Benson v. Anderson

899 S.W.2d 272, 1995 WL 126506
CourtCourt of Appeals of Texas
DecidedApril 20, 1995
DocketC14-94-00054-CV
StatusPublished
Cited by8 cases

This text of 899 S.W.2d 272 (Benson v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benson v. Anderson, 899 S.W.2d 272, 1995 WL 126506 (Tex. Ct. App. 1995).

Opinion

OPINION

MURPHY, Justice.

This appeal arises from a decision by the trial court to strike appellants as intervenors in a cause of action between the two appel-lees. Appellants bring nine points of error, challenging the trial court’s decision to strike their intervention, the trial court’s refusal to file findings of facts and conclusions of law, and seven evidentiary findings which form the basis of the judgment. We affirm.

Appellants and appellee Orín Anderson (“Anderson”) were co-owners of an airplane which was insured by appellee Southern General Insurance Company (“Southern General”). After the plane was destroyed in a crash, Southern General issued a draft made payable to appellants, Anderson, and the loss payee, Provident Savings Bank, to cover the loss of the plane’s hull. Because of a dispute among the co-owners, the check was never endorsed, and the loss payee and co-owners remained unpaid. To facilitate payment, appellants requested that Southern General issue two separate cheeks, one draft payable to the Bank, and the other draft payable to appellants only and not Anderson. Southern General agreed to issue the two checks, but required appellants to execute a hold harmless and indemnity agreement in favor of Southern General should Anderson ever file suit against Southern General.

Anderson learned of the omission of his name from the second draft after the fact, through correspondence from Southern General. He subsequently sued Southern General for breach of contract, bad faith, and violations of the Deceptive Trade and Practices Act and the Insurance Code. Before trial, Anderson moved for summary judgment, or in the alternative, partial summary judgment. The trial court granted partial summary judgment in his favor on the breach of contract claim.

Soon thereafter, the trial court granted Southern General leave to file a third party action against appellants based on the indemnity agreement. A few days before trial, appellants sought a continuance, so Anderson moved to have the indemnity claim severed into a separate cause of action. The trial court severed the indemnity claim 1 , and subsequently denied appellants’ request for reconsideration on the severance.

Appellants then filed a Plea in Intervention and Intervenors’ Original Answer and a Motion for Summary Judgment in appellees’ insurance suit. Two days later, appellants filed in the same suit an Intervenors’ Amended Original Answer consisting of a general denial and nine affirmative defenses against appellees. Anderson moved to strike appellants as intervenors from the insurance suit. At the hearing on Anderson’s motion to strike the intervention, appellants withdrew their motion for summary judgment. The trial court granted Anderson’s motion and struck appellants from the insurance suit. After a bench trial in the insurance suit, the trial court rendered judgment for Anderson against Southern General.

In their first point of error, appellants allege that the trial court erroneously granted Anderson’s motion to strike appellants’ intervention from the insurance suit. “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.CivP. 60; Schwartz v. Taheny, 846 S.W.2d 621, 622 (Tex.App.—Houston [14th Dist.] 1993, writ denied). A party has the right to intervene if it could have brought the same action or any part thereof in its own name, or if the action would have been brought against it, it would be able to defeat recovery or some part thereof. Guaranty Federal v. Horseshoe Operating Co., 793 S.W.2d 662, 657 (Tex. 1990). Although the trial court has broad discretion in determining whether an intervention should be stricken, the court abuses its discretion in striking the plea when (1) *275 the intervenor meets the above test; (2) the intervention will not complicate the case by an excessive multiplication of the issues; and (3) the intervention is almost essential to effectively protect the intervenor’s interest. Id.

Under the facts alleged in appellants’ Plea in Intervention and Original Answer, and in their Intervenors’ First Amended Original Answer, appellants raise several affirmative defenses, including a limitations defense, that likely would have defeated Anderson’s cause of action against Southern General. However, the intervention would undoubtedly complicate the case by an excessive multiplication of the issues. At the time appellants intervened, the trial court had already severed Southern General’s indemnity claim against appellants. Although appellants claimed at the hearing on the motion to strike the intervention that their intervention raised different issues than the indemnity claim, their plea and amended original answer reveal otherwise. Among the affirmative defenses raised by appellants, four are directed solely against Southern General and concern the indemnity claim. The effect of permitting appellants to intervene and defend the indemnity claim prior to the trial on the severed cause of action would be to duplicate the issues before the court.

Appellants also fail to show that their intervention was essential to protect their interest in the insurance suit because Southern General raised the very same affirmative defenses before the trial court as appellants previously raised in their Motion for Summary Judgment. Nevertheless, appellants contend that the manner in which Southern General conducted its defense in the insurance suit suggests that appellees had entered into a friendly judgment. See Metromedia Long Distance, Inc. v. Hughes, 810 S.W.2d 494 (Tex.App. — San Antonio 1991, writ denied). However, unlike the appellant in Me-tromedia, appellants present no proof of a friendly judgment except that Southern General engaged in limited discovery and that the bench trial was very brief. Appellants fail to show that the trial court abused its discretion in striking appellants’ intervention. Appellants’ first point of error is overruled.

In their second point of error, appellants contend that the trial court erred in refusing to file findings of fact and conclusions of law upon their proper request. The Texas Rules of Civil Procedure allow any party to a bench trial to ask the trial court “to state in writing its findings of fact and conclusions of law.” TexR.Civ.P. 296. Appellants made a timely and proper request to the trial court for findings of fact and conclusions of law, but the court denied their request with the notation “no standing.”

Appellants contend that they are a party to the lawsuit under the doctrine of virtual representation because their alleged relationship as indemnitor to Southern General binds them as a privy to the judgment in appellees’ insurance suit. See Mobil Exploration & Prod. U.S., Inc. v. McDonald, 810 S.W.2d 887, 889 (Tex.App.—Beaumont 1991, writ denied). The doctrine of virtual representation is one means by which a person, who is not a party of record in a particular case, may perfect an appeal. Id.

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899 S.W.2d 272, 1995 WL 126506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-anderson-texapp-1995.