Court of Appeals of Texas, Dallas.

GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

Billy MCDOWELL and John Bradley, et al., Appellee.

No. 05-93-01810-CV.

|

Dec. 30, 1994.

Before BAKER, THOMAS and KINKEADE, JJ.

KINKEADE, Justice.

OPINION

*1 Grand Prairie Independent School District (“Grand Prairie”) appeals a trial court judgment in favor of John Bradley, et al. (collectively “Bradley”), in this workers’ compensation subrogation case. In three points of error, Grand Prairie contends the trial court erred in (1) incorporating the terms of the settlement agreement into its order because it did not meet the requirements of Texas Rule of Civil Procedure 11, (2) dismissing its plea in intervention because an adequate basis did not exist to do so, and (3) awarding any sums to Billy McDowell (“McDowell”) in violation of Grand Prairie’s statutory lien on McDowell’s cause of action against Bradley. Because the evidence showed that Grand Prairie waived its rights, there was an adequate basis to dismiss the plea in intervention, and Grand Prairie’s statutory rights of recovery were not affected by the trial court’s judgment, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

This case arose out of a personal injury lawsuit. Grand Prairie filed a plea in intervention and on March 2, 1993, the case was called to trial. The record showed the trial court phoned Grand Prairie’s counsel because he was not present at the trial. The court spoke to an assistant who checked with the attorney. The assistant then represented to the court that Grand Prairie did not want to be present and participate in the trial, but it had contacted McDowell’s attorney to preserve their rights to recovery based on his recovery.

McDowell and Bradley announced in open court and it was read into the record that they all agreed to settle the case for $10,000 plus $600 court costs. In June, McDowell filed a motion to strike the intervention and for judgment or trial. In September, the trial court held a hearing on the motion to strike. The trial court found that a valid settlement agreement existed between Grand Prairie, McDowell, and Bradley. The trial court found the settlement agreement was made in open court and dictated into the record, pursuant to Texas Rule of Civil Procedure 11. The trial court ordered that McDowell and Grand Prairie take nothing by their lawsuit, struck the intervention in its entirety, and taxed all costs of court against the party incurring same.

THE AGREEMENT

In its first point of error, Grand Prairie contends the trial court erred in incorporating the terms of the agreement into its order. It argues that the agreement did not meet the requirements of Texas Rule of Civil Procedure 11 and the record contains no evidence that it agreed to the settlement terms.

Rule 11 states:

No agreement between parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Tex. R. Civ. P. 11.

Waiver is the voluntary relinquishment of a known right by the party possessing it. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Missouri-Kansas-Texas R.R. Co. v. Heritage Cablevision of Dallas, Inc., 783 S.W.2d 273, 280 (Tex. App.-Dallas 1989, no writ). Waiver can be inferred from conduct. Missouri-Kansas-Texas R.R. Co., 783 S.W.2d at 280; FDIC v. Attayi, 745 S.W.2d 939, 946 (Tex. App.-Houston [1st Dist.] 1988, no writ). A party can waive a statutory right or privilege. Missouri-Kansas-Texas R.R. Co., 783 S.W.2d at 280; United Benefit Fire Ins. Co. v. Metro. Plumbing Co., 363 S.W.2d 843, 847 (Tex. Civ. App.-El Paso 1962, no writ).

*2 In this case, the evidence showed that the trial court called the case to trial and Grand Prairie was not present. The record showed the judge called Grand Prairie’s counsel’s office to check and see if he wanted to be present at trial. The assistant to Grand Prairie’s counsel represented to the court that Grand Prairie did not want to be present and participate in the trial. It had contacted McDowell’s attorney to preserve its rights to recovery based upon McDowell’s recovery.

McDowell’s attorney stated to the court that he had checked with Grand Prairie and he had worked out an agreement. Grand Prairie’s recovery would be about $2,800. The trial court questioned Bradley’s attorney about settling the case though the parties had not decided on the division of the settlement funds. He told the court that everyone agreed and that Bradley would pay $10,000 plus $600 court costs. He said the only remaining question was the division of the settlement amount. McDowell also stated he wanted to settle the case, against his attorney’s advice.

The trial court entered a judgment ordering McDowell and Grand Prairie take nothing by their suit, striking the intervention and taxing all costs of court against the two parties. Although, there is some evidence that Grand Prairie agreed to the settlement. It is not essential that Grand Prairie agreed because Grand Prairie waived its rights to do so by telling the trial court that it did not wish to appear or participate in the trial. Grand Prairie cannot now complain that it did not agree to the settlement when it chose not to represent itself when the case went to trial. See American Physicians Ins. Exchange v. Cardenas, 717 S.W.2d 707, 708-09 (Tex. App.-San Antonio 1986, writ ref’d n.r.e.) (insurer waived its right to appeal the judgment under virtual-representation doctrine because it rejected its right to participate at the trial). Grand Prairie waived its statutory rights by stating to the trial court that it did not wish to appear or participate in the trial. We overrule Grand Prairie’s first point of error.

PLEA IN INTERVENTION

In its second point of error, Grand Prairie contends the trial court erred in dismissing its plea in intervention. It argues the trial court had no adequate basis for dismissing the plea in intervention.

Rule 60 states:

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.

Under Rule 60, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part of it, in his own name, or if the action had been brought against him, he would be able to defeat recovery, or some part of it. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d 335, 337 (Tex. App.-Dallas 1982, writ ref’d n.r.e.). The party opposing the intervention has the burden to challenge it by a motion to strike. Guaranty Fed. Sav. Bank, 793 S.W.2d at 657. The trial court may strike the intervention for good cause. Saldana v. Saldana, 791 S.W.2d 316, 320 (Tex. App.-Corpus Christi 1990, no writ).

