Nathanael Brown v. Jessica Freed and Samuel Freed

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING



                                     NO. 03-21-00556-CV



                                 Nathanael Brown, Appellant

                                                v.

                          Jessica Freed and Samuel Freed, Appellees


              FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-19-009322, THE HONORABLE TODD WONG, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion and judgment dated August 1, 2023, and substitute the

following in place of the earlier opinion. The motion for rehearing filed by appellant Nathanael

Brown is overruled.

               Jessica Freed and Samuel Freed sued their former landlords, Marc and Karen

Greenberg, alleging that they had acted in bad faith in withholding a portion of their security

deposit. See Tex. Prop. Code § 92.109 (liability of landlord for retaining security deposit). After

the conclusion of a bench trial, but before the trial court signed a final judgment, Brown (the

Greenbergs’ property manager) filed what he designated as a “Motion for Joinder . . . and New

Trial.” He later filed an Amended Motion. After the trial court signed a final judgment in favor

of the Freeds and denied Brown’s motion, Brown filed a notice of appeal.
               In nine issues, Brown challenges the trial court’s judgment against the Greenbergs

and the trial court’s order denying his “Amended Motion for Joinder . . . and New Trial.” We

conclude that Brown has failed to demonstrate that he has standing under the virtual-representation

doctrine to challenge the judgment against the Greenbergs and that the trial court did not abuse its

discretion in denying his post-trial attempt to intervene. Accordingly, we dismiss this appeal in

part and affirm the trial court’s judgment.


                          FACTUAL AND PROCEDURAL BACKGROUND

               In December 2015, the Freeds entered into an agreement to lease residential

property in Austin owned by the Greenbergs. As required by the lease, the Freeds paid $2,095 as

a security deposit. Ironrock Properties, a property management company, was the Greenbergs’

corporate agent in negotiating the lease and in managing the property. Brown, a broker’s associate

with Ironrock, was the property manager during the lease.

               In August 2018, the Freeds gave written notice to Ironrock that they did not intend

to renew the lease when it expired on September 30, 2018. The Freeds also provided Ironrock

with a forwarding address for the purpose of returning their security deposit. In response, Ironrock

asked the Freeds to notify its staff if they decided to vacate the property earlier than September 30

so that the property manager could begin the “move out inspection and process [their] security

deposit.” On September 18, the Freeds vacated the property and provided written notice of the

surrender, as requested. Forty-three days later, on October 30, Brown sent the Freeds a check in

the amount of $514.62, representing a partial return of their security deposit, along with an

itemization of charges taken against the withheld portion.




                                                 2
               The Freeds later filed suit, alleging that the Greenbergs acted in bad faith in failing

to return their full security deposit and in failing to timely return the deposit or provide an

itemization of deductions.1 See id. §§ 92.103 (generally obligating landlord to refund security

deposit to tenant within 30 days after tenant surrenders premises), 92.109(a), (b), (d) (liability of

landlord who in bad faith retains security deposit or fails to provide an itemization of deductions;

bad faith is presumed when landlord fails to return security deposit or provide itemization of

deductions within 30 days after tenant surrenders possession).           At the trial, conducted on

August 10, 2021, the Greenbergs called Brown as their only fact witness. In part, Brown testified

about his decision to deduct certain charges from the security deposit for what he asserted were

damages to the property. See id. § 92.109(c) (landlord has burden of proving that retention of any

portion of security deposit was reasonable). As to the Freeds’ allegation that the itemization of

deductions was untimely, Brown testified that he could not have provided the itemization earlier

because he was waiting to receive the final utility bill for the property. At the conclusion of the

trial, the court announced that it would take the case under advisement. Later that day, the judge’s

staff attorney notified the parties that the judge intended to rule in favor of the Freeds.

               Two days later, on August 12, Brown filed a “Motion for Joinder of Persons Needed

for Just Adjudication and New Trial,” effectively seeking to intervene in the suit.2 The Freeds



       1 The Freeds originally filed their suit in justice court. After the justice court signed a
judgment in favor of the Freeds, the Greenbergs appealed to the county court at law, which
conducted a trial de novo and signed the judgment from which Brown now seeks to appeal.

