Opinion issued February 9, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00877-CV
———————————
IN RE CVR ENERGY, INC., CVR PARTNERS, LP, CVR REFINING, LP,
GARY-WILLIAMS ENERGY COMPANY, LLC, Relators
Original Proceeding on Petition for Writ of Mandamus
OPINION
This original proceeding concerns named defendants’ efforts to designate a
former co-defendant as a responsible third party in a wrongful death suit.1 The
plaintiffs nonsuited the former co-defendant—Wynnewood Refining Company,
LLC, which is a wholly owned subsidiary of a named defendant—less than sixty
1
The underlying case is Mann v. CVR Energy, Inc., et al., cause number 2013-
DCV-209679, pending in the 434th District Court of Fort Bend County, Texas, the
Honorable James H. Shoemake, presiding.
days before trial and after the date beyond which their claims against it would be
time-barred. The remaining defendants, Relators CVR Energy, Inc., CVR Partners,
LP, CVR Refining, LP, and Gary-Williams Energy Company, LLC, (collectively
CVR) then filed a motion to designate Wynnewood as a responsible third party,
but that motion was denied.
Relators now seek a writ of mandamus to compel the trial court to (1) vacate
its October 12, 2015 order denying CVR’s motion for leave to designate
Wynnewood as a responsible third party and (2) grant CVR’s motion for leave to
make the designation.
We conditionally grant the writ.
Background
Russell Mann and Billy Smith were killed in a September 28, 2012
explosion at the Wynnewood refinery. According to the Fourth Amended Petition
filed by their wives (the live petition at the time of CVR’s motion), the explosion
occurred when Mann and Smith were assisting in an effort to “re-start” the pilot
light in a large “outdated and archaic” boiler. They were both employed by
Wynnewood. Wynnewood is a wholly-owned subsidiary of CVR Refining, which
was, at the time of the accident, a wholly-owned subsidiary of CVR Energy, Inc.
According to Plaintiff’s petition, the boiler “had to be re-started manually
because it was not equipped with a Boiler Management System (BMS)” to permit
2
an operator to re-start it “from a safe and remote site.” They were both, therefore,
very close to the boiler when it exploded—Smith inches and Mann a few feet
away. Furthermore, the boiler was not equipped with “gas-flowing gauges or any
device to advise how much gas was entering this chamber.” “Wynnewood received
several proposals” for a BMS for the boiler but rejected them all. Wynnewood, and
later CVR, “had actual knowledge of prior detonations” of the boiler that injured
workers. Finally, Plaintiff’s petition alleged that Wynnewood was “rife with
dangerous conditions and working conditions,” resulting in numerous
Occupational Safety and Health Administration (OSHA) violations.
The refinery was originally owned by Gary-Williams Energy Co., LLC. In
2011, CVR Refining purchased the refinery from Gary-Williams. Thus, CVR
became the premises owner. According to CVR, Wynnewood employed Mann and
Smith and, on the day of the explosion, it was Wynnewood employees “who tasked
Smith and charged Mann” with their responsibilities.
Plaintiffs allege that CVR committed the following acts of negligence and
gross negligence: (1) failed to install a boiler management system (BMS) on the
boiler; (2) failed to install boiler management controls on all heating equipment as
ordered by OSHA; (3) failed to adequately monitor the dangerous condition of the
refinery and its boiler; (4) failed to alleviate hazardous conditions that could cause
injury or death; (5) failed to repair hazardous conditions causing injury or death,
3
including the boiler; and (6) failed to comply with OSHA directives to install a
BMS system on the boiler.
Plaintiffs’ live petition also contains numerous allegations against
Wynnewood. According to Plaintiffs, Wynnewood intentionally and willfully
committed the following acts that caused the deaths of Smith and Mann:
(1) “[r]efused to install a BMS and one-inch gas feed pursuant to a third party
engineering report;” (2) “[d]id not document that the equipment complies with
recognized and generally accepted good engineering practices;” (3) “[d]id not
ensure that written operating procedures addressed the operating limits of the
process;” (4) “[d]id not ensure the written operating procedures addressed the
consequence of deviation from the safe upper and lower limits of the
process;” (5) “[d]id not provide refresher training at least every three (3) years to
each employee involved in operating a process;” (6) “[d]id not establish and
implement written procedures to maintain the on-going mechanical integrity of
process equipment;” and (7) “[d]id not establish and implement written procedures
to manage changes to process chemicals, technology, equipment, procedures and
changes to facilities that affect a covered process.”
Plaintiffs further alleged that Wynnewood was cited by OSHA with five
violations for its actions causing the explosion. Because of Wynnewood’s past
investigation, fines, internal investigations, and investigations by third parties,
4
Plaintiffs assert that Wynnewood “had knowledge” that an explosion was
“substantially likely” to occur. According to Plaintiffs’ live petition, Wynnewood
was not entitled to immunity from liability under the Oklahoma worker’s
compensation statute because Mann and Smith were injured as a result of
Wynnewood’s willful and intentional conduct.
Plaintiffs served Rule 194 requests for disclosure on CVR while
Wynnewood was still a named defendant. Rule 194 states that a party may obtain
disclosure of identifying information for any person who may be designated as “a
responsible third party.” See TEX. R. CIV. P. 194.1, 194.2(l). When CVR
responded to Plaintiffs’ requests for disclosure on potential responsible third
parties in December 2013, it did not list co-defendant Wynnewood in its response.
