Keith Morvant, Individually and as Personal Representative and Administrator of the Estate of Johna Morvant, And Lynne Frederick v. Dallas Airmotive, Inc. (d/B/A Dallas Airmotive D/B/A F/K/A Premier Turbines D/B/A F/K/A International Turbine Service, Inc.) International Governor Services LLC ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00049-CV
___________________________
KEITH MORVANT, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
AND ADMINISTRATOR OF THE ESTATE OF JOHNA MORVANT, DECEASED;
AND LYNNE FREDERICK, Appellants
V.
DALLAS AIRMOTIVE, INC. (D/B/A DALLAS AIRMOTIVE; D/B/A F/K/A
PREMIER TURBINES; D/B/A F/K/A INTERNATIONAL TURBINE SERVICE,
INC.); INTERNATIONAL GOVERNOR SERVICES LLC, Appellees
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-291241-17
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
In a single issue, Appellants Keith Morvant, Individually and as Personal
Representative and Administrator of the Estate of Johna Morvant, Deceased, and
Lynne Frederick (the Morvant Family) argue that the trial court abused its discretion
by striking their petition in intervention. After filing their opening brief, the Morvant
Family filed a “Notice Regarding Lack of Appellate Jurisdiction” in which they argue
that we lack jurisdiction over this appeal because there was purportedly no final
judgment entered by the trial court. We hold that we have jurisdiction over the
Morvant Family’s appeal, and we will affirm.
I. BACKGROUND
This case arises out of a helicopter crash in the Smoky Mountains of
Tennessee. On April 4, 2016, Johna Morvant and her adult children, Peyton and
Parker Rasmussen, took a helicopter sightseeing tour of the mountains. After the
helicopter departed from the heliport, its engine lost power, and the helicopter
crashed and caught on fire. Johna, Peyton, and Parker died at the scene of the crash.
Scott Rasmussen, the father of Peyton and Parker, filed suit against Dallas
Airmotive, Inc., International Governor Services, LLC (IGS), and International
Turbine Service, Inc. (ITS)—entities allegedly responsible for the maintenance of the
helicopter’s engine—bringing wrongful-death claims on his own behalf and survival
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claims on behalf of the children’s estates.1 Johna’s husband, Keith Morvant, and
Johna’s mother, Lynne Frederick, intervened in the Rasmussen lawsuit, bringing
wrongful-death claims on their own behalf and survival claims on behalf of Johna’s
estate against Dallas Airmotive and IGS.
Dallas Airmotive filed a motion to strike the Morvant Family’s petition in
intervention, arguing that: (1) the Morvant Family did not have a justiciable interest in
the Rasmussen lawsuit; (2) intervention would excessively multiply the issues in the
Rasmussen lawsuit; and (3) intervention was not essential to protect the Morvant
Family’s interests. The Morvant Family responded to Dallas Airmotive’s motion to
strike, and the trial court conducted a hearing on the motion.
The trial court later signed an order granting the motion to strike the Morvant
Family’s petition in intervention. That order did not specify the grounds relied upon
by the trial court in granting the motion but simply stated “IT IS, THEREFORE,
ORDERED, ADJUDGED, AND DECREED, that Defendants’ Motion to Strike
Intervenors’ Petition in Intervention be, and the same is hereby, granted.” The same
day the trial court signed the order, it also sent a letter to the parties’ counsel
enclosing a copy of the order. In that letter, the trial court provided a lengthy analysis
as to whether the Morvant Family had a justiciable interest in the Rasmussen lawsuit.
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The pilot and a man named Michael Glenn Mastalez also died in the crash.
Mastalez’s personal representative brought claims in the Rasmussen lawsuit, although
those claims are not at issue in this appeal.
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The letter did not discuss whether intervention would excessively multiply the issues
in the Rasmussen lawsuit, nor did it discuss whether intervention was essential to
protecting the Morvant Family’s interests. The letter concluded with the trial court
stating that “Intervenors have no justiciable interest in the Rasmussen claims. Such
being the case, this Court has no choice but to grant the Defendants’ Motion to Strike
the Petition in Intervention. The Order granting the motion is enclosed with this
letter.”
