Opinion
NO. 01-17-00154-CV
04-19-2018
R. HASSELL & COMPANY, INC. AND R. HASSELL BUILDERS, INC., Appellants v. SPRINGWOODS REALTY COMPANY, HARRIS COUNTY IMPROVEMENT DISTRICT #18, WALTER P. MOORE, INC., AND COSTELLO, INC., Appellees
On Appeal from the 333rd District Court Harris County, Texas
Trial Court Case No. 2012-42981
MEMORANDUM OPINION
Appellants, R. Hassell & Company, Inc. and R. Hassell Builders, Inc. (collectively, "RHC"), challenge the trial court's order granting the motion of appellees, Springwoods Realty Company ("Springwoods"), Harris County Improvement District #18 (the "District"), Walter P. Moore, Inc. ("WPM"), and Costello, Inc. ("Costello") (collectively, "appellees"), to strike RHC's Second Petition in Intervention. In its sole issue, RHC contends that the trial court erred in striking its Second Petition in Intervention.
We affirm.
Background
In its July 26, 2012 original petition, as amended, Hassell Construction Company ("HCCI") alleged that the District solicited bids for a roadway construction project in Harris County, Texas, known as the Springwoods Project (the "Project"). The Project involved the construction of Springwoods Village Parkway, as well as water and sanitary sewer lines, paving, and traffic and drainage improvements, in connection with ExxonMobil Corporation's Houston Campus. Based on the information that the District provided, HCCI submitted a bid. Costello, an engineer on the Project, recommended that the District award the contract to HCCI because HCCI was a "known entity with a great deal of experience on similar projects in the area and was ready to turn the Project around very quickly." After a public bidding process, HCCI was awarded the Project.
HCCI is not a party to this appeal.
HCCI, as "Contractor," then entered into a construction contract (the "Contract") with the District, as "Owner." Pursuant to an attached "Special Condition," Springwoods, the Project Developer, was also to be considered an "Owner" for certain purposes under the Contract. According to HCCI, the Contract contained material provisions integral to the timely completion of the scope of work, which included that "time was of the essence" and that "HCCI would be paid for the performance of the Scope of Work required by the drawings." HCCI alleged that, after its work on the Project commenced, however, the District and Springwoods made over 500 revisions to the construction plans, which materially changed the scope of work, the Contract price, and the timeline. The District and Springwoods then refused to pay for the changes and further accelerated the work, resulting in damage to HCCI. In its Third Amended Petition, HCCI brought claims against the District and Springwoods for breach of contract and against Springwoods for fraud. In the alternative, HCCI sought recovery against the District under Texas Local Government Code section 271.153(a)(2) and against Springwoods for quantum meruit and unjust enrichment.
Springwoods, the Project "Developer," was to be considered an "Owner" for purposes of approving requests for, and making payments to, the Contractor of any portion of the Contract price and "for paying all or any damages that might ever be due, including any costs associated with any change orders to the Contract."
TEX. LOC. GOV'T CODE ANN. § 271.153(a)(2) (West 2016) (governing breach-of-contract damages against local governmental entities, including amounts owed for change orders).
Subsequently, the District and Springwoods each filed a third-party petition against WPM, who had provided engineering and design services on the Project. The District brought claims against WPM for breach of contract, breach of warranty, and negligence, seeking indemnity. Springwoods asserted a negligence claim against WPM, also seeking indemnity. WPM, in turn, filed a third-party petition against Costello, seeking contribution.
On September 15, 2014, RHC filed its First Petition in Intervention, alleging that RHC and HCCI were partners, had pursued and executed selected construction projects in Harris County, and had "agreed to jointly bid, and as low bidder agreed to perform," the Project. RHC noted that its "joint venture relationship" with HCCI was disclosed to the District and Springwoods. RHC asserted that it provided project management and performed work on the Project utilizing RHC equipment and personnel. HCCI then submitted RHC's progress-payment reports to the District and Springwoods, and HCCI and RHC split the proceeds received from the Project, with "99% to RHC and 1% to HCCI."
