Opinion
NUMBER 13-17-00648-CV
11-28-2017
IN RE OSCAR SALDIVAR; INNOVATIVE BLOCK OF SOUTH TEXAS, LTD.; AND INNOVATIVE SUPPLY, L.L.C.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Hinojosa
See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case," but when "denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relators Oscar Saldivar; Innovative Block of South Texas, Ltd.; and Innovative Supply, L.L.C., filed a petition for writ of mandamus in the above cause. Through this original proceeding, relators contend that the trial court abused its discretion in denying Saldivar's second amended motion to designate a responsible third party and in denying relators' first motion for continuance. Specifically, relators seek to: (1) vacate the trial court's November 13, 2017 order denying their motion to stay the current trial proceedings, including the jury trial setting of December 11, 2017; (2) vacate the trial court's October 3, 2017 order denying defendant "Oscar Saldivar's Second Amended Motion for Leave to Designate Responsible Third Party", and (3) compel the trial court to grant Saldivar's motion to designate Joseph Salinas as a responsible third party. Relators have further filed an opposed motion for temporary relief through which they seek to stay the December 11, 2017 trial setting pending resolution of this original proceeding. We will deny mandamus relief.
I. BACKGROUND
According to the live petition, Jesse Buitron, the plaintiff below and the real party in interest before us, sustained personal injuries when a tractor-trailer operated by Saldivar made a wide left turn, pulled the trailer into the lane that Buitron's vehicle was traveling in, and collided with Buitron's vehicle. On February 9, 2017, Buitron sued Saldivar and his alleged employer, Innovative Block of South Texas, Ltd. (Innovative Block) On March 24, 2017 and April 21, 2017, Saldivar and Innovative Block respectively answered Buitron's suit.
In Innovative Block's April 24, 2017 first amended answer, it pleaded "that the wrong corporate entity has been sued in this case." In a second amended petition, filed on May 17, 2017, Buitron added Innovative Supply, L.L.C. as a defendant. Innovative Supply answered on June 15, 2017.
A. Motion(s) for Leave to Designate Responsible Third Party
According to the docket sheet in the mandamus record: (1) Saldivar filed a motion for leave to designate Joseph Salinas as a responsible third party on April 25, 2017; (2) the trial court set Saldivar's motion for leave for hearing on May 1, 2017: (3) after the May 1, 2017 hearing, the motion for leave was taken under advisement; and (4) a draft order denying the motion for leave was filed with the clerk on May 2, 2017.
Saldivar filed a draft order setting hearing contemporaneously with his initial motion for leave. The trial court set the motion for leave for hearing within the period in which another party may file an objection to the motion for leave. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(f) (West, Westlaw through 2017 1st C.S.). The docket sheet does not show a motion to re-set Saldivar's motion for leave, and, as noted below, relators have not filed any hearing transcripts.
On May 2, 2017, notwithstanding the fact that the docket sheet notes that the initial motion was argued to the court and taken under advisement on May 1, 2017, Saldivar filed an amended motion for leave to designate Joseph Salinas as a responsible third party.
On May 9, 2017, the trial court signed an agreed docket control order that was "approved and agreed" to by counsel for all parties. All of the deadlines in the docket control order have passed except a December 4, 2017 pre-trial setting and jury selection and trial, which is set for December 11, 2017. According to the docket control order, Buitron and relators were to designate experts and provide expert reports on August 14, 2017 and September 12, 2017, respectively. Daubert/Robinson challenges and dispositive motions were to be filed by November 10, 2017, which was also the deadline for supplementation of all discovery. The mandamus record includes no Rule 11 agreement or amended docket control order that changes the deadlines in the docket control order. However, the mandamus record includes a few notices for depositions past the November 10, 2017 deadline.
On May 12, 2017, Buitron filed an objection to Saldivar's amended motion for leave. Buitron asserted that the accident report placed Saldivar at fault, that the investigating officer provided deposition testimony on May 12, 2017 that Salinas was not at fault, that Saldivar had not pleaded sufficient facts in accordance with section 33.004(g) of the Texas Civil Practice and Remedies Code, and that the trial court had "ruled on this issue and it is moot."
On May 22, 2017, according to the docket sheet, Saldivar filed a "Request for a Ruling on His Motion to Designate Joseph Salinas as a Responsible Third Party." From the title of the entry, it appears that Saldivar urged a ruling on his initial motion for leave that was submitted and taken under advisement, not the May 2, 2017 amended motion for leave.
On June 14, 2017, the trial court, according to a written order, considered Saldivar's initial motion for leave at a status conference hearing where the docket sheet notes that "all pending [m]otions" were heard. The same order, signed on July 28, 2017, denies the initial motion for leave.
