                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00123-CV
                            ____________________


   IN RE THE WOODLANDS LAND DEVELOPMENT COMPANY, L.P.

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                                Original Proceeding
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                           MEMORANDUM OPINION

      In this mandamus proceeding, we consider whether the trial court abused its

discretion by allowing the joinder of a property owner’s suit against a planned

community developer to a suit by owners of other properties. Relator, the

Woodlands Land Development Company, L.P. (WLDC), argues the trial court

abused its discretion by denying a motion to strike the interventions of those

owners having no legal interest in the property of Richard F. Bunch III and

Michelle Bunch, the plaintiffs who filed the suit at issue.

      WLDC developed The Woodlands, a planned community. WLDC sold

several unimproved lots in the Carlton Woods subdivision to Leigh Custom

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Homes, Inc. As listing agent for Leigh, IMI Resort Sales, Inc. d/b/a Carlton Woods

Properties sold one of these lots to the Bunches; Leigh then built a home for the

Bunches on the lot. Subsequently, the Bunches sued WLDC, Leigh, and IMI for

damages that they alleged were related to the sale. In their suit, the Bunches

alleged their home was affected by one or more geologic fault lines, and that

before they purchased the lots, WLDC, Leigh, and IMI knew of the faults, but

failed to disclose them.

       Approximately eleven months after the Bunches filed suit, the owners of

homes in Cochran’s Crossing and Sterling Ridge, other subdivisions in The

Woodlands, intervened into the Bunches’ suit. WLDC responded to the

intervention, asking the trial court to strike it. Subsequently, the trial court denied

WLDC’s request.

      Under the Texas Rules of Civil Procedure, a person may intervene in

another’s suit, subject to the trial court’s right to later strike the party from the

pending suit. See Tex. R. Civ. P. 60. The standard trial courts are to apply in

deciding whether to strike interventions was established by the Texas Supreme

Court in In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008). In that

case, the Court established this standard: “If any party to the pending suit moves to

strike the intervention, the intervenors have the burden to show a justiciable

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interest in the pending suit.” Id. at 155. Having a justiciable interest requires the

intervenor’s interest to “‘be such that if the original action had never been

commenced, and he had first brought it as the sole plaintiff, he would have been

entitled to recover in his own name to the extent at least of a part of the relief

sought’ in the original suit.” Id. at 155 (quoting King v. Olds, 12 S.W. 65, 65 (Tex.

1888)).

      WLDC contends that having a justiciable interest in the pending suit requires

that Intervenors have an interest in the property purchased by the Bunches. See

Union Carbide, 273 S.W.3d at 155. Intervenors, Luis and Melea Nieto, Dennis

Colvin and Betty Ward, Walter and Natalie Klepacz, Allen and Jan Wilkins, David

and Patricia Gates, and Clay and Michele McGovern contend they have a

justiciable interest in the Bunches’ suit because all of the homes are located in The

Woodlands, they assert the same types of claims against WLDC, their claims are

based on the same or similar factual allegations as the claims that are made by the

Bunches, and they seek the same types of relief. Intervenors distinguish Union

Carbide from the circumstances in their case, arguing that the Union Carbide

intervenors failed to allege in their pleadings that they could have brought part of

the original plaintiff’s claims. Intervenors also argue that Union Carbide is




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distinguishable because their claims will be affected or resolved depending on the

outcome of the Bunches’ case. See Union Carbide, 273 S.W.3d at 155.

      However, we disagree that the Court in Union Carbide decided the case

based on a deficiency in the intervenors’ pleadings. Id. The Union Carbide

intervenors, the Halls, alleged that their claims arose out of the same transaction or

series of transactions as the original plaintiff, Moffett. Id. Also, the Court’s

rationale for disallowing the intervention in Union Carbide appears to have been

one of substance, as the Court’s holding was based on the Halls’ failure to

demonstrate a justiciable interest in Moffett’s case. Id. at 155 (“Accordingly, the

Halls fail to demonstrate a justiciable interest in the Moffett’s suit and are not

entitled to intervene in the Moffett suit.”). We further note the Supreme Court’s

holding that the Halls “did not show that they had standing to have brought and

recovered for any part of Moffett’s claim.” Id. at 156. Consequently, the Court

determined the Halls were without standing in Moffett’s case. Id. In summary,

Union Carbide requires that Intervenors demonstrate they possess a right to

recover a part of the relief sought by the Bunches before they are allowed to pursue

their claims as intervenors. See id. at 155.

