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Click here for the full text of this decision FACTS:Wayne Mathews, a 20-year-old college student, was with friends � including the named defendant in the suit, Mathew Curtis Marshall � outside his parents’ home at approximately 10:30 p.m., when Wayne’s father, Kent Mathews instructed Wayne to “wrap things up,” and then retired for the evening to go to sleep. Wayne and his friends were drinking at this time, but it was not proven that Kent was aware of that fact. Wayne and his friends subsequently built a cross and erected it and set it ablaze on the front lawn of an African-American family, the Rosses. The Rosses filed a civil suit against Wayne and his friends, alleging various intentional torts and civil rights violations. In addition, the Rosses sought to recover from Kent, on grounds that he knew or should have known that his properties and household effects were being used in a negligent and reckless manner. At the time of the cross-burning incident, Kent owned a homeowner’s insurance policy issued by Allstate covering damages because of bodily injury caused by an occurrence for which coverage was provided. Allstate provided an attorney to defend Kent subject to a reservation of rights. The district court’s amended final judgment stated that, as a matter of law, Kent was vicariously liable for Wayne’s conduct. Despite the jury’s finding that Kent’s negligent delegation of authority did not cause the Rosses’ injury, the district court found that it was undisputed that Wayne’s use of the Mathews’ property was within the scope of authority granted by Kent. Therefore, the district court held that while Kent was not directly liable, he was, nevertheless, indirectly liable. Allstate sought to intervene as of right in the suit for the purpose of appealing the judgment holding the Mathewses vicariously liable for $10 million in damages. The district court denied the intervention and struck Allstate’s answer and notice of appeal. The Mathewses subsequently abandoned their appeal and assigned all rights and claims against Allstate to the Rosses. Allstate appealed. HOLDING:The court reverses both the order denying intervention and the amended final judgment and remands the case with instructions to enter a take-nothing judgment as to Kent Mathews. Allstate contends that the district court erred in denying its motion to intervene as of right. In addition, Allstate argues that the district court erred in making findings on an agency theory that had been waived by the Rosses, in entering judgment against Kent as a matter of law based on the agency theory, by amending its judgment under Texas Rule of Civil Procedure 59(e) to find Kent liable on a theory that had previously been abandoned, and in attempting to hold Kent liable on a negligence theory that was expressly rejected by the jury. The Rosses contend that the appeal must be dismissed because the district court lacked jurisdiction to rule on Allstate’s motion to intervene after Kent filed his notice of appeal, Allstate failed to satisfy the requirements for intervention as of right, that they neither waived nor abandoned their agency theory, and that the district court’s judgment was supported by both the jury’s finding that Kent negligently delegated his authority to Wayne and undisputed evidence that Wayne’s acts were within the scope of that authority. The court concludes that the district court properly had jurisdiction to deny Allstate’s motion to intervene and that Allstate’s motion to intervene was timely. The court also concludes that Allstate has a sufficient interest in the present suit to merit intervention as of right for the purpose of appealing the judgment against its insured. Consequently, the court concludes that the district court erred in denying Allstate’s motion to intervene as of right. Noting that Allstate challenges the amended final judgment on a number of grounds, the court proceeds to state that it will limit its analysis to Allstate’s claim that the district court was incorrect in its assessment that Kent should be held vicariously liable for the criminal acts of Wayne. Assuming for the sake of argument that Wayne was Kent’s agent for the purpose of “wrapping things up” around the Mathews’ residence on the night of the cross-burning, the court finds the record devoid of facts suggesting that Wayne acted within the scope of that authority when he participated in the cross-burning. The court determines that Kent’s testimony clearly demonstrates that when he told Wayne to “wrap things up,” he intended for Wayne to send his friends home. The court finds that any suggestion that Kent implicitly gave Wayne authority to construct a large wooden cross on his lawn, transport that cross to the home of an African-American family and set it on fire is the height of absurdity. The court states that the fact that Kent knew or should have known of Wayne’s difficulties with alcohol did not alter the analysis; that Kent may have been negligent in delegating authority over his property to an untrustworthy son does not serve to expand the scope of authority given to encompass unimaginable criminal conduct wholly unrelated to the task assigned. The court points out that, under Texas law, an agent’s serious criminal activity is almost never taken within the scope of authority granted by the principal. Because the record contains no facts suggesting that Wayne’s criminal activity was taken within the scope of authority granted him by Kent, the court concludes that the district court’s finding to the contrary was clearly erroneous. Accordingly, the district court abused its discretion in granting the Rosses’ motion to amend the judgment. OPINION:Higginbotham, J.; Higginbotham, Davis, and Garza, JJ.

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