Prototype Mach. Co. v. Boulware, 04-07-00662-CV.

• Court: Court of Appeals of Texas
• Citation: 292 S.W.3d 169
• Docket Number: No. 04-07-00662-CV.,04-07-00662-CV.
• 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.
• Decision Date: 08 April 2009

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

[292 S.W.3d 170]

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.

[292 S.W.3d 171]

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,...