Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-16-00333-CV
IN RE Cleo BUSTAMANTE, Jr.
Original Mandamus Proceeding 1
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice, joined by Luz Elena D. Chapa, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting en banc: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: November 23, 2016
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART
Relator, Cleo Bustamante, Jr., filed this petition for writ of mandamus complaining the trial
court erred by: (1) refusing to rule on his motion for summary judgment; and (2) denying his
motion for leave to designate responsible third parties. We hold the trial court clearly abused its
discretion by denying the motion for leave to designate responsible third parties and an appeal
does not provide an adequate remedy for this error. Therefore, we conditionally grant mandamus
on this issue. We do not reach the complaint regarding the motion for summary judgment.
1
This proceeding arises out of Cause No. 12-05-27517, styled Roberto Fernandez and Maria Imelda Flores v. Abaco
Consultants, Inc., et al., pending in the 365th Judicial District Court, Maverick County, Texas, the Honorable Amado
J. Abascal, III presiding.
04-16-00333-CV
BACKGROUND
On September 22, 2010, Roberto Fernandez, while in the course and scope of his
employment for Cleo Bustamante Enterprises, Inc. (“CBE”), was injured when a vehicle driven
by Irasma Estrada Riojas struck him and pinned him against the wall of the Cleo Convenience
Center where Fernandez worked. On September 21, 2012, one day before the statute of limitations
expired, Fernandez and his wife filed suit against a number of defendants, including Bustamante,
but did not sue either Riojas, with whom Fernandez had settled, or CBE, through whom Fernandez
had received workers’ compensation. 2 On October 4, 2012, Bustamante answered with a general
denial.
On October 26, 2015, Bustamante filed a motion for leave to designate Riojas and CBE as
responsible third parties pursuant to section 33.004 of the Texas Civil Practice and Remedies Code.
The Fernandezes filed an objection to the motion for leave on November 10, 2015. In their
objection, the Fernandezes argued that the motion should be denied because it was filed after the
statute of limitations had expired and because Bustamante had failed to timely disclose that CBE
or Riojas were potential responsible third parties.
The motion for leave was heard on April 20, 2016. At the hearing, the Fernandezes argued
that Bustamante had not disclosed CBE and Riojas as potential responsible third parties in response
to the Fernandezes’ requests for disclosure; therefore, Bustamante was barred from designating
them as responsible third parties. Bustamante pointed out the Fernandezes were already aware of
the existence and potential liability of CBE and Riojas. Bustamante further argued the purpose of
disclosure in regards to the designation of responsible third parties is to allow plaintiffs an
opportunity to sue third parties before limitations expire, and this purpose was obviated because
2
Prior to suit, Fernandez settled his claim against Riojas and the owner of the vehicle Riojas was driving for
$300,000.00.
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the statute of limitations expired the day after the Fernandezes filed suit. Because the Fernandezes
did not file suit until the day before the statute of limitations expired, Bustamante contends he
could not have timely disclosed any potential responsible third parties and, due to this
impossibility, Bustamante had no duty to timely disclose potential responsible third parties. The
trial court denied Bustamante’s motion for leave, and this mandamus ensued.
MANDAMUS STANDARD
Mandamus relief is an extraordinary remedy and will issue only to correct a clear abuse of
discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40
(Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it reaches a decision so
arbitrary and unreasonable that it constitutes a clear and prejudicial error of law, or if it clearly
fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,
382 (Tex. 2005) (orig. proceeding); Walker, 827 S.W.2d at 840. 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.
Prudential, 148 S.W.3d at 135.
DID THE TRIAL COURT ABUSE ITS DISCRETION?
We first consider whether the trial court abused its discretion by denying the motion for
leave to designate Riojas and CBE as responsible third parties. To do this, we must determine if
the motion for leave to designate was timely filed and, if so, was there a reason for the trial court
to deny the motion.
A. Timely Designating Responsible Third Parties
The designation of responsible third parties is governed by Chapter 33 of the Texas Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE. ANN. §§ 33.001-33.017 (West 2015).
A defendant in a tort claim may designate as a responsible third party “any person who is alleged
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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)); Galbraith Eng’g
Consultants, Inc., v. Pochucha, 290 S.W.3d 863, 868 (Tex. 2009). A motion for leave to designate
“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.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a).
