Court of Appeals of Texas, Ninth District, Beaumont
Submitted on October 3, 2019
Original Proceeding 60th District Court of Jefferson County,
Texas Trial Cause No. B-203, 616
McKeithen, C.J., Horton and Johnson, JJ.
Vector Contracting, Inc. ("Vector" or
"Relator") filed a petition for writ of mandamus,
in which it argues that the trial court erred in refusing to
allow it to designate a responsible third party. See
Tex. Civ. Prac. & Rem. Code Ann. § 33.004. For the
reasons explained herein, we conditionally grant Vector's
petition for writ of mandamus.
is the named defendant in a wrongful death lawsuit filed by
Timothy Dwayne Schneider, individually and o/b/o The Estate
of Clarissa Deanna Schneider, Deceased, and Karri Scott,
James White, and Margaret White ("the Schneiders").
The lawsuit arises from an automobile accident that occurred
when a vehicle driven by Jairo Avila collided with a vehicle
driven by Clarissa Schneider. According to the petition,
Clarissa Schneider was killed in the accident and her husband
Timothy Dwayne Schneider, who was riding in the back seat,
was injured in the accident. The Schneiders sued Vector
alleging that Avila was acting in the course and scope of his
employment with Vector at the time of the accident, Avila was
negligent and disregarded a stop sign, Vector is vicariously
liable for the negligence of Avila, and Vector is liable for
its own negligence in "its background check, training
and supervision of Avila and in retaining him as an employee
when they knew, or should have known, he had a propensity to
to Vector, Avila's personal insurance company has settled
the case on behalf of Avila with the Schneiders, and Vector
timely filed a motion for leave to designate Avila as a
responsible third party. The Schneiders did not file an
objection to Vector's motion to designate Avila as a
responsible third party. The trial court denied Vector's
motion and ruled that Avila's percentage of fault would
be submitted to the jury as a settling party. In its Petition
for Mandamus, Vector asserts that because the language of
section 33.004 of the Texas Civil Practice and Remedies Code
is mandatory and the Schneiders did not file an objection,
the trial judge abused his discretion by denying Vector's
motion for leave to designate Avila as a responsible third
party. Vector contends that section 33.004 of the Texas Civil
Practice and Remedies Code imposes a mandatory duty on the
trial court to grant a timely request to designate a
responsible third party when another party does not file an
objection. See Tex. Civ. Prac. & Rem. Code Ann.
§ 33.004. Vector argues that simply because Avila may
also be a settling party under section 33.003 of the Texas
Civil Practice and Remedies Code does not render section
33.004 superfluous. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 33.003, 33.004.
response to Vector's Petition for Mandamus, Schneider
argues that the question of whether Avila is called a
"settling person" or "responsible third
party" "is a distinction without a
difference[.]" According to Schneider, the Legislature
provided two mechanisms for submitting a non-party's
responsibility to the trier of fact: sections 33.003 and
33.004 of the Texas Civil Practice and Remedies Code.
Specifically, Schneider contends that while section 33.003
requires the trial court to submit a settling person's
responsibility to the jury, section 33.004 governs
responsible third parties and it "allows a designation
that can later be stricken if there is insufficient evidence
to establish liability and does not create a mandatory
submission of responsibility to the jury." According to
Schneider, once a person has been determined to be a settling
person, "any further efforts to force or prevent
submission of the settled person to the jury are moot."
Schneider characterizes this proceeding as "solely a
dispute about nomenclature" and notes that the issue of
Avila's proportionate responsibility will be submitted to
the jury because Avila is a settling party. Schneider also
argues that Vector has failed to show that it lacks an
adequate remedy on appeal.
argued in its Petition for Mandamus that Avila was not acting
in the course and scope of his employment at the time of the
accident, and Vector argues that the facts in the underlying
suit will establish that Vector has no vicarious liability
for the negligence, if any, of Avila. Vector contends that
the Schneiders "apparently believe a designation of Mr.
Avila as a responsible third party may have some bearing at
trial or on appeal after a trial on the determination of
potential vicarious liability for Relator" and
therefore "it is necessary for Relator to obtain a
designation of Mr. Avila as a responsible third party under
prevail on its petition for writ of mandamus, Vector must
demonstrate that the trial court clearly abused its
discretion and that it has no adequate appellate remedy.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135-36 (Tex. 2004) (orig. proceeding). The trial court abuses
its discretion if it fails to analyze or apply the law
correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d
400, 403 (Tex. 2007) (orig. proceeding). A trial court abuses
its discretion when its ruling is "'so arbitrary and
unreasonable as to amount to a clear and prejudicial error of
law.'" In re CSX Corp., 124 S.W.3d 149, 151
(Tex. 2003) (orig. proceeding) (per curiam) (quoting CSR
Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig.
In re Coppola, 535 S.W.3d 506 (Tex. 2017) (orig.
proceeding) (per curiam) to be instructive. In re
Coppola was a mandamus case concerning a trial
court's denial of the defendant's attempt to
designate a responsible third party. Id. at 507.
Therein, the Supreme Court concluded the trial court abused
its discretion in denying the motion and it also held the
defendant lacked an adequate remedy by appeal. Id.
at 508, 510. The Supreme Court stated that "[a]llowing 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.'" Id. at 509 (second
alteration in original) (quoting In re CVR Energy,
Inc., 500 S.W.3d 67, 81-82 (Tex. App.-Houston [1st
Dist.] 2016, orig. proceeding) (op. on reh'g). The Court
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." Id. at 510; see also In
re Dawson, 550 S.W.3d 625, 630-31 (Tex. 2018) (orig.
33.003 of the Texas Civil Practice and Remedies Code provides
that the trier of fact shall determine the percentage of
responsibility for each claimant, each defendant, each
settling person, and each responsible third party who has
been designated under section 33.004. Tex. Civ. Prac. &
Rem. Code Ann. § 33.003(a). A "settling
person" is defined as "a person who has, at any
time, paid or promised to pay money or anything of monetary
value to a claimant in consideration of potential liability
with respect to the personal injury . . . or ...