The First Petition in Intervention also included as intervenors: R. Hassell Holding Company, Inc., and Royce and Sylvia Hassell. The intervenors explained that R. Hassell & Company, Inc., R. Hassell Builders, Inc. and R. Hassell Holding Company, Inc. are corporations owned by Royce and Silvia Hassell and managed by Royce, who is President of each of the companies. HCCI is also owned by various Hassell family members, including Royce.
RHC further alleged that HCCI had filed the instant lawsuit "under the name HCCI representing the partnership." RHC asserted that it had a justiciable interest in HCCI's lawsuit because RHC, "as a partner of HCCI," could have brought all or part of the original suit in its own name," and RHC's claims "ar[o]se from the claims" made by HCCI. RHC added conspiracy claims against the District, Springwoods, and the law firm of Coats Rose, who had previously represented HCCI. RHC also alleged that Coats Rose had tortiously interfered with RHC's relationship with HCCI. RHC further brought "cross-claims" against HCCI for breach of fiduciary duty and asserted that HCCI, "acting in concert with" Coats Rose, had intentionally inflicted emotional distress on the Hassell family. RHC noted that, although the parties had already exchanged "substantial documents," the "defendants had forestalled oral depositions."
HCCI answered RHC's First Petition in Intervention, generally denying the allegations and including a verified denial that a partnership existed between HCCI and RHC. HCCI also moved to strike RHC's petition in intervention, asserting that HCCI had filed its original petition in the suit in July 2012, and RHC had waited over two years afterwards to intervene. HCCI asserted that RHC lacked a justiciable interest in the lawsuit because HCCI, and not RHC, was awarded the Contract and entered into the Project as general contractor. In addition, RHC was not a party to the Contract and lacked standing to bring suit in its own name; rather, RHC had simply performed project management and other work on the Project, as had various subcontractors. Further, "[e]ven if RHC were to allege damages separate and apart from those of HCCI, as pass-through claims, the Texas Supreme Court has held that those claims would still need to be asserted by HCCI and could not be asserted directly by the intervenors against the owners of the Project. HCCI asserted that RHC's intervention excessively multiplied the issues by inserting RHC and its partnership allegations into the construction-delay lawsuit.
On October 20, 2014, after a hearing, the trial court struck RHC's First Petition in Intervention. RHC does not, in this appeal, challenge the trial court's order on its First Petition in Intervention.
In February 2015, RHC filed a suggestion of bankruptcy on behalf of the "Hassell 2012 Joint Venture and Springwoods Joint Venture," seeking to stay the instant case in the trial court. In March, April, and May 2015, the District, Springwoods, and WPM filed motions for summary judgment, in which Costello joined, against HCCI, and the trial court set the motions for a hearing on May 29, 2015. On May 27, 2015, however, the United States Bankruptcy Court for the Southern District of Texas sent to the trial court a "Request for Abatement," stating that, although the trial court's continuation of the suit before it did not violate the statutory stay, an abatement of the proceedings was requested. On May 29, 2015, the trial court abated the instant case.
See 11 U.S.C. § 362(a) (2012).
Subsequently, in April 2016, the Bankruptcy Court granted RHC's motion to dismiss its bankruptcy petition. The trial court reinstated the instant case and reset the hearing on appellees' motions for summary judgment for October 7, 2016.
A week prior to the hearing, on September 30, 2016, RHC filed its Second Petition in Intervention, which is the subject of this appeal. RHC asserted a "right to intervene as principal on the contract at issue." RHC asserted that, during the initial bidding process on the Project, RHC, and not HCCI, had received and reviewed the bid package information and had submitted, in the name of HCCI, the winning low bid of $14,960,786.80. RHC asserted that HCCI had "pretend[ed] it performed as contractor." After RHC was awarded the contract, HCCI confirmed to the District that RHC "was the Contractor performing the Contract under the name of [HCCI]." Although the contract had been awarded "in the name of HCCI," RHC had mobilized its equipment and employees, communicated with appellees' agents, and controlled all of the work on the Project. After RHC encountered delays, RHC retained counsel, who filed the instant suit "on behalf of and in consultation with HCCI." RHC stated: "RHC filed the petition because it was the Contractor on the Project and held a good-faith belief that it was, at a minimum, a partner with HCCI in the [Project]; or alternatively, that HCCI served as RHC's agent in bidding and securing the [Contract], as HCCI had done on other projects."