       2  Although Brown styled his pleading in the trial court as a “motion for joinder,” the term
“joinder” generally refers to the addition of parties to a lawsuit by those who are already in the
suit. See In re Union Carbide Corp., 

, 155–56 (Tex. 2008) (orig. proceeding)
(explaining that joinder and intervention are distinct and that “[p]ermissive joinder relates to



                                                   3
responded by objecting in writing to Brown’s attempt to intervene post-trial and moving the court

to render a final judgment.3 On August 30, 2021, the court signed a final judgment awarding the

Freeds $5,330.26 in actual damages and $15,199.00 in attorney’s fees.

                On October 11, 2021, the trial court conducted a hearing on Brown’s “motion for

joinder,” at which Brown appeared and represented himself pro se. The trial court signed an order

overruling Brown’s motion on October 12.

                Brown later filed a notice of appeal and raises nine issues in his Appellant’s Brief.

In four issues, he challenges the trial court’s final judgment against the Greenbergs and, in two

related issues, contends he has standing to bring this challenge even though he is not a party to the

judgment. In the remaining three issues, Brown challenges the trial court’s decision not to allow

him to intervene.


                                           DISCUSSION

Brown’s Standing to Challenge the Judgment

                As a preliminary matter, we first consider Brown’s assertion that this Court has

subject-matter jurisdiction to consider his challenges to the merits of the trial court’s final

judgment resolving the suit between the Freeds and the Greenbergs.




‘proper parties to an action who may have been joined or omitted at the pleader’s election’”). In
contrast, “intervention” generally refers to an attempt by a nonparty to insert himself into a lawsuit.
See 

 (noting that “interventions by uninvited participants have potential for disrupting
pending suits”). We construe Brown’s motion as effectuating an intervention. See Tex. R. Civ.
P. 60 (“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.”).

       3   We construe the Freeds’ pleading as a motion to strike Brown’s intervention.

                                                  4
               Standing is a component of subject-matter jurisdiction.            State v. Naylor,

 (Tex. 2015). Generally, only parties of record have standing to appeal a trial

court’s judgment. In re Lumbermens Mut. Cas. Co., 

 (Tex. 2006) (orig.

proceeding); see Tex. R. App. P. 25.1(c) (providing that “party who seeks to alter the trial court’s

judgment” must file notice of appeal). Here, Brown attempted to intervene in the Freeds’ suit after

trial but before the trial court signed the final judgment, but the court did not allow him to do so.

Consequently, Brown is not a party of record to the judgment against the Greenbergs. See Kenneth

D. Eichner, P.C. v. Dominguez, No. 14-18-00399-CV, 

 at *7 (Tex. App.—

Houston [14th Dist.] Feb. 8, 2022, pet. denied) (mem. op.) (concluding that appellant whose pre-

judgment intervention was struck was not party to judgment it sought to appeal).

               Although Brown was not a party of record after his intervention was struck, he

asserts that he is nevertheless entitled to appeal the trial court’s judgment under the equitable

doctrine of virtual representation. See Naylor, 

 (“Although the right to appeal

is generally limited to parties of record, a third party may file an appeal where the prospective

appellant is ‘deemed to be party’ under the doctrine of virtual representation.”).              The

virtual-representation doctrine provides an exception to the general rule that only parties of record

may appeal. 

 To “intervene” on appeal as a deemed party under the virtual-representation

doctrine, the nonparty must establish that (1) he is bound by the judgment; (2) he is in privity of

estate, title, or interest with a party, which privity appears from the record; and (3) there is an

identity of interest between him and a party to the judgment.4 In re Lumbermens, 

  Even when these requirements of the doctrine are met, an appellate court must also
evaluate whether other equitable considerations weigh against allowing the nonparty to intervene
on appeal, such as unnecessary delay and prejudice to existing parties. See In re Lumbermens Mut.
Cas.Co., 

 (Tex. 2006) (orig. proceeding).

