in Re Seneca Resources Corporation ( 2015 )

FILED
14-0804
8/27/2015 4:12:30 PM
tex-6687976
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
NO. 14-0804
In the
Supreme Court of Texas
IN RE SENECA RESOURCES CORPORATION,
Relator.
Original Proceeding from the
234th District Court, Harris County, Texas
Cause No. 2013-01325
PETITION FOR WRIT OF MANDAMUS
REPLY BRIEF
BAKER & HOSTETLER LLP
W. Ray Whitman Alexander D. Burch
rwhitman@bakerlaw.com aburch@bakerlaw.com
State Bar No. 21379000 State Bar No. 24073975
Douglas D. D’Arche Jordan A. Sinclair
ddarche@bakerlaw.com jsinclair@bakerlaw.com
State Bar No. 00793582 State Bar No. 24079341
811 Main St., Suite 1100
Houston, TX 77002
(713) 751-1600 Telephone
(713) 751-1717 Facsimile
ATTORNEYS FOR RELATOR SENECA
RESOURCES CORPORATION
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Table of Contents ...................................................................................... 1
Table of Authorities ................................................................................... 2
Reply .......................................................................................................... 5
I. Introduction. ............................................................................ 5
II. Seneca has no burden to negate the Pennywells’ legally
invalid construction of Rule 329b(e). ...................................... 9
A. The Pennywells’ motion for new trial negated
their standing as a “party” under Rule 329b(e). ........... 9
B. The Pennywells have the burden to prove their
alleged Rule 329b(e) “party” status. ............................ 13
C. The term “party” in Rule 329b(e) refers only to
parties of record. .......................................................... 15
III. The Wrongful Death Act does not automatically confer
“party” status to beneficiaries that do not sue. .................... 22
IV. The Pennywells’ post-judgment intervention
arguments fail under this Court’s opinion in State of
Texas v. Naylor. ..................................................................... 25
Conclusion & Prayer ............................................................................... 31
Certification of Factual Statements........................................................ 33
Certificate of Compliance ........................................................................ 33
Certificate of Service ............................................................................... 34
1
TABLE OF AUTHORITIES
Page(s)
Cases
Avila v. St. Luke’s Lutheran Hosp.,
948 S.W.2d 841 (Tex. App.—San Antonio 1997, no pet.) ..........................23, 24
Brantley v. Boone,
34 S.W.2d 409 (Tex. App.—Eastland 1931, no writ) ........................................24
In re Brookshire Grocery Co.,
250 S.W.3d 66 (Tex. 2008)...........................................................................14, 15
City of San Benito v. Rio Grande Valley Gas Co.,
109 S.W.3d 750 (Tex. 2003) ..................................................................16, 17, 18
Dennis v. Gulf, C. & S.F. Ry. Co.,
224 S.W.2d 704 (Tex. 1949) ................................................................................ 6
First Alief Bank v. While,
682 S.W.2d 251 (Tex. 1984) ..............................................................................26
Galveston, H. & S.A. Ry. Co. v. Pennington,
166 S.W. 464 (Tex. 1914).....................................................................................6
Heckman v. Williamson Cnty.,
369 S.W.3d 137 (Tex. 2012) ........................................................................13, 20
Long v. Knox,
291 S.W.2d 292 (Tex. 1956) ................................................................................ 8
In re Lovito-Nelson,
278 S.W.3d 773 (Tex. 2009) (per curiam) ...................................................15, 20
In re Lumbermens Mut. Cas. Ins. Co.,
184 S.W.3d 718 (Tex, 2006) ..............................................................................26
Nelson v. Galveston,
14 S.W. 1021 (Tex. 1890).............................................................................23, 24
Pleasant Glade Assembly of God v. Schubert,
264 S.W.3d 1 (Tex. 2008).....................................................................................8
2
Presdio Indep. Sch. Dist. v. Scott,
309 S.W.3d 927 (Tex. 2010) ........................................................................15, 17
In re State & $15,975.85,
221 S.W.3d 713 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ..........16, 20, 30
State Mut. Ins. v. Kelly,
915 S.W.2d 224 (Tex. App.—Austin 1996, no pet.) ..............................16, 20, 30
State of Texas v. Naylor,
__ S.W.3d __, Nos. 11-0114 & 11-0222, 2015 WL 3852284 (Tex.
June 19, 2015) ..............................................................................................passim
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ..............................................................................14
Tex. Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31 (Tex. 2008)...........................................................................26, 29
In re Union Carbide,
273 S.W.3d 152 (Tex. 2008) ..............................................................................14
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ..............................................................................14
Zanchi v. Lane,
408 S.W.3d 373 (Tex. 2013) ........................................................................15, 17
Zorilla v. Aypco Constr. II, LLC,
__ S.W.3d __, No. 14-0067, 2015 WL 3641299
(Tex. June 12, 2015) ...........................................................................................15
Statutes
TEX. CIV. PRAC. & REM. CODE § 16.003(b) .............................................................10
TEX. CIV. PRAC. & REM. CODE § 71.004......................................................10, 22, 23
TEX. CIV. PRAC. & REM. CODE § 154.002.................................................................. 5
Rules
TEX. R. CIV. P. 193.6 ..........................................................................................18, 19
3
TEX. R. CIV. P. 329b ..........................................................................................passim
TEX. R. CIV. P. 39 .....................................................................................................19
TEX. R. CIV. P. 39, 40 ...............................................................................................16
TEX. R. CIV. P. 60 .....................................................................................................26
TEX. R. CIV. P. 93 .....................................................................................................12
