ACCEPTED
03-15-00496-CV
7733228
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/9/2015 12:00:00 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00496-CV
IN THE COURT OF APPEALS
FOR THE
THIRD COURT OF APPEALS DISTRICT OF TEXAS
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
STEVEN ALBRIGHT AND RHONDA ALBRIGHT, APPELLANTS,
11/9/2015 9:41:14 AM
JEFFREY D. KYLE
— VERSUS— Clerk
RHEA & SONS ENTERPRISES, INC. D/B/A RHEA PLUMBING,
APPELLEE.
FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL
DISTRICT, HONORABLE EVAN STUBBS, CAUSE NO. 17573A
__________________________________________________________________
APPELLANTS’ BRIEF
__________________________________________________________________
G. Eric De Leon
(eric@deleonlawoffice.com)
State Bar No. 24045763
Law Office of G. Eric De Leon, PLLC
8700 Crownhill Blvd., Ste. #201
San Antonio, Texas 78209
Phone: (210) 684-4433
Fax: (210) 247-9631
November 4, 2015 Attorney for Appellants Steven & Rhonda Albright
i
IDENTITY OF PARTIES AND COUNSEL
APPELLANTS APPELLEE
Dr. Steven Albright and Rhonda Rhea & Sons Enterprises, Inc. d/b/a
Albright Rhea Plumbing
Trial and Appellate Counsel: Trial and Appellate Counsel:
G. Eric De Leon Bret A. Sanders
eric@deleonlawoffice.com bsanders@feesmith.com
Texas Bar No. 24045763 Texas Bar No. 24033152
Law Office of G. Eric De Leon, PLLC Jeffrey D. Boyd
8700 Crownhill Blvd., Ste. #201 jboyd@feesmith.com
San Antonio, Texas 78209 Fee, Smith, Sharp & Vitullo, L.L.P.
Phone: (210) 684-4433 816 Congress Avenue, Ste. 1265
Fax: (210) 247-9631 Austin, Texas 78701
Phone: (512) 479-8400
Fax: (512) 479-8402
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................... ii
TABLE OF CONTENTS .................................................................................. iii
INDEX OF AUTHORITIES ............................................................................... vi
STATEMENT OF THE CASE .......................................................................... viii
ISSUES PRESENTED ..................................................................................... ix
STATEMENT OF FACTS ................................................................................. 1
I. Appellants/Appellants Sued their Homebuilder/General
Contractors for Defects with their House . . . . . . . . . . . . . .1
II. The General Contractor Defendants Designated Rhea
Plumbing and the Other Subcontractors as Responsible
Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
III. Appellants Settled their Claims against the General
Contractor Defendants and Retained Their Causes of
Action Against Rhea Plumbing and The Other
Subcontractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
IV. Appellants Dismissed their Claims Against the General
Contractor Defendants, Only. . . . . . . . . . . . . . . . . . . . . . . 3
V. Defendant Rhea Plumbing Filed a Motion for Summary
Judgment – Raising Two Inapplicable Defenses and a
Limitations Defense that is Barred by the Plain Language
of the Controlling Version of Texas. Civ. Prac. & Rem.
Code Sec. 33.004(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT .................................................................. 5
ARGUMENT ...................................................................................................... 6
iii
I. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR BY
GRANTING RHEA PLUMBING’S TRADITIONAL MOTION FOR
SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Rhea Plumbing Failed to satisfy its Summary Judgment Burden
on the Essential Elements of its Defenses . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Defendant Rhea Plumbing Failed to Prove that the Estoppel by
Contract Doctrine Bars Appellants’ Negligence and Breach of
Warranty Claims Against It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1) Appellants settled their claims against the general contractor only.
As a Third Party, Rhea Plumbing is Precluded From Using the
Estoppel by Contract Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2) Without Contractual Privity, Rhea Plumbing’s Quasi-Estoppel
Defense Must also Fail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3) Even if there was a contract/and or transaction between the
parties, the estoppel by contract and equitable estoppel doctrines
would be inapplicable because Appellants are not attempting to
deny or take a position that is inconsistent with the Settlement
Contract and/or the Take Nothing Judgment . . . . . . . . . . . . . . . . . .. . . 11
C. Rhea Plumbing’s Statute of Limitations Defense is barred by the
plain language of Tex. Civ. Prac. & Rem. Code 33.0044(e) . . . . . . . . . .14
D. Rhea Plumbing failed to prove that Appellants’ breach of implied
warranty claims are barred by controlling precedent . . . . . . . . . . . . . 16
PRAYER ........................................................................................................ . . . 17
CERTIFICATE OF COMPLIANCE .............................................................. . . . 18
CERTIFICATE OF SERVICE ....................................................................... . . . 19
iv
APPENDIX:
1) Order Granting Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea
Plumbing’s Traditional and No-Evidence Motion for Summary Judgment
(CR. 335)
2) Order Granting Defendant’s Motion for Leave to Designate Responsible
Third Parties (CR. 194-195)
3) Final Take Nothing Judgment As To JPAG Venturess LLC, Adrian
Gracia Holding LLC, Juan Pablo Cabrera, Adrian Gracis, Groupo
Premier and Lighthouse Homes Only (C.R. 86-88)
4) Tex. Civ. Prac. & Rem. Code Sec. 33.004(e), version applicable to cases
filed prior to September 1, 2011.
v
INDEX OF AUTHORITIES
Cases
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) ......................................7
City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006)...............14
Codner v. Arellano, 40 S.W.3d 666, 673-74 (Tex. App.—Austin 2001, no pet.) ...20
Coffey v. Singer Asset Fin. Co., 223 S.W.3d 559, 569-70 (Tex.App.—Dallas 2007,
no pet.) ....................................................................................................................9
Deutsche Bank Nat'l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 316, Fn.
15, (Tex. App.—Houston [14th Dist.] 2012, pet. denied) .....................................12
Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.— Dallas 2000, pet. denied).