Bustamante’s motion for leave to designate responsible third parties was filed prior to the 60th day
before the trial date.
A defendant may not designate a person as a responsible third party after the statute of
limitations has expired if the defendant 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). The timeliness limitation on
a defendant’s ability to designate responsible third parties is a procedural safeguard designed to
prevent a defendant from “‘belatedly pointing its finger at a time-barred responsible third-party
against whom the plaintiff has no possibility of recovery.’” In re CVR Energy, Inc., No. 01-15-
00877-CV, 2016 WL 35448833, at *3 (Tex. App.—Houston [1st Dist.] June 28, 2016, orig.
proceeding) (op. on reh’g) (quoting Withers v. Schneider Nat’l Carriers, Inc., 13 F. Supp. 3d 686,
689 (E.D. Tex. 2014)). The statute does not, however, define the term “timely.” The Fernandezes
argue that, because Rule 194.2(l) includes the identity of a potential responsible third party as an
item a party may request another party to disclose, “timely” refers to the time to respond to requests
for disclosure under Texas Rule of Civil Procedure 194.3. Bustamante argues “timely” refers to a
defendant’s obligation to disclose a potential responsible third party before the expiration of the
statute of limitations, if possible.
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In the case now before this court, the Fernandezes filed suit the day before the limitations
period expired, and included requests for disclosure with their petition. Under Texas Rule of Civil
Procedure 194.3(a), Bustamante was required to respond to the requests for disclosure within fifty
days of being served with the petition. TEX. R. CIV. P. 194.3(a). It is undisputed that Bustamante
did not respond to the requests within fifty days of service. The Fernandezes argue Bustamante
never responded and thus did not disclose the potential responsible third parties. However,
Bustamante points to his responses to requests for disclosure propounded by a co-defendant, in
which he listed Riojas as a potential responsible third party. Bustamante also testified in his
deposition that Fernandez was employed by CBE, which leased the premises where the accident
occurred, while Bustamante owned the premises. Bustamante further testified CBE was the
general contractor for the design and construction of the building and parking lot at the premises
where the accident occurred. Therefore, Bustamante argues, the Fernandezes were made aware of
these potential responsible third parties. See TEX. R. CIV. P. 193.5(a)(2) (providing no duty to
supplement discovery responses if additional information is made known to other parties “on the
record at a deposition, or through other discovery responses”).
The Fernandezes are, essentially, taking the position that a defendant loses the statutory
right to designate responsible third parties if the defendant fails to respond to a request for
disclosure of potential responsible third parties within the deadline contained in Rule 194.3. This
is inconsistent with Texas Rule of Civil Procedure 193.6(a), which allows a party who fails to
respond to discovery to introduce the undisclosed material or information into evidence if the party
shows either (1) good cause existed for the failure to respond to the discovery or (2) the other party
will not be unfairly surprised or unfairly prejudiced by the failure to timely respond. TEX. R. CIV.
P. 193.6(a). To hold as the Fernandezes suggest would convert Rule 194.2(l) into a technical trap.
A party who fails to timely respond to a request for disclosure of information regarding a person
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who may be designated as a responsible third party would lose the statutory right to designate
responsible third parties, while a party that fails to respond to a request for disclosure of the
information required by rules 194.2 (a)-(k) would not face such a penalty. We do not read Section
33.004(d) so narrowly. Instead, we read section 33.004(d) to require a defendant to disclose a
potential responsible third party before the expiration of the statute of limitations, if that is possible.
In this case, Bustamante did not fail to comply with his obligation to timely disclose Riojas and
CBE as potential responsible third parties because it was impossible for Bustamante to make a
disclosure before the statute of limitations ran. The statute of limitations ran one day after this suit
was filed. The Fernandezes knew Riojas and CBE were potential responsible third parties and,
even if we indulge in the legal fiction that the Fernandezes did not know Riojas and CBE were
potential responsible third parties, their existence was disclosed when Bustamante was deposed
and responded to the co-defendant’s requests for disclosure. Thus, we hold Bustamante complied
“with [his] 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).