RHC argued that it had a justiciable interest in the instant suit because it could have brought the same action, or any part thereof, in its own name. RHC asserted that it had acted as principal, with HCCI as agent, in bidding and securing the Contract. Further, under the "sham contractor" statute, HCCI and the District, as the "nominal parties" to the Contract, had entered into the agreement lacking a good-faith intention that HCCI would perform the Contract.
See TEX. PROP. CODE ANN. § 53.026(a)(3) (West 2014).
RHC argued that its intervention would not complicate the case because it sought to recover its damages "from the same defendants that HCCI alleged [had] caused it harm." RHC had already answered third-party subpoenas for documents served on it by appellees, the parties had not taken oral depositions, and, under the current docket plan, discovery had not yet closed.
RHC argued that its intervention was essential to effectively protect its interests because appellees had, in their summary-judgment motions, argued that they were entitled to judgment as a matter of law because HCCI could not demonstrate that it had suffered any damages. Rather, the damages alleged were suffered by RHC. RHC asserted that appellees, through their summary-judgment motions, sought a judgment which would "prejudice RHC's right to recover."
RHC, in its Second Petition in Intervention, brought a breach-of-contract claim against the District and Springwoods and an alternative claim against the District for recovery under Texas Local Government Code section 271.153. RHC brought quantum meruit and unjust enrichment claims against both the District and Springwoods. RHC also brought new claims against the "Defendants and Third-Party Defendants," i.e., the District, Springwoods, WPM, and Costello for common law fraud, fraud by nondisclosure, and fraudulent inducement. RHC further brought a conspiracy claim against the District, Springwoods, WPM, and Costello, alleging that they each knew that the construction plans that RHC had relied upon in submitting its bid for the Project were not intended to be the actual plans, and they had "secretly agreed with each other to delay payment [for change orders] to force RHC to bear the costs." RHC also brought a breach of warranty claim against the District, Springwoods, WPM, and Costello, alleging that they had "breached their warranty that the plans provided to bidders were suitable to bid and build the Project." RHC also "[brought] suit for HCCI's breach of their implied contract," arising out of their "past dealings."
On October 3, 2016, HCCI non-suited all of its claims against Springwoods and the District. On October 4, 2016, appellees moved to strike RHC's Second Petition in Intervention as untimely, moot, and barred by judicial admissions. They noted that RHC had waited over two years after the inception of the lawsuit to file its First Petition in Intervention. And, RHC had waited over four years after the inception of the lawsuit, and two years after the parties had filed their motions for summary judgment, to file its Second Petition in Intervention. Further, RHC had filed its Second Petition in Intervention just one week prior to the scheduled hearing on appellees' summary-judgment motions. Appellees asserted that the striking of the Second Petition in Intervention was "not only squarely within the [trial court's] discretion, but clearly supported, if not mandated, by the record."
In addition, appellees asserted that RHC's allegation of a principal-agent relationship with HCCI was contradicted by RHC's allegations, in its First Petition in Intervention, that RHC and HCCI had performed the Project as part of a "joint venture" and were "partners" on the Project. Appellees asserted that RHC, having judicially admitted that it performed the Project as a partnership with HCCI, was precluded from claiming a principal-agency relationship with HCCI, or that RHC, and not HCCI, was the contractor on the Project. Appellees asserted that an intervention by RHC would excessively multiply the issues by requiring litigation of a variety of new issues.
After a hearing, the trial court granted appellees' motion to strike RHC's Second Petition in Intervention. Subsequently, appellees nonsuited all of their claims. The trial court then entered a final judgment dismissing all claims and all parties.
