Grant and Opinion Filed February 21, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01646-CV
IN RE GREYHOUND LINES, INC., FIRST GROUP AMERICA, AND MARC D.
HARRIS, Relator
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-02930
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Myers
Opinion by Justice Lang
Relators, Greyhound Lines, Inc., FirstGroup America, and Marc D. Harris, filed this
mandamus proceeding after the trial court issued an order denying relators’ motion for leave to
designate Precision Poured Walls, Inc. as a responsible third party pursuant to Section 33.004 of
the Texas Civil Practice and Remedies Code. We conditionally grant relief.
I. FACTUAL AND PROCEDURAL CONTEXT
This is a personal injury case brought by real party Kendall Jones arising from a collision
involving the bus in which Jones was a passenger and a crane truck owned and operated by
Precision Poured Walls, Inc. (“Precision”). Jones alleges that he was injured in that accident.
Jones filed suit against relators, but not against Precision. Relators, in turn, filed a motion for
leave to designate Precision a responsible third party under Texas’ proportionate responsibility
statute, Chapter 33 of the Texas Civil Practice and Remedies Code. Jones objected. The trial
court conducted a hearing and denied the motion, but granted relators leave to replead.
Relators filed an amended motion for leave to designate Precision a responsible third
party, attaching evidence in support of their motion. In their amended motion relators alleged,
among other things, the operator of the bus did not see the crane truck, the post-accident
inspection of the crane truck revealed eight violations of the Federal Motor Carrier Safety
Regulations, the operator of the crane truck was issued three citations for these violations, the
crane truck was deteriorated and dirty, the combination stop-turn tail lights on the crane truck
were obscured by oil and dirt, reducing the effectiveness of the lamps, the crane structure
completely obscured the rear marker lamps and reflectors, and the color and condition of the
crane truck in combination made the crane truck difficult to see at the early morning hour of the
accident. Based on these allegations, the amended motion asserted the crane truck was unsafe to
operate, particularly in dark conditions, Precision was negligent in the maintenance and
operation of the crane truck, and these acts and omissions were a proximate cause of the accident
in that the defect in and condition of the crane truck unreasonably diminished its visibility and
prevented the operator of the bus from being able to see and identify the crane truck prior to the
accident.
The trial court denied the second amended motion for leave to designate Precision as a
responsible third party. Relators then brought this mandamus proceeding.
II. NATURE OF THE PROPORTIONATE RESPONSIBILITY STATUTE
Under Texas’ proportionate responsibility statute, a responsible third party is “any 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
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any combination of these.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2008). The
proportionate responsibility statute provides a framework for apportioning percentages of
responsibility in the calculation of damages in any case in which more than one person, including
the plaintiff, is alleged to have caused or contributed to cause the harm for which recovery of
damages is sought. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (West 2008); JCW Elec.,
Inc. v. Garza, 257 S.W.3d 701, 702 (Tex. 2008); Challenger Gaming Solutions, Inc. v. Earp, 402
S.W.3d 290, 292-93 (Tex. App.—Dallas 2013, no pet.). The statute’s purpose is to hold each
party responsible only for the party's own conduct causing injury. Challenger Gaming Solutions,
402 S.W.3d at 292-93.
III. STANDARD FOR EVALUATING PROPOSED RESPONSIBLE THIRD PARTY
DESIGNATIONS
The pleading requirements for designating a responsible third party at the outset of a case
are not stringent. However, “as trial moves closer the requirement for sufficient evidence to
support the actual submission of a question on the responsibility of the designated third parties
becomes more demanding.” PEMEX Exploracion y Produccion v. Murphy Energy Corp., 923 F.
Supp. 2d 961, 981 (S.D. Tex. 2013) (applying Texas substantive law). At the pleading stage, the
proportionate responsibility statute requires that the defendant seeking to designate a responsible
third party “plead sufficient facts concerning the alleged responsibility of the person to satisfy
the pleading requirement of the Texas Rules of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE
ANN. §33.004(g)(2). The standard for designating a potentially responsible third party is notice
pleading under the Texas Rules of Civil Procedure. See N. Cypress Med. Ctr. Operating Co. v.
