NUMBER 13-09-00564-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KATHIE KAY DILTHEY, Appellant,
v.
BALLENGER CONSTRUCTION
COMPANY, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Yanez, 1 Garza, and Benavides
Memorandum Opinion by Justice Garza
By two issues, appellant, Kathie Kay Dilthey, contends the trial court erred in
granting summary judgment in favor of appellee, Ballenger Construction Company
1
The Honorable Linda Reyna Yañez, former Justice of this Court, was a member of the panel at
the time this case was argued and submitted for decision, but did not participate in deciding the case
because her term of office expired on December 31, 2010. See TEX. R. APP. P. 41.1.
(―Ballenger‖), on the basis of limitations because: (1) her joinder of Ballenger ―was res
judicata by virtue of the trial court‘s previous orders‖ (issue one); and (2) she timely
joined Ballenger as a defendant (issue two). We affirm.
I. BACKGROUND
Dilthey filed a personal injury suit on March 24, 2008, alleging that she was
injured in a workplace accident while working for Ballenger on March 27, 2006. 2
Several defendants were named in the petition, but Ballenger was not.
On August 19, 2008, one of the defendants, Conley Lott Nichols Machinery
Company (―Conley Lott‖), filed a motion for leave to designate Ballenger as a
responsible third party pursuant to section 33.004 of the civil practice and remedies
code. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (Vernon 2008). The motion
urged the designation of Ballenger as a responsible third party on grounds that
Ballenger allegedly (1) failed to properly maintain the street sweeper involved in the
accident; and (2) failed to enforce company policies related to the use of seat belts
while the sweeper was in operation. The trial court granted Conley Lott‘s motion to
designate Ballenger as a responsible third party on August 21, 2008.
On September 9, 2008, defendant Waukesha-Pierce Industries, Inc.
(―Waukesha‖) also filed a motion to designate Ballenger as a responsible third party.
Waukesha‘s motion alleged the same failures to maintain the sweeper and enforce
company policies as alleged in Conley Lott‘s motion. The trial court granted
Waukesha‘s motion on September 19, 2008.
On March 4, 2009, Dilthey filed a motion to permit joinder of Ballenger as a
defendant. The motion attributes Dilthey‘s failure to join Ballenger earlier to the fact that
2
The two-year statute of limitations for personal injury claims expired on March 27, 2008, three
days after the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2010).
2
she was unrepresented by counsel from October 15, 2008 to March 3, 2009. Two days
later, on March 6, 2009, Conley Lott filed an amended motion to designate Ballenger as
a responsible third party, requesting that the court ―again‖ designate Ballenger pursuant
to section 33.004. See id. The amended motion asserted that ―there is doubt over
whether [Conley Lott‘s earlier motion to designate] was written and represented
correctly and done in accord with statute,‖ but did not explain the nature of the
concerns. The trial court held a hearing on March 11, 2009 on several motions,
including Dilthey‘s motion to join Ballenger and Conley Lott‘s amended motion to
designate Ballenger. At the hearing, counsel for defendant Waldon Manufacturing,
L.L.C. argued against Dilthey‘s motion to join Ballenger, asserting that Dilthey had sixty
days from the date Conley Lott‘s first motion to designate was granted—August 21,
2008—to join Ballenger, and that she had failed to do so. See id. § 33.004(e).
Dilthey‘s counsel argued that: (1) the sixty-day period from the granting of
Waukesha‘s motion to designate ―ran and expired while [Dilthey] was unrepresented‖;
and (2) the granting of Conley Lott‘s amended motion to designate ―would then start the
60-day time period all over again.‖ At the conclusion of the hearing, the trial court ruled
that it would permit Dilthey to join Ballenger as a defendant. A written order granting
Conley Lott‘s amended motion and Dilthey‘s motion to permit joinder of Ballenger
followed on March 18, 2009. On March 11, 2009 (the same day as the hearing),
Dilthey filed an amended petition naming Ballenger as a defendant.
Ballenger answered, asserting, among other arguments, the affirmative defense
of limitations. See id. § 16.003(a). Ballenger also filed a motion for summary judgment,
asserting that Dilthey‘s claims were barred by limitations as a matter of law. Ballenger
argued that, although Dilthey could have avoided the limitations bar by joining Ballenger
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within sixty days following its designation as a responsible third party, she did not do so.