Intervention
In its sole issue, RHC argues that the trial court erred in granting appellees' motion to strike RHC's Second Petition in Intervention because RHC established that it had a justiciable interest in the suit; any one of several bases would have allowed it to recover in its own name; and the striking of its petition prejudiced RHC as a matter of law because it was deprived of the benefit of the relation-back doctrine to respond to limitations challenges and deprived of the "thousands of pages of discovery accumulated between 2012 and 2016."
Standard of Review and Legal Principles
"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. Rule 60 "authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right." In re Union Carbide, 273 S.W.3d 152, 154 (Tex. 2008). An intervenor need not secure the trial court's permission to intervene; rather, a party opposing the intervention has the burden to challenge it by a motion to strike. Harris Cty. v. Luna-Prudencio, 294 S.W.3d 690, 699 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see also Nat'l Union Fire Ins. Co. of Pittsburgh v. Pennzoil Co., 866 S.W.2d 248, 250 (Tex. App.—Corpus Christi 1993, no writ) ("An entity need only file a petition in intervention and await a motion to strike it.").
If a party moves to strike the intervention, the burden shifts to the intervenor to show a justiciable interest in the suit. Union Carbide, 273 S.W.3d at 155; In re Webb, 266 S.W.3d 544, 548 (Tex. App.—Fort Worth 2008, pet. denied). An intervenor has a justiciable interest in a lawsuit "when his interests will be affected by the litigation." In re Webb, 266 S.W.3d at 548. The interest asserted by the intervenor may be legal or equitable, but generally must be more than "a mere contingent or remote interest." In re Webb, 266 S.W.3d at 548; see Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
We review a trial court's ruling on a motion to strike a petition in intervention for an abuse of discretion. In re Lumbermans Mut. Cas. Co., 184 S.W.3d 718, 722 (Tex. 2006). 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). Although the trial court has broad discretion in determining whether an intervention should be stricken, a trial court abuses its discretion by striking the petition if (1) the intervenor could have brought the same action, or any part thereof, in his own name, (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. Guar. Fed. Savs. Bank, 793 S.W.2d at 657; Ginther v. Bank of Am., N.A., No. 01-08-00430-CV, 2010 WL 2244098, at *6 (Tex. App.—Houston [1st Dist.] May 28, 2010, pet. denied) (mem. op.); Harris Cty., 294 S.W.3d at 699.
Timeliness and Multiplication of Issues
Here, among appellees' grounds for striking RHC's Second Petition in Intervention is that the intervention was untimely and "would excessively multiply the issues by requiring the litigation of a variety of new issues." See Guar. Fed. Savs. Bank, 793 S.W.2d at 657.
"Because a trial court has 'broad' discretion in determining whether to strike an intervention, that discretion presumably includes consideration of all issues related to whether intervention was proper in the case under the circumstances, i.e., any sufficient cause." Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 873 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (quoting Allen Parker Co. v. Trustmark Nat'l Bank, No. 14-12-00766-CV, 2013 WL 2457113, at *6 (Tex. App.—Houston [14th Dist.] June 6, 2013, pet. denied) (mem. op.)). Although there is not a deadline for intervention in the Rules of Civil Procedure, Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008), a significant delay in filing a petition in intervention may qualify as "sufficient cause" to strike an intervention. Muller, 525 S.W.3d at 874; see also Amwest Sav. Ass'n. v. Marchman, No. 05-93-00017-CV, 1994 WL 374241, at *1 (Tex. App.—Dallas July 18, 1994, no writ) (not designated for publication) (holding that significant delay in filing petition in intervention, "standing alone," may be sufficient grounds to strike intervention). "'[U]ntimely' with respect to a petition in intervention can refer to a petition filed so late that it would delay the proceeding or unjustifiably complicate it." Muller, 525 S.W.3d at 874 (holding trial court acts within its broad discretion in striking late-filed petition in intervention); see Allen Parker Co., 2013 WL 2457113, at *6 (considering "last-minute nature" of attempted intervention in finding no abuse of discretion by trial court in striking intervention); Roberson v. Roberson, 420 S.W.2d 495, 499 (Tex. Civ. App.—Houston [14th Dist.] 1967, writ ref'd n.r.e.) ("Had the trial court allowed such intervention [filed two years after inception of suit], this suit for divorce between husband and wife and division of community property probably would have been confused and clouded by a new and complicated set of issues. We believe that interminable trouble, confusion and delay would have resulted by the intervention."); Armstrong v. Tidelands Life Ins. Co., 466 S.W.2d 407, 412 (Tex. Civ. App.—Corpus Christi 1971, no writ) (holding petition in intervention filed three years and nine months after suit was filed and after motion for summary judgment set for hearing, not timely filed).