4
REPLY
I. Introduction.
This Court should grant Seneca mandamus relief from the trial
court’s void orders entered after its plenary power expired and reinforce
the well-settled practice of courts encouraging peaceable resolutions of
disputes. See, e.g., TEX. CIV. PRAC. & REM. CODE § 154.002 (“It is the
policy of this state to encourage the peaceable resolution of disputes . . .
and the early settlement of pending litigation through voluntary
settlement procedures.”). Requiring the trial court to set aside its void
orders in the underlying action will prevent nonparties to a lawsuit, like
the Pennywells, who failed to timely assert their own rights under the
Wrongful Death Act, if any, from interfering with the parties’
agreement to resolve their dispute and voluntarily dismiss the suit.
The Pennywells seek to force the parties of record in the
underlying action into further undesired litigation in a court that lacks
jurisdiction over the case because “of the prospect that the judgment
would bind [the Pennywells]” despite claiming in the trial court that the
judgment was not binding on them. (Response1 at 11) (emphasis added);
1The Pennywells’ brief filed in this Court on July 20, 2015, and titled “Real Party in
Interest’s Brief on the Merits” is referred to herein as the “Response.”
5
(MR0136). The Pennywells also attempt to characterize the underlying
proceeding as shrouded in secrecy in an apparent effort to shift the
Court’s focus away from the fact that they did not bring their own
lawsuit. (Response at 3-5). However, no “party” in the underlying action
had any obligation to provide notice to the Pennywells. See, e.g., TEX.
CIV. PRAC. & REM. CODE 71.001-.012 (lacking notice requirements under
the Wrongful Death Act for potential beneficiaries that do not bring
suit); Dennis v. Gulf, C. & S.F. Ry. Co., 224 S.W.2d 704, 705 (Tex. 1949)
(recognizing that a beneficiary may bring a wrongful death action
without the knowledge or consent of other beneficiaries); Galveston, H.
& S.A. Ry. Co. v. Pennington, 166 S.W. 464, 470 (Tex. 1914) (holding
that, although the Wrongful Death Act “is subject to criticism for not
providing some kind of legal notice [to] those not bringing suit,” the Act
is not unconstitutional on that ground).
Substantively, the Pennywells try to argue that their motion for
new trial extended the trial court’s plenary power period over the case
because they each obtained “party” status under Rule 329b(e) of the
6
Texas Rules of Civil Procedure 2 either through the Wrongful Death Act
or the rules governing post-judgment intervention. (Response at 15, 31).
As a result, they wrongfully contend that the trial court’s orders
granting their motion for new trial and setting aside its final judgment
were not void.
To fabricate their “party” status theories, the Pennywells simply
make up their own rule regarding Rule 329b “party” status without
offering any supporting basis for it. They contend that “party” status for
a nonparty under Rule 329b(e) “focuses on the suit’s capacity to bind”
the nonparty. (Id. at 13-14). Based on this unsupported and fictitious
theory, the Pennywells argue that Seneca’s refusal to take a position on
the binding effect of the agreed judgment in the underlying action
precludes mandamus relief in this Court.
No court has ever construed Rule 329b(e) as requiring a trial court
to engage in an advisory res-judicata-type analysis when determining
whether it has jurisdiction to act on a nonparty’s motion for new trial.
In any event, as shown below, the question of whether the subject
2 Rule 329b(e) provides that “[i]f a motion for new trial is timely filed by any part,
the trial court . . . has plenary power to grant a new trial or to vacate, modify, or
correct, or reform the judgment until thirty days after all such timely-filed motions
are overruled . . . .” TEX. R. CIV. P. 329b(e).
7
agreed judgment in the underlying case is, or is not, binding on the
Pennywells is irrelevant and does not change the fact that the
Pennywells did not possess Rule 329b(e) “party” status when they filed
their motion for new trial. Therefore, regardless of which self-
contradicting position the Pennywells now take regarding the binding
effect of the subject judgment—in the trial court they argued the
judgment was not binding on them, but argue the exact opposite in this
Court 3—Seneca had no burden to prove the Pennywells lacked standing
as a Rule 329b(e) party.
The Pennywells’ two Rule 329b(e) “party” status theories also lack
merit. As shown below, their first theory under the Wrongful Death Act
is not supported by the Act and the second, post-judgment intervention
theory has been repeatedly rejected, most recently by this Court in
3 Judicial estoppel would ordinarily preclude the Pennywells from taking one
position in the underlying proceeding and a diametrically opposite position in this
original proceeding. Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956) (“Under the
doctrine of judicial estoppel, as distinguished from equitable estoppel by
inconsistency, a party is estopped merely by the fact of having alleged or admitted
in his pleadings in a former proceeding under oath the contrary to the assertion
sought to be made.”). But since the binding effect of the judgment in the underlying
action is not relevant to a court’s Rule 329b(e) “party” status analysis, this Court
need not concern itself with the Pennywells’ attempt to use self-contradiction as a
means of obtaining unfair advantage. See Pleasant Glade Assembly of God v.
