in Re Rogers Wealth Group, Inc. and Dale Rogers ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00010-CV
IN RE ROGERS WEALTH GROUP, RELATORS
INC. AND DALE ROGERS
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ORIGINAL PROCEEDING
TRIAL COURT NO. 141-292402-17
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MEMORANDUM OPINION1
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Relators Rogers Wealth Group, Inc. and Dale Rogers seek mandamus
relief from the trial court’s order denying their joint motion to strike real party in
interest Caroline Nunley’s petition in intervention. We conditionally grant the writ
of mandamus.
1
See Tex. R. App. P. 47.4, 52.8(d).
I. BACKGROUND
A. MEGAN RAETZ FILES SUIT
On May 31, 2017, Megan Raetz filed a lawsuit against Rogers Wealth
Group, Inc. and Dale Rogers. According to Raetz’s original petition, Dale is the
chief executive officer of Rogers Wealth. Raetz alleges that Dale hired her as an
administrative assistant in December 2014 and that she was later promoted to
serve as his personal assistant. She claims that while serving as Dale’s personal
assistant, she was told to sit for pictures in Dale’s office and to escort him to and
from his car in such a way as to allow him to walk behind her and make
comments about the fit of her clothes and about her backside. Raetz also claims
that on a weekly basis, Dale made unwelcome suggestive comments to her. She
further alleges Dale propositioned her for trips to Las Vegas in his private jet and
made constant sexual innuendos toward her.
Raetz also alleges that Dale put his whole palm on her buttock and left it
there until she moved it away and that on multiple occasions, he trapped her
between desks with his body. She claims that on one occasion, Dale shut the
door to her office and asked her what she was doing after work, offered her
money for dinner and drinks, and told her not to tell anyone, especially her
husband. According to Raetz, Dale also joked about being caught staring at her
breasts, and he would strategically position himself so that he could look down
into her shirt or look at her legs.
2
Raetz claims she complained about Dale’s conduct to three supervisors
but either was told not to make a big deal of it or was ignored. She asserts that
after she made her complaints, the company indicated it would be conducting
employee reviews but that only she and one other employee were actually
reviewed. After her review, Raetz alleges she was disciplined for having a
“negative attitude.” She asserts that she felt humiliated on a daily basis because
her complaints were ignored and could not endure Dale’s conduct any longer, so
“[s]he had no choice but to constructively discharge.”
Based upon all of this alleged conduct, Raetz asserts claims against Dale
and Rogers Wealth for discrimination and harassment under the Texas Labor
Code, assault, false imprisonment, intentional infliction of emotional distress,
negligence, and defamation. According to her petition, Raetz seeks damages for
back and front pay; emotional pain; past and future mental anguish; loss of
enjoyment of life; expert fees; attorney’s fees; costs incurred in pursuing this
lawsuit; and pre- and post-judgment interest. She also seeks exemplary
damages.
B. NUNLEY FILES PETITION IN INTERVENTION
On August 25, 2017, Nunley filed a petition in intervention in Raetz’s suit.
See Tex. R. Civ. P. 60. In her petition, Nunley alleges that Dale hired her as an
administrative assistant in August 2015 (approximately eight months after Raetz
alleges he had hired her). Nunley alleges that Dale undertook the same sort of
conduct toward her that Raetz alleges in her original petition. For example, like
3
Raetz, Nunley alleges that she was told to escort Dale to and from his car, being
always sure to allow him to walk behind her, and that he would make comments
about the fit of her clothes and about her backside. Like Raetz, Nunley alleges
that Dale propositioned her for trips to Las Vegas on his jet. In addition, Nunley
asserts that Dale made unwelcomed comments in front of clients and other
employees about the fit of her clothes and about her legs when she was wearing
skirts. She claims that Dale would comment on her looks, that he would walk
close to her in order to graze her breasts, and that he would make constant
sexual innuendos toward her.
Nunley claims that on one occasion, Dale told her that if another male
employee “did not make her his,” then he (Dale) would. She alleges that while
she was sitting at her desk, Dale would come up behind her and put his hands on
her shoulders. And, Nunley asserts, Dale would ask her if she had a boyfriend
and if she was having any problems paying rent, and he would also offer her
money, insisting that she not tell anyone. Like Raetz, Nunley claims that she
complained about Dale’s conduct to three supervisors but either was told not to
make a big deal of it or was ignored. She asserts that she felt humiliated on a
daily basis because her complaints were ignored and that she could not endure
the treatment, so she was forced to leave her job.