                                                 5
722.   In determining whether a nonparty is a deemed party who may appeal by virtual

representation, “the most important consideration is whether the appellant is bound by the

judgment.” City of San Benito v. Rio Grande Valley Gas Co., 

 (Tex. 2003).

                Brown contends he is bound by the judgment in this case because, as the

Greenbergs’ agent in the transactions that are the subject of the Freeds’ suit, he is potentially liable

to the Greenbergs to the extent they were found liable to the Freeds. Brown’s argument is that the

Greenbergs may later sue him and Ironrock for negligence, breach of fiduciary duty, and violations

of the Texas Real Estate Licensing Act, and that as a consequence of the judgment in this case he

would be precluded from asserting that his actions in returning the Freeds’ security deposit

complied with terms of the lease and with Chapter 92 of the Property Code.

                Brown’s argument that he is or could be bound by the judgment below implicates

the doctrine of collateral estoppel, also known as issue preclusion. The doctrine prevents the

re-litigation of particular issues already resolved in a prior suit, Barr v. Resolution Tr. Corp. ex rel.

Sunbelt Fed. Sav., 

 (Tex. 1992), and is designed to promote judicial

efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments, Sysco Food

Servs. v. Trapnell, 

 (Tex. 1994). To invoke collateral estoppel, a party must

establish that “(1) the facts sought to be litigated in the second action were fully and fairly litigated

in a first action, (2) those facts were essential to the judgment in the first action, and (3) the parties

were cast as adversaries in the first action.” In re USAA Gen. Indem. Co., 

, 883

(Tex. 2021) (quoting Sysco Food Servs., 

).

                For two independent reasons, we conclude that Brown has not established that he

would, in a hypothetical future suit brought against him by the Greenbergs, be bound by the

judgment in this case.


                                                    6
   (1) Brown and the Greenbergs were not “cast as adversaries” in this suit.

               As noted above, one of the essential elements for the use of collateral estoppel is

that the party seeking to invoke the doctrine and the party against whom it is sought to be applied

must have been “cast as adversaries in the first action,” at least as to the issue in question. Section

27 of the Restatement (Second) of Judgments states:


       When an issue of fact or law is actually litigated and determined by a valid and final
       judgment, and the determination is essential to the judgment, the determination is
       conclusive in a subsequent action between the parties, whether on the same or a
       different claim.


Restatement (Second) of Judgments § 27 (Am. L. Inst. 1982). Comment a to section 27 states that

“[t]he rule of issue preclusion is operative where the second action is between the same persons

who were parties to the prior action, and who were adversaries (see § 38) with respect to the

particular issue . . . .” Id. at § 27 cmt. a (emphasis added).

               Section 38 of the Restatement gives further guidance as to the meaning and

significance of the term “adversaries” as it relates to issue preclusion:

       Parties who are not adversaries to each other under the pleadings in an action
       involving them and a third party are bound by and entitled to the benefits of
       issue preclusion with respect to issues they actually litigate fully and fairly as
       adversaries to each other and which are essential to the judgment rendered.


Id. § 38 (Am. L. Inst. 1982) (emphasis added). Comment a to section 38 explains:


       Scope and rationale. The concept of adversarial litigation is that determination of
       issues is not full and fair unless a party has an opportunity to present proofs and
       argument specifically directed to the matters in controversy. This opportunity
       necessarily exists when parties are properly aligned on opposite sides of litigation.
       It also exists where the claims or defenses in the pleadings put parties in an
       adversarial relation to each other even though they may also be aligned together
       against a third party.

                                                  7
Id. at cmt. a (emphasis added).

               Brown apparently reasons that, as the Greenbergs’ property manager, he was in

privity with them in the Freeds’ suit and, as a result, the Greenbergs could use collateral estoppel

offensively against him in a later suit to establish his liability to them. See Sysco, 

 (explaining that collateral estoppel may be invoked when “the party against whom the doctrine

is asserted was a party or in privity with a party in the first action”). But privity is relevant to an

assertion of collateral estoppel only if the parties were adversaries in the prior action on the issue

in question. That is, collateral estoppel applies when the party against whom collateral estoppel is

asserted was, in the prior action, cast as an adversary against the party now asserting collateral

estoppel or was in privity with a party that was cast as an adversary against the party now asserting

collateral estoppel. Here, the absence of an adversarial posture between Brown and the Greenbergs

as to the relevant issue makes the question of Brown’s privity immaterial.

