Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 4, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-09-00105-CV
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IN RE INVESTMENT CAPITAL CORPORATION AND SERVICE CORPORATION INTERNATIONAL, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On January 23, 2009, relators Investment Capital Corporation (ICC) and Service Corporation International (SCI) filed a petition for writ of mandamus in this court. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable Kathleen Stone, presiding judge of the Probate Court No. 1 of Harris County to grant leave to designate a responsible third party under section 33.04 of the Texas Civil Practice and Remedies Code.
On December 9, 2006, Harold Israel fell from a floor in the parking garage owned and maintained by SCI Funeral & Cemetary Purchasing Cooperative, Inc. (SCI Funeral). ICC owns the adjacent office building and SCI is the parent corporation of both ICC and SCI Funeral. Israel suffered fatal injuries, and on May 24, 2007, his widow (plaintiff) filed a wrongful death suit alleging negligence, gross negligence, and premises liability against ICC, SCI, and SCI Funeral.
On November 10, 2008, SCI Funeral filed a motion for summary judgment seeking summary judgment on the grounds that there was no evidence that SCI Funeral was grossly negligent. SCI Funeral alleged that because it was Israel=s employer, under the Workers= Compensation Act, SCI Funeral=s potential liability was only for punitive damages. See Tex. Lab. Code Ann. ' 408.001(b). Because there was no evidence of gross negligence, SCI Funeral alleged it could not be held liable for punitive damages. On December 15, 2008, the plaintiff filed her first amended petition in which she alleged negligence claims against ICC and SCI and gross negligence claims only against SCI Funeral. On December 16, 2008, the trial court granted summary judgment for SCI Funeral and dismissed it from the suit. Two days later, on December 18, 2008, relators moved for leave to designate SCI Funeral as a responsible third party under section 33.04 of the Civil Practice and Remedies Code.
A trier of fact, as to each cause of action, is required to 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 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 33.003(a). AResponsible third party@ is defined to mean Aany person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.@ Tex. Civ. Prac. & Rem. Code Ann. ' 33.011(6). 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. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to permit the motion to be filed at a later date. Tex. Civ. Prac. & Rem. Code Ann. ' 33.004(a). Relators requested leave to shorten the time to designate a responsible third party because they filed their motion within 60 days of trial. On December 30, 2008, the trial court denied relators= motion. Relator complains of that denial by filing this petition for writ of mandamus.
Relators are not entitled to mandamus relief because they have an adequate remedy at law. Relators argue that the trial court=s abuse of discretion will require an appellate court to reverse any judgment against them and will result in a waste of judicial resources. In asserting they have no adequate remedy at law, relators rely on this court=s opinion in In re Arthur Andersen, 121 S.W.3d 471, 483B84 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding). In Andersen, after the collapse of Enron, investors brought claims against Andersen, Enron=s accounting firm, for fraud and misrepresentation. Id. at 474. Andersen sought joinder[1] of multiple financial institutions as responsible third parties, alleging that these institutions were responsible for the plaintiffs= injuries. Id. at 474. The trial court denied Andersen=s motion, and Andersen sought mandamus relief. Id. This court found that the trial court abused its discretion and that Andersen had no adequate remedy at law. Id. at 485B86. In the unusual circumstances of the Enron litigation, this court explained that the financial institutions= absence would Alikely profoundly affect the conduct and outcome of [the] suit in ways unlikely to be apparent in the appellate record@ and that Adue to the enormity of the facts surrounding the collapse@ of Enron, a separate suit or successful appeal would result in an Aenormous waste of resources.@ Id. at 486. Based on this enormous waste of resources, combined with the possibility that Andersen might not be able to prosecute a separate suit or a successful appeal, the court found that there was no adequate remedy at law. Id.
However, this case does not present the sort of extraordinary circumstances that justify mandamus relief. See In re Unitec Elevator Serv. Co., 178 S.W.3d 53, 63B64 (Tex. App.CHouston [1st Dist.] 2005, orig. proceeding). Whether an appellate remedy is adequate depends heavily upon the circumstances presented. See In re Prudential Ins. Co., 148 S.W.3d 124, 137 (Tex. 2004) (orig. proceeding). In this case, unlike Andersen, the facts are relatively straightforward and the trial court=s error, if any, can be corrected through the regular appellate process. The additional expense and effort of preparing for and participating in two separate trials does not, standing alone, justify mandamus relief. Andersen, 121 S.W.3d at 486. This court has previously determined that permitting mandamus relief in cases such as this one would increase the expense and delay of civil litigation by enabling parties to pursue extraordinary relief in all cases, whether exceptional or not. In re Wilkerson, 14-08-00376-CV, 2008 WL 2777418 (Tex. App.CHouston [14th Dist.] 2008, orig. proceeding) (memo op.). Therefore, relators have an adequate remedy at law with respect to the trial court=s denial of their motion for leave to designate SCI Funeral as a responsible third party.
Relators have not established their entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relators= petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
[1]Andersen sought joinder under a prior version of section 33.04, not applicable to this case, which required joinder rather than designation.