Court of Appeals of Texas, Fifth District, Dallas
Original Proceeding from the 162nd Judicial District Court
Dallas County, Texas Trial Court Cause No. DC-16-02698
Justices Bridges, Osborne, and Carlyle
L. CARLYLE JUSTICE.
underlying proceeding arises from a golf-car rollover
accident in which a nine-year-old boy was injured. The
child's parents, Tim and Jennifer Siegel, sued relator
Yamaha Golf-Car Company and other defendants. Yamaha joined a
co-defendant's motion to designate Texas Tech University
Medical Center ("UMC") as a responsible third party
based on allegations that UMC paramedics improperly intubated
the child en route to the hospital and the faulty intubation
caused the child to be deprived of oxygen for an extended
period and suffer brain damage. The trial court granted the
designation. The Siegels later moved to strike the
designation, arguing that Yamaha was required to provide
evidence that the UMC paramedics engaged in willful and
wanton negligence pursuant to Chapter 74 of the civil
practice and remedies code but failed to do so. In this
original proceeding, Yamaha complains of the trial
court's order striking the responsible third party
designation. We deny the petition.
Order Striking the Designation
7, 2018 and June 8, 2018, the trial court heard argument on
the motion to strike the responsible third party designation
and on other motions at a pre-trial hearing. On July 12, 2018,
the trial judge sent an e-mail to her court administrator. In
the e-mail, the trial judge stated that she needs "the
following orders" and then set out a two-column table
listing each motion and her ruling on each motion. The ruling
listed for the motion to strike the designation of UMC as a
responsible third party was "Granted." The court
administrator then forwarded the judge's e-mail to all
counsel of record and asked the parties to submit appropriate
orders approved as to form pursuant to the judge's
rulings set out in the judge's e-mail.
trial judge did not, however, sign a written order granting
the motion to strike the responsible third party designation
until February 11, 2019. Yamaha filed this original
proceeding on March 8, 2019. The Siegels filed a
"preliminary response" to the mandamus petition,
arguing that the petition is barred by laches.
relief is warranted when the trial court clearly abuses its
discretion and the relator has no adequate appellate remedy.
In re Coppola, 535 S.W.3d 506, 507-08 (Tex. 2017)
(orig. proceeding); In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). Mandamus is a proper remedy when a trial court
abuses its discretion by striking a responsible third party
designation. See In re Coppola, 535 S.W.3d at 508;
In re Brokers Logistics, Ltd., 320 S.W.3d 402, 409
(Tex. App.-El Paso 2010, orig. proceeding).
33.004 of the Texas Civil Practice and Remedies Code permits
a tort defendant to designate a person as a responsible third
party. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a);
The trial court may later strike the designation if, after
adequate time for discovery, no legally sufficient evidence
of responsibility exists. Id. § 33.004(1). Once
a motion to strike is filed, the trial court "shall
grant" the motion "unless a defendant produces
sufficient evidence to raise a genuine issue of fact
regarding the designated person's responsibility for the
claimant's injury or damage." Id.
"Under this standard, a defendant has the burden to
produce sufficient evidence for a reasonable jury to hold the
third party responsible for at least a portion of the
plaintiff's injury or damage." In re Enter.
Beaumont Marine W., LP, No. 09-16-00032-CV, 2016 WL
1469085, at *1 (Tex. App.-Beaumont Apr. 14, 2016, orig.
proceeding) (mem. op.) (citing In re Transit Mix Concrete
& Materials Co., No. 12-13-00364-CV, 2014 WL
1922724, at *3 (Tex. App.-Tyler May 14, 2014, orig.
proceeding) (mem. op.)). Once a party is designated as a
responsible third party, the only statutory ground for
striking the designation is that "there is no evidence
that the designated person is responsible for any portion of
the claimant's alleged injury or damage." In re
Brokers Logistics, Ltd., 320 S.W.3d at 406 (quoting Tex.
Civ. Prac. & Rem. Code Ann. § 33.004(1)).
proceeding poses two questions for the Court: whether laches
bars mandamus review, and whether the trial court abused its
discretion. Although mandamus is a legal remedy, it is
largely controlled by equitable principles, including the
concept that equity aids the diligent and not those who
slumber on their rights. Rivercenter Assocs. v.
Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Rogers v.
Ricane Enters., 772 S.W.2d 76, 80 (Tex. 1989). A delay
of only a few months can result in waiver by laches. See
Rivera, 858 S.W.2d at 366 (four months); In re
Pendragon Transp. LLC, 423 S.W.3d 537, 540 (Tex.
App.-Dallas 2014, orig. proceeding) (six month delay and
filed less than two weeks before trial); In re
Saldivar, No. 13-17-00648-CV, 2017 WL 5760319, at *6
(Tex. App.-Corpus Christi-Edinburg Nov. 28, 2017, orig.
proceeding) (relators' four-month delay in seeking relief
waived their right to pursue mandamus relief from denial of
motion for leave to designate responsible third party);
Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.
App.-Houston [14th Dist.] 1985, orig. proceeding) (four-month
delay, no explanation for delay, and filed two weeks prior to
Yamaha waited eight months after the trial court's July
12, 2018 e-mail ruling to seek mandamus relief, filed the
petition only three weeks before trial, and initially offered
no explanation for the delay. In its reply brief, Yamaha
argues that the e-mail from the court coordinator was not
sufficiently clear and specific to be reviewed by mandamus
but was, instead, simply an expression of future intent to
sign a written order. We disagree. The e-mail states
specifically that the judge had granted the motion to strike
and, as such, signing an order was merely a ministerial act.
See, e.g., Burnett v. Lunceford, 545 S.W.3d
587, 592-93 (Tex. App.- El Paso 2016, pet. denied) ("The
court's statements that each motion "is
granted" demonstrate an intent to rule as a present act,
and the request for Lundy's counsel to draft an order
does not reflect that the court intended to rule in the
future or that its rulings would not be effective until it
signed the order"); see also Greene v. State,
324 S.W.3d 276, 282-83 (Tex. App.-Austin 2010, no ...