in Re: International Marine, Llc

• Court: Court of Appeals of Texas
• Decided: May 25, 2010
• Docket: 13-10-00195-CV
• Status: Published

Opinion

NUMBER 13-10-00195-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE INTERNATIONAL MARINE, LLC

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Vela ⁽¹⁾

Relator, International Marine, LLC, filed a petition for writ of mandamus in the above cause on April 7, 2010, alleging that the respondent, the Honorable Janet Leal, Presiding Judge of the 103rd District Court of Cameron County, Texas, abused her discretion by denying relator's motions to strike the pleas in intervention of the real parties in interest. ⁽²⁾ The Court requested and received a response to the petition for writ of mandamus from the real parties in interest, and has further received a reply to the response from International Marine. For the reasons stated herein, we deny the petition for writ of mandamus.

I. Background

The underlying lawsuit is a personal injury suit brought against relator by its employees pursuant to 46 U.S.C. § 688, ⁽³⁾ which is commonly known as the "Jones Act," general maritime law, and the common law. One of relator's employees, Jose Loya, initially filed suit against relator in trial court cause number 2008-11-6210-D in the 103rd District Court of Cameron County, Texas on November 18, 2008. On or about January 28, 2009, sixteen other employees filed a petition for intervention in this pending cause, and subsequently, by four other petitions in intervention, seven other employees joined suit. The petitions in intervention provide, inter alia:

Mr. Jose Loya has previously filed a lawsuit against International Marine pursuant to 46 U.S.C. § 688, which is commonly known as the "Jones Act," as well as pursuant to general maritime law and the common law. Mr. Loya alleges that he suffered serious and permanent injuries while in the course and scope of his employment with Defendant. Following his injury, International Marine coerced him into signing a document purporting to be a "release" of his claims. However, International Marine's conduct in procuring the alleged "release" violated the well-established standards that apply to seaman releases under the Jones Act, general maritime law, and common decency.

Based on information and belief, International Marine had a conscious, intentional process in place, at the very highest levels of the company, whereby injured workers (and their co-workers) were told that their salary and/or bonuses would be negatively affected if they were injured on the job or reported being injured on the job. International Marine also consciously and intentionally failed to provide its workers with appropriate medical or legal advice and counsel after suffering injury (contrary to the requirements of the Jones Act and general maritime law), in fact giving its workers advice contrary to the applicable law, and misled and coerced its injured workers into signing purported releases while the injured workers were in an extremely vulnerable state.

. . . .

All of the intervenors have a justiciable interest in the lawsuit because, like Mr. Loya and other injured workers, International Marine attempted to discourage these Intervenors from filing a lawsuit or otherwise exercising their legal rights, failed to provide them with appropriate and independent legal and medical advice, gave them advice contrary to the applicable law, and misled and coerced them into signing purported releases while they were in a vulnerable state. None of the purported releases comply with the applicable law, and International Marine's corporate policy and conduct in this regard will be an issue as to Plaintiff Loya and all other Interveners in this case.

Like Loya, Intervenors bring their cases under the Jones Act, maritime law, and the common law both for the injuries they sustained and as a result of International Marine's conduct in obtaining the purported releases. . . . ⁽⁴⁾

International Marine filed motions to strike the interventions, arguing, in part, that the intervenors' claims arose from separate transactions and occurrences because their physical injuries all occurred on different dates and were incurred in different ways. The trial court heard arguments on the motions to strike on October 29, 2009. The trial court denied the motions to strike and, according to the petition for writ of mandamus, stayed all proceedings pertaining to the intervenors pending a ruling from this Court on whether intervention is proper.

This original proceeding ensued. Relator contends that the trial court abused its discretion in denying the motions to strike because the intervenors failed to individually establish: (1) a justiciable interest in Loya's claim; (2) that the claims arise from the same transaction or occurrence and have a common question of law or fact with the original claim brought by Loya; and (3) that venue is proper in Cameron County, Texas.

II. Standard of Review

Mandamus is an "extraordinary" remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show that the trial court could "reasonably have reached only one decision." Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (quoting Walker, 827 S.W.2d at 840).

