                    COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH

                        NO. 02-15-00354-CV


J. FUENTES COLLEYVILLE, L.P.                     APPELLANTS
D/B/A GLORIA’S RESTAURANT;
JOSE FUENTES COLLEYVILLE,
INC. D/B/A GLORIA’S
RESTAURANT; AND CARLOS
FUENTES, INC. D/B/A GLORIA’S
RESTAURANT

                                    V.

A.S., INDIVIDUALLY AND AS NEXT                    APPELLEES
FRIEND OF K.S., A MINOR CHILD;
KRISTEN HAYTER; AND
CONSUMERS COUNTY MUTUAL
INSURANCE COMPANY


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       FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NO. 096-276274-15

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                               OPINION

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                                 I. INTRODUCTION

      A party with a justiciable interest in a pending suit may intervene as a

matter of right, but trial courts have long possessed broad discretion to strike a

plea in intervention, even when the intervenor has a justiciable interest. See

In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008) (orig. proceeding);

Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex.

App.—Fort Worth 2003, no pet.).         We consider in this appeal (1) whether

Appellants J. Fuentes Colleyville, L.P. d/b/a Gloria’s Restaurant, Jose Fuentes

Colleyville, Inc. d/b/a Gloria’s Restaurant, and Carlos Fuentes, Inc., d/b/a Gloria’s

Restaurant have a justiciable interest in a lawsuit that Appellee A.S., individually

and as next friend of K.S., a minor child, filed against Kristen Hayter and

Consumers County Mutual Insurance Company to obtain judicial approval of a

settlement that A.S. reached with Hayter and a settlement that A.S. reached with

Consumers and (2) whether the trial court could have exercised its discretion to

strike Appellants’ plea even if they have a justiciable interest. We resolve both

issues against Appellants. We will affirm.

                                 II. BACKGROUND

      K.S. sustained injuries on January 1, 2014, when a vehicle that Hayter was

allegedly operating while intoxicated struck the vehicle in which K.S. was a

passenger. A.S., in both her individual capacity and as K.S.’s next friend, later

reached settlement agreements with both Hayter’s automobile liability insurance

carrier and Consumers, the carrier of A.S.’s underinsured automobile insurance.

                                         2
      On January 6, 2015, A.S., both individually and as K.S.’s next friend, filed

a self-described “friendly suit” in Tarrant County district court against Hayter and

Consumers. Among other things, the petition contained a brief recitation of facts

that included statements that Hayter was driving “while he was intoxicated,” that

Hayter failed to notice the vehicle that K.S. was in “[d]ue to [his] intoxication,” and

that “[a]s a result,” he collided with the vehicle that K.S. was in. The petition also

contained the following four allegations:

      8.     Defendant Hayter had a duty to exercise the degree of care
             that a reasonably careful person would use to avoid harm to
             others under circumstances similar to those described herein.
             Defendant Hayter breached his duty, was negligent and, as a
             result of his negligence, [K.S.] was injured.

      9.     There have been no allegations that the driver of the vehicle
             being occupied by [K.S.] was negligent in any way or
             contributed to [K.S.’s] damages or [A.S.’s] damages.

      10.    Defendant Consumers and [A.S.] were in a contractual
             relationship whereby Defendant Consumers agreed to provide
             Uninsured/Underinsured coverage to [A.S.]. [A.S.] has made
             a claim pursuant to such agreement.

      11.    [A.S.] alleges Defendant Hayter was underinsured at the time
             of the injuries and damages, as that term is defined in the
             contract providing the protection.

Under the “Damages” section, the petition stated,

      12.    The damages, which are unliquidated, are within the
             jurisdictional limits of the Court.

      13.    The damages exceed the liability coverage of Defendant
             Hayter and the UIM coverage agreed to by Defendant
             Consumers.



                                            3
      14.   The parties have negotiated settlements of Plaintiff’s claims
            and seek the Court’s approval of such settlements.

The petition then set out the following paragraphs:

      15.   All claims, disputes and causes of action of any nature
            against Defendant Hayter have been fully and finally
            settled and resolved in this case for the sum of $30,000,
            which is the limit of liability insurance coverage of
            Defendant Hayter, without any admission regarding the
            truthfulness of the allegations contained herein. The
            purpose of this lawsuit is so that this settlement may be
            presented to the Court for approval.

      16.   Additionally, all claims, disputes and causes of action of
            any nature against Defendant Consumers have been fully
            and finally settled and resolved in this case for the sum of
            $100,000, which is the limit of UIM insurance coverage of
            Plaintiff, without any admission regarding               the
            truthfulness of the allegations contained herein. The
            purpose of this lawsuit is so that this settlement may also
            be presented to the Court for approval. [Emphasis added.]

The petition prayed “that the Defendants appear and answer herein; that the

Court appoint a guardian ad litem and conduct a minor prove-up hearing; and

that the Court approve the settlements agreed to by the parties.”

      On the same day, Consumers filed a general denial and a motion to

appoint K.S. a guardian ad litem. The trial court signed an order appointing K.S.

a guardian ad litem on January 16, 2015.       See Tex. R. Civ. P. 173.2(a)(1).

