Opinion
08-24-00152-CV
11-07-2024
IN RE: TROPICANA PALMS, LTD., Relator.
AN ORIGINAL PROCEEDING IN MANDAMUS
Before Alley, C.J., Palafox and Soto, JJ.
MEMORANDUM OPINION
LISA J. SOTO, JUSTICE
In this mandamus case, Relator Tropicana Palms, Ltd. (Tropicana) asks us to direct the Honorable Sergio Enriquez of the 448th Judicial District Court of El Paso, Texas to vacate an order denying Tropicana's motion to designate Yvette Gaytan as a responsible third party and enter an order granting the motion instead. We deny the petition.
I. Background
In the underlying negligence suit, Real-Party-In-Interest M.G. sued Tropicana, her landlord, alleging she was raped on its premises in 2016 when she was 13 years old. Suit was filed in 2017 by "Yvette Gaytan as next friend of, [M.G.], Plaintiffs." Ms. Gaytan is M.G.'s mother. In June 2023, M.G. filed a notice of removal of next friend, alleging she had "reached the age of eighteen (18) years old, and is therefore no longer a minor child." It is undisputed that limitations for relevant claims against Ms. Gaytan expired no later than November 2022.
M.G. filed this notice more than two years after her eighteenth birthday.
In April 2024, Tropicana filed a motion for leave to designate Ms. Gaytan as a responsible third party. Under § 33.004(d) of the Texas Civil Practice and Remedies Code, a responsible third party cannot be designated "after the applicable limitations period . . . if the [designating party] has failed to comply with its obligations, if any, to timely disclose that the person may be designated[.]" In its motion, Tropicana argued it had no obligation to disclose Ms. Gaytan because she had filed suit as a "plaintiff . . . seeking to recover damages" as well as "next friend of [M.G.]," citing In re CVR Energy, Inc., 500 S.W.3d 67 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding) (op. on reh'g) (former party to suit may be designated after limitations expires without having been disclosed). M.G. filed an objection to the motion, arguing Tropicana failed to comply with § 33.004(d). After a hearing, the trial court denied the motion. This mandamus action followed.
This motion seeks to designate only Ms. Gaytan; a similar motion filed two months earlier sought to designate Ms. Gaytan and another Tropicana tenant. The alleged rapist was designated as a responsible third party in 2018.
II. Discussion
Mandamus relief is an extraordinary remedy that requires the relator to show (1) the trial court clearly abused its discretion, and (2) the relator lacks an adequate remedy by appeal. In re Kappmeyer, 668 S.W.3d 651, 654 (Tex. 2023) (orig. proceeding). "The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Here, we conclude Tropicana has failed to show the trial court clearly abused its discretion.
Tropicana does not dispute that under § 33.004(d), a person may be designated as a responsible third party after limitations expires only if the designating party timely disclosed the person as a potential responsible third party. Nor does Tropicana dispute that it sought to designate Ms. Gaytan after limitations expired without having disclosed her as a potential responsible third party.
Tropicana argues that Ms. Gaytan was nevertheless properly designated because § 33.004(d) does not apply if the person being designated was a "claimant" within the meaning of Texas Civil Practice and Remedies Code § 33.011(1) at the time limitations expired, citing In re CVR Energy, Inc., 500 S.W.3d at 67. Tropicana contends that at the time limitations expired, Ms. Gaytan was a "claimant" in two capacities: as "plaintiff" and as "next friend." We address each in turn.
A. Whether Ms. Gaytan was a "claimant" as a "plaintiff"
Tropicana argues that Ms. Gaytan filed suit as a "plaintiff," and thus a "claimant," because she "clearly sought recovery of damages on her own behalf, as well as on behalf of her daughter." The most recent petition in the record before us-"Plaintiff's Second Amended Petition"-was attached to M.G.'s response to the mandamus. It is less than precise.
Tropicana correctly notes that the pleading uses the word "plaintiffs" rather than "plaintiff" at various points. But the pleading is not consistent in this regard, at some points indicating that only one plaintiff is involved. Further, at times, the pleading refers to Ms. Gaytan as a plaintiff, and even includes such information as her place of residence and social security and driver's license numbers, yet elsewhere indicates her role is that of a "next friend." Tropicana also points out that the pleading's references to "past lost earnings" and "reinstatement" were inapplicable to M.G. as a minor at the time the pleading was filed in 2018. However, the fact that "reinstatement" was also inapplicable to Ms. Gaytan suggests drafting error rather than an intent to plead an individual claim for damages on behalf of Ms. Gaytan.
