Lawrence T. Flack v. Dan H. Hanke and the Hanke Group, P.C., F/K/A Hanke, Green and Stein, Cox Smith Matthews Incorporated, F/K/A Cox & Smith and F/K/A Matthews & Branscomb John D. Fisch Mary Potter Langley & Banack Incorporated A/K/A Langley & Banack, Inc.

OPINION
No. 04-08-00177-CV

Lawrence T. FLACK,
Appellant

v.

Dan H. HANKE and the Hanke Group, P.C., f/k/a Hanke, Green and Stein, Cox Smith
Matthews Incorporated, f/k/a Cox & Smith and f/k/a Matthews & Branscomb;
John D. Fisch; Mary Potter; Langley & Banack Incorporated a/k/a Langley & Banack, Inc.;
Steven R. Brook; and David S. Gragg,
Appellees

From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-12037
Honorable Lori Massey, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice

Delivered and Filed: October 13, 2010

REVERSED AND REMANDED

The following motions are denied: (1) Appellees John D. Fisch and Mary M. Potter’s

Motion for Rehearing; (2) Appellees John D. Fisch and Mary M. Potter’s Motion for En Banc

Reconsideration; (3) Langley & Banack, Incorporated a/k/a Langley & Banack, Inc., Steven R.

Brook and David S. Gragg’s Motion for Rehearing; (4) Langley & Banack, Incorporated a/k/a

Langley & Banack, Inc., Steven R. Brook and David S. Gragg’s Motion for Rehearing En Banc;
 04-08-00177-CV

and (5) Motion for Rehearing of Cox Smith Matthews Incorporated. This court’s opinion and

judgment dated May 27, 2009, are withdrawn, and this opinion and judgment are substituted. We

substitute this opinion to clarify our analysis and to address the argument relating to the alleged

retroactive application of the 2003 amendments to section 33.004(e).

This appeal stems from a summary judgment in favor of, and an order striking the

designation of, Steven R. Brook, David S. Gragg, and Langley & Banack, Incorporated a/k/a

Langley & Banack, Inc. and Cox Smith Matthews Incorporated f/k/a Cox & Smith and f/k/a

Matthews & Branscomb, John D. Fisch and Mary M. Potter as responsible third parties. Appellant

Lawrence T. Flack asserts the trial court erred in granting: (1) summary judgment in favor of the

appellees, and (2) Langley & Banack’s motion to strike its designation as a responsible third party.

We reverse the judgment of the trial court and remand this matter for further proceedings

consistent with this opinion.

FACTUAL BACKGROUND

Appellant Flack hired Dan H. Hanke and the Hanke Group, P.C., f/k/a Hanke, Green, and

Stein (collectively Hanke) to create an employee stock ownership plan (ESOP) in Flack Interiors

and to sell Flack’s stock in the business to the ESOP. The stock plan subsequently purchased

Flack’s stock with loans from Frost National Bank, but Flack Interior’s poor financial performance

quickly caused Frost to demand that the loans be restructured. In April of 2000, Flack purchased

the restructured loans from Frost and became the business’s primary lender.

Upon the advice of Hanke, Flack then hired Langley & Banack, Incorporated, along with

attorneys Steven R. Brook and David S. Gragg, (collectively Langley & Banack) to represent

Flack in connection with Flack Interior’s 2004–2005 bankruptcy proceeding. On February 7,

2005, the bankruptcy court approved a settlement agreement resolving Flack’s claims regarding his

-2-
 04-08-00177-CV

financial dealings with the ESOP. A few months later, Flack sued Hanke for negligent advice

regarding the creation of the ESOP and the restructuring of the loans. More than two years later,

Flack joined Langley & Banack in the suit. Flack asserted that he suffered a monetary loss due to

Langley & Banack’s failure to maximize collateral in the bankruptcy.

In June 2004, on Hanke’s advice, Flack hired Cox Smith Matthews Incorporated f/k/a Cox

& Smith and f/k/a Matthews & Branscomb, including attorneys John D. Fisch and Mary M. Potter,

(collectively Cox Smith) for advice regarding Flack’s sale of the business, the ESOP, and the

loans. More than two years following the initial suit against Hanke, Flack also joined Cox Smith

in the lawsuit.

