                 IN THE SUPREME COURT OF TEXAS
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                                                NO . 12-0957
                                             444444444444



                           IN RE FORD MOTOR COMPANY, RELATOR

            4444444444444444444444444444444444444444444444444444
                                 ON PETITION FOR WRIT OF MANDAMUS
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                                       Argued December 3, 2013

        JUSTICE BOYD , dissenting.

        For the most part, I agree with the Court’s construction of section 71.051 of the Texas Civil

Practice and Remedies Code in this case, and I generally disagree with Justice Johnson’s conclusion

that the Court “errs by reading language into the statute.” Ante at ___ (Johnson, J., dissenting). But

I agree with Justice Johnson’s conclusion that the Court “errs by misapprehending the interests of

the intervenors,” id., and with his forum non conveniens analysis, so I too dissent, but for slightly

different reasons.

        The issue in this case is whether the intervenors, who are Texas residents, are “plaintiffs” and

thus protected from forum non conveniens dismissal under section 71.051(e) of the Civil Practice

and Remedies Code. See TEX . CIV . PRAC. & REM . CODE § 71.051(e) (“The court may not stay or

dismiss a plaintiff’s claim . . . if the plaintiff is a legal resident of this state.”). Addressing a different

section of the same Code, we hold today in another case that the common, ordinary meaning of the

term “plaintiff” refers to a party who initiates a lawsuit or legal proceeding and does not include

defendants or third-party defendants who file cross-claims, counterclaims, or third-party claims.
Jaster v. Comet II Constr., ___ S.W.3d ___ (Tex. 2014). Unlike section 71.051, the statute at issue

in Jaster does not define the term “plaintiff,” so we looked in that case to dictionary definitions, prior

precedents, and other statutes to identify the term’s common, ordinary meaning, and then concluded

that the context confirmed the use of that intended meaning. Id. at ___. Section 71.051 is one of the

statutes to which we look in Jaster, and we note that it first “defines [the term ‘plaintiff’] broadly

to mean ‘a party seeking recovery of damages for personal injury or wrongful death,’ but . . . then

expressly provides that ‘[t]he term does not include a counterclaimant, cross-claimant, or third-party

plaintiff.’” Id. at ___ (quoting TEX . CIV . PRAC. & REM . CODE § 71.051(h)(2)). We note in Jaster that

this section is consistent with others throughout the Civil Practice & Remedies Code, which

repeatedly use and define the term “claimant” to refer to all parties who seek relief in a lawsuit, id.

at ___, and use and define the term “plaintiff” to refer to claimants who initiate the lawsuit. Id. at

___.

        In this case, the Court confirms that the term “plaintiff,” as section 71.051(h) defines it, refers

to “a subset of the broader term ‘claimant.’” Ante at ___. The Court also concludes that “plaintiffs”

who file counterclaims, cross-claims, or third-party claims do not thereby cease to be “plaintiffs,”

ante at ___, and that a “third-party plaintiff,” as that term is used in section 71.051, means “a

defendant who files a pleading in an effort to bring a third-party into the lawsuit.” Ante at ___. The

first of these conclusions is what we held in Jaster, and the other two are consistent both with it and

with the language of section 71.051. I agree with all three, and thus disagree with Justice Johnson’s

view that the Court is reading words into section 71.051 when it concludes that a party must be a

defendant to be a third-party plaintiff. Ante at ___.

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         Consistent with our holding in Jaster, under the common, ordinary meaning of the term, as

well as the definition in section 71.051(h)(2), a “plaintiff” is a party who initiates the lawsuit (i.e.,

the first party to the suit). Jaster, ___ S.W.3d at ___. A defendant (the second party to the suit) may

assert claims against a third party, and by doing so the defendant becomes a “third-party plaintiff.”

See TEX . R. CIV . P. 38(a) (providing that “a defending party, as a third-party plaintiff,” may serve

citation and a petition on “a person not a party to the action”).1 If the defendant asserts counterclaims

against the plaintiff, the plaintiff may also bring in a third party “under circumstances which under

this rule would entitle a defendant to do so.” TEX . R. CIV . P. 38(b). But the rules nowhere refer to

such a plaintiff as a “third-party plaintiff.” TEX . R. CIV . P. 38. Instead, although the rule allows a

“plaintiff” to bring in a “third party,” it refers only to a “defending party” as a “third-party plaintiff.”

Id. I thus agree with the Court that a plaintiff who asserts claims against a third party does not

thereby cease to be a “plaintiff,” and that only a defendant can be a “third-party plaintiff.”

