Consumers County Mutual Insurance Company v. Eugenio Mendoza, Sr.

NUMBER 13-05-0024-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CONSUMERS COUNTY MUTUAL

INSURANCE COMPANY, Appellant,

v.

EUGENIO MENDOZA, SR., ET AL., Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez

   Consumers County Mutual Insurance Company ("Consumers") appeals an order striking its plea in intervention and a turnover order nunc pro tunc. We conclude that the trial court abused its discretion in striking Consumers' plea in intervention and that the turnover order nunc pro tunc is void. We vacate that order and dismiss this appeal for want of jurisdiction.

I. Background

On December 9, 1999, Eugenio Mendoza, Sr., Eugenio Mendoza, Jr., Maria Helena Mares, Ana Maria Solomon, Irma M. Cavazos, Robert F. Mendoza, Ramona E. Rodriguez, San Juanita D. Acevedo, Nancy Corinne De Luna and Reynaldo Mendoza, and David A. Ewers, as administrator of the estate of Maria de Jesus Mendoza, deceased, brought suit against Jose Antonio Garcia and Geronimo Mendoza, Sr., individually, and d/b/a Looney Tunes Day Care in the 139th District Court of Hidalgo County. According to the petition, Geronimo Mendoza, Sr. drove to the grocery store to obtain supplies for his business, Looney Tunes Day Care. Maria de Jesus Mendoza was a passenger in his vehicle. Garcia ran a stop sign and collided with Mendoza's vehicle resulting in the death of Maria de Jesus Mendoza.

Isabel Peralez Flores, Veronica Mendoza, individually and as next friend of Geronimo Mendoza, Jr., Clarissa Mendoza, Shameka Mendoza, and Geronimo Mondoza, Sr. intervened in the lawsuit.

On January 24, 2001, the trial court entered judgment in favor of the plaintiffs and intervenors against Garcia. ⁽¹⁾ The judgment reflects that Garcia was proceeding pro se.

On April 15, 2002, the plaintiffs and intervenors applied for turnover relief against Garcia in that same court and cause number: ⁽²⁾

Plaintiffs and Intervenors would show the Court that Defendant is the owner of property described as a fraud cause of action, a breach of fiduciary duty cause of action, a negligence cause of action, a breach of contract cause of action, a deceptive trade practice cause of action, a bad faith cause of action, and several causes of action cited in the Texas Insurance Code, Articles 21.21, et seq. and other sections of the code which are appropriate in this case against AMCO Insurance Company, Inc., pursuant to a Texas Auto Policy ("policy") issued by them [sic]. This property owned by Defendant cannot readily be attached or levied on by ordinary legal process. The property is not exempt under any statute from attachment, execution, or seizure for the satisfaction of liabilities.

Plaintiffs and Intervenors move the Court to order Defendant to turn over said property, with all documents or records related to the property, including the policy of insurance, to applicants' respective attorneys.

On September 30, 2002, a hearing was held on the application for turnover relief. AMCO Insurance Company ("AMCO") did not appear by counsel or otherwise. During the hearing on the motion for turnover relief, counsel stated that the "defendant doesn't have any assets other than really a bad faith claim and pending claims against his insurance carrier, so what we'd like to do is get turned over to the plaintiffs and the intervenors here the claim that the defendant has." Counsel additionally requested "turnover relief [of] the defendant's cause of action if he has any against his insurance company. . . ." That same day, the trial court granted turnover relief against AMCO. The existence or potential existence of any other insurance companies was neither discussed at the hearing nor referenced in the turnover order.

Some time thereafter, plaintiffs and intervenors brought suit against Consumers and other insurance carriers in a separate cause in the 93rd Judicial District Court in Hidalgo County, Texas, regarding Garcia's causes of action for failure to defend and indemnify him in the aforementioned suit. Consumers filed a motion for summary judgment against plaintiffs and intervenors challenging their standing and capacity to assert claims against Consumers. In its motion, Consumers argued that the turnover order assigned claims against AMCO and not Consumers, and there was no assignment of any claim against Consumers.

On December 15, 2004, the plaintiffs and intervenors moved for a turnover order nunc pro tunc in the original cause:

The order entered in the above-entitled cause by the clerk does not faithfully correspond to the order of the Court in that the order omits turnover relief to Jose Garcia's causes of action against all of his insurers. The order should have specified AMCO Insurance Agencies, Inc., Consumers' County Mutual Insurance Company, and any other applicable insurance company, as those are the insurance carriers against whom Defendant Jose Garcia had a potential cause of action . . . .

Counsel for Plaintiffs and Intervenors discovered quickly following the hearing [on the original turnover order] that AMCO was merely the seller of the insurance policy, but that the insurance carrier issuing the policy was Consumers County Mutual lnsurance Company. The order signed by the Court, however, specified only AMCO Insurance Co. Clearly, it was contemplated by the Court and the attorneys that the order would include Jose Garcia's causes of action against his insurance carrier, not merely the agent who sold the policy.

