Efren Avila v. Lone Star Radiology, Bob Kubicki, Dr. Kenneth Lustik, Family Care Pharmacy, Derrick Ford, and Karen Powell--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00021-CV

Efren Avila,

Appellant

v.

LONE STAR RADIOLOGY, bOB KUBICKI,

DR. KENNETH LUSTIK, FAMILY CARE

PHARMACY, DERRICK FORD,

AND KAREN POWELL,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court No. 03-00-12821-CV

corrected Opinion

Avila appeals from a judgment in an interpleader action claiming that the trial court abused its discretion by failing to award him attorney s fees. We reverse.

Background

Alfredo Saldana and Efren Avila were driving back from work in a tractor when a pick-up truck struck them from behind. The truck, owned by Andy Christopher, was driven by Daniel Alan Christopher. Avila and Saldana suffered multiple injuries and filed suit against Andy, Daniel, and B.G. Williams d/b/a Williams Asphalt, Saldana s employer. Andy and Daniel offered to settle with Avila for their policy limit, $20,000. Avila agreed, but his medical bills totaled over $70,000. Avila negotiated with his medical creditors and offered them a pro-rata share of the settlement less attorney s fees. The medical creditors refused. Subsequently, Avila filed an interpleader action, and the trial court divided the settlement among the providers, but did not award Avila attorney s fees from the settlement funds. The trial court severed this cause from the remainder of the issues in the case, and Avila appealed.

Attorney s Fees in an Interpleader Action

Avila argues in his sole issue that the trial court abused its discretion in failing to award him attorney s fees.

An interpleader action permits an innocent stakeholder facing rival claims to allow the courts to decide who is entitled to the fund and thus avoid the peril of acting as judge and jury itself. Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex. App. Corpus Christi 2003, pet. denied); Olmos v. Pecan Grove Mun. Utility Dist., 857 S.W.2d 734, 741 (Tex. App. Houston [14th Dist.] 1993, no pet.). The elements of an interpleader action are: (1) the party is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) the party has not unreasonably delayed filing an action for interpleader; and (3) the party has unconditionally tendered the fund or property into the court s registry. Hanzel v. Herring, 80 S.W.3d 167, 173 (Tex. App. Fort Worth 2002, no pet.) (citing Bryant v. United Shortline Inc., 984 S.W.2d 292, 296 (Tex. App. Fort Worth), aff'd, 972 S.W.2d 26 (Tex. 1998)). The interpleader asks only that he be released and discharged from any liability on account of the proceeds, that he recover his attorney s fees for bringing the interpleader, and that he be paid his fees and costs out of the proceeds. Id. However, the award of attorney fees is within the sound discretion of the trial court. Olmos, 857 S.W.2d at 741; Beneficial Standard Life Ins. Co. v. Trinity Nat'l Bank, 763 S.W.2d 52, 56 (Tex. App. Dallas 1988, writ denied).

Several creditors claimed an interest in Avila s settlement. There is no evidence that Avila delayed in bringing the interpleader action once it became clear that the matter could not be resolved. Further, Avila tendered the settlement amount to the trial court. Therefore, as an innocent stakeholder, Avila is entitled to recover attorney fees under Texas interpleader law. United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex. 1964) (holding that in Texas an innocent stakeholder is entitled to attorney s fees); Heggy v. American Trading Employee Retirement Account Plan, 110 S.W.3d 692, 703 (Tex. App. Houston [14th Dist.] 2003, pet denied); Olmos, 857 S.W.2d at 741. Therefore, we find that the trial court abused its discretion in failing to award Avila reasonable attorney s fees for bring the interpleader action. Accordingly, we sustain Avila s sole issue.

Conclusion

We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Corrected opinion delivered and filed December 14, 2005

[CV06]