PROCEDURAL HISTORY

Flack filed suit against Hanke on July 26, 2005, alleging breach of fiduciary duties,

negligence, and violation of the Texas Deceptive Trade Practices Act in connection with the sale

of his stock in Flack Interiors, Inc. and certain real property. In July 2007, Flack reached a

settlement agreement with Hanke which required Hanke to agree to a new trial setting and to

designate both Langley & Banack and Cox Smith (jointly Appellees) as responsible third parties

(RTPs). In short, through the settlement agreement, Flack and Hanke agreed: (1) to amend the

scheduling order because the deadline to add new parties had passed; (2) Hanke would file a

designation of RTPs and secure an agreed order granting the designation; (3) Flack would file a

motion to join the RTPs as defendants and secure an order granting the joinder; and (4) the parties

would file a motion to dismiss Hanke and secure an order of dismissal. Moreover, each step was

to be completed in accordance with a timeline provided in the settlement documents. Attached to

the agreement were the necessary pleadings to effectuate the settlement, signed by the parties, and

ready to be filed in keeping with the timetable.

-3-
 04-08-00177-CV

In accordance with the settlement agreement, on July 27, 2007, Hanke filed Defendants’

Motion for Leave to Designate Responsible Third Parties pursuant to Texas Civil Practice and

Remedies Code section 33.004. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (West 2008).

The trial court granted the motion and approved the designation pursuant to an agreed order.

Shortly thereafter, Flack and Hanke filed an Agreed Motion to Add Third Parties, also signed by

the trial court, joining each of the Appellees as defendants. On August 1, 2007, the trial court

signed an agreed order dismissing Flack’s claims against Hanke pursuant to a previously executed

compromise and settlement agreement between the parties. The following day, Flack filed

Plaintiff’s Second Amended Original Petition asserting claims of negligence and breaches of

fiduciary duty against the Appellees.

Each of the Appellees subsequently filed a general denial and affirmative defenses

including a limitations defense. Additionally, all of the Appellees filed traditional motions for

partial summary judgment based on limitations, and Langley & Banack filed a motion to strike its

designation as a responsible third party. On February 21, 2008, the trial court considered and

granted summary judgment in favor of Appellees based on limitations and granted Langley &

Banack’s motion to strike. The trial court entered final judgment on February 22, 2008. To

understand Flack’s objections to the trial court’s judgment, a brief review of section 33.004 of the

Civil Practice and Remedies Code is necessary.

TEXAS CIVIL AND PRACTICE REMEDIES CODE CHAPTER 33

In 2003, the Texas Legislature revised the Texas Civil Practice and Remedies Code to

change from a joinder procedure to a designation procedure for inclusion of responsible third

parties in the apportionment of responsibility. See Act of June 2, 2003, 78th Leg., R.S., ch. 204,

§§ 4.02–.04, secs. 33.003–.004, 2003 Tex. Gen. Laws 847, 855-56 (codified at TEX. CIV. PRAC. &

-4-
 04-08-00177-CV

REM. CODE ANN. §§ 33.003S.004) (West 2008)). The 2003 amendments to section 33.004

significantly changed the procedures for apportioning responsibility to third parties. See TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(a), (h) (West 2008).

After the 2003 amendments became effective, the defendant need only file a motion for

leave to designate an RTP sixty days prior to trial and, absent objection by another party, the trial

court must grant leave to designate the RTP. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a), (f)

(West 2008). The granting of leave to designate an RTP does not, absent joinder as a defendant,

impose liability on the RTP and may not be used in other proceedings on the basis of res judicata

or collateral estoppel. Id. § 33.004(i). Additionally, the statute allows parties who could never

have been sued, as well as unknown parties, to be designated as RTPs. Id. § 33.004(i), (j), (k).

The statute further provides that joinder is not prohibited “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.” Id. § 33.004(e).