*3 While the trial court has broad discretion in ruling on the motion, the trial court abuses its discretion if (1) the intervenor meets the above test, (2) the intervention will not complicate the case by excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the intervenor’s interest. Guaranty Fed. Sav. Bank, 793 S.W.2d at 657; Texas Supply Center, Inc., 641 S.W.2d at 337. If the trial court dismisses an intervention with reference to any guiding principles, there is no abuse of discretion. Saldana, 791 S.W.2d at 320.

The evidence showed that Grand Prairie filed a plea in intervention and McDowell filed a motion to strike the intervention and for judgment or trial. The trial court found a valid settlement agreement existed between Grand Prairie, McDowell, and Bradley. The trial court found the settlement agreement was made in open court and dictated into the record pursuant to Texas Rule of Civil Procedure 11. Based upon a valid and enforceable settlement agreement, the trial court entered a take nothing judgment as to McDowell and Grand Prairie.

The trial court held a hearing to reconsider the motion to strike at which McDowell, Bradley and Grand Prairie were present. McDowell’s counsel stated in his motion to strike that he had contacted Grand Prairie’s counsel’s office to see if an agreement could be reached about a settlement. He said he spoke to an assistant and that McDowell and Grand Prairie agreed to divide the settlement equally and Grand Prairie agreed to pay $500 court costs. McDowell’s counsel was to receive one-third of the amount paid to Grand Prairie and he would receive forty percent of the amount paid to McDowell.

The record showed that Grand Prairie was not present when the case went to trial. The court made a conference call to Grand Prairie’s counsel with McDowell’s counsel, and Bradley’s counsel present. The court phoned to see if the assistant had authority to agree to the settlement. The court phoned asking to speak to an attorney because it was concerned about Grand Prairie’s interest. The assistant told the court, by phone, that he had discussed the settlement agreement with the attorney who gave his permission to approve it. Generally, a nonlawyer assistant cannot in the absence of some authority approve a settlement agreement. However, in this case, the attorney allowed the assistant to represent to the court the assistant had actual authority to approve the settlement agreement. Under the circumstances the trial court reasonably believed the assistant possessed the authority to do so. Therefore, the assistant, acting within the scope of his apparent authority, bound Grand Prairie to the settlement agreement as though Grand Prairie’s attorney himself had agreed to the settlement. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984); See Morey v. Page, 802 S.W.2d 779, 785 (Tex. App.-Dallas 1990, no writ).

After the conference call, McDowell’s and Bradley’s counsels dictated the terms of the settlement on the record, in open court, as discussed in the court’s chambers and pursuant to a valid Rule 11 agreement. The court approved the settlement agreement based upon the assistant’s representation to the court that he had authority to approve the settlement agreement as dictated in the record. The trial court did not abuse its discretion in dismissing the plea of intervention based upon the fact that the parties had reached a valid settlement agreement pursuant to Texas Rule of Civil Procedure 11. We overrule Grand Prairie’s second point of error.

WORKERS’ COMPENSATION STATUTE

*4 In its third point of error, Grand Prairie contends the trial court erred in awarding any sums to McDowell. Grand Prairie argues the judgment violates the statutory lien provided by the Texas Workers’ Compensation laws.

Where worker’s compensation has been paid to an injured employee and he later sues the third party tortfeasor, the first money paid to or recovered by the employee belongs to the paying compensation carrier. Until the carrier is paid in full, the employee has no rights to any funds; nor any cause of action against the tortfeasor. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 869 (1952). There is only one cause of action against the third party tortfeasor. Id. at 868; New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 199 (Tex. App.-Dallas 1993, no writ). If the carrier does not pursue its subrogated claim against the third party tortfeasor and does not collect damages from the third party tortfeasor, then the carrier may recover only the amount of any settlement between the worker and the third party tortfeasor. Fort Worth Lloyds, 246 S.W.2d at 868; New York Underwriters Ins. Co., 856 S.W.2d at 200.

McDowell had the choice of whether to recover from Grand Prairie or to proceed against Bradley, the third party tortfeasor. In this case, McDowell chose to proceed against Bradley. In doing so, McDowell subrogated his rights against Bradley to Grand Prairie’s rights to recover benefits it paid. See Act of May 17, 1985, 69th Leg., R.S., ch. 326 § 1, 1985 Tex. Gen. Laws 1387, 1387-88 (formerly Tex. Rev. Civ. Stat. Ann. art. 8307, § 6a), repealed by Texas Workers’ Compensation Act, 71st Leg., 2d C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws 1, 114. If the trial court had awarded damages to McDowell, the benefits Grand Prairie paid to McDowell should have been deducted from his award. Hanson v. Ponder 300 S.W. 35, 40 (Tex. Comm’n App. 1927, judgm’t adopted); See Act of May 17, 1985, 69th Leg., R.S., ch. 326, § 1, 1985 Tex. Gen. Laws 1387, 1387-88 (repealed 1989).

However, the trial court entered a take nothing judgment against McDowell and Grand Prairie. Grand Prairie did not pursue its claim against Bradley and it did not collect damages from Bradley. Grand Prairie may recover only the amount of any settlement between McDowell and Bradley. Fort Worth Lloyds, 246 S.W.2d at 870; New York Underwriters Ins. Co., 856 S.W.2d at 200. Grand Prairie still has an outstanding statutory lien against McDowell. Thus, the trial court did not abuse its discretion in ordering that McDowell and Grand Prairie take nothing, because Grand Prairie still has a statutory right of recovery against McDowell for his settlement amount. We overrule Grand Prairie’s third point of error.

We affirm the trial court’s judgment.