Rosa v. Avery
| Docket Number | 12-23-00112-CV |
| Decision Date | 31 October 2023 |
| Parties | REBECCA DE LA ROSA AND CESARDE LA ROSA,APPELLANTS v. HESTON HAYES AVERY AND ROBERT D. AVERY, APPELLEES |
| Court | Texas Court of Appeals |
Appeal from the 273rd District Court of Shelby County, Texas (Tr.Ct.No. 20CV35415A)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial court's order denying their motion to strike Appellee Robert D. Avery's plea in intervention as well as the trial court's summary judgment entered in his favor. Appellants raise four issues on appeal. We affirm.
On February 26, 2020, Heston Avery decided to play a prank on A.D.L.R., a friend who came to his house to visit. In so doing, he pointed a shotgun at A.D.L.R. Heston did not believe the shotgun was loaded when he pulled the trigger. The shotgun was, in fact, loaded. It fired. A.D.L.R. later died from his wounds.
Robert Avery, Heston's grandfather, gave Heston the shotgun in 2015, when Heston was twelve or thirteen-years-old and living in Temple, Texas. Because Heston's parents would not allow him to keep the shotgun at their house, Robert kept the gun at his home until Heston and his family moved to Joaquin Texas in late 2018, at which point Robert gave it to Heston to take with him.
Appellants filed the instant suit against Heston, his parents, and Robert. As to Robert, Appellants alleged that he was negligent in giving Heston the shotgun used to kill A.D.L.R because he knew or should have known that, due to Heston's youth, inexperience, immaturity, reckless nature, complex developmental trauma, attention deficit disorder, and/or other factors, Heston likely would use the shotgun in a manner involving unreasonable risk of harm to himself or others. Appellants similarly alleged that Heston's parents were negligent in allowing him to possess the shotgun.
On April 4, 2022, a representative of Robert's insurer submitted an offer to Appellants to settle their causes of action against Robert for $25,000. On April 13, Appellants accepted the offer. Appellants signed a release, which stated, among other things, that in executing the release they generally were not relying upon any statement or representation of the parties released. Appellants' case against Robert was dismissed on May 23. Their case against Heston's parents also was settled and dismissed. Their suit against Heston, the sole remaining defendant, continued.
Thereafter Appellants assert that they received, after much delay, discovery responses comprising twelve pages of documents from Miracle Farm, Inc.,[1] a residential boys ranch Heston attended between 2018 and 2019. Appellants' counsel notified Robert's counsel that this discovery proved that Robert gave false and incomplete deposition testimony and untruthful interrogatory answers. He further suggested in this letter that Appellants reasonably relied on Robert's sworn testimony and discovery responses in making their decision to settle the case against him, none of the information revealed in the Miracle Farm documents was part of settlement negotiations, and they believed that the "boilerplate" settlement and release were procured by Robert's fraud and fraudulent inducement. Appellants' counsel further related that Appellants asked him to take "all appropriate legal actions against [Robert] and Miracle Farm, Inc., including recission of the settlement agreement and release and a separate lawsuit to recover actual and punitive damages."
On October 13, 2022, Robert intervened in the still-pending suit between Appellants and Heston and sought a declaratory judgment that the partial take-nothing judgment and release are binding upon Appellants, final, and serve to conclude the litigation between the parties.[2]Thereafter, he filed a traditional motion for summary judgment, in which he argued that, because the summary judgment evidence demonstrated that Appellants did not rely on any representations or concealment of information in connection with the execution of the release, the settlement agreement and release were not fraudulently induced and, therefore, are valid, enforceable, and binding on Appellants.
Appellants filed a motion to strike Robert's plea in intervention and, subsequently, filed a response to his motion for summary judgment. In their response, they argued, in pertinent part, that Robert failed to authenticate the exhibits attached to his motion, his suit was not authorized by the Uniform Declaratory Judgment Act (UDJA), and Appellants are not bound by the waiver-of-reliance provision in the release. In a reply filed the day before the hearing on his motion, Robert included an affidavit to authenticate the exhibits.
Ultimately, the trial court denied Appellants' motion to strike and granted Robert's motion for summary judgment. On April 27, 2023, the trial court severed the cause between Appellants and Robert, from their suit against Heston. This appeal followed.
In their first issue, Appellants argue that the trial court abused its discretion in denying their motion to strike Robert's plea in intervention.
Review of a trial court's order on a motion to strike intervention is subject to an abuse of discretion standard. Lerma v. Forbes, 166 S.W.3d 889, 893 (Tex. App.-El Paso 2005, pet. denied); see Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex. App.-Austin 1999, pet. denied). A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment. Forbes, 166 S.W.3d at 893. Instead, the test is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary and unreasonable. Id.
"Any 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. Once a motion to strike has been filed, the burden shifts to the intervenor to show a justiciable interest in the lawsuit. In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008); Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). A party has a justiciable interest in a lawsuit, and, thus, a right to intervene, when his interests will be affected by the litigation. Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.-Fort Worth 2003, no pet.). In other words, the interest is "analogous to that essential for a party to maintain or defend an action." J. Fuentes Colleyville, L.P. v. A.S., 501 S.W.3d 239, 243 (Tex. App.-Fort Worth 2016, no pet.); McCord v. Watts, 777 S.W.2d 809, 811-12 (Tex. App.-Austin 1989, no writ); see Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (). The interest asserted by the intervenor may be legal or equitable, but it must not be merely contingent or remote. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Law Offices of Windle Turley, P.C., 109 S.W.3d at 70. Courts review the pleadings to determine whether an intervenor has a justiciable interest. See McCord, 777 S.W.2d at 811. If a party cannot show a justiciable interest in the lawsuit, the trial court has sufficient cause to strike the plea in intervention. Law Offices of Windle Turley, P.C., 109 S.W.3d at 70.
Further, even if a party has a justiciable interest, and, thus, a right to intervene in a lawsuit, the trial court still has broad discretion to determine whether the plea in intervention should be stricken. See id.; Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.-Austin 2007, no pet.). However, a trial court abuses its discretion by striking a plea in intervention if the intervenor (1) could have brought the same action, or any part of it, in his own name or could have defeated recovery, or some part of it, if the action had been brought against him, (2) the intervention would not complicate the case by excessively multiplying the issues, and (3) the intervention is almost essential to effectively protect the intervenor's interest. Guar. Fed. Sav. Bank, 793 S.W.2d at 657.
Appellants first argue that Robert's intervention was improper because he did not have a justiciable interest in their wrongful death lawsuit against Heston, as he would not have been able to defeat all or part of the recovery against Heston if the suit had been filed only against him (Robert). More specifically, Appellants contend that there was no claim that Robert and Heston were partners, co-conspirators, or otherwise acted in concert or simultaneously to cause A.D.L.R.'s death. Thus, according to Appellants, Robert would be unable to defeat all or part of any recovery against Heston had the suit been filed against Robert alone.
However Appellants seek to cast the net of the trial court's discretion too narrowly. An intervenor can occupy the position of a defendant where his claims and prayer align him with the defendant and pit him directly against the plaintiff, even if no parties assert claims against him. See In re Ford Motor Co., 442 S.W.3d 265, 274 (Tex. 2014). Even where an intervenor has not or could not have been sued directly, if a judgment for the plaintiff may lead to an action against the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against the claim. S...
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