Schubert, 264 S.W.3d 1, 6 (Tex. 2008) (recognizing the function of judicial estoppel
“is to prevent the use of intentional self-contradiction as a means of obtaining unfair
advantage”).
8
State of Texas v. Naylor, __ S.W.3d at __, Nos. 11-0114 & 11-0222, 2015
WL 3852284 (Tex. June 19, 2015).
II. Seneca has no burden to negate the Pennywells’ legally
invalid construction of Rule 329b(e).
The Pennywells first contend that Seneca cannot prevail in this
mandamus proceeding because it has not taken a position on whether
the agreed final judgment is binding on the Pennywells. This argument
stems from the Pennywells’ faulty premise that Rule 329b(e) “party”
status depends on whether the trial court’s signing of the agreed final
judgment was binding on the Pennywells. (Response at 14). Contrary to
the Pennywells’ assertions, Seneca has no burden in this original
proceeding to negate the Pennywells’ legally invalid arguments,
including their incorrect construction of Rule 329b(e).
A. The Pennywells’ motion for new trial negated their
standing as a “party” under Rule 329b(e).
The Pennywells’ motion for new trial in the underlying action
actually negates their alleged Rule 329b(e) “party” status. As the
Pennywells observe, the underlying wrongful death action was brought
against Seneca and others in September of 2012 by Tammi McCoy,
individually and on behalf of the surviving heirs of Brandon Pennywell,
seeking to recover damages for Brandon Pennywell’s April 5, 2012
9
death at a drilling rig site. (MR0003). Pursuant to an agreed motion,
the trial court dismissed “all claims of Plaintiff” on March 26, 2014,
(MR0117), and on April 3, 2014, entered its final judgment dismissing
all remaining claims, (MR0131). The Pennywells filed a motion for new
trial 26 days after the statute of limitations had run on any wrongful
death claims, and just four days before the trial court’s plenary power
period expired under Rule 329b. (MR0131, 0134); see also TEX. CIV.
PRAC. & REM. CODE § 16.003(b) (establishing a two-year limitations on
an action for injuries causing death); TEX. R. CIV. P. 329b(d) (providing a
plenary power period of thirty days for a trial court to vacate or modify
its judgment). The Pennywells did not attach an affidavit or any other
evidence to their motion.
In their motion, the Pennywells described themselves as “Joyce
Ann Pennywell and Alana Pennywell, wife and daughter, of Brandon
Pennywell, deceased, Curly and Rachel Pennywell, mother and father,[4]
of Brandon Pennywell, deceased, and interested parties.” (MR0134).
Notably, the Pennywells alleged in their motion in numerous ways that
4The Pennywells clarify in this Court that, contrary to their trial court allegations,
Curly and Rachel Pennywell are actually the grandparents of Brandon Pennywell,
not his mother and father. (Response at 2 & 4n.1).
10
they were not actually parties to the underlying action. For example,
the Pennywells alleged the underlying suit was “filed and settled
without any notice to the Pennywell[s]” and that the “Pennywell[s] and
their counsel did not know of this lawsuit’s existence until after the
Order of Dismissal was signed.” (MR0135) (emphasis added). They also
alleged that “[n]either Plaintiff McCoy nor her counsel had legal
authority to bind the Pennywell[s],” the court’s judgment “will not be
binding on the Pennywell[s],” and that “McCoy already has received
settlement funds, but she has not done so on behalf of the Pennywell[s].”
(MR0135-36) (emphasis added).
Based on the Pennywells’ allegations in their motion for new trial,
one or all of the following facts must be true: (1) the Pennywells are not
surviving heirs of Brandon Pennywell whom McCoy had prosecuted the
underlying action on behalf of; (2) the Pennywells are not within the
class of persons protected under the Wrongful Death Act; (3) the
underlying action was not prosecuted for their benefit; and/or (4) McCoy
and her counsel lacked the authority to bring the suit on behalf of the
11
Pennywells. 5 Each of these facts raises significant concerns regarding
the Pennywells’ standing as a party in the underlying action. None of
them, however, confer “party” status on the Pennywells to extend the
trial court’s plenary power period under Rule 329b(e). Therefore, in
response to the Pennywells’ motion for new trial, Seneca argued that
the Pennywells lacked standing as a “party” to the underlying action
and, thus, their motion for new trial did not extend the trial court’s
plenary power period under Rule 329b(e). (MR0150-51).
In their reply filed in the underlying action, the Pennywells again
did not include evidence to support their position and again distanced
themselves from “party” status in the underlying action by arguing as
follows: “The motion should be granted because of the Pennywell[s] total
exclusion from the proceedings that led to the April 1 dismissal order.”