Gallagher Ben. Services, Inc., 4:11-CV-685, 2013 WL 1736764 (S.D. Tex. Apr. 22, 2013)
(applying Texas law); State Farm Lloyds v. Sunbeam Products, Inc., 4:10-CV-2575, 2011 WL
2181487 (S.D. Tex. June 2, 2011) (applying Texas law); Muniz v. T.K. Stanley, Inc., CIV.A. L-
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06-CV-126, 2007 WL 1100466 (S.D. Tex. Apr. 11, 2007) (applying Texas law); see also
Michael Hull et al., House Bill 4 and Proposition 12: An Analysis with Legislative History Part
Two: Detailed Analysis of the Civil Justice Reforms, 36 TEX. TECH L. REV. 51, 95 (2005). Under
Texas’ standards of notice pleading, the “fair notice” standard for pleading is satisfied if the
opposing party can ascertain from the pleading the nature and basic issues of the controversy,
and what type of evidence might be relevant. Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007).
“[A] petition is sufficient if a cause of action may reasonably be inferred from what is
specifically stated in the petition, ‘even if an element of the cause of action is not specifically
alleged.’” Dodd v. Savino, No. 14–12–00555–CV, 2014 WL 242881, at *11 (Tex. App.—
Houston [14th Dist.] Jan. 16, 2014, no pet. h.) (quoting Boyles v. Kerr, 855 S.W.2d 593, 601
(Tex.1993)).
In determining whether to grant a motion for leave to designate a responsible third party,
the trial court is restricted to evaluating the sufficiency of the facts pleaded by relators and is not
permitted to engage in an analysis of the truth of the allegations or consider evidence on the third
party’s ultimate liability. In re Unitec Elevator Services Co., 178 S.W.3d 53, 62 (Tex. App.—
Houston [1st Dist.] 2005, no pet.). 1 Objections to the sufficiency of the evidence against the
allegedly responsible third party are properly handled in the context of a motion to strike the
designation under Section 33.004(l), 2 a motion for summary judgment, 3 or an objection to the
1
Jones contends that relators’ proposed responsible third party designation must be evaluated under the standards of Rule 91a of the Texas
Rules of Civil Procedure, which allows a party to move to dismiss “a cause of action on the grounds that it has no basis in law or fact.” TEX. R.
CIV. P. 91a(1). By its terms, application of Rule 91a to a pleading requires a motion filed within 60 days of the first pleading containing the
challenged cause of action and at least 21 days before the motion is heard. TEX. R. CIV. P. 91a(3)(a). The record does not reflect that Jones filed a
motion under Rule 91a or that the trial court’s ruling in this case was premised on Rule 91a. Accordingly, the Court does not consider the
application of Rule 91a to the proposed responsible third party designation.
2
In re Unitec Elevator Services, 178 S.W.3d at 62 n.9 (“A party is entitled to challenge the sufficiency of evidence supporting the
designation of a responsible third party. After adequate time for discovery, a party may move to strike the designation of a responsible third party
on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage.’)
3
Flack v. Hanke, 334 S.W.3d 251, 262 (Tex. App.—San Antonio 2010, pet. denied).
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submission of a question to the jury regarding the conduct of the third party under Section
33.003(b). 4
IV. STANDARD FOR MANDAMUS RELIEF
To obtain mandamus relief, relators must show both that the trial court has clearly abused
its discretion and that they have no adequate appellate remedy. In re Prudential Ins. Co., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40
(Tex. 1992) (orig. proceeding). Whether an appellate remedy is adequate depends heavily on the
circumstances presented. In re Prudential, 148 S.W.3d at 136–37; In re Estate of Hutchins, 391
S.W.3d 578, 583 (Tex. App.—Dallas 2012, orig. proceeding). Mandamus review is not justified
simply because an appeal would arguably involve more cost or delay than mandamus. Walker,
827 S.W.2d at 842.
V. PLEADING REQUIREMENTS FOR CAUSATION
Jones contends that the trial court properly denied Greyhound’s designation of a
responsible third party because Greyhound “failed to sufficiently raise the issue of [the crane
truck operator’s] responsibility.” Jones argues that the allegation in relators’ motion for leave to
designate a responsible third party that the acts and omissions of Precision “were a proximate
cause of the accident in question” fails to satisfy the requirement of Section 33.011(6) that the
responsible third party be alleged “to have caused or contributed to causing the harm for which
recovery of damages is sought.”