See id. § 33.004(e). Ballenger argued that, whether calculated from August 21, 2008
(the date Conley Lott‘s motion to designate was granted) or September 19, 2008 (the
date Waukesha‘s motion to designate was granted), Ballenger‘s joinder on March 11,
2009 exceeded the sixty-day period following designation as provided in section
33.004(e). See id.
In her response to Ballenger‘s motion, Dilthey argued that: (1) the trial court
ruled correctly in granting Conley Lott‘s amended motion to designate and her motion to
permit joinder, and therefore, Ballenger was ―collaterally stopped from arguing
otherwise‖; and (2) the trial court‘s March 11, 2009 order granting Conley Lott‘s
amended motion opened a new sixty-day window, and she properly joined Ballenger
within the sixty-day period. Ballenger filed a reply to Dilthey‘s response, in which it
argued that it is not collaterally estopped from challenging the trial court‘s March 11
orders because Ballenger was not a party when the orders were granted.
On August 12, 2009, the trial court held a hearing on Ballenger‘s motion for
summary judgment. At the hearing, Ballenger‘s counsel argued that Dilthey‘s claims
were barred by limitations as a matter of law. Dilthey‘s counsel argued, without citation
to authority, that: (1) the trial court‘s March 11 order granting Conley Lott‘s amended
motion to designate reopened the sixty-day window to join Ballenger as a defendant;
and (2) the doctrine of collateral estoppel applied because Ballenger‘s wholly-owned
subsidiary, South Texas Trucking, was a party when the trial court‘s March 11 orders
were granted.3 At the conclusion of the hearing, the trial court asked the parties to
3
Ballenger noted to the trial court that although South Texas Trucking was named as a
defendant in the original suit, it was not a party because it was not served until April 3, 2009, almost a
month after the trial court‘s March 11, 2009 orders.
4
submit ―diagrams‖ noting the relevant dates. On September 9, 2009, the trial court
granted Ballenger‘s motion for summary judgment. This appeal ensued.
II. STANDARD OF REVIEW AND APPLICABLE LAW
―We review a trial court‘s summary judgment order concerning statutory
construction de novo.‖ Kimbrell v. Molinet, 288 S.W.3d 464, 466 (Tex. App.–San
Antonio 2008), aff’d, 54 Tex. Sup. Ct. J. 491, 2011 Tex. LEXIS 68 (Tex. Jan. 21, 2011);
see also Galbraith Eng’g v. Pochuca, 290 S.W.3d 863, 867 (Tex. 2009) (―Statutory
construction is a question of law we review de novo.‖). ―In construing statutes, our
primary objective is to give effect to the Legislature‘s intent as expressed in the statute‘s
language.‖ Galbraith, 290 S.W.3d at 867. ―If the words of a statute are clear and
unambiguous, we apply them according to their plain and common meaning.‖ Id. ―[W]e
must adopt the interpretation supported by the statute‘s plain language unless that
interpretation would lead to absurd results.‖ Ruiz v. Guerra, 293 S.W.3d 706, 712 (Tex.
App.–San Antonio 2009, no pet.) (citing Tex. Dep’t of Protective and Regulatory Servs.
v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004)). ―We also construe the
statute as a whole and will not give one provision a meaning which is out of harmony or
inconsistent with other provisions.‖ Ruiz, 293 S.W.3d at 712.
Section 33.004 of the civil practice and remedies code, titled "Designation of
Responsible Third Party," provides in relevant part:
(a) 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
allow the motion to be filed at a later date.
(b) Nothing in this section affects the third-party practice as previously
recognized in the rules and statutes of the state with regard to the
assertion by a defendant of rights to contribution or indemnity.
5
Nothing in this section affects the filing of cross-claims or
counterclaims.
....
(e) If a person is designated under this section as a responsible third
party, a claimant is not barred by limitations from seeking to join that
person, even though such joinder would otherwise be barred by
limitations, if the claimant seeks to join that person not later than 60
days after that person is designated as a responsible third party.
(f) A court 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.
....
(h) By granting a motion for leave to designate a person as a responsible
third party, the person named in the motion is designated as a
responsible third party for purposes of this chapter without further
action by the court or any party.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a), (b), (e), (f), (h).
