                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
 IN RE:                                                           No. 08-19-00119-CV
                                                 §
 WALTER L. BOYAKI,                                           AN ORIGINAL PROCEEDING
 INDIVIDUALLY AND AS                             §
 REPRESENTATIVE OF BOYAKI                                           IN MANDMAUS
 FAMILY TRUST,                                   §

 RELATORS.                                       §

                                                 §

                                                 §

                                     CORRECTED OPINION

       The opinion issued on August 28, 2019 is hereby withdrawn, and the following is the

substituted opinion of this Court.

       Relators, Walter L. Boyaki, Individually and as Representative of Boyaki Family Trust,

filed a mandamus petition against the Honorable Alyssa G. Perez, Judge of the 210th District Court

of El Paso County, Texas, asking that the Court order Respondent to vacate her order requiring

Relators to file an amended petition joining Brother Edwin Gallagher and Brother Richard Fish as

defendants. We conditionally grant mandamus relief.

                                     FACTUAL SUMMARY

       Walter L. Boyaki and the Boyaki Family Trust sued the real parties in interest to recover a

donation made to the St. Joseph School on or about February 2, 2015 in the amount of $6,250
which Relators intended to fund scholarships at the school. The petition alleges that on January

20, 2016, Defendants acknowledged receipt of $6,000 and thanked Relators for donating to the

Defendant Foundation. On February 10, 2016, Walter L. Boyaki sent a letter to the Defendant

Foundation complaining that the donated funds had been misapplied. The petition alleges that

Defendants Carpenter and Seitz diverted the donation to the Foundation for the Diocese of El Paso

without Boyaki’s permission. Boyaki requested that the funds be transferred back to St. Joseph

School, but Defendants failed to do so. Relators’ petition includes claims for breach of contract,

DTPA violations, and fraud.

        Defendants filed a motion to abate requesting that the trial court order Relators to join

Brother Edwin Gallagher and Brother Richard Fish (collectively referred to as “the Brothers”) as

“indispensable” parties. In order to evaluate the arguments presented in the mandamus petition

and response, it is necessary to have an understanding of the Brothers’ relationship to St. Joseph

School amid allegations that the Brothers misappropriated large sums of money belonging to the

school. Included in the mandamus record is an Indebtedness Agreement executed by the Diocese

of El Paso on behalf of St. Joseph Parish and the Brothers of the Poor of St. Francis, Inc. (the

Corporation) on June 1, 2016. The Indebtedness Agreement includes the following recitals:

                Brother Edwin Gallagher, CFP, and Brother Richard Fish, CFP, (the
        ‘Brothers’), who are members of the Order,1 began teaching and providing
        administrative services to [St. Joseph School] in 1989 and retired in 2015.
                During their tenure, Brother Edwin and Brother Richard misappropriated at
        least $800,264 of funds owned by [St. Joseph School].
                In order to induce St. Joseph not to take legal action against the Corporation,
        the Order, and the Brothers, the Corporation and the Order have agreed to reimburse
        St. Joseph the sum of $800,264 as provided [in the Indebtedness Agreement].

        The Corporation agreed to make four installment payments to St. Joseph School in 2016


1
 According to the Indebtedness Agreement, the Corporation is the civil law embodiment of a Catholic Order of
Franciscan brothers who provide teaching and administrative services to Catholic schools located in the United
States and other countries.

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and 2017. Upon payment of the $800,246, St. Joseph School agreed to provide the Corporation,

the Order, and the Brothers with a complete release of all claims and causes of action. The final

installment payment was made in April 2017. Walter L. Boyaki and the Boyaki Family Trust also

released the Brothers from “any and all liability either or both may have, if any, concerning the

transfer of certain scholarship monies provided to St. Joseph School in 2015 by Releasors from St.

Joseph School to either the Foundation for the Diocese of El Paso, the Catholic Legacy Fund, or

any other entity controlled by the Foundation for the Diocese of El Paso.”