We note that the docket sheet indicates that this order was signed on June 15, 2017.
On August 24, 2017, the trial court, according to another written order, considered Saldivar's amended motion for leave. The same order, signed on August 24, 2017, denies the amended motion for leave.
On September 8, 2017, Saldivar filed a second amended motion for leave to designate Salinas as a responsible third party. Saldivar's second amended motion for leave again urged, as the amended motion did, that Salinas should be designated as a responsible third party. It also urged that Buitron "misconstrued" section 33.004 of the Texas Civil Practice and Remedies Code, that Saldivar met the fair-notice pleading requirement espoused by section 33.004, and that a "party is not required to marshal his evidence when seeking leave to designate a responsible third party." Saldivar asserted that in "the event the Court requires Defendant to marshal his evidence, Defendant would show the following. . . ." Saldivar attached to his second amended motion three pages from the July 21, 2017 deposition of Salinas and a page from the May 18, 2017 deposition of Saldivar.
On September 15, 2017, Buitron filed a motion to strike, motion for sanctions, and objection to Saldivar's second amended motion for leave. In this filing, Buitron argued that Saldivar failed to provide the deposition testimony from investigating officer Christopher Piland and that Piland "affirm[ed]" that "Saldivar was the cause of the accident, made the basis of th[e] suit, not Joseph Salinas." Buitron also argued that "[i]t has become seemingly a well-established pattern of judicial abuse where counsel for Defendant is clearly undermining [the trial court] by wasting [its] time on having [the] issue brought before [it] yet another time." In a supplement to Buitron's filing, he argued that "it would be unjust, prejudicial, and unfair if Defendant is permitted to rely on the deposition testimony of the driver, Joseph Salinas, as a basis for" his second amended motion for leave without Buitron "being given the opportunity to cross-examine" Salinas.
On October 16, 2017, the trial court granted Buitron's "Motion to Strike Unilateral Deposition of Joseph Salinas."
On October 3, 2017, the trial court heard and denied Saldivar's second amended motion for leave.
B. Motion(s) for Continuance
On November 2, 2017, Saldivar, Innovative Block, and Innovative Supply, L.L.C., filed an amended motion for continuance of the trial date. Relators argued that the case was not simple and that they anticipated ten more depositions on top of the nine that had been taken. Relators contended that they needed to take the depositions of Buitron's two co-workers and Buitron's supervisor, whose testimony was "necessary to determine [Buitron's] training and the duty of care to which a driving instructor is held while teaching new drivers how to drive on public roads." Relators also contended that more time was necessary so that the additional deposition transcripts may be provided to relators' experts for the formation of opinions.
On November 8, 2017, Buitron responded to relators' amended motion for continuance. In it, Buitron argues:
Most recently, Counsel for Defendants has filed an untimely Motion to Quash the very dates he proposed and represented that he was available Exhibit "C." Counsel for Defendants filed this untimely Motion to Quash only in an effort to delay and abuse the discovery process. Such tactics and conduct are prohibited both under the TRCP and moreover under the Code of Ethics. This is a backhanded attempt to further delay the trial date. Such conduct should be sanctioned.(Emphasis in original). Attached as "Exhibit C" to Buitron's response is relators' November 7, 2017 motion to quash Buitron's second amended motion of intention to take the deposition of Salinas. Attached to relators' motion to quash is a November 2, 2017 letter from relators' counsel to Buitron's counsel stating, "I am also willing to notice the deposition of Joseph Salinas on November 16th, 2017 at my office starting at 9:30 a.m. Please advise if you are available for these depositions by 3:00 p.m., Friday, November 3, 2017." On November 2, 2017 at 5:13 p.m., Buitron filed a second amended notice of intention to take the deposition of Salinas. The notice set Salinas's deposition for November 16, 2017 at 9:30 a.m. at the office of relators' counsel.
This is a simple car accident. More than enough discovery has been conducted to try this case on its merits.
On November 13, 2017, the trial court heard and denied relators' amended motion for continuance.
C. Petition for Writ of Mandamus
On Tuesday, November 21, 2017 at 4:48 p.m., relators filed their petition for writ of mandamus. The following day, relators filed the mandamus record, which contains no hearing transcripts, and an opposed emergency motion for temporary relief. On the same day, Buitron responded to relators' emergency motion.
According to an affidavit by one of relators' attorneys accompanying the petition for writ of mandamus, "no hearing transcripts are included as no testimony was adduced in connection with the matters complained of."
II. DISCUSSION
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). Relators bear the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). Relators have the burden of providing this Court with a record sufficient to establish their right to mandamus relief. See TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837, (holding it is the relator's burden to provide this Court with a sufficient record to establish his or her right to mandamus relief).