4
Based upon all of this alleged conduct, Nunley asserts the exact same
causes of action against Dale and Rogers Wealth that Raetz has asserted, and
Nunley also seeks the same types of damages that Raetz has sought.2
C. DALE AND ROGERS WEALTH MOVE TO STRIKE NUNLEY’S INTERVENTION
On October 2, 2017, Dale and Rogers Wealth filed a motion to strike
Nunley’s petition in intervention. See Tex. R. Civ. P. 60. They argued that the
trial court should strike Nunley’s petition because she did not have any justiciable
interest in Raetz’s suit and because her intervention would complicate the case
by excessively multiplying the issues in the litigation. Nunley did not respond to
Dale and Rogers Wealth’s motion to strike. On November 16, 2017, the trial
court held a hearing on the motion to strike and signed an order denying that
motion. Dale and Rogers Wealth now seek mandamus relief from that order.
II. MANDAMUS STANDARD
To be entitled to mandamus relief, Dale and Rogers Wealth must establish
that the trial court committed a clear abuse of discretion and that they have no
adequate remedy by appeal. See In re Ford Motor Co., 165 S.W.3d 315, 317
(Tex. 2005) (orig. proceeding).
2
Indeed, the portions of Nunley’s petition in intervention that set out her
causes of action and her damages are near carbon-copies of the portions of
Raetz’s original petition that set out her causes of action and her damages, the
major difference being that Nunley has substituted “Intervenor” and “Intervener
Nunley” in the places where Raetz has used “Plaintiff” and “Plaintiff Raetz.”
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III. APPLICABLE LAW
Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny 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. By virtue of this
rule, a party with a justiciable interest in a pending suit may intervene in the suit
as a matter of right. See In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex.
2008) (orig. proceeding). Because intervention is permitted as a matter of right,
the justiciable-interest requirement is of paramount importance. See id. at 155.
That requirement “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.”
Id. The justiciable-interest requirement therefore “protects pending cases from
having interlopers disrupt the proceedings.” Id.
The parties to a pending proceeding can protect themselves from an
intervention by filing a motion to strike. See Tex. R. Civ. P. 60; Union Carbide,
273 S.W.3d at 155. If any party to the pending suit moves to strike the
intervention, the intervenor then has the burden to show he has a justiciable
interest in the pending suit. See Union Carbide, 273 S.W.3d at 155. To
constitute a justiciable interest,
the intervenor’s interest must 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 in the original suit. In
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other words, a party may intervene if the intervenor could have
brought the pending action, or any part thereof, in his own name.
Id. (cleaned up).3 If the intervenor fails to show a justiciable interest in the
pending suit, then the trial court has no discretion to deny the party’s motion to
strike the intervention. See Union Carbide, 273 S.W.3d at 156; In re Empire
Scaffold, LLC, No. 09-16-00052-CV, 2016 WL 1469185, at *2 (Tex. App.—
Beaumont Apr. 14, 2016, orig. proceeding) (holding that trial court abused its
discretion by failing to grant motion to strike intervention when intervenor was
unable to show justiciable interest in underlying suit).
IV. ABUSE OF DISCRETION
Dale and Rogers Wealth argue that the trial court abused its discretion by
denying their motion to strike because Nunley failed to establish she has a
justiciable interest in Raetz’s suit against them.
3
The “cleaned up” parenthetical, we recently noted, “is fast gaining traction
since first being proposed” in 2017. State v. Marks, No. 02-16-00434, 2017 WL
6947901, at *4 n.12 (Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.,
not designated for publication). This parenthetical “signals that ungainly and
substantively unnecessary brackets, ellipses, embedded quotation marks, and
the like have been stripped from the source being quoted without coming out and
saying so.” Id. (citing Jack Metzler, Cleaning Up Quotations, J. App. Prac. &
Process (forthcoming 2018), http://dx.doi.org/10.2139/ssrn.2935374 (last visited
Mar. 9, 2018)); see United States v. Steward, 880 F.3d 983, 988 n.3 (8th Cir.