               In the present case, Brown has not established that he and the Greenbergs were

adversaries in the trial, either as parties or through privity. As a result, he has not established that

the Greenbergs would be able to invoke collateral estoppel against him in a future suit. Because

Brown has not established that he is “bound by the judgment” below, he cannot use the

virtual-representation doctrine to prosecute this appeal.


   (2) Brown has not established that an attempted offensive use of collateral estoppel by the
       Greenbergs would be allowed.

               Collateral estoppel may be used offensively or defensively.              Case Funding

Network, L.P. v. Angelo-Dutch Petroleum Int’l, Inc., 

 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied); Yarbrough’s Dirt Pit, Inc. v. Turner, 

 (Tex. App.—

Beaumont 2001, no pet.); see also Tankersley v. Durish, 

 (Tex. App.—Austin

                                                   8
1993, writ denied) (noting that case involved “offensive use of collateral estoppel”). Defensive

collateral estoppel is used by a defendant to prevent re-litigation by a plaintiff of issues previously

lost against another defendant. Johnston v. American Med. Int’l, 

 (Tex. App.—

Tyler 2000, pet. denied). In contrast, offensive collateral estoppel is used by a plaintiff to prevent

a defendant from relitigating an issue that the defendant previously litigated and lost in a suit

involving another party. Case Funding Network, 

; Scurlock Oil Co. v. Smithwick,

, 5–7 (Tex. 1986).

               Brown asserts that in this suit by the Freeds he was in privity with the Greenbergs

as their property manager and agent and that in a subsequent suit the Greenbergs may use collateral

estoppel offensively to attempt to establish his liability to them. But even if the elements of

collateral estoppel, including privity, would otherwise be satisfied in any future suit brought by

the Greenbergs against Brown, Brown has not established that an offensive use of collateral

estoppel would apply in such a subsequent suit.

               Offensive use of collateral estoppel does not promote judicial economy in the same

manner that defensive use does. Parklane Hosiery Co. v. Shore, 

 (1979).

Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues and gives

a plaintiff a strong incentive to join all potential defendants in the first action if possible. 

 at

329–30. On the other hand, offensive use of collateral estoppel “creates precisely the opposite

incentive” and gives a plaintiff an incentive to adopt a “wait and see” approach, in the hope that

the first action will result in a favorable judgment. 

. For this reason, the U.S. Supreme

Court in Parklane Hosiery recognized that a trial court may decline to apply offensive collateral

estoppel, even in cases where the traditional elements of collateral estoppel are satisfied. 

. While a trial court is given broad discretion to apply collateral estoppel offensively without


                                                  9
strict mutuality of parties, the general rule is that “in cases where a plaintiff could easily have

joined in the earlier action or where . . . the application of offensive estoppel would be unfair to a

defendant, a trial judge should not allow the use of offensive collateral estoppel.” 

;

Scurlock Oil, 724 S.W.2d at 5–7 (noting that Texas courts should consider “fairness factors as

outlined in Parklane Hosiery” in determining applicability of offensive use of collateral estoppel);

see also Richard v. Ayala, No. 01-14-00354-CV, 

 at *6 (Tex. App.—Houston

[1st Dist.] Nov. 10, 2015, no pet.) (mem. op.) (concluding trial court did not abuse its discretion

in refusing to allow offensive use of collateral estoppel because it would be unfair under facts

presented (citing Parklane Hosiery, 

)).

