
                     NO. 12-04-00256-CV
 
IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS


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IN RE: DAVID BARRETT, M.D.                     §     ORIGINAL PROCEEDING


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OPINION
            Relator David Barrett, M.D. seeks a writ of mandamus compelling the trial court to vacate
its order permitting intervention and severance.  For the reasons set forth below, we deny the writ.

Background
            On December 14, 2000, Eudreka S. Wilson, as next friend of Aareyah A. Smith, a minor,
filed a medical negligence action (“the Wilson lawsuit”) against David Barrett, M.D., Athens
Women’s & Children’s Center (the “Women’s Center”), East Texas Medical Center–Athens
(“ETMC”), and Ann Walker, R.N.  All claims against the defendants were settled prior to trial.
Pursuant to the respective settlement agreements, the trial court entered judgment against ETMC and
Ann Walker, R.N. on June 16, 2003 and  against Dr. Barrett and the Women’s Center on August 29,
2003 (the “August 29 judgment”).  On the same day, August 29, Krystal Derrick and Maxwell
Derrick, individually and as next friends of Cameron Derrick, a minor, filed a petition in intervention
in the Wilson lawsuit pursuant to Texas Rule of Civil Procedure 60.  The petition named as
defendants Dr. Barrett, ETMC, Ann Walker, R.N., Gregory Mondini, M.D., Gregory Mondini, M.D.,
P.A., and Terri Wilson, R.N.
            On October 17, 2003, Dr. Barrett and the Women’s Center filed a motion to strike the
petition in intervention.  Approximately three months later, on January 12, 2004, the trial court held
a hearing.  At the conclusion of the hearing, the trial court ruled from the bench, denying the motion
to strike, permitting the intervention, and severing the intervenors’ action.  The trial court confirmed
its rulings in a written order signed on May 12 (the “May 12 order”).  This original proceeding
followed.  
Prerequisites to Mandamus
            Mandamus is “an extraordinary remedy, available only in limited circumstances.”  Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  Mandamus relief is available only if the trial court
clearly abused its discretion and the relator has no adequate remedy by appeal.  In re Southwestern
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).  Where the trial court’s order is void, the relator need
not show that it did not have an adequate appellate remedy, and mandamus is appropriate.  Id. 
            A trial court clearly abuses its discretion if it reaches a decision “so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.”  Walker, 827 S.W.2d at 839
(quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).  In other words,
the relator must establish that the trial court could reasonably have reached only one decision. 
Walker, 827 S.W.2d at 839.  When the trial court’s decision rests on the resolution of factual issues
or matters committed to the court’s discretion, the party opposing the trial court’s decision must
establish that the court could reasonably have reached only one decision.  Id.  at 839-40.  Regarding
resolution of factual issues, we may not substitute our judgment for that of the trial court, even if we
would have decided the issue differently.  Id.  As to legal issues, the trial court has no discretion in
determining what the law is or in applying the law to the facts.  Id. at 840.  A clear failure by the trial
court to analyze or apply the law correctly constitutes an abuse of discretion.  Id.

Availability of Mandamus
            In his mandamus petition, Barrett first asserts that the trial court’s plenary power expired on
September 28, 2003 and therefore its May 12 order is void for lack of subject matter jurisdiction. 
In the alternative, Barrett contends the trial court had no discretion to permit the intervention because
the intervenors admitted they had no justiciable interest in the Wilson lawsuit.
 
