Affirmed and Opinion filed August 23, 2018.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00946-CV

                           JESUS REYES, Appellant
                                        V.
JOAQUIN GUANDIQUE AND PAUL TRANSPORTATION, INC., Appellees

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-04124

                                OPINION
      In this vehicular-accident case, one driver timely filed suit against another
and that driver’s employer seeking to recover personal-injury damages allegedly
sustained as a result of the defendants’ alleged negligence. The plaintiff’s son, a
passenger in the vehicle the plaintiff was driving, intervened after the statute of
limitations had run, seeking to recover personal-injury damages he allegedly
sustained as a result of the defendants’ alleged negligence. The trial court granted
the defendants’ summary-judgment motion against the intervenor based on the
statute of limitations.   On appeal, the intervenor asserts that the statute of
limitations does not apply to claims asserted by an intervenor and that, even if the
statute applied, courts should treat the intervenor’s claims as having been filed
when the plaintiff filed suit. We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      While driving a vehicle on April 12, 2012, Hilario Cortez collided with a
vehicle driven by appellee/defendant Joaquin Guandique while Guandique
allegedly was in the course and scope of his employment with appellee/defendant
Paul Transportation, Inc. Cortez’s son, appellant/intervenor Jesus Reyes, was a
passenger in the vehicle Cortez was driving at the time of the collision.

      Cortez filed suit against Guandique and Paul Transportation, Inc.
(collectively the “Paul Parties”) on January 29, 2014, seeking to recover personal-
injury damages he allegedly suffered as a result of the defendants’ alleged
negligence. Cortez did not purport to assert any claim belonging to Reyes or based
on personal-injury damages to Reyes.

      Nearly twenty months later, on August 21, 2015, Reyes filed a petition in
intervention against the Paul Parties seeking to recover personal-injury damages
Reyes allegedly sustained as a result of the Paul Parties’ alleged negligence. Reyes
did not purport to assert any claim belonging to Cortez or based on personal-injury
damages to Cortez.

      The Paul Parties filed a motion for traditional summary judgment on the
ground that the two-year statute of limitations in section 16.003(a) of the Texas
Civil Practice and Remedies Code barred Reyes’s negligence claims against the
Paul Parties.


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       Reyes opposed the summary-judgment motion asserting that (1) as a matter
of law no statute of limitations applies to claims asserted in an intervention; (2) a
party may intervene in a lawsuit at any time, and there is no deadline for filing an
intervention; (3) Reyes had a right to intervene in this lawsuit because he had a
justiciable interest in the suit filed by Cortez; (4) Reyes’s intervention was timely,
and the Paul Parties did not show that the intervention would cause unnecessary
delay or prejudice the parties; and (5) because Cortez filed this suit within the
applicable limitations period, the main purpose of the statute of limitations—to
allow defendants to be aware of and investigate the incident in question—was
satisfied.

       The trial court granted the Paul Parties’ summary-judgment motion and the
trial court’s order later became final when the trial court granted Cortez’s motion
to dismiss with prejudice his claims against the Paul Parties.

                             II. ISSUES AND ANALYSIS

       In two appellate issues, Reyes asserts that he has a justiciable interest in
Cortez’s lawsuit and that the trial court erred in granting summary judgment
because the statute of limitations does not bar Reyes’s negligence claims.

       In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s
summary judgment, we consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.

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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

A.    As a matter of law, does no statute of limitations apply to claims asserted
      in an intervention?
       Reyes asserts that a party may intervene in a lawsuit at any time. According
to Reyes, the law imposes no deadline for filing an intervention. Reyes also asserts
that as a matter of law, the statute of limitations does not apply to claims asserted
in an intervention. Reyes has not cited and research has not revealed any Texas
case holding that as a matter of law the statute of limitations does not apply to
claims asserted in an intervention. Though a trial court may strike an intervention
as untimely under an analysis not tied to the statute of limitations, the trial court in
today’s case did not strike Reyes’s intervention, and the court’s ability to strike an
intervention as untimely does not mandate the conclusion that no statute of
limitations applies to claims asserted in an intervention.1 See Muller v. Stewart
Title Guar. Co., 525 S.W.3d 859, 873–74 (Tex. App.—Houston [14th Dist.] 2017,
no pet.).

      Reyes cites the Ledbetter case for the proposition that “[t]here is no deadline
for intervention in the Texas Rules of Civil Procedure.” Tex. Mut. Ins. Co. v.
Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008). But the absence of a deadline for
intervention in the rules of civil procedure does not mean that claims asserted in an
intervention escape the application of any statute of limitations. See id. Indeed,


1
 The Paul Parties moved to strike Reyes’s intervention, but the trial court granted the Paul
Parties’ summary-judgment motion without ruling on the Paul Parties’ motion to strike.


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the Supreme Court of Texas has held as a matter of law that the applicable statute
of limitations barred various claims asserted in two interventions. See Exxon Corp.
v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 201–16 (Tex. 2011). The high
court also has applied a statute of limitations to claims asserted in intervention but
found that the statute of limitations did not bar the claims because they related
back to the filing of the lawsuit. See Franks v. Sematech, Inc., 936 S.W.2d 959,
959–60 (Tex. 1997) (per curiam). Even if, as Reyes asserts, a party may intervene
in a lawsuit at any time, the trial court still may strike the intervention for a proper
reason or grant summary judgment dismissing the claims asserted in the
intervention because the statute of limitations bars the claims. See Emerald Oil &
Gas Co., L.C., 348 S.W.3d at 201–16; Texas Commerce Bank, N.A. v. Grizzle, 96
S.W.3d 240, 247, 255–56 (Tex. 2002). A statute of limitations does apply to
claims asserted in an intervention. See Emerald Oil & Gas Co., L.C., 348 S.W.3d
at 201–16; Franks, 936 S.W.2d at 959–60. The Paul Parties correctly asserted that
the two-year statute of limitations in section 16.003(a) of the Texas Civil Practice
and Remedies Code applies to the claims asserted by Reyes in his intervention, and
Reyes does not assert that a different statute of limitations would apply. See Tex.
Civ. Prac. & Rem. Code Ann § 16.003(a) (West, Westlaw through 2017 1st C.S.).