.................................................................................................................................6
Echols v. Bloom, 485 S.W.2d 798, 801 (Tex.App.—Houston [14th Dist.] 1972,
writ ref’d n.r.e.) .......................................................................................................9
Enochs v. Brown, 872 S.W.2d 312, 317 (Tex. App.—Austin 1994, no writ),
overruled on other grounds, in Roberts v. Williamson, 111 S.W.3d 113, 117
(Tex. 2002)............................................................................................................12
Flack v. Hanke, 334 S.W.3d 251 (Tex. App.—San Antonio, 2010, pet. denied). ..18
Lopez v. Munoz, Hockema & Reed, LLP, 22 S.W.3d 857, 864 (Tex. 2000) .... 12, 14
Mathews v. Sun Oil Co., 411 S.W.2d 561, 564 (Tex.App.—Amarillo 1966), aff’d,
425 S.W.2d 330 (Tex.1968)..................................................................... 7, 8, 9, 14
McClellan v. Scardello Ford, Inc., 619 S.W.2d 593 (Tex. App.—Amarillo 1981,
no pet.) ..............................................................................................................8, 10
vi
Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000) ...................14
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). .....................6
Raymond v. Rahme, 78 SW3d 552, 563 (Tex. App—Austin, 2002, no pet.) ..........19
Schroeder v. Texas Iron Works, Inc., 769 S.W.2d 625, 628 (Tex.App.—Corpus
Christi 1989), aff’d, 813 S.W.2d 483 (Tex.1991); ...........................................9, 10
Southland Life Ins. Co. v. Vela, 217 S.W.2d 660, 663 (Tex. 1949) ........................10
Univ. Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742,
746 (Tex. 2003).....................................................................................................15
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005)............. 11, 15
Williams v. Williams, 246 S.W.3d 207, 210 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) ..................................................................................................................16
Statutes
TEX. CIV. PRACTICE AND REM. CODE Sec. 33.004(e)........................................ 14, 15
Rules
Tex. R. App. P. 43.4.................................................................................................17
Tex. R. Civ. P. 139. ..................................................................................................17
TEX. R. CIV. P. 166a(c). ............................................................................................6
vii
STATEMENT OF THE CASE
Nature of the Case Dr. Steven Albright and Rhonda Albright,
(Appellants), filed suit against Appellee, Rhea
Plumbing. (CR. 23-30). Appellant asserted claims
against Appellee for negligence and breach of implied
warranty due to plumbing defects and improper
propane gas installation in their home. Id.
Course of Proceedings The Appellee, Rhea Plumbing, filed a Traditional
Motion for Summary Judgment alleging that
Appellants’ claims against it were barred by:
1) statute of limitations, 2) the estoppel by contract
doctrine and 3) the quasi-estoppel doctrine. (CR.
133-145). Appellee also claimed that Appellants’
breach of implied warranty claims were barred, based
on binding precedent. Id.
Trial Court Disposition The trial court granted Appellee Rhea Plumbing’s
Motion. (CR. 335). The case was severed and
assigned a new cause number, 17573A, resulting in a
Final Judgment. (CR. 336).
viii
ISSUE PRESENTED
Issue 1: Was it reversible error for the district court to grant Appellee Rhea
Plumbing’s Traditional Motion for Summary Judgment?
ix
STATEMENT OF FACTS
I. Appellants/Appellants Sued their Homebuilder/General Contractors for
Defects with their House
Appellants/Appellants, Dr. Steven Albright and his wife, Rhonda Albright,
purchased a new home from JPAG Ventures, and its related entities - LLC, Adrian
Gracia Holdings LLC, Juan Pablo Cabrera, Adrian Gracia, Groupo Premier Inc.
and Lighthouse Homes, (collectively herein referred to as the “General Contractor
Defendants”). (Clerk’s Record 150-153 (hereafter “CR.”)). Shortly after moving
in, Appellants discovered several construction defects with their new home. (CR.
9). Appellants gave the General Contractor Defendants notice of the defects and
gave them multiple opportunities to cure the defects. (CR. 10, 279-309).
Appellants also requested that the General Contractor Defendants identify the
subcontractors who performed work at their residence. (CR. 279, 294). Despite
several requests, the necessary repairs were never made and the requested
subcontractor information was never provided. (CR. 10, 279-309). On May 31,
2011, Appellants filed suit against the General Contractor Defendants for breach of
contract, DTPA violations, breach of express warranty, fraud, etc. (CR. 150-153).
II. The General Contractor Defendants Designated Rhea Plumbing and
the Other Subcontractors as Responsible Third Parties
On or about February 27, 2013, the General Contractor Defendant’s filed a
Motion to Designate Responsible Third Parties. (CR. 167). In the Motion, the
1
General Contractor Defendants, for the first time, formally identified 18 different
subcontractors who performed work on Appellants’ residence. (CR. 168-174).
Rhea Plumbing was one of the subcontractors identified in the Motion. (CR. 173).
III. Appellants Settled their Claims against the General Contractor
Defendants and Retained Their Causes of Action Against Rhea
Plumbing and the Other Subcontractors
On or about April 10, 2013, Appellants and the General Contractor
Defendants entered into a contractual settlement agreement (“settlement contract”).
(CR. 190-192). Pursuant to the settlement contract, Appellants and the General
Contractor Defendants agreed to compromise and settle “all claims and causes of
action of any kind whatsoever which the parties [to the settlement agreement]
have or may have arising out of the transaction or occurrence that is subject of this
litigation.” Id. Defendant Rhea Plumbing was not a party to that contract. Id.
As additional consideration, the General Contractor Defendants designated,
and assigned their causes of action against, the subcontractors identified in their
Motion to Designate Responsible Third Parties, to Appellants. Specifically, the
settlement contract stated, “Appellants reserve the right to go after the
sub[contractor]s, including all parties named in Defendant’s Motion to Designate
Responsible Third Parties...” (CR. 190-192). As previously mentioned, Defendant
Rhea Plumbing was one of the subcontractors named in the General Contractor
Defendants’ Motion to Designate Responsible Third Parties. (CR. 168-174). The
2
Order designating Rhea Plumbing, and others, as Responsible Third Parties was
signed and entered on April 11, 2013 (CR. 194).
IV. Appellants Dismissed their Claims Against the General Contractor
Defendants, Only.
In accordance with the settlement contract, a Take Nothing Judgment was
subsequently entered against “JPAG Ventures, LLC, Adrian Gracia Holdings
LLC, Juan Pablo Cabrera, and Adrian Gracia, Individually, and d/b/a
Groupo Premier Inc. and Lighthouse Homes, Only.” (CR. 208-209).
Appellant’s claims against Rhea Plumbing were not dismissed in the Judgment.
(CR. 208-209). On April 29, 2013, Appellants filed their 3rd Amended Petition,
adding Rhea Plumbing as a Defendant and asserting claims for negligence and
breach of implied warranty, due to plumbing defects and improper propane gas
installation in their home. (CR. 5-14). On December 18, 2013, Appellants filed
their Fourth Amended Petition to address Defendant Rhea Plumbing’s Special
Exceptions. (CR. 23-30).
V. Defendant Rhea Plumbing Filed a Motion for Summary Judgment –
Raising Two Inapplicable Defenses and a Limitations Defense that is
Barred by the Plain Language of the Controlling Version of Texas. Civ.