         But we are not dealing in this case just with a plaintiff, a defendant/third-party plaintiff, and

a third-party defendant. Instead, we are dealing with intervenors, who elected to insert themselves

into a lawsuit that already involved a plaintiff, a defendant/third-party plaintiff, and a third-party

defendant. “[A] person or entity has the right to intervene [1] if the intervenor could have brought

the same action, or any part thereof, in his own name, or, [2] if the action had been brought against



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           The third-party defendant, in turn, may assert claims “against any person not a party to the action who is or
who may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-
party defendant.” T EX . R. C IV . P RO C . 38(a). Because this kind of claim brings a fourth party into the suit, we have
referred to these parties as fourth-party plaintiffs and defendants, although Rule 38 does not. See, e.g., Liberty Mut. Ins.
Co. v. First Nat’l Bank in Dall., 245 S.W .2d 237, 243–44 (Tex. 1951) (resolving claims by a “fourth party plaintiff”
against “fourth party defendants”).

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him, he would be able to defeat recovery, or some part thereof.” Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). In other words, a person may intervene as a

plaintiff who could have brought the same action, or as a defendant who can defeat the plaintiff’s

recovery. And, I would add, a person may intervene as a third-party plaintiff if the intervenor could

have brought the same claims against the third-party defendant in the intervenor’s own name, or as

a third-party defendant if the intervenor would be able to defeat the third-party plaintiff’s recovery,

or some portion thereof. And, as I would hold occurred in the present case, a person may intervene

as a defendant/third-party plaintiff, opposing the plaintiff’s recovery against the defendant and

seeking recovery against the third-party defendant.

        The issue in this case is whether the intervenors have joined with the plaintiff, the third-party

plaintiff, or the third-party defendant. The Court acknowledges that intervenors can be

“characterized” as plaintiffs or as defendants, “depending on the nature of their interests and claims,”

ante at ___, and “need not necessarily be defending a claim to intervene in a defendant’s capacity.”

Ante at ___. It then compares these intervenors to the intervenor in Noble v. Meyers, 76 Tex. 280,

13 S.W. 229 (1890), whom we “treated . . . like a plaintiff” because he “acted like a plaintiff,” ante

at ___, and distinguishes them from the intervenors in Perkins v. Freeman, 518 S.W.2d 532 (Tex.

1974), whom we treated like defendants because there was “no antagonism” between them and the

defendant and because they and the defendant were instead “united in a common cause of action

against the plaintiff.” Ante at ___ (quoting Perkins, 518 S.W.2d at 534).

        Noble and Perkins represent the two principal considerations for determining how to

categorize an intervenor: (1) whether the intervenor seeks affirmative relief (like a plaintiff) or to

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defeat another party’s recovery (like a defendant); and (2) whether the intervenor’s interests are

aligned with or antagonistic to the interests of various other parties in the suit. Sometimes only one

of these considerations is helpful, and it dictates the outcome. For example, we based our decision

in Noble on the first consideration alone. 13 S.W. at 230. The intervenors in Noble claimed an

ownership interest in land in a partition suit among parties who claimed full ownership of the same

land. Id. at 229. Although the intervenors’ interests were equally antagonistic to both the plaintiffs’

and the defendant’s, we treated the intervenors as plaintiffs because they sought affirmative relief

and no affirmative relief was sought against them. Id. at 230. Conversely, we relied more extensively

on the second consideration in Perkins, a child custody action in which the defendant and the

intervenor-grandparents agreed that custody of the child should remain with the defendant. 518

S.W.2d at 534. Because the defendant’s and intervenors’ interests were aligned, we treated the

intervenors as defendants. Id.

        But both Noble and Perkins involved only first-party claims. When there are second-party

claims (counterclaims and cross-claims) and third-party claims, the first consideration is less

definitive because there is more than one category of parties that seek or defend against affirmative

relief. This is true here, where there are three parties: the plaintiff (Juan), the defendant/third-party

plaintiff (the estate), and the third-party defendant (Ford). Under our rules governing intervention,

the question is: With which of these three are intervenors’ interests most aligned? As Justice Johnson

explains, the intervenors share the interests of the estate (the defendant/third-party plaintiff), both

in avoiding the estate’s liability to Juan (the plaintiff) and in imposing liability on Ford (the third-



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party defendant). I agree that the intervenors’ interests are most aligned with the estate’s interests

in this case, and thus they intervened into this lawsuit as defendants/third-party plaintiffs.

