Shirley Neeley vs. West-Orange-Cove Consolidated Indep. Sch. Dist. (Tex.App.- Austin, June 21, 2007)(Henson)(ISD)(award of attorney's fees affirmed)
AFFIRMED: Opinion by Justice Henson
Before Chief Justice Law, Justices Puryear and Henson
03-06-00460-CV
Shirley Neeley, Texas Commissioner of Education; The Texas Education Agency; Carol Keeton Strayhorn, Texas Comptroller of Public Accounts; and The Texas State Board of Education v. West Orange-Cove Consolidated Independent School District; Coppell Independent School District; La Porte Independent School District; Port Neches-Groves Independent School District; Dallas Independent School District, et al.
Appeal from 250th District Court of Travis County
NO. 03-06-00460-CV
Shirley Neeley, Texas Commissioner of Education; the Texas Education Agency; Carol Keeton Strayhorn, Texas Comptroller of Public Accounts; and
the Texas State Board of Education, Appellants
v.
West Orange-Cove Consolidated Independent School District; Coppell Independent School District; La Porte Independent School District; Port Neches-Groves Independent School District; Dallas Independent School District, et al., Appellees (1)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GV-01-000528, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
OPINION BY JUSTICE HENSON
The State appellants challenge the award of attorneys' fees to the school district appellees (the Districts) in a suit for declaratory and injunctive relief under the Uniform Declaratory Judgments Act (UDJA) and article VII, § 1 and article VIII, § 1-e of the Texas Constitution.
Four Texas school districts, who were later joined by 43 additional districts (collectively, the West Orange-Cove Districts), initially brought suit against the State, claiming that the State's school-finance system constituted a state property tax prohibited by article VIII, §1-e and that the system failed to adequately provide for a general diffusion of knowledge as required by article VII, § 1. Two additional sets of school districts, the Edgewood Districts and the Alvarado Districts, intervened, also seeking declarations that the system violated article VII, § 1. The trial court found in favor of the Districts on all but one claim and awarded attorneys' fees to the Districts.
The State appealed directly to the Texas Supreme Court, which held that the school-finance system met the standards of article VII, § 1, but that it created a state property tax in violation of article VIII, § 1-e. The supreme court remanded the case to the trial court to reconsider the amount of attorneys' fees to be awarded. On remand, the trial court reinstated the original amount of attorneys' fees awarded to the West Orange-Cove Districts and awarded fees to the Edgewood and Alvarado Districts in a slightly reduced amount.
The State appeals the award of attorneys' fees to the Districts, claiming that the trial court abused its discretion in awarding attorneys' fees because (1) the relief sought by the Districts' declaratory-judgment claim was identical to that available directly under self-executing constitutional provisions and (2) the trial court did not properly account for the fact that the State prevailed in the Texas Supreme Court on all but one of the Districts' claims.
BACKGROUND
In 2001, the West Orange-Cove Districts, a group that was originally made up of four Texas school districts but has since grown to a coalition of 47 districts, filed a lawsuit claiming that the school-finance system's property tax cap of $1.50 per $100 resulted in a state property tax in violation of article VIII, § 1-e of the Texas Constitution. (2) The trial court dismissed the case, and that dismissal was affirmed by this Court, but the Texas Supreme Court reversed our judgment, remanding the case to allow the West Orange-Cove Districts to proceed with their claim. West Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558 (Tex. 2003). The original four plaintiff districts were then joined by 43 additional districts, and the West Orange-Cove Districts amended their petition to include an adequacy claim, stating that the school-finance system prevented them from providing a "general diffusion of knowledge," in violation of article VII, § 1. (3) The Edgewood and Alvarado Districts intervened in the case, asserting adequacy claims and also including efficiency claims, arguing that the school-finance system was inefficient in violation of article VII, § 1. Each set of districts also sought attorneys' fees under the UDJA.
The trial court ruled in favor of the West Orange-Cove Districts on their claims for declaratory relief under article VII, § 1 and article VIII, § 1-e. The trial court also ruled in favor of the Edgewood and Alvarado Districts on their adequacy claims and their efficiency claims that were related to facilities funding, but ruled in favor of the State on the Edgewood and Alvarado Districts' efficiency claims related to maintenance and operations funding. In a separate, bifurcated proceeding, the trial court awarded attorneys' fees to each set of Districts under the UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997).
The State filed a direct appeal of the trial court's judgment to the Texas Supreme Court, but did not challenge the award of attorneys' fees. (4) The supreme court affirmed the trial court's article VIII, § 1 ruling, but ruled in favor of the State on the adequacy and efficiency claims. In light of these rulings, the supreme court remanded the case for reconsideration of the attorneys' fees award, stating, "[W]e reverse the award of attorney fees and remand the case to the district court to reconsider what award of attorney fees, if any, is appropriate. We express no opinion on this issue." Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 799 (Tex. 2005).
On remand and after a hearing, the district court reinstated the West Orange-Cove Districts' award of $2,657,606.00 in attorneys' fees. The trial court awarded reduced amounts of $1,256,395.20 to the Edgewood Districts and $263,912.50 to the Alvarado Districts. Each set of districts was awarded post-judgment interest and conditional appellate fees.
STANDARD OF REVIEW
A trial court's judgment in granting or denying attorneys' fees in a declaratory-judgment action is reviewed for an abuse of discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). The trial court's judgment will not be reversed unless "the trial court abused its discretion by awarding fees when there was insufficient evidence that the fees were reasonable and necessary, or when the award was inequitable or unjust." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
DISCUSSION
The State contends that the Districts are not entitled to attorneys' fees under the UDJA because a declaratory judgment may not be used solely as a vehicle to obtain attorneys' fees. The State argues that because articles VII and VIII are self-executing constitutional provisions, the Districts were limited to bringing direct claims under the Constitution and are therefore ineligible for attorneys' fees under the UDJA. However, the State did not assert this argument until after the case had been remanded to the trial court for reconsideration of the attorneys' fees award. The State did not argue that the Districts were precluded from an award of attorneys' fees in its direct appeal to the supreme court.
A party may not introduce an issue on remand that it failed to raise in previous appellate proceedings. See Miller v. University Sav. Ass'n, 858 S.W.2d 33, 36 (Tex. App.--Houston [14th Dist.] 1993, writ denied). Because the State had ample opportunity to contest the award of attorneys' fees in the direct appeal, "we will not permit a substantive argument of this nature to now be raised." Head Indus. Coatings & Servs., Inc. v. Maryland Ins. Co., 981 S.W.2d 305, 311 (Tex. App.--Texarkana 1998, pet. denied). The State is not exempt from the requirement that issues must be raised in appellate proceedings prior to remand. See Nations v. State, 944 S.W.2d 795, 799 (Tex. App.--Austin 1997, pet. ref'd) (holding that State waived argument about reliability of expert's testimony when issue was first raised on remand).
The State argues that the propriety of the award of attorneys' fees was not within the direct-appeal jurisdiction of the Texas Supreme Court and that therefore the State's failure to assert the issue on direct appeal did not constitute a waiver. The Texas Supreme Court, however, may exercise jurisdiction over arguments ancillary to an issue over which it has direct-appeal jurisdiction. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 749 n.39 (Tex. 1995). When the supreme court has "appellate jurisdiction of any issue, it acquires 'extended jurisdiction' of all other questions of law properly preserved and presented." Id. (quoting City of Corpus Christi v. Public Util. Comm'n, 572 S.W.2d 290, 294 (Tex. 1978)). As a result, the State could have properly raised its argument that the Districts could not seek attorneys' fees under the UDJA on direct appeal to the Texas Supreme Court. Because the State failed to do so, the issue is waived and we need not reach the merits of whether the Districts' use of the UDJA was appropriate.