The trial court agreed and entered a turnover order nunc pro tunc that same day. The nunc pro tunc order vacates the September 30, 2002 turnover order, and issues the new order "in its place to be effective from September 30, 2002." The nunc pro tunc provides, in part:

IT IS THEREFORE ORDERED that Defendant JOSE ANTONIO GARCIA, turn over for levy to Plaintiffs, Intervenors and their attorneys immediately, the following: a fraud cause of action, a breach of fiduciary duty cause of action, a negligence cause of action, and several causes of action cited in the Texas Insurance Code, Article 21.21, et seq and other sections of the code which are appropriate in this case against AMCO Insurance Agencies, Consumers' County Mutual Insurance Company, and any other insurance company or entity, pursuant to a policy of insurance more specifically described as: a Texas Auto Policy ("policy") issued by them; together with all documents or records related to the causes of action and property, including all rights whatsoever under the policy in question issued by AMCO Insurance Agencies and/or Consumers' County Mutual Insurance Company, pursuant to a policy of insurance more specifically described as: a Texas Auto Policy.

Consumers was not a party to this nunc pro tunc proceeding. It was not notified when plaintiffs and intervenors filed their motion for a nunc pro tunc turnover order or when the trial court granted the nunc pro tunc order.

On January 14, 2005, Consumers filed a plea in intervention in this original lawsuit. According to Consumers:

[I]ntervention is now necessary given this Court's December 15, 2004 Turnover Order Nunc Pro Tunc which assigns to the underlying Plaintiffs, Intervenors and their attorneys various causes of action against Consumers County that allegedly are held by Jose Antonio Garcia, the defendant in the underlying action. Consumers County has a justiciable interest in this turnover proceeding because the order forms the basis of Plaintiff's and Intervenors' Stowers and other claims filed against Consumers County in the 93rd Judicial District Court, Hidalgo County, Texas.

On February 3, 2003, the trial court struck Consumers plea in intervention.

Consumers now appeals the order striking its intervention and the turnover order nunc pro tunc. In two issues, Consumers contends that the trial court abused its discretion in striking its plea in intervention and in issuing an allegedly invalid nunc pro tunc order which should not apply retroactively.

II. Plea in Intervention

In its first issue, Consumers argues that the trial court abused its discretion by striking its plea in intervention. Consumers contends that it has a justiciable interest in the relief granted in the turnover order nunc pro tunc because it adds references to Consumers, and others, and purports to apply retroactively. Consumers further argues that, had the lawsuit been brought against Consumers, it could have defeated all or some of the recovery; the intervention will not complicate the case; and intervention is almost essential to protect Consumers' $30 million interest. In reply, appellees argue that Consumers had no standing to intervene in this case because it had no justiciable interest in the judgment. Appellees further argue that Consumers has made no showing which would justify allowing it "two bites at the apple" in review of the turnover order at issue, pointing to an earlier original proceeding attacking this same issue.

Intervention is governed by Texas Rule of Civil Procedure 60. See Tex. R. Civ. P. 60. This rule provides that "[a]ny party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause on the motion of any party." See id. Courts have considerable discretion in determining whether an intervention should be struck. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). 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. Id.; Tex. Mut. Ins. Co. v. Ledbetter, 192 S.W.3d 912, 918 (Tex. App.-Eastland 2006, pet. filed); Caprock Inv. Corp. v. FDIC, 17 S.W.3d 707, 710-11 (Tex. App.-Eastland 2000, pet. denied).

Once a motion to strike has been filed, the burden shifts to the intervenor to show a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982). The interest asserted by the intervenor may be legal or equitable. Id.; Guar. Fed. Sav. Bank, 793 S.W.2d at 657; 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, 671-672 (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. Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.-Fort Worth 2003, no pet.). However, the interest must be more than a mere contingent or remote interest. Intermarque Auto. Prods. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.-Texarkana 2000, no pet.).

Based on the foregoing, we conclude that Consumers had a justiciable interest in the turnover proceedings. The judgment in favor of the plaintiffs and intervenors in the 139th District Court led to an action against Consumers in the 93rd District Court. See Evan's World Travel, Inc. v. Adams, 978 S.W.2d 225, 234-35 (Tex. App.-Texarkana 1998, no pet.) ("If an intervenor-defendant could not have been sued directly, but a judgment for the plaintiff may lead to an action against the intervenor or otherwise seriously prejudice the intervenor . . . the intervention is necessary to assure a proper defense against the claim."); cf. Gerjets v. Davila, 116 S.W.3d 864, 870 (Tex. App.-Corpus Christi 2003, no pet.) (concluding that third parties potentially aggrieved by an order have a right to appellate review of the order to protect their affected property interests). While appellees contend that Consumers has no justiciable interest in the judgment below, we note that Consumers is challenging the nunc pro tunc turnover order and not the judgment itself. Moreover, while we agree with appellees that post-judgment interventions are, as a general rule, untimely, such post-judgment interventions are not necessarily barred when the intervenor is not attacking the substance of the judgment itself, but merely seeks to protect its interest in property that is the subject of a turnover motion. Compare Breazeale v. Casteel, 4 S.W.3d 434, 436-37 (Tex. App.-Austin 1999, pet. denied) (allowing post-judgment intervention in turnover proceedings) with First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (refusing intervention where final judgment has been rendered); In re Guerra & Moore, L.L.P., 35 S.W.3d 210, 217 (Tex. App.-Corpus Christi 2000, orig. proceeding) (motion to intervene must generally be made before oral judgment is rendered).