               In the proceedings underlying this appeal, the Freeds’ claims against the

Greenbergs were based on transactions conducted by Brown as their property manager. Under

Rule 38 of the Texas Rules of Civil Procedure, the Greenbergs could have added Brown as a third-

party defendant and pursued their claims against him as third-party plaintiffs, but they did not. See

Tex. R. Civ. P. 38(a) (providing that defendant may bring in third-party defendant “who is or who

may be liable to him or to the plaintiff for all or part of the plaintiff’s claim against him”). Thus,

in the absence of countervailing circumstances not apparent from the record before us, in order to

establish Brown’s liability in a subsequent suit, the Greenbergs would have to independently show

that Brown wrongfully withheld the Freeds’ security deposit.

               On the present record, we cannot conclude that Brown has established that he is

bound by the judgment he seeks to appeal. Consequently, he cannot satisfy the first part of the

three-part test for virtual representation. See In re Lumbermens, 

. Because he

is not a party of record and has not established that he is entitled to intervene under the doctrine of

virtual representation, Brown lacks standing to appeal the merits of the Freeds’ judgment against


                                                  10
the Greenbergs. See State v. Naylor, 

 (Tex. App.—Austin 2011), aff’d,

 (Tex. 2015) (dismissing appeal for want of jurisdiction because nonparty could

not be considered deemed party by virtual representation). We overrule Brown’s first and second

issues, asserting that he is a deemed party by virtual representation. We therefore lack jurisdiction

to consider issues five, six, seven, and eight, in which Brown challenges the merits of the trial

court’s judgment.


Denial of Brown’s Motion to Join and for a New Trial

                Although Brown lacks standing to challenge the merits of the trial court’s judgment

against the Greenbergs, we may consider his complaint that the trial court abused its discretion in

denying his post-trial attempt to intervene and request for a new trial. See Kenneth D. Eichner,

P.C., 

 at *7 (noting that issue of whether appellant was “a party” for purpose of

perfecting appeal of trial court’s decision to strike intervention, which merged into final judgment,

was   separate from       whether    appellant   has   standing   to challenge judgment        under

virtual-representation doctrine); Smith v. City of Garland, 

 (Tex. App.—

Dallas 2017, no pet.) (“After final judgment, an unsuccessful intervenor may complain on appeal

of the striking of his intervention plea.”).

                A party with a justiciable interest in a pending lawsuit may intervene as a matter of

right. Nghiem v. Sajib, 

 (Tex. 2019). 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. When a

motion to strike is filed, the burden shifts to the intervenor to show a justiciable interest in the

lawsuit, which may be legal or equitable in nature. Mendez v. Brewer, 

 (Tex.


                                                 11
1982). An intervenor has a justiciable interest in a lawsuit when his interest will be affected by

the litigation. In re Estate of Webb, 

 (Tex. App.—Fort Worth 2008,

pet. denied).

                Even if a justiciable interest exists, however, the trial court still has broad discretion

to determine whether the plea in intervention should be struck. Farmers Grp., Inc. v. Geter,

, 713 (Tex. 2021). A trial court abuses its discretion in striking a petition to

intervene if (1) the intervenor could have brought the same action, or any part thereof, in his own

name (or if the action had been filed against the intervenor, all or part of the recovery could have

been defeated by the intervenor); (2) the intervention will not complicate the case by an excessive

multiplication of the issues; and (3) the intervention is almost essential to protect the intervenor’s

interest. Guarantee Fed. Sav. Bank v. Horseshoe Oper. Co., 

 (Tex. 1990).

Because a trial court has broad discretion in determining whether to strike an intervention, a

significant delay in filing a petition in intervention may also qualify as “sufficient cause” to strike

an intervention. Muller v. Stewart Title Guar. Co., 

 (Tex. App.—Houston

[14th Dist.] 2017, no pet.) (explaining that petition in intervention may be considered “untimely,”

even if before final judgment, when “filed so late that it would delay the proceeding or unjustifiably

complicate it”).