While the State has waived its argument that attorneys' fees should not be awarded to the Districts, we may review the trial court's award of attorneys' fees to ensure that the award is equitable and just. Bocquet, 972 S.W.2d at 21. A trial court's judgment regarding the award of attorneys' fees "will not be reversed on appeal absent a clear showing that [the trial court] abused [its] discretion." Oake, 692 S.W.2d at 455.
The record reflects that each set of Districts made significant contributions in what turned out to be a highly complex lawsuit that required large amounts of statistical and demographic data. The contributions of each set of Districts were essential to the litigation as a whole, including the claim that ultimately prevailed. Furthermore, as the trial court noted in the April 11, 2006 hearing on attorneys' fees, "[i]f it weren't for this case . . . I'm not sure the State leaders in the legislative branch would be as active as they are at problem-solving these dire problems. And to that extent, the litigation is absolutely necessary and indispensable." We hold that the award of attorneys' fees to each of the Districts was equitable and just, in light of the fact that the Districts were required to pursue extensive and costly litigation in order to remedy a school-finance problem with statewide implications.
The State argues that the trial court abused its discretion in awarding attorneys' fees to parties that did not prevail on their claims. However, "the award of attorneys' fees in declaratory judgment actions is clearly within the trial court's discretion and is not dependent on a finding that a party 'substantially prevailed.'" Barshop v. Medina County Underwater Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). As a result, we hold that the trial court did not abuse its discretion by awarding attorneys' fees to nonprevailing parties.
The State also contends that if attorneys' fees are awarded to the Districts, such awards should be offset by the State's fees related to claims in which the State prevailed. The State has not provided this Court with any authority for using such a method of calculating the amount of attorneys' fees to be awarded. The trial court is free to consider the relative success of the parties when determining the amount of the Districts' attorneys' fees. Mercier v. Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 776 (Tex. App.--Corpus Christi 2007, no pet.). There is no evidence suggesting that the trial court did not make such a consideration in determining the amount of attorneys' fees to award on remand. Furthermore, as noted above, whether or not a party prevails on its claim is not determinative in the decision to award attorneys' fees for declaratory-judgment actions. See Barshop, 925 S.W.2d at 637. As a result, we hold that the State's argument for offsetting the award of attorneys' fees is without merit.
CONCLUSION
Because the State waived its argument regarding the propriety of the attorneys' fees awarded by not asserting it on direct appeal to the Texas Supreme Court and because the awards were equitable and just, the trial court's judgment awarding attorneys' fees is affirmed.
________________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: June 21, 2007
Appendix A
The complete list of appellees is as follows:
West Orange-Cove Consolidated Independent School District; Coppell Independent School District; La Porte Independent School District; Port Neches-Groves Independent School District; Dallas Independent School District; Austin Independent School District; Houston Independent School District; Alamo Heights Independent School District; Allen Independent School District; Argyle Independent School District; Beckville Independent School District; Carrollton-Farmers Branch Independent School District; Carthage Independent School District; College Station Independent School District; Cypress-Fairbanks Independent School District; Darrouzet Independent School District; Deer Park Independent School District; Fairfield Independent School District; Graford Independent School District; Grapevine-Colleyville Independent School District; Hallsville Independent School District; Highland Park Independent School District; Humble Independent School District; Katy Independent School District; Kaufman Independent School District; Lake Travis Independent School District; Lewisville Independent School District; Lubbock Independent School District; Marble Falls Independent School District; McCamey Independent School District; Miami Independent School District; Northeast Independent School District; Northside Independent School District; Northwest Independent School District; Palo Pinto Independent School District; Pearland Independent School District; Plano Independent School District; Pringle-Morse Consolidated Independent School District; Richardson Independent School District; Round Rock Independent School District; Round Top-Carmine Independent School District; Spring Branch Independent School District; Spring Independent School District; Stafford Municipal Independent School District; Sweeny Independent School District; Terrell Independent School District; Texas City Independent School District; Abbott Independent School District; Academy Consolidated Independent School District; Aldine Independent School District; Alpine Independent School District; Alvarado Independent School District; Amarillo Independent School District; Anna Independent School District; Anthony Independent School District; Aspermont Independent School District; Athens Independent School District; Aubrey Independent School District; Avalon Independent School District; Avery Independent School District; Axtell Independent School District; Balmorhea Independent School District; Bangs Independent School District; Beeville Independent School District; Bells Independent School District; Belton Independent School District; Big Sandy Independent School District; Blanket Independent School District; Blooming Grove Independent School District; Boles Independent School District; Boling Independent School District; Bonham Independent School District; Booker Independent School District; Borger Independent School District; Bowie Independent School District; Brock Independent School District; Brownfield Independent School District; Bruceville-Eddy Independent School District; Bryson Independent School District; Buckholts Independent School District; Burkburnett Independent School District; Burkeville Independent School District; Cameron Independent School District; Campbell Independent School District; Canton Independent School District; Canutillo Independent School District; Canyon Independent School District; Central Heights Independent School District; Central Independent School District; Chapel Hill Independent School District; Childress Independent School District; China Spring Independent School District; Chireno Independent School District; Cisco Independent School District; City View Independent School District; Cleburne Independent School District; Clint Independent School District; Coleman Independent School District; Collinsville Independent School District; Commerce Independent School District; Community Independent School District; Como-Pickton Independent School District; Connally Independent School District; Cooper Independent School District; Copperas Cove Independent School District; Corpus Christi Independent School District; Cotton Center Independent School District; Covington Independent School District; Crandall Independent School District; Crawford Independent School District; Crosby Independent School District; Dalhart Independent School District; Desoto Independent School District; Detroit Independent School District; Diboll Independent School District; Dickinson Independent School District; Dilley Independent School District; Dime Box Independent School District; Dimmitt Independent School District; Dodd City Independent School District; Douglass Independent School District; Driscoll Independent School District; Early Independent School District; Ector Independent School District; El Paso Independent School District; Electra Independent School District; Elkhart Independent School District; Elysian Fields Independent School District; Ennis Independent School District; Era Consolidated Independent School District; Etoile Independent School District; Everman Independent School District; Falls City Independent School District; Fannindel Independent School District; Ferris Independent School District; Forney Independent School District; Fort Davis Independent School District; Fort Worth Independent School District; Frost Independent School District; Gainesville Independent School District; Ganado Independent School District; Garrison Independent School District; Gilmer Independent School District; Godley