Express-News Corp. v. Spears

766 S.W.2d 885, 1989 Tex. App. LEXIS 2060, 1989 WL 34387
CourtCourt of Appeals of Texas
DecidedMarch 15, 1989
Docket04-88-00526-CV
StatusPublished
Cited by14 cases

This text of 766 S.W.2d 885 (Express-News Corp. v. Spears) 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
Express-News Corp. v. Spears, 766 S.W.2d 885, 1989 Tex. App. LEXIS 2060, 1989 WL 34387 (Tex. Ct. App. 1989).

Opinions

OPINION

REEVES, Justice.

This is an original mandamus proceeding which arises from relators' claim that their right to intervene in a civil lawsuit was denied by the trial court, following the sealing of the record and of all papers on file in the cause of action. Relators, none of whom was a party to the lawsuit below, include the Express-News Corporation, a Texas corporation which publishes the San Antonio Express-News in San Antonio; Kym Fox, a reporter for the newspaper and a taxpayer in Bexar County; and Jerome P. Curry, a taxpayer in Bexar County and a contributor to the Roman Catholic Archdiocese of San Antonio.

The lawsuit for which intervention is sought was a civil action for damages sustained by two minor children, their parents and brother; the children were allegedly fondled by Federico Fernandez, a Franciscan Friar, who was indicted on two counts of indecency with a child. The remaining defendants in the civil lawsuit, who are real parties in interest in this mandamus action, in addition to the priest, include the Franciscan Friars of the Chicago-St. Louis Province of the Sacred Heart and the Roman Catholic Archdiocese of San Antonio. The lawsuit was originally filed as Cause No. 88-CI-07960 on May 4, 1988, more than a month after the indictments in the criminal cases were handed down by the grand jury. The litigation was concluded by a judgment signed on September 16, 1988. Contemporaneous with the signing of the judgment, the trial court ordered all records and pleadings in the case sealed.

Relators request that this Court grant them a writ of mandamus directing respondent to vacate the order striking the rela-tors’ plea in intervention and further directing respondent to enter a new order denying the Franciscan Friars’ motion to strike. Relators further ask this Court to direct the trial court to hold a hearing to allow them to challenge the sealing order, or to vacate the sealing order in Cause No. 88-CI-07960.

At issue in the instant proceeding is whether the trial court abused its discretion in granting the motion to strike the plea in intervention and in denying the rela-tors’ request to intervene after judgment was signed, but while the trial court retained plenary jurisdiction over the cause. We hold the trial court acted properly in granting the motion to strike the plea in intervention and in denying the intervention, and, accordingly, we deny the writ of mandamus.

The real parties in interest urge, and the relators acknowledge, that in Comal County Rural High School District v. Nelson, 158 Tex. 564, 314 S.W.2d 956 (1958), the Supreme Court of Texas held that a post-judgment motion to intervene was untimely, and found that:

No plea of intervention could be filed in the cause until and unless the district judge set aside his order of dismissal and this he refused to do. We, therefore, are of the opinion that Rule 60, T.R.C.P., is inapplicable. Under the circumstances we conclude that the Court of Civil Appeals was without power to set aside the trial court’s judgment of dismissal.

Id. 314 S.W.2d at 957. TEX.R.CIV.P. 60, provides in pertinent part that:

Any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party....

In the case before this Court, relators filed their “Plea in Intervention and Motion in Relation to Sealed Court Records” on September 28, 1988, with hearing set for October 5, 1988. On the date of the hearing, a pleading was filed by the Franciscan Friars, entitled “Motion to Strike Plea in Intervention and Motion in Relation to Sealed Court Records,” in which they asserted that the authority to permit intervention in the cause lapsed immediately upon entry of the final judgment on September 16, 1988. Moreover, the motion urged that no modification, reform, or correction of or relief from the judgment had been sought, pursuant to TEX.R.CIV.P. [887]*887329b, and, therefore, the attempted intervention was untimely under existing case authority. While relators could have objected to a hearing on this motion on grounds of lack of sufficient notice, they instead waived the requisite notice and proceeded to have the trial court hear both their plea in intervention, as well as the motion to strike the plea. At the conclusion of the hearing, the trial court denied the plea in intervention and granted the motion of the Franciscan Friars to strike the plea; both orders were signed by the trial court on October 13, 1988.

Relators argue that Comal County, and other decisions cited by the real parties in interest as authority for denying the intervention, involved factual circumstances in which the party attempting intervention had an interest in the subject matter of the litigation prior to the time judgment was signed. Relators suggest that their own interest in the subject matter of this proceeding did not arise until after the judgment was signed. Relators contend also that in contrast to those cases cited by the real parties in interest, the instant circumstances do not involve any attempt to modify, reform, amend, or change the outcome of the litigation; their only interest is one in which they contend the right of public access to judicial proceedings is adversely affected by the trial court’s decision to permit the records to be sealed after judgment. In St. Paul Insurance Co. v. Rahn, 586 S.W.2d 701 (Tex.Civ.App.—Corpus Christi 1979, no writ), one appellate court discussed the right to intervention in the following language:

Intervention is authorized by Rule 60. The right to intervene is given in furtherance of a speedy disposition of suits and to prevent multiplicity of actions. Mulcahy v. Houston Steel Drum Co., 402 S.W.2d 817 (Tex.Civ.App.—Austin 1966, no writ). The intervenor bears the burden to show a justiciable interest, legal or equitable, in the lawsuit, and the trial court has wide discretion in judging the sufficiency of the opposing party’s motion to dismiss the petition in intervention. Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App.—Corpus Christi 1976, no writ); Armstrong v. Tidelands Life Insurance Co., 466 S.W.2d 407, (Tex.Civ.App.—Corpus Christi 1971, no writ); Mulcahy v. Houston Steel Drum Company, supra. But, where the petition in intervention is filed after judgment, the Supreme Court [in Comal County] has held that Rule 60 does not apply....

Id. at 703 (emphasis added). The real parties in interest have responded to relators’ arguments by asserting that mandamus should be denied because of the procedural untimeliness of the relators’ plea in intervention following judgment. They also assert the lack of standing on the part of relators to file their motion to vacate the judgment subsequent to the trial court’s denial of their plea in intervention. The real parties in interest urge that relators’ proper remedy would have been to appeal the denial of the intervention. See Times Herald Printing Co. v. Jones,

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Express-News Corp. v. Spears
766 S.W.2d 885 (Court of Appeals of Texas, 1989)

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Bluebook (online)
766 S.W.2d 885, 1989 Tex. App. LEXIS 2060, 1989 WL 34387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/express-news-corp-v-spears-texapp-1989.