Finally, the pleading's damages paragraph reads in full as follows: "[Tropicana]'s actions and omissions proximately caused Ms. Gaytan as next friend of [M.G.]'s personal injury damages, including pain and suffering, bodily injury, impairment, disfigurement, past and future lost earnings, loss of earning capacity, emotional trauma/mental anguish and inconvenience." Nothing in this sentence clearly conveys that multiple plaintiffs are asserting damages or that Ms. Gaytan is asserting a claim for damages on her own behalf rather than on M.G.'s behalf as a next friend. Were this sentence intended to refer to two separate plaintiffs, one might expect it to have expressed such an intent with language such as "Ms. Gaytan individually and as next friend." The same might be said of the pleading's style, which reads in part: "Yvette Gaytan, as next friend of, [M.G.], Plaintiffs," and the introductory sentence, which begins: "Plaintiffs, Yvette Gaytan ('Ms. Gaytan') as next friend of [M.G.] ('Child')." See, e.g., Domino's Pizza, L.L.C. v. Umanzor, No. 01-11-00270-CV, 2012 WL 2159392, at *1 (Tex. App.-Houston [1st Dist.] June 14, 2012, pet. denied) (mem. op.) ("The lawsuit was originally brought . . . by Manuel and Leticia, individually and as next friends of Christopher ....") (emphasis added); Flores v. Oncor Electric Delivery Co., LLC, 697 S.W.3d 465, 465 (Tex. App.-Dallas 2024, no pet. h.) (styled: "Juan Flores and Sayra Flores, Individually and as Next Friends of L.F., S.F., and P.F., Minors ....") (emphasis added); City of San Antonio v. Garcia, No. 08-23-00329-CV, 2024 WL 3066051 (Tex. App.-El Paso June 20, 2024, no pet.) (styled: "City of San Antonio, Appellant, v. Joel Garcia, Individually and as Next Friend of J.G., Appellee") (emphasis added). Domino's, Flores, and Garcia reflect widespread, standard practice in this regard.
Given that the language of the pleading does not specify that Ms. Gaytan sued individually, we cannot say that the trial court abused its discretion by not determining that Ms. Gaytan was a claimant under § 33.011(1) as a "plaintiff" herself in this case. See Walker, 827 S.W.2d at 840 (trial court abuses discretion if it reaches a decision so arbitrary and unreasonable as to amount to clear and prejudicial error of law, or clearly fails to analyze or apply law correctly).
B. Whether Ms. Gaytan was a "claimant" as a "next friend"
In addition to positing that Ms. Gaytan was a claimant as a plaintiff herself, Tropicana also maintains that the definition of "claimant" in Texas Civil Practice and Remedies Code § 33.011(1) "clearly covers Gaytan in her capacity as a next friend." Section 33.011(1) defines a "claimant" as:
a person seeking recovery of damages, including a plaintiff, counterclaimant, crossclaimant, or third-party plaintiff. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant" includes:
(A) the person who was injured, was harmed, or died or whose property was damaged; and
(B) any person who is seeking, has sought, or could seek recovery of damages for the injury, harm, or death of that person or for the damage to the property of that person.
Tex. Civ. Prac. &Rem. Code Ann. § 33.011(1).
In the context of § 33.011(1), "claimant" has been held to include persons who "seek[] . . . recovery of damages for the injury . . . of [another] person" by asserting a derivative claim for their own damages. See, e.g., Virlar v. Puente, 664 S.W.3d 53, 60 (Tex. 2023) (loss of services and consortium); JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 707 (Tex. 2008) (wrongful death). But nothing in the statutory definition or any authority cited by Tropicana suggests that "claimant" must be or can be construed to extend to a next friend, guardian ad litem, or any other person whose role is limited to asserting a non-derivative claim for another person's damages on behalf of that other person.