Independent School District; Grandview Independent School District; Gregory-Portland Independent School District; Gunter Independent School District; Hale Center Independent School District; Hamlin Independent School District; Harleton Independent School District; Hart Independent School District; Haskell Consolidated Independent School District; Hawley Independent School District; Hearne Independent School District; Hemphill Independent School District; Hereford Independent School District; Hico Independent School District; Hidalgo Independent School District; High Island Independent School District; Holland Independent School District; Honey Grove Independent School District; Hubbard Independent School District; Hudson Independent School District; Huffman Independent School District; Huntington Independent School District; Hutto Independent School District; Itasca Independent School District; Jacksboro Independent School District; Jasper Independent School District; Joaquin Independent School District; Karnes City Independent School District; Kermit Independent School District; Kirbyville Independent School District; Knox City-O'Brien Consolidated Independent School District; Kountze Independent School District; Kress Independent School District; Krum Independent School District; La Joya Independent School District; La Pryor Independent School District; Lake Worth Independent School District; Lamesa Independent School District; Lasara Independent School District; Latexo Independent School District; Leverett's Chapel Independent School District; Linden-Kildare Consolidated Independent School District; Lingleville Independent School District; Lipan Independent School District; Lockhart Independent School District; Lorena Independent School District; Louise Independent School District; Lyford Independent School District; Lytle Independent School District; Mabank Independent School District; Magnolia Independent School District; Martinsville Independent School District; McGregor Independent School District; Meadow Independent School District; Megargel Independent School District; Mercedes Independent School District; Meridian Independent School District; Merkel Independent School District; Mesquite Independent School District; Mildred Independent School District; Millsap Independent School District; Mission Consolidated Independent School District; Montague Independent School District; Morton Independent School District; Motley County Independent School District; Muenster Independent School District; Nederland Independent School District; New Boston Independent School District; New Castle Independent School District; New Home Independent School District; New Summerfield Independent School District; Newton Independent School District; Nocona Independent School District; Nueces Canyon Consolidated Independent School District; Olfen Independent School District; Olton Independent School District; Orange Grove Independent School District; Paint Creek Independent School District; Pampa Independent School District; Panhandle Independent School District; Paradise Independent School District; Paris Independent School District; Perrin-Whitt Consolidated Independent School District; Petersburg Independent School District; Pflugerville Independent School District; Poteet Independent School District; Pottsboro Independent School District; Prairiland Independent School District; Premont Independent School District; Presidio Independent School District; Princeton Independent School District; Quanah Independent School District; Ranger Independent School District; Redwater Independent School District; Ricardo Independent School District; Rice Consolidated Independent School District; Rice Independent School District; Rio Vista Independent School District; Rivercrest Independent School District; Robinson Independent School District; Robstown Independent School District; Roby Consolidated Independent School District; Rochester County Line Independent School District; Rocksprings Independent School District; Rogers Independent School District; Roosevelt Independent School District; Rosebud-Lott Independent School District; Rusk Independent School District; Sam Rayburn Independent School District; Samnorwood Independent School District; San Augustine Independent School District; San Perlita Independent School District; Sands Consolidated Independent School District; Sanford Independent School District; Santa Anna Independent School District; Santa Fe Independent School District; Santa Maria Independent School District; Seagraves Independent School District; Seguin Independent School District; Seymour Independent School District; Shallowater Independent School District; Shelbyville Independent School District; Shepard Independent School District; Shiner Independent School District; Sierra Blanca Independent School District; Sinton Independent School District; Slaton Independent School District; Smyer Independent School District; Socorro Independent School District; Southside Independent School District; Splendora Independent School District; Springtown Independent School District; Spur Independent School District; Stamford Independent School District; Sulphur Bluff Independent School District; Sulphur Springs Independent School District; Sunray Independent School District; Tahoka Independent School District; Taylor Independent School District; Tenaha Independent School District; Texline Independent School District; Thorndale Independent School District; Throckmorton Independent School District; Timpson Independent School District; Tolar Independent School District; Tornillo Independent School District; Trenton Independent School District; Trinidad Independent School District; Troup Independent School District; Troy Independent School District; Tulia Independent School District; Uvalde Consolidated Independent School District; Valley View Independent School District; Van Alstyne Independent School District; Van Independent School District; Venus Independent School District; Vernon Independent School District; Warren Independent School District; Weatherford Independent School District; Wellman-Union Independent School District; Wells Independent School District; West Hardin County Consolidated Independent School District; White Oak Independent School District; Whitesboro Independent School District; Edgewood Independent School District; Ysleta Independent School District; Laredo Independent School District; San Elizario Independent School District; Socorro Independent School District; South San Antonio Independent School District; La Vega Independent School District; Kenedy Independent School District; Harlandale Independent School District; Brownsville Independent School District; Pharr-Sun Juan-Alamo Independent School District; Sharyland Independent School District; Monte Alto Independent School District; Edcouch-Elsa Independent School District; Los Fresnos Independent School District; Harlingen Independent School District; Jim Hogg County Independent School District; La Feria Independent School District; Roma Independent School District; San Benito Independent School District; United Independent School District; and Raymondville Independent School District.
1. The complete list of appellees is attached as Appendix A.
2. Article VIII, § 1-e states, "No State ad valorem taxes shall be levied upon any property within this State."
3. Article VII, § 1 states, "A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools."
4. A direct appeal may be taken to the Texas Supreme Court"from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state." Tex. Gov't Code Ann. § 22.001(c) (West 2004).
Showing posts with label ISD cases. Show all posts
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Wednesday, June 27, 2007
Tuesday, June 26, 2007
Zeifman v. Michels and Austin ISD (Tex.App.- Austin, Jun. 20, 2007)
Clifford Zeifman v. Michels and Austin Indep. Sch. Dist. (Tex.App.- Austin, Jun. 20, 2007)(Pemberton)(ISD law, parental rights, SACPR)
REVERSED AND REMANDED ON MOTION FOR REHEARING:
Opinion by Justice Bob Pemberton
Before Justices Patterson, Pemberton and Waldrop
03-06-00598-CV
Clifford Zeifman v. Sheryl Diane Michels and Austin Independent School District
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
OPINION BY JUSTICE PEMBERTON
We withdraw our opinion issued May 11, 2007, and substitute the following in its place. The Court has overruled Michels's motion for rehearing.
This appeal arises within a statutory scheme intended to ensure the best interests of children following their parents' divorce. It also implicates the principles underlying our adversarial system, which we trust to ensure justice and truth under our law through the refining of issues achieved when parties and their able advocates receive their "day in court" under fair procedures.