Although generally regarded as a defense-oriented statute, plaintiffs benefit from Section

33.004’s erosion of the limitations defense. See id. § 33.004(e). Section 33.004(e) creates the

potential to revive otherwise barred claims against a designated RTP. This procedure may result in

the plaintiff collaborating with a defendant to join additional tortfeasors. For example, section

33.004(e) allows a plaintiff to sue a defendant with little or no liability, and that defendant may

then designate the true tortfeasor as an RTP. Id. The plaintiff subsequently may join the true

tortfeasor, avoid a limitations defense, and nonsuit the original defendant. Id.; see also Gregory J.

Lensing, Proportionate Responsibility and Contribution Before and After the Tort Reform of 2003,

35 TEX. TECH L. REV. 1125, 1182 (2004) (“A plaintiff who misses limitations as to one joint

tortfeasor can easily suggest to another joint tortfeasor that it should invoke the responsible-third-

-5-
 04-08-00177-CV

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.”).

Finally, although Chapter 33 provides for the liberal designation of RTPs, the chapter

allows a party to challenge the sufficiency of the evidence supporting the designation of an RTP.

The trial court must grant a party’s motion to strike the designation of an RTP unless the defendant

produces sufficient evidence to raise a genuine issue of fact as to the RTP’s responsibility. TEX.

CIV. PRAC. & REM. CODE ANN. § 33.004(l) (West 2008).

MOTIONS FOR SUMMARY JUDGMENT

All of the Appellees filed traditional motions for summary judgment urging the two-year

statute of limitations barred Flack’s recovery. In response to Flack’s assertion that section

33.004(e) defeated their limitations defense, Appellees urged they were improperly joined.

A. Standard of Review

The standard of review for a traditional summary judgment is well established: (1) the

movant must show “that there is no genuine issue of material fact and that it is entitled to judgment

as a matter of law; (2) [i]n deciding whether there is a disputed material fact issue precluding

summary judgment,” the court must take “evidence favorable to the non-movant . . . as true”; and

(3) the court must indulge every reasonable inference in favor of the non-movant and resolve any

doubts in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.

1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material

fact on each challenged element. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

Additionally, a “defendant moving for summary judgment on an affirmative defense has the

burden to conclusively establish that defense.” Long Distance Int’l, Inc. v. Telefonos de Mex., S.A.

de C.V., 49 S.W.3d 347, 350–51 (Tex. 2001).

-6-
 04-08-00177-CV

B. Grounds for Summary Judgment

The motions for summary judgment were all based, in part, on the affirmative defense of

limitations. Appellees assert that Flack’s claims of negligence are barred by the two-year statute

of limitations because the claims were filed approximately three years after the day the cause of

action accrued. 1 “The statute of limitations on professional negligence claims against lawyers is

two years.” Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied);

accord TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2002); Parsons v. Turley, 109

S.W.3d 804, 807 (Tex. App.—Dallas 2003, pet. denied). Therefore, Appellees argue that Flack, as

the non-movant, was required to bring forth evidence raising a fact issue as to whether the statute

of limitations should apply. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2002);

Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.—Corpus Christi 1991, writ

denied). Flack responds that section 33.004(e) of the Civil Practice and Remedies Code defeats

Appellees’ limitations claim. We agree.

1. Timeliness

The claims against Appellees were timely filed in accordance with section 33.004(e) of the

Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e) (West

2008). Section 33.004(e) provides:

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.

Id. Here, the claims were timely because Appellees were joined as defendants within sixty days of

Hanke’s designation of Appellees as responsible third parties.

1
Appellees further argued that Flack and Hanke were perpetrating a fraud upon the court.

-7-
 04-08-00177-CV

2. Settling Persons

Appellees argue that their limitations defense is not defeated by section 33.004(e) because

Hanke was a settling party and not a defendant; therefore, his designation of RTPs was improper.

See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a) (West 2008). Flack counters that a plain

reading of the statute does not preclude such a designation and joinder. Section 33.011 provides:

(2) “Defendant” includes any person from whom, at the time of the submission of
the case to the trier of fact, a claimant seeks recovery of damages.

....

(5) “Settling person” means 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, property damage, death, or other harm
for which recovery of damages is sought.