Regarding the role of a next friend in litigation, see In re Bridgestone Americas Tire Operations, LLC, 459 S.W.3d 565, 573 (Tex. 2015) (orig. proceeding) ("The next friend . . . is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended on behalf of another.") (citing Morgan v. Potter, 157 U.S. 195, 198 (1895)). We further note that next friends are treated as non-parties for various purposes. See, e.g., id. ("[W]e cannot conclude that a next friend is 'a party seeking recovery of damages for personal injury or wrongful death.' That description fits the persons who are authorized to bring a wrongful-death action under section 71.004, but not the person serving as a conduit when the ones authorized to bring the action are minors. As such, a next friend's legal residency in Texas does not trigger the forum-non-conveniens statute's Texas-resident exception.") (internal citation omitted); Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) ("Josefina Gracia appeared in the original action only in a representative capacity as next friend of her minor daughter, Dolores.... The limited effect of such an appearance is recognized in the Restatement (Second) of Judgments section 36(2) (1982) as follows: 'A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.'").
Further, while Tropicana argues that in Domino's, the Fourteenth Court of Appeals held that "a parent suing on behalf of a child is a 'claimant,'" M.G. correctly responds that in Domino's, the parent's status as a claimant "came from his prior status as a plaintiff asserting an individual claim on his own behalf, not as a next friend." See Domino's 2012 WL 2159392, at *1 (parent brought suit individually and as next friend of minor child).
Notably, each of the other cases cited by Tropicana in support of its argument that Gaytan is a claimant under § 33.011(1) involves a former defendant, not a next friend. See CVR, 500 S.W.3d at 78-79; Sanchez v. Castillo, No. 05-18-01033-CV, 2020 WL 1042519, at *5 (Tex. App.-Dallas Mar. 4, 2020, no pet.) (mem. op.); and Gespa Nicaragua, S.A. v. Recom AG, No. 08-22-00244-CV, 2024 WL 1199466, at *21 (Tex. App.-El Paso Mar. 20, 2024, no pet.). We note that after this appeal was briefed, we issued a substituted opinion in Gespa (see Gespa Nicaragua, S.A. v. Recom AG, No. 08-22-00244-CV, 2024 WL 4455677 (Tex. App.-El Paso Oct. 9, 2024, no pet. h.)); however, the portion of the original opinion relevant here was not altered. See id. at *21.
Given the lack of authority to support Tropicana's argument, we cannot say that the trial court abused its discretion by not determining that "claimant" under § 33.011(1) includes a person acting as a next friend. See Walker, 827 S.W.2d at 840.
III. Conclusion
We conclude that Tropicana has failed to show the trial court abused its discretion either in construing Plaintiff's Second Amended Petition or in interpreting the scope of "claimant" under § 33.011(1). Accordingly, we deny mandamus relief.
DISSENTING MEMORANDUM OPINION
JEFF ALLEY, CHIEF JUSTICE
By statute, a defendant may not designate a person as a responsible third party after the statute of limitations has run on the claimant's cause of action "if the defendant has failed to comply with its obligations, if any, to timely disclose that [] person" as a responsible third party. Tex. Civ. Prac. &Rem. Code Ann. § 33.004(d). This protects the plaintiff from having to defend the conduct of non-party tortfeasors that the plaintiff never had notice of and opportunity to timely join. In re CVR Energy, Inc., 500 S.W.3d 67, 73 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding) (op. on reh'g) ("These timing limitations are part of a 'statutory balance' created by the Legislature that seeks to address a defendant's interest in identifying nonparties who may have some culpability while recognizing that a plaintiff has time limitations on pursuing its claims against parties not already included in its suit.").
But a defendant has no obligation to name a co-defendant as a responsible third party, because the plaintiff is already asserting that co-defendant caused the injury. In re CVR Energy, Inc., 500 S.W.3d at 78 (so stating when co-defendant is nonsuited after limitations has run; holding trial court abused its discretion in denying remaining defendant the right to name nonsuited defendant as a responsible third party). Nor would the defendant have an obligation to name a "claimant" as a responsible third party; a claimant by statute already deserves a blank on the proportionate liability question. Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a) ("The trier of fact . . . shall determine the percentage of responsibility . . . for . . . (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party . . . ").
The issue in this mandamus is whether Yvette Gaytan was a claimant in her own right up until the time that limitations ran on her daughter's claim. If so, the only deadline to name her as a responsible third party is controlled by the date of the trial setting. Tex. Civ. Prac. &Rem. Code Ann. § 33.004(a) ("The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date."). In my view she was a party claimant until after limitations ran, and the trial court abused its discretion in not allowing her designation, which was made well before the 60-day deadline based on the trial date. Because the majority concludes otherwise, I respectfully dissent.