In addition, the injection of new issues into litigation excessively multiplies issues and gives a trial court grounds to strike a petition in intervention. Rimkus Consulting Grp., Inc. v. Concierge Care Nursing Centers, Inc., No. 01-09-01024-CV, 2010 WL 3447907, at *3 (Tex. App.—Houston [1st Dist.] Aug. 31, 2010, no pet.) (mem. op.); Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—Fort Worth 2003, no pet.) (holding that trial court could have concluded that submitting breach of contract and breach of fiduciary duty issues to jury along with malpractice issues would have caused unnecessary confusion and complicated already difficult medical malpractice issues).
In Muller, Muller was one of three individuals who formed La Paz Golf Villas, LLC, in order to purchase development property from Desarrollos for a golf resort. 525 S.W.3d at 862-63. La Paz and Desarrollos entered into an escrow agreement, with Stewart Title Company ("STGC"), as escrow agent. Id. at 863. After a disagreement arose and La Paz and Desarrollos cancelled the agreement, STGC released the escrow funds to La Paz. Id. Muller sued STGC and its employee, Alvarado, for not releasing the funds to Muller. Id. STGC and Alvarado each moved for a summary judgment and a hearing was set. Id. at 864. On the eve of the summary judgment hearing, La Paz intervened. Id. STGC and Alvarado moved to strike the intervention as untimely and prejudicial, arguing that they had litigated the case for over a year, had conducted discovery, and had filed and set their summary-judgment motions for a hearing, which effectively set the case for trial. Id. at 874. The trial court struck the intervention. Id. at 865.
On appeal, the Muller court noted that significant delay in filing a petition in intervention may qualify as sufficient cause to strike an intervention, and a trial court acts within its broad discretion in striking a late-filed petition in intervention if it would have interjected new issues and caused delay. Id. at 874. The court noted that La Paz had waited almost 20 months after Muller filed suit and two-and-a-half months after STGC and Alvarado had filed their motions for summary judgment, to intervene on the eve of the summary-judgment hearing. Id. The court held that, considering the trial court's broad discretion to consider all the issues related to whether the intervention was proper, La Paz had not shown that the trial court acted without any reference to guiding rules or principles. Id. at 874-75.
Here, HCCI filed its suit on July 26, 2012, and it is undisputed that RHC was aware of the suit from its inception. Over two years later, on September 15, 2014, RHC filed its First Petition in Intervention, asserting an interest in the suit as HCCI's partner. On October 20, 2014, the trial court struck RHC's First Petition in Intervention, and RHC does not challenge that ruling. Appellees began filing motions for summary judgment in March 2015. A hearing on appellees' motions for summary judgment was set for May 29, 2015. However, the case was abated on May 29, 2015 because RHC filed a petition for bankruptcy in the name of the alleged partnership. A year later, RHC dismissed its bankruptcy petition. After the trial court reinstated the case, the appellees' motions for summary judgment were reset for a hearing on October 7, 2016. However, a week before the hearing, on September 30, 2016, RHC filed its Second Petition in Intervention. In sum, RHC filed its Second Petition in Intervention four years after HCCI filed the instant suit, 18 months after appellees began filing motions for summary judgment, and just one week before the hearing was reset on the summary-judgment motions that, as Springwoods notes in its brief, "could have concluded the case."
In addition, RHC interjected numerous new claims into the suit. HCCI brought claims against the District and Springwoods for breach of contract and against Springwoods for fraud. In the alternative, HCCI sought recovery against the District under Texas Local Government Code section 271.153 and against Springwoods for quantum meruit and unjust enrichment. The District brought claims against WPM for breach of contract, breach of warranty, and negligence, seeking indemnity. Springwoods asserted a negligence claim against WPM, also seeking indemnity. WPM filed a third-party petition against Costello, seeking contribution.
