 430 S.W.3d at 391 (parties may waive the section 150.002 expert-report requirement "by ......
  • Nat. Union Fire Ins. Co. v. Puget Plastics, Civil Action No. B-05-050.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 12, 2009
    ...the litigant and a named party to the judgment. Id. at 722 (citing Motor Vehicle Bd. of Tex. v. El Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110 (Tex.1999)). The doctrine recognizes that often, if not always, the interests between the intervenor and the party will have diverged to some......
  • In Re Endeavour Highrise, Bankruptcy No. 09-33151-H4-11.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • July 13, 2010
    ...851 S.W.2d 328, 331 (Tex.App.-Dallas 1993, writ denied); Motor Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc., 1 S.W.3d 108, 111 (Tex.1999) (“A party's express renunciation of a known right can establish waiver. Silence or inaction, for so long a period as to show......
  • Hesseltine v. Goodyear Tire & Rubber Co., No. Civ.A. 1:03-CV-865.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • August 23, 2005
    ...Monumental Life Ins. Co., 403 F.3d at 313 (quoting Motor Vehicle Bd. of Tex. Dep't. of Transp. v. El Paso Ind. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 Here, Plaintiffs contend that Goodyear's prior history of paying overtime resulting from shift relief when brought to the attention of ......
  • Request a trial to view additional results

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