COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00354-CV

J. FUENTES COLLEYVILLE, L.P. 

D/B/A GLORIA’S RESTAURANT; 

JOSE FUENTES COLLEYVILLE, 

INC. D/B/A GLORIA’S 

RESTAURANT; AND CARLOS 

FUENTES, INC. D/B/A GLORIA’S 

RESTAURANT

APPELLANTS

V.

A.S., INDIVIDUALLY AND AS NEXT 

FRIEND OF K.S., A MINOR CHILD; 

KRISTEN HAYTER; AND 

CONSUMERS COUNTY MUTUAL 

INSURANCE COMPANY

APPELLEES

----------

FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 096-276274-15

----------

OPINION

----------
2

I. INTRODUCTION

A party with a justiciable interest in a pending suit may intervene as a 

matter of right, but trial courts have long possessed broad discretion to strike a

plea in intervention, even when the intervenor has a justiciable interest. See

In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008) (orig. proceeding); 

Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. 

App.—Fort Worth 2003, no pet.). We consider in this appeal (1) whether 

Appellants J. Fuentes Colleyville, L.P. d/b/a Gloria’s Restaurant, Jose Fuentes 

Colleyville, Inc. d/b/a Gloria’s Restaurant, and Carlos Fuentes, Inc., d/b/a Gloria’s 

Restaurant have a justiciable interest in a lawsuit that Appellee A.S., individually 

and as next friend of K.S., a minor child, filed against Kristen Hayter and 

Consumers County Mutual Insurance Company to obtain judicial approval of a 

settlement that A.S. reached with Hayter and a settlement that A.S. reached with 

Consumers and (2) whether the trial court could have exercised its discretion to 

strike Appellants’ plea even if they have a justiciable interest. We resolve both 

issues against Appellants. We will affirm.

II. BACKGROUND

K.S. sustained injuries on January 1, 2014, when a vehicle that Hayter was 

allegedly operating while intoxicated struck the vehicle in which K.S. was a 

passenger. A.S., in both her individual capacity and as K.S.’s next friend, later

reached settlement agreements with both Hayter’s automobile liability insurance 

carrier and Consumers, the carrier of A.S.’s underinsured automobile insurance.
3

On January 6, 2015, A.S., both individually and as K.S.’s next friend, filed 

a self-described “friendly suit” in Tarrant County district court against Hayter and 

Consumers. Among other things, the petition contained a brief recitation of facts

that included statements that Hayter was driving “while he was intoxicated,” that 

Hayter failed to notice the vehicle that K.S. was in “[d]ue to [his] intoxication,” and 

that “[a]s a result,” he collided with the vehicle that K.S. was in. The petition also 

contained the following four allegations:

8. Defendant Hayter had a duty to exercise the degree of care 

that a reasonably careful person would use to avoid harm to 

others under circumstances similar to those described herein. 

Defendant Hayter breached his duty, was negligent and, as a 

result of his negligence, [K.S.] was injured.

9. There have been no allegations that the driver of the vehicle 

being occupied by [K.S.] was negligent in any way or 

contributed to [K.S.’s] damages or [A.S.’s] damages.

10. Defendant Consumers and [A.S.] were in a contractual 

relationship whereby Defendant Consumers agreed to provide 

Uninsured/Underinsured coverage to [A.S.]. [A.S.] has made 

a claim pursuant to such agreement.

11. [A.S.] alleges Defendant Hayter was underinsured at the time 

of the injuries and damages, as that term is defined in the 

contract providing the protection.

Under the “Damages” section, the petition stated,

12. The damages, which are unliquidated, are within the 

jurisdictional limits of the Court.

13. The damages exceed the liability coverage of Defendant 

Hayter and the UIM coverage agreed to by Defendant 

Consumers.
4

14. The parties have negotiated settlements of Plaintiff’s claims 

and seek the Court’s approval of such settlements.

The petition then set out the following paragraphs:

15. All claims, disputes and causes of action of any nature 

against Defendant Hayter have been fully and finally 

settled and resolved in this case for the sum of $30,000, 

which is the limit of liability insurance coverage of 

Defendant Hayter, without any admission regarding the 

truthfulness of the allegations contained herein. The 

purpose of this lawsuit is so that this settlement may be 

presented to the Court for approval.