Ex-spouses Sheryl Michels and Clifford Zeifman, aided by their respective legal teams, are embroiled in a controversy concerning the best interests of their two children, A.A. and G.L. The background of this controversy is detailed in our opinions in prior proceedings that have arisen from it in recent months. (1) To summarize, Michels and Zeifman "have pursued extensive and acrimonious litigation over which [elementary] school A.A. should attend," (2) a conflict that evidently has spread to other issues involving both A.A. and a second child, G.L. (3) Informed by the harsh tenor of the litigation and legal expenses that, the record of these proceedings reveal, are spiraling into the hundreds of thousands of dollars, we have previously suggested that "the adversarial processes of our court system," at least when utilized in this manner, "may not be the best means" of either deciding which school A.A. should attend or of ensuring this young child's best interests. (4)
This latest appeal involves a contention by Zeifman that Michels and her lawyers sought to advance their interests by unethically circumventing the procedural protections that our adversarial justice system provides him. The conduct he alleges is indeed disturbing. In our August 4, 2006 opinion in Cause No. 03-05-00533-CV, we held that, on the record before us, the district court had abused its discretion in modifying the comprehensive terms of the parties' original agreed divorce decree to give Michels sole power to make educational decisions on behalf of A.A. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.--Austin 2006, pet. denied); id. at 596 (Pemberton, J., concurring). During the period in which the district court's order was in effect, Michels had exercised her authority to withdraw A.A. from the Austin Independent School District's (AISD) Bryker Woods Elementary, the school in which the original agreed divorce decree had required the child to be enrolled, and enrolled her in St. Andrews. Zeifman, 212 S.W.3d at 586. After we had released our opinion but before mandate issued, Michels sued AISD seeking injunctive relief to prevent the district from permitting Zeifman to enroll A.A. at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that permitting such enrollment would (1) violate Michels's exclusive parental rights (at least until the mandate in No. 05-533-CV issued) to make educational decisions on behalf of A.A. and (2) "actively assist[] . . . and aid[] and abet[] Clifford Zeifman in the violation of a valid court order," a December 17, 2004, standing order governing Travis County family law cases. (5)
While Michels's new lawsuit was directed at controlling Zeifman's actions--and despite the fact that he was A.A.'s father, joint-managing conservator, and her opposing party in ongoing litigation concerning A.A.'s education--Michels did not name Zeifman as a party. Zeifman represents that, even worse, Michels sought to avoid his notice or detection by deliberately filing her lawsuit on a day--Monday, August 14--on which "Sheryl and her attorneys were aware" from a vacation letter and prior correspondence "that Clifford's attorney was out of town attending the Advanced Family Law Course in San Antonio." (6)
At 2:48 p.m. on August 14, Michels obtained an ex parte temporary restraining order against AISD. On the following Friday, August 18, (7) Zeifman filed a petition in intervention, motion to dismiss, and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels's new lawsuit as A.A.'s father and co-managing conservator, and as respondent and counter-petitioner in the ongoing litigation. Zeifman moved to dismiss Michels's suit as an improper attempt to circumvent the district court's jurisdiction over the divorce decree and this Court's jurisdiction over "the issue of [A.A.'s] education." Zeifman also urged that Michels's attempt to invoke the district court's jurisdiction was inconsistent with the position she had taken only a few months earlier in a second modification proceeding she had initiated under the divorce decree in 2005. Specifically, in response to a counter-petition from Zeifman to modify the educational-choice portions of the decree, Michels had filed a plea to the jurisdiction asserting that the district court lacked subject matter jurisdiction over the counter-petition while the appeal of the decree modifications in No. 05-533 was pending. The district court then "agree[d] that it has no jurisdiction to modify the order addressing the education of [A.A.] because of the current appeal of that matter" but overruled Michels's plea because it "retains jurisdiction with respect to all other aspects of the parent-child relationship as to both children under Chapters 155 and 156 of the Texas Family Code." (8)
Zeifman sought sanctions under rule 13 of the Texas Rules of Civil Procedure, chapters 9 and 10 of the civil practice and remedies code, and the district court's inherent power. He complained chiefly that Michels had filed a "frivolous and groundless" separate suit against AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or participation for a short, but critical, period of time. Zeifman argues that these tactics, coupled with subsequent events, reveal Michels's sole design to have been delay. He represents that he had been scheduled to have custody of A.A. during the week of August 14, that classes at Bryker Woods were to begin on August 15, and that custody was scheduled to return to Michels the following week. Thus, Zeifman maintains, Michels filed what proved to be a "one-week lawsuit" solely to prevent him from enrolling A.A. during his custody week and to "buy time" until custody returned to Michels the following week and she could enroll A.A. in St. Andrews.
A hearing on Zeifman's intervention, motion to dismiss, and motion for sanctions was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21, Michels filed a rule 11 agreement with AISD, dated August 18, whereby the district agreed not to permit A.A. to be enrolled at or attend Bryker Woods "until such time as [AISD] is presented with a final, non-appealable order expressly authorizing such enrollment and attendance," in return for Michels's agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the day of the hearing, filed a motion to strike Zeifman's intervention. After a hearing in which only argument was presented, the district court signed an "Order Confirming Nonsuit" and, by separate order, granted Michels's motion to strike intervention, dismissed as moot
Zeifman's motion to dismiss, and denied Zeifman's motion for sanctions.
Zeifman brings two issues, contending that the district court abused its discretion in striking his intervention and in denying his sanctions motion. We agree that the district court abused its discretion in striking Zeifman's intervention. Furthermore, because this ruling was undisputedly a predicate for the district court's ruling on Zeifman's sanctions motion, we remand Zeifman's sanctions motion for further proceedings.
As this Court has previously observed, the right of intervention is ultimately rooted in equity. Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.) ("The right of intervention is an equitable right. It does not depend upon a rule or statute for its existence."). This right is recognized in rule 60 of the Texas Rules of Civil Procedure, which 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." Tex. R. Civ. P. 60; see Highlands Ins. Co., 794 S.W.2d at 601-02.
Sufficient cause exists for striking an intervention when a would-be intervenor faced with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499-500 (Tex. 1982); see Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.--Fort Worth 2003, no pet.); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This justiciable interest may be either legal or equitable in nature but must be present and not merely remote or contingent. Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811-12 ("An intervenor must show some present legal or equitable interest in the subject matter which makes it proper for him to participate in the proceedings."). This interest is "analogous to that essential for a party to maintain or defend an action." McCord, 777 S.W.2d at 811-12 (citing 1 McDonald, Texas Civil Practice § 3.47 (1981 ed.)); see also Law Offices of Windle Turley, 109 S.W.3d at 70 ("A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation."). Whether an intervenor possesses a present justiciable interest is determined, in the first instance, by the facts alleged in the petition in intervention, which "also should be construed along with the allegations of fact set forth in the pleadings of the other parties." McCord, 777 S.W.2d at 812.
While the determination of whether a justiciable interest exists based on the pleadings would appear to present a pure question of law, cf. Texas Parks & Wildlife Dept. v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004), the ultimate determination of whether an intervention should be struck, even if a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812. We accordingly review a trial court's decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes "act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
During oral argument, Michels conceded that Zeifman had shown a justiciable interest in her suit against AISD, at least at its inception. Zeifman's justiciable interest is obvious from the face of his petition, if not from Michels's own petition. Michels's suit sought to prevent Zeifman from enrolling A.A. in Bryker Woods or other AISD schools. Both Zeifman and Michels pleaded that Zeifman is A.A.'s father. Zeifman pleaded that he was joint managing conservator; Michels requested the district court to take judicial notice of the file in their divorce case, which demonstrated Zeifman's joint managing conservatorship. Both Zeifman and Michels recounted the history of their litigation concerning where A.A. should attend elementary school, including the opinion of this court reversing the district court's order granting Michels sole control over A.A.'s educational decisions. Michels further alleged that she and Zeifman had each filed additional motions to modify the divorce decree and were currently litigating these issues.
Even if Zeifman demonstrated a justiciable interest in her suit, Michels contends, he has not demonstrated that the district court abused its discretion in striking his intervention. She relies on the proposition that "[i]t is only an abuse of the trial court's discretion to strike a petition in intervention if the intervenor: (1) could have brought the same action, or any part of it, in its own name; (2) the intervention would not complicate the case by excessively multiplying the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest." Michels derives these principles from the Texas Supreme Court's decision in Guaranty Federal. See 793 S.W.2d at 657; see also Intermarque Auto Prod., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.--Texarkana 2000, no pet.). Applying her characterization of the Guaranty Federal holding, Michels contends that "Zeifman could not have brought the same action against the Austin Independent School District that [she] filed," which she depicts as seeking to protect her personal rights as a parent to solely control A.A.'s educational decisions (which she could continue to enforce, in her view, until this Court's mandate issued in the previously pending litigation) and rights unique to her under the Travis County standing order. Michels adds that Zeifman's suit would have "complicated" her case by interjecting issues--specifically, a motion to dismiss and a motion for sanctions--that were not raised by the original parties. She further emphasizes that Zeifman did not make a record of the district court's proceedings, nor request findings of fact and conclusions of law, requiring us to assume that the district court found all factual issues in support of any legal ground that could have supported its order. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 668 (Tex. App.--Austin 1997, writ denied).
