                                                                                         ACCEPTED
                                                                                    13-15-00105-CV
                                                                    THIRTEENTH COURT OF APPEALS
                                                                           CORPUS CHRISTI, TEXAS
                                                                              9/21/2015 11:58:54 AM
                                                                                   Dorian E. Ramirez
                                                                                              CLERK

                    CAUSE NO. 13-15-00105-CV

                                                         FILED IN
             IN THE THIRTEENTH COURT OF APPEALS
                                          13th COURT OF APPEALS
                                      CORPUS
             CORPUS CHRISTI AND EDINBURG, TEXASCHRISTI/EDINBURG, TEXAS
                                                  9/21/2015 11:58:54 AM
                                                    DORIAN E. RAMIREZ
                                                           Clerk
                      CROX QUINTANILLA,

                                     Appellant,

                               VS.

   LAW OFFICE OF JERRY J. TREVINO, P.C. and JERRY J. TREVINO,

                                     Appellees.


                     ON APPEAL FROM
 THE 347TH
        JUDICIAL DISTRICT COURT OF NUECES COUNTY, TEXAS,
                 CAUSE NO. 2013-DCV-2066-H
HONORALBE DAVID WELLINGTON CHEW, PRESIDING BY ASSIGNMENT



                       APPELLEES’ BRIEF




                             J. A. CANALES
                             State Bar No. 03737000
                             CANALES & SIMONSON, P.C.
                             2601 Morgan Ave.-P.O. Box 5624
                             Corpus Christi, Texas 78465-5624
                             Telephone: (361) 883-0601
                             Telefax:    (361) 884-7023

                             ATTORNEYS FOR APPELLEES
                             LAW OFFICE OF JERRY J. TRVINO, P.C.
                             And JERRY J. TREVINO
                         IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas Rules of Appellate Procedure 38, Appellees submit the following list of
the parties, their designation, and their counsel in this appeal.

Appellant:                                  Crox Quintanilla

Counsel for Appellant:                      Criag S. Smith
                                            LAW PFFOCE PF CRAIG S. SMITH
                                            14493 S.P.I.D., Suite A; P.M.B. 240
                                            Corpus Christi, Texas 78418
                                            Telephone: 361.728.8037
                                            Email: csslaw@stx.rr.com

                                                           Appellate Counsel

                                            Rene Rodriguez
                                            LAW OFFICES OF RENE RODRIGUEZ
                                            433 South Tancahua
                                            Corpus Christi, Texas 78401
                                            Telephone: 361.882.1919
                                            Telefax:   361.882.2042

                                                           Trial and Appellate Counsel


Appellees:                                  Law Office of Jerry J. Trevino, P.C. and
                                            Jerry J. Trevino

Counsel for Appellees:                      J. A. Canales
                                            State Bar No. 03737000
                                            CANALES & SIMONSON, P.C.
                                            2601 Morgan Avenue – P.O. Box 5624
                                            Corpus Christi, Texas 78465-5624
                                            Telephone: 361.883.0601
                                            Telefax:    361.884.7023
                                            Email: tonycanales@canalessimonson.com

                                                           Trial and Appellate Counsel




                                                i
                       STATEMENT REGARDING ORAL ARGUMENT


          Appellees agree that there is no need for oral argument




                                     RECORD REFERENCES


          Citations to the Clerk’s Record shall be referred to as “(C.R., page) and (Sup. C.R.,

page)”.




                                                   ii
                               TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL……………………………………………………i

STATEMENT REGARDING ORAL ARGUMENT………………………………………….ii

RECORD REFERENCES………………………………………………………………………ii

TABLE OF CONTENTS……………………………………………………………………….iii

INDEX OF AUTHORITIES……………………………………………………………………iv

STATEMENT OF THE CASE………………………………………………………………….1

ISSUES PRESENTED:

     The issue before the Court is whether the Appellant’s Petition to Intervene
     survived the Plaintiff's motion to non-suit. Absent an order granting a Motion to
     intervene, can the trial court in the granting of Plaintiff’s Non suit and dismissal
     of the original suit include in the dismissal of the case the pending motion to
     intervene? Or did the Trial Court err in dismissing the Appellant’s petition to
     intervene when the appellant did not have an order granting the intervention. We
     submit there is no error……………………………………………………………............2