Prac. & Rem. Code Sec. 33.004(e).
On February 11, 2015, Defendant Rhea Plumbing filed Traditional and No
Evidence Motions for Summary Judgment. (CR. 133). In its Traditional Motion
for Summary Judgment, Defendant Rhea Plumbing alleged that, based on the
3
estoppel by contract and quasi-estoppel doctrines, Appellants had already settled
their claims against Defendant Rhea Plumbing when Appellants settled their
claims against, and dismissed, the General Contractor Defendants. (CR. 136-139;
141-143). Defendant Rhea Plumbing also alleged that Appellants’ claims were
barred by limitations and that Appellants’ breach of implied warranty claims (only)
were barred as a matter of law based on binding precedent from this Court. (CR.
139-140; 143-145). In its No-Evidence Motion for Summary Judgment, Defendant
alleged that there was no evidence to support Appellants’ breach of contract claim.
(CR. 146-147).
Appellants filed a response denying the elements and applicability of
Defendant’s defenses. (CR. 317-324). Specifically, Appellants denied that their
claims against Rhea Plumbing had been settled, based on the plain language of the
settlement agreement between the General Contractor Defendants and Appellants
and the Agreed Final Judgment, which was entered “as to [the General Contractor
Defendants] only.” (CR. 208-09). Appellants also disputed the limitations claim –
based on the clear language of Tex. Civ. Prac. & Rem. Code 33.004(e) - which
waives limitations when a party is joined within 60 days of being designated as a
responsible third party. (CR. 317-324). Lastly, Appellants denied that their breach
of implied duty claims were barred by binding precedent and clarified that they
were not asserting a breach of contract claim against Defendant Rhea Plumbing –
4
since there was no contract - thus making Defendant’s no-evidence MSJ moot.
(CR. 317-324). On May 20, 2015, the Court granted Defendant’s Motion for
Summary Judgment. (CR. 335). A Severance Order was signed by the Court on
July 9, 2015, and Appellants’ timely perfected this appeal asking this Court to
reverse and remand this matter to the trial Court for a new trial. (CR. 336).
SUMMARY OF THE ARGUMENT
The District Court granted Appellee Rhea Plumbing’s Traditional Motion
for Summary Judgment based on affirmative defenses which require a valid
contract between the parties. Appellant and Rhea Plumbing agree that there is no
such contract. Even if there was a valid contract, Rhea Plumbing failed to prove
the other required elements of its asserted affirmative defenses, namely that
Appellant denied or took a position that is inconsistent with the terms of such non-
existent contract. The District Court also found that Appellant’s causes of action
were barred by limitations; however, the relevant statute allows Appellant to
pursue their claims against Rhea Plumbing, “regardless of limitations.” This Court
must reverse these errors.
5
ARGUMENT
I. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR BY
GRANTING RHEA PLUMBING’S TRADITIONAL MOTION FOR
SUMMARY JUDGMENT
Appellants, Dr. Steven Albright and Rhonda Albright, respectfully request that
this Court reverse the District Court’s grant of Rhea Plumbing’s Traditional
Motion for Summary Judgment and remand this case for further proceedings.
A. Rhea Plumbing Failed to satisfy its Summary Judgment Burden on the
Essential Elements of its Defenses
The standard for reviewing a traditional summary judgment is well established.
See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). This
Court reviews a summary judgment de novo to determine whether a party’s right to
prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175
(Tex. App.— Dallas 2000, pet. denied). The Appellee, Rhea Plumbing, has the
burden of showing that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding
whether a disputed material fact issue exists precluding summary judgment,
evidence favorable to the Appellants will be taken as true. Nixon, 690 S.W.2d at
549. Every reasonable inference must be indulged in favor of the nonmovant
Appellants and any doubts resolved in their favor. City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005). Because Rhea Plumbing failed to conclusively
6
prove all elements of their asserted defenses, the Order granting Rhea Plumbing’s
Summary Judgment should be reversed.
B. Defendant Rhea Plumbing Failed to Prove that the Estoppel by
Contract Doctrine Bars Appellants’ Negligence and Breach of
Warranty Claims Against It.
1) Appellants settled their claims against the general contractor only. As a
Third Party, Rhea Plumbing is Precluded From Using the Estoppel by
Contract Defense
There is a fatal problem with Appellee’s “estoppel by contract” claim.
Estoppel by contract prevents a party to a contract from denying the terms of a
valid or fully executed contract unless the contract is set aside by fraud, accident,
or mistake. Mathews v. Sun Oil Co., 411 S.W.2d 561, 564 (Tex.App.—Amarillo
1966), aff’d, 425 S.W.2d 330 (Tex.1968) (emphasis added). In this case, the
obvious, fatal problem with Appellee’s argument is that there is no contract
between Appellants and Rhea Plumbing. Texas Appellate Courts have made it
clear that “estoppel by contract operates only on parties to the transaction.”
McClellan v. Scardello Ford, Inc., 619 S.W.2d 593 (Tex. App.—Amarillo 1981,
no pet.) (citing Buckner Orphans Home v. Berry, 332 S.W.2d 771, 776
(Tex.Civ.App.--Dallas 1960, writ ref’d n.r.e.)). In McClellan, the Amarillo
Appellate Court denied the Appellee’s estoppel by contract defense, clearly stating
that “estoppel does not create liability in favor of [Appellee], a stranger to the
contract.” McClellan, 619 S.W.2d 593 at 597.
7
Appellee knows that the estoppel by contract doctrine is not applicable in
this case. In its Motion for Summary Judgment, Appellee cited four cases in
support of its estoppel by contract defense. Mathews v. Sun Oil Co., 411 S.W.2d
561, 564 (Tex.App.—Amarillo 1966), aff’d, 425 S.W.2d 330 (Tex.1968); Coffey v.
Singer Asset Fin. Co., 223 S.W.3d 559, 569-70 (Tex.App.—Dallas 2007, no pet.);
Schroeder v. Texas Iron Works, Inc., 769 S.W.2d 625, 628 (Tex.App.—Corpus
Christi 1989), aff’d, 813 S.W.2d 483 (Tex.1991); Echols v. Bloom, 485 S.W.2d
798, 801 (Tex.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.). However, every
cited case involved a party to a contract (not a third party) trying to avoid the
terms of a contract that it previously signed. Mathews, 411 S.W.2d at 562; Coffey,
223 S.W.3d at 569-570; Echols, 485 S.W.2d at 801 (recognizing that estoppel by
contract cannot be enforced against a signatory when predicated on an invalid
contract). None of the cases cited by Defendant involved a third party successfully
raising (or even attempting to raise) the estoppel by contract defense. In fact, in
Schroeder, the Court ended their estoppel by contract analysis once they
established that a contract between the parties was necessary and that “no such
instrument exists in this case.” 769 S.W.2d 625 at 628-29. Likewise, the estoppel
by contract doctrine is not applicable to prove Defendant’s claims in this case.