Wynnewood and CVR remained as defendants through four amended
petitions, but, in April 2015, approximately 20 months after suit was filed and
55 days before trial, Plaintiffs filed a notice of nonsuit of Wynnewood and deleted
it from their Fourth Amended Original Petition. The date of nonsuit was beyond
the limitations period for a wrongful death claim against Wynnewood (except for
claims by Smith’s young son). Despite nonsuiting their claims against
Wynnewood, Plaintiffs continued to allege Wynnewood’s intentional conduct in
the body of their amended petition.
5
Twenty-six days after the notice of nonsuit, and 29 days before the then-
scheduled trial, CVR filed a motion for leave to designate Wynnewood as a
responsible third party.2 Plaintiffs objected to this motion, asserting limitations had
run on their claims against Wynnewood and the motion was untimely. The trial
court denied CVR’s motion.
Issue Presented
CVR contends the trial court abused its discretion by denying its motion for
leave to designate Wynnewood as a responsible third party because
(1) Wynnewood had been an active defendant in the case for more than 19 months,
(2) Plaintiffs nonsuited Wynnewood 55 days before the trial setting, which was
five months before the subsequent trial date,3 (3) CVR moved to designate
Wynnewood as a responsible third party less than 30 days after Plaintiffs’ nonsuit,
and (4) the evidence regarding Wynnewood’s responsibility for the accident is
inseparable from Plaintiffs’ allegations against CVR. CVR asserts that it does not
have an adequate remedy by appeal for this abuse of discretion.
2
CVR simultaneously amended its response to the request for Rule 194 disclosure
and designated Wynnewood as a responsible third party.
3
This Court granted CVR’s emergency motion to stay the underlying proceeding
and trial setting pending resolution of this petition for writ of mandamus. See TEX.
R. APP. P. 52.10.
6
Standard for Granting Mandamus Relief
To be entitled to mandamus relief, a petitioner must show both that the trial
court abused its discretion and that there is no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004). Generally, appellate courts
will hold that a trial court has abused its discretion if its actions were either
“without reference to any guiding rules and principles” or “arbitrary or
unreasonable.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). “A trial court has no discretion in determining what the law is or
applying the law to the facts, even when the law is unsettled.” In re Brokers
Logistics, Ltd., 320 S.W.3d 402, 405 (Tex. App.—El Paso 2010, orig. proceeding)
(citing Prudential, 148 S.W.3d at 135). A trial court’s clear failure to analyze or
apply the law correctly is an abuse of discretion. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).
Abuse of Discretion
A. Overview of Proportionate Responsibility Statute
Chapter 33 of the Civil Practice and Remedies Code sets out the Texas
proportionate responsibility law. TEX. CIV. PRAC. & REM. CODE ANN. § 33.001–
33.017 (West 2015). These statutes allow a tort defendant to designate as a
responsible third party a person who “is alleged to have caused in any way the
harm for which the plaintiff seeks damages.” See Jay Miller & Sundown, Inc. v.
7
Camp Dresser & McKee Inc., 381 S.W.3d 635, 638–39 (Tex. App.—San Antonio
2012, no pet.) (referring to predecessor to Subsection 33.004).
There are limitations to a defendant’s ability to designate responsible third
parties under Subsection 33.004. These limitations add “procedural safeguard[s]”
that prevent a defendant from undercutting “the plaintiff’s case by belatedly
pointing its finger at a time-barred responsible third-party against whom the
plaintiff has no possibility of recovery.” Withers v. Schneider Nat’l Carriers, Inc.,
13 F. Supp. 3d 686, 689 (E.D. Tex. 2014). The first statutory limitation is that a
defendant may not designate a responsible third party within 60 days of trial unless
the court finds good cause. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). The
second is that a defendant may be precluded from designating a responsible third
party if it had an obligation to disclose the person earlier and did not do so and the
statute of limitations has run on the plaintiff’s claim against the late-disclosed
party:
A defendant may not designate a person as a responsible third party
with respect to a claimant’s cause of action after the applicable
limitations period on the cause of action has expired with respect to
the responsible third party if the defendant has failed to comply with
its obligations, if any, to timely disclose that the person may be
designated as a responsible third party under the Texas Rules of Civil
Procedure.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d).
8
These timing limitations are part of a “statutory balance” created by the
Legislature that seeks to address a defendant’s interest in identifying nonparties
who may have some culpability while recognizing that a plaintiff has time
limitations on pursuing its claims against parties not already included in its suit.
See Withers, 13 F. Supp. 3d at 689.
Plaintiffs contend that, under the statute’s plain meaning, the trial court
correctly denied CVR’s motion to designate Wynnewood as a responsible third
party because CVR did not comply with either of these two time limitations, i.e., it
attempted to designate Wynnewood within 60 days of trial and after Plaintiffs’
statute of limitations against Wynnewood had expired.4 Plaintiffs contend that
Subsection 33.004(d) requires the trial court to deny a motion seeking to designate
a responsible third party made after limitations have run even if the party was
previously a defendant in the case. According to Plaintiffs, the proportionate
responsibility statute adopts a “bright-line, per se rule” that a defendant may not
designate a responsible third party after a plaintiff’s claims against that party are
barred by limitations.
4
No one disputes that the two-year Oklahoma statute of limitations ran on
September 28, 2014, at least as to claims the adult plaintiffs could assert against
Wynnewood.