16. Additionally, all claims, disputes and causes of action of 

any nature against Defendant Consumers have been fully 

and finally settled and resolved in this case for the sum of 

$100,000, which is the limit of UIM insurance coverage of 

Plaintiff, without any admission regarding the 

truthfulness of the allegations contained herein. The 

purpose of this lawsuit is so that this settlement may also 

be presented to the Court for approval. [Emphasis added.]

The petition prayed “that the Defendants appear and answer herein; that the 

Court appoint a guardian ad litem and conduct a minor prove-up hearing; and 

that the Court approve the settlements agreed to by the parties.”

On the same day, Consumers filed a general denial and a motion to 

appoint K.S. a guardian ad litem. The trial court signed an order appointing K.S. 

a guardian ad litem on January 16, 2015. See Tex. R. Civ. P. 173.2(a)(1).

Hayter filed a general denial on February 2, 2015.

On April 29, 2015, A.S., individually and as next friend of K.S., filed an 

original petition in Dallas County district court against Appellants. The petition

alleged that they had violated the Dram Shop Act because on January 1, 2014, 
5

they had provided Hayter with alcoholic beverages when it was apparent to them

that he was “obviously intoxicated to the extent that he presented a clear danger 

to himself and others” and because Hayter’s intoxication had proximately caused 

the ensuing collision that led to K.S.’s injuries.

On June 15, 2015, Appellants filed a plea in intervention in the Tarrant 

County suit. Appellants confirmed that they were not seeking money damages 

but that they were instead intervening “to defend and defeat” A.S.’s allegations 

(i) that Hayter was intoxicated when his vehicle collided with the vehicle that K.S. 

was riding in and (ii) that his intoxication was a proximate cause of the collision 

and A.S.’s and K.S.’s injuries and damages—allegations that were common to 

both the Tarrant County and Dallas County suits. Appellants later filed an 

amended plea in intervention and crossclaims.

A.S. filed a motion to strike Appellants’ plea in intervention, arguing that

they had no justiciable interest in the suit, that intervention was not essential to 

protect their interests, and that intervention would complicate and delay the case 

by an excessive multiplication of issues. Both Hayter and Consumers filed an 

objection to Appellants’ plea in intervention and adopted the objections lodged by 

A.S.

On September 4, 2015, the trial court conducted a minor prove-up hearing 

and found that the settlements with Hayter and Consumers were in K.S.’s best 

interest. Two weeks later, after a hearing, the trial court signed an order granting 
6

A.S.’s motion to strike and orally approved the parties’ respective settlements.1

The trial court later signed an agreed final judgment that, among other things, 

approved the settlement agreements and releases of all claims between the 

parties to the Tarrant County suit.

III. JUSTICIABLE INTEREST AND TRIAL COURT DISCRETION

Appellants argue in their first issue that the trial court abused its discretion 

by striking their plea in intervention. They contend that they have a justiciable 

interest in the Tarrant County suit because K.S. could have joined them as 

defendants under rule of civil procedure 40, as the claims asserted against

Hayter in the Tarrant County suit and the claims asserted against Appellants in 

the Dallas County suit arose out of the same series of occurrences and were 

based on common questions of law or fact—Hayter’s alleged intoxication and the 

proximate cause of A.S. and K.S.’s damages. See Tex. R. Civ. P. 40.

Appellants also argue that rule of civil procedure 39(a)(1) “completely eliminated” 

the trial court’s discretion to strike their plea in intervention because A.S. alleged

that her damages exceeded the limits of Hayter’s liability policy and A.S.’s 

underinsured policy with Consumers.

A.S. responds that Appellants lack standing to intervene in the Tarrant 

County suit because it “was not a suit to adjudicate the liability of Hayter” but only 

 

1The order granting the motion to strike did not give a reason for the ruling.
7

“a ‘friendly suit’ to approve a settlement on behalf of a minor claimant to whom 

Appellants bear no relation.”

“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. 