In this case, there is, undisputedly, no contract between Appellants and Rhea
Plumbing. Instead, Rhea plumbing improperly attempts to rely on the April 10,
8
2013 settlement agreement between Appellants and the General Contractor
Defendants – to which Rhea Plumbing is a stranger. (CR. 190-192). However, the
above-cited authority makes it clear that only the signatories can effectively raise
the estoppel by contract defense. McClellan, 619 S.W.2d 593 at 597; see also
Southland Life Ins. Co. v. Vela, 217 S.W.2d 660, 663 (Tex. 1949). Furthermore,
the settlement agreement’s clear and unambiguous language makes it clear that it
addressed only the disputes and controversies between the signatories – i.e the
Appellants and the General Contractor Defendants. The court’s primary concern
when construing a written contract is to ascertain the true intentions of the parties
as expressed in the instrument. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 662 (Tex. 2005). The Court must examine and consider the entire writing ″in
an effort to harmonize and give effect to all the provisions of the contract so that
none will be rendered meaningless.″ Id. In this case, the Appellants clearly
intended to settle its claims against the General Contractor Defendants and
continue their own (and the General Contractor Defendants’) claims against Rhea
Plumbing. For all of the above reasons, the estoppel by contract defense is not
available to a third party, such as Rhea Plumbing.
9
2) The Lack of Contractual Privity Also Bars Rhea Plumbing’s Quasi-
Estoppel Defense
Without Contractual privity, Rhea Plumbing also cannot use the quasi-
estoppel doctrine to prove that Appellants have already settled their claims against
it. The seldom-used, quasi-estoppel defense bars a Plaintiff’s claim when: (1) the
Plaintiff acquiesced to or accepted a benefit under a transaction with Defendant;
(2) the Plaintiff’s present position is inconsistent with its earlier position when it
acquiesced to or accepted the benefit of the transaction with Defendant and (3) it
would be unconscionable to allow the Plaintiff’s to maintain its present position,
which is to another’s disadvantage. Lopez v. Munoz, Hockema & Reed, LLP, 22
S.W.3d 857, 864 (Tex. 2000). However, similar to estoppel by contract, “quasi-
estoppel requires mutuality of parties; the doctrine may not be asserted by or
against a ‘stranger’ to the transaction that gave rise to the estoppel.” Deutsche
Bank Nat'l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 316, Fn. 15, (Tex.
App.—Houston [14th Dist.] 2012, pet. denied). This doctrine, like the estoppel by
contract doctrine, is inapplicable to the present case because Appellants never
“entered into a transaction” with Defendant or for Defendant’s benefit. See also
Enochs v. Brown, 872 S.W.2d 312, 317 (Tex. App.—Austin 1994, no writ),
overruled on other grounds, in Roberts v. Williamson, 111 S.W.3d 113, 117 (Tex.
2002) (utilizing the quasi-estoppel doctrine to prevent Appellant’s challenge of the
contingent fee contract that he signed and accepted benefits under).
10
As previously explained, Defendant Rhea Plumbing is a “stranger” to the
settlement agreement between Appellants and the General Contractor Defendants.
That settlement agreement did not include Rhea Plumbing, nor was it entered into
for Rhea Plumbing’s benefit. (CR. 190-192). To the contrary, the Settlement
Agreement gave Appellants the right to continue pursuing any and all causes of
action against Rhea Plumbing (and the other identified subcontractors), essentially
excluding them from the settlement agreement. Id. Rhea Plumbing was not a
party to the settlement agreement, nor was it entered into for Rhea Plumbing’s
benefit; therefore, Rhea Plumbing’s attempt to use the quasi-estoppel defense to
defeat Appellants’ claims against it must fail.
3) Even if there was a contract/and or transaction between the parties, the
estoppel by contract and equitable estoppel doctrines would be
inapplicable because Appellants are not attempting to deny or take a
position that is inconsistent with the Settlement Contract and/or the Take
Nothing Judgment
To prove equitable estoppel or quasi-estoppel, respectively, Appellee Rhea
Plumbing must also prove that Appellants are, “denying the terms of a valid or
fully executed contract” or that “Appellants’s present position is inconsistent with
its earlier position.” Mathews, 411 S.W.2d at 564; Lopez, 22 S.W.3d at 864. In
this case, Appellants is neither denying nor taking a position that is inconsistent
with the terms of the settlement contract. Appellants and the General Contractor
Defendants admittedly agreed to “compromise and settle all claims and causes of
11
action of any kind whatsoever which the parties [to the settlement agreement]
have or may have arising out of the transaction or occurrence that is subject of this
litigation.” (CR. 190-192) (emphasis added). Appellants do not deny that they
settled their claims against the General Contractor Defendants.
However, Appellee is improperly trying to add terms into the settlement
agreement that do not exist. Nowhere in the settlement agreement do Appellants
agree to settle or waive its causes of action against Rhea Plumbing. Defendant
Rhea Plumbing was not mentioned anywhere in the Settlement Contract as a
“settling party.” (CR. 190-192). In fact, based on the plain, ordinary and
unambiguous terms of the Settlement Contract, “Appellants reserved the right to
go after the sub[contractor]s, including all parties named in Defendant’s Motion to
Designate Responsible Third Parties...” Id.; see Univ. Health Servs., Inc. v.
Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003) (recognizing
that contract language should be interpreted as a matter of law if it can be given a
certain or definite meaning). Appellee Rhea Plumbing was a subcontractor and
was also named in Defendant’s Motion to Designate Responsible Third Parties.
(CR. 173). Appellants are not denying any of the settlement agreement terms.
Appellants obviously settled their claims against the General Contractor
Defendants and retained their causes of action against the subcontractors, including
Rhea Plumbing. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.
12
2005) (holding that the Court’s primary concern when construing a written contract
is to ascertain the true intentions of the parties as expressed in the instrument).
