Opinion
14-22-00084-CV
09-13-2022
IN RE DIAMOND READY MIX, INC., ENRIQUE MARRERO GALBAN, AND MARIO ZERMENO, Relators
Original Proceeding Writ of Mandamus 127th District Court Harris County, Texas Trial Court Cause No. 2020-21098
Panel consists of Justices Wise, Poissant, and Wilson.
MEMORANDUM OPINION
PER CURIAM.
On February 9, 2022, relators Diamond Ready Mix, Inc., Enrique Marrero Galban, and Mario Zermeno filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relators asks this court to compel the Honorable R.K. Sandill, presiding judge of the 127th District Court of Harris County, to vacate his December 3, 2021 order (1) denying relators' motion for leave to designate a responsible third party; and (2) real party in interest Martin Palos Urrutia's motion for leave to file objection and response to relators' motion for leave to designate a responsible third party. We conditionally grant the petition.
Background
Martin Palos Urrutia, who was a passenger in a van driven by his cousin, Jesus Carlos Palos, was injured in an April 22, 2019 accident with a concrete truck driven by Enrique Marrero Galban, who was working for Diamond Ready Mix. On April 3, 2020, Urrutia sued relators for injuries allegedly suffered in the accident.
In his requests for disclosure, Urrutia asked relators for the name, address, and telephone number of any person "who may be designated as a responsible third party." On June 1, 2020, relators responded that they were "not aware of any possible Responsible Third Parties at present" and would "supplement should any be identified through discovery." Relators identified Palos as a person having knowledge of relevant facts. Palos was deposed on December 1, 2020.
On April 21, 2021, relators filed a motion for leave to designate Palos as a responsible third party. Relators also supplemented their response to Urrutia's request for disclosure of the identification of responsible third parties with Palo's name. The trial setting at the time relators designated Palos as a responsible third party was October 18, 2021. On November 12, 2021, relators set their motion for submission on November 29, 2021. On November 18, 2021, Urrutia filed a motion for leave to file objection and response to relators' motion for leave to designate. The trial court denied relators' motion for leave to designate Palos as a responsible third party and granted Urrutia's motion for leave to file his objection to relators' motion for leave on December 3, 2021.
In this mandamus proceeding, relators assert that the December 3, 2021 order is an abuse of discretion and they do not have an adequate remedy by appeal.
Standard of Review
To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). Trial courts have no discretion in determining what the law is or applying the law to the facts. In re Allstate Indem. Co., 622 S.W.3d 870, 875‒76 (Tex. 2021) (orig. proceeding). An order denying timely motion to designate a responsible third party is subject to mandamus review. In re Coppola, 535 S.W.3d 506, 509‒10 (Tex. 2017) (orig. proceeding) (per curiam).
Analysis
Chapter 33 of the Texas Civil Practices and Remedies Code sets forth the Texas proportionate responsibility law. Tex. Civ. Prac. & Rem. Code §§ 33.001‒ 33.017. "These statutes allow a tort defendant to designate as a responsible third party a person who is alleged to have caused in any way the harm for which the plaintiff seeks damages." In re CVR Energy, Inc., 500 S.W.3d 67,81‒82 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding [mand. denied]) (internal quotation marks & citation omitted); see also Tex. Civ. Prac. & Rem. Code § 33.011(6) (defining "responsible third party" as "any person who is alleged to have caused or contributed to causing in anyway the harm for which recovery of damages is sought").
Section 33.04 permits a tort defendant to designate a person as a responsible third party by filing a motion "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." Id. § 33.004(a). The trial court "shall grant leave to designate . . . a responsible third party" unless another party objects within fifteen days after service of the motion. Id. § 33.004(f).
Relators asserts that the trial court was required to grant their motion for leave because Urrutia did not timely file his objection to their motion within 15 days of serving the motion. See id. Urrurtia claims that Rule 5 of the Texas Rules of Civil Procedure provided the trial court with the discretion to extend the 15-day deadline for filing his objection to relators' motion for leave. See Tex. R. Civ. P. 5 ("When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion[,] . . . upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act.").However, by its own terms, Rule 5 applies only to deadlines in the Rules of Civil Procedure. Morris v. Aguilar, 369 S.W.3d 168, 171 (Tex. 2012) (per curiam). Therefore, Rule 5 does not operate to extend the 15-day statutory deadline found in section 33.004(f) of the Texas Civil Practice & Remedies Code.