       On April 9, 2019, the trial court entered an amended order granting Defendants’ motion to

abate and ordering Relators to file an amended petition joining Brother Edwin Gallagher and

Brother Richard Fish as defendants. The order provided that if Relators failed to file the amended

petition by April 24, 2019, the case would be set for dismissal. Relators filed a mandamus petition

challenging the ruling, and the Court granted a motion to stay the April 9, 2019 order.

                           DEFENDANTS’ MOTION TO DISMISS

       Defendants filed a motion to dismiss the mandamus petition because Relators did not

include in the mandamus record a transcription of the hearings held on March 27, 2019 and April

3, 2019 or all of the exhibits admitted into evidence at those hearings. After filing the motion to

dismiss, Defendants provided the transcriptions and exhibits with their response to the mandamus

petition. Rule 52.7(a)(2) requires that the relator file with the petition a properly authenticated

transcript of any relevant testimony from any underlying proceeding, including any exhibits

offered in evidence, or a statement that no testimony was adduced in connection with the matter.

TEX.R.APP.P. 52.7(a)(2). Relators chose the latter course of action and they maintain in their

response to the motion that no relevant testimony was adduced in these hearings.

       Defendants are correct that Linda Caro, Interim Chief Operating Officer of the Foundation



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of the Diocese of El Paso testified at the March 27, 2019 hearing and several exhibits were admitted

through her testimony. Her testimony was offered, however, by the Defendants in support of their

plea to the jurisdiction which was heard at the same hearing. No additional testimony was offered

during the hearing on the Defendants’ motion to abate, but they expressly relied on one of the

exhibits admitted during the hearing on the plea to the jurisdiction, Defendant’s Exhibit 2. That

exhibit is a copy of a check for $6,000 from St. Joseph School to the Foundation. That exhibit is

included in the mandamus record filed by Relators. No testimony was offered at the April 3, 2019

hearing.

       While the Court prefers to have the transcriptions from any hearings pertaining to the issue

being raised in an original proceeding, Rule 52.7 requires that the relator only provide “a properly

authenticated transcript of any relevant testimony from any underlying proceeding, including any

exhibits offered in evidence,” TEX.R.APP.P. 52.7(a)(2). We conclude that Relators complied with

the requirements of Rule 52.7. Defendants’ motion to dismiss is denied.

                                     IMPROPER JOINDER

       In their sole issue, Relators argue that the trial court clearly abused its discretion by

ordering them to file an amended petition joining the Brothers as defendants.

                            Mandamus Standard and Applicable Law

       To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that

the trial court committed a clear abuse of discretion for which the relator has no adequate remedy

at law. In re Frank Kent Motor Company, 361 S.W.3d 628, 630 (Tex. 2012); In re Prudential

Insurance Company of America, 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its

discretion when it acts arbitrarily, capriciously, and without reference to guiding principles. In re

Mid–Century Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.—Houston [1st Dist.]



                                                -4-
2012, orig. proceeding). A trial court has no discretion in determining what the law is or in

applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Consequently,

an abuse of discretion occurs if a trial court clearly fails to correctly analyze or apply the law. In

re Olshan Foundation Repair Co., LLC, 328 S.W.3d 883, 888 (Tex. 2010).

       Trial courts have broad discretion in matters involving joinder of parties, and we review a

trial court’s joinder decision for an abuse of that discretion. Royal Petroleum Corp. v. Dennis, 332

S.W.2d 313, 317 (Tex. 1960); Longoria v. Exxon Mobil Corporation, 255 S.W.3d 174, 179

(Tex.App.—San Antonio 2008, pet. denied). Although the trial court’s discretion is broad,

mandamus relief may be granted if the trial court abuses that discretion. See In re Corcoran, 401

S.W.3d 136, 139 (Tex.App.—Houston [14th Dist.] 2011, orig. proceeding); In re Arthur Andersen,

L.L.P., 121 S.W.3d 471, 483 (Tex.App.—Houston [14th Dist.] 2003, orig. proceeding).