Despite Rhea Plumbing’s claim, Appellants also are not attempting to deny
any terms of the Take-Nothing Judgment (“Judgment”) that was entered in this
case on July 15, 2014. The Judgment clearly states that Appellants take nothing
“against JPAG Ventures, LLC, Adrian Gracia Holdings LLC, Juan Pablo
Cabrera, and Adrian Gracia, Individually, and d/b/a Groupo Premier Inc.
and Lighthouse Homes, Only.” (CR. 208-209). To avoid any confusion as to the
Order’s scope, the phrase “as to JPAG Ventures, LLC, Adrian Gracia Holdings
LLC, Juan Pablo Cabrera, Adrian Gracia, Individually, and d/b/a Groupo Premier
Inc. and Lighthouse Homes, Only” is stated at least 3 times in the Judgment. Id.
Rhea Plumbing is not identified as a case party and is not mentioned a single
time in the Judgment. Clearly, Appellants intended to, and did, dismiss their
claims against the General Contractor Defendants on July 15, 2015, while retaining
their causes of action against the subcontractors, including Rhea Plumbing. See
Williams v. Williams, 246 S.W.3d 207, 210 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (citing the universally recognized rule of law that a written document is to
be “interpreted in accordance with the true intentions of the parties as expressed in
the instrument and that “every provision must be considered with reference to the
whole instrument).”
13
C) Rhea Plumbing’s Statute of Limitations Defense is barred by the plain
language of Tex. Civ. Prac. & Rem. Code 33.004(e)
Appellee Rhea Plumbing claims that Appellants’s causes of action against it are
barred by limitations. It is telling that Rhea Plumbing failed to cite a single case to
support their position. Appellee’s lack of authority is especially problematic, since
its position is in contravention of the clear, express language of controlling
statutory authority. See TEX. CIV. PRACTICE AND REM. CODE Sec. 33.004(e). In
construing a statute, the Court’s objective is to determine and give effect to the
Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000). The Court should ascertain that intent from the language in the
statute and should not look to extraneous matters to glean the Legislature’s intent.
Id. If the language is unambiguous, the Court should construe provisions based on
the plain and ordinary meaning of the words. See Deutsche Bank, 367 S.W.3d at
314; see also City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex.
2006).
Appellee’s argument is in contradiction of the plain and express language of the
relevant statute. Rhea Plumbing was brought into the lawsuit as a Responsible
Third Party, pursuant to Tex. Civ. Prac. & Rem. Code Sec. 33.004 (e). This case
was filed prior to September 2011; therefore, the controlling version of the statute
states: “if a person is designated under this section as a responsible third party, a
14
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” (emphasis added). Tex. Civ. Prac. & Rem. Code Sec.
33.004(e). Rhea plumbing was identified as a responsible third party by the
General Contractor Defendants on April 11, 2013. (CR. 168-174). Appellants
joined Rhea Plumbing as a Defendant in this lawsuit on May 2, 2013 (less than 30
days after they were designted). (CR. 5-14). Since they were joined within 60
days of their designation, Rhea Plumbing’s statute of limitations defense – as to all
causes of action asserted against it by Appellants - fails based on the plain
language of the statute.
The San Antonio Court of Appeals addressed an almost identical fact situation
in Flack v. Hanke, 334 S.W.3d 251 (Tex. App.—San Antonio, 2010, pet. denied).
In Flack, the original Appellants and Defendant agreed that, as part of the
settlement, Defendant would designate certain other entities as Responsible Third
Parties (“RTP Defendants”). Id. at 255. Once designated, Appellants joined the
RTP Defendants and dismissed their claims against the original Defendant. Id.
The RTP Defendants then successfully moved for summary judgment, based on
limitations. Id. The Appellate Court reversed and remanded, holding that a
Section 33.004(e) creates the potential to “revive otherwise barred claims against a
15
designated RTP” and “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.” Id. at
258. Based on the same law and same facts as Flack, the RTP Defendant’s
limitations claim must also fail in this case, based on the clear and unambiguous
language of the statute.
D. Defendant failed to prove that Appellants’ breach of implied warranty
claims are barred by controlling precedent.
Defendant Rhea Plumbing did not prove that Appellants’s breach of implied
warranty claims were barred by binding precedent. In support of its argument,
Defendant relied upon two cases holding that a homeowner cannot maintain a
breach of implied warranty claim against a subcontractor. Raymond v. Rahme, 78
SW3d 552, 563 (Tex. App—Austin, 2002, no pet.); Codner v. Arellano, 40 S.W.3d
666, 673-74 (Tex. App.—Austin 2001, no pet.). However, neither of the cited
cases involved a General Contractor Defendant assigning its claims to the
Appellants.
In this case, as part of the settlement, Appellants and the General Contractor
Defendants agreed that Appellants would be allowed to pursue all claims against
the Subcontractors. (CR. 190-192). So, even if Appellants did not have their own
breach of implied warranty claims against Subcontractor, they arguably acquired
16
such claims from the General Contractor Defendants as part of the settlement. Id.
At the very least, the terms of the settlement agreement create a fact issue as to
whether Appellants acquired breach of implied warranty claims against Rhea
Plumbing from the General Contractor Defendants.
Lastly, it should be remembered that Appellee’s argument applies to
Appellants’s breach of implied warranty claims only. Rhea Plumbing’s defense
has not been raised, and is not applicable, in response to Appellants’ negligence
claims. Therefore, even if this Court were to accept Rhea Plumbing’s claim as to
the implied warranty claims, it would still require a remand to the trial court as to
Appellants’ negligence claims.
PRAYER
Based on the Foregoing, Appellants respectfully pray that this Court sustain
their issue on appeal and reverse the district court’s grant of summary judgment in
favor of Appellee Rhea Plumbing, and remand to the district Court for further
proceedings. Appellants further pray that this Court tax all costs against Rhea
Plumbing, both in this Court and below, and award the Appellants any such other
relief at law or equity to which they may be justly entitled. Tex. R. App. P. 43.4;
Tex. R. Civ. P. 139.
17
Respectfully submitted,
LAW OFFICES OF G. ERIC DE LEON, PLLC
8700 Crownhill Blvd., Suite 201
San Antonio, Texas 78209
Telephone: (210) 684-4433
Facsimile: (210) 247-9631
E-mail: eric@deleonlawoffice.com
__/s/ G. Eric De Leon _________
Gilbert Eric De Leon
State Bar No. 24045763
Attorney for Appellants
CERTIFICATE OF COMPLIANCE
I certify that this Appellants’ Brief complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface
no smaller than 14-point for text and 12-point for footnotes. This document also
complies with the word-count limitations of Tex. R. App. P. 9.4(i) because,
according to the word-count tool of the computer program used to prepare this
document, it contains 3,815 words, excluding any parts exempted by Tex. R. App.
P. 9.4(i)(1).
__/s/ G. Eric De Leon _________
Gilbert Eric De Leon
18
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Appellant’s Brief was
filed electronically and served on all counsel via facsimile in compliance with the
Tex. R. App. P. 9.5(b) on this 4th day of November 2015.