9
But Plaintiffs’ reading of the statute ignores the limiting clause included at
the end of Subsection (d). It states that a party may not designate responsible third
parties after limitations have run “if the defendant has failed to comply with its
obligations, if any, to timely disclose that the person may be designated as a
responsible third party under the Texas Rules of Civil Procedure.” TEX. CIV. PRAC.
& REM. CODE ANN. § 33.004(d). Thus, in addressing the extent to which
Subsection (d) might prohibit CVR’s attempted designation, we must consider
whether CVR failed to comply with an existing discovery obligation to disclose
Wynnewood as a responsible third party.
CVR asserts that it did not. According to CVR, it owed no obligation to
disclose Wynnewood, under Rule 194.2(l) as a party “who may be designated as a
responsible third party,” while Wynnewood was a named party defendant.
B. Rule 194.2’s Disclosure Obligation
Rule 194.2 of the Texas Rules of Civil Procedure obligates a defendant,
upon a request from the plaintiff, to disclose, among other things, its defensive
legal theories, any potential parties, any witnesses with “knowledge of relevant
facts,” as well as “any person who may be designated as a responsible third party.”
TEX. R. CIV. P. 194.2. The response must be complete, “based on all information
reasonably available” at the time. TEX. R. CIV. P. 193.1. The scope of the
defendant’s response is, to a large extent, shaped by the allegations contained in
10
the plaintiff’s live pleading. See generally TEX. R. CIV. P. 194.2(e) (requiring
disclosure of identifying information for people “having knowledge of relevant
facts”); Frazin v. Hanley, 130 S.W.3d 373, 377–78 (Tex. App.—Dallas 2004, no
pet.) (reversing strike of late-disclosed expert in response to new counterclaim
filed after expert deadline because “her obligation to disclose defense witnesses did
not even arise until appellees filed their counterclaim against her”). If the
plaintiff’s allegations change, and if those changes prompt a change in the defense
strategy, then the defendant must supplement its disclosures if the change causes
its prior response to now be “incomplete.” TEX. R. CIV. P. 193.5(a) (“If a party
learns that the party’s response to written discovery . . . is no longer complete and
correct, the party must amend or supplement the response.”). There is no duty to
supplement, however, if the additional information “has been made known to the
other parties in writing, on the record at a deposition, or through other discovery
responses.” TEX. R. CIV. P. 193.5(a)(2).
When CVR responded to the requests for disclosure, Plaintiffs were suing
Wynnewood as a defendant, asserting claims against it, and seeking to hold it
legally responsible for their damages. At that time, CVR had no obligation to
disclose Wynnewood as a potentially responsible party; it was already a party
whose conduct would be considered by the jury in the jury charge. The purpose of
disclosing responsible third parties and adding them to the jury charge is
11
inapplicable when the entity is already a party and, thus, already going to be in the
jury charge. It was not until Plaintiffs nonsuited Wynnewood that CVR had a duty
to “reasonably promptly” supplement its disclosures if necessary to respond to this
change in Plaintiffs’ strategy, which it sought to do. See TEX. R. CIV. P. 193.5(b).
C. The Statutory Definition of “Responsible Third Party”
The proportionate responsibility statute supports our holding that Rules
193.5(b) and 194.2(l) did not require CVR to designate Wynnewood as a
responsible third party until after Plaintiffs nonsuited their claims against it. The
interpretation of a statute presents a question of law that we must review de novo,
giving effect to the Legislature’s intent by looking first at the words of the statute.
First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008); Lexington
Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); State v. Shumake, 199
S.W.3d 279, 284 (Tex. 2006). We begin with the text because it “is the best
expression of legislative intent unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.” 5 Molinet v.
Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); see also Fresh Coat, Inc. v. K–2, Inc.,
318 S.W.3d 893, 901 (Tex. 2010) (“Our ‘ultimate purpose’ when construing
5
When a statute’s language is clear and unambiguous, we generally do not apply
rules of construction or extrinsic aids, such as legislative history, to construe the
statutory language. Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011) (citing
Tex. Lottery Comm’n v. First State Bank, 325 S.W.3d 628, 637 (Tex. 2010)).
12
statutes is ‘to discover the Legislature’s intent.’ Presuming that lawmakers
intended what they enacted, we begin with the statute’s text, relying whenever
possible on the plain meaning of the words chosen.”) (citations omitted). This text-
first methodology applies to unambiguous text unless enforcement of the plain
language would produce absurd results. Entergy Gulf States, Inc. v. Summers, 282
S.W.3d 433, 437 (Tex. 2009). We may not add language that is not “implicitly
contained” in the statute’s language. Lee v. City of Houston, 807 S.W.2d 290, 294–
95 (Tex. 1991) (“A court may not . . . add words that are not implicitly contained
in the language of the statute.”); Villarreal v. Wells Fargo Brokerage Servs., LLC,
315 S.W.3d 109, 122 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating court
“may not add language that is not implicitly contained in the language of the
statute”).
The text of the current version of the responsible-third-party statute does not
address whether a person may simultaneously be a defendant and a responsible
third party. The current definition of a “responsible third party” broadly reads:
[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 2015) (including one
limitation on definition not applicable here). To address this issue, “[w]e begin by
13
reviewing dictionary definitions of” the phrase “third party.” Jaster v. Comet II
Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (plurality opinion). Dictionaries
demonstrate that the common understanding of the phrase “third party” is a person
who is not a named party to the litigation. BLACK’S LAW DICTIONARY (10th ed.
