law-intervention rule and case law | petitions in intervention | intervening in a pending law suit |
INTERVENING IN A PENDING SUIT - APPLICABLE TEXAS RULE
Tex. R. Civ. P. 60 (“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.”).
PETITION IN INTERVENTION
Rule 60 of the Texas Rules of Civil Procedure provides, "Any party may intervene by filing a pleading,
subject to being stricken out by the court for sufficient cause on the motion of a party." TEX. R. CIV. P.
60. We review a trial court's decision to strike a party's intervention under an abuse of discretion
standard. In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006). Although the trial court
has broad discretion in determining whether an intervention should be stricken, it is an abuse of
discretion to strike a plea in intervention if: (1) the intervenor could have brought some or all of the
same action in his own name, or, if the action had been brought against the intervenor, he could have
defeated the action in whole or in part; (2) intervention would not complicate the case by excessive
multiplication of the issues; and (3) intervention is almost essential to protect the intervenor's interest.
Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); Orion Reining
Corp. v. UOP, 259 S.W.3d 749, 777 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).
While the Texas Rules of Civil Procedure do not impose a deadline for intervention, the general rule is
that a party may not intervene after final judgment unless the judgment is set aside. Tex. Mut. Ins. Co. v.
Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008); In re Lumbermens Mut. Cas. Ins. Co., 184 S.W.3d at 725;
State v. Naylor, 330 S.W.3d 434, 438 (Tex. App.-Austin 2011, pet. filed).
To successfully intervene post-judgment, the plea in intervention must be filed and the judgment must
be set aside within thirty days of the date of judgment. Id. First Alief Bank v. White, 682 S.W.2d 251,
252 (Tex. 1984) (orig. proceeding) (per curiam) (plea in intervention cannot be considered unless
judgment is set aside).
"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. Civ. P. 60. When an intervention is challenged by a party's motion to strike, the
intervenor bears the burden to demonstrate a "justiciable interest" in the pending suit. In re Union Carbine
Corp., 273 S.W.3d 152, 155 (Tex. 2008); Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982); Zeifman v.
Michels, 229 S.W.3d 460, 464 (Tex. App.-Austin 2007, pet. denied). The Texas Supreme Court explained the
"justiciable interest" requirement:
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 intervenors have not been
invited. Thus, the "justiciable interest" requirement protects pending cases from having interlopers disrupt the
proceedings. . . . To constitute a justiciable interest, "[t]he 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 other
words, a party may intervene if the intervenor could have "brought the [pending] action, or any part thereof, in
his own name."
In re Union Carbide Corp., 273 S.W.3d at 154-55 (internal citations omitted) (emphasis added).
Even when the intervenor has a justiciable interest in a pending suit, the ultimate determination of whether to
strike an intervention remains within the trial court's sound discretion. See Mendez, 626 S.W.2d at 499; Zeifman,
229 S.W.3d at 464 (right to intervene "ultimately rooted in equity"); Atchley v. Spurgeon, 964 S.W.2d 169, 171
(Tex. App.-San Antonio 1998, no pet.) (court may consider equities in deciding motion to strike intervention).
Factors that a court may consider when faced with a motion to strike include whether the intervention will
complicate the case by the "excessive multiplication of the issues" and whether the intervention is "almost
essential to effectively protect the intervenor's interest." Guaranty Fed., 793 S.W.2d at 657; see Law Offices of
Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 72 (Tex. App.-Fort Worth 2003, no pet.) (court may consider
"other avenues available" to protect intervenor's interest when determining whether intervention "almost
essential").
SUPREME COURT CASE ON INTERVENTION
In Re Union Carbide Corp., 273 SW 3d 152, No. 07-0987, 52 Tex. Sup. Ct. J. 109 (Tex. Nov. 14, 2008)
(mandamus granted, severance, intervention disallowed)
IN RE UNION CARBIDE CORPORATION; from Galveston County; 1st district (01‑07‑00707‑CV, ___ SW3d ___,
10‑25‑07)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.
Per Curiam Opinion
Texas Rule of Civil Procedure 60 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.” The rule authorizes a
party with a justiciable interest in a pending suit to intervene in the suit as a matter of right. Guar. Fed.
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). 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 intervenors have not been invited.
Thus, the “justiciable interest” requirement protects pending cases from having interlopers disrupt the
proceedings. The parties to the pending case may protect themselves from the intervention by filing a
motion to strike. Id. 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. Mendez v. Brewer, 626 S.W.2d 498, 499
(Tex. 1982).
To constitute a justiciable interest, “[t]he 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. King v.
Olds, 12 S.W. 65, 65 (Tex. 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.
COURT OF APPEALS CASES
Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 855 (Tex. App.-Dallas 2008, no pet.)
(because court concluded that trial court did not err in striking intervention, party did not have a
justiciable interest in remaining issues raised on appeal); Kenseth v. Dallas County, 126 S.W.3d 584,
594 (Tex. App.-Dallas 2004, pet. denied) (party may only appeal orders in which he has a justiciable
interest); see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993)
(standing is component of court's subject matter jurisdiction).
08-0440
ELISABETH S. BROCKIE v. BRIAN L. WEBB AND WEBB & ACKELS, P.C.; from Dallas County; 5th district (05-06-
01711-CV, 244 SW3d 905, 02-11-08, pet. denied July 2008) as redrafted (attorney-client fee disputes, divorce
attorney's fees collection, intervention, counterclaim)