      Here, Intervenors argue they need not show that they could recover damages

that relate to the Bunches’ home. Instead, they share what they characterize as the

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same cause of action, relying on Houston Lighting & Power Co. v. City of San

Antonio. See 896 S.W.2d 366, 373 (Tex. App.—Houston [1st Dist.] 1995, writ

dism’d w.o.j.). In that case, all of the parties were parties to the same contract, a

nuclear power plant participation agreement. Id. at 368. The City of Austin, who

initially filed the suit, and the City of San Antonio, who intervened, sought a

declaratory judgment to determine the participants’ rights and responsibilities

under the participation agreement. Id. at 369, 372-73. We conclude that Houston

Lighting & Power does not support Intervenors’ argument, as that case concerned

common rights arising from the same contract. See id.

      Intervenors also argue that discovery and evidentiary rulings in the Bunches’

case may be considered later by another court in their own cases. Also, intervenors

argue they must be present at depositions of fact, expert, and corporate

representative witnesses that concern the development of The Woodlands, as these

depositions involve the same geological faults. But, a ruling on a discovery matter

is not controlling with respect to a trial court’s resolution of discovery matters in

other cases that involve other parties. Also, none of the Rules of Civil Procedure

prevent the parties from taking a deposition in a pending suit where the same

witness was deposed in another case, even though both involved similar matters.

Moreover, the Supreme Court defined “justiciable interest” in terms that require an

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identity between the intervenor’s recovery and that of the original plaintiff, an

interest unrelated to any discovery rulings that might be made in a given case. See

Union Carbide, 273 S.W.3d at 155 (defining justiciable interest). Moreover, a joint

interest with another in the products of discovery does not give one a right to share

in the other’s legal recovery.

       The Bunches sued for damages arising out of their real estate transaction

with the defendants. Intervenors’ claims arise from different real estate transactions

involving different properties. Because intervenors failed to demonstrate that they

possessed a justiciable interest in the Bunches’ claim, the trial court was required

to strike their intervention. Tex. R. Civ. P. 60. By denying WLDC’s motion to

strike, the trial court abused its discretion. See id.

       We further conclude that WLDC lacks an adequate remedy by appeal.

Courts grant mandamus relief only when the party seeking the issuance of the writ

lacks an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004). “An appellate remedy is ‘adequate’ when any

benefits to mandamus review are outweighed by the detriments. When the benefits

outweigh the detriments, appellate courts must consider whether the appellate

remedy is adequate.” Id. at 136.




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      In this case, the trial court’s ruling allowed Intervenors to avoid

Montgomery County’s case assignment system. See Montgomery (Tex.) Dist. Ct.

Loc. R. 1.3. Additionally, Intervenors have not shown that granting WLDC’s

request prevents them from suing for recoveries on their respective properties.

Preventing a party from avoiding a county’s random assignment system warrants

mandamus relief. See Union Carbide, 273 S.W.3d at 157 (“On balance, mandamus

review is warranted because the benefits of establishing the priority that trial courts

must give to ruling on motions to strike interventions and re-emphasizing the

importance of both appearance and practice in maintaining integrity of random

assignment rules outweigh any detriment to mandamus review in this instance.”).

      We hold the trial court abused its discretion by denying WLDC’s motion to

strike the petition in intervention, and we conclude that WLDC does not have an

adequate remedy by appeal. We conditionally grant the writ of mandamus. We

direct the trial court to vacate its order and enter an order granting WLDC’s motion

to strike the plea in intervention. See Tex. R. App. P. 52.8(c). The writ will issue

only if the trial court does not do so.

      PETITION CONDITIONALLY GRANTED.

                                                          PER CURIAM
Submitted on March 22, 2013
Opinion Delivered April 25, 2013
Before Gaultney, Kreger, and Horton, JJ.
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