2014) (defining “third party” as “person who is not a party to a lawsuit . . . but who
is usu. somehow implicated in it; someone other than the principal parties”);
WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1507 (5th ed. 2014) (defining
“third party” as person “in a case or matter other than the principals”); MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 1300 (11th ed. 2003) (defining “third
party” as “a person other than the principals”); GARNER’S DICTIONARY OF LEGAL
USAGE 893 (3d ed. 2011) (stating that verb phrase “they were third-partied” means
“to bring into litigation as a third-party defendant”); see generally In re Ford
Motor Co., 442 S.W.3d 265, 271 (Tex. 2014) (distinguishing plaintiffs, defendants,
and third parties); id. at 294 (Boyd, J., dissenting) (same).
We presume that the Legislature adopts the common meaning of a word
unless the Legislature provides a different definition or the language clearly
indicates otherwise. See Ford Motor, 442 S.W.3d at 271‒72 (requiring “a high
level of linguistic clarity from the Legislature that it intends its statutory definition
to depart markedly from the ordinary meaning” of term and examining whether
statutory definition “clearly signal[s] a departure from ordinary usage”); City of
14
Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (in absence of legislative
definition or use of technical term, courts “construe the statute’s words according
to their plain and common meaning unless a contrary intention is apparent from the
context or such a construction leads to absurd results”). The ordinary meaning of
the phrase “third party” supports CVR’s interpretation, while a definition of the
phrase “third party” that includes co-defendants “is contrary to the ordinary
meaning” of the phrase. See Ford Motor, 442 S.W.3d at 271 (construing word
“plaintiff”).
These common distinctions presumably informed the Texas Supreme Court
when it declared, “Chapter 33 provides, among other things, that a defendant in
such an action may seek to designate a person, who has not been sued by a
claimant, as a responsible third party.” Galbraith Eng’g Consultants, Inc. v.
Pochucha, 290 S.W.3d 863, 865 (Tex. 2009) (emphasis added) (describing third
party in case governed by current definition of “responsible third party”); see also
Jay Miller, 381 S.W.3d at 638–39 (stating, in case governed by current definition
of “responsible third party,” that statute “allows a tort defendant to designate as a
responsible third party a person who has not been sued by the plaintiff, but who is
alleged to have caused in any way the harm for which the plaintiff seeks
damages”); AAMCO Transmissions, Inc. v. Bova, No. 01–14–00974–CV, 2016
WL 191927, at *4 (Tex. App.—Houston [1st Dist.] Jan. 14, 2016, no pet. h.)
15
(noting that defendants remaining after nonsuit of other defendants may designate
newly omitted defendants as responsible third parties); Spencer v. BMW of N. Am.,
LLC, No. 5:14–CV–869–DAE, 2015 WL 1529773, at *2 (W.D. Tex. Apr. 2, 2015)
(“The statute permits a trier of fact, when apportioning liability, to consider the
relative fault of the defendants as compared to other responsible third parties that
are not party to the suit.”). While these cases did not address the issue before us
and therefore are not binding here, they demonstrate a generally accepted
understanding of the phrase “third party” to mean a party not already in the suit,
which likewise is consistent with common dictionary definitions of the phrase.
As part of construing a term or phrase, we consider the context of the entire
statute—the surrounding words or the “lexical environment.” See Ford Motor, 442
S.W.3d at 271–73 (looking beyond meaning of term “plaintiff” to its context and
stating that “context is essential to textual analysis” because “‘[l]anguage cannot be
interpreted apart from context’”); ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW; THE INTERPRETATION OF LEGAL TEXTS 70 (2012) (ordinary
meaning applies unless there is “reason to think otherwise, which ordinarily comes
from context”); id. at 167 (stating that whole-text canon requires courts “to
consider the entire text, in view of its structure and the physical and logical relation
of its many parts” and that “[c]ontext is a primary determinant of meaning”). As a
plurality of the Texas Supreme Court recently explained:
16
While we must consider the specific statutory language at issue, we
must do so while looking to the statute as a whole, rather than as
“isolated provisions.” We “endeavor to read the statute contextually,
giving effect to every word, clause, and sentence.” We thus begin our
analysis with the statute’s words and then consider the apparent
meaning of those words within their context.
Jaster, 438 S.W.3d at 562 (citations omitted). “Undefined terms in a statute are
typically given their ordinary meaning, but if a different or more precise definition
is apparent from the term’s use in the context of the statute, we apply that
meaning.” Ford Motor, 442 S.W.3d at 273. More precisely, courts depart from the
common meaning only when the context of the entire statute provides “a high level
of linguistic clarity” that the common definition should not be used.6 Id. at 272.
6
A plurality of the United States Supreme Court has stated the rule somewhat
differently:
Whether a statutory term is unambiguous, however, does not
turn solely on dictionary definitions of its component words.
Rather, “[t]he plainness or ambiguity of statutory language is
determined [not only] by reference to the language itself, [but
also by] the specific context in which that language is used,
and the broader context of the statute as a whole.” Ordinarily,
a word’s usage accords with its dictionary definition. In law
as in life, however, the same words, placed in different
contexts, sometimes mean different things.