(6) “Responsible third party” means 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 any combination of these.

Id. § 33.011(2), (5), (6); see also In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 58 (Tex.

App.—Houston [1st Dist.] 2005, no pet.). Flack contends the foregoing definitions are not

mutually exclusive.

a. Agreement to Designate RTPs

There is no question that Hanke’s designation of Appellees as RTPs, and ultimately their

joinder by Flack, was clearly part of the settlement agreement between Flack and Hanke. The case

was set for trial on November 5, 2007, and the trial court granted the Agreed Motion for Leave to

Designate Responsible Third Party pursuant to an Agreed Order on July 27, 2007, well before the

sixty-day requirement of section 33.004(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a)

(West 2008). Absent an objection by any party to the suit, the trial court was required to grant the

-8-
 04-08-00177-CV

request. Id. By granting a motion for leave to designate a person as an RTP, the person is

designated as a responsible third party without further action by the trial court or any party. Id.

§ 33.004(h); Tex. Dep’t of Pub. Safety v. Boswell, No. 13-06-327-CV, 2007 WL 2471447, at *3 n.3

(Tex. App.—Corpus Christi Aug. 31, 2007, no pet.) (mem. op.).

Hanke designated Appellees as RTPs after Flack’s claims against each of the Appellees

would have been barred by limitations. After a defendant designates an RTP, section 33.004(e)

allows the plaintiff to join the RTPs, regardless of limitations. See TEX. CIV. PRAC. & REM. CODE

ANN. § 33.004(e) (West 2008); id. § 16.003(a) (West 2002) (establishing a two-year limitations

period for various causes of action). We must, therefore, determine whether Hanke was a

defendant when the RTP designation was made.

b. Effect of Settlement on Hanke’s Status in the Suit

Flack and Hanke signed the settlement agreement on July 23, 2007, four days before the

trial court’s order designating RTPs. Based on the signed settlement agreement, at the time of the

designation, Hanke was clearly a settling person under section 33.011. See TEX. CIV. PRAC. &

REM. CODE ANN. § 33.011 (West 2008). Nothing in Chapter 33, however, precludes a party from

being both a defendant and a settling person, and Appellees have not provided any authority to the

contrary. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 33 (West 2008); Kimbrell v. Molinet, No.

04-08-00379-CV, 2008 WL 5423131, at *3 (Tex. App.—San Antonio Dec. 31, 2008, pet. granted)

(mem. op.) (Simmons, J., concurring). As such, because Flack had neither filed, nor taken, a

nonsuit against Hanke, Hanke was both a settling person and a defendant under section 33.011.

Hanke was still a defendant at the time Appellees were designated as RTPs, and summary

judgment cannot be sustained based on limitations. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004 (West 2008).

-9-
 04-08-00177-CV

3. Pleading Requirements within Section 33.004

Appellees Fisch and Potter next argue that Hanke’s motion to designate RTPs did not meet

the pleading requirements implicit in the statute. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004(f) (West 2008). 2 No party, however, filed an objection in accordance with section

33.004(f). See id. (“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.”). Absent a timely objection, Fisch and Potter waived any objection

to Hanke’s motion for leave to designate RTPs. Thus, the trial court’s grant of summary judgment

in favor of Fisch and Potter cannot be sustained based on insufficient pleading.

4. Unconstitutional Retroactive Application of Section 33.004(e)

As Appellees point out, it well-settled law that the non-movant is required to negate on

appeal any grounds upon which the trial court could have rendered judgment. See Malooly Bros.,

Inc. v. Napier, 461 S. W. 2d 119, 121 (Tex. 1970); Villanueva v. Gonzalez, 123 S.W.3d 461, 464

(Tex. App.—San Antonio 2003, no pet.). Absent such action by the non-movant, an appellate

court will affirm the summary judgment if any one of the theories advanced is meritorious. Carr v.

Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We therefore must address whether in his original

briefing Flack failed to address the summary judgment ground relating to the unconstitutionality of

the retroactive application of section 33.004(e). More specifically, the summary judgment

argument that any claims that Flack may have had against Fisch and Potter were already barred by

the statute of limitations before the 2003 amendments took effect.