(MR0162). Although they claim they were totally excluded from the
underlying action, they now present two alternative legal arguments
which they assert establishes their “party” status (i.e., standing) under
Rule 329b(e): (1) the Wrongful Death Act automatically conferred upon
5 A challenge to a plaintiff’s legal capacity to sue must be raised by a verified
pleading. TEX. R. CIV. P. 93(1)-(2). The Pennywells did not file a verified pleading
and did not challenge McCoy’s capacity to sue on behalf of the estate of Brandon
Pennywell under the Wrongful Death Act.
12
each of them Rule 329b(e) “party” status; and (2) they timely intervened
post judgment. (MR0163-65).
Seneca first addresses the Pennywells’ incorrect assertion that it
has the burden to prove the Pennywells are not bound by the judgment
in the underlying action and then shows that the Pennywells’ Wrongful
Death Act and post-judgment intervention arguments lack merit.
B. The Pennywells have the burden to prove their
alleged Rule 329b(e) “party” status.
The Pennywells had the burden to establish their purported Rule
329b(e) “party” status in the underlying action since their motion and
Seneca’s response raised the issue of the Pennywells’ standing as a Rule
329b(e) “party” in the trial court. They did not meet this burden in the
underlying action and their legal arguments in this proceeding are
unavailing.
“Standing is a component of subject matter jurisdiction and
appellate standing is typically afforded ‘only to parties of record.’”
Naylor, 2015 WL 3852284, at *2 (citations omitted). The burden of proof
to establish standing rests with the party asserting it. See, e.g.,
Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) (“The burden
is on the plaintiff to affirmatively demonstrate the trial court’s
13
jurisdiction.”); see also In re Union Carbide, 273 S.W.3d 152, 155 (Tex.
2008) (providing that, when standing to intervene is challenged, “the
intervenors have the burden to show a justiciable interest in the
pending suit”); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004) (establishing summary judgment like standards
regarding evidence of standing). This Court always has jurisdiction to
resolve questions of standing and jurisdiction and resolves those
questions via de novo review. Naylor, 2015 WL 3852284, at *2.
Seneca seeks relief in this original proceeding from void orders
entered by a trial court that lacked plenary power—i.e., jurisdiction—
over the case. In re Brookshire Grocery Co., 250 S.W.3d 66, 68-69 (Tex.
2008) (“Mandamus relief is appropriate when a trial court issues an
order after its plenary power has expired.”). To determine whether the
trial court had jurisdiction to set aside its final judgment when it did
requires an interpretation of Rule 329b of the Texas Rules of Civil
Procedure and an application of the law to the facts. Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) (“A trial court has no ‘discretion’ in
determining what the law is or applying law to facts.”). Specifically, this
case centers on whether a motion for new trial filed by nonparties, like
14
the Pennywells, extends the trial court’s plenary power period under
Rule 329b(e). Thus, the initial focus of this Court is the proper
construction of Rule 329b. “The scope of a procedural rule is a question
of law, . . . review[ed] de novo by applying the same cannons of
construction applicable to statutes.” Zorilla v. Aypco Constr. II, LLC, __
S.W.3d __, No. 14-0067, 2015 WL 3641299, at *10 (Tex. June 12, 2015));
see, e.g., In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009) (per
curiam) (construing Rule 329b); In re Brookshire Grocery Co., 250
S.W.3d at 68-69 (same).
C. The term “party” in Rule 329b(e) refers only to parties
of record.
As set forth in Seneca’s brief on the merits, the term “party” for
purposes of Rule 329b(e) refers to the parties of record (i.e., named
parties in the lawsuit). (Seneca’s Brief on the Merits at p. 23) (citing
Zanchi v. Lane, 408 S.W.3d 373, 378 (Tex. 2013); Presdio Indep. Sch.
Dist. v. Scott, 309 S.W.3d 927, 929-30 (Tex. 2010); BLACK LAW
DICTIONARY 1232 (9th ed. 2009)). The rules of procedure provide many
avenues by which a person can obtain party-of-record status; none of
which apply to the Pennywells, who contend they were totally excluded
from the underlying action. See, e.g., TEX. R. CIV. P. 39, 40 (providing
15
mechanisms for joinder of persons to lawsuits as parties of record); see
also (MR0162). Thus, the Pennywells’ motion for new trial had no effect
on the trial court’s jurisdiction to enter further orders in the case
because they were not made parties to the underlying lawsuit prior to
the expiration of the court’s plenary power period. See TEX. R. CIV.
P. 329b (providing that only motions for new trial filed by “any party”
operates to extend the trial court’s plenary power period); see also In re
State & $15,975.85, 221 S.W.3d 713, 715 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (“As a nonparty, his motion for new trial could not
extend the trial court’s plenary power.”); State Mut. Ins. v. Kelly, 915
S.W.2d 224, 227 (Tex. App.—Austin 1996, no pet.) (“[O]nly a motion for
new trial filed by a party of record automatically extends the trial
court’s plenary power.”).