STATEMENT OF FACTS………………………………………………………………………2

SUMMARY OF THE ARGUMENT…………………………………………………………...3

ARGUMENT……………………………………………………………………………………..3

PRAYER………………………………………………………………………………………….4

CERTIFICATE OF SERVICE…………………………………………………………………5

CERTIFICATE OF COMPLAINCE…………………………………………………………. 6




                                          iii
                             INDEX OF AUTHORITIES


CASES                                                                    PAGE


City of Port Arthur v. Southwestern Bell Telephone Co.,
        13 S.W. 3d 841, 843 (Tex. App.- Austin 2000, no pet.)………………………..4

Guaranty Fed. Sav. Bank v. Horseshore Oper. Co.,
      793 S.W.2d 652, 657…………………………………………………………….3

In re Union Carbid Corp., 273 S.W.3d 152, 155 (Tex. 2008)………………………….4

Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982)………………………………….4

Shadowbrook Apartments vs. Abu-Ahmad, 783 S.W.2d 110, 211 (Tex. 1990)……….4

University of Texas v. Estate of Blackmon, 195 S.W.3d 98, 99 (Tex. 2006)………….4




                                          iv
                                 CAUSE NO. 13-15-00105-CV


                       IN THE THIRTEENTH COURT OF APPEALS
                       CORPUS CHRISTI AND EDINBURG, TEXAS


                                    CROX QUINTANILLA,

                                                     Appellant,

                                               VS.

         LAW OFFICE OF JERRY J. TREVINO, P.C. and JERRY J. TREVINO,

                                                     Appellees.


                         ON APPEAL FROM
     THE     347TH
            JUDICIAL DISTRICT COURT OF NUECES COUNTY, TEXAS,
                     CAUSE NO. 2013-DCV-2066-H
    HONORALBE DAVID WELLINGTON CHEW, PRESIDING BY ASSIGNMENT



                                     APPELLEES’ BRIEF



TO THE HONORABLE JUSTICES OF THE 13TH COURT OF APPPEALS:

       COME NOW Appellees, Law Office of Jerry J. Trevino, P.C. and Jerry J. Trevino and

hereby submit their Brief.

                                STATEMENT OF THE CASE
Nature of the case: Appellee sued Randall Barrera, individually, Rene Rodriguez, individually

and Rene Rodriguez, trustee for various causes of action including breach of contract. (C.R. 5

Original Petition and Amended Petition C.R. 124). Appellee filed a motion to nonsuit all of the

parties (C.R. 191-192). None of the original trial defendants, Randall Barrera, Rene Rodriguez,

individually nor as Trustee have appealed and are not parties to this appellate proceeding.


                                                1
Appellant filed a Petition to intervene. (C.R. pages 67 and 87). The Appellee challenged the

intervention and filed a Motion to Strike the Intervention. (Sup. C.R. page 4).

Course of Proceedings: Prior to the Appellee’s motion to nonsuit, Appellant filed a motion to

intervene (C. R. 67). Appellee in response to the proposed intervention challenged and objected

to the intervention and filed a Motion to Strike the Plea in Intervention on September 3, 2013

(Sup C.R. page 4). The Appellant did not obtain a ruling from the Court on the Appellant’s

Petition to Intervene. The trial court entered an order of dismissal of the non-suit of the

Appellee’s claims on September 24, 2014 (C.R. 191). On January 12, 2015, Appellee filed a

Memorandum in Support of Motion to Strike/Dismiss the Intervention (C.R. 196) and on January

22, 2015 the Court granted the Appellee motion and dismissed the proposed intervention (C.R.

pages 201 and 207). The Appellant appeals.

                                     ISSUES PRESENTED
       The issue before the Court is whether the Appellant’s Petition to Intervene survived the
       Plaintiff's motion to non-suit. Absent an order granting a Motion to Intervene, can the
       Trial Court in the granting of Plaintiff’s Non suit and dismissal of the original suit
       include in the dismissal of the case the pending Motion to Intervene? Or did the Trial
       Court err in dismissing the Appellant’s petition to intervene when the appellant did not
       have an order granting the intervention. We submit there is no error.


                                   STATEMENT OF FACTS
        In outline style the following are the undisputed facts:

       1.      The Appellee filed suit. (C.R. pages 5 & 124).

       2.      The Appellant filed a petition for intervention. (C.R. pages 67 & 87).

       3.      The Appellees filed Motions to Strike the Appellant Petition for Intervention.

(Sup. C. R. pages 4 and 55).




                                                 2
          4.     The Appellee filed a non-suit of his Petition. (C.R. page 192) and the Court

Granted the Motion of Nonsuit. (C. R. 191).

          5.     Subsequently, the Court signed an Order of Dismissal of the Intervention. (C.R.

pages 201 and 207).