4
Gardner Oil, Inc. v. Chavez, 12-10-00274-CV, 2012 WL 1623420 (Tex. App.—Tyler May 9, 2012, no pet.) (“The trial court should not
allow the submission of a question to the jury regarding conduct of a responsible third party where there is not sufficient evidence to support the
submission.”)
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Section 33.011(6) of the Texas Civil Practice and Remedies Code, defines a responsible
third party as:
[A]ny 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) (West 2008). “Harm” is not defined in
the proportionate responsibility statute.
Relators allege Precision’s negligence was the “proximate cause” of the accident. The
two elements of proximate cause are cause in fact and foreseeability. IHS Cedars Treatment Ctr.
of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2004); Ward v. ACS State &
Local Solutions, Inc., 328 S.W.3d 648, 652 (Tex. App.—Dallas 2010, no pet.). Cause in fact is
established when the act or omission was a substantial factor in bringing about the injuries
claimed, and without it, the harm would not have occurred. IHS Cedars Treatment Ctr., 143
S.W.3d at 798-99. A pleading provides fair notice if an “opposing attorney of reasonable
competence, on review of the pleadings, can ascertain the nature and basic issues of
controversy.” Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757, 766 (Tex. App. -- Dallas 2011,
no pet.). We conclude that in alleging that Precision’s acts or omissions were the “proximate
cause” of the accident, relators provided fair notice that they contend the acts or omissions of
Precision were a substantial and foreseeable factor in bringing about the injuries alleged by
Jones, and without that negligence, the harm alleged in Jones’ petition would not have occurred.
Accordingly, the trial court clearly abused its discretion in denying relators’ motion.
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VI. AVAILABILITY OF MANDAMUS RELIEF
Jones argues that even if the trial court improperly denied relators the opportunity to
designate a responsible third party, relators have an adequate remedy by appeal and are not
entitled to mandamus relief. However, this Court has stated, “An improper denial of leave to
designate a responsible third party may not be adequately addressed by appeal.” In re Oncor
Elec. Delivery Co., 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011, no pet.) Real party argues
Oncor is limited to cases in which the trial court denies leave to amend following an insufficient
first attempt to designate a responsible third party. 5 We disagree.
The proportionate responsibility statue grants parties the right to have one jury apportion
liability among all responsible parties. In re Arthur Andersen LLP, 121 S.W.3d 471, 485–86
(Tex. App.—Houston [14th Dist.] 2003, orig. proceeding [mand. denied]). Permitting a case to
proceed in the absence of a proper responsible third party “would skew the proceedings,
potentially affect the outcome of the litigation, and compromise the presentation of Relators'
defense in ways unlikely to be apparent in the appellate record.” Oncor, 355 S.W.3d at 306
(quoting In re Brokers Logistics, Ltd., 320 S.W.3d at 408). On this record, in this case, we
further conclude real party does not have an adequate remedy on appeal.
5
See, e.g., In re Smith, 366 S.W.3d 282, 289 (Tex. App.—Dallas 2012, orig. proceeding) (“[W]e conclude that In re Oncor stands for the
proposition that appeal is ordinarily an inadequate remedy when a trial judge erroneously denies a motion for leave to designate a responsible
third party without granting leave to replead.”); In re Broad, 370 S.W.3d 797, 798 (Tex. App.—Dallas 2012, orig. proceeding) (citing Oncor for
the proposition that “denying a motion for leave to designate a responsible third party without giving relator an opportunity to replead the facts
concerning that person's liability is an abuse of discretion for which there is no adequate remedy at law”).
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VII. CONCLUSION
We CONDITIONALLY GRANT the relator’s petition for writ of mandamus. A writ
will issue only in the event the trial court fails to vacate its September 25, 2013 “Order On
Defendants’ Second Amended Motion for Leave to Designate Responsible Third Party” and
issue an order granting relators leave to designate Precision a responsible third party.
131646F.P05
/Douglas S. Lang/
DOUGLAS LANG
JUSTICE
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