Bret A. Sanders
bsanders@feesmith.com
Texas Bar No. 24033152
Jeffrey D. Boyd
jboyd@feesmith.com
Fee, Smith, Sharp, Vitullo LLP
816 Congress Avenue, Suite 1265
Austin, Texas 78701
Phone: (512) 479-8400
Fax: (512) 479-8402
Attorney for Rhea Plumbing
__/s/ G. Eric De Leon _________
Gilbert Eric De Leon
19
APPENDIX
I '
·.· ·' ..
CAUSE NO. 17573
STEVEN C. ALBRIGHT AND
RHONDA ALBRIGHT ... :
. ·. '·§· . I~ THE DISTRICT COURT
.. ·.§:·
.. ·~
424ih JUDICIAL DISTRICT
~
I
v.
... .§ ··: ,3:0
JPAG VENTURES, LLC, ADRIAN g~o
§ ~ -~
GRACIA HOLDINGS, LLC, JUAN § ~~~
PABLO CABRERA AND ADRIAN § q~
GRACIA, INDIVIDUALLY, AND D/B/A § ~
GROUPO PREMIER, INC. AND § At
LIGHTHOUSE HOMES, et al. § LLANO COUNTY, TEXAS o
ORDER GRANTING
DEFENDANT RHEA & SONS ENTERPRISES, INC. 0/B/A RHEA PLUMBING'S
TRADITIONAL and NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's Traditional and No-
Evidence Motion for Summary Judgment in the above-styled and numbered cause came on to be
heard. The Court, having considered said Motion and any Responses and Replies, the pleadings
.. - on file, the evidence, and the argwncnts of counsel, is of the opinion that said Motion is
meritorious and should be in all things GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant
Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's Traditional and No-Evidence Motion for
Summary Judgment in the above-styled and numbered cause is hereby GRANTED.
It is further ORDERED, ADJUDGED, AND DECREED that all costs of court be taxed
against the party by whom incurred.
SIGNED this Z.O~ay of _ _;.Mes~~-------' 2015.
335
,,
... ~
·,.
.:
.
.
• (;')
<(
-
><
>=
u.J
~~, ~
CAUSE NO. 17573 2
~g a.n_
I
o~ CJ
STEVEN C. ALBRIGHT AND § IN THE DISTRICT COURT~~ UJ ~
RHONDA ALBRIGHT § (!J~ I ~
wa::
ac:t
§ ug~ ~
V, § 424'h JUDICIAL DISTRICT ~~ \:1,. ~
§ ~~
JPAG VENTURES, LLC, ADRIAN § ~
a: ,_ >-
GRACIA HOLDINGS, LLC, JUAN § ~ <1: c:o
PABLO CABRERA AND ADRIAN §
GRAClA,INDIVIDUALLY, AND DIBIA §
GROUPO PREMIER, INC. AND §
LIGHTHOUSE HOMES, et al. § LLANO COUNTY, TEXAS.
AGREED ORDER GRANTfNG DEFENDANT RHEA & SONS ENTERPRISES, INC.
D/B/A RHEA PLUMBING'S MOTION TO SEVER
Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's Motion lo Sever in the
above-styled and numbered cause came on to be heard. The Court, having considered said Motion
and the pleadings on file, is of the opinion that said Motion is merilorious and shouJd be in all things
GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant Rhea
& Sons Enterprises, Inc. d/b/a Rhea Plumbing's Motion to Sever in the above-styled and
numbered cause is hereby GRANTED. The Court severs Plaintiffs' claims against Rhea Plumbing
and orders the court clerk 10 assign the severed action the separate cause nwnber of
__\L..l~£2~~--......3...-:.._l&"--=--------'' copy the following docwncnts, and include them in that file:
1. Plaintiffs • Third Amended Petition, filed on May 2, 20 13;
2. Defendant's Original Answer and Verified DeniaJ. tiled on June J 3, 2013;
3. Plaintiffs' Fourth Amended Petition, filed on December 13, 20J3; ·
CERTIFIED COPY CERTIFICATE
STATE OF TEXAS, COUNTY OF LLANO
r, Joyce Gil/ow District Clerk of llano County,
AGR££0 ORDER Texas, do hereb)' certif;· that this IS a true & PAGE I
correct copy as same appears of record in my
office. Witness my hand and seal of office on,
07/10/£,()[6
Dir-• rict rJ . rk . l
eput··
336
• •
4. Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's First Amended Answer,
filed on Jonuary 12, 2014; .
I
5. Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's Notice of Hearing, filed on
February 20, 20lS;
6. The following motions and responses on f11e in this case:
a. Agreed Motion for Substitution of Counsel for Bobby Rhea d/bla Rhea Plumbing,
filed on Jun~ 26, 2013;
b. Defendant Bobby Rhea d/b/a Rhea Plumbing's Motion to CompeJ, filed on May 15,
2014;
c. Defendant Rhea & Sons Enterprist:s, Inc. d/b/a Rhea Plumbing's Traditional and
No-Evidence Motion for Surrunary Judgment, filed on February J I, 20 15;
d. Plaintiffs' Response to Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea
Plwnbing's Traditional and No-Evidence Motion for Summary Judgment, filed on
April 29, 2015;
e. Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plumbing's Reply in Support
of its Traditiona1 and No-Evidence Motion for Summary Judgment, filed on May 7.
2015;
7. The following signed orders:
a. Agreed Order on Defendant Bobby Rhea dlb/a Rhea Plumbing's Motion to Compel,
entered on July 10, 2014;
8. The following signed swnmary judgment orders:
a. Order Granting Defendant Rhea & Sons Enterprises, Inc. d/b/a Rhea Plwnbing's
Traditional and No-Evidence Motion for Summary Judgment; entered on May 20,
2015;
9. A copy of the docket sheet; and
I 0. A copy of this order.
ACKEEU OROtH PAC£1
337
• •
c~"~
SIGNED this_7_~v of M .2015.
I'IU~
AGI~£ED:
bsanch.:l'sflilfcc!tmith.com
.JJ~FIIJU~Y n. BOYU
Suuc B3r No. 24069404
jhnvu(Z~fcc s1n i th:cum
Fc~t Smith, Sharp & Vitulln: I...L.P.