Once a motion to strike has been filed, the burden shifts to the intervenor to show 

a justiciable interest in the lawsuit. Union Carbide Corp., 273 S.W.3d at 155; 

Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 

1990). A party has a justiciable interest in a lawsuit, and thus a right to intervene, 

when his interests will be affected by the litigation. Law Offices of Windle Turley, 

P.C., 109 S.W.3d at 70. In other words, the interest is “analogous to that 

essential for a party to maintain or defend an action.” McCord v. Watts, 777 

S.W.2d 809, 811‒12 (Tex. App.—Austin 1989, no writ); see Guar. Fed. Sav. 

Bank, 793 S.W.2d at 657 (providing that a person has a 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, but it must not be merely contingent or remote. Guar. Fed. 

Sav. Bank, 793 S.W.2d at 657; Law Offices of Windle Turley, P.C., 109 S.W.3d 

at 70. Courts review the pleadings to determine whether an intervenor has a 

justiciable interest. See McCord, 777 S.W.2d at 811. If a party cannot show a 

justiciable interest in the lawsuit, the trial court has sufficient cause to strike the 

plea in intervention. Law Offices of Windle Turley, P.C., 109 S.W.3d at 70.
8

Further, even if a party has a justiciable interest, and thus a right to 

intervene in a lawsuit, the trial court still has broad discretion to determine 

whether the plea in intervention should be struck. Id. (additionally explaining that 

we review a trial court’s decision to strike a plea in intervention for an abuse of 

discretion); Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.—Austin 2007, 

no pet.) (“[T]he 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.”). However, a trial court abuses its 

discretion by striking a plea in intervention if the intervenor (1) could have 

brought the same action, or any part of it, in its own name or could have defeated 

recovery, or some part of it, if the action had been brought against it, (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. Guar. Fed. Sav. Bank, 793 S.W.2d at 657.

The problem with Appellants’ argument is that it is premised upon a 

characterization of the underlying suit that is fundamentally inconsistent with the 

true nature of the action. Yes, A.S.’s original petition states that Hayter was 

intoxicated and that his negligence caused K.S.’s injuries, but those statements

must be viewed in light of the entire petition, which unambiguously demonstrates 

that the lawsuit was filed for the sole and specific purpose of obtaining judicial 

approval of the settlements that A.S., individually and on behalf of K.S., reached 

with both Hayter and Consumers. See Gulf, Colo. & Santa Fe Ry. Co. v. Bliss, 
9

368 S.W.2d 594, 599 (Tex. 1963) (“It is a general rule, so well established as to 

need no citation of authority, that the petition will be construed as favorably as 

possible for the pleader.”). Indeed, consistent with that lone purpose, (i) the four

“Allegations” levied against Hayter and Consumers contextualize the “claims, 

disputes and causes of action” against them that were “fully and finally settled”;

(ii) the damages allegations state that the parties have negotiated settlements;

(iii) the petition conspicuously states in bold font—twice—that “[t]he purpose of 

this lawsuit is so that this settlement may be presented to the Court for approval”;

(iv) neither Hayter nor Consumers made any admission of liability as part of the 

settlements; (v) the petition asks the trial court to appoint for K.S. a guardian 

ad litem; and (vi) the petition prays “that the Court approve the settlements 

agreed to by the parties.” It cannot be said with any seriousness that the original 

petition reflects a conventional effort to impose liability upon Hayter and 

Consumers for the purpose of obtaining a judgment against them for damages.

2

 

Cf. Gulf Ins. Co. v. Tex. Cas. Ins. Co., 580 S.W.2d 645, 647‒48 (Tex. Civ. App.—

Fort Worth 1979, writ ref’d n.r.e.) (declining to construe “friendly suit” with agreed 

 

2As A.S. aptly explains,

The “friendly suit” did not adjudicate liability as to Hayter or 

[Appellants]. The “friendly suit” did not adjudicate whether Hayter 

was intoxicated. The “friendly suit” did not adjudicate where Hayter 

became intoxicated. The “friendly suit” did not adjudicate whether 

Hayter’s intoxication was a proximate cause of the collision giving 

rise to the claims made on behalf of K.S. The “friendly suit” did not [] 

adjudicate the amount of K.S.’s damages.
10

judgment as “actual trial” for purposes of “no action” clause contained in 

insurance policy).

