Roberts, John Ocie v. City of La Feria, Texas--Appeal from 103rd District Court of Cameron County

    NUMBER 13-00-312-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

JOHN OCIE ROBERTS, Appellant,

v.

CITY OF LA FERIA TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

Appellant, John Ocie Roberts, filed a plea in intervention in trial court number 97-05-2134-D. The plea was denied by the trial court and the intervening suit was given a separate cause number (trial court number 2000-02-632-D). Appellant argues two issues on appeal. First, appellant contends that the trial court erred and abused its discretion in denying the plea in intervention and severing the cause of action because the court left the subject matter of appellant=s suit, the appellant=s alleged property, in the original suit. Second, appellant contends that when the trial court ultimately rendered judgment in the original suit, he was denied his rights under the open courts doctrine and that his property was taken without due process. We find the trial court did not abuse its discretion in denying the plea for intervention and the appellant was not denied due process to protect his property. The trial court=s ruling is affirmed.

A trial court's striking of a plea in intervention is reviewed under an abuse of discretion standard. See Liberty Nat=l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629-30 (Tex. 1996); Guar. Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). The trial court has broad discretion in the matter of consolidation of causes. Tex. R. Civ. P. 41 (Vernon 2002); McGuire v. Commercial Union Ins. Co., 431 S.W.2d 347, 351 (Tex. 1968). A trial court=s discretion, however, is not unlimited and the court is required to exercise sound and legal discretion within those limits created by the case=s circumstances. See Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956); Apparel Contractors, Inc. v. Vantage Props, Inc., 620 S.W.2d 666, 668 (Tex. App.BDallas 1981, writ ref'd n.r.e.).

The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Armstrong v. Tidelands Life Ins. Co., 466 S.W.2d 407, 412 (Tex. Civ. App.BCorpus Christi 1971, no writ); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). To satisfy the clear abuse of discretion standard, the appellant must show "that the trial court could reasonably have reached only one decision." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The mere fact that a trial judge decides a matter within his discretion differently than another trial or appellate judge might under similar circumstances does not constitute an abuse of discretion. Armstrong, 466 S.W.2d at 412.

In February 1992, in cause number 92-02-1201-C, in the 197th District Court of Cameron County, La Feria Independent School District, La Feria Irrigation District Cameron County No. 3, and Cameron County sued appellant, John Ocie Roberts, for delinquent ad valorem taxes on his property[1] (Aproperty@). In January 1993, the court rendered judgment in favor of the taxing entities and against appellant. In October 1996, pursuant to an order of sale, the sheriff of Cameron County sold the property to Manuel Alberto Martinez and Enrique Perez. Appellant maintains that he was not notified of the tax suit initiated against him, the judgment rendered or the subsequent sheriff=s sale of the property. In contrast, appellee contends that the tax suit=s final judgment bears the signature of appellant=s counsel.[2]

Appellant filed a plea in intervention in cause number. 97-05-2134-D, styled City of La Feria v. Manuel Alberto Martinez.[3] The La Feria/Martinez case began in May 1997, when the city brought suit against Martinez for illegally exerting control over the city=s funds. In this case, the city obtained a receivership on that property which Martinez owned. This included the property that had belonged to the appellant, since Martinez had bought the property at the sheriff=s sale in 1996. However, Martinez allegedly used the City of La Feria=s money to purchase the property at the sheriff=s sale. Therefore, appellant argues that since he had no knowledge of the previous tax suit or sale of the property, he is still the owner of the property and should be involved in the La Feria/Martinez suit.[4]

At the La Feria/Martinez trial, appellant=s plea in intervention was denied when appellant did not appear. Appellant contends he did not have notice of the hearing. The necessary parties were present at the hearing. Furthermore, he asserts he was actually in the courtroom the day of the hearing and that no hearing actually occurred, so any hearing that did occur was held behind Aclosed doors.@ Upon appellant=s default, the trial judge denied the plea in intervention and separated the appellant=s cause of action into a new cause number (cause number 2000-02-632-D). The trial court kept appellant=s property in the receivership of the La Feria/Martinez suit and proceeded to render judgment against Martinez.[5]

In this appeal, appellant argues the trial court erred in denying the plea in intervention and severing his cause of action because the court left the appellant=s alleged property in the original suit. Second, appellant contends he was denied his rights under the open courts doctrine, and when the trial court rendered judgment in the original suit his property was ultimately taken without due process.

Appellant=s first issue is that the trial court abused its discretion when the court denied the appellant=s plea in intervention and gave the appellant=s cause of action a separate cause number while leaving the appellant=s alleged property in the original suit and rendering judgment in the original suit. We overrule the first issue.

The trial court has broad discretion in determining whether an intervention should be stricken. Guar. Fed. Savs., 793 S.W.2d at 657. A person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him, he would be able to defeat recovery, or some part thereof. See Tex. R. Civ. P. 60; Guar. Fed. Savs., 793 S.W.2d at 657; Gracida v. Tagle, 946 S.W.2d 504, 506 (Tex. App.BCorpus Christi 1997, no writ). It is an abuse of discretion to strike a plea in intervention if: 1) the intervenor could have brought any part of the action in is own name; 2) the intervention will not complicate the case by an excessive multiplication of the issues; and 3) the intervenor meets its burden to show a justiciable interest in the lawsuit. Guar. Fed. Savs., 793 S.W.2d at 657; Nat=l Union Fire Ins. Co., v. Pennzoil Co., 866 S.W.2d 248, 250 (Tex. App.BCorpus Christi 1993, no writ). If the intervenor=s interest in the subject matter of the litigation is contingent or remote, he is not entitled to intervene. Rogers v. Searle, 533 S.W.2d 440, 442 (Tex. Civ. App.BCorpus Christi 1976, no writ).