          The Appellate Record is clear and undisputed that there was a Motion to Strike the

Appellants Petition for intervention at the time of the nonsuit and the Appellant never obtained a

ruling from the Trial Court overruling the Appellees’ Motion to Strike and permitting the

Appellant’s intervention to intervene.

                                SUMMARY OF THE ARGUMENT
          The issue before the Court is whether the Appellant’s Petition to Intervene survived the

Plaintiff's motion to non-suit. It is the contention of the appellee that once the Court received the

Motion to Non-Suit and an Order of Dismissal was entered, because the pending Petition to

Intervene was being challenged and had not been ruled on, and there was an absence of any

affirmative relief pending by any defendant, there is no pending suit remaining for Appellant to

intervene. The Court is now without jurisdiction, the Petition to intervene was no longer before

the court. The Trial Court did not err in dismissing the Appellant’s Plea In Intervention.

                                            ARGUMENT


          In Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793 S.W. 2nd 652, 657 the court

stated:

                 “Without a motion to strike, the trial court abused its discretion in striking
                 Petrolife’s plea in Intervention.”
Thus making it clear that a Motion to Strike the intervention is a prerequisite in order to object to

the intervention. Pending the challenge to the intervention, by a motion to strike, the

intervention is not granted.

                                                   3
       At Dorsaneo, Texas Litigation Guide at 5-82 Dorsaneo, Texas Litigation Guide § 82.10

explains it best by summarily stating:

               ‘Once the motion to strike is filed, the intervenor bears the burden to show a
               justiciable interest, legal or equitable, in the lawsuit [Mendez v. Brewer, 626
               S.W.2d 498, 499 (Tex. 1982) ; City of Port Arthur v. Southwestern Bell
               Telephone Co., 13 S.W.3d 841, 843 (Tex. App.--Austin 2000, no pet.) (intervenor
               did not meet burden of showing right to intervene)]. It is the justiciable interest
               requirement that defines the category of nonparties who may interject their
               interests into a pending suit [In re Union Carbide Corp., 273 S.W.3d 152, 155
               (Tex. 2008)].
At the time of the Order granting the nonsuit the Appellant’s Petition to Intervene had not been

heard nor granted. Because the Appellant’s intervention was pending and had not been heard nor

granted the Dismissal of the case also dismissed the Motion to Intervene. See Tex. R. Civ. Proc.

Rule 60 and Rule 162. A voluntary dismissal or “nonsuit extinguishes a case from 'the moment

the motion is filed’ or an oral motion is made in open court: the only requirement is 'the mere

filing of the motion with the clerk of the Court.'" See: University of Texas v. Estate of

Blackmon, 195 S. W.3d 98, 99 (Tex. 2006) (quoting Shadowbrook Apartments v. Abu-Ahmad,

783 S.W.2d:110,211 (Tex. 1990). The instant suit was "extinguished" before the Petition to

Intervene was ruled on, and the trial Court had no Jurisdiction to consider the

Intervention and was not before the court upon the non-suit taken effect.

                                            PRAYER

       For the reasons stated in this brief, Appellee asks the Court to overrule appellant’s issues

and to affirm the trial court judgment dismissing the Appellant Petition for Intervention.

                                             Respectfully submitted,

                                             /s/ J. A. Canales
                                             J. A. CANALES
                                             State Bar No. 03737000


                                                 4
                                             CANALES & SIMONSON, P.C.
                                             2601 Morgan Ave.-P.O. Box 5624
                                             Corpus Christi, Texas 78465-5624
                                             Telephone: (361) 883-0601
                                             Telefax:   (361) 884-7023

                                             ATTORNEYS FOR APPELLEES
                                             LAW OFFICE OF JERRY J. TRVINO, P.C.
                                             And JERRY J. TREVINO




                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of APPELLEES’ BRIEF was served via
certified mail, return receipt requested on this 21st day of September, 2015 to the following:

Criag S. Smith
LAW PFFOCE PF CRAIG S. SMITH
14493 S.P.I.D., Suite A; P.M.B. 240
Corpus Christi, Texas 78418
Email: csslaw@stx.rr.com
Appellant Counsel

Rene Rodriguez
LAW OFFICES OF RENE RODRIGUEZ
433 South Tancahua
Corpus Christi, Texas 78401
Trial and Appellate Counsel




                                             /s/ J. A. Canales
                                             J. A. Canales




                                                5
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rules of Appellate Procedures, the undersigned counsel

certifies that this brief complies with the type-volume limitations and contains 969

words.



                                              /s/ J. A. Canales
                                              J. A. Canales
                                              Attorney for Defendants-Appellees
                                              Law Office of Jerry J. Trevino, P.C.
                                              and Jerry J. Trevino




                                          6