Rasmussen later settled with Dallas Airmotive, IGS, and ITS, and the settling
parties moved for dismissal.2 The trial court then entered an order of dismissal,
noting that it had been advised that “all claims asserted or assertable herein have been
settled” and ordering that “all claims, demands, debts, or causes of action asserted or
assertable herein by Plaintiffs against Defendants are DISMISSED WITH
PREJUDICE.” The order then stated that “THIS IS A FINAL JUDGMENT AS
TO ALL CLAIMS AND ALL PARTIES.” This appeal followed.
II. DO WE HAVE JURISDICTION OVER THIS APPEAL?
In their opening brief, the Morvant Family stated that the trial court’s order of
dismissal “disposed of all claims of all parties, creating a final judgment.” After filing
that brief, the Morvant Family filed a “Notice Regarding Lack of Appellate
Jurisdiction” claiming that we lack jurisdiction over this appeal because there was
Mastalez’s personal representative likewise settled and joined in the motion to
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dismiss.
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purportedly no final judgment entered by the trial court.3 The Morvant Family
contend that because the motion to strike their petition in intervention was filed by
Dallas Airmotive only, their claims against IGS are still pending in the trial court.
A. THE LAW
As a general rule, with a few mostly statutory exceptions, an appeal may be
taken only from a final judgment. Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex.
2010); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Absent a
conventional trial on the merits, a judgment is final and appealable if either (1) it
actually disposes of all claims and parties then before the court, regardless of its
language, or (2) it states with unmistakable clarity that it is a final judgment as to all
claims and all parties. Lehmann, 39 S.W.3d at 192–93; Mitchell v. Johnson, No. 2-08-
00071-CV, 2008 WL 2780785, at *1 (Tex. App.—Fort Worth, July 17, 2008, no pet.)
(mem. op.) (per curiam). The law does not require that a final judgment be in any
particular form. Lehmann, 39 S.W.3d at 195. A judgment that actually disposes of
every remaining issue in the case is not interlocutory merely because it recites that it is
partial or refers to only some of the parties or claims; the language cannot make it
interlocutory when, in fact, on the record, it is a final disposition of the case. Id. at
200. Conversely, the language of an order or judgment can make it final, even though
By order dated September 10, 2019, we told the parties that we would consider
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the Morvant Family’s jurisdictional notice to be part of and incorporated into their
opening brief.
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it should have been interlocutory, if that language expressly disposes of all claims and
all parties. Id. If the intent to finally dispose of the case is clear, “then the order is
final and appealable, even though the record does not provide an adequate basis for
rendition of judgment.” Id. Granting more relief than permitted makes the order
reversible but not interlocutory. Id. at 204. In determining whether an order is a final
judgment, we should first examine the language of the order itself. In re Elizondo, 544
S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding) (citing Lehmann, 39 S.W.3d at 195,
205–06); In re M & O Homebuilders, Inc., 516 S.W.3d 101, 106 (Tex. App.—Houston
[1st Dist.] 2017, orig. proceeding). If the order does not clearly and unequivocally
indicate that it is a final judgment as to all claims and all parties, we may then look at
the record to determine finality. Elizondo, 544 S.W.3d at 827–28; M & O Homebuilders,
Inc., 516 S.W.3d at 106.
B. APPLICATION OF THE LAW TO THE FACTS
Here, the order of dismissal states that “THIS IS A FINAL JUDGMENT AS
TO ALL CLAIMS AND ALL PARTIES.” The Morvant Family argue that this
language does not indicate finality because it does not expressly state that the trial
court “disposed” of all claims of all parties. We are not persuaded by the Morvant
Family’s argument. The law does not require that a final judgment be in any particular
form, and no magic words are required to make a judgment final. Lehmann, 39 S.W.3d
at 195; Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277, 279 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (“Since Lehmann v. Har-Con Corp., it has been settled
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that no magic words are required to make a judgment final.”). The order here
expressly states that it is “A FINAL JUDGMENT AS TO ALL CLAIMS AND ALL
PARTIES,” it reflects that “all claims asserted or assertable herein have been settled,”
and it orders that “all claims, demands, debts, or causes of action asserted or
assertable herein by Plaintiffs against Defendants [i.e., the only parties listed in the
style of the order] are DISMISSED WITH PREJUDICE.” Given the foregoing
language, we hold that the trial court’s order of dismissal is a final judgment because it
states with unmistakable clarity that it is a final judgment as to all claims and all
parties. See Lehmann, 39 S.W.3d at 192–93 (“[A] judgment issued without a
conventional trial is final for purposes of appeal if and only if either it actually
disposes of all claims and parties then before the court, regardless of its language, or it
states with unmistakable clarity that it is a final judgment as to all claims and all
parties.”). Accordingly, we hold that we have jurisdiction over this appeal. See
Vaughn, 324 S.W.3d at 562; Lehmann, 39 S.W.3d at 195.