S16 Congrc.;~s Avenue~ Suire 1265
..\u~tin. TX 7870 I
(512) 4 79-X400
(512) 479-R402 [FAX]
ATTOHNEYS FOR DEFENDANT
RHEA & SONS ENTERI)iliS~S, JNC.
d/h/:r RHEA J'LU:"l OING
-.Jijjf ?:
G. Jf:HIC Ill~ LEON
Stmc Bnr No. 24045 7()3
cridiilddc(lnJa \'-""0 ITil"L".Clllll
Law Office of G. Eric De L~;on= PLLC
8700 CrownhiJJ Boulev~trd
Suiti! 201
San 1\nwniot TX 7R209
(2} 0) 684-4:1 JJ
(2l0)24i-96JI (fax)
ATTORNEY l'"OR rJ..A INTI FFS
338
ue .. , f VI &.VI Jl •'to#W \/41 • &., • ...
' CAUSE NO. 17573
'·
STEVEN C. ALBRIGHT and § IN THE DISTRICT COURT
RHONDA ALBRlGHT §
§
vs. § 424nt JUDlCIAL DISTRlCT
§
IP AG VENTURES, LLC, ADRIAN §
GRACIA HOLDING, LLC, JUAN §
PABLO CABRERA and ADRIAN §
GRACIA, Individually and d/b/a §
GROUPO PREMrER, INC. and §
LIGHTHOUSE H0~1ES § LLANO COUNTY, TEXAS
ORDER GRANTING DEFENDANTS' lVIOTION FOR LEAVE
TO DESIGNATE RESPONSIBLE THIRD PARTIES
JJJl_
On the .J.L_ day of April 2013, came on to be heard Defendants' Motion for Leave to
Designate Responsible Third Parti~s. The Parties appeared through their counsel of record.
After hearing the argument of the parties and reviewing the pleadings, the Court is of the opinion
that such Motion should be, in all things, GRANTED.
lT IS. THEREFORE, ORDEREDJ ADJUDGED and DECREED that the Court grsnt
leave to Defendants to designate Responsible Third Parties.
,;~ ~
SIGNED on this the _LL_ day of -..:..~..J.-.71:.,;._-----' 2013.
JOYCE GILLOW
ClERK DISTRJCT COURT. llANO COUNTY, TEXAS
FILED .
APR 1 1 2013
AT q_. ~ tJ O'ClOCK f} M
BY .1" b .t.£t..J llffiiH
..
194
,
~
APPROVED FOR ENTRY:
'
Crown Tower, Suite 201
8700 Crownhill Blvd.
San Antonio, Texas 78209
Telephone: (21 0) 684-4433
Facsimile: (210) 247-9631
By: Jf/ttf E. ~ ~
GILBERT ERIC riLEON
State Bar No. 24045763
ATIORNEY FOR PLAINTrFFS
195
• • ~,_
:E§
\fu
i
~0
CAUSE NO. 17573 ~
STEVEN C. ALBRIGHT and § JN' Tim DISTRICT· CO"§
s 99
N
RHONDA ALBRIGHT
vs.
§
§
§ 424TH JUDICIAL DIST
It: -
Lt')
. .J
__,
:;)
0
JPAO VENTURES, LLC, ADRIAN
§
§
§
~~
GRACIA HOLDING, LLC, JUAN
PABLO CABRERA and ADRIA'l
§
. §
~
GRACIA. Individually and d/b/a §
GROUPO PREMIER, INC. and §
LIOHTHOUSR ijOMES § LLANO COUNTY, TEXAS
FINAL TAJ{E NOTHING JUDGMENT AS TO JPAG p!NTURES LLC, ADRIAN
G13ACIA HOLDING LLC· JUAN PAlLO CABRERA. ADRIAN GRACIA. GROypO
PREMIER AND LIGHHOUSE HOMES ONLY
BE IT REMEMBERED that on this the .1.£ day of .July 2013, came on to be heard the
above numbered cause, wherein STEVEN C. ALBRIGHT AND RHONDA ALBRIGHT are
Plaintiffs and JPAG VENTURES, LLC, ADRIAN GRACIA HOLDING, LLC, JUAN
;·ABLO CABRERA AND ADRIAN GRACIA. INDIVIDUALLY AND DID/A GROUPO
PREMIER, INC. AND LIGHTHOUSE HOMES are Defendants. All parties appeared by and
through their mpective attomeys of record and announced to the Court that an agreement and
settlement have been reached by these parties.
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that the Plaintiffs
STEVEN C. ALBRIGHT AND RHONDA ALBRIGHT take nothing by reason of this suit
against Defendants JPAG VENTURES, ~C, ADRIAN GRACIA HOLDING, LLC, JUAN
PABLO CABRERA AND ADRIAN GRACIA, INDIVIDUALLY AND D/B/A GROUPO
PREMIER, INC. AND LIGHTHOUSE HOMES ONLY.
..• ·. ...
~
·.. -.. lt is further ORD~RED, ADnJDGED ~ DECREEn· that the Defend~ts JPAG
VENTURES, LLC, ADRIAN GRACIA HOLDING, LLC, JUAN PABLO CABRERA AND
86
• •
ADRIAN GRACIA,' INDIVIDUALLY AND D/B/A GROUPO PREMIER, INC. AND
LIGHTHOUSE HOMES take nothing by reason of this suit against Plaintiffs STEVEN C.
ALBRIGHT AND RHONDA ALBRIGHT.
It is further ORDERED, ADJUDGED and DECREED that the Defendants JPAG
VENTURES, LLC, ADRIAN GRACIA HOLDING, LLC, JUAN PABLO CABRERA AND
ADRIAN GRACIA, INDMDUALLY AND DIB/A GROUPO PREMIER, INC. AND
LIGHTHOUSE HOMES. take nothing by reason of this suit against each other.
It is further ORDERED, ADJUDGED and DECREED 'that taxable costs are to be paid by
the party incurring same.
This concludes any and all matters arising out of or asserted in the above cause number
by any of the herein named Parties.
This is meant to be a final judgment that disposes of all claims and all parties in the above
referene;ed cause number asserted by and between JPAG VENTURES, LLC, ADRIAN
GRACIA HOLDING, LLC, JUAN PABLO CABRERA AND ADRIAN GRACIA,
INDIVIDUALLY AND D/B/A GROUPO PREMIER, INC. AND LIGHTHOUSE HOMES
aDd Plaintiff's STEVEN C. ALBRIGHT AND RHONDA ALBRIGHT.
SIGNED and ENTERED in Llano County, Texas, this /5/L day of ~
2013.
87
• •
APPROVED FOR ENTRY:
KUSTOFF & PHIPPS, L.L.P.