Appellees contend that we should not allow Consumers "two bites at the apple" given that Consumers has previously filed a petition for writ of mandamus on this issue. We disagree. Appeals and original proceedings are two different avenues for review with varying standards of review and different burdens of proof. Moreover, we would note that original proceedings are not allowed when the relator has an adequate remedy by appeal. See In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003). Accordingly, whether or not Consumers filed an original proceeding is not dispositive or preclusive, of this appeal.

We sustain Consumers' first issue. Having concluded that the trial court abused its discretion in striking Consumers' plea in intervention, we next address Consumers' complaints regarding the turnover order nunc pro tunc.

III. Turnover Order Nunc Pro Tunc

In its second issue, Consumers contends that the turnover order nunc pro tunc is not a nunc pro tunc order and therefore does not apply retroactively. Consumers argues that error, if any, was not clerical in nature. Consumers further argues that the turnover order nunc pro tunc is a nullity because (1) plaintiffs and intervenors failed to give Consumers notice of the application or hearing on the nunc pro tunc order, and (2) the turnover order nunc pro tunc is procedurally defective.

An order nunc pro tunc, which may be entered even after the expiration of a trial court's plenary power, may only be used to correct clerical errors. Tex. R. Civ. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); Gutierrez v. Elizondo, 139 S.W.3d 768, 771 (Tex. App.-Corpus Christi 2004, no pet.). A clerical error is a discrepancy between the entry of a judgment in the record and the judgment the trial court actually rendered. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). A trial court may only correct nunc pro tunc the entry of a final written judgment that incorrectly states the judgment actually rendered. Escobar, 711 S.W.2d at 231-32. Conversely, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.-Houston [1st Dist.] 2005, no pet.). When deciding whether a correction is a judicial or clerical error, we look to the judgment actually rendered, not the judgment that should or might have been rendered. Escobar, 711 S.W.2d at 231. A judgment nunc pro tunc should be granted if the evidence is clear and convincing that a clerical error was made. In re Broussard, 112 S.W.3d 827, 833 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding); Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex. App.-Houston [1st Dist.] 1997, no writ).

In the instant case, the original turnover order provided the relief requested by motion and orally at the hearing on the turnover order, that is, the turnover of Garcia's claims against AMCO. The turnover order does not incorrectly state the order actually rendered. Instead, the turnover order nunc pro tunc adds new parties, Consumers and others, who were not referenced previously in the lawsuit by pleading or argument. There is no evidence the claimed omission in the order was the result of a clerical error or that the trial court or parties even had knowledge of the existence of Consumers at the time the original turnover order was rendered. Rather, the error at issue arose from "a mistake of law or fact" that required "judicial reasoning or determination to correct." LaGoye v. Victoria Wood Condo. Ass'n, 112 S.W.3d 777, 783 (Tex. App.-Houston [14th Dist.] 2003, no pet.). The law is clear that a drafting error by a party's attorney does not constitute a clerical error. See id. at 784. We sustain Consumers' second issue.

We conclude that the turnover order nunc pro tunc was a prohibited attempt to correct a judicial error. Thus, the turnover order nunc pro tunc is void because it was entered outside the trial court's plenary power. See Tex. R. Civ. P. 329b(d) (trial court has plenary power to vacate, modify, correct, or reform judgment within thirty days after judgment is signed); Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (if trial court corrects judicial-error after its plenary power has expired, then corrected judgment is void).

Having concluded that the order is void, we need not address Consumers' other subissues pertaining to procedural defects in the nunc pro tunc proceeding. See Tex. R. App. P. 47.1.

IV. Conclusion

We vacate as void the trial court's December 15, 2004 turnover order nunc pro tunc and dismiss this appeal for want of jurisdiction. See Tex. Prop. & Cas. Ins. Guar. Ass'n v. De Los Santos, 47 S.W.3d 584, 588 (Tex. App.-Corpus Christi 2001, no pet.) (vacating void judgment and dismissing appeal); Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (holding that appellate court must set aside a void trial court judgment); see also Wall Street Deli, Inc. v. Boston Old Colony Ins. Co., 110 S.W.3d 67, 70 (Tex. App.-Eastland 2003, no pet.) (concluding that the appellate court should dismiss an appeal from a void judgment for want of jurisdiction).

ROGELIO VALDEZ,

Chief Justice

Memorandum Opinion delivered and filed

this the 8^th day of March, 2007.

1. The style of the final judgment reflects additional defendants, Edinburg Colonial Manor, Inc., Edna Bingham and Lynn Arnold. The body of the judgment does not reflect a finding against these defendants and they are not parties to this appeal.

2. The turnover statute does not require that the judgment creditor appear before a court in a single proceeding, but provides that the judgment creditor may move for the court's assistance in the same proceeding in which the judgment is rendered, or in an independent proceeding. Tex. Civ. Prac. & Rem. Code Ann. § 31.002(a) (Vernon Supp. 2006).