Strawder v. Thomas
| Decision Date | 10 December 1992 |
| Docket Number | No. 13-91-154-CV,13-91-154-CV |
| Citation | 846 S.W.2d 51 |
| Parties | Ivy Renee STRAWDER, as Personal Representative of the Estate and Successor of Timmy Lee Thomas, et al., Appellants, v. Georgia THOMAS and Paul Webb, Appellees. |
| Court | Texas Court of Appeals |
Paul Webb (Attorney Ad Litem), Wharton, John Wesley Wauson, Neil M. Leibman, Wauson & Bruce, Houston, for appellant.
Robinson C. Ramsey, Wharton, Ernest H. Cannon, Houston, for appellee.
Before NYE, C.J., and GERALD T. BISSETT 1 and SEERDEN, JJ.
OPINION ON MOTIONS FOR REHEARING
We withdraw our previous opinion and substitute the instant opinion as the opinion of the Court. The appellees' motions for rehearing are granted.
This is an appeal by Ivy Renee Strawder, as personal representative of the Estate of Timmy Lee Thomas and as Tutrix 2 of Timmy Tyrell Strawder, a minor, and Timmy Tyrell Strawder, by and through Ivy Renee Strawder, his Tutrix and Next Friend, from a judgment rendered in a severed cross-action brought against Ivy by Georgia Thomas, individually. The judgment decreed that Georgia Thomas recover of and from Ivy Renee Strawder, in the capacities above-stated, all court costs, and attorney's fees in the amount of $400,000; that the attorney ad litem recover from Ivy Renee Strawder, in the capacities above-stated, attorney's fees in the amount of $40,000; and that additional attorney's fees be recovered from Ivy Renee Strawder, in the capacities above-stated, in the event of appeals. We reverse and vacate the judgment on jurisdictional grounds.
On or about October 3, 1989, the Zapata Haynie Corporation's vessel, "MV NORTHUMBERLAND," operating in Gulf of Mexico waters, struck a gas pipeline and caused an explosion which resulted in the death of Timmy Lee Thomas. The pipeline, at the time of the explosion, was owned by Natural Gas Pipeline of America and was operated and managed by third parties. The 14th District Court of Calcasieu Parish, Louisiana (hereafter the "Louisiana Court"), appointed Georgia Thomas, the mother of Timmy Lee Thomas, Administratrix of the Estate of Timmy Lee Thomas, Deceased (hereafter the "Thomas Estate"), on October 12, 1989.
Thereafter, Georgia Thomas engaged the law firm of Ernest Cannon & Associates, Houston, Texas to prosecute her individual action and that of the Thomas Estate against Natural Gas Pipeline of America and the third parties who operated and managed the pipeline (hereafter the "Pipeline Defendants"). Suit was filed by the attorneys for Georgia Thomas, in a District Court of Wharton County, Texas, against the Pipeline Defendants on April 6, 1990, and was docketed as No. 29,447. Georgia Thomas, as plaintiff, sued "individually and as representative of the Estate of Timmy Lee Thomas," to recover damages for the wrongful death of Timmy Lee Thomas.
The Louisiana Court removed Georgia Thomas as administratrix of the Thomas Estate by Order signed on May 17, 1990, and on the same day, appointed Ivy Renee Strawder as administratrix of the Thomas Estate and as Tutrix for and on behalf of her minor son Timmy Tyrell Strawder, who was the son of Timmy Lee Thomas, Deceased.
Georgia Thomas contends that the Pipeline Defendants settled the controversy existing between them sometime between April 6, 1990, and August 17, 1990, and represents that the Pipeline Defendants paid $1,000,000 in settlement. A document entitled "RECEIPT, RELEASE AND SETTLEMENT AGREEMENT" was executed [b]y order of the Fourteenth Judicial District Court, Parish of Calcasieu, State of Louisiana, on May 17, 1990, in the matter entitled 'Succession of Timmy Lee Thomas,' Probate No. 27,774, Ivy Renee Strawder, as tutrix for and on behalf of her minor son, Timmy Tyrell Strawder, was appointed administratrix and personal representative of the Succession of Timmy Lee Thomas....
by Georgia Thomas, individually, on August 17, 1990, wherein it was stated:
The Agreement further provided that Georgia Thomas would hold harmless, defend and indemnify the Pipeline Defendants, the "Released Parties," from all claims
by Ivy Renee Strawder, as tutrix for her minor son, Timmy Tyrell Strawder, and/or administratrix and personal representative of the Succession of Timmy Lee Thomas, whether in tort, contract, or otherwise, in any way arising out of or directly or indirectly resulting from the injuries to and death of Timmy Lee Thomas.
The Pipeline Defendants did not sign the agreement.
Ivy Renee Strawder, "individually, on behalf of deceased, as the personal representative and as administratrix of his succession for and on behalf of the deceased, and as tutrix for her minor son, Timmy Tyrell Strawder," filed suit against the Pipeline Defendants on July 27, 1990, to recover damages for the wrongful death of Timmy Lee Thomas. This suit was filed in the 38th District Court, Parish of Cameron, State of Louisiana, and was pending at the time of trial of the case at bar.