B. Denial of the Motion for Leave
Having determined that Bustamante complied with his obligation to timely disclose CBE
and Riojas as responsible third parties, we now consider the grounds upon which a trial court may
deny a motion for leave to designate. Once a motion for leave to designate responsible third parties
is filed, a court shall grant leave to designate a named person as a responsible third party, unless a
timely objection to the motion for leave is filed establishing “the defendant did not plead sufficient
facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the
Texas Rules of Civil Procedure” and the defendant fails to plead sufficient facts after being given
leave to replead. TEX. CIV. PRAC. & REM. CODE § 33.004(g) (West 2015). The Fernandezes did
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not contend, either in their written objection to Bustamante’s motion, or at the hearing on the
motion, that Bustamante failed to plead sufficient facts concerning CBE’s and Riojas’ alleged
responsibility to satisfy the pleading requirements of the Texas Rules of Civil Procedure. A review
of the motion shows that it satisfied the pleading requirements.
Texas follows a ‘fair notice’ standard for pleading. Low v. Henry, 221 S.W.3d 609, 612
(Tex. 2007); see also TEX. R. CIV. P. 47(a) (stating that pleading setting forth claim for relief must
contain short statement of the cause of action sufficient to give fair notice of claim involved). A
pleading is sufficient when “an opposing party can ascertain from the pleading the nature, basic
issues, and the type of evidence that might be relevant to the controversy.” Low, 221 S.W.3d at
612. Bustamante’s motion for leave alleged that Riojas was the individual who struck Fernandez
with her vehicle. The motion also alleged that CBE was the general contractor who hired the
engineers and architects who prepared the plans for the buildings on the premises, was the general
contractor for the construction of the buildings on the premises, and was thus responsible for any
failings in the design and construction. These pleadings satisfy the requirements of the Texas
Rules of Civil Procedure.
Section 33.004(g)(1) of the Civil Practice and Remedies Code unequivocally states that a
court “shall” grant a motion for leave to designate a responsible third party unless an objecting
party establishes the defendant failed to plead sufficient facts to satisfy the pleading requirements
of the Texas Rules of Civil Procedure. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(g)(1). The
use of the word “shall” in a statute “imposes a duty.” TEX. GOV’T CODE ANN. § 311.016(3) (West
2013), see also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (noting “must” and
“shall” generally recognized as “mandatory, creating a duty or obligation”). The Fernandezes did
not allege, much less establish, that Bustamante failed to meet the pleading requirements
referenced in section 33.004(g)(1). Thus, the trial court abused its discretion by denying
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Bustamante leave to designate CBE and Riojas as responsible third parties. We now consider
whether Bustamante has an adequate remedy by appeal.
NO ADEQUATE REMEDY BY APPEAL
This court has previously held that mandamus relief is not available for the denial of a
motion for leave to designate a responsible third party because the moving party has an adequate
remedy by appeal. In re Taymax Fitness, LLC, No. 04-14-00119-CV, 2014 WL 1831100 (Tex.
App.—San Antonio May 7, 2014, orig. proceeding) (mem. op.); See also In re Caterpillar, Inc.,
No. 04-09-00796-CV, 2009 WL 5062324 (Tex. App.—San Antonio Dec. 23, 2009, orig.
proceeding) (mem. op.). However, we now revisit this issue and conclude the better approach to
the erroneous denial of a motion for leave to designate a responsible third party is to recognize that
an appeal is inadequate and mandamus relief is proper. With this decision, we bring this court in
line with the majority of appellate courts in Texas and the Texas Supreme Court’s guidance
regarding the availability of mandamus relief.
In 2004, the Texas Supreme Court handed down In re Prudential Ins. Co. of Am., 148
S.W.3d 124 (Tex. 2004) (orig. proceeding), in which the court “revisited the contours of
mandamus relief.” In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 299 (Tex. 2016) (orig.
proceeding). The court reiterated the requirements a relator must meet to qualify for mandamus
relief: (1) a clear abuse of discretion; and (2) no adequate remedy by appeal. Prudential 148
S.W.3d at 135-36 (citing Walker, 827 S.W.3d at 840). The court then explained that in determining
whether an adequate remedy by appeal exists, an appellate court must engage in the following
balancing test:
The operative word, “adequate”, has no comprehensive definition; it is simply a
proxy for the careful balance of jurisprudential considerations that determine when
appellate courts will use original mandamus proceedings to review the actions of
lower courts. These considerations implicate both public and private interests.