While our analysis could stop there, we also note that the record supports our
jurisdiction over this appeal because the order of dismissal actually disposed of all
claims and parties then before the trial court. See Lehmann, 39 S.W.3d at 192. To that
end, in the prayer of its motion to strike the Morvant Family’s petition in intervention,
Dallas Airmotive requested that the trial court “strike the Petition in Intervention”—
i.e., that the trial court strike the Morvant Family’s entire petition in intervention. By
granting that motion, the trial court struck the Morvant Family’s entire petition in
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intervention, which necessarily included both the claims brought by the Morvant
Family against Dallas Airmotive and the claims brought by the Morvant Family
against IGS. See 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.”). Thus, when the trial court entered its order of dismissal seven months later,
there were no pending claims in the lawsuit—i.e., the original plaintiffs’ claims had
been settled and dismissed, and the Morvant Family’s claims had been struck.4
Accordingly, regardless of the language in the order of dismissal, that order is a final
judgment because it “actually dispose[d] of all claims and parties then before the [trial]
court.” Lehmann, 39 S.W.3d at 192.
We overrule the Morvant Family’s jurisdictional complaint.
III. DID THE TRIAL COURT ABUSE ITS DISCRETION BY STRIKING
THE MORVANT FAMILY’S PETITION IN INTERVENTION?
Having determined that we have jurisdiction over this appeal, we now turn to
the merits. In their sole issue, the Morvant Family argue that the trial court abused its
discretion by striking their petition in intervention because they had a justiciable
interest in the Rasmussen lawsuit. Dallas Airmotive and IGS respond that the
Morvant Family did not challenge on appeal every ground raised in Dallas Airmotive’s
motion to strike the petition in intervention—the Morvant Family did not challenge
4
Notably, the Morvant Family did not participate in the lawsuit during the
seven-month period between the trial court’s order striking their petition in
intervention and the filing of the agreed motion to dismiss.
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on appeal the ground that the proposed intervention would have excessively
multiplied the issues in the litigation, nor did they challenge the ground that
intervention was unnecessary to protect their interests—and they ask that we affirm
the trial court’s order on those unchallenged grounds. The Morvant Family counter
by arguing that we should consider the trial court’s letter that was sent to the parties
to determine the basis for the trial court’s ruling.
A. THE LAW
We review a trial court’s ruling on a motion to strike a petition in intervention
for an abuse of discretion. In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex.
2006) (orig. proceeding); Antonov v. Walters, 168 S.W.3d 901, 907 (Tex. App.—Fort
Worth 2005, pet. denied). A trial court abuses its discretion if it acts without
reference to any guiding rules and principles. Gunn v. McCoy, 554 S.W.3d 645, 666
(Tex. 2018); Severs v. Mira Vista Homeowners Ass’n, 559 S.W.3d 684, 712 (Tex. App.—
Fort Worth 2018, pet. denied). Although a trial court has broad discretion in
determining whether an intervention should be stricken, a trial court abuses its
discretion by striking the petition if: (1) the intervenor has a justiciable interest in the
case—i.e., 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 v. Horseshoe Operating Co., 793
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S.W.2d 652, 657 (Tex. 1990) (op. on reh’g); Pettus v. Pettus, 237 S.W.3d 405, 420 (Tex.
App.—Fort Worth 2007, pet. denied).
When a trial court issues an adverse ruling without specifying its grounds for
doing so, the appellant must challenge each independent ground asserted by the
appellee supporting the adverse ruling because it is presumed that the trial court
considered all of the asserted grounds. Buttler v. Sutcliffe, No. 02-15-00319-CV, 2016
WL 4491224, at *7 (Tex. App.—Fort Worth Aug. 26, 2016, no pet.) (mem. op.); U.S.
