In re Frank Coppola and Bridget Coppola, Relators
Petition for Writ of Mandamus
tort suit arising from a real-estate transaction, relators
Frank and Bridget Coppola seek mandamus relief from an order
denying leave to designate the plaintiffs' transactional
attorneys as responsible third parties. The motion to
designate, which was filed long after an initial trial date
but more than sixty days before a new trial setting, was
timely. See Tex. Civ. Prac. & Rem. Code §
33.004. Trial courts have no discretion to deny a timely
filed motion to designate absent a pleading defect and an
opportunity to cure, which did not occur here. See
id. We therefore conditionally grant the writ.
Coppolas seller-financed the sale of unimproved property to
veterinarian Nancy Adams and Adams Investment Properties, LLC
(collectively Adams). Adams intended to use the property to
build a veterinary clinic and pet boarding facility and,
before closing, confirmed with a city official that the land
was properly zoned. Adams also hired two attorneys to furnish
legal advice about the promissory note, purchase agreement,
price options, and financing.
closing, the Coppolas provided Adams with a survey showing
the property bore a 15-foot right-of-way. Adams subsequently
discovered that local ordinances require a 25-foot
right-of-way for any commercial improvement. She sued the
Coppolas for fraud and deceptive trade practices, alleging
they failed to disclose right-of-way limitations that render
the property unusable for its intended purpose.
days before the third trial setting, the Coppolas requested
leave to designate Adams's legal advisors as responsible
third parties. The Coppolas alleged the attorneys breached
their duty of care to Adams by failing to disclose the
right-of-way ordinance's effect in relation to
Adams's desired use of the property. Adams argued the
motion was untimely, failed to sufficiently plead facts
concerning the attorneys' a lleged responsibility for the
damages, and improperly sought to designate attorneys as
responsible third parties. The trial court summarily denied
the motion to designate without granting leave to replead,
and the court of appeals denied mandamus relief. No.
01-16-00614-CV, 2016 WL 4766043, at *1 (Tex. App.-Houston
[1st Dist.] Sept. 13, 2016, orig. proceeding) (mem. op.).
to certain limitations not at issue here, section 33.004 of
the Texas Civil Practice and Remedies Code 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." Tex. Civ. Prac.
& Rem. Code § 33.004(a); see id. §
33.002 (making the proportionate-responsibility statute
applicable to tort and deceptive-trade-practices claims). The
trial court "shall grant leave to designate . . . a
responsible third party" unless another party objects
within fifteen days after service. Id. §
33.004(f). Even with a timely filed objection, the court must
allow the designation unless the objecting party establishes
(1) the defendant did not plead sufficient facts concerning
the person's alleged responsibility and (2) the pleading
defect persists after an opportunity to replead. Id.
trial court may later strike the designation if, after
adequate time for discovery, no legally sufficient evidence
of responsibility exists. Id. § 33.004(1).
relief is warranted when the trial court clearly abused its
discretion and the relator has no adequate appellate remedy.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135-36 (Tex. 2004) (orig. proceeding). In this case, the
trial court erroneously denied the Coppolas' motion
because it was filed more than sixty days before the trial
setting and the trial court did not afford an opportunity to
cure any pleading deficiency. We find nothing in the
proportionate-responsibility statute supporting a
construction of section 33.004(a) as limiting the phrase
"the trial date" to an initial trial setting rather
than the trial date at the time a motion to designate is
filed. Moreover, Adams's policy arguments
notwithstanding, nothing in the proportionate-responsibility
statute precludes a party from designating an attorney as a
responsible third party. See El Paso Healthcare Sys.,
Ltd. v. Murphy, 518 S.W.3d 412, 418 (Tex. 2017)
(statutes are construed using a text-based approach that
gives effect to the plain meaning of undefined terms, within
the context of the statute as a whole, unless doing so
produces an absurd result).
on American Title Co. v. Bomac Mortgage Holdings,
LP, Adams asserts that a trial resetting does not alter
an original designation deadline absent a court order or the
parties' agreement to extend the deadline. 196 S.W.3d
903, 908-09 (Tex. App.-Dallas 2006, pet. granted, judgm't
vacated w.r.m.). Adams misconstrues Bomac's
holding. In Bomac, the motion to designate was
untimely when filed; the trial continuance occurred after the
motion was filed; the trial was continued for the
"'very limited'" purpose of allowing
additional discovery; and the scheduling order explicitly
stated that a trial continuance would not alter any deadlines
unless specifically provided by order. Id. None of
these circumstances are presented here. Bomac is
thus inapposite. Applying section 33.004(a) according to its
plain language, the Coppolas' motion to designate was
not determine whether the Coppolas pleaded sufficient facts
regarding the attorneys' alleged responsibility, because
even if a deficiency existed, the trial court lacked
discretion to deny the motion to designate without affording
them an opportunity to replead. See Tex. Civ. Prac.
& Rem. Code § 33.004(g); see also In re
Smith, 366 S.W.3d 282, 288 (Tex. App.-Dallas 2012, orig.
proceeding) ("[T]he trial judge was statutorily required
to give relators an opportunity to replead before denying
their motion, regardless of whether they made a specific
request for time to replead.").
rejoinder, Adams posits that parties are-or should
be-categorically prohibited from designating attorneys as
responsible third parties. This argument cannot be squared
with the statute's provisions. By special definition, a
"responsible third party" is "any person who
is alleged to have caused or contributed to causing in any
way the harm for which recovery of damages is sought."
Tex. Civ. Prac. & Rem. Code § 33.011(6). The statute
explicitly exempts from the definition "a seller
eligible for indemnity under Section 82.002" and no
others. Id. Even if we were to credit Adams's
speculative concerns about the possibility of collateral
disciplinary consequences, we cannot judicially amend the
statute to exempt legal professionals and must, instead,
"apply the statute as written." Lippincott v.
Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015). We further
note that Adams's policy concerns seem unfounded in light
of the statutory directive that neither a section 33.004
designation nor a finding of fault against the person
"impose[s] liability on the person." Tex. Civ.
Prac. & Rem. Code § 33.004(i). And, more to the
point, neither can "be used in any other proceeding, on
the basis of res judicata, collateral estoppel, or any other
legal theory, to impose liability on the person."
address the adequacy of an appellate remedy, an issue we have
not previously considered in the context of a section 33.004
responsible-third-party designation. Relying on the standard
articulated in In re Prudential Insurance Co. of
America, 148 S.W.3d 124 (Tex. 2004) (orig. proceeding),
however, a majority of our intermediate appellate courts have
held that when a timely filed motion to designate a
responsible third party is erroneously denied, no adequate
remedy by appeal ordinarily exists. See In re
Bustamante, 510 S.W.3d 732, 739 (Tex. App.-San Antonio
2016, orig. proceeding) (en banc) (overturning prior
precedent holding otherwise); see also In re Volv o Group
N. Am., LLC, No. 10-16-00113-CV, 2016 WL 3136354, at *2
(Tex. App.-Waco June 2, 2016, orig. proceeding) (mem. op.);
In re Greyhound Lines, Inc., No. 05-07-01646-CV,
2014 WL 1022329, at *4 (Tex. App.-Dallas Feb. 21, 2014, orig.
proceeding) (mem. op.); In re E. Rio Hondo Water Supply
Corp., No. 13-12-00528-CV, 2012 WL 5377898, at *10 (Tex.
App.-Corpus Christi Oct. 29, 2012, orig. proceeding) (mem.
op.); In re Altec Indus., Inc., No. 10-12-00207-CV,
2012 WL 2469542, at *2 (Tex. App.-Waco June 22, 2012, orig.
proceeding) (mem. op.); In re Smith, 366 S.W.3d 282,
288-89 (Tex. App.-Dallas 2012, orig. proceeding); In re
Brokers Logistics, Ltd., 320 S.W.3d 402, 408 (Tex.
App.-El Paso 2010, orig. proceeding).
Prudential, we explained that "adequate"
is merely "a proxy for the careful balance of
jurisprudential considerations that determine when appellate
courts will use original mandamus proceedings to review the
actions of lower courts" and an "adequate"
appellate remedy exists when "any benefits to mandamus
review are outweighed by the detriments." 148 S.W.3d at
136. In weighing the benefits of mandamus review, we
conclude, consistent with the weight of appellate authority,
that the benefits generally outweigh the detriments. 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 [the
relator's] defense in ways unlikely to be apparent in the
appellate record." 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 omitted,
alteration in original) (discussing and collecting
authorities weighing benefits against detriments of mandamus
review). The denial of mandamus review impairs-and
potentially denies-a litigant's significant and
substantive right to allow the fact finder to determine the
proportionate responsibility of all responsible parties.
See id. at 84 ("The denial of [a party's]
right to allow the jury to determine the proportionate
responsibility of all responsible parties is a significant
ruling and mandamus review will prevent the impairment or
loss of this substantive right."); see also In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008)
(orig. proceeding) ("The most frequent use we have made
of mandamus relief involves cases in which the very act of
proceeding to trial-regardless of the outcome-would defeat
the substantive right involved."). ...