Prototype MacHine Company v. Toledo P. Boulware, Individually and as Trustee Jewel F. Robinson 4-S Ranch Shaver Bandera Ranch, LLC as Successor-In-Interest to Dos Angeles, LP. Zach & Kayla Davis D.M.C. Partners, Ltd. Willie Jo Dooley, L.P. Hayden G. Haby & Doris Y. Haby Hayden G. Haby, Jr., & Denette Haby Coates Melanie & John Jones in Their Capacity as Joint Representatives of the Ben Jones Sr. Estate and Ben Jones Jr. Estate McDaniel Farms, Inc. Justin Burk D/B/A Burk Farms Robert E. Condry John Boerschig, 13-19-00491-CV

Background

Kinney County Groundwater Conservation District issues permits for withdrawals from the Edwards–Trinity aquifer; Prototype Machine Company is a landowner with a permit and later sought to intervene in litigation over other applicants’ permits.
In 2005 several applicants filed permit applications; the District approved permits granting less water than requested; applicants filed multiple rehearing motions (overruled by operation of law) and then sued the District challenging permitting actions and fees.
The District issued written orders, applicants pursued litigation, and multiple appeals ensued; Prototype first sought to intervene in 2007 and its intervention was initially struck for lack of notice but remanded for further proceedings.
On remand the trial court again struck Prototype’s intervention and severed Prototype’s claims into a separate cause so the June 1, 2018 order disposing of Prototype’s claims could become final and appealable; Prototype’s subsequent appeals were dismissed in part for lack of standing.
In the severed cause the trial court awarded attorney’s fees to the District ($70,411.15 under Tex. Water Code §36.066) and to the applicants ($150,045 under Tex. Civ. Prac. & Rem. Code §37.009), plus costs; Prototype appealed four issues (severance, striking as party, jurisdiction, and attorneys’ fees).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Severance of Prototype into separate cause	Severance improperly separated interwoven claims and prevented Prototype from pursuing plea to jurisdiction affecting main judgment	Severance encompassed intervention-related claims to make the June 1 order final; severance was proper	Court: no abuse of discretion; severance appropriate and not limited to fees
2. Striking Prototype’s intervention	Prototype contends it had a justiciable interest and would not complicate review of District permits	Appellees: Prototype lacked standing, failed to exhaust administrative remedies, and late intervention would unduly complicate settled litigation	Court: no abuse of discretion in striking intervention; Prototype failed to exhaust remedies and intervention was untimely and prejudicial
3. Jurisdiction to enter October 26, 2018 judgment (approving settlement)	Trial court lacked jurisdiction to approve settlement and incorporate it into final judgment	Appellees: Prototype was no longer a party of record after severance and lacks standing to appeal that judgment	Court: appeal dismissed previously; under law-of-the-case Prototype lacks standing to attack that judgment
4. Award of attorney’s fees and costs	Fees unjust and excessive; Prototype prevailed on a core legal issue and intervenor liability for fees is rare	Appellees: UDJA and Water Code authorize awarding reasonable fees to prevailing or non‑prevailing parties/intervenors when equitable and just	Court: no abuse of discretion; fees under UDJA (§37.009) and Water Code (§36.066) may be awarded and record supports the trial court’s discretionary award

Key Cases Cited

Kinney County Groundwater Conservation District v. Boulware, 283 S.W.3d 452 (Tex. App.—San Antonio 2007) (administrative-exhaustion requirement upheld)
Prototype Machine Co. v. Boulware, 292 S.W.3d 169 (Tex. App.—San Antonio 2009) (trial court’s striking of intervention vacated for lack of notice)
In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) (intervention as of right and burden-shifting on motion to strike)
Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990) (factors for intervention and when intervention should be denied)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse-of-discretion standard)
Barshop v. Medina County Underground Water Conserv. Dist., 925 S.W.2d 618 (Tex. 1996) (UDJA allows discretionary fee awards that need not be limited to prevailing parties)
Ridge Oil Co. v. Guinn Investments, Inc., 148 S.W.3d 143 (Tex. 2004) (trial court discretion in awarding fees)
Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (law-of-the-case doctrine governs subsequent stages)