Lawns, Inc. v. Castillo, 347 S.W.3d 844, 846–47 (Tex. App.—Corpus Christi–Edinburg
2011, pet. denied); see In re S.J.R.-Z, 537 S.W.3d 677, 682 (Tex. App.—San Antonio
2017, pet. denied) (“An appellant must challenge all independent bases or grounds
that fully support a judgment or appealable order.”). If the appellant fails to challenge
all possible grounds, we must accept the validity of the unchallenged grounds and
affirm the adverse ruling. Buttler, 2016 WL 4491224, at *7; U.S. Lawns, Inc., 347
S.W.3d at 847; Oliphant Fin. L.L.C. v. Hill, 310 S.W.3d 76, 78 (Tex. App.—El Paso
2010, pet. denied); see also Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681–82
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (collecting cases in various contexts in
which “[t]he rule that an appellant must attack all independent grounds supporting a
judgment has been applied”).
A letter is not the proper method for apprising parties of the grounds for
granting an order or judgment. Shannon v. Tex. Gen. Indem. Co., 889 S.W.2d 662, 664
(Tex. App.—Houston [14th Dist.] 1994, no writ); Martin v. Sw. Elec. Power Co., 860
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S.W.2d 197, 199 (Tex. App.—Texarkana 1993, writ denied). When a trial court sends
a letter to the parties accompanying its order, the written order itself, and not the
letter, is controlling on appeal. See Trahan v. Fire Ins. Exchange, 179 S.W.3d 669, 672
n.2 (Tex. App.—Beaumont 2005, no pet.) (“The trial court sent the parties a letter
explaining its grounds for granting the motions for summary judgment. . . . We do not
consider the letter as conclusive on the bases for the trial court’s ruling because a
letter cannot be considered on appeal as giving the comprehensive reasons that a trial
court granted summary judgment.”); Hailey v. KTBS, Inc., 935 S.W.2d 857, 859 (Tex.
App.—Texarkana 1996, no writ) (“The trial judge sent a letter to the parties
accompanying his summary judgment order, outlining some of the grounds on which
he based his ruling. Only the written order, itself, and not the letter, is controlling on
appeal.”); see also RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121, 126
(Tex. App.—Houston [14th Dist.] 1997, pet. denied) (“A letter cannot be considered
on appeal as giving the reasons for the judgment.”); but see Stratton v. XTO Energy, Inc.,
No. 02-10-00483-CV, 2012 WL 407385 (Tex. App.—Fort Worth Feb. 9, 2012, no
pet.) (mem. op.).
B. APPLICATION OF THE LAW TO THE FACTS
Here, Dallas Airmotive moved to strike the Morvant Family’s petition in
intervention for three independent reasons: (1) the Morvant Family did not have a
justiciable interest in the Rasmussen lawsuit; (2) intervention would excessively
multiply the issues in the Rasmussen lawsuit; and (3) intervention was not essential to
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protect the Morvant Family’s interests. The trial court granted Dallas Airmotive’s
motion to strike, but it did not specify the grounds for its ruling in the order granting
the motion. As such, the Morvant Family was required to challenge each of those
grounds on appeal. See Buttler, 2016 WL 4491224, at *7; U.S. Lawns, Inc., 347 S.W.3d
at 846–47; In re S.J.R.-Z, 537 S.W.3d at 682. The Morvant Family, however, have
challenged only one ground on appeal—whether they have a justiciable interest in the
Rasmussen lawsuit. While the Morvant Family want us to look to the trial court’s
letter to support their position that the trial court’s decision was based on the grounds
of justiciable interest, we cannot consider that letter on appeal as giving the reasons
for the trial court’s ruling. See Trahan, 179 S.W.3d at 672 n.2; Hailey, 935 S.W.2d at
859; Shannon, 889 S.W.2d at 664; Martin, 860 S.W.2d at 199. Accordingly, because the
Morvant Family did not challenge two independent grounds that support the trial
court’s ruling, we cannot say the trial court abused its discretion by striking the
Morvant Family’s petition in intervention.
We overrule the Morvant Family’s sole issue.
IV. CONCLUSION
Having determined that we have jurisdiction over this appeal, and having
overruled the Morvant Family’s sole issue, we affirm the trial court’s order striking the
Morvant Family’s petition in intervention.
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/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: January 16, 2020
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