Hayter filed a general denial on February 2, 2015.

      On April 29, 2015, A.S., individually and as next friend of K.S., filed an

original petition in Dallas County district court against Appellants. The petition

alleged that they had violated the Dram Shop Act because on January 1, 2014,


                                        4
they had provided Hayter with alcoholic beverages when it was apparent to them

that he was “obviously intoxicated to the extent that he presented a clear danger

to himself and others” and because Hayter’s intoxication had proximately caused

the ensuing collision that led to K.S.’s injuries.

       On June 15, 2015, Appellants filed a plea in intervention in the Tarrant

County suit. Appellants confirmed that they were not seeking money damages

but that they were instead intervening “to defend and defeat” A.S.’s allegations

(i) that Hayter was intoxicated when his vehicle collided with the vehicle that K.S.

was riding in and (ii) that his intoxication was a proximate cause of the collision

and A.S.’s and K.S.’s injuries and damages—allegations that were common to

both the Tarrant County and Dallas County suits.         Appellants later filed an

amended plea in intervention and crossclaims.

       A.S. filed a motion to strike Appellants’ plea in intervention, arguing that

they had no justiciable interest in the suit, that intervention was not essential to

protect their interests, and that intervention would complicate and delay the case

by an excessive multiplication of issues. Both Hayter and Consumers filed an

objection to Appellants’ plea in intervention and adopted the objections lodged by

A.S.

       On September 4, 2015, the trial court conducted a minor prove-up hearing

and found that the settlements with Hayter and Consumers were in K.S.’s best

interest. Two weeks later, after a hearing, the trial court signed an order granting



                                           5
A.S.’s motion to strike and orally approved the parties’ respective settlements.1

The trial court later signed an agreed final judgment that, among other things,

approved the settlement agreements and releases of all claims between the

parties to the Tarrant County suit.

             III. JUSTICIABLE INTEREST AND TRIAL COURT DISCRETION

      Appellants argue in their first issue that the trial court abused its discretion

by striking their plea in intervention. They contend that they have a justiciable

interest in the Tarrant County suit because K.S. could have joined them as

defendants under rule of civil procedure 40, as the claims asserted against

Hayter in the Tarrant County suit and the claims asserted against Appellants in

the Dallas County suit arose out of the same series of occurrences and were

based on common questions of law or fact—Hayter’s alleged intoxication and the

proximate cause of A.S. and K.S.’s damages.             See Tex. R. Civ. P. 40.

Appellants also argue that rule of civil procedure 39(a)(1) “completely eliminated”

the trial court’s discretion to strike their plea in intervention because A.S. alleged

that her damages exceeded the limits of Hayter’s liability policy and A.S.’s

underinsured policy with Consumers.

      A.S. responds that Appellants lack standing to intervene in the Tarrant

County suit because it “was not a suit to adjudicate the liability of Hayter” but only




      1
       The order granting the motion to strike did not give a reason for the ruling.

                                          6
“a ‘friendly suit’ to approve a settlement on behalf of a minor claimant to whom

Appellants bear no relation.”

      “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. Union Carbide Corp., 273 S.W.3d at 155;

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., 109 S.W.3d at 70.         In other words, the interest is “analogous to that

essential for a party to maintain or defend an action.” 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 (providing that a person has a 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

recovery, or some part thereof”). 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.

                                          7
      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 struck. Id. (additionally explaining that

we review a trial court’s decision to strike a plea in intervention for an abuse of

discretion); Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.—Austin 2007,

no pet.) (“[T]he ultimate determination of whether an intervention should be

struck, even if a justiciable interest is shown, has long been held to be vested in

the sound discretion of the trial court.”).    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 its own name or could have defeated

recovery, or some part of it, if the action had been brought against it, (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.

      The problem with Appellants’ argument is that it is premised upon a

characterization of the underlying suit that is fundamentally inconsistent with the

true nature of the action. Yes, A.S.’s original petition states that Hayter was

intoxicated and that his negligence caused K.S.’s injuries, but those statements

must be viewed in light of the entire petition, which unambiguously demonstrates

that the lawsuit was filed for the sole and specific purpose of obtaining judicial

approval of the settlements that A.S., individually and on behalf of K.S., reached

with both Hayter and Consumers. See Gulf, Colo. & Santa Fe Ry. Co. v. Bliss,

                                         8
368 S.W.2d 594, 599 (Tex. 1963) (“It is a general rule, so well established as to

need no citation of authority, that the petition will be construed as favorably as

possible for the pleader.”). Indeed, consistent with that lone purpose, (i) the four

“Allegations” levied against Hayter and Consumers contextualize the “claims,

disputes and causes of action” against them that were “fully and finally settled”;

(ii) the damages allegations state that the parties have negotiated settlements;

(iii) the petition conspicuously states in bold font—twice—that “[t]he purpose of

this lawsuit is so that this settlement may be presented to the Court for approval”;