Historically, mandamus was treated as an extraordinary writ that would issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker, 827 S.W.2d at 840. Now, in some extraordinary cases, whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of the costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275 S.W.3d at 462. "An appellate remedy is 'adequate' when any benefits to mandamus review are outweighed by the detriments." In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. According to the Texas Supreme Court:

Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.

Id. at 136.

III. Intervention

Intervention is governed by Texas Rule of Civil Procedure 60. See Tex. R. Civ. P. 60; In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 n.5 (Tex. 2006) (orig. proceeding). This rule provides that "[a]ny party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party." See Tex. R. Civ. P. 60. The rule authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right:

Because intervention is allowed as a matter of right, the "justiciable interest" requirement is of paramount importance: it defines the category of non-parties who may, without consultation with or permission from the original parties or the court, interject their interests into a pending suit to which the interveners have not been invited.

In re Union Carbide Corp., 273 S.W.3d 152, 154-55 (Tex. 2008) (orig. proceeding); Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).

If any party to the pending suit moves to strike the intervention, the intervenors have the burden to show a justiciable interest in the pending suit. See In re Union Carbide Corp., 273 S.W.3d at 154-55; Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982). The interest asserted by the intervenor may be legal or equitable. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Mendez, 626 S.W.2d at 499; Gracida v. Tagle, 946 S.W.2d 504, 506 (Tex. App.-Corpus Christi 1997, orig. proceeding); see Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.-Houston [14th Dist.] 2004, no pet.). A party has a justiciable interest in a lawsuit, and thus a right to intervene, when its interests will be affected by the litigation. Pettus v. Pettus, 237 S.W.3d 405, 420 (Tex. App.-Fort Worth 2007, pet. denied); Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.-Fort Worth 2003, no pet.); Intermarque Auto. Prods., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.-Texarkana 2000, no pet.). However, the interest must be more than a mere contingent or remote interest. Pettus, 237 S.W.3d at 420; Law Offices of Windle Turley, P.C., 109 S.W.3d at 70; Intermarque Auto. Prods., Inc., 21 S.W.3d at 549.

In order to constitute a justiciable interest, "the intervenor's interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought" in the original suit. In re Union Carbide Corp., 273 S.W.3d at 155 (quoting Union King v. Olds, 71 Tex. 729, 12 S.W. 65, 65 (1888)). In other words, a party may intervene if the intervenor could have "brought the [pending] action, or any part thereof, in his own name." Guar. Fed. Sav. Bank, 793 S.W.2d at 657.

Courts have considerable discretion in determining whether an intervention should be struck. In re Lumbermens Mut. Cas. Co., 184 S.W.3d at 722; Guar. Fed. Sav. Bank, 793 S.W.2d at 657. It is an abuse of discretion to strike a plea in intervention if: (1) the intervenor could have brought the same action, or any part thereof, in its own name; (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. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Pettus, 237 S.W.3d at 420; Law Offices of Windle Turley, P.C., 109 S.W.3d at 70; Caprock Inv. Corp. v. FDIC, 17 S.W.3d 707, 710-11 (Tex. App.-Eastland 2000, pet. denied).

In the instant case, the intervenors claim to have met their burden of showing a justiciable interest in Loya's suit based on the argument that International Marine has established a pattern and practice, or conspiracy, of obtaining releases unfairly. Yet, they do not assert that they could have brought any part of Loya's claim. Moreover, it is unclear on the record before us that the intervenors' controversies will be affected or resolved by resolution of the Loya case. See In re Union Carbide Corp., 273 S.W.3d at 155.

IV. Adequate Remedy by Appeal

Even if the trial court's refusal to strike the intervention constitutes an abuse of discretion, we must still turn our attention to whether or not International Marine has an adequate remedy by appeal. Ordinarily, an order denying a motion to strike a plea in intervention is not a final order because the order does not dispose of either the parties or the issues present in the lawsuit. In re Barrett, 149 S.W.3d 275, 279 (Tex. App.-Tyler 2004, orig. proceeding). Accordingly, 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 rendered. Id.; see Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001) (stating generally that a party may appeal only from a final judgment or an interlocutory order specifically made appealable by statute or rule); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008) (listing appealable interlocutory orders).