Michels misconstrues the Guaranty Federal holding in several ways. In that case, the Texas Supreme Court first held that a trial court abused its discretion in striking an intervention sua sponte, as rule 60 presumptively permitted an intervention unless a motion to strike was filed. 793 S.W.2d at 657 (citing Tex. R. Civ. P. 60). The supreme court went on to observe:
Furthermore, under Rule 60, 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. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (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. (internal citations omitted). The supreme court held that these conditions were met in that case and that, accordingly, the district court had abused its discretion in striking the intervention. Id. at 757-58.
While Guaranty Federal does identify a set of equitable conditions under which the striking of an intervention would be an abuse of discretion, it does not, contrary to Michels's assertion, establish the "only" or exclusive circumstances in which that would be so. See In re Lumbermens Mutual, 184 S.W.3d at 722-29 (based on balancing of different equitable considerations, concluding that court of appeals had abused its discretion in barring intervention on appeal) (9); see also In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.--Corpus Christi 1997, no pet.) ("[W]e question whether the general rule of Guaranty Federal, which allows some discretion to strike the intervention, even applies to a probate proceeding in which interested parties attempt to assert claims which will otherwise be adjudicated against them in their absence.").
Furthermore, Michels both misstates the first element of the Guaranty Federal framework and misapplies it. This element is not limited to whether the would-be intervenor "could have brought the same action, or any part of it, in its own name," as Michels states, but also is satisfied "if the action had been brought against him, he would be able to defeat recovery, or some part thereof." (10) Moreover, the first element of the Guaranty Federal framework is not as restrictive as Michels suggests:
The requirement [for intervention] has been stated, not exhaustively, to demand that "the intervenor's interest . . . be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him, he would have been able to defeat a recovery, in part at least." The statement, a useful guide, does not reach all situations. It does not cover, for example, the case in which the intervenor-defendant could not have been sued directly, yet a judgment for plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice the intervenor, and the intervenor's intervention is necessary to assure proper defense of the claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both parties, though in special circumstances such an intervention may be proper . . . .
1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 5.80, at 967-68 (2d ed. 2004) (citations omitted) (emphasis added). Citing this commentary with approval, we held in McCord that while a child's grandparents in that case could not have initiated an original suit affecting the parent-child relationship, they did possess a justiciable interest in their grandchild's best interests that could support intervention in the divorce and custody suit initiated by the child's parents. McCord, 777 S.W.2d at 811-13; see also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.--Corpus Christi 2006, pet. denied) ("Even where an intervenor has not or could not have been sued directly, if 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.").
We conclude that even if Zeifman could not assert precisely the same claims or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was potentially prejudiced by it, in a manner that satisfies the equitable considerations underlying the first element of the Guaranty Federal analysis. We likewise reject Michels's contentions that Zeifman's intervention to protect his interests and join issue with Michels would "complicate" the litigation or "excessively multiply" the issues relative to the benefits his participation would yield. McCord, 777 S.W.2d at 812 (trial court had discretion to determine that grandparents' intervention "may enhance [its] ability to adjudicate what is in the best interest of the child."). (11) The district court would have abused its discretion in striking his intervention on these grounds.
Michels ultimately relies on the fact that she subsequently non-suited her claims against AISD, suggesting that this tactic extinguished any justiciable interest Zeifman might have possessed in the action at its inception, see Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 63-65 (Tex. App.--Corpus Christi 1997, no writ), or otherwise divested him of his right to intervene. Michels overlooks the fact that Zeifman filed his intervention on August 18, while she did not file her non-suit until the following week. As of the time of Michels's non-suit, Zeifman, as we have determined, was a proper party. Michels's non-suit thus could not defeat or render moot his claims for sanctions and for attorney's fees under rule of civil procedure 13, and sections 9 and 10 of the civil practice and remedies code. Allstate Ins. Co. v. Hellman, 159 S.W.3d 640, 642-43 (Tex. 2005) (where merits of UDJA claim were rendered moot, claim for attorney's fees "'breathes life' into this appeal and prevents it from being moot.") (quoting Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); Tri-M Erectors, Inc. v. Clearwater Constructors, Inc., 788 S.W.2d 906, 907-08 (Tex. App.--Austin 1990, writ denied); see Tex. R. Civ. P. 162 ("Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal . . . .").
For these reasons, we hold that the district court abused its discretion in striking Zeifman's intervention, accordingly sustain Zeifman's first issue, and reverse the district court's striking of the intervention. During oral argument, Michels conceded that the district court's order denying sanctions was necessarily predicated upon its order striking Zeifman's intervention. Thus, we also reverse the district court's order denying sanctions and remand for further proceedings.
Regarding sanctions, rule 13 of the Texas Rules of Civil Procedure allows a trial court to impose sanctions against an attorney, a represented party, or both, who file groundless pleadings brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13.
Additionally, chapter 10 of the Civil Practices and Remedies Code allows a trial court to impose sanctions against a person, party, or both for advancing frivolous pleadings or motions. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001(1), .004(a) (West 2002). In light of our observation that Michels's conduct as alleged by Zeifman "is indeed disturbing," the district court on remand should carefully consider the facts known by Michels at the time she filed suit against AISD when determining whether sanctions are appropriate. See Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 490-94 (Tex. App.--Dallas 2005, no pet.) (upholding sanctions order where law firm filed suit against former clients for improper purpose); Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *9-*13 (Tex. App.--Austin 2004, no pet.) (mem. op.) (upholding sanctions order where husband filed pleadings in child custody case for improper purpose); see also Low v. Henry, 50 Tex. Sup. J. 606, 2007 Tex. LEXIS 320, *6-*17 (Tex. Apr. 20, 2007). (12)
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded on Motion for Rehearing
Filed: June 20, 2007
1. See Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.--Austin 2006, pet. denied); see also In re Zeifman, No. 03-06-00601-CV, slip op. at 1-2 (Tex. App.--Austin Nov. 22, 2006) (orig. proceeding) (mem. op.); In re Zeifman, No. 03-07-00075-CV, slip op. at 1 (Tex. App.--Austin Mar. 16, 2007, orig. proceeding) (mem. op.). We have taken judicial notice of our files from these prior related proceedings.
2. In re Zeifman, No. 03-06-00601-CV, slip op. at 2.
3. In re Zeifman, No. 03-07-00075-CV, slip op. at 1.
4. In re Zeifman, No. 03-06-601-CV, slip op. at 2. We also observed that "A.A.'s parents--not the courts or other third parties--are in the best position, perhaps with the assistance of a competent mediator, to make that determination in A.A.'s best interests, thereby avoiding extensive and acrimonious litigation that could adversely impact A.A., their other child, each other, and possibly others."
5. This standing order, applicable to "every divorce suit and every suit affecting the parent-child relationship filed in Travis County" after January 1, 2005, prohibits parties, "while the lawsuit is pending before the court," from actions including "[d]isrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court." See Travis Co. Standing Order Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk's File No. 121,012 (Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties' 1997 divorce decree predated the standing order, Michels alleged that Zeifman had made himself subject to the order by filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning G.L.
6. The publicly available State Bar of Texas publications from this course state that it was held between August 14-17, 2006.
7. This date corresponds to the day after the 2006 State Bar Advanced Family Law Course was scheduled to end.
8. Order on Plea to the Jurisdiction of Sheryl Diane Michels, May 24, 2006. On appeal, Zeifman points out that Michels subsequently made similar arguments in the district court, after she filed a petition for review of this Court's judgment in the supreme court, in resisting his efforts to enforce his rights under the original divorce decree.