(iv) neither Hayter nor Consumers made any admission of liability as part of the

settlements; (v) the petition asks the trial court to appoint for K.S. a guardian

ad litem; and (vi) the petition prays “that the Court approve the settlements

agreed to by the parties.” It cannot be said with any seriousness that the original

petition reflects a conventional effort to impose liability upon Hayter and

Consumers for the purpose of obtaining a judgment against them for damages.2

Cf. Gulf Ins. Co. v. Tex. Cas. Ins. Co., 580 S.W.2d 645, 647‒48 (Tex. Civ. App.—

Fort Worth 1979, writ ref’d n.r.e.) (declining to construe “friendly suit” with agreed


      2
       As A.S. aptly explains,

      The “friendly suit” did not adjudicate liability as to Hayter or
      [Appellants]. The “friendly suit” did not adjudicate whether Hayter
      was intoxicated. The “friendly suit” did not adjudicate where Hayter
      became intoxicated. The “friendly suit” did not adjudicate whether
      Hayter’s intoxication was a proximate cause of the collision giving
      rise to the claims made on behalf of K.S. The “friendly suit” did not []
      adjudicate the amount of K.S.’s damages.

                                          9
judgment as “actual trial” for purposes of “no action” clause contained in

insurance policy).

      The question then is whether Appellants have a justiciable interest in

A.S.’s suit to obtain judicial approval of the settlements that were made with

Hayter and Consumers. They do not. Their plea in intervention included no

allegations “involving the trial court’s review, approval, entry, and enforcement of

the settlement agreement[s]” between A.S., Hayter, and Consumers. Hurtado v.

Gamez, No. 13-11-00354-CV, 2012 WL 2052199, at *5 (Tex. App.—Corpus

Christi June 7, 2012, pet. denied) (mem. op.). Stated otherwise, Appellants’ plea

in intervention alleged no facts indicating that they have any interest whatsoever

that will be affected by the unique litigation between A.S., Hayter, and

Consumers. See Law Offices of Windle Turley, P.C., 109 S.W.3d at 70. The trial

court could have reasonably granted A.S.’s motion to strike on this basis.3

      We further conclude that the trial court could have alternatively exercised

its broad discretion to strike Appellants’ plea in intervention for the other two

reasons that A.S. articulated in her motion to strike. See id. Specifically, not only

are Appellants fully capable of protecting their interests via the Dallas County

suit—as A.S. observed, Appellants may “claim contributory negligence against


      3
       This part of our holding is narrow. We do not hold that the trial court
lacked jurisdiction to perform any act other than to approve or reject the
settlement agreements between the parties. We simply hold that, on these
pleadings, Appellants have no justiciable interest in A.S.’s suit to obtain judicial
approval of the settlement agreements.

                                         10
any party, designate any non-party as a responsible third party, require a jury

trial, serve discovery on parties and non-parties of their choosing, depose any

witness[,] or otherwise [] defend that lawsuit”—but the Tarrant County suit would

no doubt be complicated by interjecting Appellants’ interests when the only other

parties to the suit have already agreed to resolve “[a]ll claims, disputes and

causes of action of any nature” between them. See Guar. Fed. Sav. Bank, 793

S.W.2d at 657.

      Appellants argue that rule of civil procedure 39(a)(1) prohibited the trial

court from exercising its discretion because A.S. pleaded that her damages

exceeded Hayter’s liability coverage and the underinsured motorist coverage

provided by Consumers. See Tex. R. Civ. P. 39(a)(1) (providing that a person

who is subject to service of process “shall” be joined as a party in the action if “in

his absence complete relief cannot be accorded among those already parties”).

However, Hayter and Consumers were “already parties” when Appellants

intervened, and A.S. pleaded that she settled for the limit of each insurance

policy. As the sole purpose of the Tarrant County suit was to obtain judicial

approval of the settlements, the relief that A.S. obtained from Hayter and

Consumers was as complete as it could be.

      We hold that the trial court did not abuse its discretion by striking

Appellants’ plea in intervention. We overrule their first issue.




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                                  IV. CROSSCLAIMS

      Appellants argue in their second issue that the trial court reversibly erred

insofar as its order striking their plea in intervention also struck their crossclaims

because no party filed a motion to strike the crossclaims. The trial court properly

struck Appellants’ first-filed plea in intervention; therefore, its later-filed pleading

asserting the crossclaims was of no legal effect.4          We overrule Appellants’

second issue.

                                   V. FRIVOLOUS APPEAL

      A.S. argues that she should be reimbursed her appellate attorneys’ fees as

damages because this appeal is frivolous. See Tex. R. App. P. 45. We disagree

and, therefore, deny her request for attorneys’ fees as damages.

                                      VI. CONCLUSION

      Having overruled Appellants’ two issues, we affirm the trial court’s

judgment.



                                                      /s/ Bill Meier
                                                      BILL MEIER
                                                      JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DELIVERED: August 18, 2016


      4
       Appellants acknowledge that they “explicitly informed” the trial court that
they would treat the motion to strike as also applying to their pleading asserting
the crossclaims.

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