None of the necessary requirements have been met to show the trial court abused its discretion in this case. First, the suit in which appellant was attempting to intervene was originally brought by the City of La Feria against Martinez for embezzlement of funds. Appellant Roberts had no standing to prosecute the city=s complaints against Martinez. Second, appellant=s cause of action rests on facts and theories that are significantly different than those presented in the La Feria/Martinez case and would not normally be included in the cause of action. The only nexus between appellant and Martinez is the property. The issue of ownership of the property is determined by the tax suit and the ensuing order of sale, neither of which are integrally related to La Feria=s suit. Third, although appellant does have an interest in the property, his interest is not justiciable. Appellant=s interest was not wholly contingent upon a judgment in the La Feria/Martinez case. See Mendez, 626 S.W.2d at 499. In fact, the judgment in the La Feria case does nothing to change or alter the original judgment of the tax suit of which appellant complains.

To satisfy the clear abuse of discretion standard, the appellant must show the trial court could reasonably have only sustained the plea in intervention and the appellant has not done so. See Walker, 827 S.W.2d at 840. The appellant has not shown that the trial court made its decision without referencing any guiding law or principles and, for these reasons, we must overrule appellant=s first issue.

Appellant=s second issue is that the trial court denied him access to the open courts doctrine and due process when it kept his alleged property in the lawsuit and rendered judgment on the original suit.

First, appellant=s reliance on the open courts doctrine is misplaced because the provision is only applicable if there is some legislative barrier to the courts. Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997); Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex. App.BTexarkana 1994, writ denied). The open courts doctrine has three constitutional guarantees. Randle, 881 S.W.2d at 56. First, the courts must be actually operating and available. Id. Second, the legislature cannot impede access to the courts by unreasonable financial barriers. Id. Third, meaningful remedies must be afforded and the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigant=s constitutional right of redress. Id. Under this definition, the open courts provision is only applicable when the legislature attempts to abrogate a right; the provision is inapplicable when challenging a discretionary act of a trial court. Id.

In this case, appellant is attacking the discretionary act of the trial court=s denial of his plea in intervention. Therefore, since the legislature has not impeded access to the courts, appellant=s reliance on the open courts doctrine is misplaced. See id.

Secondly, the record does not adequately demonstrate that the trial court violated any due process rights by its denial of the plea in intervention. Substantive due process bars arbitrary governmental actions regardless of the fairness of the procedures used to implement them. Zinermon v. Burch, 494 U.S. 113, 125 (1990); Levine v. Maverick County Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 795 (Tex. App.BSan Antonio 1994, writ denied). As stated above, the trial court did not arbitrarily deny appellant=s plea, and thus there was not a denial of substantive due process. See Burch, 494 U.S. at 125.

Procedural due process requires the state not deprive its citizens of property without first providing appropriate procedural safeguards and notice that is reasonably calculated to inform an individual of the pendency of the action against him in order to give him an opportunity to be heard. Burch, 494 U.S. at 125; Hinojosa v. Tagle, 667 S.W.2d 927, 928 (Tex. App.BCorpus Christi 1984, no writ). The record shows that on May 11, 1999, the order setting the La Feria/Martinez trial date of January 24, 2000 at 9 a.m. was sent to counsel on record for appellant. In addition, the same order indicated that announcements pertaining to the trial would be heard on January 21, 2000. At the January 21st proceedings, numerous references were made to the trial date, including specific references to the appellant=s intervention. Despite these notices, the court=s record denying the plea indicates neither appellant, nor appellant=s counsel, was present at either hearing.

Appellant argues that he thought there might be a trial on January 24, 2000, indicating he was, at some time, informed of a trial date. Moreover, appellant states he was actually in the courtroom on January 24th waiting for trial, but no trial occurred. Because of these assertions, appellant asserts that the trial was held in secret and behind closed doors, thus abrogating his right to be heard. However, neither the record before this Court, nor any evidence presented by the appellant, other than his statement, supports this contention. In fact, appellee states in a sworn affidavit that prior to proceeding on January 24, 2000 the trial court asked if appellant was present before hearing argument on the plea. Additionally, appellee=s counsel states he looked for appellant in the courtroom but did not find him. Finally, the judicial order denying the plea in intervention indicates that all parties were present at the hearing with the exception of appellant.

Any denial of procedural due process which may or may not have occurred would have occurred in the original tax suit and the actions of that court are not before this Court. See Tex. R. App. P. 33.1. Furthermore, appellant=s claims with regard to the propriety of those actions may be addressed in the action as severed by the trial court. Therefore, for the above reasons, we conclude that there was no denial of due process by the trial court=s denial of intervention.

We overrule both issues presented by appellant. The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

22nd day of August, 2002.

[1] All of Block 1, Rabb Heights Subdivision Number 1, and the West 2 feet of the South 321.46 feet of Block 2, Rabb Heights Subdivision Number 1. La Feria Grant, Cameron County, Texas.

[2] The official sheriff=s order of sale and the deed transferring the property to Martinez were included in the record; however, the final judgment was not.

[3] Appellant=s first plea in intervention was filed pro se on June 8, 1998. On January 7, 1999, Angela Nix, attorney of record for appellant, filed an amended plea in intervention.

[4] Appellant claims his first notice of the sale occurred when the City of La Feria=s receiver placed notice of the receivership on the property. Moreover, apparently, at some time after the appellant=s plea in intervention, appellant along with counsel, filed a bill of review on the previous tax suit. Subsequently, the bill of review was denied and the tax suit was rendered final.

[5] Final judgment was signed on February 7, 2000.