Yates v. United States, 135 S. Ct. 1074, 1081–82 (2015) (citations omitted). The dissent
in Yates also recognized this rule:
I agree with the plurality (really, who does not?) that context
matters in interpreting statutes. We do not “construe the
meaning of statutory terms in a vacuum.” Rather, we interpret
particular words “in their context and with a view to their
place in the overall statutory scheme.” And sometimes that
means, as the plurality says, that the dictionary definition of a
disputed term cannot control.
17
Chapter 33 addresses proportionate responsibility and how the proportioning
of that responsibility impacts the amount of recovery available to a plaintiff from
the named parties. Subsection 33.003(a) distinguishes a defendant from a
responsible third party and permits the jury to allocate some portion of the 100% of
total responsibility to both. It states that the factfinder “shall determine the
percentage of responsibility . . . for . . . (1) each claimant; (2) each defendant; (3)
each settling person; and (4) each responsible third party who has been designated
under Section 33.004.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.003. We presume
that the proportionate responsibility statute maintains this distinction throughout all
its provisions. See Horseshoe Bay Resort, Ltd. v. CRVI CDP Portfolio, LLC, 415
S.W.3d 370, 384 n.7 (Tex. App.—Eastland 2013, no pet.) (discussing presumption
of consistent usage and citing SCALIA & GARNER, READING LAW at 170 (“A word
or phrase is presumed to bear the same meaning throughout a text . . . .”)). This
context—an explicit reference to a third party that is consistent with the ordinary
meaning of the term—informs the disclosure requirements that applied to CVR in
this case.
Plaintiffs rely on the history of the proportionate responsibility statute to
support their argument that a defendant cannot designate a responsible third party
after limitations have expired. The earlier version of the statute, enacted in 1995
135 S. Ct. at 1092 (Kagan, J., dissenting).
18
and found in an older version of Subsection 33.011, narrowly defined a
“responsible third party” as follows:
[A]ny person to whom all of the following apply:
(i) the court in which the action was filed could exercise
jurisdiction over the person;
(ii) the person could have been, but was not, sued by the claimant;
and
(iii) the person is or may be liable to the plaintiff for all or a part of
the damages claimed against the named defendant or
defendants.
Act of September 1, 1995, 74th Leg., R.S., Ch. 136, § 1 1995 Tex. Gen. Laws 971,
973 (adding earlier version of Section 33.011); see also id. (adding earlier version
of Subsection 33.004(a), which stated that “a defendant may seek to join a
responsible third party who has not been sued by the claimant.”).
The definition was entirely rewritten in 2003 and it “substantially broadened
the meaning of the term ‘responsible third party’ to eliminate . . . restrictions,”
“such as a [past] requirement for personal jurisdiction and a potential for liability
19
to the claimant.”7 Galbraith, 290 S.W.3d at 868 n.6. Rather than operating as a
limitation, the amended definition expanded the responsible–third–party defense.8
We are not persuaded that the deletion of the phrase “person . . . [who] was
not [] sued by the claimant” from the 2003 definition should be interpreted to mean
that a responsible third party, thereafter, includes parties who are already named as
defendants for three reasons. First, as we have already discussed, the plain meaning
of the phrase “third party” means a person who is not a named litigant with claims
asserted directly by or against it and whose responsibility is already a matter for
the jury’s consideration. Second, other parts of the statute—the linguistic
context—demonstrate a consistent understanding by distinguishing a responsible
third party from a defendant. Third, to the extent we might consider it, the history
of the amendments does not clearly indicate a different meaning.
Through a 2003 amendment, the proportionate responsibility statute was
broadened to allow a jury to apportion responsibility to any non-party9 regardless
7
Similarly, Section 33.004 was entirely rewritten and no longer explicitly indicates
that a responsible third party subject to joinder is one who has not been sued. See
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004.
8
As a result of the new definition, “the jury should allocate responsibility among all
persons who are responsible for the claimant’s injury, regardless of whether they
are subject to the court’s jurisdiction or whether there is some other impediment to
the imposition of liability on them, such as a statutory immunity.” Galbraith, 290
S.W.3d at 868 n.6 (quoting 19 WILLIAM V. DORSANEO III, TEXAS LITIGATION
GUIDE § 291.03[2][b][i] at 291–24.1 (2009)).
20
of whether the nonparty has immunity, limitations defenses or other legal defenses
or are even unknown criminals. See Galbraith, 290 S.W.3d at 868–69; In re Unitec
Elevator Servs. Co., 178 S.W.3d 53, 58, n.5, 60 n.6 (Tex. App.—Houston [1st
Dist.] 2005, orig. proceeding); Sun Dev., L.P. v. Hughes, No. 09-12-00524-CV,
2014 WL 4755467, at *13 (Tex. App.—Beaumont Sept. 25, 2014, pet. filed)
(mem.op.).
A comparison of the text of the 2003 amendment with the 1995 version
demonstrates that the 2003 amendment’s effect is to broaden the universe of
parties submitted in the jury charge and assigned a percentage of responsibility.
Plaintiffs’ interpretation would deny CVR the right to have Wynnewood assigned
its applicable percentage only because Plaintiffs altered their strategy and
nonsuited the entity. A result more compatible with the broadening of potentially
responsible third parties would be one that provided CVR recourse to ensure that
the jury will be able to assign a percentage to Wynnewood.
Finally, we note that the Legislature did not simply delete the phrase “person
. . . [who] was not [ ] sued by the claimant” from the definition. Rather, the
Legislature completely rewrote the definition to focus, not on whether the plaintiff
9
A seller eligible for indemnity in a products liability action is exempted from the
provision. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2015).