A. Motion(s) for Leave to Designate Responsible Third Party
While relators' petition for writ of mandamus focuses on the denial of Saldivar's second amended motion for leave, our review of the mandamus record, recounted above, reveals two nearly identical and older denial orders that disposed of two similar and older motions. Therefore, we must first determine the proper character of the filings and then determine whether relators have delayed, and therefore waived, their right to pursue mandamus relief.
1. Rules Governing Delay in Requesting Mandamus Relief
Delaying the filing of a petition for mandamus relief may waive the right to mandamus unless the relator can justify the delay. In re Int'l Profit Assocs., 274 S.W.3d 672, 676 (Tex. 2009) (per curiam). This is because mandamus is an extraordinary and discretionary remedy that is not issued as a matter of right. In re Dorn, 471 S.W.3d 823, 824 (Tex. 2015) (orig. proceeding); Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941). Even though mandamus is not an equitable remedy, equitable principles govern its issuance. In re Dorn, 471 S.W.3d at 824; Rivercenter, 858 S.W.2d at 367. "One such principle is that '[e]quity aids the diligent and not those who slumber on their rights.'" Rivercenter, 858 S.W.2d at 367 (quoting Callahan, 155 S.W.2d at 795). Therefore, "delay alone can provide ample ground to deny mandamus relief." In re Boehme, 256 S.W.3d 878, 887 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).
Regarding delay, various periods of delay may justify denying mandamus relief where there is no reasonable justification for the delay. See, e.g., Rivercenter, 858 S.W.2d at 367-68 (concluding that a four-month delay was sufficient to deny relief); In re Little, 998 S.W.2d 287, 290 (Tex. App.—Houston [1st Dist. 1999) (orig. proceeding) (finding that a six-month delay was sufficient to deny relief); Furr's Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex. App.—El Paso 1995, orig. proceeding) (finding that a four-month delay was sufficient to deny relief).
2. Waiver is Measured from the Initial Denial
We find the rules governing certain interlocutory appeals instructive for determining the date from which delay is measured. When a motion challenging the trial court's jurisdiction is denied and then "renewed" in a new motion raising the same grounds as the original motion, that "renewed" motion is in effect a motion to reconsider, and the denial thereof is not an appealable order. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) ("Because the City made a new argument in its amended plea to the jurisdiction, but did not assert a new ground, the amended plea was substantively a motion to reconsider the denial of its [earlier] plea. The court of appeals did not have jurisdiction to consider any part of the merits of the interlocutory appeal."); CTL/Thompson Tex., LLC v. Morrison Homes, 337 S.W.3d 437, 442 (Tex. App.—Fort Worth 2011, pet. denied); see also Gulf Energy Expl. Corp. v. Fugro Chance, Inc., No. 13-10-00686-CV, 2012 WL 601413, at *2 (Tex. App.—Corpus Christi Feb. 23, 2012, no pet.) (mem. op.). This is true even when the "renewed" motion raises an argument or cites authority that was not included in the original motion. See City of Houston, 388 S.W.3d at 667; Denton Cty. v. Huther, 43 S.W.3d 665, 667 (Tex. App.—Fort Worth 2001, no pet.) ("The mere fact that the motion cites additional authority in support of Appellants' plea to the jurisdiction that was not included in the plea to the jurisdiction when it was first presented to the trial court, did not transform the motion into a second, separate and distinct plea to the jurisdiction.").
These rules governing our jurisdiction over certain interlocutory appeals compliment the rule that mandamus is typically unavailable to contest the failure to reconsider a prior ruling because courts are not required to reconsider prior rulings; therefore, it is not an abuse of discretion to refuse such motions for reconsideration. See In re GreatAm. Leasing Corp., 294 S.W.3d 912, 915 n. 2 (Tex. App.—Corpus Christi 2009, orig. proceeding); Elec. Data Sys. Corp. v. Tyson, 862 S.W.2d 728, 736-37 n. 5 (Tex. App—Dallas 1993, orig. proceeding); J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Whittington, 843 S.W.2d 77, 86-87 n.9 (Tex. App.—Dallas 1992, orig. proceeding); see also In re Prima Ins. Co., No. 13-14-00490-CV, 2014 WL 5314514 at *3, n.3 (Tex. App.—Corpus Christi Oct. 16, 2014, orig. proceeding) (mem. op.) (focusing review on the trial court's denial of the motion to dismiss not the denial of the motion to reconsider).
3. Analysis
Relators' petition for writ of mandamus is less than forthcoming regarding the procedural history of Saldivar's repeated requests for leave to designate Salinas a responsible third party. We do not have Saldivar's initial, April 25, 2017, motion for leave to designate Salinas as a responsible third party. However, the July 28, 2017 order denying this motion for leave provides:
The only reference in relators' petition for writ of mandamus to the initial and first amended motions for leave is in a footnote.