2018) (noting that “‘[c]leaned up’ is a new parenthetical used to eliminate
unnecessary explanation of non-substantive prior alterations” and “can be used
when extraneous, residual, non-substantive information has been removed” from
a quotation); United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017); In re
Shipman, No. 16-0607, 2018 WL 1022467, at *3 (Tex. Feb. 23, 2018) (orig.
proceeding); Cadena Comercial USA Corp. v. Tex. Alcohol & Beverage Comm’n,
518 S.W.3d 318, 341 n.18 (Tex. 2017) (Willett, J., dissenting).
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A. WAIVER
Nunley contends that Dale and Rogers Wealth should be estopped from
obtaining their requested relief because they invited the trial court to commit the
error that they now complain of in this mandamus. She argues that during the
hearing on their motion to strike, there was a discussion concerning what the
harm would be in allowing the intervention to proceed temporarily. She argues
that counsel for Dale and Rogers Wealth expressed a preference that their
clients be deposed only once and that they elected to allow the intervention to
proceed temporarily in exchange for the benefit of their clients only having to
submit to one deposition. Only after their depositions were taken did Dale and
Rogers Wealth file this mandamus, argues Nunley. Thus, Nunley urges, Dale
and Rogers Wealth “should be estopped on the basis of estoppel or waiver from
asserting the trial court erred by denying the motion to strike when they agreed to
it and further requested limited depositions.”
We do not agree that Dale and Rogers Wealth invited the error they
complain of in this mandamus. The record from the hearing shows that the trial
court opened the hearing on the motion to strike by suggesting sua sponte that it
would be more efficient to keep Raetz and Nunley’s cases together temporarily to
avoid duplicative discovery and to consider separate trials down the road. The
trial court stated that this proposal would “save [Dale and Rogers Wealth] some
time in that [they would] only have to sit through one deposition.” Operating
under the belief the court was postponing a ruling on the motion to strike, Dale
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and Rogers Wealth’s counsel stated, “We would prefer that he not be deposed
twice, Your Honor,” but they further explicitly declared they were amenable to the
proposal, so long as proceeding that way would not waive their right to reassert
the motion to strike at a later time. The trial court assured them they were “not
waiving anything” but that “we’re just trying to be efficient.”
Counsel for the intervenor then presented the trial court with a proposed
order denying the motion to strike, and the trial court indicated it would deny the
motion to strike but offered to include in the order that it would “consider a
separate trial motion later.” At this point, Dale and Rogers Wealth’s counsel
stated, “Well, actually, Your Honor, under the case law we’re entitled to have [the
petition in intervention] stricken, and I could explain why.” The court explained
that it had denied the motion but that it would not prevent Dale and Rogers
Wealth’s counsel from seeking separate trials at a later time. Counsel for Dale
and Rogers Wealth then indicated that its motion dealt with an issue aside from
efficiency: the justiciable interest requirement for intervention and that allowing
the intervention when Nunley has no justiciable interest would allow her to
circumvent Tarrant County’s provision for the random assignment of cases. The
trial court was undeterred, even after this argument was presented, making it
clear that the motion to strike was denied.
The invited error doctrine applies to situations where a party requests the
court to make a specific ruling and then complains of that ruling on appeal. See
In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig.
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proceeding). From the above, it is clear that counsel for Dale and Rogers Wealth
did not invite the trial court to deny their motion to strike. To the contrary, when it
became clear that the trial court intended to deny the motion rather than simply
delay a decision on it, counsel for Dale and Rogers Wealth argued the motion to
strike should be granted because Nunley has no justiciable interest in Raetz’s
suit. In addition, during the hearing, the trial court expressly assured counsel for
Dale and Rogers Wealth that they were “not waiving anything.” We therefore
conclude that Dale and Rogers Wealth are not estopped from seeking the
mandamus relief they have requested.
B. NUNLEY HAS SHOWN NO JUSTICIABLE INTEREST IN RAETZ’S SUIT
Nunley did not file any response to Dale and Rogers Wealth’s motion to
strike. No evidence was introduced at the hearing by Nunley on the motion to
strike to meet her burden to show she had a justiciable interest in Raetz’s suit.
And her petition in intervention does not allege that, or otherwise show how, she
has a justiciable interest in Raetz’s suit. Indeed, rather than showing she could
have brought Raetz’s claims, or any part of them, in her own name, Nunley’s
petition instead shows that she is asserting her own personal claims against Dale
and Rogers Wealth.
Nunley contends that her petition establishes she has a justiciable interest
in Raetz’s suit because the nature of her allegations against Dale and Rogers
Wealth is inextricably intertwined with the allegations Raetz has alleged against
them. Nunley asserts, for the first time in this mandamus proceeding, that she
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has a justiciable interest in Raetz’s suit because “together [she and Raetz] form a
group of humans, treated terribly due to their gender, not due to their discrete
individual-ness.” Nunley then argues, in conclusory fashion, that to find she has
no justiciable interest in Raetz’s suit “is to seriously prejudice her and Raetz from
presenting their case to the jury.”