Mandamus review of incidental, interlocutory rulings by the trial courts unduly
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interferes with trial court proceedings, distracts appellate court attention to issues
that are unimportant both to the ultimate disposition of the case at hand and to the
uniform development of the law, and adds unproductively to the expense and delay
of civil litigation. Mandamus review of significant rulings in exceptional cases may
be essential 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
eventual reversal of improperly conducted proceedings. An appellate remedy is
“adequate” when any benefits to mandamus review are outweighed by the
detriments. When the benefits outweigh the detriments, appellate courts must
consider whether the appellate remedy is adequate.
Id. at 136.
The determination of whether an adequate remedy by appeal is available is not “abstract or
formulaic,” but rather is a practical and prudential determination. Id. Flexibility is the principal
virtue of mandamus relief and rigid rules are “necessarily inconsistent” with that flexibility. Id.
Thus, the supreme court has held that “an appellate remedy is not inadequate merely because it
may involve more expense or delay” than a writ of mandamus, however, the word “merely” must
be carefully considered. Id. (quoting Walker, 827 S.W.2d at 842). For example, when an order
skews the procedural dynamics of a case, a traditional appeal is inadequate and mandamus proper,
even if the order would be subject to appeal at the conclusion of the case. Id. (citing Travelers
Indem. Co. v. Mayfield, 923 S.W.2d 590, 595 (Tex. 1996)). Appeal is not an adequate remedy
when the denial of mandamus relief would result in an “irreversible waste of judicial and public
resources.” Id. at 137 (quoting In re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999)). The
decision whether there is an adequate remedy on appeal “depends heavily on the circumstances
presented.” Id. at 137. The decision is not confined to the private concerns of the parties but can
extend to the impact on the legal system. Id. For example, the Texas Supreme Court has granted
mandamus relief because the court “could not justify putting the civil justice system itself to the
trouble of grinding through proceedings that were certain to be ‘little more than a fiction.’” Id.
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(quoting In re Masonite Corp., 997 S.W.2d at 198). The Prudential ruling, and the balancing of
factors described therein, has resulted in mandamus relief being available in cases where an appeal
was previously considered adequate. See, e.g., In re J.B. Hunt Transport, Inc., 492 S.W.3d at 299-
300.
A number of the intermediate courts of appeals have applied the Prudential standard to the
question of whether an adequate remedy by appeal exists from a wrongful denial of a motion for
leave to designate responsible third parties, and the majority of these courts hold no adequate
remedy by appeal exists. See e.g., In re CVR Energy, Inc., 2016 WL 35448833, at *13; In re Lewis
Casing Crews, Inc., No 11-14-00137-CV, 2014 WL 3398170, at *3-5 (Tex. App.—Eastland, July
10, 2014, orig. proceeding) (mem. op.); In re Altec Indus., Inc., No. 10-12-00207-CV, 2012 WL
2469542, at *2 (Tex. App.—Waco, June 22, 2012 orig. proceeding) (mem. op.); In re Smith, 366
S.W.3d 282, 288-89 (Tex. App.—Dallas 2012 orig. proceeding); In re Brokers Logistics, Ltd, 320
S.W.3d 402, 408-09 (Tex. App.—El Paso 2010, orig. proceeding).
Applying the Prudential balancing test to the case before us, we now overrule Taymax and
join the majority of our sister courts and hold that there is no adequate remedy by appeal from the
trial court’s denial of Bustamante’s timely motion for leave to designate responsible third parties.
CONCLUSION
We conditionally grant a writ of mandamus in part. The trial court is directed to grant the
motion for leave to designate responsible third parties. In his petition for writ of mandamus,
Bustamante also complained the trial court failed to set his motion for summary judgment for
hearing. Our disposition of Bustamante’s issue regarding the designation of Riojas and CBE as
responsible third parties changes the procedural status of the underlying cause and the existing
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time available for the trial court to rule on Bustamante’s motion for summary judgment before
trial, therefore we do not address this issue.
Marialyn Barnard, Justice
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in Re Cleo Bustamante, Jr.
Combined Opinion