Court of Appeals of Texas, Second District, Fort Worth
IN RE DAKOTA DIRECTIONAL DRILLING, INC. AND GABRIEL PLASCENCIA RELATORS
ORIGINAL PROCEEDING FROM CAUSE NO. 141-291040-17
SUDDERTH, CJ; GABRIEL and PITTMAN, JJ
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.
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.
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,
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.
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.
Standard of Review
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").
The Statutory Procedure for Designating Responsible Third
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 § 33.004(f)