The Pennywells’ present this Court with an erroneous
construction of Rule 329b(e) “party” status. Relying on this Court’s
decision in City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d
750 (Tex. 2003), the Pennywells contend a trial court’s analysis of Rule
329b(e) “party” status for a nonparty that files a motion for new trial
focuses on whether the complained-of judgment is binding on the
16
moving nonparty. (Response at 13). Neither the City of San Benito
opinion nor any other court opinion supports the Pennywells’
construction of Rule 329b. Indeed, City of San Benito does not even
mention Rule 329b 6 and was limited to “the procedural rules governing
class actions” and the common law rule that unnamed class members
are “deemed” parties for purposes of appeal under the virtual
representation doctrine. 109 S.W.3d at 754-55. Specifically, that case
addressed whether unnamed class members who opted out of a class
action lawsuit and objected to settlement were required to first
intervene in the trial court to be considered “parties for purposes of
appeal.” Id. at 755-56 (emphasis added) (holding that unnamed class
members who “opted out and objected to settlement” had standing to
appeal; but those class members that did not opt out or object to the
settlement did not).
6 Ironically, this is the sole basis for the Pennywells’ attempt to distinguish the
Court’s more recent opinions in Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) and
Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927 (Tex. 2010), both of which
analyze a litigant’s “party” status. (Response at 23-24). Yet, the Pennywells offer no
explanation why the Court’s pronouncement in Zanchi—that construing the term
“party” to mean a party of record “is consistent with the definition of the term party
in the Texas Rules of Civil Procedure”—does not apply to Rule 329b. See Zanchi,
408 S.W.3d at 379.
17
The underlying wrongful death suit is not a class action and this
proceeding is not an appeal from the trial court’s judgment. Thus, the
City of San Benito opinion simply has no bearing on any issue presented
in this original proceeding or in the underlying case.
The Pennywells also cite to Rule 193.6 of the Texas Rules of Civil
Procedure 7 relating to discovery and argue that, if this Court wanted to
limit Rule 329b(e) “party” status to named parties, the Court would
have explicitly stated “any named party” in the rule. (Response at 22-
23). For this argument to advance the Pennywells’ position in any
meaningful way, the argument requires the Court to read the absence
of the term “named” between the terms “any” and “party” in Rule
329b(e) to mean that the term “any party” in the rule means “any
person.” There is no basis to conclude the Court used the term “party” in
Rule 329b(e) to mean “person.” This Court clearly treats these terms
differently throughout the Rules of Civil Procedure to distinguish
7 Not only do the Pennywells contradict their position in the trial court by arguing
in the trial court they are not bound by the judgment in the underlying action and
then arguing here the exact opposite, e.g., infra at 27, but they contradict
themselves within the same page of their Response brief by citing to discovery rules
to support their position and then contending it is inappropriate to look to discovery
rules to inform this Court’s analysis of “party” status under Rule 329b. Compare
Response at 22 (“Discovery rules do not define “any party” in Rule 329b) with id. at
22 (citing Rule 193.6 to argue that this “[c]ourts knows what to look for in a rule
that applies named parties”).
18
between those who are parties of record and those who are not. See, e.g.,
TEX. R. CIV. P. 39 (“A person who is subject to process shall be joined as
a party in the action if . . . .” (emphasis added)); see also id. 40 (“Persons
having claims against the plaintiff may be joined as defendants . . . .”).
Accordingly, the Pennywells reference to Rule 193.6 does not help their
cause.
The Pennywells’ erroneous construction of “any party” in Rule
329b(e) would also require a trial court to engage in an analysis of the
binding effect of its prior judgment entered in the case on the nonparty
that files a motion under Rule 329b. (Response at 13). Such a
construction of Rule 329b(e) injects unnecessary uncertainty into the
rule leaving parties of record at risk of not knowing when a judgment is
final, or when the deadline for filing a notice of appeal has run in the
event a nonparty files a motion for new trial. In addition, the
Pennywells’ argument that trial courts should determine whether a
judgment is binding on a nonparty to ascertain if the nonparty is a
“party” under Rule 329b(e) impermissibly authorizes an advisory res-
judicata-type analysis into the binding effect of the court’s final
judgment on nonparties in the context of a motion for new trial.
19
Heckman, 369 S.W.3d at 147 (recognizing that the Texas Constitution
prohibits courts from rendering advisory opinions); see also (Response
at 20) (arguing that “[r]es judicata precedents support the judgment’s
binding effect as well”).
The Pennywells’ construction of Rule 329b(e) attempts to blur the
clarity of the rule regarding who may extend the trial court’s plenary
power period over a particular case with a construction that contradicts
its plain language. Such a construction also conflicts with this Court’s
prior precedent providing that Rule 329b should establish bright-line
rules for litigants because uncertainty in the rule “would carry over to
appellate deadlines and possibly give rise to mandamus proceedings,
like this one.” In re Brookshire, 278 S.W.3d at 775-76. This Court should
grant review of this case to reaffirm the bright line rule of construction
for Rule 329b and hold that the term “party” in Rule 329b(e) refers only
to parties of record and, therefore, a nonparty’s motion for new trial
does not extend a trial court’s plenary power period. See, e.g., In re State
& $15,975.85, 221 S.W.3d at 715 (“As a nonparty, his motion for new
trial could not extend the trial court’s plenary power.”); Kelly,
20
915 S.W.2d at 227 (“[O]nly a motion for new trial filed by a party of
record automatically extends the trial court’s plenary power.”).
