Roy L. Malveaux and Friends of Roy L. Malveaux v. American Chrome and Chemical

NUMBER 13-00-364-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ ROY L. MALVEAUX, ET AL., Appellants, v. AMERICAN CHROME & CHEMICALS, INC., ET AL., Appellees. ____________________________________________________________________ On appeal from the 28th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Dorsey Opinion Per Curiam Rev. Roy L. Malveaux appeals from two judgments approving the settlement of a class action and effectively denying his objections to the settlement agreements. Because jurisdiction is fundamental, we must determine, sua sponte, whether this Court has jurisdiction to consider this appeal. H. E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 679 (Tex. App.--Corpus Christi 1991, writ denied). Because we do not believe that oral argument will assist us in determining whether this Court has jurisdiction to consider this appeal, we deny his request for oral argument. We dismiss this appeal for want of jurisdiction. Background In the underlying class action, residential property owners filed suit against various current and former owners and operators of industrial facilities located along the Corpus Christi Ship Channel. The class members claimed that these industries polluted the air, soil, and groundwater appurtenant to their properties, and sought damages for property devaluation and exemplary damages. Several separate lawsuits involving these claims were consolidated for purposes of class action certification and discovery. After a hearing, the trial court certified the underlying suits as a class action in November 1995. Plaintiffs reached a settlement agreement with American Chrome and Chemicals, Inc. and reached a separate settlement agreement with Coastal Refining and Marketing, Inc., Coastal Holding Corporation, CIC Industries, Inc., Coastal States Crude Gathering Company, and The Coastal Corporation (hereinafter referred to collectively as "Coastal") and The Javelina Company ("Javelina"). In two separate proceedings, plaintiffs moved for preliminary approval of these settlements and preliminary approval of the notices of settlement. The trial court granted preliminary approval of the settlements and notices, and set fairness hearings on the settlements. Individual notices of the proposed settlements were sent to identified class members by first class mail, and notices were published in the local newspaper. The class notices advised that class members had the choice of (1) participating in the settlements or (2) opting out of the class, so as to not be bound by any judgment. In addition, the notices set out the procedure for class members to object to the settlements and to be heard at the fairness hearings, and informed the members of the time and place for the trial court's hearings to determine the fairness and adequacy of the two settlements. See Tex. R. Civ. P. 42(e). Class representatives subsequently filed motions seeking final approval of the settlements. After the fairness hearings, the trial court approved the settlements and signed judgments and dismissals with prejudice. Rev. Malveaux then filed this appeal. Standing The critical issue herein is whether appellants have standing to prosecute this appeal. Standing is a component of subject matter jurisdiction; it cannot be waived and may be raised for the first time on appeal. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Unnamed class members who have not intervened in a class action lawsuit do not have standing to appeal a judgment approving a settlement. San Juan 1990-A, L.P. v. Meridian Oil Inc., 951 S.W.2d 159, 165 (Tex. App.--Houston [14th Dist.] 1997, pet. denied); see also Entex v. City of Pearland, 990 S.W.2d 904, 912 (Tex. App.--Houston [14th Dist.] 1999, no pet.); O'Reilly v. Brodie, 975 S.W.2d 57, 59-60 (Tex. App.--San Antonio 1998, pet. denied). Sound reasons exist for requiring unnamed class members to formally intervene in the action to gain standing to appeal, including that: (1) unnamed class members cannot represent the class, absent the procedural protections provided in the class action rules; (2) class members who disagree with the course of a class action have adequate procedures available through which their individual interests may be protected; and (3) class actions would become "entirely unmanageable and unproductive" if each member had standing to individually appeal a judgment. See San Juan 1990-A, L.P., 951 S.W.2d at 161-63. The record reflects that Rev. Malveaux initially served as a named class representative. However, at his request, Rev. Malveaux was dismissed as a class representative by court order dated September 29, 1999. The judgments, dated May 22, 2000, specifically define the named class representatives, and do not identify Rev. Malveaux as a class representative. Despite being dismissed as a class representative, Rev. Malveaux continued to assert in the underlying proceedings that he considered himself a class representative, and currently maintains this position on appeal. However, the record does not substantiate these allegations. Accordingly, we conclude that Rev. Malveaux was not a named class representative at the time of the settlements at issue or when the judgments at issue were signed. As an unnamed class member, Rev. Malveaux was required to intervene in the actions in the trial court to have standing to appeal. Id. at 164. Rev. Malveaux did not file a formal petition in intervention in these matters. Although Rev. Malveaux objected to the settlements, such objections do not constitute an intervention for the purposes of conferring standing. By merely objecting to the settlement and appearing by counsel at the fairness hearing, appellants have not intervened. Rule 60 explicitly requires "filing a pleading" to intervene. Tex. R. Civ. P. 60. . . . The rules of pleading apply equally "to interveners and to parties." Tex. R. Civ. P. 61. Rule 45 expressly defines "pleadings" as a "petition and answer." Tex. R. Civ. P. 45. Filing a petition seeking affirmative relief is "the minimum procedural requirement" to constitute an intervention. . . . Id. at 165. Rev. Malveaux filed numerous letters and motions with the trial court, both before and after his tenure as a class representative, requesting the appointment of an ad litem for class members and the recovery of expenses, and accusing both class counsel and counsel for defendants of a breach of fiduciary duty. These letters and motions do not take the form of petitions, nor does the record contain any indication that they were treated as petitions by the trial court or opposing parties. Motions are not the functional equivalents of pleadings; insufficient similarities exist between a motion and a pleading to allow them to carry the same legal significance. Id.; Jobe v. Lapidus, 874 S.W.2d 764, 766 (Tex. App.--Dallas 1994, pet. denied)("we decline to hold that a motion has the same legal significance as a pleading"); Crain v. San Jacinto Sav. Ass'n, 781 S.W.2d 638, 639 (Tex. App.--Houston [14th Dist.] 1989, writ dism'd w.o.j.) ("insufficient similarities exist between a motion and a pleading to allow them to carry the same legal significance.) We, therefore, conclude that Rev. Malveaux did not intervene in the lawsuits below. Having thoroughly considered the parties' briefs and arguments on the issue of standing, we hold that appellants lack standing to bring this appeal. We, therefore, dismiss this appeal for want of jurisdiction. Per Curiam Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 1st day of February, 2001.