Relators filed their motion for leave nearly six months prior to the then current trial setting. Therefore, the motion was filed timely. See Tex. Civ. Prac. & Rem. Code § 33.004(a).
Emphasis added.
Urrutia further complains that relators failed to comply with the Rules of Civil Procedure by not timely disclosing Palos as a responsible third party until the day before the statute of limitations expired. See Tex. R. Civ. P. 194.2 (requiring party to disclose name, address, and telephone number of person who may be designated as responsible third party); id. 193.5(b) (requiring that amended or supplemental response be made reasonably promptly after party discovers necessity for such response).
Section 33.004(d) provides that a defendant may not designate a person as a responsible third party after the applicable statute of limitations has expired "if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure." Tex. Civ. Prac. & Rem. Code § 33.004(d). "Working as a procedural safeguard, the 'timely disclosure' requirement seeks to guarantee that the defendant essentially cannot undercut the plaintiff's case by belatedly pointing its finger at a time-barred responsible third-party against whom the plaintiff has no possibility of recovery." Withers v. Schneider Nat'l Carriers, Inc., 13 F.Supp.3d 686, 689 (E.D. Tex. 2014). Urrutia, maintaining that the trial court did not abuse its discretion by enforcing this statutory provision, claims that relators' third-party designation was not timely even though relators made their designation prior to the expiration of the statute of limitations.
In construing a statute, the court's objective is to determine and give effect to the Legislature's intent. Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022). "Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on." Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022) (internal quotations marks & citations omitted). We presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind. Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
Section 33.004(d) places the burden on the defendant to timely disclose potentially responsible third parties or risk forfeiting the ability to designate such persons as responsible third parties after limitations have expired. In re Mobile Mini, Inc., 596 S.W.3d 781, 786 (Tex. 2020) (orig. proceeding) (per curiam). However, the statute is silent on requiring timely disclosures when the defendant makes the third-party designation prior to the running of the statute of limitations. The language of section 33.004(d) is the text on upon which the Legislature voted, and we cannot rewrite the statute to address Urrutia's complaints that relators waited until the day before the statute of limitations expired to make their third-party designation. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) ("The court may not impose its own judicial meaning on a statute by adding words not contained in the statute's language."). Relators designated Palos as a responsible third party before the statute of limitations expired. Therefore, it is not necessary to address whether relators met their obligation to timely disclose Palos as a responsible third party.
Urrutia does not address the fact that he failed to object to relators' motion for leave within 15 days of having been served with the motion. Instead, Urrutia claims that he promptly moved for leave to file his objection 11 days before the November 29, 2021 submission date. It is service of the motion for leave to designate a responsible third party that triggers the 15-day deadline to object, not the notice of the submission date. The language of the statute is clear-a trial court must grant leave to designate the named person as a responsible third party unless another party objects on or before the 15th day after the motion was served.
In the absence of a timely filed objection, we conclude that the trial court abused its discretion by denying relators' motion for leave to designate Palos a responsible third party and granting Urrutia's motion for leave to file his objection.
Having held that the trial court's rulings were an abuse of discretion, we must determine whether relators have an adequate remedy by appeal. "Allowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation 'would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of [relators'] defense in ways unlikely to be apparent in the appellate record.'" Coppola, 535 S.W.3d at 510 (quoting CVR Energy, Inc., 500 S.W.3d at 81‒82). Therefore, ordinarily, a relator need only establish the trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to the denial of a timely-field section 33.004(a) motion. Id.
Conclusion
Having determined that the trial court abused its discretion and relators do not have an adequate remedy by appeal, we conditionally grant relators' petition for writ of mandamus. We direct the trial court to (1) issue a written order vacating its December 3, 2021 order denying relators' motion for leave to designate Palos as a responsible third party and granting Urrutia's motion for leave to file objection and response to relators' motion for leave to designate; and (2) issue a written order granting relators' motion for leave to designate Palos as a responsible third party and deny Urrutia's motion for leave to file objection and response to relators' motion for leave to designate. We are confident the trial court will act in accordance with this opinion and the writ will issue only if the court fails to do so. We also lift our stay entered on March 7, 2022.