                On appeal, Brown argues that the trial court abused its discretion in denying his

motion to join in the suit because, in his view, he established that his “joinder” was necessary

under Rule 39 of the Rules of Civil Procedure. See Tex. R. Civ. P. 39 (“Joinder of Persons Needed

for Just Adjudication”). Construing his argument liberally, Brown asserts that the record shows

he has an interest relating to the subject matter of the lawsuit and that his participation in the suit

is necessary to protect that interest. See 

 According to Brown, he “may be impaired or impeded


                                                   12
to protect his interest as the Greenbergs’ agent who is liable for his actions under common law

principles of the agent-principal relationship, duties and obligations provided by the Texas Real

Estate Licensing Act and the Texas Real Estate Commission’s rules and regulations, and

contractually liable under his property management agreement with the Greenbergs.”

               Brown’s argument as to his justiciable interest (like his virtual-representation

argument) assumes that he will be estopped from defending his actions in a subsequent suit against

him by the Greenbergs. As we previously discussed, however, Brown’s assumption that he is

“bound by the judgment” is not correct. Moreover, Brown testified at trial about the transaction

that is the basis of his potential liability, and he does not explain what defenses, if any, he would

have asserted to “protect his interest” had the trial court permitted his intervention and ordered a

new trial. In short, we cannot conclude that the trial court’s decision to deny Brown’s motion for

joinder, which was filed after trial and more than twenty-eight months after the Freeds initiated

suit against the Greenbergs, and to effectively strike his intervention constituted an abuse of

discretion. We overrule issues three, four, and nine.


Motion for Rehearing

               In his motion for rehearing, Brown argues that the trial court erred in failing to rule

on his motion to intervene until after it rendered a final judgment. Liberally construed, Brown’s

argument is that when he intervened by filing his Motion for Joinder, he became a party for all

purposes and that after the trial court signed the final judgment on August 30, 2021, it had no

power to strike his intervention by denying his Amended Motion. See In re Southwestern Bell Tel.

Co., 

 (Tex. 2000) (orig. proceeding) (holding that order was void because it

was signed after trial court’s plenary power had expired).



                                                 13
                We do not disagree that Brown became a party when he intervened in the lawsuit

by filing his Motion for Joinder.” See Tex. R. Civ. P. 60 (“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.”); Abdullatif v. Erpile, LL, 

, 694 n.9 (Tex. App.—Houston [14th Dist.] 2015,

no pet.) (“Absent a motion to strike, one who files a petition in intervention generally becomes a

party to the suit for all purposes.”). Nor do we disagree that although Brown was not named in

the August 30 judgment, it constituted a final judgment for purposes of appeal because it followed

a conventional trial on the merits and contained a Mother Hubbard clause and a recitation that

“[t]his is a final and appealable judgment.” See Vaughn v. Drennon, 

 (Tex.

2010) (explaining that there is “a presumption of finality for judgments that follow a conventional

trial on the merits” and that “[a] judgment need not address every party and claim for it to be a

final judgment for purposes of appeal”).

                Nevertheless, contrary to Brown’s assertion, we cannot conclude that the trial court

lacked the power to strike Brown’s intervention in the lawsuit. Because the record shows that the

Greenbergs timely filed a motion for new trial, the trial court retained its plenary power to “vacate,

modify, correct, or reform” the final judgment until December 13, 2021. See Tex. R. Civ. P. 329b

(d), (e) (trial court retains plenary jurisdiction for 30 days after signing of judgment or if “a motion

for new trial is filed by any party, the trial court . . . has plenary jurisdiction . . . until thirty days

after all such motions are overruled, either by a written and signed order or by operation of law”).

Therefore, the trial court acted within its plenary power when, on October 12, 2021, it denied

Brown’s motion and struck his intervention, dismissing him from the suit.

                Brown also argues in his motion for rehearing that he was denied due process

because after his intervention he did not receive notice of some pleadings or proceedings relating


                                                    14
to the trial court’s rendition of judgment on the merits as to the issues between the Freeds and

the Greenbergs.

                A post-trial chronology of events helps sort out Brown’s due-process complaint.