        Holding to the contrary, the Court suggests that intervenors “acted like plaintiffs, not

defendants filing a third-party claim.” Ante at ___. But when there are no counterclaims, as is the

case here, it is only a defendant who can file a third-party claim. See TEX . R. CIV . P. 38(a), (b). Filing

a third-party claim thus may constitute acting like a defendant (the estate) and like a third-party

plaintiff (also the estate), but it does not constitute acting like the plaintiff (Juan), who is not

permitted under the rules of civil procedure to file a third-party claim. See id. The intervenors “acted

like plaintiffs” only by filing claims against a third-party defendant, which is what third-party

plaintiffs do. Because multiple parties are asserting or defending against affirmative relief, the

question of whether the intervenors are asserting or defending against affirmative relief cannot alone

dictate how the intervenors are classified. Instead, as with most cases involving second- and third-

party claims, we must also consider which party’s interests are most closely aligned with the

intervenors’ interests. The answer, as Justice Johnson explains, is the estate.

        The Court points out that Juan’s (the plaintiff’s) interests in this case will be “wholly

vindicated if the intervenors succeed” in their claims against Ford, ante at ___, but that is also true

if the estate (the defendant/third-party plaintiff) succeeds in its claims against Ford. Similarly, the

Court suggests that Juan “will be just as vindicated regardless of which of the two defendants [the

estate or Ford] ends up with the hot potato of liability.” Ante at __. This, however, only demonstrates

why the intervenors’ interests are not aligned with Juan’s interests: if the estate ends up with the “hot



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potato,” then Juan wins but the intervenors lose. In this suit, the intervenors share the estate’s fate,

not Juan’s.

        The Court acknowledges that the intervenors, like the estate, filed claims against a third-party

defendant, Ford. Ante at ___. But because the plaintiff, Juan, later filed his own direct claims against

Ford, the Court contends that Ford is a defendant as to Juan, and is “formally a third-party defendant

only as against the estate.” Id. Even if Juan’s direct claim against Ford is relevant to this analysis,

it places Ford in the position of a defendant, rather than a third-party defendant, and the estate in the

position of a cross-claimant, rather than a third-party plaintiff, with respect to Ford. Because the

statute excludes cross-claimants from the definition of “plaintiff” as well as third-party plaintiffs,

the distinction makes no difference. TEX . CIV . PRAC. & REM . CODE § 71.051(h)(2). Whether the

estate’s claims against Ford constitute third-party claims or cross-claims, the estate is not a

“plaintiff,” and because the intervenors’ interests remain aligned with the estate’s interests, they are

not “plaintiffs” either.

        As both the Court and Justice Johnson agree, if the intervenors had filed a separate,

independent lawsuit against Ford, they would have been “plaintiffs” and, as Texas residents, would

have been protected from forum non conveniens dismissal under section 71.051. But they didn’t.

Instead, they intervened in an existing lawsuit that already involved a plaintiff, a defendant/third-

party plaintiff, and a third-party defendant. Intervenors must take the case as they find it. See, e.g.,

Buzzini Drilling Co. v. Fuselier, 562 S.W.2d 878, 879 (Tex. Civ. App.—Houston [1st Dist.] 1978,

no writ) (holding that because “[a]n intervenor takes the suit as he finds it . . . , venue of the

intervention is dependent upon the venue of the original cause of action”); Corzelius v. Cosby

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Producing & Royalty Co., 52 S.W.2d 270, 272 (Tex. Civ. App.—Fort Worth 1932, no writ) (holding

that an “intervener takes the case as he finds it”). In choosing to join this suit, the intervenors aligned

themselves with the estate, sharing its interests in avoiding liability to the plaintiff and alleging that

Ford is liable. Under such circumstances, they have intervened into this suit not as “plaintiffs” but

as “third-party plaintiffs.” The protection from forum non conveniens dismissal, therefore, does not

apply to them in this case.

        Because I agree with Justice Johnson that the intervenors in this case have intervened as

defendants/third-party plaintiffs and not as plaintiffs, I would not reach Ford’s alternative argument

that section 71.051 treats the intervenors as a combined, single plaintiff with the decedent. Because

I also agree with Justice Johnson’s application of the forum non conveniens factors to this case, I

respectfully dissent.




                                                         _________________________________
                                                         Jeffrey S. Boyd
                                                         Justice


Opinion delivered: July 3, 2014




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