2
Fisch and Potter contend that sections 33.004(g)(1) and (2) imply a pleading requirement because the trial court may
refuse to grant leave to designate an RTP if the “defendant failed to plead sufficient facts concerning the alleged
responsibility of the person.” However, we note section 33.004(g) is predicated on “an objection to the motion for
leave [being] timely filed.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (West 2008).

-10-
 04-08-00177-CV

An appellate court is required to construe a party’s brief liberally. TEX. R. APP. P. 38.9; see

also Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); Ditta v. Conte, 298 S.W.3d 187, 189–90

(Tex. 2009) (construing petitioner’s brief liberally to contain argument that it did not expressly

contain because it contained similar and related arguments). Instead of using the term “retroactive

constitutionality” as the Appellees do, Flack couches the argument in terms of “applicability.”

Flack argues the Appellees were properly joined as defendants under section 33.004(e). Moreover,

at the beginning of Flack’s brief, he sets out the two issues raised in the summary judgment

motions as (1) the case was filed after limitations ran; and (2) “application of Texas Civil Practice

& Remedies Code § 33.004(e) to this case would violate the Texas Constitutional prohibition

against retroactive laws.” Flack further argues “the Court should have in all things denied

Defendant’s Motion for Summary Judgment.” “In order to see that ‘a just, fair[,] and equitable

adjudication of the rights of the litigants’ is obtained,” this court is mandated to broadly construe

Flack’s issues to “encompass the core question” of whether a retroactive constitutional violation

occurred. See Ditta, 298 S.W.3d at 190 (internal citations omitted). Accordingly, we conclude,

after reviewing Flack’s entire brief, the argument is preserved for appellate review.

Substantively, Appellees contend that section 33.004(e) is an unconstitutional application

of an extended limitations period in this case because their dealings with Flack were concluded

before the statute was implemented and, thus, extending the statute of limitation in this case would

be an impermissible retroactive application. See Baker Hughes, Inc. v. Keco R. & D., Inc., 12

S.W.3d 1, 4 (Tex. 1999), (reaffirming “settled law” that, “after a cause has become barred by the

statute of limitation, the defendant has a vested right to rely on such statute as a defense.”) (citing

Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490, 490 (1933)). On appeal, Appellees suggest that all

of their dealings with Flack were concluded in the 1990s, and any limitations period would have

-11-
 04-08-00177-CV

run prior to the enactment of the 2003 amendments to Chapter 33. See also Mann v. Jack Roach

Bissonnet, Inc., 623 S.W.2d 716, 718–19 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ)

(holding that legislature cannot extend limitations period for claims that are already time-barred).

Yet, in their motions for summary judgment, the Appellees concede that their dealings with Flack

continued until as late as June of 2004, when the bankruptcy was filed. There is no other date

relied upon in their motion for summary judgment. See In re A.D., 73 S.W.3d 244, 247–49 (Tex.

2002) (holding that statute would be an unconstitutional, retroactive law if it destroyed a vested

right by eliminating a matured statute-of-limitations defense, but concluding that statute in

question did not do so). Accordingly, because Appellees’ pleadings before the trial court support

that Flack’s claims arose after the enactment of the 2003 amendments to Chapter 33, we conclude

that the trial court erred in granting the motion for summary judgment based on retroactive

application. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (West 2008).

5. Public Policy

Appellees additionally argue that they were designated as RTPs solely to “try and wash out

their limitations defense.” 3 Although this appears to be true, the statute does not specifically

preclude such designations based on the intent of the designor. See id. § 33.004. Appellees further

assert their designations as RTPs were unrelated to the purpose of section 33.004 and were nothing

more than an attempt to manipulate the process and circumvent statutory limitations. More

specifically, Cox Smith points out that Flack’s and Hanke’s settlement did not resolve the

litigation, but actually promoted a brand new suit against the lawyers. See Elbaor v. Smith, 845

S.W.2d 240, 250 (Tex. 1992) (“[W]e do not favor settlement arrangements that skew the trial

process, mislead the jury, promote unethical collusion among nominal adversaries, and create the

3
This argument is contained in Langley & Banack’s motion for summary judgment that was adopted by the other
appellees.

-12-
 04-08-00177-CV

likelihood that a less culpable defendant will be hit with the full judgment.”). However, because

Hanke was both a settling party and a defendant in Flack’s lawsuit, the designations were proper

under Chapter 33. Thus, the trial court had no discretion to deny the designation of Appellees as

responsible third parties under the statute.

