Opinion
NO. 03-20-00580-CV
03-12-2021
Dessie Maria Andrews, Appellant v. 4300 Burch, LLC, Appellee
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-002781 , THE HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
Dessie Maria Andrews, appearing pro se, seeks to appeal a summary judgment granted in favor of 4300 Burch, LLC against Jae H. Yoo and Jung H. Yoo. Because we conclude that Andrews does not have standing, we dismiss her appeal for lack for jurisdiction.
The suit underlying this appeal is an equitable bill of review, seeking to set aside a final judgment that was signed by the trial court on August 16, 2017. That 2017 final judgment declared 4300 Burch as the rightful owner of a certain piece of real property located in Travis County and restrained the Yoos from attempting to foreclose on that property. The Yoos's attempted appeal from the 2017 final judgment was dismissed by this Court for want of jurisdiction. See Yoo v. 4300 Burch, LLC, No. 03-17-00709-CV, 2018 Tex. App. LEXIS 4432, at *5 (Tex. App.—Austin June 19, 2018, no pet.) (mem. op.).
On June 7, 2018, the Yoos filed their equitable bill of review in district court, asserting that they did not receive notice of the hearing that resulted in the 2017 final judgment. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 164 (Tex. 2015) (explaining that "a bill of review is an equitable proceeding, brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or direct appeal"). The trial court subsequently granted summary judgment in favor of 4300 Burch and dismissed the Yoos's suit. Dessie Maria Andrews then filed a notice of appeal in this Court, but the Yoos have not.
In general, only parties of record may appeal a trial court's judgment. In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723 (Tex. 2006); see Tex. R. App. P. 25.1(c). Although there is no deadline to intervene under the Rules of Civil Procedures, a non-party generally cannot intervene after final judgment. Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008). Because the record shows that Andrews was not a party of record in the proceedings below, the Court sent Andrews a letter asking her to explain how this Court may exercise jurisdiction over her appeal. See State v. Naylor, 330 S.W.3d 434, 444 (Tex. App.—Austin 2011), aff'd, 466 S.W.3d 783 (Tex. 2015) (explaining that non-parties who have not properly intervened do not have standing to pursue appeal and dismissing appeal for want of jurisdiction). In response to our request, Andrews asserts that she is entitled to bring the appeal because on May 31, 2018, the Yoos conveyed to her "all their legal rights" in the property. Andrews does not dispute, however, that she was not a party of record at the time the final judgment in this cause was signed by the trial court.
We construe Andrews's response to our jurisdictional inquiry as a motion to intervene on appeal based on the equitable doctrine of virtual representation, an exception to the general rule that only parties of record may pursue an appeal. In re Lumbermens Mut. Cas., 184 S.W.3d at 723. To invoke the virtual-representation doctrine, the appellant must establish that: (1) she is bound by the judgment; (2) she is in privity of estate, title, or interest, which privity appears from the record; and (3) there is an identity of interest between the appellant and a party to the judgment. Id. at 722. If this burden is met, the appellate court must also evaluate whether equitable considerations weigh against allowing the movant to participate on appeal, including the length of time that the would-be intervenor should have known of her interest in the case before attempting to intervene. Id. at 722, 726.
Based on the record before us, we cannot conclude that Andrews has met her burden to show that she is in "privity of estate, title, or interest" with the Yoos or that she and the Yoos have an "identity of interest" in the equitable proceeding that is the basis of this appeal. In 2018, when the Yoos purportedly transferred title to the property to Andrews, the Yoos did not have legal title to the property. At that time, the trial court had already declared that the Yoos's attempt to foreclose on the property was invalid and that 4300 Burch was the legal owner, and the time for appealing that decision had passed. Moreover, based on her response, we conclude that equitable considerations weigh against allowing Andrews to participate in this appeal. Although Andrews has known or should have known of her interest in this dispute since June 2018, when the Yoos first filed suit for bill of review, she not has not attempted to formally intervene in the proceedings until now.
Because Andrews was not a party of record in the trial court, she does not have standing to pursue this appeal. See Naylor, 330 S.W.3d at 444; see also Rady v. GMAC Mortg. Corp., No. 03-12-00212-CV, 2013 Tex. App. LEXIS 1031, at *3 (Tex. App.—Austin Feb. 1, 2013, no pet.) (mem. op.) (dismissing suit filed by person who was not party when judgment was signed). Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Triana, and Kelly Dismissed for Want of Jurisdiction Filed: March 12, 2021