Court of Appeals of Texas, Seventh District, Amarillo
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
QUINN, C.J., and CAMPBELL and PARKER, JJ.
C. PARKER JUSTICE
Creek Ranch, LLC, relator, brings this mandamus action
challenging an "Order Denying Plaintiff's Motion to
Strike Plea in Intervention" issued by Judge Phil N.
Vanderpool, respondent. We will conditionally grant relief on
the order denying relator's motion to strike.
of 2017, McClellan purchased an undivided interest in the
surface estate of six sections of land in Gray County
commonly known as the Pursley Ranch. In December of 2017,
McClellan filed a petition seeking partition of the surface
estate of the ranch. McClellan alleged that it is
proportionately the largest single owner of the ranch, with
an undivided one-quarter interest in each of the ranch's
six sections and an additional undivided one-half interest in
two of those six sections. McClellan asserted that the ranch
is capable of equitable division and sought such a partition.
cotenants, the "Pursley defendants," answered,
alleging that partition in kind would result in a substantial
prejudice to them. They filed a counterclaim for declaratory
judgment, requesting the trial court to declare that the
Pursley Ranch is "heirs' property" subject to
the requirements of the Uniform Partition of Heirs'
Property Act of Chapter 23A of the Texas Property Code. The
trial court subsequently entered an order confirming that the
action is subject to the Act and appointing an appraiser. An
"as is" market value appraisal of the ranch was
completed and provided to the court in December of 2018.
January 8, 2019, Pursley Gas Company, a partnership of
mineral interest owners that operates wells on the Pursley
Ranch, filed a plea in intervention. Pursley Gas sought
declaratory judgment to determine and declare its surface
rights at the time of partition in the property comprising
the Pursley Ranch. McClellan filed a motion to strike the
plea in intervention, asserting that Pursley Gas has no
justiciable interest in the partition lawsuit. After the
trial court denied its motion to strike, McClellan filed a
petition for writ of mandamus, claiming that the trial court
had no discretion to deny the motion.
the Texas Rules of Civil Procedure, "Any party may
intervene by filing a pleading, subject to being stricken out
by the court for sufficient cause on the motion of any
party." Tex.R.Civ.P. 60. The party opposing intervention
bears the initial burden of challenging the intervention by
filing a motion to strike. Guar. Fed. Savs. Bank v.
Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.
1990). Once a motion to strike has been filed, the burden
shifts to the intervenor to show a justiciable interest in
the lawsuit. Mendez v. Brewer, 626 S.W.2d 498, 499
'justiciable interest' requirement is of paramount
importance: it defines the category of non-parties who may,
without consultation with or permission from the original
parties or the court, interject their interests into a
pending suit to which the intervenors have not been
invited." In re Union Carbide Corp., 273 S.W.3d
152, 155 (Tex. 2008) (orig. proceeding) (per curiam). The
interest asserted by the intervenor may be legal or
equitable, but generally must be more than "a mere
contingent or remote interest." Law Offices of
Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70
(Tex. App.-Fort Worth 2003, no pet.). "[I]n order to be
a justiciable interest, there must be an actual controversy
between parties who have conflicting personal stakes."
Tex. Dep't of Pub. Safety v. Kelton, 876 S.W.2d
450, 452 (Tex. App.-El Paso 1994, no writ). Under the Supreme
Court's decision in In re Union Carbide, a
justiciable interest exists if the intervenor could have
brought the pending action, or any part thereof, in his own
name. See In re Union Carbide, 273 S.W.3d at 155;
see also Nat'l Union Fire Ins. Co. of Pittsburgh, Pa.
v. Pennzoil Co., 866 S.W.2d 248, 250 (Tex. App.-Corpus
Christi 1993, no writ) (holding that "a motion to strike
a plea in intervention is akin to a special exception or to a
motion for summary judgment, asserting that, as a matter of
law, the opposing party could not have brought the action or
would not be able to defeat recovery.").
standard of review for determining whether a trial court
properly struck a petition in intervention is abuse of
discretion. Mendez, 626 S.W.2d at 499. A trial court
abuses its discretion if it acts without reference to any
guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).