As shown above and in Seneca’s brief on the merits, Rule 329b(e)
makes clear that only parties of record may extend a trial court’s
plenary power period by filing a motion for new trial. TEX. R. CIV.
P. 329b(e). The rule does not independently confer “party” status on
nonparties and does not require trial court’s to perform an analysis of
the binding effect of its judgment on a nonparty to assess its jurisdiction
to set aside or modify its final judgment.
Thus, contrary to the Pennywells’ arguments, Seneca had no
burden in the trial court to establish the Pennywells’ lack of standing
and likewise has no burden to do so in this original proceeding.
Similarly, Seneca has no burden to negate the Pennywells’ legally
incorrect construction of Rule 329b. And, as shown below, neither the
Wrongful Death Act nor the rules governing post-judgment
interventions conferred the necessary party-of-record status on the
Pennywells in the underlying action that Rule 329b(e) requires.
21
III. The Wrongful Death Act does not automatically confer
“party” status to beneficiaries that do not sue.
The Pennywells’ theory that they automatically obtained
Rule 329b(e) “party” status in the underlying action through the
Wrongful Death Act lacks merit. The Wrongful Death Act does not
provide a person with Rule 329b(e) “party” status in a suit the person
did not bring. The Act merely provides who may “benefit” from a
wrongful death suit and who may “bring” such a suit. TEX. CIV. PRAC. &
REM. CODE § 71.004(a), (b). Nevertheless, the Pennywells contend that
the Wrongful Death Act automatically made each of them Rule 329b(e)
parties to the underlying action since the suit’s inception. (Response at
15-17). Nothing in the Act supports the Pennywells’ theory.
Lacking express language in the Act to support their automatic
Rule 329b “party” argument, the Pennywells invoke the Wrongful
Death Act’s one-suit policy as the basis for their purported “party”
status in the underlying action. (Response at 15-16) (arguing section
71.004(a) of the Act’s use of the term “exclusive benefit” codified the
common law one-suit rule for wrongful death actions). Specifically, they
argue that the Legislature’s use of the term “exclusive benefit” in
22
section 71.004(a) of the Act 8 conferred “party” status on beneficiaries to
challenge a judgment in a wrongful death action under Rule 329b.
(Response at 16) (“Because the Legislature mandates that a single
action exist for the Pennywell Family’s ‘exclusive benefit,’ the
Pennywell[s] [each] constitute a ‘party’ for purposes of challenging the
resulting judgment.”). The Pennywell’s reliance on the Wrongful Death
Act’s one-suit policy is misplaced.
The Wrongful Death Act’s one-suit policy was first announced in
1890 by the Texas Supreme Court in Nelson v. Galveston, 14 S.W. 1021
(Tex. 1890) and has remained unchanged since then. See, e.g., Avila v.
St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 850-51 (Tex. App.—San
Antonio 1997, no pet.) (discussing the Act’s one-suit policy and
observing that “[a]lthough the act has undergone numerous
recodifications, the import of the act has remained the same”). The
Nelson opinion expressly recognized that the Act does not mandate only
one suit; rather the Act’s one-suit policy mandates only one recovery for
beneficiaries: “If the mother and one child sue, and recover only the
8Section 71.004(a) provides that “[a]n action to recover damages as provided by this
subchapter is for the exclusive benefit of the surviving spouse, children, and parents
of the deceased.” TEX. CIV. PRAC. & REM. CODE § 71.004(a).
23
compensation awarded them by a verdict, and, as in this case, another
child sues, it cannot be precluded [from also suing] on the ground that
one action has been brought by all the beneficiaries, or that one
beneficiary has brought the action for all, because no such action has
been brought.” Id. Notably, the Court also observed in the Nelson case
that the Act’s contemplation of only one suit operates “to prevent the
defendant, the company, from being subjected to a double payment to
any one beneficiary.” Id.; see also Avila, 948 S.W.2d at 850-51 (providing
that the one-suit policy of the Act is for the benefit of the defendant)
Brantley v. Boone, 34 S.W.2d 409, 411 (Tex. App.—Eastland 1931, no
writ) (same). Thus, the Act’s one-suit policy bars subsequent actions
only where full recovery occurred in the first action. Again, the
Pennywells did not file their own suit. Therefore, Seneca and the other
defendants in the underlying action had no reason to invoke the double-
recovery protections of the Wrongful Death Act’s one-suit policy. More
importantly, the one-suit policy does not confer “party” status of any
sort to Wrongful Death Act beneficiaries, like the Pennywells, who did
not bring suit and were not otherwise joined in a wrongful death action
initiated by others.
24
In an effort to save their unmeritorious arguments under the
Wrongful Death Act, the Pennywells assert that McCoy’s use of the
term “on behalf of” “makes up for any work the statute itself does not do
in binding the Pennywell[s] to the judgment.” (Response at 11). Again,
whether the subject judgment is binding on the Pennywells has no
bearing on their status as Rule 329b(e) parties. Moreover, the
Pennywells cannot escape their own allegations in the trial court, which
as shown above, provide that the underlying action totally excluded
them, it was not brought on their behalf, and the complained-of
judgment is not binding on them. (MR0135, 162). In any event, the
Pennywells failed to provide the trial court with any affidavit or other
evidence that would have established their purported standing under
the Wrongful Death Act or as a Rule 329b(e) party. Accordingly, neither
the Wrongful Death Act nor the record in this proceeding establishes
the Pennywells’ party-of-record status under Rule 329b(e).
