      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00069-CV



                                    Lawrence Black, Appellant

                                                   v.

                      Franklin Service Stations, Inc., d/b/a J & J Towing;
                         and 7-Eleven Convenience Stores, Appellees


            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-10-011245, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                This case arises out of the towing of a truck from the parking lot of a 7-Eleven

convenience store. Because appellant Lawrence Black lacks standing to bring this appeal, we must

dismiss for want of jurisdiction. See Tex. R. App. P. 42.3(a).

                In October 2010, the truck Black was driving broke down. Black pushed the truck

into the 7-Eleven’s parking lot and, after attempts to restart it failed, left it in the lot. Black asked

a woman who appeared to be the store manager not to tow the truck, saying he would have it towed

or repaired as soon as he could. The woman nodded, which Black took as consent to leave the truck.

About five days later, the truck was still in the parking lot, and 7-Eleven had it towed. Althea

Zuniga, Black’s fiancé and registered owner of the truck, filed a claim against appellees for unlawful

towing and storage in justice court, which ruled in her favor. Appellees appealed to the county court

at law, which signed a judgment in their favor on December 9, 2010. Zuniga filed a number of post-
judgment motions, including a motion for new trial, which the county court denied by written order

on January 25, 2011. On January 31, 2011, Black filed a petition in intervention and affidavit of

indigence. Also on January 31, Zuniga filed a motion to join Black as a plaintiff. Appellees did

not seek to strike Black’s intervention attempt, but in their contest to Black’s affidavit of indigence,

they asserted in part that “Lawrence Black is not a party to the above-referenced lawsuit.” The

county court overruled appellees’ contest to Black’s affidavit without addressing whether Black

should be allowed to intervene as a party. On February 7, Black filed a notice of appeal; Zuniga

did not appeal.

                  On appeal, appellees have filed a motion to dismiss, arguing that Black lacks standing

and therefore cannot bring this appeal. We have reviewed the cases governing when a party may

intervene and agree that we must dismiss the appeal for want of jurisdiction.

                  Courts have consistently held that a motion to intervene filed after final judgment

is rendered is barred as a matter of law.1 See Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31,

36 (Tex. 2008); Citizens State Bank v. Caney Investments, 746 S.W.2d 477, 478 (Tex. 1988);

First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984); Comal County Rural High School Dist.

v. Nelson, 314 S.W.2d 956, 957 (Tex. 1958); Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d 266,




       1
          The only exception we have found to that rule arises when a subrogee’s interests have been
represented adequately throughout a suit but are suddenly abandoned post-judgment. Texas Mut. Ins.
Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008). In such a case, the subrogee may intervene post-
judgment or on appeal “ if there is neither unnecessary delay nor prejudice to the existing parties.”
Id.; see Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 276 (Tex. App.—El Paso 2010, no pet.).
That exception does not apply to this appeal, however, because there is no question of a subrogee
suddenly losing representation of its interests. See Olivas, 323 S.W.3d at 277-78 (discussing why
insurance company should not be allowed to intervene post-judgment).

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276 (Tex. App.—El Paso 2010, no pet.); Worker’s Comp. Div. v. de la Zerda, No. 03-96-00415-

CV, 1997 Tex. App. LEXIS 4671, at *2-3 (Tex. App.—Austin Aug. 28, 1997, no pet.) (not

designated for publication); State & County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224,

227 (Tex. App.—Austin 1996, no writ); Diaz v. Attorney General, 827 S.W.2d 19, 22

(Tex. App.—Corpus Christi 1992, no writ); Central Mut. Ins. Co. v. Dunker, 799 S.W.2d 334, 336

(Tex. App.—Houston [14th Dist.] 1990, writ denied); Highlands Ins. Co. v. Lumberman’s Mut. Cas.

Co., 794 S.W.2d 600, 603-04 (Tex. App.—Austin 1990, no writ).

               Black testified before the county court that he bought the truck from his employer and

that he was the primary user of the truck, but that Zuniga was the registered owner. The underlying

suit, in both justice and county courts, was in Zuniga’s name, and Black was not named as a party

in any of the pleadings. Although Black was aware of the lawsuit and, in fact, testified before the

county court, he did not seek to intervene until almost two months after the trial court signed its

judgment, too late to join the suit as a party. See Highlands Ins. Co., 794 S.W.2d at 603-04.

               We disagree with Black that this is a case of “virtual representation,” as explained

in In re Lumberman’s Mutual Casualty Co., 184 S.W.3d 718, 725 (Tex. 2006). “An appellant is a

deemed party under virtual representation when: ‘(1) it is bound by the judgment; (2) its privity

of estate, title, or interest appears from the record; and (3) there is an identity of interest between

the appellant and a party to the judgment.’” City of San Benito v. Rio Grande Valley Gas Co.,

109 S.W.3d 750, 754-55 (Tex. 2003) (quoting Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers

Ass’n, 1 S.W.3d 108, 110 (Tex. 1999)). Although Black testified that he had bought the truck from

his employer, he also testified that the truck was registered in Zuniga’s name. The record does not



                                                  3
reflect that Black will be bound by the county court’s judgment or that he and Zuniga have an

“identity of interest.” See id.

                Although appellees never filed a motion seeking to strike the intervention and instead

simply asserted in their contests to Black’s affidavit of indigence that Black was not a party, our

sister court in Dunker disagreed with a would-be intervenor’s argument that it should be considered

a proper party “in the absence of being ‘stricken out’ by the court.” 799 S.W.2d at 336. The Dunker

court held, “Where final judgment has been rendered, a plea in intervention comes too late and may

not be considered unless and until the trial court first sets aside its final judgment.” Id. Because the

intervenor “never became a party of record” in that case, the appeal was dismissed. Id.

                We have a similar situation in this case. Black filed his affidavit well after the

trial court signed its judgment and even after it had signed an order denying Zuniga’s motion for

new trial. The county court did not set aside its judgment, and the Ledbetter exception does not

apply to Black’s attempt to intervene. See 251 S.W.3d at 36. As a matter of law, Black’s attempt

to intervene post-judgment was barred and ineffective. See Diaz, 827 S.W.2d at 22; Dunker,

799 S.W.2d at 336. We grant appellees’ motion and dismiss the appeal for want of jurisdiction. See

Dunker, 799 S.W.2d at 336.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Dismissed for Want of Jurisdiction

Filed: September 30, 2011

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