       The trial court’s discretion is guided by Rule 39 of the Texas Rules of Civil Procedure,

entitled “Joinder of Persons Needed for Just Adjudication.” TEX.R.CIV.P. 39. Rule 39(a)

provides:

       (a) Persons to be Joined if Feasible. A person who is subject to service of process
           shall be joined as a party in the action if (1) in his absence complete relief cannot
           be accorded among those already parties, or (2) he claims an interest relating to
           the subject of the action and is so situated that the disposition of the action in
           his absence may (i) as a practical matter impair or impede his ability to protect
           that interest or (ii) leave any of the persons already parties subject to a
           substantial risk of incurring double, multiple, or otherwise inconsistent
           obligations by reason of his claimed interest. If he has not been so joined, the
           court shall order that he be made a party. If he should join as a plaintiff but
           refuses to do so, he may be made a defendant, or, in a proper case, an
           involuntary plaintiff.

TEX.R.CIV.P. 39(a).

       While Rule 39(a) provides for joinder of indispensable parties in mandatory terms, “there

is no arbitrary standard or precise formula for determining whether a particular person falls within



                                                 -5-
its provision.” Longoria, 255 S.W.3d at 180, quoting Cooper v. Texas Gulf Industries, Inc., 513

S.W.2d 200, 204 (Tex. 1974). Rule 39(a) does not focus on whether the court has jurisdiction over

the parties, but rather whether the court should proceed with the parties before it. Henry v. Cox,

520 S.W.3d 28, 34 (Tex. 2017); Amboree v. Bonton, 575 S.W.3d 38, 48-51 (Tex.App.—Houston

[1st District] 2019, no pet.); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 832

(Tex.App.—Amarillo 1993, writ denied)(in trust action beneficiaries who did not participate in

trial are not considered necessary parties to the case).

       As the Texas Supreme Court made clear in Crawford, a necessary party under Rule

39(a)(2) must claim an interest relating to the subject of the action. Crawford v. XTO Energy, Inc.,

509 S.W.3d 906, 912 (Tex. 2017). The Crawford Court defined “claim” as follows:


       [M]eans ‘to demand recognition of (as a title, distinction, possession, or power)
       esp. as a right’; ‘to demand delivery or possession of by or as if by right’; ‘to assert
       or establish a right or privilege.’ Claim, WEBSTER’S THIRD NEW INT’L
       DICTIONARY (2002); see also Claim, THE AMERICAN HERITAGE
       DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2016)(defining claim in
       pertinent part as ‘[t]o demand, ask for, or take as one's own or one's due’; ‘[t]o state
       to be true, especially when open to question; assert or maintain’).

There is nothing in the record before us to indicate that the Brothers claim an interest relating to

the subject matter of the action. Further, Relators have released the Brothers from any potential

cause of action related to the donated funds at issue in this case. Thus, Rule 39(a)(2) is

inapplicable.


       Rule 39(a)(1) requires the presence of all persons who have an interest in the litigation so

that any relief awarded will effectively and completely adjudicate the dispute. Brooks v. Northglen

Association, 141 S.W.3d 158, 162 (Tex. 2004). In order for the Brothers’ joinder to be required

under Rule 39(a)(1), the trial court was required to find that in the Brothers’ absence, complete

relief could not be accorded among those already a party to the dispute. See Kodiak Resources,

                                                 -6-
Inc. v. Smith, 361 S.W.3d 246 (Tex.App.—Beaumont 2012, no pet.);Griggs v. Latham, 98 S.W.3d

382 (Tex.App.—Corpus Christi 2003, pet denied).


       The record does not demonstrate that the trial court could not effectively and completely

adjudicate the dispute between Relators and Defendants without the joinder of the Brothers. While

the Brothers may be fact witnesses with respect to the donation made by Relators, we are unable

to conclude that they must be joined as parties in order for the trial court to completely adjudicate

the dispute between Relators and Defendants. Issue One is sustained. The trial court is directed

to set aside the April 9, 2019 amended order granting Defendants’ motion to abate and ordering

Relators to file an amended petition joining Brother Edwin Gallagher and Brother Richard Fish as

defendants. The writ of mandamus will issue only in the event the trial court fails to comply within

a reasonable period of time.



August 28, 2019
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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