III. ANALYSIS
A. Dilthey’s Joinder of Ballenger Was Not Governed by Res Judicata
By her first issue, Dilthey contends that the trial court‘s March 11, 2009 orders
(granting Conley Lott‘s amended motion to designate Ballenger and Dilthey‘s motion to
permit its joinder) were rendered correctly and ―[c]onsequently, the joinder of [Ballenger]
is res judicata.‖
―Res judicata bars a party from attempting to relitigate a claim or cause of action
that a competent tribunal has finally adjudicated.‖ Valverde v. Biela’s Glass &
Aluminum Prods., 293 S.W.3d 751, 755 (Tex. App.–San Antonio 2009, pet. denied).
―For res judicata to apply, the following elements must be present: (1) a prior final
judgment on the merits by a court of competent jurisdiction; (2) the same parties or
6
those in privity with them; and (3) a second action based on the same claims as were
raised or could have been raised in the first action.‖ Id.
Ballenger responds that when the March 11, 2009 orders were rendered, it was
not yet a party in the case. We agree. Ballenger was not made a party to the case until
after the trial court‘s March 11, 2009 orders. We overrule Dilthey‘s first issue.
B. Ballenger Was Not Timely Joined
By her second issue, Dilthey argues that Ballenger‘s joinder is not barred by
limitations because the granting of Conley Lott‘s amended motion to designate
Ballenger on March 11 opened a ―new‖ sixty-day window within which she could
properly join Ballenger. In her brief, Dilthey cites only the following in support: ―As one
commentator has observed, when, as in this case, a court designates a responsible
third party, a Plaintiff ‗enjoy(s) a new sixty-day window of opportunity‘ to join that party
as a defendant in the case.‖ APPELLANT‘S BRIEF at 4 (quoting Gregory J. Lensing,
Proportionate Responsibility and Contribution Before and After the Tort Reform of 2003,
35 TEX. TECH. L. REV. 1125, 1182 (2004)). We disagree that the referenced statement
supports Dilthey‘s argument.
The quotation excerpted by Dilthey is included in the following paragraph:
Very significantly, section 33.004(e) has been retained basically whole,
and it still operates as a revival statute in favor of claimants against
responsible third parties who would otherwise be protected by limitations.
The sixty-day revival period starts when the person "is designated as a
responsible third party," which apparently occurs at the time the trial court
"actually grants a motion for leave to designate a person as a responsible
third party." Because defendants can freely designate responsible third
parties up until sixty days before trial (and even thereafter on a showing of
good cause), section 33.004(e) actually represents a huge erosion of
statute of limitations defenses. A plaintiff who misses limitations as to one
joint tortfeasor can easily suggest to another joint tortfeasor that it should
invoke the responsible-third-party device—perhaps even offer that
tortfeasor some inducement to do so—and then enjoy a new sixty-day
window of opportunity to sue the responsible third party.
7
Lensing, supra, at 1182.
We do not read the paragraph to suggest, as Dilthey argues, that when a
previously-designated responsible third party is re-designated—either by the same
defendant, in an ―amended‖ motion to designate, or by a different defendant—the
plaintiff gains a new sixty-day window in which to join the previously-designated
responsible third party.
Moreover, the plain language of the statute does not support Dilthey‘s position.
Subsection (e) of section 33.004 states:
If a person is designated under this section as a responsible third party, a
claimant is not barred by limitations from seeking to join that person, even
though such joinder would otherwise be barred by limitations, if the
claimant seeks to join that person not later than 60 days after that person
is designated as a responsible third party.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e). The plain language of the statute states
that a claimant‘s sixty-day window for joinder begins when a person ―is designated as a
responsible third party.‖ Id. In addition, subsection (h) of the statute provides: ―By
granting a motion for leave to designate a person as a responsible third party, the
person named in the motion is designated as a responsible third party for purposes of
this chapter without further action by the court or any party.‖ Id. § 33.004(h).
Reading the statute in its entirety and according to its plain language, we
conclude that Ballenger was ―designated as a responsible third party‖ for purposes of
chapter 33 on August 21, 2008, when the trial court first granted Conley Lott‘s motion to
designate Ballenger. Thus, the sixty-day window to file suit without regard to limitations
expired sixty days after August 21, 2008. Dilthey did not join Ballenger within that
window. Accordingly, the trial court did not err in granting Ballenger‘s motion for
summary judgment on the basis of limitations. We overrule Dilthey‘s second issue.
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IV. CONCLUSION
We affirm the trial court‘s summary judgment in favor of Ballenger.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
10th day of February, 2011.
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