The question then is whether Appellants have a justiciable interest in 

A.S.’s suit to obtain judicial approval of the settlements that were made with 

Hayter and Consumers. They do not. Their plea in intervention included no 

allegations “involving the trial court’s review, approval, entry, and enforcement of 

the settlement agreement[s]” between A.S., Hayter, and Consumers. Hurtado v. 

Gamez, No. 13-11-00354-CV, 2012 WL 2052199, at *5 (Tex. App.—Corpus 

Christi June 7, 2012, pet. denied) (mem. op.). Stated otherwise, Appellants’ plea 

in intervention alleged no facts indicating that they have any interest whatsoever 

that will be affected by the unique litigation between A.S., Hayter, and 

Consumers. See Law Offices of Windle Turley, P.C., 109 S.W.3d at 70. The trial 

court could have reasonably granted A.S.’s motion to strike on this basis.3

We further conclude that the trial court could have alternatively exercised 

its broad discretion to strike Appellants’ plea in intervention for the other two

reasons that A.S. articulated in her motion to strike. See id. Specifically, not only 

are Appellants fully capable of protecting their interests via the Dallas County 

suit—as A.S. observed, Appellants may “claim contributory negligence against 

 

3This part of our holding is narrow. We do not hold that the trial court 

lacked jurisdiction to perform any act other than to approve or reject the 

settlement agreements between the parties. We simply hold that, on these 

pleadings, Appellants have no justiciable interest in A.S.’s suit to obtain judicial 

approval of the settlement agreements.
11

any party, designate any non-party as a responsible third party, require a jury 

trial, serve discovery on parties and non-parties of their choosing, depose any 

witness[,] or otherwise [] defend that lawsuit”—but the Tarrant County suit would 

no doubt be complicated by interjecting Appellants’ interests when the only other 

parties to the suit have already agreed to resolve “[a]ll claims, disputes and

causes of action of any nature” between them. See Guar. Fed. Sav. Bank, 793 

S.W.2d at 657.

Appellants argue that rule of civil procedure 39(a)(1) prohibited the trial 

court from exercising its discretion because A.S. pleaded that her damages 

exceeded Hayter’s liability coverage and the underinsured motorist coverage 

provided by Consumers. See Tex. R. Civ. P. 39(a)(1) (providing that a person 

who is subject to service of process “shall” be joined as a party in the action if “in 

his absence complete relief cannot be accorded among those already parties”). 

However, Hayter and Consumers were “already parties” when Appellants 

intervened, and A.S. pleaded that she settled for the limit of each insurance 

policy. As the sole purpose of the Tarrant County suit was to obtain judicial 

approval of the settlements, the relief that A.S. obtained from Hayter and 

Consumers was as complete as it could be.

We hold that the trial court did not abuse its discretion by striking

Appellants’ plea in intervention. We overrule their first issue.
12

IV. CROSSCLAIMS

Appellants argue in their second issue that the trial court reversibly erred 

insofar as its order striking their plea in intervention also struck their crossclaims 

because no party filed a motion to strike the crossclaims. The trial court properly

struck Appellants’ first-filed plea in intervention; therefore, its later-filed pleading 

asserting the crossclaims was of no legal effect.

4

 We overrule Appellants’ 

second issue.

V. FRIVOLOUS APPEAL

A.S. argues that she should be reimbursed her appellate attorneys’ fees as 

damages because this appeal is frivolous. See Tex. R. App. P. 45. We disagree 

and, therefore, deny her request for attorneys’ fees as damages.

VI. CONCLUSION

Having overruled Appellants’ two issues, we affirm the trial court’s 

judgment.

/s/ Bill Meier

BILL MEIER

JUSTICE 

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DELIVERED: August 18, 2016

 

4Appellants acknowledge that they “explicitly informed” the trial court that 

they would treat the motion to strike as also applying to their pleading asserting

the crossclaims.