21
could have sued the third party but, instead, on whether that third party might have
some responsibility that should not be borne by the litigating, named defendant.
Under these circumstances, we cannot conclude there is “a high level of
linguistic clarity” that the Legislature intended to depart from the common
meaning of “third party.” Instead, we follow the straightforward construction that
“third party” means a party that is not otherwise a party to the litigation.
D. Whether the Designation was Timely
Plaintiffs object that CVR did not timely move to designate Wynnewood
under Subsections 33.004(a) and (d). Subsection (a) requires a defendant to file a
motion for leave to designate responsible third parties “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.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a). When CVR
filed its motion for leave 28 days before the trial date, it asserted that it had good
cause because Wynnewood was still a named defendant at the 60-day deadline, and
thus, CVR was not required to designate Wynnewood as a third-party at that time.
We agree. Plaintiffs nonsuited Wynnewood within the 60-day pre-trial period.
CVR amended its disclosure responses and moved to designate Wynnewood as a
“responsible third party” within 30 days of the nonsuit. This meets the requirement
that the supplementation occur “reasonably promptly.” TEX. R. CIV. P. 193.5(b). It
22
further demonstrates “good cause” for seeking to designate within the 60-day pre-
trial period.
Subsection (d) prohibits a defendant from designating a responsible third
party after the claimant’s applicable limitations period has expired if the defendant
failed to timely disclose the third party under Rule 194.2(l).10 TEX. CIV. PRAC. &
REM. CODE ANN. § 33.004(d). We conclude that Subsection (d) does not make
CVR’s motion untimely. A defendant has no obligation to designate a co-
defendant as a responsible third party in its disclosure. Plaintiffs were well aware
of Wynnewood’s potential share of responsibility for their damages; indeed, they
named Wynnewood as a defendant and asserted claims directly against it in
multiple petitions in the case. Further, Plaintiffs voluntarily nonsuited Wynnewood
after the date on which their limitations period expired. The combination of lack of
disclosure and post-limitations period designation do not offend Subsection (d) in
this context.
E. Whether CVR alleged Sufficient Facts in its Motion to Warrant Relief
Plaintiffs’ final argument that the trial court’s denial of CVR’s motion for
leave to designate Wynnewood as a responsible third party was not error is that
CVR did not allege sufficient facts concerning Wynnewood’s responsibility.
10
Subsection (l) requires disclosure of “the name, address, and telephone number of
any person who may be designated as a responsible third party.” TEX. R. CIV. P.
194.2(l).
23
Subsection 33.004(g)(1) states that leave to designate shall be granted unless
the opposing party establishes, through a timely objection, that “the defendant did
not 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)(1). The applicable Rule of Civil Procedure
is Rule 47, which is our “notice” pleading rule. See In re Greyhound Lines, No.
05–13–01646–CV, 2014 WL 1022329, at *2 (Tex. App.—Dallas Feb. 21, 2014,
orig. proceeding) (mem. op.) (“The standard for designating a potentially
responsible third party is notice pleading under the Texas Rules of Civil
Procedure.”); see also TEX. R. CIV. P. 47(a) (requiring “a short statement of the
cause of action sufficient to give fair notice of the claim involved”).
Under the notice-pleading standard, fair notice is achieved “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.” Greyhound Lines, 2014
WL 1022329, at *2. A trial court may not review the truth of the allegations or
consider the strength of the defendant’s evidence. Unitec, 178 S.W.3d at 62.
CVR satisfied this low threshold. Its motion for leave to designate
Wynnewood quoted from Plaintiffs’ own allegations against Wynnewood. It also
alleged that, if any entity or persons were negligent in a manner that proximately
caused Plaintiffs’ injuries, it was [Wynnewood] and its employees, who were
24
responsible for “the calculations made, instructions given, steps taken and means
employed to light the steam boiler.” CVR added that “if this case is submitted to a
jury at all, [Wynnewood] should be included in the initial liability question because
the story of the accident itself—what happened—cannot be told without reference
to [Wynnewood].” Finally, we note that the allegations of Wynnewood’s
responsibility were well-known to Plaintiffs because the 15 page incident report
faulted Wynnewood, its employees, procedures, and inadequate training for the
explosion and Plaintiffs themselves continued to include allegations in their
amended petition of Wynnewood’s allegedly intentional misconduct. We hold that
CVR provided sufficient notice to Plaintiffs of Wynnewood’s alleged wrongdoing.
Because CVR complied with all statutory requirements, the trial court
abused its discretion in denying CVR’s motion for leave to designate Wynnewood
as a responsible third party.
Adequate Remedy by Appeal
We must next decide if CVR has an adequate remedy by appeal. Mandamus
will not issue “when the law provides another plain, adequate, and complete
remedy.” In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 613
(Tex. 2006) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 135–36).
Prudential provides that the requirement of an “adequate” remedy on appeal is not
subject to simple categories or bright-line rules and, instead, “is simply a proxy for
25
the careful balance of jurisprudential considerations that determine when appellate
courts will use original mandamus proceedings to review the actions of lower
courts.” 148 S.W.3d at 136–37. The test “is practical and prudential.” Id. at 136.