Trial Court’s Plenary Power
            A trial court retains plenary power for thirty days after signing a final judgment absent the
filing of a motion for new trial or other post-trial motion challenging the judgment.  Tex. R. Civ. P. 
329b(d), (e), (g).  A final judgment is one that finally disposes of all remaining parties and claims,
based on the record in the case.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).  
            Orders issued after the expiration of a trial court’s plenary power are void for lack of subject
matter jurisdiction.  State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).  Barrett asserts
that the August 29, 2003 judgment disposed of all remaining parties and claims in the Wilson
lawsuit.  He also points out that no party filed any post-trial motion that extended the trial court’s
plenary power.  Therefore, Barrett contends, the trial court’s plenary power expired September 29,
2003.  Consequently, he concludes that the trial court had no jurisdiction to sign the May 12 order. 
            “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.  A petition in intervention must
generally be made before judgment is rendered.  Citizens State Bank v. Caney Inv., 746 SW.2d 477,
478 (Tex. 1988); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984).  If filed after
judgment, a petition in intervention may not be considered unless and until the judgment has been
set aside.  White, 682 S.W.2d at 252.  
            Where the petition is filed before judgment, the intervenor becomes a party for all purposes
unless the trial court strikes the intervention. See Brook v. Brook, 865 S.W.2d 166, 172 (Tex. App.–
Corpus Christi 1993), aff’d, 881 S.W.2d 297 (Tex. 1994).  Consequently, a petition in intervention
filed before judgment injects a party into a lawsuit who must be disposed of before a judgment can
become final.  Litoff v. Jackson, 742 S.W.2d 788, 789 (Tex. App.–San Antonio 1987, no writ). 
Where the petition is filed after judgment, however, the intervenor does not become a party on the
date of filing.  See State and County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex.
App.–Austin 1996, no writ).  Moreover, filing a petition in intervention after judgment does not
extend the trial court’s plenary power.  See id.; see also Tex. R. Civ. P. 329b(e), (g) (motion for new
trial or motion to modify, correct, or reform judgment extends trial court’s plenary power).  In that
instance, an order setting aside the judgment or granting the petition in intervention that is not signed
within thirty days after the date of judgment is void.  Kelly, 915 S.W.2d at 227.
            The record filed in this proceeding reveals that the petition in intervention was filed at 10:15
a.m. on August 29, 2003.  However, the record does not indicate whether the August 29 judgment
had been signed at that time.  Without this information, we cannot say that the August 29 judgment
disposed of all the remaining parties in the Wilson lawsuit or that the trial court’s plenary power
expired on September 28, 2003 as Barrett contends.  Therefore, Barrett has not shown that the
May 12 order is void.  
Trial Court’s Discretion to Permit Intervention
            The trial court has broad discretion in ruling on a motion to strike intervention.  Guaranty
Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).  However, even
if we assume the trial court’s ruling constitutes an abuse of discretion, we cannot agree with Barrett’s
assertion that he has no adequate remedy by appeal.
            Ordinarily, an order denying a motion to strike a plea in intervention is not a final order.  E.g.,
Jani-King, Inc. v. Yates, 965 S.W.2d 665, 666-67 (Tex. App.–Houston [14th Dist.] 1998, no pet.);
Southwestern Bell Tel. Co. v. Public Util. Comm’n, 615 S.W.2d 947, 952 (Tex. App.–San
Antonio), writ ref’d n.r.e. per curiam, 622 S.W.2d 82 (Tex. 1981).  This is because the order does
not dispose of either the parties or the issues presented in the lawsuit.  Yates, 965 S.W.2d at 667. 
As such, an order denying a motion to strike is not immediately appealable because appellate
jurisdiction generally exists only in cases in which a final judgment has been signed.  Id. at 666
(citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992)).  Interlocutory appeals are
permissible only as provided by statute, and no interlocutory appeal is available for such an order. 
See Yates, 965 S.W.2d at 666-67 (citations omitted).  However, a severance produces a different
result.  See Tex. R. Civ. P. 41 (“Any claim against a party may be severed and proceeded with
separately.”).
            A severance splits a single lawsuit into two or more independent lawsuits with each action
resulting in a final appealable judgment.  Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697
S.W.2d 381, 383 (Tex. 1985).  As such, a severed action becomes a different action.  In re E.I.
duPont de Nemours & Co., 92 S.W.3d 517, 523 (Tex. 2002).  Thus, when the trial court severed
“the claims and causes of action of Krystal Derrick and Maxwell Derrick, individually and as next
friends of Cameron Derrick, a minor, . . . from [the Wilson lawsuit],” those claims became a separate
action, distinct from the Wilson lawsuit.  See id.; Van Dyke, 697 S.W.2d at 383.  The August 29
judgment then became a final appealable judgment.  See Farmer v. Ben E. Keith Co., 907 S.W.2d
495, 496 (Tex. 1995).  The trial court’s previous interlocutory orders, including the order denying
Barrett’s motion to strike, were then merged into and made final by the judgment.  See In re
Romero, 956 S.W.2d 659, 660 (Tex. App.–San Antonio 1997, orig. proceeding).  
            Barrett was a party to the August 29 judgment.  Therefore, his avenue for challenging the trial
court’s order denying his motion to strike is a direct appeal.  See In re Hoover, Bax & Slovacek,
L.L.P., 6 S.W.3d 646, 650 (Tex. App.–El Paso 1999, orig. proceeding).  A mandamus proceeding
is not to be used as a substitute for an ordinary appeal.  Hooks v. Fourth Court of Appeals, 808
S.W.2d 56, 59-60 (Tex. 1991) (orig. proceeding). 

Conclusion
            Barrett has not shown that the May 12 order is void.  Therefore, he is not entitled to
mandamus relief absent a showing that the trial court abused its discretion and that he has no
adequate remedy by appeal.  We have assumed, for purposes of analysis, that the trial court’s May 12
order constitutes an abuse of discretion.  However, Barrett has not shown that appeal is an inadequate
remedy.  Accordingly, we deny his petition for writ of mandamus.  We also deny his petition for
emergency relief as moot.  


                                                                                                     DIANE DEVASTO 
                                                                                                              Justice


Opinion delivered September 30, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.



(PUBLISH)