IV. The Pennywells’ post-judgment intervention arguments
fail under this Court’s opinion in State of Texas v. Naylor.
The Pennywells’ attempt to intervene post-judgment also did not
provide them with Rule 329b(e) “party” status. The Pennywells do not
dispute the legal rule prohibiting trial courts from considering post-
25
judgment requests to intervene in a case unless and until the trial court
first sets aside its judgment. See Naylor, 2015 WL 3852284, at *2
(“[O]ur common law dictates that a party may not intervene post-
judgment unless the trial court first sets aside the judgment.”); First
Alief Bank v. While, 682 S.W.2d 251, 252 (Tex. 1984) (“[A] plea in
intervention comes too late if filed after judgment and may not be
considered unless and until the judgment has been set aside.”). Instead,
they claim an exception to this well-settled rule applies to them.
The Pennywells contend they obtained automatic Rule 329b(e)
“party” status through their post-judgment intervention under Rule 60
of the Texas Rules of Civil Procedure. (Response at 31). They reason
that extraordinary circumstances allowed their post-judgment
intervention request to circumvent the legal rule barring intervention
post-judgment until the judgment is set aside. (Response at 32). For
support, the Pennywells rely on virtual-representation-doctrine cases,
which provide a limited exception to the general rule that only parties
of record may appeal a judgment. (Id. at 32-33) (citing 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 718 (Tex, 2006)).
26
This Court recently rejected arguments similar to those made by
the Pennywells. In Naylor, the State of Texas argued it had standing to
intervene and pursue an appeal from a same-sex divorce action based
on the State’s post-judgment intervention request or alternatively based
on equitable principles under the virtual representation doctrine.
2015 WL 3852284, at *2. Before addressing these arguments, the Court
recognized that Texas’s intervention doctrine is expansive “but not
without limits” and affirmed the legal rule that a person may not
intervene post-judgment unless and until the trial court first sets aside
its judgment. Id. The Court then found that the State’s post-judgment
petition in intervention filed the day after the judgment was entered
was untimely as the trial court never set aside its judgment to entertain
the State’s arguments. Id. at *3. Therefore, the Court held, “as a simple
matter of fact and record, the State is not a party to the case.” Id. As
shown above, the same is true for the Pennywells in the underlying
action.
The Naylor Court next addressed the State’s equitable arguments,
which the State contended supplied the State’s standing on appeal.
First, the Court rejected the State’s attempt to invoke the virtual
27
representation doctrine as a basis for appellate standing. Id. In doing
so, the Court first recognized that “a third party may file an appeal
where the prospective appellant is ‘deemed to be a party’ under the
doctrine of virtual representation.” Id. at *3 (emphasis added). The
Court then observed, however, that this limited equitable doctrine does
not empower courts to create standing where none exists. Id. at *5.
The State next argued for a separate “equitable basis for appellate
standing in light of the unusual importance of the issues presented.” Id.
at *4. The Supreme Court acknowledged the significant constitutional
issues involved in the same-sex divorce action, but refused to create an
additional exception to the post-judgment intervention rules. Id. at *4
(“[A]ny challenge to our marriage laws is an affront not only to the laws
themselves, but also to the people of Texas.”). In doing so, the Court
observed that, “before [courts] can evaluate the equity of intervention,
the prospective intervenor must establish its standing to present its
arguments on appeal.” Id. at 5. The Pennywells find themselves in a
similar scenario in this proceeding in that they argue equity
considerations without establishing their standing to extend the trial
court’s plenary power period under Rule 329b(e).
28
In this Court, the Pennywells attempt to fit their situation into
the virtual representation doctrine line of cases by taking the opposite
position they asserted in the trial court. The Pennywells claim in their
brief that McCoy abandoned their rights and, therefore, sufficient
exceptional circumstances exist to circumvent the general rule barring
post-judgment intervention. (Response at 32) (citing Ledbetter, 251
S.W.3d at 36). 9 But the Pennywells did not claim in the trial court that
McCoy abandoned their interests. Instead, the Pennywells argued that
their interests were not represented by McCoy at all. Specifically, they
provided in their motion for new trial that they had independent
counsel and were not represented by McCoy’s counsel, they were totally
excluded from the underlying suit and had no notice of the suit, McCoy
had no authority to represent their interests, and the trial court’s
judgment was not binding on them. (MR0135-36, 162). Thus, the trial
court had no basis to apply the virtual representation doctrine in the
manner proposed by the Pennywells in this Court. Moreover, no Court
9The Pennywells’ attempt to characterize the underlying action as being pursued in
secrecy strains credulity given that lawsuits are public proceedings and the
underlying action is based in the largest county by population in the State.