The trial was held on August 10, 2021. That afternoon, the trial court’s staff attorney notified the

parties that the judge intended to grant judgment for the Freeds. Two days later, August 12, Brown

filed his “Motion for Joinder . . . and New Trial.” In it, Brown argued that he had “an interest

relating to the subject of the action of this case by way of his agency relationship with Greenberg

and resulting liability.” He sought a new trial to allow him “a first [sic] opportunity to respond.”

This argument encapsulates Brown’s assertion that he was a necessary party to the case because

of his (incorrect) belief that he would be bound by the court’s judgment and thus automatically

subject to liability to the Freeds.

                Later in the day on August 12, the Freeds filed a Motion to Render Final Judgment.

That motion referenced Brown’s Motion for Joinder but apparently was not served on Brown,

presumably because the Freeds’ attorney did not consider Brown to be a party to the case at that

time. Nonetheless, it is obvious that Brown quickly became aware of the Freeds’ motion, because

later that same day Brown sent an email to the Freeds’ attorney in which he complained of his

failure to be served with the Freeds’ motion:

        As you are aware, I filed a motion for required joinder and new trial. Until that
        motion is considered you have good reason to know that I should be a notified party
        in this case. Cease and desist from filing any additional motions concern [sic] this
        case and withdraw your current motion until my motion has been heard. You have
        until 7pm CST to withdraw your motion before I file an emergency restraining
        order against you and your firm.


The Freeds’ attorney forwarded Brown’s email to the trial court’s staff attorney, and it is now part

of the appellate record.

                                                15
               Four days after that, on August 16, Brown filed an “Amended Motion for Joinder

. . . and New Trial.” That motion included a section titled “Due Process Requires a New Trial Be

Granted” in which Brown asserts that


       Freed cannot argue he afforded Brown an opportunity to present objections when
       Freed does not join Brown in the action. Instead, Freed attempted to abuse the use
       of process by litigating this cause against Brown through Greenberg, without
       Brown.

              Therefore, this Court has good cause on the basis that due process requires
       a new trial.


As stated, this argument appears to be simply another way of asserting that Brown should be made

a party to the case and treated as such.

               As discussed above, we have considered Brown’s original Motion for Joinder as a

plea in intervention. Before he filed that motion, Brown was not a party to the suit and was not

entitled to be given notice of filed pleadings. Brown’s Amended Motion for Joinder was filed four

days after his original motion. At that time, the only pleading he had not been served with (after

he filed his original Motion for Joinder) was the Freeds’ Motion for Entry of Final Judgment.

Brown’s Amended Motion for Joinder does not specifically reference the Freeds’ motion but

instead appears to raise a general complaint about his needing to be made a party.

               The trial court did not sign a final judgment until two weeks after Brown’s

Amended Motion was filed. Although Brown was apparently not notified of the signing of the

judgment, he also became aware of that action, because on October 11 he personally appeared at

and participated in an oral hearing on his Amended Motion. At that hearing, Brown argued that

the trial court should not have signed the judgment without making him a party to the suit:




                                               16
              First, I ask that the judgment that postdates my Motion for Required Joiner
       [sic] be vacated. Second, the Freeds be required to amend their pleadings or the
       case be dismissed (inaudible) to join all required parties.


Brown did not specifically assert a due-process argument at the hearing.

               On appeal, Brown’s due process argument encompasses two complaints: first, that

he was not given notice of the Freeds’ Motion for Entry of Judgment and therefore did not have

an opportunity to object to the rendition of judgment; and second, that he did not receive notice of

the trial court’s signing of the judgment. His Appellant’s Brief states:




       Brown was not given a meaningful opportunity to be heard because he was not
       given notice to which he could have responded. Independently, Brown was not
       heard at a meaningful time and in a meaningful manner because the court took
       actions that affected his interests, such as rendering judgment before hearing his
       motion for joinder.

                Therefore, the trial court violated Brown’s due process rights by continuing
       to rule in this case without giving Brown notice of the rulings or an opportunity to
       be heard before ruling.


