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Civil Litigation No. 02-0603, 7/3/2003. Click here for the full text of this decision FACTS: The issue before the court is whether the intervenors must serve citation on a defendant to stop the statute of limitations from running on their claims when the intervention is filed before the defendant has appeared to answer the plaintiffs’ original petition. After the plaintiffs filed their original petition, but before the defendant was served, the intervenors petitioned the court to intervene. Although the intervenors promptly notified defendant’s counsel of their intentions, they did not serve citation on the defendant. Two years later, defendant moved for summary judgment against the intervenors, asserting limitations. The trial court granted the motion, and the court of appeals affirmed that judgment. HOLDING: Reversed and remanded. Because Monsanto generally appeared in the case before limitations had run on intervenors’ claims, intervenors’ action was not barred, and the summary judgment rendered in this case was therefore erroneous. Typically, an intervention involves a claim against persons who have already appeared. Under these circumstances, the plea in intervention is properly served by any of the methods provided in Texas Rule of Civil Procedure 21a. However, absent a subsequent appearance, service of citation is necessary against an original defendant when the intervenor seeks affirmative relief against a defendant who has not appeared at the time the intervention was filed. The court of appeals concluded here that because Monsanto Co. had yet to appear when the intervenors filed their pleadings, service of citation was required under McWilliams v. Snap-Pac Corp., 476 S.W.2d 941 (Tex. Civ. App. – Houston [1st Dist.] 1971, writ ref’d n.r.e.). McWilliamsmerely stated that intervenors are required to serve citation on a defendant when that defendant fails to appear and answer the plaintiff’s petition. McWilliamsalso concluded that an intervenor must serve citation on any third-party defendant it seeks to bring into the suit. And if the intervenor’s claim is against the plaintiff, it must serve citation on the plaintiff, if the plaintiff does not make any further appearance in the case after the intervention. McWilliamsquoted these principles from McDonald’s Texas Civil Practice whose text remains substantially unchanged today. It provides: “Citation is necessary when the intervenor asks affirmative relief against a defendant who has not appeared or a plaintiff who does not, by any action subsequent to the intervention, appear thereon. It also is necessary as against any third party sought to be brought in by intervention. But parties before the court must take notice of the intervention when they are notified under rule 21 and 21a. In accordance with the rule generally as to the necessity of serving process on the filing of a cross-claim where the defendant has appeared in the action, a defendant who has answered must answer an intervention seeking affirmative relief against him or her without awaiting further citation.” 1 McDonald and Carlson, Texas Civil Practice �5:81 at 609 (1992 ed.). If Monsanto had not later appeared, then delivering the petition in intervention by certified mail would have been ineffective to bring Monsanto within the jurisdiction of the court. However, Monsanto made a general appearance when it answered the plaintiffs’ complaint on July 7, 1995. That appearance relieved the intervenors of the responsibility to serve Monsanto with citation, and the date on which limitations ceased to run was May 18, 1995, when the intervention was filed. Monsanto’s answer further did not question the court’s jurisdiction, and thus its appearance was not a limited one despite its attempt to restrict its answer only to “those plaintiffs who have served Monsanto.” Any defect in the intervenors’ service under Rule 21a was cured by that appearance. Sullivan v. Doyle, 194 S.W. 136 (Tex. 1917). If Monsanto had any complaint about the intervenors’ premature service under Rule 21a, its recourse was a motion to quash. OPINION: Per curiam. Schneider, J., did not participate in the decision.

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