A complete analysis of the adequacy of appellate remedies requires
consideration of the degree to which “important substantive and procedural rights”
are subject to “impairment or loss.” Id. While mandamus review of “incidental,
interlocutory rulings” which are “unimportant . . . to the ultimate disposition of the
case at hand [or] the uniform development of the law,” would distract the appellate
courts and add expense and delay to the process, mandamus review of “significant
rulings in exceptional cases” could prove essential. Id. Review might be necessary
to preserve important substantive and procedural rights from
impairment or loss, allow the appellate courts to give needed and
helpful direction to the law that would otherwise prove elusive in
appeals from final judgments, and spare private parties and the public
the time and money utterly wasted enduring reversal of improperly
conducted proceedings.
Id. Thus, courts should consider “the impact on the legal system” in determining
whether mandamus relief is appropriate. Id. at 137.
An appellate remedy is “adequate” when the “benefits to mandamus review
are outweighed by the detriments.” Id. at 136. Further, additional expense, by
itself, does not warrant granting mandamus relief. See id. at 136. Nonetheless,
when the error is “clear enough, and correction simple enough,” mandamus review
may still be appropriate. Id. at 137.
26
Courts of appeals that have addressed the adequacy of the remedy by appeal
in Chapter 33 cases have reached different conclusions, but they repeatedly refer to
the Prudential maxim that the decision “depends heavily upon the circumstances
presented.” In re Investment Capital Corp., No. 14–09–00105–CV, 2009 WL
310899, at *2 (Tex. App.—Houston [14th Dist.] Feb. 4, 2009, orig. proceeding)
(citing Prudential regarding circumstances justifying mandamus relief); see In re
Wilkerson, No. 14–08–00376–CV, 2008 WL 2777418, at *2 (Tex. App.—Houston
[14th Dist.] June 6, 2008, orig. proceeding) (same).
The courts holding that the appellate remedy was adequate reasoned that a
lack of exceptional circumstances in those cases caused the detriments of
mandamus review to outweigh the benefits. See Unitec, 178 S.W.3d at 64–65; In re
Martin, 147 S.W.3d 453, 459–60 (Tex. App.—Beaumont 2004, orig. proceeding);
In re SDI Indus., Inc., No. 13–09–00128–CV, 2009 WL 781562, at *1 (Tex.
App.—Corpus Christi March 23, 2009, orig. proceeding); In re Caterpillar Inc.,
No. 04–09–00796–CV, 2009 WL 5062324, at *1 (Tex. App.—San Antonio Dec.
23, 2009, orig. proceeding); Investment Capital, 2009 WL 310899, at *2;
Wilkerson, 2008 WL 2777418, at *2; In re Scoggins Constr. Co. Inc., No. 13–08–
00548–CV, 2008 WL 4595202, at *1 (Tex. App.—Corpus Christi Oct. 15, 2008,
orig. proceeding); In re Helm, No. 13–07–00344–CV, 2007 WL 1584177, at *1
(Tex. App.—Corpus Christi June 1, 2007, orig. proceeding).
27
The courts reaching the opposite conclusion have based their decisions on
the following considerations:
(1) denial of the right to designate responsible third parties 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”;11
(2) there would be a substantial waste of time and money to
proceed to trial without error correction;12 and
(3) review would allow appellate courts to offer “needed and
helpful direction to the law that would otherwise prove elusive
in appeals from final judgments.”13
Because the issue of the adequacy of the remedy by appeal “is practical and
prudential,” “depends heavily on the circumstances,” and is determined by a
balancing test, this split is not surprising. See Prudential, 148 S.W.3d at 137. Each
accumulation of circumstances in the cases presented for mandamus review
presents a different balance of factors. For example, the Fourteenth Court of
Appeals has found that appellate remedy would be inadequate in a case with
11
Brokers Logistics, 320 S.W.3d at 408; see In re Arthur Andersen LLP, 121 S.W.3d
471, 486 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding); see also In re
E. Rio Hondo Water Supply Corp., No. 13–12–00538–CV, 2012 WL 5377898, at
*10 (Tex. App.—Corpus Christi Oct. 29, 2012, orig. proceeding) (same);
Greyhound Lines, 2014 WL 1022329, at *4 (same).
12
See, e.g., Andersen, 121 S.W.3d at 484–86.
13
In re Lewis Casing Crews, Inc., No. 11–14–00137–CV, 2014 WL 3398170, at *5
(Tex. App.—Eastland July 10, 2014, orig. proceeding); see also Brokers Logistics,
Ltd., 320 S.W.3d at 408 (same).
28
multiple parties and issues but not in other cases with less exceptional
circumstances. Compare Andersen, 121 S.W.3d at 485–86 (holding no adequate
remedy by appeal because Andersen might not have another remedy in separate
suit against third parties, absence of third parties could profoundly affect suit’s
outcome in ways not necessarily apparent in appellate record, and there would be
enormous waste of resources given case size, expense, and effort to prepare two
trials), with Investment Capital, 2009 WL 310899, at *2 (holding appellate remedy
adequate when defendant sought to designate employer as responsible third party
after trial court had granted summary judgment for employer because
circumstances were not extraordinary), and Wilkerson, 2008 WL 2777418, at *1‒2
(holding appellate remedy adequate because circumstances of case were not
exceptional, denial of defendant’s motion was based on failure “to plead sufficient
facts, and granting mandamus relief would encourage parties to seek mandamus
relief in “all kinds of cases”).