               As to the foregoing complaints, as discussed above, Brown became aware of the

Freeds’ motion the same day it was filed, sent an email complaining about it that day, and shortly

thereafter filed his Amended Motion for Joinder in which he expressly complained that he should

be made a party to the suit. His Amended Motion also set forth his asserted grounds for why the

judgment should not be rendered. Thus, Brown took advantage of the opportunity to assert his

objections to the rendition of judgment before it was signed. As to the signing of the judgment

without his knowledge, Brown personally attended and participated in an oral hearing on his

Amended Motion held by the trial court on October 11.



                                                17
               Accordingly, Brown was not denied due process in any meaningful way. In any

event, even if it can be said that Brown suffered a temporary denial of due process, any such denial

was wholly cured by his filing (before the judgment was signed) his Amended Motion for Joinder

and by his participation (after the judgment was signed) in the trial court’s later hearing on that

motion. See, e.g., Saenz v. Springer, No. 14-21-00137-CV, 

, at *4 (Tex. App.—

Houston [14th Dist.] Jan. 13, 2022, no pet.) (mem. op.) (“Any due process violation caused by the

trial court’s failure to notify the parties of its intent to dismiss is cured when, as here, the

appellant timely files a motion to reinstate.”); In re Estate of Perez-Muzza, No. 04-12-00178-CV,

, at *2 (Tex. App.—San Antonio Mar. 13, 2013, no pet.) (mem. op.) (same);

Aguilar v. 21st Century Res., Inc., 

 (Tex. App.—El Paso 2010, no pet.) (same);

see also Harris, N.A. v. Obregon, No. 05-10-01349-CV, 

, at *5 (Tex. App.—

Dallas July 11, 2013, no pet.) (“Harris ultimately received notice and an opportunity to be heard

in connection with its motion to reinstate; therefore, Harris was not harmed by the lack of notice

and a hearing on the motion to dismiss.”); Tex. R. App. P. 44.1 (“No judgment may be reversed on

appeal on the ground that the trial court made an error of law unless the court of appeals concludes

that the error complained of . . . probably caused the rendition of an improper judgment.”).5




       5  As discussed above, the essential argument in Brown’s Amended Motion for Joinder is
that he was denied due process by the Freeds’ failure to make him a party to the case. In his
Appellant’s Brief, however, he argues that he was denied due process by the failure to give him
notice of the Freeds’ motion for entry of judgment and the signing of the judgment. These
arguments appear to raise two distinct due-process violations. The assertion of one particular due-
process violation cannot preserve a complaint about a different violation merely because they both
involve the issue of due process. And, of course, a complaint raised on appeal that does not
comport with the complaint or objection made in the trial court is waived. See Patriot Contracting,
LLC v. Shelter Prods., Inc., 

, 650 (Tex. App.—Houston [1st Dist.] 2021, pet.



                                                18
                                          CONCLUSION

               We dismiss for want of jurisdiction Brown’s attempted appeal from the portion of

the trial court’s judgment resolving the merits of the Freeds’ suit against the Greenbergs. We

affirm that portion of the trial court’s judgment denying Brown’s “Amended Motion for Joinder

of Persons Needed for Just Adjudication and New Trial.”




                                               __________________________________________
                                               J. Woodfin Jones, Justice

Before Justices Baker, Theofanis, Jones*

Affirmed in Part; Dismissed in Part on Motion for Rehearing

Filed: December 29, 2023
*
 Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).




denied) (“To preserve error for our review, an appellant’s complaint on appeal must comport with
[its] object[ion] in the trial court.”) (quoting Benson v. Chalk, 

, 895–96 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied); see also Tex. R. App. P. 33.1. Moreover,
constitutional errors are not immune from waiver. See In re J.B., 

, 653 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (“Even constitutional errors can be waived if a party fails
properly to object to the errors at trial.”); Carrizales v. Texas Dep’t of Protective & Regul. Servs.,

 (Tex. App.—Austin 1999, pet. denied) (“As a rule, a party may not raise an
issue, even a constitutional claim, for the first time on appeal. A constitutional challenge not raised
properly in the district court is waived on appeal.” (citation omitted)). Nonetheless, we assume
without deciding that Brown preserved his due-process complaint for appeal.

                                                  19