9. Lumbermens Mutual involved the appellate intervention of an insurer after its insured, for whom it had paid the appeal bond, abandoned potentially dispositive issues impacting claims within the scope of coverage. See In re Lumbermens Mutual,184 S.W.3d 718, 720-21 (Tex. 2006). The supreme court determined that the insurer had invoked "the equitable doctrine" of virtual representation, and then considered "other factors [that] may weigh against allowing intervention after final judgment has been rendered, including the length of time the insurer had known of its interest in the case before attempting to intervene, the extent of prejudice the existing parties may suffer from the would-be intervenor's delay, the extent of prejudice to the would-be intervenor if intervention is denied, and the existence of unusual circumstances militating for or against a determination that the application is timely." Id. at 726. The supreme court held that the court of appeals abused its discretion in refusing to allow the intervention. Id. at 729.
10. We thus reject Michels's contention that "[a] proper intervention requires that the intervenor be seeking some sort of affirmative relief from the court."
11. We find it interesting that Michels would decry Zeifman's intervention as "complicating" their litigation by "multiplication" of issues where she has done precisely that by foregoing the parties' ongoing proceedings under the divorce decree and filing a related but separate lawsuit (leading to a separate appeal), ensnaring a third party in her domestic dispute, yet oddly not naming Zeifman as a party in that separate proceeding--who, she acknowledged at oral argument, clearly had a justiciable interest. If intervention is ultimately an equitable concept, Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.), Michels arguably would be estopped from arguing that Zeifman's intervention would have complicated or excessively multiplied the issues in litigation.
12. We note that Zeifman did not obtain a reporter's record below, nor requests findings of fact and conclusions of law. As Michels observes, such devices enable an appellate court to review a trial court's rulings to award (or not award) sanctions.
REVERSED AND REMANDED ON MOTION FOR REHEARING:
Opinion by Justice Bob Pemberton
Before Justices Patterson, Pemberton and Waldrop
03-06-00598-CV
Clifford Zeifman v. Sheryl Diane Michels and Austin Independent School District
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
OPINION BY JUSTICE PEMBERTON
We withdraw our opinion issued May 11, 2007, and substitute the following in its place. The Court has overruled Michels's motion for rehearing.
This appeal arises within a statutory scheme intended to ensure the best interests of children following their parents' divorce. It also implicates the principles underlying our adversarial system, which we trust to ensure justice and truth under our law through the refining of issues achieved when parties and their able advocates receive their "day in court" under fair procedures.
Ex-spouses Sheryl Michels and Clifford Zeifman, aided by their respective legal teams, are embroiled in a controversy concerning the best interests of their two children, A.A. and G.L. The background of this controversy is detailed in our opinions in prior proceedings that have arisen from it in recent months. (1) To summarize, Michels and Zeifman "have pursued extensive and acrimonious litigation over which [elementary] school A.A. should attend," (2) a conflict that evidently has spread to other issues involving both A.A. and a second child, G.L. (3) Informed by the harsh tenor of the litigation and legal expenses that, the record of these proceedings reveal, are spiraling into the hundreds of thousands of dollars, we have previously suggested that "the adversarial processes of our court system," at least when utilized in this manner, "may not be the best means" of either deciding which school A.A. should attend or of ensuring this young child's best interests. (4)
This latest appeal involves a contention by Zeifman that Michels and her lawyers sought to advance their interests by unethically circumventing the procedural protections that our adversarial justice system provides him. The conduct he alleges is indeed disturbing. In our August 4, 2006 opinion in Cause No. 03-05-00533-CV, we held that, on the record before us, the district court had abused its discretion in modifying the comprehensive terms of the parties' original agreed divorce decree to give Michels sole power to make educational decisions on behalf of A.A. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.--Austin 2006, pet. denied); id. at 596 (Pemberton, J., concurring). During the period in which the district court's order was in effect, Michels had exercised her authority to withdraw A.A. from the Austin Independent School District's (AISD) Bryker Woods Elementary, the school in which the original agreed divorce decree had required the child to be enrolled, and enrolled her in St. Andrews. Zeifman, 212 S.W.3d at 586. After we had released our opinion but before mandate issued, Michels sued AISD seeking injunctive relief to prevent the district from permitting Zeifman to enroll A.A. at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that permitting such enrollment would (1) violate Michels's exclusive parental rights (at least until the mandate in No. 05-533-CV issued) to make educational decisions on behalf of A.A. and (2) "actively assist[] . . . and aid[] and abet[] Clifford Zeifman in the violation of a valid court order," a December 17, 2004, standing order governing Travis County family law cases. (5)
While Michels's new lawsuit was directed at controlling Zeifman's actions--and despite the fact that he was A.A.'s father, joint-managing conservator, and her opposing party in ongoing litigation concerning A.A.'s education--Michels did not name Zeifman as a party. Zeifman represents that, even worse, Michels sought to avoid his notice or detection by deliberately filing her lawsuit on a day--Monday, August 14--on which "Sheryl and her attorneys were aware" from a vacation letter and prior correspondence "that Clifford's attorney was out of town attending the Advanced Family Law Course in San Antonio." (6)
At 2:48 p.m. on August 14, Michels obtained an ex parte temporary restraining order against AISD. On the following Friday, August 18, (7) Zeifman filed a petition in intervention, motion to dismiss, and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels's new lawsuit as A.A.'s father and co-managing conservator, and as respondent and counter-petitioner in the ongoing litigation. Zeifman moved to dismiss Michels's suit as an improper attempt to circumvent the district court's jurisdiction over the divorce decree and this Court's jurisdiction over "the issue of [A.A.'s] education." Zeifman also urged that Michels's attempt to invoke the district court's jurisdiction was inconsistent with the position she had taken only a few months earlier in a second modification proceeding she had initiated under the divorce decree in 2005. Specifically, in response to a counter-petition from Zeifman to modify the educational-choice portions of the decree, Michels had filed a plea to the jurisdiction asserting that the district court lacked subject matter jurisdiction over the counter-petition while the appeal of the decree modifications in No. 05-533 was pending. The district court then "agree[d] that it has no jurisdiction to modify the order addressing the education of [A.A.] because of the current appeal of that matter" but overruled Michels's plea because it "retains jurisdiction with respect to all other aspects of the parent-child relationship as to both children under Chapters 155 and 156 of the Texas Family Code." (8)
Zeifman sought sanctions under rule 13 of the Texas Rules of Civil Procedure, chapters 9 and 10 of the civil practice and remedies code, and the district court's inherent power. He complained chiefly that Michels had filed a "frivolous and groundless" separate suit against AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or participation for a short, but critical, period of time. Zeifman argues that these tactics, coupled with subsequent events, reveal Michels's sole design to have been delay. He represents that he had been scheduled to have custody of A.A. during the week of August 14, that classes at Bryker Woods were to begin on August 15, and that custody was scheduled to return to Michels the following week. Thus, Zeifman maintains, Michels filed what proved to be a "one-week lawsuit" solely to prevent him from enrolling A.A. during his custody week and to "buy time" until custody returned to Michels the following week and she could enroll A.A. in St. Andrews.
A hearing on Zeifman's intervention, motion to dismiss, and motion for sanctions was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21, Michels filed a rule 11 agreement with AISD, dated August 18, whereby the district agreed not to permit A.A. to be enrolled at or attend Bryker Woods "until such time as [AISD] is presented with a final, non-appealable order expressly authorizing such enrollment and attendance," in return for Michels's agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the day of the hearing, filed a motion to strike Zeifman's intervention. After a hearing in which only argument was presented, the district court signed an "Order Confirming Nonsuit" and, by separate order, granted Michels's motion to strike intervention, dismissed as moot
Zeifman's motion to dismiss, and denied Zeifman's motion for sanctions.