41 03 Parkdale Street
San Antonio. Texas 7&229
Telephone: (210) 14-9444
Telecopier. (21 61 ·9464
By:_~.LJ._.L.JI,...£.-~U4;...~==~-
D NIEL 0. KUSTOF
State Bar No. 1177051
MELANIE HESSLER PI-IlPPS
State Bar No. 240324 I 6
NINA JASMIN PETROW
State Bar No. 24048725
AlTORNEYS FOR DEFENDANTS
Crown Tower, Suite 201
8700 CrownhilJ Blvd.
San Antonio, Texas 78209
Telephone: (210) 684-4433
Fdcsimile: (21 0) 247~963 I
By:~ ?
GILBERT ERIC DE LEON
A #"--.--.
State Bar No. 24045763
AITORNEY FOR PLAINTIFFS
88
Tex. Civ. Prac. & Rem. Code § 33.004
This document is current through the 2015 regular session, 84th Legislature, Chapters: 3-1 I, 13-20, 22-29, 31-32,
34-46, 48, 51, 53-62, 63, 66-68, 70-81, 83, 85-96, 98-99, 101-102, 104-105, 107-ll2, 114, ll6-130, 132-134, 136-141,
143-149, 151-156, 158-159, 161, 165-172, 174, 176, 178-180, 182, 184, 186-200, 202-207, 209-224, 227, 229-234,
236-241,244-248,251-252,254-255,257-261,263-268,270-287,289-295,297-300,302-311,314,316-322,325,
327-328, 333. 335-354, 356-357, 360-363, 365-367, 369-373, 375-381. 383-393, 395-400, 402-407, 409-414, 416-421.
423-424, 426-428, 430-434, 436, 439-447, 449-456, 458-464, 466-468, 472-479, 482-487, 489-495, 498-500, 502-504,
507-514, 516-526, 528-531, 533-540, 542-548, 550-553, 555-556, 558-560, 563-568, 570, 572-576, 578-584, 586-590,
592-596, 600-601, 605-6ll, 613-614, 616-622, 624, 626, 628-629, 631-632, 634-646, 648, 650-662, 664-665, 669-671,
673-683, 685-686, 688-696, 698, 700-702, 704-705, 709, 711, 714-715, 717-718, 720, 722-728, 730-733, 735,
737-742, 744, 746-751, 753-764, 767' 769, 771-774, 776, 778-786, 788-796, 798-811' 813-820, 822, 824-825,
827-835, 839-840, 842-844, 848-853, 856-859, 861-865, 867-869, 871, 874-876, 879-884, 886-887, 889-895, 897-907,
909, 913-914, 916-923, 926-928, 930, 933, 936-937, 939, 941-943, 947, 951-954, 956, 958-961, 963-965, 967-978,
980-983, 988, 990-991, 994-999, 1001, 1003, 1005-1008, 1010, 1012-1022, 1024-1030, 1033-1036, 1038-1043, 1045,
1047, 1049-1050, 1052, 1057-1064, 1066, 1069, 1071-1072, 1077-1078, 1081-1087, 1090-1093, 1095-1103,
1105-1107,1110-1116,1118-1125,1127-1130,1132-1137,1140,1142-1147,1149,1151-1152,1154-1156,1159-1160,
1162-1167,1169,1171-1172,1174-1177,1180-1181,1184-1190,1192,1194-1201,1204-1205,1207-1210,1212-1213.
1216, 1218, 1220-1221' 1223-1224, 1226-1235, 1237-1241' 1245-1250, 1253-1254, 1256, 1258-1260, 1263-1267'
1269-1270, 1274-1275, 1277
Texas Statutes & Codes An1wtated by LexisNexis® > Civil Practice and Remedies Code > Title 2 Trial.
Judgment. and AJlPeal > Subtitle C Judgments > Chapter 33 Proportionate Respousibility >
Subchapter A Proportionate Responsibility
Sec. 33.004. Designation of Responsible Third Party.
(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 this state
with regard to the assertion by a defendant of rights to contribution or indemnity. Nothing in this section affects
the filing of cross-claims or counterclaims.
(c) [Repealed by Acts 2003, 78th Leg., ch. 204 (H. B. 4), § 4.10(2), effective September I, 2003.]
(d) A defendant may not designate a person as a responsible third party with respect to a claimam'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.
(e) [Repealed by Acts 2011, 82nd Leg., ch. 203 (H.B. 274), § 5.02, effective September I, 2011.]
(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.
(g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a
responsible third party unless the objecting party establishes:
(1) 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; and
(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged
responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.
ERIC DELEON
Page 2 of 23
Tex. Civ. Prac. & Rem. Code § 33.004
(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.
(i) The filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault
against the person:
(1) does not by itself impose liability on the person; and
(2) may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal
theory, to impose liability on the person.
(j) Notwithstanding any other provision of this section, if, not later than 60 days after the filing of the defendant's
original answer, the defendant alleges in an answer filed with the court that an unknown person committed a
criminal act that was a cause of the loss or injury that is the subject of the lawsuit, the court shall grant a motion
for leave to designate the unknown person as a responsible third party if:
(1) the court determines that the defendant has pleaded fact~ sufficient for the court to determine that there is a
reasonable probability that the act of the unknown person was criminal;
(2) the defendant has stated in the answer all idemifying characteristics of the unknown person, known at the time
of the answer; and
(3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.
(k) An unknown person designated as a responsible third party under Subsection (j) is denominated as "Jane Doe"
or "John Doe" until the person's identity is known.
(I) 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 gram 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.
History
Enacted by Acts 1995. 74th Leg.. ch. 136 (S.B. 28). § 1, effective September I, 1995; am. Acts 2003. 78th Leg. ch.
204 tH.B. 4). §§ 4.03, 4.04, 4.10(2), effective September I, 2003; am. Acts 2011. 82nd Leg .. clz. 203 (H.B. 274),
§§ 5.01, 5.02, effective September 1, 2011.
Annotations
Notes
STATUTORY NOTES
1995 Note:
See note following § 33.00 I.
2003 Note:
Articles 4, 5, and 8 of Ch. 204 apply to an action filed on or after July l, 2003. An action filed before July 1, 2003, is
governed by the law in effect immediately before the change in law made by Articles 4, 5, and 8, and that law is continued
in effect for that purpose. Acts 2003, 78th Leg., ch. 204, § 23.02(c).
e See Texas Litigation Guide, Ch. 291, Proportionate Responsibility; Contribution and Indemnity.
ERIC DELEON
Page 3 of 23
Tex. C iv. Prac. & Rem. Code § 33.004
Effect of amendments.
:?.011 amendment , ad<.kd (d): ami repeakd (c.:). w hich read: "If a person i-.. de~igna ted llll<.kr th i ~ ~ecti