The Corpus Christi Court of Appeals likewise has held that an appellate
remedy would be inadequate in one case but not in others. Compare E. Rio Hondo,
2012 WL 5377898, at *10 (finding appellate remedy inadequate when erroneous
designation of responsible third party could skew trial proceedings, possibly affect
result, and compromise presentation of appeal in ways not apparent in appellate
record), with SDI Indus., 2009 WL 781562, at *1 (holding appellate remedy
29
adequate as circumstances presented were not exceptional), and Scoggins, 2008
WL 4595202, at *1 (denying relief due to unexceptional circumstances), and
Helm, 2007 WL 1584177, at *1 (same).
The Dallas Court of Appeals has adopted a rule that the improper denial of a
motion for leave to designate a responsible third party is generally curable by
mandamus. See In re Smith, 366 S.W.3d 282, 289 (Tex. App.—Dallas 2012, orig.
proceeding) (holding appellate remedy ordinarily inadequate when trial court
improperly denies motion to designate responsible third party); In re Oncor Elec.
Delivery Co., 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011, orig. proceeding)
(holding appellate remedy of denial of motion to designate responsible third parties
inadequate because of potential effect on outcome of litigation that might not be
apparent in the appellate record); Greyhound Lines, 2014 WL 1022329, at *4
(same).
Plaintiffs rely on a case from our court that held that “a relatively
straightforward personal injury case” did not present exceptional circumstances.
See Unitec, 178 S.W.3d at 64. Despite holding that an appellate remedy would be
adequate in Unitec, we acknowledged that a future case may present more
exceptional circumstances that would justify a holding that an appellate remedy
would not be adequate. See id. at 65. This is such a case. It is a complicated
wrongful death case arising from an explosion of a large boiler at a refinery with
30
multiple plaintiffs, multiple defendant parent and subsidiary companies, and
multiple allegations of tortious conduct by the various companies, with conduct
and knowledge of conduct allegedly overlapping between the parties. Plaintiffs
seek actual and punitive damages in excess of $1,000,000. Cf. Lewis Casing
Crews, 2014 WL 3398170, at *4 (rejecting argument that case was simple,
“straightforward negligence matter,” in part, because plaintiffs sought damages in
excess of $1,000,000). Over 16,000 pages of documents have been produced.
Sixteen depositions have been taken; of those, eleven were of Wynnewood
employees. And the trial, according to CVR’s petition for writ of mandamus, is
expected to last “more than two weeks [and] will require at least twenty
witnesses.”
Unitec is distinguishable for a second reason. Unlike Unitec, this case
presents a novel legal issue: whether, under the 2003 definition of “responsible
third party”, a defendant is required to designate a co-defendant. Interpreting
Subsection 33.004(d) to answer that issue allows us “to give needed and helpful
direction to the law that would otherwise prove elusive” and enables us to “spare
private parties and the public the time and money utterly wasted enduring eventual
reversal of improperly conducted proceedings.” See Prudential, 148 S.W.3d at
136. Here, the error is “clear enough, and correction simple enough, that
mandamus review [is] appropriate.” See id. at 137. The issue of interpretation of
31
the current version of Subsection 33.004(d) is one of first impression, presents a
question of law, and is likely to recur; thus, it “fits well within the types of issues
for which mandamus review is not only appropriate but necessary.” Id. at 138.
Another factor is the potential difficulty in demonstrating on appeal that the
absence of a responsible third party caused harm. See Hughes, 2014 WL 4755467,
at *13 (noting difficulty in establishing harm from unsubmitted responsible third
party); see also Prudential, 148 S.W.3d at 138 (if appellant suffers judgment on
unfavorable verdict, it could not obtain reversal absent harmful error); Brokers
Logistics, 320 S.W.3d at 409 (noting same in case involving striking of designation
of responsible third party). Wynnewood, as the deceaseds’ employer, is
inextricably tied to the events and decision-making leading to the on-site
explosion. Additionally, post-trial proof that the jury would have attributed
responsibility to it, had it been permitted to, might be difficult given how the
employer’s potential exclusion might affect the relevance and admissibility of such
evidence.
We further agree with CVR that the evidence regarding its conduct as the
premises owner with respect to the boiler and the procedures and training of
personnel at the refinery cannot be readily separated from Wynnewood’s conduct,
procedures, training, supervision, and responsibility for the same boiler and
explosion. These facts further support allowing CVR to designate Wynnewood as a
32
responsible third party so that its responsibility as the employer may be
apportioned together with the responsibility of the premises owner. Plaintiffs’
allegations against CVR are intertwined with their allegations against Wynnewood.
Finally, the district court’s ruling is not a mere incidental ruling. See Unitec,
178 S.W.3d at 65. The denial of CVR’s right to allow the jury to determine the
proportionate responsibility of all responsible parties is a significant ruling and
mandamus review will prevent the impairment or loss of this substantive right. See
Prudential, 148 S.W.3d at 136.
Accordingly, after balancing the jurisprudential considerations, we conclude
that the benefits of mandamus review in this case outweigh the detriments and,
thus, hold that the appellate remedy under these circumstances is inadequate.
Conclusion
We hold that the trial court abused its discretion and that CVR has
demonstrated that it lacks an adequate remedy by appeal. Therefore, we direct the
trial court to vacate its order of October 12, 2015 and to grant CVR’s motion for
leave to designate Wynnewood as a responsible third party. We are confident the
trial court will promptly comply. The writ will issue only if it does not.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
33