Zeifman brings two issues, contending that the district court abused its discretion in striking his intervention and in denying his sanctions motion. We agree that the district court abused its discretion in striking Zeifman's intervention. Furthermore, because this ruling was undisputedly a predicate for the district court's ruling on Zeifman's sanctions motion, we remand Zeifman's sanctions motion for further proceedings.
As this Court has previously observed, the right of intervention is ultimately rooted in equity. Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.) ("The right of intervention is an equitable right. It does not depend upon a rule or statute for its existence."). This right is recognized in rule 60 of the Texas Rules of Civil Procedure, which 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." Tex. R. Civ. P. 60; see Highlands Ins. Co., 794 S.W.2d at 601-02.
Sufficient cause exists for striking an intervention when a would-be intervenor faced with a motion to strike cannot demonstrate a justiciable interest in the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499-500 (Tex. 1982); see Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.--Fort Worth 2003, no pet.); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This justiciable interest may be either legal or equitable in nature but must be present and not merely remote or contingent. Mendez, 626 S.W.2d at 499; McCord, 777 S.W.2d at 811-12 ("An intervenor must show some present legal or equitable interest in the subject matter which makes it proper for him to participate in the proceedings."). This interest is "analogous to that essential for a party to maintain or defend an action." McCord, 777 S.W.2d at 811-12 (citing 1 McDonald, Texas Civil Practice § 3.47 (1981 ed.)); see also Law Offices of Windle Turley, 109 S.W.3d at 70 ("A party has a justiciable interest in a lawsuit, and thus a right to intervene, when his interests will be affected by the litigation."). Whether an intervenor possesses a present justiciable interest is determined, in the first instance, by the facts alleged in the petition in intervention, which "also should be construed along with the allegations of fact set forth in the pleadings of the other parties." McCord, 777 S.W.2d at 812.
While the determination of whether a justiciable interest exists based on the pleadings would appear to present a pure question of law, cf. Texas Parks & Wildlife Dept. v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004), the ultimate determination of whether an intervention should be struck, even if a justiciable interest is shown, has long been held to be vested in the sound discretion of the trial court. Mendez, 626 S.W.2d at 499 ("It is settled law that a motion to strike an intervention is addressed to the sound discretion of the trial court."); Law Offices of Windle Turley, 109 S.W.3d at 70; McCord, 777 S.W.2d at 812. We accordingly review a trial court's decision on a motion to strike an intervention for abuse of discretion. See In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)). An abuse of discretion denotes "act[ing] without reference to guiding rules or principles; in other words . . . the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
During oral argument, Michels conceded that Zeifman had shown a justiciable interest in her suit against AISD, at least at its inception. Zeifman's justiciable interest is obvious from the face of his petition, if not from Michels's own petition. Michels's suit sought to prevent Zeifman from enrolling A.A. in Bryker Woods or other AISD schools. Both Zeifman and Michels pleaded that Zeifman is A.A.'s father. Zeifman pleaded that he was joint managing conservator; Michels requested the district court to take judicial notice of the file in their divorce case, which demonstrated Zeifman's joint managing conservatorship. Both Zeifman and Michels recounted the history of their litigation concerning where A.A. should attend elementary school, including the opinion of this court reversing the district court's order granting Michels sole control over A.A.'s educational decisions. Michels further alleged that she and Zeifman had each filed additional motions to modify the divorce decree and were currently litigating these issues.
Even if Zeifman demonstrated a justiciable interest in her suit, Michels contends, he has not demonstrated that the district court abused its discretion in striking his intervention. She relies on the proposition that "[i]t is only an abuse of the trial court's discretion to strike a petition in intervention if the intervenor: (1) could have brought the same action, or any part of it, in its own name; (2) the intervention would not complicate the case by excessively multiplying the issues; and (3) the intervention is almost essential to effectively protect the intervenor's interest." Michels derives these principles from the Texas Supreme Court's decision in Guaranty Federal. See 793 S.W.2d at 657; see also Intermarque Auto Prod., Inc. v. Feldman, 21 S.W.3d 544, 549 (Tex. App.--Texarkana 2000, no pet.). Applying her characterization of the Guaranty Federal holding, Michels contends that "Zeifman could not have brought the same action against the Austin Independent School District that [she] filed," which she depicts as seeking to protect her personal rights as a parent to solely control A.A.'s educational decisions (which she could continue to enforce, in her view, until this Court's mandate issued in the previously pending litigation) and rights unique to her under the Travis County standing order. Michels adds that Zeifman's suit would have "complicated" her case by interjecting issues--specifically, a motion to dismiss and a motion for sanctions--that were not raised by the original parties. She further emphasizes that Zeifman did not make a record of the district court's proceedings, nor request findings of fact and conclusions of law, requiring us to assume that the district court found all factual issues in support of any legal ground that could have supported its order. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 668 (Tex. App.--Austin 1997, writ denied).
Michels misconstrues the Guaranty Federal holding in several ways. In that case, the Texas Supreme Court first held that a trial court abused its discretion in striking an intervention sua sponte, as rule 60 presumptively permitted an intervention unless a motion to strike was filed. 793 S.W.2d at 657 (citing Tex. R. Civ. P. 60). The supreme court went on to observe:
Furthermore, under Rule 60, 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. The interest asserted by the intervenor may be legal or equitable. Although the trial court has broad discretion in determining whether an intervention should be stricken, it is an abuse of discretion to strike a plea in intervention if (1) the intervenor meets the above test, (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. (internal citations omitted). The supreme court held that these conditions were met in that case and that, accordingly, the district court had abused its discretion in striking the intervention. Id. at 757-58.
While Guaranty Federal does identify a set of equitable conditions under which the striking of an intervention would be an abuse of discretion, it does not, contrary to Michels's assertion, establish the "only" or exclusive circumstances in which that would be so. See In re Lumbermens Mutual, 184 S.W.3d at 722-29 (based on balancing of different equitable considerations, concluding that court of appeals had abused its discretion in barring intervention on appeal) (9); see also In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.--Corpus Christi 1997, no pet.) ("[W]e question whether the general rule of Guaranty Federal, which allows some discretion to strike the intervention, even applies to a probate proceeding in which interested parties attempt to assert claims which will otherwise be adjudicated against them in their absence.").
Furthermore, Michels both misstates the first element of the Guaranty Federal framework and misapplies it. This element is not limited to whether the would-be intervenor "could have brought the same action, or any part of it, in its own name," as Michels states, but also is satisfied "if the action had been brought against him, he would be able to defeat recovery, or some part thereof." (10) Moreover, the first element of the Guaranty Federal framework is not as restrictive as Michels suggests:
The requirement [for intervention] has been stated, not exhaustively, to demand that "the intervenor's interest . . . be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him, he would have been able to defeat a recovery, in part at least." The statement, a useful guide, does not reach all situations. It does not cover, for example, the case in which the intervenor-defendant could not have been sued directly, yet a judgment for plaintiff may lead to an action over against the intervenor or otherwise seriously prejudice the intervenor, and the intervenor's intervention is necessary to assure proper defense of the claim. Nor does it meet the situation in which the intervenor asserts a claim adverse to both parties, though in special circumstances such an intervention may be proper . . . .
