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In re Saldivar

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 28, 2017

IN RE OSCAR SALDIVAR; INNOVATIVE BLOCK OF SOUTH TEXAS, LTD.; AND INNOVATIVE SUPPLY, L.L.C.

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA JUSTICE [1]

         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.[2]

         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]: (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.

         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.[4]

         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 ...


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