Under extraordinary circumstances, mandamus may be available to review the trial court's refusal to strike an intervention. See, e.g., In Union Carbide Corp., 273 S.W.3d at 156 (granting mandamus relief where trial court refused to rule on and grant a motion to strike an intervention where the benefits to mandamus review outweighed the detriments, because, inter alia, the initiation of suit by intervention deprived relator of procedural rights afforded to defendants in original actions); In re Helena Chem. Co., 286 S.W.3d 492, 496 (Tex. App.-Corpus Christi 2009, orig. proceeding) (granting mandamus relief where trial court denied a motion to strike an intervention where the relator would suffer "extreme prejudice" otherwise).

As stated previously, in order to obtain mandamus relief, relator must both show that the trial court clearly abused its discretion and the relator lacks an adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.2d at 135-36. This burden is a "heavy" one. See In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). The petition for writ of mandamus filed in this cause fails to mention, reference, or otherwise address the adequacy of relator's remedy by appeal. As succinctly stated by one of our sister courts of appeals in a similar situation, the "petition before us contains no assertions, arguments, or authorities pertaining to a claim of no adequate remedy by appeal." In re Christus Health, 276 S.W.3d 708, 710 (Tex. App.-Houston [1st Dist.] 2008, orig. proceeding). Rather, the arguments and authority in the petition for writ of mandamus before us all concern relator's contention that the trial court abused its discretion.

The burden on relator includes the burden to show that other remedies, including ordinary appeal, are inadequate. Walker, 827 S.W.3d at 840-42; In re Christus Health, 276 S.W.3d at 710; In re William Roberts, 18 S.W.3d 736, 738 (Tex. App.-San Antonio 2000, orig. proceeding). If relator fails to meet this burden, mandamus relief is not warranted. See, e.g., In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.3d 371, 375 (Tex. 1998, orig. proceeding) (denying mandamus relief, in part, because relator "made no showing" that it lacked an adequate remedy by appeal); In re Christus Health, 276 S.W.3d at 710 (denying mandamus relief where relators did not contend that they lacked an adequate remedy by appeal); McLain v. Gregg, 899 S.W.2d 412, 414 (Tex. App.-Amarillo 1995, orig. proceeding) (denying mandamus relief where relators failed to show that they lacked an adequate remedy by appeal). After reviewing the mandamus petition, we conclude that relator has not demonstrated both a clear abuse of discretion and the lack of an adequate remedy by appeal.

V. Conclusion

The Court, having examined and fully considered the petition for writ of mandamus and response thereto, is of the opinion that relator has not shown itself entitled to the relief sought. Accordingly, the petition for writ of mandamus and the motion for emergency stay, which was previously carried with the case, are DENIED. See Tex. R. App. P. 52.8(a).

ROSE VELA

Justice

Delivered and filed the 25th

day of May, 2010.

1.

See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).

2. The intervenors in the underlying lawsuit, who are the real parties in interest herein, are: Scott Place, Curtis Johnson, Shane Lawson, Travis McDowell, Michael Huckaba, Nicholas Verdin, Howard Leonard, Troy Richardson, Michael McKinley, Trent Rodrigue, Ralphy Warden II, Leo Bailey, Joseph Stern, Jamie Danos, John Clemons, William Collins, Joseph Hebert, Troy Premeaux, Heath Carmichael, Jesse Eady, Todd Wells, Phillip Odegaard, and Eric Spot.

3. The pleadings herein reference the Jones Act as it was formerly codified in 46 U.S.C. § 688. The Jones Act was re-codified in 2006. See Pub. L. No. 109-304, § 6(c), 120 Stat. 1510 (2006); 46 U.S.C., 30104 (2006) (formerly codified at 46 U.S.C. app., 688).

4. These assertions are taken from the "Fifth Amended Petition in Intervention and Request for Trial by Jury," filed by the intervenors on or about September 8, 2009.