29
has applied the virtual representation doctrine to confer “party” status
under Rule 329b(e) to extend a trial court’s plenary power period.
As a matter of equity, fairness, and consistency, if the State of
Texas’s important interest in protecting its marriage laws from attack
cannot support an equitable exception to the post-judgment
intervention rules, see Naylor, 2015 WL 3852284, at *5-*6, the
Pennywells cannot equitably intervene post-judgment in a case they
contend they were totally excluded from to protect purported wrongful
death rights they did not assert until after the statute of limitations
expired from an agreed judgment they claim is not binding on them,
(MR0135-36, 162). Thus, even if equity could confer upon the
Pennywells Rule 329b(e) “party” status to support their post-judgment
intervention efforts, which it cannot, the Pennywells offered the trial
court no equitable basis to do so. Therefore, as nonparties, the
Pennywells motion for new trial did not operate to extend the trial
court’s plenary power period under Rule 329b(e) beyond May 5, 2014,
and the trial court was without jurisdiction to set aside its judgment
when it did on June 23, 2014. TEX. R. CIV. P. 329b(e); see, e.g., In re
State & $15,975.85, 221 S.W.3d at 715; Kelly, 915 S.W.2d at 227.
30
CONCLUSION & PRAYER
As shown above and in Seneca’s brief on the merits, neither the
Wrongful Death Act, the post-judgment intervention rules, Rule 329b,
the record, nor equity conferred Rule 329b(e) “party” status on the
Pennywells. As a result, the Pennywells’ motion for new trial—filed four
days before the trial court’s plenary power period expired—did not
operate to extend the trial court’s plenary power period over the
underlying action under Rule 329b(e).
Accordingly, the trial court’s plenary power period in the
underlying case expired on May 5, 2014. The trial court, therefore, had
no power to enter further orders after that date. As a result, the trial
court’s orders entered in the underlying case after May 5, 2014, are
void, of no force and effect, and require the exercise of this Court’s
extraordinary writ powers to correct.
For these reasons, Relator Seneca Resources Corporation requests
this Court to grant this Petition and issue a Writ of Mandamus ordering
the trial court to vacate its orders entered in the underlying action after
May 5, 2014, reinstate its orders of April 1 and April 4, 2014, dismissing
all claims with prejudice, and remove this case from its trial docket.
31
Relator further requests such other and further relief to which it may
be entitled.
Respectfully submitted,
By: /s/ Alexander D. Burch
W. Ray Whitman
rwhitman@bakerlaw.com
State Bar No. 21379000
Douglas D. D’Arche
ddarche@bakerlaw.com
State Bar No. 00793582
Alexander D. Burch
aburch@bakerlaw.com
State Bar No. 24073975
Jordan A. Sinclair
jsinclair@bakerlaw.com
State Bar No. 24079341
Baker & Hostetler LLP
811 Main St., Suite 1100
Houston, TX 77002
(713) 751-1600 Telephone
(713) 751-1717 Facsimile
ATTORNEYS FOR RELATOR SENECA
RESOURCES CORPORATION
32
CERTIFICATION OF FACTUAL STATEMENTS
Pursuant to Rule 52.3(j) of the Texas Rules of Appellate
Procedure, I have reviewed this Petition and concluded that every
factual statement in the Petition is supported by competent evidence in
the appendix or record.
/s/ Alexander D. Burch
Alexander D. Burch
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate
Procedure and relying on the word-count function of the computer
program used to prepare this document, I certify that the total number
of words in this document is 5819.
/s/ Alexander D. Burch
Alexander D. Burch
33
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Reply Brief has been served in
accordance with the Texas Rules of Appellate Procedure via electronic
filing service and/or certified mail, return receipt requested on this 27th
day of August, 2015.
The Honorable Judge Wesley Ward Baxter W. Banowsky
Presiding Judge, bwb@banowsky.com
234th Judicial District Court Banowsky & Levine, P.C.
Harris County, Texas 12801 N. Central Expressway
Harris County Civil Courthouse Suite 1700
201 Caroline, 13th Floor Dallas, Texas 75243
Houston, Texas 77002
Telephone No.: (713) 368-6350 Counsel for Tammi McCoy
Chad Flores Frank A. Piazza, Jr.
cflores@beckredden.com fpiazza@brothers-law.com
1221 McKinney, Suite 4500 Two Memorial City Plaza
Houston, Texas 77010 820 Gessner, Suite 1075
Telephone: 713.951.3700 Houston, Texas 77024
Facsimile: 713.951.3720
Counsel for Patterson UTI-
-and- Drilling Company LLC
James Watkins
Harold Eisenman james.watkins@roystonlaw.com
Harold@eisenmanlaw.com Royston Rayzor
2603 Augusta Dr., Ste. 1025 The Hunter Building
Houston, Texas 77057 306 22nd Street, Suite 301
Telephone No.: 713.840.7180 Galveston, Texas 77550
Facsimile No: 713.840.9620
Counsel for Cenergy
Counsel for Joyce Ann Pennywell, International Services, LLC
Alana Pennywell, Rachel
Pennywell, and Curly Pennywell
/s/ Alexander D. Burch
Alexander D. Burch
34