The only real legal question here is whether Gaytan was a party seeking relief (which thus defines her as a "claimant") up until June 5, 2023, when a Notice of Removal of Next Friend was filed (because her daughter had then reached the age of majority). Before that date, the case was progressing under Plaintiffs First Amended Petition. That petition has a "Parties" section that identifies Gaytan as a party. It separately lists her daughter as a party.
Paragraph 57 of the petition addresses damages, and seeks these elements of damages:
57. Defendant's actions and omissions proximately caused Ms. Gaytan as next friend of Child Garcia's, personal injury damages, including pain and suffering, bodily injury, impairment, disfigurement, past and future lost earnings, loss of
earning capacity, emotional trauma/ mental anguish and inconvenience (emphasis added).
The Prayer for relief then asks:
Plaintiffs pray that they recover from Defendant, actual damages over $200,000.00 but not more than $10,000,000.00, including but not limited to, past and future lost earnings, mental anguish and inconvenience, emotional pain and suffering, loss of enjoyment of life, bodily injury, pain and suffering, economic damages and benefits in the past and future, compensatory damages, punitive damages, reinstatement, prejudgment interest, post judgment interest, costs and such other and further relief to which they may show themselves to be justly entitled, in law and in equity. The damages sought are within the jurisdictional limits of the court (emphasis added).
I italicized the damage elements because they could only be recovered by Gaytan as the parent of the minor child. Her daughter would have no claim for those specific elements of damage while she was an unemancipated minor. No doubt, minors have a common law cause of action to sue those who negligently inflict injuries on them. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). And the child's claim is distinct from the parents' right to recover damages for injuries to their child. Id. But the claim for loss of earnings of an unemancipated minor belongs to the child's parents:
For example, a child is entitled to recover loss of earning capacity, commencing upon the date of attaining majority or removal of disabilities. However, since the services and earnings of an unemancipated minor belong to his parents, an infant may not recover for diminution of his earning capacity during the period intervening between the injury and his attainment of majority.
Sax, 648 S.W.2d at 666; see also Sarabia v. McNair, No. 2-09-160-CV, 2010 WL 1427019, at *3 (Tex. App.-Fort Worth Apr. 8, 2010, no pet.) (mem. op.); Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex. App.-Austin 1974, no writ); Tyrrell Hardware Co. v. Orgeron, 289 S.W. 1040, 1041 (Tex. App.-Beaumont 1926, writ ref'd).
I could agree that the petition has a level of imprecision. It uses the plural "plaintiffs" ten times in the body of the pleading, but three times uses "plaintiff" in the singular. Many pleadings of this sort explicitly state that the parent is suing "individually and as next friend." But neither our rules nor the case law has ever mandated the inclusion of the word "Individually" alongside the words "Next Friend" to define the parent as a separate claimant.
This issue is before us as a mandamus, and we do not reverse a trial court unless there is a clear abuse of discretion. A trial court abuses its discretion by failing to act with reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). Which begs the question: what rules and principles govern how a trial court should decipher a pleading to decide who is, and who is not a party plaintiff? The closest analog I find to that question is how we construe whether a plaintiff has pleaded a cause of action. In that context, when special exceptions are not filed, a court should construe the petition liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). A pleading should contain "a short statement of the cause of action sufficient to give fair notice of the claim involved ...." Tex.R.Civ.P. 47(a). "We will uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged." The Huff Energy Fund, LP v. Longview Energy Co., 482 S.W.3d 184, 195 (Tex. App.- San Antonio 2015), aff'd sub nom. Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017). "In determining whether a pleading is adequate, we examine whether an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the nature and the basic issues of the controversy." Id., (citing Bowen v. Robinson, 227 S.W.3d 86, 91 (Tex. App.- Houston [1st Dist.] 2006, pet. denied)).
Applying these rules, an attorney of reasonable competence would be put on notice that Gaytan was seeking her own recovery based on: (1) the pleading's inclusion of Gaytan and her daughter as two specifically named party plaintiffs; (2) the multiple references to "plaintiffs" in the plural throughout the pleading; (3) the request for a damage element that only Gaytan could recover; and (4) the Prayer that uses the pronoun "they" in seeking recovery. Consequently, I can only conclude that Gaytan was a party plaintiff and claimant, up until the time she was dropped from the suit (and at a time after limitations had run on a claim against her). For these reasons, I respectfully dissent.