William H. Berry, Jr. v. Nueces County

• Court: Court of Appeals of Texas
• Decided: May 11, 2006
• Docket: 13-05-00383-CV
• Status: Published

Opinion

NUMBER 13-05-383-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

WILLIAM H. BERRY,                                                 Appellant,

                                           v.

NUECES COUNTY,                                                    Appellee.

             On appeal from the County Court at Law No. 2

                           of Nueces County, Texas.

            DISSENTING MEMORANDUM OPINION

          Before Chief Justice Valdez and Justices Yanez and Castillo

                Dissenting Memorandum Opinion by Justice Castillo

Appellant William H. Berry, Jr. filed a plea in intervention^[1] ostensibly to preserve and protect his claim to attorney fees and expenses under a written contract with a settling party who retained other counsel.  The parties to the underlying suit settled.  After the trial court granted the dismissal order, Berry expanded his intervention petition on grounds that, after actual and constructive  notice of his contingent attorney fee claim,^[2] Nueces County wrongfully paid his attorney fee and expenses interest in the underlying suit to Berry's former client and her current counsel.  The trial court granted Nueces County's plea to the jurisdiction and this appeal ensued.

Concluding that Berry does not have standing to assert a claim against Nueces County because, among others,  it fully paid out all settlement proceeds and is no longer liable to Berry's former client, the majority (1) holds that the trial court lacked subject matter jurisdiction over Berry's claims against Nueces County, (2) vacates the trial court's order on the plea to the jurisdiction, and (3) dismisses the appeal for lack of jurisdiction.  Respectfully, I disagree that Berry lacks standing.  He asserted his claim to attorney fees and expenses, filed his pleading in intervention, and preserved that claim by securing the trial court's order to that effect.  Because Berry's interest in the lawsuit was not recognized by the settlement between Nueces County, his former client and her retained counsel, Berry was entitled to prosecute his live intervention petition.  See Honeycutt v. Billingsley, 992 S.W.2d 570, 584-85 (Tex. App.BHouston [1st Dist.] 1999, pet. denied) (authorizing, as a matter of law,  recovery where settling defendant had actual knowledge of an attorney's interest in the lawsuit).   In this case, by his intervention petition, Berry provided actual notice of his claim based on an enforceable attorney fee contract in place.  To conclude, as the majority does, that Nueces County had no knowledge that Berry might assert a claim against it instead of Thornton, disregards the proceedings at the core of an intervention action, and, in the context of this case, the trial court's order permitting the claim.^[3]   As a matter of law, Berry was authorized to prosecute his claim.  See Billingsley, 992 S.W.2d at 584-85.  By the authorized intervention action, Nueces County had actual knowledge of Berry's claim and circumvention of the claim was at its own peril.  See id.  

I turn to the question of our jurisdiction over this appeal and expressly limit my discussion to the effect of the majority's disposition.^[4]   The majority vacates the trial court's order on the plea to the jurisdiction from which Berry appealed.   The remaining order is the dismissal with prejudice.  That order states:

Order Granting Plaintiff's Agreed Motion to Dismiss with Prejudice

On this day the Court took Plaintiff's Agreed Motion to Dismiss with Prejudice under submission.  By his signature below, Plaintiff Thornton's counsel authorized defense counsel to present this Order to the Court ex parte for the Court's consideration.  Having considered the Motion to Dismiss, the Court determines that it is well‑founded.

It is therefore ORDERED, ADJUDGED and DECREED that Plaintiff's Agreed Motion to Dismiss with Prejudice is GRANTED.   It is further ORDERED, ADJUDGED and DECREED that all pending claims and counter‑claims of any kind or character whatsoever are hereby DISMISSED WITH PREJUDICE.    

Because the order does not affirmatively dispose of Berry's claim for attorney fees,  the order is not final.  See Parks v. Dewitt County Elec. Coop., 112 S.W.3d 157, 162 (Tex. App.BCorpus Christi 2003, no pet.).  Accordingly, we would lack jurisdiction because the trial court's order left in effect by the majority's disposition is not final.  See id. at 165. However, the question of Berry's attorney fee claim is not a perfunctory issue and we must remand for a trial of that live claim.  Id.  

ERRLINDA CASTILLO

Justice

Dissenting Memorandum Opinion delivered

and filed this 11th day of May, 2006.

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^[1]The trial court entered an order granting the intervention "for his claim for reasonable, necessary, customary, and contractual, attorney fees and out of pocket expenses pursuant to his fee agreement."

^[2]In a civil case, we accept as true the facts stated unless another party contradicts them.  See Tex. R. App. P. 38.1(f). 

^[3]See note 1.

^[4]Our initial inquiry is always whether we have jurisdiction over an appeal. Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). We are obligated to determine, sua sponte, our own jurisdiction. Id. (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)). In dismissing this appeal for want of jurisdiction, we must first analyze the claims brought by the parties.  Id.