Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE OSCAR SALDIVAR; INNOVATIVE BLOCK OF SOUTH TEXAS, LTD.; AND INNOVATIVE SUPPLY, L.L.C.
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Contreras and Hinojosa
LETICIA HINOJOSA JUSTICE 
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.
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
Motion(s) for Leave to Designate Responsible Third
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.
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
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.
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."
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.
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
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.
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
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 ...