Claude Hugh Lloyd, Jr. and Cassondra Jean Lloyd v. Joyce Whitmire and American Home Products--Appeal from 260th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-148 CV
____________________
CLAUDE HUGH LLOYD, JR. AND CASSONDRA JEAN LLOYD, Appellants
V.
JOYCE WHITMIRE and
AMERICAN HOME PRODUCTS, CORPORATION, ETAL, Appellees
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-000154-C
MEMORANDUM OPINION

Claude Hugh Lloyd, Jr. and Cassondra Jean Lloyd appeal pro se from the trial court's order striking their plea in intervention. For the reasons set forth below, we affirm.

Rule 60 of the Texas Rules of Civil Procedure sets out an applicant's right to intervene in litigation, "subject to being stricken out by the court for sufficient cause on the motion of any party." Tex. R. Civ. P. 60. A trial court is given broad discretion in deciding on a motion to strike, and its decision will be reversed only if it has abused that discretion. See Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). In Guaranty Federal, the supreme court held it is an abuse of discretion to strike a plea in intervention if: (1) the intervenor can show that he 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; (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. Thus, appellants must satisfy all three prongs of the Guaranty Federal test to prevail.

In their brief, appellants' cite no authority in support of their position and make no attempt to demonstrate their plea met the requisites of Guaranty Federal. See Tex. R. App. P. 38.1. It is not apparent from the record before us that appellants were entitled to intervene. Accordingly, we cannot say the trial court abused its discretion in striking appellants' plea in intervention.

Appellee Whitmire has also requested that we sanction appellants for filing a frivolous appeal. Texas Rule of Appellate Procedure 45 provides that if the court of appeals determines that an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals. See Tex. R. App. P. 45. Under the current rule, "just damages" are permitted if an appeal is objectively frivolous and injures the appellee. See Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.--San Antonio 1999, no pet.). Whitmire's brief fails to provide any estimation of an amount that would be "just." We are unwilling to simply "guess" as to the extent appellee has been prejudiced. Accordingly, we deny the request for sanctions.

The judgment of the trial court is affirmed. Appellee's Motion to Dismiss Appeal is denied as moot.

AFFIRMED.

 

PER CURIAM

 

Submitted on March 27, 2003

Opinion Delivered April 3, 2003

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.