Accordingly, because section 33.004 provides that a properly designated responsible third

party may be joined regardless of limitations, the trial court erred in granting the motions for

partial summary judgment based on limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004

(West 2008).

MOTION TO STRIKE DESIGNATION OF RESPONSIBLE THIRD PARTIES

In addition to its motion for summary judgment, the trial court also granted Langley &

Banack’s Motion to Strike Responsible Third Parties. 4 Langley & Banack claim that it was not a

proper RTP because it was not responsible for a portion of the injury or damage resulting from

Hanke’s poor advice. Furthermore, the statute requires “a defendant [to] produce[] sufficient

evidence to raise a genuine issue of fact regarding the designated person’s responsibility,” Id., and

Hanke was no longer in the case to present evidence. Thus, Langley & Banack contend that under

section 33.004(l), the motion to strike was properly granted because there was no evidence

produced that Langley & Banack was responsible for a portion of Flack’s alleged injury or

damage.

Flack responds that Langley & Banack’s motion to strike became moot when Langley &

Banack was joined as a defendant and lost its status as an RTP. Once Langley & Banack was

4
Although Appellees Cox Smith and Appellees Fisch and Potter argue the trial court properly granted the motion to
strike, only Langley & Banack filed a motion to strike in the trial court. Therefore, any issue raised or briefed by Cox
Smith or Fisch and Potter relating to the motion to strike their designation as responsible third parties was not
preserved for appeal. See TEX. R. APP. P. 33.1(a) (“[T]he record must show that . . . the complaint was made to the
trial court by a timely request, objection, or motion . . . .”).

-13-
 04-08-00177-CV

joined in the suit, it could only contest its status as a defendant—not its prior designation as an

RTP.

A. Standard of Review

According to section 33.004(l), the movant has the burden to show there is no genuine

issue of material fact regarding the designated person’s responsibility for the claimant’s injury.

Whether the proof establishes as a matter of law that there is no genuine issue of fact is a question

of law reviewed de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)

(citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)) (reviewing

a summary judgment de novo); see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004) (“[W]hether undisputed evidence of jurisdictional facts establishes . . .

jurisdiction is . . . a question of law.”).

B. Analysis

This is a case of first impression. The parties have cited no authority for their arguments,

and our search has likewise yielded no results. We, therefore, turn to the plain meaning of the

statute. Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768–69 (Tex. 2000). In

construing the statute, we look to the plain meaning of the words used in the statute in our “attempt

to give effect to the Legislature’s intent.” Id. Moreover, “[w]e read every word, phrase, and

expression in a statute as if it were deliberately chosen, and presume the words excluded from the

statute are done so purposefully.” USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d

491, 494 (Tex. App.—Austin 2004, pet. denied); see also Cities of Austin, Dallas, Fort Worth, &

Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002) (reiterating that an appellate court

begins with the words used by the Legislature).

-14-
 04-08-00177-CV

Section 33.004(l) provides:

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.
The court shall grant the motion to strike 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(l). The statute anticipates that a party may move to

strike the designation of an RTP. Generally, the party moving to strike would be the plaintiff

seeking to remove an RTP from before the jury when there is no evidence the particular RTP bore

any responsibility for the plaintiff’s injury. 5 In response, the defendant typically would be the

party seeking to retain the RTP in the jury charge to diminish his potential liability and perhaps

eliminate any joint and several liability. Thus, to retain the RTP, the statute provides the

“defendant” must produce sufficient evidence to raise a fact issue regarding the RTP’s

responsibility to the claimant. Notably absent from section 33.004 is any method for the RTP to

object to its own designation. According to the statute, only a party may object to the designation

and move to strike the designation. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(f), (g), (l)

(West 2008). 6 With this general construct in mind, we review the parties’ differing interpretations

of the statute.