To be sure, Raetz and Nunley have alleged identical causes of action
against Dale and Rogers Wealth, their causes of action are premised upon
conduct that is similar in its nature, and they both seek the same types of
damages. But that does not mean Nunley has a justiciable interest in Raetz’s
suit under the governing standard set forth in Union Carbide. See 273 S.W.3d at
155 (concluding that intervenors’ allegations that they sustained injuries similar to
those alleged by the plaintiff and that their injuries were caused by exposure to
the same toxic chemical the plaintiff alleged caused his injuries were insufficient
to establish intervenors had a justiciable interest in the plaintiff’s suit where
intervenors did not show that their controversy against the defendants would be
affected or resolved by resolution of the plaintiff’s case). Under Union Carbide, a
justiciable interest exists if the intervenor could have brought the pending action,
or any part thereof, in his own name. See id. Because Nunley has not shown
that she could have brought even some part of Raetz’s suit in her own name, she
has not met her burden to show she has a justiciable interest in Raetz’s suit.
See id. And since Nunley failed to show a justiciable interest, the trial court had
no discretion to deny Dale and Rogers Wealth’s motion to strike the intervention.
11
See id. at 156; In re Empire Scaffold, LLC, 2016 WL 1469185, at *2. Thus, the
trial court abused its discretion by denying the motion to strike.
V. ADEQUATE REMEDY
Dale and Rogers Wealth argue that they have no adequate remedy by
appeal from the trial court’s erroneous denial of their motion to strike because
that decision allows Nunley to circumvent Tarrant County’s procedure for
randomly assigning cases. See Tarrant (Tex.) Loc. R. 1.03(a) (“Except as
provided elsewhere in this Rule, cases will be filed by random selection in courts
designated for the subject matter of the litigation”). Nunley contends, however,
that Dale and Rogers Wealth have an adequate remedy because the trial court’s
order expressly provides that Dale and Rogers Wealth can move for separate
trials at a later date; thus, Nunley contends, they still have the opportunity to
defend the separate cases before separate juries.
An appellate remedy is “adequate” when any benefits to mandamus review
are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 136 (Tex. 2004) (orig. proceeding). In Union Carbide, the supreme court
considered the claim that Dale and Rogers Wealth urge here: that there was no
adequate remedy by appeal from the trial court’s failure to strike an improper
intervention because that error enabled the intervenors to evade the jurisdiction’s
procedure for the random assignment of cases and, thus, to choose the specific
trial court in which to bring their claims. See 273 S.W.3d at 157. The court
concluded that there was significant benefit from mandamus relief because
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procedures for the random assignment of cases are designed to prevent forum
shopping, and practices that subvert such procedures breed disrespect for and
threaten the integrity of our judicial system. Id. The court therefore held that
Union Carbide had established it did not have an adequate remedy by appeal.
Id.
The same benefit of relief exists here that existed in Union Carbide:
granting relief will prevent Nunley from effectively choosing the trial court in which
to litigate her claims by using the mechanism of an intervention to avoid Tarrant
County’s procedures for the random assignment of cases. See id.; see also
Tarrant (Tex.) Loc. R. 1.03(a). And Nunley has not demonstrated any detriment
to the granting of relief in this case. Tellingly, Nunley’s response completely fails
to address the ruling in Union Carbide, despite counsel’s acknowledgement at
the hearing of the exact issue: “Technically if you grant the motion to strike, I
guess that means I have to start over, and I just go file a petition, and I’d
probably wind up in a different court with a less qualified, less smart, you know,
less efficient judge, so we don’t want that.” Thus, we conclude that Dale and
Rogers Wealth have established they have no adequate remedy by appeal from
the trial court’s denial of their motion to strike. See id. at 157; see also In re
Woodlands Land Development Co., L.P., No. 09-13-00123-CV, 2013 WL
1790878, at *3 (Tex. App.—Beaumont Apr. 25, 2013, orig. proceeding) (holding
that relators established no adequate remedy by appeal from the trial court’s
erroneous denial of their motion to strike intervention in part because “the trial
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court’s ruling allowed Intervenors to avoid Montgomery County’s case
assignment system”).
VI. CONCLUSION
Because Dale and Rogers Wealth have established that the trial court
committed a clear abuse of discretion and that they have no adequate remedy by
appeal, they are entitled to mandamus relief. See Ford Motor Co., 165 S.W.3d at
317. Accordingly, we conditionally grant a writ of mandamus and direct the trial
court to vacate its order denying Dale and Rogers Wealth’s joint motion to strike
Nunley’s petition in intervention and to enter an order granting that motion. See
Tex. R. App. P. 52.8(c). Our writ will issue only if the trial court fails to comply.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ.
DELIVERED: March 9, 2018
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