1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 5.80, at 967-68 (2d ed. 2004) (citations omitted) (emphasis added). Citing this commentary with approval, we held in McCord that while a child's grandparents in that case could not have initiated an original suit affecting the parent-child relationship, they did possess a justiciable interest in their grandchild's best interests that could support intervention in the divorce and custody suit initiated by the child's parents. McCord, 777 S.W.2d at 811-13; see also Jenkins v. Entergy Corp., 187 S.W.3d 785, 797 (Tex. App.--Corpus Christi 2006, pet. denied) ("Even where an intervenor has not or could not have been sued directly, if 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.").
We conclude that even if Zeifman could not assert precisely the same claims or defenses as Michels and AISD, he possessed a justiciable interest in the suit, and was potentially prejudiced by it, in a manner that satisfies the equitable considerations underlying the first element of the Guaranty Federal analysis. We likewise reject Michels's contentions that Zeifman's intervention to protect his interests and join issue with Michels would "complicate" the litigation or "excessively multiply" the issues relative to the benefits his participation would yield. McCord, 777 S.W.2d at 812 (trial court had discretion to determine that grandparents' intervention "may enhance [its] ability to adjudicate what is in the best interest of the child."). (11) The district court would have abused its discretion in striking his intervention on these grounds.
Michels ultimately relies on the fact that she subsequently non-suited her claims against AISD, suggesting that this tactic extinguished any justiciable interest Zeifman might have possessed in the action at its inception, see Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 63-65 (Tex. App.--Corpus Christi 1997, no writ), or otherwise divested him of his right to intervene. Michels overlooks the fact that Zeifman filed his intervention on August 18, while she did not file her non-suit until the following week. As of the time of Michels's non-suit, Zeifman, as we have determined, was a proper party. Michels's non-suit thus could not defeat or render moot his claims for sanctions and for attorney's fees under rule of civil procedure 13, and sections 9 and 10 of the civil practice and remedies code. Allstate Ins. Co. v. Hellman, 159 S.W.3d 640, 642-43 (Tex. 2005) (where merits of UDJA claim were rendered moot, claim for attorney's fees "'breathes life' into this appeal and prevents it from being moot.") (quoting Camerena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); Tri-M Erectors, Inc. v. Clearwater Constructors, Inc., 788 S.W.2d 906, 907-08 (Tex. App.--Austin 1990, writ denied); see Tex. R. Civ. P. 162 ("Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs pending at the time of dismissal . . . .").
For these reasons, we hold that the district court abused its discretion in striking Zeifman's intervention, accordingly sustain Zeifman's first issue, and reverse the district court's striking of the intervention. During oral argument, Michels conceded that the district court's order denying sanctions was necessarily predicated upon its order striking Zeifman's intervention. Thus, we also reverse the district court's order denying sanctions and remand for further proceedings.
Regarding sanctions, rule 13 of the Texas Rules of Civil Procedure allows a trial court to impose sanctions against an attorney, a represented party, or both, who file groundless pleadings brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13.
Additionally, chapter 10 of the Civil Practices and Remedies Code allows a trial court to impose sanctions against a person, party, or both for advancing frivolous pleadings or motions. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001(1), .004(a) (West 2002). In light of our observation that Michels's conduct as alleged by Zeifman "is indeed disturbing," the district court on remand should carefully consider the facts known by Michels at the time she filed suit against AISD when determining whether sanctions are appropriate. See Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 490-94 (Tex. App.--Dallas 2005, no pet.) (upholding sanctions order where law firm filed suit against former clients for improper purpose); Martin v. Zieba, No. 03-03-00584-CV, 2004 Tex. App. LEXIS 3742, at *9-*13 (Tex. App.--Austin 2004, no pet.) (mem. op.) (upholding sanctions order where husband filed pleadings in child custody case for improper purpose); see also Low v. Henry, 50 Tex. Sup. J. 606, 2007 Tex. LEXIS 320, *6-*17 (Tex. Apr. 20, 2007). (12)
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Reversed and Remanded on Motion for Rehearing
Filed: June 20, 2007
1. See Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.--Austin 2006, pet. denied); see also In re Zeifman, No. 03-06-00601-CV, slip op. at 1-2 (Tex. App.--Austin Nov. 22, 2006) (orig. proceeding) (mem. op.); In re Zeifman, No. 03-07-00075-CV, slip op. at 1 (Tex. App.--Austin Mar. 16, 2007, orig. proceeding) (mem. op.). We have taken judicial notice of our files from these prior related proceedings.
2. In re Zeifman, No. 03-06-00601-CV, slip op. at 2.
3. In re Zeifman, No. 03-07-00075-CV, slip op. at 1.
4. In re Zeifman, No. 03-06-601-CV, slip op. at 2. We also observed that "A.A.'s parents--not the courts or other third parties--are in the best position, perhaps with the assistance of a competent mediator, to make that determination in A.A.'s best interests, thereby avoiding extensive and acrimonious litigation that could adversely impact A.A., their other child, each other, and possibly others."
5. This standing order, applicable to "every divorce suit and every suit affecting the parent-child relationship filed in Travis County" after January 1, 2005, prohibits parties, "while the lawsuit is pending before the court," from actions including "[d]isrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court." See Travis Co. Standing Order Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk's File No. 121,012 (Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties' 1997 divorce decree predated the standing order, Michels alleged that Zeifman had made himself subject to the order by filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning G.L.
6. The publicly available State Bar of Texas publications from this course state that it was held between August 14-17, 2006.
7. This date corresponds to the day after the 2006 State Bar Advanced Family Law Course was scheduled to end.
8. Order on Plea to the Jurisdiction of Sheryl Diane Michels, May 24, 2006. On appeal, Zeifman points out that Michels subsequently made similar arguments in the district court, after she filed a petition for review of this Court's judgment in the supreme court, in resisting his efforts to enforce his rights under the original divorce decree.
9. Lumbermens Mutual involved the appellate intervention of an insurer after its insured, for whom it had paid the appeal bond, abandoned potentially dispositive issues impacting claims within the scope of coverage. See In re Lumbermens Mutual,184 S.W.3d 718, 720-21 (Tex. 2006). The supreme court determined that the insurer had invoked "the equitable doctrine" of virtual representation, and then considered "other factors [that] may weigh against allowing intervention after final judgment has been rendered, including the length of time the insurer had known of its interest in the case before attempting to intervene, the extent of prejudice the existing parties may suffer from the would-be intervenor's delay, the extent of prejudice to the would-be intervenor if intervention is denied, and the existence of unusual circumstances militating for or against a determination that the application is timely." Id. at 726. The supreme court held that the court of appeals abused its discretion in refusing to allow the intervention. Id. at 729.
10. We thus reject Michels's contention that "[a] proper intervention requires that the intervenor be seeking some sort of affirmative relief from the court."
11. We find it interesting that Michels would decry Zeifman's intervention as "complicating" their litigation by "multiplication" of issues where she has done precisely that by foregoing the parties' ongoing proceedings under the divorce decree and filing a related but separate lawsuit (leading to a separate appeal), ensnaring a third party in her domestic dispute, yet oddly not naming Zeifman as a party in that separate proceeding--who, she acknowledged at oral argument, clearly had a justiciable interest. If intervention is ultimately an equitable concept, Highlands Ins. Co. v. Lumberman's Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex. App.--Austin 1990, no pet.), Michels arguably would be estopped from arguing that Zeifman's intervention would have complicated or excessively multiplied the issues in litigation.
12. We note that Zeifman did not obtain a reporter's record below, nor requests findings of fact and conclusions of law. As Michels observes, such devices enable an appellate court to review a trial court's rulings to award (or not award) sanctions.
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