Like HCCI, RHC, in its Second Petition in Intervention, brought a breach-of-contract claim against the District and Springwoods and an alternative claim against the District for recovery under Local Government Code section 271.153. Unlike HCCI, RHC brought its quantum meruit and unjust enrichment claims against both the District and Springwoods. RHC also brought new claims against the "Defendants and Third-Party Defendants," i.e., the District, Springwoods, WPM, and Costello for common law fraud, fraud by nondisclosure, and fraudulent inducement. RHC further brought a new conspiracy claim against the District, Springwoods, WPM, and Costello, alleging that they each knew that the construction plans that RHC had relied upon in submitting its bid for the Project were not intended to be the actual plans, and they had "secretly agreed with each other to delay payment [for change orders] to force RHC to bear the costs." RHC also brought a new breach of warranty claim against the District, Springwoods, WPM, and Costello, alleging that they had "breached their warranty that the plans provided to bidders were suitable to bid and build the Project." RHC also "[brought] suit for HCCI's breach of their implied contract," arising out of their "past dealings." Moreover, whether RHC could bring direct claims against the District, Springwoods, WPM, and Costello, along with RHC's new allegations that HCCI had acted as RHC's agent in executing the Contract and that RHC was the "victim of a sham contract," further interjected new issues that would have to be resolved.
RHC argues that its Second Petition in Intervention "could not have excessively complicated the litigation," because, three days after it was filed, HCCI non-suited its claims against the District and Springwoods. Thus, "no other party was in position to claim affirmative relief" based on the Contract.
Appellees argue that, after HCCI non-suited its claims, the only claims remaining were the third-party claims seeking indemnity and contribution, which became moot. Thus, "as a practical matter, there [was] no lawsuit in which to intervene." Appellees assert that "[h]ad RHC been allowed to intervene, it would have become a new and the only plaintiff" and "would have created an entirely new lawsuit." Appellees "would have been facing a host of new and difficult issues that would have required the parties to start over from scratch over four years" after the lawsuit was filed and causing further delay in a four-year-old case.
Given RHC's filing of its Second Petition in Intervention so late in the proceedings and its attempts to interject new claims and issues, the trial court, in exercising its broad discretion, could have reasonably concluded that RHC's intervention was untimely, in that it would have unreasonably delayed and complicated the proceeding by multiplying the issues presented. Such delay and complication of issues constitutes sufficient cause for striking an intervention. See Muller, 525 S.W.3d at 874 (holding trial court acts within its broad discretion in striking late-filed petition in intervention which would have interjected new issues and caused delay); Allen Parker Co., 2013 WL 2457113, at *6 (considering "last-minute nature" of attempted intervention in finding no abuse of discretion by trial court in striking intervention); Roberson, 420 S.W.2d at 499 (holding that petition in intervention, filed two years after divorce proceeding was instituted and which sought to determine status of property, properly stricken); see also Marchman, 1994 WL 374241, at *1 (holding that significant delay in filing petition in intervention, "standing alone," sufficient grounds to strike intervention). We need not reach whether RHC could have brought the same action, or any part thereof, in its own name or whether the intervention is essential to effectively protect RHC's interest. See Guar. Fed. Savs. Bank, 793 S.W.2d at 657 (holding that trial court abuses its discretion by striking the petition if (1) the intervenor could have brought the same action, or any part thereof, in his own name, (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); Ginther, 2010 WL 2244098, at *7.
To prevail on appeal, RHC had the burden to show that the trial court abused its discretion by striking its Second Petition in Intervention without regard to guiding rules and principles. See Downer, 701 S.W.2d at 241. RHC has not shown that the trial court acted without reference to any guiding rules or principles. See id. Accordingly, we hold that the trial court did not abuse its discretion by granting appellees' motion to strike RHC's Second Petition in Intervention.
We overrule RHC's sole issue.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown.