Prototype Mach. Co. v. Boulware

• Decision Date: 08 April 2009
• Docket Number: No. 04-07-00662-CV.,04-07-00662-CV.
• Citation: 292 S.W.3d 169
• Parties: PROTOTYPE MACHINE COMPANY, Appellant, v. Toledo P. BOULWARE, Individually and as Trustee; Dos Angeles, L.P.; Zach and Kayla Davis; DMC Partners, Ltd.; Willie Jo Dooley, L.P.; Hayden G. Haby and Doris Y. Haby; Hayden G. Haby, Jr. and Dennette Haby Coates; Melanie and John Jones in Their Capacity as Joint Representatives of The Ben Jones Jr. Estate and Ben Jones Sr. Estate; McDaniel Farms, Inc.; Jewel F. Robinson and 4-S Ranch; Kinney County Groundwater Conservation District; and Darlene Shahan in Her Capacity as General Manager of Kinney County Groundwater Conservation District, Appellees.
• Court: Texas Court of Appeals

292 S.W.3d 169

PROTOTYPE MACHINE COMPANY, Appellant, v. Toledo P. BOULWARE, Individually and as Trustee; Dos Angeles, L.P.; Zach and Kayla Davis; DMC Partners, Ltd.; Willie Jo Dooley, L.P.; Hayden G. Haby and Doris Y. Haby; Hayden G. Haby, Jr. and Dennette Haby Coates; Melanie and John Jones in Their Capacity as Joint Representatives of The Ben Jones Jr. Estate and Ben Jones Sr. Estate; McDaniel Farms, Inc.; Jewel F. Robinson and 4-S Ranch; Kinney County Groundwater Conservation District; and Darlene Shahan in Her Capacity as General Manager of Kinney County Groundwater Conservation District, Appellees.

No. 04-07-00662-CV.

Court of Appeals of Texas, San Antonio.

April 8, 2009.

Phillip Poplin, Stuart Henry, Henry & Poplin, Austin, TX, for Appellant.

Max Renea Hicks, Law Office of Max Renea Hicks, Edmond R. McCarthy, Jackson, Sjoberg, McCarthy & Wilson, Paul M. Terrill, III, Hazen & Terrill, P.C., Austin, TX, Tully Shahan, Brackettville, TX, Louis T. Rosenberg, Law Office of Louis T. Rosenberg, P.C., San Antonio, TX, for Appellees.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by SANDEE BRYAN MARION, Justice.

This appeal arises from the trial court's order striking appellant's plea in intervention. In an opinion and judgment dated December 17, 2008, we concluded that because appellant was denied notice of the motion to strike and an opportunity to be heard on the motion to strike, we must reverse and remand for further proceedings. The appellant and appellees all filed motions for rehearing, which we deny. However, to address an argument raised by appellees on rehearing, we vacate our earlier judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place.

BACKGROUND

Appellee, Kinney County Groundwater Conservation District ("the District"), regulates groundwater withdrawals in Kinney County, and issues permits to authorize the continuation of "historic" and "existing" beneficial, non-wasteful uses of groundwater from the Edwards-Trinity aquifer. Appellant, Prototype Machine Company ("Prototype"), is a landowner in Kinney County, Texas and holds a permit to withdraw groundwater. Appellees, Toledo P. Boulware, Individually and as Trustee; Zach and Kayla Davis; DMC Partners, Ltd.; Willie Jo Dooley, L.P.; Hayden G. Haby and Doris Y. Haby; Hayden G. Haby, Jr. and Dennette Haby Coates; Melanie and John Jones in Their Capacity as Joint Representatives of The Ben Jones Jr. Estate and Ben Jones Sr. Estate; McDaniel Farms, Inc.; Jewel F. Robinson and 4-S Ranch (collectively, "Applicants") are also Kinney County landowners and applicants for existing and historic use permits.

In July 2005, the Applicants sued the District and the District's former General Manager, Darlene Shahan, on various causes of action arising out of the District's administrative permitting decisions relating to the Applicants' permit applications.¹ After protracted litigation in both state and federal courts, the District and the Applicants agreed to mediation, which commenced on July 17, 2007. By August 13, 2007, the parties had reached a settlement agreement on all issues and prepared an Agreed Final Judgment and Mutual Release of Claims. The District posted notice of a board meeting to be held on August 16, 2007 at 5:00 p.m., at which time the District's board of directors would formally consider approval of the settlement documents. The District's notice also stated that the trial court would conduct a hearing at noon on August 17, 2007 to consider the settlement.

At approximately 4:30 p.m. on August 16, Prototype filed a plea in intervention, plea to the jurisdiction, and requests for declaratory relief. At approximately 5:00 p.m. that same day, the District board meeting commenced. Prototype attended the board meeting and criticized the settlement. Following public comment, the District's board approved the settlement.

On August 17, the District and the Applicants jointly moved to strike Prototype's plea in intervention. Prototype did not attend the August 17 hearing, during which the trial court considered and then granted the motion to strike. At this same hearing, the court also considered the settlement agreement proposed by the parties, and on September 6, 2007, the court signed the Agreed Final Judgment. On September 13, 2007, Prototype filed a motion for new trial raising the issue of lack of notice of the motion to strike. The motion for new trial was overruled by operation of law, and this appeal ensued. On appeal, Prototype raises a number of complaints, including that the trial court erred by striking its intervention.

DISCUSSION

Texas Rule of Civil Procedure 60 provides that "[a]ny 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. A person has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat...