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In re Dakota Directional Drilling, Inc.

Court of Appeals of Texas, Second District, Fort Worth

April 23, 2018

IN RE DAKOTA DIRECTIONAL DRILLING, INC. AND GABRIEL PLASCENCIA RELATORS

          ORIGINAL PROCEEDING FROM CAUSE NO. 141-291040-17

          PANEL: SUDDERTH, CJ; GABRIEL and PITTMAN, JJ

          OPINION

          MARK T PITTMAN JUSTICE

         Relators Dakota Directional Drilling, Inc. (Dakota) and Gabriel Plascencia (Plascencia) filed a petition for writ of mandamus in this court on January 3, 2018, asking us to direct Respondent, the Honorable John P. Chupp, to set aside his order of November 20, 2017 denying Relators leave to designate a responsible third party. The motion to designate was timely under the circumstances presented here. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004 (West 2015). Because 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-we conditionally grant the requested relief.

         BACKGROUND

         On March 20, 2015, Plascencia was driving a Ford F750 truck owned by Dakota while hauling a trailer and traveling southbound on the 300 block of South Beach Street in Fort Worth, Texas. Also traveling southbound on the 300 block of South Beach Street in front of Plascencia was driver Lenard Bundick. Riding with Bundick in his vehicle were Real Parties in Interest Lesli Barwick and Renaldo Cardenas (collectively, Plaintiffs). When Bundick's vehicle slowed in an attempt to make a U-turn, Plascencia's truck collided with the rear of Bundick's vehicle.

         On March 17, 2017, Plaintiffs filed their original petition suing Relators for negligently causing the accident, a mere three days prior to the running of the two-year statute of limitations for such actions. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West 2017). Bundick was not named as a defendant. On March 20, 2017, Plaintiffs filed their First Amended Petition. Citations, enclosing Plaintiffs' Original and First Amended Petitions and Requests for Disclosure, were served via certified U.S. mail on Plascencia on March 23, 2017 and on Dakota on March 30, 2017.

         Relators did not answer the lawsuit or respond to the Requests for Disclosure until August 21, 2017. In their responses to the Requests for Disclosure, Relators identified Bundick as an individual who may be designated as a responsible third party. Thirty days later, on September 21, 2017, Relators filed their Motion for Leave to Designate Responsible Third Party, naming Bundick as a responsible third party for his alleged negligence in causing or contributing to the motor vehicle accident. Plaintiffs objected to Relators' motion to designate on the sole ground that Relators' failed to timely identify Bundick as a potential responsible third party within fifty days in their responses to Plaintiffs' Requests for Disclosure that were served with the lawsuit.

         The trial court held a hearing on Plaintiffs' objection to the designation of Bundick on October 26, 2017, and the court denied the designation on the basis that Relators did not timely respond to the Requests for Disclosure. Relators seek this mandamus asserting that they have no adequate remedy by appeal to address the trial court's denial of their designation of Bundick.

         ANALYSIS

         I. Standard of Review

         Relators must demonstrate that the trial court clearly abused its discretion and that they have no adequate remedy through an appeal to prevail on their petition for writ of mandamus. In re H.E.B. Grocery Co., 492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). An abuse of discretion occurs if the trial court is shown to have failed to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Recently, the Texas Supreme Court has held that "ordinarily, a relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a trial court's denial of a timely-filed section 33.004(a) motion." In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding); see also In re United Parcel Serv., Inc., No. 09-18-00002-CV, 2018 WL 753503, at *5 (Tex. App.-Beaumont Feb. 8, 2018, orig. proceeding) (mem. op.) (where trial court abused its discretion by denying motion for leave to designate responsible third parties, there was no "adequate remedy by appeal from the trial court's error").

         II. The Statutory Procedure for Designating Responsible Third Parties

         The procedure for designating responsible third parties in tort actions is established by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Section 33.004 of the Texas Civil Practice and Remedies Code provides: "A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party." Id. § 33.004(a). Further, "[t]he motion must be filed 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. Finally, the trial "shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served." Id. at ยง 33.004(f) ...


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