BE IT REMEMBERED that on the 14th day of June, 2017, came on to be heard DEFENDANT OSCAR SALDIVAR'S MOTION FOR LEAVE TO DESIGNATE JOSEPH SALINAS AS A RESPONSIBLE THIRD PARTY, urged herein by [Saldivar] in the above-entitled and numbered cause, and came the parties by and through their attorneys of record, and the Court having read the Motion and heard the arguments of counsel, was of the opinion that said DEFENDANT OSCAR SALDIVAR'S MOTION FOR LEAVE TO DESIGNATE JOSEPH SALINAS AS A RESPONSIBLE THIRD PARTY is hereby DENIED.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that DEFENDANT OSCAR SALDIVAR'S MOTION FOR LEAVE TO DESIGNATE JOSEPH SALINAS AS A RESPONSIBLE THIRD PARTY is hereby DENIED.
This order provides for an outright denial and it does not allow any opportunity for Saldivar to replead. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(g). The August 24, 2017 order denying the first amended motion for leave and the October 3, 2017 order denying the second amended motion for leave are identical except for the title of the motion for leave being denied.
From the mandamus record before us, Saldivar's initial, amended, and second amended motions for leave sought the same relief—designation of Salinas a responsible third party—and ended in the same result—outright denial. The order denying Saldivar's second amended motion for leave may, at most, be categorized as either a reurged or renewed motion for leave or a motion to reconsider the August 24, 2017 denial order. See TEX. R. CIV. P. 71 (directing that the determination of the nature of a document is made by not looking solely at its title but also considering the substance of the pleas for relief); see also City of Houston, 388 S.W.3d at 667. As such, it is the type of order for which mandamus relief is generally unavailable, see In re GreatAm. Leasing Corp., 294 S.W.3d at 915 n. 2, and it may not freshen up a stale denial order. See City of Houston, 388 S.W.3d at 667; see also In re GreatAm. Leasing Corp., 294 S.W.3d at 915 n. 2.
The trial court's initial denial of Saldivar's request for leave to designate Salinas as a responsible third party came on July 28, 2017. On November 21, 2017, approximately four months since the July 28, 2017 order denying Saldivar's initial motion for leave, relators filed the instant petition for writ of mandamus. The following day, the Wednesday before Thanksgiving, relators filed an opposed emergency motion for temporary relief and the mandamus record. In light of the Thanksgiving holiday, the delays on relators' part are squarely within the four-month delay for which waiver of mandamus relief has been found by the Texas Supreme Court and at least one of our sister courts. See, e.g., Rivercenter, 858 S.W.2d at 367-68 (concluding that a four- month delay was sufficient to deny relief); Furr's Supermarkets, Inc., 897 S.W.2d at 443 (finding that a four-month delay was sufficient to deny relief). Relators do not provide any reason for such delays.
We again note that the docket sheet indicates that this order was signed on June 15, 2017. We also again note that relators have not provided us with any reporter's record, including the reporter's record from the June 14, 2017 hearing.
Thus, even assuming relators seek mandamus relief from the July 28, 2017 order denying Saldivar's initial motion for leave to designate Salinas, we conclude, without addressing the merits of relators' first issue, that relators waived through delay their right to pursue mandamus relief of the trial court's denial of Saldivar's motion for leave to designate Salinas as a responsible third party. Relators' first issue is overruled.
B. Continuance
Generally, the denial of a motion for continuance is an incidental trial ruling that is ordinarily not reviewable by mandamus. See In re Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007) (orig. proceeding); Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997) (orig. proceeding). Nevertheless, under extraordinary circumstances, a trial court may abuse its discretion by refusing to grant a continuance. See Gen. Motors Corp., 951 S.W.2d at 477. For instance, mandamus may be appropriate if a defendant has been denied a reasonable opportunity to develop the merits of its defense, see Gen. Motors Corp. v. Tanner, 892 S.W.2d 862, 863 (Tex. 1995) (per curiam) (orig. proceeding), or where the trial court disallows discovery that cannot be made a part of the appellate record, effectively precluding review of the trial court's error. Walker, 827 S.W.2d at 843.
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relators have not shown themselves entitled to the relief sought in their second issue. Accordingly, relators' second issue is overruled.
III. CONCLUSION
Having fully considered relators' petition for writ of mandamus, the record documents provided to us by them, and the applicable law, we conclude that relators are not entitled to the relief sought. Accordingly, the petition for writ of mandamus and opposed emergency motion for temporary relief are DENIED. See TEX. R. APP. P. 52.8(a).
LETICIA HINOJOSA
Justice Delivered and filed the 28th day of November, 2017.