Georgia Thomas, "individually and as representative of the Estate of Timmy Lee Thomas," filed a "Motion to Deposit Money into Registry of the Court" on September 5, 1990, in the District Court of Wharton County, wherein she advised the court that: 1) Georgia Thomas was originally appointed "administratrix of the succession of Timmy Lee Thomas" on October 12, 1989, by the Louisiana Court; 2) she was removed as such administratrix by the Louisiana Court by Order signed on May 17, 1990, and the court appointed Ivy Renee Strawder administratrix in her stead; 3) Georgia Thomas and the Pipeline Defendants settled plaintiff's claims for $1,000,000; 4) such funds should be paid to the registry of the court pending distribution of the funds to the litigants; 5) counsel for plaintiff Georgia Thomas has notified "Ivy Renee Strawder as Next Friend of her minor son Timmy Lee Strawder of said settlement"; and 6) a dispute exists between counsel for Georgia Thomas and counsel for Ivy Renee Strawder "as Next Friend of Her Minor Son, Timmy Tyrell Strawder."
The record does not show that the court approved the purported settlement.
Also, on September 5, 1990, Georgia Thomas, still acting "individually and as representative of the Estate of Timmy Lee Thomas," filed a "Motion for Appointment of Attorney Ad Litem" for the minor Timmy Tyrell Strawder, apparently on the ground that counsel for Ivy Renee Strawder in the Louisiana Court proceedings "refused to substitute himself as counsel ... to protect the rights of the minor child," and on September 6, 1990, filed her First Amended Original Petition against the Pipeline Defendants, 3 although she had been removed as administratrix of the Thomas estate on May 17, 1990.
On September 7, 1990, Ivy Renee Strawder, "as tutrix and next friend for and on behalf of her minor son, Timmy Tyrell Strawder," filed an opposition to the Motions to "Deposit Money into the Registry of the Court" and to "Appoint Attorney ad Litem" on the grounds that "the settlement in this matter should be abandoned" and that "additional discovery is needed to develop the case."
Also, on September 7, 1990, Ivy Renee Strawder, "as administratrix of the succession of Timmy Lee Thomas and as tutrix and next friend of her minor son, Timmy Following a hearing on the motion to appoint an attorney ad litem, held before a Master on September 10, 1990, the trial court appointed Mr. Paul Webb as attorney ad litem by an order signed on the same day, September 10, 1990.
Tyrell Strawder," filed a Petition in Intervention in Cause No. 29,447 against the Pipeline Defendants only, in which she alleged: 1) Timmy Tyrell Strawder is the natural child of Timmy Lee Thomas, Deceased, and is the only child of the decedent; 2) she, as the mother of the child, as the administratrix of the Thomas Estate, and as next friend of the child has an interest in the controversy and is an interested party in the litigation; 3) Georgia Thomas is not a proper party to the pending lawsuit; and 4) she, Ivy Renee Strawder, is suing in the capacities above-stated to recover damages for the wrongful death of Timmy Lee Thomas.
Georgia Thomas filed an answer to Ivy Renee Strawder's petition in intervention on September 21, 1990, which consisted of a general denial of the allegations therein, except she "admitted that Ivy Renee Strawder is a proper party in her representative capacities." The Pipeline Defendants did not answer, nor did they make an appearance with respect to the petition in intervention.
On September 28, 1990, Ivy Renee Strawder, the intervenor, filed a pleading by facsimile transmission in Cause No. 27,447, entitled "Notice of Nonsuit Without Prejudice" which stated that such notice of nonsuit was without prejudice, and further stated:
Intervenor no longer desires to prosecute this suit at this time against Plaintiff or Defendants and hereby nonsuits all such claims pursuant to Rule 162, Tex.R.Civ.P., and requests the Court enter the form of order submitted contemporaneously herewith.
The trial court, by order signed on September 28, 1990, dismissed intervenor's claims against Georgia Thomas and the Pipeline Defendant "without prejudice to their refiling or the refiling of any part thereof."
Georgia Thomas, as plaintiff only, filed a cross-action against the intervenor Ivy Strawder as administratrix of the Thomas Estate and as tutrix and next friend of Timmy Tyrell Strawder, on October 2, 1990, wherein it was stated:
Cross-Defendants have appeared herein. No service of citation is necessary at this time.
Georgia Thomas, in her individual capacity only, sought a recovery of expenses, attorney's fees, and prosecution costs.
Ivy Renee Strawder, "as personal representative, as administratrix of the succession of Timmy Lee Thomas and as tutrix and next friend of her minor son Timmy Tyrell Strawder" filed a "Notice of Nonsuit Without Prejudice" on October 3, 1990, in which she stated that she "no longer desires to prosecute this suit against Georgia...
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