At the time Langley & Banack filed its motion to strike itself as an RTP, it was a defendant

in the lawsuit and therefore a party. But Langley & Banack was no longer an RTP, and thus, no

longer subject to being stricken under section 33.004(l). See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004(l). Langley & Banack cannot use its status as a defendant to strike its former designation
5
This is the only means available to a plaintiff to remove an objectionable RTP. Procedures such as summary
judgment are unavailable because the RTP is not a party to the suit. Notably, the plaintiff would seek to dismiss an
RTP because asking the jury to determine the RTP’s percentage of responsibility potentially diminishes the named
defendant’s percentage of fault.
6
The RTP has limited rights regarding its designation presumably because the designation or finding of fault against
the RTP does not, absent joinder as a defendant, impose liability or responsibility on the RTP and may not be used in
other proceedings. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(i).

-15-
 04-08-00177-CV

as an RTP. Such a theory would require Langley & Banack to define itself as both a defendant and

an RTP at the same time. This interpretation of the statute conflicts with its plain wording and

renders the statute unworkable. See Cities of Austin, Dallas, 92 S.W.3d at 442. As Langley &

Banack points out, in response to a motion to strike, the statute requires a defendant to produce

sufficient evidence to raise a genuine issue of fact. See TEX. CIV. PRAC. & REM. CODE ANN. §

33.004(l). Certainly, the defendant in this case would not be Hanke because he no longer was a

defendant when the motion to strike was filed. It would be illogical to assume Langley & Banack,

as a defendant, would raise an issue against the motion it filed. Such an interpretation would

permit defendants to re-litigate their designation of RTPs—which the statute does not permit.

There are other procedures available for a defendant such as Langley & Banack to assert

that there is no evidence that it “is responsible for any portion of the claimant’s alleged injury or

damage” and thereby obtain a dismissal from the suit. See id. The trial court may grant a no-

evidence summary judgment under Rule 166a(i) when there is no evidence of one or more

essential elements of a claim or defense on which an adverse party would have the burden of proof

at trial. TEX. R. CIV. P. 166a(i). The similarity in language between section 33.004(l) and a no-

evidence summary judgment is not coincidental. See Elaine A. Carlson, Tort Reform: Redefining

the Role of the Court and the Jury, 47 S. TEX. L. REV. 245, 263 (2005); Gregory J. Lensing,

Proportionate Responsibility and Contribution Before and After the Tort Reform of 2003, 35 TEX.

TECH. L. REV. 1125, 1182 (2004). As a defendant, Langley & Banack’s claim that there is no

evidence of its responsibility is not properly asserted by contesting its designation as an RTP, but

may be asserted by a no-evidence motion for summary judgment thereby requiring Flack to

present some evidence of Langley & Banack’s responsibility. See TEX. R. CIV. P. 166a(i).

-16-
 04-08-00177-CV

Accordingly, because Langley & Banack was no longer a designated RTP, but was instead

a party to the lawsuit, the trial court had no discretion but to deny Langley & Banack’s motion to

strike its designation as a responsible third party.

CONCLUSION

The motion to designate responsible third parties was timely filed by Hanke without

objection. Nothing in Chapter 33 of the Texas Civil Practice and Remedies Code prevents a party

from being both a defendant and a settling person. Thus, Hanke’s designation of Appellees as

responsible third parties was in accordance with section 33.004. See TEX. CIV. PRAC. & REM.

CODE ANN. §§ 33.004(a); 33.011 (West 2008). Because Appellees were properly designated

RTPs, Flack was not barred by limitations from joining Appellees as defendants and the trial court

erred in granting Appellees’ motions for partial summary judgment based on limitations.

Additionally, because Langley & Banack was no longer an RTP under section 33.004, but was a

defendant, the trial court erred in granting Langley & Banack’s Motion to Strike Responsible Third

Parties.

We, therefore, reverse the judgment of the trial court and remand this matter for

proceedings consistent with this opinion.

Rebecca Simmons, Justice

-17-