B.   May this court reverse the summary judgment on the ground that
     Cortez and Reyes claim an interest in a single claim against each of the
     Paul Parties?
      When two people claim an interest in a single claim, and one of them timely
files suit, the other’s intervention in the suit outside the limitations period to
protect that claimant’s interest relates back to the timely filed suit and is not barred
by limitations.   See Franks, 936 S.W.2d at 960–61; Antonov v. Walters, 168
S.W.3d 901, 907 (Tex. App.—Fort Worth 2005, pet. denied). On appeal, Reyes
appears to assert that the claims he asserted in the intervention related back to

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Cortez’s filing of the lawsuit because Cortez and Reyes claim an interest in a
single claim against each of the Paul Parties. Reyes did not raise this argument in
his summary-judgment response, so we cannot reverse the trial court’s summary
judgment on this basis. See City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979); Lopez v. Exxon Mobil Dev. Co., No. 14-16-00826-
CV, 2017 WL 4018359, at *13 (Tex. App.—Houston [14th Dist.] Sept. 12, 2017,
pet. denied) (mem. op.).

      Even if Reyes had raised this argument in his summary-judgment response,
the same result would follow because the record shows that Cortez and Reyes did
not claim an interest in a single claim against each of the Paul Parties. Instead,
Cortez asserted claims based on Cortez’s personal injuries, without purporting to
assert any claim based on personal injury to Reyes, and Reyes asserted claims in
his intervention based on Reyes’s personal injuries, without purporting to assert
any claim based on personal injury to Cortez. Though these alleged personal
injuries purportedly resulted from the same vehicular accident and though Cortez
and Reyes were in the same vehicle, none of these alleged facts would give Cortez
a right to assert Reyes’s personal-injury claims or give Reyes a right to assert
Cortez’s personal-injury claims. Cf. Franks, 936 S.W.2d at 960–61 (holding that a
workers-compensation carrier asserting a subrogation claim asserts a claim
belonging to the employee).

C.   May this court reverse the summary judgment on the ground that
     Reyes’s intervention is a new suit that is different from the claim
     originally pled but is neither based upon nor grows out of a new or
     different occurrence?
      On appeal, Reyes appears to assert that the statute of limitations does not bar
his claims because Reyes’s intervention is a new suit that is different from the
claim originally pled but is not based upon or an outgrowth of a new, distinct, or

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different transaction or occurrence.      Reyes did not raise this argument in his
summary-judgment response, so we cannot reverse the trial court’s summary
judgment on this basis.2 See Clear Creek Basin Auth., 589 S.W.2d at 678; Lopez,
2017 WL 4018359, at *13.

D.    May this court reverse the summary judgment on the ground that
      Reyes’s intervention in Cortez’s suit outside the limitations period
      related back to the date Cortez filed his claims because Reyes has a
      justiciable interest in Cortez’s lawsuit?
      On appeal, Reyes appears to assert that the statute of limitations does not bar
his claims because his intervention in Cortez’s suit outside the limitations period
related back to the date Cortez filed his claims because Reyes has a justiciable
interest in Cortez’s lawsuit. Reyes did not raise this argument in his summary-
judgment response, so we cannot reverse the trial court’s summary judgment on
this basis.3 See Clear Creek Basin Auth., 589 S.W.2d at 678; Lopez, 2017 WL
4018359, at *13.

E.    Did the trial court err in granting summary judgment because the facts
      of this case allegedly would make it an abuse of discretion to strike
      Reyes’s intervention?
      Reyes argues that the trial court erred in granting summary judgment
because his intervention has certain characteristics that allegedly would make it an
abuse of discretion for the trial court to have stricken Reyes’s intervention. But,
the trial court did not strike Reyes’s intervention, and Reyes does not cite any cases
holding that a trial court errs in granting a summary judgment based on the statute
of limitations if the intervention has these characteristics. Reyes has not shown by

2
  Even if Reyes had raised this argument in his summary-judgment response, we still would
conclude that it lacks merit.
3
  Even if Reyes had raised this argument in his summary-judgment response, we still would
conclude that it lacks merit.

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this argument that the trial court erred.

                                  III. CONCLUSION

      Even if, as Reyes asserts, a party may intervene in a lawsuit at any time, the
trial court still may strike the intervention for a proper reason or grant summary
judgment dismissing the claims asserted in the intervention because the statute of
limitations bars the claims. The two-year statute of limitations in section 16.003(a)
of the Texas Civil Practice and Remedies Code applies to the claims asserted by
Reyes in his intervention. Though in parts of his briefing Reyes effectively argues
that it would have been an abuse of discretion for the trial court to have stricken his
intervention, the trial court did not strike his intervention, so we do not review such
a ruling in today’s case. The trial court granted summary judgment based on the
statute of limitations, and denied the relief Reyes requested in his claims. Reyes
has not shown that the trial court erred in doing so. Thus, we overrule Reyes’s two
issues and affirm the trial court’s judgment.




                                            /s/       Kem Thompson Frost
                                                      Chief Justice


Panel consists of Chief Justice Frost and Justices Boyce and Jewell.




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